Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 1 of 16
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:20−cv−00619−AKK

APPEAL

People First of Alabama et al v. Merrill et al Assigned to: Judge Abdul K Kallon Case in other court: 11th Circuit, 20−12184 GG Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/01/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

People First of Alabama

represented by Caren Elaine Short SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, GA 30031 404−221−5868 Fax: 404−221−5857 Email: caren.short@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenny R Ryan Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: jrryan2@adap.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: sara.zampierin@splcenter.org TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr ALABAMA DISABILITIES ADVOCACY PROGRAM 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487 (205) 348−4928 Fax: (205) 348−3909 Email: wvanderpoljr@adap.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deuel Ross NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 40 Rector Street 5th Floor New York, NY 10006 212−965−7712 Fax: 212−226−7592 Email: dross@naacpldf.org PRO HAC VICE

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ATTORNEY TO BE NOTICED

Liliana Zaragoza NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 40 Rector Street 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: lzaragoza@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Mahogane D Reed NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 700 14th Street NW Suite 600 Washington, DC 20005 202−682−1300 Fax: 202−682−1312 Email: mreed@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G Abudu SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, AL 30031 404−521−6700 Fax: 404−221−5857 Email: nancy.abudu@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Merle NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 40 Rector St, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−922−7592 Email: nmerle@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Steven Lance NAACP LEGAL DEFENSE ANDEDUCATIONAL FUND, INC. 40 Rector Street 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: slance@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Robert Clopton

represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Merle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Eric Peebles

represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deuel Ross

Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 4 of 16

(See above for address) ATTORNEY TO BE NOTICED

Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Howard Porter, Jr.

represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Liliana Zaragoza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Merle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Annie Carolyn Thompson
Plaintiff Greater Birmingham Ministries

Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Van Der Pol , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Liliana Zaragoza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha Merle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Liliana Zaragoza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Natasha Merle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Alabama State Conference of the NAACP

represented by Caren Elaine Short (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenny R Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara M Zampierin (See above for address) TERMINATED: 07/01/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Liliana Zaragoza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mahogane D Reed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy G Abudu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha Merle (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Lance (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
John Merrill In his official capacity as the Secretary of the State of Alabama

represented by James W Davis OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8400 Email: jim.davis@alabamaag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Misty Shawn Fairbanks Messick OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF ALABAMA 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−242−7300 Fax: 334−353−8440 Email: Misty.Messick@AlabamaAG.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenton Merrill Smith OFFICE OF THE ATTORNEY

Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 8 of 16

GENERAL OF ALABAMA P.O. Box 300152 501 Washington Avenue Montgomery, AL 36130 334−353−4336 Fax: 334−353−8400 Email: Brenton.Smith@AlabamaAG.gov ATTORNEY TO BE NOTICED

Jeremy Stone Weber OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 501 Washington Avenue Montgomery, AL 36130 334−353−1018 Fax: 334−353−8400 Email: jeremy.weber@alabamaag.gov ATTORNEY TO BE NOTICED

Winfield J Sinclair OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−353−9110 Fax: 334−353−8440 Email: winfield.sinclair@alabamaag.gov ATTORNEY TO BE NOTICED

Defendant
Kay Ivey In her official capacity as the Governor of the State of Alabama

represented by James W Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Brenton Merrill Smith (See above for address) ATTORNEY TO BE NOTICED

Jeremy Stone Weber (See above for address) ATTORNEY TO BE NOTICED

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

Defendant State of Alabama (The)

represented by James W Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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Defendant Alleen Barnett In her official capacity as Absentee Election Manager of Mobile County, Alabama
Defendant Jacqueline Anderson−Smith In her official capacity as Circuit Clerk of Jefferson County, Alabama

Brenton Merrill Smith (See above for address) ATTORNEY TO BE NOTICED
Jeremy Stone Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Jay M Ross ADAMS AND REESE LLP PO Box 1348 11 North Waters Street, Suite 23200 Mobile, AL 36633 251−433−3234 Fax: 251−438−7733 Email: jay.ross@arlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd David Engelhardt ADAMS AND REESE, LLP 1901 6th Avenue North, Ste. 3000 Birmingham, AL 35203 205−250−5020 Fax: 205−250−5034 Email: todd.engelhardt@arlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aubrey Patrick Dungan ADAMS AND REESE, LLP 11 N. Water Street, Ste. 23200 Mobile, AL 36633 251−433−3234 Fax: 251−438−7733 Email: patrick.dungan@arlaw.com ATTORNEY TO BE NOTICED
Robert F. Dyar ADAMS AND REESE, LLP 1901 6th Avenue North, Ste. 3000 Birmingham, AL 35203 205−250−5016 Fax: 205−488−8016 Email: robert.dyar@arlaw.com ATTORNEY TO BE NOTICED
represented by Donald McKinley Carroll Jefferson County Attorney's Office 716 Richard Arrington, Jr. Blvd. North Suite 280 Birmingham, AL 35203 205−325−5688 Fax: 205−325−5840 Email: carrolld@jccal.org ATTORNEY TO BE NOTICED
Theodore A Lawson , II JEFFERSON COUNTY ATTORNEY'S OFFICE 716 Richard Arrington Jr. Blvd. North

Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 10 of 16

Room 280 Birmingham, AL 35203 205−325−5688 Fax: 205−325−5840 Email: lawsont@jccal.org ATTORNEY TO BE NOTICED

Defendant
Karen Dunn Burks In her official capacity as Deputy Circuit Clerk of the Bessemer Division of Jefferson County, Alabama

represented by Donald McKinley Carroll (See above for address) ATTORNEY TO BE NOTICED
Theodore A Lawson , II (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mary B. Roberson In her official capacity as Circuit Clerk of Lee County, Alabama

represented by Brandon Keith Essig LIGHTFOOT FRANKLIN & WHITE 400 20th Street North Birmingham, AL 35203 205−581−0748 Fax: 205−581−0799 Email: bessig@lightfootlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Jackson Sewell LIGHTFOOT FRANKLIN & WHITE LLC 400 20th Street North Birmingham, AL 35203 205−581−0700 Fax: 205−581−0799 Email: jsewell@lightfootlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

Amicus Honest Elections Project

represented by Steven M Brom BACHUS & BROM LLC 4908 Cahaba River Road Suite 100 Birmingham, AL 35243 205−970−6747 Fax: 205−970−7776 Email: sbrom@bachusbrom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cameron Thomas Norris CONSOVOY MCCARTHY PLLC 1600 Wilson Boulevard Suite 700 Arlington, VA 22209 703−243−9423 Email: cam@consovoymccarthy.com PRO HAC VICE ATTORNEY TO BE NOTICED

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Tyler R Green CONSOVOY McCARTHY PLLC 1600 Wilson Blvd. Suite 700 Arlington, VA 22209 703−243−9423 Email: tyler@consovoymccarthy.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/01/2020
05/05/2020 05/05/2020 05/05/2020
05/05/2020 05/05/2020 05/05/2020 05/06/2020 05/07/2020 05/07/2020
05/08/2020

# Docket Text
1 COMPLAINT against Jacqueline Anderson−Smith, Alleen Barnett, Karen Dunn Burks, Kay Ivey, John Merrill, Mary B. Roberson, State of Alabama (The), filed by Annie Carolyn Thompson, Eric Peebles, Alabama State Conference of the NAACP, Greater Birmingham Ministries, Howard Porter, Jr, Robert Clopton, People First of Alabama. (Attachments: # 1 Civil Cover Sheet)(JLC) (Entered: 05/01/2020)
2 NOTICE of Appearance by Caren Elaine Short on behalf of All Plaintiffs (Short, Caren) (Entered: 05/05/2020)
Filing Fee received in the amount of $400.00, Credit Card receipt_number 1126−3584261, NDAL receipt #B4601105753. (Zampierin, Sara) Modified on 5/6/2020 (JLC). (Entered: 05/05/2020)
3 MOTION for Leave to Appear Pro Hac Vice by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Exhibit Declaration of Deuel Ross, # 2 Exhibit Declaration of Natasha Merle, # 3 Exhibit Declaration of Liliana Zaragoza, # 4 Exhibit Consent to Serve as Local Counsel)(Short, Caren) (Entered: 05/05/2020)
PHV Fee paid for Deuel Ross in the amount of $75.00, Credit Card receipt number 1126−3584345, NDAL receipt #B4601105755. (Short, Caren) Modified on 5/6/2020 (JLC). (Entered: 05/05/2020)
PHV Fee paid for Natasha Merle in the amount of $75.00, Credit Card receipt number 1126−3584356, NDAL receipt #B4601105756. (Short, Caren) Modified on 5/6/2020 (JLC). (Entered: 05/05/2020)
PHV Fee paid for Liliana Zaragoza in the amount of $75.00, Credit Card receipt number 1126−3584360, NDAL receipt #B4601105757. (Short, Caren) Modified on 5/6/2020 (JLC). (Entered: 05/05/2020)
4 Summons Issued as to Jacqueline Anderson−Smith, Alleen Barnett, Karen Dunn Burks, Kay Ivey, John Merrill, Mary B. Roberson, and The State of Alabama, returned to Plaintiff for service via USPS on this the 6th day of May 2020. (JLC) (Entered: 05/06/2020)
5 ORDER GRANTING 3 MOTION for Leave to Appear Pro Hac Vice. Deuel Ross, Natasha C. Merle and Liliana Zaragoza added. Signed by Judge Abdul K Kallon on 5/7/2020. (JLC) (Entered: 05/07/2020)
6 MOTION for Leave to Appear Pro Hac Vice by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Exhibit Declaration of Nancy Abudu, # 2 Exhibit Local Counsel Consent)(Short, Caren) (Entered: 05/07/2020)
7 WAIVER OF SERVICE Returned Executed by Annie Carolyn Thompson, Eric Peebles, Alabama State Conference of the NAACP, Greater Birmingham Ministries, Howard Porter, Jr, Robert Clopton, People First of Alabama. Kay Ivey waiver sent on 5/4/2020, answer due 7/3/2020; John Merrill waiver sent on 5/4/2020, answer due 7/3/2020; State of Alabama (The) waiver sent on 5/4/2020, answer due 7/3/2020. (Ross, Deuel) (Entered: 05/08/2020)

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05/08/2020 05/08/2020 05/08/2020 05/11/2020 05/11/2020 05/12/2020 05/12/2020 05/12/2020 05/13/2020
05/13/2020 05/13/2020 05/14/2020 05/14/2020
05/15/2020 05/15/2020 05/16/2020

8 NOTICE of Appearance by James W Davis on behalf of Kay Ivey, John Merrill, State of Alabama (The) (Davis, James) (Entered: 05/08/2020)
9 NOTICE of Appearance by Brenton Merrill Smith on behalf of Kay Ivey, John Merrill, State of Alabama (The) (Smith, Brenton) (Entered: 05/08/2020)
10 NOTICE of Appearance by Winfield J Sinclair on behalf of State of Alabama, Kay Ivey, John Merrill (Sinclair, Winfield) Modified on 5/11/2020 (KEK). (Entered: 05/08/2020)
11 NOTICE of Appearance by Robert F. Dyar on behalf of Alleen Barnett (Dyar, Robert) (Entered: 05/11/2020)
12 WAIVER OF SERVICE Returned Executed by Alleen Barnett. Alleen Barnett waiver sent on 5/4/2020, answer due 7/3/2020. (Dyar, Robert) (Entered: 05/11/2020)
13 NOTICE of Appearance by Todd David Engelhardt on behalf of Alleen Barnett (Engelhardt, Todd) (Entered: 05/12/2020)
14 MOTION for Leave to File Excess Pages by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order)(Ross, Deuel) (Entered: 05/12/2020)
15 MOTION for Preliminary Injunction by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Ross, Deuel) (Entered: 05/12/2020)
16 ***STRICKEN***Brief in Support of Motion for Preliminary Injunction filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Ross Declaration, # 2 Ex. 1, # 3 Ex. 2, # 4 Ex. 3, # 5 Ex. 4, # 6 Ex. 5, # 7 Ex. 6, # 8 Ex. 7, # 9 Ex. 8, # 10 Ex. 9, # 11 Ex. 10, # 12 Ex. 11, # 13 Ex. 12, # 14 Ex. 13, # 15 Ex. 14, # 16 Ex. 15, # 17 Ex. 16, # 18 Ex. 17, # 19 Ex. 18, # 20 Ex. 19, # 21 Ex. 20, # 22 Ex. 21, # 23 Ex. 22, # 24 Ex. 23, # 25 Ex. 24, # 26 Ex. 25, # 27 Ex. 26, # 28 Ex. 27, # 29 Ex. 28, # 30 Ex. 29, # 31 Ex. 30, # 32 Ex. 31, # 33 Ex. 32, # 34 Ex. 33, # 35 Ex. 34, # 36 Ex. 35, # 37 Ex. 36 pt.1, # 38 Ex. 36 pt.2, # 39 Ex. 37, # 40 Ex. 38, # 41 Ex. 39 to 42, # 42 Ex. 43, # 43 Ex. 44 to 47, # 44 Ex. 48 to 51, # 45 Ex. 52 to 58, # 46 Ex. 60 to 64, # 47 Ex. 65, # 48 Ex. 66, # 49 Ex. 67)(Ross, Deuel) Modified on 5/15/2020 (JLC). (Entered: 05/13/2020)
17 ORDER GRANTING IN PART 14 MOTION for Leave to File Excess Pages as set out herein. Signed by Judge Abdul K Kallon on 5/13/2020. (JLC) (Entered: 05/13/2020)
18 NOTICE of Appearance by Jay M Ross on behalf of Alleen Barnett (Ross, Jay) (Entered: 05/13/2020)
19 MOTION to clarify Scheduling Orders or for a Status Conference by Kay Ivey, John Merrill, State of Alabama (The). (Davis, James) (Entered: 05/14/2020)
20 MOTION to Strike 16 Brief,,,, and Replace Memorandum of Law In Support of Plaintiffs' Motion for Preliminary Injunction by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Corrected MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION)(Ross, Deuel) (Entered: 05/14/2020)
21 ORDER GRANTING 20 MOTION to Strike 16 Brief and REPLACED by the Plaintiff's corrected brief, doc. 20−1. Signed by Judge Abdul K Kallon on 5/15/2020. (JLC) (Entered: 05/15/2020)
22 ORDER GRANTING 19 MOTION to clarify Scheduling Orders as set out herein. Signed by Judge Abdul K Kallon on 5/15/2020. (JLC) (Entered: 05/15/2020)
23 NOTICE by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson re 22 Order, Terminate Motions Notice of Compliance with

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05/18/2020 05/18/2020
05/18/2020 05/19/2020
05/19/2020
05/20/2020 05/20/2020
05/20/2020 05/22/2020 05/22/2020 05/22/2020 05/22/2020 05/22/2020

Order (Short, Caren) (Entered: 05/16/2020)
PHV Fee paid for Nancy Abudu in the amount of $75.00, receipt number B4601106010. (JLC) (Entered: 05/18/2020)
24 MOTION for Leave to Appear Pro Hac Vice by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Exhibit Declaration of Mahogane Reed, # 2 Exhibit Local Counsel Consent)(Short, Caren) (Entered: 05/18/2020)
PHV Fee paid for Mahogane D Reed in the amount of $75.00, Credit Card receipt number 1126−3593173, NDAL receipt #B4601106044. (Short, Caren) Modified on 5/19/2020 (JLC). (Entered: 05/18/2020)
25 ORDER GRANTING 24 MOTION for Leave to Appear Pro Hac Vice. Attorney Mahogane D Reed for Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr. and Annie Carolyn Thompson added. Signed by Judge Abdul K Kallon on 5/19/2020. (JLC) (Entered: 05/19/2020)
26 ORDER GRANTING 6 MOTION for Leave to Appear Pro Hac Vice. Attorney Nancy G Abudu for Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr. and Annie Carolyn Thompson added. Signed by Judge Abdul K Kallon on 5/19/2020. (JLC) (Entered: 05/19/2020)
27 AFFIDAVIT of Service for Summons and Complaint served on Karen Dunn Burks on May 19, 2020, filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Short, Caren) (Entered: 05/20/2020)
28 AFFIDAVIT of Service for Summons and Complaint served on Jacqueline Anderson−Smith on May 19, 2020, filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Short, Caren) (Entered: 05/20/2020)
29 AFFIDAVIT of Service for Summons and Complaint served on Mary B. Roberson on May 19, 2020, filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Short, Caren) (Entered: 05/20/2020)
30 NOTICE of Appearance by Jeremy Stone Weber on behalf of Kay Ivey, John Merrill, State of Alabama (The) (Weber, Jeremy) (Entered: 05/22/2020)
31 NOTICE of Appearance by Robert Jackson Sewell on behalf of Mary B. Roberson (Sewell, Robert) (Entered: 05/22/2020)
32 NOTICE of Appearance by Brandon Keith Essig on behalf of Mary B. Roberson (Essig, Brandon) (Entered: 05/22/2020)
33 Unopposed MOTION for Extension of Time to Respond to Motion for Preliminary Injunction by Mary B. Roberson. (Sewell, Robert) (Entered: 05/22/2020)
34 Evidentiary Material (State Defendants' First Evidentiary Submission). (Attachments: # 1 Affidavit 1 (Declaration of Clay S. Helms and Attachments 1−20 thereto), # 2 Affidavit 1 (Attachments 21−46 to the Declaration of Clay S. Helms), # 3 Affidavit 2 (Declaration of Grace Newcombe), # 4 Affidavit 3 (Declaration of Leah Gardner), # 5 Affidavit 4 (Declaration of Robert Moore), # 6 Exhibit 5 (ALEA press release − online DL renewal), # 7 Exhibit 6 (ALEA press release − plans to reopen), # 8 Exhibit 7 (Ala. Act No. 1996−885), # 9 Exhibit 8 (preclearance submission for Ala. Act No. 1996−885), # 10 Exhibit 9 (Dec. 1996 supplement to preclearance submission for Ala. Act No. 1996−885), # 11 Exhibit 10 (Jan. 1997 supplement to preclearance submission for Ala. Act No. 1996−885), # 12 Exhibit 11 (preclearance letter from USDOJ for Ala. Act No. 1996−885), # 13 Exhibit 12 (press release about preclearance for Ala. Act No. 1996−885), # 14 Exhibit 13 (State Health Order − April 3, 2020), # 15 Exhibit 14 (State Health Order − May 21, 2020))(Sinclair, Winfield) (Entered: 05/22/2020)

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05/25/2020 05/25/2020 05/25/2020 05/25/2020
05/25/2020 05/26/2020
05/26/2020 05/26/2020
05/26/2020 05/26/2020 06/01/2020 06/01/2020
06/02/2020 06/02/2020 06/05/2020 06/05/2020 06/05/2020 06/05/2020

35 MOTION for Leave to File Amicus Brief by Honest Elections Project. (Attachments: # 1 Amicus Brief of Honest Elections Project)(Brom, Steven) (Entered: 05/25/2020)
36 RESPONSE in Opposition re 15 MOTION for Preliminary Injunction filed by Alleen Barnett, Kay Ivey, John Merrill, State of Alabama (The). (Smith, Brenton) (Entered: 05/25/2020)
37 Evidentiary Material Defendant Mary B. Roberson's Evidentiary Submission. (Attachments: # 1 Exhibit A)(Sewell, Robert) (Entered: 05/25/2020)
38 Notice of Joining Response and Motion to Supplement re 34 Evidentiary Material, 36 Response in Opposition to Motion by Mary B. Roberson. (Attachments: # 1 Supplement Mary Roberson's Response to Plaintiff's Motion for Preliminary Injunction)(Sewell, Robert) Modified on 5/26/2020 (JLC). (Entered: 05/25/2020)
39 Statement of Interest re 15 MOTION for Preliminary Injunction filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Freeman, Daniel) Modified on 5/26/2020 (JLC). (Entered: 05/25/2020)
40 ORDER DENYING AS MOOT 33 Unopposed MOTION for Extension of Time, GRANTING 38 MOTION to Supplement. Defendant Mary Roberson may file the Supplemental Response attached to doc. 38−1 no later than May 26, 2020. Signed by Judge Abdul K Kallon on 3/26/2020. (JLC) (Entered: 05/26/2020)
41 RESPONSE in Opposition re 15 MOTION for Preliminary Injunction Defendant Mary Roberson's Response to Plaintiff's Motion for Preliminary Injunction filed by Mary B. Roberson. (Sewell, Robert) (Entered: 05/26/2020)
42 MOTION to Expedite by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order)(Ross, Deuel) (Entered: 05/26/2020)
43 ORDER GRANTING 35 MOTION for Leave to File Amicus Brief. The Honest Elections Project may file its Amicus Brief no later than May 27, 2020. Signed by Judge Abdul K Kallon on 3/26/2020. (JLC) (Entered: 05/26/2020)
44 Amicus Curiae APPEARANCE entered by Steven M Brom on behalf of Honest Elections Project. filed by on behalf of Honest Elections Project (Brom, Steven) (Entered: 05/26/2020)
45 RESPONSE to re 15 Plaintiff's Motion for Preliminary Injunction filed by Jacqueline Anderson−Smith, Karen Dunn Burks. (Carroll, Donald) (Entered: 06/01/2020)
46 REPLY Brief filed by Plaintiffs Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson re: 15 MOTION for Preliminary Injunction filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Declaration and Exhibits 68 to 72)(Ross, Deuel) (Entered: 06/01/2020)
47 NOTICE of Appearance by Donald McKinley Carroll on behalf of Jacqueline Anderson−Smith, Karen Dunn Burks (Carroll, Donald) (Entered: 06/02/2020)
48 NOTICE of Appearance by Theodore A Lawson, II on behalf of Jacqueline Anderson−Smith, Karen Dunn Burks (Lawson, Theodore) (Entered: 06/02/2020)
49 NOTICE of Appearance by Aubrey Patrick Dungan on behalf of Alleen Barnett (Dungan, Aubrey) (Entered: 06/05/2020)
PHV Fee paid: $ 75, receipt number 1126−3604100 (ALND receipt# B4601106403). (Brom, Steven) Modified on 6/5/2020 (AKD). (Entered: 06/05/2020)
PHV Fee paid: $ 75, receipt number 1126−3604106 (ALND receipt# B4601106404). (Brom, Steven) Modified on 6/5/2020 (AKD). (Entered: 06/05/2020)
50 MOTION for Leave to Appear Pro Hac Vice by Cameron T Norris by Honest Elections Project. (Attachments: # 1 Affidavit, # 2 PHV Fee Paid − Cameron Norris)(Brom, Steven) (Entered: 06/05/2020)

Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 15 of 16

06/05/2020 06/06/2020 06/08/2020 06/09/2020 06/09/2020
06/09/2020 06/09/2020
06/09/2020 06/11/2020
06/15/2020 06/15/2020
06/16/2020
06/17/2020 06/17/2020 06/17/2020

51 MOTION for Leave to Appear Pro Hac Vice by Tyler Green by Honest Elections Project. (Attachments: # 1 Affidavit, # 2 PHV Fee Paid − Tyler Green)(Brom, Steven) (Entered: 06/05/2020)
52 NOTICE of Appearance by Misty Shawn Fairbanks Messick on behalf of Kay Ivey, John Merrill, State of Alabama (The) (Messick, Misty) (Entered: 06/06/2020)
53 ORDER GRANTING 50 51 MOTIONS for Leave to Appear Pro Hac Vice by Tyler Green and Cameron T Norris. Attorney Cameron Thomas Norris and Tyler R Green for Honest Elections Project added. Signed by Judge Abdul K Kallon on 6/8/2020. (JLC) (Entered: 06/08/2020)
54 MOTION to Dismiss by Mary B. Roberson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sewell, Robert) (Entered: 06/09/2020)
55 BRIEFING SCHEDULE ORDER re 54 MOTION to Dismiss filed by Mary B. Roberson. Plaintiffs' Response due by June 17, 2020, Defendant's Reply due by June 23, 2020. The parties are reminded of the Briefing Schedule outlined in Appendix III attached hereto. Signed by Judge Abdul K Kallon on 6/9/2020. (JLC) (Entered: 06/09/2020)
Set Deadlines as to 54 MOTION to Dismiss. Responses due by June 17, 2020. Replies due by June 23, 2020. (JLC) (Entered: 06/09/2020)
56 MOTION for Leave to Appear Pro Hac Vice by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Exhibit Declaration of Steven Lance, # 2 Exhibit Local Counsel Consent)(Short, Caren) (Entered: 06/09/2020)
PHV Fee paid: $ 75, receipt number 1126−3606713 (ALND receipt# B4601106486). (Short, Caren) Modified on 6/10/2020 (AKD). (Entered: 06/09/2020)
57 ORDER GRANTING 56 MOTION for Leave to Appear Pro Hac Vice. Attorney Steven Lance for Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr and Annie Carolyn Thompson added. Signed by Judge Abdul K Kallon on 6/11/2020. (JLC) (Entered: 06/11/2020)
58 MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/15/2020. (KSS) (Entered: 06/15/2020)
59 PRELIMINARY INJUNCTION ORDER Consistent with the Memorandum Opinion, Governor Kay Ivey is entitled to sovereign immunity, and the plaintiffs claims against Governor Ivey are DISMISSED WITH PREJUDICE. Finding as moot 42 Motion to Expedite. Granting in part as set out 15 Motion for Preliminary Injunction. The court directs the parties to submit by June 23, 2020, an expedited discovery plan that has this matter ready for trial in September 2020. Signed by Judge Abdul K Kallon on 6/15/2020. (KSS) (Entered: 06/15/2020)
60 NOTICE OF INTERLOCUTORY APPEAL as to 58 Memorandum Opinion, 59 Order on Motion for Preliminary Injunction,,, Order on Motion to Expedite,, by John Merrill, State of Alabama (The). Filing fee $ 505, receipt number 1126−3610946 (ALND receipt# B4601106598). (Weber, Jeremy) Modified on 6/16/2020 (AKD). (Entered: 06/16/2020)
61 NOTICE of Transmittal re 60 Notice of Interlocutory Appeal. (JLC) (Entered: 06/17/2020)
62 Transmission of 60 Notice of Appeal, 59 Order, 58 Memorandum Opinion and Docket Sheet to US Court of Appeals re 60 Notice of Interlocutory Appeal. (JLC) (Entered: 06/17/2020)
63 Unopposed MOTION for Extension of Time to File Opposition to Defendant Roberson's Motion to Dismiss by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order)(Ross, Deuel) (Entered: 06/17/2020)

Case: 2:20-cv-619 As of: 07/06/2020 10:01 PM CDT 16 of 16

06/17/2020 06/17/2020 06/17/2020 06/19/2020
06/23/2020 06/30/2020
06/30/2020 06/30/2020 06/30/2020 07/01/2020 07/02/2020 07/06/2020

64 USCA Case Number 20−12184 GG for 60 Notice of Interlocutory Appeal, filed by State of Alabama (The), John Merrill. (AKD) (Entered: 06/17/2020)
65 RESPONSE in Opposition re 54 MOTION to Dismiss filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Ross, Deuel) (Entered: 06/17/2020)
66 RESPONSE in Opposition re 54 MOTION to Dismiss CORRECTED filed by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Ross, Deuel) (Entered: 06/17/2020)
67 ORDER GRANTING in part and MOOTED in part 63 Motion for Extension of Time. The plaintiffs request for an extension to file their response is moot. The plaintiffs request for an extension for Defendant Roberson to file her reply is granted. Defendant Roberson has until June 30, 2020 to file her reply. Signed by Judge Abdul K Kallon on 06/19/2020. (AKD) (Entered: 06/19/2020)
68 MOTION to Enter Joint Scheduling Order by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order)(Ross, Deuel) (Entered: 06/23/2020)
69 MOTION to Amend/Correct 68 MOTION to Enter Joint Scheduling Order by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order Proposed Joint Scheduling Order)(Short, Caren) (Entered: 06/30/2020)
70 MOTION to Withdraw as Attorney by Alabama State Conference of the NAACP, Robert Clopton, Greater Birmingham Ministries, Eric Peebles, People First of Alabama, Howard Porter, Jr, Annie Carolyn Thompson. (Attachments: # 1 Text of Proposed Order)(Zampierin, Sara) (Entered: 06/30/2020)
71 Joint MOTION for Settlement Joint Motion for Entry of Settlement by Mary B. Roberson. (Attachments: # 1 Text of Proposed Order)(Sewell, Robert) (Entered: 06/30/2020)
72 RESPONSE in Support re 71 Joint MOTION for Settlement Joint Motion for Entry of Settlement Settlement Agreement filed by Mary B. Roberson. (Sewell, Robert) (Entered: 06/30/2020)
73 ORDER Granting 70 Motion to Withdraw as Attorney. Attorney Sara M Zampierin terminated. Signed by Judge Abdul K Kallon on 07/01/2020. (AKD) (Entered: 07/01/2020)
74 NOTICE by John Merrill, State of Alabama (The) re 68 MOTION to Enter Joint Scheduling Order Notice of Objection to Proposed September 2020 Trial Setting (Davis, James) (Entered: 07/02/2020)
75 AMENDED COMPLAINT against Jacqueline Anderson−Smith, Alleen Barnett, Karen Dunn Burks, John Merrill, Mary B. Roberson, State of Alabama (The), filed by Annie Carolyn Thompson, Eric Peebles, Alabama State Conference of the NAACP, People First of Alabama, Greater Birmingham Ministries, Howard Porter, Jr, Robert Clopton.(Ross, Deuel) (Entered: 07/06/2020)

 
 Case 2:20-cv-00619-AKK Document 1 Filed 05/01/20 Page 1 of 55

FILED
2020 May-01 PM 04:08 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

PEOPLE FIRST OF ALABAMA, ROBERT CLOPTON, ERIC PEEBLES, HOWARD PORTER, JR., ANNIE CAROLYN THOMPSON, GREATER BIRMINGHAM MINISTRIES, and the ALABAMA STATE CONFERENCE OF THE NAACP,
Plaintiffs,

Case No.: __________________
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

v.

JOHN MERRILL, in his official capacity as the Secretary of State of Alabama, KAY IVEY, in her official capacity as the Governor of the State of Alabama, the STATE OF ALABAMA, ALLEEN BARNETT, in her official capacity as Absentee Election Manager of Mobile County, Alabama; JACQUELINE ANDERSON-SMITH, in her official capacity as Circuit Clerk of Jefferson County, Alabama; KAREN DUNN BURKS, in her official capacity as Deputy Circuit Clerk of the Bessemer Division of Jefferson County, Alabama; and MARY B. ROBERSON, in her official capacity as Circuit Clerk of Lee County, Alabama,

Defendants.

INTRODUCTION 1. Plaintiffs People First of Alabama, Robert Clopton, Eric Peebles, Howard Porter, Jr., Annie Carolyn Thompson, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP, file this Complaint for immediate injunctive and declaratory relief against the Defendants Secretary of State John Merrill, Governor Kay Ivey, the State of Alabama, Mobile

Case 2:20-cv-00619-AKK Document 1 Filed 05/01/20 Page 2 of 55
County Absentee Election Manager Alleen Barnett, Jefferson County Circuit Clerk Jacqueline Anderson-Smith, Deputy Circuit Clerk of the Bessemer Division of Jefferson County Karen Dunn Burks, and Lee County Circuit Clerk Mary B. Roberson for failing to take adequate steps to protect the fundamental right to vote ahead of the 2020 elections, including the July 14, 2020 primary runoff election, in the midst of the unprecedented national and statewide COVID-19 public health crisis.
2. The United States and the State of Alabama are in a state of emergency. COVID19 is spreading rapidly throughout the country, infecting tens of thousands of people, including in Alabama, which has over 7,000 confirmed cases of COVID-19 and 270 deaths. Experts estimate that, for every confirmed COVID-19 case, there could be as many as eleven unconfirmed cases.
3. As a result, in early April Governor Ivey ordered Alabama residents to stay at home absent specific reasons not to, and the Alabama Department of Public Health and the Centers for Disease Control likewise advised people to remain in their homes and follow social distancing protocols. In a communal effort to slow the spread of the disease and save lives, the Governor also closed government offices, schools, and businesses, strongly urged people to limit person-toperson interactions to their family, and to avoid large gatherings.
4. On April 28, 2020, Governor Ivey amended Alabama’s COVID-19 Health Order, allowing some businesses to open subject to sanitation and social-distancing guidelines, but still encouraged individuals—especially those at higher risk of death or serious illness from COVID19 infection—to stay home and extended the prohibition on gatherings of ten or more people or where a six-foot distance could not be maintained. This crisis is likely to persist for months or longer.
5. Given these extraordinary circumstances, Secretary Merrill has waived the excuse 2

Case 2:20-cv-00619-AKK Document 1 Filed 05/01/20 Page 3 of 55
requirement for absentee voters for the July 14, 2020 primary runoff election. 6. Nonetheless, in this unprecedented situation, multiple provisions of Alabama law,
policy, and/or practice that establish requirements for voting in-person and by-mail are now posing direct and severe obstacles to voting. These provisions are: (1) the requirement that the affidavit that must be included with an absentee ballot be signed by the voter in the presence of either a notary or two adult witnesses, Ala. Code §§ 17-11-7 to 17-11-10; (2) the requirement that copies of photo identification accompany absentee ballot applications, id. § 17-9-30(b); (3) the requirement that copies of photo identification accompany certain absentee ballots, id. §§ 17-11-9 and 17-11-10(c); and (4) the prohibition on curbside voting (collectively, the “Challenged Provisions”).
7. First, Plaintiffs challenge Alabama’s requirement that a voter casting an absentee ballot sign it before a notary or two witnesses (the “Witness Requirement”). State law requires that, in addition to the signature of the voter, all mail-in ballots must contain a signed affidavit witnessed by either a notary public or two third-party witnesses over age 18; otherwise, the ballot goes uncounted. In the current environment, this poses an unreasonable obstacle to many thousands of vulnerable Alabamians, like Plaintiffs Thompson and Peebles, who live alone and cannot—and should not have to—risk the threat of contagion in order to vote.
8. The Witness Requirement threatens to disenfranchise many thousands of voters who, like Plaintiffs Thompson and Peebles, are adhering to social distancing guidelines to protect themselves and others. Indeed, about 30% of households in Alabama constitute people living alone
3

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(555,330),1 including 165,582 Alabamians over age 18 with a disability2 and 95,102 persons over
age 65 with a disability3—that is, two of the groups who are most vulnerable to COVID-19.
9. The Witness Requirement does not meaningfully advance any valid government
interest. Many other provisions of Alabama law safeguard the integrity of absentee voting without
putting the lives of voters at risk. Indeed, Alabama is one of only 12 states that require an individual
submitting an absentee ballot to have it be witnessed by another. Of those 12, Alabama is one of
only three states that require the absentee ballot to be notarized.4
10. Even if the Witness Requirement did offer some additional marginal benefit to any
valid state interest, such benefit is greatly outweighed by the risk of disenfranchisement. The
Witness Requirement violates the fundamental right to vote under the First and Fourteenth
Amendments to the U.S. Constitution, Title II of the Americans with Disabilities Act (“ADA”),
and Sections 2, 3(b), and 201 of the Voting Rights Act of 1965 (“VRA”).
11. Second, the requirements that each person who applies for an absentee ballot mail-
in a copy of their photo ID, Ala. Code. § 17-9-30(b) (“ID Application Requirement”), and that
1 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics of the United States: Alabama (2018), https://data.census.gov/cedsci/table?q=single%20person%20households&g=0400000US01&hidePreview=true&tid= ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_D1&cid=DP02_0001E&moe=false (last visited Apr. 21, 2020). 2 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics of the United States: Alabama (2018) Samplehttps://data.census.gov/mdat/#/search?ds=ACSPUMS1Y2018&vv=AGEP(18:99)&cv=DIS&rv=ucgid&nv= HHT(4,6)&wt=PWGTP&g=0400000US01 3 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics of the United States: Alabama (2018), https://data.census.gov/mdat/#/search?ds=ACSPUMS1Y2018&vv=AGEP(65:99)&cv=DIS&rv=ucgid&nv=HHT(4, 6)&wt=PWGTP&g=0400000US01. 4 Mississippi, Missouri, and Oklahoma require the notarization of absentee ballots. Alaska, Louisiana, Minnesota, North Carolina, Rhode Island, South Carolina, Virginia, and Wisconsin require witness signatures. Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, Nat’l Conf. of State Legislatures (Apr. 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”)
4

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certain absentee voters must again submit another copy of their photo ID when casting their ballot, id. § 17-11-9 (“ID Ballot Requirement,” collectively with the ID Application Requirement, the “Photo ID Requirements”), create nearly insurmountable barriers to exercising the fundamental right to vote amid the COVID-19 pandemic. Many voters who are more susceptible to complications from COVID-19, like Plaintiffs Porter and Thompson, lack a reliable means of photocopying their ID without endangering their lives. Others lack a photo ID at all. The Photo ID Requirements, as applied in the current COVID-19 crisis, violate Title II of the ADA and the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution.
12. Third, Alabama does not offer either curbside or “drive-thru” voting, which allows voters to cast their ballots in person, but outside of a poll site without leaving the car. Many voters with disabilities are unable to access polling places or vote absentee. Other voters must vote inperson because they require assistance from poll workers. Curbside voting can significantly reduce the opportunities for COVID-19 to spread at in-person poll sites. This is particularly important to voters, like Plaintiffs Clopton and Peebles, who usually vote in-person, but who have a higher susceptibility to death or serious health problems due to COVID-19. Alabama’s prohibition on curbside voting, a reasonable accommodation provided in other states, means that significant numbers of vulnerable voters who need to vote in-person have no option for doing so because of the increased risk of infection from traditional in-person voting. This violates the First and Fourteenth Amendments to the U.S. Constitution, the ADA, and Section 2 of the VRA.
13. Both together and separately, the Witness Requirement, Photo ID Requirements, and the Prohibition on Curbside Voting (collectively, the “Challenged Provisions”) needlessly force many thousands of Alabamians to choose between risking their lives or voting in 2020.
14. The Challenged Provisions directly contradict the specific guidance from the 5

Case 2:20-cv-00619-AKK Document 1 Filed 05/01/20 Page 6 of 55
Centers for Disease Control and Prevention (“CDC”) concerning safe voting practices during the COVID-19 pandemic. Among other things, the CDC recommends that states and jurisdictions “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations” and that they “[e]ncourage drive-up voting for eligible voters” as a means of complying with social distancing rules and limiting personal contacts.5
15. Compliance with the Challenged Provisions poses a significant risk to the lives of Plaintiffs and many thousands of other Alabama voters who are seeking a safe method of exercising their right to vote in the upcoming July 14, 2020 runoff election, the August 25, 2020 municipal elections, and the November 3, 2020 general elections, (or any other elections that occur while this crisis continues).
16. Without emergency intervention from this Court, tens of thousands of Alabama voters are at risk of being disenfranchised. Alabama has no early in-person voting option. Consequently, Alabama voters almost unanimously vote in-person on Election Day. In 2018, for example, only 3.4% of Alabama voters (57,832 people) cast absentee ballots out of the 1,723,694 total people who voted that year. Most Alabama voters are therefore unlikely to be familiar with the absentee voting process. A significant number of Alabama’s absentee ballots are often rejected because the absentee ballots do not meet the Witness Requirement. In 2018, Alabama rejected over 2.37% or 1,368 of the absentee ballots cast.6 The Witness Requirement accounts for about a quarter of those rejected absentee ballots.
5 Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated March 27, 2020). 6 Election Assistance Commission, Election Administration and Voting Survey Report 27-29 (2018), https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf; Election Assistance Commission, Election Administration and Voting Survey Report 23 (2016), https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf.
6

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17. Contrary to the usual limitations on absentee voting in Alabama, however, for the July 14 primary runoff election, Secretary Merrill has made it clear that any registered voter is permitted to vote absentee in light of the COVID-19 pandemic. Alabama is expecting a large increase in absentee voting in the July 14 election, as well as other elections in 2020. Thus, if just a third of all people who voted in 2018 (or 575,000 people) switched to mail-in absentee voting in the July 14 primary runoff election, up to 34,000 voters could expect to have their ballots rejected because of the Witness Requirement alone.
18. The risk of disenfranchisement from the Witness Requirement and Prohibition on Curbside Voting fall more heavily on Black voters in Alabama, who are more likely to live alone or with young children, more likely to have a disability than the white population, and who are afflicted by and die from COVID-19 at stunningly disproportionate rates. Black Alabamians are 41% of COVID-19 patients and over 45% of COVID-19-related deaths despite making up just 27% of its total population.7 Alabama’s history of racial discrimination in various areas, such as voting, education, employment, and healthcare, interact with these provisions to hinder Black people’s ability to participate effectively in the political process in violation of Section 2 of the VRA.
19. The Challenged Provisions will each, separately and jointly, unduly burden the right to vote of Alabamians. This is certainly true for the statewide Republican and First Congressional District Democratic primary runoff elections on July 14, 2020 and, given the likelihood that the COVID-19 pandemic will persist, will also be true for the August 25 municipal and November 3 general elections as well (collectively, the “2020 elections”).
7 ADPH, Alabama Public Health Daily Case Characteristics: 4/28/20,
http://www.alabamapublichealth.gov/covid19/assets/cov-al-cases-042520.pdf. 7

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20. Plaintiffs therefore ask that the Court enjoin the Challenged Provisions and declare them unconstitutional for the duration of the 2020 election calendar.
PARTIES 21. Plaintiff PEOPLE FIRST OF ALABAMA (“People First”), founded in 1988, is a group of people with developmental disabilities dedicated to making their dreams happen by having choices and control over their own lives, including by having opportunities to make decisions and plans for themselves instead of having others make decisions for them. With membership chapters in communities across Alabama, People First assists its members in accessing, among other things, competitive employment, decent housing of their choosing, transportation, and full citizenship with equal rights. This work with members includes securing access to full and equal voting rights. 22. Because of the Challenged Provisions, during the COVID-19 pandemic, many of People First’s members—who are registered voters and plan to vote in the July 14 primary runoff election and subsequent 2020 elections—will be forced to choose between voting and protecting their health because of lack of options to cast their ballot. Specifically, People First members include voters with conditions that put them at higher risk of death or severe complications from COVID-19 and are thus required to self-quarantine. Voting in-person would therefore put the health of those voters at significant risk because of person-to-person contact. Yet, although these voters may qualify for an absentee ballot given Secretary Merrill’s emergency order for the July 14 runoff, these voters—many of whom live alone or with one other adult—are unable to comply with the requirement to have their absentee ballot notarized or witnessed by two adults because those activities also require person-to-person contact. 23. People First members also include voters who do not have access to printers,
8

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scanners, copiers, or even internet access, and thus cannot comply with the state’s photo ID requirement for absentee ballots. Finally, People First members include voters who use wheelchairs and voters with physical disabilities who are less able to access the inside of their polling place. If Alabama offered curbside or drive-thru voting—especially during the COVID-19 pandemic—these voters would use such an option to safeguard their health while still voting inperson.
24. Plaintiff ROBERT CLOPTON is 65 years old, Black, and a resident of Mobile County, Alabama. He is a U.S. citizen, and a lawfully registered Alabama voter. He is at high-risk for death or serious illness from contracting COVID-19 because of his age and underlying health conditions, including diabetes and hypertension. Mr. Clopton recently had emergency surgery. On March 3, 2020, the same day he voted in-person in Alabama’s primary election, Mr. Clopton was admitted to the hospital. He had emergency surgery on March 5. He was discharged on March 10 and has been recovering at home and sheltering in place since that date. He is not expected to make a full recovery from his surgery until at least four to five months from now. Mr. Clopton is eligible to vote in the July 14, 2020 primary runoff election. He would like to vote absentee. But he only has one witness—his wife, with whom he resides. Given the COVID-19 pandemic and his health status, he would not feel safe voting in-person at a polling place for the July 14, 2020 primary runoff and November 3, 2020 general elections. If given the option, Mr. Clopton would consider curbside voting as a way vote on Election Day in compliance with social distancing rules and to minimize the threat to his health from a COVID-19 infection. If he is required to vote in-person without curbside voting or comply with the Witness Requirement to cast an absentee ballot, he will be prevented from voting because the risk to his life from a COVID-19 infection is too great.
25. Plaintiff ERIC PEEBLES is a 38-year-old accessibility advocate who lives alone at 9

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his home in Auburn, Alabama. He is white, a U.S. citizen, has never lost his right to vote by reason of a felony conviction or court order, and is a lawfully registered voter in Alabama. Mr. Peebles is at high risk for severe complications from COVID-19 because of his cerebral palsy. Respiratory illnesses, like COVID-19, can be fatal for people with his condition. Due to this elevated risk, Mr. Peebles has been self-isolating since on or around March 12—long before Alabama’s stay-at-home order took effect. He has not left his apartment complex since early March. He has been restricting all in-person contact except with his four caregivers who provide 60 hours of in-home care each week. Each caregiver works separate shifts of a few hours each and their shifts do not overlap. At Mr. Peebles’ request to protect his health, all four caregivers have been tested for COVID-19 and received negative results. Mr. Peebles typically votes in-person and did so during the March 3, 2020 primary election. Mr. Peebles cannot operate the voting machines unassisted and thus brings an individual into the voting booth to assist him in filling out the ballot. Despite his preference for in-person voting, Mr. Peebles needs to vote by absentee ballot in the general election in November because of the health risks in-person voting presents during the COVID-19 pandemic. The next election in which Mr. Peebles can vote is the November 3, 2020 general election. Mr. Peebles also understands that to vote absentee he must meet the Witness Requirement. Because he lives alone and only comes into contact with his caregivers—who work separate shifts—he will not be able to comply with the Witness Requirement. Finally, Mr. Peebles understands that Alabama does not allow voters—including voters with disabilities—to vote curbside. If curbside voting were available, Mr. Peebles would choose to vote curbside, as it would allow him to avoid the personto-person contact of voting inside at the polling place that puts his health at severe risk and the Witness Requirement for absentee voting that he is unable to satisfy.
26. Plaintiff HOWARD PORTER, JR. is a 69-year-old Black male who resides in 10

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Mobile County, Alabama. He is a U.S. citizen and has been a lawfully registered voter in Alabama since he was 18. Mr. Porter has Parkinson’s Disease and asthma, and it is hard for him to ambulate. He is at high-risk for contracting COVID-19 because of his age and underlying medical conditions. He has not left his home since the Governor issued the April 3 stay-at-home order. Because he is at high-risk, Mr. Porter plans to stay at home for the foreseeable future even after the “Safer at Home” or any other such order is lifted. Mr. Porter has always voted in-person, but he does not want to risk COVID-19 infection. He is eligible to vote in the July 14, 2020 primary runoff. He would feel the safest if he could vote absentee in the 2020 elections. But Mr. Clopton fears that he will be unable to comply with the Photo ID Requirements. Although he has a printer at home, Mr. Porter is retired and only receives Social Security Income. He is therefore worried that he may not be able to afford the ink or paper needed to maintain his printer through the 2020 elections. If given the option, Mr. Porter would be willing to use curbside voting rather than by entering the polling place. If he is required to vote in-person without curbside voting or to comply with the Photo ID Requirements for absentee voting, Mr. Porter will be prevented from voting because the risk to his life from a COVID-19 infection is too great.
27. Plaintiff ANNIE CAROLYN THOMPSON is a 69-year-old retiree who lives alone at her home in Mobile, Alabama. She is Black, a U.S. citizen, has never lost her right to vote by reason of a felony conviction or court order, and is a lawfully registered voter in Alabama. Ms. Thompson is at higher-risk of contracting and having severe complications from COVID-19 because of her age and preexisting conditions, including diabetes and high blood pressure. After she retired as a cosmetologist, Ms. Thompson began working as a caretaker for people who required extra assistance in assisted living homes. She recently had to leave that job when her patient spiked a very high fever and was taken to the hospital to test for COVID-19 on or around
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April 1. Fearing for her own health, Ms. Thompson received a COVID-19 test, which came back negative at that time. Although Ms. Thompson had been taking measures to protect herself, Ms. Thompson has been quarantining herself at home since April 1, 2020, restricting all in-person contact except when her daughter brings her groceries. Ms. Thompson has internet access, but does not have a printer, scanner, or copy machine at her home. She voted in-person in the March 3, 2020 primary election. She is eligible to vote in the July 14 primary runoff but due to the health risks of voting in-person, she plans to vote by absentee ballot in all future 2020 elections. Because she does not have the necessary equipment to obtain a copy of her photo ID, Ms. Thompson has no way to complete the absentee ballot application without endangering her health. Public libraries in Mobile are currently closed. Ms. Thompson’s only option is to find a local business that is still open and will allow her to pay for a copy of her photo ID, or she will have to choose between not voting or endangering her health by voting in-person for the July 14, 2020 primary runoff election. Because she lives alone and only comes into contact with her daughter, Ms. Thompson also will not be able to comply with the Witness Requirement without leaving home or endangering her health.
28. 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 membership organization that provides emergency services for members and constituents 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.
29. 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
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groups or individuals from the democratic process. Toward that end, GBM regularly engages in efforts to register, educate, and increase turnout, particularly among Black, Latinx, disabled, and low-income registered voters.
30. GBM has about 5,000 members. Many of GBM’s low-income members lack access to a computer, the internet, or other videoconferencing technology. About a third of GBM’s members are senior citizens and about one fifth of all GBM members live alone. Of those members, many are Black, Latinx, disabled, or low-income registered voters who are staying home because they are at a higher risk of death or serious illness from COVID-19 due to age or preexisting medical conditions, like diabetes or hypertension. Because of the Witness Requirement and Prohibition on Curbside Voting, these members are forced to choose between risking their lives (and the lives of others) or not voting in the July 14, August 25 or November 3, 2020 elections.
31. As a result of the Witness Requirement and the Prohibition on Curbside Voting, GBM is now required to divert a portion of its limited financial and organizational resources away from voter registration and turnout efforts to undertake such new activities as (1) assessing who among its members are unable to comply with the Witness Requirement amid the COVID-19 pandemic; (2) increasing efforts to educate its members and constituents about the Witness Requirement; (3) advocating that Defendants permit curbside voting; and (4) investigating, responding to, mitigating, and addressing the concerns of its members and constituents impacted or who will be disenfranchised by the Witness Requirement, Prohibition on Curbside Voting, and Defendants’ inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections. In absence of the Witness Requirement and Prohibition on Curbside Voting, GBM would not have engaged in these activities. As a result, GBM is limited, and will continue to be limited, in the organizational resources that it can devote to its other core goals.
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32. Plaintiff THE ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (“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.
33. Two central goals of the Alabama NAACP are to eliminate racial discrimination in the democratic process, and to enforce federal laws and constitutional provisions securing voting rights. Toward those ends, the Alabama NAACP regularly engages in efforts to register and educate Black voters and encourages them to engage in the political process by turning out to vote on Election Day.
34. Many Alabama NAACP members are senior citizens, Black, and/or have medical conditions, like diabetes or hypertension, that put them at higher risk for death or serious illness from COVID-19. Many members also live alone or with only one other adult person. These members and others are staying at home to avoid contracting COVID-19. They will be unable to meet the Witness Requirement. The difficulties already faced by the Alabama NAACP’s most vulnerable members in complying with the Witness Requirement are magnified substantially by the COVID-19 crisis. For example, one active member is in her 80s, lives alone, and has breast cancer and heart disease. She is extremely vulnerable to COVID-19. She does not have ready access to videoconferencing technology. She, and other members like her, cannot vote in-person or meet the Witness Requirement without risking her life by coming into contact with others.
35. As a result of the Witness Requirement and Prohibition on Curbside Voting, the Alabama NAACP is now required to undertake such activities as (1) assessing who, among its
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constituency will be unable to comply with the Witness Requirement, while taking protective measures against COVID-19 infection, like staying home; (2) increasing efforts to educate Black and disabled voters, as well as the general public, about the Witness Requirement; and (3) advocating for the adoption of measures like curbside voting that would ease the burdens on voters during the pandemic. In absence of the Witness Requirement and Prohibition on Curbside Voting, the Alabama NAACP would not have had to engage in these activities.
36. Thus, the Witness Requirement and Prohibition on Curbside Voting are causing, and will continue to cause, the Alabama NAACP to divert a portion of its limited financial and other organizational resources to investigating, responding to, mitigating, and addressing the concerns of its members and constituents impacted or who will be disenfranchised by the Witness Requirement, the Prohibition on Curbside Voting, and Defendants’ inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections. As a result, the Alabama NAACP is limited, and will continue to be limited, in the organizational resources that it can devote to its other core goals.
37. Defendant JOHN MERRILL is the Secretary of State of the State of Alabama. He is sued in his official capacity. As a constitutional officer and a member of the State’s executive department, he is Alabama’s chief election official. Ala. Const., art. V, § 112. He is charged with administering elections and enforcing the Challenged Provisions, including instructing probate judges, absentee election managers, and other officials on the proper interpretation and implementation of the Challenged Provisions, issuing related administrative rules, canvassing returns and certifying election results in a manner that is consistent with the Challenged Provisions.
38. Defendant KAY IVEY is the Governor of the State of Alabama and is sued in her official capacity. The Governor of Alabama is a constitutional officer who is vested with the
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supreme executive power of the State. She is the chief magistrate of the State. As such, she is charged with enforcing state election laws and any related administrative rules. Ala. Const., art. V, § 113. Governor Ivey is also vested with the power to declare a state of emergency and substantial powers to act accordingly. During a declared state of emergency, she can alter or amend existing state election laws, including the Challenged Provisions. Ala. Code §§ 31-9-1 et seq.
39. Defendant STATE OF ALABAMA (“State”) is a State of the United States, and is being sued pursuant to Sections 2, 3 and 201 of the VRA and Title II of the ADA. Pursuant to the Fourteenth and Fifteenth Amendments of the U.S. Constitution, Congress has validly abrogated the State of Alabama’s sovereign immunity in actions brought to enforce the VRA and the ADA. The state receives federal funding under the Help America Vote Act of 2002 (“HAVA”).
40. Defendants ALLEEN BARNETT, in her official capacity as Absentee Ballot Manager of Mobile County; JACQUELINE ANDERSON-SMITH, in her official capacity as Circuit Clerk of Jefferson County; KAREN DUNN BURKS, in her official capacity as Deputy Circuit Clerk of the Bessemer Division of Jefferson County; and MARY B. ROBERSON, in her official capacity as Circuit Clerk of Lee County. Each one serves as the absentee ballot manager for federal, state, and county elections in their respective Alabama counties. As the absentee ballot managers, they are charged with enforcing the Witness and Photo ID Requirements, processing and distributing absentee ballot applications, and validating and canvassing absentee ballots.
JURISDICTION AND VENUE 41. This action arises under the First and Fourteenth Amendments to the U.S. Constitution, the ADA, and the VRA, and is brought under 42 U.S.C. §§ 1983 and 1988, 42 U.S.C. §§ 12131, et seq., and 52 U.S.C. §§ 10301, 10302(b) and 10501 to seek injunctive and declaratory relief for violations of federal law. This Court therefore has subject matter jurisdiction under 28
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U.S.C. §§ 1331 and 1343. 42. This Court has personal jurisdiction over Defendants, who are sued in their official
capacities as state officials. The violations complained of concern their conduct in such capacities. 43. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 44. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the
events that gave rise to Plaintiffs’ claims occurred there. STATEMENT OF FACTS
I. Transmission of COVID-19 and Public Health Guidelines 45. Our nation is in the midst of a public health emergency due to the exponential spread
of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. According to the CDC, this coronavirus spreads aggressively, including by asymptomatic people.8 Persons in all age groups have contracted the disease.9
46. Since April, the United States has led the world in the total number of COVID-19 cases. As of April 30, 2020, the United States has confirmed over one million cases of COVID1910 and reported 60,999 deaths due to COVID-19 and counting.11
47. Even mild cases of COVID-19 generally involve about two weeks of fevers and dry
8 Ctrs. for Disease Control & Prevention, How Coronavirus Spreads, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 21, 2020). 9 Robert Verity, et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, The Lancet 6Infec Dis (Mar. 30, 2020), https://www.thelancet.com/action/showPdf?pii=S1473-3099%2820%2930243-76. 10 Lisa Lockerd Maragakis, Coronavirus Disease 2019 vs. the Flu, Johns Hopkins Univ. Health, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-disease-2019-vs-the-flu (last visited Apr. 30, 2020); see also COVID-19 Dashboard, Johns Hopkins Ctr. for Sys. Sci. & Eng’g, https://www.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9ecf6 (last visited Apr. 26, 2020) (GIS map of global COVID-19 cases developed by the Johns Hopkins Ctr. for Sys. Sci. & Engineering). 11 Maragakis, supra n.10.
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coughs and are more severe than the flu.12
48. The CDC estimates that approximately 33% of those who are infected by SARS-
CoV-2 require hospitalization.13 COVID-19 can severely damage lung tissue, cause a permanent
loss of respiratory capacity, and also damage tissues in the kidney, heart, and liver.14 The surge of
COVID-19 cases also causes mounting strains on healthcare systems, including critical shortages
of doctors, nurses, hospital beds, medical equipment, and personal protective equipment.15
49. In serious cases, individuals’ lungs “become filled with inflammatory material
[and] are unable to get enough oxygen to the bloodstream.”16 Severe cases of COVID-19 cause
acute respiratory distress syndrome (“ARDS”) in which fluid displaces air in the lungs. COVID-
19 patients with ARDS “are essentially drowning in their own blood and fluids because their lungs
are so full.”17 The virus frequently causes extreme symptoms, including fever and chills that can
last for weeks, excruciating pain, debilitating fatigue, an unremitting cough, uncontrollable
diarrhea, and an inability to keep down food and water.18
12 Holly Secon & Aria Bendix, There is a wide misconception of what a 'mild' case of COVID-19 looks like. It can be ugly and brutal., Business Insider (Apr. 16, 2020), https://www.businessinsider.com/mild-coronavirus-caseshigh-fever-dry-cough-2020-3. 13 Al Root, Nearly a Third of Americans With Covid-19 Are Hospitalized, Barrons (Apr. 6, 2020), https://www.barrons.com/articles/u-s-coronavirus-hospitalizations-approach-30-here-are-the-latest-covid-19-data51586175360. 14 Ctrs. for Disease Control & Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html (last visited Apr. 21, 2020). 15 Megan L. Ranney et al., Critical Supply Shortages — The Need for Ventilators and Personal Protective Equipment during the Covid-19 Pandemic, New Eng. J. Medicine, Apr. 30, 2020, https://www.nejm.org/doi/full/10.1056/NEJMp2006141; World Health Org., Shortage of personal protective equipment endangering health workers worldwide (Mar. 3, 2020), https://www.who.int/news-room/detail/03-032020-shortage-of-personal-protective-equipment-endangering-health-workers-worldwide. 16 Graham Readfearn, What happens to people's lungs when they get coronavirus?, The Guardian (Apr. 14, 2020), https://www.theguardian.com/world/2020/apr/15/what-happens-to-your-lungs-with-coronavirus-covid-19. 17 Lizzie Presser, A Medical Worker Describes Terrifying Lung Failure From COVID-19 — Even in His Young Patients, ProPublica (Mar. 21, 2020), https://www.propublica.org/article/a-medical-worker-describes--terrifyinglung-failure-from-covid19-even-in-his-young-patients. 18 See, e.g., id.; Leah Groth, Is Diarrhea a Symptom of COVID-19? New Study Says Digestive Issues May Be Common With Coronavirus, Health (Mar. 20, 2020), https://www.health.com/condition/infectiousdiseases/coronavirus/is-diarrhea-a-symptom-of-covid-19.
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50. People of all ages have contracted COVID-19 and died from it, but the illness poses
special risks for the elderly and those with certain preexisting medical conditions. Preliminary
reports based on WHO data show a 3.6% mortality rate for individuals between 60-69 years old,
and an 8% mortality rate for those 70-79 years old.19 According to the CDC’s analysis, 80% of all
COVID-19 related deaths in the U.S. are people aged 65 and older. 20 COVID-19 also poses greater
risks for people with preexisting heart and respiratory conditions, individuals with compromised
immune systems, and those with many other conditions.21
51. The effects of the pandemic on social life will last well into the summer of 2020, if
not far longer. Experts have indicated that seasonal changes are “unlikely to stop transmission.”22
Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases, recently said
that he “can’t guarantee” in-person voting will be safe in November, because of a potential
resurgence of COVID-19 in the fall.23
52. With no known effective treatment or vaccine, and vaccines months (or more)
away, public health officials have been left to urge the public to practice “social distancing,” i.e.,
avoidance of close contact with others.24 For purposes of social distancing, the CDC recommends
19 Sarah Boseley, People in their 60s at higher coronavirus risk too, say scientists, The Guardian (Apr. 22, 2020), https://www.theguardian.com/society/2020/apr/22/people-in-their-60s-at-higher-coronavirus-risk-too-say-scientists. 20 Id. 21 Ctrs. for Disease Control & Prevention, Groups at Higher Risk of Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited Apr. 21, 2020). 22 Marc Lipsitch, Harvard T.H. Chan School of Public Health, Ctr. for Communicable Disease Dynamics, Seasonality of SARS-CoV-2: Will COVID-19 go away on its own in warmer weather?, https://ccdd.hsph.harvard.edu/will-covid-19-go-away-on-its-own-in-warmer-weather/ (last visited Apr. 30, 2020). 23 Jason Silverstein, Fauci says he “can’t guarantee” in-person voting in November will be safe, CBS News, Apr. 13, 2020, https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-in-person-voting-in-novemberwill-be-safe/?ftag=CNM-00-10aac3a. 24 Johns Hopkins Univ., Coronavirus, Social Distancing and Self-Quarantine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-distancing-andself-quarantine (last visited Apr. 30, 2020); Declaration of Dr. Jonathan Louis Golob, at ¶ 8, Dawson v. Asher, No. 2:20-cv-00409-JLRMAT (W.D. Wash. Mar. 16, 2020), ECF No. 5.
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that individuals stay at least six feet away from others and “stay out of crowded places.”25 53. Even maintaining six feet of separation from others is not sufficient to avoid the
risk of infection. Researchers have demonstrated that particles from a cough may spread as far as 16 feet, while a sneeze may spread particles as far as 26 feet.26 When multiple people share a space the concentration of infectious droplets in the air “build[s] up.”27 The CDC has issued guidance informing individuals to avoid public gatherings until at least May 15, 2020.
54. The CDC has issued specific guidelines concerning voting during the COVID-19 pandemic. Among other things, it recommends that states “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations” including “mail-in methods of voting if allowed in the jurisdiction” and asked jurisdictions to “[e]ncourage drive-up voting for eligible voters” as a means of complying with social distancing rules and to limit personal contact during in-person voting.28
55. Compliance with these recommendations is essential to ensuring that voters can safely participate in our democracy. There is no evidence that SARS-CoV-2 can be spread through the mail, and the U.S. Postal Service has further changed their policies to “eliminate the requirement that customers sign our Mobile Delivery Devices for delivery” and now require the customer “to step back a safe distance or close the screen door/door so that they may leave the
25 Ctrs. for Disease Control & Prevention, Public Health Recommendations after Travel-Associated COVID-19 Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html (last updated Apr. 23, 2020). 26 Yuliya Parshina-Kottas et al, This 3-D Simulation Shows Why Social Distancing Is So Important, N.Y. Times, Apr. 14 2020, https://www.nytimes.com/interactive/2020/04/14/science/coronavirus-transmission-cough-6-feet-arul.html. 27 Id. 28 Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated March 27, 2020).
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item in the mail receptacle or appropriate location by the customer door.”29
56. In contrast, the risks of interpersonal interaction while voting are already evident.
During Florida’s recent primary, two Broward County poll workers tested positive for COVID-
19, one of whom was handling driver’s licenses as part of the identification verification process.30
Elections held on April 7 in Wisconsin saw multi-hour waits and lines stretching blocks upon
blocks in places like Milwaukee and Green Bay, in part, because government officials there were
unable to create a viable vote-by-mail process for all voters. By April 24, health officials in
Milwaukee had identified at least 40 positive COVID-19 cases linked to in-person voting on April
7, including at least six voters and one poll worker.31 By April 30, 52 people who voted in-person
or worked as poll workers in the April 7 Wisconsin primary had tested positive for COVID-19.32
II. COVID-19 in Alabama
57. The COVID-19 pandemic has deeply affected Alabama. As of April 30, 2020, the
State had confirmed over 7,00 cases.33 Over 270 Alabamians have died from the disease.34
58. Models used by health officials project a sustained outbreak in Alabama, even if
full social distancing were extended through May.35 On April 26, Dr. Deborah Birx, the White
29 United States Postal Service, USPS Statement on Coronavirus (April 2, 2020), https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from World Health Organization, CDC, and Surgeon General). 30 Anthony Man, Two Broward poll workers, including one who handled voters’ driver licenses, test positive for coronavirus, S. Fla. Sun Sentinel, Mar. 26, 2020, https://www.sun-sentinel.com/coronavirus/fl-ne-browardelections-poll-workers-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html. 31 Teran Powell, 40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Official Says, WUWM 89.7 Milwaukee’s NPR, Apr. 24 2020, https://www.wuwm.com/post/40-coronavirus-cases-milwaukeecounty-linked-wisconsin-election-health-official-says#stream/0. 32 Scott Bauer, 52 people who worked or voted in Wisconsin election have COVID-19, PBS News Hour, Apr. 29, 2020, https://www.pbs.org/newshour/health/52-people-who-worked-or-voted-in-wisconsin-election-have-covid-19. 33 Ala. Dep’t of Public Health, Div. of Infectious Diseases & Outbreaks, COVID-19 in Alabama, https://dph1.adph.state.al.us/covid-19/ (last visited Apr. 30, 2020). 34 Id. 35 See Institute for Health Metrics and Evaluation, COVID-19 Projections, Social distancing assumed until infections minimized and containment implemented: Alabama, https://covid19.healthdata.org/united-states-ofamerica/alabama (last visited Apr. 30, 2020).
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House coronavirus task force coordinator, stated that social distancing would be required at least
through the summer.36
59. As has been the case nationally, Alabamians of all ages have tested positive for
COVID-19. At least one confirmed case in Alabama is a patient who is less than one year old;
another is 97.37
60. In response, Governor Ivey and the Alabama Department of Public Health
(“ADPH”) have urged social distancing. Governor Ivey has stated: “Maintaining a 6-foot distance
between one another is paramount.”38 Further, the ADPH has instructed the public “to spend as
much time as possible at home to prevent an increase in new infections.”39
61. To combat viral spread, Governor Ivey and the ADPH have taken a series of steps
since early March, including issuing increasing aggressive guidelines and restrictions. These
orders have had the incremental effect of closing most “non-essential” businesses and requiring
residents of the State to essentially shelter in place.40
62. On March 13, Governor Ivey declared a State of Emergency for Alabama.41 On the
same day, President Donald Trump proclaimed a National Emergency concerning COVID-19.42
36 Ben Kamisar, Birx: U.S. needs a 'breakthrough' on antigen testing to aid in reopening, NBC News, Apr. 26, 10:25 a.m., https://www.nbcnews.com/politics/meet-the-press/birx-u-s-needs-breakthrough-antigen-testing-aid-reopening-n1192901. 37 Jessica Barnett, Ivey: Students to work from home for remainder of year, The News Courier, Mar. 26, 2020, (Mar. 26, 2020), https://www.enewscourier.com/covid-19/ivey-students-to-work-from-home-for-remainder-ofyear/article_edd3d2d0-6fad-11ea-aa1a-0bb1baa48e68.html.. 38 Off. of the Gov. of Ala., Governor Ivey Announces New Primary Runoff Election Date (Mar. 18, 2020), https://governor.alabama.gov/newsroom/2020/03/governor-ivey-announces-new-primary-runoff-election-date/. 39 Ala. Dep’t of Pub. Health, It’s safer at home; protect yourself and your community from COVID-19 (Mar. 27, 2020, https://www.alabamapublichealth.gov/news/2020/03/27.html. 40 See Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID19 (Apr. 3, 2020), https://governor.alabama.gov/assets/2020/04/Final-Statewide-Order-4.3.2020.pdf (summarizing and extending measures to date). 41 Proclamation by the Governor of the State of Alabama, State of Emergency: Coronavirus (COVID-19), Mar. 13, 2020, https://governor.alabama.gov/newsroom/2020/03/state-of-emergency-coronavirus-covid-19/. 42 Proclamation No. 9994, 85 Fed. Reg. 15337 (2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
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63. On March 19, Governor Ivey and the ADPH issued a statewide health order implementing the following mandatory measures: (a) prohibiting “[a]ll gatherings of 25 persons or more, or gatherings of any size that cannot maintain a consistent six-foot distance between persons”; (b) closing all beaches; (c) closing all Senior Citizen Center gatherings; (d) closing all public and private schools, colleges, and universities; (e) closing most preschools and childcare centers, with an exception for “childcare centers operated for the exclusive benefit of essential employees” of enumerated categories of employers; (f) requiring hospitals and nursing homes to prohibit visitation except for certain compassionate care situations; (g) delaying all elective medical and dental procedures; and (h) prohibiting restaurants, bars, breweries, and similar establishments from permitting “on-premise consumption of food or drink.”43
64. The following day, March 20, Governor Ivey authorized the Alabama National Guard to activate up to 100 guardsmen as needed to combat COVID-19.44
65. On March 26, Governor Ivey issued a proclamation ordering “all public K-12 schools” to “implement a plan to complete the 2019-2020 school year using alternative methods of instruction”; extending the licensure period for emergency medical services personnel; authorizing some notaries to notarize signatures through videoconferencing; authorizing state agencies to create, retain, and accept electronic records and signatures; and enabling municipalities to authorize law enforcement officers to issue a summons and complaint in lieu of arrest for most
43 See Order of the State Public Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19 (Mar. 19, 2020), https://www.alsde.edu/COVID19%20Updates/Alabama%20State%20Health%20Officer%20Statewide%20Social% 20Distancing%20Order%20%20%283.19.20%29.pdf. 44 Off. of the Gov. of Ala., Governor Ivey Issues Statement on Authorization of Alabama National Guard on As Needed Basis (Mar. 20, 2020), https://governor.alabama.gov/newsroom/2020/03/governor-ivey-issues-statement-onauthorization-of-alabama-national-guard-on-as-needed-basis/.
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misdemeanors and violations.45
66. On March 30, President Trump approved a major disaster declaration for Alabama, which made federal emergency aid available for pandemic related recovery efforts.46
67. On April 2, Governor Ivey issued a proclamation modifying regulations applicable
to health care providers and ordering licensing boards to adopt emergency rules to “expand the
capacity of the health care workforce”; modifying or suspending some regulations and laws
affecting healthcare facilities; expanding the Governor’s March 26 authorization of remote
notarizations and witnessing; authorizing governmental entities to postpone or cancel public
meetings; enabling corporations to hold remote shareholder meetings; and authorizing measures
“to reduce the number of local inmates being held in county jails in a way that does not jeopardize public safety.”47
68. On April 3, Governor Ivey and State Health Officer Scott Harris issued a mandatory
statewide order requiring “every person . . . to stay at his or her place of residence except as necessary to perform” an enumerated list of “essential activities.”48
69. In addition, the April 3 order mandated the closure of entertainment venues, athletic facilities, and close-contact service providers, such as barber shops.49 In order to remain open,
“essential retailers” were required by the order to implement a reduced “emergency maximum
occupancy rate,” enforce social distancing, and take reasonable steps to comply with CDC and
45 Gov. Kay Ivey, Proclamation by the Governor (Mar. 26, 2020), https://www.alabamapublichealth.gov/legal/assets/soe-covid19-instruction-032620.pdf. 46 See FEMA, President Donald J. Trump Approves Major Disaster Declaration for Alabama (Mar. 30, 2020), https://www.fema.gov/news-release/2020/03/30/president-donald-j-trump-approves-major-disaster-declarationalabama. 47 Gov. Kay Ivey, Proclamation by the Governor (Apr. 2, 2020), https://www.alabamapublichealth.gov/legal/assets/soe-covid19-040220.pdf. 48 Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19, at 1 (Apr. 3, 2020), https://governor.alabama.gov/assets/2020/04/Final-Statewide-Order-4.3.2020.pdf. 49 Id.at 7-8.
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ADPH sanitation guidelines.50
70. Further, the April 3 order required any non-institutionalized person who has tested
positive for COVID-19 to “be quarantined to their place of residence for a period of 14 days after receiving positive test results.”51 The order prohibited persons in quarantine from “leav[ing] their place of residence for any reason other than to seek necessary medical treatment.”52
71. In issuing the April 3 order, Governor Ivey’s issued a statement describing it as “a Stay at Home order to be applied statewide.”53
72. On April 14, during a press conference, Governor Ivey stressed the importance of
continuing to practice social distancing and continuing to abide by the State’s “Stay at Home”
order, stating: “It is imperative that we keep doing what we are doing . . . . Now is not the time to let our guard down and pretend that things are back to normal.”54
73. On April 28, Governor Ivey announced a “Safer at Home” order effective from April 30 through May 15.55 Under the “Safer at Home” order, all non-work related gatherings are
prohibited, except between groups of fewer than ten people or those that can maintain six-feet of distance between people from different households.56 Some businesses may open subject to
sanitation and social distancing guidelines, but entertainment venues, athletic facilities, and close-
50 Id. at 8. 51 Id. at 8-9. 52 Id. at 8. 53 Off. of the Gov. of Ala., Governor Ivey Issues Stay at Home Order (Apr. 3, 2020), https://governor.alabama.gov/newsroom/2020/04/governor-ivey-issues-stay-at-home-order/. 54 See Chip Brownlee, Gov. Kay Ivey: Now is not the time to “pretend things are back to normal”, Ala. Political Reporter (Apr. 14, 2020), https://www.alreporter.com/2020/04/14/gov-kay-ivey-now-is-not-the-time-to-pretendthings-are-back-to-normal/. 55 Press Release, The Office of Alabama Governor Kay Ivey, Governor Ivey Issues Safer at Home Order (Apr. 28, 2020), https://governor.alabama.gov/newsroom/2020/04/governor-ivey-issues-safer-at-home-order/. 56 The Office of Alabama Governor Kay Ivey, Order of the State Health Officer Suspending Certain Public Gatherings Due to Risk of Infections by COVID-19 at 2 (Amended Apr. 28, 2020), https://governor.alabama.gov/assets/2020/04/Safer-At-Home-Order-Signed-4.28.20.pdf.
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contact services like barbershops and hair salons remain closed.57 Individuals—especially
vulnerable persons—are encouraged to stay home, wear face coverings when necessary to leave the home, and follow good sanitation practices.58
74. Yet, the number of COVID-19 cases are continuing to rise in both the rural and urban counties of Alabama.59 For example, from April 15 to April 30, Mobile County added 447
new COVID-19 cases, which is more than the total new case count in all 67 counties, except for Jefferson County, the most populous county, which added 862 new cases.60 As of April 30, 42% of the new cases in Alabama in the last day had come from Mobile County alone.61 The First
Congressional District is centered in and around Mobile County.
III. COVID-19’s Impact on Black Alabamians Given Ongoing and Past Discrimination 75. The COVID-19 pandemic has had a particularly devastating effect on Black
communities. A CDC report published April 8, 2020, which included data from 1,482 patients
hospitalized across 14 states, found that Black COVID-19 patients made up 33% of those for whom
race or ethnicity information was available, despite representing only 18% of the states’ populations.62
76. As Dr. Selwyn M. Vickers, Senior Vice President of Medicine and Dean of the
University of Alabama at Birmingham School of Medicine, has explained, across the nation, the
57 Id. at 3-5. 58 Id. at 2. 59 Ramsey Archibald, Coronavirus cases still rising in pockets across rural Alabama, Alabama Media Group (Apr. 25, 2020), https://www.al.com/news/2020/04/coronavirus-cases-still-rising-in-pockets-across-rural-alabama.html. 60 Ramsay Archibald, Handful of Alabama counties still seeing coronavirus cases rise over last 14 day, Alabama Media Group, Apr. 30, 2020, https://www.al.com/news/2020/04/handful-of-alabama-counties-still-seeingcoronavirus-cases-rise-over-last-14-days.html. 61 Leada Gore, 42% of Alabama’s new coronavirus cases come from 1 county, Alabama Media Group, Apr. 30, 2020, https://www.al.com/news/2020/04/42-of-alabamas-new-coronavirus-cases-come-from-1-county.html. 62 CDC Morbidity and Mortality Weekly Report, Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 1-30, 2020 (Apr. 8, 2020), at 459, https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf.
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“alarming outcomes [for Black COVID-19 patients] are in large part the result of longstanding
inequities in an array of health determinants, including limited access to health care (especially primary care)[.]”63 In many parts of the country, COVID-19 “testing facilities have been
concentrated in predominantly white areas” or have been “drive-through-only or not on public transportation routes, making them less accessible for people who do not own an automobile.”64
77. Alabama has likewise reported alarming racially disparate patterns of serious illness and mortality due to COVID-19.65 As of April 28, the ADPH has reported that Black people in Alabama represented 41% of reported COVID-19 cases and 45% of related deaths66 despite making up just 27% of the state’s population.67 In Mobile County, as of April 30, Black people accounted for 28 of 53 COVID-19 deaths,68 a startling 53% of all COVID-19 deaths in the county, despite representing only 36% of the population.69
78. These racial disparities reflect Alabama’s long and ongoing history of
discrimination against Black people in health, education, housing, employment, and other areas of
socioeconomic life. Due to persistent structural inequities, Black Alabamians have less access to
63 Dr. Selwyn M. Vickers, Health Disparities and COVID-19: A Crisis Within a Crisis, UAB News, Apr. 10, 2020, https://www.uab.edu/news/campus/item/11232-health-disparities-and-covid-19-a-crisis-within-a-crisis. 64 Id.; see also Blake Farmer, The Coronavirus Doesn't Discriminate, But U.S. Health Care Showing Familiar Biases, NPR, Apr. 2, 2020, https://www.npr.org/sections/health-shots/2020/04/02/825730141/the-coronavirusdoesnt-discriminate-but-u-s-health-care-showing-familiar-biases. 65 See Kim Chandler, Alabama numbers show race disparity in COVID-19 deaths, Associated Press, Apr. 7, 2020, https://apnews.com/ca48e15ae178c14036ed795ccac857c3. 66 ADPH, Alabama Public Health Daily Case Characteristics: 4/28/20,
http://www.alabamapublichealth.gov/covid19/assets/cov-al-cases-042520.pdf.
67 U.S. Census Bureau, QuickFacts Alabama, https://www.census.gov/quickfacts/AL (last visited Apr. 26, 2020). 68 Mobile County Health Dep’t, Characteristics of COVID-19 Patients‒Mobile County, Alabama, 2020 (Apr. 30, 2020), http://mchd.org/Documents/BulkDocuments/News_4302020122506pm_COVIDSURVREPORT04.30.20.pdf.pdf. . 69 U.S. Census Bureau, QuickFacts: Mobile County, Alabama, https://www.census.gov/quickfacts/mobilecountyalabama (last visited Apr. 30, 2020).
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healthcare and health insurance.70 Black voters in the Black Belt counties in particular “have fewer
primary care physicians, dentists and mental health providers per resident than other counties.”71
79. Disparities in access to transportation further exacerbate Black people’s
disproportionate lack of access to healthcare. Of those persons who can reach healthcare providers,
Black patients showing symptoms like cough and fever are less likely than other patients to be
given one of the scarce COVID-19 tests,72 because of longstanding racial biases in medical care.73
80. Underlying health disparities further render Black Alabamians particularly
vulnerable to COVID-19. In Alabama, Black people are more than twice as likely as whites to die
from diabetes and nearly three times as likely to die from hypertension or asthma.74 Many of these
underlying conditions result from past and present policies that both relegate Black people to
particular neighborhoods and disproportionately allocate landfills, factories, and other
environmental risks to Black neighborhoods.75 On April 10, in light of the racial disparities in
infection and death for Black Alabamians, Dr. Karen Landers, an officer at the ADPH, urged Black
70 Heeju Sohn, Racial and Ethnic Disparities in Health Insurance Coverage: Dynamics of Gaining and Losing Coverage over the Life-Course, 36 Popul Res Policy Rev. 181 (Apr. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5370590/ (“African Americans . . . are more likely to be uninsured throughout adulthood than non-Hispanic [white] individuals. Without insurance, people face considerable barriers in receiving health services. Many health care providers require insurance coverage from their patients or charge a prohibitively high fee.”). 71 Anna Maria Barry-Jester, The Healthcare System is Leaving the Southern Black Belt Behind, FiveThirtyEight Jun. 28, 2017, https://fivethirtyeight.com/features/the-health-care-system-is-leaving-the-southern-black-belt-behind/; see also The Office of Primary Care and Rural Health Alabama Department of Public Health and The Alabama Rural Health Association, Selected Health Status Indicators (Oct. 2007), http://www.adph.org/ruralhealth/assets/BBACData.pdf. 72 See Rubix Life Sciences, Health Data in the COVID-19 Crisis: How Racial Equity is Widening for Patients to Gain Access to Treatment 3 (Mar. 20, 2020), https://rubixls.com/wp-content/uploads/2020/04/COVID-19-MinorityHealth-Access-7-1.pdf; see also Farmer, supra n.64. 73 See, e.g., Michael O. Schroeder, Racial Bias in Medicine Leads to Worse Care for Minorities, U.S. News, Feb. 11, 2016, https://health.usnews.com/health-news/patient-advice/articles/2016-02-11/racial-bias-in-medicine-leads-toworse-care-for-minorities. 74 ADPH, Selected Health Status Indicators: Alabama’s Caucasian and African American Populations 4-5 (July 2013), http://www.adph.org/minorityhealth/assets/MinorityHealthStatus2013.pdf. 75 See, e.g., Ihab Mikati et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, 108 Am J. Pub. Health 480-83 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5844406/; Diane Alexander & Janet Currie, Is it who you are or where you live? Residential segregation and racial gaps in childhood asthma, 55 J. Health Econ. 186 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6112984/.
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people in particular to “stay at home” and stringently practice social distancing.76 81. Racial discrimination in Alabama has also resulted in socioeconomic inequalities
that disadvantage Black people, like higher rates of unemployment, disability, poverty, and inadequate health insurance than white people. These factors also make it more likely that Black voters in Alabama are forced to work outside the home even during the current pandemic and are therefore more exposed to COVID-19.
82. Black Americans are, for example, more likely to be part of the “blue collar” essential workforce than white people.77 In Alabama, the U.S. Census Bureau’s 2018 American Community Survey 1-Year Estimates (“ACS”) shows that 20.7% of Black people and just 13.7% of white people over age 16 work in service occupations. Similarly, 25.8% of Black people and just 14.6% of white people work in production, transportation, or material moving occupations. By contrast, 39.1% of white people versus only 26.2% of Black people in Alabama hold management or professional occupations—i.e., “white collar” jobs that are much more likely to allow employees to continue to work safely at home. IV. The COVID-19 Crisis and 2020 Elections in Alabama
83. Dozens of elections are still scheduled to take place in Alabama between May and the end of the calendar year, including major statewide elections on July 14 and November 3.78
84. Upon information and belief, as of March 10, 2020, Defendant John Merrill had no plan for safely conducting the then-scheduled March 31 runoff election amid the pandemic.
76 Dr. Karen Landers says large number of COVID-19 deaths are African American, WHNT-TV Huntsville, Apr. 10, 2020, https://www.msn.com/en-us/foodanddrink/foodnews/dr-karen-landers-says-large-number-of-covid-19deaths-are-african-american/vp-BB12rYB6. 77 Devan Hawkins, The coronavirus burden is falling heavily on black Americans. Why?, The Guardian, Apr. 16, 2020, https://www.theguardian.com/commentisfree/2020/apr/16/black-workers-coronavirus-covid-19. 78 See Ala. Sec’y of State, Upcoming Elections, 2020 Election Calendar, https://www.sos.alabama.gov/alabamavotes/voter/upcoming-elections (last visited April 30, 2020).
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85. On March 10, for instance, a local columnist asked Defendant John Merrill his plan for safely running the then-scheduled March 31, 2020 primary runoff election during the pandemic. Among other options, the columnist asked Secretary Merrill about encouraging more citizens to vote early and allowing curbside drop-off for absentee ballots.79
86. Secretary Merrill responded that “we’re not going to talk about that,” asserting that “we don’t need for people to be concerned about something that may not ever happen. The story that you’re thinking about writing is not even important.”80 Secretary Merrill said that he would “follow the lead” of Governor Ivey and the ADPH. He refused to discuss any plan for the thenscheduled March 31 election until they told him there was “a concern.” When asked if he had a “secret plan.” Secretary Merrill answered, “We’ll respond accordingly based on what information we have,” adding: “We don’t have any [coronavirus cases] yet. . . . So we don’t need to have our people have an increased level of anxiety.”81
87. Three days later, on March 13, there were six confirmed cases of Alabamians with COVID-19.82
88. Also, on March 13, Governor Ivey declared a state of emergency in Alabama. That same day, Secretary Merrill stated that there were no plans to postpone the March 31 primary runoff and that he had no authority under state law to do so.83
89. Two days later, on March 15, Secretary Merrill asked for an emergency opinion
79 Kyle Whitmire, Election Day epidemic? Alabama has no plan, Alabama Media Group, Mar. 10, 2020, https://www.al.com/news/2020/03/election-day-epidemic-alabama-has-no-plan.html. 80 Id. 81 Id. 82 Chip Brownlee, Tracking COVID-19 cases in Alabama, Ala. Political Reporter https://www.alreporter.com/mapping-coronavirus-in-alabama/ (last visited Apr. 30, 2020). 83 Mike Cason, John Merrill says law doesn’t allow postponement of Alabama runoff, Alabama Media Group, Mar. 13, 2020, https://www.al.com/news/2020/03/john-merrill-says-law-doesnt-allow-postponement-of-alabamarunoff.html.
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from the Alabama Attorney General on whether the Governor had the authority pursuant to her emergency powers to move the March 31 runoff election date. “I don’t have the authority and the governor does not have the authority, explicit authority, to postpone the election,” Secretary Merrill said. “So, with the new information that was introduced today by the governor about the outbreak and the steps that she’s taking with state employees, I felt it was important we get a better interpretation about what the potential might be in order to have that exercised for that reason.”84 By then, there were 22 confirmed COVID-19 cases in Alabama.85
90. Secretary Merrill sought the opinion out of a concern that, because of the increasingly strict federal and state guidelines discouraging large gatherings and urging people to practice social distancing, he would be unable to safely conduct the primary runoff.86
91. Local election officials had also urged a postponement of the primary runoff election to reduce the risk of spreading COVID-19 among voters and poll workers, who tend to be older than the general public, putting them at higher risk of death or severe illness from the virus.87
92. On March 17, the Alabama Attorney General issued an opinion finding that Governor Ivey had the authority under the state’s emergency management law to postpone the primary runoff until July 14, at the latest. Secretary Merrill agreed that the primary runoff cannot be postponed later than July 14 because further delay will interfere with the November 3 general
84 Mike Cason, John Merrill says Alabama runoff should be postponed; seeks AG opinion, Alabama Media Group, Mar. 15, 2020, https://www.al.com/news/2020/03/john-merrill-says-alabama-runoff-should-be-postponed-seeks-agopinion.html. 85 Brownlee, supra n.82. 86 Mike Cason, AG Steve Marshall says governor can postpone March 31 runoff, Alabama Media Group, Mar. 17, 2020, https://www.al.com/news/2020/03/ag-steve-marshall-says-governor-can-postpone-march-31-runoff.html. 87 Id.
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election.88 That day, there were 39 confirmed COVID-19 cases in Alabama.89
93. On March 18, Governor Ivey rescheduled the March 31 primary runoff to July 14, 2020.90 The same day, there were 51 confirmed COVID-19 cases in Alabama.91
94. That same day, Secretary Merrill promulgated an emergency rule pursuant to Section 17-11-3(e) of the Alabama Code titled “Absentee Voting During State of Emergency.”92
Section (1) of the emergency rule provided as follows:
[A]ny qualified voter who determines it is impossible or unreasonable to vote at their voting place for the Primary Runoff Election of 2020 due to the declared states of emergency, shall be eligible to check the box on the absentee ballot application which reads as follows: “I have a physical illness or infirmity which prevents my attendance at the polls. [ID REQUIRED].”93 95. On March 19, Plaintiffs Greater Birmingham Ministries, the Alabama NAACP, and
other civil rights organizations requested that Secretary Merrill take a number of steps to ensure
voters could safely participate in all of the upcoming 2020 elections, including extend emergency
rule 820-2-3-.06-.01ER to all 2020 elections; ease the Photo ID Requirements for voters with the
highest susceptibility to COVID-19; extend the deadline for requesting and postmarking absentee
ballots to Election Day; and allow curbside voting.
96. Secretary Merrill did not respond to this letter.
97. On April 17, Plaintiffs GBM and the Alabama NAACP sent a follow up letter to
Secretary Merrill. Secretary Merrill also failed to respond to their second letter.
88 Id. 89 Brownlee, supra n.82. 90 Gov. Kay Ivey, Proclamation by the Governor (Mar. 18, 2020), available at https://governor.alabama.gov/assets/2020/03/2020-03-18-1st-Supplemental-COVID-19-SOE.pdf. 91 Brownlee, supra n.82. 92 Ala. Sec. of State, Certification of Emergency Rules Filed with Legislative Services Agency, 820-2-3-.06-.01ER, Absentee Voting During State of Emergency (Mar. 18, 2020), https://www.alabamapublichealth.gov/legal/assets/order-secretarystate-031820.pdf. 93 Id.
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98. Upon information and belief, Secretary Merrill has corresponded with individual voters and other civic groups who have offered recommendations similar to Plaintiffs.
99. To date, however, Secretary Merrill has neither adopted nor implemented Plaintiffs’ recommendation or any other reasonable accommodations to address their concerns.
100. On April 8, Secretary Merrill wrote a letter to the Acting Executive Director of the U.S. Election Assistance Commission requesting over $6 million in federal funds to pay for increased absentee voting costs because of the expanded absentee voting options in the runoff, increased rates of absentee voting in the November 3 general election, additional pay for poll workers, and supplies to sanitize in-person polling locations.94 Secretary Merrill’s letter states that he anticipates substantial increases in absentee voting throughout 2020.
101. Upon information and belief, Secretary Merrill did not request funding for and does not intend to permit local, city, and county election officials to conduct curbside or drive-thru voting in the 2020 elections.95 V. The Challenged Provisions Unreasonably Burden the Voting Rights of Alabamians
A. Alabama’s Witness Requirement will deny large numbers of eligible voters the right to vote without meaningfully advancing any valid State interest.
102. In the current pandemic, many voters have no means to safely satisfy Alabama’s Witness Requirement. Individuals living alone, or with only one other individual over age 18, will not be able to sign their absentee ballot in the presence of a notary or two adult witnesses without defying federal and state social distancing guidelines. Getting a notary working under the direction
94 Letter from John H. Merrill, Ala. Sec’y of State, to Mona Harrington, Acting Exec. Director, U.S. Election Assistance Comm’n (Apr. 8, 2020), https://www.eac.gov/sites/default/files/paymentgrants/cares/AL_CARES_Disbursement_RequestLetter.pdf. 95 See Brian Lyman, Coronavirus in Alabama: Election money will go toward reimbursing polling station prep, Montgomery Advertiser, Mar. 30, 2020, https://www.montgomeryadvertiser.com/story/news/2020/03/30/coronavirus-alabama-election-money-go-towardreimbursing-polling-station-prep-covid-19/5086632002/.
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of a lawyer to notarize a ballot via videoconferencing is not an option for those voters who cannot afford the potential notary fee, or who lack computer or internet access, or who simply cannot identify a notary who is working under the direction of an attorney amid the extensive business shutdowns. Additionally, even assuming a voter could navigate the process, it is unclear whether an absentee ballot envelope notarized via videoconference would comply with Alabama election law.
103. Faced with either participating in the political process or potentially facing serious illness or death, the Witness Requirement will likely disenfranchise thousands of eligible voters in Alabama. And for voters forced to take the risk of voting in-person, they are putting themselves and their communities in serious danger.
104. At present, Alabama has over 3.5 million registered voters.96 Over 1.1 million Alabamians voted in the April 2020 Democratic and Republican primaries.97 And in the November 2016 general election, over 2.1 million Alabamians cast ballots.98
105. According to the ACS, 14.6% of Alabamians live alone. Of those Alabamians who live alone, 26% are Alabamians over age 65. Assuming similar voter turnout in the 2020 November general election, over 300,000 Alabamians (i.e., 14.6% of 2.1 million voters) will face the false choice of either risking their safety by voting in-person, leaving their homes to find witnesses for their absentee ballots, or not voting at all. Like Plaintiffs, many of them will be forced not to vote to protect their health and their community.
106. This burden on the right to vote will fall more heavily upon certain groups—older
96 Ala. Sec’y of State, Elections Data Downloads https://www.sos.alabama.gov/alabama-votes/voter/election-data (last visited Apr. 30, 2020)(click on link for “Voter Registration Statistics – 2020”). 97 Ala. Sec’y of State, Unofficial Election Night Results (Mar. 9, 2020), https://www2.alabamavotes.gov/electionnight/statewideresultsbycontest.aspx?ecode=1001060. 98 Primary/Primary Run-Off/General Election Statistics-State of Alabama 8, https://www.sos.alabama.gov/sites/default/files/voter-pdfs/turnout.pdf (last updated June 25, 2018).
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people, persons with disabilities, and Black Alabamians, among others. For instance, per the ACS, of the 3.8 million individual Alabamians of voting age, 14.6% (555,330) live alone. Of those 555,330 individuals who live alone, 38.9% (215,966) are age 65 and older. Around 30% of Alabamians 18 and older who live alone have a disability, and 44% of Alabamians 65 and older who live alone have a disability. For the 980,850 Black Alabamians of voting age, 186,497 (19.0%) live alone.
107. According to the ACS, in Alabama, for those Black people who live alone, 29.7% (55,388) are disabled. For the subset of Black people who are over age 65 and living alone, 45.9% (22,782) are disabled. For white voting age population living alone, 30.2% (107,647) are disabled. For the subset of whites over 65 and living alone, 44.0% (70,816) are disabled.
108. Of all Black households (i.e., homes with all of their occupants, regardless of number, treated as one unit), 37.1% contain people who live alone, per the ACS. Of all white households, 27.5% contain people who live alone. And 14.1% of all Black households in Alabama are headed by women who live alone with their children under 18 (i.e., people who are not legally competent witnesses) versus just 3.8% of similar white households.
109. COVID-19 has a disproportionately harmful effect on Black people because they are more likely to have pre-existing conditions that exacerbate the symptoms of the disease due to environmental and economic factors and because of inequalities in the health care system.99
110. The Witness Requirement will therefore likely prevent thousands of Alabamians who might otherwise cast absentee ballots from doing so this year, with a disproportionate impact falling on older voters, voters with a disability, and Black voters.
99 Characteristics of COVID-19 Patients‒Mobile County, Alabama, supra n.68; Colleen Walsh, COVID-19 Targets Communities of Color, Harvard Gazette, Apr. 14, 2020, https://news.harvard.edu/gazette/story/2020/04/health-caredisparities-in-the-age-of-coronavirus/.
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111. The notary public alternative is not a viable option for most voters, especially during the current pandemic. First, notaries are entitled to a payment of $5.00 for notarizing an absentee ballot affidavit.100 Second, notarization may still require personal interaction with a third-party witness in violation of social distancing protocols. In acknowledgment of the current barriers to notarizations, Governor Ivey issued an executive order on March 26, which permits attorneys who are also notaries and notaries who work under the supervision of an attorney to notarize documents using videoconferencing in lieu of personal appearance.101 Videoconferencing is not an option for every notary in Alabama. Notaries who are not attorneys or are not supervised by attorneys must still personally interact with a voter to notarize a ballot. But, even for the videoconferencing option, a voter must have access to videoconferencing technology. Further, it is more burdensome for Black Alabamians who are less likely to be able to afford the potential fees of notarization, the costs of videoconferencing, or sending the affidavit to the notary. Black Alabamians are also less likely to have access to the technology needed for videoconferencing, like broadband internet, a computer, tablet or “smart phone.” Some notaries also lack access to the computer, internet, or technology necessary for notarizations via videoconferencing. Further, because Alabama law requires the absentee ballot envelope itself to be notarized, remote notarization may not be a viable option for absentee ballots.
112. The Witness Requirement does not meaningfully advance the State’s interest in election integrity. Alabama election officials are not required to follow up with witnesses to confirm their identity or that they indeed witnessed the signing of the voter’s affidavit. See Ala. Code § 17-11-10. Instead, officials merely examine the affidavit for the witness signatures. If the
100 Ala. Code § 36-20-74. 101 Off. of the Ala. Governor, Fourth Supplemental State of Emergency (Coronavirus: COVID-19) (Mar. 26, 2020), https://governor.alabama.gov/assets/2020/03/4th-Supplemental-State-of-Emergency-COVID-19.pdf.
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information in the affidavit is correct and it contains the witness signatures, then officials “shall certify the findings, open each affidavit envelope, and deposit the plain envelope containing the absentee ballot into a sealed ballot box.” Id. § 17-11-10(b).
113. In fact, in 2017, Secretary Merrill supported a bill that would have eliminated the Witness Requirement but added the now-existent ID Application Requirement. Rather than increasing absentee voter fraud, Secretary Merrill thought the bill made it “easier to vote.”102 That is, in light of the Photo ID Requirements, Secretary Merrill does not believe that there is a separate need to enforce the Witness Requirement. Indeed, the District of Columbia and 38 states that have no witness requirement operate absentee balloting systems that are not undermined by fraud.103
114. Alabama has several other vehicles to both confirm the legitimacy of the absentee ballot cast and protect election integrity. First, the affidavit requires an absentee voter to swear or affirm that the information is true and correct. The affidavit warns that it is a criminal offense to knowingly gives false information to illegally vote absentee. This offense is punishable by a fine up to thousand dollars ($1,000) and/or confinement in the county jail for up to six months. Ala. Code § 17-11-7.
115. Separately, it is also a criminal offense for any person to willfully falsify an absentee ballot application or verification documents. Ala. Code § 17-17-24.
116. Finally, the absentee ballot application is required to “contain sufficient information to identify the applicant and shall include the applicant’s name, residence address, or such other information necessary to verify that the applicant is a registered voter.” Ala. Code § 17-11-4. The current absentee ballot application requires a voter to submit either their driver’s license number
102 Mike Cason, Bill would eliminate requirement to give reason for voting absentee, Alabama Media Group (Jan. 13, 2019), https://www.al.com/news/birmingham/2017/04/bill_would_eliminate_requireme.html. 103 Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, supra n.4.
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or the last four digits of their social security number, which allows election officials to verify the voter’s identity even before the distribution of the absentee ballot.104
117. Given these criminal penalties and the alternative identification methods, the additional step of requiring a voter to sign their absentee ballot before a notary or two witnesses offers no meaningful protection against fraud. Indeed, while instances of fraud are rare, a person determined to falsely submit an absentee ballot and risk imprisonment could just as easily forge the two witnesses’ signatures as they could falsely attest to their identity when signing the absentee ballot affidavit.
118. The Witness Requirement places an unnecessary and dangerous burden on the voting rights of the many thousands of people in Alabama, particularly elderly, disabled, and Black voters, who will have to choose between casting their ballots safely or disenfranchisement.
B. The Photo ID Requirements will endanger the lives of large numbers of voters who lack access to printers and scanners or lack photo ID acceptable for voting.
119. The Photo ID Requirements require a person who is submitting an application for an absentee ballot to include a copy of their photo ID and, separately, once the ballot is received, to also return a second copy of the photo ID when mailing in the actual absentee ballot if the absentee election manager determines the voter is required to do so. A voter who fails to provide photo ID with the application cannot receive an absentee ballot. A returned absentee ballot that requires a photo ID will not be counted if it does not include a copy of the voter’s photo ID.
120. Yet, given the federal social distancing guidelines, Governor Ivey’s “Safer at Home” order, and the closures of many offices, libraries, schools, and businesses (e.g., FedEx and UPS stores), many voters have no means of meeting the Photo ID Requirements. For example,
104 Ala. Form AV-R1, Application for Absentee Ballot, https://www.sos.alabama.gov/sites/default/files/voterpdfs/absentee/RegularAbsenteeAppFillable.pdf (revised Sept. 3, 2019).
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12.8% (over 200,000) of all households in Alabama lack a computer, smartphone or tablet. Without access to the computers, scanners and printers needed to generate copies of the photo ID required to cast absentee ballots, tens of thousands of voters will not be able to vote. And, even if these voters could find a way to travel (6.3% of all Alabama residents lack vehicles) and find a business open to copy their IDs, they would have to break social distancing protocols to do so, at great risk to their safety and that of others. As a result, many Alabama citizens will be unable to obtain the copies of the photo IDs that they need to either return with their absentee ballot or even complete their absentee ballot application.
121. In particular, elderly voters and voters with disabilities and preexisting conditions, like Plaintiffs Porter and Thompson, cannot obtain copies of their photo IDs to vote absentee in the 2020 elections without putting their lives in serious risk.
122. On April 21, a voter based in Montgomery directed a question about the Photo ID Requirements to Secretary Merrill via Twitter. “So to exercise my right to vote I need to have a computer, with Internet, a printer, with toner and paper, and a smart phone with a camera or a scanner or a copy machine?” the Montgomery-based voter asked.105 In response, the official account of the Secretary of State’s office asked him to contact them or local officials.
123. Secretary Merrill, however, mocked the voter via his personal account.
105 Stephen Stetson (@StetsonStephen), Twitter (Apr. 21, 2020, 10:53 AM), https://twitter.com/StetsonStephen/status/1252611322128273408.
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124. When a local reporter simply retweeted Secretary Merrill’s response, Secretary Merrill again proved unhelpful. He confirmed that voters, like Plaintiffs Porter and Thompson, must violate social distancing protocols, which endangers their safety, to comply with the Photo ID Requirements.
125. Moreover, there are tens of thousands of Alabama voters who lack photo ID, and now cannot get one. Since March 23, 2020, nearly every photo ID-issuing office in Alabama,
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including the Alabama Law Enforcement Agency (“ALEA”) offices and county boards of registrars, has been closed.106 To the extent ALEA continues to operate any photo ID-issuing offices, it “[d]iscourages anyone with a weakened or compromised immune system from visiting any Driver License locations” and has “begun curbside check-in and screening” to “reduce potential exposure” to COVID-19. 107 And, upon information and belief, Secretary Merrill has not deployed his office staff to issue photo IDs at people’s homes or at public events since at least April 3, when Governor Ivey’s stay-at-home order was issued.
126. Secretary Merrill has instructed probate judges and absentee managers to continue to require individuals, like Plaintiff Thomson, who have medical conditions and who cannot comply with the Photo ID Requirements without putting their lives at risk—to submit copies of their photo IDs with the absentee ballot application.108 Defendants do not consider voters with preexisting medical conditions that put them at a higher risk of death or serious illness from COVID-19 infection to be exempt from the Photo ID Requirements under Alabama Code § 17-930(d).
C. The Prohibition on Curbside Voting Needlessly Increases the Risks of COVID-19 Infection via Personal Interactions at In-Person Poll Sites in the 2020 Elections.
127. Upon information and belief, no provision of Alabama law expressly prohibits curbside or drive-thru voting. See generally Ala. Code § 17-9-1 to § 17-9-15.
128. Nonetheless, Alabama does not offer curbside voting to voters whose disabilities, age, or physical condition prevent them from going into an in-person voting location. Secretary
106 Press Release, ALEA Continues to Modify its Driver License Division Operations in Response to COVID-19, Ala. Law Enforcement Agency, (Mar. 23, 2020), https://www.alea.gov/news/alea-continues-modify-its-driver-licensedivision-operations-response-covid-19. 107 Id. 108 Ala. Sec. of State, Certification of Emergency Rules Filed with Legislative Services Agency, 820-2-3-.06-.01ER, Absentee Voting During State of Emergency (Mar. 18, 2020), http://www.alabamapublichealth.gov/legal/assets/order-secretarystate-031820.pdf
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Merrill instructs local, city, and county election officials that Alabama state law prohibits curbside or drive-thru voting. Secretary Merrill has a policy and practice of intervening to prevent local election officials from employing curbside voting to assist people with disabilities.
129. For example, on November 8, 2016, a polling place in Hale County, Alabama was offering curbside voting. Secretary Merrill was contacted about this practice and he instructed his office to begin an investigation. In response to the investigation, the county’s chief election official told Secretary Merrill that curbside voting was being offered by poll workers to assist voters with disabilities by bringing ballots to voters in their cars. Secretary Merrill’s office informed the county that the practice was illegal. Secretary Merrill ordered Hale County to immediately cease and desist curbside voting. The county complied.109
130. To protect the lives of voters amid the COVID-19 crisis, however, the CDC has recommended that jurisdictions “[e]ncourage drive-up voting for eligible voters” as a means of complying with social distancing rules and to limit personal contact during in-person voting.110
131. On information and belief, other states have already employed curbside voting as a safety accommodation to voters during the pandemic. In elections held during the COVID-19
109 Ainsley Allison, Secretary of State's office shuts down curbside voting in Hale County, ABC News 3040 (Nov. 8, 2016), https://abc3340.com/news/election/secretary-of-states-office-shuts-down-curbside-voting-in-hale-county. 110 Ctrs. for Disease Control & Prevention, supra n.5.
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crisis, Arkansas,111 Ohio,112 Wisconsin,113 and Wyoming114 permitted everyone to vote without
leaving their car in adherence to the necessary social distancing protocols. Upon information and
belief, none of these states usually permit blanket curbside voting.
132. Indeed, Defendant Governor Ivey’s April 3 stay-at-home order and April 30 “Safer
at home” order permit “drive-in” gatherings to protect individuals—particularly vulnerable
individuals—from in-person contact that could put them at risk from COVID-19.
133. Because of the Witness and Photo ID Requirements, many voters with disabilities,
including preexisting conditions that make them more susceptible to COVID-19, are completely
deprived of any alternative method of voting.
134. Under these circumstances, Defendants’ failure to accommodate voters who are
particularly vulnerable to COVID-19 by offering the reasonable accommodation of curbside
voting constitutes a severe and undue burden on the right to vote.
CLAIMS FOR RELIEF
COUNT ONE Violations of the Fundamental Right to Vote under the First and Fourteenth Amendments (42 U.S.C. § 1983) (All Plaintiffs against All Defendants, Except the State of Alabama)
135. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this
111 Rich Klein & MaryAlice Parks, The Note: Voting in age of coronavirus gets uncertain test runs, ABC NEWS (Mar. 31, 2020), https://abcnews.go.com/Politics/note-voting-age-coronavirus-uncertain-testruns/story?id=69877935. 112 Rick Rouan, Ohio offering curbside voting, extending absentee deadline for those in hospital in wake of coronavirus, USA TODAY (Mar. 16, 2020), https://www.usatoday.com/story/news/politics/elections/2020/03/16/coronavirus-ohio-offering-curbside-votingstates-head-polls-tuesday/5058230002/. 113 Early voting: Where you can still cast a ballot in-person before the April 7 election in the Milwaukee area, MILWAUKEE JOURNAL SENTINEL (Mar. 31, 2020), https://www.jsonline.com/story/news/politics/elections/2020/03/31/coronavirus-wisconsin-where-you-can-still-voteearly/2883706001/. 114 Quinn Scanlan, States focus on alternatives to in-person voting as they move forward with primaries amid coronavirus pandemic, ABC News (Mar. 20, 2020), https://abcnews.go.com/Politics/states-focus-alternativesperson-voting-move-forward-primaries/story?id=69688445.
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Complaint and the paragraphs in the counts below as though fully set forth herein. 136. Eligible individuals have a fundamental right to vote under the First and Fourteenth
Amendments of the U.S. Constitution. Under the First and Fourteenth Amendments, a court considering a challenge to a state election law must carefully balance the character and magnitude of the injury to the rights that the plaintiff seeks to vindicate against the justifications put forward by the State. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
137. As-applied in the COVID-19 pandemic and on their face, the Witness Requirement, the Prohibition on Curbside Voting, and their enforcement severely and unreasonably burden the fundamental right to vote of all Plaintiffs, their members, and other similarly situated Alabama voters. These two provisions will likely prevent thousands of voters from casting effective ballots, with particularly heavy burdens on older Alabamians, voters with disabilities, and Black voters.
138. As-applied in the COVID-19 pandemic, the Photo ID Requirements and their enforcement severely and unreasonably burden the fundamental right to vote for Plaintiffs Porter, Thompson, and the members of People First of Alabama, as well as other similarly situated Alabama voters. The Photo ID Requirements will likely prevent thousands of voters from casting effective ballots, with particularly heavy burdens on older Alabamians and voters with disabilities.
139. No valid state interest justifies those burdens. Alabama’s Witness Requirement and Photo ID requirements do not advance the State’s interest in election integrity. By contrast, the State already has in place numerous other measures that prevent fraud without endangering the safety of voters in the current pandemic.
140. With respect to the Prohibition on Curbside Voting, Secretary Merrill has publicly equated curbside voting with purported “voting irregularities.” To the extent that Defendants assert
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that his policy and practice of prohibiting curbside voting is an election security measure, Defendants can address those concerns through other means. For example, a bipartisan group of at least two poll workers and/or a poll observer can meet a voter at their vehicles with the ballot.
141. Therefore, Defendants, acting under color of state law, by enforcing the Challenged Provisions have and will continue to deprive Plaintiffs of the fundamental right to vote secured to them by the First and Fourteenth Amendments in violation of 42 U.S.C. § 1983.
COUNT TWO Failure to Provide Reasonable Accommodations in Violation of Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131, et seq.)
(All Plaintiffs Against All Defendants) 142. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the count below as though fully set forth herein. 143. Voting is one of our nation’s most fundamental rights and a hallmark of our democracy. Yet for too long, people with disabilities have been excluded from this core aspect of citizenship. People with intellectual or mental health disabilities have been prevented from voting because of prejudicial assumptions about their capabilities. People who use wheelchairs or other mobility aids, such as walkers, have been unable to enter the polling place to cast their ballot because there was no ramp. People who are blind or have low vision could not cast their vote because the ballot was completely inaccessible to them.115 144. Invaluable federal civil rights laws have been enacted to combat such forms of discrimination against those with disabilities and to protect the fundamental right to vote for all Americans. These laws include: the ADA; The Rehabilitation Act of 1973 (the “Rehabilitation Act”); the VRA; the Voting Accessibility for the Elderly and Handicapped Act of 1984 (the
115 See U.S. Dept. of Justice, The Americans With Disabilities Act and Other Federal Laws Protecting the Rights of Voters With Disabilities 1, https://www.justice.gov/file/69411/download (last visited Apr. 30, 2020).
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“VAEHA”); the National Voter Registration Act of 1993 (“NVRA”); and the Help America Vote Act of 2002 (the “HAVA”).
145. Under Title II of the ADA, state and local governments must not impose requirements on participation in public services, programs, or activities, including voting, that screen out individuals with disabilities from fully and equally enjoying those programs and must make reasonable modifications in policies, practices, or procedures, including voting and election procedures, when the modifications are necessary to avoid discrimination on the basis of disability.
146. One of the fundamental underpinnings and policy behind the above laws is ensuring policies and procedures do not discriminate against people with disabilities.
147. Congress has documented a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting. The U.S. Court of Appeals for the Eleventh Circuit has held that prior U.S. Supreme Court precedent considered the record supporting Title II of the ADA as a whole, and has conclusively held that Congress had documented a sufficient historical predicate of unconstitutional disability discrimination in the provision of public services to justify enactment of a prophylactic remedy under Section 5 of the Fourteenth Amendment to the U.S. Constitution. See Nat. Assoc. of the Deaf v. Florida, 945 F. 3d 1339, 1351 (11th Cir. 2020).
148. Individuals who suffer a significant medical vulnerability that places them at extremely high risk of serious bodily injury or death should they leave the confines of their homes—including Plaintiffs Clopton, Peebles, Porter, Thompson and the members of the organizational Plaintiffs whose health conditions put them at significant risk of severe illness or death should they contract COVID19—have a disability within the meaning of the ADA.
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to the Challenged Provisions for those voters, such as Plaintiffs Clopton, Peebles, Porter, and Thompson and the members of Plaintiffs People First, GBM, and the Alabama NAACP, whose health statuses severely limit their ability to leave home or have any personal contacts with others amid the COVID-19 pandemic, violates the ADA.
150. Defendants have no valid justification for their failure or refusal to offer the reasonable accommodation of eliminating the Witness Requirement for at least those voters, like Plaintiffs Clopton, Peebles and Thompson, whose health statuses severely limit their ability to leave home or have personal contact with others amid the COVID-19 pandemic.
151. Defendants have no valid justification for their refusal to offer the reasonable accommodation of interpreting the existing exemptions to the Photo ID Requirements for certain elderly and/or disabled voters as also applicable to Plaintiffs Porter, Thompson and the members of People First of Alabama, and those similarly situated voters, whose health statuses severely limit their ability to leave home or have personal contact with others amid the COVID-19 crisis.
152. Defendants also have no valid justification for their refusal to permit curbside voting as a reasonable accommodation for the significant challenges disabled voters, like Plaintiffs Clopton and Peebles and the members of People First, GBM, and the Alabama NAACP, face as a result of the COVID-19 crisis.
153. The failure to accommodate these voters constitutes a condition on access to the ballot box that has the effect of screening out such individuals from participating in the July 14, August 25, and November 3, 2020 elections, as well as all other 2020 elections, in violation of Title II of the ADA.
154. Unless the requested relief is granted, Plaintiffs and those similarly situated will suffer irreparable harm in that they will be discriminated against and denied equal access to
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absentee and in-person curbside voting, or forced to risk their health, and possibly their lives, to vote in-person within a polling place—a program, service, or activity that impacts their ability to participate in one the most fundamental democratic institutions: voting.
155. The ADA authorizes injunctive relief as appropriate to remedy acts of discrimination against persons with disabilities. 42 U.S.C. §§ 12188(a)(1)-(2).
COUNT THREE The Witness Requirement and Prohibition on Curbside Voting Violate Section 2 of the Voting Rights Act (52 U.S.C. § 10301)
(All Plaintiffs Against All Defendants) 156. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 157. Section 2 of the VRA provides in part that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). 158. The “essence of a [Section] 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 (1986). Section 2 prohibits both vote denial and vote dilution. See id. at 45 n.10. 159. Vote denial occurs when a state erects “formal barriers to access such as literacy or residency tests” that result in the denial or abridgment of the right to vote on account of race. United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 1556 (11th Cir. 1984). To succeed here, Plaintiffs must prove that (1) Black people “have less opportunity than other members of the electorate to participate in the political process” and (2) that the “impact of the contested structure” is linked to historical conditions based on the Senate Factors. Gingles, 478 U.S. at 44.
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160. The Witness Requirement, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on Black voters in Alabama. Black voters in Alabama are more likely to work in jobs that expose them to COVID-19, less likely to have insurance or financial resources, more likely to live alone or with young children, more likely to lack computer or internet access, and more likely to suffer from severe health complications and/or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Witness Requirement.
161. Likewise, the Prohibition on Curbside Voting, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on Black voters in Alabama. Black voters in Alabama are less likely to have insurance or financial resources. Black voters are more likely to be disabled, to be undereducated and in need of in-person assistance to vote (which can be provided even if voters do not leave their car), and to suffer from severe complications or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Prohibition on Curbside Voting.
162. The discriminatory results of the Witness Requirement and Prohibition on Curbside Voting are directly linked to social and historical conditions. Alabama has a long history of votingrelated discrimination, including recent uses of discriminatory voter purges, racial gerrymanders, selective annexations, and at-large election systems. From 1965 to 2013, Alabama was covered by the preclearance provisions of the VRA. During that time, the U.S. Department of Justice objected to dozens of proposed voting changes because their potentially discriminatory purpose or effect.
163. Black people in Alabama continue to suffer from discrimination in other areas such as education, employment, and health, which hinders their ability to participate effectively in the political process. According to the ACS, in Alabama, 11.5% of Black people and 8.1% of white
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people lack health insurance; 42.7% of Black people and 38.1% of white people over age 65 have a disability; 15.8% of Black people and 14.1% of white people age 18 to 64 have a disability; 16.6% of Black people and only 11.4% of white people lack a high school degree; 9.4% of Black people and 4.2% of white people over age 16 are unemployed; 23.4% of Black households and 7.6% of white households in general lived below the poverty line; 18.3% of Black people over 65 versus 8.0% of white people over 65 also live in poverty; 12.7% Black households and only 3.9% of white households lack a vehicle; 18.9% of Black households and 10.7% of white households lack a computer, tablet, or “smart phone”; even among those people with computers, 29.6% of Black households and just 17.2% of white households lack broadband internet; 26.3% of Black households and 8.0% of white households use SNAP/food stamps; and Black median family income ($43,287) is nearly half that of white families ($73,109).
164. As discussed above at ¶¶ 75-82, these discriminatory patterns make Black voters more vulnerable to COVID-19, such that the Witness Requirement and Prohibition on Curbside Voting, are particularly burdensome and dangerous for them as a group relative to other voters. In addition, voting is racially polarized in Alabama and Black voters do not hold elected office in proportion to their population, resulting in state elected officials who are less responsive to the health, voting, and other concerns of Black voters amid the COVID-19 crisis.
165. Under the totality of the circumstances, the Witness Requirement and Prohibition on Curbside Voting interact with these social and historical conditions to abridge and deny Black people in Alabama the right to vote. As a result of the Challenged Provisions, Black Alabamians will have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
COUNT FOUR The Witness Requirement Violates Sections 3 and 201 of
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the Voting Rights Act, 52 U.S.C. §§ 10302, 10501 (All Plaintiffs Against All Defendants)
166. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint as though fully set forth herein.
167. Section 201 of the VRA categorically prohibits the use of “any test or device” as a “prerequisite for voting or registration for voting,” stating that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State.” 52 U.S.C. §§ 10501(a)(b). Section 201 defines the phrase “test or device” as including “any requirement that a person as a prerequisite for voting . . . prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b)(4).
168. Section 201 is a “potent weapon” and it applies to “any official with control over any aspect of an election . . . .” United States v. Bd. of Comm’rs of Sheffield, 435 U.S. 110, 12021 (1978). For that reason, the U.S. Department of Justice has employed the VRA to block discriminatory literacy and witness requirements in the absentee voting process.116
169. “All literacy tests and similar voting qualifications were abolished” by the VRA because, “[a]lthough such tests may have been facially neutral, they were easily manipulated to keep blacks from voting.” N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009). This per se ban on tests and devices “bars certain types of voting tests and devices altogether” and removes the burden of demonstrating the discriminatory application of a test or
116 Letter from Bill Lann Lee, Acting Assist. Att’y Gen., U.S. Dep’t of Just., Civ. Rights Div., to Hon. Robert A. Butterworth, Att’y Gen., State of Florida (Aug. 14, 1998), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/FL-1030.pdf; Letter from Jerris Leonard, Assist. Att’y Gen., U.S. Dep’t of Just., Civ. Rights Div., to Hon. MacDonald Gallion, Att’y Gen., State of Alabama (Mar. 13, 1970), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL1100.pdf.
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device. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 338 n.6 (2000). 170. The Witness Requirement is a prohibited “test or device” insofar as it is a
“requirement that a person as a prerequisite for voting . . . prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b). An absentee ballot which “is not witnessed by two witnesses 18 years of age or older . . . will not be counted.” Ala. Code § 17-11-7. Under the plain text of the VRA, this is per se prohibited as an illegal test or device.
171. In addition, as-applied to Alabama citizens, like Plaintiffs Clopton, Peebles and Thompson, who must strictly adhere to social distancing guidelines for the foreseeable future because they are highly susceptible to death or serious illness from COVID-19, the absentee voting system subject to the Witness Requirement is the only reasonable avenue for them to even attempt to vote.
172. No governmental justification can overcome the plain text of the VRA. For instance, before the VRA, the purported interest in the authentication of a voter was insufficient to justify other “supporting witness” requirements. See, e.g., United States v. Ward, 349 F.2d 795, 799 (5th Cir. 1965); United States v. Logue, 344 F.2d 290, 291 (5th Cir. 1965). Even without the Witness Requirement, Alabama law already includes additional means of authenticating a voter, as described above at ¶¶ 112-117.
173. In light of the COVID-19 pandemic, the Witness Requirement demands that thousands of voters, including Plaintiffs Clopton, Peebles, and Thompson, to either comply with a per se illegal “test or device” or have their vote discarded in violation of the VRA.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court:
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A. Declare that Alabama’s enforcement of the Witness Requirement (as stated in Ala. Code. §§ 17-11-7, 17-11-8, and 17-11-10), at least while the risk of COVID-19 transmission in Alabama remains, violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution, the ADA, and the VRA.
B. Issue a preliminary and permanent injunction that orders relief including: 1. Prohibiting Defendants from enforcing the Witness Requirement (as stated in Ala. Code §§ 17-11-7, 17-11-8, and 17-11-10) for all voters during, at least, all Alabama primary, municipal, and general elections in 2020; 2. Prohibiting Defendants from enforcing the Photo ID Requirements (as stated in Ala. Code §§ 17-9-30(b) and 17-11-9) for all voters during, at least, all Alabama primary, municipal, and general elections in 2020; 3. Prohibiting Defendants from enforcing the Prohibition on Curbside Voting, during, at least, all Alabama primary, municipal, and general elections in 2020; 4. Ordering Defendants to issue guidance instructing all local, city, and county election officials to count otherwise validly cast absentee ballots that are missing the signature(s) of a notary or two witnesses for all Alabama primary, municipal, and general elections in 2020; 5. Ordering Defendants to issue guidance instructing all local, city, and county election officials to accept otherwise validly submitted applications for absentee ballots and to count all otherwise validly cast absentee ballots that are missing the copies of photo IDs for all Alabama primary, municipal, and general elections in 2020; 53

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6. Ordering Defendants to issue guidance instructing all local, city, and county election officials that curbside, drive-thru, and/or drive-up voting at inperson polling sites is permitted for all Alabama primary, municipal, and general elections in 2020;
7. Ordering Defendants to modify election materials, including absentee ballots, to reflect the elimination of the Challenged Provisions, and conduct a public information campaign informing Alabama voters about the elimination of the Witness and Photo ID Requirements and the availability of curbside, drive-thru, and/or drive-up voting, in coordination with local, city, and county officials before and during the absentee balloting period, and ordering Defendants to issue guidance instructing local, city, and county election officials to issue absentee ballots to all eligible voters and to count otherwise validly cast absentee ballots that are missing witness signatures and copies of photo ID;
C. Award Plaintiffs attorneys’ fees in this action; D. Award Plaintiffs their costs of suit; and E. Grant such other and further relief as this Court deems just and proper in the circumstances.
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DATED this 1st day of May 2020.
/s/ Deuel Ross Deuel Ross* Natasha C. Merle* Liliana Zaragoza* NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org nmerle@naacpldf.org lzaragoza@naacpldf.org
/s/ William Van Der Pol William Van Der Pol [ASB-211214F] Jenny Ryan [ASB–5455-Y84J] ALABAMA DISABILITIES
ADVOCACY PROGRAM Box 870395 Tuscaloosa, AL 35487 P: (205)348-4928 wvanderpoljr@adap.ua.edu jrryan2@adap.ua.edu

Respectfully submitted,
/s/ Sara Zampierin Sara Zampierin, (ASB-1695-S34H) SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 P: (334) 956-8200 F: (334) 956-8481 sara.zampierin@splcenter.org
/s/ Caren E. Short Caren E. Short^ (ASB-0646-P48N) Nancy G. Abudu* SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, GA 30031 P: (404) 521-6700 F: (404) 221-5857 caren.short@splcenter.org nancy.abudu@splcenter.org
* Pro Hac Vice Motions forthcoming ^Application for admission forthcoming
Attorneys for Plaintiffs

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 Case 2:20-cv-00619-AKK Document 36 Filed 05/25/20 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 May-25 PM 01:50 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs,
v.
JOHN H. MERRILL, Secretary of State, et al.,
Defendants.

) ) ) ) ) ) Civil Action No. 2:20-cv-00619-AKK ) ) ) ) )

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

James W. Davis (ASB-4063-I58J) Winfield J. Sinclair (ASB-1750-S81W) Jeremy S. Weber (ASB-3600-X42G) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
Office of the Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Jim.Davis@AlabamaAG.gov Winfield.Sinclair@AlabamaAG.gov Jeremy.Weber@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov
Counsel for State Defendants (Secretary of State John Merrill, Governor Kay Ivey, and the State of Alabama)
May 25, 2020

Jay M. Ross (ASB-6378-069J) A. Patrick Dungan (ASB-0951-Y84D)* ADAMS AND REESE LLP 11 North Water Street, Suite 23200 Mobile, AL 36602 (251) 433-3234 jay.ross@arlaw.com patrick.dungan@arlaw.com
Todd D. Engelhardt (ASB-8939-T67D) Robert F. Dyar (ASB-1876-G12Q) ADAMS AND REESE LLP 1901 6th Avenue North, Suite 3000 Birmingham, AL 35203 (205) 250-5000 todd.engelhardt@arlaw.com Robert.dyar@arlaw.com
*Application for admission to the N.D. of Alabama forthcoming
Counsel for Defendant Alleen Barnett

Case 2:20-cv-00619-AKK Document 36 Filed 05/25/20 Page 2 of 38
Table of Contents
I. Factual Background .............................................................................................1 II. Preliminary Injunction Standard..........................................................................4 III. Argument .............................................................................................................5
A. Plaintiffs Are Not Likely to Succeed on the Merits..............................5 1. Plaintiffs lack standing and their claims are barred by sovereign immunity. ...................................................................5 a. Injury in Fact ....................................................................5 b. Traceability.....................................................................10 c. Redressability .................................................................13 d. Sovereign Immunity ........................................................14 2. The challenged provisions do not violate Plaintiffs’ constitutional rights...................................................................15 3. Plaintiffs’ ADA claim fails because they have not stated a prima facie case and the relief requested would unreasonably modify or fundamentally alter Alabama elections....................21 4. The witness requirement is not a prohibited voucher...............26
B. The equities do not favor the grant of a preliminary injunction. ........28 IV. Conclusion. ........................................................................................................30
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Table of Authorities
Cases
Aketepe v. United States, 105 F.3d 1400 (11th Cir. 1997) ............................................................................15
Alexander v. Sandoval, 532 U.S. 275 (2001)..............................................................................................27
Anderson v. Celebrezze, 460 U.S. 780 (1983)..............................................................................................16
Baker v. Carr, 369 U.S. 186 (1962)..............................................................................................15
Bennett v. Spear, 520 U.S. 154 (1997)..............................................................................................11
Bircoll v. Miami-Dade County, 480 F.3d 1072 (11th Cir. 2007) ............................................................................22
Burdick v. Takushi, 504 U.S. 428 (1992)..............................................................................................16
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)................................................................................... 7, 11, 24
Clingman v. Beaver, 544 U.S. 581 (2005)....................................................................................... 17, 29
Common Cause Indiana v. Marion County Election Board, 311 F. Supp. 3d 949 (S.D. Ind. 2018)...................................................................17
Common Cause/Ga. v. Billups, 554 F.3d 1340 (11th Cir. 2009) ............................................................................16
Crawford v. Marion County Election Board, 553 U.S. 181 (2008)....................................................................................... 17, 18
Disabled in Action v. Bd. of Elections in N.Y.C., 752 F.3d 189 (2d Cir. 2014)..................................................................................23
Dunn v. Blumstein, 405 U.S. 330 (1972)..............................................................................................16
Esshaki v. Whitmer, ___ F. App’x ___, 2020 WL 2185553 (6th Cir. May 5, 2020) ............................29
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Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020)....................................................16
Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999).................................................................................23
Ex parte Levitt, 302 U.S. 633 (1937)................................................................................................5
Ex parte Young, 209 U.S. 123 (1908)....................................................................................... 14, 15
Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012) ..............................................................................10
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)................................................................................................8
Garbett v. Herbert, 2020 WL 2064101 (D. Utah Apr. 29, 2020).........................................................16
Georgia Coalition for the People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018).................................................................17
Greater Birmingham Ministries v. Alabama, 2017 WL 782776 (N.D. Ala. 2017) ......................................................................14
Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018)................................................................18
Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287 (5th Cir. 2012) .........................................................................23
Hard v. Bentley, 2015 WL 1043159 (M.D. Ala. Mar. 10, 2015).....................................................15
Jacobson v. Fla. Sec’y of State, 957 F.3d 1193 (11th Cir. 2020) ................................................................. 8, 10, 13
Jones v. City of Monroe, 341 F.3d 474 (6th Cir. 2003) ................................................................................25
Jones v. Governor of Florida, 950 F.3d 795 (11th Cir. 2020) ..............................................................................17
League of Women Voters of Florida, Inc. v. Detzner, 314 F. Supp. 3d 1205 (N.D. Fla. 2018) ................................................................17
League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249 (W.D. Va. May 5, 2020)........................................................16
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Lewis v. Governor of Ala., 944 F.3d 1287 (11th Cir. 2019) ..............................................................................5
Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) ................................................................................25
Libertarian Party of Ill. v. Pritzker, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020) ........................................................16
Lowery v. Governor of Ga., 508 F. App’x 885 (11th Cir. 2013) .......................................................................15
Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976) ................................................................................4
Mays v. Thurston, No. 4:20-cv-341 JM, 2020 WL 1531359 (E.D. Ark. Mar. 30, 2020)...................11
Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) ................................................................................23
Purcell v. Gonzalez, 549 U.S. 1 (2006)..................................................................................................28
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020)..........................................................................................28
Solomon v. Liberty Cty. Comm’rs, 221 F.3d 1218 (11th Cir. 2000) ............................................................................30
Summers v. Earth Island Inst., 555 U.S. 488 (2009)................................................................................................8
Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999) ............................................................................14
Tennessee v. Lane, 541 U.S. 509 (2004)....................................................................................... 22, 26
United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983) ........................................................................4, 23
United States v. Logue, 344 F.2d 290 (5th Cir. 1965) ................................................................................27
United States v. Richardson, 418 U.S. 166 (1974)................................................................................................5
Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)................................................................................................4
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Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008)....................................................................................................4
Women’s Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003) ..............................................................................15
Statutes
42 U.S.C. § 12101....................................................................................................22 42 U.S.C. § 12131....................................................................................................22 52 U.S.C. § 10301....................................................................................................30 52 U.S.C. § 10501....................................................................................................26 52 U.S.C. § 10504....................................................................................................27 ALA. CODE § 11-46-1 ...............................................................................................13 ALA. CODE § 17-1-2 .................................................................................................12 ALA. CODE § 17-1-3 ...................................................................................................4 ALA. CODE § 17-13-10 .............................................................................................21 ALA. CODE § 17-16-4 .................................................................................................4 ALA. CODE § 17-9-11 ...............................................................................................21 ALA. CODE § 17-9-30 ...................................................................................... 2, 3, 12 ALA. CODE § 17-10-2 ...............................................................................................12 ALA. CODE § 17-11-9 ...............................................................................................12 ALA. CODE § 17-11-10 ..................................................................................... passim ALA. CODE § 17-11-11 .............................................................................................12 ALA. CODE § 35-4-20 ...............................................................................................20 ALA. CODE § 43-8-131 .............................................................................................20
Regulations
28 C.F.R. § 35.130 ............................................................................................ 25, 26 ALA. ADMIN. CODE r. 420-4-1-.13ER (May 21, 2020) ..............................................1 ALA. ADMIN. CODE r. 820-2-3-.06-.01ER (Mar. 18, 2020) .....................................26 ALA. ADMIN. CODE r. 820-2-9-.12 .............................................................................2
Other Authorities
BLACK’S LAW DICTIONARY (11th ed. 2019)...........................................................27 FED. R. EVID. 201(b) ..................................................................................................6
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DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Four voters and three organizations want to change the rules for Alabama’s 2020 elections (one of which has already begun), and to change them for all voters. Plaintiffs seek statewide relief to enjoin two established procedures and to implement a new, untested procedure, against Defendants unable to provide such relief. Plaintiffs move for a preliminary injunction. The State of Alabama, Governor Kay Ivey, and Secretary of State John H. Merrill (the State Defendants) and Alleen Barnett, Mobile County Absentee Election Manager (AEM)—oppose the motion.1 I. Factual Background
Alabama has taken extraordinary measures in response to COVID-19. Governor Ivey declared a state of emergency and the State Health Officer entered a series of health orders that encouraged and then required citizens to avoid nonessential actions. Docs. 16-1 to 16-21. Some of those restrictions were recently loosened. ALA. ADMIN. CODE r. 420-4-1-.13ER (May 21, 2020); see Doc. 34-15.
Alabama has also made numerous accommodations to voters to ensure a safe and fair election. In consultation with the Secretary of State and Attorney General,
1 Counsel for the State Defendants represent that they have spoken to Defendants Karen Dunn Burks and Jacqueline Anderson-Smith about this response. These officials indicated to the undersigned that they agree with this response, and that while they have not yet been able to retain counsel for this action, they expect to do so next week. Defendant Roberson intends to file a separate response and declaration, which Defendants rely on in further support of their opposition.
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Governor Ivey moved the runoff election from late March to July 14. Helms decl. (doc. 34-1) ¶ 20. Secretary Merrill promulgated an emergency regulation making it possible for any voter concerned about COVID-19 to vote absentee. Id. at ¶ 21. Governor Ivey issued permission for a notary to notarize a signature viewed remotely. Doc. 16-17. Moreover, persons eligible to vote absentee under the Elderly and Handicapped exception (see ALA. CODE § 17-9-30(d); ALA. ADMIN. CODE r. 820-2-9-.12(3)) retain that option and remain exempt from Photo ID requirements.
In addition, Secretary Merrill has encouraged Probate Judges to consider alternate polling places and to recruit additional poll workers, Helms decl. ¶ 12. He also offered suggestions on maintaining safe and sanitary polling places, id. at ¶ 12, and has acquired federal funds for masks, gloves, hand sanitizer, etc (and implemented procedures for distributing those funds). Id. at ¶ 34. Secretary Merrill has been actively monitoring the situation and is committed to continuing to do so and to respond as he deems it appropriate, in the exercise of his discretion and in consultation with appropriate officials. Id. at ¶ 40.
Absentee ballots must be notarized or signed by two witnesses in order to be opened and counted, a rule that “goes to the integrity and sanctity of the ballot and election.” ALA. CODE § 17-11-10(b). In 1996, Alabama updated absentee voting procedures to make them more secure. When successfully applying for preclearance, Alabama set out the history of absentee voting fraud in Alabama and explained why
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the revisions were necessary to address the fraud. See Docs. 34-9 to 34-15. Absentee voters must also include a copy of any one of a number of types of
Photo ID (unless exempt). ALA. CODE § 17-9-30. Alabama issues free photo IDs to voters at locations across the State. ALA. CODE § 17-9-30(a); see also ALA. ADMIN. CODE r. 820-2-9-.05. Even during the COVID-19 pandemic, Secretary Merrill has advised the Boards of Registrars that they must continue issuing free photo IDs. Helms decl. ¶ 26. Driver’s license offices are expected to reopen soon. Doc. 34-6.
While no Alabama statute specifically prohibits “curbside voting,” no statute sets out how it could be done. Though Plaintiffs complain that one county effort was stopped, doc. 20-1 at 16, the Secretary was concerned that the procedures used in that instance did not comply with election integrity laws such as “signing the poll list, ballot secrecy, and ballot placement into the tabulation machine.” Helms decl. ¶ 43. There are 1,980 polling places in the State. Id. at ¶ 35. It is unclear how curbside voting could be implemented in so many locations or in compliance with laws designed to protect the integrity of the election, with so little time to plan, recruit poll workers, and acquire additional voting machines. Helms decl. ¶¶ 43-51.
Each Plaintiff comes into contact with persons who go outside their respective homes. Plaintiff Clopton lives with his wife and has been grocery shopping during “senior hours.” Doc. 16-45, at 4. Plaintiff Peebles has four different caregivers. Id. at 8. Plaintiff Porter has a wife and son who shop for his groceries. Id. at 36-37. And
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Plaintiff Thompson is visited by her daughter and granddaughter. Id. at 18. The Defendants do not enforce the witness signature and Photo ID
requirements for absentee ballots. ALA. CODE § 17-11-10. Nor could any Defendant require “curbside voting” at polling places—each county’s governing body designates and equips polling places, ALA. CODE § 17-16-4, and the Probate Judge of each county is the chief elections official of that county, ALA. CODE § 17-1-3(b). II. Preliminary Injunction Standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly carries the burden of persuasion as to the four prerequisites.” U.S. v. Jefferson Cty, 720 F.2d 1511, 1519 (11th Cir. 1983). Moreover, “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, “[m]andatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).
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III. Argument
A. Plaintiffs Are Not Likely to Succeed on the Merits.
1. Plaintiffs lack standing and their claims are barred by sovereign immunity.
Plaintiffs are not likely to succeed on the merits because they cannot
demonstrate that they have standing, which requires three showings:
First, the plaintiff must demonstrate that she has suffered an injury in fact—an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, the plaintiff must show a causal connection between her injury and the challenged action of the defendant—i.e., the injury must be fairly traceable to the defendant’s conduct, as opposed to the action of an absent third party. Finally, the plaintiff must show that it is likely, not merely speculative, that a favorable judgment will redress her injury. Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (internal citations
and quotation marks omitted) (en banc). Plaintiffs fail on all three counts.
a. Injury in Fact
Plaintiffs fail to establish a legally cognizable injury because their alleged
harms are neither particularized nor concrete. Plaintiffs’ concerns about the risks of
COVID-19 are “plainly undifferentiated and ‘common to all members of the
public,’” and thus fail to confer standing. United States v. Richardson, 418 U.S. 166,
177 (1974) (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)). Every Alabamian
faces some degree of risk from this pandemic. While risks may vary for different
groups, Plaintiffs’ own allegations suggest that every person faces some risk during
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this time.2 Thus, even those who do not have conditions believed to heighten risk
may nonetheless wish to avoid public places to decrease the risk of contracting and
spreading the virus. Plaintiffs thus fail to allege a particularized injury.
As discussed further below in Section III(A)(2), Plaintiffs fail to show an
actual injury because they fail to allege any meaningful burden on their ability to
vote while practicing social distancing. Moreover, Plaintiffs’ purported injuries are
rooted in speculation. COVID-19 is a novel virus, and while knowledge about it is
growing, much is still unknown,3 including how it might be affecting Alabama on
July 14th.4 The Center for Disease Control’s projections for the nation and Alabama
do not even extend past June 15.5 At least one model projects that by mid-July the
2 See Doc. 16-4, at 2 (“People of every age can and have contracted COVID-19, including severe cases . . . .”); Doc 16-24, at 2-3 (showing that 46.3% of patients with COVID-19 in Mobile County are under age 50 and 72.6% of patients are under age 65, while 22.4% of deaths occurred in patients under age 65); Docs. 16-41, at 2 & 16-44, at 2 (both noting that in March 2020 studies of COVID-19 inpatients, 74.5% of patients were age 50 or under and asserting the need “to protect older adults and persons with underlying medical conditions, as well as the general public.”).
3 As Plaintiffs’ first exhibit notes: “There is much to learn about the novel coronavirus (SARSCoV02) that causes coronavirus disease 2019 (COVID-19).” Doc. 16-2, at 2. Plaintiffs’ expert, Dr. Arthur Reingold, notes that COVID-19 is a “novel” coronavirus and the following has not been determined: whether the virus can be spread through the air; the extent to which the population has developed antibodies to the virus; whether previously infected persons develop an immunity to the virus; and whether the incidence and prevalence of the virus will decline over the summer months. Doc. 16-4, at 3-4, 6-7.
4 Plaintiffs ask this Court to rely on inadmissible hearsay in newspaper articles to address key points in their analysis. Doc. 20-1, passim. This Court may judicially notice a fact “that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b). This rule does not allow this Court to determine scientific facts about COVID-19 based on the reporting of the Wall Street Journal or Los Angeles Times. See, e.g., Docs. 16-5; 16-6; 20-1, at 10-11.
5 COVID-19 Forecasts, CDC, https://www.cdc.gov/coronavirus/2019-ncov/coviddata/forecasting-us.html (last updated May 21, 2020).
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virus’s daily infection rate will drastically fall off and be a fraction of what it is today.6 The primary runoff election is scheduled 50 days from now—a long time in the course of a novel pandemic—and Plaintiffs have not demonstrated that they face a concrete risk of injury as a result of the State’s voting laws.7
None of this discussion is intended to dismiss Plaintiffs’ fears about the virus. Concerns about COVID-19 have already led the State to take significant precautionary measures regarding elections, including delaying the primary runoff election for as long as possible, providing for remote notarization, and allowing liberal use of absentee ballots. But there is an important difference between Plaintiffs’ generalized fears about living with risk factors during a pandemic and the type of particularized and concrete fear that would allow them to invoke this Court’s constitutionally limited jurisdiction. A plaintiff seeking injunctive relief must demonstrate that the future injury which forms the basis for the relief sought is “certainly impending”; a mere reasonable likelihood of injury will not suffice. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Plaintiffs’ alleged injuries are not “certainly impending,” and to the extent Plaintiffs seek an injunction that
6 COVID-19 Projections, IHME, https://covid19.healthdata.org/united-states-ofamerica/alabama (last updated May 20, 2020).
7 In addition, even assuming that this novel coronavirus continues to present an appreciable health risk in mid-July, this does not mean that the State’s voting laws increase any risk to Plaintiffs. Plaintiffs assume that actions such as merely having an absentee ballot notarized or witnessed, or physically entering a polling place to vote, present an appreciable risk to their health. These are tremendous assumptions, given everything that is not known about the transmission of this virus and when we do not know the precautionary measures polling places might employ.
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applies to November elections, their claims are even more speculative. The organizational Plaintiffs have likewise failed to demonstrate an injury in
fact. Each must first allege (and later prove) that “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). An organization that seeks associational standing must “make specific allegations establishing that at least one identified member had suffered or would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (holding that a statistical probability that a member would suffer injury failed to give the organization standing). For the same reasons that the individual Plaintiffs fail to demonstrate an injury in fact because their claims are generalized and conjectural, the organizational Plaintiffs have failed to demonstrate that at least one of their identified members has suffered or will suffer harm by any of the challenged provisions of State law.
The organizational Plaintiffs’ diversion-of-resources allegations likewise fail to establish standing. “[A]n organization 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.” Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1205 (11th Cir. 2020). Here, any additional resources
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the organizations are spending are the result of the pandemic, not any “[D]efendant’s illegal acts.” Id. Presumably, the organizational Plaintiffs would expend these resources regardless of whether the State loosened the witness or photo ID requirements. And each would undoubtedly use resources to help their members with voting regardless of whether the rules change.
Moreover, Plaintiffs’ complaint makes clear that the organizations are not “diverting” any resources at all. People First makes no allegation about diverting resources. Doc. 1 ¶¶ 21-23.8 And the most GBM and the Alabama NAACP allege is that that “the Witness Requirement and the Prohibition on Curbside Voting” will force them to continue to do what they were already doing. Id. ¶¶ 31, 35. GBM, for example, alleges that Defendants have forced it to “divert” resources from “voter registration and turnout efforts” to “new activities” like “(1) assessing who among its members are unable to comply with the Witness Requirement amid the COVID19 pandemic; (2) increasing efforts to educate its members and constituents about the Witness Requirement; (3) advocating that Defendants permit curbside voting; and (4)” addressing concerns of those affected by normal voting requirements during the pandemic. Id. ¶ 31. But these “new activities” are nothing new. They are simply
8 While People First attaches a declaration to its motion for preliminary injunction alleging that the organization must divert resources from its voter education training programs to “train its members on navigating the election system during the pandemic,” Doc. 16-45, at 26 ¶ 14, the complaint contains no such allegation. And, in any event, People First’s allegation is simply that it is spending voter education resources on educating voters. There is no diversion.
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part of ongoing “voter registration and turnout efforts.” Id. In short, GBM has alleged that it would normally spend its resources on voter registration and turnout efforts, and GBM continues to spend its resources on voter registration and turnout efforts. There is no diversion of “resources away from” these activities because the resources are being used for those activities. Jacobson, 957 F.3d at 1206.
The Alabama NAACP’s allegations are thinner still, merely asserting that they will have to spend resources on the same activities GBM is undertaking, see doc. 1 ¶¶ 35-36, without alleging “what activities [the Alabama NAACP] would divert resources away from” to respond. Jacobson, 957 F.3d at 1206. Moreover, the activities the Alabama NAACP complains about having to undertake sound a lot like its “efforts to register and educate Black voters and encourage[] them to engage in the political process by turning out to vote on Election Day”—activities the organization “regularly engages in.” Doc. 1 ¶ 33.9
b. Traceability Plaintiffs also lack standing because they cannot satisfy the causation requirement. Plaintiffs’ concerns are caused by a novel virus, not by the State. While the State is attempting to make voting as safe as practicable, the underlying cause of
9 If Plaintiffs’ diversion-of-resources allegations are sufficient to establish standing under Eleventh Circuit or Supreme Court precedent, Defendants reserve the right to argue that those cases should be overturned. No organization has “a legally protected interest in not spending money to advance its core mission.” Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1224 (9th Cir. 2012) (Ikuta, J., concurring and dissenting).
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any injury to the Plaintiffs is well beyond the State’s control. Neither the State nor her officers “caused” the Plaintiffs’ fears of injury—a pandemic did. See e.g., Bennett v. Spear, 520 U.S. 154, 167 (1997) (“[T]he injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court . . . .”); Mays v. Thurston, No. 4:20-cv-341 JM, 2020 WL 1531359, at *2 (E.D. Ark. Mar. 30, 2020) (“Any injury caused by Plaintiffs’ failing to take advantage of these available avenues to exercise their rights to vote are not caused by or fairly traceable to the actions of the State, but rather are caused by the global pandemic.”). Plaintiffs’ alleged injuries are traceable to a virus and individual choices made in response; costs incurred to avoid subjective fears do not create standing to sue the government. See Clapper, 568 U.S. at 417-18.
Additionally, Plaintiffs fail to demonstrate a causal connection between the so-called “prohibition” on curbside voting and any action by any Defendant. Plaintiffs concede that “no provision of Alabama law known to Plaintiffs expressly prohibits curbside or drive-thru voting.” Doc. 16, at 21. Plaintiffs then allege that “Secretary Merrill prohibits election officials from offering curbside voting,” id., but their evidence on this point consists of a single incident in which Secretary Merrill told a county that its curbside voting as it was then being conducted failed to comply with important legal requirements, such as voters personally signing poll books. Helms decl. ¶ 43. Moreover, Alabama law states that non-party Probate Judges and
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County Commissions are responsible for designating the places of holding elections
and the number of voting machines at each voting place. ALA. CODE § 17-6-4(a).
The Defendants could not require a county to offer curbside voting and could not
prohibit it from doing so, and therefore no Defendant before the Court has caused
any injury to Plaintiffs with respect to curbside voting.
Nor have Plaintiffs shown a causal connection between Defendants and the
witness signature or Photo ID requirements. AEMs determine whether an applicant
for an absentee ballot is obligated to produce identification, ALA. CODE §17-11-9,
but separate “poll worker[s] or other election official[s]” determine whether the
notarization or witnessing requirements are met and count the ballots. ALA. CODE
§§ 17-11-10(b), 17-11-11. Thus, it is not clear how the Defendant AEMs could have
caused an alleged injury.10 The State Defendants likewise have no role in enforcing
10 As Ms. Roberson points out in an expected separate filing, AEMs enter all absentee ballots received into the records system as “accepted” for purposes of record keeping, regardless of signature or witness requirements. Roberson decl. at ¶ 7. Entering a ballot into the voter registration system as “accepted” is no indication of whether it conforms to the law and will actually be counted; it merely shows that it was received by the AEM and will be turned over to the election officials. Id. Therefore, AEMs do not enforce the signature requirement. Second, an AEM’s determination of whether an applicant for an absentee ballot is required to submit proper photo ID is based solely on the reason checked on the application. Roberson decl. at ¶ 6. If the applicant did not designate a reason to vote absentee that is photo-ID exempt and has not provided proper photo ID, the AEM must contact the voter and inform him or her of the requirement to submit proper photo ID. ALA. CODE § 17-10-2(c). On the eighth day prior to the election, if proper photo ID is not provided with the absentee application, the AEM will issue a provisional absentee ballot. Id. at §§ 17-9-30(c), 17-10-2(c). However, the board of registrars determines whether the provisional ballot should be certified and counted. See id. at §§ 17-10-2(f); 17-10-2(g). The canvassing board, on which the circuit clerk serves for general elections, counts the provisional ballots, but in a primary election, which Plaintiffs seek to enjoin, executives for the political parties are the canvassing board. Id. at §§ 17-1-2(6), 17-10-2(f).
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these provisions and could not have caused any alleged injury.11 c. Redressability
Finally, Plaintiffs have not demonstrated that it is likely, not merely speculative, that a favorable judgment will redress their purported injuries. Because the State Defendants do not enforce any of the challenged provisions, an injunction against them will not redress any injury. An injunction against the Governor or Secretary requiring them to provide curbside voting or to count absentee ballots without witness signatures will accomplish nothing because they do not count absentee ballots and lack the authority to establish polling places.12 An injunction against the four named AEMs likewise would not redress injuries, but even if it could, it could do so only in their respective counties. The defendant AEMs could not provide relief in other counties whose AEMs are not joined.
Plaintiffs fail to meet the redressability prong for a second reason: Plaintiffs’ action ultimately seeks to compel the State to provide a risk-free voting experience for her citizens in the middle of a pandemic involving a novel coronavirus about which the world is still learning. This Court could rule entirely in Plaintiffs’ favor
11 To the extent Plaintiffs seek a preliminary injunction with respect to municipal elections, no Defendant before the Court caused any alleged injury (or could redress it). Municipal elections are their own entity, governed by separate statutes and conducted by different officials. See ALA. CODE §§ 11-46-1, et seq. The Defendants play no role in municipal elections.
12 See Jacobson, 957 F.3d at 1207-12 (holding that plaintiffs lacked standing to sue Secretary of State because, although Secretary served as Florida’s chief election official, plaintiffs’ alleged injuries were only traceable to and redressable by a decision against the non-party Supervisors of Elections of Florida’s 67 counties).
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and the election still may take place during a pandemic, and not all voters will agree with Plaintiffs’ preferred remedies. Some might not be comfortable with curbside voting that involves being handed materials directly from an election official. Others who might prefer to stand in a socially distanced line instead of having a poll worker hand something directly to them through an automobile window might be frustrated at the longer lines caused by the diversion of poll workers to curbside voting. Some voters might not feel comfortable handling an absentee ballot that has been processed through the U.S. mail. No voting system can eliminate all risk.
d. Sovereign Immunity For many of the same reasons Plaintiffs lack standing, the State Defendants are protected by sovereign immunity.13 “[T]he Eleventh Amendment prohibits suits against [S]tate officials where the [S]tate is, in fact, the real party in interest.” Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). Ex parte Young, 209 U.S. 123 (1908), allows litigation against State officials for prospective injunctive relief to end violations of federal law. However, Ex parte Young does not allow a suit against a State official who “has no authority to enforce the challenged statute.” Summit Med. Assoc., P.C., 180 F.3d at 1342.14
13 The State of Alabama preserves the defense that its sovereign immunity has not been abrogated with respect to any claim. To the extent that an AEM is considered a state official, the AEMs claim the benefits of sovereign immunity.
14 The inquiry into whether a defendant has a sufficient connection to the enforcement of the challenged law is largely the same as the one that governs standing. Greater Birmingham Ministries v. Alabama, 2017 WL 782776, at *13 (N.D. Ala. 2017).
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Plaintiffs’ claims present special standing and immunity problems as related
to Governor Ivey. Plaintiffs rely on the Governor’s supreme executive power as a
basis for their action. But a Governor’s general executive power does not provide a
sufficient connection to the enforcement of a challenged law.15 In addition, the
Governor’s emergency authority is a wholly inadequate basis on which to sue.
Ordering a Governor to exercise her discretion to suspend laws through an
emergency proclamation would be as inappropriate as ordering a Governor to veto
a bill or pardon a prisoner. “There is no doubt that the court cannot control the
exercise of the discretion of an officer.” Ex parte Young, 209 U.S. at 158.16
2. The challenged provisions do not violate Plaintiffs’ constitutional rights.
Voting is a protected right, but “States have the power to impose voter
qualifications, and to regulate access to the franchise in other ways.” Dunn v.
15 See Women’s Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir. 2003) (holding that a governor’s “general executive power” is not a basis for jurisdiction when other officials enforce the law); Hard v. Bentley, 2015 WL 1043159, at *5 (M.D. Ala. Mar. 10, 2015) (finding Governor’s general authority as Alabama’s chief executive official insufficient to establish standing or overcome sovereign immunity in challenge to marriage laws); cf. Lowery v. Governor of Ga., 506 F. App’x 885, 886 (11th Cir. 2013) (holding that Governor could not provide relief for alleged violations of the VRA and the Equal Protection Clause, and thus is not a proper defendant).
16 This Court should also decline to take up this issue as a non-reviewable political question. Baker v. Carr, 369 U.S. 186, 217 (1962) (laying out six indicia of a political question, including “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”); Aketepe v. United States, 105 F.3d 1400, 1402 (11th Cir. 1997) (“Restrictions derived from the separation of powers doctrine prevent the judicial branch from deciding ‘political questions,’ controversies that revolve around policy choices and value determinations constitutionally committed for resolution to the legislative or executive branches.”) (citations omitted).
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Blumstein, 405 U.S. 330, 336 (1972). Elections must be regulated to preserve their order and integrity. Thus, “[t]he Supreme Court has rejected a ‘litmus-paper test’ for ‘[c]onstitutional challenges to specific provisions of a State’s election laws’ and instead has applied a ‘flexible standard.’” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) and Burdick v. Takushi, 504 U.S. 428, 434 (1992)). This Anderson-Burdick test requires a court to balance the burden of a regulation upon voters against the State’s interests served by the regulation. “Reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters are generally justified by “the State’s important regulatory interests.” Burdick, 504 U.S. at 434.
Here, the only burdens Plaintiffs complain of are exceedingly light, whether looked at generally as to all Alabama voters or even specifically as to Plaintiffs. Plaintiffs argue that this Court should apply “strict scrutiny” to the challenged provisions because allegedly they “severely” burden voting rights and disparately impact some groups. As discussed below, the burden in this case is not severe at all, and the cases Plaintiffs cite for imposing strict scrutiny are easily distinguishable.17
17 Plaintiffs rely on four recent district court cases to assert that the burdens in this case are severe and warrant strict scrutiny. Doc. 20-1, at 13-14. One involved a consent decree, whereas the issues in this case are very much contested. See League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249 (W.D. Va. May 5, 2020). The other three cases involved ballot access provisions requiring thousands of signatures. Libertarian Party of Ill. v. Pritzker, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020); Garbett v. Herbert, 2020 WL 2064101 (D. Utah Apr. 29, 2020); Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020). The requirement to have two
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And no authority requires the Court to apply strict scrutiny to a non-severe burden
if the impact is different for different groups. Plaintiffs cite to Jones v. Governor of
Florida, 950 F.3d 795 (11th Cir. 2020), but that case involved an equal protection
claim where disparate treatment was obviously relevant. Plaintiffs also cite Georgia
Coalition for the People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1263-64
(N.D. Ga. 2018), which held that “disparate impact ‘matters’ when evaluating the
severity of the burden on individuals’ constitutional right to vote.” That decision was poorly reasoned and should not be followed.18 “[S]trict scrutiny is appropriate only
if the burden is severe.” Clingman v. Beaver, 544 U.S. 581, 592 (2005).
The claim that the challenged provisions violate Plaintiffs’ First and
Fourteenth Amendment rights is therefore assessed under the Anderson-Burdick
balancing test, and Alabama’s photo ID law passes the test. Binding precedent
establishes that Alabama has a weighty and legitimate interest in detecting and
deterring voter fraud and safeguarding voter confidence. Crawford, 553 U.S. at 192-
197 (plurality opinion); Common Cause/Ga., 554 F.3d at 1353. The State is not
witnesses sign a ballot is hardly as burdensome as canvassing the public for thousands of signatures during a pandemic.
18 The Kemp court cited to League of Women Voters of Florida, Inc. v. Detzner, 314 F. Supp. 3d 1205, 1216 (N.D. Fla. 2018), which cited in turn to the poorly reasoned (and now-vacated) decision in Common Cause Indiana v. Marion County Election Board, 311 F. Supp. 3d 949 (S.D. Ind. 2018), vacated on other grounds, 925 F.3d 928 (7th Cir. 2019). Space does not permit a full treatment of the problems with Common Cause Indiana, but in short, Common Cause Indiana cites in part to a dissent in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), for the proposition that the Burdick analysis permits consideration of whether voting laws fall disproportionately on the poor, the elderly, and the immobile.
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required to produce evidence of these interests, Common Cause/Ga., 554 F.3d at
1353, although it has done so already in another case in this Court.19 Alabama’s anti-
fraud interests in requiring photo ID apply even (if not especially) when required for
absentee voting. See Doc. 34-5, explaining how requiring absentee voters to submit
a copy of their Photo ID deters absentee fraud.
On the burden side of the scale, Plaintiffs have produced no evidence of any
person who lacks a photo ID,20 but instead claim that a heavy burden exists on voters
who may have difficulty making a copy of their ID to include with their ballot. Their
evidence from three individuals does not support this claim.21 Plaintiff Porter says
that he has a copier at home but is “worried that [he] may not be able to afford the
ink, paper, and toner needed to maintain my printer for the July 14 election.” Doc.
19 In Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018), Judge Coogler granted summary judgment for the Defendants in a challenge to Alabama’s photo ID law and held as follows: “Secretary Merrill is not required to prove that voter fraud exists (although he has done so), that the Photo ID Law helps deter voter fraud, or that the law increases confidence in elections. Supreme Court precedent mandates that Alabama’s justifications for the law are valid.” Id. at 1277-78. That decision is on appeal.
20 Plaintiffs make the conclusory assertion that “there are tens of thousands of Alabama voters who lack photo ID, and now cannot get one,” doc. 20-1, at 7, but they cite to no evidence of this and do not claim that they should get injunctive relief because of any person’s alleged lack of ID.
21 The State Defendants do not agree that it is appropriate to look at unique burdens borne by certain individuals. Burdens should be assessed “categorically,” not based on “the peculiar circumstances of individual voters or candidates.” Crawford, 553 U.S. at 206 (Scalia, J., concurring in the judgment). While it may appear that the three-Justice opinion authored by Justice Stevens differs in this respect from the three-Justice opinion authored by Justice Scalia, Justice Stevens never said that examining unique burdens by certain groups was the right approach, only that the record did not allow the Court to do so because the burden was not quantifiable when there was insufficient evidence of how many people lacked a photo ID. Nor is it possible in this case to quantify individual burdens; Plaintiffs offer statistics of how many people live alone or lack a computer, but there is no way to know how many of those people do not want to go to a polling place or are unwilling to have two family members come to their home to witness a signature.
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16-45, at 14 ¶ 14. Lacking ink—much less fear of a possible future ink shortage— is not a severe burden that justifies rewriting State election law, and Mr. Porter does not explain why he cannot make a copy now. Plaintiff Thompson says she has no copier and does not wish to leave home to make a copy. Doc. 16-45, at 19 ¶¶ 18-19. But her daughter and granddaughter visit her regularly, id. at 18 ¶ 13, and they could assist her with a copy. Finally, People First’s Executive Director claims that member “Kelly” has no printer or copier and “is unable to obtain a copy elsewhere without significant risks to her health.” Doc. 16-45, at 24-25 ¶11. She does not, however, testify that “Kelly” lacks access to anyone who could help her make a copy.
Making a copy of a photo ID is simply not a severe burden, even in the COVID-19 world. According to Plaintiffs’ own evidence, over 87% of Alabama households have a computer in the home, doc. 20-1 at 15, and many will be able to make a copy without interacting with anyone else. None of Plaintiffs’ declarants even have to compromise their isolation practices to comply with the photo ID requirement. Someone is at least bringing groceries, and having that person or another caregiver make a copy is not a severe burden. COVID-19 complicates things for everyone, but making a copy is not a problem for the vast majority of voters even now. Those for whom it is less convenient still have two months to have someone copy their ID at a library, drug store, shipping store, or other business. 22
22 Some libraries may be closed at the moment, but that does mean they will be closed in July. 19

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The witness signature requirement also passes the Anderson-Burdick test. Many voters will be able to take advantage of the ability to have documents notarized over videoconferencing. Others need only do a little planning to get two witness signatures without sacrificing social distancing. No law says that a witness has to be within six feet of the signer. A witness could even watch the signing through a window, then come in and sign after the voter has left the room.
On the other hand, the State interest is weighty: “The provision for witnessing of the voter’s affidavit signature . . . goes to the integrity and sanctity of the ballot and election.” ALA. CODE § 17-11-10(b). The witness requirement helps prevent voter fraud by adding an additional layer of protection, ensuring that the person filling out the absentee ballot is the actual voter listed on the ballot. A witness could provide important evidence in an election contest or an investigation of voter fraud. No anti-fraud provision is perfect, but witnesses are required for signatures of many legal documents,23 and the State’s policy determination that a witness signature helps protect the integrity of an election is reasonable.
Finally, Plaintiffs challenge the “curbside voting ban.” We are not aware of an express “ban” on curbside voting in Alabama (though no law expressly authorizes it). But no Defendant in this case can give the Plaintiffs this relief, and mandating curbside voting raises a host of practical concerns. How will elderly poll workers
23 E.g., ALA. CODE § 35-4-20 (conveyances of real property); ALA. CODE § 43-8-131 (wills). 20

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work outside all day in an Alabama summer? How can the State find enough poll workers to cover the outside and inside operations at nearly 2,000 polling places? How will traffic control of lines of cars be enforced? It also raises many legal issues. How can poll workers handle ballots and preserve privacy? See ALA. CODE § 17-1310. How will voters in their cars and voters inside the polling place each be able to sign the voting roll? See ALA. CODE § 17-9-11.24
In Anderson-Burdick terms, declining to offer curbside voting presents no burden on the right to vote because in the upcoming election, every voter in Alabama can vote absentee. No voter is required to go inside a polling place at all. And the State has important interests that weigh against an injunction. Such a change, even if possible, would cause chaos, requiring non-party Probate Judges to hire many more poll workers (when they already face shortages). Last-minute training will be required. The State also has an interest in election integrity, which would be compromised if drive-up voters are not signing the poll books and if poll workers are carrying a voter’s private ballot to and from the voting machines.
3. Plaintiffs’ ADA claim fails because they have not stated a prima facie case and the relief requested would unreasonably modify or fundamentally alter Alabama elections.
To state a prima facie claim under Title II of the Americans with Disabilities
24 It is also difficult to see how driving to the polling place and interacting with “at least two poll workers and/or a poll observer,” see Doc. 1 ¶ 140, is any better, in terms of social distancing, than having a witness sign a ballot, or even entering the polling place.
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Act (ADA), a plaintiff must show: (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in or denied the benefits of public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.
Bircoll v. Miami-Dade County, 480 F.3d 1072, 1083 (11th Cir. 2007). The ADA defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements” for the public action in question. 42 U.S.C. § 12131(2). Plaintiffs fail to make a prima facie case because: (1) they do not meet the essential eligibility requirements for having their absentee ballots counted; (2) they have not been excluded from voting;25 and (3) whatever difficulties they face are not “by reason of” their disabilities.26
First, Plaintiffs would not be qualified individuals because the Witness Requirement is an essential eligibility requirement of having an absentee ballot counted. “Title II does not require States to employ any and all means to make [public] services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs.” Tennessee v. Lane, 541 U.S. 509, 531-32 (2004). Here, election officials may not even open an
25 In the interest of efficiency, Defendants refer to the second element simply as “exclusion,” recognizing that it includes a denial of benefits and any other discrimination by public entities.
26 Defendants assume, without conceding, that the individual Plaintiffs’ allegations each meet the ADA’s definition of disability, see 42 U.S.C. § 12101, at this stage of the proceedings.
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unwitnessed envelope because the witness requirement “goes to the integrity and
sanctity of the ballot and the election.” ALA. CODE § 17-11-10(b).27 The plain
language of State law establishes the witness requirement as an essential requirement
of having an absentee ballot counted and therefore Plaintiffs’ ADA claim fails.28
Second, Plaintiffs are not excluded from voting. Plaintiffs cite no case where
a court held that anything other than a concrete barrier constituted exclusion under
the ADA.29. Further, no exclusion occurs when an individual’s own decisions lead
to the alleged exclusion. See Greer v. Richardson Indep. Sch. Dist., 472 F. App’x
287, 295 (5th Cir. 2012) (holding plaintiff did not make prima facie case because
her exclusion “appear[ed] to be, at least in part, a product of her own choices”). Here,
no concrete barrier prevents Plaintiffs from complying with the witness requirement.
Rather, they allege that complying with the witness requirement might expose them
27 See also Eubanks v. Hale, 752 So. 2d 1113, 1157-58, 1158 n.28 (Ala. 1999) (holding that unwitnessed absentee ballots did not “substantial[ly] compl[y] with the essential requirements of the absentee ballot law” (emphasis added)).
28 Plaintiffs’ one-sentence assertion that the Photo ID Requirement violates the ADA is insufficient to meet their burden to show that they are likely to prevail on the merits. Compare Doc. 20-1 at 27 (“Further, as Plaintiffs are protected by the ADA, Defendants must interpret the Photo ID Requirement in a manner that protects their right to vote.” (internal citation omitted)), with Jefferson Cty., 720 F.2d at 1519 (holding that the movant clearly carries the burden of persuasion as to the four prerequisites for a preliminary injunction). Even if Plaintiffs had argued this point, the Photo ID Requirement still does not violate the ADA. Additionally, the Photo ID Requirement serves as an essential eligibility requirement for voting, whether in-person or absentee. See ALA. CODE § 17-9-30.
29 See Doc. 20-1 at 21-23 (citing Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016) (considering blind individuals’ access to Maryland’s no-excuse absentee voting system); Disabled in Action v. Bd. of Elections in N.Y.C., 752 F.3d 189 (2d Cir. 2014) (considering the physical accessibility of individuals with “mobility or vision disabilities” to polling places))
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to COVID-19, which might result in health consequences due to their disabilities.30 But all of the individual Plaintiffs challenging the witness requirement31 already compromise the strict isolation they claim prevents them from complying. Clopton has gone to the grocery store four times in the last two months. See Doc. 16-45, at 4 ¶¶ 8-10. Peebles has four in-home care workers. See Doc. 16-45, at 8 ¶ 9. And Thompson is visited by her daughter and granddaughter. See Doc. 16-45, at 18 ¶ 13.
Third, even to the extent Plaintiffs face difficulties in complying with the witness requirement, those difficulties stem from Plaintiffs’ own choices and not from the requirements imposed by Defendants. None of the individual Plaintiffs challenging the witness requirement face exclusion because of their disabilities. Rather, it is their subjective fear of contracting COVID-19—not their disabilities or the witness requirement—that causes their alleged exclusion. See Clapper, 568 U.S. at 417-18 (holding costs incurred by subjective fears of government surveillance not “certainly impending” were “self-inflicted injuries”).32 As such, Plaintiffs are not excluded from absentee voting “by reason of” their disabilities.33
Plaintiffs’ ADA claim also fails because the requested relief is unreasonable
30 For the same reasons, Plaintiffs state no exclusion as to the Photo ID Requirement. 31 Plaintiff Porter makes no allegations about the witness requirement. He lives with two individuals over age 18 who could witness his absentee ballot. See Doc. 16-45, at 12 ¶ 2. 32 Each of these Plaintiffs also endorses curbside voting, despite requiring “at least two poll workers and/or a poll observer [to] meet a voter at their vehicles.” Doc. 1 at ¶ 140. 33 Additionally, Plaintiffs’ assertion that their exclusion is by reason of some unquantifiable risk stemming from their disability does not present a manageable standard for future ADA cases.
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and would fundamentally alter Alabama elections. Title II of the ADA requires States to make “reasonable modifications” to avoid discrimination unless those modifications “fundamentally alter” the nature of the service at issue. 28 C.F.R. § 35.130(b)(7)(i).34 When analyzing modifications to statutory requirements, “the overall focus should be on whether waiver of the rule . . . would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change.” Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003) (citations and internal quotations omitted), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir. 2012) (en banc).
Enjoining the witness requirement would unreasonably and fundamentally alter Alabama elections.35 In Jones, the Sixth Circuit rejected a requested modification to waive a one-hour parking ordinance because it would be at odds with the fundamental purpose of the ordinance: to encourage downtown shopping. 341 F.3d at 475-76, 480. Here, the witness requirement “goes to the integrity and sanctity of the ballot and election.” ALA. CODE § 17-11-10(c); see also Eubanks, 752 So. 2d at 1158 n.28. Because waiving the witness requirement is at odds with its purpose to preserve the sanctity and integrity of the ballot and election, Plaintiffs’ request would
34 Plaintiffs declined to acknowledge this limitation on modifications in either their complaint or briefing.
35 Additionally, a change to an essential eligibility requirement—like the Witness Requirement and Photo ID Requirement here—necessarily results in a fundamental alteration. See Lane, 541 U.S. at 532. (“Title II . . . does not require States to compromise their essential eligibility criteria for public programs.”).
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be a fundamental alteration to Alabama elections.36 Lastly, Plaintiffs’ request for curbside voting would be an unreasonable
modification of existing election procedures.37 Title II’s regulations require public entities to “make reasonable modifications,” 28 C.F.R. § 35.130(b)(7)(i), to remedy disability discrimination, but not to use “any and all means.” Lane, 541 U.S. at 531. Implementing curbside voting at 1,980 voting sites in fewer than 50 days is an unreasonable modification because it would impose an undue burden both financially and logistically on county election officials.38 See Helms decl. ¶¶ 43-51.
4. The witness requirement is not a prohibited voucher. Plaintiffs erroneously contend that the witness requirement is a voucher prohibited under § 201 of the Voting Rights Act. Doc. 20-1, at 28-29. Section 201 provides: “No citizen shall be denied, because of his failure to comply with any test or device, the right to vote . . . .” 52 U.S.C. § 10501(a) (emphasis added). A “test or device” includes “any requirement that a person as a prerequisite for voting or registration for voting . . . (4) prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b) (emphasis added). Alabama’s witness requirement does not involve a “qualification,” and its
36 Waiving the Photo ID Requirement is a fundamental alteration for the same reasons. 37 Having never been lawfully implemented before in Alabama, see Helms decl. ¶¶ 43-51, mandated curbside voting would likely also be a fundamental alteration to Alabama elections. 38 Further, Defendants already made a significant modification by making absentee voting widely available to “any qualified voter who determines it is impossible or unreasonable” to vote in-person. ALA. ADMIN. CODE r. 820-2-3-.06-.01ER (Mar. 18, 2020).
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purpose is very different from past discriminatory practices that required voter registration applicants to produce “supporting witnesses” to vouch for their “good character.” See United States v. Logue, 344 F.2d 290, 291 (5th Cir. 1965) (per curiam). The signature requirement confirms the identity of a person voting outside the presence of election officials at the polls. The witnesses merely certify that the voter listed on the absentee ballot affidavit is the person who signed it. This is a far cry from “personally assuring”39 the “possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible . . . to perform a public duty or function,”40 like voting.41 The witness requirement thus does not relate to a qualification and bears no similarity to the voucher requirements that were enacted for a discriminatory purpose in the 1950s and 1960s.
In any event, Plaintiffs have no right to bring a § 201 claim. The provision for enforcing § 201 provides only that “the Attorney General” may institute an action, and that action must be before a three-judge panel. 52 U.S.C. § 10504. This “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others,” Alexander v. Sandoval, 532 U.S. 275, 290 (2001), including the private right of action Plaintiffs attempt to bring here.
39Vouch, BLACK’S LAW DICTIONARY (11th ed. 2019) 40 Qualification, BLACK’S LAW DICTIONARY (11th ed. 2019). 41 Plaintiffs also argue that the witness requirement is prohibited for all voters “[o]r, at least, asapplied to those vulnerable persons who must vote absentee in this crisis.” Doc. 20-1 at 29. They offer no analysis of how the witness requirement could conceivably fall within Section 201 for some voters but not others, or just during a pandemic.
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B. The Equities Do Not Favor the Grant of a Preliminary Injunction. The remaining elements do not support a preliminary injunction. As discussed above, Plaintiffs have not shown that they will suffer any injury at all, and thus have not shown that they will suffer irreparable harm without an injunction. The balance of the equities likewise weighs against an injunction. A preliminary injunction would harm the public interest, first, because of the confusion and chaos inherent in changing the rules of an election that has already begun. The Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). Court orders implementing new rules “can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). While Plaintiffs have plenty of time to satisfy the existing requirements, the State cannot implement new rules throughout the State in less than 50 days, and voter confusion would result from shifting standards.42 Moreover, “[a] State indisputably has a compelling interest in preserving the integrity of its election process.” Purcell, 549 U.S. at 4 (citation and quotation marks omitted). An injunction would undermine this interest by eliminating State
42 Some voters are already complying with the current rules Plaintiffs ask this court to change, which could then change again on appeal.
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provisions designed to deter and detect voter fraud and safeguard public confidence in elections. Governor Ivey and Secretary Merrill have already made accommodations by rescheduling the primary runoff election and expanding the availability of absentee voting, and they are better positioned to make any other adjustments they deem appropriate, making use of public health and voting expertise that Plaintiffs and the courts do not have.
Finally, an injunction would usurp the Constitutional role of the States in conducting elections. “Simply put, federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Esshaki v. Whitmer, ___ F. App’x ___, 2020 WL 2185553, at *2 (6th Cir. May 5, 2020) (citing Clingman, 544 U.S. at 586). Make no mistake: Plaintiffs are not merely seeking to prohibit a an alleged violation of federal law; they ask this Court to micromanage the details of how State officials balance the various interests at play to best conduct a fair, safe, and honest election in the midst of a pandemic. State and local election officials are in a better position than the courts to balance these interests.
Finally, Plaintiffs seek State-wide relief based on the situations of four individual voters, while having joined only some local officials from just three of Alabama’s 67 counties. This broad requested relief, based on so little evidence,
29

Case 2:20-cv-00619-AKK Document 36 Filed 05/25/20 Page 36 of 38
magnifies the harm to the public interest that an injunction would wreak.43
IV. Conclusion.
Accordingly, Plaintiffs’ motion for preliminary injunction should be denied.
Respectfully submitted,
Steve Marshall, Attorney General
s/ James W. Davis James W. Davis (ASB-4063-I58J) Winfield J. Sinclair (ASB-1750-S81W) Jeremy S. Weber (ASB-3600-X42G) Brenton M. Smith (ASB-1656-X27Q)
Assistant Attorneys General
Office of the Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Fax: (334) 353-8400 Jim.Davis@AlabamaAG.gov Winfield.Sinclair@AlabamaAG.gov Jeremy.Weber@AlabamaAG.gov Brenton.Smith@AlabamaAG.gov
Counsel for State Defendants
43 Plaintiffs apparently do not argue that their Section 2 claim entitles them to a preliminary injunction. See generally doc. 20-1. But if they are, the claim entitles them to no relief because it fails on the merits. To state a claim under Section 2, Plaintiffs must show that any denial or abridgement of their right to vote is “on account of race or color,” as required by the statute. 52 U.S.C. § 10301(a); see also Solomon v. Liberty Cty. Comm’rs, 221 F.3d 1218, 1225 (11th Cir. 2000). Here, any denial or abridgement is not on account of race, but on account of a pandemic, a health condition, age, or a voter’s decisions about whether and how she will exercise caution. Moreover, Defendants preserve the argument that Section 2’s “results test” is unconstitutional because Congress lacks the power under the Fourteenth or Fifteenth Amendments to invalidate nondiscriminatory state and local laws.
30

Case 2:20-cv-00619-AKK Document 36 Filed 05/25/20 Page 37 of 38
Jay M. Ross (ASB-6378-069J) A. Patrick Dungan (ASB-0951-Y84D)* ADAMS AND REESE LLP 11 North Water Street, Suite 23200 Mobile, AL 36602 (251) 433-3234 jay.ross@arlaw.com patrick.dungan@arlaw.com Todd D. Engelhardt (ASB-8939-T67D) Robert F. Dyar (ASB-1876-G12Q) ADAMS AND REESE LLP 1901 6th Avenue North, Suite 3000 Birmingham, AL 35203 (205) 250-5000 todd.engelhardt@arlaw.com Robert.dyar@arlaw.com *Application for admission to the N.D. of Alabama forthcoming Counsel for Defendant Alleen Barnett
31

Case 2:20-cv-00619-AKK Document 36 Filed 05/25/20 Page 38 of 38
Certificate of Service I hereby certify that on May 25, 2020 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to counsel of record. I further certify that I have on this date mailed a copy of the forgoing to the following parties: Jacqueline Anderson-Smith Circuit Clerk of Jefferson County, Alabama Jefferson County Courthouse 716 Richard Arrington, Jr. Blvd. N. Birmingham, AL 35203 Karen Dunn Burks Deputy Circuit Clerk Bessemer Division of Jefferson County, Alabama 1801 3rd Ave N Bessemer, AL 35020
/s James W. Davis Counsel for State Defendants
32

 
 Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 May-26 AM 10:39 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA et )

al.,

)

)

v.

)

)

JOHN MERRILL, in his official )

capacity as Secretary of State of

)

Alabama et al.,

)

CASE NO. 2:20-cv-00619-AKK

DEFENDANT MARY B. ROBERSON’S RESPONSE TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Defendant Mary B. Roberson, in her official capacity as Circuit Clerk of Lee

County, Alabama, (“Mrs. Roberson”) responds to Plaintiffs’ Motion for

Preliminary Injunction and its supporting brief. See [Docs. 15, 20-1]. Unless

specified otherwise, Mrs. Roberson joins, adopts, and incorporates the response

and evidence filed by the Attorney General’s Office, [Docs. 34, 34-1–34-15, 36],

to the extent those arguments relate to Mrs. Roberson. While Mrs. Roberson

largely adopts the Attorney General’s arguments, certain issues need additional

argument.

Relevant Background

Plaintiffs seek to enjoin Mrs. Roberson’s performance, as Absentee Election

Manager (“AEM”) in Lee County, of certain challenged provisions under Alabama

election law. However, effective Friday, May 22, 2020, Mrs. Roberson no longer

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 2 of 7
serves as the AEM in Lee County because she has exercised her right not to serve in that role. In Lee County, Mrs. Roberson has traditionally served as AEM simply by virtue of her election as circuit clerk. Roberson Decl. at ¶ 3. So service as circuit clerk conferred on Mrs. Roberson “two hats”—circuit clerk and AEM—unless she exercised her right NOT to serve as AEM. See Ala. Code 17-11-2. This is consistent with Alabama law, which allows circuit clerks the first option of serving as AEM (unless they decline that role), a separate and distinct job and function from the circuit clerk. See id. The distinction between the two roles is critical and dispositive here because, as circuit clerk, Mrs. Robinson cannot do anything in relation to the relief sought in Plaintiffs’ Complaint, for any actions in relation to absentee ballots under Alabama law are the exclusive province of the AEM. Mrs. Roberson no longer wears the AEM “hat.” Furthermore, even if Mrs. Roberson were the AEM, Plaintiffs would not be entitled to an injunction against Mrs. Roberson because of the AEM’s specific role within the absentee balloting process.1
1 Mrs. Roberson files this response reserving all defenses, substantive and procedural, she may have to the underlying suit, including issues of proper parties, standing, immunity, capacity, and joinder. Additionally, in light of Mrs. Roberson’s election not to serve as AEM, she anticipates moving for dismissal.
2

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 3 of 7
I. Mrs. Roberson’s election not to serve as AEM moots Plaintiffs’ claims— or those directed at Mrs. Roberson—and bolsters her claim of sovereign immunity. No longer the Lee County AEM, Mrs. Roberson cannot enforce the
challenged provisions, and the claims against Mrs. Roberson are moot and subject to sovereign immunity.2 A case must be justiciable at all stages of litigation. See
Arizonans for Official English v. Arizona (“AOE”), 520 U.S. 43, 67 (1997)
(citation omitted). Mootness occurs when subsequent events clearly show that the
alleged harm is not reasonably likely to occur. See Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (citation
omitted). A change in a party’s circumstances can moot a case. See AOE, 520 U.S.
at 72.
Mrs. Roberson’s electing not to serve as AEM moots Plaintiffs’ claims
against her. Plaintiffs seek injunctive relief relating to the July 14, 2020, primary
run-off election and overall relief for the 2020 election year. E.g., [Doc. 1 at 52–
54; Doc. 15 at 1]. By not serving as AEM for the remainder of 2020, Mrs. Roberson has no authority to provide the relief Plaintiffs request.3 It is absolutely
2 Only certain portions of Plaintiffs’ motion seek injunctions against Mrs. Roberson. First, Plaintiffs seek injunction of the Witness Requirement and the compulsion of curbside voting. [Doc. 20-1 at 1]. However, as argued elsewhere, AEMs do not enforce these provisions. Second, Mrs. Roberson is not subject of the requested injunction of the Photo ID Requirement because the only Plaintiff with Lee County ties, Peebles, is not seeking that injunction. See id.
3 By arguing that her electing not to serve as AEM renders Mrs. Roberson powerless to provide Plaintiffs’ requested relief, Mrs. Roberson is not conceding that she otherwise could enforce the challenged provisions absent her opting out.
3

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 4 of 7
clear that Mrs. Roberson cannot reasonably be expected to perform the allegedly wrong behavior, and Plaintiffs’ claims are moot. See Laidlaw, 528 U.S. at 190.
In addition to the Attorney General’s arguments, Mrs. Roberson is entitled to sovereign immunity with the State Defendants. A state officer who does not have responsibility for enforcing a challenged provision cannot be stripped of sovereign immunity. Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999) (citation omitted). Mrs. Roberson is a circuit clerk, a state constitutional officer. Ala. Const. § 160(b). A circuit clerk serves as AEM only at her choosing. See Ala. Code. § 17-11-2. Thus, as only circuit clerk, Mrs. Roberson has no connection to enforcing the challenged provisions, and she is entitled to sovereign immunity. See Summit Med., 180 F.3d at 1341. II. Plaintiffs lack standing because of AEMs’ limited role.
In addition to arguments of the Attorney General, Mrs. Roberson argues she and other AEMs (if Mrs. Roberson were still an AEM) have limited roles relating to the challenged provisions, and Plaintiffs cannot prove traceability or redressability to confer standing. First, as the Attorney General shows and state law mandates, AEMs deliver absentee ballots to poll workers and election officials who are ultimately responsible for inspecting signatures and determining if the absentee ballots are to be counted. See Ala. Code § 17-11-11(b). AEMs receive guidance from the Alabama Secretary of State’s Office to enter all absentee ballots
4

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 5 of 7
received into the records system as “accepted” for purposes of record keeping, regardless of signature or witness requirements. Roberson Decl. at ¶ 7. Entering a ballot into the voter registration system as “accepted” is no indication of whether it conforms to the law and will actually be counted, but rather shows that it was received by the AEM and will be turned over to the election officials. Id. Therefore, AEMs do not enforce the signature requirement.
Second, an AEM’s determination of whether an applicant for an absentee ballot is required to submit proper photo ID is based solely on the reason indicated (checked) by the applicant on the application. See Ala. Code § 17-9-30(b), (d); § 17-11-9; [Doc. 16-46 at 19] (Absentee Ballot Application); Roberson Dec. at ¶ 6. If the applicant did not designate a reason to vote absentee that is photo-ID exempt and has not provided proper photo ID, the AEM must contact the voter and inform him or her of the requirement to submit proper photo ID. Ala. Code § 17-10-2(c). On the eighth day prior to the election, if proper photo ID is not provided with the absentee application, the AEM will issue a provisional absentee ballot. Id. at §§ 17-9-30(c), 17-10-2(c).
However, the board of registrars determines whether the provisional ballot should be certified and counted. See id. at §§ 17-10-2(f); 17-10-2(g). The canvassing board, on which the circuit clerk serves for general elections, counts the provisional ballots, but in a primary election, which Plaintiffs seek to enjoin,
5

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 6 of 7
executives for the political parties are the canvassing board. Id. at §§ 17-1-2(6), 17-
10-2(f). In summary, AEMs may make an initial determination as to whether
required photo ID has been provided, any photo-ID-deficient ballots that exist after
a certain timeframe are marked provisional, and the board of registrars—a non-
party—decides whether the provisional ballots should be counted. Even if Mrs.
Roberson were an AEM and even if a Lee County voter was seeking injunction of
the photo ID requirement, she does not have the authority to certify ballots for
counting. Accordingly, Plaintiff’s claims are not traceable to any action or inaction
by Mrs. Roberson and an injunction as to her would not redress the issue.
Conclusion
For the adopted reasons in the Attorney General’s response and for the
reasons specifically argued here, Mrs. Roberson asks the Court to deny Plaintiffs’
Motion for Preliminary Injunction.
/s/ Robert J. Sewell Attorney for Defendant OF COUNSEL: Brandon K. Essig bessig@lightfootlaw.com Robert J. “Jay” Sewell jsewell@lightfootlaw.com LIGHTFOOT, FRANKLIN & WHITE, LLC The Clark Building 400 20th Street North Birmingham, Alabama 35203 (205) 581-0700 (205) 581-0799 (Facsimile)
6

Case 2:20-cv-00619-AKK Document 41 Filed 05/26/20 Page 7 of 7
CERTIFICATE OF SERVICE I certify that on May 26, 2020, I filed the foregoing document by electronically filing with the CM/ECF court system, which will automatically serve counsel registered for electronic delivery. I also certify that I served a copy of this document by U.S. mail to the following: Jacqueline Anderson-Smith Circuit Clerk of Jefferson County, Alabama 716 Richard Arrington, Jr. Blvd. North, Room 500 Birmingham, Alabama 35203 Karen Dunn Burks Deputy Circuit Clerk and Absentee Election Manager of the Bessemer Division of Jefferson County, Alabama 1851 2nd Avenue North Bessemer, Alabama 35020
/s/ Robert J. Sewell OF COUNSEL
7

 
 Case 2:20-cv-00619-AKK Document 45 Filed 06/01/20 Page 1 of 5

FILED
2020 Jun-01 PM 03:02 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PEOPLE FIRST OF ALABMA, et al., )

)

Plaintiffs,

)

)

v.

) CASE No.: 2:20-cv-00619 -AKK

)

JOHN MERRILL, in his official capacity )

as Secretary of State of Alabama, et al., )

)

Defendants.

)

DEFENDANTS JACQUELINE ANDERSON-SMITH AND KAREN DUNN BURKS RESPONSE TO PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION

Defendants, Jacqueline Anderson-Smith, in her official capacity as Circuit

Clerk of Jefferson County, Alabama, and Karen Dunn Burks, in her official capacity

as Deputy Circuit Clerk of the Bessemer Division of Jefferson County, Alabama

(Jefferson County Clerks), respond1 to Plaintiff’s Motion for Preliminary Injunction

and its supporting brief. See [Docs. 15, 20-1]. The Jefferson County Clerks in

support of this position states the following unto this court:

1. The Jefferson County Clerks view themselves accountable to the

rules of law that governs Alabama Circuit Clerks as well as our democratic society.

1 Jefferson County Clerks file this response reserving all defenses, substantive and procedural, they may have to the underlying suit, including issues of proper parties, standing, immunity, capacity, and joinder.

Case 2:20-cv-00619-AKK Document 45 Filed 06/01/20 Page 2 of 5
2. All county clerks that serve in the capacity of Absentee Elections Manager (AEM), or the appointed absentee election manager, thereby appointed by the appointing board, See Ala. Code § 17-11-2, are mandated to carry out their duties pursuant to Ala. Code § 17-1-1, et seq.
3. The Jefferson County Clerks are entitled to sovereign immunity. As state officers2 who do not have responsibility for enforcing the challenged provisions, they cannot be stripped of sovereign immunity. Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999) (citation omitted).
4. Jefferson County Clerks acknowledge the sensitivity surrounding the information that is before this Honorable Court. After great deliberation the Jefferson County Clerks elect to be a nonparticipant in the present preliminary injunction and will abide by all laws of this state as well as all orders rendered by this Honorable Court to ensure the fundamental right to vote for all qualified citizens of Jefferson County.
5. Jefferson County Clerks have a long history of supporting and ensuring the right to vote amongst all citizens of Jefferson County, by providing every possible legal accommodation and assistance to voters.
2 See Ala. Const. § 160(b).

Case 2:20-cv-00619-AKK Document 45 Filed 06/01/20 Page 3 of 5
6. The Jefferson County Clerks recognize that the evolution of fair and equitable voting practices represents the shoulders upon which they stand and will continue to uphold all laws related thereto.

Respectfully submitted,

/s/ T. A. Lawson T.A. Lawson, ASB-3840-L72T County Attorney

/s/ Donald McKinley Carroll Donald McKinley Carroll, ASB-8575-A61C

Office of the Jefferson County Attorney

280 Jefferson County Courthouse

716 Richard Arrington Jr. Blvd. North

Birmingham, Alabama 35203

Phone: (205) 325-5688

Fax:

(205) 325-5840

Email: carrolld@jccal.org

CERTIFICATE OF SERVICE I hereby certify that on this 1st day of June, 2020, I provided the foregoing to the parties below through electronic mail and/or through U.S. Mail:
Caren Elaine Short, Esq. Nancy G Abudu, Esq. SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, GA 30031 Phone: 404-221-5868 Fax: 404-221-5857

Case 2:20-cv-00619-AKK Document 45 Filed 06/01/20 Page 4 of 5
Jenny R Ryan, Esq. William Van Der Pol, Jr, Esq. ALABAMA DISABILITIES ADVOCACY PROGRAM Box 870395 Tuscaloosa, AL 35487-0395 Phone: 205-348-4928 Fax: 205-348-3909
Sara M Zampierin, Esq. SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Phone: 334-956-8200 Fax: 334-956-8481
Deuel Ross, Esq. Liliana Zaragoza, Esq. Natasha Merle, Esq. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 40 Rector Street 5th Floor New York, NY 10006 Phone: 212-965-2200 Fax: 212-226-7592
Mahogane D Reed, Esq. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND INC 700 14th Street NW, Suite 600 Washington, DC 20005 Phone: 202-682-1300 Fax: 202-682-1312
James W Davis, Esq. Brenton Merrill Smith, Esq. Jeremy Stone Weber, Esq. Winfield J Sinclair, Esq. OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130-0152

Case 2:20-cv-00619-AKK Document 45 Filed 06/01/20 Page 5 of 5
Phone: 334-242-7300 Fax: 334-353-8400
Jay M Ross, Esq. ADAMS AND REESE LLP PO Box 1348 11 North Waters Street, Suite 23200 Mobile, AL 36633 Phone: 251-433-3234 Fax: 251-438-7733
Todd David Engelhardt, Esq. Robert F. Dyar, Esq. ADAMS AND REESE, LLP 1901 6th Avenue North, Ste. 3000 Birmingham, AL 35203 205-250-5020 Fax: 205-250-5034
Brandon Keith Essig, Esq. Robert Jackson Sewell, Esq. LIGHTFOOT FRANKLIN & WHITE 400 20th Street North Birmingham, AL 35203 Phone: 205-581-0748 Fax: 205-581-0799
Steven M Brom, Esq. BACHUS & BROM LLC 4908 Cahaba River Road Suite 100 Birmingham, AL 35243 Phone: 205-970-6747 Fax: 205-970-7776
/s/ Donald McKinley Carroll Assistant County Attorney

 
 Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 1 of 13
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 Jun-01 PM 04:27 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs, v. JOHN MERRILL, et al.,
Defendants.

Case No.: 2:20-cv-00619-AKK

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 2 of 13
It is undisputed that thousands of voters, including Plaintiffs and Plaintiffs’ many members, are at greater risk from COVID-19 because of the Challenged Provisions. As COVID-19 infections and deaths are rising at alarming rates, Ex. 68, 69, the chief state health officer is now open to another shutdown. Ex. 70, 71. Given the imminent danger ahead of the July 14 elections, the Court should enjoin: 1) the Witness Requirement; 2) the Photo ID Requirement for those voters most vulnerable to COVID-19; and 3) State Defendants from interfering with probate judges who choose to use curbside voting. Far from asking the Court to “micromanage” a state election, this relief is necessary to satisfy federal law and prevent irreparable harm.
Plaintiffs have standing because they are injured by having to violate social distancing guidance to vote, and Defendants have the authority to remedy that injury. On the merits, risking one’s safety to vote is a severe burden, which is not justified by unsupported speculation about voter fraud. Plaintiffs’ motion should be granted.
Plaintiffs Have Standing. Plaintiffs allege an injury-in-fact because the Challenged Provisions force them to violate social distancing guidance or face disfranchisement. Doc. 1 ¶¶ 7-8, 18-19, 21-36; Doc. 20-1 at 10-11. And voters always have standing to challenge state laws that require them to take some act (like obtain a photo ID or a witness) to vote. See Common Cause v. Billups, 554 F.3d 1340, 1351-52 (11th Cir. 2009). Nor does it matter whether the injury is common to all voters. So long as “a harm is concrete,” injury-in-fact exists even if the harm is
1

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 3 of 13
“widely shared.” Fed. Elec. Com’n v. Akins, 524 U.S. 11, 24 (1998). In fact, Plaintiffs and Plaintiffs’ members are lawful voters with disabilities that place them at high-risk of serious illness from COVID-19. Doc. 20-1 at 10-11; see Thomas v. Andino, 2020 WL 2617329, at *15 (D.S.C. May 25, 2020). And, given the State’s social distancing rules, Organizational Plaintiffs are pursuing new efforts, Doc. 1 ¶¶ 31, 35-36, to help voters with (and push the State to ease) the Challenged Provisions’ burdens. Accordingly, Plaintiffs and Plaintiffs’ members have standing. Arcia v. Fla. Sec’y of State, 772 F. 3d 1335, 1342 (11th Cir. 2014); Billups, 554 F.3d at 1350-51.
Defendants’ claim that it is too “speculative” to know whether Plaintiffs will contract COVID-19 due to the Challenged Provisions, Doc. 36 at 6, misunderstands the nature of Plaintiffs’ injury. The injury-in-fact is that Plaintiffs must take steps to satisfy the Challenged Provisions. See Arcia, 772 F.3d at 1341; Billups, 554 F.3d at 1351-52. The greater risk of getting COVID-19 due to the Challenged Provisions is relevant to the merits since it shows the severity of the burdens during the pandemic. But Plaintiffs’ Article III injury is being forced to comply with the Challenged Provisions, which they have standing to challenge even outside of a pandemic.
Plaintiffs’ injuries are also traceable to, and redressable by, Defendants. Because the Article III injury is the Challenged Provisions’ enforcement (not the pandemic), Defendants are sufficiently connected to such enforcement for purposes of both standing and Ex Parte Young. See Doc. 36 at 14 n.14 (agreeing that these
2

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 4 of 13
analyses are coequal). Defendants rely on Jacobson v. Florida Secretary of State, but there the state
official had no role at all in enforcing the challenged law. 957 F.3d 1193, 1207-08 (11th Cir. 2020). Where, as here, state officials have some statutory or other role in enforcing a law, an injunction against them satisfies redressability and traceability. See, e.g., NAACP v. Browning, 522 F.3d 1153, 1159 & n.9 (11th Cir. 2008); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 & n.3 (11th Cir. 2005).
State Defendants have already altered the Challenged Provisions, Doc. 36 at 1-2, meaning they can provide the requisite relief. In all elections, State Defendants enforce the Challenged Provisions, Ala. Code §§ 17-11-3, 17-11-3.1, 17-11-4, 1711-50, and related criminal penalties. Id. § 17-17-24. They help certify returns. Ala. Code §§ 17-12-2, 17-12-9, 17-12-17, 17-12-18, 17-13-17, 17-13-18. Defendants concede that certifying officials are proper parties. Doc. 36 at 12 n.10. And the Governor’s emergency powers allow her to eliminate the Challenged Provisions. Ala. Code § 31-9-8(a)(5); Ala. Op. Att’y Gen. No. 2020-020, 2020 WL 1322057 (Mar. 17, 2020). This establishes standing. Ga. Latino All. v. Gov., 691 F.3d 1250, 1260 n.5 (11th Cir. 2012); Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988).
Further, the photo ID law directs the Secretary to administer, interpret, and publicize it. Ala. Code § 17-9-30(g)-(p). Absentee election managers (“AEMs”) issue regular or provisional absentee ballots depending on whether a voter provides
3

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 5 of 13
photo ID. Doc. 36 12 n.10. Ordering the Secretary to waive the photo ID law or broaden its exemption and the AEMs to issue regular ballots to voters who do not produce ID would redress the injury. GBM v. Merrill, 2017 WL 782776, at *4 (N.D. Ala. Mar. 1, 2017) (Secretary’s authority under photo ID law sufficient for standing).
The Secretary also provides “uniform guidance” to election officials, Ala. Code § 17-1-3(a), including guidance related to the Witness Requirement, which election officials follow. Doc. 41 at 4-5; Doc. 36 at 12 n.10. The AEMs give voters “instructions for completing and returning the absentee ballots.” Ala. Code § 17-119. Ordering the Secretary to instruct election officials and the AEMs to instruct voters that the Witness Requirement is waived redresses Plaintiffs’ injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992) (redressability does not require complete relief). For curbside voting, the State’s witness admits that the Secretary has intervened twice to stop local election officials from using it. Doc. 34-1 ¶ 43. An injunction barring any such future interventions would redress Plaintiffs’ injuries.
Finally, for the ADA and VRA claims against the State, sovereign immunity has been abrogated; thus, Defendants’ Ex Parte Young and redressability arguments have “no role to play here.” OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017); see NAACP v. Alabama, 949 F.3d 647, 655 (11th Cir. 2020); Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020). Defendant Roberson is sued in her official capacity as Circuit Clerk and AEM. Doc. 1 ¶ 40. If she has
4

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 6 of 13
resigned from those roles, Doc. 41 at 1-2, her “successor is automatically substituted as a party,” which does not moot Plaintiffs’ claim. Fed. R. Civ. P. 25(d).
Plaintiffs Are Likely to Succeed on the Merits. First, Plaintiffs are likely to prevail on their constitutional claims. Under Anderson-Burdick, Plaintiffs have identified burdens inflicted by the Challenged Provisions that warrant relief. Thomas, 2020 WL 2617329, at *19. As to the Witness Requirement, Defendants fail to address the very real burden on Plaintiffs or Plaintiffs’ members who live alone or with one person. Doc. 20-1 at 16. Because Plaintiffs do not encounter two people simultaneously, Doc. 20-1 at 10-11, the Witness Requirement forces them to violate social distancing rules to interact with one or more people outside their household.
But COVID-19 is spread easily, Ex. 3 ¶ 6-7, and stays in the air for up to 14 minutes after an infected person talks. Ex. 72 ¶ 2. “Strikingly,” Defendants seek to enforce the Witness Requirement for everyone, requiring an “asymptomatic COVID-19 voter [to] unknowingly place potential witnesses at risk” and a symptomatic voter to “find a willing witness.” Thomas, 2020 WL 2617329, at *24. Defendants speculate that a witness could “watch the signing through a window,” Doc. 36 at 20, but even then “many would be dissuaded from exercising their vote both on account of the remaining health risks and required steps to mitigate them.” League of Women Voters v. Bd. of Elec., 2020 WL 2158249, at *8 (W.D. Va. May 5, 2020). Defendants suggest that Plaintiffs could ask individuals like a grocer or
5

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delivery driver to be a witness. Doc. 34-1 ¶ 41(d)(ii). But such hypothetical witnesses cannot “confirm[ ]” a voter’s identity, Doc. 36 at 27, and are essential workers who are at higher risk of contracting and spreading COVID-19. Ex. 51 at 2.
Without any support, Defendants also claim “[m]any voters” could use remote notarization. Doc. 36 at 20. But this can require the payment of an unconstitutional fee to vote and not all voters or notaries have videoconferencing. Doc. 20-1 at 6, 1617. Even remote notarization still requires a notary and voter to sign the same physical ballot, Doc. 34-1 ¶ 41(d)(i), posing significant logistical issues and risks.
Weighed against these severe burdens, Defendants cannot simply point to election integrity generally and note that “witnesses are required for signatures of many legal documents.” Doc. 36 at 20. Because election integrity is protected by many other means, see Doc. 20-1 at 18-20, Defendants have not identified a state interest that makes the Witness Requirement “necessary to burden the plaintiff’s rights,” and, thus, this Requirement fails heightened scrutiny. Tashjian v. Republican Party, 479 U.S. 208, 221-22 (1986); see Thomas, 2020 WL 2617329, at *21 & n.22.
The Photo ID Requirement likewise severely burdens Plaintiffs’ right to vote in the context of the pandemic. See Doc. 20-1 at 23-25. Nothing in Anderson-Burdick supports Defendants’ suggestion that voters should be put in the position of asking someone else to bear the risk of contracting COVID-19 to make a copy of their photo ID. See Doc. 36 at 19. And, once again, Defendants’ interest in election integrity is
6

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 8 of 13
not “necessary to burden” Plaintiffs’ rights. Tashjian, 479 U.S. at 221-22. Certain voters are already exempt from providing photo ID. Ala. Code § 17-9-30(d). Defendants do not even attempt to argue that the other means in state law that protect election integrity are sufficient for these already exempted voters but insufficient for voters vulnerable to the virus. Thus, the Photo ID Requirement is not “narrowly” drawn to satisfy a compelling state interest. Tashjian, 479 U.S. at 217. To cure this violation, the exemption must be construed to include Plaintiffs. Doc. 20-1 at 26-27.
Along with those who cannot satisfy the Photo ID or Witness Requirement, there are some voters, like Plaintiffs’ members, for whom absentee voting is not a viable option because they require in-person help. Doc. 20-1 at 28. In asserting that anyone can vote absentee, see Doc. 36 at 21, Defendants ignore these voters and the burdens placed on them by Defendants’ Curbside Voting Prohibition. Defendants contend that it would not be administratively feasible to require curbside voting at every poll site. Doc. 36 at 26. But Plaintiffs only seek an injunction prohibiting the Secretary from interfering when probate judges choose to deploy curbside voting.
Second, Plaintiffs are likely to prevail on their ADA claim. They are registered voters who are eligible to vote absentee and, with accommodations, could vote. Doc. 20-1 at 21-23. This is enough to meet “essential eligibility requirements.” 42 U.S.C. § 12131(2). Defendants cannot overcome the ADA claim by simply asserting that the Photo ID and Witness Requirements are “essential.” Compare Doc. 36 at 23 with
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Doe v. Rowe, 156 F. Supp. 2d 35, 59 (D. Me. 2001) (finding that a state constitution’s voting qualification was not “essential”). Rather, the Court must examine these requirements’ purpose (i.e., identification) and whether it can be satisfied with a reasonable modification. See Schaw v. Habitat for Humanity, 938 F.3d 1259, 126667 (11th Cir. 2019). Alabama law already allows certain voters to prove their identity without strictly meeting the Photo ID or Witness Requirements. Ala. Code § 17-930(d); Ala. Admin. Code § 820-2-10-.03(4). Contradictorily, Defendants also say that identification is not a qualification. Doc. 36 at 26-27. Thus, these requirements are not “essential,” and Plaintiffs’ proposed accommodations do not “fundamentally alter” the State’s elections. See, e.g., Martin v. PGA Tour, Inc., 994 F. Supp. 1242, 1253 (D. Or. 1998) (finding it relevant that the defendant had denied that plaintiff’s accommodation was reasonable, but had offered similar accommodations to others), aff’d, 204 F.3d 994 (9th Cir. 2000), aff’d, 532 U.S. 661 (2001); Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 852 (7th Cir. 1999); Doe v. Judicial Nominating Com’n, 906 F. Supp. 1534, 1544 (S.D. Fla. 1995). And the State’s own witness notes that curbside voting is feasible with some conditions. Doc. 34-1 ¶ 46.
Defendants also assert that the Challenged Provisions do not totally bar Plaintiffs from voting. Doc. 36 at 23. But an ADA violation “does not occur only when a disabled person is completely prevented from enjoying a service.” Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001). The ADA forbids rules that are direct
8

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barriers or that “screen out” people with disabilities, 28 C.F.R. § 35.130(b)(8), and otherwise “diminish” their “chances of participation.” 1990 U.S.C.C.A.N. 303, 388.
Specifically, the ADA prohibits voting barriers even where one has a “choice” of voting methods. See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016) (ADA challenge to “inaccessible” absentee voting not barred by the availability of “accessible” in-person voting). And Plaintiffs do not merely “fear” COVID-19. Doc. 36 at 24. Rather, the CDC and undisputed expert reports agree that, now and in July, Ex. 1, Ex. 3 ¶ 15, Ex. 67 ¶ 17, Plaintiffs face the real risk that the Challenged Provisions will endanger their lives “by reason of” their disabilities. Doc. 20-1 at 22-23; see Bragdon v. Abbott, 524 U.S. 624, 649 (1998); McAlindin v. San Diego Cty., 192 F.3d 1226, 1235 (9th Cir. 1999) (disability led to self-isolation).
Third, Plaintiffs are likely to succeed on their as-applied or facial Section 201 claim. This claim does not require a three-judge court, because it is not brought by the Attorney General. See 52 U.S.C. § 10504. Where the VRA “does not ‘expressly require’ a three-judge court,” courts do not convene them. Nick v. Bethel, 2007 WL 9718147, at *5 (D. Alaska July 31, 2007); see Thomas, 2020 WL 2617329, at *29.
Defendants and DOJ also wrongly contend that the Witness Requirement does not entail members of a “class” vouching for a voter’s “qualifications” or is not a “requirement.” 52 U.S.C. § 10501(b). Per Alabama Code § 17-11-7 and Defendants, a witness must vouch for or “confirm[ ] the identity of a person.” Doc. 36 at 27. This
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is a voting qualification. Ala. Code § 17-11-9; U.S. v. Ward, 349 F.2d 795, 798 (5th Cir. 1965). Vouchers are restricted to a “class” of non-candidates over age 18, Ala. Code § 17-11-7(b), (c), which, as applied, has a disparate impact. Doc. 20-1 at 5-6.1
The Witness Requirement is in fact a requirement: absentee ballots that fail to meet it are rejected. Ala. Code § 17-11-7. It does not matter that voters might opt to avoid it. The Supreme Court has enjoined a law that gave voters a “choice” between satisfying a literacy test or a then-valid property qualification. South Carolina v. Katzenbach, 383 U.S. 301, 319 (1966). DOJ has similarly ruled that literacy tests that applied only to absentee voters violated the VRA. Letter from DOJ to Ala. (Mar. 13, 1970), https://www.justice.gov/crt/case-document/file/1277176/download. And, regardless, the Witness Requirement is surely a requirement as applied in the present crisis since Plaintiffs have no choice but to vote absentee to protect their safety.
Finally, the Witness Requirement’s preclearance is irrelevant. Preclearance did “not represent approval of the voting change.” Reno v. Bossier Par., 528 U.S. 320, 335 (2000). Thus, precleared laws can still be “attacked.” Id.; see 52 U.S.C. § 10304(a). In fact, DOJ had to preclear a voting law that was not retrogressive, even if it violated another VRA section. Reno v. Bossier Par., 520 U.S. 471, 474 (1997).
Accordingly, the Court should grant Plaintiffs’ preliminary injunction motion.
1 In contrast, in Thomas, the witness requirement there was not a voucher test only because it did not require a witness to “confirm” or “know” a voter’s identity and it did not require a witness to be in any class at all, i.e., candidates and children could be witnesses. 2020 WL 2617329, at *30.
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DATED this 1st day of June 2020. Respectfully submitted,

/s/ Deuel Ross Deuel Ross* Natasha C. Merle* Liliana Zaragoza* NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 P: (212) 965-2200 dross@naacpldf.org nmerle@naacpldf.org lzaragoza@naacpldf.org
Mahogane D. Reed* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 700 14th Street N.W.Ste.600 Washington, DC 20005 (202) 682-1300 mreed@naacpldf.org

/s/ Sara Zampierin Sara Zampierin (ASB-1695-S34H) SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 P: (334) 956-8200 F: (334) 956-8481 sara.zampierin@splcenter.org
/s/ Caren E. Short Caren E. Short (ASB-0646-P48N) Nancy G. Abudu* SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, GA 30031 P: (404) 521-6700 F: (404) 221-5857 caren.short@splcenter.org nancy.abudu@splcenter.org

/s/ William Van Der Pol

*Admitted Pro Hac Vice

William Van Der Pol [ASB-211214F]

Jenny Ryan [ASB–5455-Y84J]

ALABAMA DISABILITIES

Attorneys for Plaintiffs

ADVOCACY PROGRAM

Box 870395

Tuscaloosa, AL 35487

P: (205) 348-4928

wvanderpoljr@adap.ua.edu

jrryan2@adap.ua.edu

Case 2:20-cv-00619-AKK Document 46 Filed 06/01/20 Page 13 of 13
CERTIFICATE OF SERVICE
I hereby certify that on June 1, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to counsel of record. I further certify that I will mail a copy of the forgoing to the following parties:
Jacqueline Anderson-Smith Circuit Clerk of Jefferson County, Alabama Jefferson County Courthouse 716 Richard Arrington, Jr. Blvd. N. Birmingham, AL 35203
Karen Dunn Burks Deputy Circuit Clerk Bessemer Division of Jefferson County, Alabama 1801 3rd Ave N Bessemer, AL 35020
/s/ Deuel Ross Deuel Ross Counsel for Plaintiffs

Case 2:20-cv-00619-AKK Document 46-1 Filed 06/01/20 Page 1 of 32

FILED
2020 Jun-01 PM 04:27 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,

Plaintiffs, v.

Civil Case No. 2:20-cv-00619-AKK

JOHN MERRILL, et al.,

Defendants.

DECLARATION OF DEUEL ROSS DEUEL ROSS declares, pursuant to 28 U.S.C. § 1746, as follows: 1. I am over the age of 18 and competent to make this declaration. I am admitted Pro Hac Vice as an attorney for Plaintiffs in this case. Attached are exhibits 68 to 72 submitted in support of Plaintiffs’ Preliminary Injunction Motion (Doc. 15). 2. Exhibit 68 is a true and correct copy of “Characteristics of LaboratoryConfirmed Cases of COVID-19,” a report published daily on the website of the Alabama Department of Public Health, dated June 1, 2020, and available at: http://www.alabamapublichealth.gov/covid19/assets/cov-al-cases-060120.pdf. 3. Exhibit 69 is a true and correct copy of “Alabama adds 526 coronavirus cases since yesterday; 145 from 3 counties; 18,020 statewide,” an article by the

Case 2:20-cv-00619-AKK Document 46-1 Filed 06/01/20 Page 2 of 32
Alabama Media Group, dated June 1, 2020, and available at: https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-sinceyesterday-145-from-3-counties-18020-statewide.html
4. Exhibit 70 is a true and correct copy of “Alabama state health officer concerned about ongoing community transmission of COVID-19,” a WSFA 12 News article and video interview, updated May 27, 2020, and available at: https://www.wsfa.com/2020/05/26/alabama-state-health-officer-concerned-aboutongoing-community-transmission-covid-/
5. Exhibit 71 is a true and correct copy of “Senator And State Health Officer Tackle Complex Slate Of Coronavirus Questions,” a news article by Public Radio WBHM 90.3 FM, dated May 30, 2020, and available at: https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-ofcoronavirus-questions/
6. Exhibit 72 is a true and correct copy of the Supplemental Declaration of Dr. Arthur Reingold, dated May 30, 2020.
7. I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and correct. Dated: June 1, 2020
_________________________ Deuel Ross
2

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EXHIBIT 68

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EXHIBIT 69

6/1/2020

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News

Alabama adds 526 coronavirus cases since yesterday; 145 from 3 counties; 18,020 statewide

Today 9:48 AM

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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This illustration, created at the Centers for Disease Control and Prevention (CDC), reveals ultrastructural morphology exhibited by coronaviruses. Note the spikes that adorn the outer surface of the virus, which impart the look of a corona surrounding the virion, when viewed electron microscopically.

By Leada Gore | lgore@al.com

497
shares

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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The number of coronavirus cases in Alabama now tops 18,000.

The June 1 9:30 a.m. numbers from the Alabama Department of Public Health shows 18,020 coronavirus cases in Alabama, an increase of 526 from yesterday. ADPH said 9,355 cases are presumed to have recovered.

The state now has 644 COVID-19 deaths, an increase of 16 from the previous day.

Three counties – Montgomery, Tuscaloosa and Mobile – combined for the greatest number of cases at 145. Montgomery added 73 cases, Tuscaloosa 41 and Mobile 31.

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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The following are the latest county-by-county numbers. The figure in parenthesis is the increase from the previous day.

Autauga – 227 (+11)

Baldwin – 290 (+6)

Barbour – 168 (+17)

Bibb – 76 (+3)

Blount – 63 (+1)

Bullock – 209 (+4)

Butler – 414 (+9)

Calhoun – 162 (+8)

Chambers – 355(+1)

Cherokee – 38 (+1)

Chilton – 101 (+2)

Choctaw – 153 (+2)

Clarke – 145 (+2)

Clay – 27

Cleburne – 15 (+1)

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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Coffee – 236 (+4)

Colbert – 184 (+5)

Conecuh – 41 (+1)

Coosa – 40 (+2)

Covington – 80 (+2)

Crenshaw – 75

Cullman – 144 (+12)

Dale – 117 (+6)

Dallas – 273 (+10)

DeKalb – 248 (+5)

Elmore – 354 (+11)

Escambia – 66 (+9)

Etowah – 257 (+8)

Fayette – 16 (+1)

Franklin –558 (+9)

Geneva – 43 (+3)

Greene – 94

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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Hale – 173 (+14)

Henry – 80 (+5)

Houston – 220 (+9)

Jackson – 78

Jefferson – 1,843 (+33)

Lamar – 26 (+3)

Lauderdale – 164 (+3)

Lawrence – 50 (+2)

Lee – 548 (+7)

Limestone – 108 (+11)

Lowndes – 247 (+8)

Macon – 83 (+4)

Madison – 339 (+11)

Marengo – 170 (+6)

Marion – 122 (+1)

Marshall – 696 (+8)

Mobile – 2,243 (+31)

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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Monroe – 40 (+2)

Montgomery – 1,720 (+73)

Morgan – 285 (+29)

Perry – 40

Pickens – 116 (+3)

Pike – 204 (+6)

Randolph – 127 (+2)

Russell – 172 (+4)

Shelby – 518 (+13)

St. Clair – 123 (+4)

Sumter – 224 (+2)

Talladega – 113 (+4)

https://www.al.com/news/2020/06/alabama-adds-526-coronavirus-cases-since-yesterday-145-from-3-counties-18020-statewide.html

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EXHIBIT 70

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5/27/2020

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https://www.wsfa.com/2020/05/26/alabama-state-health-officer-concerned-about-ongoing-community-transmission-covid-/

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EXHIBIT 71

6/1/2020

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Senator And State Health Officer Tackle Complex Slate Of Coronavirus Questions

Posted 05-30-2020

U.S. Sen. Doug Jones had a Facebook Live press conference with State Health Officer Scott Harris on May 28, 2020.
Nick Patterson, BirminghamWatch

By Nick Patterson, BirminghamWatch

U.S. Sen. Doug Jones and Alabama State Health Officer Dr. Scott Harris continued to sound the alarm today about the continuing rise in COVID-19 cases in the state.

https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-of-coronavirus-questions/

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In a Facebook Live appearance on Jones’ feed, the freshman Democrat and the Republican-appointed

health officer said people needed to see beyond politics and commit to social distancing and wearing

masks if the state’s infection rate is going to drop.

Harris, pointing to coronavirus outbreaks in several parts of the state, said some were spikes traced to particular businesses or health facilities — in Walker and Tuscaloosa Counties, for instance. Other increases, like the high rate of new infections in Montgomery, were not a result of a single location, but clear examples of community spread.

Thus far, Alabama has lost nearly 600 people to coronavirus, with more than 16,500 confirmed cases of the disease. While neither Jones nor Harris called for a return to the stay-at-home order that recently was lifted, both said what happens next depends on how people in the state exercise personal responsibility to slow the spread of the virus.

“Alabama is still seeing a significant number of cases. We have begun to open up … I think, carefully, and wisely, following the science,” Jones said. “And I think the governor has done a very good job of trying to get two messages out. ‘Yes we want to open up. We want to get the economy rolling again. But at the same time, we’ve got to do it safely.’

“And it’s that latter message that I’m not sure folks are hearing as much. You only have to see the pictures from the beaches and other places in Alabama and around the country to see that folks are not quite getting the message that this virus is still out there. It is still dangerous; it’s still deadly.”

Harris said that this week the state had two record days for diagnosis of coronavirus cases. “We had over 600 cases reported in a single day for the first time. And we certainly understand that some of that can reflect increases in numbers of tests that are being performed, but I certainly don’t think that that accounts for all of it. I think we do continue to have disease transmission at a community level throughout many parts of the state. In addition to some hotspots.”

Harris said that, as Alabama reopens, people need to be more careful than ever.

https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-of-coronavirus-questions/

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“Now we do have people back out in public. We do have the economy opening up again,” Harris said.

“We need to remember that the people who are most at risk for serious disease are our senior citizens or

those people who have chronic health problems and, unfortunately, Alabama’s not a healthy state, overall

on average.”

Harris urged people, even if they aren’t worried about getting coronavirus themselves, to take precautions to protect others. “We need you to do that for your family, for your community, for your loved ones, those people that you’re going to be around who are affected by your own decision of whether to wear a mask or not, or whether to gather or not. … It’s important that we all do this together if we’re going to get through this,” Harris said.

More than 5,400 of Alabama’s confirmed COVID-19 cases have happened in the past two weeks, which is almost a third of the state’s total. “That shows that this virus is still in our community. It’s community spread,” Jones said.

“The other thing I want people to remember, too, is this is not just a senior citizens’ virus. It affects everybody,” he said.

“Quite frankly it’s somewhat galling, I think, the cavalier attitude that I see with regard to some of our younger folks and some public officials with regard to the health of our senior citizens.”
More Testing Needed
Jones said that Congress is putting money into funding the development of more COVID-19 tests, faster tests and cheaper tests to make sure more people can be tested on an ongoing basis.

Harris agreed that more and better tests were needed, adding that the next hurdle is to make testing more accessible. “We need to have testing available at the place people go to get their health care routinely,” he said.

“Right now there are definitely barriers, particularly in some of our more rural communities, where if you maybe don’t have good access to health care or if you have access at a clinic and then perhaps you get referred for a COVID test, then you have to find a ride to get to another location where the testing’s going

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on,” he said. “And the testing may not even be available every day of the week … . Clearly those are

barriers and hamper our ability to get people tested.

He said there is a need for more rapid result point-of-care tests, so that people can be tested immediately on their first trip to a doctor or clinic and learn the results within 15 minutes or so.

Harris said another goal is to screen the population in general — not just those who have symptoms.

“Just the huge scale of that testing is something logistically we haven’t figured out yet. But that’s really our goal,” he said.
Second Wave and Balance
Harris said that while it’s difficult to predict the timing or shape of a second wave of infections, previous respiratory pandemics offer some guidance. But, he said, this is called a “novel coronavirus” because it has never been seen before.

The biggest need to prevent that second wave is to change people’s behavior so they respect social distancing guidelines, Harris said.

“If we could wave a wand and everybody literally stayed home for a month and nobody had any interaction, we would all be through with this in a month,” Harris said. “But clearly that’s not realistic because people do have to get out for certain things, but also because some people just haven’t taken it quite seriously enough yet.”

Harris said there is no magic number that would trigger a reversal of the reopening efforts. “Clearly, numbers are very concerning to us as we see deaths, as we see clusters of infections or hotspots,” he said. “There are a whole lot of factors that have to be considered.”

Harris said the governor has to balance concerns.

https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-of-coronavirus-questions/

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“Protecting the health and safety of people is what we do, and I know the governor respects that,” Harris

said. “At the same time, she does have other factors that have to be considered, and so trying to balance

all those public health interests with economic interests and other interests is a very difficult thing for her

to do and we just try to support her in the best way we can with the information we have.”

Government Response
While Jones criticized early efforts at dealing with coronavirus — laying some blame at the feet of China, the WHO and the Trump administration —he said that government is working to alleviate suffering caused by the pandemic.

Jones said Congress is working on how to aid American workers who have lost their jobs in the pandemic. The latest $3 trillion coronavirus relief package was passed by the House two weeks ago but is not likely to get approval in the Senate.

“It is not a perfect bill … . I do think it is a starting point that we need to be talking about as soon as we get back to Washington next week,” he said.

He cited the Paycheck Security Act he introduced, which he said may get into the next package the Senate considers.

“That bill, if passed in one form or another, would give … businesses the opportunity to keep people on their payrolls, provide them benefits. It would use the IRS payroll structure … to get tax credits, refundable tax credits almost immediately to help with their liquidity, and it would really provide that cushion that is necessary for businesses to keep people on the payroll but bring them back to work in a phased-in way that they can do it safely for both the business, their employees and their customers. The whole goal in that is to save lives but also save livelihoods and to save these businesses.”

Jones also said that unemployment benefits need to be modified in light of evidence that some unemployed workers have been making more on unemployment than they did on the job. The federal government has been paying an extra $600 toward weekly unemployment payments. That provision is set to expire at the end of July if it is not renewed.

https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-of-coronavirus-questions/

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“We don’t want to give people the incentives to stay on the unemployment rolls,” he said.

Jones also noted that there is another potential unemployment problem looming “if we don’t do something for city and county governments. Right now, these city and county governments are just hanging on by a thread. They are losing revenue and at some point, it’s going to catch up to them and they’re going to have to start laying off essential workers like firemen, police officers,” he said.

Jones said he hoped the next relief package gives “some robust funding for city and county governments to be able to use this in an appropriate way.”

Jones also said he hopes to see Congress get money to hospitals and health care specialists to prevent pay cuts and layoffs and to the U.S. Postal Service.
Upcoming Elections
He said government does have to take the lead role in the upcoming elections.

He said that Alabama ought to consider ways of making absentee balloting easier. Alabama has instituted rules for the July 14 party runoffs that added coronavirus to the list of valid reasons a person could vote absentee. But no decision has been made about whether to extend that to the November election, and several groups have mounted legal challenges claiming that the requirements for absentee voting create major obstacles for thousands of Alabamians.

One of the reasons cited for avoiding mail-in voting is the possibility of voter fraud. But Jones played down those concerns, saying that there has been little to substantiate fears of wide-scale voter fraud on a statewide level for many years.

He said that, with technology, Alabama could institute safe and secure absentee balloting and even put measures in place for early voting at limited polling places where social distancing is observed. He said that whether the government will abdicate its responsibility in that matter remains to be seen.

https://wbhm.org/2020/senator-and-state-health-officer-tackle-complex-slate-of-coronavirus-questions/

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Case 2:20-cv-00619-AKK Document 46-1 Filed 06/01/20 Page 31 of 32
EXHIBIT 72

Case 2:20-cv-00619-AKK Document 46-1 Filed 06/01/20 Page 32 of 32

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,

Plaintiffs,

v.

Case No.: 2:20-cv-00619-AKK

JOHN MERRILL, et al.,

Defendants.

SUPPLEMENTAL DECLARATION OF DR. ARTHUR L. REINGOLD 1. I, Arthur L. Reingold, make the following supplemental declaration in support of Plaintiffs’ Motion for a Preliminary Injunction: 2. As stated in my initial declaration dated May 7, 2020, the COVID-19 virus “is spread through droplet transmission,” such as “when an infected individual speaks, coughs, sneezes[.]”A recent study confirms that talking not only spreads these droplets, but also that “loud speech can emit thousands of oral fluid droplets per second” which can linger in a closed, stagnant air environment for 8 to 14 minutes.1 This study further confirms my opinion that the increased risk of exposure posed by closed air environments, like polling places, and the need for safe alternatives to voting, such as those proposed by the CDC, that minimize person to person contact. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 30, 2020.

Dr. Arthur L. Reingold
1 Valentyn Stadnytskyi, et al., The airborne lifetime of small speech droplets and their potential importance in SARS-CoV-2 transmission, Proceedings of the National Academy of Sciences of the United States (PNAS), May 13, 2020, available at https://www.pnas.org/content/early/2020/05/12/2006874117

 
 Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 Jun-09 PM 03:32 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA et )

al.,

)

)

v.

)

)

JOHN MERRILL, in his official )

capacity as Secretary of State of

)

Alabama et al.,

)

CASE NO. 2:20-cv-00619-AKK

DEFENDANT MARY B. ROBERSON’S MOTION TO DISMISS Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), Defendant

Mary B. Roberson, in her official capacity as Circuit Clerk of Lee County, Alabama, (“Mrs. Roberson”) moves to dismiss all of Plaintiff’s claims against her.1

Despite naming Mrs. Roberson in her official capacity as circuit clerk, Plaintiffs’

allegations focus solely on Mrs. Roberson’s role as absentee election manager

(“AEM”) for Lee County. Plaintiffs seek to enjoin certain actions under the control

of AEMs or of other officials that are not parties to this suit. However, as the Court

already knows, Mrs. Roberson has opted not to serve as Lee County’s AEM for the

remainder of 2020, the relevant time period in Plaintiffs’ complaint. See, e.g.,

[Doc. 1 at 53–54; Doc. 37-1 at 2, 6–8]. Otherwise, none of the claims in Plaintiffs’

1 Consistent with the Court’s standing order regarding motions under Rule 12(b)(6), the undersigned conferred, by telephone and by electronic mail, with counsel for Plaintiffs regarding the perceived deficiencies in Plaintiffs’ Complaint. Despite cordial discussions, the Parties did not reach an agreement regarding the sufficiency of the pleadings.

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 2 of 13
complaint, even if successful, implicate Mrs. Roberson’s other duties as circuit clerk (or any other position). Because Mrs. Roberson is powerless to provide the relief Plaintiffs seek, the Court should dismiss Plaintiffs’ claims against Mrs. Roberson as failing to state a plausible claim or lacking subject-matter jurisdiction.
To the extent Plaintiffs asserted any claims against Mrs. Roberson in her official capacity as AEM for Lee County, the Court should substitute Lee County’s new AEM. See Fed. R. Civ. P. 25(d).
Factual and Procedural Background Plaintiffs filed the present suit against the State of Alabama, the Governor, the Secretary of State, several circuit clerks, and an AEM seeking injunctive and declaratory relief relating to three “Challenged Provisions” of Alabama election law for remaining elections in 2020: (1) the witness requirement for absentee ballots, see Ala. Code §§17-11-7 to 17-11-10; (2) the photo ID requirement for absentee ballots, id. at §§ 17-9-30(b), 17-11-9, 17-11-10(c); and (3) to compel the use of curbside voting. See, e.g., [Doc. 1 at 3, 52–54]. Plaintiffs also moved for a preliminary injunction for these Challenged Provisions for the upcoming July 14, 2020, primary runoff elections. See generally [Docs. 15, 20-1]. Mrs. Roberson was served with process on May 19, 2020, and she responded to the motion for preliminary injunction and informed the Court she was no longer serving as Lee County’s AEM. See generally [Docs. 29, 37-1, 38, 41].
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Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 3 of 13
Argument I. Mrs. Roberson is no longer the AEM, her successor should be
substituted, and Mrs. Roberson is due to be dismissed in her official capacity as circuit clerk. a. James Majors should be substituted for Mary Roberson. Lee County’s new AEM is due to be substituted for Mrs. Roberson. The Court need not dismiss Plaintiffs’ claims against Lee County’s AEM just because Mrs. Roberson is no longer in that role. See Fed. R. Civ. P. 25(d). Her successor is automatically substituted, and his name should be added to the proceedings. See id.; Hawthorne v. McCarthy, No. 5:18-cv-00689-MHH, 2020 WL 2811467, at *1 n.2 (N.D. Ala. May 29, 2020) (citing Rule 25(d) and automatically substituting Ryan McCarthy in place of Mark Esper as Secretary of the Army). Mrs. Roberson elected not to serve as Lee County’s AEM for the remainder of 2020, Lee County’s appointing board named James Majors as the new AEM, and Mr. Majors’s information is available on the Secretary of State’s website. [Doc. 37-1 at 2]; Absentee Election Manager, Ala. Sec’y of State, https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager (last visited June 8, 2020) (Exhibit A); Notice of Appt. (May 30, 2020) (Exhibit B). Accordingly, the Court should substitute Mr. Majors for Mrs. Roberson.
3

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b. Plaintiffs’ complaint fails to state any claim against Mrs. Roberson outside of her former role as AEM.
In addition to bringing Mr. Majors in, the Court should let Mrs. Roberson out—completely. Plaintiffs’ suit names Mrs. Roberson in her official capacity as Circuit Clerk of Lee County, yet the allegations within the complaint relate solely to Mrs. Roberson’s former duties as the previous AEM. Nowhere in the four corners of the complaint do Plaintiffs allege any claims against Mrs. Roberson in her remaining duties as circuit clerk. This deficiency demands dismissal.
A Rule 12(b)(6) motion tests “the facial sufficiency of the plaintiff’s statement of claim for relief.” Davis v. Home Buyers Warranty Corp., No. 2:10CV-1815-SLB, 2011 WL 3489886, at *1 (N.D. Ala. Aug. 8, 2011) (citing Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1367 (11th Cir.1997)). Although Plaintiffs need not plead every allegation with precise detail, the complaint must contain some allegations touching each element of a valid claim. See id. (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001)). “The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. The well-pled allegations must nudge the claim ‘across the line from conceivable to plausible.” Id. at *2 (internal quotations omitted) (quoting Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260– 61 (11th Cir. 2009)).
4

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 5 of 13
Plaintiff asks the Court to enjoin the Defendants, including Mrs. Roberson, from effectuating the Challenged Provisions. As circuit clerk, Mrs. Roberson has no authority over any of these provisions, and Plaintiffs do not allege otherwise— because they cannot prove otherwise. To be sure, Mrs. Roberson is named in the suit in her official capacity as Circuit Clerk of Lee County. E.g., [Doc. 1 at 1] (case caption). The opening paragraph, which mentions Mrs. Roberson as circuit clerk, only describes the relief sought, but the remainder of complaint does not establish that Mrs. Roberson can provide the relief. See [Doc. 1 at ¶ 1]. The paragraph identifying Mrs. Roberson, the other circuit clerks, and the Mobile County AEM begins with a non-sentence merely listing names and titles, but the following sentences show the nexus of these defendants to the case:
Each one serves as the absentee ballot manager for federal, state, and county elections in their respective Alabama counties. As the absentee ballot managers, they are charged with enforcing the Witness and Photo ID Requirements, processing and distributing absentee ballot applications, and validating and canvassing absentee ballots. Id. at ¶ 40 (emphasis added). After this paragraph, neither Mrs. Roberson’s name nor the word “clerk” appears in the remainder of the Complaint. The circuit clerk has some duties relating to elections other than the option to serve as AEM. See, e.g., Ala. Code § 17-1-2(1), (6) (serves as member on the appointing board and the canvassing board for non-primary elections); see also id.
5

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 6 of 13
at § 17-11-2 (circuit clerk may decline to serve as AEM). However, the circuit clerk has no involvement with the Challenged Provisions.
The circuit clerk does not enforce the witness requirement. At noon on the day of the election, the AEM collects received absentee ballots, which are still in their affidavit envelopes, and provides them to other appointed election officials, and the election officials “examine each affidavit envelope to determine if the signature of the voter has been appropriately witnessed.” Id. at § 17-11-10(b). After the election officials determine the witness requirement is met, they place the absentee ballots in the ballot box for counting. Id. Prior to turning over the absentee ballots, the AEM collects the absentee ballots and records having received them, but she is not to break the seal of the affidavit envelope. Id. at § 1711-10(a).
The AEM’s and the board of registrars’s duties, not the circuit clerk’s, touch on the photo ID requirement. The AEM receives absentee ballot applications and determines, based on a checklist of statutorily defined parameters, whether the voter needs to provide a copy of photo identification to vote by absentee. Id. at §§ 17-9-30(b), 17-10-2(c). If the AEM determines that the application requires photo ID but the voter does not timely provide it, the AEM can issue a provisional absentee ballot. Id. at §§ 17-9-30(c), 17-10-2(c)(1). The board of registrars, of which the circuit clerk is not a member, certifies provisional ballots for counting
6

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 7 of 13
by confirming the identity of the voter. See id. at §§ 17-10-2(f), (g). Only after the board of registrars certifies and approves a provisional ballot for counting does the canvassing board, on which circuit clerk sits for non-primary elections, count the approved provisional ballots. Id. at §§17-1-2(6), 17-10-2(f). A plain reading of the statute makes clear that Mrs. Roberson—as circuit clerk on the canvassing board for a non-primary—has no discretion but to tabulate provisional ballots certified by the board of registrars. See id. at § 17-10-2(f) (“[T]he canvassing board . . . shall tabulate provisional ballots which have been certified by the board of registrars as cast by registered and qualified voters . . . .”). Again, the circuit clerk has no role in enforcing the photo-ID requirement, only counting certified provisional ballots that other officials certify.
Finally, the circuit clerk has no ability to approve curbside voting. The county commission establishes polling places and assigns voting machines for precincts and polling places. See id. at §§ 17-6-3, 17-6-4. Also, the probate judge is the chief election official of the county, and he oversees the administration of voting procedures and trains poll workers. See id. at § 17-8-9. State law does not provide the circuit clerk authority to establish these procedures.
Not only does the circuit clerk not have the enforcement power over the challenged provisions, Plaintiffs have failed to plead otherwise. The complaint is clear that Plaintiffs are seeking a Court order relating to duties of AEMs, not
7

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 8 of 13
circuit clerks. The parties named in the suit indicate a focus on AEMs because Plaintiffs named the AEMs of Jefferson, Lee, and Mobile Counties, yet they did not separately name the circuit clerk of Mobile County. This leads to the conclusion that Plaintiffs did not join the Mobile County circuit clerk because the Plaintiffs’ focus is on AEMs and not circuit clerks. Given a circuit clerk’s role, in large part, as a non-discretionary vote counter, this makes perfect sense.
With the substitution of Mr. Majors into the suit, the Plaintiffs have their public official to continue with the case. Plaintiffs should not be permitted to bind Mrs. Roberson to the case when they have not made any allegations pleading any claim, let alone a plausible one. Plaintiffs have failed to plead or show that Mrs. Roberson, as circuit clerk, could effect the changes they seek, and the Court should dismiss the claims against Mrs. Roberson. II. The Court lacks subject-matter jurisdiction over the claims against
Mrs. Roberson because of issues relating to standing and immunity. For reasons like those above, the Court also lacks subject-matter jurisdiction over Plaitniffs’ claims against Mrs. Roberson as circuit clerk. No longer the Lee County AEM and only the circuit clerk, Mrs. Roberson cannot enforce the challenged provisions, thus Plaintiffs’ alleged injuries are not traceable to any action by Mrs. Roberson or redressable by an order against her. Moreover, as an officer not charged with enforcing the Challenged Provisions, Mrs. Roberson is protected by Eleventh Amendment immunity.
8

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 9 of 13
Eleventh Amendment immunity is jurisdictional in nature, and it prohibits suits against states or against state officials when the state is the real party in interest. See Edelman v. Jordan, 415 U.S. 651, 678 (1974); Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999) (citations omitted). “[T]he Eleventh Amendment bars suits against state officials in federal court seeking retrospective or compensatory relief, but does not generally prohibit suits seeking only prospective injunctive or declaratory relief.” Summit Med., 180 F.3d at 1337 (emphasis added) (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). However, a state officer who does not have responsibility for enforcing a challenged provision cannot be stripped of this immunity. See id. at 1341 (citation omitted). As shown through this motion, Mrs. Roberson does not enforce the Challenged Provisions, thus she should retain her immunity and be dismissed.
Additionally, while not passing judgment on Plaintiffs’ standing against other defendants in this case, Plaintiffs do not have standing to sue Mrs. Roberson in her role as circuit clerk. Plaintiffs bear the burden of proving the requisite elements of standing.2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). “‘The Art. III doctrine that requires a litigant to have
2 For the sake of streamlining the arguments for the Court, Mrs. Roberson only addresses the causation and redressability prongs of the standing calculus. However, Mrs. Roberson does not concede that Plaintiffs’ have presented a concrete or particularized injury-in-fact. See Lujan, 504 U.S. at 560 (citations omitted).
9

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 10 of 13
“standing” to invoke the power of a federal court is perhaps the most important of these doctrines [that pertain to the case-or-controversy requirement]. “An individual plaintiff has standing under the Constitution’s case-or-controversy limitation in Art. III, § 2, when ‘(1) [the plaintiff] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’” Hossfeld v. Compass Bank, No. 2:16-CV2017-VEH, 2017 WL 5068752, at *2 (N.D. Ala. Nov. 3, 2017) (quoting Friends of the Earth v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).
“Article III standing requires 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 the defendant.’” Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1271 (11th Cir. 2019) (quoting Lujan, 504 U.S. at 560–61). The challenged action must stem from the defendant, not a third party outside of the suit. See id. (citations omitted).
Fair traceability and redressability seemingly overlap and have been described as two facets of causation. See Allen, 468 U.S. at 753 n.19 (citing C. Wright, Law of Federal Courts § 13, p. 68, n. 43 (4th ed. 1983)). “To the extent there is a difference, it is that [traceability] examines the causal connection
10

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 11 of 13
between the assertedly unlawful conduct and the alleged injury, whereas [redressability] examines the causal connection between the alleged injury and the judicial relief requested.” Id. Where the persons or entities that can take the effective action(s) are not parties to the suit, the Court cannot redress the alleged wrong. See Lujan, 504 U.S. at 568–69 (Court’s order would not have been effective because it would not bind non-parties).
Mrs. Roberson is a circuit clerk, a state constitutional officer. Ala. Const. § 160(b). Yet, as discussed above, Mrs. Roberson has no authority to effect change to, enforce, or apply any of the challenged provisions. No longer the AEM, she does not inspect absentee ballot applications for photo ID, and the board of registrars certifies any photo-ID-deficient provisional ballots for counting. See, e.g., Ala. Code §§17-10-2(c), (f), (g). As circuit clerk, Mrs. Roberson does not inspect or enforce the witness requirements for absentee ballots, other election officials do. See id. at § 17-11-10. Finally, Mrs. Roberson cannot establish voting procedures, such as curbside voting, in Lee County; that is left up to other officials not parties to this suit. See id. at§§ 17-6-3, 17-6-4 (county commission); § 17-8-9 (probate judge). Ultimately, all the Challenged Provisions fall under the purview of other officials, including third parties not in this lawsuit.
Thus, as only circuit clerk, Mrs. Roberson has no connection to enforcing the challenged provisions, and she is entitled to Eleventh Amendment immunity.
11

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See Summit Med., 180 F.3d at 1341. Because of her lack of authority, purported
negative effects of the challenged provisions cannot be fairly traced to Mrs.
Roberson. See Cordoba, 942 F.3d at 1271 (quoting Lujan, 504 U.S. at 560–61)
Finally, if the Court did order Mrs. Roberson to take some action, that relief would
be inadequate because Mrs. Roberson does not enforce the challenged
provisions—other non-party officials do. See Lujan, 504 U.S. at 568–69. In sum,
the Court lacks subject-matter jurisdiction because Plaintiffs have not overcome
Mrs. Roberson’s Eleventh Amendment immunity or established they have standing
to bring the claims against Mrs. Roberson, and the Court should dismiss Mrs.
Roberson from this suit.
Conclusion
For these reasons, Mrs. Roberson asks the Court to dismiss her from this
action because there is no plausible or justiciable claim levied against her.
/s/ Robert J. Sewell Attorney for Defendant OF COUNSEL: Brandon K. Essig bessig@lightfootlaw.com Robert J. “Jay” Sewell jsewell@lightfootlaw.com LIGHTFOOT, FRANKLIN & WHITE, LLC The Clark Building 400 20th Street North Birmingham, Alabama 35203 (205) 581-0700 (205) 581-0799 (Facsimile)
12

Case 2:20-cv-00619-AKK Document 54 Filed 06/09/20 Page 13 of 13
CERTIFICATE OF SERVICE I certify that on June 9, 2020, I filed the foregoing document electronically the CM/ECF system, which will automatically serve all counsel of record.
/s/ Robert J. Sewell OF COUNSEL
13

Case 2:20-cv-00619-AKK Document 54-1 Filed 06/09/20 Page 1 of 13

FILED
2020 Jun-09 PM 03:32 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT A

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Alabama Secretary of State



Absentee Election Manager
Home  County Of cial Lookup

County:
Autauga
Absentee Election Manager Beth George
Physical Address: 165 W 5th Street, Prattville, Alabama, 36067
Mailing Address: PO Box 681864, Prattville, Alabama, 36068
Phone Number: 334-358-6718

County:
Baldwin
Absentee Election Manager Jody Wise
Physical Address: 312 Courthouse Square, Suite 10, Bay Minette, Alabama, 36507
Mailing Address: 312 Courthouse Square, Suite 10, Bay Minette, Alabama, 36507
Phone Number: 251-937-0379

County:
Barbour
Absentee Election Manager Paige Smith
Physical Address: 303 East Broad Street Room 201, Eufaula, Alabama, 36027
Mailing Address: 303 East Broad Street Room 201, Eufaula, Alabama, 36027
Phone Number: 334-689-2713

County:
Bibb
Absentee Election Manager Kayla Cooner Physical Address: 35 Court Square East, Centreville, Alabama, 35042

County:
Blount
Absentee Election Manager Don Roybal Physical Address: 220 2nd Ave East, Oneonta, Alabama, 35121

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
Bullock
Absentee Election Manager Rashawn F. Harris Physical Address: 217 North Prairie Street, Union Springs, Alabama, 36089
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Mailing Address:

Mailing Address:

Mailing Address:

35 Court Square East,

220 2nd Ave East, Oneonta, PO Box 230, Union Springs,

Centreville, Alabama, 35042 Alabama, 35121

Alabama, 36089

Phone Number: 205-926-3103

Phone Number: 205-625-4121

Phone Number: 334-738-2280

County:
Butler
Absentee Election Manager Mattie Gomillion
Physical Address: 700 Court Square, Greenville, Alabama, 36037
Mailing Address: PO Box 236, Greenville, Alabama, 36037
Phone Number: 334-382-3521

County:
Calhoun
Absentee Election Manager Shasta Platt
Physical Address: 1702 Noble St., Suite 111, Anniston, Alabama, 36201
Mailing Address: 1702 Noble St., Suite 111, Anniston, Alabama, 36201
Phone Number: 256-241-2822

County:
Chambers
Absentee Election Manager Lisa M. Burdette
Physical Address: 2 Lafayette Street Ste B-114, Lafayette, Alabama, 36862
Mailing Address: 2 Lafayette Street Ste B-114, Lafayette, Alabama, 36862
Phone Number: 334-864-4348

County:

County:

Cherokee

Chilton

Absentee Election Manager Dwayne Amos
Physical Address: 100 Main Street, Room 203, Centre, Alabama, 35960
Mailing Address: 100 Main Street, Room 203, Centre, Alabama, 35960

Absentee Election Manager Glenn McGriff
Physical Address: 500 2nd Avenue North, Clanton, Alabama, 35045
Mailing Address: PO Box 1946, Clanton, Alabama, 35046

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
Choctaw
Absentee Election Manager Carol Mason Physical Address: 117 South Mulberry Avenue Ste 17, Butler, Alabama, 36904 Mailing Address:
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Phone Number:

Phone Number:

117 South Mulberry Avenue

256-927-3637

205-755-4275

Ste 17, Butler, Alabama,

36904

Phone Number: 205-459-6968

County:
Clarke
Absentee Election Manager Summer Padgett
Physical Address: 114 Court Street, Grove Hill, Alabama, 36451
Mailing Address: PO Box 921, Grove Hill, Alabama, 36451
Phone Number: 251-275-3363

County:
Clay
Absentee Election Manager Julie G. Poe
Physical Address: 25 Court Square, Ashland, Alabama, 36251
Mailing Address: PO Box 816, Ashland, Alabama, 36251
Phone Number: 256-354-7926

County:
Cleburne
Absentee Election Manager Warren G. Sarrell
Physical Address: 120 Vickery Street, Suite 202, He in, Alabama, 36264
Mailing Address: 120 Vickery Street, Suite 202, He in, Alabama, 36264
Phone Number: 256-463-2651

County:

County:

Coffee

Colbert

Absentee Election Manager Linda Mills
Physical Address: No 2 County Complex, New Brockton, Alabama, 36351
Mailing Address: PO Box 427, New Brockton, Alabama, 36351

Absentee Election Manager Mark R. Eady
Physical Address: 201 N. Main Street, Tuscumbia, Alabama, 35674
Mailing Address: PO Box 740370, Tuscumbia, Alabama, 35674

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
Conecuh
Absentee Election Manager David Jackson Physical Address: 111 Court Street Room 203, Evergreen, Alabama, 36401 Mailing Address: 111 Court Street Room 203, Evergreen, Alabama, 36401
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Phone Number:

Phone Number:

Phone Number:

334-894-1100

256-386-8511

251-578-7012

County:
Coosa
Absentee Election Manager Richard M. Dean
Physical Address: 9709 US Hwy 231, Rockford, Alabama, 35136
Mailing Address: PO Box 218, Rockford, Alabama, 35136
Phone Number: 256-377-4919

County:
Covington
Absentee Election Manager Amy Jones
Physical Address: 1-K N Court Sq, Andalusia, Alabama, 36420
Mailing Address: 1-K N Court Sq, Andalusia, Alabama, 36420
Phone Number: 334-428-2520

County:
Crenshaw
Absentee Election Manager Sandra Berry
Physical Address: 29 South Glenwood Avenue, Luverne, Alabama, 36049
Mailing Address: P.O. Box 263, Luverne, Alabama, 36049
Phone Number: 334-335-6568

County:

County:

Cullman

Dale

Absentee Election Manager Lisa McSwain
Physical Address: 500 Second Ave SW, Room 303, Cullman, Alabama, 35055
Mailing Address: 500 Second Ave SW, Room 303, Cullman, Alabama, 35055
Phone Number:

Absentee Election Manager Delores P. Woodham
Physical Address: 100 E Court Square, Ozark, Alabama, 36360
Mailing Address: PO Box 1350, Ozark, Alabama, 36361
Phone Number: 334-774-5006

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
Dallas
Absentee Election Manager Lynnethia Robinson Physical Address: 105 Lauderdale Street, Selma,Alabama, 36701 Mailing Address: PO Box 1148, Selma, Alabama, 36702 Phone Number: 334-874-2524
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256-775-4654

County:

County:

DeKalb

Elmore

Absentee Election Manager Todd Greeson
Physical Address: 300 Grand Avenue S Ste 200 , Fort Payne, Alabama, 35967
Mailing Address: PO Box 681149, Fort Payne, Alabama, 35968
Phone Number: 256-845-8525

Absentee Election Manager Michael Dozier
Physical Address: 8935 US Hwy 231, Wetumpka, Alabama, 36092
Mailing Address: PO Box 310, Wetumpka, Alabama, 36092
Phone Number: 334-514-3116

County:
Escambia
Absentee Election Manager John R. Fountain
Physical Address: 314 Belleville Avenue, Brewton, AL 36426
Mailing Address: PO Box 856, Brewton, AL 36427
Phone Number: 251-867-0225 x225

County:

County:

Etowah

Fayette

Absentee Election Manager Cassandra Sam Johnson
Physical Address: 801 Forrest Avenue, Suite 202, Gadsen, Alabama, 35901
Mailing Address: 801 Forrest Avenue, Suite 202, Gadsden, Alabama, 35901
Phone Number: 256-549-2181

Absentee Election Manager Samantha Howard
Physical Address: 113 Temple Ave, Fayette, Alabama, 35555
Mailing Address: PO Box 906, Fayette, Alabama, 35555
Phone Number: 205-932-4617

County:
Franklin
Absentee Election Manager Anita Scott
Physical Address: 410 N Jackson Avenue, Russellville, Alabama, 35653
Mailing Address: PO Box 160, Russellville, Alabama, 35653
Phone Number: 256-332-8861

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

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County:

County:

County:

Geneva

Greene

Hale

Absentee Election Manager Gale Laye
Physical Address: 200 North Commerce, Geneva, Alabama, 36340
Mailing Address: PO Box 86, Geneva, Alabama, 36340
Phone Number: 334-684-5620

Absentee Election Manager Veronica Morton-Jones
Physical Address: 400 Morrow Avenue, Eutaw, Alabama, 35462
Mailing Address: PO Box 307, Eutaw, Alabama, 35462
Phone Number: 205-372-6917

Absentee Election Manager Catrinna Perry
Physical Address: 1001 Main St # 13, Greensboro, Alabama, 36744
Mailing Address: PO Box 69, Greensboro, Alabama, 36744
Phone Number: 334-624-4334

County:
Henry
Absentee Election Manager Shirlene B. Vickers
Physical Address: 101 Court Square, Suite J, Abbeville, Alabama, 36310
Mailing Address: 101 Court Square, Suite J, Abbeville, Alabama, 36310
Phone Number: 334-585-2753

County:
Houston
Absentee Election Manager Carla H Woodall
Physical Address: 114 North Oates Street, Dothan, Alabama, 36303
Mailing Address: PO Drawer 6406, Dothan, Alabama, 36302
Phone Number: 334-671-8700

County:
Jackson
Absentee Election Manager Bart Buchanan
Physical Address: 102 E Laurel St., Scottsboro, Alabama, 35768
Mailing Address: PO Box 459, Scottsboro, Alabama, 35768
Phone Number: 256-574-9380

County: Jefferson

County: Jefferson

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County: Lamar
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Absentee Election Manager

Absentee Election Manager

Absentee Election Manager

(Bessemer)

(Birmingham)

Mary Ann Jones

Karen Dunn-Burks

Jacqueline Anderson-Smith

Physical Address:

Physical Address:

Physical Address:

330 1st Street North East,

1851 2nd Ave. N., Bessemer, 716 Richard Arrington Jr.

Vernon, Alabama, 35592

Alabama 35020
Mailing Address: 1851 2nd Ave. N., Bessemer,

Blvd N Room 500, Birmingham, Alabama, 35203-0102

Mailing Address: PO Box 434, Vernon, Alabama, 35592

Alabama 35020
Phone Number: 205-497-8510

Mailing Address: 716 Richard Arrington Jr. Blvd N Room 500, Birmingham, Alabama,

Phone Number: 205-695-7193

35203-0102

Phone Number: 205-325-5313

County:
Lauderdale
Absentee Election Manager Missy Homan
Physical Address: 200 South Court Street, Florence, Alabama, 35630
Mailing Address: PO Box 795, Florence, Alabama, 35631
Phone Number: 256-760-5728

County:
Lawrence
Absentee Election Manager Sandra Ligon
Physical Address: 14451 Market Street, Suite 300, Moulton, Alabama, 35650
Mailing Address: 14451 Market Street, Suite 300, Moulton, Alabama, 35650
Phone Number: 256-974-2438

County:
Lee
Absentee Election Manager James Majors
Physical Address: 205 South 10th Street, Opelika, Alabama, 36801
Mailing Address: PO Box 1616, Opelika, Alabama, 36803
Phone Number: 334-737-3490

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

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County:

County:

County:

Limestone

Lowndes

Macon

Absentee Election Manager Brad Curnutt
Physical Address: 200 Washington Street W., Athens, Alabama, 35611
Mailing Address: 200 Washington Street W., Athens, Alabama, 35611
Phone Number: 256-216-3875

Absentee Election Manager Johnnie Mae King
Physical Address: 205 East Tuskeena St., Hayneville, Alabama, 36040
Mailing Address: PO Box 235, Hayneville, Alabama, 36040
Phone Number: 334-201-1213

Absentee Election Manager David Love, Jr.
Physical Address: 101 E Rosa Parks Ave. Ste. 300, Tuskegee, Alabama, 36083
Mailing Address: PO Box 830723, Tuskegee, Alabama, 36083
Phone Number: 334-724-2614

County:
Madison
Absentee Election Manager Debra Kizer
Physical Address: 100 Northside Square, Huntsville, Alabama, 35801
Mailing Address: 100 Northside Square, Huntsville, Alabama, 35801
Phone Number: 256-532-3684

County:
Marengo
Absentee Election Manager Kenny Freeman
Physical Address: 101 East Coats Avenue, Linden, Alabama, 36748
Mailing Address: PO Box 480566, Linden, Alabama, 36748
Phone Number: 334-295-2224

County:
Marion
Absentee Election Manager Denise Mixon
Physical Address: 132 Military St S, Hamilton, Alabama, 35570
Mailing Address: PO Box 1595, Hamilton, Alabama, 35570
Phone Number: 205-921-7451

County:

County:

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
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Marshall

Mobile

Monroe

Absentee Election Manager Angie Johnson
Physical Address: 424 Blount Avenue, Suite 201, Guntersville, Alabama, 35976
Mailing Address: 424 Blount Avenue, Suite 201, Guntersville, Alabama, 35976
Phone Number: 256-571-7785

Absentee Election Manager Alleen Barnett
Physical Address: 151 Government St, Mobile, Alabama, 36602
Mailing Address: PO Box 7, Mobile, Alabama 36601-0007
Phone Number: 251-574-6400

Absentee Election Manager Wesley Hines
Physical Address: 65 North Alabama Avenue, Monroeville, Alabama, 36460
Mailing Address: 65 North Alabama Avenue, Monroeville, Alabama, 36460
Phone Number: 251-743-2283

County:
Montgomery
Absentee Election Manager Gina Ishman
Physical Address: 251 S. Lawrence Street, Montgomery, Alabama, 36104
Mailing Address: P.O. Box 1667, Montgomery, Alabama, 36102
Phone Number: 334-832-1281

County:
Morgan
Absentee Election Manager Chris Priest
Physical Address: 302 Lee Street, Decatur, Alabama, 35601
Mailing Address: PO Box 668, Decatur, Alabama, 35602
Phone Number: 256-351-4794

County:
Perry
Absentee Election Manager Mia Jacobs-Turner
Physical Address: 300 Washington Street, Suite 110, Marion, Alabama 36756
Mailing Address: PO Box 505, Marion, Alabama, 36756
Phone Number: 334-683-6106

County:

County:

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County:
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Pickens

Pike

Randolph

Absentee Election Manager Keith "Booty" Cox
Physical Address: 20 Phoenix Avenue, Carrollton, Alabama, 35447
Mailing Address: PO Box 418 , Carrollton, Alabama, 35447
Phone Number: 205-367-2050

Absentee Election Manager Jamie Scarbrough
Physical Address: 120 West Church Street, Troy, Alabama, 36081
Mailing Address: 120 West Church Street, Troy, Alabama, 36081
Phone Number: 334-566-5113

Absentee Election Manager Chris May
Physical Address: 1 Main Street, Wedowee, Alabama, 36278
Mailing Address: PO Box 328 , Wedowee, Alabama, 36278
Phone Number: 256-357-4551

County:
Russell
Absentee Election Manager Jody Sellers
Physical Address: 501 14th Street, Phenix City, Alabama, 36867
Mailing Address: 501 14th Street, Phenix City, Alabama, 36867
Phone Number: 334-298-0516 x2343

County:
Shelby
Absentee Election Manager Mary Harris
Physical Address: 112 North Main Street Rm 128, Columbiana 35051
Mailing Address: PO Box 1810, Columbiana, Alabama, 35051
Phone Number: (205) 669-3779

County:
St. Clair
Absentee Election Manager Ken Crowe
Physical Address: 165 5th Ave Suite 200, Ashville, Alabama, 35953
Mailing Address: 165 5th Ave Suite 200, Ashville, Alabama, 35953
Phone Number: 205-884-2395, option 3

County: Sumter

County: Talladega

Absentee Election Manager

Absentee Election Manager

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

County: Tallapoosa
Absentee Election Manager
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DeVon James

Brian York

Patrick C. Craddock

Physical Address: 115 Franklin St, Livingston, Alabama, 35470

Physical Address: 148 East Street N, Talladega, Alabama, 35160

Physical Address: 125 N Broadnax St, Dadeville, Alabama, 36853

Mailing Address: PO Box 936, Livingston, Alabama, 35470

Mailing Address: PO Box 6137, Talladega, Alabama, 35161

Mailing Address: 125 N Broadnax St, Dadeville, Alabama, 36853

Phone Number: 205-652-2333

Phone Number: 256-761-2102 x1208

Phone Number: (256) 496-3106

County:
Tuscaloosa
Absentee Election Manager Magaria Bobo
Physical Address: 714 Greensboro Avenue Rm 214, Tuscaloosa, Alabama, 35401
Mailing Address: 714 Greensboro Avenue Rm 214, Tuscaloosa, Alabama, 35401
Phone Number: 205-464-8259

County:
Walker
Absentee Election Manager Susan Odom
Physical Address: 1801 3rd Avenue, Suite 205 Jasper, AL 35501
Mailing Address: 1801 3rd Avenue, Suite 205 Jasper, AL 35501
Phone Number: 205-384-7025

County:
Washington
Absentee Election Manager Valerie Knapp
Physical Address: 45 Court Street, Chatom, Alabama, 36518
Mailing Address: PO Box 548, Chatom, AL 36518
Phone Number: 251-847-2239

County:

County:

Wilcox

Winston

Absentee Election Manager Carolyn Davis-Posey

Absentee Election Manager J.D. Snoddy

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

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Physical Address:

Physical Address:

12 Water Street, Camden, AL 25166 Highway 195, Suite B,

36726

Double Springs, AL 35553

Mailing Address: PO Box 608 Camden, AL 36726

Mailing Address: PO Box 220, Double Springs, AL 35553

Phone Number: 334-682-6313

Phone Number: 205-489-5533

Alabama Directory - Online Services - Alabama.gov - Statements & Policies - Feeds Contact Us
P.O. Box 5616 Montgomery, AL 36103-5616 - Phone: (334) 242-7200 - Fax: (334) 242-4993

https://www.sos.alabama.gov/city-county-lookup/absentee-election-manager

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FILED
2020 Jun-09 PM 03:32 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT B

Case 2:20-cv-00619-AKK Document 54-2 Filed 06/09/20 Page 2 of 2
May 30, 2020 To Whom It May Concern:
Due to the resignation of Mary Roberson as Absentee Election Manager, the Lee County Appointing Board hereby appoints James Majors as the Absentee Election Manager for the remainder of the 2020 election cycle.
Bill English, Probate Judge
Jay Jones, Sheriff (abstained from voting)_______________ Mary Roberson, Circuit Clerk

 
 Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 1 of 77
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 Jun-15 PM 05:41 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, ET )

AL.,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN MERRILL, ET AL.,

)

)

Defendants.

)

Civil Action Number 2:20-cv-00619-AKK

MEMORANDUM OPINION

“Voting is the beating heart of democracy. It is a fundamental political

right, because it is preservative of all rights.”1 One group that consistently

exercises this right at higher rates of participation is persons 65 or older.2 It is also

a group that is at substantially higher risk during the current COVID-19 pandemic.

The individual plaintiffs in this case are generally over 65,3 have underlying

medical conditions, and qualify as individuals with disabilities under the

Americans with Disabilities Act. The plaintiffs assert that Alabama’s election

laws—specifically, the requirement that a notary or two witnesses must sign

absentee ballots, the requirement that absentee voters must submit a copy of their

photo ID, and the state’s de facto ban on curbside voting—run afoul of the

1 Dem. Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1315 (11th Cir. 2019) (citation omitted). 2 Voting Rates by Age, https://www.census.gov/library/visualizations/2017/comm/voting-ratesage.html, (last visited June 15, 2020). 3 One individual plaintiff, Eric Peebles, is under 65 and has cerebral palsy. See doc. 16-45 at 7.
1

Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 2 of 77
fundamental right to vote and violate federal law in light of the COVID-19 pandemic. To ensure that the individual plaintiffs and those similarly situated to them can continue to exercise their fundamental political right to vote without jeopardizing their health during this pandemic, the plaintiffs filed this lawsuit on May 1 seeking relief.
COVID-19 is a novel respiratory disease that can cause severe complications, including respiratory failure and death, and it has spread rapidly around the world, resulting in more than 115,000 deaths in the United States alone and leading to numerous restrictions ordered by states to try to curb this extraordinary public health crisis. Although COVID-19 presents risks to the entire population, people who have underlying medical conditions, such as diabetes or hypertension, or who are over 65, African-American, or disabled have substantially higher risk of developing severe cases or dying of COVID-19. The individual plaintiffs are in those high-risk groups, and to protect their health, these plaintiffs have complied with relevant public health guidelines by self-isolating or limiting their interactions with others to reduce their exposure to COVID-19. The plaintiffs contend that the challenged election laws force them and similarly-situated voters to choose between jeopardizing their health by leaving their homes and engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic. And, because we are in the middle of a pandemic that, at least at this juncture, has no end in sight, the plaintiffs seek a
2

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preliminary injunction barring the defendants from enforcing these requirements so that they can exercise their right to vote by absentee ballot or by curbside voting from the safety of their cars in those jurisdictions, if any, that are willing to implement this practice.
On the other hand, the defendants contend that the challenged laws are necessary to preserve the legitimacy of upcoming elections by preventing voter fraud and safeguarding voter confidence. But, the plaintiffs have shown that Alabama has other election law provisions that are effective at preventing fraud and safeguarding voter confidence, including laws requiring all absentee voters to identify themselves by providing a driver’s license number or the last four digits of their social security number and to submit an affidavit signed under penalty of perjury verifying their identity. And, Alabama already waives the photo ID requirement for absentee voters 65 or older who also have a physical infirmity that renders them unable to access their assigned polling place. As to the photo ID requirement, the individual plaintiffs who are 65 or older or who suffer from a disabling condition seek only to be included in this exemption and to allow them to vote by absentee ballot without providing a copy of their photo ID with their absentee ballot applications.
The plaintiffs seek relief that the state already affords to certain individuals (waiver of the photo ID requirement), or, as the defendants acknowledge, is not prohibited by state law (barring enforcement of the de facto ban on curbside
3

Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 4 of 77
voting), or that, in light of other provisions of state election law, will not undermine the state’s interest in preventing voter fraud (waiver of the witness requirement). Therefore, because the plaintiffs have shown that the challenged laws will likely dissuade some citizens from voting and “even one disenfranchised voter . . . is too many,”4 the court finds that the burdens imposed by the challenged election laws on voters at high risk of severe complications or death from COVID19 are not justified by the state’s interests in enforcing the laws.
As a result, and for the reasons explained below, the court will grant the plaintiffs’ motion for a preliminary injunction in part, and, as to the July 14 runoff election, the court will enjoin: (1) the witness requirement for absentee ballots for voters who cannot safely obtain the signatures of two witnesses or a notary public due to the COVID-19 pandemic; (2) the photo ID requirement for absentee voters who are over the age of 65 or disabled and who cannot safely obtain a copy of their photo ID due to the COVID-19 pandemic; and (3) the state’s de facto ban on curbside voting to permit jurisdictions willing to implement such a practice, if any, to do so.
This opinion is divided as follows. Part I briefly outlines the impact of COVID-19 and the plaintiffs’ claims. Part II addresses the defendants’ contentions related to standing, sovereign immunity, mootness, and justiciability. After determining that the issue is properly before the court, Part III turns to the
4 Lee, 915 F.3d at 1321 (citation omitted) 4

Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 5 of 77
plaintiffs’ motion for a preliminary injunction and addresses the plaintiffs’ likelihood of success on the merits of each of their claims. In Part IV, the court addresses the remaining requirements for an injunction. Finally, Part V concludes and describes the injunctive relief the court will grant at this juncture.
I. Alabama has seen over 25,000 confirmed cases, and more than 700 deaths, from COVID-19. Doc. 16-4 at 3; Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html, (last visited June 15, 2020). “At this time, there is no known cure, no effective treatment, and no vaccine.” S. Bay United Pentecostal Church v. Newsom, -- S. Ct. --, 2020 WL 2813056 (May 29, 2020) (Roberts, C.J., concurring). All persons are susceptible to contracting the virus, and people of all demographics have endured severe cases, but some groups have a substantially higher risk of developing complications and dying from COVID-19. Doc. 16-4 at 3–4. Older patients “are at the greatest risk” of experiencing “severe cases, longterm impairment, and death” from the virus. Id. at 3. Additionally, those with preexisting conditions, such as hypertension, certain heart conditions, lung diseases, diabetes, and obesity, “are at high risk of a life-threatening COVID-19 illness.”5
5 These conditions are especially prevalent in Alabama. See Hypertension Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/hypertension_mortality/hypertension.htm, (last visited June 15, 2020); Heart Disease Mortality by State, https://www.cdc.gov /nchs/pressroom/sosmap/heart_disease_mortality/heart_disease.htm, (last visited June 15, 2020); Chronic Lower Respiratory Disease Mortality by State, https://www.cdc.gov
5

Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 6 of 77
Id. at 4. Available evidence also shows that, if infected, “racial and ethnic minority populations, especially African-Americans, are at a substantially elevated risk of developing life-threatening COVID-19 illnesses” and dying. Id.
The virus spreads easily. Id. It spreads “through droplet transmission; that is, when an infected individual speaks, coughs, sneezes, and the like, they expel droplets which can transmit the virus to others in their proximity.” Id. In a “closed, stagnant air environment”—i.e., indoors—these droplets can linger in the air for up to 14 minutes. Doc. 46-1 at 32. The virus can also be spread through contact with a contaminated surface. Id. Some people who are infected with the virus do not show any symptoms, appearing to themselves and to everyone else to be perfectly healthy, rendering them particularly potent agents of transmission. Id. at 5. Even those infected individuals who are symptomatic can be contagious for days before developing any symptoms. Id.
Without a vaccine, the only ways to limit the spread of the virus are “selfisolation, social distancing, frequent handwashing, and disinfecting surfaces.” Id. at 4–5. “Self-isolation involves not physically interacting with those outside one’s household.” Id. at 5. Social distancing means “maintaining at least six feet of distance between individuals.” Id. The Centers for Disease Control (“CDC”) also recommends that people cover their mouth and nose with a cloth mask when they
/nchs/pressroom/sosmap/lung_disease_mortality/lung_disease.htm, (last visited June 15, 2020); Diabetes Mortality by State, https://www.cdc.gov/nchs/pressroom/sosmap/diabetes_mortality/ diabetes.htm, (last visited June 15, 2020); Adult Obesity Maps, https://www.cdc.gov/obesity/data/prevalence-maps.html, (last visited June 15, 2020).
6

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go out in public. Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/prevention.html, (last visited June 15, 2020). Given how easily the virus can spread, the CDC, public health officials, and Alabama Governor Kay Ivey have all emphasized the importance of staying home as much as possible and maintaining at least a six-foot distance with others when outside of the home to minimize the risk of exposure to the virus. Docs. 164 at 5-6; 16-8 at 4; 16-9 at 2.
In light of the dangers posed by COVID-19, Governor Ivey declared a state public health emergency on March 13, 2020. Doc. 16-15. Alabama’s State Health Officer subsequently issued a series of health orders encouraging Alabamians to practice social distancing, and requiring or prohibiting certain actions to slow the spread of the disease. Docs. 16-16; 16-17; 16-18; 16-19; 16-20; 16-21; 34-15. The current “safer at home” order, which expires on July 3, 2020, encourages all individuals in Alabama, and especially people over the age of 65 or with underlying health conditions, to “[m]inimiz[e] travel outside the home.” Doc. 3415 at 3. The order prohibits “non-work related gatherings of any size . . . that cannot maintain a consistent six-foot distance between persons from different households.” Id. In spite of these efforts, the number of COVID-19 cases throughout Alabama continues to increase. Daily Confirmed New Cases, https://coronavirus.jhu.edu/data/new-cases-50-states/alabama, (last visited June 15, 2020); Daily and Cumulative Case Counts, https://alpublichealth.maps.arcgis.com/
7

Case 2:20-cv-00619-AKK Document 58 Filed 06/15/20 Page 8 of 77
apps/opsdashboard/index.html#/6d2771faa9da4a2786a509d82c8cf0f7, (last visited June 15, 2020).
Alabama has also taken a number of actions in response to COVID-19 regarding the upcoming primary runoff election. First, invoking her emergency powers, Governor Ivey moved the runoff election from March 31 to July 14, 2020. Docs. 16-31 at 2; 34-1 at 8. Alabama’s Secretary of State John Merrill also promulgated an emergency regulation providing that in light of the state of emergency caused by the COVID-19 pandemic, “any qualified voter who determines it is impossible or unreasonable to vote at their polling place for the Primary Runoff Election of 2020 . . . shall be eligible to” apply for an absentee ballot. Doc. 34-1 at 60. The regulation further instructs “[a]ll Absentee Election Managers and any other election officials of this state” to “accept all absentee ballot applications filed” pursuant to the new rule. Id. In effect, for the runoff election in July only, the emergency regulation allows any voter who does not wish to vote in person because of COVID-19 to vote absentee.
But Alabama still requires voters to comply with existing rules for casting absentee ballots. For example, the emergency regulation maintains the requirement that voters must submit a copy of their photo ID with their absentee ballot application. See doc. 34-1 at 60; Ala. Code § 17-9-30(b).6 And, for their
6 There are exceptions to the photo ID requirement. Relevant here, voters eligible to vote absentee under the Voting Accessibility for the Elderly and Handicapped Act do not have to submit a copy of their photo ID to receive an absentee ballot. See Ala. Code § 17-9-30(d). This
8

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votes to be counted, all absentee voters must return with their absentee ballot an affidavit that is signed by a notary public or two adult witnesses who witnessed the voter sign the affidavit. Ala. Code § 17-11-7(b). However, because “person-toperson contact increases the risk of transmitting COVID-19,” Governor Ivey issued a rule permitting notaries to witness the signing of absentee affidavits through videoconferencing. Doc. 16-17 at 2-3.
The plaintiffs in this lawsuit include four individual plaintiffs—Robert Clopton, Eric Peebles, Howard Porter, and Annie Carolyn Thompson. Doc. 1 at 9– 12. All four are at higher risk of contracting a severe case of the virus due to their age, race, or underlying medical conditions, and for that reason each plaintiff has thus far exercised great lengths to self-isolate and limit his or her exposure to the virus. Id. at 9–12. Though each plaintiff is registered and intends to vote, the plaintiffs maintain that complying with Alabama’s election laws would force them to increase their exposure to the virus. Id.
The individual plaintiffs all say they would prefer to vote absentee. But Clopton, Peebles, and Thompson allege that they cannot comply with the witness requirement without leaving their home or bringing in someone outside of their household. Doc. 16-45 at 2–10, 17–21. And Thompson tells the court that she cannot comply with the photo ID requirement without going to a business to make
exception applies to voters who are either disabled or 65 or older and are “unable to access his or her assigned polling place.” Ala. Admin. Code R. 820-2-9-.12(3).
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a copy of her ID. Doc. 16-45 at 12–21. All four individual plaintiffs allege that, if they cannot vote absentee, they would prefer to utilize a curbside voting method, rather than enter a polling place. Doc. 16-45 at 2–21. Alabama does not officially prohibit curbside voting, but Secretary Merrill has “on at least two occasions,” shut down attempts by counties to establish curbside voting operations because they were not, in his view, complying with the law. Doc. 34-1 at 21.
The plaintiffs in this lawsuit also include three organizations: People First of Alabama, Greater Birmingham Ministries (“GBM”), and the Alabama State Conference of the National Association for the Advancement of Colored People (“Alabama NAACP”). Doc. 1 at 8, 12–14. People First is “a group of people with developmental disabilities,” and the organization “assists its members in accessing . . . full citizenship with equal rights,” including “securing access to full and equal voting rights.” Id. at 8. GBM, which has about 5,000 members, is “a multi-faith, multi-racial membership organization” that “actively opposes state laws, policies, and practices that result in the exclusion of vulnerable groups or individuals from the democratic process.” Id. at 12–13. The Alabama NAACP “works to ensure the political, educational, social, and economic equality of African-Americans and all other Americans.” Id. at 14. “Two central goals of the Alabama NAACP are to eliminate racial discrimination in the democratic process, and to enforce federal laws and constitutional provisions securing voting rights.” Id.
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The organizational plaintiffs allege that they have many members who are in the same predicament as the individual plaintiffs—they are eligible to vote and would like to, but they are afraid that complying with Alabama’s witness and photo ID requirements would force them to violate social-distancing protocol. Id. at 8, 12–14. These members would also prefer to vote curbside, rather than inside the polling place, if they cannot vote absentee. Id. The organizational plaintiffs further allege that given the heightened interest in absentee voting due to expanded eligibility and fear of viral exposure at polling places, Alabama’s election laws are forcing them to divert resources away from their usual get-out-the-vote expenditures and towards educating their members about and helping them to comply with absentee voting procedures. Id.
Based on these allegations, the individual and organizational plaintiffs move the court to enjoin three election practices in Alabama—the witness requirement, the photo ID requirement, and the state’s de facto ban on curbside voting. Doc. 15. The plaintiffs allege that these election practices violate (1) the individual plaintiffs’ and the organizational plaintiffs’ members’ right to vote under the First and Fourteenth Amendments, (2) Title II of the Americans with Disabilities Act (“ADA”), and (3) for the witness requirement only, § 201 of the Voting Rights Act (“VRA”). Id. The plaintiffs bring these claims against the following defendants in their official capacity: Governor Kay Ivey; Secretary of State John Merrill; Alleen Barnett, the absentee ballot manager for Mobile County; Jacqueline Anderson-
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Smith, the Circuit Clerk of Jefferson County; Karen Dunn Burks, the Deputy Circuit Clerk of the Bessemer Division of Jefferson County; and Mary B. Roberson, the Circuit Clerk of Lee County. Doc. 1 at 15–16. The plaintiffs also bring the ADA and VRA claims against the State of Alabama.
The plaintiffs ask the court to enjoin the challenged practices for all the coming 2020 elections: the primary runoff on July 14, the special primary election on August 4, and the general election on November 3. Though the state has announced emergency measures for the July election—namely, permitting any voter “who determines it is impossible or unreasonable to vote” in person because of COVID-19 to vote absentee, doc. 16-32—the state has not yet said whether these measures will apply for the elections in August and November. Whether these measures are in place could change the outcome of the analysis. For this reason, it is premature for the court to consider a preliminary injunction for the elections in August and November. At this time, the court considers only whether to grant the preliminary injunction for the election on July 14, but the plaintiffs are free to move for a separate preliminary injunction regarding the other elections.
II. The defendants run the gamut in challenging the justiciability of this case. They maintain that the plaintiffs do not have standing to pursue their claims, that the defendants are entitled to state sovereign immunity, that the claims against Defendant Roberson are moot, and that the case presents non-justiciable political
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questions. With the exception of Governor’s Ivey claim to immunity, the court rejects the defendants’ arguments.
A. To properly invoke the jurisdiction of the federal courts, the litigants must have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing consists of three elements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). As the party seeking the preliminary injunction, the plaintiffs bear the burden of establishing these elements, id., which the court addresses in turn.
1. To establish an injury in fact, a plaintiff must show “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. In multipleplaintiff cases like this, “[a]t least one plaintiff must have standing to seek each form of relief requested in the complaint.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). And if there is one plaintiff “who has demonstrated standing to assert these rights as his own,” the court “need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit.”
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Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977).
In this case, the plaintiffs seek three injunctions: (1) to suspend the enforcement of the photo ID requirement for absentee voters; (2) to suspend the enforcement of the witness requirement; and (3) to lift the ban on curbside voting. The court will thus consider whether the plaintiffs have established an injury for each form of relief sought.
a. For the photo ID requirement, Plaintiffs Porter and Thompson, both registered voters who intend to vote in the runoff election on July 14, claim that the requirement burdens their right to vote. Docs. 16-45 at 12–20. Their injury is a given and should not be challenged. After all, it is settled law that when plaintiffs “are required to obtain photo identification before they can vote, [t]he imposition of that burden is an injury sufficient to confer standing regardless of whether [the plaintiffs] are able to obtain photo identification.” Common Cause v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009). In fact, even if Porter and Thompson already had a copy of their IDs available, they would still have standing to challenge the requirement. The Eleventh Circuit explained why: Even if [the plaintiffs] possessed an acceptable form of photo identification, they would still have standing to challenge the statute that required them to produce photo identification to cast an in-person ballot. . . . Requiring a registered voter either to produce photo identification to vote in person or to cast an absentee or provisional
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ballot is an injury sufficient for standing. The inability of a voter to pay a poll tax, for example, is not required to challenge a statute that imposes a tax on voting, and the lack of an acceptable photo identification is not necessary to challenge a statute that requires photo identification to vote in person. Id. at 1351–52 (citations omitted). Simply put, a voter always has standing to challenge a statute that places a requirement on the exercise of his or her right to vote. Notwithstanding this settled law, the defendants argue there is no injury adequate to confer standing, because all absentee voters must comply with the photo ID requirement (except for those voters exempted by federal law, see Ala. Code 17-9-30(c)), and all voters face the risk of contracting COVID-19. The defendants misunderstand the “particularized” requirement for standing. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at 1548 (citation omitted). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Id. at 1548 n.7. Thus, it does not matter that the injury is “widely shared,” so long as the plaintiff “suffers a particularized harm.” Id. Both Porter’s and Thompson’s injury is particularized, because each must comply with the photo ID requirement. The defendants next argue that the injury is speculative, rather than actual or imminent, because it is unknown how serious a risk COVID-19 will present in
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mid-July.7 This argument mischaracterizes the alleged injury. The injury is not that Porter or Thompson will contract COVID-19, or even that they will be forced to take a serious risk of contracting COVID-19. The injury is that they will have to comply with the state’s photo ID requirement in order to vote absentee. This injury is not speculative; it is “certainly impending,” since they intend to vote in the election on July 14. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
b. The injury analysis for the witness requirement is the same. Plaintiffs Clopton and Thompson claim that the witness requirement burdens their right to vote. Docs. 16-45 at 2–5, 17–20. As registered voters who intend to vote in the runoff election on July 14, id., they have standing to challenge the witness requirement. The requirement that these plaintiffs must find two adult witnesses or a notary public in order to vote absentee is itself an injury sufficient to confer standing. See Common Cause, 554 F.3d at 1351. The defendants’ arguments that the injury is too speculative and not particularized enough to confer standing are rejected for the same reasons explained above.
7 The data, which continues to show an increase of cases in Alabama, belies this contention. See Daily Confirmed New Cases, https://coronavirus.jhu.edu/data/new-cases-50-states/alabama, (last visited June 15, 2020); Daily and Cumulative Case Counts, https://alpublichealth.maps.arcgis.com/apps/opsdashboard/index.html#/6d2771faa9da4a2786a50 9d82c8cf0f7, (last visited June 15, 2020).
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c. For the ban on curbside voting, each of the four individual plaintiffs, claims that the ban burdens his or her right to vote. Docs. 16-45 at 1–20. If there is a ban on curbside voting, it would likely constitute an injury sufficient to confer standing. But the defendants deny that there is a ban on curbside voting. As the defendants acknowledge, “no Alabama statute specifically prohibits curbside voting.” Doc. 36 at 9. However, “on at least two occasions,” when a county established a curbside voting operation, Secretary Merrill shut it down. Doc. 34-1 at 21. He “contacted the counties in question and advised them that they were conducting an election in violation of State law.” Id. Secretary Merrill did so because, in his view, the curbside voting operations did “not legally comply with Alabama laws,” including “the voter personally signing the poll list, ballot secrecy, and ballot placement in tabulation machines.” Id. Secretary Merrill maintains that it “would be completely unfeasible” to implement curbside voting and otherwise comply with Alabama election law. Id. at 22. Given Secretary Merrill’s professed view that curbside voting does not comply with Alabama law, and his demonstrated power to shut down any county’s attempt to establish a curbside voting operation, the court finds that Secretary Merrill has effectively implemented a ban on curbside voting in Alabama.
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To summarize, the individual plaintiffs have suffered an injury for standing purposes for each form of relief sought.8 The court thus proceeds to the second element of standing: traceability.
2. To establish traceability, the plaintiff must show “a causal connection between her injury and the challenged action of the defendant—i.e., the injury must be fairly traceable to the defendant’s conduct, as opposed to the action of an absent third party.” Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (en banc) (citations omitted). Before evaluating traceability for the claims discretely, the court first responds briefly to the defendants’ general argument that the plaintiffs’ injury is caused by the virus, not the state. This argument again mischaracterizes the injury. The injury alleged is the state’s decision to force the individual plaintiffs to comply with the complained-of requirements for voting. The virus might make the injury severe—because complying with the requirements might expose the plaintiffs to serious health risks—but it does not cause the legal injury. With that said, the
8 Because the court has identified a plaintiff with standing for each form of relief sought, the court need not address the defendants’ arguments about whether the organizational plaintiffs lack standing. But the organizational plaintiffs likely do have standing under existing precedent. See Common Cause, 554 F.3d at 1350–51 (finding that the NAACP had standing to challenge Georgia’s photo ID requirement because it would have to divert resources to educate and assist voters with complying); Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (finding that organizational plaintiffs had standing to sue on behalf of their members).
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court will consider whether the alleged injury can be traced to a defendant for each claim, starting with the photo ID requirement.
a. The court finds that the individual plaintiffs’ injury of complying with the photo ID requirement is traceable to the defendants serving as absentee election managers (“AEMs”). Alabama law provides that AEMs “shall determine whether an applicant for an absentee ballot is obligated to produce identification.” Ala. Code § 17-11-9. Furthermore, when a voter submits an application to vote by absentee ballot, the AEM “shall determine whether identification has been properly provided.” Ala. Code § 17-10-2(c)(1). If identification has not been properly provided with the application, the AEM issues a provisional ballot and notifies the voter. Id. In other words, the AEM interprets the law and decides whether a photo ID is required, and screens the absentee ballot applications to see if the voter has provided the photo ID. These duties clearly show that AEMs are charged with enforcing the photo ID requirement for absentee voters.9
b. Likewise, the injury of complying with the witness requirement is traceable to the AEMs. AEMs are charged with administering absentee voting in their respective county. See Ala. Code § 17-11-2 (“In each county there shall be an
9 The fact that the board of registrars, in conjunction with the canvassing board, is responsible for counting the provisional ballots, see Ala. Code § 17-10-2(g)–(f), does not somehow negate the AEMs role in screening the ballots in the first instance.
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‘absentee election manager,’ who shall fulfill the duties assigned by this chapter.”). In this capacity, the AEMs “conduct or oversee the absentee ballot process.” Doc. 34-1 at 2. For this reason, the affidavit that the witnesses are required to sign is addressed and delivered to the AEM. Ala. Code § 17-11-9. After the AEM receives the absentee ballots, he or she turns them over to the local election officials for tallying. Ala. Code § 17-11-10.
The defendants attempt to dodge traceability by focusing on the local officials who count the absentee ballots, contending that it is these individuals who check for witness signatures. Here is how the process works: On election day, the AEM delivers the absentee ballots to absentee election officials, who “shall examine each affidavit envelope to determine if the signature of the voter has been appropriately witnessed.” Ala. Code § 17-11-10(b). For those that are appropriately witnessed, “the election officials shall . . . open [the] affidavit envelope and deposit the ballot envelope . . . into a sealed ballot box.” Id. Absentee ballots that are not appropriately witnessed are not counted. Id.
The defendants’ argument turns standing into a shell game. It strains credulity to suggest that the plaintiffs should have brought their claim against the local poll workers who count the ballots. There are hundreds of these officials,10
10 See Ala. Code § 17-11-11(a) (specifying that absentee election officials shall consist of one inspector and at least three clerks for each absentee precinct).
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and they are not even selected until 15 to 20 days before the election.11 Furthermore, according to the state, the AEMs also count the absentee ballots “in conjunction with other local officials.” Doc. 34-1 at 2. Based on that representation, it appears that the AEMs may also check the absentee ballots for witness signatures.
In the end, the court is satisfied that the AEMs—as the officials in charge of the absentee voting process who oversee the counting of absentee ballots—are proper defendants for a claim challenging the requirement that an absentee ballot must be witnessed to be counted.
c. The ban on curbside voting can easily be traced to Secretary Merrill. As the defendants acknowledge, state law does not prohibit curbside voting. Instead, Secretary Merrill took it upon himself, “on at least two occasions,” to shut down county efforts to establish curbside voting operations, because he believes such operations do not comply with other election laws. Doc. 34-1 at 21. To the extent a ban exists, it exists because of Secretary Merrill, and the injury can thus be fairly traced to him.
11 See Ala. Code § 17-8-1 (providing that absentee election officials shall be appointed by the appointing board “not more than 20 nor less than 15 days before the holding of any election”).
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3. Finally, to establish redressability, a decision in the plaintiffs’ favor must “significantly increase the likelihood” that the plaintiffs’ injury will be redressed. Lewis, 944 F.3d at 1296 (citation omitted). Furthermore, “it must be the effect of the court’s judgment on the defendant—not an absent third party—that redresses the plaintiff’s injury, whether directly or indirectly.” Id. (citation omitted). Accordingly, for each claim, the court considers whether it can supply relief that redresses the plaintiffs’ injury.
a. For the photo ID requirement, the question is whether an injunction ordering the defendants not to enforce the requirement for absentee voters would successfully allow the plaintiffs to vote absentee without presenting photo ID. The court finds that, at the very least, an injunction directed to the defendant AEMs would provide redress. The AEMs determine whether a photo ID is required for each absentee ballot received. Ala. Code § 17-11-9. If the court ordered the AEMs not to enforce the photo ID requirement, the AEMs would simply note for each absentee ballot that a photo ID was not required, and the ballot could be counted without issue. Thus, because an injunction directed to the defendant
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AEMs would likely redress their injury, the plaintiffs have established standing to pursue the photo ID claim.12
b.
Regarding the witness requirement, the plaintiffs first argue that the court
could redress their injury by ordering Secretary Merrill not to enforce the witness
requirement for absentee voters. It is tempting to agree that an injunction directed
to Secretary Merrill would significantly increase the likelihood of relief for the
plaintiffs. Secretary Merrill is “the chief elections official in the state.” Ala. Code
§ 17-1-3(a). As such, he has the authority, and indeed the obligation, to tell election officials how to implement election laws.13 This authority empowers
Secretary Merrill to instruct election officials to ignore the witness requirement, so
that ordering Secretary Merrill not to enforce the witness requirement would redress the plaintiffs’ injury.14
12 To be sure, an injunction directed to the AEMs would provide relief only in the counties where the defendant AEMs serve—i.e., Jefferson County, Baldwin County, and Lee County. To provide statewide relief, an injunction against Secretary Merrill would have to be effective. Based on the Eleventh Circuit’s precedent in Jacobson v. Florida Secretary of State, 957 F.3d 1193 (11th Cir. 2020), the court does not believe it can rely on an injunction directed to Secretary Merrill to establish standing. 13 See Ala. Code 17-1-3(a) (“The Secretary of State . . . shall provide uniform guidance for election activities.”); Ala. Code § 17-2-4(f) (“The Secretary of State . . . shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the state.”). 14 See Lewis, 944 F.3d at 1301 (noting that it is sufficient for a judgment to redress a plaintiff’s injury “indirectly”).
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In fact, the Fifth Circuit, in almost precisely the same context, adopted this theory of redressability.15 However, the Eleventh Circuit—which this court is of
course bound to follow—recently rejected a similar theory. See Jacobson v. Fla.
Sec’y of State, 957 F.3d 1193, 1207–12 (11th Cir. 2020). In Jacobson, the
plaintiffs challenged “the order in which candidates appear on the ballot in
Florida’s general elections.” Id. at 1197. The court determined that the plaintiffs
alleged injury “is neither fairly traceable to [Florida’s Secretary of State] nor
redressable by a judgment against her because she does not enforce the challenged
law.” Id. at 1198. Instead, “Florida law tasks” the local Supervisor of Elections
for each of Florida’s 67 counties “with placing candidates on the ballot in the
correct order.” Id. at 1199. These supervisors are independent of the Secretary.
Id. at 1207. Thus, “[a]n injunction ordering the Secretary not to follow the ballot
statute’s instructions for ordering candidates cannot provide redress, for neither she
nor her agents control the order in which candidates appear on the ballot.” Id. at
1208. And any judgment the court issued would not be binding against the
supervisors who actually enforced the provision, since they were not parties to the
suit. Id.
15 Texas Democratic Party v. Abbott, -- F.3d --, 2020 WL 2982937 (5th Cir. 2020) (holding that because “the Secretary of State has the duty to obtain and maintain uniformity in the application, operation, and interpretation of Texas’s election laws,” claims seeking to expand access to absentee voting in Texas were traceable to and redressable by the Secretary of State) (citation omitted); see also OCA-Greater Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017) (holding that the “invalidity of a Texas election statute is, without question, fairly traceable to and redressable by . . . its Secretary of State, who serves as the chief election officer of the state”) (citation omitted).
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The Eleventh Circuit rejected the idea that “the Secretary’s position as the chief election officer of the state” established standing, because nothing connected the Secretary specifically to the order of candidates on the ballot. Id. (citation omitted). The court also rejected the argument “that the Secretary’s authority to prescribe rules about ballot layout, and to provide written direction to the Supervisors,” establishes standing. Id. at 1211. The Secretary’s “power to prescribe rules and issue directives about ballot order, which the Supervisors might well be obliged to follow, says nothing about whether she possesses authority to enforce the complained-of provision.” Id. at 1211 (citations omitted) (emphasis in original). And the court indicated that “an injunction ordering the Secretary to promulgate a rule requiring the Supervisors to place candidates on the ballot in an order contrary to the ballot statute . . . would have raised serious federalism concerns, and it is doubtful that a federal court would have authority to order it.” Id. at 1211–12.
Based on this precedent, the court is compelled to find that an injunction against Secretary Merrill would not redress the plaintiffs’ injury. In Jacobson, the court found that the plaintiffs “should have sued the Supervisors of Elections instead of the Secretary of State.” Id. at 1212. Here, unlike in Jacobson, the plaintiffs did what the Eleventh Circuit suggested—they sued the local officials in charge of the absentee voting process: the AEMs.
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Consistent with Jacobson, the court finds that an injunction ordering the defendant AEMs not to enforce the witness requirement would likely redress the plaintiffs’ injury. The AEMs receive the absentee ballots, Ala. Code § 17-11-9, deliver them to the absentee election officials, § 17-11-10, and count the ballots “in conjunction with [these] other local officials,” doc. 34-1 at 2. Given the AEMs role in overseeing the absentee ballot process, if the court ordered the AEMs not to enforce the witness requirement, it is likely that unwitnessed absentee ballots would be counted.
c. For redressability of the curbside voting claim, the question is whether a judgment would redress the plaintiffs’ injury by lifting the ban on curbside voting. To be clear, the plaintiffs are not asking the court to implement curbside voting across Alabama.16 Instead, the plaintiffs’ request is merely to enjoin Secretary Merrill from prohibiting counties from establishing curbside voting operations. See docs. 20-1 at 9–10; doc. 46 at 2. As the defendants acknowledge, “no Alabama statute specifically prohibits curbside voting.” Doc. 36 at 9. The practice is only prohibited because Secretary Merrill has acted to shut down curbside voting operations when counties have attempted to provide them. Doc. 34-1 at 21. Thus,
16 Nor would such an order supply standing, since (1) county commissions are responsible for “designat[ing] the places of holding elections,” Ala. Code § 17-6-4(a); (2) the county commissions are not defendants in this case; and (3) “it must be the effect of the court’s judgment on the defendant—not an absent third party—that redresses the plaintiff’s injury,” Lewis, 944 F.3d at 1296 (citation omitted).
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if the court enjoined Secretary Merrill from banning otherwise lawful curbside

voting operations, counties would be free to provide them, if they are so inclined,

and the ban would be lifted.

*

*

*

In conclusion, the plaintiffs have demonstrated that they likely have standing

to pursue each of their claims. The court thus proceeds to the defendants’ other

arguments regarding the case’s justiciability.

B.

The defendants assert that they are each entitled to sovereign immunity. The

doctrine of state sovereign immunity “prohibits suits against state officials where

the state is, in fact, the real party in interest.” Summit Med. Assocs. v. Pryor, 180

F.3d 1326, 1336 (11th Cir. 1999). However, there is an exception for “suits

against state officers seeking prospective equitable relief to end continuing

violations of federal law.” Id. (citing Ex parte Young, 209 U.S. 123 (1908)). The

Young doctrine thus permits “the exercise of the judicial power of the United States

where a plaintiff seeks to compel a state officer to comply with federal law.” Id.

But the Young doctrine does not apply “unless the state officer has some

responsibility to enforce the statute or provision at issue.” Id. at 1341; Ex parte

Young, 209 U.S. at 157 (“[I]t is plain that such officer must have some connection

with the enforcement of the act.”).

The analysis for whether a state official has “some connection” to the
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challenged statute is similar to the analysis for whether a state official is a proper defendant for the purposes of traceability and redressability. See Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013). But they are still “separate issues.” Jacobson, 957 F.3d at 1210. The Eleventh Circuit suggested that the standard for qualifying as a proper defendant under Ex parte Young is less exacting:
To be a proper defendant under Ex parte Young—and so avoid an Eleventh Amendment bar to suit—a state official need only have ‘some connection’ with the enforcement of the challenged law. In contrast, Article III standing requires that the plaintiff’s injury be ‘fairly traceable’ to the defendant’s actions and redressable by relief against that defendant. Id. (citations omitted). Thus, a state official could be a proper defendant under Ex parte Young, but not a proper defendant for the purposes of standing. See id. (observing that just because “the Florida Secretary of State was a proper defendant under Ex parte Young,” did not mean the Secretary was a proper defendant under Article III). With that said, the court finds that the defendant AEMs—assuming that they are state officials—are not entitled to sovereign immunity. For the reasons explained above, the AEMs are closely connected to the enforcement of the witness and photo ID requirements for absentee voting. If the AEMs are sufficiently connected to the challenged provisions to establish traceability and redressability, they are necessarily sufficiently connected to satisfy the Young
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doctrine. For the same reason, Secretary Merrill is sufficiently connected to the ban on
curbside voting to satisfy the Young doctrine. The court also finds that Secretary Merrill is sufficiently connected to the witness and photo ID requirements. As noted previously, Secretary Merrill is tasked with “provid[ing] uniform guidance” on the administration of election law. Ala. Code § 17-1-3(a). He is also charged with adopting standards “that define what constitutes a vote and what will be counted as a vote.” Ala. Code § 17-2-4(f). With regard to the photo ID requirement specifically, Secretary Merrill is required to inform the public about the requirement, Ala. Code § 17-9-30(n), and to adopt rules indicating to AEMs whether a photo ID is required, Ala. Code § 17-11-5. In the court’s view, these and other provisions establish “some connection” between Secretary Merrill and the enforcement of the challenged provisions. Accordingly, he is not entitled to sovereign immunity.
However, the court finds that Governor Kay Ivey is entitled to sovereign immunity. To establish the requisite connection, the plaintiffs rely on the Governor’s general executive power to enforce the laws, as well as her emergency powers, with which she could suspend the challenged provisions. A governor’s “general executive power is not a basis for jurisdiction in most circumstances. If a governor’s general executive power provided a sufficient connection to a state law to permit jurisdiction over [her], any state statute could be challenged simply by
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naming the governor as a defendant.” Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003).17 Similarly, the Governor’s emergency powers do not supply the requisite connection. Otherwise, the Governor would be a proper defendant in virtually every suit challenging a state statute. Accordingly, Governor Ivey is due to be dismissed from the case.
The plaintiffs also named the state as a defendant. The only claims the plaintiffs bring against the state are under the VRA and the ADA. Because Congress validly abrogated states’ sovereign immunity for claims brought under the VRA and the ADA, the state is not entitled to sovereign immunity. Ala. State Conference of the NAACP v. Alabama, 949 F.3d 647, 655 (11th Cir. 2020) (finding that the VRA abrogated state’s sovereign immunity); Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020) (finding that the ADA abrogated state’s sovereign immunity).
C. Defendant Roberson, the Circuit Clerk for Lee County, argues that the claims against her are moot because she no longer serves as the AEM for Lee County. In a nutshell, the circuit clerk of each county serves as the AEM unless he or she declines, in which case the appointing board selects a replacement. Ala. Code § 17-11-2. Here, after learning of this suit, Roberson opted to decline to serve as AEM, doc. 41 at 1–2, and promptly argued that the claims against her are
17 The Supreme Court long-ago reached the same conclusion. See Fitts v. McGhee, 172 U.S. 516, 529–30 (1899).
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moot as a result. But the plaintiffs sued Roberson in her official capacity as circuit clerk through which she was presumptively serving as the AEM of Lee County. And, when a party sued in her official capacity resigns, the official’s “successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d). Accordingly, when the appointing board selects a replacement AEM, the successor AEM for Lee County will automatically be substituted. The claim is not moot.
D. Finally, in a footnote, the defendants urge the court to dismiss the claims as non-justiciable political questions. Doc. 36 at 21 n.16. Doing so would result in the court abdicating from its role to address disputes that arise under the Constitution or federal statutes. This is precisely what the plaintiffs seek in this case—i.e., they ask the court to decide whether the challenged provisions run afoul of the Constitution, the VRA, or the ADA. The court agrees with the Fifth Circuit, which easily dismissed the contention that a similar claim was a non-justiciable political question by noting that the “standards for resolving such claims are familiar and manageable, and federal courts routinely entertain suits to vindicate voting rights.” Texas Democratic Party, -- F.3d --, 2020 WL 2982937 (5th Cir. 2020). The plaintiff’s claims are justiciable, and the court can thus proceed to consider the merits of the motion for a preliminary injunction.
III. A preliminary injunction is an “extraordinary remedy” designed to prevent
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irreparable harm to the parties during the pendency of a lawsuit. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). The court may issue a preliminary injunction only if the plaintiffs establish: (1) a substantial likelihood of success on the merits, (2) a likelihood of suffering irreparable harm in the absence of relief, (3) that the balance of equities weigh in their favor, and (4) that the injunction serves the public interest. Id. at 20; Jones v. Governor of Fla., 950 F.3d 795, 806 (11th Cir. 2020). The determination of whether the plaintiffs have satisfied their burden “is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.” Int’l Cosmetics Exch., Inc. v. Gapardis Health & Beauty, Inc., 303 F.3d 1242, 1246 (11th Cir. 2002) (citation omitted). The first two factors of the preliminary injunction standard are “the most critical.” Lee, 915 F.3d at 1317. The court thus begins with whether the plaintiffs have shown a substantial likelihood of success on the merits of each of their claims. In doing so, because the plaintiffs bring claims under the First and Fourteenth Amendments of the U.S. Constitution, the ADA, and the VRA, the court will address separately whether the plaintiffs have established a substantial likelihood of success for each of these categories of claims, beginning with the constitutional claims.
A. States have an interest in the orderly administration of elections and retain the power to regulate elections. See U.S. Const. Art. 1, § 4, cl.1; Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008). Still, an individual’s right to
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vote is sacrosanct, and “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964).
When deciding a constitutional challenge to state election laws, district courts apply a flexible standard outlined by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Under the Anderson-Burdick balancing test, the court must “weigh the character and magnitude of the burden the State’s rule imposes on [First and Fourteenth Amendment] rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citation omitted). “[T]he rigorousness of [the court’s] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. If the challenged law severely restricts the right to vote, then strict scrutiny applies, meaning the law must be narrowly drawn to serve a compelling state interest. Id. (citation omitted). If the challenged law “imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. (citation omitted). But, “even when a law imposes only a
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slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden.” Lee, 915 F.3d at 1318–19 (citation omitted).
1. The first election requirement that the plaintiffs’ challenge is the requirement under Alabama law that all absentee ballots include an affidavit signed by the voter and witnessed by a notary public or two adult witnesses. Ala. Code §§ 17-11-7; 17-11-9; 17-11-10. According to the plaintiffs, this requirement, as applied during the COVID-19 pandemic, imposes a severe burden on their individual right or the right of their members to vote, thereby triggering strict scrutiny. Docs. 1 at 44; 20-1 at 22–23. Allegedly, voters who live alone or with only one other adult and who wish to cast an absentee ballot must choose between adhering to health guidelines regarding social distancing and voting in upcoming elections.18 Id. And, the plaintiffs contend that the witness requirement is not narrowly tailored to serve a compelling state interest. See doc. 20-1 at 25–28.
18 The plaintiffs also contend that strict scrutiny applies because the burden imposed by the witness requirement falls more heavily on black voters, the elderly, and voters with disabilities. Doc. 20-1 at 22. But, the case the plaintiffs cite involved an equal protection challenge to a Florida law that restored voting rights to ex-felons who had completed all terms of their sentence, including the payment of all fines, fees, and restitution. Jones, 950 F.3d at 800. Here, the plaintiffs do not explicitly assert an equal protection claim, see doc. 1, or argue that the challenged provisions violate the Equal Protection Clause, see doc. 20-1. And, the plaintiffs do not cite any binding authority applying strict scrutiny in the context of a claim that a state election law violates First and Fourteenth Amendment associational rights because an otherwise non-discriminatory law imposes a heavier burden on a protected class of voters. See id.
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Thus, the plaintiffs ask the court to enjoin this requirement for all voters. Doc. 1 at 44; 20-1 at 9.
a. To evaluate the plaintiffs’ likelihood of success on this claim, the court must first decide whether the witness requirement imposes a burden on the right to vote that is severe enough to trigger strict scrutiny. See Lee, 915 F.3d at 1319. First of all, there is no doubt that the witness requirement imposes some burden on the right to vote. After all, when Governor Ivey issued the emergency rule allowing notaries to witness affidavits by videoconference, she explained that the rule was necessary because “person-to-person contact increases the risk of transmitting COVID-19,” effectively acknowledging that the witness requirement increases absentee voters’ exposure to the virus. Doc. 16-17 at 2–3. Exposure to a deadly virus is a burden. To show that the witness requirement severely burdens the right to vote, the plaintiffs point to evidence that approximately 1.3 million adults in Alabama live with only one other person, and more than 555,000 Alabamians live alone, including approximately 215,000 who are 65 or older and 186,000 black Alabamians, who are at higher risk of COVID-19 complications. Docs. 20-1 at 22–23; 16-37 at 4–5. The court accepts that the COVID-19 pandemic and resulting social-distancing recommendations will undoubtedly make it more difficult for many of these individuals to satisfy the witness requirement to vote
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absentee. But, the demographic evidence does not establish that the witness requirement imposes a severe burden on the right to vote sufficient to trigger strict scrutiny. The demographic statistics do not indicate whether voters living alone or with only one other person regularly interact with individuals outside of their household who could serve as witnesses. Moreover, it is possible for a voter to obtain the required witness signatures without violating the CDC’s socialdistancing guidelines. For example, the voter and witnesses could wear masks and gloves and remain more than six feet apart outdoors, or be physically separated from one another by a window or open doorway. To be sure, observing socialdistancing guidelines does not eliminate the risk of contracting COVID-19, but it does substantially mitigate the risk. The ability of many voters to comply with social-distancing protocol and to satisfy the witness requirement lessens the severity of the burden on voters’ right to vote.
Even so, satisfying the witness requirement could impose a more significant burden on some voters who live alone and who are at heightened risk of severe COVID-19 complications due to age, disability, pre-existing conditions, and race. See doc. 16-4 at 8. For example, Peebles lives alone and has been self-isolating since mid-March because he is at high risk of complications from COVID-19 due to spastic cerebral palsy. See doc. 16-45 at 7–9. Peeble’s only contact has been with his four caregivers, but obtaining the signatures from them is not an option
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because their shifts do not overlap, and he only interacts with one caregiver at a time. Id.19
Another plaintiff, Clopton, lives with only his wife. Id. at 4. Since midMarch, Clopton has left his home only for a medical appointment and to shop for groceries during “senior hours” because he is at high risk from COVID-19 due to his age, underlying conditions, medical history, and race. Id. at 3-4. The Cloptons have not allowed visitors into their home since mid-March, with the exception of Mrs. Clopton’s sister who has been in their home’s entryway on two occasions. Id. at 4. And, Clopton is not comfortable with the risk of inviting a second witness to his home even if the witness remains outside. Id. at 4-5.
Finally, People First, GBM, and the Alabama NAACP have members who live alone, are at high risk from COVID-19 complications, and prefer to vote by absentee ballot to minimize their risk from exposure to the virus. Id. at 24-25, 31, 36. These plaintiffs maintain that their affected members will not be able to comply with the witness requirement without risking their health by engaging in person-to-person contact in contravention of current health guidelines. Id. at 24– 26, 31.
19 Similarly, Thompson lives alone and is at high risk for complications from COVID-19 due to underlying medical conditions, age, and race. Doc. 16-45 at 17–18. Thompson began selfisolating at home on April 1, and since that time, she has only had contact with her daughter and granddaughter who bring her groceries and check on her. Id. at 18. The plaintiffs contend that the witness requirement is a significant barrier to Thompson’s right to vote, doc. 20-1 at 24, but they do not provide any evidence suggesting that Thompson’s daughter and granddaughter, who Thompson has regular contact with, could not witness her affidavit.
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Based on the record, it is clear that the plaintiffs are rightly concerned about
the risk of COVID-19 and minimizing their potential exposure to the virus.
However, even if the witness requirement imposes a significant burden on some
individual plaintiffs and members of the organizational plaintiffs, that is not
sufficient at this juncture to establish that strict scrutiny applies. See Crawford,
553 U.S. at 206 (J. Scalia, concurring) (nothing that when determining whether
strict scrutiny applies, the Court has looked at the burden on voters “categorically
and di not consider the peculiar circumstances of individual voters or candidates”)
(citations omitted).
This finding does not end the analysis, however. The plaintiffs have shown
that satisfying the witness requirement presents some risk of COVID-19 exposure
to voters who do not regularly come into contact with at least two adults
simultaneously, even if these voters follow social-distancing guidelines. See doc.
16-4 at 4–5, 8. And, this burden is not “exceedingly light” as the defendants suggest. See doc. 36 at 22.20 Moreover, even if the requirement imposes only a
20 The defendants also assert that the witness requirement does not impose a severe burden because “[m]any voters will be able to take advantage of the ability to have documents notarized over videoconferencing.” Doc. 36 at 26. But videoconferencing is not free. It requires internet access at a minimum, which is a service that may be an unaffordable luxury for many. Moreover, a notary is entitled to a $5.00 fee for notarizing a document. Ala. Code § 36-20-74. The right to vote “cannot be made to depend on an individual’s financial resources,” Johnson v. Governor of State of Fla, 405 F.3d 1214, 1216 n.1 (11th Cir. 2005), and “‘a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the . . . payment of any fee an electoral standard,’” Jones v. Governor of Fla., 950 F.3d 795, 821 (11th Cir. 2020) (quoting Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667-68 (1966)). Therefore, the defendants cannot rely upon the option to have an affidavit notarized by videoconferencing, even
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slight burden on the right to vote, this burden “must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (citation omitted). Thus, the court turns to the “precise interests put forward by the State as justifications for the burden imposed by its rule . . . .” Burdick, 504 U.S. at 434 (citation omitted).
b. According to Alabama law, the witness requirement “goes to the integrity and sanctity of the ballot and election.” Ala. Code § 17-11-10(c). The defendants contend that requiring witnesses helps prevent voter fraud by ensuring that the voter completing the ballot is the person identified on the ballot. Doc. 36 at 26. Although voter fraud, including absentee voter fraud, is not common,21 Alabama has a legitimate and strong interest in preventing such fraud. Lee, 915 F.3d at 1322 (citing Common Cause, 554 F.3d at 1353-54); see also Crawford, 553 U.S. at 196. But, while the state’s determination that the witness requirement helps deter fraud may be reasonable, the Anderson-Burdick balancing test still requires the court to “‘determine the legitimacy and strength of [] [the State’s] interests,’ while also considering ‘the extent to which those interests make it necessary to burden the
for persons who can afford internet service, to establish that the witness requirement does not burden the right to vote. 21 See doc. 16-46 at 4–7; Crawford, 553 U.S. at 194 (“There is no evidence of extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the outcome of a close election.”) (citation omitted).
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Plaintiff[s’] rights.’” Stein v. Ala. Sec’y of State, 774 F.3d 689, 694 (11th Cir. 2014) (quoting Anderson, 460 U.S. at 789).
As to those issues, the plaintiffs contend that the witness requirement is not necessary because it does not protect the integrity of an absentee ballot in a meaningful way. The plaintiffs have a point. First of all, the substance of the witnesses’ role in helping to prevent voter fraud is underwhelming. The witness certifies only that they watched the individual sign the affidavit envelope. See Ala. Code 17-11-7(b). The witness does not even attest that the voter is who she says she is. For this reason, as the defendants point out, doc. 34-1 at 20, the witness could be a total stranger, such as a mail or grocery delivery person. Nor do the witnesses have to watch the voter complete the ballot, presumably to preserve the voter’s right to a secret ballot. Thus, all that the witnesses certify is that they watched this person—who may or may not be known to them, and who may or may not be the same person who completed the ballot—sign the affidavit. This is hardly a foolproof fraud prevention measure.
The plaintiffs also assert that the requirement is not effective because witnesses do not have to identify themselves by legibly printing their names, and election officials do not confirm the identity or age of the witnesses. Doc. 20-1 at 26 (citing Ala. Code §§ 17-11-7; 17-11-9; 17-11-10). But, while Alabama does not expressly require witnesses to print legibly, the state requires witnesses to print their names and address after signing an absentee voter affidavit. See Ala. Code
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§ 17-11-7(b). In theory, the state can use this information to confirm the identify
or age of the witnesses if necessary in a potential election contest or investigation
of voter fraud. Additionally, whatever the requirement’s practical value, it could help to increase the perception of the absentee ballot’s legitimacy.22 In the end, the
effectiveness of the witness requirement in preventing fraud may be limited, but it
is not meaningless.
Next, the plaintiffs argue that the witness requirement is not necessary to
help prevent voter fraud because other laws sufficiently protect election integrity.
Doc. 20-1 at 26–27. Indeed, under relevant Alabama law, a voter casting an
absentee ballot must complete an application containing “sufficient information to
identify the applicant,” including either the applicant’s driver’s license number or
the last four digits of the applicant’s social security number. Ala. Code § 17-11-4;
doc. 16-46 at 19. Furthermore, with certain limited exceptions, a voter must submit a copy of his or her photo ID with an absentee ballot application.23 Doc.
16-46 at 19. Finally, the affidavit submitted with absentee ballots requires
absentee voters to swear that the information in the affidavit is true, and, as printed
22 See Crawford, 553 U.S. at 197 (finding that a state has an interest in safeguarding voter confidence and noting that the “electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters”) (citation omitted). 23 To be sure, the plaintiffs seek to enjoin the photo ID requirement. But the plaintiffs would enjoin the requirement only for those voters who are 65 or older or disabled, who are not already entitled to a waiver of the requirement under the state’s existing exemption, and who feel it is impossible or unreasonable to comply with the requirement because of COVID-19. See docs. 15 at 3; 20-1 at 34. For everyone else, the photo ID requirement would still apply and would still serve as a fraud deterrent.
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on the absentee ballot applications, falsifying absentee ballot applications or verification documents is a felony. Ala. Code §§ 17-11-7; 17-17-24(a); doc. 16-46 at 19.
The defendants do not dispute that these laws and requirements provide an effective deterrent to voter fraud. See doc. 36. In fact, Secretary Merrill has acknowledged that a bill proposing to eliminate the witness requirement for absentee ballots and add a photo ID requirement would strengthen absentee voting laws in Alabama. See doc. 16-46 at 23–24.24 In light of the state’s current photo ID requirement for absentee voter applications—which will remain in place for most absentee voters, see note 25, supra—Secretary Merrill’s statement undermines the legitimacy of the State’s interest in maintaining the witness requirement to prevent fraud. In addition, the defendants’ acknowledgement that persons who are essentially unknown to a voter, such as a “mail delivery person, grocery or food delivery person, police officer or sheriff’s deputy,” can serve as witnesses, doc. 34-1 at 20, also undermines the legitimacy of the witness requirement as an effective means of deterring fraud. Moreover, as the Western District of Virginia recently observed, “[f]or the fraudster who would dare to sign
24 The bill, introduced by state Senator Rodger Smitherman, would have eliminated the requirement that voters give a reason to vote absentee and the witness requirement for absentee voters, and would have added a requirement that absentee voters include a copy of a photo ID with their application for an absentee ballot. Doc. 16-46 at 23. According to an article about the bill, Secretary Merrill’s office suggested that Sen. Smitherman propose the changes in the absentee ballot law, and Secretary Merrill “said he believed it would strengthen the absentee voting law.” Id. at 23–24.
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the name of another qualified voter at the risk of being charged with [a] felon[y] [], writing out an illegible scrawl on an envelope to satisfy the witness requirement would seem to present little to no additional obstacle—at least on the record before the [c]ourt.” League of Women Voters of Va. v. Va. State Bd. of Elections, 2020 WL 2158249, at *9 (W.D. Va. May 5, 2020). While the state has a legitimate interest in preventing voter fraud, based on the record before the court, as it relates to the witness signature requirement, that interest does not necessitate the burdens imposed by the witness requirement during the COVID-19 pandemic, especially in light of other laws designed to prevent voter fraud in Alabama.
As a result, because some voters at risk of severe complications from COVID-19 who do not regularly come into contact with at least two adults simultaneously will likely be dissuaded from voting due to the health risks associated with complying with the witness requirement and the steps necessary to mitigate those risks, the plaintiffs are likely to show that the burdens imposed on those voters outweigh the state’s interest in enforcing the witness requirement. Thus, on the record before the court, the plaintiffs have shown a likelihood of success on the merits of their claim that the witness requirement is unconstitutional as to vulnerable voters who cannot safely satisfy the requirement in light of the COVID-19 pandemic.
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2.
With exceptions for voters entitled to vote absentee under federal law,
including the Voting Accessibility for the Elderly and Handicapped Act, Alabama
requires absentee voters to provide a copy of their photo identification with their absentee ballot application and certain absentee ballots.25 Ala. Code §§ 17-9-
30(b), (d); 17-11-9. The plaintiffs assert that the photo ID requirement is
unconstitutional as applied to People First’s members, Porter, Thompson, and
similarly-situated elderly or disabled voters in the COVID-19 pandemic. Doc. 1 at
44. The plaintiffs seek an order enjoining enforcement of the photo ID
requirement, as to those voters. Docs. 15 at 3; 20-1 at 9.
a.
First, the court must determine whether the photo ID requirement imposes a
burden on the right to vote that is severe enough to warrant strict scrutiny.
According to the plaintiffs, Alabama’s photo ID requirement presents a severe
burden on elderly and disabled voters who are most vulnerable to COVID-19
because complying with the requirement could require those voters to leave their
25 Alabama interprets the Voting Accessibility for the Elderly and Handicapped Act to exempt from the photo ID requirement any voter who is over the age of 65 or has a disability and who is “unable to access his or her assigned polling place due to a neurological, musculoskeletal, respiratory (including speech organs), cardiovascular, or other life-altering disorder that affects the voter’s ability to perform manual tasks, stand for any length of time, walk unassisted, see, hear, or speak . . . .” See Ala. Admin. Code R. 820-2-9-.12(3); doc. 16-46 at 19. The court notes that any voter over the age of 65 or with a disability who has a symptomatic case of COVID-19, i.e., a respiratory disorder, would almost certainly qualify for this exception to the photo ID requirement.
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homes and risk exposure to the virus.26 Doc. 20-1 at 32. The plaintiffs point to
Thompson and some members of People First as examples of vulnerable voters
who cannot make copies of their IDs at home, and therefore must risk exposure to
the virus to obtain a copy of their ID. Docs. 20-1 at 18–19; 32.27 Indeed, Secretary
Merrill has indicated that voters without a printer at home may need to go to
“Walmart or Kinko’s” to make a copy of their IDs in order to apply for an absentee
ballot. See doc. 16-33 at 3.
The defendants contend that the photo ID requirement does not present a
severe burden to Thompson and People First’s members because there is no
evidence that any of these plaintiffs lack access to a person who could help them
obtain a copy of their ID.28 Doc. 36 at 25. True enough. Yet, there is no
guarantee that each of those plaintiffs will be able to find a person to help make a
copy for them, and requiring a vulnerable voter to find a person willing to help at
26 The plaintiffs do not cite any evidence regarding the number of voters, or any specific voters, who lack a photo ID, see doc. 20-1, and they base their challenge to the photo ID requirement primarily on the burden certain voters may face to obtain a copy of their photo IDs, see id. at 3234; doc. 46. As evidence of that burden, plaintiffs state that 200,000 households in Alabama lack computers needed to copy a photo ID. Doc. 20-1 at 33. However, this fact does not show how many of those households include elderly and disabled voters who wish to vote absentee. 27 The plaintiffs also contend that complying with the photo ID requirement severely burdens Porter’s right to vote. Doc. 20-1 at 32. But the record before the court reveals that Porter currently has the capability to copy his ID at home, and he is concerned only about his ability to afford the ink and paper needed to print a copy of his ID for the July 14 and November elections. Doc. 16-45 at 14–15. Because the record contains no indication that Porter could not print copies of his ID now in anticipation of the elections, the plaintiffs have not shown that the photo ID requirement imposes a severe burden on Porter’s right to vote. 28 The defendants also contend that the photo ID requirement is not a severe burden because 87% of Alabama households have a computer in the home. Doc. 36 at 25. This statistic gives no meaningful information about the burden imposed by the requirement because making a copy of a photo ID requires a printer or copier in addition to a computer.
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the risk of potential exposure to COVID-19 is itself a burden. This burden is not sufficient, however, to establish that strict scrutiny applies. See Crawford, 553 U.S. at 206 (J. Scalia, concurring).29 Still, even if the burden is not severe, “relevant and legitimate interests of sufficient weight” must justify the burden imposed on vulnerable voters by the photo ID law. Lee, 915 F.3d at 1318–19 (citation omitted).
b. As with the witness requirement, the defendants assert that the photo ID requirement serves the State’s interests in deterring voter fraud and safeguarding voter confidence. Doc. 36 at 23; see also doc. 34-5 at 3. It is settled law that he state has a legitimate interest in preventing voter fraud, and that a photo ID requirement advances that interest. Crawford, 553 U.S. at 196–97; Common Cause, 554 F.3d at 1353–54; see also Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253, 1277 (N.D. Ala. 2018). That said, the plaintiffs do not ask the court to enjoin the photo ID requirement for all absentee voters. Instead, they ask the court to enjoin the photo ID requirement only for those voters who are 65
29 The plaintiffs contend that Judge Eleanor Ross’s well-reasoned decision in Georgia Coalition for the People’s Agenda v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018), supports a finding that strict scrutiny applies when the effects of a facially non-discriminatory election provision have a disparate impact on a protected class of voters. See doc. 20-1 at 22. The court is not persuaded because the defendants in that case did not respond to the plaintiffs’ arguments on disparate impact, and Kemp does not cite any authority applying strict scrutiny review because a facially non-discriminatory election law has a disparate impact on a protected class of voters. See 347 F. Supp. 3d at 1264.
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or older or disabled, and who feel it is impossible or unreasonable to comply with the photo ID requirement because of COVID-19.
The weightiness of the state’s interest in preserving the photo ID requirement for this limited subset of voters is less clear. As previously noted, the state already provides an exception to the photo ID requirement for voters who are 65 or older or disabled, and who are unable to access the polls due to a physical infirmity. Ala. Admin. Code R. 820-2-9-.12(3). Effectively, the plaintiffs merely ask the state to construe the last part of the existing exception to apply to those who are afraid to go to the polls because of COVID-19. Doc. 20-1 at 32–34. The state has not explained why, consistent with its interest in preventing voter fraud, it can exempt voters who are 65 or older or disabled and cannot access the polls, but it cannot exempt voters who are 65 or older or disabled and cannot safely obtain a copy of their photo ID because of the pandemic. See doc. 36.
Furthermore, there are other measures to prevent voter fraud. The state can establish the identity of an absentee voter through the existing requirement that a voter provide his driver’s license number or the last four digits of his social security number with an absentee ballot application. See Ala. Code § 17-11-4; doc. 16-46 at 19. This is information that is generally available only to the individual himself, and it is information the state already requires and could verify. To the extent that a fraudster could get her hands on this information to submit a fraudulent absentee ballot, it is doubtful that insisting on the submission of a copy
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of a photo ID would deter that individual. In sum, based on the record before the court, the state’s interest in requiring this limited class of voters to comply with the photo ID requirement is fairly minimal.
Weighed against this interest, the burden on that group of voters is significant. The defendants do not dispute the plaintiffs’ evidence that some members of People First cannot make copies at home and cannot safely leave their homes during the COVID-19 pandemic because of their heightened risk of complications from this virus. See docs. 16-45 at 25; 26. The defendants instead suggest that those members and other voters in the same predicament could find others to make a copy for them. Even assuming that is a viable option for all of these voters, finding a willing individual to assume the risk of exposure to COVID19 is itself a burden, and does not completely eliminate the risk of exposure to the voter. Thus, the photo ID requirement could present some elderly and disabled voters who wish to vote absentee with the burden of choosing between exercising their right to vote and protecting themselves from the virus, which could dissuade them from voting.
“[E]ven one disenfranchised voter . . . is too many.” Lee, 915 F.3d at 1321 (citation omitted). At this juncture, the plaintiffs have shown that the state’s interest in enforcing the photo ID requirement does not justify the burden on voters who are 65 or older or disabled and who cannot safely obtain a copy of their photo
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ID. Thus, the plaintiffs have shown a substantial likelihood of success on this claim.30
3. The CDC recommends that election officials encourage curbside voting for eligible voters if allowed in a jurisdiction to minimize the risk of COVID-19 exposure. Doc. 16-2 at 2. The plaintiffs assert that the individual plaintiffs and People First’s members would utilize curbside voting if that option was available to them. Docs. 1 at 9–11; 16-45 at 5, 9, 14, 19. Although Alabama law does not expressly prohibit curbside voting, see docs. 20-1 at 16; 36 at 26, Secretary Merrill bars local elections officials from utilizing curbside voting to assist voters with disabilities, see doc. 16-41 at 15–16. According to the plaintiffs, some voters with disabilities, including some members of People First, must vote in person, rather than by absentee ballot, in order to receive assistance at the polls, and curbside voting would minimize the risk of exposure to COVID-19 for those voters. Doc. 20-1 at 35–36. The plaintiffs contend that Secretary Merrill’s prohibition on curbside voting may deprive those voters of their right to vote by forcing them to choose between foregoing their right to vote and risking their health by going inside a polling place. Doc. 1 at 44–45.
30 Even if the defendants are correct that the plaintiffs have not shown a likelihood of success on their constitutional challenge to the photo ID requirement as applied to voters who are 65 or older or disabled and who cannot comply with the requirement during the COVID-19 pandemic, the individual plaintiffs and similarly-situated disabled voters are still entitled to relief from the requirement under the ADA claim. See part III.B, infra.
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The defendants do not directly dispute that contention, but instead state that “every voter in Alabama can vote absentee.” See doc. 36 at 27. And, the defendants contend that “mandating curbside voting raises a host of practical concerns,” including how the state could find enough poll workers to cover inside and curbside voting at almost 2,000 polling places, control lines of traffic at the polls, and preserve the privacy of ballots. Id. at 36 at 9, 26–27. But, this contention misunderstands the plaintiffs’ claim, and the defendants’ concerns do not address the issue at hand.
The plaintiffs seek an order preventing the state from prohibiting local election officials from providing curbside voting—not an order requiring the state to provide curbside voting. Docs. 1; 20-1 at 35–37. The defendants identify no fraud-prevention interest that justifies prohibiting local election officials from providing curbside voting that complies with all relevant election laws. See doc. 36. And, the defendants do not dispute that other states permit curbside voting, or present evidence indicating that curbside voting that complies with state election law is prone to fraud. See docs. 16-42 at 24; 16-43 at 5, 9; 36. The defendants suggest that curbside voting would conflict with laws requiring voters to sign a poll list and ballots to be kept secret. See docs. 36 at 27; 34-1 at 21. But, contrary to the defendants suggestion otherwise, see doc. 34-1 at 21, Alabama law expressly allows an election official to write a voter’s name on a poll list if the voter “because of a physical disability, is unable to write his or her own name,” Ala.
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Code § 17-9-11, and provides that voters who wish to have assistance voting may receive it from poll workers, Ala. Code § 17-9-13. Because the defendants have not proffered any legitimate justification for the burden imposed by Secretary Merrill’s prohibition on curbside voting, the plaintiffs have shown a substantial likelihood of success on their claim that the prohibition violates the Constitution.
B. Next, the court determines whether the plaintiffs have shown a substantial likelihood of success on their claims under the ADA. Congress enacted the ADA to address the “pervasive unequal treatment” of people living with disabilities. Nat'l Ass'n of the Deaf v. Fla., 945 F.3d 1339, 1347 (11th Cir. 2020) (citing Tennessee v. Lane, 541 U.S. 509, 517 (2004)). The ADA serves as a safeguard to ensure the dignity of these people in many areas of public life, including voting. 42 U.S.C. § 12101(a)(1)–(3). See also Am. Ass’n of People with Disabilities v. Harris, 647 F.3d 1093, 1107 (11th Cir. 2011) (“[D]isabled citizens must be able to participate in the [State]’s voting program.”). Because of this lofty purpose, the ADA “must be broadly construed.” Kornblau v. Dade County, 86 F.3d 193, 194 (1996). To state a claim under Title II, a plaintiff must demonstrate: “(1) that [s]he is a ‘qualified individual with a disability;’ (2) that [s]he was ‘excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity’ or otherwise ‘discriminated [against] by such entity;’ (3) ‘by reason
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of such disability.’” Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) (quoting
42 U.S.C. § 12132). A “public entity” is “any State or local government [or] any
department, agency . . . or other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1). The final clause of § 12132 “is a catch-all
phrase that prohibits all discrimination by a public entity, regardless of the
context.” Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1084–85 (11th Cir. 2007).
A plaintiff is a qualified individual if she “meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity . . . with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services.” United
States v. Georgia, 546 U.S. 151, 153–54 (2006) (quoting 42 U.S.C. § 12131(2)).
While “rules, policies, [and] practices” may be subject to reasonable modification,
“essential eligibility requirements” are not. Mary Jo C. v. New York State & Local
Ret. Sys., 707 F.3d 144, 159 (2d Cir. 2013) (citing 42 U.S.C. § 12131(2)).31 When
31 The court finds the analysis in Mary Jo C. instructive. There, the Second Circuit construed the “essential eligibility requirement” language found in 42 U.S.C. § 12131(2) “distinguish[ed] between two categories of requirements: (1) rules, policies, or practices . . . and (2) essential eligibility requirements.” Mary Jo C., 707 F.3d at 157. The Circuit acknowledged the interplay between the essential eligibility requirement inquiry at the prima facie stage and the later assessment of whether a proposed modification fundamentally alters the challenged provision: “[t]he regulations indicate that ‘essential eligibility requirements’ are those requirements without which the ‘nature’ of the program would be ‘fundamentally alter[ed].’” Id. at 158 (quoting 28 C.F.R. § 35.130(b)(7)). See also Washington v. Indiana High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 850 (7th Cir. 1999) (finding the essentialness inquiry should be “whether waiver of the rule . . . would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change). Drawing from the Supreme Court’s analysis in PGA Tour, Inc. v. Martin,
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an individual cannot meet an essential eligibility requirement, “the only possible
accommodation is to waive the essential requirement itself . . . [but] [w]aiving an
essential eligibility standard would constitute a fundamental alteration in the nature
of the . . . program [at issue].” Pottgen v. Missouri State High School Activities
Ass’n, 40 F.3d 926, 930 (8th Cir.1994).32 Therefore, a plaintiff who does not meet
an essential eligibility requirement is not qualified to state a claim under the ADA.
The question then becomes: is the requirement essential for eligibility in the
program? “[W]hether an eligibility requirement is essential is determined by
consulting the importance of the requirement to the program in question.” Mary Jo
C., 707 F.3d at 159.33 A public entity cannot merely state that the discriminatory
532 U.S. 661 (2001), the Circuit read the ADA to require analysis of “the importance of an eligibility requirement for a public program or benefit, rather than to defer automatically to whatever “formal legal eligibility requirements” may exist, no matter how unimportant for the program in question they may be.” Id. at 159. 32 The Eighth Circuit in Pottgen considered Title III of the ADA. Courts have read the requirements of Title II and Title III as being consistent with each other:
The House Committee on Education and Labor indicated that Title II's prohibitions are to be “identical to those set out in the applicable provisions of titles I and III of this legislation.” H.R.Rep. No. 101–485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. More specifically, the House Report on the ADA states that the prohibitions of discrimination on the basis of association from Titles I and III should be incorporated in the regulations implementing Title II. Id.; H.R.Rep. No. 485(III), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 474; see also Kinney v. Yerusalim, 9 F.3d 1067, 1073 n.6 (3d Cir. 1993) (legislative history indicates that Titles II and III are to be read consistently). Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997), recognized as superseded on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). See Mary Jo C., 707 F.3d at 159 (finding cases interpreting Title III to be instructive in Title II analysis). “Congress clearly did not intend to give public entities more latitude than private parties to discriminate against the disabled.” Theriault v. Flynn, 162 F.3d 46, 53 n.10 (1st Cir. 1998). 33 See also Pottgen, 40 F.3d at 930 (“[T]o determine whether [the plaintiff] is a ‘qualified individual’ under [Title II of] the ADA, we must first determine whether the [challenged
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requirement is essential to the fundamental nature of the activity at issue—it must
provide evidence that the procedural requirement is necessary to the substantive
purpose undergirding the requirement. See Schaw v. Habitat for Humanity, 938
F.3d 1259, 1266–67 (11th Cir. 2019) (“Whether a particular aspect of an activity is
‘essential’ will turn on the facts of the case.”).34
Moving beyond the qualification stage, exclusions under Title II need not be
absolute: a public entity violates Title II not just when “a disabled person is
completely prevented from enjoying a service, program, or activity,” but rather
when such an offering is not “readily accessible.” Shotz, 256 F.3d at 1080 (citing
28 C.F.R. § 35.150).35 However, mere difficulty in accessing a benefit is not, by
provision] is an essential eligibility requirement by reviewing the importance of the requirement to the . . . program [at issue].”) 34 Though Schaw addressed the Fair Housing Amendments Act, the Eleventh Circuit acknowledged that it drew its reasonable accommodation analysis from precedent concerning the ADA. See 938 F.3d at 1265 n.2 (“Congress imported the reasonable-accommodation concept from case law interpreting the Americans with Disabilities Act and the Rehabilitation Act . . . Because we have applied these reasonable-accommodation requirements on numerous occasions, we can look to case law under the ADA and RA for guidance on what is reasonable under the Fair Housing Amendments Act.”) (citations omitted). 35 See H.R. REP. 101-485, 105, 1990 U.S.C.C.A.N. 303, 388 (“It would also be a violation of this title to adopt policies which impose additional requirements or burdens upon people with disabilities that are not applied to other persons . . In addition, this subsection prohibits the imposition of criteria that “tend to” screen out an individual with a disability. This concept . . . makes it discriminatory to impose policies or criteria that, while not creating a direct bar to individuals with disabilities, diminish such individuals' chances of participation.”); see also Bircoll, 480 F.3d at 1082 n.13 (11th Cir. 2007) (“Because [the defendant] has not challenged the validity of the DOJ’s regulations for Title II, we likewise interpret and apply the regulations but with the caveat that we do not here determine their validity.”); Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 751 n.10 (7th Cir. 2006) (“The Supreme Court never has decided whether these regulations are entitled to the degree of deference described in Chevron, U.S.A. Inc. v. National Resource Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed. 2d 694 (1984). Nevertheless, the Court has said that, ‘[b]ecause the Department of Justice is the agency directed by Congress to issue regulations
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itself, a violation of the ADA. See Bircoll, 480 F.3d at 1088. Instead, a plaintiff must show that the failure to accommodate created an injury. Id.
If a plaintiff makes a prima facie case of discrimination, she must then propose a reasonable modification to the challenged requirement or provision. This remedy should be a “proportionate and reasonable modification of a service that is already provided, and it [should] not change the nature of the service.” Nat’l Ass’n of the Deaf v. Fla., 945 F.3d 1339, 1351 (11th Cir. 2020). Certain public offerings cannot be made meaningfully accessible, while others would demand prohibitively high cost and effort. Accordingly, a successful ADA claim requires plaintiffs to “propose a reasonable modification to the challenged public program that will allow them the meaningful access they seek.” Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir. 2016). To show the accommodation sought is reasonable, “a plaintiff need only demonstrate a facially reasonable request—or one that seems reasonable in ‘the run of cases.’” Schaw, 938 F.3d at 1267. This burden is “not a heavy one . . . [i]t is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003). If the plaintiffs can make this showing, the burden of non-persuasion shifts to the defendants. Schaw, 938 F.3d at 1267.
implementing Title II ... its views warrant respect.’ Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–98 (1999) (internal citations omitted).”).
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A public entity need not “employ any and all means to make judicial services accessible to persons with disabilities.” Lane, 541 U.S. at 531–32. Rather, the entity must make “reasonable modifications that would not fundamentally alter the nature of the service provided . . . [or] impose an undue financial or administrative burden.” Id. (citations omitted). A “public entity has the burden of proving that compliance with this subpart would result in a ‘fundamental’ alteration.” Hindel v. Husted, 875 F.3d 344, 348 (6th Cir. 2017) (citing 28 C.F.R. § 35.164); see also Schaw, 938 F.3d at 1267. Without evidence that the proposed modification is “unreasonable or incompatible” with the state’s program, a defendant cannot succeed in the affirmative defense. Hindel, 875 F.3d at 348. The reasonable-modification inquiry in Title II–ADA cases is “a highly fact-specific inquiry [and] terms like reasonable are relative to the particular circumstances of the case.” Bircoll, 480 F.3d at 1085. This inquiry entails assessing whether the proposed modification “would eliminate an essential aspect of the . . . program or simply inconvenience it, keeping in mind the basic purpose of the . . . program . . . , and weighing the benefits to the plaintiff against the burdens on the defendant.” Schaw, 938 F.3d at 1267. “A modification that provides an exception to a peripheral . . . rule without impairing its purpose cannot be said to ‘fundamentally alter’ the [activity].” PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001).
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The plaintiffs contend that each of the challenged provisions violate the ADA and submit recommendations for purportedly reasonable modifications. Docs. 1; 20-1. The defendants dispute the plaintiffs’ prima facie case and assert that the challenged provisions are essential eligibility requirements for participation in Alabama elections. Doc. 36. The court addresses the parties’ respective contentions regarding each of these provisions in turn.
1. As stated previously, Alabama law requires that all absentee ballots include an affidavit signed by the voter and witnessed by a notary public or two adult witnesses. Ala. Code §§ 17-11-7; 17-11-9; 17-11-10. The plaintiffs claim that this provision forces voters who live alone or with only one other adult and who wish to cast an absentee ballot to choose between adhering to health guidelines regarding social distancing and voting in upcoming elections. Docs. 1 at 44; 20-1 at 22–23. They propose modifying the witness requirement to allow voters to submit self-executed affidavits affirming their identity. Doc. 20-1 at 28, 31. The first part of the analysis is to determine whether the plaintiffs make out a prima facie case that the witness requirement violates the ADA. To support their burden, the individual plaintiffs assert that they are “eligible to vote and would do so with reasonable accommodation[, but] [a]bsent a modification” to the witness requirement, they will be “prevented from voting and completely denied their
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‘right to participate in the democratic process.’” Doc. 20-1 at 31 (citing Nat’l Ass’n of the Deaf, 945 F.3d at 1349).
The individual plaintiffs’ eligibility is not in contention. All four are registered voters in Alabama and plan to vote in the 2020 elections. Doc. 16-45 at 2–20. And, all four have ADA-eligible disabilities that render them highly vulnerable to COVID-19, and Clopton, Porter, and Thompson are eligible to vote in the runoff election on July 14, 2020. Id.
Each of the individual plaintiffs usually votes in person, but each intends to vote absentee in 2020 to avoid exposure to COVID-19. Id. All four contend that the witness requirement serves to exclude them from voting absentee based on their disabilities because they live alone or with only one other person and do not generally interact with at least two adults simultaneously. In addition, the organizational plaintiffs contend they have members who live alone and will not be able to comply with the witness requirement without risking their health because doing so would require person-to-person contact in contravention of current health guidelines. Doc. 16-45 at 24–26, 31.
At this stage, the defendants do not dispute “that the individual Plaintiffs’ allegations each meet the ADA’s definition of disability.” Doc. 36 at 22 n.26. Their quarrels with the plaintiffs’ prima facie case are three-fold: (1) that the plaintiffs are not “qualified individuals because the witness requirement is an essential eligibility requirement of having an absentee ballot,” doc. 36 at 28, (2)
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that the plaintiffs are not excluded because the witness requirement does not
present a “concrete barrier,” id. at 29, and (3) that any exclusion the plaintiffs face
is not a result of their disabilities, but rather “stem[s] from [their] own choices,” id.
The court respectfully disagrees with the defendants’ second and third
contentions.36 However, the court agrees that at this stage, the plaintiffs have not
shown a likelihood of success that they can meet the essential eligibility
requirements of the Alabama voting regime.
The defendants assert that the witness requirement is an essential eligibility
requirement because it “goes to the integrity and sanctity of the ballot and
election.” Id. (citing Ala. Code § 17-11-10(b)).37 The plaintiffs counter that the
witness requirement “does not meaningfully protect the integrity of the absentee
ballot,” noting that (1) the current regulations do little to ensure the integrity of the
requirement, and (2) several other provisions of Alabama law sufficiently protect
36 See part III.B.a.2, supra. 37 The relevant section reads:
No poll worker or other election official shall open an affidavit envelope if the voter's affidavit signature or mark is not witnessed by the signatures of two witnesses or a notary public, or other officer, including a military commissioned officer, authorized to acknowledge oaths, and no ballot envelope or ballot therein may be removed or counted. The provision for witnessing of the voter's affidavit signature or mark in Section 17-11-7 goes to the integrity and sanctity of the ballot and election. No court or other election tribunal shall allow the counting of an absentee ballot with respect to which the voter's affidavit signature or mark is not witnessed by the signatures of two witnesses 18 years of age or older or a notary public, or other officer, including a military commissioned officer, authorized to acknowledge oaths, prior to being delivered or mailed to the absentee election manager.
Ala. Code § 17-11-10.
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election integrity. Doc. 20-1 at 26–28. But even if the witness requirement is functionally useless in securing the “integrity and sanctity of the ballot and election,” Ala. Code § 17-11-10(b), and other extant measures may be sufficient to confirm absentee voter identity, see Ala. Code §§ 17-11-4; 17-11-7; 17-17-24(a); doc. 16-46 at 18–20, the court cannot find the waiver requirement nonessential at this stage. The plaintiffs are generally correct that the defendants’ bald assertion of the requirement’s essential nature is insufficient to block the plaintiffs’ claim. Doc. 46 at 8. The defendants are not alone in asserting this point, however; both the Alabama legislature and the Alabama Supreme Court have clearly indicated that the requirement is essential under Alabama law.38 See Eubanks v. Hale, 752 So. 2d 1113, 1157–58 (Ala. 1999) (citing Ala. Code § 17-11-10); Compare Mary Jo C., 707 F.3d at 160 (finding the challenged provision non-essential where the state regularly granted waivers and extensions of the provision). Because the witness requirement is deemed a condition precedent to eligibility under state law, and essential eligibility requirements are not subject to reasonable modifications, the plaintiffs cannot state an ADA claim against the witness requirement based on the current record.
38 While the Alabama Supreme Court has recognized that “substantial compliance with the essential requirements of the absentee voting law is sufficient . . . so long [the] irregularities in the voting process do not adversely affect the sanctity of the ballot and the integrity of the election,” it has also held that the state intended the witness requirement to be an essential eligibility requirement. Eubanks v. Hale, 752 So. 2d 1113, 1157–58 (Ala. 1999) (“An irregularity with regard to that requirement, therefore, would require that the ballot be excluded.”).
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2.
Alabama requires citizens voting absentee to submit a paper copy of their
photo ID along with their absentee ballot application and certain mail-in ballots. Ala. Code §§ 17-9-30(b), (d); 17-11-9.39 By Secretary Merrill’s own admission,
voters who lack the means to photocopy their IDs at home will be forced to leave
their homes to secure a copy from an outside printing vendor. Doc. 16-33 at 3.
The plaintiffs propose that the defendants expand their interpretation of the photo
ID exemption to include those who are at heightened risk from COVID-19. Doc.
20-1 at 15. As the individual plaintiffs put it, because they are protected by the
ADA, the defendants “must interpret the photo ID requirement in a manner that protects their right to vote.” Doc. 20-1 at 35.40
Based on the current record, the plaintiffs state a prima facie case of
disability discrimination relating to the photo ID requirement as applied in the
COVID-19 pandemic. The defendants do not dispute that the individual plaintiffs
are disabled, doc. 36 at 22 n.26, nor do they make a serious effort to demonstrate
39 As previously noted, Alabama provides exceptions for voters entitled to vote absentee under federal law, including the Voting Accessibility for the Elderly and Handicapped Act. Ala. Code §§ 17-9-30(b), (d); 17-11-9. 40 The defendants assert that because the plaintiffs employ only one sentence to specifically assert their ADA claim at to the photo ID requirement, see doc. 20-1 at 35, the plaintiffs fail to meet their burden of demonstrating that they are likely to succeed on the merits of this claim. Doc. 36 at 29 n.28. The court disagrees. It is true that the plaintiffs must “clearly carr[y] the burden of persuasion” that they are likely to succeed on the merits of their photo ID claim. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983). But while the plaintiffs do not devote a separate section of their brief to this claim, they make the requisite prima facie case and propose a reasonable modification through their broader discussion of the requirement.
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that the photo ID requirement is an essential eligibility requirement,41 id. at 31 n.35. More importantly, Alabama does not designate the photo ID requirement as essential, allowing the individual plaintiffs a clearer path to establishing their qualifications. See generally Ala. Code § 17-9-30.
Turning next to the “excluded . . . by reason of . . . disability” elements of the prima facie case, see 42 U.S.C. § 12132, the court finds the plaintiffs succeed here as well. The defendants again claim that the individual plaintiffs are not excluded because the photo ID requirement does not present a “concrete barrier,” doc. 36 at 29, and that any exclusion they face is the result of their “own decisions,” id. The court sees no persuasive value in this point. The Eleventh Circuit has recognized that plaintiffs are excluded when an offering is not “readily accessible.” Shotz, 256 F.3d at 1080 (citing 28 C.F.R. § 35.150). Physical barriers are not the only means by which to impede accessibility. The plaintiffs have provided evidence that Thompson and some members of People First who are at risk of severe complications from COVID-19 do not have the capability to copy their IDs in their homes. Docs. 20-1 at 18–19, 32. As Secretary Merrill has indicated, voters may need to go to “Walmart or Kinko’s” to make a copy of their IDs in order to apply for an absentee ballot. See doc. 16-33 at 3. Alternatively,
41 As explained previously, the prima facie essential eligibility inquiry and the later fundamental alteration analysis overlap. See Mary Jo. C., 707 F.3d at 158 (“The regulations indicate that ‘essential eligibility requirements’ are those requirements without which the ‘nature’ of the program would be ‘fundamentally alter[ed].’”) (quoting 28 C.F.R. § 35.130(b)(7). For this reason, the court considers whether the photo ID can reasonably be deemed essential in its discussion of the plaintiffs’ proposed modification.
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the defendants suggest that the individual plaintiffs could find a person who could help them obtain a copy of their ID. See doc. 36 at 25. But this would entail requiring a vulnerable voter to find a person willing to help at the risk of potential exposure to COVID-19. As discussed above, a public entity violates Title II not just when “a disabled person is completely prevented from enjoying a service, program, or activity,” but also when such an offering is not “readily accessible.” Shotz, 256 F.3d at 1080 (citing 28 C.F.R. § 35.150). Although the interplay between the COVID-19 public health emergency and voting requirements is novel, district courts who have considered the issue have found that requiring a voter to risk her health by foregoing social distancing guidelines presents a “nearly insurmountable hurdle.” Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687, at *4 (N.D. Ill. April 23, 2020). Requiring a voter to ask another person to clear this hurdle on their behalf, even if this request proves successful, could easily dissuade them from voting. Because the photo ID requirement is not readily accessible to the plaintiffs, they meet their burden of demonstrating their exclusion.
The defendants’ third contention that the plaintiffs’ “difficulties stem from [their] own choices and not from the requirements imposed by Defendants,” doc. 36 at 30,42 is similarly problematic. The defendants assert that “it is [the plaintiffs’] subjective fear of contracting COVID-19—not their disabilities . . . that
42 The defendants expand on this argument in their counterargument to the plaintiffs’ witness requirement case. See doc. 36 at 30. To the extent that they intended to include these contentions for the photo ID requirement, the court considers them as well.
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causes their alleged exclusion.” Doc. 36 at 30. To support this contention, the defendants first cite an unpublished Fifth Circuit case finding a Title II claimant was not excluded in the meaning of the ADA because her exclusion “appear[ed] to be, at least in part, a product of [their] own choices.” Id. (citing Greer v. Richardson Independent School Dist., 472 F. App’x 287, 295 (5th Cir. 2012). In Greer, the court dismissed the plaintiff’s complaint that her seating location at an entertainment venue was subpar because the plaintiff did not ask to be reseated. Greer, 472 F. App’x at 295. In this case, the plaintiffs are presented with the option of braving exposure to an illness from which they are at high risk of severe complications or dying, or foregoing their right to vote. To the extent that the plaintiffs’ trepidation to risk their health is a choice, it is not a meaningful one. And, in any event, unlike the Greer plaintiff, these plaintiffs are asking to be reseated, i.e., that the defendants waive the requirement.
The defendants next cite to Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013), for the proposition that any injury the plaintiffs suffer due to their subjective fears of COVID-19 are self-inflicted. In that case, the Supreme Court contemplated justiciability questions regarding plaintiffs asserting that the Foreign Intelligence Surveillance Act violated their constitutional rights. Clapper, 568 U.S. at 398. As explained in part II, supra, the claims presented in this case are
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justiciable. Moreover, the individual plaintiffs’ fear of serious complications of contracting COVID-19 are hardly subjective.43
Finally, the defendants’ implication that the plaintiffs are barred from
making a claim against the state because they have already “compromise[ed] the
strict isolation they claim prevents them from complying” with the photo ID
requirement, see doc. 36 at 30, is unavailing. It is not clear from the record that the
plaintiffs have in fact compromised their strict isolation, see doc. 16-45 at 8, 18,
but even assuming that they had, this purportedly imperfect compliance does not
absolve the defendants of ADA violations. The ADA does not require the
plaintiffs to prove that they are completely unable to “enjoy[] a service, program,
or activity,” but rather that such participation is not “readily accessible.” Shotz,
256 F.3d at 1080 (citing 28 C.F.R. § 35.150). Demanding that the plaintiffs expose
themselves to COVID-19 when they otherwise would not impedes their ability to
readily access the state’s voting program. That the plaintiffs have some ability to
interface with others for medical appointments, grocery runs, and sporadic
interactions with their children and grandchildren or in-home care workers, see
43 The currently available information from the scientific community establishes an objective basis for the plaintiffs’ fear of contracting COVID-19. Based on their respective ages and disabilities, see generally doc. 16-45, each of the individual plaintiffs is highly vulnerable to the virus, doc. 16-4 at 3–4. Moreover, COVID-19 is “readily spread through respiratory transmission,” and touching contaminated surfaces. Id. at 4. Infected individuals may transmit the disease without showing any symptoms, id. at 5, and “the only ways to limit its spread is selfisolation, social distancing, frequent handwashing, and disinfecting surfaces,” id. at 3–4. Were the plaintiffs to contract COVID-19, they would be at high risk of dying from the disease. Their fear is not subjective.
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doc. 16-45 at 8, 18, does not permit the defendants to condition the plaintiffs’ exercise of their voting rights on violating self-isolation guidelines.
Turning now to the reasonable modification inquiry, the court finds the plaintiffs’ proposed modification is facially reasonable. See Schaw, 938 F.3d at 1267. The plaintiffs’ request is merely to extend an existing exemption to the photo ID requirement to a limited group of voters. See doc. 20-1 at 15. The defendants assert that the proposed expansion is “at odds with its purpose to preserve the sanctity and integrity of the ballot and election” and therefore “would be a fundamental alteration to Alabama elections,” doc. 36 at 31–32, but they provide no evidence to establish this claim, see generally id. This statement alone is insufficient to show that the photo ID requirement is essential and would therefore fundamentally alter Alabama’s voting program. See Schaw, 938 F.3d at 1267. Having performed a “highly fact-specific” inquiry into the proposed modification, Bircoll, 480 F.3d at 1085, the court find that the facts here belie the defendants’ assertion. Unlike the witness requirement, the Alabama legislature provides no language indicating the photo ID requirement is essential. See Ala. Code § 17-9-30. In fact, the law provides multiple exemptions to the photo ID requirement.44 Moreover, insofar as the purpose of the photo ID requirement is to
44 See Ala. Code § 17-9-30(d) (exempting from the photo ID requirement voters who are eligible to vote absentee pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, the Voting Accessibility for the Elderly and Handicapped Act; or any other federal law); id. at § 179-30(f) (permitting an individual to vote without a photo ID if two election officials identify her as an eligible voter on the poll list and sign a sworn affidavit to that effect).
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“preserve the sanctity and integrity of the ballot and election,” doc. 36 at 31–32,
other Alabama laws serve this purpose by protecting against voter fraud. For
example, as discussed previously, a voter casting an absentee ballot must provide
her driver’s license number or the last four digits of her social security number in
her absentee ballot application. Ala. Code § 17-11-4; doc. 16-46 at 19. Absentee
voters also must submit an affidavit identifying themselves and swearing that the
information in their affidavit is true. Ala. Code §§ 17-11-7; 17-17-24(a); doc. 16-
46 at 19. The defendants do not dispute that these laws provide effective deterrents
to voter fraud. See doc. 36. Based on these facts, the court finds the plaintiffs’
modification does not fundamentally alter the Alabama voting program.45
Accordingly, the plaintiffs have shown a likelihood of success on the merits of
their ADA claim challenging the photo ID requirement.
3.
Finally, the plaintiffs contend that Secretary Merrill’s prohibition on
curbside voting violates the ADA by denying “delivery of services at alternate
45 See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1225 (11th Cir. 2008) (allowing shortterm recovery homes to operate in multi-family zones was not the “fundamental alteration” that it would in single-family zones). Compare Se. Cmty. Coll. v. Davis, 442 U.S. 397, 410 (1979) (requiring a nursing school to waive all clinical requirements for a deaf applicant would fundamentally alter the nature of the nursing program), with Anderson v. City of Blue Ash, 798 F.3d 338, 363 (6th Cir. 2015) (allowing a miniature therapy horse to reside in disabled girl’s backyard would not necessarily fundamentally alter the nature of single-family neighborhoods). See also Mary Jo C., 707 F.3d 144, 160 (2d Cir. 2013) (“The fact that the State itself waives the deadline in the enumerated circumstances strongly suggests that the filing deadline is not ‘essential.’”); Martin, 532 U.S. at 685 (“[T]he walking rule is not an indispensable feature of tournament golf either. [The PGA] permits golf carts to be used [by non-disabled golfers] in [several of its tournaments other than the one in question].”).
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accessible sites.” Doc. 20-1 at 37 (citing 28 C.F.R. § 35.150(b)). The plaintiffs
state a prima facie case46 and have proposed a reasonable modification. As stated
previously, the defendants seem to misunderstand the plaintiffs’ case. See doc. 36
at 32. The plaintiffs are not requesting that the defendants “implement[] curbside
voting at 1,980 voting sites in fewer than 50 days,” id., but rather they are asking
that the defendants refrain from blocking counties that choose to offer the
accommodation, see docs. 1; 20-1 at 35–37. Beyond this misunderstanding, the
only argument the defendants present against the modification is their contention
that “mandated curbside voting would likely also be a fundamental alteration to
Alabama elections.” Doc. 36 at 32. But there is no evidence that curbside
voting—mandated or otherwise—would fundamentally alter Alabama law. In fact,
the defendants’ witness identified methods for making the offering feasible.47 The
46 The defendants do not contest the plaintiffs’ prima facie case for their curbside voting claim. See doc. 36. Alabama law does not prohibit curbside voting, see docs. 20-1 at 16; 36 at 26, and the plaintiffs merely request that the state not prohibit counties from implementing it, see docs. 1; 20-1 at 35–37. No evidence suggests that the prohibition is essential nor that an allowance of curbside voting would fundamentally alter Alabama law. Moreover, the plaintiffs have provided evidence that while they would vote in person if curbside voting were available, the state’s prohibition prevents them from doing so, doc. 16-45. The ADA is not so narrow that the plaintiffs’ rights only extend to voting “at some time and in some way.” Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 199 (2d Cir. 2014). The plaintiffs have the right to “fully participate in [Alabama’s] voting program[,]” id., including by casting a vote in person. The plaintiffs demonstrate that by prohibiting curbside voting, the state excludes them from voting in person based on their disability, thereby “fail[ing] to ‘provide[] [them] with meaningful access to the benefit that [it] offers.’” Id. (citing Alexander v. Choate, 469 U.S. 287, 29 (1985)). 47 The defendants submitted with their response the declaration of Clay Helms, the Deputy Chief of Staff and Director of Elections for the Alabama Secretary of State’s office. Doc. 34-1. Helms explained that curbside voting would require the use of e-poll books or alternatively the transport of polling lists from inside the polling place to the curb, additional tabulation machines to preserve ballot secrecy, and additional poll workers to staff the curbside voting stations. Id. at
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defendants’ contention that such a disruption is “likely,” id., is insufficient to rebut
the plaintiffs’ proposed modification. Here again, the plaintiffs have demonstrated
their likelihood of success on the merits of their ADA claim regarding curbside
voting.
C.
Finally, the court evaluates whether the plaintiffs have shown a substantial
likelihood of success on their claim that the witness requirement violates § 201 of the Voting Rights Act, codified at 52 U.S.C. § 10501.48 The plaintiffs maintain
that the witness requirement is an impermissible “test or device” under the statute.
The court notes that, unlike the plaintiffs’ other claims, the VRA claim contends
that the witness requirement is a facial violation of § 201, rather than as applied in
the context of the COVID-19 pandemic. At this juncture, the plaintiffs have not
demonstrated that they are likely to prevail on this claim.
As an initial matter, the defendants contend that this claim is not properly
before the court. In their view, claims under § 201 may be brought only by the
Attorney General of the United States, and they must be before a three-judge
22–23. Helms expressed concerns that these procedures would compromise the privacy of the curbside voters, inconvenience candidates wishing to campaign 30 feet from the polling site, and create parking and traffic flow problems around the site. Id. at 23–24. Presumably, those jurisdictions that opt to implement curbside voting will utilize procedures that address these concerns. 48 The plaintiffs plead that the witness requirement also violates §§ 2 and 3 of the VRA, codified at 52 U.S.C. §§ 10301, 10302. And they claim that the ban on curbside voting violates §§ 3 and 201 of the VRA, codified at 52 U.S.C §§ 10302, 10501. However, the plaintiffs did not move for a preliminary injunction on these claims.
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district court panel. The defendants are correct that the statute allows the Attorney General to initiate a civil action “[w]henever the Attorney General has reason to believe that a State or political subdivision . . . has enacted or is seeking to administer any test or device as a prerequisite to voting in violation of” § 201, and that when the Attorney General brings such an action, it “shall be heard and determined by a court of three judges” in federal district court. 52 U.S.C. § 10504. However, the statute also contemplates that private plaintiffs may bring an action challenging a state practice as an impermissible test or device. See 52 U.S.C. § 10302(b) (“If in a proceeding instituted by the Attorney General or an aggrieved person . . . the court finds that a test or device has been used . . . it shall suspend the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate[.]”) (emphasis added). And the requirement for a threejudge panel only applies when the Attorney General initiates the suit. See 52 U.S.C. § 10504. Consequently, this court may consider the plaintiffs’ claim under § 201.
Section 201 provides that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State.” 52 U.S.C. § 10501(a). The term “test or device” includes:
any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational
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achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. 52 U.S.C. § 10501(b). Alabama’s witness requirement does not qualify as a “test or device” under the statute’s first three provisions, as it is not a literary test, it is not an educational test, and it is not a moral character requirement. The issue is whether the witness requirement forces an absentee voter to “prove his qualifications by the voucher of registered voters or members of any other class . . . as a prerequisite for voting.” Id. Congress included the voucher requirement as a “test or device” in response to election practices used to discriminate against African-Americans. For example, in at least one county in Alabama, in order to register to vote, an applicant had to produce a “supporting witness” who “must affirm that he is acquainted with the applicant, knows that the applicant is a bona fide resident of the county, and is aware of no reason why the applicant would be disqualified from registering.” United States v. Logue, 344 F.2d 290, 291 (5th Cir. 1965); see also S. Rep. No. 89162, 1965 U.S.C.C.A.N. 2508, 2549–50 (1965) (citing the Logue case as justification for the inclusion of the “voucher requirement” in the Voting Rights Act of 1965).49
49 Originally, the “test or device” ban applied only to jurisdictions subject to preclearance, see 52 U.S.C. § 10303(b), but Congress extended the ban to apply nationwide in 1970, see Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 6, 84 Stat. 314, 315 (1970), and it made the ban permanent in 1975, see Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 102, 89 Stat. 400, 400 (1975).
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Alabama’s current witness requirement is less onerous. It requires only that an absentee voter “have a notary public (or other officer authorized to acknowledge oaths) or two witnesses witness his or her signature to the [absentee voting] affidavit.” Ala. Code § 17-11-9. The notary or witnesses must then sign the affidavit and list their address. See Ala. Code § 17-11-7(b). The notary also “certif[ies] that the affiant is known (or made known) to me to be the identical party he or she claims to be.” Id.
The plaintiffs argue that Alabama’s witness requirement qualifies as a prohibited voucher requirement, because it mandates that “[w]itnesses must vouch for a voter’s identity.” Doc. 20-1 at 28. But that is not the case. As a copy of the affidavit form makes clear, only the notary must vouch for the voter’s identity by “certify[ing] that the affiant is known (or made known) to me to be the identical party he or she claims to be.” Compare Ala. Code § 17-11-7(b), with doc. 39-1. The witnesses do not vouch that the voter is over 18, that she is a citizen, that she is a resident of the state, or that she is not disqualified from voting as a convicted felon or for any other reason. Cf. Ala. Const. art. VIII, § 177 (noting qualifications for voting). The witnesses’ signature indicates only that they observed the voter sign the affidavit. See Ala. Code § 17-11-9. As such, the witnesses do not vouch for the voter’s “qualifications.” 52 U.S.C. § 10501(b).
Arguably, because the notary certifies that the voter is who she says she is, the notary does vouch for the voter’s qualifications in violation of § 201. This
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argument turns on whether the voter’s identify is a “qualification” for the purposes of the statute. 52 U.S.C. § 10501(b). A qualification is defined as the “possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible . . . to perform a public duty or function.” Qualification, Black’s Law Dictionary (11th ed. 2019); see also Qualification, Oxford English Dictionary (2d ed. 1989) (“A necessary condition, imposed by law or custom, which must be fulfilled or complied with before a certain right can be acquired or exercised, an office held, or the like.”). It seems to the court that it is “inherently or legally necessary” to vote that a voter be who she says she is.50
Anticipating this argument, the United States contends, in a statement of interest, that the notary’s certification of the voter’s identity is not a voucher “requirement,” because absentee voters have the option of using witnesses instead. Doc. 39 at 9 n.3. Another judge on this court recently accepted a similar argument that the option for an in-person voter to prove her identity by being “positively identified” by two election officials was not a “requirement” but rather a “failsafe” for those who forgot or did not have a photo ID. Greater Birmingham Ministries, 284 F. Supp. 3d at 1281–83. That case is currently pending on appeal. Greater Birmingham Ministries v. Sec’y of State of Ala., No. 18-10151 (11th Cir. argued
50 The VRA prohibits a test or device that requires a voter to “prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b) (emphasis added). The United States argues that adults do not qualify as a class. See Ala. Code § 17-1110(b) (requiring that witnesses be “18 years of age or older”). The court need not address this issue. But surely “notar[ies] public (or other officer[s] authorized to acknowledge oaths)” qualify as a class under the statute. Ala. Code § 17-11-9.
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July 28, 2018). For its part, this court is concerned about the consequences of a rule that so long as the state offers one method of voting that passes statutory muster, the state is free to offer another method that violates the statute.
In this case, however, the plaintiffs do not make any arguments about whether the notary-specific certification, as opposed to the witness requirement generally, is a prohibited voucher requirement under § 201. For this reason, the plaintiffs have not established that they are likely to succeed on the merits of their VRA claim at this time.
IV. In addition to showing a likelihood of success on the merits, the plaintiffs must also show a likelihood of irreparable harm in the absence of relief, that the balance of equities weigh in their favor, and that an injunction serves the public interest. See Winter, 555 U.S. at 20. In this case, if the challenged election laws are not enjoined, the individual plaintiffs and similarly-situated voters could likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections. “The denial of the opportunity to cast a vote that a person may otherwise be entitled to cast—even once—is an irreparable harm.” Jones, 950 F.3d at 828. Thus, the plaintiffs have shown a likelihood of irreparable harm in the absence of relief. See Id. (citations omitted); Obama for Am. v. Husted, 697 F.3d
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423, 435 (6th Cir. 2012); Christian Legal Soc’y v. Walker, 453 F.3d 852, 859 (7th Cir. 2006).
The balance of equities and the public interest also tip in the plaintiffs’ favor. While an order enjoining the witness and photo ID requirements results in some burden to the defendants, who will have to quickly communicate the changed rules to local election officials and voters, those burdens do not outweigh the irreparable injury the individual plaintiffs and similarly-situated voters could incur by foregoing their right to vote. The court appreciates the defendants’ concern that changes to election rules could cause confusion, see doc. 36 at 34, and that “federal courts should ordinarily not alter the election rules on the eve of an election,” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). But, the singular circumstances presented by the COVID-19 pandemic are far from ordinary, and, while the burden of communicating election rule changes is not minimal, the defendants have time to clearly and succinctly communicate the changes prior to the July 14 run-off election without causing chaos and confusion. In addition, prohibiting the state from interfering with local election officials, if any, who choose to provide curbside voting that complies with state election laws imposes no burden on the defendants, while the prohibition could burden vulnerable voters who need to minimize their risk of exposure to COVID-19 and who need assistance at the polls. Thus, the burdens imposed on voters in high-risk
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groups who wish to vote absentee or by curbside voting during the COVID-19 pandemic outweighs the competing burden on the defendants.
Next, all voters have a “strong interest in exercising the ‘fundamental political right’ to vote.’” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (citation omitted). “The public interest therefore favors permitting as many qualified voters to vote as possible.” Obama for Am., 697 F.3d at 437. As a result, the court finds that granting injunctive relief in this case is in the public interest, and that the plaintiffs have established they are entitled to a preliminary injunction.
V. “Crafting a preliminary injunction is an exercise of discretion and judgment.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (citation omitted). “In executing its duties, the court must pay particular attention to the public consequences of any preliminary relief it orders.” Lee at 1327 (citing Winter, 555 U.S. at 24). In addition, “a court ‘need not grant the total relief sought by [the plaintiffs] but may mold its decree to meet the exigencies of the particular case.’” Trump, 137 S. Ct. at 2087 (citation omitted). Thus, for the foregoing reasons and after careful consideration of the record, the court will grant in part the plaintiffs’ motion for a preliminary injunction, doc. 15, and will order defendants: (1) not to enforce the witness requirement for the July 14 runoff election for absentee voters who determine it is impossible or unreasonable to safely satisfy that requirement in light of the COVID-19
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pandemic, and who provide a written statement signed by the voter under penalty of perjury that he or she suffers from an underlying medical condition that the Centers for Disease Control has determined places individuals at a substantially higher risk of developing severe cases or dying of COVID-19; (2) not to enforce the photo ID requirement for the July 14 runoff election for absentee voters who are over the age of 65 or disabled who determine it is impossible or unreasonable to safely satisfy that requirement in light of the COVID-19 pandemic, and who provide a written statement signed by the voter under penalty of perjury that he or she is 65 or older or has a disability; and (3) not to enforce the state’s de facto prohibition on curbside voting. A separate order will be issued.
DONE the 15th day of June, 2020.
_________________________________ ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 Jun-17 PM 09:22 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs, v. JOHN MERRILL, et al.,
Defendants.

Case No.: 2:20-cv-00619-AKK

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION

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It is undisputed that thousands of voters, including Plaintiffs and Plaintiffs’ many members, are at greater risk from COVID-19 because of the Challenged Provisions. As COVID-19 infections and deaths are rising at alarming rates, Ex. 68, 69, the chief state health officer is now open to another shutdown. Ex. 70, 71. Given the imminent danger ahead of the July 14 elections, the Court should enjoin: 1) the Witness Requirement; 2) the Photo ID Requirement for those voters most vulnerable to COVID-19; and 3) State Defendants from interfering with probate judges who choose to use curbside voting. Far from asking the Court to “micromanage” a state election, this relief is necessary to satisfy federal law and prevent irreparable harm.
Plaintiffs have standing because they are injured by having to violate social distancing guidance to vote, and Defendants have the authority to remedy that injury. On the merits, risking one’s safety to vote is a severe burden, which is not justified by unsupported speculation about voter fraud. Plaintiffs’ motion should be granted.
Plaintiffs Have Standing. Plaintiffs allege an injury-in-fact because the Challenged Provisions force them to violate social distancing guidance or face disfranchisement. Doc. 1 ¶¶ 7-8, 18-19, 21-36; Doc. 20-1 at 10-11. And voters always have standing to challenge state laws that require them to take some act (like obtain a photo ID or a witness) to vote. See Common Cause v. Billups, 554 F.3d 1340, 1351-52 (11th Cir. 2009). Nor does it matter whether the injury is common to all voters. So long as “a harm is concrete,” injury-in-fact exists even if the harm is
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“widely shared.” Fed. Elec. Com’n v. Akins, 524 U.S. 11, 24 (1998). In fact, Plaintiffs and Plaintiffs’ members are lawful voters with disabilities that place them at high-risk of serious illness from COVID-19. Doc. 20-1 at 10-11; see Thomas v. Andino, 2020 WL 2617329, at *15 (D.S.C. May 25, 2020). And, given the State’s social distancing rules, Organizational Plaintiffs are pursuing new efforts, Doc. 1 ¶¶ 31, 35-36, to help voters with (and push the State to ease) the Challenged Provisions’ burdens. Accordingly, Plaintiffs and Plaintiffs’ members have standing. Arcia v. Fla. Sec’y of State, 772 F. 3d 1335, 1342 (11th Cir. 2014); Billups, 554 F.3d at 1350-51.
Defendants’ claim that it is too “speculative” to know whether Plaintiffs will contract COVID-19 due to the Challenged Provisions, Doc. 36 at 6, misunderstands the nature of Plaintiffs’ injury. The injury-in-fact is that Plaintiffs must take steps to satisfy the Challenged Provisions. See Arcia, 772 F.3d at 1341; Billups, 554 F.3d at 1351-52. The greater risk of getting COVID-19 due to the Challenged Provisions is relevant to the merits since it shows the severity of the burdens during the pandemic. But Plaintiffs’ Article III injury is being forced to comply with the Challenged Provisions, which they have standing to challenge even outside of a pandemic.
Plaintiffs’ injuries are also traceable to, and redressable by, Defendants. Because the Article III injury is the Challenged Provisions’ enforcement (not the pandemic), Defendants are sufficiently connected to such enforcement for purposes of both standing and Ex Parte Young. See Doc. 36 at 14 n.14 (agreeing that these
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analyses are coequal). Defendants rely on Jacobson v. Florida Secretary of State, but there the state
official had no role at all in enforcing the challenged law. 957 F.3d 1193, 1207-08 (11th Cir. 2020). Where, as here, state officials have some statutory or other role in enforcing a law, an injunction against them satisfies redressability and traceability. See, e.g., NAACP v. Browning, 522 F.3d 1153, 1159 & n.9 (11th Cir. 2008); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 & n.3 (11th Cir. 2005).
State Defendants have already altered the Challenged Provisions, Doc. 36 at 1-2, meaning they can provide the requisite relief. In all elections, State Defendants enforce the Challenged Provisions, Ala. Code §§ 17-11-3, 17-11-3.1, 17-11-4, 1711-50, and related criminal penalties. Id. § 17-17-24. They help certify returns. Ala. Code §§ 17-12-2, 17-12-9, 17-12-17, 17-12-18, 17-13-17, 17-13-18. Defendants concede that certifying officials are proper parties. Doc. 36 at 12 n.10. And the Governor’s emergency powers allow her to eliminate the Challenged Provisions. Ala. Code § 31-9-8(a)(5); Ala. Op. Att’y Gen. No. 2020-020, 2020 WL 1322057 (Mar. 17, 2020). This establishes standing. Ga. Latino All. v. Gov., 691 F.3d 1250, 1260 n.5 (11th Cir. 2012); Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988).
Further, the photo ID law directs the Secretary to administer, interpret, and publicize it. Ala. Code § 17-9-30(g)-(p). Absentee election managers (“AEMs”) issue regular or provisional absentee ballots depending on whether a voter provides
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photo ID. Doc. 36 12 n.10. Ordering the Secretary to waive the photo ID law or broaden its exemption and the AEMs to issue regular ballots to voters who do not produce ID would redress the injury. GBM v. Merrill, 2017 WL 782776, at *4 (N.D. Ala. Mar. 1, 2017) (Secretary’s authority under photo ID law sufficient for standing).
The Secretary also provides “uniform guidance” to election officials, Ala. Code § 17-1-3(a), including guidance related to the Witness Requirement, which election officials follow. Doc. 41 at 4-5; Doc. 36 at 12 n.10. The AEMs give voters “instructions for completing and returning the absentee ballots.” Ala. Code § 17-119. Ordering the Secretary to instruct election officials and the AEMs to instruct voters that the Witness Requirement is waived redresses Plaintiffs’ injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992) (redressability does not require complete relief). For curbside voting, the State’s witness admits that the Secretary has intervened twice to stop local election officials from using it. Doc. 34-1 ¶ 43. An injunction barring any such future interventions would redress Plaintiffs’ injuries.
Finally, for the ADA and VRA claims against the State, sovereign immunity has been abrogated; thus, Defendants’ Ex Parte Young and redressability arguments have “no role to play here.” OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017); see NAACP v. Alabama, 949 F.3d 647, 655 (11th Cir. 2020); Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020). Defendant Roberson is sued in her official capacity as Circuit Clerk and AEM. Doc. 1 ¶ 40. If she has
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resigned from those roles, Doc. 41 at 1-2, her “successor is automatically substituted as a party,” which does not moot Plaintiffs’ claim. Fed. R. Civ. P. 25(d).
Plaintiffs Are Likely to Succeed on the Merits. First, Plaintiffs are likely to prevail on their constitutional claims. Under Anderson-Burdick, Plaintiffs have identified burdens inflicted by the Challenged Provisions that warrant relief. Thomas, 2020 WL 2617329, at *19. As to the Witness Requirement, Defendants fail to address the very real burden on Plaintiffs or Plaintiffs’ members who live alone or with one person. Doc. 20-1 at 16. Because Plaintiffs do not encounter two people simultaneously, Doc. 20-1 at 10-11, the Witness Requirement forces them to violate social distancing rules to interact with one or more people outside their household.
But COVID-19 is spread easily, Ex. 3 ¶ 6-7, and stays in the air for up to 14 minutes after an infected person talks. Ex. 72 ¶ 2. “Strikingly,” Defendants seek to enforce the Witness Requirement for everyone, requiring an “asymptomatic COVID-19 voter [to] unknowingly place potential witnesses at risk” and a symptomatic voter to “find a willing witness.” Thomas, 2020 WL 2617329, at *24. Defendants speculate that a witness could “watch the signing through a window,” Doc. 36 at 20, but even then “many would be dissuaded from exercising their vote both on account of the remaining health risks and required steps to mitigate them.” League of Women Voters v. Bd. of Elec., 2020 WL 2158249, at *8 (W.D. Va. May 5, 2020). Defendants suggest that Plaintiffs could ask individuals like a grocer or
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delivery driver to be a witness. Doc. 34-1 ¶ 41(d)(ii). But such hypothetical witnesses cannot “confirm[ ]” a voter’s identity, Doc. 36 at 27, and are essential workers who are at higher risk of contracting and spreading COVID-19. Ex. 51 at 2.
Without any support, Defendants also claim “[m]any voters” could use remote notarization. Doc. 36 at 20. But this can require the payment of an unconstitutional fee to vote and not all voters or notaries have videoconferencing. Doc. 20-1 at 6, 1617. Even remote notarization still requires a notary and voter to sign the same physical ballot, Doc. 34-1 ¶ 41(d)(i), posing significant logistical issues and risks.
Weighed against these severe burdens, Defendants cannot simply point to election integrity generally and note that “witnesses are required for signatures of many legal documents.” Doc. 36 at 20. Because election integrity is protected by many other means, see Doc. 20-1 at 18-20, Defendants have not identified a state interest that makes the Witness Requirement “necessary to burden the plaintiff’s rights,” and, thus, this Requirement fails heightened scrutiny. Tashjian v. Republican Party, 479 U.S. 208, 221-22 (1986); see Thomas, 2020 WL 2617329, at *21 & n.22.
The Photo ID Requirement likewise severely burdens Plaintiffs’ right to vote in the context of the pandemic. See Doc. 20-1 at 23-25. Nothing in Anderson-Burdick supports Defendants’ suggestion that voters should be put in the position of asking someone else to bear the risk of contracting COVID-19 to make a copy of their photo ID. See Doc. 36 at 19. And, once again, Defendants’ interest in election integrity is
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not “necessary to burden” Plaintiffs’ rights. Tashjian, 479 U.S. at 221-22. Certain voters are already exempt from providing photo ID. Ala. Code § 17-9-30(d). Defendants do not even attempt to argue that the other means in state law that protect election integrity are sufficient for these already exempted voters but insufficient for voters vulnerable to the virus. Thus, the Photo ID Requirement is not “narrowly” drawn to satisfy a compelling state interest. Tashjian, 479 U.S. at 217. To cure this violation, the exemption must be construed to include Plaintiffs. Doc. 20-1 at 26-27.
Along with those who cannot satisfy the Photo ID or Witness Requirement, there are some voters, like Plaintiffs’ members, for whom absentee voting is not a viable option because they require in-person help. Doc. 20-1 at 28. In asserting that anyone can vote absentee, see Doc. 36 at 21, Defendants ignore these voters and the burdens placed on them by Defendants’ Curbside Voting Prohibition. Defendants contend that it would not be administratively feasible to require curbside voting at every poll site. Doc. 36 at 26. But Plaintiffs only seek an injunction prohibiting the Secretary from interfering when probate judges choose to deploy curbside voting.
Second, Plaintiffs are likely to prevail on their ADA claim. They are registered voters who are eligible to vote absentee and, with accommodations, could vote. Doc. 20-1 at 21-23. This is enough to meet “essential eligibility requirements.” 42 U.S.C. § 12131(2). Defendants cannot overcome the ADA claim by simply asserting that the Photo ID and Witness Requirements are “essential.” Compare Doc. 36 at 23 with
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Doe v. Rowe, 156 F. Supp. 2d 35, 59 (D. Me. 2001) (finding that a state constitution’s voting qualification was not “essential”). Rather, the Court must examine these requirements’ purpose (i.e., identification) and whether it can be satisfied with a reasonable modification. See Schaw v. Habitat for Humanity, 938 F.3d 1259, 126667 (11th Cir. 2019). Alabama law already allows certain voters to prove their identity without strictly meeting the Photo ID or Witness Requirements. Ala. Code § 17-930(d); Ala. Admin. Code § 820-2-10-.03(4). Contradictorily, Defendants also say that identification is not a qualification. Doc. 36 at 26-27. Thus, these requirements are not “essential,” and Plaintiffs’ proposed accommodations do not “fundamentally alter” the State’s elections. See, e.g., Martin v. PGA Tour, Inc., 994 F. Supp. 1242, 1253 (D. Or. 1998) (finding it relevant that the defendant had denied that plaintiff’s accommodation was reasonable, but had offered similar accommodations to others), aff’d, 204 F.3d 994 (9th Cir. 2000), aff’d, 532 U.S. 661 (2001); Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 852 (7th Cir. 1999); Doe v. Judicial Nominating Com’n, 906 F. Supp. 1534, 1544 (S.D. Fla. 1995). And the State’s own witness notes that curbside voting is feasible with some conditions. Doc. 34-1 ¶ 46.
Defendants also assert that the Challenged Provisions do not totally bar Plaintiffs from voting. Doc. 36 at 23. But an ADA violation “does not occur only when a disabled person is completely prevented from enjoying a service.” Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001). The ADA forbids rules that are direct
8

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barriers or that “screen out” people with disabilities, 28 C.F.R. § 35.130(b)(8), and otherwise “diminish” their “chances of participation.” 1990 U.S.C.C.A.N. 303, 388.
Specifically, the ADA prohibits voting barriers even where one has a “choice” of voting methods. See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016) (ADA challenge to “inaccessible” absentee voting not barred by the availability of “accessible” in-person voting). And Plaintiffs do not merely “fear” COVID-19. Doc. 36 at 24. Rather, the CDC and undisputed expert reports agree that, now and in July, Ex. 1, Ex. 3 ¶ 15, Ex. 67 ¶ 17, Plaintiffs face the real risk that the Challenged Provisions will endanger their lives “by reason of” their disabilities. Doc. 20-1 at 22-23; see Bragdon v. Abbott, 524 U.S. 624, 649 (1998); McAlindin v. San Diego Cty., 192 F.3d 1226, 1235 (9th Cir. 1999) (disability led to self-isolation).
Third, Plaintiffs are likely to succeed on their as-applied or facial Section 201 claim. This claim does not require a three-judge court, because it is not brought by the Attorney General. See 52 U.S.C. § 10504. Where the VRA “does not ‘expressly require’ a three-judge court,” courts do not convene them. Nick v. Bethel, 2007 WL 9718147, at *5 (D. Alaska July 31, 2007); see Thomas, 2020 WL 2617329, at *29.
Defendants and DOJ also wrongly contend that the Witness Requirement does not entail members of a “class” vouching for a voter’s “qualifications” or is not a “requirement.” 52 U.S.C. § 10501(b). Per Alabama Code § 17-11-7 and Defendants, a witness must vouch for or “confirm[ ] the identity of a person.” Doc. 36 at 27. This
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is a voting qualification. Ala. Code § 17-11-9; U.S. v. Ward, 349 F.2d 795, 798 (5th Cir. 1965). Vouchers are restricted to a “class” of non-candidates over age 18, Ala. Code § 17-11-7(b), (c), which, as applied, has a disparate impact. Doc. 20-1 at 5-6.1
The Witness Requirement is in fact a requirement: absentee ballots that fail to meet it are rejected. Ala. Code § 17-11-7. It does not matter that voters might opt to avoid it. The Supreme Court has enjoined a law that gave voters a “choice” between satisfying a literacy test or a then-valid property qualification. South Carolina v. Katzenbach, 383 U.S. 301, 319 (1966). DOJ has similarly ruled that literacy tests that applied only to absentee voters violated the VRA. Letter from DOJ to Ala. (Mar. 13, 1970), https://www.justice.gov/crt/case-document/file/1277176/download. And, regardless, the Witness Requirement is surely a requirement as applied in the present crisis since Plaintiffs have no choice but to vote absentee to protect their safety.
Finally, the Witness Requirement’s preclearance is irrelevant. Preclearance did “not represent approval of the voting change.” Reno v. Bossier Par., 528 U.S. 320, 335 (2000). Thus, precleared laws can still be “attacked.” Id.; see 52 U.S.C. § 10304(a). In fact, DOJ had to preclear a voting law that was not retrogressive, even if it violated another VRA section. Reno v. Bossier Par., 520 U.S. 471, 474 (1997).
Accordingly, the Court should grant Plaintiffs’ preliminary injunction motion.
1 In contrast, in Thomas, the witness requirement there was not a voucher test only because it did not require a witness to “confirm” or “know” a voter’s identity and it did not require a witness to be in any class at all, i.e., candidates and children could be witnesses. 2020 WL 2617329, at *30.
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DATED this 1st day of June 2020. Respectfully submitted,

/s/ Deuel Ross Deuel Ross* Natasha C. Merle* Liliana Zaragoza* NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 P: (212) 965-2200 dross@naacpldf.org nmerle@naacpldf.org lzaragoza@naacpldf.org
Mahogane D. Reed* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 700 14th Street N.W.Ste.600 Washington, DC 20005 (202) 682-1300 mreed@naacpldf.org

/s/ Sara Zampierin Sara Zampierin (ASB-1695-S34H) SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 P: (334) 956-8200 F: (334) 956-8481 sara.zampierin@splcenter.org
/s/ Caren E. Short Caren E. Short (ASB-0646-P48N) Nancy G. Abudu* SOUTHERN POVERTY LAW CENTER PO Box 1287 Decatur, GA 30031 P: (404) 521-6700 F: (404) 221-5857 caren.short@splcenter.org nancy.abudu@splcenter.org

/s/ William Van Der Pol

*Admitted Pro Hac Vice

William Van Der Pol [ASB-211214F]

Jenny Ryan [ASB–5455-Y84J]

ALABAMA DISABILITIES

Attorneys for Plaintiffs

ADVOCACY PROGRAM

Box 870395

Tuscaloosa, AL 35487

P: (205) 348-4928

wvanderpoljr@adap.ua.edu

jrryan2@adap.ua.edu

Case 2:20-cv-00619-AKK Document 65 Filed 06/17/20 Page 13 of 13
CERTIFICATE OF SERVICE
I hereby certify that on June 1, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to counsel of record. I further certify that I will mail a copy of the forgoing to the following parties:
Jacqueline Anderson-Smith Circuit Clerk of Jefferson County, Alabama Jefferson County Courthouse 716 Richard Arrington, Jr. Blvd. N. Birmingham, AL 35203
Karen Dunn Burks Deputy Circuit Clerk Bessemer Division of Jefferson County, Alabama 1801 3rd Ave N Bessemer, AL 35020
/s/ Deuel Ross Deuel Ross Counsel for Plaintiffs

 
 Case 2:20-cv-00619-AKK Document 66 Filed 06/17/20 Page 1 of 12
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2020 Jun-17 PM 09:37 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs, v. JOHN MERRILL, et al.,
Defendants.

Case No.: 2:20-cv-00619-AKK

PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERSON’S MOTION TO DISMISS Plaintiffs and Defendant Mary B. Roberson are seeking to amicably resolve Defendant Roberson’s pending motion to dismiss. See Doc. 63 at 1. Plaintiffs maintain that a resolution is still possible and thus respectfully ask the Court to grant their unopposed motion to extend the timeline for Defendant Roberson to file her reply brief. Id. Nonetheless, Plaintiffs are filing this opposition in an abundance of caution because the Court has yet to grant Plaintiffs’ motion for an extension of time. Plaintiffs have adequately pled claims under the Americans with Disabilities Act (“ADA”); the Voting Rights Act of 1965 (“VRA”); and the First and Fourteenth Amendments to the U.S. Constitution. Doc. 1 ¶¶ 10–12. Plaintiffs seek to enjoin all Defendants—including Defendant Roberson in her official capacity as Circuit Clerk of Lee County—from enforcing the Witness Requirement and Photo ID
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Requirement for absentee voters, and the Prohibition on Curbside Voting (collectively, the “Challenged Provisions”). On June 15, 2020, this Court found that Plaintiffs are likely to succeed on the merits of their constitutional and ADA claims and granted their preliminary injunction, thereby confirming—at a minimum—the sufficiency of the pleadings at this stage. Doc. 58.
Defendant Roberson has filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). Defendant Roberson does not contest that the Absentee Election Manager (“AEM”) is a proper defendant. And because she has abdicated her duties as the AEM, the Court has already ruled that the new AEM for Lee County, James Majors, should be substituted into the litigation in his official capacity. Mem. Op., Doc. 58 at 31. Nonetheless, Defendant Roberson erroneously asserts that, after abdicating her AEM role, she “has no authority [as Circuit Clerk] to effect change to, enforce, or apply any of the challenged provisions.” Doc. 54 at 11. This is incorrect. The Complaint’s factual allegations and requests for relief also implicate Defendant Roberson’s continuing role as Lee County Circuit Clerk in enforcing and administering the Challenged Provisions and thus satisfies the Article III inquiry.
Further, consistent with the Court’s opinion on the preliminary injunction, Defendant Roberson is not entitled to sovereign immunity under Ex Parte Young. Doc. 58 at 27–28. Finally, Plaintiffs have also sufficiently and plausibly pled facts to support each of their claims.
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Accordingly, Defendant Roberson’s motion should be denied in full. FACTUAL BACKGROUND
On May 1, 2020, Plaintiffs filed their Complaint seeking to enjoin Defendants’ enforcement of the Challenged Provisions, including Defendant Roberson. Doc. 1. The Complaint alleges that Defendants’ enforcement of the Challenged Provisions during the ongoing COVID-19 pandemic creates “nearly insurmountable barriers to exercising the fundamental right to vote,” in violation of the First and Fourteenth Amendments to the U.S. Constitution, the ADA, and the VRA. Doc. 1 ¶¶ 10–11, 138. In the absence of an injunction against Defendants, an absentee ballot that does not comply with the Witness and Photo ID Requirements goes uncounted. Doc. 1 ¶ 7. However, complying with the Challenged Provisions burdens the right to vote of Black voters, elderly voters, and voters with disabilities, and puts them at a heightened risk of contracting COVID-19. Id. ¶ 18.
In May 2020, Defendant Roberson announced that she would no longer serve as the AEM for all remaining 2020 elections. Doc. 37-1 ¶ 3. On June 9, 2020, Defendant Roberson moved to dismiss all of Plaintiffs’ claims against her for failure to state a claim and lack of subject matter jurisdiction. Doc. 54. The appointing board for Lee County, of which Defendant Roberson is a member, has since appointed James Majors as her successor in the AEM role. Id. at 3, 5. Defendant Roberson continues to serve as Circuit Clerk for Lee County. Id.
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ARGUMENT I. The Court Has Subject-Matter Jurisdiction over Claims Against
Defendant Roberson. Defendant Roberson was sued in her official capacity as both Circuit Clerk and AEM. Doc. 1 ¶ 40. Despite recently stepping down as AEM, Defendant Roberson still serves as Circuit Clerk and will continue to serve “on the appointing board and canvassing board as a required duty of the Circuit Clerk.” Doc. 37-1 ¶ 4. Yet, she wrongly asserts that “none of the claims in Plaintiffs’ complaint, even if successful, implicate Mrs. Roberson’s . . . duties as circuit clerk . . . .” Doc. 54 at 1– 2. Given that Defendant Roberson, in her official capacity as Circuit Clerk of Lee County, enforces and administers aspects of the Challenged Provision, she remains a proper party and the Court has jurisdiction over the claims against her. To survive a motion to dismiss, “‘general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.’” United States v. Baxter Intern., Inc., 345 F.3d 866, 881 (11th Cir. 2003) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994)). The causation and redressability requirements of Article III standing are easily satisfied where the facts alleged indicate a “fairly traceable” link to the defendants’ conduct and the potential for redress of the injury. See Ga. Latino All. For Human Rights v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012). In
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evaluating Article III causation, something less than proximate cause is required, such that “even 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 v. Pinellas Suncoast Transit, 344 F.3d 1263, 1273 (11th Cir. 2003) (citation omitted).
The Court has already concluded that Plaintiffs have alleged an injury-in-fact sufficient to satisfy Article III standing. Doc. 58 at 14–18. Defendant Roberson, however, argues that Plaintiffs have not met the traceability and redressability prongs of the inquiry because “Mrs. Roberson has no authority to effect change to, enforce, or apply any of the challenged provisions.” Doc. 54 at 11.
This is incorrect. Plaintiffs’ allegations that their injuries have been caused by Defendant Roberson are sufficient to satisfy the “relatively modest” requirements that apply at “this stage of the litigation.” Bennett v. Spear, 520 U.S. 154, 171 (1997).
First, the Complaint alleges that the Circuit Clerks play a role in “enforcing the Witness and Photo ID Requirements” through “canvassing absentee ballots.” Doc. 1 ¶ 40; see also id. at 54–56. Contrary to Defendant’s contentions, where a state official has some statutory role in enforcing a law, as is the case with Defendant Roberson, an injunction against them satisfies redressability and traceability. See, e.g., Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1159 & n.9 (11th Cir. 2008); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 & n.3 (11th Cir. 2005). The Complaint seeks to enjoin all Defendants from enforcing the
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Witness and Photo ID Requirements. Doc. 1 at 53(B)(1)–(2). To do so, the Complaint specifically asks the Court to order Defendants, including Defendant Roberson, to “count otherwise validly cast absentee ballots” that are unwitnessed or missing photo ID. Doc. 1 at 53(B)(4)–(5). As a member of the canvassing board, the Circuit Clerk has a direct statutory charge to “make a correct statement from the returns of the votes from the several voting places of the county,” and certify those results to be filed with the Probate Judge and Secretary of State. See, e.g., Ala. Code §§ 17-12-9, 17-12-15, 17-14-33, 17-14-72, 17-10-2 (f).
As a result, if the requested relief is granted, the Court can order the Circuit Clerk, including Defendant Roberson, to canvass and certify those election returns that include unwitnessed ballots or ballots that lack photo ID. Doc. 1 ¶ 40 and 53(B). Indeed, State Defendants have conceded that canvassing and certifying officials are proper parties. See Doc. 36 at 12 n.10 (arguing AEMs cannot enforce Challenged Provisions but stating the “canvassing board, on which the circuit clerk serves for general elections, counts the provisional ballots”).
Second, the Complaint requests that the Court “order[] Defendants to issue guidance instructing” election officials (i.e., poll workers) to accept unwitnessed ballots and ballots without photo ID. Doc. 1 at 53(B)(4)–(5). The Circuit Clerk is a member of the appointing and canvassing board. Ala. Code. § 17-1-2(1) and (6). As such, the Circuit Clerk is charged with the selection, id. § 17-8-1(a), and training of
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poll workers on the proper acceptance or rejection of absentee ballots, and the means of conducting curbside voting. See id. § 17-8-9 (providing that the circuit clerk, probate judge, and sheriff must provide poll worker trainings and that the probate judge notifies poll workers of this training); see also id. §§ 17-11-10, 17-11-11 (describing the existing process whereby poll workers count absentee ballots). Plaintiffs’ requested relief directly implicates the Circuit Clerk’s role in selecting and training of poll workers.
Importantly, as this Court acknowledged with respect to the canvassing of ballots and certifying election results: “On election day, the AEM delivers the absentee ballots to absentee election officials, who ‘shall examine each affidavit envelope to determine if the signature of the voter has been appropriately witnessed.’” Doc. 58 at 20 (quoting Ala. Code §17-11-10(b)). The Circuit Clerks are responsible for selecting and training the poll workers who inspect absentee ballots for witness signatures. Ala. Code §§ 17-8-1, 17-8-9. In addition, as a member of the canvassing board, the Circuit Clerk is responsible for canvassing ballots and certifying election results. Ala. Code § 17-10-2(g)–(f). An injunction against the AEMs and the Circuit Clerks1 will likely result in the relief requested: the counting

1

As this Court recognized in its determination that plaintiffs have standing to sue the AEMs,

the role of the board of registrars and canvassing board in ultimately counting provisional ballots

“does not somehow negate the AEMs role in screening the ballots in the first instance.” Doc. 58

at 19 n.9. Conversely, the AEMs’ initial screening of ballots, does not negate “[t]he fact that the

board of registrars, in conjunction with the canvassing board”—of which the Circuit Clerk is a

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of absentee ballots without witness signatures or photo IDs. Doc. 1 at 53–54; see also Doc. 58 at 22–23, 26.
Moreover, Defendant Roberson need not on her own provide Plaintiffs with complete relief, instead, partial relief is sufficient for standing purposes. Made in the USA Found. v. United States, 242 F.3d 1300, 1310 (11th Cir. 2001); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992) (redressability does not require complete relief). An injunction against enforcing the Witness and Photo ID Requirements—which necessarily involves counting ballots that are unwitnessed or lack ID, certifying returns that include such ballots, training poll officials to accept such ballots, and training poll workers on the implementation of curbside voting— will substantially or, at least, partially redress Plaintiffs’ injuries. II. Defendant Roberson Is Not Entitled to Sovereign Immunity.
Defendant Roberson cannot assert that sovereign immunity protects her from suit. Assuming arguendo that Circuit Clerks might at times enjoy sovereign immunity as state actors, Ex Parte Young provides an exception for suits against state officers seeking prospective equitable relief to end continuing violations of federal law. Doc. 58 at 27. So long as a state officer has “some connection with enforcement” of the challenged provision, the Ex Parte Young doctrine applies. Id.
member—plays a role in ultimately counting any provisional ballots and certifying election returns. Id. In other words, Plaintiffs’ injuries are traceable and redressable to both roles.
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Just as AEMs are not entitled to immunity, Doc. 58 at 28–29, Circuit Clerks are also sufficiently connected to the Witness and Photo ID Requirements’ enforcement to satisfy Ex Parte Young for the reasons explained above in Section I.
Moreover, Congress validly abrogated sovereign immunity for purposes of the ADA and VRA claims asserted against Defendant Roberson. Doc. 58 at 30.
Thus, for the claims raised in Plaintiffs’ Complaint, sovereign immunity is inapplicable or abrogated as to Defendant Roberson.
III. Plaintiffs Have Adequately Alleged Constitutional, ADA and VRA Claims.
Defendant Roberson also posits the Court should grant Defendant’s motion to dismiss pursuant to Rule 12(b)(6). Yet, she makes no attempt to argue that Plaintiffs have not adequately pled plausible claims under the Constitution, the VRA or ADA. See Doc. 54 at 4–8. Instead, Defendant Roberson again argues that in her capacity as Circuit Clerk she does not play any role that would provide the relief Plaintiffs’ request. As stated above, that argument is meritless.
Defendant Roberson neither addresses the allegations required for each claim nor specifies how the Complaint is insufficient as to any claim. Yet it is clear from the Court’s opinion granting a preliminary injunction that Plaintiffs have adequately alleged claims under the ADA and Constitution seeking to enjoin Defendants from enforcing the Challenged Provisions. See generally Doc. 58 at 34–69.
Nonetheless, Plaintiffs briefly address the sufficiency of their VRA claims
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against Defendant Roberson. To establish a Section 2 violation, Plaintiffs must allege that the Challenged Provisions have a racially discriminatory impact and that that impact is in part linked to social and historical discrimination. See Veasey v. Abbott, 830 F. 3d 216, 244 (5th Cir. 2016) (en banc); Burton v. City of Belle Glade, 178 F.3d 1175, 1198 (11th Cir. 1999). Here, the Complaint alleges that the Challenged Provisions will have an adverse impact on Black voters, Doc. 1 ¶ 160– 61, and that this disparate impact results from past and present racial discrimination, id. ¶¶ 162–65. Plaintiffs have also adequately pled that the Witness Requirement, at least insofar as it requires a “class” of notaries to vouch for the identity of voters, Doc. 58 at 72–74, is prohibited under Section 201 of the VRA. Doc. 1 ¶ 166–73.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’ motion to dismiss.
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Case 2:20-cv-00619-AKK Document 66 Filed 06/17/20 Page 11 of 12

DATED this 17th day of June 2020. Respectfully submitted,

/s/ Deuel Ross

/s/ Caren E. Short

Deuel Ross*

Caren E. Short (ASB-0646-P48N)

Natasha C. Merle*

Nancy G. Abudu*

Liliana Zaragoza*

SOUTHERN POVERTY LAW CENTER

NAACP LEGAL DEFENSE &

PO Box 1287

EDUCATIONAL FUND, INC. Decatur, GA 30031

40 Rector Street, 5th Floor

P: (404) 521-6700

New York, NY 10006

F: (404) 221-5857

P: (212) 965-2200

caren.short@splcenter.org

dross@naacpldf.org

nancy.abudu@splcenter.org

nmerle@naacpldf.org

lzaragoza@naacpldf.org

/s/ Sara Zampierin

Sara Zampierin (ASB-1695-S34H)

Mahogane D. Reed*

SOUTHERN POVERTY LAW CENTER

NAACP LEGAL DEFENSE &

400 Washington Avenue

EDUCATIONAL FUND, INC. Montgomery, AL 36104

700 14th Street N.W.Ste.600

P: (334) 956-8200

Washington, DC 20005

F: (334) 956-8481

P: (202) 682-1300

sara.zampierin@splcenter.org

mreed@naacpldf.org

*Admitted Pro Hac Vice

/s/ William Van Der Pol

William Van Der Pol (ASB-211214F) Attorneys for Plaintiffs

Jenny Ryan (ASB–5455-Y84J)

ALABAMA DISABILITIES

ADVOCACY PROGRAM

Box 870395

Tuscaloosa, AL 35487

P: (205)348-4928

wvanderpoljr@adap.ua.edu

jrryan2@adap.ua.edu

Case 2:20-cv-00619-AKK Document 66 Filed 06/17/20 Page 12 of 12
CERTIFICATE OF SERVICE I hereby certify that on June 17, 2020 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to counsel of record.
/s/ Deuel Ross Deuel Ross Counsel for Plaintiffs

 
 Case 2:20-cv-00619-AKK Document 15 Filed 05/12/20 Page 1 of 6
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

FILED
2020 May-12 PM 11:07 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs, v.
JOHN MERRILL, et al.,
Defendants.

Case No.: 2:20-cv-00619-AKK

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs People First of Alabama, Robert Clopton, Eric Peebles, Howard Porter, Jr., Annie Thompson, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP (collectively “Plaintiffs”) respectfully move for a preliminary injunction restraining Defendants for the July 14, 2020 primary runoff from enforcing: (1) the requirement that the affidavit that must be included with an absentee ballot be notarized or signed by the voter in the presence of two adult witnesses, Ala. Code §§ 17-11-7 to 17-11-10 (the “Witness Requirement”); (2) the requirement that voters provide copies of photo ID to accompany absentee ballot applications, id. § 17-9-30(b), and, in some cases, absentee ballots, id. §§ 17-11-9 and 17-11-10(c) (the “Photo ID Requirement”); and (3) Secretary Merrill’s ban on curbside voting (the “Curbside Voting Prohibition”) (collectively, the “Challenged Provisions”).
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Our country is in an unprecedented state of emergency. COVID-19 has rapidly infected over one million people. Alabama alone has over 10,000 confirmed COVID-19 cases and over 400 deaths, and there could be up to 11 unconfirmed cases for every confirmed one. This crisis is likely to last for many months or longer.
As a result of COVID-19, Governor Ivey, the Centers for Disease Control and Prevention, the Alabama Department of Public Health, and medical professionals have all advised Alabamians to remain at home and to follow social distancing protocols, like staying six-feet away from people not part of their household.
In these extraordinary circumstances, Plaintiffs are substantially likely to succeed on their claims that the Challenged Provisions, as enforced and interpreted by Defendants, pose direct and severe obstacles to their fundamental right to vote.
First, Plaintiffs seek an injunction on behalf of all voters against the Witness Requirement. By requiring another person to vouch for the voter’s identity, the Witness Requirement violates Section 201 of the Voting Rights Act (“VRA”). Even beyond this VRA violation, in the current environment, this requirement poses a serious obstacle to many thousands of vulnerable Alabamians, like Plaintiffs, who cannot—and should not have to—risk the threat of contagion to obtain witnesses. The Witness Requirement violates the fundamental right to vote under the U.S. Constitution and the Americans with Disabilities Act (“ADA”) because it does not meaningfully advance any valid government interest since many other provisions of
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Case 2:20-cv-00619-AKK Document 15 Filed 05/12/20 Page 3 of 6
state law safeguard the integrity of absentee voting without endangering voters. Second, Plaintiffs People First of Alabama, Porter, and Thompson seek an
injunction against the Photo ID Requirement. This requirement creates an unreasonable barrier for many voters seeking to exercise their fundamental right to vote amid the pandemic. Many voters lack a reliable means of photocopying their ID, so they would need to leave their homes and come into close contact with other people to do so. Others have no photo ID at all. Secretary Merrill narrowly interprets the existing exemption to the Photo ID Requirement not to apply to voters like Plaintiffs Porter and Thompson who cannot comply with the requirement without violating social distancing protocols and endangering their safety. Given his interpretation, the Photo ID Requirement, as applied in the current crisis, violates the ADA and the U.S. Constitution. Plaintiffs ask that it be enjoined at least as to those voters who are most vulnerable to death or serious illness from COVID-19.
Finally, Plaintiffs seek an injunction against Defendants’ policy prohibiting people from voting at their polling location without leaving their vehicle. Many voters must vote in person because they require assistance or cannot satisfy the Witness and Photo ID Requirements. By reducing the number of people coming into close contact at the polls, curbside voting can limit the opportunities for COVID-19 to spread at in-person poll sites. Yet, in violation of the U.S. Constitution and Title II of the ADA, the Curbside Voting Prohibition means that significant numbers of
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vulnerable voters who need to vote in-person have no option for doing so because of the increased risk of infection from traditional in-person voting.
Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief, and traditional legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and other Alabama voters outweighs any putative harm to the Defendants. Finally, the relief sought by Plaintiffs is in the public interest.
To protect the lives and rights of them and others, Plaintiffs respectfully request that the Court enter a preliminary injunction for the July 14 primary runoff that: (1) prohibits Defendants from enforcing the Witness Requirement for all voters; (2) enjoins Defendants from enforcing the Photo ID Requirement for any eligible voter who, because of age or medical condition, is more susceptible to serious illness from COVID-19; and (3) bars Defendants from enforcing the Curbside Voting Prohibition. Plaintiffs also ask that Defendants be ordered to educate all voters about the injunction, in coordination with local officials.
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DATED this 12th day of May 2020. Respectfully submitted,

/s/ Deuel Ross

/s/ Sara Zampierin

Deuel Ross*

Sara Zampierin (ASB-1695-S34H)

Natasha C. Merle*

SOUTHERN POVERTY LAW CENTER

Liliana Zaragoza*

400 Washington Avenue

NAACP LEGAL DEFENSE &

Montgomery, AL 36104

EDUCATIONAL FUND, INC. P: (334) 956-8200

40 Rector Street, 5th Floor

F: (334) 956-8481

New York, NY 10006

sara.zampierin@splcenter.org

P: (212) 965-2200

dross@naacpldf.org

/s/ Caren E. Short

nmerle@naacpldf.org

Caren E. Short (ASB-0646-P48N)

lzaragoza@naacpldf.org

Nancy G. Abudu*

SOUTHERN POVERTY LAW CENTER

/s/ William Van Der Pol

PO Box 1287

William Van Der Pol [ASB-211214F] Decatur, GA 30031

Jenny Ryan [ASB–5455-Y84J]

P: (404) 521-6700

ALABAMA DISABILITIES

F: (404) 221-5857

ADVOCACY PROGRAM

caren.short@splcenter.org

Box 870395

nancy.abudu@splcenter.org

Tuscaloosa, AL 35487

P: (205)348-4928

wvanderpoljr@adap.ua.edu

* Admitted Pro Hac Vice

jrryan2@adap.ua.edu

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 12th day of May 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification to all counsel of record.
/s/ Deuel Ross Deuel Ross NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 P: (212) 965-2200 dross@naacpldf.org
6

 
 Case 2:20-cv-00619-AKK Document 16 Filed 05/13/20 Page 1 of 55
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,
Plaintiffs, v. JOHN MERRILL, et al.,
Defendants.

Case No.: 2:20-cv-00619-AKK

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 2:20-cv-00619-AKK Document 16 Filed 05/13/20 Page 2 of 55
TABLE OF CONTENTS PAGE
INTRODUCTION .................................................................................................... 1 FACTUAL BACKGROUND ................................................................................... 4 I. The COVID-19 Pandemic ...............................................................................4 II. Public Health Guidance Regarding COVID-19 ..............................................5 III. The Effect of COVID-19 in Alabama .............................................................6 IV. Alabama’s Upcoming Elections ......................................................................8 V. The Risks Posed by the Challenged Provisions in the COVID-19
Crisis ..............................................................................................................10 A. The Witness Requirement ...................................................................10 B. The Photo ID Requirement .................................................................11 C. Curbside Voting Prohibition ...............................................................13 D. The Challenged Provisions and COVID-19’s Severe Impact on
Black Voters ........................................................................................14 VI. Injuries and Irreparable Harm to Plaintiffs....................................................16 ARGUMENT .......................................................................................................... 20 I. Plaintiffs Are Likely to Prevail on the Merits of Their Constitutional,
Section 201, and ADA Claims Against the Challenged Provisions..............20 A. The Witness Requirement Violates the Constitution, Section
201, and the ADA during the COVID-19 Crisis.................................20 1. The Witness Requirement severely burdens the
fundamental right to vote in violation of the Constitution. ......20
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a. The Witness Requirement forces many thousands of people to face disenfranchisement or risk their safety. ...............................................................................22

b. The Witness Requirement’s severe burdens on voters far outweigh any nominal State interest in enforcing it. ......................................................................26
2. The Witness Requirement violates Section 201 of the VRA. .........................................................................................30
3. The Witness Requirement violates Title II of the ADA. ..........32
B. The Constitution and the ADA Demand the Elimination of the Photo ID Requirement for those Voters who are the Most Vulnerable to COVID-19 ....................................................................34
1. The Photo ID Requirement severely burdens the constitutional rights of vulnerable voters by requiring them to risk COVID-19 exposure. ............................................34

2. The Photo ID Requirement’s burden on vulnerable voters is unjustified because Defendants lack an interest in putting them at risk of COVID-19 infection or in construing this requirement in a manner that violates the fundamental rights of Plaintiffs. ...............................................36

C. The Curbside Voting Prohibition Unlawfully Burdens Voters...........39 1. The Curbside Voting Prohibition is unconstitutional. ..............39

2. The Curbside Voting Prohibition Violates the ADA................42

II.

Plaintiffs Will Suffer Irreparable Harm Absent Preliminary Relief ........43

III.

The Balance of Equities and Public Interest Support Injunctive

Relief ........................................................................................................44

CONCLUSION ....................................................................................................... 45

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TABLE OF AUTHORITIES
PAGE(S)
CASES
Anderson v. Celebrezze, 460 U.S. 780 (1983)......................................................................................20, 36
Burdick v. Takushi, 504 U.S. 428 (1992)................................................................................20, 40, 41
Charles H. Wesley Educ. Found v. Cox, 324 F. Supp. 2d 1358 (N.D. Ga. 2004), aff’d 408 F.3d 1349 (11th Cir. 2005)............................................................38, 44
Common Cause Ga. v. Kemp, 347 F. Supp. 3d 1270 (N.D. Ga. 2018)...............................................................44
Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312 (11th Cir. 2019) ...................................................................passim
Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498 (E.D. Va. Aug. 18, 2016) .........................45
Disabled in Action v. Bd. of Elec. in City of N.Y., 752 F.3d 189 (2d. Cir. 2014) ..................................................................32, 39, 42
Esshaki v. Whitmer, No. 20-cv-10831, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020)....................22
Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) ..................................................22, 26, 41
Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) ........................................................................37, 38
Ga. Coal. for the People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018).........................................................22, 35
Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016) ...............................................................22
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TABLE OF AUTHORITIES (CONTINUED)

PAGE(S)

CASES

Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262 (11th Cir. 2019) ..........................................................................30

Garbett v. Herbert, No. 2:20-cv-245-RJS, 2020 WL 2064101 (D. Utah Apr. 29, 2020) ............22, 37

Gun S., Inc. v. Brady, 877 F.2d 858 (11th Cir. 1989) ............................................................................45

Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991) ..........................................................................20

Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020) .....................................................................passim

League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205 (N.D. Fla. 2018) ..............................................................38

League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D. Fla. 2012) ..............................................................44

League of Women Voters of Okla. v. Ziriax, No. 118,765, __ P.3d __, 2020 WL 2111348 (Okla. May 4, 2020) ...................29

League of Women Voters of Va. v. Va. State. Bd. of Elec., No. 6:20-cv-0024, __ F. Supp. 3d __, 2020 WL 2158249 (W.D. Va. May 5, 2020) ..............................................................................passim

Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020) ....................22, 35

Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613 (1982) .......................................31

N.C. State Conf. of NAACP v. Cooper, No. 18-cv-1034, 2019 WL 7372980 (M.D.N.C. Dec. 31, 2019) .......................44

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TABLE OF AUTHORITIES (CONTINUED)

PAGE(S)

CASES

N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)............................................................................................30

Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339 (11th Cir. 2020) ....................................................................32, 33

Nat’l Fed. of the Blind v. Lamone, 813 F. 3d 494 (4th Cir. 2016) .................................................................32, 33, 34

O’Brien v. Skinner, 414 U.S. 524 (1974)......................................................................................26, 31

Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ..............................................................................38

Oregon v. Mitchell, 400 U.S. 112 (1970) (opinion of Harlan, J.).......................................................31

Price v. N.Y. State Bd. of Elec., 540 F.3d 101 (2d Cir. 2008) ...............................................................................22

Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020)........................43

Tolman v. Doe, 988 F. Supp. 582 (E.D. Va. 1997) ......................................................................45

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)............................................................................................33

U.S. ex rel. Osheroff v. Humana, Inc., 776 F.3d 805 (11th Cir. 2015) ............................................................................20

Underwood v. Hunter, 730 F.2d 614 (11th Cir. 1984), aff’d, 471 U.S. 222 (1985)................................31

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TABLE OF AUTHORITIES (CONTINUED)

PAGE(S)

CASES

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ..........................................................................44

United States v. Logue, 344 F.2d 290 (5th Cir. 1965) ..............................................................................31

United States v. Ward, 349 F.2d 795 (5th Cir. 1965) ..............................................................................31

Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc) ..............................................................31

STATUTES

28 U.S.C. § 1746......................................................................................................28

42 U.S.C. § 12131(2) ...............................................................................................33

42 U.S.C. § 12132....................................................................................................32

52 U.S.C. § 10310....................................................................................................31

52 U.S.C. § 10501..............................................................................................30, 31

52 U.S.C. § 10508....................................................................................................40

52 U.S.C. § 20102....................................................................................................38

Ala. Code § 12-21-83...............................................................................................28

Ala. Code § 13A-10-109..........................................................................................28

Ala. Code §§ 17-9-1 et seq. ...............................................................................13, 42

Ala. Code § 17-9-30(d) ..................................................................................2, 13, 34

Ala. Code § 17-10-2(a)(3)..................................................................................11, 12

Ala. Code § 17-11-3(e) ..............................................................................................9
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TABLE OF AUTHORITIES (CONTINUED)

PAGE(S)

STATUTES

Ala. Code § 17-11-4.................................................................................................28

Ala. Code § 40-29-115.............................................................................................28

Ala. Code § 17-11-7..........................................................................................passim

Ala. Code §17-11-9........................................................................................2, 11, 27

Ala. Code § 17-11-10........................................................................................passim

Ala. Code § 17-17-24...............................................................................................28

Ala. Code § 36-20-74...............................................................................................26

OTHER AUTHORITIES

28 C.F.R. § 35.108 ...................................................................................................33

28 C.F.R. § 35.130 ...................................................................................................33

28 C.F.R. § 35.150 ...................................................................................................42

Fed. R. Evid. 201 .....................................................................................................20

Senate Rep. 103-6, 1993 WL 54278 (1993) ............................................................28

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INTRODUCTION Plaintiffs People First of Alabama, Robert Clopton, Eric Peebles, Howard Porter, Jr., Annie Thompson, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP (collectively “Plaintiffs”) move to preliminarily enjoin Defendants Secretary of State John Merrill, Governor Kay Ivey, the State of Alabama (collectively, “State Defendants”) and Jefferson, Lee, and Mobile counties’ absentee election managers (together with the State Defendants, “Defendants”). Our country is in an unprecedented state of emergency. COVID-19 has infected over one million people. Alabama alone has over 10,000 confirmed COVID-19 cases and over 400 deaths and there could be up to 11 unconfirmed cases for every confirmed one. This crisis is likely to last for many months or longer. As a result of COVID-19, in early April Governor Ivey ordered Alabamians to remain at home, and advised people to follow social distancing protocols, like staying six-feet away from people not part of their household. On April 28 and May 8, Governor Ivey amended her order, but continued to instruct individuals— especially those like the individual Plaintiffs who are at higher risk of death or serious illness from COVID-19—to stay home and to follow social distancing rules. In these extraordinary circumstances, multiple provisions of Alabama law, as interpreted by the State Defendants, pose direct and severe obstacles to voting: (1) the requirement that the affidavit that must be included with an absentee ballot
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be notarized or signed by the voter in the presence of two adult witnesses, Ala. Code §§ 17-11-7 to 17-11-10 (the “Witness Requirement”); (2) the requirement that copies of photo identification accompany absentee ballot applications, id. § 17-9-30(b), and, in some cases, absentee ballots, id. §§ 17-11-9 and 17-11-10(c) (the “Photo ID Requirement”); and (3) the prohibition on curbside voting (the “Curbside Voting Prohibition”) (collectively, the “Challenged Provisions”).
First, Plaintiffs seek an injunction on behalf of all voters against the Witness Requirement. By requiring another person to vouch for the voter’s identity, the Witness Requirement violates Section 201 of the Voting Rights Act (“VRA”). Even beyond this VRA violation, in the current environment, this requirement poses a serious obstacle to many thousands of vulnerable Alabamians, like Plaintiffs, who cannot—and should not have to—risk the threat of contagion to obtain witnesses. The Witness Requirement violates the fundamental right to vote under the U.S. Constitution and the Americans with Disabilities Act (“ADA”) because it does not meaningfully advance any valid government interest since many other provisions of state law safeguard the integrity of absentee voting without endangering voters.
Second, Plaintiffs People First of Alabama, Porter, and Thompson seek an injunction against the Photo ID Requirement. This requirement creates an unreasonable barrier for many voters seeking to exercise their fundamental right to vote amid the pandemic. Many voters lack a reliable means of photocopying their
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ID, so they would need to leave their homes and come into close contact with other people to do so. Others have no photo ID at all. Secretary Merrill narrowly interprets the existing exemption to the Photo ID Requirement not to apply to voters like Plaintiffs Porter and Thompson who cannot comply with the requirement without violating social distancing protocols and endangering their safety. Given his interpretation, the Photo ID Requirement, as applied in the current crisis, violates the ADA and the U.S. Constitution. Plaintiffs ask that it be enjoined at least as to those voters who are most vulnerable to death or serious illness from COVID-19.
Finally, Plaintiffs seek an injunction against the State Defendants’ policy of prohibiting people from voting at their polling location without leaving their vehicle. Many voters must vote in person because they require assistance or cannot satisfy the Witness and Photo ID Requirements. By reducing the number of people coming into close contact at the polls, curbside voting can limit the opportunities for COVID-19 to spread at in-person poll sites. Yet, in violation of the U.S. Constitution and Title II of the ADA, the Curbside Voting Prohibition means that significant numbers of vulnerable voters who need to vote in-person have no option for doing so because of the increased risk of infection from traditional in-person voting.
To ensure voters remain safe during the pandemic, the Centers for Disease Control and Prevention (“CDC”) recommends that states “[e]ncourage voters to use voting methods that minimize direct contact with other people” and permit “drive-
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up voting.” Ex. 1. The Challenged Provisions flout this guidance and pose a risk to the lives of Plaintiffs and many thousands of other voters who are seeking a safe method of exercising their right to vote in the statewide Republican Senatorial and the First Congressional District Democratic July 14, 2020 primary runoff elections.
The burdens of the Witness Requirement and Curbside Voting Prohibition fall more heavily on Black voters, who are more likely to live alone and have a disability and are afflicted by and die from COVID-19 at starkly disproportionate rates. Ex. 2.
At least tens of thousands of Alabama voters are at risk of being disenfranchised. Thus, Plaintiffs ask that the Court enjoin the Challenged Provisions.
FACTUAL BACKGROUND I. The COVID-19 Pandemic
Since April, the United States has been the epicenter of the global COVID-19 pandemic, leading the world in both cases and deaths. As Plaintiffs’ expert Dr. Arthur Reingold explains: the novel coronavirus SARS-CoV-2, causes individuals to contract COVID-19. Reingold Decl. ¶ 6 (attached as Ex. 3). COVID-19 spreads mainly from person-to-person through close contact and through respiratory droplets when an infected person coughs or sneezes. Id. ¶ 7. People infected may transmit the virus even without showing symptoms themselves. Id. ¶ 10.
COVID-19 can cause severe consequences, including long-term illness and death. Id. ¶ 6. Estimates from early March put the fatality rate for COVID-19 at
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about ten times higher than influenza even in a severe season and including in countries with advanced health care systems. Ex. 4. Some survivors will experience long-term drops in lung capacity of 20 to 30%. Ex. 5.
While people of all ages have contracted and died from COVID-19, it is particularly fatal for older individuals. Reingold Decl. ¶ 6. Preliminary reports based on WHO data show a 3.6% mortality rate for individuals between 60-69 years old, and an 8% mortality rate for those 70-79 years old. Ex. 6. COVID-19 also poses greater risks for people with preexisting heart and respiratory conditions, including asthma, and individuals with compromised immune systems. Reingold Decl. ¶ 6 II. Public Health Guidance Regarding COVID-19
No vaccine currently exists and will likely not for a year or more, at least for the public at large. Reingold Decl. ¶ 9. Public health experts have explained that social distancing measures, including staying home and maintaining at least six feet of space between people, are the only known effective measures for protecting against COVID-19 transmission. Id. Similarly, Governor Ivey has stated: “Maintaining a 6-foot distance between one another is paramount.” Ex. 7. And the Alabama Department of Public Health (“ADPH”) has instructed the public “to spend as much time as possible at home to prevent an increase in new infections.” Ex. 8.
Even maintaining six feet of separation from others does not eliminate the risk of infection. Researchers have demonstrated that particles from a cough may spread
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as far as 16 feet, while a sneeze may spread particles as far as 26 feet. Ex. 9. The CDC has also issued specific guidelines concerning voting during the
COVID-19 pandemic. It recommends that states “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations[,]” including “drive-up voting” and “mail-in methods of voting.” Ex. 1. There is no evidence that the virus is spread through the mail. Ex. 10.
The medical risks of widespread in-person voting during the pandemic are increasingly clear, particularly when polling locations are crowded and where mailin voting is not readily available. In Chicago, a poll worker died from COVID-19. Ex. 11. In Broward County, Florida, two poll workers tested positive. Ex. 12. And, after its April 7 primary elections, which saw multi-hour waits and lines stretching blocks—in part caused by the lack of a viable absentee voting for all voters— Wisconsin officials have identified at least 52 people who voted in-person or worked as poll workers in the primary and have tested positive for COVID-19. Ex. 13. III. The Effect of COVID-19 in Alabama
Governor Ivey declared a State of Emergency on March 13, 2020. Ex. 14. On March 19, she issued an order closing or limiting the use of facilities like schools, senior centers, and beaches. Ex. 15. On March 26, Governor Ivey closed all schools. Ex. 16. On April 2, she authorized all notaries to use videoconferencing. Ex. 17.
On April 3, Governor Ivey issued a “Stay at Home” order requiring “every
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person . . . to stay at his or her place of residence except as necessary to perform” an enumerated list of “essential activities” through April 30. Ex. 18 at 1.
On April 28, Governor Ivey announced a “Safer-at-Home” order effective from April 30 to May 15. The order prohibited all non-work-related gatherings, except between groups of fewer than ten people or those that can maintain six feet of distance between people from different households. Ex. 19 at 2. Some businesses may open subject to sanitation and social distancing rules. Id. at 3-5. All Alabamians, but “especially vulnerable persons”—i.e., those who because of age or preexisting conditions are more susceptible to death or serious illness from COVID-19—are encouraged to stay home and stay six feet apart from people outside of their household. Id. at 2. On May 8, Governor Ivey extended the Safer-at-Home order to May 22. Ex. 20. She extended the state of emergency until July 12, 2020. Ex. 21.
The number of COVID-19 cases are rising in the rural and urban counties. From April 15 to April 30, Mobile County, where the First Congressional District is centered, added 447 new cases—more than the total new case count in any other county in Alabama, except for Jefferson County. Ex. 22. As of May 11, Mobile County had a total of 1,478 confirmed cases of COVID-19. Ex. 23.
Community transmission of COVID-19 is expected to persist. As Dr. Reingold testifies, “transmission of the virus will continue through the population until the development and widespread use of a vaccine and/or herd immunity.”
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Reingold Decl. ¶ 11. Other coronaviruses “do not appear to demonstrate seasonality of infection” and the “current virus has circulated widely in countries currently in their hot seasons.” Id. ¶ 15. These facts “suggest that transmission of and infection with the virus may not be affected by the weather.” Id. On May 4, Alabama’s top health officer, Dr. Scott Harris, described the COVID-19 pandemic as “a true state of emergency and one whose end is not yet in sight.” Ex. 24.
The rate of transmission in Alabama may have increased since Governor Ivey instituted the Safer-at-Home order. Ex. 25. On April 30, the ADPH reported an increase of 143 new cases. Ex. 26. At that time, the seven-day average of new cases was 177, and the 14-day average of new cases was 194. Id. By May 5, the seven-day average of new cases was 241, and the 14-day average of new cases was 222. Id.
As of May 11, the ADPH reported 1,245 hospitalizations in Alabama. Ex. 2. The ADPH also reported 10,009 COVID-19 infections and 401 deaths. Ex. 27. IV. Alabama’s Upcoming Elections
Throughout 2020 in Alabama, there are major statewide elections on July 14 and November 3, as well as dozens of municipal elections set for August 25. Ex. 28.
The July 14 primary runoff was initially scheduled for March 31, 2020. On March 10, a local columnist asked Secretary Merrill his plan for safely running the primary runoff election amid the pandemic, including whether he would encourage more citizens to vote early and allow curbside voting. Ex. 29. Secretary Merrill
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responded “we’re not going to talk about that,” asserting that “we don’t need for people to be concerned about something that may not ever happen. The story that you’re thinking about writing is not even important.” Id.
Three days later, on March 13, Governor Ivey declared a state of emergency. On March 18, Governor Ivey rescheduled the March 31 primary runoff to July 14. Ex. 30. Also on March 18, Secretary Merrill promulgated an emergency rule pursuant to Alabama Code § 17-11-3(e) entitled “Absentee Voting During State of Emergency.” Ex. 31. Section (1) of that rule provides as follows:
[A]ny qualified voter who determines it is impossible or unreasonable to vote at their voting place for the Primary Runoff Election of 2020 due to the declared states of emergency, shall be eligible to check the box on the absentee ballot application which reads as follows: “I have a physical illness or infirmity which prevents my attendance at the polls. [ID REQUIRED].” Id. This rule effectively permits everyone in Alabama to vote absentee, but it maintains the Witness and Photo ID Requirements. When a voter publicly asked Secretary Merrill how a person without a copier or scanner at home should go about complying with the Photo ID Requirement, the Secretary responded that “People that have a hard time figuring out the answer to that question probably need to vote in person.” Ex. 32 at 1. Secretary Merrill later added: “When I come to your house to show you how to use your printer I can also teach you how to tie your shoes and to tie your tie. I could also go with
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you to Walmart or Kinko’s and make sure you know how to get a copy of your ID made while you’re buying cigarettes or alcohol.” Id. at 2.
On March 19 and again on April 17, Plaintiffs GBM, the Alabama NAACP, and others requested that Secretary Merrill take several steps, including removing the Witness Requirement, easing the Photo ID Requirement, and permitting curbside voting, to ensure voters could safely participate in all of the 2020 elections. Ex. 33, Ex. 34. Secretary Merrill did not respond to these letters.
On April 8, Secretary Merrill wrote to the U.S. Election Assistance Commission requesting over $6 million in funds to pay for an anticipated significant increase in absentee voting and other voting changes due to COVID-19. Ex. 35. V. The Risks Posed by the Challenged Provisions in the COVID-19 Crisis
A. The Witness Requirement The Witness Requirement compels voters to sign an affidavit accompanying their absentee ballot before either a notary or two adult witnesses, Ala. Code §§ 1711-7 to 17-11-10. But thousands of voters do not live with two other adults, and so cannot satisfy this requirement without violating social distancing protocols. Of the 3.8 million individual Alabamians of voting age, about 1.57 million adults live alone or with only one other person. Cooper Decl. ¶ 13 (attached as Ex. 36). In particular, 14.6% (555,330) adult Alabamians live alone, and 38.9% (215,966) of them are age 65 and older. Id. ¶ 7. Around 30% of Alabamians 18 and
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older who live alone have a disability, and 44% of those persons 65 and older who live alone have a disability. Id. ¶ 8. These numbers are similar in the First Congressional District. Id. ¶¶ 19-20.
Out of the 980,850 Black Alabamians of voting age, 186,497 (19.0%) live alone. Id. ¶ 9. And 29.7% (55,388) of the Black Alabamians of voting age who live alone are disabled. Id. ¶ 11. Of the subset of Black people over age 65 and living alone, 45.9% (22,782) are disabled. Id. Whereas, for the subset of Whites over 65 and living alone, 44.0% (70,816) are disabled. Id. ¶ 12. Of all Black households (i.e., not individuals), 37.1% contain people who live alone. Id. ¶ 16(d). Of all White households, 27.5% contain people who live alone. Id. And 14.1% of all Black households are headed by women who live alone with their children under 18 (i.e., not legally competent witnesses) versus just 3.8% of similar White households. Id.
B. The Photo ID Requirement The Photo ID Requirement requires a person submitting an absentee ballot application to include a copy of their photo ID. If a voter fails to provide photo ID with the application, once the ballot is received, the voter must mail in a copy of their ID with the ballot. Ala. Code. §§ 17-11-9 and 17-9-30. A voter who fails to provide photo ID with the application cannot receive an absentee ballot. Id. § 17-930(b). A returned absentee ballot that requires a photo ID will be treated as a provisional ballot if it does not include a copy of the voter’s photo ID. Id. § 17-10-
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1(c). For a provisional absentee ballot to be counted, the voter must travel in person to show photo ID to the board of registrars by 5:00 p.m. on the Friday after election day. Ala. Code § 17-10-2(a)(3). If the voter does not present photo ID by this deadline, their ballot is discarded. Id.
Given social distancing guidelines, many offices, county courthouses, public libraries, schools, and businesses remain closed. Yet, many voters lack access to a computer, which is usually needed to make copies at home: 12.8% (over 200,000) of all Alabama households lack a computer, smartphone, or tablet. Attach. A-2 to Cooper Decl., at 9. Over 6% of all Alabamians lack a vehicle, id., and may need to take public transit, increasing the risk of COVID-19 infection. Ex. 9. Even if such a voter could find a way to travel and find a store to copy their IDs, they would have to break social distancing rules to do so, at great risk to their and others’ safety.
Moreover, there are tens of thousands of Alabama voters who lack photo ID, and now cannot get one. Since March 23, 2020, nearly every photo ID-issuing office in Alabama, including the Alabama Law Enforcement Agency (“ALEA”) offices and county courthouses, are closed. Ex. 37; Ex. 38 at 1. As of May 8, these locations remained closed. Ex. 39; Ex. 40 at 1. To the extent ALEA continues to operate any photo ID-issuing offices, it “[d]iscourages anyone with a weakened or compromised immune system from visiting any Driver License locations.” Ex. 37. And there is no evidence that Secretary Merrill has deployed his “mobile ID units” to issue IDs since
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at least April 3. As of May 11, there are no scheduled mobile ID unit events. Ex. 41. Secretary Merrill has issued an emergency rule instructing voters that the
Photo ID Requirement remains in effect. Ex. 31. He does not interpret the existing exemption to the Photo ID Requirement in Alabama Code § 17-9-30(d) to apply to voters with conditions that put them at a higher risk from COVID-19 infection. Id.
C. Curbside Voting Prohibition No provision of Alabama law known to Plaintiffs expressly prohibits curbside or drive-thru voting. See generally Ala. Code § 17-9-1 to § 17-9-15. Nonetheless, Secretary Merrill prohibits election officials from offering curbside voting to voters whose disabilities or age prevent them from going inside of a polling location. For example, on November 8, 2016, Secretary Merrill learned that a polling place in Hale County, Alabama was offering curbside voting to assist voters with disabilities. Ex. 42. Secretary Merrill asserted this practice was illegal and ordered the county to immediately stop. The county complied. Id. Secretary Merrill has not indicated he will permit curbside voting even during the COVID-19 pandemic. But, as noted, to protect voters during the pandemic, the CDC has recommended that jurisdictions “[e]ncourage drive-up voting for eligible voters.” Ex. 1. Governor Ivey’s Safer-at-Home order itself also encourages “drivein” gatherings to protect individuals—particularly vulnerable persons—from close contact that puts them at higher risk from COVID-19. Ex. 19 at 2. A majority of
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states permit curbside voting. Ex. 43 at 63. Additional states have used curbside voting as a safety accommodation to voters as a result of the pandemic, including Arkansas (Ex. 44), Ohio (Ex. 45), Wisconsin (Ex. 46), and Wyoming. Ex. 47. There is no indication that curbside voting in any of these states led to fraud or other issues.
D. The Challenged Provisions and COVID-19’s Severe Impact on Black Voters
Nationally, the COVID-19 pandemic has had a particularly devastating effect on Black people. A CDC report published on April 17, 2020, which included data from 1,482 patients hospitalized across 14 states, found that Black patients made up 33% of cases in those states where race information was available, despite being only 18% of the states’ populations. Ex. 48 at 459.
Sadly, these racially disparate patterns of illness and mortality due to COVID19 exist in Alabama as well. As of May 11, the ADPH has reported that Black people in Alabama represented 38.4% of reported COVID-19 cases and 45.5% of related deaths, despite making up just 27% of the state’s population. Ex. 2. In Mobile County, as of May 11, Black people accounted for 44.2% of COVID-19 infections, 59.1% of related hospitalizations, and 52.9% of COVID-19 deaths, despite being only 36% of the county’s population. Ex. 23. For this reason, Dr. Karen Landers, an officer at the ADPH, has urged Black people in particular to “stay at home” and stringently practice social distancing. Ex. 49.
Plaintiffs’ expert, Dr. Courtney Cogburn, explains that racial disparities in
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serious illness and death due to COVID-19 are inextricably tied to discrimination in healthcare, housing, and employment. Cogburn Decl. ¶¶ 6-15 (attached as Ex. 50). This includes racial bias in medical care and the rationing of COVID-19 testing and care, higher rates of un-insurance and blue collar “essential” jobs in the Black community, and the increased risk of other diseases linked to housing segregation. Id. For example, because of longstanding racial biases in medical care, Black people with symptoms like cough and fever are less likely to be given one of the scarce COVID-19 tests. Id. ¶ 15. The CDC agrees that racial disparities related to COVID19 are the result of “institutional racism” and other socioeconomic barriers. Ex. 51.
Racial discrimination in Alabama has also resulted in inequalities that disadvantage Black people. In Alabama, 20.7% of African Americans and 13.7% of Whites over age 16 work in “blue collar” service occupations—i.e., jobs like grocers, nurses, or other essential workers—who are forced to leave home and face increased exposure to COVID-19. Cooper Decl. ¶ 16(c). By contrast, 39.1% of White people versus only 26.2% of Black Alabamians hold “white collar” jobs that are much more likely to allow employees to continue to work safely at home. Id. Black Alabamians are also more likely to lack health insurance (11.5% of African Americans and 8.1% of White people), id. ¶ 16(f); have a disability (among people over 65, 42.7% of Black and 38.1% of White people), id.; lack a high school degree (16.6% of Black and only 11.4% of White people), id. ¶ 16(b); and live below the poverty line (27.7%
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of Black and 11.3% of White households), id. ¶ 16(a). Similar racial disparities exist in the First Congressional District. Id. ¶ 17. Because of racial and other disparities, Dr. Latesha Elopre believes that Alabama’s Black Belt region will be hit the hardest by COVID-19. Elopre Decl. ¶¶ 9-14 (attached as Ex. 67). VI. Injuries and Irreparable Harm to Plaintiffs
Individual Plaintiffs Robert Clopton, Eric Peebles, Howard Porter, Jr., and Annie Carolyn Thompson are lawfully registered Alabama voters who plan to vote in the upcoming 2020 elections. Clopton Decl. ¶ 3 (attached as Ex. 52); Peebles Decl. ¶¶ 3, 5, 11 (attached as Ex. 53); Porter Decl. ¶ 1 (attached as Ex. 54); Thompson Decl. ¶¶ 3, 5, 15 (attached as Ex. 55). Plaintiffs Clopton, Porter, and Thompson are eligible to vote in the July 14 primary runoff. Clopton Decl. ¶ 3; Porter Decl. ¶ 4; Thompson Decl. ¶ 15. They all are at high risk of death or serious illness if they contract COVID-19. Mr. Clopton is 65 years old, has diabetes, hypertension, and recently had surgery. Clopton Decl. ¶¶ 1, 4-6. Mr. Peebles has spastic cerebral palsy. Peebles Decl. ¶ 6. Mr. Porter, who is 69 years old, has Parkinson’s disease and asthma. Porter Decl. ¶¶ 5-6. Ms. Thompson, who is 69 years old, has diabetes and high blood pressure. Thompson Decl. ¶¶ 3, 6.
Each of the individual Plaintiffs usually vote in person. Clopton Decl. ¶¶ 3, 6; Peebles Decl. ¶ 10; Porter Decl. ¶ 13; Thompson Decl. ¶ 14-16. But, to avoid exposure to COVID-19, they must vote by absentee ballot in the upcoming elections.
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Clopton Decl. ¶ 13; Peebles Decl. ¶ 17; Porter Decl. ¶ 14; Thompson Decl. ¶ 24. However, none of these four voters can comply with both the Witness Requirement and the Photo ID Requirements without violating social distancing guidance.
Plaintiffs Peebles and Thompson live alone, and Mr. Clopton lives with only one other person. Clopton ¶ 8; Peebles Decl. ¶¶ 4, 15; Thompson Decl. ¶¶ 4, 21. They cannot comply with the Witness Requirement without leaving home or endangering their health, because they are sheltering in place and none of them normally come into contact with two adults once. Clopton Decl. ¶¶ 8-10; Peebles Decl. ¶ 15; Thompson Decl. ¶ 21. Because they do not feel safe running this risk, they will be forced to make a choice between their health and their vote in the 2020 elections. Clopton Decl. ¶ 14; Peebles Decl. ¶ 17; Thompson Decl. ¶¶ 16, 24.
Ms. Thompson cannot safely comply with the Photo ID Requirement, because she does not have a printer, scanner, or copy machine at her home. Thompson Decl. ¶¶ 18-19. Mr. Porter also fears that he will be unable to comply with the Photo ID Requirement. Porter Decl. ¶¶ 14-15. While he has a printer, Mr. Porter lives on a very limited income. Id. He may not be able to afford to maintain his printer through the July election, let alone through November. Id. ¶¶ 14-15, 18-19.
If given the option, Plaintiffs Clopton, Peebles, Porter, and Thompson would consider curbside voting to minimize the threat of infection. Clopton Decl. ¶ 14; Peebles Decl. ¶ 16; Porter Decl. ¶ 16; Thompson Decl. ¶ 23. But these Plaintiffs do
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not intend to vote in a way that puts them at higher risk of infection. Clopton Decl. ¶ 14; Peebles Decl. ¶¶ 12, 15, 17; Porter Decl. ¶ 17; Thompson Decl. ¶¶ 16, 21, 24.
Plaintiff People First of Alabama (“People First”) is a group of people with developmental disabilities. Ellis Decl. ¶ 4 (attached as Ex. 56). People First’s members include Alabama registered voters who plan to vote in the July 14 primary runoff but have conditions that put them at higher risk of death or severe complications from COVID-19. Id. ¶¶ 8-9. These members must vote by absentee ballot or be disenfranchised. Id. ¶ 9. Yet, many of these members live alone or with one other adult and so are unable to comply with the Witness Requirement. Id. ¶ 1011. Members also include voters who must vote absentee or be disenfranchised, but do not have access to the technology or the Internet needed to comply with the Photo ID Requirement. Id. ¶ 12. In addition, if curbside voting were available, members with high susceptibility to serious illness from COVID-19 and those with physical disabilities would use it. Id. ¶ 13. If the Challenged Provisions remain in place, these members will be disenfranchised. Id. ¶¶ 12-13. People First is diverting its resources to assist its members with navigating these provisions. Id. ¶ 14.
Plaintiff Greater Birmingham Ministries (“GBM”) is a multi-racial and multifaith membership organization that provides emergency services for members in need. Douglas Decl. ¶ 2 (attached as Ex. 57). Many of GBM’s 5,000 members are low-income persons who lack a computer, the internet, or other videoconferencing
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technology. Id. ¶ 9. About a third of GBM’s members are senior citizens and about one fifth of all GBM members live alone. Id. Other members live only with one other adult or young children. Id. ¶¶ 10-11. Of those members, many are Black, Latinx, disabled, or low-income registered voters who are staying home because they are at a higher risk of death or serious illness from COVID-19 due to age or conditions, like diabetes or hypertension. Id. ¶ 9. Members with this higher risk have expressed an interest curbside voting. Id. ¶¶ 10-11. GBM is diverting its resources to assist voters with the Witness Requirement and Curbside Voting Prohibition. Id. ¶ 7.
Plaintiff the Alabama NAACP has many members who are senior citizens, Black, and/or have medical conditions, like diabetes or hypertension, that put them at higher risk for death or serious illness from COVID-19. Simelton Decl. ¶ 9 (attached as Ex. 58). Many members also live alone or with only one other adult person. Id. These members and others are staying at home to avoid contracting COVID-19; thus, they will be unable to meet the Witness Requirement. Id. ¶¶ 9-10. An active member is in their 80s, lives alone, and has breast cancer and heart disease. Id. ¶ 9. They lack ready access to videoconferencing technology. Id. This member, and others like them, cannot vote in-person or meet the Witness Requirement without risking their safety. Id. ¶¶ 9-10. In addition, there are members who require help to vote and therefore need access to curbside voting as a safe in-person voting option. Id. The Alabama NAACP is diverting its resources to address the Witness
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Requirement and Curbside Voting Prohibition. Id. ¶¶ 5-6. ARGUMENT
A preliminary injunction is warranted if Plaintiffs show: (1) a likelihood of success on the merits; (2) likelihood of suffering irreparable harm; (3) the balance of hardships favor them; and (4) the injunction serves the public interest. Jones v. Governor of Fla., 950 F.3d 795, 806 (11th Cir. 2020). Here, each factor decisively favors Plaintiffs. In evaluating the burdens on voters, the Court can take judicial notice of census data, voting statistics, public health reports, and newspapers. Fed. R. Evid. 201(b)(2); see generally U.S. ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015); Hollis v. Davis, 941 F.2d 1471, 1474 (11th Cir. 1991). I. Plaintiffs Are Likely to Prevail on the Merits of Their Constitutional,
Section 201, and ADA Claims Against the Challenged Provisions A. The Witness Requirement Violates the Constitution, Section 201,
and the ADA during the COVID-19 Crisis 1. The Witness Requirement severely burdens the
fundamental right to vote in violation of the Constitution. The First and Fourteenth Amendments do not allow a state to make voters choose between protecting their health and the health of their families and communities or forfeiting their fundamental rights. Any government burden on the right to vote must be balanced against the stated government interest supporting the burden. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983). Yet, together and separately, the Challenged
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Provisions will deprive many thousands of qualified citizens of the right to vote. They will do so by imposing restrictions on the franchise that are at odds with public health guidance expected to remain in place for the foreseeable future.
The Anderson-Burdick test requires the Court to “weigh the character and magnitude” of the asserted constitutional injury against Alabama’s justifications for the burdens imposed by the challenged rules, “taking into consideration the extent to which those justifications require the burden to plaintiffs’ rights.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (“Lee”).
Strict scrutiny applies to any policy that “severely burdens the right to vote.” Id. Once it is shown that the Challenged Provisions seriously burden the fundamental right to vote, Defendants must prove that the provisions are “narrowly drawn to serve a compelling state interest.” Id. But, because the right to vote is “‘preservative of all rights,’” id. at 1315 (citation omitted), “even when a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden.” Id. at 1318-19.
In the current crisis, courts have applied strict scrutiny to a similar witness requirement for absentee ballots and to ballot-access laws that conflict with “stayat-home” orders to severely burden the right to vote. See League of Women Voters of Va. v. Va. State. Bd. of Elec., No. 6:20-cv-0024, __ F. Supp. 3d __, 2020 WL 2158249, at *7-8 (W.D. Va. May 5, 2020) (“LWVV”) (finding that a witness
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requirement’s “substantial” burdens outweighed any countervailing state interests and approving a consent decree enjoining it); Garbett v. Herbert, No. 2:20-cv-245RJS, 2020 WL 2064101, at *6-8 (D. Utah Apr. 29, 2020) (finding that, as applied in the “unforeseen, extraordinary circumstances” of COVID-19, a state ballot access law “imposes a serve burden”); Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020) (same); Esshaki v. Whitmer, No. 20-cv-10831, 2020 WL 1910154, at *1 (E.D. Mich. Apr. 20, 2020) (same).
Courts have likewise applied strict scrutiny in non-pandemic emergencies. See Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016) (holding that, because a hurricane “foreclosed the only methods of registering to vote” in the final week of registration, the statutory deadline “severe[ly] burden[ed] . . . the right to vote”); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345-46 (S.D. Ga. 2016) (similar).
In addition, strict scrutiny is appropriate where the effects of the Challenged Provisions bear more heavily on specific groups—like racial minorities, low-income people, the elderly, or people with disabilities. See Jones, 950 F.3d at 822; Ga. Coal. for the People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1264 (N.D. Ga. 2018).
a.) The Witness Requirement forces many thousands of people to face disenfranchisement or risk their safety.
Forcing thousands of people to put their health on the line or face disenfranchisement imposes a severe burden on the right to vote. See, e.g., Price v.
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N.Y. State Bd. of Elec., 540 F.3d 101, 107 n.8 (2d Cir. 2008) (noting that for “voters who are . . . housebound” the burden of a lack of absentee voting opportunity “could be quite significant”). The breadth and severity of the Witness Requirement’s burdens merit strict scrutiny because they needlessly force voters to make unconstitutional choices. The greater the burden that a challenged law places on the right to vote, “the stricter the scrutiny” the law must survive. Lee, 915 F.3d at 1319.
The Witness Requirement asks the 1.57 million adults in Alabama who live alone or with only one other person, supra at 10, to make the impossible “choice between adhering to guidance that is meant to protect not only their own health, but the health of those around them, and undertaking their fundamental right—and, indeed, their civic duty—to vote in an election.” LWVV, 2020 WL 2158249, at *8.
Under the Governor’s “Safer at Home” order, all Alabamians—but, in particular, “vulnerable persons” like Plaintiffs Clopton, Peebles, and Thompson— are ordered to minimize travel outside the home. See supra at 7. Even if people do leave their homes, this order and other public health guidance direct them to maintain at least six feet of distance from people with whom they do not live. Id.; supra at 5 Additionally, the CDC encourages as many voters as possible “to use voting methods that minimize direct contact with other people.” Ex. 1.
“Requiring individuals to have one or more people they are not otherwise being exposed to come into close enough proximity to witness their ballot would
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place them at increased risk of infection.” Reingold Decl. ¶ 18. This risk is even greater for disabled or elderly people, like Plaintiffs, supra at 16, who “are at the greatest risk of severe cases, long-term impairment, and death.” Reingold Decl. ¶ 6.
Even in normal circumstances, the Witness Requirement causes election officials to reject the ballots of a significant number of absentee voters. In the 2018 elections, 1,368 Alabama voters had their absentee ballots rejected. Ex. 59 at 29. About a quarter of these ballots were rejected because of the Witness Requirement. Ex. 60. But in that election, only 57,832 people or 3.4% of all voters cast mail-in absentee ballots. Ex. 59 at 29. Voters then did not face COVID-19 related restrictions on obtaining witnesses to vouch for them on those ballots. Secretary Merrill predicts absentee voting to increase exponentially in 2020 because of COVID-19. Ex. 35.
The burdens imposed by the Witness Requirement will disproportionately fall on members of populations at heightened risk of death or severe health complications from COVID-19. As noted above at 10-11, 14.6% of adult Alabamians live alone and, of those adults, 26% are seniors and 30% are people with disabilities.
The Witness Requirement also places a significantly heavier and deadlier burden on Black voters amid the pandemic. As explained above at 14, because of racial discrimination, Black Alabamians are more than twice as likely to contract or die from COVID-19 as White people. Black people in Alabama are also much more
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likely to live alone or live as the lone adult among children: 37.1% of all Black households are people living alone, as compared to 27.5% of White households, and 14.1% of all Black households are headed by women who live alone with their children versus just 3.8% of White households. See supra at 11.
Plaintiffs’ individual circumstances highlight how the Witness Requirement acts as a significant barrier to voters. Plaintiffs Thompson and Peebles live alone, and Plaintiff Clopton lives with only one other person. See supra at 17. To satisfy the Witness Requirement, these voters would need to closely interact with one or more people from outside their households. Yet, as noted above at 16, Plaintiffs also have medical conditions that make them more susceptible to death or serious illness from COVID-19. They are the very “vulnerable persons” the Governor and doctors have encouraged to stay at home. Supra at 7. Plaintiffs cannot both follow this public health guidance and obtain two witnesses as demanded by the Witness Requirement.
A voter can also have their absentee ballot notarized to satisfy the Witness Requirement. But this alternative is no less risky or burdensome. Traditional notarization would still require a voter’s personal interaction with a person outside their home in violation of social distancing rules. Although Governor Ivey issued an executive order permitting notaries to notarize documents using videoconferencing in lieu of personal appearance, supra at 6, not all voters (or notaries) have access to videoconferencing technology. Id. at 12. Black Alabamians are nearly two times
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more likely than White people to lack access to the technology that is necessary for videoconferencing. Cooper Decl. ¶ 16(g). Further, a notary may also require the payment of a $5.00 fee to notarize the absentee ballot affidavit. Ala. Code § 36-2074. Yet, it is unconstitutional to make “the affluence of the voter or payment of any fee an electoral standard.” Jones, 950 F.3d at 821 (citation omitted). Finally, remote notarization requires voters to mail their absentee ballot affidavit for notarization, then depend on the notary to mail it back, creating chances for it to be lost or stolen.
When, as here, a law endangers the health of thousands of voters, the most exacting level of scrutiny is required. Plaintiffs are effectively “disabled from voting” because they cannot safely “go to the polls on election day” or meet the Witness Requirement due to the COVID-19 crisis and public health rules. See O’Brien v. Skinner, 414 U.S. 524, 527, 530-31 (1974) (enjoining an absentee ballot law as-applied to eligible voters in jail). Even if the Witness Requirement did not usually burden many voters, which it does, “these are not ordinary times.” LWVV, 2020 WL 2158249, at *8. Alabama cannot impose this requirement when doing so endangers voters’ lives. See Fla. Democratic Party, 215 F. Supp. 3d at 1258.
b.) The Witness Requirement’s severe burdens on voters far outweigh any nominal State interest in enforcing it.
Because the Witness Requirement places voters in significant danger, it is subject to strict scrutiny. Even if a lesser level of scrutiny applied, the risks to voters far outweigh any nominal benefits to Alabama from enforcing this requirement.
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Alabama law states that the Witness Requirement “goes to the integrity and sanctity of the ballot and election.” Ala. Code § 17-11-10(b). But this requirement does not meaningfully protect the integrity of an absentee ballot. Witnesses are not required to identify themselves by legibly printing their name. Ala. Code §§ 17-117, 17-11-9 & 17-11-10. Nor are Alabama election officials required to follow up with witnesses to confirm their identity, their age, or that they indeed witnessed the signing of the voter’s affidavit. Id. § 17-11-10. Instead, officials merely examine the affidavit for the witness signatures. If the affidavit contains the witness signatures and is otherwise correct, then the ballot is counted. Id. § 17-11-10(b). While instances of fraud are very rare,1 a person determined to falsely submit an absentee ballot and risk imprisonment could just as easily forge the two witnesses’ signatures as they could falsely attest to their identity when signing the absentee ballot affidavit.
By contrast, several provisions of Alabama law unrelated to the Witness Requirement do serve the State’s interest in election integrity by confirming the legitimacy of the absentee ballot. First, the absentee ballot application is required to “contain sufficient information to identify the applicant and shall include the
1 Even the Heritage Foundation—an organization committed to “[p]reventing, deterring, and prosecuting election fraud”—identifies a little more than a dozen cases of election fraud in Alabama concerning absentee voting in the past 20 years. Ex. 61. None of these convictions involved voter impersonation that plausibly could have been stopped by the Witness Requirement, but a few of the convictions involved falsifying witness signatures. In any event, during the same time period, more than 29 million ballots were cast in Alabama elections. See Ex. 62 at 4-9 (reporting vote counts that total 29,146,275 in Alabama elections between March 2000 and June 2018).
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applicant’s name, residence address, or such other information necessary to verify that the applicant is a registered voter.” Ala. Code § 17-11-4. The current absentee ballot application requires a voter to submit either their driver’s license number or the last four digits of their social security number, which allows election officials to verify the voter’s identity even before they send the absentee ballot. Ex. 63. Second, the affidavit requires an absentee voter to swear that the information is true. Ala. Code § 17-11-7. The affidavit warns that it is a criminal offense to knowingly give false information to illegally vote absentee, punishable by a fine up to $1,000 and/or up to six months in jail. Id. Finally, it is a Class C felony for anyone to willfully falsify an absentee ballot application or verification documents. Id. § 17-17-24(a).
Given these alternative methods of protecting election integrity, the additional step of requiring the voucher of a notary or two witnesses offers no real protection against fraud. “For the fraudster who would dare to sign the name of another qualified voter at the risk of being charged with [a felony], writing out an illegible scrawl on an envelope to satisfy the witness requirement would seem to present little to no additional obstacle.” LWVV, 2020 WL 2158249, at *9. In federal and state law, there is a “long practice of relying on the threat of penalty of perjury to guard against dishonesty and fraud.” Lee, 915 F.3d at 1323; see, e.g., 28 U.S.C. § 1746; Ala. Code §§ 13A-10-109, 12-21-83 & 40-29-115. And, when Congress eliminated all witness requirements for absentee voter registration, it found that “warnings of penalties”
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were sufficient to deter fraud. Senate Rep. 103-6, 1993 WL 54278, at *13 (1993). In fact, in 2017, Secretary Merrill supported a bill that would have eliminated
the Witness Requirement. Secretary Merrill admitted that, given the Photo ID requirement, removing the Witness Requirement would strengthen the absentee voting law while making it easier to vote. Ex. 64. While Plaintiffs seek to enjoin the Witness Requirement, they do not seek a blanket injunction against the Photo ID Requirement. See supra at 2-3. Further, the 38 states, including Georgia and Florida, that lack witness requirements are not overrun with absentee voter fraud. Ex. 65.
Amid the COVID-19 crisis, other courts have determined that similar witness requirements are no more effective at preventing voter fraud than self-executed affidavits made under penalty of perjury. See LWVV, 2020 WL 2158249, at *9 (finding that a settlement enjoining a witness requirement would not increase voter fraud); League of Women Voters of Okla. v. Ziriax, No. 118,765, __ P.3d __, 2020 WL 2111348, at *1 (Okla. May 4, 2020) (permitting the use of self-executed affidavits—rather than third-party notarization—to meet a witness requirement).
Moreover, in Democratic Executive Committee of Florida v. Lee, the Eleventh Circuit upheld an injunction against a state law that let election officials reject absentee ballots based solely on these officials’ determination that the signature provided with the ballot does not match the voter’s signature in the state’s records. 915 F.3d at 1315. Even after presuming that (unlike the situation here) this signature
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match law was effective at preventing fraud, the Court held that the burden was not sufficiently tailored to justify the barrier it imposed on the right to vote. Id. at 132223; see also Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262 (11th Cir. 2019) (mem.) (upholding an injunction against Georgia’s similar signature match law).
The Witness Requirement places an even greater unnecessary and dangerous burden on elderly, disabled, Black voters and thousands of others who must choose between their health and their right to vote. “The Constitution does not permit a state to force such a choice on its electorate.” LWVV, 2020 WL 2158249, at *8. Accordingly, the Witness Requirement cannot survive any modicum of scrutiny.
2. The Witness Requirement violates Section 201 of the VRA. Section 201 of the VRA mandates that “[n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State.” 52 U.S.C. § 10501(a). Section 201 bars any “test or device” that requires any person to “prove his qualifications by the voucher of registered voters or members of any other class.” Id. § 10501(b)(4). “All literacy tests and similar voting qualifications were abolished” by Section 201 because, “[a]lthough such tests may have been facially neutral, they were easily manipulated to keep blacks from voting.” N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009). Under the Witness Requirement, an absentee ballot that “is not witnessed by
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two witnesses 18 years of age or older . . . will not be counted.” Ala. Code § 17-117. Under the plain text of the VRA, it is per se illegal insofar as it is a “prerequisite for voting” that demands a voter to “prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b); see also 52 U.S.C. § 10310(c)(1) (defining “voting” in the VRA to include “all action necessary to make a vote effective”). The Witness Requirement is a banned test for all voters. Or, at least, it is an illegal test as-applied to those voters, like Plaintiffs, whose health would be greatly endangered by leaving home to comply with this requirement or vote in person during the pandemic. Cf. O’Brien, 414 U.S. at 530.
Alabama law states that the Witness Requirement “goes to the integrity and sanctity of the ballot and election.” Ala. Code § 17-11-10(b). That justification, however, cannot overcome the plain text of the VRA, which reflects Congress’s judgment that prohibited tests and devices “unduly lend themselves to discriminatory application, either conscious or unconscious.” Oregon v. Mitchell, 400 U.S. 112, 216 (1970) (opinion of Harlan, J.). Before the VRA, other voucher or “supporting witness” requirements were justified as necessary to identify a voter.2 See, e.g., United States v. Ward, 349 F.2d 795, 799 (5th Cir. 1965); United States v. Logue, 344 F.2d 290, 291 (5th Cir. 1965). Whatever the state’s interest, the banned
2 Literacy tests were also justified as necessary to decrease fraud. See Veasey v. Abbott, 830 F.3d 216, 237 (5th Cir. 2016) (en banc); Underwood v. Hunter, 730 F.2d 614, 619 (11th Cir. 1984).
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tests are presumptively discriminatory. See Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir. 1981), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613 (1982). And, while proof of a discriminatory effect is irrelevant under Section 201, the Witness Requirement’s effect is clear. See supra at 23-27.
3. The Witness Requirement violates Title II of the ADA. The ADA seeks to address the “pervasive unequal treatment” of people with disabilities in numerous areas, including voting. Nat’l Ass’n of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th Cir. 2020). Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any entity.” 42 U.S.C. § 12132. To prevail under the ADA, Plaintiffs need prove only that (1) they are qualified persons with a disability; (2) they were excluded from participation in or denied the benefits of a public entity’s services or activities; and (3) the exclusion or denial of the benefit was by reason of the plaintiff’s disability. See Nat’l Fed. of the Blind v. Lamone, 813 F. 3d 494, 502-03 (4th Cir. 2016). “Plaintiffs need not, however, prove that they have been disenfranchised or otherwise ‘completely prevented from enjoying a service, program, or activity’ to establish discrimination” in violation of the voting rights protected by the ADA. Disabled in Action v. Bd. of Elec. in City of N.Y., 752 F.3d 189, 198 (2d. Cir. 2014) (citation omitted).
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Once Plaintiffs prove that a Challenged Provision prevents them from voting, Plaintiffs must offer “reasonable modifications to rules, policies, or practices.” 42 U.S.C. § 12131(2); see also 28 C.F.R. § 35.130(b)(7). A modification to a rule is reasonable if it will not cause “undue hardship.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-03 (2002). The burden of showing that a modification is reasonable is “not a heavy one” and it “is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.” Nat’l Fed. of the Blind, 813 F.3d at 507-08. The determination of reasonableness is “fact-specific.” Id. at 508.
As described above at 16-20, Plaintiffs are otherwise qualified persons with disabilities, which include medical vulnerabilities that place them at extremely high risk of serious bodily injury or death should they leave the confines of their homes. See 28 C.F.R. § 35.108. Plaintiffs and their members are also eligible to vote in this year’s elections and would do so with reasonable accommodations. Absent a modification to the Challenged Provisions, Plaintiffs will be prevented from voting and completely excluded from the democratic process because of their disabilities. See Nat’l Ass’n of the Deaf, 945 F.3d at 1349 (recognizing that the ADA protects the “right to participate in the democratic process,” which is a “foundational” right).
As explained above at 28, there are numerous other ways for voters with disabilities, as well as others, to confirm their identity in the absence of the Witness
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Requirement. Defendants have no valid reason to refuse to accommodate voters by allowing self-executed affidavits in lieu of this requirement. See Nat’l Fed. of the Blind, 813 F.3d at 509 (holding that a state violated the ADA where it failed to show that accommodating voters with disabilities would compromise election integrity).
B. The Constitution and the ADA Demand the Elimination of the Photo ID Requirement for those Voters who are the Most Vulnerable to COVID-19 1. The Photo ID Requirement severely burdens the constitutional rights of vulnerable voters by requiring them to risk COVID-19 exposure.
The Photo ID Requirement demands nearly every voter to submit a photocopy of their photo ID with either their absentee ballot application or the absentee ballot itself. Under existing state law, however, a voter who is entitled to vote by absentee ballot pursuant to the “Uniformed and Overseas Citizens Absentee Voting Act; the Voting Accessibility for the Elderly and Handicapped Act; or any other federal law, shall not be required to produce identification prior to voting.” Ala. Code § 17-930(d). Interpreting this provision, the absentee ballot application exempts from the Photo ID requirement any voter who is over 65 or has a disability and is “unable to access [their] assigned polling place due to a neurological, musculoskeletal, respiratory (including speech organs), cardiovascular, or other life-altering disorder that affects [their] ability to perform manual tasks, stand for any length of time, walk unassisted, see, hear or speak[.]” Ex. 63.
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Secretary Merrill does not interpret this exemption to apply to Plaintiffs Porter and Thompson, People First’s members, or the many thousands of other voters with health conditions that make COVID-19 particularly dangerous. Rather, his emergency rule for the July 14 runoff expressly states that persons who wish to vote absentee due to COVID-19 must provide photo ID. See supra at 9. Secretary Merrill has also instructed voters without access to photocopying technology to leave home in violation of social distancing protocols to make copies. See supra at 9-10.
Given the lack of an exemption for people who are most vulnerable for contracting COVID-19, the Photo ID Requirement “go[es] beyond the merely inconvenient” to severely burden the right to vote. Kemp, 347 F. Supp. 3d at 1264 (citation omitted).
The Photo ID Requirement demands that these vulnerable voters, particularly those who lack a copier or photo ID, do the opposite of what public health officials have advised them to do. They must leave home; congregate in person at a public space, likely in close proximity to others; and touch various surfaces—like copy machines, counters, or doors—that various other persons also have touched. Otherwise, they must forego their right to vote in July. Thus, for voters who cannot copy their IDs at home, the Photo ID Requirement is a “nearly insurmountable hurdle” because it requires voters to violate the Safer-at-Home order. See Libertarian Party of Ill., 2020 WL 1951687, at *4 (finding that a candidate signature
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requirement, which normally posed little burden on the fundamental right to vote, was unconstitutional as applied in the current pandemic).
While it “is a ‘basic truth that even one disenfranchised voter—let alone several thousand—is too many,’” Lee, 915 F.3d at 1321 (citation omitted), over 200,000 households lack the computer needed to copy photo IDs. See supra at 12.
Given the serious burdens that the Photo ID Requirement places on thousands of voters in the current crisis, the Constitution demands that this requirement face strict scrutiny review. See LWVV, 2020 WL 2158249, at *7-8 (finding that a witness requirement, which ordinarily “may not be a significant burden,” is unconstitutional due to COVID-19). The requirement cannot survive such scrutiny. But, due to the lack of any substantial state interest in applying the Photo ID Requirement to vulnerable voters during this crisis, it also cannot survive a lesser level of scrutiny.
2. The Photo ID Requirement’s burden on vulnerable voters is unjustified because Defendants lack any interest in construing it in a manner that endangers Plaintiffs’ health and right to vote.
Defendants cannot claim a discernible interest in compelling citizens to leave home to copy photo IDs or to vote in person in the midst of a dangerous pandemic. While the risk of contagion and bodily harm remains, Defendants cannot state an interest that makes the Photo ID Requirement “necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789.
Nor is the Photo ID Requirement “narrowly drawn” to achieve any asserted
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interest, as is required to satisfy strict scrutiny. Lee, 915 F.3d at 1318. Although Alabama is justified in employing measures to maintain election integrity and combat COVID-19, Defendants have “failed to implement sufficient complementary measures to account for the stifling effect its response to the COVID-19 pandemic exacted on accessing the ballot.” Garbett, 2020 WL 2064101, at *14. Even if Defendants could show that the Photo ID Requirement is generally useful in combating fraud (which they cannot), they cannot show that their refusal to include voters who are most vulnerable in this pandemic, like Plaintiffs, as part of the photo ID exemption that already exists to protect some voters, is narrowly tailored.
Plaintiffs “accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles.” Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016). For many voters—especially the elderly and those at greatest risk of hospitalization or death if they contract the virus—the only way to limit exposure to COVID-19 is through “self-isolation,” which “involves not physically interacting with those outside one’s home” and “maintaining at least six feet of distance between individuals.” Reingold Decl. ¶ 9. Similar advice is being given by federal, state, and local health officials. See supra at 5-7. Given the steps needed to avoid infection, many elderly or other voters most in danger from the virus, but who lack photo ID or copiers, will be dissuaded from voting. “That substantial burden on
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the right to vote [can]not be[] justified by countervailing, demonstrated interests” in the Photo ID Requirement. LWVV, 2020 WL 2158249, at *8. The Constitution requires the Court to offer relief to those voters who face serious barriers to satisfying even an otherwise valid photo ID law. Frank, 819 F.3d at 387.
To cure this constitutional violation, Defendants could simply construe the existing exemption, Ala. Code § 17-9-30(d), to authorize those voters who are most vulnerable to COVID-19 to vote absentee without meeting providing copies of their photo IDs. Alabama’s legislature has already seen fit to offer voters eligible under the Voting Accessibility for the Elderly and Handicapped Act, 52 U.S.C. § 20102, to vote absentee without submitting photo IDs. The State Defendants have rejected a construction that would exempt voters like Plaintiffs Porter and Thompson, opting instead to severely burden the rights of many thousands of vulnerable voters.
The Court can address this constitutional harm: “a federal court can review a state official’s interpretation of—or gloss over—state law when it is alleged to violate the United States Constitution.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1213 (N.D. Fla. 2018). Accordingly, the Court should “enjoin[] the state from enforcing [its] laws as a violation of the First and Fourteenth Amendments.” Id.; accord Obama for Am. v. Husted, 697 F.3d 423, 431 (6th Cir. 2012) (similar); Charles H. Wesley Educ. Found v. Cox, 324 F. Supp. 2d 1358, 1366-68 (N.D. Ga. 2004) (similar), aff’d 408 F.3d 1349 (11th Cir. 2005). In
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fact, because Plaintiffs are protected by the ADA, supra at 16-20, Defendants must interpret the Photo ID Requirement in a manner that protects their right to vote.
C. The Curbside Voting Prohibition Unlawfully Burdens Voters Despite the clear danger linked to close personal contact and interacting at polling stations, and the equally clear guidance from the Governor and the CDC, Defendants actively prohibit in-person polling sites from utilizing curbside voting. Yet, the Curbside Voting Prohibition flouts the very social distancing rules recommended by public health officials. In fact, the Safer-at-Home Order itself explicitly encourages “drive-in,” rather than person-to-person, gatherings for churches and other events to protect vulnerable and other persons from the forms of close contact that put them at higher risk of COVID-19 exposure. See supra at 13-14. The Curbside Voting Prohibition poses risks to all voters, but especially vulnerable Alabamians. While these voters normally vote in person—and, in some cases, may need to do so due to the Witness and Photo ID Requirements—the Curbside Voting Prohibition makes the prospect of voting in person significantly and needlessly more dangerous. See Disabled in Action, 752 F.3d at 198-99 (explaining, in an ADA case, that state policies cannot force voters with disabilities to cast absentee ballots and thereby rob them of the option of voting in person).
1. The Curbside Voting Prohibition is unconstitutional. The insides of polling locations are a “prime area for increased transmission
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of SARS-CoV-2 due to the close proximity of a large number of individuals—voters, observers, poll workers—in a limited space.” Reingold Decl. ¶ 16. They also have a “large number of common surfaces that multiple people touch: the doors, the poll books to sign in, pens, voting booths, and voting machines.” Id. It is therefore important for state officials to allow people to vote while “minimiz[ing] a person’s close contacts with poll workers, other voters, and surfaces at polling locations and thus reduce the spread of COVID-19 via person-to-person contact and environmental surfaces.” Id. ¶ 17. In the absence of curbside voting, vulnerable voters, like the individual Plaintiffs, must leave their vehicles to vote in person at a place where there is a substantially increased risk of contracting COVID-19.
Although absentee voting offers an option for some voters, other voters— including members of the organizational Plaintiffs—require the assistance available in person on Election Day. See supra at 19-20. People with physical disabilities, low literacy, or low English proficiency, for example, are more likely to need assistance from poll workers in marking their ballot. Black voters are also both more likely to be disabled and more likely to have less than a high school education than White voters. See supra at 15-16. Federal law requires that those voters with disabilities or low literacy receive assistance. See 52 U.S.C. § 10508.
Given the serious burdens imposed by the Curbside Voting Prohibition, the Court can sustain the prohibition only if it is “narrowly drawn to advance a state
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interest of compelling importance.” Burdick, 504 U.S. at 434 (citation omitted). Secretary Merrill has indicated the Curbside Voting Prohibition prevents “voting irregularities.” Ex. 42. But he has not explained why or how curbside voting risks voter fraud. And if the Secretary could conjure some hypothetical scenario involving voter fraud and curbside voting, that hypothetical pales when compared to the very real danger to all Alabamians, but especially older and vulnerable Alabamians, would face if forced to vote inside of crowded poll sites amid the current pandemic.
Therefore, the Curbside Voting Prohibition is not “narrowly drawn to advance” any interest the State might have. Burdick, 504 U.S. at 434 (citation omitted). Defendants can address any purported concerns about potential “voting irregularities” through other means. As an example, a bipartisan group of poll watchers and/or non-partisan poll workers can meet a voter at their vehicles with the ballot. And, as discussed above at 14, most states offer curbside voting, and Arkansas, Ohio, Wisconsin, and Wyoming have expanded curbside voting due to COVID-19. Accord Fla. Democratic Party, 215 F. Supp. 3d at 1257 (finding that a state’s refusal to extend voting deadlines after a hurricane was unconstitutional in part because “[m]any other states” had voluntarily changed such deadlines).
The Curbside Voting Prohibition places elderly and vulnerable voters who cannot otherwise safely vote absentee because of the Photo ID or Witness Requirements in an untenable position: risk their health to vote inside of a polling
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site in the midst of the worst pandemic in a century, or altogether forego their right to vote. The Curbside Voting Prohibition thus places a severe burden on voters and cannot stand under any of the stated justifications for the burden.
2. The Curbside Voting Prohibition Violates the ADA. As discussed above at 16-20, Plaintiffs meet the definition of disabled under the ADA and, therefore, Defendants are required to accommodate them to vote safely amid this crisis. But the Curbside Voting Prohibition excludes Plaintiffs and their members with disabilities from participating in elections in violation the ADA. The State Defendants must reasonably modify processes at in-person polling places to permit curbside voting. See 28 C.F.R. § 35.150(b) (explaining that the ADA may require “delivery of services at alternate accessible sites”). The ADA regulations “explicitly prohibit [Alabama] from denying individuals with disabilities access to its services because its ‘facilities are inaccessible to or unusable by [such individuals].’” Disabled in Action, 752 F.3d at 197 (quoting 28 C.F.R. § 35.149). The threat of COVID-19 effectively makes every poll site inaccessible to vulnerable voters. And courts have ordered similar relief in much less dire circumstances. See id. at 201-02 (ordering the relocation of polling places to accessible locations). And such an accommodation would be consistent with Alabama law, which does not expressly prohibit or limit curbside voting. See generally Ala. Code §§ 179-1 to 17-9-15. The CDC has recommended that, amid the pandemic, states should
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“[e]ncourage drive-up voting for eligible voters” as a means of complying with social distancing rules and limiting personal contact. Ex. 1. And the U.S. Department of Justice has stated that the ADA requires curbside voting as an “equally effective opportunity” for disabled people to cast their vote in person where, as here, the “only suitable polling site[s] in a precinct might be an inaccessible building.” Ex. 66.
Permitting curbside voting is a simple way to ensure people subject to medical vulnerabilities can access the ballot in compliance with the ADA. II. Plaintiffs Will Suffer Irreparable Harm Absent Preliminary Relief
“The denial of the opportunity to cast a vote that a person may otherwise be entitled to cast—even once—is an irreparable harm.” Jones, 950 F.3d at 828. Here, Plaintiffs need to vote by absentee ballot or via curbside voting to protect their health. They face an unconscionable risk to their safety and the safety of others if they are compelled to vote in person without curbside voting or forced to have their absentee ballots witnessed or to obtain a copy of their photo ID. There “can be no injury more irreparable” than “serious, lasting illness or death.” Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020). Courts have “specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO.” Id. at *7 (collecting cases). A preliminary injunction provides the only effective means for protecting Plaintiffs’ and others’ rights to vote.
The organizational Plaintiffs also are “irreparably harmed when the right to
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vote is wrongfully denied or abridged—whether belonging to [their] membership or the electorate at large.” N.C. State Conf. of NAACP v. Cooper, No. 18-cv-1034, 2019 WL 7372980, at *24 (M.D.N.C. Dec. 31, 2019). The harm to the organizational Plaintiffs’ “interests is coterminous with the harms suffered by its citizen members.” Common Cause Ga. v. Kemp, 347 F. Supp. 3d 1270, 1295 (N.D. Ga. 2018).
Further, the Challenged Provisions irreparably harm the organizational Plaintiffs’ missions of ensuring that qualified citizens are registered to vote. These Plaintiffs will need to continue to divert its limited resources from voter registration to educate its community about the Witness Requirement and Curbside Voting Prohibition. See supra at 18-20. These harms are irreparable: “when a plaintiff loses an opportunity to register a voter, the opportunity is gone forever.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012).
Finally, the harm to Plaintiffs is also imminent. “COVID-19 will continue to transmit widely” through July 14. Reingold Decl. ¶¶ 13, 15; see Elopre Decl ¶ 17. III. The Balance of Equities and Public Interest Support Injunctive Relief
The “cautious protection of the Plaintiffs’ franchise-related rights is without question in the public interest.” Charles H. Wesley Educ. Found., Inc., 408 F.3d at 1355. “Frustration of federal statutes and prerogatives are not in the public interest,” and Defendants suffer “no harm from the state’s nonenforcement of invalid legislation.” United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012). The
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public has “every interest in ensuring that their peers who are eligible to vote are able to do so in every election.” Jones, 950 F.3d at 831.
Enjoining the Challenged Provisions also promotes the “paramount government interest” in the “protection of the public’s health and safety.” Gun S., Inc. v. Brady, 877 F.2d 858, 867 (11th Cir. 1989). “The public interest is clearly in remedying dangerous or unhealthy situations and preventing the further spread of disease.” Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498, at *4 (E.D. Va. Aug. 18, 2016). The State recognizes this and encourages people to stay home. See supra at 7. The CDC agrees and recommends that voters “use voting methods that minimize direct contact with other people.” Ex. 1. The CDC’s views are also “authoritative” because they are “the type of public medical health officials to which courts should defer.” Tolman v. Doe, 988 F. Supp. 582, 586 (E.D. Va. 1997). Conversely, no public interest is compromised by an injunction that prevents harm to voters and slows the spread of COVID-19.
CONCLUSION For the reasons above, Plaintiffs respectfully move the Court to preliminarily enjoin: (1) the Witness Requirement for all voters; (2) the Photo ID Requirement for “vulnerable persons” who are more susceptible to serious illness from COVID-19; and (3) the Curbside Voting Prohibition ahead of the July 14, 2020 primary runoff.
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DATED this 12th day of May 2020. Respectfully submitted,

/s/ Deuel Ross

/s/ Sara Zampierin

Deuel Ross*

Sara Zampierin (ASB-1695-S34H)

Natasha C. Merle*

SOUTHERN POVERTY LAW CENTER

Liliana Zaragoza*

400 Washington Avenue

NAACP LEGAL DEFENSE &

Montgomery, AL 36104

EDUCATIONAL FUND, INC. P: (334) 956-8200

40 Rector Street, 5th Floor

F: (334) 956-8481

New York, NY 10006

sara.zampierin@splcenter.org

P: (212) 965-2200

dross@naacpldf.org

/s/ Caren E. Short

nmerle@naacpldf.org

Caren E. Short (ASB-0646-P48N)

lzaragoza@naacpldf.org

Nancy G. Abudu*

SOUTHERN POVERTY LAW CENTER

/s/ William Van Der Pol

PO Box 1287

William Van Der Pol [ASB-211214F] Decatur, GA 30031

Jenny Ryan [ASB–5455-Y84J]

P: (404) 521-6700

ALABAMA DISABILITIES

F: (404) 221-5857

ADVOCACY PROGRAM

caren.short@splcenter.org

Box 870395

nancy.abudu@splcenter.org

Tuscaloosa, AL 35487

P: (205)348-4928

wvanderpoljr@adap.ua.edu

* Admitted Pro Hac Vice

jrryan2@adap.ua.edu

Attorneys for Plaintiffs

Case 2:20-cv-00619-AKK Document 16 Filed 05/13/20 Page 55 of 55
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of May 2020, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send
notification to all counsel of record.
/s/ Deuel Ross Deuel Ross NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 P: (212) 965-2200 dross@naacpldf.org

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 1 of 16

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,

Plaintiffs, v.

Case No.: 2:20-cv-00619-AKK

JOHN MERRILL, et al., Defendants.

DECLARATION OF DEUEL ROSS DEUEL ROSS declares, pursuant to 28 U.S.C. § 1746, as follows: 1. I am over the age of 18 and competent to make this declaration. I am an attorney for Plaintiffs. I am barred in New York and have been admitted Pro Hac Vice before this Court in the above-captioned matter. I submit this declaration on behalf of the Plaintiffs to provide true and correct copies of certain the listed exhibits submitted in support of Plaintiffs’ Motion for a Preliminary Injunction (Doc. 15). 2. Exhibit 1 is a true and correct copy of the Centers for Disease Control and Prevention (CDC) webpage entitled “Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID19),” dated March 27, 2020, and available at:

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 2 of 16

https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-

locations.html.

3. Exhibit 2 is a true and correct copy of “Characteristics of Laboratory-

Confirmed Cases of COVID-19,” a report published daily on the website of the

Alabama Department of Public Health, dated May 11, 2020, and available at:

https://www.alabamapublichealth.gov/covid19/assets/cov-al-cases-051120.pdf

4. Exhibit 3 is a true and correct copy of the Declaration of Dr. Arthur L.

Reingold, dated May 6, 2020.

5. Exhibit 4 is a true and correct copy of “Coronavirus vs. Flu: Which

Virus is Deadlier,” a Wall Street Journal article, dated March 10, 2020, and available

at:

https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-

11583856879.

6. Exhibit 5 is a true and correct of “Coronavirus infection may cause

lasting damage throughout the body, doctors fear,” a Los Angeles Times news article

dated April 4, 2020, and available at: https://www.latimes.com/science/story/2020-

04-10/coronavirus-infection-can-do-lasting-damage-to-the-heart-liver.

7. Exhibit 6 is a true and correct copy of “People in their 60s at higher

coronavirus risk too, say scientists,” a The Guardian news article, dated April 22,

2020, and available at: https://www.theguardian.com/society/2020/apr/22/people-

in-their-60s-at-higher-coronavirus-risk-too-say-scientists.
2

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 3 of 16
8. Exhibit 7 is a true and correct copy of “Governor Ivey Announces New Primary Runoff Election Date,” a press release published by the Office of the Governor of Alabama, dated March 18, 2020, and available at: https://governor.alabama.gov/newsroom/2020/03/governor-ivey-announces-newprimary-runoff-election-date/.
9. Exhibit 8 is a true and correct copy of “It’s safer at home; protect yourself and your community from COVID-19,” a press release published by the Alabama Department of Public Health, dated March 27, 2020, and available at: https://www.alabamapublichealth.gov/news/2020/03/27.html.
10. Exhibit 9 is a true and correct copy of “Coronavirus might spread much farther than 6 feet in the air. CDC says wear a mask in public,” a USA Today news article, dated April 5, 2020, and available at: https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-howmasks-might-stop-spread-through-coughs/5086553002/.
11. Exhibit 10 is a true and correct copy of “Media Statement – COVID19,” a United States Postal Service press statement, dated April 30, 2020, and available at: https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm.
12. Exhibit 11 is a true and correct copy of “Poll Worker at Chicago Voting Site Dies of Coronavirus,” an NBC Chicago news article, dated April 13, 2020, and
3

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 4 of 16
available at: https://www.nbcchicago.com/news/local/chicago-politics/poll-workerat-chicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/.
13. Exhibit 12 true and correct copy of “Two Broward poll workers, including one who handled voters’ driver licenses, test positive for coronavirus,” a South Florida Sun Sentinel news article, dated March 26, 2020, and available at: https://www.sun-sentinel.com/coronavirus/fl-ne-broward-elections-poll-workerscoronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html.
14. Exhibit 13 is a true and correct copy of “52 people who worked or voted in Wisconsin election have COVID-19,” a PBS News Hour news article, dated April 29, 2020, and available at: https://www.pbs.org/newshour/health/52-people-whoworked-or-voted-in-wisconsin-election-have-covid-19.
15. Exhibit 14 is a true and correct copy of a Proclamation of the Governor of the State of Alabama, the initial declaration a state of emergency due to the coronavirus (COVID-19), dated March 13, 2020, and available at: https://governor.alabama.gov/assets/2020/03/2020-03-13-Initial-COVID-19SOE.pdf.
16. Exhibit 15 is a true and correct copy of “Order of the State Public Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” a statewide order signed by Public Health Officer Dr. Scott Harris, dated March 19, 2020, and available at:
4

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 5 of 16
https://www.alsde.edu/COVID19%20Updates/Alabama%20State%20Health%20O fficer%20Statewide%20Social%20Distancing%20Order%20%20%283.19.20%29. pdf.
17. Exhibit 16 is a true and correct copy of a Proclamation by the Governor of Alabama, dated March 26, 2020, and available at: https://www.alabamapublichealth.gov/legal/assets/soe-covid19-instruction032620.pdf.
18. Exhibit 17 is a true and correct copy of a Proclamation by the Governor of Alabama, dated April 2, 2020, and available at: https://www.alabamapublichealth.gov/legal/assets/soe-covid19-040220.pdf.
19. Exhibit 18 is a true and correct copy of the “Stay-at-Home” order, or the amended “Order of the State Public Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” a statewide order signed by Public Health Officer Dr. Scott Harris, dated April 3, 2020, and available at: https://governor.alabama.gov/assets/2020/04/Final-Statewide-Order-4.3.2020.pdf.
20. Exhibit 19 is a true and correct copy of the “Safer-at-Home” order, or the further amended “Order of the State Public Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” a statewide order signed by Public Health Officer Scott Harris, M.D., dated April 28, 2020, and available at: https://governor.alabama.gov/assets/2020/04/Safer-At-Home-Order-Signed-
5

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 6 of 16
4.28.20.pdf 21. Exhibit 20 is a true and correct copy of the amended Safer-at-Home
order, or the further amended “Order of the State Public Health Officer Suspending Certain Public Gatherings Due to Risk of Infection by COVID-19,” a statewide order signed by Public Health Officer Dr. Scott Harris, dated May 8, 2020, and available at: https://governor.alabama.gov/assets/2020/05/Safer-at-Home-Order-FINAL5.8.2020.pdf
22. Exhibit 21 is a true and correct copy of “Gov. Kay Ivey extends public health emergency, issues COVID-19 lawsuit protections,” an Alabama Political Reporter news article, dated May 8, 2020, and available at: https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-healthemergency-issues-covid-19-lawsuit-protections/
23. Exhibit 22 is a true and correct copy of “Handful of Alabama counties still seeing coronavirus cases rise over last 14 days,” an Alabama Media Group news article, dated April 30, 2020, and is available at: https://www.al.com/news/2020/04/handful-of-alabama-counties-still-seeingcoronavirus-cases-rise-over-last-14-days.html.
24. Exhibit 23 is a true and correct copy of “Characteristics of COVID-19 Patients‒Mobile County, Alabama, 2020,” a report published on the website of the Mobile County Health Department, dated May 11, 2020, and available at:
6

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 7 of 16
http://mchd.org/Documents/BulkDocuments/News 5112020112640am NewCOVI DReport05.11.20.pdf.pdf
25. Exhibit 24 is a true and correct copy of “Safeguard Your Overall Health in the COVID-19 Pandemic,” a statement published on the website of the Alabama Department of Public Health and identified therein as a message from State Health Officer Scott Harris, M.D, dated May 4, 2020, and available at: http://www.alabamapublichealth.gov/news/sho-message.html
26. Exhibit 25 is a true and correct copy of “Alabama records 300+ new COVID-19 cases for first time since April 12,” an Alabama Political Reporter news article, dated May 2, 2020, and is available at: https://www.alreporter.com/2020/05/02/alabama-records-300-new-covid-19-casesin-a-day-for-first-time-since-april-12/
27. Exhibit 26 is a true and correct copy of “Tracking COVID-19 cases in Alabama,” a data aggregation and visualization created by the Alabama Political Reporter using data provided by the Alabama Department of Public Health, dated May 11, 2020, and is available at: https://www.alreporter.com/mappingcoronavirus-in-alabama/
28. Exhibit 27 is a true and correct copy of “COVID-19 in Alabama,” a page on the website of the Alabama Department of Public Health, dated May 11, 2020, and is available at: https://dph1.adph.state.al.us/covid-19/
7

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 8 of 16
29. Exhibit 28 is a true and correct copy of “Upcoming Elections,” a web page on the website of the Alabama Secretary of State, downloaded as a PDF on May 10, 2020, and available at: https://www.sos.alabama.gov/alabama-votes/voter/upcoming-elections
30. Exhibit 29 is a true and correct copy of “Election Day epidemic? Alabama has no plan,” an Alabama Media Group news article, dated March 10, 2020, and is available at: https://www.al.com/news/2020/03/election-day-epidemicalabama-has-no-plan.html
31. Exhibit 30 is a true and correct copy of a Proclamation by the Governor of Alabama, dated March 18, 2020, and is available at: https://governor.alabama.gov/assets/2020/03/2020-03-18-1st-SupplementalCOVID-19-SOE.pdf
32. Exhibit 31 is a true and correct copy of “Certification of Emergency Rules Filed with Legislative Services Agency,” a document published on the website of the Alabama Secretary of State, and certifying a new rule number titled and numbered “820-2-3-.06-.01ER, Absentee Voting During State of Emergency,” dated March 18, 2020, and available at: https://www.sos.alabama.gov/sites/default/files/SOS%20Emergency%20Rule%20 820-2-3-.06-.01ER.pdf
33. Exhibit 32 is a true and correct copy of two “tweets” publicly posted
8

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 9 of 16
by the official personal Twitter account of Alabama Secretary of State John Merrill on April 21, 2020, and available at: https://twitter.com/JohnHMerrill/status/1252620168611717120 https://twitter.com/JohnHMerrill/status/1252652987241172992
34. Exhibit 33 is a true and correct copy of a letter sent by the Alabama State Conference of the NAACP, Greater Birmingham Ministries, and counsel for Plaintiffs to Alabama Secretary of State John Merrill, dated March 19, 2020.
35. Exhibit 34 is a true and correct copy of a letter sent by the Alabama State Conference of the NAACP, Greater Birmingham Ministries, and counsel for Plaintiffs to Alabama Secretary of State John Merrill, dated April 17, 2020.
36. Exhibit 35 is a true and correct copy of a Letter from John H. Merrill, Alabama Secretary of State, to Mona Harrington, Acting Executive Director, U.S. Election Assistance Commission, dated April 8, 2020, and is available at: https://www.eac.gov/sites/default/files/paymentgrants/cares/AL_CARES_Disburse ment RequestLetter.pdf
37. Exhibit 36 is a true and correct copy of the Declaration of William S. Cooper and related attachments, dated May 11, 2020.
38. Exhibit 37 is a true and correct copy of “ALEA Continues to Modify its Driver License Division Operations in Response to COVID-19,” a press release published by the Alabama Law Enforcement Agency, dated March 23, 2020, and
9

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 10 of 16
available at: https://www.alea.gov/news/alea-continues-modify-its-driver-licensedivision-operations-response-covid-19
39. Exhibit 38 is a true and correct copy of the “Administrative Order Suspending All In-Person Court Proceedings for the Next Thirty Days” issued by the Supreme Court of Alabama, dated March 13, 2020, and available at: https://www.alacourt.gov/docs/COV-19%20order%20FINAL.pdf
40. Exhibit 39 is a true and correct copy of “ALEA Finalizing Plans to Resume Normal Driver License Division Operations; Safety a Top Priority,” a press release published by the Alabama Law Enforcement Agency, dated May 8, 2020, and available at: https://www.alea.gov/news/alea-finalizing-plans-resume-normaldriver-license-division-operations-safety-top-priority
41. Exhibit 40 is a true and correct copy of “Administrative Order No. 6: Extending Orders and Deadlines Concerning the Suspension of In-Person Proceedings through May 15, 2020,” issued by the Supreme Court of Alabama, dated April 30, 2020, and available at: https://www.alacourt.gov/docs/Administrative%20Order%20No.%206.pdf
42. Exhibit 41 is a true and correct copy of “Mobile ID Locations” from the Alabama Secretary of State John Merrill’s official webpage, as it appeared on May 11, 2020, and available at: https://www.sos.alabama.gov/alabama-votes/photo-voter-id/mobile-id-locations
10

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 11 of 16
43. Exhibit 42 is a true and correct copy of “Secretary of State’s office shuts down curbside voting in Hale County,” an ABC News 3040 news article, dated November 8, 2016, and available at: https://abc3340.com/news/election/secretaryof-states-office-shuts-down-curbside-voting-in-hale-county
44. Exhibit 43 is a true and correct copy of “Voters with Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance,” a report published by the U.S. Government Accountability Office, dated October 2017, and available at: https://www.gao.gov/assets/690/687556.pdf
45. Exhibit 44 is a true and correct copy of “Voting in age of coronavirus gets uncertain test runs,” an ABC News news article, dated March 31, 2020, and is available at: https://abcnews.go.com/Politics/note-voting-age-coronavirus-uncertain-testruns/story?id=69877935
46. Exhibit 45 is a true and correct copy of “Ohio offering curbside voting, extending absentee deadline for those in hospital in wake of coronavirus,” a USA Today news article, dated March 16, 2020, and is available at: https://www.usatoday.com/story/news/politics/elections/2020/03/16/coronavirusohio-offering-curbside-voting-states-head-polls-tuesday/5058230002/
47. Exhibit 46 is a true and correct copy of “Early voting: Where you can still cast a ballot in-person before the April 7 election in the Milwaukee area,” a
11

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 12 of 16
Milwaukee Journal Sentinel news article, dated March 31, 2020, and is available at: https://www.jsonline.com/story/news/politics/elections/2020/03/31/coronaviruswisconsin-where-you-can-still-vote-early/2883706001/
48. Exhibit 47 is a true and correct copy of “States focus on alternatives to in-person voting as they move forward with primaries amid coronavirus pandemic,” an ABC News news article, dated March 20, 2020, and is available at: https://abcnews.go.com/Politics/states-focus-alternatives-person-voting-moveforward-primaries/story?id=69688445
49. Exhibit 48 is a true and correct copy of “Morbidity and Mortality Weekly Report: Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019 — COVID-NET, 14 States, March 1–30, 2020,” a report published by the Centers for Disease Control and Prevention, dated April 17, 2020, and available at: https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf
50. Exhibit 49 is a true and correct copy of “Dr. Karen Landers says large number of COVID-19 deaths are African American,” a WHNT-TV Huntsville news article and video downloaded as a PDF from the MSN.com website, dated April 10, 2020, and is available at https://www.msn.com/en-us/foodanddrink/foodnews/dr-karen-landers-says-largenumber-of-covid-19-deaths-are-african-american/vp-BB12rYB6
12

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 13 of 16
51. Exhibit 50 is a true and correct copy of the Declaration of Dr. Courtney D. Cogburn, dated May 7, 2020, which includes a true and correct copy of Dr. Cogburn’s curriculum vitae.
52. Exhibit 51 is a true and correct copy of “COVID-19 in Racial and Ethnic Minority Groups,” a web page downloaded as a PDF from the website of the Centers for Disease Control and Prevention, dated April 22, 2020, and available at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnicminorities.html
53. Exhibit 52 is a true and correct copy of the Declaration of Robert Clopton, dated May 11, 2020.
54. Exhibit 53 is a true and correct copy of the Declaration of Eric Peebles, dated May 8, 2020.
55. Exhibit 54 is a true and correct copy of the Declaration of Howard Porter, Jr., dated May 9, 2020.
56. Exhibit 55 is a true and correct copy of the Declaration of Annie Carolyn Thompson, dated May 7, 2020.
57. Exhibit 56 is a true and correct copy of Susan Ellis, Executive Director, People First of Alabama, dated May 11, 2020.
58. Exhibit 57 is a true and correct copy of the Declaration of Scott Douglas, Executive Director, Greater Birmingham Ministries, dated May 12, 2020.
13

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 14 of 16
59. Exhibit 58 is a true and correct copy of the Declaration of Bernard Simelton, Sr., State President, Alabama Conference of the NAACP, dated May 7, 2020.
60. Exhibit 59 is a true and correct copy of “Election Administration and Voting Survey: 2018 Comprehensive Report,” a report submitted to Congress by the U.S. Election Assistance Commission, dated 2018, and is available at: https://www.eac.gov/sites/default/files/eac assets/1/6/2018 EAVS Report.pdf
61. Exhibit 60 is a true and current copy of data from the 2018 Election Assistance Commission (EAC) Election Administration and Voting Survey reflecting data, broken down by Alabama county, of the total number of mail ballots received for counting and the number rejected for lack of a witness signature. I created this table from data accessed on the EAC’s website at https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys, using the EAVS Data Codebook and the EAVS Datasets Version 1.2 (released February 18, 2020).
62. Exhibit 61 is a true and correct copy of “Election Fraud Cases,” a web page on the website of the Heritage Foundation, filtered to show cases reported in the State of Alabama, downloaded as a PDF on May 10, 2020, and available at: https://www.heritage.org/voterfraud/search?combine=&state=AL&year=&case_ty pe=All&fraud type=24489&page=0
14

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 15 of 16

63. Exhibit 62 is a true and correct copy of “Primary/Primary Run-

Off/General Election Statistics-State of Alabama,” a PDF report downloaded from

the website of the Alabama Secretary of State, dated June 25, 2018, and available at:

https://www.sos.alabama.gov/sites/default/files/voter-pdfs/turnout.pdf

64. Exhibit 63 is a true and correct copy of “Application for Absentee

Ballot,” a PDF application form downloaded from the website of the Alabama

Secretary

of

State

by

navigating

to

https://www.sos.alabama.gov/sites/default/files/voter-pdfs/absentee/RegularAbsent

eeAppFillable.pdf, downloaded on May 10, 2020.

65. Exhibit 64 is a true and correct copy of “Bill would eliminate

requirement to give reason for voting absentee,” an Alabama Media Group news

article, dated January 13, 2019, and available at:

https://www.al.com/news/birmingham/2017/04/bill_would_eliminate_requireme.ht

ml

66. Exhibit 65 is a true and correct copy of “Voting Outside the Polling

Place: Absentee, All-Mail and other Voting at Home Options,” by the National

Conference of State Legislatures, dated April 14, 2020, and available at

https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-

voting.aspx, which can be access by selecting the tab titled “Processing, Verifying,

and Counting Absentee Ballots” and scrolling down to the chart “Verifying
15

Case 2:20-cv-00619-AKK Document 16-1 Filed 05/13/20 Page 16 of 16
Authenticity of Absentee/Mailed Ballots.” 67. Exhibit 66 is a true and correct copy of “The Americans with
Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities,” a web page on the website of the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, dated September 2014, and available at: https://www.ada.gov/ada voting/ada voting ta.htm
68. Exhibit 67 is a true and correct copy of the Declaration of Latesha E. Elopre, MD, MSPH, dated May 12, 2020.
69. I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and correct.
Dated: May 12, 2020
Deuel Ross
16

Case 2:20-cv-00619-AKK Document 16-2 Filed 05/13/20 Page 1 of 4

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 1

5/10/2020

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Coronavirus Disease 2019
Recommendations for Election Polling Locations
Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19)
Updated March 27, 2020
Summary of changes: Encourage moving election polling locations away from long term care facilities and facilities housing older persons to minimize COVID-19 exposure among older individuals and those with chronic medical conditions. Updated EPA COVID Disinfectant link.

Background
There is much to learn about the novel coronavirus (SARS-CoV-2) that causes coronavirus disease 2019 (COVID-19). Based on what is currently known about SARS-CoV-2 and about similar coronaviruses, spread from person-to-person happens most frequently among close contacts (within about 6 feet). This type of transmission occurs via respiratory droplets. Transmission of SARS-CoV-2 to persons from surfaces contaminated with the virus has not been documented. Transmission of coronavirus in general occurs much more commonly through respiratory droplets than through contact with contaminated surfaces. Current evidence suggests that SARS-CoV-2 may remain viable for hours to days on surfaces made from a variety of materials. Cleaning of visibly dirty surfaces followed by disinfection is a best practice measure for prevention of COVID-19 and other viral respiratory illnesses in election polling locations.
Purpose
This guidance provides recommendations on the routine cleaning and disinfection of polling location areas and associated voting equipment (e.g., pens, voting machines, computers). It suggests actions that polling station workers can take to reduce the risk of exposure to COVID-19 by limiting the survival of the virus in the environment. This guidance will be updated if additional information becomes available.
De nitions:
Community settings (e.g. polling locations, households, schools, daycares, businesses) encompass most nonhealthcare settings and are visited by the general public. Cleaning refers to the removal of dirt and impurities including germs from surfaces. Cleaning alone does not kill germs. But by removing them, it decreases the number of germs and therefore any risk of spreading infection. Disinfecting kills germs on surfaces. Disinfecting works by using chemicals to kill germs on surfaces. This process does not necessarily clean dirty surfaces or remove germs. But killing germs remaining on a surface after cleaning further reduce any risk of spreading infection.
Actions for elections o cials in advance of election day
Encourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.
Encourage mail-in methods of voting if allowed in the jurisdiction. Encourage early voting, where voter crowds may be smaller throughout the day. This minimizes the number of individuals a voter may come in contact with. Encourage drive-up voting for eligible voters if allowed in the jurisdiction.

https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html

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Encourage voters planning to vote in-person on election day to arrive at o -peak times. For example, if voter crowds are lighter mid-morning, advertise that in advance to the community. Encourage relocating polling places from nursing homes, long-term care facilities, and senior living residences, to minimize COVID-19 exposure among older individuals and those with chronic medical conditions. Consider additional social distancing and other measures to protect these individuals during voting.

Preventive actions polling workers can take
Stay at home if you have fever, respiratory symptoms, or believe you are sick
Practice hand hygiene frequently: wash hands often with soap and water for at least 20 seconds. If soap and water are not readily available, use an alcohol-based hand sanitizer that contains at least 60% alcohol.
Practice routine cleaning of frequently touched surfaces: including tables, doorknobs, light switches, handles, desks, toilets, faucets, sinks, etc.
Disinfect surfaces that may be contaminated with germs after cleaning: A list of products with EPA-approved emerging viral pathogens claims  is available. Products with EPA-approved emerging viral pathogens claims are expected to be e ective against the virus that causes COVID-19 based on data for harder to kill viruses. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, use of personal protective equipment).
Clean and disinfect voting-associated equipment (e.g., voting machines, laptops, tablets, keyboards) routinely. Follow the manufacturer’s instructions for all cleaning and disinfection products.
Consult with the voting machine manufacturer for guidance on appropriate disinfection products for voting machines and associated electronics.
Consider use of wipeable covers for electronics.
If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to clean voting machine buttons and touch screens. Dry surfaces thoroughly to avoid pooling of liquids.

Preventive action polling stations workers can take for themselves and the general public
Based on available data, the most important measures to prevent transmission of viruses in crowded public areas include careful and consistent cleaning of one’s hands. Therefore:
Ensure bathrooms at the polling station are supplied adequately with soap, water, and drying materials so visitors and sta can wash their hands..
Provide an alcohol-based hand sanitizer with at least 60% alcohol for use before or after using the voting machine or the nal step in the voting process. Consider placing the alcohol-based hand sanitizer in visible, frequently used locations such as registration desks and exits.
Incorporate social distancing strategies, as feasible.Social distancing strategies increase the space between individuals and decrease the frequency of contact among individuals to reduce the risk of spreading a disease. Keeping individuals at least 6 feet apart is ideal based on what is known about COVID-19. If this is not feasible, e orts should be made to keep individuals as far apart as is practical. Feasibility of strategies will depend on the space available in the polling station and the number of voters who arrive at one time. Polling station workers can:
Increase distance between voting booths.
Limit nonessential visitors. For example, poll workers should be encouraged not to bring children, grandchildren, etc. with them as they work the polls.
Remind voters upon arrival to try to leave space between themselves and others. Encourage voters to stay 6 feet apart if feasible. Polling places may provide signs to help voters and workers remember this. Discourage voters and workers from greeting others with physical contact (e.g., handshakes). Include this reminder on signs about social distancing.

https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html

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Recommendations for processing mail-in ballots
Workers handling mail in ballots should practice hand hygiene frequently No additional precautions are recommended for storage of ballots
References
Community Mitigation Guidance for COVID-19 Response in the United States: Nonpharmaceutical Interventions for Community Preparedness and Outbreak Response Handwashing: Clean Hands Save Lives Protect Yourself & Your Family
Page last reviewed: March 10, 2020

https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 2

Case 2:20-cv-00619-AKK Document 16-3 Filed 05/13/20 Page 2 of 3

CHARACTERISTICS OF LABORATORYCONFIRMED CASES OF COVID-19

9,904 1,245 CLINICALAND EPIDEMIOLOGIC CHARACTERISTICS

LABORATORY-

TOTAL

CONFIRMED CASES HOSPITALIZATIONS

129,426 393

TOTAL TESTED COVID-19DEATHS

In ICU

460

DEMOGRAPHIC CHARACTERISTICS

On Mechanical Ventilation

274

5-24 years 9.6%

≥65 years 25.0%

25-49 years 39.2%

AGE CATEGORY

50-64 years 25.4%
■ 0-4 Years 0.8%

Unknown 13.3%

RACE
Black 38.4%

White 44.0%

■ Other 3.8% ■ Asian 0.6%

Healthcare Worker

1,390

(Hospitals and doctor’s offices)

Male 41.4%

SEX
Female 57.8%

■ Unknown 0.7%

Unknown 18.6%
ETHNICITY

Not Hispanic or Latino 73.7%
■ Hispanic or Latino 7.7%

Long-Term Care Facility Employee
Long-Term Care Facility Resident

634 1,026

As of 5/11/20 at 9:30am - Updated daily

Case 2:20-cv-00619-AKK Document 16-3 Filed 05/13/20 Page 3 of 3

LABORATORY-CONFIRMED COVID-19 CASE CHARACTERISTICS

DEMOGRAPHIC CHARACTERISTICS OF LABORATORY-CONFIRMED COVID-19 CASES WHOSE DEATH HAS BEEN VERIFIED

50-64 years 17.6%
AGE CATEGORY
≥65 years 79.6%

Female 44.0%
SEX
Male 56.0%

DEATHS WITH NO UNDERLYING
CONDITIONS TOTAL NUMBER: 19
TOTAL COVID-19 DEATHS: 393
AGE IN YEARS Median: 72 Range: 50-92
50-64 years 26.3%
AGE CATEGORY

■ 25-49 2.8%
Unknown 2.5%

Unknown 10.9%

≥65 years 73.7%

RACE

Black

White

45.5%

49.6%

ETHNICITY
Not Hispanic or Latino 86.8%

Male 36.8%
SEX
Female 63.2%

■ Other Race 1.5% ■ Asian 0.8% ■ Hispanic or Latino 2.3%

UNDERLYING MEDICAL CONDITIONS FOR LABORATORY-CONFIRMED COVID-19
CASES WHOSE DEATH HAS BEEN VERIFIED

UNDERLYING MEDICAL LABORATORY-CONFIRMED

CONDITIONS

COVID-19 CASES

Cardiovascular Disease

249

63.4%

Chronic Liver Disease

10

2.5%

Chronic Lung Disease

98

24.9%

Chronic Renal Disease

106

27.0%

Diabetes Mellitus

154

39.2%

Immunocompromised Condition

80

20.4%

Multiple Underlying Medical Conditions

225

57.3%

None

19

4.8%

Currently Pregnant

0

0.0%

Some patients may have more than one high risk health condition.

Other Race 10.5%

RACE

Black 36.8%

White 52.6%

ETHNICITY
Not Hispanic or Latino 89.5%
■ Hispanic or Latino 10.5%
As of 5/11/20 at 9:30am - Updated daily

Case 2:20-cv-00619-AKK Document 16-4 Filed 05/13/20 Page 1 of 42

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 3

Case 2:20-cv-00619-AKK Document 16-4 Filed 05/13/20 Page 2 of 42

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

PEOPLE FIRST OF ALABAMA, et al.,

Plaintiffs,

v.

Case No.: 2:20-cv-00619-AKK

JOHN MERRILL, et al.,

Defendants.

DECLARATION OF DR. ARTHUR L. REINGOLD
Pursuant to 28 U.S.C. § 1746, I hereby declare as follows: 1. I am the Division Head of Epidemiology and Biostatistics at the University of California, Berkeley, School of Public Health. I have worked on the prevention and control of infectious diseases in both the United States, including eight years at the US Centers for Disease Control and Prevention (“CDC”), and with numerous developing countries around the world for over forty years. Since its inception in 1994, I have directed or co-directed the CDC-funded California Emerging Infections Program. I am a member of the Society for Epidemiologic Research and the American Epidemiological Society; an elected Fellow of the Infectious Disease Society of America and of the American Association for the Advancement of Science; and an elected member of the Institute of Medicine of the National Academy of Sciences. I was previously the President of both the Society for Epidemiologic Research and the American Epidemiological Society. I have served on the editorial boards of the journals: American Journal of Epidemiology, Epidemiology, and Global Public Health.

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2. I received my A.B. in biology from the University of Chicago in 1970, and my M.D. from the University of Chicago in 1976. Among other things, I completed a residency in internal medicine and a preventative medicine residency with the CDC.
3. My research focuses on emerging and re-emerging infections in the United States and in developing countries; vaccine-preventable diseases in the United States and in developing countries; and disease surveillance, outbreak detection, and outbreak response.
4. Attached and incorporated by reference to this declaration is a copy of my curriculum vitae. (Attached here as Exhibit A).
5. I am currently collaborating on research concerning SARS-CoV-2 and its incidence, and serving on SARS-CoV-2 advisory groups for multiple organizations, including UC Berkeley, the University of California system, and the City and County of San Francisco, among others.
6. SARS-CoV-2 is a novel coronavirus that causes Coronavirus Disease 2019 (COVID-19). The virus is a respiratory virus with patients typically presenting with acute respiratory signs and symptoms, which can escalate in some patients to respiratory failure and other serious, life-threatening complications. The most common symptoms are fever, cough, and shortness of breath. Other identified symptoms include muscle aches, headaches, chest pain, diarrhea, coughing up blood, sputum production, runny nose, nausea, vomiting, sore throat, confusion, lack of senses of taste and smell, and anorexia. Due to the respiratory impacts of the disease, individuals may need to be put on oxygen, and in severe cases, patients may need to be intubated and put on a ventilator. People of every age can and have contracted COVID-19, including severe cases, but geriatric patients are at the greatest risk of severe cases, long-term impairment, and death. Likewise, those with immunologic conditions and with other pre-existing
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conditions, such as hypertension, certain heart conditions, lung diseases (e.g., asthma, COPD), diabetes mellitus, obesity, and chronic kidney disease, are at high risk of a life-threatening COVID19 illness. Information available to date shows that, if infected with the SARS-CoV-2 virus, racial and ethnic minority populations, especially African-Americans, are at a substantially elevated risk of developing life-threatening COVID-19 illnesses and to die of COVID-19.
7. SARS-CoV-2 is readily spread through respiratory transmission. All people are susceptible to and capable of getting COVID-19 because of the ease with which it spreads. The virus is spread through droplet transmission; that is, when an infected individual speaks, coughs, sneezes, and the like, they expel droplets which can transmit the virus to others in their proximity. Though not yet determined, scientists are currently assessing whether the virus is aerosolized, such that tiny droplets containing the virus remain in the air and can be inhaled by others who come into contact with that air. The virus is also known to be spread through the touching of contaminated surfaces, for example, when an infected person touches a surface with a hand they have coughed into and then another person touches that same surface before it has been disinfected and then touches their face. Each infected individual is estimated to infect two to eight others. In addition, some people are so-called “superspreaders,” who cause widespread infections.
8. Diagnostic testing for the virus is currently most often done through use of a reverse-transcriptase polymerase chain reaction (RT-PCR) test. There has not been sufficiently wide-spread and easily accessible testing throughout the United States, including in Alabama. Serologic tests, which detect antibodies to the virus and thus indicate whether someone has already been exposed to it, are being developed but have not yet been validated or produced at scale.
9. There is not yet any FDA-approved vaccine against SARS-CoV-2, which could be used to immunize the population to the virus. As a result, the only ways to limit its spread are self-
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isolation, social distancing, frequent handwashing, and disinfecting surfaces. Self-isolation involves not physically interacting with those outside one’s household. Social or physical distancing is maintaining at least six feet of distance between individuals. Both of these interventions are aimed at keeping infected individuals far enough apart from other individuals so that they do not pass the virus along. Frequent handwashing and regular disinfecting of surfaces curb the spread via contaminated surfaces.
10. Transmission of SARS-CoV-2 can occur in any location where there is close proximity (less than six feet) between individuals. And because transmission of the virus can occur via environmental surfaces, there is also risk of spread of the virus at any location where multiple individuals touch surfaces. Some individuals who are infected with the virus do not have any symptoms but can transmit the virus and/or are infectious before they develop any symptoms. This means that isolating only persons known to be infected will not stop the spread of infection. Rather, to prevent increasing the scope of the outbreak of COVID-19, we must assume that anyone could be infected and infect another person.
11. Due to the lack of adequate testing, the time lag in getting results back from laboratories, and the lengthy incubation time, we cannot yet definitely determine the full effects of stay-at-home orders and social distancing. But social distancing has worked to slow the spread of respiratory viruses generally and in places that are ahead of Alabama and the United States in the current pandemic. There is evidence that cities and states that have implemented stay-at-home orders earlier than Alabama are experiencing reduced transmission. Current modeling shows that social distancing and stay-at-home orders are lessening transmission. However, transmission of the virus will continue through the population until the development and widespread use of a vaccine and/or herd immunity.
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12. It is unlikely that an FDA-approved vaccine will be available for approximately 12 to 18 months, and indeed may take longer than that due to the number of steps in the process of development, trial and error, scaling to clinical trials, assessing side effects, and assessing efficacy across the population at large.
13. Herd immunity occurs when a high percentage of the population become immune to an infectious disease, such that the spread is dramatically slowed, as infected persons can become dead-ends for the virus, so to speak, because they are not interacting with anyone to whom they can transmit the virus. Approximately 80-95% of a population must be immune in order to achieve herd immunity, depending on the infectiousness of the agent. In this context, an individual’s immunity can come from either a vaccine or from previous infection. Herd immunity can protect those in a population who cannot be vaccinated and for whom infection can be particularly serious. Without herd immunity, we can expect that COVID-19 will continue to transmit widely.
14. As SARS-CoV-2 is a new virus, also referred to as a novel virus, only those who have been infected and recovered are possibly immune; there is not a pre-existing population already immune to the virus. Anyone who has not yet been infected is susceptible to infection. Also, due to the virus’s novelty, we do not know whether any immunity generated by previous infection lasts permanently, for a specified period, or whether reinfection is possible. As a result, herd immunity is unlikely unless and until the development and widespread use of an effective vaccine or a sufficiently high proportion of the population has been infected. Only once serologic antibody testing is widely available will we be able to determine who in the population is not susceptible to either infection or transmission based on their immunity due to earlier infection. As a result, even if transmission slows due to behavioral interventions such as social distancing and
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stay-at-home orders, we can expect resurgences of COVID-19, including significant community transmission, throughout 2020 and into 2021 across the United States, until the development and widespread use of a vaccine. Such resurgence is particularly likely if/when these behavioral modifications are lifted when community transmission is still continuing. Although community transmission is still occurring in the state, Alabama modified its stay-at-home order on April 28 to permit beaches and certain businesses to open subject to sanitation and social-distancing guidelines. Given this easing of behavioral interventions, Alabama is likely to see a resurgence of COVID-19 cases.
15. As SARS-CoV-2 is novel, we also cannot say definitively whether its incidence and prevalence will rise and fall based on weather/what season it is. If virus transmission and prevalence do decline over the summer months, it remains likely that they will resurge in the fall and winter. However, certain other coronaviruses—such as SARS and MERS-CoV—do not appear to demonstrate seasonality of infection. And the current virus has circulated widely in countries currently in their hot seasons. These two points suggest that transmission of and infection with the virus may not be affected by the weather.
16. Due to the ease of transmission, the high risk to certain parts of the population, and the fact that the virus will continue to surge unless and until wide-spread vaccination and/or herd immunity is achieved, individuals will need to continue to take steps to prevent infection. Polling locations are a prime area for increased transmission of SARS-CoV-2 due to the close proximity of a large number of individuals—voters, observers, poll workers—in a limited space. A polling location also has a large number of common surfaces that multiple people touch: the doors, the poll books to sign in, pens, voting booths, and voting machines. Due to the transmission of the virus via contaminated environmental surfaces, polling locations are highly likely to cause
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increased infection. My opinion has been further confirmed by accounts like the one from the Wisconsin Department of Health Services, which has reported that fifty-two voters and poll workers have been identified as having contracted SARS-CoV-2 after participating in the primary election held on April 7, 2020. This is one example of the risks of transmission I have described. ,
17. In light of COVID-19, reducing the number of people in close proximity at polling locations and eliminating barriers to widespread vote-by-mail or absentee balloting are much safer options for public health. Drive-up or “curbside” voting can help to minimize a person’s close contacts with poll workers, other voters, and surfaces at polling locations and thus reduce the spread of COVID-19 via person-to-person contact and environmental surfaces. Changes to the absentee voting process that vastly decrease the number of individuals needing to violate social distancing protocols to obtain witnesses or photo IDs for their absentee ballots would also help to substantially decrease the number of people coming into close proximity with one another at public spaces, businesses, and polling locations and thus also decease the communal spread of COVID19.
18. For example, for individuals without another person able to witness in their household, the requirement that they have a notary or two people witness their absentee ballot would place them at increased risk of exposure to and/or transmission of COVID-19. Requiring individuals to have one or more people who they are not otherwise being exposed to come into close enough proximity to witness their ballot would place them at increased risk for infection. Similarly, requiring someone to leave home to travel to a store or government office and interact with other people to either photocopy their photo ID or obtain photo ID increases the chances of infection. These requirements are particularly risky for those who are at a greater risk of complications and death from COVID-19.
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November, 2019

CURRICULUM VITA

Arthur Lawrence Reingold

PRESENT POSITION:

Professor of Epidemiology Head, Division of Epidemiology and Biostatistics School of Public Health University of California, Berkeley 2121 Berkeley Way, #5302 Berkeley, California 94720-7360 Phone: (510) 642-0327 Fax: (510) 643-5056 E-mail: Reingold@berkeley.edu

DATE OF BIRTH:

October 31, 1948

PLACE OF BIRTH:

Chicago, Illinois

MARITAL STATUS: Married

EDUCATION:

1966 - 70 1970 - 76

A.B. M.D.

University of Chicago University of Chicago

POSTGRADUATE TRAINING:

1976 - 78

Internal Medicine Resident, Mount Auburn Hospital Cambridge, Massachusetts

1980 - 82

Preventive Medicine Resident, Centers for Disease Control (CDC) - Atlanta, Georgia

POSITIONS HELD:

1979 - 80

1980 - 81

1981 - 85

1985 - 87

Epidemic Intelligence Service Officer, State of Connecticut - Department of Health Services Hartford, Connecticut
Epidemic Intelligence Service Officer, Special Pathogens Branch - Bacterial Diseases Division Centers for Disease Control (CDC) - Atlanta, Georgia
Assistant Chief, Respiratory & Special Pathogens Epidemiology Branch, Center for Infectious Diseases Centers for Disease Control (CDC) - Atlanta, Georgia
CDC Liaison Officer, Office of the Director Centers for Disease Control - Atlanta, Georgia

FACULTY APPOINTMENTS:

1979 - 80 1985 - 87
1987 1989 -

Instructor, Department of Medicine (Epidemiology) University of Connecticut - Hartford, Connecticut
Visiting Lecturer, Department of Biomedical and Environmental Health Sciences (Epidemiology) University of California, Berkeley
Professor of Epidemiology, School of Public Health, University of California, Berkeley
Professor, Department of Epidemiology and Biostatistics - University of California, San Francisco

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Arthur Lawrence Reingold

FACULTY APPOINTMENTS: (CONTINUED)

1990 - 94
1991 1994 - 2000 2000 - 2018

Head, Epidemiology Program, Department of Biomedical and Environmental Health Sciences, University of California, Berkeley
Clinical Professor, Department of Medicine University of California, San Francisco
Head, Division of Public Health Biology and Epidemiology University of California, Berkeley
Head, Division of Epidemiology, School of Public Health, University of California, Berkeley

2018 -

Head, Division of Epidemiology and Biostatistics, School of Public Health University of California, Berkeley

2008 - 2014 Associate Dean for Research, School of Public Health, University of California, Berkeley

2009 - 2014

MEDICAL LICENSURE:

BOARD CERTIFICATION:

1980

AWARDS:

1970 - 74 1985 1986

MEMBERSHIPS:

1970 1978 1983 1984 1986 1988 1991 1994 2003

Edward Penhoet Distinguished Chair for Global Health and Infectious Disease
California
American Board of Internal Medicine
Medical Scientist Training Program Commendation Medal, U.S. Public Health Service Charles Shepard Award, Centers for Disease Control (CDC)
Sigma Xi American College of Physicians American Society for Microbiology Society for Epidemiologic Research Infectious Disease Society of America (Fellow) American Epidemiological Society American College of Epidemiology (Fellow) AAAS (Fellow) Institute of Medicine (Member)

PROFESSIONAL ACTIVITIES

CONSULTATIONS:

1981

1981

1982

1983

1983

1984

Institute of Medicine: Toxic-shock syndrome
Food and Drug Administration: Toxic-shock syndrome
United States Agency for International Development: Control of meningococcal meningitis in West Africa
World Health Organization (WHO): Control of meningococcal meningitis in Nepal
East-West Center, University of Hawaii: Role of indoor air pollution in acute respiratory infections in developing countries
Institute of Medicine: Meningococcal vaccines
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Arthur Lawrence Reingold

CONSULTATIONS: (CONTINUED)

1986 1987 - 1993 1988 1994 1995 1995 1996 1996 - 2000 1996 1998 – 2002 2002 – 2003

World Health Organization (WHO): Control of meningococcal meningitis in South Asia
Center for Child Survival, University of Indonesia: Control of Acute Respiratory Infections
Evaluation of the Combating Communicable Childhood Disease Program, Ivory Coast
Evaluation of National Epidemiology Board Program, Rockefeller Foundation
Planning of a School-based Acute Rheumatic Fever Prevention Project - New Zealand Heart Foundation
Vaccines Advisory Committee, Food & Drug Administration Approval of accellular pertussis vaccine
External Reviewer, NIAID Group B Streptococcus Research Contract with Harvard University
U.S. Food and Drug Administration; Consultant to the Vaccines Advisory Committee
World Health Organization, Consultation on Control of Meningococcal Meningitis in Africa
Advisor to the INCLEN "Indiaclen" project
Evaluation of a School-based Acute Rheumatic Fever Prevention Project – New Zealand Heart Association

ADVISORY BOARDS AND PANELS:

1988 - 1989 1989 - 1990 1989 - 1993 1993 - 1995 1992 - 1994 1996 - 2000 1997 - 2012 1998 - 2003 1998 – 2000

Member, Advisory Committee on Ground Water and Reproductive Outcomes, State of California Department of Health Services
AIDS Advisory Committee, Alameda County Board of Supervisors
Advisory Committee, Birth Defects Monitoring Program, State of California Department of Health Services
Centers for Disease Control (CDC): Public Health Service Advisory Panel on the Case Definition for Lyme Disease
World Health Organization (WHO): Task Force on Strengthening Epidemiologic Capacity; Childhood Vaccine Initiative
Armed Forces Epidemiological Board
University of California, San Francisco AIDS Research Institute Steering Committee
Emerging Infections Committee of the Infectious Diseases Society of America
Panelist, Howard Hughes Medical Institute Predoctoral Fellowship

2001 - 2006

Technical expert, Sub-Committee on the Protection of Public Health; California State Strategic Committee on Terrorism
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Arthur Lawrence Reingold

ADVISORY BOARDS PANELS (CONTINUED)

2003 - 2008 2004 -

Advisory Board, Chinese University of Hong Kong – Centre for Emerging AND Infectious Diseases
Advisory Board, University of California, Berkeley Clinical Research Center

2004 - 2008 2004 - 2005 2005 - 2012 2005 2007 - 2012 2007 - 2009 2008 - 2012 2008 - 2011 2008 - 2012 2008 - 2009 2009 - 2012 2011 - 2013 2011 - 2014 2012 - 2014 2012 - 2014 2013 - 2018

Advisory Board, New York University School of Medicine Fellowship in Medicine and Public Health Research
Institute of Medicine Committee on Measures to Enhance the Effectiveness of CDC Quarantine Station Plan for U.S. Ports of Entry
Strategic Advisory Group of Experts (SAGE) for Vaccine Policy, World Health Organization (WHO) (Deputy Chairman, 2010-2012)
Data and Safety Monitoring Committee; F.I. Proctor Foundation, University of California, San Francisco (UCSF)
NIH Fogarty International Center External Advisory Board
Chair, Working Group on Pneumococcal Vaccine, Strategic Advisory Group of Experts (SAGE), World Health Organization (WHO)
Working Group on H5N1 Influenza Vaccines, Strategic Advisory Group of Experts (SAGE), World Health Organization (WHO)
Chair, Leptospirosis Burden Epidemiology Reference Group, World Health Organization (WHO)
National Biosurveillance Advisory Subcommittee of the Advisory Committee to The Director, Centers for Disease Control and Prevention (CDC)
Institute of Medicine Committee on the Review of Priorities in the National Vaccine Plan
Chair, Working Group on Hepatitis A Vaccine, Strategic Advisory Group of Experts (SAGE), World Health Organization (WHO)
Member, Institute of Medicine Committee on Vaccine Priorities
Member, Working Group on Vaccine Hesitancy, Strategic Advisory Group of Experts (SAGE), World Health Organization (WHO)
Chair, Review of the Heterologous Effects of Childhood Vaccines, World Health Organization (WHO)
Chair, External Review of the Measles Rubella Initiative (of WHO, CDC, UNICEF, American Red Cross, and United Nations Foundation)
Advisory Committee on Immunization Practices (ACIP), U.S. Department of Health and Human Services

2016-2017

Member, Institute of Medicine Committee on a National Strategy for the Elimination of Hepatitis B and C

2018 2018 -

Member, Independent Review Committee, Global Alliance for Vaccines and Immunizations (GAVI) Member, Strategic Advisory Group, Partnership for Influenza Vaccination Introduction
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Arthur Lawrence Reingold

LEADERSHIP POSITIONS:

1997 - 2012 2009 - 2010 2015 – 2016

Secretary-Treasurer, American Epidemiological Society President, Society for Epidemiologic Research President, American Epidemiological Society (AES)

EDITORIAL BOARDS: 1995 - 2000
2001 - 2005
2005 -
2009 - 2010

Board of Editors, American Journal of Epidemiology Board of Editors, Epidemiology Editorial Advisory Board, Global Public Health Editorial Advisory Board, American Journal of Epidemiology

ASSOCIATE EDITORSHIPS:

2017 -

Current Epidemiology Reports

2018 -

Vaccine

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Arthur Lawrence Reingold
PUBLICATIONS:
1. Hayes RV, Pottenger LA, Reingold AL, Getz GS, Wissler RW. Degradation of I125 - labeled serum low density lipoprotein in normal and estrogen-treated male rats. Biochem Biophys Res Comm 1971;44:14711477.
2. Reingold AL, Kane MA, Murphy BL, Checko P, Francis DP, Maynard JE. Transmission of hepatitis B by an oral surgeon. J Infect Dis 1982;145:262-268.
3. Reingold AL, Dan BB, Shands KN, Broome CV. Toxic-shock syndrome not associated with menstruation: a review of 54 cases. Lancet 1982;1:1-4.
4. Bartlett P, Reingold AL, Graham DR, et al. Toxic-shock syndrome associated with surgical wound infections. JAMA 1982;247:1448-1450.
5. Reingold AL, Hargrett NT, Shands KN, et al. Toxic-shock syndrome surveillance in the United States, 1980-1981. Ann Intern Med 1982;96:875-880.
6. Reingold AL, Hargrett NT, Dan BB, Shands KN, Strickland BY, Broome CV. Nonmenstrual toxic-shock syndrome: a review of 130 cases. Ann Intern Med 1982;6:871-874.
7. Broome CV, Hayes PS, Ajello GW, Feeley JC, Gibson RJ, Graves LM, Hancock GA, Anderson RJ, Highsmith AK, Mackel DC, Hargrett NT, Reingold AL. In-vitro studies of interactions between tampons and Staphylococcus aureus. Ann Intern Med 1982;96:959-962.
8. Guinan ME, Dan BB, Guidotti RJ, Reingold AL, et al. Vaginal colonization with Staphylococcus aureus in healthy women: a review of four studies. Ann Intern Med 1982;96(pt.2):944-947.
9. Schlech WF III, Shands KN, Reingold AL, et al. Risk factors for development of toxic-shock syndrome: association with a tampon brand. JAMA 1982;248:835-839.
10. Reingold AL, Bank JD. Legionellosis. In: Easmon CSF, Jeljaszewicz J, eds. Medical Microbiology. London: Academic Press 1982 (I):217-239.
11. Reingold AL. Toxic-shock syndrome. In: Spittell JA Jr., ed. Clinical Medicine. Philadelphia: Harper & Row Publishers 1982 (II):1-6.
12. Kornblatt AN, Reingold AL. Legionellosis. In: Steele JH, Hillyer RV, Hopla CE, eds. CRC Handbook Series in Zoonoses. CRC Press 1982:313-324.
13. Wilkinson HW, Reingold AL, Brake JB, McGiboney DL, Gorman GW, Broome CV. Reactivity of serum from patients with suspected Legionellosis against 29 antigens of legionellaceae and Legionella-like organisms by indirect immunofluorescence assay. J Infect Dis 1983;147:23-31.
14. Meenhorst PL, Reingold AL, Gorman GW, et al. Legionella pneumonia in guinea pigs exposed to aerosols of concentrated potable water from a hospital with nosocomial Legionnaires’ disease. J Infect Dis 1983;147:129-132.
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Arthur Lawrence Reingold
15. Reingold AL. Nonmenstrual toxic-shock syndrome: the growing picture. JAMA 1983; 249:932 (editorial).
16. Reingold AL. Meningococcal meningitis. Nepal Paed Soc J 1983; 2:144-148.
17. Reingold AL, Broome CV, Phillips CJ, Meda H, Tiendrebeogo H, Yada A. Evidence of continuing protection against group A meningococcal disease one year after vaccination: a case-control approach. Med Trop 1983;43:225.
18. Reingold AL, Kane MA, Hightower AW. Disinfection procedures and infection control in the outpatient oral surgery practice. J Oral Maxillofac Surg 1984;42:568-572.
19. Broome CV, Reingold AL. Current issues in toxic-shock syndrome. In: Remington JS, Swartz MN, eds. Current clinical topics in infectious diseases. McGraw Hill 1984;65-85.
20. Herwaldt LA, Gorman GW, McGrath T, Toma S, Brake B, Hightower AW, Jones J, Reingold AL, et al. A new Legionella species, Legionella feeleii species nova, causes Pontiac fever in an automobile plant. Ann Intern Med 1984;100:333-338.
21. Ajello GW, Feeley JC, Hayes PS, Reingold AL, Bolan G, et al. Trans-isolate medium: a new medium for primary culturing and transport of Neisseria meningitidis, Streptococcus pneumoniae, and Haemophilus influenzae. J Clin Microbial 1984;20:55-58.
22. Hayes PS, Graves LM, Feeley JC, Hancock GA, Cohen ML, Reingold AL, et al. Production of toxicshock-associated protein(s) in Staphylococcus aureus strains isolated from 1956 through 1982. J Clin Microbial 1984;20:42-46.
23. Reingold AL, Thomason BM, Brake BJ, Thacker L, Wilkinson HW, Kuritsky JN. Legionella pneumonia in the United States: the distribution of serogroups and species causing human illness. J Infect Dis 1984;149:819.
24. Blaser M, Reingold AL, Alsever RN, Hightower A. Primary meningococcal pericarditis: A disease of adults associated with serogroup C Neisseria meningitidis. Rev Infect Dis 1984;6:625-632.
25. Jones EE, Alford PL, Reingold AL, et al. Predisposition to invasive pneumococcal illness following parainfluenza type 3 virus infection in chimpanzees. JAVMA 1984;185:1351-1353.
26. Reingold AL, Thomason BM, Kuritsky J. Results of Legionnaires’ disease direct fluorescent-antibody testing at Centers for Disease Control, 1980-1982. In: Thornsberry C, Balows A, Feeley JC, and Jakubowski J, eds. Legionella, ASM 1984;21-22.
27. Kuritsky JN, Reingold AL, Hightower AW, Broome CV. Sporadic Legionellosis in the United States, 1970 to 1982. In: Thornsberry C, Balows A, Feeley JC, and Jakubowski J, eds. Legionella, ASM 1984;243-245.
28. Fleming DW, Reingold AL. Legionella. In: Braude AI ed. Medical Microbiology and Infectious Diseases, Second Edition W.B. Saunders 1985;352-358.
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Arthur Lawrence Reingold
29. Garbe PL, Arko RJ, Reingold AL, et al. Staphylococcus aureus isolates from patients with non-menstrual Toxic Shock Syndrome: Evidence for Additional Toxins. JAMA 1985;253:2538-2542.
30. Garbe PL, Davis BJ, Weisfeld J, Markowitz L, Miner P, Garrity F, Barbaree JM, Reingold AL. Nosocomial Legionnaires’ Disease: Epidemiologic Demonstration of Cooling Towers as a Source. JAMA 1985;254:521-524.
31. Fleming DW, Cochi SL, MacDonald KL, Brondum J, Haves PS, Plikaytis BD, Holmes MB, Audurier A, Broome CV, Reingold AL. Pasteurized milk as a vehicle of infection in an outbreak of listeriosis. NEJM 1985;312:404-407.
32. Meenhorst P, Reingold AL, Groothius DL, et al. Water-related nosocomial pneumonia caused by Legionella pneumophila serogroups 1 and 10. J Infect Dis 1985;152:356-364.
33. Bolan G, Reingold AL, Carson L, et al. Infections with Mycobacterium chelonei in patients receiving dialysis and using processed hemodialyzers. J Infect Dis 1985;152:1013-1019.
34. Reingold AL. Toxic-shock in the United States of America: epidemiology. Postgrad Med J 1985;61:2122.
35. Reingold AL, Broome CV, Hightower AW, et al. Age-specific differences in duration of clinical protection after vaccination with meningococcal polysaccharide A vaccine. Lancet 1985;II:114-118.
36. Petitti DB, Reingold AL, Chin J. The incidence of toxic-shock syndrome in Northern California: 19721983. JAMA 1986;255:368-372.
37. Reingold AL. Toxic-shock syndrome and the contraceptive sponge. JAMA 1986;255:242-243 (editorial).
38. Berkley S, Reingold AL. Toxic-shock syndrome. In: Kass EH and Platt R, eds. Current Therapy in Infectious Disease. B.C. Decker, Inc. 1986;78-81.
39. Reingold AL. Toxic-shock syndrome. In: Wheat J and White A, eds. Infectious Diseases, University of Chicago Press, 1986.
40. Reingold AL, Broome CV. Nosocomial central nervous system infections. In: Bennett JV, Brachman PS, eds. Hospital Infections. Little Brown & Co. 1986;521-529.
41. Markowitz L, Reingold AL. Toxic-shock syndrome. In: Maxcy-Rosenau Public Health and Preventive Medicine, 12th edition Appleton-Century-Crofts 1986;456-459.
42. Reingold AL, Xiao DL, Plikaytis B, Ajello L. Systemic mycoses in the United States, 1980-1982. J Med Vet Mycol 1986;24:433-436.
43. Cochi SL, Markowitz L, Owens Jr RC, Stenhouse DH, Regmi DN, Shrestha RPB, Acharya IL, Manandhar M, Gurubacharya VL, Owens D, Reingold AL. Control of epidemic group A meningococcal meningitis in Nepal. Int J Epid 1987;16:91-97.
44. Markowitz LE, Hightower AW, Broome CV, Reingold AL. Toxic-shock syndrome: Evaluation of national surveillance data using a hospital discharge survey. JAMA 1987;258:75-78.
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Arthur Lawrence Reingold
45. Berkley SF, Hightower AW, Reingold AL, Broome CV. The relationship of tampon characteristics to menstrual toxic-shock syndrome. JAMA 1987;258:917-920.
46. Reingold AL, Kane MA, Hightower AW. Failure of gloves and other protective devices to prevent transmission of hepatitis B virus in oral surgeons. JAMA 1988;259:2558-2560.
47. Reingold AL. The role of Legionellae in acute infections of the lower respiratory tract. Rev Infect Dis 1988;10(5):1018-1028.
48. Harrison LH, Broome CV, Hightower AW, Hoppe CC, Makintubee S, Sitze SL, Taylor JA, Gaventa S, Wenger JD, Facklam RR, and the Haemophilus Vaccine Efficacy Study Group (includes A.L. Reingold). A day-care based study of the efficacy of Haemophilus influenzae B polysaccharide vaccine. JAMA 1988;260(10):1413-1418.
49. Schwartz B, Broome CV, Hightower AW, Brown GR, Ciesielski CA, Gaventa S, Gellin BG, Mascola L, and the Listeriosis Study Group (includes A.L. Reingold). Association of sporadic listeriosis with consumption of uncooked hot dogs and undercooked chicken. Lancet 1988;II:779-782.
50. Carson LA, Bland LA, Cusick LB, Favero MS, Bolan G, Reingold AL, et al. Prevalence of nontuberculous mycobacteria in water supplies of hemodialysis centers. Appl Environ Micro 1988; 54:3122-3125.
51. Petitti DB, Reingold AL. Update through 1985 on the incidence of toxic shock syndrome among members of a prepaid health plan. Rev Infect Dis 1989;11:S22-27.
52. Reingold AL, Broome CV, Gaventa S, Hightower SW, and the Toxic-Shock Syndrome Study Group. Risk factors for menstrual toxic-shock syndrome: results of a multi-state case-control study. Rev Infect Dis 1989;11:S35-42.
53. Gaventa S, Reingold AL, Hightower AW, et al. Active surveillance for toxic-shock syndrome in the United States, 1986. Rev Infect Dis 1989;11:S28-34.
54. Schwartz B, Gaventa S, Broome CV, Reingold AL, et al. Non-menstrual toxic-shock syndrome associated with barrier contraceptives: report of a case-control study. Rev Infect Dis 1989;11:S43-49.
55. Reingold AL, Hearst N. Identifying the health care needs of the community. In: Overall N, Williamson J, eds. Community Oriented Primary Care in Action: A Practice Manual for Primary Care Settings. U.S. Department of Health and Human Services.
56. Koo D, Bouvier B, Wesley M, Courtright P, Reingold AL. Epidemic keratoconjunctivitis in a university medical center ophthalmology clinic: need for re-evaluation of the design and disinfection of instruments. Inf Control and Hosp Epi 1989;10:547-552.
57. Harrison LH, Broome CV, Hightower AW, and the Haemophilus Vaccine Efficacy Study Group (includes A.L. Reingold). Haemophilus influenzae type b polysaccharide vaccine: an efficacy study. Pediatrics 1989;84:225-261.
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58. Wenger JD, Harrison LH, Hightower A, Broome CV, Haemophilus influenzae Study Group (includes A.L. Reingold). Day care characteristics associated with Haemophilus influenzae disease. Am J Public Health 1990;80:1455-1458.
59. Morrow HW, Slaten DD, Reingold AL, et al. Risk factors associated with a school-related outbreak of serogroup C meningococcal disease. Pediatric Infect Dis J 1990;9:394-398.
60. Wenger JD, Hightower AW, Facklam RR, Gaventa S, Broome CV, Bacterial Meningitis Study Group (includes A.L. Reingold). Bacterial meningitis in the United States, 1986: Report on a multistate surveillance study. J Infect Dis 1990;162:1316-1323.
61. Reingold AL. Toxic-shock syndrome. In: Evans AS, Brachman PS, eds. Bacterial Infections of Humans. Plenum, 1991;727-743.
62. Gellin BG, Broome CV, Bibb WF, Weaver RE, Gaventa S, Mascola L, the Listeriosis Study Group. (includes A.L. Reingold). The epidemiology of listeriosis in the United States - 1986. Am J Epi 1991;133:392-401.
63. Reingold AL. Toxic-shock syndrome. In: Rakel RE, ed. Conn’s Current Therapy. W. B. Saunders, 1991;1010-1012.
64. Reingold AL, Markowitz LE. Toxic-shock syndrome. In: Maxcy-Rosenau Public Health and Preventive Medicine, 13th Edition. Appleton-Century-Crofts, 1991;304-306.
65. Bauer HM, Ting Y, Greer CE, Chambers JC, Tashiro CJ, Chimera J, Reingold AL, Manos MM. Genital human papillomavirus infection in female university students as determined by a PCR-based method. JAMA 1991;265:472-477.
66. Sutrisna B, Frerichs RR, Reingold AL. Randomised, controlled trial of effectiveness of ampicillin in mild acute respiratory infections in Indonesian children. Lancet 1991;338:471-474.
67. Reingold AL. Toxic-shock syndrome: an update. Am J Ob & Gyn 1991;165:1236-1239.
68. Pettiti DB, Reingold AL. Recent trends in the incidence of toxic-shock syndrome in Northern California. Am J Public Health 1991;81:1209-1211.
69. Ley C, Reingold AL, et al. Determinants of genital human papillomavirus infection in young women. JNCI 1991;83:997-1003.
70. Pinner RW, Gellin BG, Bibb WF, Baker CN, Weaver R, Hunter SB, Waterman SH, Mocca LF, Frasch CE, Broome CV, the Meningococcal Disease Study Group (includes A.L. Reingold). Meningococcal disease in the United States-1986. J Infect Dis 1991;164:368-374.
71. Wenger JD, Pierce R, Deaver KA, Plikaytis BD, Facklam RR, Broome CV, and the Haemophilus influenzae Study Group (includes A.L. Reingold). Efficacy of Haemophilus influenzae type b polysaccharide-diphtheria toxoid conjugate vaccine in U.S. children aged 18-59 months. Lancet 1991; 338:395-398.
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72. Moore PS, Plikaytis BD, Bolan GA, Oxtoby MJ, Yada A, Zoubga A, Reingold AL, Broome CV. Detection of meningitis epidemics in Africa: a population-based analysis. International J Epi 1992;21:155-162.
73. Schuchat A, Deaver KA, Wenger JD, Plikaytis BD, Mascola L, Pinner RW, Reingold AL, Broome CV, and the Listeria Study Group. Role of foods in sporadic listeriosis. I. Case-control study of dietary risk factors. JAMA 1992;267:2041-2045.
74. Pinner RW, Schuchat A, Swaminathan B, Hayes PS, Deaver KA, Weaver RE, Plikaytis BD, Reeves M, Broome CV, Wenger JD, and the Listeria Study Group (includes A.L. Reingold). Role of foods in sporadic listeriosis. II. Microbiologic and epidemiologic investigation. JAMA 1992; 267:2046-2050.
75. Wenger JD, Pierce R, Deaver K, Franklin R, Bosley G, Pigott N, Broome CV, and the Listeria Study Group (includes A.L. Reingold). Invasive Haemophilus influenzae disease: A population-based evaluation of the role of capsular polysaccharide serotype. J Infect Dis 1992;165(suppl 1):S34-5.
76. Steinhart R, Reingold AL, Taylor F, Anderson G, Wenger JD. Invasive Haemophilus influenzae infections in men with HIV infection. JAMA 1992;268:3350-3352.
77. Hayes PS, Graves LM, Swaminathan B, Ajello GW, Malcolm GB, Weaver RE, Ransom R, Deaver K, Plikaytis BD, Schuchat A, Wenger JD, Pinner RW, Broome CV, and the Listeria Study Group (includes A.L. Reingold). Comparison of three selective enrichment methods for the isolation of Listeria monocytogenes naturally contaminated foods. J of Food Protection, 1992; 55:952-959.
78. Osmond DH, Charlebois E, Sheppard HW, Page KA, Winkelstein W Jr, Moss AR, Reingold AL. A comparison of risk factors for hepatitis C and hepatitis B virus infection in homosexual men. J Infect Dis, 1993;167:66-71.
79. Osmond DH, Padian N, Sheppard HW, Glass S, Shiboski SC, Reingold AL. Risk factors for hepatitis C virus seropositivity in heterosexual couples. JAMA 1993;269:361-365.
80. Tappero JW, Koehler JE, Berger TG, Reingold AL, et al. Bacillary angiomatosis and bacillary splenitis in immunocompetent adults. Ann Int Med, 1993;118:363-365.
81. Tappero JW, Mohle-Boetani J, Koehler JE, Reingold AL, et al. The epidemiology of bacillary angiomatosis and bacillary peliosis. JAMA 1993;269:770-775.
82. Weinstock HS, Bolan G, Reingold AL, Polish LB. Hepatitis C virus infection among patients attending a clinic for sexually transmitted diseases. JAMA 1993;269:392-394.
83. Yajko DM, Nassos PS, Sanders CA, Gonzalez PC, Reingold AL, et al. Comparison of four decontamination methods for recovery of Mycobacterium avium complex from stools. J Clin Micro, 1993;31:302-306.
84. Adams WG, Deaver KA, Cochi SL, Plikaytis BD, Zell ER, Broome CV, Wenger JD, and the Haemophilus influenzae Study Group (includes A.L. Reingold). Decline of childhood Haemophilus influenzae type b (Hib) disease in the Hib vaccine era. JAMA 1993;269:221-226.
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85. Sutrisna B, Reingold AL, Kresno S, Harrison G, Utomo. Care-seeking for fatal illnesses in young children in Indramayu, West Java, Indonesia. Lancet 1993;342:787-789.
86. Sudarti K, Harrison GG, Sutrisna B, Reingold AL. Acute respiratory infection in children under five years in Indramayu, West Java, Indonesia: a rapid ethnographic assessment. Medical Anthropology. 1994;15:1-10.
87. Ley C, Olshen EM, Chin L, Reingold AL. The use of serologic tests for Lyme disease in a prepaid health plan in California. JAMA 1994;271:460-463.
88. Ley C, Davila I, Mayer N, Murray R, Reingold AL. Lyme disease in Northwestern coastal California. Western J Med, 1994;160:534-539.
89. Chin DP, Reingold AL, Stone EN, Vittinghoff E, Horsburgh Jr CR, et al. The impact of Mycobacterium avium complex bacteremia and its treatment on survival of AIDS patients-a prospective study. J Infect Dis 1994;170:578-584.
90. Horsburgh CR, Chin DP, Yajko DM, Hopewell PC, Reingold AL, et al. Environmental risk factors for acquisition of Mycobacterium avium complex in persons with human immunodeficiency virus infection. J Infect Dis 1994;170:362-367.
91. Chin DP, Reingold AL, Horsburgh CR, Yajko DM, et al. Predicting Mycobacterium avium complex bacteremia in patients with human immunodeficiency virus - a prospectively validated model. Clin Infect Dis 1994;19:668-674.
92. Chin DP, Hopewell PC, Yajko DM, Vittinghoff E, Horsburgh CR, Hadley WK, Stone EN, Nassos PS, Ostroff SM, Jacobson MA, Matkin CC, Reingold AL. Mycobacterium avium complex in the respiratory or gastrointestinal tract and the risk of M. avium complex bacteremia in patients with human immunodeficiency virus infection. J Infect Dis 1994;169:289-295.
93. Jackson LA, Tenover FC, Baker C, Plikaytis BD, Reeves MW, Stocker SA, Weaver RE, Wenger JD, and the Meningococcal Disease Study Group (includes A.L. Reingold). Prevalence of Neisseria meningitidis relatively resistant to penicillin in the United States, 1991. J Infect Dis 1994; 169:438-441.
94. Schuchat A, Deaver-Robinson K, Plikayatis BD, Zangwill KM, Mohle-Boetani J, Wenger JD, and the Active Surveillance Study Group (includes A.L. Reingold). Multistate case-control study of maternal risk factors for neonatal Group B streptococcal disease. Pediatric Infect Dis J 1994; 13:623-629.
95. Weinstock HS, Bolan G, Moran JS, Peterman TA, Polish L, Reingold AL. Routine hepatitis B immunization in a clinic for sexually transmitted diseases. AJPH 1995;85:846-849.
96. Wang F, So Y, Vittinghoff E, Malani H, Reingold A, et al. Incidence proportion of and risk factors for AIDS patients diagnosed with HIV dementia, central nervous system toxoplasmosis, and cryptococcal meningitis. J AIDS 1995;8:75-82.
97. Espinal M, Reingold AL, Koenig E, Lavandera M, Sanchez S. Screening for active tuberculosis in HIV testing centre. Lancet 1995;345:890-893.
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98. Yajko DM, Chin DP, Gonzalez PC, Nassos PS, Hopewell PC, Reingold AL, et al. Mycobacterium avium complex in water, food, and soil samples collected from the environment of HIV-infected individuals. J AIDS 1995;9:176-182.
99. Lurie P, Fernandes M, Hughes V, Arevalo E, Hudes E, Reingold A, et al. Socioeconomic status and risk for HIV-1, syphilis and hepatitis B infection among sex workers in São Paulo State, Brazil. AIDS 1995 9(suppl 1):S31-S37.
100. Jackson L, Hilsdon R, Farley M, Harrison L, Reingold A, et al. Risk factors for Group B streptococcal disease in adults. Ann Int Med 1995;123:415-420.
101. Tappero J, Schuchat A, Deaver K, Mascola L, Wenger JD, and the Listeriosis Study Group (includes A.L. Reingold). Reduction in the incidence of human listeriosis in the United States – Effectiveness of prevention efforts? JAMA 1995;273:1118-1122.
102. Brandt ME, Hutwagner LC, Kuykendall RJ, Pinner RW, and the Cryptococcal Disease Active Surveillance Group (includes A.L. Reingold). Comparison of multilocus enzyme electrophoresis and random amplified polymorphic DNA analysis for molecular subtyping of Cryptococcus neoformans. J Clin Microbiol 1995:33:1890-1895.
103. Ley C, Olshen EM, Reingold AL. Case-control study of risk factors for incident Lyme disease in California. Am J Epi 1995:142; Suppl:S39-S47.
104. Espinal MA, Reingold AL, Lavandera M. Effect of pregnancy on the risk of developing active tuberculosis. J Inf Dis 1996;173:488-491.
105. Perkins BA, Flood JM, Danila R, Holman RC, Reingold AL, et al. Unexplained deaths due to possibly infectious causes in the United States: Defining the problem and design of surveillance and laboratory approaches. Emerg Inf Dis 1996;Vol 2:47-53.
106. Hessol NA, Priddy FH, Bolan G, Baumrind N, Vittinghoff E, Reingold AL, Padian NS. Management of pelvic inflammatory disease by primary care physicians: A comparison with Centers for Disease Control and Prevention guidelines. Sex Trans Dis 1996;Mar-Apr:157-163.
107. Mohle-Boetani JC, Koehler JE, Berger TG, LeBoit PE, Kemper CA, Reingold AL, et al. Bacillary angiomatosis and bacillary peliosis in patients infected with human immunodeficiency virus: Clinical characteristics in a case-control study. Clin Inf Dis 1996;22:794-800.
108. Espinal MA, Reingold AL, Pérez G, et al. Human immunodeficiency virus infection in children with tuberculosis in Santo Domingo, Dominican Republic: Prevalence, clinical findings, and response to antituberculosis treatment. J AIDS 1996;13:155-159.
109. Brandt ME, Hutwagner LC, Klug LA, Baughman WS, Rimland D, Graviss EA, Hamill RJ, Thomas C, Pappas PG, Reingold AL, et al. Molecular subtype distribution of Cryptococcus neoformans in four areas of the United States. J Clin Microbiol, 1996;34:912-917.
110. Bradford WZ, Martin JN, Reingold AL, et al. The changing epidemiology of acquired drug-resistant tuberculosis in San Francisco, USA. Lancet 1996;348:928-931.
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111. Passaro DJ, Waring L, Armstrong R, Bolding F, Bouvier B, Rosenberg J, Reingold AL, et al. Beauty and the beast: Postoperative Serratia marcescens wound infections traced to an out-of-hospital source. J Inf Dis 1997;175:992-995.
112. Urwin G, Krohn JA, Deaver-Robinson K, Wenger JD, Farley MM, and the Haemophilus influenzae Study Group (includes A.L. Reingold). Invasive disease due to Haemophilus influenzae serotype f: Clinical and epidemiologic characteristics in the H. influenzae serotype b vaccine era. Clin Inf Dis, 1996;22:1069-76.
113. Sabino EC, Diaz RC, Brigido LF, Learn GH, Mullins JI, Reingold AL, et al. Distribution of HIV-1 subtypes seen in an AIDS clinic in São Paulo City, Brazil. AIDS 1996; 10:1579-1584.
114. Brandt ME, Pfaller MA, Hajjeh RA, Graviss EA, Rees J, Spitzer ED, Pinner RW, Mayer LW, and the Cryptococcal Disease Active Surveillance Group (includes A.L. Reingold). Molecular subtypes and antifungal susceptibilities of serial Cryptococcus neoformans isolates in human immunodeficiency virus associated cryptococcosis. J Inf Dis 1996;174:812-820.
115. Whitney CG, Pllikaytis BD, Gozansky WS, Wenger JD, Schuchat A, and the Neonatal Group B Streptococcal Disease Study Group (includes A.L. Reingold). Prevention practices for perinatal group B streptococcal disease: A multi-site surveillance analysis. Obstet & Gyn 1997;89:28-32.
116. McFarland W, MvereD, Shandera W, Reingold A. The epidemiology and prevention of transfusionassociated Human Immunodeficiency Virus transmission in Sub-Saharan Africa. Vox Sanguinis 1997; 72:85-92.
117. Mazurek GH, Chin DP, Hartman S, Reddy V, Horsburgh Jr, CR, Green TA, Yajko DM, Hopewell PC, Reingold AL, et al. Genetic similarity among Mycobacterium avium isolates from blood, stool, and sputum of persons with AIDS. J Inf Dis 1997; 176:1-8.
118. Schuchat A, Robinson K, Wenger JD, Harrison LH, Farley M, Reingold AL, et al. Bacterial meningitis in the United States in 1995. N Eng J Med 337:970-976, 1997.
119. DeRiemer K, Chin DP, Schecter GF, Reingold AL. Tuberculosis among immigrants and refugees. Arch Int Med, 1998; 158:753-760.
120. Glaser CA, Safrin S, Reingold AL, Newman TB. The association between Cryptosporidium infection and animal exposure in HIV-infected individuals. J AIDS 17:79-82, 1998.
121. Reingold AL. Outbreak investigations: A perspective. Emerg Inf Dis 4:21-27, 1998.
122. Bradford WZ, Koehler J, El-Hajj H, Hopewell PC, Reingold AL, et al. Dissemination of Mycobacterium tuberculosis across the San Francisco Bay area. J Inf Dis 177:1104-1107, 1998.
123. Rees JR, Pinner RW, Hajjeh RA, Brandt ME, Reingold AL. The epidemiological features of invasive mycotic infections in the San Francisco Bay Area 1992-1993: Results of population-based laboratory active surveillance. Clin Inf Dis, 27:1138-1147, 1998.
124. Ragland DR, Buffler PA, Reingold AL, Syme SL, Winkelstein WW Jr, Buffler M. Disease and injury in California with projections to the year 2007: Implications for medical education. West J Med, 168:1-23, 1998.
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125. Espinal MA, Báez J, Soriano G, Garcia V, Laszlo A, Reingold AL, Sanchez S. Drug-resistant tuberculosis in the Dominican Republic: Results of a nationwide survey. Int J Tuberc Lung Dis, 2:490-498, 1998.
126. Bindman AB, Osmond D, Hecht FM, Lehman S, Vranizan K, Keane D, Reingold A, et al. Multistate evaluation of anonymous HIV testing and access to medical care. JAMA, 280:1416-1420, 1998.
127. Bloch KC, Zwerling L, Pletcher MJ, Hahn JA, Gerberding JL, Ostroff SM, Vugia DJ, Reingold AL. Incidence and clinical implications of isolation of Mycobacterium kansasii: Results of a 5-year, population-based study. Ann Intern Med 129:698-704, 1998.
128. Hajjeh RA, Conn LA, Stephens DS, Baughman W, Hamill R, Graviss E, Pappas PG, Thomas C, Reingold AL, et al. Cryptococcosis: Population-based multistate active surveillance and risk factors in Human Immunodeficiency Virus-infected persons. J Inf Dis, 179:449-454, 1999.
129. DeRiemer K, Daley CL, Reingold AL. Preventing tuberculosis among HIV-infected persons: A survey of physicians’ knowledge and practices. Prev Med, 28:437-444, 1999.
130. Jafari HS, Adams WG, Robinson KA, Plikaytis BD, Wenger JD, and the Haemophilus influenzae Study Group(includes A.L. Reingold). Efficacy of Haemophilus influenzae type b conjugate vaccines and persistence of disease in disadvantaged populations. AJPH, 89:364-368, 1999.
131. Fonseca LAM, Reingold AL, Casseb JR, Brigido LFM, Duarte AJS. AIDS incidence and survival in a hospital-based cohort of asymptomatic HIV seropositive patients in São Paulo, Brazil. J Inf Dis 28:11561160, 1999.
132. Reingold AL, Phares C. Communicable Diseases (chapter). In: Introduction to International Health (M. Merson, ed.).
133. Kao AS, Brandt ME, Pruitt WR, Conn LA, Perkins BA, Stephens DS, Baughman WS, Reingold AL, et al. The epidemiology of candidemia in two United States cities: Results of a population-based active surveillance. Clin Inf Dis 29:1164-1170, 1999.
134. Rosenstein NE, Perkins BA, Stephens D, Lefkowitz L, Cartter M, Danila R, Cieslak P, Shutt KA, Popovic T, Schuchat A, Harrison LH, Reingold AL, et al. The changing epidemiology of meningococcal disease in the United States, 1992-1996. J Inf Dis, 180:1894-1901, 1999.
135. Hajjeh RA, Reingold AL, Weil A, Shutt K, Schuchat A, Perkins BA. Toxic shock syndrome in the United States: Surveillance update, 1979-1996. Emerg Inf Dis J 5:807-810, 1999.
136. Osmond DH, Bindman AB, Vranizan K, Lehman JS, Hecht FM, Keane D, Reingold AL. Name-based surveillance and public health interventions for persons with HIV infection. Ann Int Med 131:775-779, 1999.
137. Baer JT, Vugia DJ, Reingold AL, Aragon T, Angulo FJ, Bradford WZ. HIV infection as a risk factor for shigellosis. Emerg Inf Dis 6:820-823, 1999.
138. Reingold AL. Infectious disease epidemiology in the twenty-first century - will it be eradicated or will it re-emerge? Epi Reviews 22:57-63, 2000.
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139. Kahane SM, Watt JP, Smith NJ, Wight S, Reingold AL, Newell K, et al. Immunization levels and risk factors for low immunization coverage among private practices. Pediatrics, 2000;105:73-.
140. Espinal MA, Pérez EN, Báez J, Henriquez L, Fernandez K, Lopez M, Olivo P, Reingold AL. Infectiousness of Mycobacterium tuberculosis in HIV-1-infected subjects with tuberculosis: A prospective study. Lancet 355:275-280, 2000.
141. Schrag SJ, Zywicki S, Farley M, Reingold AL, et al. Group B streptococcal disease in the era of intrapartum antibiotic prophylaxis. New Eng J Med 342:15-20, 2000.
142. Nuorti JP, Butler JC, Gelling L, Kool JL, Reingold AL, et al. Epidemiologic relation between HIV and invasive pneumococcal disease in San Francisco County, California. Ann Int Med 132: 182-190, 2000.
143. Hecht FM, Chesney MA, Lehman JS, Osmond D, Vranizan K, Colman S, Keane D, Reingold A, et al. Does HIV reporting by name deter testing? AIDS 14:1801-1808, 2000.
144. Breiman RF, Keller DW, Phelan MA, Sniadack DH, Stephens DS, Rimland D, Farley MM, Schuchat A, Reingold AL. Evaluation of effectiveness of the 23-valent pneumococcal capsular polysaccharide vaccine for HIV-infected patients. Arch Int Med 160:2633-2638, 2000.
145. Whitney CG, Farley MM, Hadler J, Harrison LH, Lexau C, Reingold A, Lefkowitz L, et al. Increasing prevalence of multi-drug resistant Streptococcus pneumoniae in the United States. N Engl J Med 343:1917-1924, 2000.
146. Alpers L, Chrouser K, Halabi S, Moeti T, Reingold A, Binkin N, Kenyon T. Validation of the surveillance system for tuberculosis in Botswana. Int J Tuberc Lung Dis, 2000; 4:737-743.
147. Factor SH, Whitney CG, Zywicki S, Schuchat A. for the ABC Surveillance Team (includes Reingold, A.). Effects of hospital policies on the 1996 group B streptococcal consensus guidelines. Obstet Gynecol 2000; 95:377-382.
148. Factor SF, Whitney CG, Zywicki SS, Schuchat A, Active Bacterial Core Surveillance Team (includes Reingold, AL). Effects of hospital policies based on 1996 group B streptococcal disease consensus guidelines. Hospital Policies 2000; 95:377-382.
149. Robinson KA, Baughman W, Rothrock G, Barrett NL, Pass M, Lexau C, Damske B, Stefonek K, Barnes B, Patterson J, Zell ER, Schuchat A, Whitney CG for the Active Bacterial Core Surveillance (ABCs)/Emerging Infections Program Network (includes Arthur L. Reingold, MD). Epidemiology of invasive Streptococcus pneumoniae Infections in the United States, 1995-1998: Opportunities for prevention in the conjugate vaccine era. JAMA 285:1729-1735, 2001.
150. Rosenstein NE, Emery KW, Werner SB, Kao A, Johnson R, Rogers D, Vugia D, Reingold A, Talbot R, et. al. Risk factors for severe pulmonary and disseminated coccidioidomycosis: Kern County, California, 1995-1996. Clin Inf Dis 32:708-715, 2001.
151. Kellam S, Pascopella L, Desmond E, Reingold A, Chin DP. Use of recommended laboratory testing methods among patients with tuberculosis in California. J Clin Micro 39:1969-1971, 2001.
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152. Mesquita F, Kral A, Reingold A, Bueno R, Trigueiros D, Araujo PJ, and the SMR Collaborative Study Group. Trends of HIV infection among injecting drug users in Brazil in the 1990's - the impact of changes in patterns of drug use. J AIDS, 2001; 28:298-302.
153. Mesquita F, Kral A, Reingold A, Haddad I, Sanches M, Turienzo G, Piconez D, Araujo P, Bueno R. Overdoses among cocaine users in Brazil. Addiction, 2001; 96:1809-1813.
154. Larson JI, Ridzon R, Hannan MM, Conde MB, Mello FCQ, Reingold AL, Daley CL, Kritski AL. Sputum induction vs. fiberoptic bronchoscopy in the diagnosis of tuberculosis. Am J Respir Crit Care Med, 2001;163:1279-1280.
155. Schuchat A, Hilger T, Zell E, Farley MM, Reingold A, Harrison L, Lefkowitz L, Danila R, Stefonek K, Barrett N, Morse D, Pinner R. Active bacterial core surveillance of the Emerging Infections Program network. Emerg Inf Dis, 2001; 7:92-99.
156. Brandt ME, Pfaller MA, Hajjeh RA, Hamill RJ, Pappas PG, Reingold AL, Rimland D, et al. Trends in antifungal drug susceptibility of Cryptococcus neoformans isolates in the United States: 1992 to 1994 and 1996 to 1998. Antimicrobial Agents and Chemotherapy 2001;45:3065-3069.
157. Hajjeh RA, Relman D, Cieslak PR, Sofair AN, Passaro D, Flood J, et al. and the Critical Illness Working Group (includes Reingold, AL.). Surveillance for unexplained deaths and critical illnesses due to possibly infectious causes, United States, 1995-1998. Emerg Inf Dis, 2002;8:145-153.
158. Huang SS, Labus BJ, Samuel MC, Wan DT, Reingold AL. Antibiotic resistance patterns of bacterial isolates from blood in San Francisco county, 1996-1999. Emerg Inf Dis, 2002; 8:195-201.
159. Conde MB, Loivos AC, Rezende VM, Soares SLM, Mello FCQ, Reingold AL, Daley CL, Kritski AL. The yield of sputum induction in the diagnosis of pleural tuberculosis. Am J Respir and Crit Care Med, 2002; 167:723-725.
160. Handley MA, Reingold AL, Shiboski S, Padian NS. Incidence of acute urinary tract infection in young women and use of male condoms with and without nonoxynol-9 spermicides. Epidemiology, 2002;13:431436.
161. Hyde TB, Hilger TM, Reingold A, Farley MM, O’Brien KL, Schuchat A. for the Active Bacterial Core surveillance (ABCs) of the Emerging Infections Program Network. Trends in the incidence and antimicrobial resistance of early-onset sepsis: Population-based surveillance in San Francisco and Atlanta. Pediatrics, 2002;110:690-695.
162. Schrag SJ, Zell ER, Lynfield R, Roome A, Arnold KE, Craig A, Harrison L, Reingold A, Stefonek K, Smith G, Gamble M, Schuchat A for the Active Bacterial Core Surveillance team. A population-based comparison of strategies to prevent early-onset group B streptococcal disease in neonates. New Engl J Med 2002;347:233-239.
163. O’Brien KL, Beall B, Barrett NL, Cieslak P, Reingold A, Farley MM, Danila R, Zell ER, Facklam R, Schwartz B, Schuchat A for the Active Bacterial Core Surveillance team. Epidemiology of invasive group A streptococcus disease in the United States, 1995-1999. Clin Infect Dis, 2002;35:268-276.
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164. Morita JY, Zell ER, Danila R, Farley MM, Hadler JH, Harrison LH, Lefkowitz L, Reingold A, Kupronis B, Schuchat A, Whitney CG. Association between antimicrobial resistance among pneumococcal isolates and burden of invasive pneumococcal disease in the community. Clin Infect Dis, 2002;35:420-427.
165. Chuang I, Van Beneden C, Beall B, Schuchat A. and the ABCs/EIP network (includes Reingold, A.). Population-based surveillance for postpartum invasive group A streptococcal Infections, 1995-2000. Clin Infect Dis, 2002;35:665-670.
166. Passaro DJ, Smith DS, Hett EC, Reingold AL, Daily P, Van Beneden CA, Vugia DJ. Invasive Group A Streptococcal infections in the San Francisco Bay Area, 1989-1999. Epi&Infect, 2002; 129:471-478.
167. McCormick AW, Whitney CG, Farley MM, Lynfield R, Harrison LH, Bennett NM, Schaffner W, Reingold A, Hadler J, et al. Geographic diversity and temporal trends of antimicrobial resistance in Streptococcus pneumoniae in the United States. Nature Med 2003;doi:10.1038/nm839.
168. Whitney CG, Farley MM, Hadler J, Harrison LH, Bennett NM, Lynfield R, Reingold A, Cieslak PR, Pilishvili T, et al. Decline in invasive pneumococcal disease after the introduction of proteinpolysaccharide conjugate vaccine. N Engl J Med 2003;348:1737-1746.
169. Reingold A. If syndromic surveillance is the answer, what is the question? Biosecurity & Bioterrorism: Biodefense Strategy, Science, and Practice. 2003;1:1-5.
170. Koehler JE, Sanchez MA, Tye S, Garrido-Rowland CS, Chen FM, Maurer T, Cooper JL, Olson JG, Reingold AL, Hadley WK, Regnery RR, Tappero JW. Prevalence of Bartonella infection among HIVinfected patients with fever. Clin Inf Dis 2003;37:559-566.
171. Schrag SJ, Arnorld KE, Mohle-Boetani JC, Lynfield R, Zell ER, Stefonek K, Noga H, Craig AS, Thomson Sanza L, Smith G, Schuchat A, Active Bacterial Core Surveillance Team (includes Reingold AL). Prenatal screening for infectious diseases and opportunities for prevention. Obstet Gynecol 2003;102:753-760.
172. King MD, Whitney CG, Parekh F, Farley MM, Active Bacterial Core Surveillance Team/Emerging Infections Program Network (includes Reingold AL). Recurrent invasive pneumococcal disease: A population-based assessment. Clin Inf Dis 2003;37:1029-1036.
173. Carvalho HB, Seibel SD, Burattini MN, Massad E, Reingold A. Hepatitis B and C and Syphilis: Vulnerability Related Infections among Institutionalized Disadvantaged Youth in São Paulo, Brazil. J Bras Doenças Sex Transm 2003;15:41-45.
174. Louie JK, Hacker JK, Mark J, Gavali SS, Yagi S, Espinosa A, Schnurr D, Cossen CK, Isaacson ER, Glaser CA, Fischer M, Reingold AL, Vugia DJ. SARS and common viral infections, Emerg Inf Dis, 2004;10:1143-1146.
175. Flanders SA, Stein J, Shochat G, Sellers K, Holland M, Maselli J, Drew WL, Reingold AL, Gonzales. Performance of a bedside c-reactive protein test in the diagnosis of community-acquired pneumonia in adults with acute cough. Amer J Med 2004;116:529-535.
176. Pascopella L, Kellam S, Ridderhof J, Chin DP, Reingold A, Desmond E, Flood J, Royce S. Laboratory reporting of tuberculosis test results and patient treatment initiation in California. J Clin Micro, 2004;42:4209-4213.
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177. Nicas M, Hubbard AE, Jones RM, Reingold AL. The infectious dose of variola (smallpox) virus. Appl Biosafety 2004;9:118-127.
178. Flannery B, Schrag S, Bennett NM, Lynfield R, Harrison LH, Reingold A, Cieslak PR, Hadler J, Farley MM, Facklam RR, Zell ER, Whiteney CG. Impact of childhood vaccination on racial disparities in invasive Streptococcus pneumoniae infections. JAMA, 2004;291:2197-2203.
179. Facklam R, Elliott J, Shewmaker L, Reingold A. Identification and characterization of sporadic isolates of Streptococcus iniae isolated from human infections. J Clin Micro 2005; 43:933-937.
180. Heffernan RT, Barrett NL, Gallagher KM, Hadler JL, Harrison LH, Reingold AL, Khoshnood K, Holford TR, Schuchat A. Declining incidence of invasive Streptococcus pneumoniae infections among persons living with AIDS in an era of highly-active antiretroviral therapy (HAART), 1995-2000. J Inf Dis, 2005;191:2038-2045.
181. Bakyaita N, Dorsey G, Yeka A, Banek K, Staedke SG, Kamya MR, Talisuna A, Kironde F, Nsobya S, Kilian A, Reingold A, Rosenthal PJ, Wabwire-Mangen F. Sulfadoxine-pyrimethamine plus chloroquine or amodiaquine for uncomplicated falciparum malaria: A randomized, multisite trial to guide national policy in Uganda. Am J Trop Med Hyg 2005;72:573-580.
182. Pai M, Gokhale K, Joshi R, Dogra S, Kalantri SP, Mendiratta DK, Narang P, Daley CL, Granich RM, Mazurek GH, Reingold AL, Riley LW, Colford Jr, JM. Mycobacterium tuberculosis infection in health care worker in rural India: Comparison of whole-blood interferon ϒ assay with tuberculin skin testing. JAMA 2005;293:2746-2755.
183. Pai M, Kalantri S, Pascopella L, Riley LW, Reingold AL. Bacteriophage-based assays for the rapid detection of rifampicin resistance in Mycobacterium tuberculosis: a meta-analysis. Journal of Infection 2005;51:175-187.
184. Lexau CA, Lynfield R, Danila R, Pilishvili T, Facklam R, Farley MM, Harrison LH, Schaffner W, Reingold AL, Bennett NM, Hadler J, Cieslak PR, Whiteny CG (for the Active Bacterial Core Surveillance Team). Changing epidemiology of invasive pneumococcal disease among older adults in the era of pediatric pneumococcal conjugate vaccine. JAMA 2005;294:2043-2051.
185. Kalantri S, Pai M, Pascopella L, Riley L, Reingold A. Bacteriophage-based tests for the detection of Mycobacterium tuberculosis in clinical specimens: a systematic review and meta-analysis. BMC Inf Dis 2005;5:59; doi:10.1186/1471-2334-5-59.
186. Feikin DR, Klugman KP, Facklam RR, Zell ER, Schuchat A, Whitney CA for the Active Bacterial Core surveillance/Emerging Infections Program Network (includes Reingold AL). Increased prevalence of pediatric pneumococcal serotypes in elderly adults. Clin Inf Dis 2005;41:481-487.
187. Tappero JW, Bradford WZ, Agerton TB, Hopewell P, Reingold AL, Lockman S, Oyewo A, Talbot EA, et al. Serum concentrations of antimycobacterial drugs in patients with pulmonary tuberculosis in Botswana. Clin Inf Dis 2005;41:461-469.
188. Kyaw MH, Rose CE, Fry AM, Singleton JA, Moore Z, Zell ER, Whitney CG for the Active Bacterial Core surveillance program of the Emerging Infections Program Network (includes Reingold AL). The influence
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of chronic illnesses on the incidence of invasive pneumococcal diseases in adults. J Inf Dis 2005;192:377386.
189. Flannery B, Heffernan RT, Harrison LH, Ray SM, Reingold AL, Hadler J, Schaffner W, Lynfield R, Thomas AR, Jianmin Li DPE, Campsmith DDS, Whitney CG, Schuchat A. Changes in invasive pneumococcal disease among HIV-infected adults living in the era of childhood pneumococcal immunization. Ann Int Med 2006; 144:1-9.
190. Pai M, Joshi R, Dogra S, Mendiratta DK, Narang P, Kalantri S, Reingold AL, Colford JM Jr, Riley LW, Menzies D. Serial testing of health care workers for tuberculosis using interferon-γ assay. Amer J Resp Crit Care Med 2006;doi:10.1164/rccm.200604-4720C.
191. Kyaw MH, Lynfield R, Schaffner W, Craig AS, Hadler J, Reingold A, Thomas AR, Harrison LH, et al. Effect of introduction of the pneumococcal conjugate vaccine on drug-resistant Streptococcus pneumoniae. New Eng J Med 2006;354:1455-1463.
192. Poehling KA, Talbot TR, Griffin MR, Craig AS, Whitney CG, Zell E, Lexau CA, Thomas AR, Harrison LH, Reingold AL, Hadler JL, et al. Invasive pneumococcal disease among infants before and after introduction of pneumococcal conjugate vaccine. JAMA 2006;295:1668-1674.
193. Jones RM, Nicas M, Hubbard AE, Reingold AL. The infectious dose of Coxiella burnetii (Q Fever). Appl Biosafety 2006;11:32-41.
194. Whitney CG, Pilishvili T, Farley MM, Schaffner W, Craig AS, Lynfield R, Nyquist A-C, Gershman K, Vazquez M, Bennett NM, Reingold A, Thomas A, et al. Effectiveness of seven-valent pneumococcal conjugate vaccine against invasive pneumococcal disease: a matched case-control study. Lancet 2006; 368:1495-1502.
195. Hwang J, Bitarakwate E, Pai M, Reingold A, Rosenthal PJ, Dorsey G. Chloroquine or amodiaquine combined with sulfadoxine-pyrimethamine for uncomplicated malaria: a systematic review. Trop Med & Int Hlth 2006;11:789-799.
196. Joshi R, Reingold AL, Menzies D, Pai M. Tuberculosis among health-care workers in low- and middleincome countries: A systematic review. PLoS Med 2006;3(12):e494. Doi:10.1371/journal.pmed. 0030494
197. Pai NP, Lawrence J, Reingold AL, Tulsky JP. Structured treatment interruptions (STI) in chronic unsuppressed HIV infection in adults. Cochrane Database Syst Rev. 2006;3:CD006148.
198. Schrag SJ, Hadler JL, Arnold KE, et al. Risk factors for invasive, early-onset Escherichia coli infections in the era of widespread intrapartum antibiotic use. Pediatrics. 2006;118(2):570-576.
199. Malamba SS, Mermin J, Reingold A, et al. Effect of cotrimoxazole prophylaxis taken by human immunodeficiency virus (HIV)-infected persons on the selection of sulfadoxine-pyrimethamine-resistant malaria parasites among HIV-uninfected household members. Am. J. Trop. Med. Hyg. 2006;75(3):375-380.
200. Winkelstein W Jr, Reingold AL. Alex Langmuir and CDC. Emerging Infect. Dis. 2006;12(10):1619; author reply 1619.
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201. Klevens RM, Morrison MA, Fridkin SK, et al. Community-associated methicillin-resistant Staphylococcus aureus and healthcare risk factors. Emerging Infect. Dis. 2006;12(12):1991-1993.
202. Aragón TJ, Vugia DJ, Shallow S, Samuel MC, Reingold A, Angulo FJ, Bradford WZ. Case-control study of shigellosis in San Francisco: The role of sexual transmission and HIV infection. Clin Inf Dis 2007;44:327-334.
203. Dogra S, Narang P, Mendiratta DK, Chaturvedi P, Reingold AL, Colford JM, Riley LW, Pai M. Comparison of a whole blood interfon-γ assay with tuberculin skin testing for the detection of tuberculosis infection in hospitalized children in rural India. J Inf 2007;54:267-276.
204. Nunes CLX, Andrade T, Galvão-Castro B, Bastos FI, Reingold A. Assessing risk behaviors and prevalence of sexually transmitted and blood-borne infections among female crack cocaine users in Salvador--Bahia, Brazil. Braz J Infect Dis. 2007;11(6):561-566.
205. Pai N, Peterson Tulsky J, Cohan D, Colford Jr JM, Reingold AL. Rapid point-of-care HIV testing in pregnant women: A systematic review and meta-analysis. Trop Med and Int Hlth 2007;12:1-12.
206. Madhivanan P, Krupp K, Chandrasekaran V, et al. The epidemiology of Herpes simplex virus type-2 infection among married women in Mysore, India. Sex Transm Dis. 2007;34(11):935-937.
207. Chainani-Wu N, Silverman Jr S, Reingold A, Bostrom A, McCulloch C, Lozada-Nur F, Weintraub J. A randomized, placebo-controlled, double-blind clinical trial of curcuminoids in oral lichen planus. Phytomed 2007;14:437-446.
208. Veras Maria Ameli SM, Enanoria WTA, Castilho EA, Reingold AL. Effectiveness of the polysaccharide pneumococcal vaccine among HIV-infected persons in Brazil: A case control study. BMC Inf Dis 2007;7:119.
209. Krupp K, Madhivanan P, Karat C, Chandrasekaran V, Sarvode M, Klausner J, Reingold A. Novel recruitment strategies to increase participation of women in reproductive health research in India. Glob Pub Hlth 2007;4:395-403.
210. Lippman SA, Pulerwitz J, Chinaglia M, Hubbard A, Reingold AL, Diaz J. Mobility and its liminal context: Exploring sexual partnering among truck drivers crossing the Southern Brazilian border. Soc Sci & Med 2007;doi:10.1016.
211. Hicks LA, Harrison LH, Flannery B, Hadler JL, Schaffner W, Craig AS, Jackson D, Thomas A, Beall B, Lynfield R, Reingold AL, Farley MM, et al. Incidence of pneumococcal disease due to non-pneumococcal conjugate vaccine (PCV7) serotypes in the United States during the era of widespread PCV7 vaccination, 1998-2004. J Inf Dis 2007;196:1346-1354.
212. O’Loughlin RE, Roberson A, Cieslak PR, Lynfield R, Gershman K, Craig A, Albanese BA, Farley MM, Barrett NL, Spina NL, Beall B, Harrison LH, Reingold AL, Van Beneden C, et al. The epidemiology of invasive group A streptococcal infection and potential vaccine implications: United States, 2000-2004. Clin Inf Dis 2007;45:853-862.
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213. Thigpen MC, Richards Jr CL, Lynfield R, Barrett NL, Harrison LH, Arnold KE, Reingold A, Bennett NM, et al. Invasive group A streptococcal infection in older adults in long-term care facilities and the community, United States, 1998-2003. Emerg Inf Dis 2007;13:1852-1859.
214. Malamba S, Hladik W, Reingold AL, Banage F, McFarland W, Rutherford G, Mimbe D, Nzaro E, Downing R, Mermin J. The effect of HIV on morbidity and mortality in children with severe malarial anaemia. Malaria J 2007;6:143.
215. Pant Pai N, Joshi R, Dogra S, Taksande B, Kalantri SP, Pai M, Narang P, Tulsky JP, Reingold AL. Evaluation of diagnostic accuracy, feasibility, and client preference for rapid oral fluid-based diagnosis of HIV infection in rural India. PLos One 2007;2(4): e367.doi.10.1371/journal.pone.0000367.
216. Chainani-Wu N, Silverman S Jr, Reingold A, Bostrom A, Lozada-Nur F, Weintraub J. Validation of visual analogue scale, numeric rating scale, change in symptoms scale and modified oral mucousitis index for measurement of symptoms and signs of oral lichen planus. Oral Surg Med Oral Pathol Oral Radiol Endod 2008;105:51-58.
217. Koo D, Birkhead GS, Reingold AL. Competency-based epidemiologic training in public health practice. Pub Hlth Rep 2008 (Suppl 1);123:1-3.
218. Joshi R, Colford Jr JM, Reingold AL, Kalantri S. Nonmalarial acute undifferentiated fever in a rural hospital in Central India: Diagnostic uncertainty and overtreatment with anti-malarial agents. Am J Trop Med Hyg 2008;78:393-399.
219. Moore MR, Gertz RE, Woodbury RL, Barkocy-Gallagher GA, Schaffner W, Lexau C, Gershman K, Reingold AL, Farley M, Harrison LH, et al. Population snapshot of emergent Streptococcus pneumoniae Serotype 19A in the United States, 2005. J Inf Dis 2008; 197:1016-1027.
220. Madhivanan P, Krupp K, Chandrasekaran V, Karat SC, Reingold AL, Klausner JD. Acceptability of male circumcision among mothers with male children in Mysore, India. AIDS 2008; 22:983-988.
221. Blumenshine P, Reingold A, Egerter S, Mockenhaupt R, Braveman P, Marks J. Pandemic influenza planning in the United States from a health disparities perspective. Emerg Inf Dis 2008; 14:5.
222. Madhivanan P, Krupp K, Chandrasekaran V, Karat C, Arun A, Cohen CR, Reingold AL, Klausner JD. Prevalence and correlates of bacterial vaginosis among young women of reproductive age in Mysore, India. Ind J Med Microbiol 2008; 26:132-137.
223. Pant Pai N, Joshi R, Moodie E EM, Taksande B, Kalantri SP, Pai M, Tulsky JP, Reingold AL. Profile of adults seeking voluntary HIV testing and counseling in rural Central India: Results from a hospital-based study. AIDS Care 2009;21:294-300.
224. Hsu HE, Shutt KA, Moore MR, Beall BW, Bennett NM, Craig AS, Farley MM, Jorgensen JH, Lexau CA, Petit S, Reingold A, Schaffner W, Thomas A, Whitney CG, Harrison LH. Effect of pneumococcal conjugate vaccine on pneumococcal meningitis. NEJM 2009;360:244-256.
225. Gordon A, Ortega O, Kuan G, Reingold A, Saborio S, Balmaseda A, Harris E. Prevalence and seasonality of influenza-like illness in children, Nicaragua, 2005-2007. Emerg Inf Dis 2009;15:408-414.
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226. Broyles LN, Van Beneden C, Beall B, Facklam R, Shewmaker PL, Malpiedi P, Daily P, Reingold A, Farley MM. Population-based study of invasive disease due to β-hemolytic streptococci of groups other than A and B. Clin Inf Dis 2009;48:706-712.
227. Madhivanan P, Krupp K, Hardin J, Karat C, Klausner JD, Reingold AL. Simple and inexpensive point-ofcare tests improve diagnosis of vaginal infections in resource constrained settings. Trop Med & Int Hlth 2009;14:703-708.
228. Madhivanan P, Krupp K, Yashodha MN, Marlow L, Klausner JD, Reingold AL. Attitudes toward HPV vaccination among parents of adolescent girls in Mysore, India. Vaccine 2009;27:5203-5208.
229. Madhivanan P, Bartman MT, Pasutti L, et al. Prevalence of Trichomonas vaginalis infection among young reproductive age women in India: implications for treatment and prevention. Sex Health. 2009;6(4):339344.
230. Chideya S, Winston CA, Peloquin CA, Bradford WZ, Hopewell PC, Wells CD, Reingold AL, Kenyon TA, Moeti TL, Tappero JW. Isoniazid, Rifampin, Ethambutol, and Pyrazinamide, pharmokinetics and treatment outcomes among a predominantly HIV-infected cohort of adults with tuberculosis from Botswana. Clin Inf Dis 2009;48:1685-1694.
231. Carvalho M da G, Pimenta FC, Gertz RE Jr, Joshi HH, Trujillo AA, Keys LE, et al. PCR-based quantitation and clonal diversity of the current prevalent invasive serogroup 6 pneumococcal serotype, 6C, in the United States in 1999 and 2006 to 2007. J. Clin. Microbiol. 2009 Mar;47(3):554–9.
232. Gordon A, Videa E, Saborio S, et al. Performance of an influenza rapid test in children in a primary healthcare setting in Nicaragua. PLoS ONE. 2009;4(11):e7907.
233. Pai NP, Estes M, Moodie EEM, Reingold AL, Tulsky JP. The impact of antiretroviral therapy in a cohort of HIV infected patients going in and out of the San Francisco county jail. PLoS ONE. 2009;4(9):e7115.
234. Ahmad Y, Gertz RE Jr, Li Z, et al. Genetic relationships deduced from emm and multilocus sequence typing of invasive Streptococcus dysgalactiae subsp. equisimilis and S. canis recovered from isolates collected in the United States. J. Clin. Microbiol. 2009;47(7):2046-2054.
235. Eisenberg JNS, Aiello AE, Spicknall IH, Monto AS, Reingold A. Protecting the herd from H1N1. Science. 2009;326(5955):934; author reply 934.
236. Pilishvili T, Lexau C, Farley MM, Hadler J, Harrison LH, Bennett NM, Reingold A, et al. Sustained reductions in invasive pneumococcal disease in the era of conjugate vaccine. J Inf Dis 2010;201:32-41.
237. Krupp K, Marlow LAV, Kielmann K, et al. Factors associated with intention-to-recommend human papillomavirus vaccination among physicians in Mysore, India. J Adolesc Health. 2010;46(4):379-384.
238. Lippman SA, Donini A, Díaz J, et al. Social-environmental factors and protective sexual behavior among sex workers: the Encontros intervention in Brazil. Am J Public Health. 2010;100 Suppl 1:S216-223.
239. Durrheim DN, Reingold A. Modifying the GRADE framework could benefit public health. J Epidemiol Community Health. 2010;64(5):387.
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240. Pilishvili T, Zell ER, Farley MM, et al. Risk factors for invasive pneumococcal disease in children in the era of conjugate vaccine use. Pediatrics. 2010;126(1):e9-17.
241. Malamba S, Sandison T, Lule J, Reingold A, Walker J, Dorsey G, Mermin J. Plasmodium falciparum dihydrofolate reductase and dihyropteroate syntase mutations and the use of trimethoprimsulfamethoxazole prophylaxis among persons infected with human immunodeficiency virus. Am J Trop Med Hyg 2010;82:766-771.
242. Dawood FS, Fiore A, Kamimoto L, Nowell M, Reingold A, Gershman K, Meek J, et al. Influenzaassociated pneumonia in children hospitalized with laboratory-confirmed influenza, 2003-2008. Ped Inf Dis 2010;29:585-590.
243. Kallen AJ, Mu Y, Bulens S, Reingold A, Petit S, Gershman K, Ray SM, Harrison LH, et al. Health careassociated invasive MRSA infections, 2005-2008. JAMA 2010;304:641-648.
244. Cohn AC, MacNeil JR, Harrison LH, et al. Changes in Neisseria meningitidis disease epidemiology in the United States, 1998-2007: implications for prevention of meningococcal disease. Clin. Infect. Dis. 2010;50(2):184-191.
245. Cohen AL, Harrison LH, Farley MM, et al. Prevention of invasive pneumococcal disease among HIVinfected adults in the era of childhood pneumococcal immunization. AIDS. 2010;24(14):2253-2262.
246. Dao CN, Kamimoto L, Nowell M, et al. Adult hospitalizations for laboratory-positive influenza during the 2005-2006 through 2007-2008 seasons in the United States. J. Infect. Dis. 2010;202(6):881-888.
247. Cochran LW, Black S, Klein NP, et al. Vaccine effectiveness against laboratory-confirmed influenza in infants: A matched case control study. Hum Vaccin. 2010;6(9). Available at: http://www.ncbi.nlm.nih.gov/pubmed/20855940. Accessed September 26, 2011.
248. Burton DC, Flannery B, Bennett NM, et al. Socioeconomic and racial/ethnic disparities in the incidence of bacteremic pneumonia among US adults. Am J Public Health. 2010;100(10):1904-1911.
249. Dawood FS, Fiore A, Kamimoto L, et al. Burden of seasonal influenza hospitalization in children, United States, 2003 to 2008. J. Pediatr. 2010;157(5):808-814.
250. Thigpen MC, Whitney CG, Messonnier NE, Zell ER, Lynfield R, Hadler JL, Harrison LH, Farley MM, Reingold AL, et al. Bacterial meningitis in the United States, 1998-2007. New Engl J Med 2011; 364:2016-2025.
251. Pinho AA, Chinaglia M, Lippman SA, Reingold AL, Diaz RS, Sucupira MC, Page K, Diaz J. Prevalence and factors associated with HSV-2 and hepatitis B infections among truck drivers crossing the southern Brazilian border. Sex Trans Infect 2011; doi:10.1136/sextrans-2011-050186.
252. Veras MA de SM, Ribeiro MCA, Jamal LF, et al. The “AMA-Brazil” cooperative project: a nation-wide assessment of the clinical and epidemiological profile of AIDS-related deaths in Brazil in the antiretroviral treatment era. Cad Saude Publica. 2011;27 Suppl 1:S104-113.
253. Madhivanan P, Chen Y-H, Krupp K, et al. Incidence of Herpes simplex virus type 2 in young reproductive age women in Mysore, India. Indian J Pathol Microbiol. 2011;54(1):96-99.
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254. Creanga AA, Kamimoto L, Newsome K, et al. Seasonal and 2009 pandemic influenza A (H1N1) virus infection during pregnancy: a population-based study of hospitalized cases. Am. J. Obstet. Gynecol. 2011;204(6 Suppl 1):S38-45.
255. Weston EJ, Pondo T, Lewis MM, et al. The burden of invasive early-onset neonatal sepsis in the United States, 2005-2008. Ped Inf Dis. 2011. Available at: http://www.ncbi.nlm.nih.gov/pubmed/21654548. Accessed September 26, 2011.
256. Dawood FS, Kamimoto L, D’Mello TA, et al. Children with asthma hospitalized with seasonal or pandemic influenza, 2003-2009. Pediatrics. 2011;128(1):e27-32.
257. Rosen JB, Thomas AR, Lexau CA, et al. Geographic variation in invasive pneumococcal disease following pneumococcal conjugate vaccine introduction in the United States. Clin. Infect. Dis. 2011;53(2):137-143.
258. Rathod SD, Krupp K, Klausner JD, et al. Bacterial vaginosis and risk for Trichomonas vaginalis infection: A longitudinal analysis. Sex Transm Dis. 2011;38(9):882-886.
259. Adamson PC, Krupp K, Freeman AH, Klausner JD, Reingold AL, Madhivanan P. Prevalence & correlates of primary infertility among young women in Mysore, India. Indian J. Med. Res. 2011 Oct;134:440–6.
260. Madhivanan P, Krupp K, Reingold A. Correlates of Intimate Partner Physical Violence Among Young Reproductive Age Women in Mysore, India. Asia-Pacific journal of public health / Asia-Pacific Academic Consortium for Public Health [Internet]. 2011 Dec 20 [cited 2012 Jun 18]; Available from: http://www.ncbi.nlm.nih.gov/pubmed/22186382
261. MacNeil JR, Cohn AC, Farley M, Mair R, Baumbach J, Bennett N, et al. Current epidemiology and trends in invasive Haemophilus influenzae disease--United States, 1989-2008. Clin. Infect. Dis. 2011 Dec;53(12):1230–6.
262. Doshi S, Kamimoto L, Finelli L, Perez A, Reingold A, Gershman K, et al. Description of antiviral treatment among adults hospitalized with influenza before and during the 2009 pandemic: United States, 2005-2009. J. Infect. Dis. 2011 Dec 15;204(12):1848–56.
263. MacNeil JR, Cohn AC, Zell ER, Schmink S, Miller E, Clark T, et al. Early estimate of the effectiveness of quadrivalent meningococcal conjugate vaccine. Pediatr. Infect. Dis. J. 2011 Jun;30(6):451–5.
264. Lippman SA, Chinaglia M, Donini AA, Diaz J, Reingold A, Kerrigan DL. Findings from Encontros: a multilevel STI/HIV intervention to increase condom use, reduce STI, and change the social environment among sex workers in Brazil. Sex Transm Dis. 2012 Mar;39(3):209–16.
265. Vandermeer ML, Thomas AR, Kamimoto L, Reingold A, Gershman K, Meek J, et al. Association between use of statins and mortality among patients hospitalized with laboratory-confirmed influenza virus infections: a multistate study. J. Infect. Dis. 2012 Jan 1;205(1):13–9.
266. Wise ME, Viray M, Sejvar JJ, Lewis P, Baughman AL, Connor W, et al. Guillain-Barre Syndrome during the 2009-2010 H1N1 influenza vaccination campaign: Population-based surveillance among 45 million Americans. Am. J. Epidemiol. 2012 Jun 1;175(11):1110–9.
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267. Luckhaupt SE, Sweeney MH, Funk R, Calvert GM, Nowell M, D’Mello T, et al. Influenza-associated hospitalizations by industry, 2009-10 influenza season, United States. Emerging Infect. Dis. 2012 Apr;18(4):556–62.
268. Hampton LM, Farley MM, Schaffner W, Thomas A, Reingold A, Harrison LH, et al. Prevention of antibiotic-nonsusceptible Streptococcus pneumoniae with conjugate vaccines. J. Infect. Dis. 2012 Feb 1;205(3):401–11.
269. De Serres G, Pilishvili T, Link-Gelles R, Reingold A, Gershman K, Petit S, et al. Use of surveillance data to estimate the effectiveness of the 7-valent conjugate pneumococcal vaccine in children less than 5 years of age over a 9 year period. Vaccine. 2012 Jun 8;30(27):4067–72.
270. Reingold AL. Review: “Smallpox-The Death of a Disease: The Inside Story of Eradicating a Worldwide Killer” by D.A. Henderson. 2010; Am J Epidemiol 171:384-385.
271. Cohen AL, Taylor T Jr, Farley MM, Schaffner W, Lesher LJ, et al. An assessment of the screening method to evaluate vaccine effectiveness: The case of 7-valent pneumococcal conjugate vaccine in the United States. PLoS One 2012;7:341785. Doi:10.1371/journal.pone.0041785.
272. Henry JA, Reingold AL. Prehospital trauma systems reduce mortality in developing countries: A systematic review and meta-analysis. Trauma Acute Care Surg 2012;73:261-268.
273. Rathod SD, Klausner JD, Krupp K, Reingold AL, Madhivanan P. Epidemiologic features of vulvovaginal candidiasis among reproductive-age women in India. Inf Dis Obst Gyn 2012; Article ID 859071; doi:10.1155/2012/859071.
274. Duclos P, Durrheim DN, Reingold AL, Bhutta ZA, Vannice K, et al. Developing evidence-based immunization recommendations and GRADE*. Vaccine 2012;31:12-19.
275. Joshi R, Kalantri SP, Reingold AR, Colford JM. Changing landscape of acute encephalitis syndrome in India: A systematic review. Nat Med J India 2012;25:212-220.
276. Muhammad RD, Oza-Frank R, Zell E, Link-Gelles R, Venkat Narayan KM, Schaffner W, Thomas A, Lexau C, Bennett NM, Farley MM, Harrison LH, Reingold A, et al. Epidemiologoy of invasive pneumococcal disease among high-risk adults since the introduction of pneumococcal conjugate vaccine for children. Clin Inf Dis 2013;56:e59-67.
277. Cox CM, D’Melio T, Perez A, Reingold A, Gershman K, et al. Increase in rates of hospitalization due to laboratory-confirmed influenza among children and adults during the 2009-2010 influenza pandemic. J Inf Dis 2012; 206:1350-1358.
278. Livorsi DJ, MacNeil JR, Cohn AC, Bareta J, Zansky S, Petit S, Gershman K, Harrison LH, Lynfield R, Reingold A, et al. Invasive Haemophilus influenzae in the United States, 1999-2008: Epidemiology and Outcomes. J Inf Dis 2012; 65:496-504.
279. * Keller AC, Ansell CK, Reingold AL, Bourrier M, Hunter MD, Burrowes S, MacPhail TM. Improving Pandemic Response: A Sensemaking Perspective on the Spring 2009 H1N1 Pandemic. Risk, Hazards & Crisis in Public Policy: Vol. 3: Iss. 2, Article 1; 2012. DOI: 10.1515/1944-4079.1101.
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280. Terrault NA, Dodge JL, Murphy EL, Tavis JE, Kiss A, Levin TR, Gish RG, Busch MP, Reingold AL, Alter MJ. Sexual transmission of hepatitis C virus among monogamous heterosexual couples: The HCV partners study. Hepatology; 2013;53:881-889.
281. Muhammed RD, Oza-Frank R, Zell E, Link-Gelles R, Venkat Narayan KM, Schaffner W, Thomas A, Lexau C, Bennett NM, Farley MM, Harrison LH, Reingold A, et al. Epidemiology of invasive pneumococcal disease among high-risk adults since the introduction of pneumococcal conjugate vaccine for children. Clin Inf Dis 2013;56:e59-e67.
282. Fleming-Dutra KE, Taylor T, Link-Gelles R, Garg S, Jhung MA, Finelli L, Jain S, Shay D, Chaves SS, Baumbach J, Hancock EB, Beall B, Bennett N, Zansky S, Petit S, Yousey-Hindes K, Farley MM, Gershman K, Harrison LH, Ryan P, Lexau C, Lynfield R, Reingold A, et al. Effect of the 2009 influenza A(H1N1) pandemic on invasive pneumococcal pneumonia. J Inf Dis 2013;207:1135-1143.
283. Kamimoto L, Euler GL, Lu P-J, Reingold A, Hadler J, Gershman K, et al. Seasonal influenza morbidity estimates obtained from telephone surveys, 2007. Am J Pub Hlth 2013;103:755-763.
284. Salmon DA, Proschan M, Forshee R, Gargiullo P, Bleser W, Burwen DR. . .H1N1 GBS Meta-Analysis Working Group (Reingold AL-member). Association between Guillain Barré syndrome and influenza A (H1N1) 2009 monovalent inactivated vaccines in the USA: A meta-analysis. Lancet 2013;381:1461-1468.
285. Ssekitoleko R, Kamya MR, Reingold AL. Primary prophylaxis for cryptococcal meningitis and impact on mortality in HIV: A systematic review and meta-analysis. Future Virol 2013;8:doi: 10.2217/fvl.13.71.
286. Joshi R, Mishra PK, Joshi D, Santhosh SR, Parida MM, Desikan P, Gangane N, Kalantri SP, Reingold A, Colford JM Jr. Clinical presentation, etiology, and survival in adult acute encephalitis syndrome in rural Central India. Clin Neuro Neurosurg 2013;115:1753-1761.
287. Dawood FS, Chaves SS, Perez A, Reingold A, Meek J, Farley MM, et al. Complications and associated bacterial coinfections among children hospitalized with seasonal or pandemic influenza, United States, 2003-2010. J Inf Dis 2013; Epub DOI: 10.1093/infdis/jit473.
288. Thompson MG, Sokolow LZ, Almendares O, Openo K, Farley MM, Meek J, Ray J, Daily Kirley P, Reingold A, et al. Effectiveness of nonadjuvanted monovalent influenza A (H1N1) pdm09 vaccines for preventing reverse transcription polymerase chain reaction-confirmed pandemic influenza hospitalizations: Case-control study of children and adults at 10 U.S. influenza surveillance network sites. Clin Inf Dis 2013;11:1587-1592.
289. Wiringa AE, Shutt KA, Marsh JW, Cohn AC, Messonnier NE, Zansky SM, Petit S, Farley MM, Gershman K, Lynfield R, Reingold A, et al. Geotemporal analysis of Neisseria meningitidis clones in the United States: 2000-2005. PLoS One 2013;8:e82048l doi:10.1371/journal.pone.0082048.
290. Woolf-King SE, Steinmaus CM, Reingold AL, Hahn JA. An update on alcohol use and risk of HIV infection in sub-Saharan Africa: Meta:analysis and future research directions. IJADR, 2013, 2(1), 99-110; doi: 10.7895/ijadr.v2il.45.
291. Jhung MA, D’Mello T, Perez A, Aragon D, Bennett NM, Cooper T, Farley MM, Fowler B, Grube SM, Hancock EB, Lynfield R, Morin C, Reingold A, et al. Hospital-onset influenza hospitalizations – United States, 2010-2011. Am J Inf Control 2014; 42:7-11.
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292. Ayieko J, Abuogi L, Simchowitz B, Bukusi EA, Smith AH, Reingold A. Efficacy of isoniazid prophylactic therapy in prevention of tuberculosis in children: a meta-analysis. BMC Inf Dis 2014; 14:91; doi:10.1186/1471-2334-14-91.
293. Dharan NJ, Sokolow LZ, Cheng PY, Gargiullo P, Gershman K, Lynfield R, Morin C, Thomas A, Meek J, Farley MM, Arnold KE, Reingold A, et al. Child, household, and caregiver characteristics associated with hospitalization for influenza among children 6-59 months of age: an emerging infections program study. Pediatr Infect Dis J. 2014 Jun;33(6):e141-50. doi: 10.1097/INF.0000000000000283.PMID: 24642518.
294. Wortham JM, Zell ER, Pondo T, Harrison LH, Schaffner W, Lynfield R, Thomas A, Reingold A, et al. Racial disparities in invasive Streptococcus pneumoniae infections, 1998-2009. Clin Infect Dis. 2014 May;58(9):1250-7. doi: 10.1093/cid/ciu108. Epub 2014 Feb 27.PMID:24585565.
295. Madhivanan P, Raphael E, Rumphs A, Krupp K, Ravi K, Srinivas V, Arun A, Reingold AL, et al. Characterisation of culturable vaginal Lactobacillus species among women with and without bacterial vaginosis from the United States and India: A cross-sectional study. J Med Microbiol. 2014 Jul;63(Pt 7):931-5. doi: 10.1099/jmm.0.073080-0. Epub 2014 May 16.PMID :24836413.
296. Chaves SS, Perez A, Farley MM, Miller L, Schaffner W, Lindegren ML, Sharangpani R, Meek J, YouseyHindes K, Thomas A, Boulton R, Baumbach J, Hancock EB, Bandyopadhyay AS, Lynfield R, Morin C, Zansky SM, Reingold A,et al. The burden of influenza hospitalizations in infants from 2003 to 2012, United States. Pediatr Infect Dis J. 2014 Sep;33(9):912-9. doi: 10.1097/INF.0000000000000321.PMID:24577042.
297. Blain A, MacNeil J, Wang X, Bennett N, Farley MM, Harrison LH, Lexau C, Miller L, Nichols M, Petit S, Reingold A, et al. Invasive Haemophilus Influenzae Disease in Adults ≥65 Years, United States, 2011. Open Forum Infect Dis (Summer 2014) 1 (2): first published online June 13, 2014. doi:10.1093/ofid/ofu044.
298. Greenbaum A, Chaves S S, Perez A, Aragon D, Bandyopadhyay A, Bennett N, Fowler B, Hancock E, Lynfield R, McDonald-Hamm C, Reingold A, et al. Heavy alcohol use as a risk factor for severe outcomes among adults hospitalized with laboratory-confirmed influenza, 2005-2012. Infection (2014) 42:165-170. Doi 10.1007/s15010-013-0534-8.
299. Langley G, Schaffner W, Farley MM, Lynfield R, Bennett NM, Reingold A, et al. Twenty years of Active Bacterial Core surveillance. Emerg Infect Dis. 2015 Sept. http://dx.doi.org/10.3201/eid2109.141333.
300. Vugia DJ, Meek JI, Danila RN, Jones TF, Schaffner W, Baumbach J, Lathrop S, Farley MM, TobinD’Angelo M, Miller L, Harrison LH, Bennett NM, Cieslak PR, Cartter ML, Reingold A. Training in Infections Disease Epidemiology through the Emerging Infections Program Sites. Emerg Infect Dis. 2015 Sept. doi:http//dx.doi.org/10.3201/eid2109.150443.
301. MacNeil JR, Bennett N, Farley MM, Harrison LH, Lynfield R, Nichols M, Petit S, Reingold A, et al. Epidemiology of Infant Meningococcal Disease in the United States, 2006-2012. Pediatrics Volume 135, number 2, February 2015. doi:10.1542/peds.2014-2035.
302. Arriola CS, Anderson EJ, Baumbach J, Bennett N, Bohm S, Hill M, Lindegree ML, Lung K, Meek J, Mermel E, Miller L, Monroe ML, Morin C, Oni O, Reingold A, et al. Does Influenza Vaccination Modify
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Influenza Severity: Data on Older Adults Hospitalized With Infuluenza During the 2012-2013 Season in the United States. J. Infect Dis March 2015. doi: 10.10936/infdis/jiv200.
303. Moore MR, Link-Gelles R, Schaffner W, Lynfield R, Lexau C, Bennett NM, Petit S, Zanksy SM, Harrison LH, Reingold A, et al. Effect of use of 13-valent pneumococcal conjugate vaccine in children on invasive pneumococcal disease in children and adults in the USA: analysis of multisite, population-based surveillance. Lancet Infect Dis 2015; 15:301-09. http://dx.doi.org/10.1016/S1473-3099(14)71081-3.
304. Madhivanan P, Alleyn HN, Raphael E, Krupp K, Ravi K, Nebhrajani R, Arun A, Reingold A, et al. Identification of culturable vaginal Lactobacillus species among reproductive age women in Mysore, India. Med Micro (2015), 64. doi.10.1099/jmm.0.000070.
305. Brito AM, Kendall C, Kerr L, Salani Mota RM, Crosland Guimaraes MD, Dourado I, Pinho A, Schwartz Benzaken A, Brignol S, Reingold A. Factors Associated with Low Levels of HIV Testing among Men Who Have Sex with Men (MSM) in Brazil. PLOS One (2015). doi:10.1371/journal.pone.0130445.
306. Dorjee K, Dierberg K, Sadutshang TD, and Reingold A. First report of multi-drug resistant tuberculosis in a systemic lupus erythematosus patient. BMC Res Notes (2015) 8:337. doi 10.1186/s13104-015-1302-x.
307. Garg S, Jain S, Dawood F S, Jhung M, Perez A, D’Mello T, Reingold A, et al. Pneumonia among adults hospitalized with laboratory-confirmed seasonal influenze virus infection—United States, 2005-2008. BMC Infectious Diseases (2015) 15:369. Doi 10.1186/s12879-015-1004-y.
308. Shuster M, Eskola J, Duclos P, SAGE Working Group on Vaccine Hesitancy. Review of vaccine hesitancy: Rationale, remit, and methods. Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.035.
309. MacDonald N, SAGE Working Group on Vaccine Hesitancy. Vaccine hesitancy: Definition, scope and determinants. Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.36.
310. Larson H, Jarrett C, Schulz W, Chaudhuri M, Zhou Y, Dube E, Schuster M, MacDonald N, Wilson R, SAGE Working Group on Vaccine Hesitancy. Measuring vaccine hesitancy: The development of a survey tool. Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.37.
311. Butler R, MacDonald N, SAGE Working Group on Vaccine Hesitancy. Diagnosing the determinants of vaccine hesitancy in specific subgroups: The Guide to Tailoring Immunization Programmes (TIP). Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.038.
312. Jarrett C, Wilson R, O’Leary M, Eckersberger E, Larson H, SAGE Working Group on Vaccine Hesitancy. Strategies for addressing vaccine hesitancy—A systematic review. Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.040.
313. Dube E, Gagnon D, MacDonald N, SAGE Working Group on Vaccine History. Strategies intended to address vaccine hesitancy: Review of published reviews. Elsevier Ltd. 2015. http://dx.doi.org/10.1016/j.vaccine.2015.04.0041.
314. Nowak G, Gellin B, MacDonald N, Butler R, SAGE Working Group on Vaccine Hesitancy. Addressing vaccine hesitancy: The potential value of commercial and social marketing principles and practices. Elesevier Ltd. 2015. Vaccine 33 (2015) 4204–4211 http://dx.doi.org/10.1016/j.vaccine.2015.04.039.
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315. Goldstein S, MacDonald N, Guirguis S, SAGE Working Group on Vaccine Hesitancy. Health Communication and vaccine hesitancy. Elesvier Ltd. 2015.http://dx.doi.org/10.1016/j.vaccine.2015.04.042.
316. Eskoka J, Duclos P, Schuster M, MacDonald N, SAGE Working Group on Vaccine Hesitancy. How to deal with vaccine hesitancy? Elsevier Ltd. 2015. http://dx.doi.org/10.1016./j.vaccine.2015.04.043.
317. Rathod SD, Li T, Klausner JD, Hubbard A, Reingold AL, and Madhivanan P, Logic regression-derived algorithms for syndromic management of vaginal infections. Medical Informatics and Decision Making. 2015. 15:106. DOI 10.1186/s12911-015-0228-5.
318. Vugia DJ, Meek JI, Danila RN, Jones TF, Schaffner W, Baumbach J, Lathrop S, Farley MM, TobinD’Angelo M, Miller L, Harrison LH, Bennett NM, Cieslak PR, Cartter ML, Reingold AL. Training in Infectious Disease Epidemiology through the Emerging Infections Program Sites. Emerging Infectious Diseases. Vol. 21, No. 9; September 2015.
319. Smith EM, Khan MA, Reingold AL, Watt JP. Group B streptococcus infections of soft tissue and bone in California adults, 1995-2012. Epidemiol. Infect. (2015), 143, 3343-3350. doi:10.1017/S0950268815000606.
320. Pekka N, Reingold A. Preventing pneumococcal infections in older adults. The Lancet, Vol 3 November 2015. http://dx.doi.org/10.1016/52213-2600(15)00365-3.
321. Tomczyk S, Lynfield R, Schaffner W, Reingold A, et al. Prevention of Antibiotic-Nonsusceptible Invasive Pneumococcal Disease With the 13-Valent Pneumococcal Conjugate Vaccine. Clin Infect Dis 2016;62(9):1119-25. doi: 10.1093/cid/ciw067.
322. Cardosa CS, Sabino EC, Oliveira CdL, de Oliveira LC, Ferreira AM, Cunha-Neto E, Bierrenback AL, Ferreira JE, Haikal DS, Reingold AL, et al. Longitudinal study of patients with chronic Chagas cardiomyopathy in Brazil (SaMi-Trop project): a cohort profile. BMJ Open 2016;6:e011181. doi:10.1136/bmjopen-2016-011181.
323. Moore MR, Link-Gelles R, Schaffner W, Lynfield R, Haltzman C, Harrison LH, Zansky SM, Rosen JB, Reingold A, et al. Effectiveness of 13-valent pneumococcal conjugate vaccine for prevention of invasive pneumococcal disease in children in the USA: a matched case-control study. The Lancet, Vol 4 May 2016. http://dx.doi.org/10.1016/52213-2600(16)00052-7.
324. Bramley AM, Chaves SS, Dawood FS, Doshi S, Reingold A, et al. Utility of keywords from chest radiograph reports for pneumonia surveillance among hospitalized patients with influenza: The CDC Influenza Hospitalization Surveillance Network, 2008-2009. Public Health Reports. May/Jun 2016, Vol. 131 Issue 3, p483-490.
325. Blain AE, Sema M, Wu H, MacNeail JR, Harrison LH, Farley MM, Lynfield R, Miller L, Nichols M, Petit S, Reingold A, et al. Penicillin use in Meningococcal disease management: Active Bacterial Core Surveillance Sites, 2009. Open Forum Infectious Diseases. 11 July 2016. doi: 10.1093/ofid/ofw152.
326. Link-Gelles R, Westreich D, Aiello AE, Shang N, Weber DJ, Holtzman C, Scherzinger K, Reingold A, et al. Bias with respect to socioeconomic status: A closer look at zip code matching in a pneumococcal vaccine effectiveness study. 8 August 2016. Elsevier. http://dx.doi.org/10.1016/j.ssmph.2016.08.005.
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327. Higgins JPT, Soares-Weiser K, Lopez JA, Kakourou A, Chaplin K, Martin NK, Sterne JAC, Reingold A. Association of BCG, DTP, and measles containing vaccines with childhood mortality: systematic review. BMJ. 2016;355:i5170. doi:10.1136/bmj.i5170.
328. Andreuccetti G, Leyton V, Lemos NP, Miziara ID, Ye Y, Takitane J, Munoz DR, Reingold AL, et al. Alcohol use among fatally injured victims in São Paulo, Brazil: bridging the gap between research and health services in developing countries. 2016 Nov 6. doi: 10.1111/add.13688. [Epub ahead of print]
329. Harris CM, Wu HM, Li J, Hall HI, Lee A, Zell E, Harrison LH, Petit S, Farley MM, Lynfield R, Miller L, Nichols M, Reingold A, et al. Meningococcal disease in patients with human immunodeficiency virus infection: a review of cases reported through active surveillance in the United States, 2000-2008. Open Forum Infect Dis. 2016 Dec 20;3(4):ofw226. doi: 10.1093/ofid/ofw226.
330. Schrag SJ, Farley MM, Petit S, Reingold A, et al. Epidemiology of invasive early-onset neonatal sepsis, 2005 to 2014. Pediatrics. 2016 Dec; 138(6). pii: e20162013.
331. Metcalf BJ, Chochua S, Gertz RE, Li Z, et al. Using whole genome sequencing to identify resistance determinants and predict antimicrobial resistance phenotypes for year 2015 invasive pneumococcal disease isolates recovered in the United States. Clinical Microbiology and Infection, Volume 22, Issue 12, 2016,Pages 1002.e1-1002.e8, https://doi.org/10.1016/j.cmi.2016.08.001.
332. Wesson P, Reingold A, McFarland W. Theoretical and empirical comparisons of methods to estimate the size of hard-to-reach populations: a systematic review. AIDS Behav. 2017 Jan 11. doi: 10.1007/s10461017-1678-9. [Epub ahead of print] Review.
333. Cohn AC, MacNeil JR, Harrison LH, Lynfield R, Reingold AL, et al. Effectiveness and duration of protection of one dose of a meningococcal conjugate vaccine. Pediatrics. Volume 139, No. 2; February 2017.
334. Belongia EA, Karron RA, Reingold A, et al. The Advisory Committee on Immunization Practices recommendations regarding the use of live influenza vaccine: A rejoinder. Vaccine (2017), http://dx.doi.org/10.1016/j.vaccine.2017.06.017.
335. Carmen SA, Garg S, Anderson EJ, Ryan PA, George A, Zansky SM, Bennett N, Reingold A, et al. Influenza vaccination modifies disease severity among community-dwelling adults hospitalized with influenza. Clin Infect Dis 2017 cix468. doi: 10.1093/cid/cix468.
336. Link-Gelles R, Westreich D, Aiello AE, Shang N, Weber DJ, Rosen JB, Motala T, Mascola L, Eason J, Scherzinger K, Holtzman C, Reingold AL, et al. Generalisability of vaccine effectiveness estimates: an analysis of cases included in a postlicensure evaluation of 13-valent pneumococcal conjugate vaccine in the USA. BMJ Open 2017; 7:e017715. doi:10.1136/bmjopen-2017-017715.
337. Metcalf BJ, Chochua S, GirtzJr. RE, et al. Short-read whole genome sequencing for determination of antimicrobial resistance mechanisms and capsular serotypes of current invasive Streptococcus agalactiae recovered in the USA, Clinical Microbiology and Infection, Volume 23, Issue 8, 18 Feb 2017,Pages 574.e7-574.e14, https://doi.org/10.1016/j.cmi.2017.02.021.
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338. Arriola C, Garg S, Anderson E, Ryan PA, George A, Zansky SM, Bennett N, Reingold A, et al. Influenza vaccination modifies disease severity among community-dwelling adults hospitalized with influenza. Clin Infect Dis May 2017;00(00):1-9. doi:10.1093/cid/cix468.
339. Wong KK, Burdette E, Mahon B, et al. Recommendations of the Advisory Committee on Immunization Practices for use of cholera vaccine. MMWR 12 May 2017, 66(18):482-485. doi:10.15585/mmwr.mm6618a6.
340. Wesson P, Lechtenberg R, Reingold, A, et al. Evaluating the completeness of HIV surveillance using capture-recapture models, Alameda County, California. AIDS Behav 21 August 2017. doi: 10.1007/s10461-017-1883-6.
341. Orenstein WA, Hinman A, Nkowane B, Olive JM, Reingold A. Measles and Rubella Global Strategic Plan 2012-2020 midterm review. Vaccine 36 (2018); A1-A34; https://doi.org/10.1016/j.vaccine.2017.09.026
342. Orenstein WA, Cairns L., Hinman .A, Nkowane B., J-M., Olive, Reingold A.L. Measles and Rubella Global Strategic Plan 2012-2020 midterm review report: background and summary. Vaccine 36 (2018) A35-A42: https://doi.org/10.1016/j.vaccine.2017.10.065.
343. Schille S, Vellozzi C, Reingold A, et al. Prevention of Hepatitis B Virus Infection in the United States: Recommendations of the Advisory Committee on Immunization Practices. Recommendations and Reports:12 January 2018: 67(1);1-31.
344. Gordon A, Reingold A. The Burden of Influenza: a Complex Problem. Current Epidemiology Reports: 05 February 2018. https://doi.org/10.1007/s40471-018-0136-1.
345. Liang JL, Tiwari T, Moro P, et al. Prevention of Pertussis, Tetanus, and Diphtheria with Vaccines in the United States: Recommendations of the Advisory Committee on Immunization Practices (ACIP). MMWR Recommendations and Reports. 27 April 2018;67(2):1-44. doi:10.15585/mmwr.rr6702a1
346. G. Andreuccetti, C.J. Cherpitel, H.B. Carvalho, V. Leyton, I.D. Miziara, D.R. Munoz, Reingold A, et al. Alcohol in combination with illicit drugs among fatal injuries in Sao Paulo, Brazil: An epidemiological study on the association between acute substance use and injury. Injury, Volume 49, Issue 12, 2018, Pages 2186-2192. https://doi.org/10.1016/j.injury.2018.09.035.
347. Soeters HM, Blain A, Pondo T, Doman B, Farley MM, Harrison LH, Lynfield R, Miller L, Petit S, Reingold A, et al. Current epidemiology and trends in invasive Haemophilus influenzae disease—United States, 2009–2015, Clin Infec Dis, Volume 67, Issue 6, 15 September 2018, Pages 881–889. https://doi.org/10.1093/cid/ciy187.
348. O’Brien KS, Emerson P, Hooper PJ, Reingold AL, et al. Antimicrobial resistance following mass azithromycin distribution for trachoma: a systematic review. Lancet Infect. Dis 2018. October 3, 2018. http://dx.doi.org/10.1016/S1473-3099(18)30444-4.
349. Mendes Lobão W, Duarte FG, Burns JD, et al. Low coverage of HPV vaccination in the national immunization programme in Brazil: Parental vaccine refusal or barriers in health-service based vaccine delivery PLoS One. 2018;13(11):e0206726. doi:10.1371/journal.pone.0206726.
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350. Duarte FG, da Silva Moreir S, da Conceicao C Almeida M, de Souza Teles CA, Andrade CS, Reingold A, et al. Sex differences and correlates of poor glycaemic control in type 2 diabetes: a cross-sectional study in Brazil and Venezuela. BMJ Open. 2019;9:e023401. doi:10.1136/bmjopen-2018-023401.
351. Lewnard JA, Reingold AL. Emerging challenges and opportunities in infectious disease epidemiology. American Journal of Epidemiology. May 2019 Volume 188, Issue 5, Pages 873–882. https://doi.org/10.1093/aje/kwy264
352. Schaffner W, Nichol KL, Reingold AL, Preventing hepatitis in us adults through vaccination. Infectious Diseases In Clinical Practice. November 2018, Volume 26, Issue 6 p 304-312. doi: 10.1097/IPC.0000000000000685.
353. Cardoso CS, Ribeiro ALP, Oliveira CDL, Oliveira LC, Ferreira AM, Bierrenbach AL, Silva JLP, Colosimo EA, Ferreira JE, Lee TH, Busch MP, Reingold AL, et al. Beneficial effects of benznidazole in Chagas disease: NIH SaMi-Trop cohort study. PLoS neglected tropical diseases. 2018.12. https://doi.org/10.1371/journal.pntd.0006814.
354. Dorjee K, Choden T, Baxi SM, Steinmaus C, and Reingold AL. Risk of cardiovascular disease associated with exposure to abacavir among individuals with HIV: a systematic review and meta-analyses of results from 17 epidemiologic studies. International Journal of Antimicrobial Agents. 2018, 52(5), pp.541-553. https://doi.org/10.1016/j.ijantimicag.2018.07.010.
355. Ahmed SS, Pondo T, Xing W, McGee L, Farley M, Schaffner W, Thomas A, Reingold A, et al. Early impact of 13-valent pneumococcal conjugate vaccine use on invasive pneumococcal disease among adults with and without underlying medical conditions--United States. Clinical Infectious Diseases. CID 2019:19. doi:10.1093/cid/ciz739.
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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 4

5/12/2020

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This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers visit https://www.djreprints.com. https://www.wsj.com/articles/coronavirus-vs- lu-which-virus-is-deadlier-11583856879
U.S.
Coronavirus vs. Flu: Which Virus Is Deadlier?
The two maladies are similar in many ways, but people have more protection against seasonal flu

A discharged Covid-19 patient in Wuhan, China, bowed to the doctors while leaving the hospital on Tuesday.
PHOTO: STRINGER GETTY IMAGES
By Betsy McKay Updated March 10, 2020 12 49 pm ET
The new coronavirus and the seasonal ﬂu are similar in many ways. Both are respiratory diseases that spread through droplets of ﬂuid from the mouth and nose of someone who is infected. Both are contagious, produce similar symptoms and can be deadly.
But there are some major diﬀerences. While both produce many of the same symptoms—fever, cough and muscle aches—and are particularly hard on the elderly, they come from two diﬀerent families of viruses. People have more protection from the ﬂu because there is a vaccine and they are exposed to ﬂu viruses every year.
There is no vaccine yet to protect people against Covid-19, the disease caused by the new virus.
“I think what we’re seeing with Covid-19 is what inﬂuenza would look like without a vaccine,” said Neil Fishman, who is chief medical oﬃcer at the Hospital of the University of Pennsylvania and an infectious-disease specialist.

https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879

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• This Common Flu Virus Is a Growing Threat • The Deadly Flu No One Saw Coming • Coronavirus Symptoms Start About Five Days After Infection, New Research Finds • Japan Sees Silver Lining to Coronavirus as Flu Cases Drop

Scientists haven’t yet established exactly how deadly or transmissible the new virus is. But so far the new coronavirus appears to be deadlier than the seasonal ﬂu, which kills thousands of Americans every season.
Calculations of the mortality rate for Covid-19 have ranged between 2% and 3.4% since the virus was identiﬁed in China in January, according to World Health Organization data. Those percentages are derived by dividing the number of conﬁrmed deaths globally into the number of conﬁrmed cases.
By contrast, the seasonal ﬂu has a death rate of approximately 0.1%.
Covid-19’s higher death rate is one reason that billionaire global-health philanthropist Bill Gates recently warned in an article in the New England Journal of Medicine that “Covid-19 has started behaving a lot like the once-in-a-century pathogen we’ve been worried about.”
But public-health scientists say the real death rate is probably lower than the current estimates. U.S. health oﬃcials suggested in another article in the New England Journal of Medicine that the death rate could be well below 1%. (Other estimates have ranged between 1% and 2%.) That’s because current calculations are based on tallies of people who were ill enough to be tested, they wrote.
Epidemiologists say they are certain there are many more people who were infected but didn’t receive a test—either because they weren’t ill enough to get one or didn’t have access to a test. Problems with a test developed in the U.S. means many people haven’t been able to get one.
Studies suggest there are also people who were infected but had no symptoms.
“We don’t know the proportion of mild or asymptomatic cases,” Marc Lipsitch, professor of epidemiology at Harvard T.H. Chan School of Public Health and director of the Center for Communicable Disease Dynamics, said in a recent teleconference.
In addition, the mortality rate has diﬀered by region and by intensity of transmission, according to a report by an international mission to China of experts led by the WHO. It was 5.8% in an explosive initial outbreak in Wuhan. But in other, less-hard-hit areas of China, which had more time to prepare to care for patients, it was 0.7%. The rate in China has come down

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over time, the report said. In South Korea, which has had more than 7,000 cases, the mortality

rate is 0.7%.

To calculate the “infection fatality rate”—meaning an infected person’s risk of death—will require large-scale studies to determine how many people in an area where there has been an outbreak have antibodies to the virus in their blood, Dr. Lipsitch said. That would show how many people had been infected, he said.

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Have you been tested for lu or coronavirus? What was your experience? Join the conversation below.

Two blood tests have been licensed in China to conduct such studies, according to the WHO.
The new coronavirus, called SARS CoV-2, infects the lower respiratory tract. About 80% of people in a cohort of nearly 56,000 people in China had either mild or moderate illnesses, according to the report by the experts who traveled to China. Those illnesses started with a fever, dry cough, fatigue and other ﬂulike symptoms, but sometimes included shortness of breath and progressed to a mild form of pneumonia, according to the report.
Another 13.8% became severely ill, requiring oxygen, and 6.1% were critical, meaning respiratory and organ failure, according to the report. People over the age of 60 and those with underlying conditions such as cardiovascular disease, chronic lung disease, diabetes and cancer were at highest risk, the report said.
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There are contradictory reports of how transmissible Covid-19 is. The disease does not seem to spread as easily as the ﬂu, according to the WHO, which found that most of the spread in China was through close contacts like family members. Other disease modeling suggests the new virus is more transmissible than the ﬂu.

Experts say the new coronavirus may appear to be more transmissible than ﬂu right now because people have at least some immunity to seasonal ﬂu viruses, since the ﬂu goes around every year, and there is a ﬂu vaccine.

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About 34 million people in the U.S. have had the ﬂu this season, which is still ongoing but

starting to ease, according to the latest ﬂu report from the Centers for Disease Control and

Prevention. Of them, about 20,000 have died.

Flu strains change slightly every year, and the number of deaths depends on how severe the strains that are circulating that season are, according to the CDC. The most severe ﬂu pandemic in recent history killed tens of millions of people in 1918 and 1919, meaning more than 2.5% of those it infected, according to CDC research.
Write to Betsy McKay at betsy.mckay@wsj.com
HOW TO NAVIGATE THE CORONAVIRUS
• Read the full report (articles are free) • See live updates on the virus and its impact • What We Know About the Coronavirus • The Virus and Your Job: A New Set of Questions • Essentials of Working From Home, and How to Keep Your Home Virus-Free • Should You Clean Your Phone? De initely… Maybe. • Stock Up on What You Need Without Getting Fleeced • Travel Tips to Protect Your Health • The Loneliness of Forced Isolation, and How One Family Is Dealing With Life, Disrupted • You Aren’t Washing Your Hands Right. Here’s How to Do It. • Facts and Myths About Boosting Your Immune System • Who’s Most at Risk From the Virus, and How Vulnerable Children Are

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For a world grappling with the new coronavirus, it’s becoming increasingly clear that

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even when the pandemic is over, it won’t really be over.

Now doctors are beginning to worry that for patients who have survived COVID-19, the same may be true.

For the sickest patients, infection with the new coronavirus is proving to be a fullbody assault, causing damage well beyond the lungs. And even after patients who become severely ill have recovered and cleared the virus, physicians have begun seeing evidence of the infection’s lingering effects.

In a study posted this week, scientists in China examined the blood test results of 34 COVID-19 patients over the course of their hospitalization. In those who survived mild and severe disease alike, the researchers found that many of the biological measures had “failed to return to normal.”

Chief among the worrisome test results were readings that suggested these apparently recovered patients continued to have impaired liver function. That was the case even after two tests for the live virus had come back negative and the patients were cleared to be discharged.

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At the same time, as cardiologists are contending with the immediate effects of COVID-19 on the heart, they’re asking how much of the damage could be longlasting. In an early study of COVID-19 patients in China, heart failure was seen in nearly 12% of those who survived, including in some who had shown no signs of respiratory distress.

When lungs do a poor job of delivering oxygen to the body, the heart can come under severe stress and may emerge weaker. That’s concerning enough in an illness that typically causes breathing problems. But when even those without respiratory distress sustain injury to the heart, doctors have to wonder whether they have underestimated COVID-19’s ability to wreak lasting havoc.

“COVID-19 is not just a respiratory disorder,” said Dr. Harlan Krumholz, a cardiologist at Yale University. “It can affect the heart, the liver, the kidneys, the brain, the endocrine system and the blood system.”

There are no long-term survivors of this wholly new disease: Even its first victims in China are little more than three months removed from their ordeal. And physicians have been too busy treating the acutely ill to closely monitor the progress of the roughly 370,000 people worldwide known to have recovered from COVID-19.

Still, doctors are worried that in its wake, some organs whose function has been knocked off kilter will not recover quickly, or completely. That could leave patients more vulnerable for months or years to come.

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“I think there will be long-term sequelae,” said Yale cardiologist Dr. Joseph Brennan, using the medical term for a disease’s downstream effects.
“I don’t know that for real,” he cautioned. “But this disease is so overwhelming” that some of the recovered are likely to face ongoing health concerns, he said.
Another question that could take years to answer is whether the SARS-CoV-2 virus that causes COVID-19 may lie dormant in the body for years and spring back later in different form.
It wouldn’t be the first virus to behave that way. After a chicken pox infection, for instance, the herpes virus that causes the illness hides quietly for decades and often emerges as the painful affliction shingles. The virus that causes hepatitis B can sow the seeds of liver cancer years later. And in the months after the West African Ebola epidemic subsided in 2016, the virus responsible for that illness was found to have taken up residence in the vitreous fluid of some of its victims’ eyes, causing blindness or vision impairment in 40% of those affected.

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Given SARS-CoV-2’s affinity for lung tissue, doctors quickly suspected that some recovered COVID-19 patients would sustain lasting damage to their lungs. In infections involving the coronavirus that cause severe acute respiratory syndrome

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(SARS), about one-third of recovered patients had lung impairment after three years, but those symptoms had largely cleared 15 years later. And researchers found that one-third of patients who suffered Middle East respiratory syndrome (MERS) had scarring of the lungs — fibrosis — that was probably permanent.

In a mid-March review of a dozen COVID-19 patients discharged from a hospital in Hong Kong, two or three were described as having difficulty with activities they had done in the past.

Dr. Owen Tsang Tak-yin, director of infectious diseases at Princess Margaret Hospital in Hong Kong, told reporters that some patients “might have around a drop of 20 to 30% in lung function” after their recovery.

Citing the history of lasting lung damage in SARS and MERS patients, a team led by UCLA radiologist Melina Hosseiny is recommending that patients who have recovered from COVID-19 get follow-up lung scans “to evaluate long-term or permanent lung damage including fibrosis.”
As doctors try to assess organ damage after COVID-19 recovery, there’s a key complication: Patients with disorders that affect the heart, liver, blood and lungs face a higher risk of becoming very sick with COVID-19 in the first place. That makes it difficult to distinguish COVID-19 after-effects from the problems that made patients vulnerable to begin with — especially so early in the game.

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Right now, “we’re all in the middle of it,” said Dr. Kim Williams, a cardiovascular disease specialist at Rush University Medical Center in Chicago. “We have much more information about what happens acutely, and we’re trying to manage that.”

What they do know is that when COVID-19 patients show symptoms of infection, the function of many organs is knocked off course. And when one organ begins to fail, others often follow.
Add to that chaos the force of inflammation, which flares in those with severe COVID-19. The result can do damage throughout the body, prying plaques and clots from the walls of blood vessels and causing strokes, heart attacks and venous embolisms.

Krumholz, who organized a meeting of cardiologists to discuss COVID-19 this week, said the infection can cause damage to the heart and the sac that encases it. Some patients develop heart failure and/or arrhythmias during the disease’s acute phase.

Heart failure weakens the organ, though it can regain much of its strength with medications and lifestyle changes. Still, former COVID-19 patients can become lifelong cardiology patients.
Muddying this picture is another potential after-effect: blood abnormalities that

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make clots of all sorts more likely to form.

In a case report published this week in the New England Journal of Medicine, Chinese doctors described a patient with severe COVID-19, clots evident in several parts of his body, and immune proteins called antiphospholipid antibodies.

A hallmark of an autoimmune disease called antiphospholipid syndrome, these antibodies sometimes occur as a passing response to an infection. But sometimes they linger, causing dangerous blood clots in the legs, kidneys, lungs and brain. In pregnant women, antiphospholipid syndrome also can result in miscarriage and stillbirth.

Brennan said that in a new disease like COVID-19, the signposts that usually guide physicians in assessing a patient’s long-term prognosis are just not there yet. “Coagulopathy,” for instance, “usually rights itself,” he said.
“But this isn’t usual.”

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Melissa Healy is a health and science reporter with the Los Angeles Times writing from the Washington, D.C., area. She covers prescription drugs, obesity, nutrition and exercise, and neuroscience, mental health and human behavior. She’s been at The Times for more than 30 years, and has covered national security, environment, domestic social policy, Congress and the White House. As a baby boomer, she keenly follows trends in midlife weight gain, memory loss and the health benefits of red wine.

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 6

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People in their 60s at higher coronavirus risk too, say scientists
UK has advised over 70s to be extra vigilant but other countries have opted for lower age thresholds
Coronavirus latest updates See all our coronavirus coverage
Sarah Boseley
Wed 22 Apr 2020 04.36 EDT
UK guidance urging the over-70s to take particular care to observe social distancing and avoid contact with people outside the home is leaving people aged 60 to 69 at increased risk from coronavirus, say scientists.
Prof Azeem Majeed and colleagues at Imperial College London (ICL) noted that other countries had diﬀerent policies and the World Health Organization said the highest risk was in over-60s.
According to a paper published by the Centre for Evidence-Based Medicine at Oxford University, the death rate among people in their 70s is 8%, and the rate among those in their 60s is 3.6%, which the ICL scientists said was “still substantial”.

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They recommend that the 7.3 million people in their 60s in the UK should be more careful about

physical distancing and personal hygiene.

“In the absence of government guidance, people in this group (60-69) can make their own informed decisions on how to minimise their risks of Covid-19 infection. This can include isolating themselves in a similar manner to that recommended by the UK government for people aged 70 years and over,” they said in a paper published in the Journal of the Royal Society of Medicine.

“While the severity of the disease increases from the age of 40 years, those above the age of 60 years and those with underlying medical conditions including, but not limited to, diabetes, cardiovascular diseases, chronic respiratory diseases and cancers are at the highest risk.”

They cited international evidence that over-60s are at higher risk. “The US Centers for Disease Control and Prevention reports that 80% of Covid-19-related deaths are in those aged 65 years and over,” they said. In China, 80% of deaths were in the over-60s.

Switzerland and France were among the countries that advised over-65s to take greater precautions against infection, they added.

Other scientists agree there is a cause for concern about the 60-69 age group. Dr Tom Wingﬁeld from the Liverpool School of Tropical Medicine, said: “It would be helpful to see what evidence was used to inform the UK government’s decision to deﬁne people over 70 years old as a high-risk group rather than using a lower age threshold such as 60 or 65 years old. This is a really important issue for the general public when we consider that more than 7 million people in the UK are aged between 60 and 69 years old.

“In addition to the general public, it is also vital that carers and key workers who are aged over 60, including those returning from retirement to work in the NHS and other social care settings, are provided with accurate information to be able to make informed decisions about minimising their own risk from Covid-19.”

• This article was amended on 23 April 2020 to clarify the UK lockdown measures for people over 70.
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Governor Ivey Announces New Primary Runoff Election Date

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MONTGOMERY – Governor Kay Ivey on Wednesday announced the Primary Runoff Election would be held on July 14, 2020 due to the concerns surrounding the COVID-19 (Coronavirus) pandemic.

“Exercising my extraordinary powers under the Emergency Management Act, I am setting Alabama’s Primary Runoff Election for July 14, 2020,” said Governor Kay Ivey. “The ability to hold free and fair elections is an inherent right as citizens of the United States and the great state of Alabama, but the safety and wellbeing of Alabama citizens is paramount.

“Our State Health Officer, Dr. Scott Harris, is recommending that we should practice social distancing and refrain from public gatherings of more than 25 individuals. Maintaining a 6-foot distance between one another is paramount. This guidance alone would be making an election day a hotbed for spreading the virus.

“Persons who are 65 years or older as well as those with previous heart and lung diseases are more vulnerable to the Coronavirus. Knowing the average age of our faithful poll workers qualifies them to be most at-risk adds the necessity to extend the election runoff date.

“Delaying the election to July 14 is not a decision I came to lightly, but one of careful consideration. I appreciate the guidance of Attorney General Steve Marshall and Secretary of State John H. Merrill for their collaboration to ensure the continuity of our state government.”

On Tuesday, Attorney General Steve Marshall issued an emergency ruling declaring Governor Ivey had the authority to delay the runoff under the State of Emergency declaration.

“Governor Ivey has the legal authority under the Alabama Emergency Management Act to declare a state of emergency as a result of the current pandemic,” says Attorney General Steve Marshall. “Accordingly, she also has the

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lawful ability to postpone a primary runoff election to protect public health and safety during the state of emergency.”

Upon the governor’s issuance of the amended State of Emergency proclamation rescheduling the Primary Runoff Election to be held on July 14, 2020, the Secretary of State shall give notice and provide the amended Administrative Calendar, via certified mail and email, to all applicable election officials.

“I am grateful to Governor Ivey and General Marshall for their proactive leadership, sincere dedication, and spirit of teamwork displayed during these trying times,” said Secretary of State John H. Merrill. “It is critical that we provide a safe and secure environment for all 3,585,209 voters in the State of Alabama to participate in the electoral process.”

The Secretary of State is encouraging anyone who is concerned about contracting the virus or spreading the illness may vote by absentee. For information regarding voter registration, locating a polling place, or how to obtain an absentee ballot, please contact the Secretary of State’s website.

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 8

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It’s safer at home; protect yourself and your community from COVID-19
FOR IMMEDIATE RELEASE
CONTACT: Karen Landers, M.D. (256) 383-1231
A new health order requires the closure of certain “non-essential” businesses in Alabama. This order is effective March 28 at 5 p.m. The order defines affected businesses and activities that include entertainment venues, athletic facilities, close-contact service providers, and retail stores. The order is in effect until 5 p.m. April 17 when a determination on extending the order will be made.
A previous order concerning day care centers is unchanged, and earlier health orders regarding on-premise consumption of food or drink at restaurants and bars remain in effect. Except for certain situations that are described in the health order, elective dental, medical and surgical procedures are to be postponed until further notice.
State Health Officer Dr. Scott Harris said, “Everyone plays a critical role in protecting others and is encouraged to spend as much time as possible at home to prevent an increase in new infections.”
The list of businesses, venues, and activities below will be closed to non-employees or not take place:
Entertainment venues
Night clubs Bowling alleys Arcades Concert Venues Theaters, auditoriums, and performing arts centers Tourist attractions (including museums and planetariums) Racetracks Indoor children's play areas Adult entertainment venues Casinos Bingo Halls Venues operated by social clubs
Athletic facilities and activities
Fitness centers and commercial gyms Spas and public or commercial swimming pools Yoga, barre, and spin facilities Spectator sports Activities on commercial or public playground equipment Sports that involve interaction with another person of closer than 6 feet Activities that require use of shared sporting apparatus and equipment

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Activities on commercial or public playground equipment

Close-contact service providers:

Barber shops Hair salons Waxing salons Threading salons Nail salons and spas Body-art facilities and tattoo services Tanning salons Massage-therapy establishments and massage services

Retail Stores:

Furniture and home-furnishings stores Clothing, shoe, and clothing-accessory stores Jewelry, luggage, and leather goods stores Department stores Sporting goods stores Book, craft, and music stores

The public is reminded to stay home if sick except to seek medical care, cover coughs and sneezes, wash hands often, avoid touching eyes, nose, and mouth with unwashed hands, and keep a six-foot distance between yourself and others. Fines for each violation of the health order are up to $500.

The Alabama Department of Public Health encourages the public to keep informed by visiting alabamapublichealth.gov. The ADPH toll-free hotline and e-mail address are as follows:

COVID-19 General Information - 800-270-7268

Telephone calls are answered from 7 a.m. until 9 p.m. daily, and a language line is available for people who do not speak English.

The COVID-19 General Information Email address - covid19info@adph.state.al.us (mailto:covid19info@adph.state.al.us)

In addition, a toll-free phone line provides information about available testing sites and hours of operation statewide at 888264-2256. No medical advice is given on this line.

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03/27/2020

ALABAMA DEPARTMENT OF PUBLIC HEALTH RSA Tower 201 Monroe Street, Suite 910, Montgomery, AL 36104
Phone: (334) 206-5300 | Fax: (334) 206-5520

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Case 2:20-cv-00619-AKK Document 16-10 Filed 05/13/20 Page 1 of 12

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

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Coronavirus might spread much farther than 6 feet in the air. CDC says wear a mask in public.
Ramon Padilla, and Javier Zarracina, USA TODAY Updated 7:27 a.m. EDT Apr. 5, 2020

A

ir contaminated with the COVID-19 virus might travel four times farther than the 6 feet the CDC asks we distance ourselves, according to a recent study.

The study published in the Journal of the American Medical Association found that under the

right conditions, liquid droplets from sneezes, coughs and just exhaling can travel more than

26 feet and linger in the air for minutes.

Findings such as these may have some bearing on the CDC's recommendation on Friday that Americans wear non-surgical face masks in public — especially in places "where other social

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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distancing measures are di cult to maintain."

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“There is no virtual wall at this 3- to 6-feet distance” says Lydia Bourouiba, the study's author, who specializes in uid dynamics and is an associate professor at the Massachusetts Institute of Technology. These ndings suggest the greatest risk is for health care workers working with infected patients, she says.

As seen in this video, shot from di erent views and posted with Bourouiba's report, the invisible cloud can travel up to 26 feet:

The study focuses on a turbulent gas, the cloud emitted when someone coughs, sneezes or exhales. Liquid droplets of various sizes drop onto surfaces, while others can be trapped in a cloud that can swirl around a room with a payload, in theory, of pathogen-bearing droplets.
How cough and sneeze droplets travel

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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A lot goes into how far the cloud and its droplets travel: a person's physiology, the environment, humidity and temperature. “The cloud can reach up to 26 feet for sneezes and less than that for coughs — about 16 to 19 feet,” Bourouiba says.
According to a 2009 World Health Organization report, when someone coughs, they can spray up to 3,000 droplets. A sneeze could yield 40,000.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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Virus- lled droplets smaller than a human hair
Bourouiba’s study did not look at gas clouds of patients infected with the SARS-CoV-2 virus but it hypothesized: "The rapid international spread of COVID-19 suggests that using arbitrary droplet size cuto s may not accurately re ect what actually occurs with respiratory emissions" and lead to inadequate recommendations and more sick people.
These droplets can be very small — “ as small and invisible as the micron size to the ones that you can see that are on the order of the millimeter” says Bourouiba. A human hair is 60 to 120 microns thick.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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Aerosols: The smallest droplets may carry COVID-19
Researchers don’t know how many virus-laden particles people infected with COVID-19 might expel in the average droplet, including the micron-size droplets — called aerosols — that linger in the air.
"Aerosols are di erent," says Dr. Stanley Deresinski, clinical professor of medicine and infectious diseases at Stanford University. "Very small particles may be suspended in the air for a long time, sometimes for hours. They're suspended by air currents."
Those oating airborne droplets — some shielded by turbulent gas clouds — can stay suspended long enough for someone to walk through and inhale the virus. Inside the gas cloud “the lifetime of a droplet could be considerably extended by a factor of up to 1000, from a fraction of a second to minutes,” Bourouiba's study says.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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Droplets containing virus reach air circulation systems
Pathogens in the cloud could potentially reach air circulation systems inside buildings, says Bourouiba. “There was sampling done in air vents with positive detection of the virus.”
A separate JAMA Network study found that exhaust outlets tested positive for SARS-CoV2: “small virus-laden droplets may be displaced by air ows and deposited on equipment such as vents,” the study says.
“Now, there are other questions about whether the detected virus particles are still live," says Bourouiba. "However, nding the virus in air vents is more compatible with that longer distance range that can be reached through the cloud.”

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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Fresh air can help rid coronavirus droplets
These ndings heighten the dangers for those caring for COVID-19 patients. Without su cient air circulation to disperse the cloud, its concentrated payload of droplets can linger in hospitals and homes.
“Drops are trapped in the cloud for quite some time and they can remain locally concentrated,” says Bourouiba.
The best defenses are the outdoors and open windows which dissipate the clouds or droplets.
“When one is outside, with air circulation or wind, the cloud and its payload is easily dispersed and less concentrated. Making sure that indoor spaces are aired frequently also reduces the concentration,” Bourouiba says.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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Masks protect against oating droplets

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Surgical masks are helpful at blocking large droplets, but unlike respirators they do not provide a reliable level of protection from inhaling smaller airborne particles, according to the CDC.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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N95 respirators are tight- tting and lter out at least 95% of airborne particles as small as 0.3 microns. They have a protection factor (APF) of 10, according to the CDC. That means the N95 reduces the aerosol concentration to 1/10 of that in the room — or blocking 90% of airborne particles.

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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An elastomeric respirator is a reusable device with exchangeable cartridge lters. It ts tight against the user's face and also has a APF of 10. Before reusing the mask, all its surfaces need to be wiped down with a disinfectant.
In addition to respirators, health care workers should wear personal protective equipment (PPE) to help limit exposure to the virus through their eyes or contaminated clothing.

Should you make a homemade face mask?
The CDC now recommends Americans wear cloth face coverings in public settings where it's di cult to stay at least 6 feet apart, such as grocery stores and pharmacies — especially in areas with high levels of community transmission.
When asked about the CDC recommendations for people the general public to wear masks or other improvised devices, Bourouiba o ered a quali ed response:

https://www.usatoday.com/in-depth/news/2020/04/03/coronavirus-protection-how-masks-might-stop-spread-through-coughs/5086553002/

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“The e cacy of those homemade solutions need to be quanti ed. Exhalations or violent
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exhalations such as coughs or sneezes would be de ected to the sides of these masks — as

they are not perfectly sealed....

"It is important, therefore, to understand that such masks are not necessarily protective for the wearer in terms of preventing inhalation of the residual droplets in the air, which enter from the sides un ltered, but they can provide a way to reduce the range of contamination from the droplets-laden cloud.”

The CDC press release says that cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure. They recommend that critical supplies such as surgical masks or N-95 respirators continue to be reserved for health care workers and other medical rst responders. Top trends on Google Friday were face mask patterns and bandanas.

The start of allergy season could also hasten new infections. Bourouiba warned that asymptomatic carriers could spread COVID-19 through any sneezing and coughing triggered by allergies.

Contributing: George Petras and Jim Sergent

Originally Published 6:52 p.m. EDT Apr. 3, 2020 Updated 7:27 a.m. EDT Apr. 5, 2020

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 10

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 See how USPS is delivering for America both for customers and employees

Newsroom

Statements
Media Statement – COVID-19
April 30, 2020
The United States Postal Service is proud of the work our more than 600,000 employees play in processing, transporting, and delivering mail and packages for the American public. We provide a vital public service that is a part of this nation’s critical infrastructure. The Postal Service has a dedicated Coronavirus Disease 2019 (COVID-19) Command Response leadership team that is focusing on employee and customer safety in conjunction with operational and business continuity during this unprecedented epidemic. We continue to follow the strategies and measures recommended by the Centers for Disease Control and Prevention (CDC) and public health departments. The CDC has information available on its website at https://www.coronavirus.gov that provides the latest information about COVID-19.
To reduce health risks for our employees and customers and to safeguard our operational and business continuity, the Postal Service is doing the following:
Ensuring millions of face coverings, including masks, gloves and cleaning and sanitizing products are available and distributed to more than 30,000 locations every day through our Postal Service supply chain. We also have opened up local purchasing authorities and sourcing options so that our employees can access additional supplies within the communities they serve. We have expanded our national sourcing of supplies and services to ensure that increasing demands are met.
Requiring that non-public facing Postal Service employees wear face coverings while at work, when proper social distancing cannot be achieved or maintained.
In the local and state jurisdictions where there is an ordinance for the mandatory use of face coverings, we are voluntarily aligning by requiring that our publicfacing Postal Service employees use face coverings.
Requesting customers use face coverings while in our retail facilities located in jurisdictions that have implemented orders requiring use of face coverings by individuals within those jurisdictions.
Reinforcing workplace behaviors to ensure that contact among our employees and with our customers reflects the best guidance regarding healthy interactions, social distancing, and risk minimization. We have implemented measures at retail facilities and mail processing facilities to ensure appropriate social distancing, including through signage, floor tape, and “cough/sneeze” barriers. We have changed delivery procedures to eliminate the requirement that customers sign our Mobile Delivery Devices for delivery. For increased safety, employees will politely ask the customer to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.
Updated our cleaning policies to ensure that all cleaning occurs in a manner consistent with CDC guidance relating to this pandemic.
Updated our leave policies to allow liberal use of leave and to therefore give our employees the ability to stay home whenever they feel sick, must provide dependent care, or any other qualifying factor under the Families First Coronavirus Response Act. We have entered into agreements with our unions to provide 80 hours of paid leave to non-career employees for issues related to COVID-19, and have expanded the definition of sick leave for dependent care for covered employees to deal with the closures of primary and secondary schools across the country.
Expanded the use of telework for those employees who are able to perform their jobs remotely.
Issuing a daily cadence of employee talks, articles, videos, and other communications to ensure employees have the latest information and guidance.
Leveraging localized continuity of operations plans that can be employed in the case of emergencies to help ensure that the nation's postal system continues to function for the American people. With a longstanding history of quickly adapting its operational plans to changing conditions, the Postal Service maintains steady communications with mailers during natural disasters or other events that require emergency responses and advises residential customers and business mailers with regard to postal facility disruptions that may impact delivery in an affected area via its USPS Service Alerts webpage at: https://about.usps.com/newsroom/service-alerts/.
The Postal Service delivers much needed medications and Social Security checks, and we are the leading delivery service for online purchases. The Postal Service is an essential service for purposes of compliance with state or municipality shelter-in-place orders or other social distancing restrictions. The statute that created the Postal Service begins with the following sentence: “The United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by an Act of Congress, and supported by the people.” 39 U.S.C. §101(a).
According to the CDC, the virus that causes COVID-19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Spread is more likely when people are in close contact with one another (within about 6 feet). “COVID-19 is thought to spread mainly through close contact from person-toperson in respiratory droplets from someone who is infected.” (https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html) The CDC recognizes that while it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, this is not thought to be the main way the virus spreads. (https://www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID19-Spreads)

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Our COVID-19 response
See how USPS is delivering for customers and employees.

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 11

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CONTINUING COVERAGE

Latest Illinois...

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CORONAVIRUS
Poll Worker at Chicago Voting Site Dies of Coronavirus, Election O cials Say

By Mary Ann Ahern • Published April 13, 2020 • Updated on April 13, 2020 at 10:52 pm
 

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1:55
Poll Worker at Chicago Voting Site Dies of Coronavirus, Election O cials Say

Illinois Gov. J.B. Pritzker and Chicago Mayor Lori... Read more

A poll worker who was stationed at a Chicago voting site on election day died from the coronavirus, the Chicago Board of Elections said Monday.

The person was a city employee who was working the March 17 election at the Zion Hill Baptist Church in the city's 17th Ward, officials said Monday. City officials identified him as Revall Burke. The Cook County Medical

https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/

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Examiner's office said Burke, 60, died on April 1.

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He was a "hardworking, health-conscious ex-Marine," Patch reported, and left behind six children as well as a large extended family.

The Board will be sending letters to all poll workers at that location as well as voters who cast their ballots there in person, field investigators and cartage companies who may have been around at the time the worker was there, Board of Elections spokesman Jim Allen said.

Revall Burke, 60, died from the coronavirus April 1, according to the Cook County Medical... Read more

Voters and polls workers who were at the polling place at Andrew Jackson Language Academy, located at West Harrison Street and South Loomis Street on the city's West Side, received letters informing them that a person who voted there in person on election day tested positive for the coronavirus.

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"Although the Board took every precaution possible by supplying poll workers with hand sanitizers, gloves and instructions for wiping down the equipment, the fact remains that you and an individual who has now tested positive voted at the same Polling Place," the letter reads, advising individuals who feel they are experiencing any COVID-19 symptoms follow federal, state and local health officials' protocol.

Get the latest news on COVID-19 delivered to you. Click here to sign up for our coronavirus newsletter.

Letters about a report of a positive case were also sent to voters and polls workers at the Montclare Senior Residences of Avalon Park, located at 1200 E. 78th St., election officials said.
Authorities said another round of letters about a confirmed coronavirus case also went out to those who voted at Dever Elementary School, located at 3436 N. Osceola Ave.
The letters also ask that anyone who tested positive after March 17 notify the Board of Elections by contacting its human resources department at (312) 269-7950.
"We’re letting voters and poll workers know as soon as we have confirmed a coronavirus case," Allen said. "We’re doing our best to learn from this and move forward."
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2:49
Pritzker Responds to Election Criticism After Poll Worker Dies From Coronavirus

https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/

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Gov. J.B. Pritzker responded to critics who said Illinois' March primary should have been... Read more

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Gov. J.B. Pritzker addressed the election during his daily coronavirus briefing on Sunday - encouraging increased

use of mail-in ballots for the November election.

“We relied on the local election authorities and backed them up in this effort that they would have sanitizer, PPE, that would protect the people who were working in those facilities… and if there were electronic screens that those were being wiped down,” Pritzker said.

“We want to be looking at allowing everybody in the state to vote by mail and make it easier for people to do that so we have fewer people that would want to show up on election day at a precinct.”

Pritzker and the Chicago Board of Elections traded barbs on election day in March over the Board's claim that he denied its request to postpone the election or move to all mail-in ballots.

Allen said in an election day conference call with members of the media that a call was made to the governor's office within hours of the Centers for Disease Control and Prevention classifying the coronavirus outbreak as a pandemic.

"There’s nothing magical about March 17 unless you’re St. Patrick," Allen said at the time, adding that the circumstances were "not anywhere near a normal situation."

Pause

2:04
Concerns at Voting Polls in Illinois Rise Amid Coronavirus Outbreak

With early voting underway in the Illinois primary next Tuesday, there's a renewed push to keep... Read more

https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/

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That same day, Pritzker delivered a fiery rebuke, claiming that the Board was trying to "shift the blame foSrHtAheRiEr failings."

"Not surprisingly, they could not even explain the legal basis for their request," Pritzker said on election day. "Nor could they promise the people of Illinois that the state would be able to hold an election on their suggested date of May 12."

"There are people out there today who want to say, 'It's a crisis, bend the rules and overstep your authority,'" he continued. "It is exactly in times like these that the constitutional bounds of our democracy should be respected above all else."

Pritzker said in an earlier statement that he did not have the authority to cancel or delay the election - a change that would have required legislative approval.

"Elections are the cornerstone of our democracy and we could not risk confusion and disenfranchisement in the courts. No one is saying this is a perfect solution. We have no perfect solutions at the moment. We only have least bad solutions," his statement read.

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Case 2:20-cv-00619-AKK Document 16-13 Filed 05/13/20 Page 1 of 7

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 12

5/12/2020 SECTIONS

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SOUTH FLORIDA'S CONFUSING REOPENING: HERE'S WHAT TO EXPECT

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CORONAVIRUS
Two Broward poll workers, including one who handled voters’ driver licenses, test positive for coronavirus
By ANTHONY MAN SOUTH FLORIDA SUN SENTINEL | MAR 26, 2020
We have lifted the paywall on this story. To support essential reporting, please consider becoming a subscriber.

https://www.sun-sentinel.com/coronavirus/fl-ne-broward-elections-poll-workers-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html

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Peter Antonacci, the Broward County supervisor of elections, said that two poll workers from the March 17 presidential primary have tested positive for coronavirus.(Mike Stocker / Sun Sentinel)
Two Broward County poll workers, including one who accepted and handled voters’ driver licenses on primary day, have tested positive for the new coronavirus.
One of the poll workers was on duty for all nine days of early voting at a site in Weston. That person also worked at a precinct in Hollywood on primary day on March 17. A second poll worker was on duty at another Hollywood precinct on March 17.
One of the poll workers was assigned to the David Park Community Center in Hollywood on primary day. As one of eight workers at that location, he handled peoples’ driver licenses and scanned them as part of the voter check-in and identification process.
RELATED: Congressman Ted Deutch in self-quarantine after his college-age son returned from Spain with coronavirus symptoms »

https://www.sun-sentinel.com/coronavirus/fl-ne-broward-elections-poll-workers-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html

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A total of 61 people voted at that location, but there was also one other person operated another scanning device, so not everyone’s license would have been handled by the worker who now has COVID-19, the disease caused by the new coronavirus.

The same poll worker was also a poll deputy at the early voting site at the Weston Branch library, where 3,088 people voted over nine days from March 7-15. His job at that location was operating outside the polling place, directing voters.

The other poll worker who tested positive was on duty at the Dr. Martin Luther King Jr. Community Center in Hollywood, where 204 people voted on March 17. That person held a position that generally doesn’t involve contact with voters.

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Supervisor of Elections Peter Antonacci said on Thursday that the early voting site and the two neighborhood voting locations had hand santitizer and signs encouraging people to use it.
Antonacci said people who voted at those locations “may wish to seek medical advice.” He said he has not received any guidance from health authorities as to the potential risk to any voter.
RELATED: Florida orders two-week delay in property tax payment deadline »
The neighborhood polling places on primary day had eight workers each. The early voting site had 16 workers.
Almost all the other workers on duty at those locations have been notified, as well as county staff who may have come in contact with the infected poll workers. Antonacci

https://www.sun-sentinel.com/coronavirus/fl-ne-broward-elections-poll-workers-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html

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said his staff had not been able to reach two of the poll workers by late Thursday

afternoon.

The total work force of poll workers was about 4,000 on March 17 and about 300 for the nine days of early voting.

LATEST CORONAVIRUS
More aid to states? That may depend on their political hue

Anthony Man can be reached at aman@sunsentinel.com or on Twitter @browardpolitics

As countries restart, WHO warns about lack of coronavirus tracing, ‘some seriously blind driving over the next few months’
White House orders everyone who enters West Wing to wear face mask — but not Trump — amid president’s push to ‘reopen’ US

Anthony Man
South Florida Sun Sentinel
Anthony Man is the Sun Sentinel's political writer. Concentrating on local political people, parties and trends, he also covers state and national politics from a South Florida perspective. He previously covered Palm Beach County government and made repeated reporting trips to Tallahassee. He has also covered state and local politics in Illinois.

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Case 2:20-cv-00619-AKK Document 16-14 Filed 05/13/20 Page 1 of 3

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 13

5/10/2020

Case 2:20-cv-5020p6eo1p9le-wAhKo KworkeDdoorcvuomtedeinnWt i1sc6o-n1si4n eleFctiiolen dhav0e5C/O1V3ID/2-109 | PPBSagNeew2sHooufr 3

Coronavirus Coverage

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U.S. coronavirus map Podcast: America, Interrupted

52 people who worked or voted in Wisconsin election have COVID-19
Health Apr 29, 2020 1:41 PM EDT
MADISON, Wis. — There are no plans to postpone or otherwise alter a special congressional election in Wisconsin that is less than two weeks away, even though more than 50 people who voted in person or worked the polls during the state’s presidential primary this month have tested positive for COVID-19.
Democratic Gov. Tony Evers tried to change the April 7 election so that it would be conducted entirely by mail, but he was blocked by the Republican-led Legislature and conservative Wisconsin Supreme Court. Evers and others had warned that allowing in-person voting would cause a spike in coronavirus cases, but so far the impact appears to be limited.
Several of the 52 people who have tested positive and were at the polls on April 7 also reported other ways they may have been exposed to the virus, the Wisconsin Department of Health Services said Tuesday. Because of that, it’s unclear if those people contracted the virus at the polls.
The 52 positive cases were in people who tested positive in the two weeks after the election, so by April 21. Most people show symptoms within 14 days of exposure, though some people who have the virus don’t show symptoms.
READ MORE: Record absentee ballots sustain turnout in Wisconsin primary
After next week, the state will no longer ask people who test positive for the virus whether they were at the polls on April 7 because of how much time has passed, said Julie Willems Van Dijk, who heads the state health agency.
“We’re getting to the point where the door will be closing on those,” she said.
Most of the positive cases were in Milwaukee County. The city’s health commissioner has said the data was being analyzed and an update was expected next week.
Statewide, there have been more than 6,200 conﬁrmed cases and 300 deaths since the outbreak began.
Although voters had to wait in long lines on April 7, primarily in Milwaukee, that likely won’t happen with the May 12 special congressional election, where the largest city in the 7th Congressional District is Wausau, which is home to about 40,000 people. That House race is the only one on the ballot, unlike in this month’s election, which featured the presidential primary and a state Supreme Court race.
Election clerks in the district have said they’re ready for the election after they managed to make it through this month’s election despite the difﬁculties posed by the pandemic. There’s also a push to encourage absentee voting. About 71% of all voters in the April 7 election cast absentee ballots.
Evers has made no move to alter the special election even though as it currently stands, it would occur while his stay-at-home order is still in effect. The order is scheduled to run until May 26, but Republicans have asked the state Supreme Court to block it.
READ MORE: ‘We’ve got to get going.’ States under pressure to plan for the general election amid a pandemic

https://www.pbs.org/newshour/health/52-people-who-worked-or-voted-in-wisconsin-election-have-covid-19

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The 7th Congressional District covers all or parts of 26 northern and northwestern Wisconsin counties and is the state’s largest congressional

district, geographically.

The race pits Democrat Tricia Zunker, president of the Wausau school board, against Republican state Sen. Tom Tiffany, who has been endorsed by President Donald Trump. Trump carried the heavily Republican district by 20 percentage points in 2016.

By — Scott Bauer, Associated Press

More states lift restrictions, as small businesses struggle to secure relief
Health Apr 28

https://www.pbs.org/newshour/health/52-people-who-worked-or-voted-in-wisconsin-election-have-covid-19

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Case 2:20-cv-00619-AKK Document 16-15 Filed 05/13/20 Page 1 of 4

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 14

 
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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 15

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 16

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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 17

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Case 2:20-cv-00619-AKK Document 16-19 Filed 05/13/20 Page 1 of 12

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 18

Case 2:20-cv-00619-AKK Document 16-19 Filed 05/13/20 Page 2 of 12
ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS
DUE TO RISK OF INFECTION BY COVID-19
(APPLICABLE STATEWIDE)
AMENDED APRIL 3, 2020
WHEREAS Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and
WHEREAS the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and
WHEREAS the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and
WHEREAS, on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and
WHEREAS, on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and
WHEREAS, on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and
WHEREAS, on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, and March 27, 2020, amended orders, of statewide application suspending certain public gatherings; and
WHEREAS further social distancing measures are necessary to be implemented on a statewide basis to prevent the spread of COVID-19; and
WHEREAS Ala. Code § 22-2-2(4) authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated;
NOW THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following Stay at Home order be implemented statewide:
1. Effective Saturday, April 4, 2020, at 5:00 P.M., every person is ordered to stay at his or her place of residence except as necessary to perform any of the following “essential activities”:
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a. To obtain necessary supplies. A person may leave his or her place of residence to obtain the following supplies for himself or herself, for other household members, including pets, or for a loved one or friend who cannot or should not leave home or cannot care for himself or herself:
(i) Food and other consumer goods necessary to maintain a person’s daily routine or to maintain the safety, sanitation, and routine operation of a home or residence;
(ii) Supplies needed to work from home;
(iii) Pharmaceutical prescriptions or other medical supplies;
(iv) Fuel for automobiles or other vehicles or other vehicle supplies;
(v) Materials for distance learning or other education-related purposes; and
(vi) Any other supplies necessary to maintain a person’s or pet’s daily routine or to maintain the safety, sanitation, and routine operation of a home or residence.
b. To obtain or provide necessary services. A person may leave his or her place of residence to obtain or provide the following services for himself or herself, for other household members, including pets, or for a loved one or friend who cannot or should not leave home or cannot care for himself or herself:
(i) Dental, medical, or surgical procedures allowed under paragraph 14 of this Order;
(ii) Government-funded services or benefits;
(iii) Automobile repair services;
(iv) Services vital to the treatment or care of people with physical, intellectual, or developmental disabilities, or people with substance-use disorders;
(v) Services related to any public or private distance learning activities and education continuity, including all services under education continuity plans approved by the State Superintendent of Education; and
(vi) Any other services necessary to maintain a person’s or pet’s health and safety or to preserve the person’s ability to perform an essential activity as defined in this paragraph.
c. To attend religious services. A person may leave his or her place of residence to attend an event that is a religious worship service, wedding, or funeral in either of the following circumstances:
(i) The event involves fewer than 10 people and the people maintain a consistent sixfoot distance from one another; or
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(ii) The event is a “drive-in” worship service that adheres to the following rules:
1. All participants shall remain in their vehicles for the entirety of the service;
2. The participants in each vehicle all share the same place of residence; and
3. Participants do not come within six feet of participants in other vehicles.
d. To take care of others. A person may leave his or her place of residence to care for a family member, friend, or pet in another household, or to donate blood, or to transport family members, friends, or pets as allowed by this Order.
e. To work. A person may leave his or her place of residence to perform work at “essential businesses and operations” as defined in paragraph 2 below or to perform essential workrelated activities as follows:
(i) Work-related activities to maintain the value of a business, establishment, corporation or other organization, such as managing inventory, ensuring security, and processing payroll and employee benefits;
(ii) Work-related activities to enable people to work or shop remotely from their residences or to allow people to buy products through drive-by, curbside, or doorto-door delivery; or
(iii) Work-related activities that do not require any regular interaction within six feet of another person.
f. To engage in outdoor activity. A person may leave his or her place of residence to participate in outdoor activity that involves fewer than 10 people so long as the person maintains a consistent six-foot distance from other persons.
g. To seek shelter. A person may leave his or her place of residence to seek shelter if required by his or her employment by an “essential service of business” or if his or her residence is unsafe or at imminent risk of becoming unsafe. A person may also leave his or her place of residence to seek help from providers of basic necessities to economically disadvantaged people, such as food pantries.
h. To travel as required by law. A person may leave his or her place of residence to travel as required by law enforcement or court order, including the transportation of children required by a custody agreement.
i. To see family members. A person may leave his or her place of residence to visit the residence of other persons who are related to him or her.
Anyone leaving his or her home or place of residence as authorized in this order shall take reasonable steps to maintain six feet of separation from other persons.
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2. For the purposes of this Order, “essential businesses and operations” means and includes:
a. Government operations, including public safety and first responders, law enforcement, fire prevention and response, courts and court personnel, military, emergency management personnel, corrections, probation and parole, child protection, child welfare, EMTs, 911 call-center employees, all workers and vendors that support law enforcement and emergency management operations and services, and other federal, state, tribal, or local officials or employees;
b. Health-care providers and caregivers, including physicians, dentists, mental health workers, nurses, chiropractors, physical therapists, veterinarians, hospitals/clinics, medical practices, research and laboratory operations, hospice, health care facilities, clinical staff, nursing homes, residential health care facilities, adult day care centers, blood banks, congregate-care facilities, assisted living facilities, elder care, medical wholesale and distribution, home health workers and aides, medical supply and equipment manufacturers and providers, medical waste disposal, hazardous waste disposal, other ancillary healthcare services;
c. Infrastructure Operations, including electric, natural gas, and water utilities, nuclear facilities and other generating facilities, utility poles and components, fuel pipelines and transmission systems, petroleum producers, telecommunications, electronic security and life safety services, wireless communication companies, communications sales and customer support, telecommunication and data centers, cybersecurity operations; businesses and other operations concerned with flood control, aviation, and the maintenance, operation, or construction of dams, airports, ports, roads and highways, and mass transit; automotive sales and repair, vehicle rental and taxi services, network providers (such as Uber and Lyft), freight and passenger rail, motor carriers, pipelines, and other transportation infrastructure and businesses, water and waste water systems, transportation companies such as airlines and bus lines, hazardous waste disposal, hotels and commercial lodging services, and RV parks;
d. Manufacturing facilities, including food processing and production; companies that produce pharmaceuticals, food additives, medical equipment, medical devices and supplies, technology, biotechnology, chemical products, telecommunications products; automotive production and suppliers, airplane, ship, and space vehicle or rocket manufacturers; companies involved in healthcare, energy, steel and steel products, fuel and petroleum exploration and production, lubricants, greases and engine oils, mining, national defense, sanitary and cleaning products, household products, personal care products, products used by any other Essential Business or Operation;
e. Agricultural operations and farms, including food cultivation, livestock, cattle, poultry and seafood operations, transportation of agricultural products, livestock auctions, feedlots, dealers and brokers of livestock, farmer’s markets, feed stores, repairers and suppliers of agricultural equipment, gas, diesel and petroleum suppliers, companies involved with aquaculture, horticulture, and chemicals, including pesticide, herbicide,
4

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and fertilizer producers and distributors, forest products businesses, including those involved in forestry operations, logging, manufacture of lumber and paper products; meat processing facilities, rendering facilities and transporters, feed processing facilities, veterinary services;
f. Essential retailers, defined as all supermarkets, food and beverage stores, including liquor stores and warehouse clubs, food providers, convenience stores, office-supply stores, bookstores, computer stores, pharmacies, health care supply stores, hardware stores, home improvement stores, building materials stores, stores that sell electrical, plumbing, and heating materials, gun stores, gas stations; auto, farm equipment, bicycle, motorcycle, and boat supply and repair stores, and businesses that ship or deliver groceries, food, and goods directly to residences;
g. Restaurants and bars;
h. Essential personal services, defined as trash collection, mail and shipping services, home repair, automotive sales and repair; warehouse, distribution and fulfillment centers, kennels, animal shelters, laundromats/laundry service, drycleaners, childcare facilities, public transportation, and providers of business services including security and payroll; funeral, cemetery, and related services;
i. Media operations, including newspapers, digital news sites, television, radio and other media services;
j. Education operations, including educators supporting public and private K-12 schools, colleges and universities or other educational institutions, for purposes of facilitating distance learning and education continuity plans approved by the State Superintendent of Education, performing critical research or other essential functions, including public schools preparing and transporting distance-learning materials and meals to eligible students and colleges providing lodging for students (all in compliance with paragraph 12 below);
k. Financial services, including banks and related financial institutions, credit unions, payday lenders, businesses that process credit card and other financial transactions, and other services related to financial markets;
l. Professional Services, including legal services, accounting services, insurance services, real estate services (including appraisal and title services);
m. Providers of basic necessities to economically disadvantaged populations including businesses, religious and secular non-profit organizations, food banks, homeless shelters and congregate-care facilities;
n. Construction and construction-related services, including building and construction, lumber, building materials and hardware businesses, electricians, plumbers, other construction tradesmen and tradeswomen, exterminators; cleaning and janitorial, HVACR and water heating businesses; painting, moving and relocating services, other 5

Case 2:20-cv-00619-AKK Document 16-19 Filed 05/13/20 Page 7 of 12
skilled trades, and other related construction firms and professionals for maintaining essential infrastructure;
o. Essential public services, defined as services necessary to maintain the safety, sanitation and essential operations of residences and essential businesses and essential business operations, including law enforcement, fire prevention and response, firearm and ammunition manufacturers and retailers, building code enforcement, security, emergency management and response, building cleaning including disinfection, automotive sales and repair, mortuaries and cemeteries;
p. Military or defense operations, including employers and personnel who support the essential products and services required to meet national security commitments, including personnel working for companies and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense and government-owned/contractor-operated and governmentowned/government-operated facilities.
q. Essential services or product providers, defined as vendors that provide services or products, including logistics, transportation, and technology support, child care programs and services, medical waste disposal, hazardous waste disposal, services needed to ensure the continuing operation of an essential business or operation, operation of government agencies, and to provide for the health, safety and welfare of the public;
r. Religious entities, including religious and faith-based facilities, entities and groups;
s. Federally-designated critical infrastructure, defined as workers and related industries identified by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) in its “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response,” https://www.cisa.gov/identifyingcritical-infrastructure-during-covid-19, as may be amended;
t. Other state-designated essential businesses and operations, defined as businesses and operations deemed essential by the Alabama Department of Public Health or the Alabama Emergency Management Agency; and
u. Support operations for essential businesses and operations, defined as employees, contractors, agents, suppliers, or vendors of an essential business or operation as defined in this paragraph.
3. Operators of “essential businesses and operations” as defined in paragraph 2 may, but need not, issue credentials to their employees verifying their status as an employee of an essential business or operation. The decision to provide any such credentials is left to the discretion of the essential business or operation.
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4. “Essential businesses and operations” as defined in paragraph 2 shall take all reasonable steps, for employees and customers, to (a) avoid gatherings of 10 persons or more and (b) maintain a consistent six-foot distance between persons.
5. Effective March 28, 2020, at 5:00 P.M., the following businesses, venues, and activities shall be closed to non-employees or not take place:
a. Entertainment venues as follows: (i) Night clubs (ii) Bowling alleys
(iii) Arcades (iv) Concert venues (v) Theaters, auditoriums, and performing arts centers (vi) Tourist attractions (including museums and planetariums) (vii) Racetracks (viii) Indoor children’s play areas (ix) Adult entertainment venues (x) Adult novelty stores (xi) Casinos (xii) Bingo halls (xiii) Venues operated by social clubs b. Athletic facilities and activities as follows: (i) Fitness centers and commercial gyms (ii) Spas and public or commercial swimming pools (iii) Yoga, barre, and spin facilities (iv) Spectator sports (v) Sports that involve interaction with another person of closer than 6 feet (vi) Activities that require use of shared sporting apparatus and equipment
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(vii) Activities on commercial or public playground equipment
c. Close-contact service providers as follows:
(i) Barber shops
(ii) Hair salons
(iii) Waxing salons
(iv) Threading salons
(v) Nail salons and spas
(vi) Body art facilities and tattoo services
(vii) Tanning salons
(viii) Massage therapy establishments and services
6. Effective Saturday, April 4, 2020, at 5:00 P.M., all “essential retailers” as defined in paragraph 2, including grocery stores, pharmacies, and “big box” stores, shall comply with the following rules in addition to any other applicable provisions of this Order:
a. Emergency maximum occupancy rate. Occupancy shall be limited to no more than 50 percent of the normal occupancy load as determined by the fire marshal. This “emergency maximum occupancy rate” shall be posted in a conspicuous place, and enough staff shall be posted at the store entrances and exits to enforce this requirement.
b. Social distancing. An employee of the essential retailer place may not knowingly allow customers or patrons to congregate within six feet of one another.
c. Sanitation. The essential retailer shall take reasonable steps to comply with guidelines on sanitation from the Centers for Disease Control and Prevention and the Alabama Department of Public Health.
7. Notwithstanding any other provision of this Order, a business may continue to operate through curbside pickup, delivery, remotely, or any other method that does not involve a customer entering its building, provided that the business takes all reasonable steps to ensure a consistent six-foot distance between persons.
8. Effective March 28, 2020, at 5:00 P.M., all non-work related gatherings of 10 persons or more, or non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons, are prohibited.
9. Effective immediately, any person who has tested positive for COVID-19—other than institutionalized persons—shall be quarantined to their place of residence for a period of 14 days
8

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after receiving positive test results. Any person quarantined pursuant to this provision shall not leave their place of residence for any reason other than to seek necessary medical treatment. Any person requiring assistance while under quarantine may contact Alabama Voluntary Organizations Active in Disaster (VOAD), http://alvoad.communityos.org/cms/. While under quarantine, the person must shall take precautions as directed by his or her health care provider or the Department of Public Health to prevent the spread of the disease to others.
10. Effective March 28, 2020, at 5:00 P.M., all beaches shall be closed. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.
11. Effective, March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery.
12. Effective March 20, 2020, the following shall be closed:
a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities.
(i) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing, maintaining consistent six-foot distance between persons, for the duration of this order and follow public health guidelines.
(ii) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of first responders (including EMS and fire services) and licensed health-care providers and their essential employees; and essential employees of the following categories of employers: state and local governments, law enforcement, hospitals, nursing home/long-term care facilities, (including assisted living and specialty-care assisted living facilities), end-stage renal disease treatment centers, pharmacies, and grocery stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the CDC and the Alabama Department of Public Health.
b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed space at the same time. Center employees are encouraged to use enhanced sanitation and social-distancing practices consistent with guidance from the Centers for Disease Control and Prevention and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed space at the same time.
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13. Effective March 20, 2020, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity and end-of-life.
14. Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall be postponed until further notice, subject to the following exceptions:
a. Dental, medical, or surgical procedures necessary to treat an emergency medical condition. For purposes of this order, “emergency medical condition” is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected by a person’s licensed medical provider to result in placing the health of the person in serious jeopardy or causing serious impairment to bodily functions or serious dysfunction of bodily organs.
b. Dental, medical, or surgical procedures necessary to avoid serious harm from an underlying condition or disease, or necessary as part of a patient’s ongoing and active treatment.
15. Effective March 19, 2020, at 5:00 P.M., all restaurants, bars, breweries, or similar establishments shall not permit on-premises consumption of food or drink.
a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed.
b. Such establishments are strongly encouraged to offer online ordering and curbside pick-up of food.
c. Hospital food service areas are excluded from this order provided they have their own social distancing plan.
16. This Order shall remain in full force and effect until 5:00 P.M. on April 30, 2020. Prior to 5:00 P.M. on April 30, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.
17. This Order supersedes and preempts all orders previously issued by the State Health Officer and Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures, and this Order shall remain in full force and effect until rescinded by order of the State Health Officer or its expiration. After the date this order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require.
This Order also supersedes and preempts any county and municipal orders or ordinances, whenever adopted, that purport to impose less stringent COVID-19-related curfew or quarantine measures.
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Case 2:20-cv-00619-AKK Document 16-19 Filed 05/13/20 Page 12 of 12 Done on this 3rd day of April, 2020. _________________________ Scott Harris, M.D., M.P.H. State Health Officer
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FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 19

Case 2:20-cv-00619-AKK Document 16-20 Filed 05/13/20 Page 2 of 8
ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS
DUE TO RISK OF INFECTION BY COVID-19
(APPLICABLE STATEWIDE)
AMENDED APRIL 28, 2020
WHEREAS Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and WHEREAS the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and WHEREAS the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and WHEREAS on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and WHEREAS on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and WHEREAS on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and WHEREAS on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, March 27, 2020, and April 3, 2020, amended orders, of statewide application suspending certain public gatherings; and WHEREAS social-distancing and related measures remain necessary on a statewide basis to prevent the spread of COVID-19; and WHEREAS Ala. Code § 22-2-2(4) authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated; NOW THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following Safer at Home order be implemented statewide:
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1. Recommendations for individuals. Effective April 30, 2020, at 5:00 P.M., all individuals—and especially vulnerable persons—are encouraged to exercise personal responsibility in slowing the spread of COVID-19 by:
a. Minimizing travel outside the home, especially if sick;
b. Wearing face coverings around people from other households when it is necessary to leave the home;
c. Washing hands frequently with soap and water or hand sanitizer, especially after touching frequently used items or surfaces;
d. Refraining from touching one’s face;
e. Sneezing or coughing into a tissue, or the inside of one’s elbow; and
f. Disinfecting frequently used items and surfaces as much as possible.
“Vulnerable persons” means individuals 65 years and older or individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.
2. Quarantine for infected persons. Effective immediately, any person who has tested positive for COVID-19—other than institutionalized persons—shall be quarantined to their place of residence for a period of 14 days, or other period of time as directed by the State Health Officer, or his designee, after receiving positive test results. Any person quarantined pursuant to this provision shall not leave their place of residence for any reason other than to seek necessary medical treatment. Any person requiring assistance while under quarantine may contact Alabama Voluntary Organizations Active in Disaster, http://alvoad.communityos.org/cms. While under quarantine, the person shall take precautions as directed by his or her health care provider or the Alabama Department of Public Health to prevent the spread of the disease to others.
3. Non-work related gatherings. Effective March 28, 2020, at 5:00 P.M., all non-work related gatherings of 10 persons or more, or non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons from different households, are prohibited. But “drive-in” gatherings of any size are permitted if the participants adhere to the following rules:
a. All participants shall remain in their vehicles for the entirety of the event;
b. The participants in each vehicle must all share the same household; and
c. Participants shall not come within six feet of participants in other vehicles.
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For purposes of this paragraph, “non-work related gathering” includes church services, weddings, funeral services, social gatherings, concerts, festivals, sporting events, and similar events.
4. Protections for employees. Effective April 30, 2020, at 5:00 P.M., and unless otherwise permitted or required by this order, all employers shall take reasonable steps, where practicable as work duties permit, to protect their employees by:
a. avoiding gatherings of 10 employees or more;
b. maintaining six feet of separation between employees;
c. regularly disinfecting frequently used items and surfaces;
d. encouraging handwashing;
e. preventing employees who are sick from coming into contact with other persons;
f. facilitating remote working arrangements; and
g. minimizing employee travel.
5. Protections for customers, etc. Effective April 30, 2020, at 5:00 P.M., and unless otherwise permitted or required by this order, the operator of any business, government office, or other establishment open to the public shall take reasonable steps, where practicable, to protect their customers, constituents, or other guests by:
a. avoiding gatherings of 10 or more such persons;
b. maintaining six feet of separation between such persons (except for those persons who share the same household); and
c. regularly disinfecting frequently used items and surfaces.
6. Retailers. Effective April 30, 2020, at 5:00 P.M., all retail stores shall comply with the following rules:
a. Emergency maximum occupancy rate. Occupancy shall be limited to no more than 50 percent of the normal occupancy load as determined by the fire marshal. This “emergency maximum occupancy rate” shall be posted in a conspicuous place, and enough staff shall be posted at the store entrances and exits to enforce this requirement.
b. Social distancing. An employee of the retail store may not knowingly allow customers or patrons to congregate within six feet of one another.
c. Sanitation. The retail store shall take reasonable steps to comply with guidelines on sanitation from the Centers for Disease Control and Prevention (“the CDC”) and the Alabama Department of Public Health. 3

Case 2:20-cv-00619-AKK Document 16-20 Filed 05/13/20 Page 5 of 8
7. Higher-risk businesses and activities. Effective March 28, 2020, at 5:00 P.M., and notwithstanding any other provision of this order, the following businesses, venues, and activities shall be closed to non-employees or not take place:
a. Entertainment venues as follows: (i) Night clubs (ii) Bowling alleys
(iii) Arcades (iv) Concert venues (v) Theaters, auditoriums, and performing arts centers (vi) Tourist attractions (including museums and planetariums) (vii) Racetracks (viii) Indoor children’s play areas (ix) Adult entertainment venues (x) Casinos (xi) Bingo halls (xii) Venues operated by social clubs b. Athletic facilities and activities as follows: (i) Fitness centers and commercial gyms (ii) Spas (iii) Yoga, barre, and spin facilities (iv) Sports that involve interaction with another person of closer than 6 feet (v) Activities that require use of shared sporting apparatus and equipment (vi) Activities on commercial or public playground equipment c. Close-contact service providers as follows:
(i) Barber shops (ii) Hair salons (other than hair restoration centers)
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(iii) Waxing salons
(iv) Threading salons
(v) Nail salons and spas
(vi) Body art facilities and tattoo services
(vii) Massage therapy establishments and services (other than for medically prescribed services)
8. Beaches. Effective April 30, 2020, at 5:00 P.M., all beaches shall be open to gatherings of fewer than 10 persons, and anyone using the beaches must maintain a consistent six-foot distance between himself or herself and all persons from a different household. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.
9. Senior Citizen Centers. Effective March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery.
10. Educational institutions and child day care facilities. Effective March 20, 2020, the following shall be closed:
a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities.
(i) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing, maintaining consistent six-foot distance between persons, for the duration of this order and follow public health guidelines.
(ii) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of first responders (including EMS and fire services) and licensed health-care providers and their essential employees; and essential employees of the following categories of employers: state and local governments, law enforcement, hospitals, nursing home/long-term care facilities, (including assisted living and specialty-care assisted living facilities), end-stage renal disease treatment centers, pharmacies, and grocery stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the CDC and the Alabama Department of Public Health.
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b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed space at the same time. Center employees are encouraged to use enhanced sanitation and socialdistancing practices consistent with guidance from the CDC and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed space at the same time.
11. Hospitals and similar institutions. Effective March 20, 2020, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity, end-of-life, and support for persons with disabilities.
12. Medical procedures. Effective April 30, 2020, at 5:00 P.M., dental, medical, or surgical procedures may proceed unless the State Health Officer or his designee determines that performing such procedures, or any category of them (whether statewide or regionally), would unacceptably reduce access to personal protective equipment or other resources necessary to diagnose and treat COVID-19. Providers performing these procedures shall follow all applicable COVID-19-related rules adopted by a state regulatory board or by the Alabama Department of Public Health. In the absence of such rules, providers should take reasonable steps to comply with applicable COVID-19-related guidelines from the Centers for Medicare and Medicaid Services (CMS) and the CDC, including “Re-opening Facilities to Provide Non-emergent NonCOVID-19 Healthcare: Phase I” from CMS, available at https://www.cms.gov/files/document/covid-flexibility-reopen-essential-non-covid-services.pdf, and “Infection Control Guidance for Healthcare Professionals about Coronavirus (COVID-19)” from the CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/infectioncontrol.html.
13. Restaurants and similar establishments. Effective March 19, 2020, at 5:00 P.M., all restaurants, bars, breweries, or similar establishments shall not permit on-premises consumption of food or drink.
a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed.
b. Such establishments are strongly encouraged to offer online ordering and curbside pickup of food.
c. Hospital food service areas are excluded from this order provided they have their own social distancing plan.
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14. Duration. This Order shall remain in full force and effect until 5:00 P.M. on May 15, 2020. Prior to 5:00 P.M. on May 15, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.
15. Preemption. This Order supersedes and preempts all orders previously issued by the State Health Officer and Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures, and this Order shall remain in full force and effect until rescinded by order of the State Health Officer or its expiration. After the date this order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require.
This Order also supersedes and preempts any county and municipal orders or ordinances, whenever adopted, that purport to impose less stringent COVID-19-related curfew or quarantine measures.
Done on this 28th day of April, 2020.
_________________________ Scott Harris, M.D., M.P.H. State Health Officer
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Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 1 of 9

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 20

Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 2 of 9
ORDER OF THE STATE HEALTH OFFICER SUSPENDING CERTAIN PUBLIC GATHERINGS
DUE TO RISK OF INFECTION BY COVID-19
(APPLICABLE STATEWIDE)
AMENDED MAY 8, 2020
WHEREAS Coronavirus Disease 2019 (COVID-19) has been detected in Alabama; and WHEREAS the appearance of COVID-19 in the State poses the potential of widespread exposure to an infectious agent that poses significant risk of substantial harm to a large number of people; and WHEREAS the State Board of Health has designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public health importance; and WHEREAS on March 13, 2020, on recommendation of the State Health Officer, Kay Ivey, Governor of the State of Alabama, declared a state public health emergency exists in the State of Alabama; and WHEREAS on March 16, 2020, the Jefferson County Health Officer, in response to a rapidly growing number of cases of COVID-19 being detected in Jefferson County, issued an order suspending certain public gatherings in that county; and WHEREAS on March 17, 2020, the State Health Officer issued a similar order for counties surrounding Jefferson, including Blount, St. Clair, Shelby, Tuscaloosa, and Walker Counties, and WHEREAS on March 19, 2020, the State Health Officer issued an order, and on March 20, 2020, March 27, 2020, April 3, 2020, and April 28, 2020, amended orders, of statewide application suspending certain public gatherings; and WHEREAS social-distancing and related measures remain necessary on a statewide basis to prevent the spread of COVID-19; and WHEREAS Ala. Code § 22-2-2(4) authorizes the State Health Officer, on behalf of the State Board of Health, to direct that conditions prejudicial to health in public places within the State be abated; NOW THEREFORE, THESE PREMISES CONSIDERED, it is ordered that the following Safer at Home order be implemented statewide:
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1. Recommendations for individuals. Effective April 30, 2020, at 5:00 P.M., all individuals—and especially vulnerable persons—are encouraged to exercise personal responsibility in slowing the spread of COVID-19 by:
a. Minimizing travel outside the home, especially if sick;
b. Wearing face coverings around people from other households when it is necessary to leave the home;
c. Washing hands frequently with soap and water or hand sanitizer, especially after touching frequently used items or surfaces;
d. Refraining from touching one’s face;
e. Sneezing or coughing into a tissue, or the inside of one’s elbow; and
f. Disinfecting frequently used items and surfaces as much as possible.
“Vulnerable persons” means individuals 65 years and older or individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those whose immune system is compromised such as by chemotherapy for cancer and other conditions requiring such therapy.
2. Quarantine for infected persons. Effective immediately, any person who has tested positive for COVID-19—other than institutionalized persons—shall be quarantined to their place of residence for a period of 14 days, or other period of time as directed by the State Health Officer, or his designee, after receiving positive test results. Any person quarantined pursuant to this provision shall not leave their place of residence for any reason other than to seek necessary medical treatment. Any person requiring assistance while under quarantine may contact Alabama Voluntary Organizations Active in Disaster, http://alvoad.communityos.org/cms. While under quarantine, the person shall take precautions as directed by his or her health care provider or the Alabama Department of Public Health to prevent the spread of the disease to others.
3. Non-work related gatherings. Effective May 11, 2020, all non-work related gatherings of any size that cannot maintain a consistent six-foot distance between persons from different households are prohibited.
Organizers of religious gatherings are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Places of Worship,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-worship.pdf.
4. Protections for employees. Effective May 11, 2020, and unless otherwise permitted or required by this order, all employers shall take reasonable steps, where practicable as work duties permit, to protect their employees by:
a. maintaining six feet of separation between employees;
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b. regularly disinfecting frequently used items and surfaces;
c. encouraging handwashing;
d. preventing employees who are sick from coming into contact with other persons;
e. facilitating remote working arrangements; and
f. minimizing employee travel.
In addition to complying with the requirements of this paragraph, employers are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Safeguarding All Businesses,” available at https://alabamapublichealth.gov/covid19/assets/covsah-businesses.pdf.
5. Protections for customers, etc. Effective May 11, 2020, and unless otherwise permitted or required by this order, the operator of any business, government office, or other establishment open to the public shall take reasonable steps, where practicable, to protect their customers, constituents, or other guests by:
a. maintaining six feet of separation between such persons (except for those persons who share the same household); and
b. regularly disinfecting frequently used items and surfaces.
6. Retailers. Effective May 11, 2020, all retail stores shall comply with the following rules:
a. Emergency maximum occupancy rate. Occupancy shall be limited to no more than 50 percent of the normal occupancy load as determined by the fire marshal. This “emergency maximum occupancy rate” shall be posted in a conspicuous place, and enough staff shall be posted at the store entrances and exits to enforce this requirement.
b. Social distancing. An employee of the retail store may not knowingly allow customers or patrons to congregate within six feet of a person from another household.
c. Sanitation. The retail store shall take reasonable steps to comply with guidelines on sanitation from the Centers for Disease Control and Prevention (CDC) and the Alabama Department of Public Health.
7. Close-contact service providers. Effective May 11, 2020, close-contact service providers—such as barber shops, hair salons, waxing salons, threading salons, nail salons and spas, body art facilities, tattoo services, and massage therapy establishments and services—shall comply with the following rules:
a. Social distancing. Employees shall not knowingly allow clients or persons accompanying a client to congregate within six feet of a person from another household.
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Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 5 of 9
b. Facial coverings. Each employee shall wear a mask, or other facial covering that covers his or her nostrils and mouth, at all times while providing services within 6 feet of a client.
c. Hand sanitation.
(i) Employees shall wash their hands thoroughly with soap and water immediately before providing services within 6 feet of a client.
(ii) Employees of all close-contact service providers are encouraged—and employees providing nail services or facial services are required—to wear gloves when providing services within 6 feet of a client. To the extent employees wear gloves when providing services, they should use a new pair of gloves for each client and should put them on immediately after washing their hands.
In addition to complying with the requirements of this paragraph, close-contact service providers are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Close Contact Personal Service Businesses,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-close-contact.pdf.
8. Athletic facilities. Effective May 11, 2020, athletic facilities—such as fitness centers and commercial gyms, spas, and yoga, barre, and spin facilities—shall comply with the following rules:
a. Social distancing.
(i) Employees shall not knowingly allow patrons or guests to congregate within six feet of a person from another household.
(ii) Employees shall not knowingly allow patrons or guests to participate in any of the athletic activities prohibited in paragraph 9—including sports that involve interaction with another person of closer than 6 feet and activities that require use of shared sporting apparatus and equipment.
(iii) Employees must take reasonable steps to prevent people from congregating in lobby areas, break rooms, and other common areas.
b. Limits on facility access. An athletic facility must limit facility occupancy to 50 percent of the normal occupancy load as determined by the fire marshal. Athletic facilities must also prohibit patrons and guests from accessing showers, hot tubs, steam rooms, lockers, saunas and other recreational water or spa facilities. Pools may be open subject to the social-distancing rules of this paragraph.
c. Facial coverings. Each employee shall wear a mask or other facial covering that covers his or her nostrils and mouth at all times while in regular interaction with clients or guests.
4

Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 6 of 9
In addition to complying with the requirements of this paragraph, operators of athletic facilities are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Athletic Facilities,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-athletic-facilities.pdf.
9. Higher-risk businesses and activities. Effective May 11, 2020, and notwithstanding any other provision of this order, the following businesses, venues, and activities shall not take place or be closed to spectators, audience members, or members of the public to which these businesses, venues, and activities are normally open:
a. Entertainment venues as follows: (i) Night clubs (ii) Bowling alleys
(iii) Arcades (iv) Concert venues (v) Theaters, auditoriums, and performing arts centers (vi) Tourist attractions (including museums and planetariums) (vii) Racetracks (viii) Indoor children’s play areas (ix) Adult entertainment venues (x) Casinos (xi) Bingo halls (xii) Venues operated by social clubs b. Athletic activities as follows:
(i) Sports that involve interaction with another person of closer than 6 feet (ii) Activities that require use of shared sporting apparatus and equipment (iii) Activities on commercial or public playground equipment 10. Beaches. Effective May 11, 2020, anyone using the beaches must maintain a consistent six-foot distance between himself or herself and all persons from a different household. For purposes of this section, the term “beach” means the sandy shoreline area abutting the Gulf of Mexico, whether privately or publicly owned, including beach access points.
5

Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 7 of 9
11. Senior Citizen Centers. Effective March 20, 2020, all regular programs at Senior Citizen Centers shall be ended except that Senior Citizen Centers and their partners are urged to assure that their clients continue to receive needed meals via curbside pick-up or delivery.
12. Educational institutions and child day care facilities. Effective March 20, 2020, the following shall be closed:
a. In-person instruction or classes at all schools, public and private, including but not limited to: elementary, secondary, postsecondary, technical, or specialty schools, and colleges and universities.
(i) This order is not intended to prevent any employers from making continued necessary staffing decisions. Employers are authorized to advise employees to work from home or maintain flexible work schedules. If working from home is not feasible, the employee should practice social distancing, maintaining consistent six-foot distance between persons, for the duration of this order and follow public health guidelines.
(ii) This order shall not apply to daytime special activities programs provided by local boards of education for children, ages 6 through 12 as of March 13, 2020, of first responders (including EMS and fire services) and licensed health-care providers and their essential employees; and essential employees of the following categories of employers: state and local governments, law enforcement, hospitals, nursing home/long-term care facilities, (including assisted living and specialty-care assisted living facilities), end-stage renal disease treatment centers, pharmacies, and grocery stores. In these special activities programs, 12 or more children shall not be allowed in any one room at the same time, and operators of these programs are encouraged to use enhanced sanitation practices consistent with guidance from the CDC and the Alabama Department of Public Health.
b. Facilities providing child day care, including any child day care facility described in Ala. Code § 38-7-2, at which 12 or more children are in a room or other enclosed space at the same time. Center employees are encouraged to use enhanced sanitation and socialdistancing practices consistent with guidance from the CDC and the Alabama Department of Public Health. This Order does not change the Minimum Standards for Day Care promulgated by the Alabama Department of Human Resources, except that 12 or more children shall not be allowed in a room or other enclosed space at the same time.
13. Hospitals and similar institutions. Effective March 20, 2020, all Hospitals and Nursing Home/Long Term Care Facilities (including Assisted Living and Specialty Care Assisted Living Facilities) shall prohibit visitation of all visitors, as defined by the facility, and non-essential health care personnel, except for certain compassionate care situations such as maternity, end-of-life, and support for persons with disabilities.
14. Medical procedures. Effective April 30, 2020, at 5:00 P.M., dental, medical, or surgical procedures may proceed unless the State Health Officer or his designee determines that
6

Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 8 of 9
performing such procedures, or any category of them (whether statewide or regionally), would unacceptably reduce access to personal protective equipment or other resources necessary to diagnose and treat COVID-19. Providers performing these procedures shall follow all applicable COVID-19-related rules adopted by a state regulatory board or by the Alabama Department of Public Health. In the absence of such rules, providers should take reasonable steps to comply with applicable COVID-19-related guidelines from the Centers for Medicare and Medicaid Services (CMS) and the CDC, including “Re-opening Facilities to Provide Non-emergent NonCOVID-19 Healthcare: Phase I” from CMS, available at https://www.cms.gov/files/document/covid-flexibility-reopen-essential-non-covid-services.pdf, and “Infection Control Guidance for Healthcare Professionals about Coronavirus (COVID-19)” from the CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/infectioncontrol.html.
15. Restaurants and similar establishments. Effective May 11, 2020, all restaurants, bars, breweries, or similar establishments shall operate as follows:
a. Such establishments may continue to offer food for take-out or delivery provided the social distancing protocols, including maintaining a consistent six-foot distance between persons, are followed.
b. Such establishments are strongly encouraged to offer online ordering and curbside pickup of food.
c. Hospital food service areas are excluded from this order provided they have their own social distancing plan.
d. Insofar as such establishments offer on-premises consumption of food or drink, they must limit the party size at tables to no more than eight persons and maintain at least six feet of separation between people seated at different tables, booths, chairs, or stools.
e. Each employee shall wear a mask or other facial covering that covers his or her nostrils and mouth at all times while in regular interaction with patrons or guests.
f. Such establishments must disallow self-service by guests at drink stations, buffets, or salad bars.
In addition to complying with the requirements of this paragraph, establishments subject to this paragraph are strongly encouraged to read and implement the Alabama Department of Public Health’s “Guidelines for Restaurants and Bars,” available at https://alabamapublichealth.gov/covid19/assets/cov-sah-restaurants-bars.pdf.
16. Duration. This Order shall remain in full force and effect until 5:00 P.M. on May 22, 2020. Prior to 5:00 P.M. on May 22, 2020, a determination shall be made whether to extend this Order—or, if circumstances permit, to relax this Order.
7

Case 2:20-cv-00619-AKK Document 16-21 Filed 05/13/20 Page 9 of 9
17. Preemption. To the extent this Order conflicts with any order previously issued by the State Health Officer concerning COVID-19 mitigation measures, this Order supersedes and preempts the conflicting provisions of the previously issued order effective on the dates specified above. This Order also supersedes and preempts all orders previously issued by the Jefferson and Mobile County Health Officers concerning COVID-19 mitigation measures, and this Order shall remain in full force and effect until rescinded or modified by order of the State Health Officer or its expiration. After the date this order is issued, the Jefferson and Mobile County Health Officers are authorized, after approval by the State Health Officer, to implement more stringent measures as local circumstances require.
This Order also supersedes and preempts any county and municipal orders or ordinances, whenever adopted, that purport to impose less stringent COVID-19-related curfew or quarantine measures.
Done on this 8th day of May, 2020.
_________________________ Scott Harris, M.D., M.P.H. State Health Officer
8

Case 2:20-cv-00619-AKK Document 16-22 Filed 05/13/20 Page 1 of 14

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 21

5/12/2020

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 

COVID-19 STATE NATIONAL OPINION PODCAST THE V NEWS
COURTS
Gov. Kay Ivey extends public health emergency, issues COVID-19 lawsuit protections
Published 4 days ago on May 8, 2020
By Eddie Burkhalter 



Gov. Kay Ivey on Friday extended the formal “public health emergency” for 60 days, begi

May 13.

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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 

Case 2:20-cv-0G0o6v1. K9a-yAIvKeyKexteDndoscpuubmlicehenatlth1e6m-e2r2gencFy,iilsesudes0C5O/V1I3D-/1290lawsPuiat pgroete3ctioonfs 14 Ivey also issued another proclamation that provides liability protection for businesses and h care providers from being sued over COVID-19 matters if those businesses and health providers “comply with or reasonably attempt to comply with applicable public health guidan



Ivey’s order also states that the emergency liability protections would cover businesses

health care providers unless they show “wanton, reckless, willful or intentional misconduct.”

“I want to do everything within my authority to protect businesses as Alabama’s economy ge and running again,” Ivey said in a statement. “As we resume operations, the very last th business owner needs to worry about is a frivolous lawsuit from responding to COVID-19. Le be clear, this in no way shields them from serious misconduct. If someone knowingly abuse public during a time of crisis, they should be held accountable and prosecuted as such.”

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Ivey is to hold a press conference at 11 a.m. to discuss possible changes to her “safer-at-h order. The new proclamations issued Friday morning are separate from the state’s public h orders.

The existence of the states of emergency simply allows the governor to take extraordinary to deal with an emergency situation.
Eighth proclamation summary:
The order provides safe harbor to health care providers, businesses, and other entiti encourage “reopening our state.”
The order protects health care providers from a frivolous lawsuit based on actions they to failed to take as a result of the COVID-19 pandemic.
The order protects businesses from frivolous lawsuits when they conduct COVID-19 testi distribute PPE to help protect people from COVID-19.
The order “in no way shields these groups from claims of egregious misconduct. Claims bas egregious misconduct would be allowed to proceed,” according to the governor’s of ce.

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Ninth proclamation summary:
One provision allows for probate judges to improve procedures for administering the Ju primary runoff election.
Probate judges would be allowed to reduce the number of poll workers, if necessary. They w also be allowed to conduct poll-worker training remotely.
Another provision “cuts red tape for electric co-ops seeking to obtain emergency loans.” Th “help ensure that electrical cops are still able to provide electricity to their members durin public health emergency.”
A nal provision will extend the formal “public health emergency” for 60 days, beginning May 1

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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UP NEXT
Alabama restaurants, bars, salons can begin opening Monday, governor says

Eddie Burkhalter



https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

4/13

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Eddie Burkhalter is a reporter at the Alabama Political Reporter. You can email him at eburkhalter@alreporter.co reach him via Twitter.

COURTS
Appeals court refuses to lift injunction prohibiting Alabama from banning abortion
Published 3 weeks ago on April 24, 2020
By Chip Brownlee 

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

5/13

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A federal appeals court Thursday refused to lift a preliminary injunction prohibiting Alabama from banning abortions during the COVID-19 epidemic.
The 11th Circuit Court of Appeals on Thursday issued a ruling that denied the state of Alabama’s request to stay a preliminary injunction issued by federal district court Judge Myron Thompson.

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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The decision ensures that the injunction prohibiting the state from banning abortions as part of

its COVID-19 response will remain in effect throughout the appeal. Abortion care will continue

to be available.

“Today, the court refused to allow Alabama to use the COVID-19 crisis as a pretext to prevent patients from accessing abortion care,” said Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project. “This is a critical victory that recognizes that government response to the pandemic must be grounCdOeNdTIiNnUpEuRbElAicDhINeGalth, not politics.”

CORRUPTION
Will Mike Hubbard ever go to jail? Yes. And likely soon.
Published 4 weeks ago on April 14, 2020
By Josh Moon 

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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Mike Hubbard is likely going to prison within the next couple of months.
Hubbard, the former Alabama House speaker, had his conviction on 11 felony ethics counts partially upheld last week by the Alabama Supreme Court. The justices overturned ve of the charges and sent them back to the Alabama Criminal Court of Appeals for review, but upheld six of his charges.

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And those six matter a lot.

Under the original sentence imposed by Lee County Circuit Court Judge Jacob Walker, Hubbard was set to serve four years in prison and eight years of probation. That sentence was structured in a manner that all but assured that Hubbard would serve that time unless the entire verdict against him was overturned.

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COURTS
DOJ makes $14 million available to public safety agencies to respond to COVID-19
Published 1 month ago on April 3, 2020
By Brandon Moseley 

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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Thursday, U.S. Attorney Jay E. Town announced that the Department of Justice is making $850 million available to help public safety agencies respond to the challenges posed by the outbreak of COVID-19, which has already killed over 6,000 Americans, including 32 Alabamians.
The Coronavirus Emergency Supplemental Funding program was authorized in the recent stimulus legislation signed by President Donald J. Trump (R). The program will allow eligible

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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state, local and tribal governments to apply immediately for these critical funds. The department

is moving quickly to make awards, with the goal of having funds available for drawdown within

days of the award.

“Law enforcement are – and always have been very best among us. They continue to solidify that

fact during this pandemic,” Town said. “It is important that our state and local partners have the

resources they need to ensure public safety during this time. These additional resources will

allow that to continue.”

CONTINUE READING

COURTS
House committee passes bill cutting out appeals court in death penalty cases
Published 2 months ago on March 13, 2020
By Brandon Moseley 

https://www.alreporter.com/2020/05/08/gov-kay-ivey-extends-public-health-emergency-issues-covid-19-lawsuit-protections/

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Wednesday, the House Judiciary Committee advanced a bill preventing prisoners convicted to death from appealing their case to the Alabama Court of Criminal Appeals.
House Bill 275 was sponsored by State Representative Connie Rowe, R-Jasper.
“This bill was brought to me by the Lt Governor,” Will Ainsworth (R).

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Rep. Jim Hill, R-Odenville, chairs the House Judiciary Committee.

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The bill, as amended “Removes the Court of Criminal Appeals from the process of appealing a
CONTINUE READING
death penalty case,” Chairman Hill said.

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Case 2:20-cv-00619-AKK Document 16-23 Filed 05/13/20 Page 1 of 6

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 22

Case 2:20-cv-00619-AKK Document 16-23 Filed 05/13/20 Page 2 of 6

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Handful of Alabama counties still seeing coronavirus cases rise over last 14 days
Updated Apr 30, 2020; Posted Apr 30, 2020

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By Ramsey Archibald | rarchibald@al.com
After several weeks of shutdown, Alabama is set to begin the process of reopening. But unlike some of its neighbors, the state isn’t fully reopening yet. Alabama has met only two of three criteria for reopening set by the White House: A decrease in patients reporting symptoms of COVID-19 and adequate hospital capacity.
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It’s fallen short of the third - a 14-day decrease in confirmed cases - and some parts of the state are farther than others from reaching that goal.
Related: Coronavirus cases still rising in pockets across rural Alabama
Mobile County, which crossed the 1,000 confirmed case mark on Wednesday, has added Privacy - Terms
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Case 2:20-cv-00619-AKK Document 16-23 Filed 05/13/20 Page 3 of 6 the most new cases over the last two weeks, highlighting a disparity in where new cases of the virus are popping up across Alabama. Mobile County added 447 cases between April 15 and Wednesday morning - that’s more than the total case count in all but one of Alabama’s 67 counties. Jefferson County, the most populous in the state, had 862 cases as of 11 a.m. Wednesday.
New coronavirus cases since April 15
+ –
Map: Ramsey Archibald • Source: Alabama Department of Public Health • Get the data • Created with Datawrapper
[Can’t see the map? Click here.] Jefferson added the second most new cases over the last two weeks with 234, and Marshall County, in northeast Alabama, added 206 cases. Marshall, Jefferson and Mobile were the only counties to add more than 200 cases over that timespan. Tallapoosa County, which has been part of an east Alabama hotspot that includes Chambers and Lee counties, added 130 cases, the fourth most in the last two weeks. Montgomery, home of the state capital and the fourth largest county in the state, added 119. It’s the last of the five counties to add more than 100 cases.
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Case 2:20-cv-00619-AKK Document 16-23 Filed 05/13/20 Page 4 of 6
Those five counties account for roughly 45 percent of all new coronavirus cases in Alabama in the last two weeks.
Many parts of Alabama, including some of the state’s most populous counties, have begun to slow the rate of new cases. Madison County, home of Huntsville, added just 28 confirmed cases in the last two weeks. Only 12.6 percent of Madison’s 222 cases were confirmed in that time span. Limestone County, part of the Huntsville metro, added just 6 cases in the last 14 days. Chambers County, which at one point was experiencing the state’s worst outbreak, added 64 new cases in two weeks. Roughly 22 percent of its 291 cases are new, the seventh lowest mark of any county.
New coronavirus cases as percent of total cases
New cases are within last 14 days
+ –

Map: Ramsey Archibald • Source: Alabama Department of Public Health • Get the data • Created with Datawrapper

[Can’t see the map? Click here.]

In Mobile, nearly 45 percent of total cases are less than two weeks old. That’s by far the highest percentage of new cases for any of Alabama’s large, urban areas.

In more rural Marshall County, 206 new cases represents more than 65 percent of its total case count. A handful of other small counties had a higher percentage spike in

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Case 2:20-cv-00619-AKK Document 16-23 Filed 05/13/20 Page 5 of 6 recent weeks, led by Butler County in southeast Alabama, where 76 percent of all cases came in the last two weeks. That 76 percent represents just 35 cases, though, in a small county. None of the rural counties above Marshall on that list had a large total number of cases. For a look at the rate of change within all Alabama counties, click here.
Do you have an idea for a data story about Alabama? Email Ramsey Archibald at rarchibald@al.com, and follow him on Twitter @RamseyArchibald. Read more Alabama data stories here.
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Case 2:20-cv-00619-AKK Document 16-24 Filed 05/13/20 Page 1 of 5

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 23

Case 2:20-cv-00619-AKK Document 16-24 Filed 05/13/20 Page 2 of 5

Characteristics of COVID-19 Patients‒Mobile County, Alabama, 2020
Updated May 11, 2020

This summary describes data on COVID-19 patients available in the Alabama Department of Public Health surveillance system (ALNBS) at 8:00 am on 05/11/2020. Investigations of patients reported in recent days are ongoing and may be incomplete.

Table 1. Characteristics of Patients with COVID-19 Disease‒Mobile County, Alabama, May 11,

2020

Number (%)

COVID-19 Disease

1,478 (100.0)

Hospitalized

186 (12.6)

Died from COVID-19

85 (5.8)

Age

0-4

10 (0.7)

5-24

143 (9.7)

25-49

530 (35.9)

50-64

388 (26.3)

65+

386 (26.1)

Unknown

21 (1.4)

Sex

Female

888 (60.1)

Male

584 (39.5)

Unknown

6 (0.4)

Race

African American

653 (44.2)

Asian

6 (0.4)

White

413 (27.9)

Other/Unknown

406 (27.5)

Zip Code

36582

52 (3.5)

36605

145 (9.8)

36608

115 (7.8)

36609

79 (5.3)

36695

118 (8.0)

Other 365

247 (16.7)

Other 366

652 (44.1)

Unknown

70 (4.7)

Other Characteristics

Healthcare Workers

221 (15.0)

Employees of a LTCF*

123 (8.3)

Residents of a LTCF*

232 (15.7)

Recovered

278 (18.8)

*Long-term Care Facility

This report was generated by the Mobile County Health Department. All data are preliminary and subject to change as we continue to investigate reports of COVID-19 disease in Mobile County residents.

Case 2:20-cv-00619-AKK Document 16-24 Filed 05/13/20 Page 3 of 5

Table 2. Severe Outcomes among Patients with COVID-19 Disease‒Mobile County, Alabama May 11, 2020.

Hospitalized
Age 0-4 5-24 25-49 50-64 65+ Unknown
Sex Female Male Unknown
Race African American White Other/Unknown
Other Characteristics Intensive Care Mechanical Ventilation

Number 186
0 1 20 51 109 5
98 88
0
110 63 13
79 45

(%) (100.0)
(0.0) (0.5) (10.8) (27.4) (58.6) (2.7)
(52.7) (47.3) (0.0)
(59.1) (33.9) (7.0)
(42.5) (24.2)

Died
Age 0-4 5-24 25-49 50-64 65+ Unknown
Sex Female Male Unknown
Race African American White Other/Unknown
Other Characteristics Hospitalized Underlying Conditions Former LTCF resident Former LTCF employee

Number (%) 85 (100.0)
0 (0.0) 0 (0.0) 1 (1.2) 19 (22.4) 64 (75.3) 1 (1.2)
39 (45.9) 46 (54.1)
0 (0.0)
45 (52.9) 34 (40.0)
6 (7.1)
74 (87.1) 80 (94.1) 40 (47.1)
2 (2.4)

This report was generated by the Mobile County Health Department. All data are preliminary and subject to change as we continue to investigate reports of COVID-19 disease in Mobile County residents.

Case 2:20-cv-00619-AKK Document 16-24 Filed 05/13/20 Page 4 of 5 Figure 1. Number of Patients with COVID-19 Disease, by Report Date‒Mobile County, Alabama, May 11, 2020
Figure 2. Number of Patients with COVID-19 Disease, by Event Date‒Mobile County, Alabama, May 11, 2020.
Note: Due to a large number of asymptomatic infections or investigations missing “Illness Onset Date”, we are now charting COVID-19 cases by the date closest to their first COVID event (illness onset, lab specimen collection, reported to public health, etc).
This report was generated by the Mobile County Health Department. All data are preliminary and subject to change as we continue to investigate reports of COVID-19 disease in Mobile County residents.

Case 2:20-cv-00619-AKK Document 16-24 Filed 05/13/20 Page 5 of 5 Figure 3. Residence Zip Code of Patients with COVID-19 Disease‒Mobile County, Alabama, May 11, 2020 Zip code was known for 1,452 patients with COVID-19 disease. The relative density of cases by zip code ranges from <25 (light blue) to ≥100 (dark blue).
This report was generated by the Mobile County Health Department. All data are preliminary and subject to change as we continue to investigate reports of COVID-19 disease in Mobile County residents.

Case 2:20-cv-00619-AKK Document 16-25 Filed 05/13/20 Page 1 of 3

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 24

5/10/2020

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State Health Officer
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Safeguard Your Overall Health in the COVID-19 Pandemic
Coronavirus disease, (COVID-19), is a major stressor as Alabama experiences a true state of emergency and one whose end is not yet in sight. No one was fully prepared for the current outbreak which has infected more than 1 million people in our country alone. Everyone’s routines have been changed and many are facing significant financial and other pressures like never before. This time of social distancing finds people may be more vulnerable to emotional and physical illness.

While fear and anxiety about this deadly virus can be overwhelming, experience shows there are ways to cope. The Centers for Disease Control and Prevention (CDC) suggests the following:

Take breaks from watching, reading, or listening to news stories, including social media. Hearing about the pandemic repeatedly can be upsetting. Take care of your body. -- Take deep breaths, stretch, or meditate. -- Eat healthy, well-balanced meals. -- Exercise regularly, get plenty of sleep. -- Avoid alcohol and drugs. Make time to unwind. Try to do some other activities you enjoy. Connect with others. Talk with people you trust about your concerns and how you are feeling.
Taking care of yourself should also involve making proactive steps to safeguard your physical health. Now that Alabama’s stay at home orders have been modified, there are many positive actions that you can take for better health. Preventive care for conditions such as hypertension should not be overlooked. Medical appointments can be kept and elective surgeries that had to be postponed can be rescheduled. Healthcare providers are acutely aware of the risks posed by COVID-19 and know to strictly adhere to infection control measures to protect everyone’s health and safety. Telehealth remains an option for many specialties while you try to stay at home.

Prenatal care is vital as Alabama continues to face an urgent maternal and infant health crisis along with the pandemic. While it is not known whether pregnant women have a greater chance of becoming sick with COVID-19, at this time it appears pregnant women seem to have risks equal to other adults who are not pregnant. Be sure to contact your health care provider to receive recommendations on getting the care you need while preventing the spread of disease, perhaps through telemedicine.

Alabama pediatricians and public health providers recently cautioned that we must maintain high rates of childhood vaccination by adhering to a schedule of vaccinations at recommended intervals. As an example of the need, measles is highly contagious and can be a serious illness in all age groups, especially in preschoolers and adults. One of four people with measles will be hospitalized; a few will get encephalitis and may die. This is especially tragic since measles is largely preventable (more than 97 percent) with vaccination.

www.alabamapublichealth.gov/news/sho-message.html

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5/10/2020

Case 2:20-cv-00619-SAtaKteKHealDth oOcffiucemr | eAlnabta1m6a-D2e5partmFeinlet odf P0u5bl/ic1H3e/a2lt0h (ADPPaHg) e 3 of 3

Our department’s vision continues to be healthy people, healthy communities, healthy Alabama. Everyone needs to take

precautions to prevent COVID-19, but there is no need to panic. We expect recommendations and treatments for this deadly virus will continue to advance. More is being learned each day, so I hope you stay motivated to gain knowledge and continue to consistently follow the practices that will prevent the spread of the disease in your home, community, and state.

Scott Harris, M.D. State Health Officer

(May 2020)

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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 1 of 7

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 25

Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 2 of 7

Alabama records 300+ new COVID-19 cases for first time since April 12

alreporter.com/2020/05/02/alabama-records-300-new-covid-19-cases-in-a-day-for-first-time-since-april-12/

By Chip Brownlee

May 2, 2020

The Alabama Department of Public Health reported more than 300 new COVID-19 cases Saturday — the first day since April 12 when more than 300 new cases were reported in a single day.

As of Saturday at 6:30 p.m., at least 7,611 people have tested positive for the virus, an increase of 317 since Friday. At least 288 people have died from COVID-19 and more than 1,000 have been hospitalized.

Mapping COVID-19 in Alabama We're tracking the latest numbers and trends here. Saturday’s increase of 317 is the most since April 12, when 321 new cases were reported. The single largest daily increase was on April 9, when 339 new cases were reported, according to APR‘s analysis of the Department of Public Health’s data.

Cut-off times for reporting new positive cases could have contributed to part of Saturday’s large increase, but a seven-day average of new cases also shows a rising number of new reported cases over the last three days. Until Friday, the seven-day average of new reported cases fell.

The total number of people tested in Alabama has also risen in the past week, from 71,344 on April 25 to 98,716 on Saturday. Still, only 2 percent of the state’s population has been tested.

On average, about 80 people per 100,000 are being tested per day, according to APR‘s analysis of the state’s reported totals.

Advertisement Over the past week, Alabama has recorded 1,398 new cases of the virus.

Mobile County has recorded the most new cases, reporting 284 new cases over the last week, including 73 on Saturday. The number of new confirmed cases reported Saturday in Mobile County is the second-most since the outbreak began in mid-March. The county’s largest daily increase was on April 9, when it recorded 80 new cases.

More than 1,172 cases in total have been reported in Mobile County.
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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 3 of 7
The COVID-19 death toll among Alabama long-term care facility residents has jumped to 183, according to the Alabama Department of Public Health, up from 107 fatalities from the virus just a week ago.
The 183 reported deaths among long-term care facility residents account for nearly 43 percent of the state’s 429 COVID-19 deaths, as of Tuesday, May 12.
Long-term care facilities include both nursing homes and assisted-living facilities. It’s not clear how many of the deaths are linked to nursing homes and how many are linked to assisted-living facilities.
The number of deaths has not been regularly released by the Alabama Department of Public Health, but it comes as several nursing homes in the state have experienced serious outbreaks — including facilities in Mobile, Alexander City and Hoover.
On Tuesday, the Alabama Department of Veterans Affairs said that at least 23 residents of the Bill Nichols state veterans home in Alexander City have died from the virus. More than 130 residents and employees at the veterans home in Tallapoosa County have tested positive.
In Mobile, at least 20 residents and three employees have died from COVID-19 at Crowne Health Care of Mobile. More than 115 cases of the virus have been confirmed at the nursing home.
Across the state, more than 1,046 long-term care residents have tested positive for the virus, and 667 long-term care facility employees have tested positive.
The Alabama Department of Public Health did not say how many long-term care facility employees have died from the virus.
Advertisement More than 100 cases of COVID-19 have been confirmed at an East Alabama veterans home among residents and staff, and nearly two dozen residents have died from the virus since early April, the Alabama Department of Veterans Affairs said Tuesday.
At least 91 residents have tested positive for the virus at the Bill Nichols State Veterans Home in Alexander City, Alabama, in Tallapoosa County, a department spokesperson said in an email.
At least 41 residents remain ill with the virus, and 23 have died.
Forty-one employees at the state-run veterans home have tested positive. Twelve of those have recovered and are back on staff, the department said.
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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 4 of 7
Three employees have also tested positive at the William F. Green State Veterans Home in Bay Minette.
The department, in the statement, said there are currently no reports of residents testing positive at other state veterans homes in Bay Minette, Huntsville and Pell City.
In an email to APR, Horton said the Nichols veterans home saw its cases increase when the home was able to test all residents beginning on April 18, “which allowed the home to identify those residents who were asymptomatic.”
State Veterans Affairs Commissioner Kent Davis is now “advocating for universal testing of residents at all state veterans homes,” Horton said.
Advertisement Senior living facilities, nursing homes and long-term care facilities have been hit especially hard by COVID-19, which is far more deadly for those who are older and those who have underlying medical conditions. Early on, testing supply shortages made it difficult to test residents at long-term care facilities.
Horton said state veterans homes began screening all employees before they entered facilities on March 10. By March 12, veterans homes began restricting visitations to staff, necessary medical personnel and immediate families of residents who faced end-of-life situations.
The first employee tested positive for COVID-19 at Bill Nichols on March 30, and the employee was not allowed to enter the home. At the time, CDC guidelines called for residents of long-term care facilities to be tested only if they exhibited symptoms. By April 3, the first resident showed symptoms, and by April 8, the first resident had tested positive for the virus.
“At the request of ADVA Commissioner Kent Davis, two independent reviews by the U.S. Department of Veterans Affairs, April 20, and the Alabama Department of Public Health, April 21, show that the home has followed all VA, CDC, and state health guidelines for the use personal protective equipment and other preventive measures,” the state VA said in a statement to APR.
Across the state, more than 1,046 long-term care residents have tested positive for the virus, and 667 long-term care facility employees have tested positive.
As of May 4, at least 107 long-term care facility residents had died, which accounted for about 36 percent of the state’s deaths at the time. By Tuesday, the number of deaths among Alabama long-term care facility residents increased to 183, according to the Alabama Department of Public Health.
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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 5 of 7
The state’s nursing home association has called for more testing of residents and staff for months, including testing for those who are asymptomatic. “It’s getting better, but we’re still not where we want to be,” a spokesperson for the association said last week. “I’m not casting any blame on the Alabama Department of Public Health. They’ve worked with us hand-in-hand. But when there’s just not enough tests available, there are not enough tests available.” Across the country, nursing homes and long-term care facilities, including veterans homes, have been devastated by the virus. In New Jersey, half of the state’s COVID-19 fatalities have been linked to nursing homes. At a state veterans’ home in New Jersey, at least 74 deaths have been linked to the virus. “Residents who test positive for the virus are moved to isolation areas inside the homes for further care and treatment,” the department’s statement said. “Employees who exhibit symptoms of the virus are prohibited entry into the facilities. The ADVA and HMR are working closely with the Alabama Department of Public Health, CDC, and the U.S. Department of Veterans Affairs, on all reported positive cases.” At least six inmates and four employees at a federal prison in West Alabama have tested positive for COVID-19. According to the Federal Bureau of Prisons, at least 12 cases have been identified in federal correctional facilities in Alabama, ten of them at Federal Correctional Institution Aliceville, a low-security women’s prison in southern Pickens County. FCI Aliceville houses 1,395 total inmates. At least three other inmates have recovered after testing positive and three staff have recovered at FCI Aliceville, according to the bureau. At least 1 inmate at Keeton Corrections Inc. in Birmingham has also tested positive. One staff member at FPC Montgomery has tested positive. Five staff members who previously tested positive for the virus at Talladega Federal Correctional Institution have since recovered.
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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 6 of 7
There are 3379 federal inmates and 250 federal prison staff who have confirmed positive test results for COVID-19 nationwide. As of Monday, 656 inmates and 279 staff have recovered. At least 49 federal inmates have died. The bureau said that it has begun additional testing of asymptomatic inmates to assist in slowing transmissions within a correctional setting. It is unclear if asymptomatic inmates at federal prisons in Alabama are being tested and how many federal inmates have been tested in Alabama. Advertisement In Alabama’s state prison system, at least 9 inmates have tested positive, and three have recovered. At least one inmate has died from COVID-19, according to the Alabama Department of Corrections. Only 116 out of approximately 22,000 inmates in Alabama state prisons have been tested. Sen. Doug Jones, D-Alabama, is advocating for a plan to give small businesses another round of help in paying employees by using the services of payroll processors. The plan to help aid small businesses was featured in The New York Times Monday. Several lawmakers have become frustrated with banks delivering aid to businesses during the coronavirus economic crisis and have begun exploring ways to sidestep the banks to deliver aid. One of these proposals is using Internal Revenue Service records and payroll processing companies, as well as the Federal Reserve, to help distribute money more swiftly. Jones is advocating for using the processors, which already distribute wages for close to 40 percent of U.S. businesses. And companies that don’t use payroll processors could get payouts directly from the I.R.S. “Another option makes it easier and takes a little pressure off the banks,” Jones told The New York Times. “They’ve been overwhelmed.”
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Case 2:20-cv-00619-AKK Document 16-26 Filed 05/13/20 Page 7 of 7
Jones had urged fellow lawmakers to consider using payroll companies rather than banks when the first installment of the Payroll Protection Program was taking shape.
The CARES Act included stimulus checks, a $660 billion package for small businesses and enhanced unemployment benefits. The PPP quickly ran out of money and had to be replenished last month.
Some banks withheld stimulus cash from people with overdrawn accounts and some banks’ debit cards, used to distribute unemployment benefits, didn’t work properly.
Advertisement This has frustrated some lawmakers.
Jones has joined his colleagues Sens. Mark Warner of Virginia, Bernie Sanders of Vermont and Richard Blumenthal of Connecticut in proposing a “Paycheck Security” grant program to cover the wages and benefits of employees of affected businesses and non-profits until the economic and public health crisis is resolved.
Jones has said securing wages and benefits for workers is imperative to ensure public health, too, by giving people the security they need to stay home and avoid spreading the virus.
Several publicly traded companies — notably Ruth’s Chris Steak House and the Los Angeles Lakers — were able to get PPP loans due to their close working relationships with banks while small businesses were still in the application process when the PPP ran out of money the first time.
Both the Lakers and Ruth’s Chris Steak House have since returned the money.
“We’re hoping that it’s really going to get better now that Ruth’s Chris isn’t supposed to be front and center,” said Sen. Ron Wyden, D-Oregon. “But it’s still going through a set of banking channels.”
There is some skepticism of taking the PPP from banks.
“We need to look at the programs that are out there, and tweak them to get them to work better,” said Sen. Rob Portman, R-Ohio. “I would hate to take it away from banks and try something else that we haven’t tried yet.”
Jones is seeking re-election later this year. Former Sen. Jeff Session and former Auburn head football coach Tommy Tuberville are both running for the GOP nomination in the Republican primary runoff in July.
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Case 2:20-cv-00619-AKK Document 16-27 Filed 05/13/20 Page 1 of 18

FILED
2020 May-13 AM 07:54 U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 26

5/11/2020

Case 2:20-cv-00619-AKThKe besDt Aolacbuammaecnorton1a6vi-ru2s7mapFs,ilcehadrts0a5n/d1h3is/to2r0ical dPataa ge 2 of 18