CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/29/2023 1

Holding an Election 

Before University Students Can Register 

May v. City of Montgomery 

(Myron H. Thompson, M.D. Ala. 2:07-cv-738) 

The federal action challenged the moving up of a local election, because it meant that students at a predominantly Black university 

would not be in town in time to vote. Soon after the action was 

filed, the Justice Department precleared the change. The federal 

court declined jurisdiction over state claims. 

Subject: Election dates. Topics: Student registration; section 2 

discrimination; section 5 preclearance; three-judge court; matters 

for state courts; Uniformed and Overseas Citizens Absentee Voting 

Act (UOCAVA). 

On Thursday, August 16, 2007, twelve days before a city election, a member 

of Montgomery’s city council and two mayoral candidates filed a federal action in the Middle District of Alabama complaining that the city’s moving its 

election for mayor and city council from the second Tuesday in October to 

the fourth Tuesday in August disadvantaged first-time voters at predominantly Black Alabama State University because many of them would not 

have moved to town in time to register to vote.1 The election date had been 

moved to comply with the state’s implementation of the federal Uniformed 

and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA),2

 which requires sufficient time between an election and a potential runoff for absentee 

ballots to reach overseas voters.3 The plaintiffs argued that UOCAVA did not 

apply to elections that did not include federal offices.4

The complaint alleged that the earlier election violated section 2 of the 

Voting Rights Act because it discriminated against Black voters,5 violated 

section 5 because it had not yet been precleared,6 and violated state law.7 The 

1. Complaint, May v. City of Montgomery, No. 2:07-cv-738 (M.D. Ala. Aug. 16, 2007), 

D.E. 1; May v. City of Montgomery, 504 F. Supp. 2d 1235, 1236 (M.D. Ala. 2007); see Andre 

Coe, Election Prompts Lawsuit, Montgomery Advertiser, Aug. 17, 2007. 

2. 52 U.S.C. §§ 20301–20311. See generally Robert Timothy Reagan, Overseas Voting: 

The Uniformed and Overseas Citizens Absentee Voting Act (Federal Judicial Center 2016). 

3. May, 504 F. Supp. 2d at 1236. 

4. Complaint, supra note 1, at 6. 

5. Id. at 10; see Voting Rights Act of 1965 (VRA), Pub. L. No. 89-110, § 2, 79 Stat. 437, 

437, as amended, 52 U.S.C. § 10301. 

6. Complaint, supra note 1, at 10; see VRA, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as 

amended, 52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions with a certified history of discrimination and requiring that preclearance disputes 

be heard by a three-judge district court). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

7. Complaint, supra note 1, at 11. 
Holding an Election Before University Students Can Register 

2 Federal Judicial Center 10/29/2023 

plaintiffs’ motion for a temporary restraining order, filed one day after the 

complaint was filed, discussed only section 5.8

The court assigned the case to Judge Myron H. Thompson, who notified 

the circuit’s chief judge that a section 5 claim required a three-judge district 

court.9 That same day, the circuit’s chief judge designated a three-judge court 

for the section 5 claim.10

When Judge Thompson was assigned a case that was referred to a threejudge court, it was his practice to volunteer to do the logistical legwork in the 

case.11 On August 20, he conducted a conference with the parties by telephone.12

The three-judge court held a short telephone oral argument with the parties and the Justice Department on August 22, and the Justice Department 

assured the court that the preclearance issue would be resolved promptly.13

On August 23, the earlier election was precleared, mooting the section 5 

claim, so the three-judge court was dissolved.14

Noting that the plaintiffs did not seek immediate relief on their section 2 

claim, Judge Thompson declined to exercise immediate jurisdiction over the 

state-law claim: “It should be a state judge that should enjoin or vacate a 

State’s municipal election under state law, with that judicial decision subject 

to review by state appellate judges.”15 On February 28, 2008, the parties 

agreed that the plaintiffs would dismiss their section 2 claim with prejudice 

and dismiss their state claim without prejudice.16

8. Temporary-Restraining-Order Motion, May v. City of Montgomery, No. 2:07-cv-738 

(M.D. Ala. Aug. 17, 2007), D.E. 6; see May, 504 F. Supp. 2d at 1236–37. 

9. Docket Sheet, May, No. 2:07-cv-738 (M.D. Ala. Aug. 16, 2007); Interview with Hon. 

Myron H. Thompson, June 6, 2012. 

Tim Reagan interviewed Judge Thompson for this report by telephone. 

10. Order, May, No. 2:07-cv-738 (M.D. Ala. Aug. 16, 2007), D.E. 4. 

11. Interview with Hon. Myron H. Thompson, June 6, 2012. 

12. Order, May, No. 2:07-cv-738 (M.D. Ala. Aug. 20, 2007), D.E. 13. 

13. Docket Sheet, supra note 9; Interview with Hon. Myron H. Thompson, June 6, 2012 

(noting that three-judge oral arguments are usually held in person). 

14. Order, May, No. 2:07-cv-738 (M.D. Ala. Aug. 24, 2007), D.E. 27, 2007 WL 2460607; 

May, 504 F. Supp. 2d at 1236. 

15. May, 504 F. Supp. 2d at 1237; see Transcript at 3, May, No. 2:07-cv-738 (M.D. Ala. 

Aug. 23, 2007, filed Aug. 23, 2007), D.E. 23 (informing the parties at a teleconference the day 

before Judge Thompson’s ruling how he was likely to rule). 

16. Judgment, May, No. 2:07-cv-738 (M.D. Ala. Feb. 28, 2008), D.E. 56.