Thompson v. Allen

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TREVA THOMPSON, et al., )

)

Plaintiffs, )

)

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

) [WO]

STATE OF ALBAMA, et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

Now pending before the Court are a renewed motion to dismiss, motion to dismiss

supplemental complaint, or in the alternative, motion for summary judgment (Doc. 95)

filed by the Defendants on March 15, 2018; a cross-motion for summary judgment on count

18 (Doc. 97) filed by the Plaintiffs on April 5, 2018; and a motion to strike untimely

declaration (Doc. 109) filed by the Defendants on May 22, 2018.

Upon consideration of the complaint, the supplemental complaint, the motions, and

the briefs and submissions of the parties, and for the reasons that follow, the Defendants’

renewed motion to dismiss is due to be DENIED, the motion to dismiss is due to be

GRANTED in part and DENIED in part, the motions for summary judgment are due to be

DENIED, and the motion to strike is due to be DENIED as moot.

I. FACTS and PROCEDURAL HISTORY

The individual Plaintiffs are citizens who either have been denied applications to

vote because of, or have not registered to vote due to uncertainty arising from, the Alabama

Constitution’s exclusion from voting of persons convicted of crimes of moral turpitude.

The organizational plaintiff, Greater Birmingham Ministries (“GBM”), expends resources

to help individuals with felony convictions determine if they are eligible to vote or to have

their voting rights restored.

In 1996, an amendment to the Alabama Constitution was ratified which provides

that “[n]o person convicted of a felony involving moral turpitude . . . shall be qualified to

vote until restoration of civil and political rights.” Ala. Const. art. VIII, § 177(b). This

section did not define “moral turpitude.” A separate statute, Ala. Code §15-22-36.1(a)(3),

sets out the procedure for a person to apply to the Board of Pardons and Paroles for a

Certificate of Eligibility to Register to Vote.

On September 26, 2016, the Plaintiffs filed a putative class-action complaint in this

Court challenging Alabama Constitution §177(b) and Ala. Code §15-22-36.1(a)(3).

The Defendants filed a motion to dismiss the original complaint on November 16,

2016. (Doc. 43).

House Bill 282 (“HB 282”), codified at Ala. Code § 17-3-30.1, went into effect on

August 1, 2017, and defines crimes of moral turpitude. The statute lists forty-seven crimes

tied to specific Alabama Criminal Code Sections and lists crimes “as defined by the laws

of the United States or by the laws of another state, territory, country, or other jurisdiction,

which, if committed in this state, would constitute one of the offenses listed in this

subsection.” Ala. Code § 17-3-30.1(c).

On December 26, 2017, the Court denied the Defendants’ motion to dismiss in part

and granted it in part. (Doc. 80). The Court concluded that counts asserting vagueness of

§ 177(b) were mooted by Ala. Code. § 17-3-30.1 and dismissed those counts. (Doc. 80 at

28).

With respect to counts 1 and 2, which are claims that section 177(b) of the Alabama

Constitution violates the Fourteenth and Fifteenth Amendments, this Court found as

follows:

Here, without suggesting any view on whether Plaintiffs

ultimately will be able to prove intentional discrimination and

having considered Defendants’ arguments, the court finds,

under Arlington Heights that the law’s impact, its historical

context, and the events leading up to the enactment of section

177(b) are sufficient to allege a plausibly discriminatory intent

to disenfranchise black voters.

(Doc. 80 at 14).

As to counts 11 and 12, which are claims that section 177(b) is an Ex post facto law

that retroactively punishes citizens and violates the Eighth Amendment’s proscription

against cruel and unusual punishment, this Court found as follows:

Absent developed arguments from Defendants, the court

declines to formulate the arguments, to attempt to discern the

legislature’s intent behind section177(b)’s enactment, and to

apply the multiple factors relevant to that analysis. That

analysis is better left for another stage of this lawsuit, on an

evidentiary record and on reasoned arguments.

(Doc. 80 at 30-31).

As to count 13, the Court concluded that the parties had not adequately addressed

in briefing the level of scrutiny to be applied in the analysis and found even rational basis

review did not justify dismissal on the Defendants’ thin arguments. (Doc. 80 at 35).

As a result of this Court’s Order, the Plaintiffs proceeded on their claims in counts

1, 2, 11, 12, and 13. (Doc. 80 at 40).

On March 1, 2018, the Plaintiffs filed a supplemental complaint (Doc. 93).1 In it,

the Plaintiffs have alleged that the Alabama Secretary of State unilaterally determined that

HB 282 applies retroactively to persons convicted of crimes prior to the effective date of

HB 282. (Doc. 93 at ¶14). They contend that the statute is plainly written to apply

prospectively. In their supplemental complaint, the Plaintiffs added factual allegations to

counts 1, 2, 11, 12, and 13 and added counts 16, 17, and 18. Count 16 is a claim that the

Secretary of State’s determination that HB 282 applies retroactively is contrary to the

language of the statute and therefore violates the Due Process Clause of the Fourteenth

Amendment. Count 17 is a claim that the retroactive application of Ala. Code § 17-3-30.1

violates the Due Process Clause.

Count 18 is a claim for violation of the National Voter Registration Act of 1993, 52

U.S.C. § 20501 et seq. (“NVRA”). The Plaintiffs challenge two forms: the State of

Alabama Mail-In Voter Registration Form (“State Form”) and the state-specific

instructions for Alabama on the National Mail Registration Form (“Federal Form”). The

Plaintiffs’ statutory claim is that Defendants failed to include complete voter eligibility

requirements on the forms in violation of the NVRA by referring only to “disqualifying

felonies” without listing those felonies. At the time of the supplemental complaint, the

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

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

counts in the supplemental complaint.

State Form stated simply that to register to vote in Alabama a person must not have been

convicted of a disqualifying felony, or if the person has been convicted, must have had

their civil rights restored. (Doc. 93 at ¶ 19).

In response to the supplemental complaint, the Defendants filed a motion to dismiss

which renews their motion to dismiss as to counts 1, 2, 11, 12, and 13; which seeks

dismissal of counts 16, 17, and 18; and which alternatively moves for summary judgment

as to count 18. The Plaintiffs have cross-moved for summary judgment as to count 18.

On July 23, 2019, the Defendants filed a notice with the Court and attached to that

notice a revised State Form (Doc. 171-1 at 4) which states in the requirements section that

to register to vote you must not “have been convicted of a disqualifying felony, or if you

have been convicted, you must have had your civil rights restored.” In the Voter

Declaration section, the form now also includes this statement: “I am not barred from

voting by reason of a disqualifying felon conviction (The list of disqualifying felonies is

available on the Secretary of State’s web site at: sos.alabama.gov/mtfelonies).” (Doc. 171-

1 at 4). The State instructions for the Federal Form now state that to register in Alabama

you must “not have been convicted of a felony involving moral turpitude (or have had your

civil and political rights restored). The list of moral turpitude felonies is available on the

Secretary of State web site at: sos.alabama.gov/mtfelonies.” (Doc. 171 at 2).

The parties have advanced arguments regarding the revised forms in notices to the

Court filed by the Defendants and a response to Defendants’ notice filed by the Plaintiffs.

(Doc. 161, 164, 171). The parties have also filed supplemental notices regarding two

non-binding decisions. (Doc. 173, 174).

II. LEGAL STANDARDS

A. Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)).

“Determining whether a complaint states a plausible claim for relief [is] ... a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility

standard requires “more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U. S. at 678. Conclusory allegations that are merely “conceivable” and fail to

rise “above the speculative level” are insufficient to meet the plausibility standard.

Twombly, 550 U. S. at 555, 570. This pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Id.

B. Motion for Summary Judgment

“Summary judgment is proper if the evidence shows ‘that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ.

P. 56(a)). “[A] court generally must view all evidence and make all reasonable inferences

in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l

Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations

without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc.,

891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a

rational trier of fact to find for the non-moving party,” then there is no genuine dispute as

to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the initial burden of demonstrating that there is no genuine dispute

as to any material fact, and the movant must identify the portions of the record which

support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The movant may carry this burden “by demonstrating that the nonmoving party has failed

to present sufficient evidence to support an essential element of the case.” Id. The burden

then shifts to the non-moving party to establish, by going beyond the pleadings, that a

genuine issue of material fact exists. Id. at 1311–12.

In resolving cross-motions for summary judgment, the Court construes the facts in

the light most favorable to the nonmovant when the parties' factual statements conflict or

inferences are required. Barnes v. Southwest Forest Industries, 814 F.2d 607, 609 (11th

Cir.1987). Cross-motions for summary judgment will not, in themselves, warrant the court

in granting summary judgment unless one of the parties is entitled to judgment as a matter

of law on facts that are not genuinely disputed. United States v. Oakley, 744 F.2d 1553,

1555 (11th Cir. 1984).

III. DISCUSSION

The Defendants move to dismiss certain parties based on the Court’s previous

Order; renew their original motion to dismiss as to counts 1, 2, 11, 12, and 13; move to

dismiss counts 16 and 17 of the supplemental complaint; and move to dismiss or

alternatively for summary judgment as to count 18 of the supplemental complaint. The

Plaintiffs filed a motion for summary judgment only as to count 18. In connection with

the summary judgment motion, the Defendants move to strike evidence submitted by the

Plaintiffs. The Court will consider each motion in turn.

A. Motion to Dismiss Certain Parties

The Defendants contend that because in its previous Order the Court dismissed all

of the counts in which the State of Alabama is listed as a Defendant, the State ought to be

dismissed as a party. The Plaintiffs do not respond to this argument in their brief,

apparently conceding the point. The Plaintiffs’ supplemental complaint lists Defendant

John H. Merrill, in his official capacity as the Secretary of State, not the State of Alabama,

as the first Defendant, and no count of the supplemental complaint is asserted against the

State of Alabama. (Doc. 93). The Court concludes, therefore, that the State of Alabama is

due to be dismissed as a separate party.

The Defendants also argue that Plaintiffs Antwoine Giles (“Giles”) and Laura

Corley (“Corley”) are now able to vote, so their claims are moot, and they should be

dropped as Plaintiffs in this case. The Plaintiffs respond that they have not agreed to the

dismissal of Giles and Corley because they wish to preserve the issue of mootness for

appeal. (Doc. 97 at 8, n.1). It appears that the Plaintiffs do not dispute that the claims of

these two Plaintiffs are moot under this Court’s analysis. The Plaintiffs can appeal a

mootness determination by the Court. See, e.g., Troiano v. Supervisor of Elections in Palm

Beach Co., Fla., 382 F.3d 1276, 1281 (11th Cir. 2004) (voters appealed determination that

their claims were moot). Accordingly, the Court will grant the motion to dismiss and

dismiss these two Plaintiffs’ claims on the ground of mootness.

B. Motion to Dismiss Counts 1, 2, 11, 12, 13

With respect to counts 1, 2, and 13, the Defendants merely reincorporate the briefs

they submitted in support of their original motion to dismiss. (Doc. 95 at 2, 13).2 The

Plaintiffs respond that successive motions to dismiss the same claims are improper, and

also argue that as a motion to reconsider, the Defendants’ motion is due to be denied

because it is inappropriate to relitigate issues raised in an earlier motion, citing Harris v.

Corr. Corp. of Am., 433 F. App’x 824, 825 (11th Cir. 2011).

Although the Plaintiffs added factual allegations in their supplemental complaint,

the Defendants’ motion as to counts 1, 2, and 13 is based on the same arguments already

advanced in its initial motion and is construed as a request for reconsideration of the

Court’s denial of the motion to dismiss as to those counts. Motions to reconsider are

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

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

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

generally granted only if there is newly-discovered evidence or a manifest error of law or

fact. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). By merely citing to

previous briefing on an earlier motion, the Defendants have established neither. The Court

concludes, therefore, that there is no cause to reconsider its determination, and concludes

that that the renewed motion to dismiss is due to be DENIED as counts 1, 2, and 13.

With respect to counts 11 and 12 of the original complaint, the Defendants again do

not contend that there is new information, but merely state that the claims should be

dismissed based on “developed arguments” that were “not highlighted in [the] original

motion to dismiss.” (Doc. 95 at 2). The Defendants assert that the complaint and

supplemental complaint do not plead a plausible Ex post facto or Eighth Amendment claim

because the Plaintiffs do not allege that felon disenfranchisement is penal in nature, and

the statutes do not impose greater punishment than the law at the time of the Plaintiffs’

offenses.

The Plaintiffs respond that raising these arguments now is inappropriate. Cf. Stone

v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (stating “[t]he purpose of a Rule 59(e) motion

is not to raise an argument that was previously available but not pressed.”).

This Court previously determined that the question of whether the statutes in

question constitute punishment is one which must be determined after factual development,

and after application of multi-factor analysis. (Doc. 80 at 29-31). This Court explained

that the determination of the punitive nature of the statutes could not be made without an

“evidentiary record” and “developed arguments.” (Doc. 80 at 30-31). Therefore, the Court

is not inclined to revisit its analysis as to counts 11 and 12 because there is not yet an

evidentiary record.

Even if the Court considered the Defendants’ now-developed arguments, the Court

notes, as the Plaintiffs point out in their opposition to the new motion to dismiss, that the

Eleventh Circuit has acknowledged that criminal disenfranchisement provisions have

existed as a punitive device. See Johnson v. Governor of State of Fla., 405 F.3d 1214, 1218

& n.5 (11th Cir. 2005) (en banc). As this Court explained previously, in examining an Ex

Post Facto Clause challenge, a court must look to the legislative intent at the time of the

challenged statute’s passage. (Doc. 80 at 29). The Court, therefore, again concludes that

factual development is needed to evaluate the claims.

With respect to the argument that there can be no plausible allegation that a new

punishment is imposed, the Court finds this argument unavailing, based on its previous

Orders. This Court previously reasoned that HB 282 mooted some claims because it

clarified for the Plaintiffs the convictions which are felonies involving moral turpitude.

(Doc. 80 at 28)(incorporating Doc. 72 at 17-18). The amended statutes as applied have

made it clear, whereas before it was arguably unclear, which persons are now

disenfranchised. Therefore, for purposes of a motion to dismiss, the Court concludes that

the Plaintiffs have stated a plausible claim that greater punishment is now imposed by the

clarified law than the arguably ambiguous law in effect at the time of the Plaintiffs’

offenses. The Court again concludes that the motion to dismiss as to counts 11 and 12 is

due to be DENIED.

C. Motion to Dismiss Count 16

The Defendants move to dismiss count 16 on the ground that if it is a claim that the

Secretary of State is not correctly enforcing the new statute, it is barred by the Eleventh

Amendment. The Defendants also argue that there is no substantive due process right to

vote for felons, that an error in applying state law cannot constitute a procedural due

process violation, and that the Plaintiffs have not shown the lack of a state remedy. The

Defendants also take issue with the Plaintiffs’ reading of §177(b). Finally, the Defendants

argue that if there is any question about the meaning of the state law, this Court should

certify a question to the Alabama Supreme Court.

Count 16 of the supplemental complaint alleges that the Plaintiffs have been

deprived of a state-created right to vote in violation of the Due Process Clause of the

Fourteenth Amendment. The Plaintiffs’ theory is that the retrospective application of

Section 17-3-30.1 to people with disqualifying convictions before August 1, 2017 is not

consistent with the wording of the statute and, therefore, the disenfranchised are deprived

of their right to vote in violation of the Due Process Clause. The claim is not, as the

Defendants have characterized it, that the State of Alabama was improperly applying state

law as a stand-alone claim, but is instead that by interpreting state law to apply

retrospectively, the State of Alabama has violated state law in a way which violated the

federal rights of voters who had committed certain felonies which had not been determined

to be disqualifying at the time of their offense.

The Plaintiffs rely in part on Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981),3 in

response to the Defendants’ arguments based on procedural due process. In Duncan, the

court examined a violation of substantive due process when a state failed to provide an

election, impinging on the right to vote. Id. at 704. The Plaintiffs’ position is that once the

State of Alabama gave certain persons with felony convictions the right to vote, it could

not then take away that right in violation of state law. (Doc. 97 at 29).

The Plaintiffs’ characterization of their claim, as the Court understands it, is one

which has not been thoroughly addressed by the Defendants and which the Court finds

needs additional briefing. The arguments which have been advanced also reveal that

development of the facts is required. For example, the Defendants support their

interpretation of state law by relying on the complexity of administering the statute under

a different interpretation and on the number of people disenfranchised under a particular

interpretation. (Doc. 95 at 14 & n.6). Relying on outside indicators of legislative intent

does not appear consistent with plain meaning analysis. See Chism v. Jefferson Cty., 954

So. 2d 1058, 1069 (Ala.)(quotation omitted)(stating “a court should gather the legislative

intent from the language of the statute itself. If the statute is ambiguous or uncertain, the

court may consider conditions that might arise under the provisions of the statute and

examine results that would flow from giving the language in question one particular

meaning rather than another.”), as modified on reh'g (Ala. 2006); cf. Landgraf v. USI Film

Prod., 511 U.S. 244, 280 (1994)(examining retroactivity in the context of federal law and

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

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

stating that “first task is to determine whether Congress has expressly prescribed the

statute's proper reach. If Congress has done so, of course, there is no need to resort to

judicial default rules.”). Therefore, the Defendants’ argument that the statute must be

interpreted as applying retrospectively may ultimately prevail, but it needs further factual

development.

The Court cannot agree that the Defendants have established a basis for dismissal

of count 16 at this point in the proceedings. The issues raised, including the issue of

whether a question should be certified to the Alabama Supreme Court, can be taken up

again at a later point in the proceedings after development of the facts, along with other

issues that require more complex analysis than has been provided to this point.

D. Motion to Dismiss Count 17

The Defendants contend that this count of the supplemental complaint is duplicative

of the Ex Post Facto Clause claim and suffers from the same flaws. In opposition to the

Defendants’ motion, the Plaintiffs argue that if during this litigation the felony

disenfranchisement statute is determined to be civil, and not penal, its retroactive

application violates due process. In other words, count 17 is pleaded as an alternative count

to count 11.

To the extent that the Defendants’ previously advanced arguments regarding the Ex

Post Facto Clause claim are raised in connection with this claim, for the same reasons

previously discussed in this Order and in previous Orders, those grounds for dismissal are

unavailing. The Court now turns to arguments specific to the alternatively pleaded civil

penalty claim.

Retrospective application of law is said to be disfavored and there are multiple

prohibitions of it. See Landgraf, 511 U.S. at 268. The Ex Post Facto Clause prohibits laws

that impose punishment for acts not punishable when committed or that impose greater

disadvantages upon the offender than those imposed when the act was committed. Weaver

v. Graham, 450 U.S. 24, 28–29 (1981). The Due Process Clause “also protects the interests

in fair notice and repose that may be compromised by retroactive legislation.” Landsgraf,

511 U.S. at 266. Retroactivity is present if a statute would impair rights a party possessed

when he acted, increase a party's liability for past conduct, or impose new duties with

respect to transactions already completed. Id. at 280.

The Plaintiffs analogize the claim in count 17 to one which challenges the

imposition of punitive damages on the basis that the damages are so high, the tortfeasor

cold not have had reasonable notice of the potential severity of the civil penalty. See BMW

of N. Am. Inc., 517 U.S. 573 (1996). This type of due process claim also has arisen in the

context of the application of a bar to seeking relief from deportation based on a resident

alien having pleaded guilty to a felony. See Immigration and Naturalization Service v. St.

Cyr, 533 U.S. 289, 324-25 (2001). This Court concludes, therefore, that while the Plaintiffs

may not ultimately prevail on this claim, they have plausibly alleged that application of the

statute is a civil and not criminal penalty.

One argument advanced by the Defendants specific to the Due Process claim is that

there is a rational basis for the statute, so the claim is due to be dismissed. In support of

the proposition that this claim is subject to rational basis analysis, however, the Defendants

cite a case which is distinguishable because in that case the Supreme Court merely declined

to depart from the standard of review used by the lower courts in evaluating an Equal

Protection claim. (Doc. 95 at 16)(citing Heller v. Doe, 509 U.S. 312, 319 (1993)).

The Plaintiffs’ position is that the rational basis test is not the appropriate test to

apply. The Plaintiffs cite to Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626

(1969), in which the Supreme Court explained that when it reviews statutes which deny

some residents the right to vote, the general presumption of constitutionality “if the Court

can conceive of a ‘rational basis’ for the distinctions made are not applicable.”

In part because the Defendants did not file a reply in support of their motion to

dismiss, the Defendants have not addressed the Plaintiffs’ arguments regarding the

standard of review. At this point in the proceedings, therefore, the Court cannot conclude

as a matter of law that the alternatively pleaded civil claim is due to be dismissed. The

issues raised regarding this claim can be more fully developed at a later stage of the case.

E. Motion to Dismiss or for Summary Judgment as to Count 18

The Defendants have moved to dismiss count 18 of the supplemental complaint, or,

alternatively, moved for summary judgment on that count. The alternative motion appears

to be supported by evidence of the registration forms used by other states. The Plaintiffs

also moved for summary judgment as to count 18.

In replying to the Defendants’ opposition to the Plaintiffs’ cross motion for

summary judgment, the Plaintiffs attached a new declaration, which is the subject of the

Defendants’ motion to strike. Therefore, the Court will first turn to the motion to strike

before addressing the merits of the cross motions and motion to dismiss.

1. Motion to Strike

The Defendants contend that the declaration of Tari Williams could have been and

should have been, under the briefing order, attached to the Plaintiffs’ original motion for

summary judgment. The Plaintiffs respond that a motion to strike is not appropriate relief

for evidence in support of a motion for summary judgment, and that the evidence is

appropriate because it was offered in opposition to a specific point raised by the Defendant

in opposition to summary judgment.

New evidence is not properly considered if offered for the first time in support of a

reply brief, but evidence can be offered to rebut a point raised in an opposition brief. See

Hinson v. Chelsea Indus., Inc., 542 F. Supp. 2d 1236, 1248 (M.D. Ala. 2008) (finding that

reply evidence would be considered and citing case law for the proposition that reply

evidence is not new when the reply brief addressed the same set of facts supplied in

opposition to the motion). To the extent the evidence offered by the Plaintiffs is in response

to an argument by the Defendants, it is not due to be stricken. As will be discussed below,

however, the evidence presented in the context of the cross-motions for summary judgment

relates more to remedy than statutory interpretation and will not be considered at this time.

Therefore, because the Court has not considered the evidence, the motion to strike is due

to be DENIED as moot.

2. Motion to Dismiss and Cross Motions for Summary Judgment

Count 18 of the supplemental complaint alleges that the State Form and the

instructions for the Federal Form, violate the NVRA because the forms must include

eligibility information.

The Defendants originally moved to dismiss or for summary judgment on the

federal and state aspects of this claim. The Plaintiffs have also moved for summary

judgment on this count and have argued that the violation of the NVRA can be decided on

summary judgment, but also contend that Plaintiff GMB should have an opportunity to

discover and present evidence that the current form fails to serve their purpose under the

NVRA. (Doc. 97 at 40).

With respect to the Federal Form specifically, the Defendants state that the claim is

moot because all the Secretary of State can do is inform the EAC of changes to the law,

which he has done. In their reply brief, the Plaintiffs concede that the claim regarding the

Federal Form is moot, because the Secretary of State has complied with his statutory

obligation. (Doc. 108 at 1, n.1). Therefore, the Defendants’ motion to dismiss is due to be

GRANTED, and the Plaintiffs’ cross motion for summary judgment is due to be DENIED,

to the extent that the claim based on the Federal Form is moot.

The State Form, at the time the Plaintiffs filed their supplemental complaint, stated

simply that to register to vote in Alabama a person must not have been convicted of a

disqualifying felony, or if the person has been convicted, must have had their civil rights

restored. (Doc. 93 at ¶ 19). The revised State Form still contains that language, but now

also states in a separate place on the form, where the Voter Declaration is located, that “I

am not barred from voting by reason of a disqualifying felony conviction (The list of

disqualifying felonies is available on the Secretary of State’s web site at:

sos.alabama.gov/mtfelonies).” (Doc. 171-1).

The Plaintiffs allege that this form violates the portion of the NVRA which provides

that any state-issued mail-in voter registration form used to register voters for federal

elections “shall include a statement that—(A) specifies each eligibility requirement

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

(stating that a State may develop and use a mail voter registration form that meets all of

the criteria of 52 U.S.C. 52 U.S.C. § 20508(b)). The Plaintiffs allege that because the State

Form states only that to register to vote one must not have been convicted of a disqualifying

felony or if one has been convicted has had civil rights restored, but does not name the

disqualifying convictions, it violates the statute. (Doc. 93 at ¶ 19). The Plaintiffs note that

other requirements on the form go beyond a mere statement to an explicit naming of the

requirement. For example, the form does not merely state that there is a minimum age

requirement, but instead specifies that to register to vote, a person must be at least 18 years

of age on or before election day.

With respect to the updated form that includes a parenthetical reference to the

Secretary of State’s website, the Plaintiffs’ position is that the changed form still does not

comply with the NVRA because it does not specify the felony convictions that make a

citizen ineligible to vote on the form, but only refers to a website with the eligibility

requirement and provides no alternative to the website. The Plaintiffs also contend that the

forms do not include a paper copy of the list of disqualifying felonies for agencies or

organizations to disseminate at the site of voter registrations. Finally, the Plaintiffs’

position is that the language used does not clarify that not all felonies are disqualifying

felonies.

The Defendants argue for a plain text interpretation of the NVR and contend that

the State Form complies with the statute.4

As a general rule, when the terms of a statute are unambiguous on their face then

the Court must enforce the statute according to its terms. Jimenez v. Quarterman, 555 U.S.

113, 118 (2009). Any ambiguity in the statutory language must result from the common

usage of that language, not from the parties' dueling characterizations of what Congress

“really meant.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224 (11th Cir.

2001). If the statutory language is not entirely clear, courts apply canons of construction

“which do not require resort to extrinsic material.” Id. at 1225 (11th Cir. 2001). “In other

words, when the words of a statute are unambiguous, then, this first canon of statutory

construction is also the last: judicial inquiry is complete.” Id. at 1222 (quotation and

citation omitted). Another canon of construction is that where Congress knows how to say

something but chooses not to, its silence is controlling. Id. at 1226.

The Defendants attempt to rely on this latter canon of construction to support their

motion. The Defendants argue in their brief that if Congress had intended the forms to

“specify” eligibility requirements, it would have used a word like “describe,” “detail,”

“explain,” or “specify.” (Doc. 95 at 21).

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

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

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

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

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

As the Plaintiffs point out, clearly Congress did use the word “specify” with regard

to mail-in forms in 52 U.S.C. § 20508(b)(2)(A). That statute states that the form “shall

include a statement that—(A) specifies each eligibility requirement (including

citizenship).” Id.

As stated previously, under the plain meaning rule, the Court looks only to the

language of the statute. “Specify” does not appear to be a defined term in the statute. “In

the absence of a statutory definition of a term, [courts] look to the common usage of words

for their meaning.” CBS Inc., 245 F.3d at 1222. “Specify” is defined in BLACK’S LAW

DICTIONARY as “to mention specifically; to state in full and explicit terms; to point out; to

tell or state precisely or in detail; to particularize; or to distinguish by words one thing from

another.” BLACK’S LAW DICTIONARY (6th ed. 1990); see also WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY, Unabridged. 2019 (defining “specify” as “to mention or name

in a specific or explicit manner,” “to include as an item in a specification,” “to make

specific: to give a specific character or application to.”). In the context of interpreting a

different statute, the Supreme Court has cited the following definition of “specify:” “to

name or state explicitly or in detail.” See Kucana v. Holder, 558 U.S. 233, 243 & n.10

(2010) (citing WEBSTER’S NEW COLLEGIATE DICTIONARY 1116 (1974)).

The Defendants do not offer any other meaning of “specify.” In fact, the

Defendants’ argument that “specify” equates to “describe,” “detail,” “explain” (Doc. 95 at

21), actually supports the Plaintiffs’ interpretation that “specify” means more than what the

State has included in its form. See also United States v. LaBonte, 520 U.S. 751, 757 (1997)

(stating that courts assume that in drafting legislation Congress said what it meant).

The Defendants do make an additional text-based argument, citing to an NVRA

provision which states that an application for voter registration and motor vehicle driver’s

license “may require only the minimum amount of information necessary to (i) prevent

duplicate voter registrations; and (2) enable State election officials to assess the eligibility

of the applicant and to administer voter registration and other parts of the election process.”

52 U.S.C. 20504 (c)(2)(B).

The Plaintiffs respond that this statutory section refers to the amount of information

that the State can require of the prospective voter, not the information provided to the

prospective voter on the form, as it is in a provision regarding the voter registration

application portion of a motor vehicle driver’s license application.

The Court agrees that 52 U.S.C. 20504(c)(2)(B)’s plain meaning is that the

application may require only minimum information of the voter, not that the form is

restricted in the amount of information it can provide. See Fish v. Kobach, 840 F.3d 710

(10th Cir. 2016) (stating that the minimum-information principle “establishes a ceiling on

what information the states can require.”). The statute, therefore, does not impact the

meaning of “specify” in 52 U.S.C. § 20508(b)(2)(A), which sets out the requirements of

the mail-in State Form.

The Court finds at this point in the proceedings that the Plaintiffs’ allegation that

the State Form, which contains a statement that to register to vote one must not have been

convicted of a disqualifying felony and refers to a web site that contains an explicit naming

of the felonies, but which does not itself explicitly name or state in detail the disqualifying

felonies, is sufficient to plausibly state a claim under 52 U.S.C. § 20508(b)(2)(A) & 52

U.S.C. § 20505(a)(2). The Defendants’ motion to dismiss is, therefore, due to be DENIED

as to the state-form aspect of count 18.

As noted, the claim in count 18 is also pending before the Court on cross-motions

for summary judgment. In the Second Notice Concerning Count 18, the Defendants point

to changes made by the EAC to Alabama-specific instructions of the Federal Form and

attach it as an exhibit. (Doc. 171-2). The Defendants contend that because the State Form

is consistent with the instructions given with the Federal Form, it meets the statutory

requirements. The Defendants, however, have advanced a plain meaning interpretation of

the statute. Therefore, it is unclear to the Court why the Defendants have relied on outside

evidence in support of their plain language interpretation. See CBS Inc., 245 F.3d at 1225

(stating “where the meaning of a statute is discernible in light of canons of construction,

we should not resort to legislative history or other extrinsic evidence.”).

The Defendants cite the Court to Fish v. Kobach, 840 F.3d 710, 721 (10th Cir.

2016), and state that the reference to the Alabama Secretary of State’s website in the revised

instructions of the Federal Form “has apparently satisfied the EAC, which is ‘entrusted’ to

make the judgment for the federal form.” (Doc. 171 at 2). The Defendants cannot be

arguing that the language used by the EAC is somehow binding on the Secretary of State,

however, because the language used by the EAC is not the same as the language used by

the Secretary of State on the State Form. (Doc. 171-2) (under the Alabama-specific

instructions stating one must not “have been convicted of a felony involving moral

turpitude (or have had your civil and political rights restored). The list of moral turpitude

felonies is available on the Secretary of State web site at: sos.alabama.gov/mtfelonies.”).

If the Defendants intended to argue that this Court must defer to a particular interpretation

by the EAC, they will have to do more than point to that apparent interpretation, and more

fully develop these arguments in a new motion at a later stage of this case.

The remaining arguments raised by the parties which rely on evidence exterior to

the allegations of the supplemental complaint primarily relate to the practical issues of how

the form could be written, and the implications of different choices in forms. For example,

the Defendants have argued that the State’s practice is consistent with the forms used in

other states, whereas the Plaintiffs cite to a Mississippi form which lists out all of the

disqualifying felonies of that state. The Defendants also point to affidavit evidence that

including the disqualifying felonies on the form would be confusing and point to the cost

of replacing the forms when new crimes are added to the list.

The Court also notes that the Plaintiffs disagree with the Defendants’ suggestion

that the Plaintiffs’ position would require analogous convictions under other states’ laws

and federal law to be listed in the State Form. (Doc. 108 at 7, n.5). The Plaintiffs do not

explain, however, how that aspect of the eligibility requirement would be placed on the

form.

Rather than address these arguments which have been raised in a piecemeal fashion

in cross-motions for summary judgment at the motion to dismiss stage of this case, the

Court concludes that both motions for summary judgment as to Count 18 are due to be

DENIED at this time. These issues can be raised, and more fully developed, at a later stage

of this case.5

V. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

1. The renewed motion to dismiss (Doc. 95) is DENIED.

2. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to

Plaintiffs Antoine Giles and Laura Corley and the claims of those Plaintiffs are

DISMISSED as moot.

3. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to the

State of Alabama, and the State of Alabama is DISMISSED as a party in this case.

4. The motion to dismiss supplemental complaint (Doc. 95) is GRANTED as to the

claim in count 18 relating to the Federal Form and that claim is DISMISSED as moot.

5. The motion to dismiss supplemental complaint (Doc. 95) is DENIED in all other

aspects, as is the alternative motion for summary judgment (Doc. 95), and the cross-motion

for summary judgment on count 18 (Doc. 97).

6. The motion to strike untimely declaration (Doc. 109) is DENIED as moot.

Done this 3rd day of December, 2019.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE

5 Once a new Uniform Scheduling Order is entered in this case, the parties will be given a

dispositive motion deadline, and any grounds for summary judgment which a party seeks to raise

should be briefed together by that deadline.