Thompson v. Allen

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TREVA THOMPSON, et al., )

)

Plaintiffs, )

)

v. ) Case No. 2:16-cv-783-ECM

) [WO]

JOHN H. MERRILL, etc., et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

This case is before the Court on the Defendants’ motion for summary judgment

(doc. 257), two motions to exclude (doc. 258 & 259), the Plaintiffs’ motion for partial

summary judgment on count 18 of the complaint as amended (doc. 260), and evidentiary

objections by the Defendants (doc. 274).

On September 26, 2016, the Plaintiffs filed a complaint challenging Alabama

Constitution § 177(b) and ALA. CODE § 15-22-36.1(a)(3). On December 26, 2017, the

Court granted in part the Defendants’ motion to dismiss, largely on mootness grounds due

to the enactment of new state law, and denied the motion in part. (Doc. 80 at 28). As a

result of that Order, the Plaintiffs proceeded on their claims in counts 1, 2, 11, 12, and 13.

(Doc. 80 at 40).

Count 1 is a claim of intentional racial discrimination in violation of equal protection

and count 2 is a claim of intentional racial discrimination in violation of the Fifteenth

Amendment. In count 11, the Plaintiffs claim that Ala. Const. art VIII, § 177(b), a felon-

disenfranchisement provision, imposes retroactive criminal punishment in violation of the

Ex Post Facto Clause of the United States Constitution. In count 12, the Plaintiffs contend

that Ala. Const. art VIII, § 177(b) constitutes “cruel and unusual punishment” in violation

of the Eighth Amendment to the United States Constitution. Count 13 is an equal

protection wealth discrimination claim which alleges that ALA. CODE § 15-22-36.1(a)(3)

violates the United States Constitution.

On March 1, 2018, the Plaintiffs filed a supplemental complaint and added counts

16, 17, and 18. (Doc. 93).1 Count 16 is a claim that the Secretary of State’s determination

that ALA. CODE § 17-3-30.1 applies retroactively is contrary to the language of the statute

and therefore violates the Due Process Clause of the Fourteenth Amendment. Count 17 is

pleaded in the alternative to count 11 and 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). After the

Court’s denial of a motion to dismiss the complaint as amended, the Plaintiffs are

proceeding on these claims as well.

Upon consideration of the entire record in this case and the applicable law, and for

the reasons that follow, the Defendants’ motion to exclude is due to be DENIED, the

Defendants’ evidentiary objections are due to be OVERRULED in part and SUSTAINED

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

supplemental complaint with the new count 16. The Court refers to the complaint as amended, to

include the complaint and the supplemental complaint, below.

in part, the Plaintiffs’ motion to exclude is due to be GRANTED in part and DENIED in

part, the Plaintiffs’ motion for partial summary judgment is due to be DENIED, and the

Defendants’ motion for summary judgment is due to be GRANTED.

II. JURISDICTION AND VENUE

The Court has subject-matter jurisdiction over the claims at issue pursuant to 28

U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the court

finds adequate allegations to support both.

III. LEGAL STANDARDS

A. Daubert Motions

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of

the case.

FED. R. EVID. 702.

Rule 702 requires a trial judge to ensure that an expert’s testimony rests on a reliable

foundation and is relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587

(1993). In determining the admissibility of expert testimony under Rule 702, a court must

conduct a rigorous three part inquiry, considering whether: (1) the expert is qualified to

testify competently regarding the matters he intends to address; (2) the methodology by

which the expert reaches his conclusions is sufficiently reliable as determined by the sort

of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the

application of scientific, technical, or specialized expertise, to understand the evidence or

to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562

(11th Cir. 1998).

This case is set for non-jury trial. The Court’s gatekeeping role under Daubert is

“more relaxed in a bench trial situation because there is less need for the gatekeeper to keep

the gate when the gatekeeper is keeping the gate only for himself.” Alabama State

Conference for the NAACP v. Alabama, 2020 WL 579385, *1 (M.D. Ala. 2020)(citing

United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005)).

B. Motion for Summary Judgment

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall

grant a motion for “summary judgment if the movant shows that there is no genuine dispute

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

R. CIV. P. 56(a). The party seeking summary judgment “always bears the initial

responsibility of informing the district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes demonstrates the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing

FED. R. CIV. P. 56). The movant can meet this burden by presenting evidence

demonstrating there is no dispute of material fact, or by showing that the non-moving party

has failed to present evidence in support of some element of his case on which he bears the

ultimate burden of proof. Id. at 322–23. Only disputes about material facts will preclude

the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). “An issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier

of fact to find for the nonmoving party. An issue is ‘material’ if it might affect the outcome

of the case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94

F.3d 1489, 1496 (11th Cir. 1996) (citing Anderson, 477 U.S. at 248).

Once the movant has satisfied this burden, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Non-

movants must support their assertions “that a fact cannot be or is genuinely disputed” by

“citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(A) & (B).

In determining whether a genuine issue for trial exists, the court must view all the

evidence in the light most favorable to the non-movant. McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must

draw all justifiable inferences from the evidence in the nonmoving party’s favor.

Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam).

A reviewing court is constrained during summary judgment proceedings from

making the sort of determinations ordinarily reserved for the finder of fact at a trial. See

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (citations and

quotations omitted) (“Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge,

whether he is ruling on a motion for summary judgment or for a directed verdict.”). After

the nonmoving party has responded to the motion for summary judgment, the court must

grant summary judgment if there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a).

In reviewing whether the nonmoving party has met its burden, the court must stop

short of weighing the evidence and making credibility determinations of the truth of the

matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994,

998-99 (11th Cir. 1992). In a case, such as this one, however, set for non-jury trial:

if decision is to be reached by the court, and there are no issues of witness

credibility, the court may conclude on the basis of the affidavits, depositions,

and stipulations before it, that there are no genuine issues of material fact,

even though decision may depend on inferences to be drawn from what has

been incontrovertibly proved. Under those circumstances, which may be

rare, the judge who is also the trier of fact may be warranted in concluding

that there was or was not negligence, or that someone acted reasonably or

unreasonably, ... even if that conclusion is deemed ‘factual’ or involves a

‘mixed question of fact and law.’ A trial on the merits would reveal no

additional data. Hearing and viewing the witnesses subject to cross-

examination would not aid the determination if there are neither issues of

credibility nor controversies with respect to the substance of the proposed

testimony. The judge, as trier of fact, is in a position to and ought to draw his

inferences without resort to the expense of trial.

Turner v. Allstate Ins. Co., 2020 WL 5831791, at *3 (M.D. Ala. Sept. 30, 2020).

Cross-motions for summary judgment do not affect the applicable Rule 56 standard.

See Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).

“Cross-motions . . . 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) (citation omitted). “When both parties move for summary judgment, the court must

evaluate each motion on its own merits, resolving all reasonable inferences against the

party whose motion is under consideration.” Muzzy Prods., Corp. v. Sullivan Indus., Inc.,

194 F. Supp. 2d 1360, 1378 (N.D. Ga. 2002).

IV. FACTS

The Plaintiffs have asserted multiple claims which arise from the moral turpitude

disqualification from voting eligibility in the Alabama Constitution, the qualifications for

a Certificate of Eligibility to Register to Vote (“CERV”) under state law, and the disclosure

of disqualifying felonies on Alabama’s State mail-in voter registration form. The factual

context of each is important to the claims raised. Therefore, in addition to the facts

underlying the Plaintiffs’ claims as construed in a light most favorable to the non-movants,

the Court also sets out the historical setting of the statutes.

A. Facts Regarding the Parties

The individual Plaintiffs are citizens of Alabama who claim that they have either

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.

Plaintiff Treva Thompson (“Thompson”) was convicted in 2005 of theft of property

in the first degree, a class B felony, and served no time in prison. (Doc. 215-4 ¶ 3). She has

completed her parole and probation. (Id. ¶ 4). She has more than $40,000 in outstanding

legal financial obligations (“LFOs”). (Id.). Because of her outstanding LFOs, she does not

qualify for a CERV under Alabama law.

Plaintiff Timothy Lanier (“Lanier”) was convicted of burglary, a class A felony, and

served eighteen years in prison. (Doc. 106-3 at 1). He was convicted based on events that

occurred in January 1995. (Doc. 257-28 at 15:18-21).2

Plaintiff Pamela King (“King”) was convicted of murder, a class A felony, in 1995

and served fifteen years in prison. (Doc. 106-4 ¶ 3). Because she was convicted of murder,

she is not eligible to have her voting rights restored unless she receives a pardon. (Id.); see

also ALA. CODE § 15-22-36.1(g).

Plaintiff Darius Gamble (“Gamble”) was convicted of trafficking cannabis in 2008

and served a three-year prison sentence and a five-year term of probation. (Doc. 215-6 ¶¶

3, 5). Gamble has paid $3,300 toward his fines and fees but still owes more than $29,000

in LFOs. (Doc. 215-6 at ¶ 11). He applied for a CERV in 2014, but the application was

denied because of his outstanding LFOs. (Id. ¶ 5).

2 In citations to depositions, the Court generally refers to the CMECF page number and internal document

line number, but when a CMECF page has four deposition pages within it, the Court has referred to internal

page numbers.

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. (Doc. 271-15).

The Defendants in this case, some of whom have been substituted as new office

holders have moved into various positions, are Secretary of State Merrill (“Merrill”), Chair

of the Montgomery County Board of Registrars James Snipes, and Chair of the Board of

Pardons and Paroles Leah Gwathney.

B. Factual Context of the Applicable Statutes

1. History of the Moral Turpitude Provision

The moral turpitude disenfranchisement provision of the Constitution of Alabama

was first introduced in 1901. The 1868 and 1875 Constitutions of Alabama barred persons

from voting who were convicted of any crime punishable by imprisonment in the

penitentiary. (Doc. 257-1 at 16). To this catchall disqualification, the 1901 Constitution

added a long list of disqualifying crimes, and language disqualifying persons from voting

who were convicted of “any . . . crime involving moral turpitude,” either misdemeanor or

a felony. Ala. Const. art. VII, § 182.3 Consequently, the Constitution of 1901

3 Section 182 provided in full as follows:

All idiots and insane persons; those who shall by reason of conviction of

crime be disqualified from voting at the time of the ratification of this

Constitution; those who shall be convicted of treason, murder, arson,

embezzlement, malfeasance in office, larceny, receiving stolen property,

obtaining property or money under false pretenses, perjury, subornation of

perjury, robbery, assault with intent to rob, burglary, forgery, bribery,

assault and battery on the wife, bigamy, living in adultery, sodomy, incest,

rape, miscegenation, crime against nature, or any crime punishable by

imprisonment in the penitentiary, or of any infamous crime or crime

involving moral turpitude; also, any person who shall be convicted as a

vagrant or tramp, or of selling or offering to sell his vote or the vote of

disenfranchised those convicted of all felonies and several misdemeanors. (Doc. 257-1 at

17).

There were attempts over time to amend the disenfranchisement provision of the

Alabama Constitution, but none were successful until 1996. The first attempt began in

1970, when a Constitutional Revision Commission (“Commission”) convened.

Commission staff member Dr. Samuel A. Beatty wrote a report to the Commission

members in which he set out the provisions within the 1901 Constitution regarding voting

qualifications, noting those which had been invalidated by court decision. (Doc. 257-19 at

3). With respect to Section 182—providing for the disqualification of voters who are

insane or convicted of various crimes—Beatty noted that state constitutions commonly

include disqualifications of persons convicted of crimes, but as offenses grow and change,

their inclusion becomes a matter of constitutional interpretation or amendment, so that it

“would appear sufficient to describe such disqualifications in general terms, thus

overcoming these objections and eliminating a long, scattered and redundant list of

disqualifying crimes.” (Id. at 10). Beatty proposed language regarding disqualification

from voting which provided, “[n]o person convicted of a felony involving moral turpitude

. . . shall be qualified to vote until restoration of civil rights,” and which eliminated the

listed disqualifying crimes. (Id. at 16).

another, or of buying or offering to buy the vote of another, or of making

or offering to make a false return in any election by the people or in any

primary election to procure the nomination or election of any person to

any office, or of suborning any witness or registrar to secure the

registration of any person as an elector.

The Commission met and considered the proposed disqualification provision of a

person convicted of a felony involving moral turpitude until restoration of civil and

political rights. (Doc. 257-17 at 21-22). 4 The Commission issued a report to the legislature

in 1973, which proposed the “moral turpitude” language and included a comment that the

provision would replace “section 182 which disqualifies . . . those persons convicted of one

of thirty-three crimes listed in the section.” (Doc. 257-17 at 20). The provision was not

adopted by the legislature. (Id. at 24).

In 1976, another effort to remove the listed crimes from the disenfranchisement

provision failed. (Id.).

In 1979, a working group was assembled by Governor Fob James. Michael Waters

headed the group. He testified in a deposition that the working group began with the 1973

Constitution draft as a starting point. (Doc. 256-1 at 60:17-61:9). When asked about the

1979 group’s adoption of language from the 1973 draft, Waters said, “by eliminating that

laundry list and keeping it general, you’re saying, we don’t endorse what the 1901

Constitution was doing.” (Doc. 256-1 at 99: 17-22). Waters also explained in his

deposition that if the phrase “moral turpitude” was adopted from the 1973 draft, he does

not “read that as meaning we hereby endorse any segregationist or racial philosophy that

was part of the 1901 Constitution.” (Id. at 99: 7-13).

At a meeting about the revisions, there was a discussion of the moral turpitude

provision. Representative Tony Harrison asked Senator Bob Harris of the Joint Interim

4 This expert report is subject to the Plaintiffs’ motion to exclude. For reasons to be discussed below, the

Court finds the aspects of the report cited in the statement of facts to be admissible.

Committee to Study New Constitution about the legal definition of moral turpitude and

Harris said that the courts have wrestled with the question and “if you go back to the 1901

Constitution, they try to go at it maybe a little bit different. I doubt you want to go back to

that.” (Doc. 256-13 at 43: 7-19). When asked how many felonies were not covered by the

term and whether the provision could just say “felony,” Harris answered, “that would

disenfranchise some moonshiners, I guess, then. It might not be a bad idea.” (Id. at 53: 18-

22). Harris explained that “what we were trying to do is get away from the restraints and

restrictions of the 1901 Constitution as far as we could, as safely as we could, in the

simplest language that we could, invest in the Legislator as much power as we could

consonant with Federal laws and Federal decisions to govern the election process and the

qualification of voters.” (Id. at 54: 21-55:5).

At a public hearing in February 1979, Mary Weidler (“Weidler”) of the Civil

Liberties Union of Alabama said that it was clear from the legislative history of the 1901

Constitution that the disenfranchisement section was specifically adopted with the intent

to “disenfranchise blacks” and a “continuation of that thinking today is clearly

unacceptable.” (Doc. 256-16 at 5: 14-21). At another public hearing, Tom Leonard of

Plaintiff GBM spoke against the disenfranchisement provision, stating that GBM believes

that a person who has paid a price for committing a crime should not have the added loss

of the right to vote. (Doc. 256-19 at 24: 16-19).

The phrase “moral turpitude” was removed in the House bill, which proposed that

no person convicted “of a felony” shall be qualified to vote. (Doc. 270-6 at 6). This bill

did not gain final passage. (Doc. 257-17 at 39).

In 1983, the Alabama legislature passed Act 83-683 which proposed a new

constitution. (Doc. 257-17 at 47). State Senator Ryan deGraffenreid served on the

legislative committee that drafted the proposed new constitution. He stated in a

memorandum that the “provisions of the Constitution of 1901 relating to voting and

elections were specifically designed to prevent blacks from voting” and also prevented

woman and persons under 21 years of age from voting, and that “[t]hese lengthy and

complex provisions of the 1901 Constitution” have been held unconstitutional, so the new

provisions are “very short and concise and conform to the requirements of the United States

Constitution.” (Doc. 257-17 at 42). Weidler again testified in March 1983, but said nothing

about the disenfranchisement provision. (Doc. 257-22). The Alabama Supreme Court

ruled that legislation passed could not be placed on the ballot as an entirely new

constitution, and so the reform effort failed. (Doc. 257-17 at 47).

In 1985, the aspect of this disenfranchisement provision which applied to

misdemeanor offenses was struck down in Hunter v. Underwood, 471 U.S. 222 (1985),

because it violated the Fourteenth Amendment.

In 1995, Representative Jack Venable introduced two measures related to amending

the Constitution and Alabama Code, one of which was House Bill 38, to replace Article

VII of the Constitution of 1901. (Doc. 257-17 at 49). The bill included the provision to

disenfranchise persons convicted of felonies involving moral turpitude. (Doc. 257-17 at

49-50). Both chambers of the Alabama legislature ultimately passed the proposed

amendment, Ala. Act No. 95-443.

Representative Venable was quoted at the time in a newspaper article as saying that

the constitutional changes were “strictly housekeeping” to reflect “the voting requirements

of the state today, rather than in 1901 when the constitution was written.” (Doc. 257-17 at

52). Then-Secretary of State Jim Bennett commented that if the proposed constitutional

amendment had passed in 1902, “we could have avoided all the pain and suffering we went

through in the 1950s and 60s.” (Id.at 53). No public hearings were held on the act. (Doc.

257-26).

The proposed amendment, Amendment 579, was voted on by the electorate in 1996.

Amendment 579 was approved by 76% of the voters, including eight of the ten counties in

Alabama with majority African American populations. (Doc. 257-17 at 56). Amendment

579 provided that “[n]o person convicted of a felony involving moral turpitude, or who is

mentally incompetent, shall be qualified to vote until restoration of civil and political rights

or removal of disability” and is now codified as Ala. Const. art. VIII, § 177(b).

The State was required to receive pre-clearance by the United States Justice

Department for the amendment and in support of that request, Venable wrote a letter to the

Office of the U.S. Attorney General in which he said that the Suffrage and Elections

Articles of the 1901 Constitution had been made ineffective and that the proposed article

had been part of three Constitutional Revision efforts in 1973, 1979, and 1983, that there

was no opposition, and no negative votes in the legislature. (Doc. 257-26).

In 2012, the Alabama legislature proposed re-enacting the Suffrage and Elections

article, Section 177, with an amendment to add a provision concerning secret ballots.

Voters approved this amendment.

After the passage of Ala. Const. art. VIII, § 177(b), voting registrars had to make

determinations of which felonies were disqualifying without a definitive list. To define the

term, officials within the State used sources which included Alabama case law which had

largely been decided in the context of evidentiary rules governing impeachment. (Doc.

269-10 at 4).5

In 2017, the Alabama legislature passed Alabama Act No. 2017-378, which defined

“moral turpitude.” The act began as House Bill 282 and is now codified at ALA. CODE

§ 17-3-30.1. It defines crimes of moral turpitude by listing crimes tied to specific Alabama

Criminal Code sections and also includes 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). The stated purposes of the new law were to “give full effect

to Article VII of the Constitution of Alabama of 1901, now appearing as Section 177 of

Article VIII,” to ensure that no one is wrongly excluded from the electoral franchise, and

to provide a comprehensive list of acts that constitute moral turpitude for the purpose of

disqualifying a person from exercising his or her right to vote. ALA. CODE § 17-3-

30.1(b)(2).

5 The Defendants object that communications from Griffin Sikes, the former Director of the Alabama

Administrative Office of the Court, are hearsay. The Plaintiffs contend that Sikes’ comments while he was

an employee of the state are public records and admissible under FED. R. EVID. 803(8). The Memorandum

was written by Sikes as the Director of the Legal Division of the Alabama Administrative Office of Courts

to Legal Counsel for the Governor. (Doc. 269-10). It appears, therefore, to fit within the exception to the

rule against hearsay for public records. FED. R. EVID. 803(8). Within the memorandum, however, Sikes

offers opinions which the Court agrees would be expert opinions, and the memorandum was not properly

disclosed by the Plaintiffs as an expert report, so while the Court will consider this evidence, the Court will

sustain the objection with respect to the opinions within in it.

2. Certificate of Eligibility to Register to Vote (“CERV”).

Alabama law sets out the procedure for a person to apply to the Board of Pardons

and Paroles for a CERV. ALA. CODE § 15-22-36.1(a)(3). This law was adopted in 2003.

Individuals with disqualifying felony convictions can have their voting rights restored

through this process. A person who has lost his or her right to vote by reason of a

conviction in a state or federal court for felonies other than those excluded by statute, 6 can

apply for a CERV if the person has no pending felony charges; has paid all fines, court

costs, fees, and victim restitution ordered by the sentencing court at the time of sentencing

on disqualifying cases; and has been released upon completion of sentence, been pardoned,

or has completed probation or parole. ALA. CODE § 15-22-36.1(a). If an applicant satisfies

all requirements, the CERV is automatic. ALA. CODE § 15-22-36.1(b).

3. Facts regarding the State Mail-in Voter Registration Form

In 2018, Secretary of State Merrill’s office sent the federal Executive Director of

the Election Assistance Commission (EAC) a letter informing the EAC of Alabama’s

change in felony disenfranchisement law, and the EAC asked how that act would change

Alabama’s voter registration instructions. (Doc. 260-5). Ed Packard, Alabama’s

6 Ala. Code § 15-22-36.1(g) provides as follows:

A person who has lost his or her right to vote by reason of conviction in a state or federal

court for any of the following will not be eligible to apply for a Certificate of Eligibility to

Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in

any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a

vehicle for immoral purposes, soliciting a child by computer, production of obscene matter

involving a minor, production of obscene matter, parents or guardians permitting children

to engage in obscene matter, possession of obscene matter, possession with intent to

distribute child pornography, or treason.

Administrator of Elections, sent a draft of the form language which referenced the

Secretary of State’s website rather than listing out the disqualifying felony convictions.

The Federal Form changed to include the reference to the Secretary of State’s website.

Specifically, the State instructions for the Federal Form 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. 260-5).

The Secretary of State’s office also adopted that language in the State’s mail-in voter

registration form. The revised mail-in form 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.” (Doc. 260-7). In the Voter

Declaration section, the form includes this statement: “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. 260-7).

V. DISCUSSION

The Defendants move for summary judgment as to all pending claims and the

Plaintiffs move for summary judgment only as to count 18 of the complaint as amended.

The parties also move to exclude evidence.

A. Motions to Exclude Evidence and Evidentiary Objections

The Defendants and the Plaintiffs each move to exclude testimony of an expert

witness and the Defendants object to various evidentiary submissions of the Plaintiffs. The

Court addresses below the motions to exclude and will address evidentiary objections in

the context of the analysis of the Plaintiffs’ claims.

1. Motion to Exclude the Evidence of Daniel A. Smith, Ph.D.

The Defendants move to exclude portions of the testimony of a Plaintiffs’ expert,

Daniel A. Smith, Ph.D. (“Smith”), on the grounds that his testimony is deficient in terms

of data and methodology or, in the alternative, lacks relevance. The Defendants explain

that they do not question Smith’s qualifications, but contend that the methodology he used

is not reliable and that his analysis is not helpful to the Court because it does not address

the questions at issue in this case. The Defendants state that Smith engaged in analyses

aimed at examining the racial impact of the list of felonies included in the 2017 Act, but

that there is no claim which challenges the intent behind the 2017 Act, and that the impact

of the 2017 Act cannot inform the intent of those voting to approve an amendment in 1986.

With regard to Smith’s LFOs analysis, the Defendants assert that Smith included in his

analysis felons who owed court-ordered fees for offenses other than the disqualifying cases.

The Defendants acknowledge that in a supplemental report, Smith states that he has revised

his analysis and stands by his opinion, but the Defendants contend if the data is not reliable,

he cannot base an opinion on it.

The Plaintiffs respond that Smith used a reliable methodology to conclude that

disenfranchising felonies listed in ALA. CODE § 17-3-30.1 have a racially discriminatory

impact. In response to the argument that the impact of a list adopted in 2017 could not be

indicative of intent in passing an amendment in 1996, the Plaintiffs argue that the 1996

amendment was made to codify the “full effect” of the 1901 Constitution, and so, analysis

of the effect of the felonies included and excluded in 2017 is equivalent to an analysis of

the effect of the 1901 “moral turpitude” standard. The Plaintiffs also contend that Smith

used a reliable methodology to conclude that LFOs are the largest barrier to restoration of

voting rights in Alabama and that African Americans are more likely to owe LFOs than

white individuals.

The Defendants’ arguments regarding Smith’s evidence are largely about its

relevance, particularly with respect to the evidence regarding discriminatory impact.

Therefore, the Court will deny the motion to exclude, but will determine the relevance of

the evidence in connection with the discussion of the Plaintiffs’ claims.

2. Motion to Exclude the Evidence of Dr. Karen Owen

The Plaintiffs seek to exclude the testimony and expert report of Defendants’ expert

Dr. Karen Owen (“Owen”). The Plaintiffs argue that Owen lacks relevant experience,

education, and knowledge and does not use reliable methodologies. The Plaintiffs

acknowledge that Owen possesses a Ph.D. in political science, but point out that her focus

areas are special education and women in politics, and that she lacks meaningful

qualifications regarding issues of race, racial discrimination, felony disenfranchisement,

and Alabama history because she does not teach classes in those areas nor has she published

any articles in those areas. The Plaintiffs question her methodology. The Plaintiffs state

that merely looking for overt signs of racial discrimination in public records is not

sufficient. They rely on United States v. Brown, 415 F.3d 1257 (11th Cir. 2005), in which

an expert with experience in plant pathology was found to be not qualified to serve as an

expert in plant chemistry because he lacked expertise in the scientific field at issue. The

Plaintiffs further point to other courts which have concluded that Owen’s analysis was

unhelpful and excluded her testimony. See Common Cause v. Lewis, 2019 WL 4569584,

at *97 (N.C. Super. Ct. 2019).

The Defendants respond that Owens’ proffered testimony involves a comprehensive

study of the historical and political record around the 1996 Alabama Constitutional

Amendment, including constitutional reform efforts prior to the adoption of that

amendment. They argue that Owen’s work in this case is within the scope of her expertise

as a political scientist.

In a case discussed by the parties, another judge of this district has recently

examined similar arguments regarding exclusion of expert testimony. See Alabama State

Conference of National Assoc. for the Advancement of Colored People v. Alabama, 2020

WL 579385 (M.D. Ala. 2020). In that case, a law professor was offered as an expert in the

judicial selection process and the plaintiffs objected to his opinion that the State adopted

its system for nondiscriminatory reasons. The court determined that contextual evidence

about the reasons for judicial elections would be considered but that a legal opinion was

inadmissible. Id. at *4.

In this case, this Court must determine whether there is sufficient evidence to

support a finding of intent to discriminate. To the extent that Owens’ report and testimony

are helpful in this analysis, such as in the consideration of the factors under the applicable

legal standard, the Court will consider it, but the Court does not find admissible under Rule

702, and will not consider, any conclusion by Owen that there is no evidence of intent to

discriminate. The motion is, therefore, due to be GRANTED in part and DENIED in part.

B. Defendants’ Motion for Summary Judgment as to Counts 1, 2, 11, 12, 13,

16, 17

1. Claims of Race Discrimination in Counts 1 and 2

Both a Fourteenth Amendment Equal Protection Clause claim and a Fifteenth

Amendment discrimination claim require proof of intent to discriminate. Greater

Birmingham Ministries v. Sec'y of State for Alabama, 966 F.3d 1202, 1224 (11th Cir. July

21, 2020). Therefore, the Court applies the same analysis to both claims. Id. “A state’s

decision to permanently disenfranchise convicted felons does not, in itself, constitute an

Equal Protection violation.” Johnson v. Governor of State of Florida, 405 F.3d 1214,

1217 (11th Cir. 2005)(en banc)(citing Richardson v. Ramirez, 418 U.S. 24, 53–55

(1974)). However, states cannot promulgate felon disenfranchisement laws “with the

intent to deprive one racial group of its right to participate in the political process.” Id. at

1218. There is a two-step procedure for analyzing whether a disenfranchisement law

violates the Equal Protection Clause. Hunter v. Underwood, 471 U.S. 222, 227–28 (1985).

First, whether racially discriminatory intent was a “substantial or motivating factor” for the

law’s enactment that “continues to this day to have that effect.” Id. at 228. Second, “[o]nce

racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ factor behind

enactments of law, the burden shifts [from the plaintiff] to the law’s defenders to

demonstrate that the law would have been enacted without this factor.” Id.; see also

Johnson, 405 F.3d at 1222–23.

The Defendants have moved for summary judgment as to the Fourteenth and

Fifteenth Amendment race discrimination claims in counts 1 and 2 on the same ground:

that the Plaintiffs are unable to point to evidence of discriminatory intent. The Defendants’

contention is that there is no evidence that Alabama Const. art. VIII, section 177(b)

(proposed as Amendment 579), which was adopted by the electorate in 1996, was adopted

for the purpose of disenfranchising African Americans on the basis of their race.

The Plaintiffs dispute the Defendants’ characterization of their claim. The Plaintiffs

explain that their claim is that racially discriminatory intent from 1901 still existed at the

time of the Constitutional enactment in 1996. (Doc. 268 at 12). The Plaintiffs argue that

the “moral turpitude” provision initially adopted in 1901 was intentionally racially

discriminatory and that Ala. Const. art. VIII, § 177(b) was strictly a housekeeping bill that

did not remove the racially discriminatory intent.

In evaluating a claim of intent to discriminate in legislation, courts apply non-

exhaustive factors probative of discriminatory intent. See Village of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). In this case, however, the

discriminatory intent inquiry is complicated by the fact that in 1985, the United States

Supreme Court found that enactment of the disenfranchisement provision in the 1901

Alabama Constitution was “motivated by a desire to discriminate against blacks on account

of race and the section continues to this day to have that effect.” Hunter, 471 U.S. at 233.

Therefore, the Court will examine the questions posed by both analytical frameworks

argued by the parties: one, is there sufficient evidence of discriminatory intent as continued

from 1901, or, two, have the Plaintiffs established discriminatory intent in the enactment

of Section 177(b) of the Alabama Constitution in 1996.

a. Issue of Discriminatory Intent Continuing from 1901

In Johnson, the Eleventh Circuit in an en banc decision rejected an argument similar

to the Plaintiffs’ claim in this one; namely, that racial animus motivated the adoption of a

criminal disenfranchisement provision in 1868 and the animus remained legally operative

at the time a new statute was enacted. 405 F.3d at 1217. This Court, therefore, is guided

here by the analysis in Johnson.

The Johnson court explained that the issue of discriminatory intent in this context

requires resolution of whether a “subsequent legislative re-enactment can eliminate the

taint from a law that was originally enacted with discriminatory intent.” Id. The court

noted that this question was left open by the Supreme Court in Hunter. Id. at 1223; see

also Abbott v. Perez, 138 S. Ct. 2305, 2325 (2018)(explaining that in Hunter the Court

specifically declined to address the question whether the then-existing version of a statute

would have been valid if “[re]enacted today.”) (internal citations omitted).

The Plaintiffs in this case have presented evidence that the 1901 disenfranchisement

provision was racially discriminatory. For purposes of the motion for summary judgment,

the Defendants do not dispute the evidence that the 1901 constitution was enacted with

discriminatory intent. (Doc. 274 at 5). Furthermore, in Hunter the “court below found that

the article had been adopted with discriminatory intent, and [the Supreme] Court accepted

that conclusion.” Abbott, 138 S. Ct. at 2325. In light of Hunter, and the Defendants’

concession for purposes of the motion for summary judgment, this Court accepts that there

is evidence of racial discrimination in the 1901 enactment of the moral turpitude

disenfranchisement provision. That conclusion, however, does not end the inquiry.

The Johnson court looked to the Fifth Circuit’s discussion in Cotton v. Fordice, 157

F.3d 388 (5th Cir. 1988) to guide its analysis. The Eleventh Circuit noted that in Cotton,

a disenfranchisement provision was challenged which had been adopted with

discriminatory intent in 1890, but was amended by the legislature in 1950 to remove

burglary as a disenfranchising crime, and was amended in 1968 to add murder and rape as

disenfranchising crimes, “two crimes which were historically excluded because they were

not considered ‘black’ crimes.” Johnson, 405 F.3d at 1224 (citing Cotton, 157 F.3d at 391).

The Eleventh Circuit also noted that the Fifth Circuit emphasized that the statutory

provision had been amended twice through a deliberative process, which included both

houses of the legislature passing the amendment by a two-thirds vote, publication of the

provision before the popular election, and approval by a majority of voters. Id.

Applying that analysis to the Florida statute, the Eleventh Circuit determined that

Florida’s statute fell within the reasoning of Cotton because Florida's disenfranchisement

provision was amended through a deliberative process in 1968 which narrowed the class

of disenfranchised individuals to those convicted of felonies. Id. The process through

which the amendment was made included that the amendment first was considered by the

Suffrage and Elections Committee, which sent its final proposal to the Constitutional

Revision Commission, which then reviewed the changes to the Constitution and sent a draft

to the legislature, which approved the new Constitution, and finally the voters approved

the new Constitution. Johnson, 405 F.3d at 1224. The court held that, assuming there was

animus in 1868, there was sufficient deliberation to remove any taint of discriminatory

animus. Id.

Similarly, in analyzing a disenfranchisement statute re-enactment, the Second

Circuit Court of Appeals explained that subsequent legislation removed the taint of

discrimination where the plaintiffs had not alleged any such bad faith on the part of the

delegates adopting the subsequent legislation, the amendment was deliberative and

substantive in scope, and there was no allegation of discriminatory intent. See Hayden v.

Paterson, 594 F.3d 150, 167 (2d Cir. 2010).

The two main considerations in these cases are the nature of the change made and

the nature of the process. This Court, therefore, focuses on those aspects of the facts in

this case.

The Plaintiffs argue that the instant case is unlike the cases discussed because Ala.

Const. art. VIII, § 177(b) retained crimes originally included in the provision because they

were thought to be committed by African Americans, whereas, for example in Cotton,

crimes were added which were not traditionally African American crimes. 157 F.3d at 391.

The Plaintiffs point out that the changes were presented to legislators and the public as

“housekeeping” matters.

The amendment by the legislature in 1995 was admittedly described in a publication

as only engaging in “housekeeping,” but it, like the amendment in Johnson, was

substantive in scope because the original 1901 version disenfranchised all felonies as well

as some minor offenses (doc. 257-1 at 17), while the 1996 version of the provision removed

some felonies as disenfranchising crimes. See Johnson, 405 F.3d at 1221 (characterizing a

change in the statute as substantive because in narrowed the class of persons who could be

disenfranchised and re-enfranchised some persons who previously were disenfranchised).

The Plaintiffs also argue that the process of adopting Ala. Const. art. VIII, § 177(b)

was not deliberative. The Plaintiffs argue that there is enough evidence to create a question

of fact as to whether the 1996 restatement of the 1901 criminal disenfranchisement

provision included any meaningful deliberative process that could be said to have changed

its underling purpose. The Plaintiffs have argued that section 182’s provision

disenfranchising individuals convicted of “any . . . crime involving moral turpitude”

continues the discriminatory animus in section 177(b) because section 177(b) uses the same

the phrase, “moral turpitude,” as the 1901 Alabama Constitution. The Plaintiffs point to

the memo prepared by Beatty in 1970 as part of the Governor Brewer’s Commission and

argue that the intent was merely to restate, not revise, Section 182. The 1996 legislative

process, the Plaintiffs contend, was not deliberative because the bill adopted the “moral

turpitude” language from Beatty’s proposal without deliberation. The Plaintiffs also point

to the Defendants’ expert, Owen, who stated that there was no evidence to suggest that the

amendment was made in reaction to Hunter. (Doc. 269-2 at 173: 25—174:7). They also

point to the testimony of Waters regarding the 1979 Constitutional revision working group,

that at the time the group proposed to use the phrase “moral turpitude,” it did not have

knowledge of any racially discriminatory intent behind the phrase moral turpitude, and

argue that if they had no knowledge, the group could not have deliberated the issue. (Doc.

269-3 at 137: 6-14). The Plaintiffs argue that the only time “moral turpitude” was

deliberated by the legislature was in connection with the 1979 revision attempt, and that

the House bill actually removed the language “moral turpitude,” but the bill did not pass

the Senate. Finally, the Plaintiffs point out that there is no evidence that the amendment

was passed with the recognition of the holding in Hunter, and argue, therefore, that

adopting that language without offering an alternative rationale suggests a continuation of

past discrimination.

The Defendants take issue with the Plaintiffs’ characterization of the evidence and

contend that the facts are not disputed, only the interpretation of them. The Defendants

contend that whether there is sufficient deliberation is an issue of law, not fact. (Doc. 274

at 11).

The Court first notes that the use of the phrase “moral turpitude” does not on its own

support a finding of continued discriminatory intent by the legislature in part because that

phrase historically has been used in Alabama law outside of the context of felon

disenfranchisement. For example, there are statutes which provide for the removal of

members of financial boards as well as revocation of licenses, for felonies involving moral

turpitude. See, e.g., ALA. CODE § 5-17-55(c)(1); ALA. CODE § 34-8A-16(a)(1). There is

no evidence that those enactments were made with discriminatory intent, so the mere use

of “moral turpitude” in Ala. Const. art. VIII, § 177(b) is not sufficient under Johnson to

establish that the re-enactment of moral turpitude was with discriminatory intent.

In examining whether the legislature’s adoption in 1995 of the moral turpitude

standard in the context of felon disenfranchisement was done with sufficient deliberation

to remove any taint of discriminatory animus, the Court finds persuasive the reasoning of

another district court. See Harness v. Hosemann, 2019 WL 8113392, at *8 (S.D. Miss.

2019). That court pointed out that under Hunter, changes through “judicial pruning” are

not sufficient to remove a taint of discrimination, but found that the deliberation in that

case by a task force and legislative committees was sufficient. Id. at 9. Because the

legislature took affirmative action to adopt a provision, the case was “not a case like Hunter

where the state itself did nothing to cure the defect, nor was a constitutionally infirm statute

perpetuated into the future by neutral official action.” Id. at *10 (quotation omitted).

The evidence before the Court in this case also demonstrates that this is not a case

where a constitutionally infirm statute was perpetuated into the future by a lack of action

or by neutral official action by the State, but is instead a case of a deliberative process

which lead to the re-enacting the felon disenfranchisement provision for felonies of moral

turpitude in the Alabama Constitution. The evidence indicates that the efforts over time

considered past reform attempts and built on them. For example, the letter seeking

preclearance for the 1996 amendment reveals that the amendment was thought to be the

result of a process including three Constitutional revision efforts in 1973, 1979, and 1983.

(Doc. 257-26).

Statements by persons involved in the process explained that “what we were trying

to do is get away from the restraints and restrictions of the 1901 Constitution as far as we

could, as safely as we could, in the simplest language that we could, invest in the Legislator

as much power as we could consonant with Federal laws and Federal decisions to govern

the election process and the qualification of voters.” (Doc. 256-13 at 54: 21- 55:5). Senator

deGraffenreid demonstrated awareness that the provisions of the Constitution of 1901 were

designed to prevent African Americans from voting and expressed a desire to move away

from that Constitution in 1983. (Doc. 257-17 at 42).

Evidence pointed to which identified opposition in the form of an objection that a

“moral turpitude” standard had a discriminatory intent was from February 1979, when

Mary Weidler of the Civil Liberties Union of Alabama testified at a public hearing. (Doc.

256-16 at 5: 14-21). And, although Mary Weidler again testified in March 1983, at that

time she said nothing about the disenfranchisement provision. (Doc. 257-22).

After this process of attempting to revise the constitution, in 1995, the legislature

passed Amendment 579, which provided that no person convicted of a felony involving

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

of civil and political rights or removal of disability. At the time the proposed amendment

was presented to the electorate, it was described as an amendment which reflected “the

voting requirements of the state today, rather than in 1901 when the constitution was

written.” (Doc. 257-17 at 52). There is no evidence of opposition to the amendment at that

time. The amendment, Amendment 579, was voted on by the electorate in 1996 and

approved by 76% of the voters, including eight of the ten counties in Alabama with

majority African American populations. (Doc. 257-17 at 56).

Under the facts presented in the instant case, at the time Hunter was decided, only

the courts had acted to change the disenfranchisement provision, but the Alabama

legislature took deliberative action over time to change, and ultimately did change, with

approval of the electorate, the Alabama Constitution.7 The difference between this case

7 While some of the efforts to reform the Alabama Constitution occurred prior to the decision in Hunter, no

legislation had been enacted at that time and there is nothing in the Hunter decision to indicate that the

Court was presented with evidence of the reform efforts.

and Johnson; namely, that the deliberation by the Alabama legislature did not occur in the

context of one proposed amendment by the legislature that ultimately enacted it, is not

significant because other cases applying the same analysis have considered multi-year

actions. See, e.g., Cotton, 157 F.3d at 391 (considering amendments made in two different

years). In short, applying Johnson, the Court concludes that the State of Alabama has

moved beyond the circumstances identified in Hunter, and that the change made to the

Alabama Constitution through an amendment which re-enacted the moral turpitude

provision and which was developed and proposed by the legislature and adopted by the

electorate was sufficient to remove the taint of discriminatory intent present in 1901. 405

F.3d at 1224.

The Court turns now to the question presented by the second analytical framework:

whether the Plaintiffs have presented sufficient evidence of discriminatory intent with

regard to the 1996 amendment itself under the Arlington Heights factors.

b. Issue of Discriminatory Intent in 1996

“As a general matter, determining the intent of the legislature is a problematic and

near-impossible challenge.” Greater Birmingham Ministries, 966 F.3d at 1227. The

Eleventh Circuit has recently summarized the Arlington Heights factors used to discern

intent as follows: (1) the impact of the challenged law; (2) the historical background; (3)

the specific sequence of events leading up to its passage; (4) procedural and substantive

departures; (5) the contemporary statements and actions of key legislators; (6) the

foreseeability of the disparate impact; (7) knowledge of that impact; and (8) the availability

of less discriminatory alternatives. Id. at 1225.

The Plaintiffs do not appear to have presented evidence as to many of the Arlington

Heights factors, such as procedural and substantive departures or the availability of less

discriminatory alternatives. See id. Instead, they have focused on evidence regarding the

historical context of the passage of the amendment, the implementation of the statute, and

evidence which they contend demonstrates discriminatory impact.

When a court examines the Arlington Heights factors as a form of analysis separate

from the removal-of-taint analysis in Johnson, the historical context of the statute is not

strongly indicative of intent in a case where the evidence “is largely unconnected to the

passage of the actual law in question.” Id. at 1228. As the Eleventh Circuit has explained,

a court’s examination of the historical background of a status focuses on the specific

sequence of events leading up to the challenged decision and does not provide “an

unlimited look-back to past discrimination.” Id. (citation omitted). The sources of evidence

of discriminatory intent in the past are only “relevant to the extent that they naturally give

rise to—or tend to refute—inferences regarding the intent of the [1995] Legislature.”

Abbott, 138 S. Ct. at 2327.

The Plaintiffs have pointed out that the stated purposes of ALA. CODE § 17-3-

30.1(b)(2) include giving “full effect to Article VII of the Constitution of Alabama of 1901,

now appearing as Section 177 of Article VIII.” As discussed above, however, the Court

has found that the taint of past discrimination was removed when the legislature proposed

and the electorate adopted Ala. Const. art. VIII, § 177(b), so the Court does not conclude

that the enactment in 1995 of the “moral turpitude” standard also found in 1901 is evidence

of intent. See also Abbott, 138 S. Ct. at 2330.

The Plaintiffs also point to the State of Alabama’s implementation of the “moral

turpitude” standard over time as evidence of intent, arguing, based on evidence including

an expert report and evidence that registrars used different lists of disqualifying crimes,

that the legislature’s failure to clarify the term “moral turpitude” is evidence of intent.

The Defendants respond that they accept for purposes of the motion for summary

judgment the evidence8 regarding the manner in which the moral turpitude standard was

implemented, but argue that it is unclear why such evidence is evidence of racially

discriminatory intent. This Court agrees that evidence of the difficulty of implementing

the “moral turpitude” standard in the years following the adoption of the standard, without

more, is not evidence probative of any racially discriminatory intent of the legislature at

the time the standard was adopted. Plaintiffs provide “no evidence that the Alabama

legislators who supported the law intended the law to have a discriminatory impact or

8 While the Defendants appear to accept the premise that there were issues with a consistent implementation

of the “moral turpitude” standard, much of the Plaintiffs’ evidence on this point is objected to by the

Defendants as hearsay. For example, the Defendants object to the reliance on the complaint in another case

to the extent that the complaint in that case is offered to prove the truth of the allegations asserted. The

Plaintiffs respond that they do not offer the complaint for the truth of the matters asserted, but to show that

the Defendants were on notice that the failure to define “moral turpitude” caused confusion and a lack of

uniformity. Because it is offered for the fact that it was made, and not for the truth of the matters asserted,

this evidence is definitionally not hearsay. FED. R. EVID. 801(c)(2). The Plaintiffs also have cited a

Campaign Legal Letter to Morgan County, which the Defendants object to on the grounds of hearsay. The

Plaintiffs respond that this letter and the documents which accompany it are exceptions to hearsay as records

of regularly conducted activity and that the Morgan County Board of Registrars has been listed as a potential

witness in initial disclosures, and so can be called to testify as to the content of the letter. See FED. R. EVID.

803(8). The Defendants do not contest this in their reply. (Doc. 281 at 2). The Court, therefore, finds that

this evidence can be considered. The Defendants assert that the Plaintiffs’ reliance on the work of Donald

Strong is improper because he was not timely disclosed an expert. They concede that Dr. Strong’s writings

are admissible as ancient documents pursuant to FED. R. EVID. 803(16). The Plaintiffs respond that they

do not intend to call Dr. Strong as an expert, but point out that his work was cited in Dr. Peyton McCrary’s

timely-disclosed expert report. While the Court finds that the evidence is admissible, it will only be

considered to the extent that it is relevant.

believed that the law would have such an effect.” Greater Birmingham Ministries, 966 F.3d

at 1229.

The Plaintiffs also have presented evidence of discriminatory impact in the form of

an expert report from Smith. The Plaintiffs rely on Smith’s conclusions with respect to the

disqualifying convictions listed in the 2017 law based on the voter registration file in 2019.

(Doc. 268 at 28). Smith’s conclusion is that the felony convictions classified by ALA.

CODE § 17-3-30.1 have a disproportionate effect on the ability of African Americans to

register to vote in Alabama. (Doc. 270-2 at 56).

The Defendants argue in response that the Plaintiffs have not presented relevant

evidence because Smith analyzed the effect of a statute enacted by a different legislature,

the 2016 legislature, and not the legislature that proposed the 1996 constitutional

amendment. The Defendants argue that it is irrational to hold that the intent of the 1995

Alabama legislature and 1996 electorate can be determined based on an action taken in

2017.

The Court tends to agree that the impact of the 2017 law does not bear on the intent

of a law passed in 1996. See Johnson, 405 F.3d at 1222 n.17 (“The plaintiffs focus on the

present racially disparate impact of the felon disenfranchisement provision, but this amount

of disparate impact was not present in 1968 when the provision was enacted. Although

disturbing, the present racially disparate impact of the felon disenfranchisement law does

not guide our analysis.”). Because the 2017 law is a clarification of what constitutes moral

turpitude under the 1996 law, however, Smith’s analysis may have some relevance.

Even assuming Smith’s evidence of impact of the 2017 statute is relevant, however,

“without proof of discriminatory intent, a generally applicable law with disparate impact

is not unconstitutional. The Fourteenth Amendment does not regard neutral laws as

invidious ones, even when their burdens purportedly fall disproportionately on a protected

class.” Greater Birmingham Ministries, 966 F.3d at 1231. (internal quotation and citation

omitted). The Plaintiffs in this case have not provided other evidence of intent.

Furthermore, as discussed previously, there is evidence that the moral turpitude standard is

race-neutral because there are other Alabama statutes which use the moral turpitude

standard for which there is no evidence of discriminatory intent. See, e.g., ALA. CODE § 5-

17-55(c)(1); ALA. CODE § 34-8A-16(a)(1).

Accordingly, considering the evidence the Plaintiffs have pointed to relevant to the

Arlington Heights factors, this Court concludes that the Plaintiffs have not presented

sufficient evidence to create a genuine issue of material fact as to discriminatory intent.

In summary, whether this Court analyzes the issue under the Johnson framework;

that is, as an issue of whether discriminatory intent present in 1901 was removed in 1996

with the enactment of Ala. Const. art. VIII, § 177(b), or whether this Court analyzes the

issue with respect to the application of the Arlington Heights factors to the enactment of

Ala. Const. art. VIII, § 177(b), the Plaintiffs have not met their burden under the first prong

of Hunter.

Because prong one is not met, the Court need not reach Hunter’s second prong and

summary judgment is due to be GRANTED as to the Fourteenth and Fifteenth Amendment

claims. Greater Birmingham Ministries, 966 F.3d at 1232.

2. Claims in Count 11, Count 12, and Count 17

In Count 11 of the complaint as amended, the Plaintiffs claim section 177(b)’s felon-

disenfranchisement provision imposes retroactive criminal punishment in violation of the

Ex Post Facto Clause of the U.S. Constitution. In count 12, the Plaintiffs contend that

section 177(b) constitutes “cruel and unusual punishment” in violation of the Eighth

Amendment to the U.S. Constitution. Count 17 is pleaded as an alternative to count 11. In

it, the Plaintiffs allege that if the felony disenfranchisement statute is determined to be civil,

and not penal, its retroactive application violates due process. The Court finds it

appropriate to address certain aspects of these claims together because the Defendants raise

a preliminary issue with respect to counts 11 and 12 as a ground for summary judgment;

namely, that disenfranchisement is not punishment. The ground applies to both claims

because the Eighth Amendment “bans only cruel and unusual punishment,” Wilson v.

Seiter, 501 U.S. 294, 302 (1991), and “an ex post facto claim can only be successful if the

law can be characterized ‘as “punishment” in the constitutional sense.’” Manocchio v.

Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992).

There is an intent-effects test for analyzing whether a statute imposes punishment

for purposes of the Eighth Amendment and the Ex Post Facto Clause. See Smith v. Doe,

538 U.S. 84, 92 (2003)(applying a two-step “intent-effects” test to analyze whether a state

statute violated the Ex Post Facto Clause); United States v. Under Seal, 709 F.3d 257, 263

(4th Cir. 2013)(applying the Smith framework to determine whether a statute imposed

punishment proscribed by the Eighth Amendment).

In Trop v. Dulles, 356 U.S. 86, 96 (1958), the Supreme Court addressed the nature

of a felon disenfranchisement statute, explaining that in deciding whether or not a law is

punishment, courts look to the purpose of the statute. “If the statute imposes a disability

for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc.,

it has been considered penal.” Id. A statute is not punishment “if it imposes a disability,

not to punish, but to accomplish some other legitimate governmental purpose.” Id. Some

statutes may have “both a penal and a nonpenal effect.” Id.

The Defendants contend that Alabama’s felon-disenfranchisement law is a voting

disqualification and does not impose punishment and thus violates neither the Eighth

Amendment nor the Ex Post Facto Clause.

The Plaintiffs respond that the Eleventh Circuit has unequivocally stated that

“[d]isenfranchisement is punishment.” Jones v. Governor of Fla., 950 F.3d 795, 819 (11th

Cir. 2020).9 In Jones II, while disagreeing with much of Jones I, the court continued to

use language indicating that disenfranchisement statutes are punishment, noting that,

“Florida automatically disenfranchises all felons upon conviction, and the challenged laws

only lift that punishment for felons who have completed all terms of their sentences.” Jones

II, 975 F.3d at 1032 (emphasis altered).10

9 The Eleventh Circuit’s decision in Jones, 950 F.3d 795 was an affirmance of the district court’s granting

of a motion for preliminary injunction (hereinafter referred to as Jones I). The case proceeded to trial and

the district court entered a permanent injunction which was appealed. The en banc Eleventh Circuit

reversed the judgment of the district court and vacated the challenged portions of the permanent injunction.

Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (hereinafter referred to as Jones II). Jones II,

however, did not vacate the decision in Jones I.

10 The Plaintiffs also cite to evidence to prove that disenfranchisement is punishment which is objected to

by the Defendants on grounds of hearsay, such as law review and newspaper articles including an article

It may be that in its affirmation that the Florida statute concerned “punishment for

felons who have completed all terms of their sentences,” the Eleventh Circuit merely was

acknowledging that the Florida disenfranchisement law has two purposes. See Jones II,

975 F.3d at 1032. The Eleventh Circuit in Johnson, however, acknowledged the role that

disenfranchisement provisions have as voting qualifications and reasoned that “[f]elon

disenfranchisement laws are unlike other voting qualifications. These laws are deeply

rooted in this Nation's history and are a punitive device stemming from criminal law.” 405

F.3d at 1228. In light of these cases, this Court concludes that Alabama’s

disenfranchisement provision, which is similar to Florida’s, must be viewed as imposing

punishment.

The Defendants contend that they are still entitled to summary judgment as to counts

11 and 12, and that if the disenfranchisement provision is not punitive, they are also entitled

to summary judgment on count 17. The Court turns now to the claims in counts 11 and

12.11

from the YALE LAW JOURNAL and an article from ThinkProgress. Facts set out in law review articles and

informal websites are similar to facts set out in newspapers, and, as such, they are inadmissible hearsay not

subject, without more, to any exception. Smith v. Vestavia Hills Bd. of Educ., 2018 WL 1408537, at *7

(N.D. Ala. 2018), aff'd, 791 F. App'x 127 (11th Cir. 2019). As to the THINKPROGRESS article, the

Plaintiffs contend that the quote from Defendant Merrill in a newspaper is not hearsay under FED. R. EVID.

801, but even if it is, Merrill can be called at trial to testify. The Court agrees that the evidence is admissible,

but as discussed below, even if the Court does not consider this evidence, the Eleventh Circuit has indicated

that disenfranchisement is punishment.

11 As earlier noted, count 17 is pleaded in the alternative to count 11. For the reasons discussed, this Court

has concluded that the Eleventh Circuit considers felon disenfranchisement to be punitive, undermining a

claim based on the civil sanction. Even if the Alabama disenfranchisement statute is regulatory and not

punitive, however, for the reasons discussed below, the Court concludes that the Plaintiffs have not created

a question of fact as to reasonable notice of the potential severity of the penalty.

a. Count 11

The provision that “[n]o ... ex post facto Law shall be passed,” U.S. Const. art. I, §

9, cl. 3, includes “[e]very law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when committed.” Peugh v. United States,

133 S.Ct. 2072, 2077–78 (2013) . At issue “is not an individual's right to less punishment,

but the lack of fair notice and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated.” Weaver v.

Graham, 450 U.S. 24, 30 (1981).

The Plaintiffs’ initial claim was that Ala. Const. art. VIII, § 177(b) violated the

federal constitution because moral turpitude was undefined and applied on an ad hoc basis.

After ALA. CODE § 17-3-30.1 was enacted in 2017, the Plaintiffs amended their claim to

be that the statute imposed retroactive punishment as to individuals with convictions prior

to August 1, 2017. The Plaintiffs strenuously contest that the moral turpitude standard in

effect prior to 2017 gave notice that any felony was disenfranchising. They point out that

the statute itself states that there was no comprehensive list of felonies that involve moral

turpitude. ALA. CODE § 17-3-30.1. The Plaintiffs’ argument is that because the system in

place prior 2017 was void as unconstitutionally vague, the first time any felon could have

been disenfranchised was with the enactment of ALA. CODE § 17-3-30.1.

The Defendants urge the Court to evaluate this claim as to each individual Plaintiff,

arguing that the claim should not be decided in the abstract, citing Washington State

Grange v. Washington Stet Repub. Party, 552 U.S. 442, 450 (2008), for the proposition

that courts should not formulate a rule of constitutional law that is broader than is required

by the precise facts to which the rule is to be applied. They contend that the Plaintiffs’

argument that ALA. CODE § 17-3-30.1 applied retroactively to felonies committed before

the act took effect misunderstands Alabama law. The Defendants argue that Alabama law

was clear that the Plaintiffs’ felonies were disenfranchising at the time the Plaintiffs

committed those felonies, so the facts do not support the Plaintiffs’ claims.

The Defendants’ first point is that the Constitution of 1901 disenfranchised all

persons convicted of crimes “punishable by imprisonment in the penitentiary,” which

would include all felonies. (Doc. 257-1 at 16-17). Therefore, Plaintiff Lanier,12 convicted

of burglary based on events that occurred in January 1995, (doc. 257-28 at 4: 18-21), and

Plaintiff King, convicted of murder in 1995 (doc. 106-4 ¶ 3),13 had notice that their

convictions were disenfranchising.

As noted in the previous discussion of historical facts, there was a Constitutional

provision in place in 1901 that was unchanged until 1996, with the exception of some

provisions which were removed by court decision. See Hunter v. Underwood, 471 U.S.

222, 233 (1985)(striking down disenfranchisement for misdemeanors and noting court

decisions which struck crimes including assault and battery on the wife and

miscegenation). Although attempts were made to amend the Constitution, it was not

amended until 1996. As written from 1901 until 1996, the disenfranchisement provision

disenfranchised persons convicted of crimes punishable by imprisonment in the

12 The Plaintiffs state that Lanier had disenfranchisement reimposed, so he has a Double Jeopardy complaint,

but that claim is not in the complaint or amended complaint and is not properly before the Court at this

time.

13 Murder was also identified as a crime of moral turpitude in case law. Ex parte McIntosh, 443 So. 2d 1283

(Ala. 1983).

penitentiary. (Doc. 257-1 at 17). Therefore, as to Plaintiffs Lanier and King, who were

convicted of felonies committed prior to 1996, the Court agrees that they had fair notice

that their crimes were disenfranchising, and there is no ex post facto violation. See Weaver,

450 U.S. at 30; see also United States v. Ingram, 165 F. App'x 793, 795 (11th Cir.

2006)(“Ingram had fair warning about the possible penalties she faced; no ex post facto

principles encompassed by the Due Process Clause were implicated.”).

The Defendants next contend that Plaintiffs Thompson and Gamble had notice at

the time of their crimes that they had committed crimes of moral turpitude based on existing

case law. Plaintiff Thompson was convicted of theft of property. The Defendants point

out that the Alabama Supreme Court held that theft was a crime involving moral turpitude.

See Stahlman v. Griffith, 456 So. 2d 287, 290-91 (Ala. 1984). In Stahlman, the Court noted

that theft of property is a Class C felony and attempted theft of property in the second

degree is a Class A misdemeanor and explained that it is not the class of the crime but its

nature that determines whether it is admissible as a crime of moral turpitude for

impeachment purposes. 456 So. 2d at 290-91. The Court identified “settled law that a

conviction for the misdemeanor offense of theft is a crime involving moral turpitude . . . .”

Id. at 290. The Defendants also state that Gamble’s crimes of conviction were held to

involve moral turpitude, citing Ex parte McIntosh, 443 So. 2d 1283 (Ala. 1983). In Ex

parte McIntosh, the Court determined that mere possession of marijuana is not a crime of

moral turpitude even though it is a felony, possession “for resale, however, takes on an

entirely different character, one which does involve moral turpitude” because “[t]rafficking

in and encouraging others to utilize a controlled substance, such as marijuana, indicates far

greater untrustworthiness and depravity of character than personal consumption of a

controlled substance.” 443 So. 2d at 1286.

The Plaintiffs argue that the decisions relied on by the Defendants were about

whether the Alabama Rules of Evidence permitted impeachment, and so do not speak to

whether those convictions would result in disenfranchisement. The Plaintiffs also state that

theft of property and trafficking in cannabis were not included in the 2014 Board of

Registrars’ Handbook. The Plaintiffs have also presented evidence to demonstrate that

there was a lack of consensus about which crimes constituted felonies of moral turpitude.

It is clearly the case that ALA. CODE § 17-3-30.1(1)(b) recognized that there was no

comprehensive list of the felonies that involved moral turpitude at the time of its passing,

but that does not mean that there were no determinations about what constituted moral

turpitude. There also is substantial evidence that there were different opinions among

registrars and other state officials about which felonies were disqualifying as felonies of

moral turpitude. A different question might be presented if the Alabama Supreme Court

had not determined for any purpose that the crimes the Plaintiffs were convicted of were

not considered to be crimes of moral turpitude, but that it is not the situation presented.

Instead, there were cases decided by the Alabama Supreme Court which determined that

crimes these Plaintiffs were convicted of were crimes of moral turpitude. Furthermore,

there is unrefuted evidence that the State officials considered those Alabama decisions to

be a source of the definition of moral turpitude for purposes of the disenfranchisement

provision. (Doc. 269-10). There is no evidence before the Court which contradicts that

this case law was relied upon in the context of State officials’ applying of the

disenfranchisement provision. Therefore, the common law definition of moral turpitude

as determined by Alabama courts served as fair notice to these Plaintiffs that their crimes

were crimes of moral turpitude so that the subsequently enacted statute which codified

those crimes was not an ex post facto law as to these Plaintiffs. Cf. Dobbert v. Fla., 432

U.S. 282, 297 (1977) (holding that there was no ex post facto violation where the death

penalty was invalidated after the defendant acted, because the subsequently invalidated

statute’s “existence on the statute books provided fair warning as to the degree of

culpability which the State ascribed to the act . . . .”).

The parties’ arguments with respect to an ex post facto claim by Plaintiff GMB

specifically are not well-developed and are included only in footnotes in their voluminous

briefs. The Defendants argue that because GBM has none of the injuries asserted in count

11 (or, they argue, counts 16, 17, and 18), its claims should be “treated as facial and fall

along with those of the individual Plaintiffs.” (Doc. 261 at 79 n.21). The Plaintiffs argue

that GBM has standing to bring the ex post facto claim because it has to divert resources

to assisting individuals who seek rights restoration, citing to twenty-three pages of

deposition testimony which includes a discussion of increased expenses in helping people

apply for CERVs. (Doc. 268 at 46 n.14).

The Court infers from the multi-page evidence referred to by the Plaintiffs that they

are arguing that GMB can assert an ex post facto claim based on violations of the law as to

individuals because GMB has expended resources helping persons, including persons other

than the named Plaintiffs. The Plaintiffs, however, have not pointed to evidence which

demonstrates that GBM has suffered harm due to expenditure of resources for any persons,

named Plaintiffs or otherwise, who did not have notice that their felonies were

disqualifying felonies of moral turpitude. The Court cannot conclude, therefore, that the

Plaintiffs have met their burden to present sufficient evidence on the part of GBM to

proceed on an ex post facto claim, in light of the determination above that the individual

Plaintiffs have not demonstrated an Ex Post Facto Clause violation. Summary judgment

is due to be GRANTED to the Defendants as to these claims.

b. Count 12 Eighth Amendment Claim

The Plaintiffs have clarified that their claim under the Eighth Amendment is that it

categorically violates the Eighth Amendment for Alabama to permanently disenfranchise

a person for one of the crimes listed in ALA. CODE § 17-3-30.1 without regard for the

individual facts of the offense.14 The Plaintiffs also argue that it is cruel and unusual

punishment for Alabama to permanently disenfranchise a person for a crime that has

nothing to do with the political process, but allows a politician convicted of public

corruption continue voting. The Plaintiffs point to evidence, including laws from other

states,15 to support their contention that there is a growing consensus of states against

lifetime disenfranchisement.

An Eighth Amendment challenge to a sentencing practice that applies to an entire

class of offenders requires a court to examine objective indicia of society’s standards to

14 The Defendants moved for summary judgment on a proportionality claim. The Plaintiffs subsequently

clarified that they are not pursuing a proportionality claim, but are instead pursuing a categorical claim. In

their reply, the Defendants moved for summary judgment as to the categorical claim, and the Court gave

the Plaintiffs additional time in which to address their categorical claim.

15 Some of this evidence is objected to by the Defendants as hearsay; however, the objections are moot

because even if the Court does not consider the evidence, as will be discussed, the Eleventh Circuit has

acknowledged a trend toward re-enfranchisement.

determine whether there is a national consensus against the sentencing practice and then

determine whether the punishment violates the Constitution. See Graham v. Florida, 560

U.S. 48, 61 (2010).

The Eleventh Circuit addressed the issue presented here in Jones I. The Eleventh

Circuit recognized a trend toward re-enfranchisement, noting that “nearly half of the states

have in some way expanded felons’ access to the franchise,” but explained that

“[r]egardless of the political trend toward re-enfranchisement, there is nothing

unconstitutional about disenfranchising felons—even all felons, even for life.” 950 F.3d

795, 801–02 (citing Richardson v. Ramirez, 418 U.S. 24, 56 (1974) for the proposition that

the lifelong disenfranchisement of felons does not violate the Equal Protection Clause).

This determination is consistent with the Eleventh Circuit’s earlier conclusion in the

context of a First Amendment challenge that “the Supreme Court ‘ha[s] strongly suggested

in dicta that exclusion of convicted felons from the franchise violates no constitutional

provision.’” Hand v. Scott, 888 F.3d 1206, 1212 (11th Cir. 2018)(citation omitted).

While neither of these decisions involved Eighth Amendment claims, this view is

consistent with the view of other courts who have examined the issue in the context of an

Eighth Amendment challenge and have determined that it would be inconsistent to

determine that something allowed by the Fourteenth Amendment violates the Eighth

Amendment. See Harness v. Hosemann, 2019 WL 8113392, at *11 (S.D. Miss. 2019)

(“[I]t would be internally inconsistent for the Eighth Amendment to prohibit criminal

disenfranchisement while § 2 of the Fourteenth Amendment permits it.”); Farrakhan v.

Locke, 987 F. Supp. 1304, 1314 (E.D. Wash. 1997) (“The Court is not inclined to interpret

the Constitution in this internally inconsistent manner or to determine that the Supreme

Court's declaration of the facial validity of felon disenfranchisement laws in Richardson v.

Ramirez was based only on the fortuity that the plaintiffs therein did not make their

arguments under different sections of the Constitution.”),16 aff'd in part by Farrakhan v.

Washington, 338 F.3d 1009, 1016 (9th Cir. 2003).

This Court finds that the reasoning of these courts is consistent with the Eleventh

Circuit’s expressed view so that, even accepting the Plaintiffs’ evidence of a trend against

permanent disenfranchisement, Alabama’s law allowing for the permanent

disenfranchisement of felons which is allowed by the Fourteenth Amendment does not

violate the Eighth Amendment. Accordingly, summary judgment is due to be GRANTED

to the Defendants as to this claim.

3. Count 13 Equal Protection Wealth Discrimination

Count 13 is an equal protection wealth discrimination claim which challenges ALA.

CODE § 15-22-36.1(a)(3). The statute at issue provides that individuals with certain

disqualifying felony convictions can have their voting rights restored through a CERV,

issued by the Alabama Board of Pardons and Paroles (“the Board”). The Board must grant

a CERV if a person has (1) lost his or her right to vote by reason of conviction in a state or

federal court for a crime other than those listed in a separate section, (2) no pending felony

charges, (3) paid all fines, court costs, fees, and victim restitution ordered by the sentencing

court at the time of sentencing on disqualifying cases, and (4) been released upon

16 The Eleventh Circuit has cited Farrakhan favorably for the proposition that First Amendment challenges

to felon disenfranchisement have not been successful. See Hand, 888 F.3d at 1212.

completion of sentence, pardoned, or successfully completed probation or parole. ALA.

CODE § 15-22-36.1. It is the Plaintiffs’ contention that requiring an individual to pay their

fines, court costs, and fees, otherwise known as LFOs, is discrimination on the basis of

wealth. Plaintiffs Thompson and Gamble cannot vote because they have not paid their

outstanding LFOs.

During the briefing on the motions for summary judgment, the law in the Eleventh

Circuit was clarified with respect to the wealth discrimination claim advanced by Plaintiffs

in this case. In Jones II, the Eleventh Circuit held that the level of scrutiny to be applied

to this wealth discrimination claim is rational basis. 975 F.3d at 1033. The Defendants

contend that Jones II controls, and entitles them to summary judgment on the Plaintiffs’

wealth discrimination claim because Alabama, like Florida, has rationally concluded that

those who have completed their sentences, acted so that they have no pending felony

charges, and do not have convictions for particularly reprehensible felonies, are the best

candidates to have their rights to vote restored.

The Plaintiffs take the position that Jones II is distinguishable because the

classification drawn by Alabama’s LFO requirement is different from the law in Florida at

issue in Jones II, and requires a classification of citizens based on wealth, subjecting it to

a per se prohibition. In the Plaintiffs’ view, because Alabama’s CERV process sets

payment of LFOs as an electoral standard which is separate and apart from the requirement

that citizens complete their sentence, it engages in wealth discrimination. They argue that

the Florida statute defined completion of sentence as including the payment of fees and

that in Jones II, the law drew a line between people who had completed their sentence and

those who had not, so that the court concluded that there was a rational basis for drawing

that line. Id.

The Defendants respond that merely because the Alabama statute sets out the

requirement to complete the supervisory portions of a sentence in one statutory subsection

and the requirement to have paid court-ordered monies in a separate subsection does not

mean that there is a felon-only fee aimed at wealth.

The Court agrees that the distinction between Florida’s law, which requires

completion of sentence which includes payment of money, and Alabama’s law, which

requires completion of sentence and payment of money imposed as part of that sentence,

does not distinguish this case from Jones II. Cf. 975 F.3d at 1030 (“[R]equiring felons to

complete their sentences is directly related to voting qualifications because imprisonment

and parole are imposed as punishment for the crimes by which felons forfeited their right

to vote.”).

In Jones II, the court made clear that “laws that govern felon disenfranchisement

and re-enfranchisement are subject to rational basis review” if they apply “regardless of

race, religion, or national origin.” Id. at 1033. The court stated that the Florida law did not

single out failure to complete financial terms for special treatment, but then went on to say,

“in any event, wealth is not a suspect classification.” Id. The court also explained that “[t]he

per se rule . . . does not apply to voting requirements that are related to legitimate voter

qualifications, even if some voters must pay to comply with the requirement.” Id. Although

the Plaintiffs in this case have argued that the moral turpitude standard was adopted with

racial intent, for reasons discussed above, that intent does not apply to the 1996 enactment,

and, furthermore, has not been shown to apply to the CERV statute.

The Plaintiffs further contend that there are genuine issues of disputed facts

underlying the issue of whether Alabama’s statute survives rational basis review. They

argue that Alabama’s law permits those who owe LFOs but who have committed some

crimes such as illegally voting more than once in an election, to vote, but withholds the

right to vote from people who owe LFOs for crimes like theft of property that bear no

relationship to the ability to vote responsibly. The Plaintiffs contend that Jones II does not

bar relief here because all felons were disenfranchised in Jones II, whereas Alabama law

only disenfranchises felons who committed crimes of moral turpitude, with no rational

basis for its distinction.

The Defendants contend that the Plaintiffs are comparing the wrong groups. They

state that the relevant comparison is between disenfranchised felons who are eligible for

rights restoration and disenfranchised felons who are not eligible. Felons who were never

disenfranchised are not part of the analysis of the rational basis for Alabama’s law

regarding which disenfranchised felons’ rights can be restored.

In explaining the rational basis review of Florida’s law, the Eleventh Circuit

explained that it must uphold the classification unless the felons negate every conceivable

basis which might support it. Jones II, 975 F.3d at 1034. A classification survives rational

basis review if it is rationally related to some legitimate government interest. Id. “If the

relationship between a State's interest and its means of achieving it is ‘at least debatable,’

then it survives scrutiny.” Id. at 1036. In conducting rational basis review of Florida’s

LFOs requirement, the Eleventh Circuit explained that Florida had two interests in its LFOs

requirement: an interest in disenfranchising convicted felons and an “interest in restoring

felons to the electorate after justice has been done and they have been fully rehabilitated

by the criminal justice system.” Id. (emphasis omitted).

As in Florida, the voters in Alabama could rationally conclude that when felons

have lost their right to vote, “the felons who have completed all terms of their sentences,

including paying their fines, fees, costs, and restitution, are more likely to responsibly

exercise the franchise than those who have not.” Id. “The classification may exclude some

felons who would responsibly exercise the franchise and include others who are arguably

less deserving.” Id. at 1035. But the Constitution only requires a rational line. See id.

Therefore, this Court concludes that the fact that the State does not disenfranchise all felons

does not mean that Alabama has no rational basis for concluding that disenfranchised

felons who have completed their sentences and paid their LFOs are more likely to

responsibly exercise the right to vote and therefore more deserving of having their right to

vote restored. Summary judgment is due to be GRANTED to the Defendants on this claim.

4. Count 16 Fourteenth Amendment Claim for Violation of a Liberty Interest

The Plaintiffs’ due process theory in count 16 is that the retrospective application

of ALA. CODE § 17-3-30.1 to people with disqualifying convictions before August 1, 2017

is not consistent with the wording of the Alabama statute and, therefore, the

disenfranchised are deprived of a liberty interest in a right to vote in violation of the Due

Process Clause. The Plaintiffs argue that ALA. CODE § 17-3-30.1 is written in the present

tense and that Alabama law has a presumption against retrospective application, so

retrospective application violates state law, and, therefore, violates the Due Process Clause.

In other words, the argument is 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).17

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 704-05 (explaining that the

claim “is not procedural, but substantive: they allege the unlawful abrogation of a constitutionally

protected right to vote.”). The court explained that it previously had said that “the right to

vote in a state election, in itself, is not a right secured by the constitution or by federal law.”

657 F.2d at 704. The court further reasoned, however, that prior precedent did not preclude

“granting of federal relief when public officials disenfranchise an entire electorate in

violation of state law.” Id. The court found that it “is fundamentally unfair and

constitutionally impermissible for public officials to disenfranchise voters in violation of

state law so that they may fill the seats of government through the power of appointment.”

Id.; see also Gonzalez v. Governor of Georgia, 978 F.3d 1266 (11th Cir. Oct. 27,

2020)(applying Duncan in a case in which the Governor of Georgia solicited applications

for an appointment of a district attorney and the Secretary of State cancelled the election

for that office).

17 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).

The Eleventh Circuit in Jones II made it clear that issues regarding disenfranchised

felons do not address the fundamental right to vote, explaining that “[w]hatever may be

true of the right to vote generally, felons cannot complain about their loss of a fundamental

right to vote because felon disenfranchisement is explicitly permitted under the terms of

Richardson.” Jones II, 975 F.3d at 1029 (quotation omitted). The Plaintiffs’ argument to

the contrary is that the right to vote was taken away by the State in 2017 because the

disenfranchisement was unlawful, either by being unconstitutionally vague or by violating

the Ex Post Facto Clause.

The Defendants argue in response that the Duncan case on which the Plaintiffs rely

is more limited than they have argued. The Defendants also argue that mistakes by state

officials in determining who is disenfranchised do not rise to the level of a constitutional

violation and that Alabama law provides for an appeal when an applicant is denied voter

registration, ALA. CODE § 17-3-55, or is removed from the rolls, ALA. CODE § 17-4-3(b).

The Court has already discussed why the Plaintiffs have not shown that the

application of the 2017 law was a violation of the Ex Post Facto Clause. The Plaintiffs’

claims based on vagueness were mooted by the 2017 law, (doc. 80 at 27-28), so no

determination has been made as to the law’s validity, but for the same reasons as discussed

in connection with the Ex Post Facto Clause claims, the Court cannot conclude that, as to

these Plaintiffs, the law was unconstitutionally vague because they had notice of their

disenfranchisement.

Even if there were a question as to whether the State had given the Plaintiffs a right

to vote which it did not divest until 2017, Duncan and Gonzalez involved dramatically

different facts of disenfranchisement of the electorate in violation of state law through

filling seats of government through the power of appointment. See Gonzalez, 978 F.3d at

1271. The Plaintiffs’ claim is this case would call for a dramatic extension of existing

precedent which this Court is disinclined to do. See County of Sacramento v. Lewis, 523

U.S. 833, 842 (1998)(courts are “reluctant to expand the concept of substantive due

process.”). Accordingly, the State’s applying of ALA. CODE § 17-3-30.1 to people who

had disqualifying convictions before August 1, 2017 has not been shown to constitute a

federal constitutional deprivation, and summary judgment is due to be GRANTED as to

the Defendants on this claim.

C. Cross Motions for Summary Judgment on Count 18 NVRA Claim

The Defendants and Plaintiffs cross-moved for summary judgment on count 18 of

the complaint as amended which alleges that the State of Alabama’s mail-in voter

registration form violates the NVRA because the form does not include a listing of all of

the felonies which are disenfranchising under Alabama law. The Defendants contend that

the State mail-in form meets the NVRA because the statute does not require each

disqualifying felony to be listed on the form.18

Title 52, § 20508(b)(2)(A) of the United States Codes provides that a mail-in voter

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

(including citizenship).” States can use a mail-in voter registration form that meets the

18 Earlier in this litigation, the Defendants apparently overlooked the NVRA provision regarding the mail-

in form, which requires the eligibility requirement to be specified, and focused only on the motor vehicle

voter registration form which does not include the “specify” language. It was primarily on that basis that

this Court denied Defendants’ previous motion on this issue. (Doc. 178).

criteria in § 20508. 52 U.S.C. § 20505. “Specify” is not a defined term in the statute. 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 Alabama mail-in voter registration form provides that to register to vote in

Alabama a person must be a citizen of the United States, live in Alabama, be at least 18

years of age on or before election day, not have been convicted of a disqualifying felony,

or “if you have been convicted, you must have had your civil rights restored,” and not have

been declared mentally incompetent by a court. (Doc. 257-35 at 19). The form also

includes a Voter Declaration declaring, “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).” (Id.). Under Alabama law,

the disqualifying felony convictions are crimes of moral turpitude, as defined in ALA. CODE

§ 17-3-30.1(c).

The Plaintiffs contend that because the State mail-in form provides only that to

register to vote one must not have been convicted of a disqualifying felony, but does not

name the disqualifying convictions, it does not “specify” the eligibility requirement. 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. The Plaintiffs contend, however, that

a “catch all” provision to include all of the disqualifying felonies under other state and

federal law, in addition to the specifically listed Alabama felonies, would satisfy their

understanding of the definition of “specifies” as used in the NVRA.

As the Court noted earlier in this litigation, (doc. 178 at 24), the Plaintiffs’ position

that each disqualifying felony must be listed on the form to comply with the NVRA would

seem to require a listing of each state and federal law that would be disqualifying under

Alabama law, as those are also disqualifying felonies under state law. ALA. CODE § 17-3-

30.1(c) (crimes of moral turpitude include 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.”). If,

as the Plaintiffs argue, a catchall provision which generally refers to particular crimes is

sufficiently specific to satisfy the requirement that the form “specify” the qualification,

then a specification of a qualification—disqualifying felony—which generally refers to

particular crimes must also be specific enough. If instead the statute requires not only that

eligibility requirements be specified, but also that each disqualifying felony within that

requirement be set out, then every state and federal felony which disqualifies a person from

voting would have to be listed, a position not even the Plaintiffs take. Therefore, the

requirement that a mail-in voter registration form “shall include a statement that—(A)

specifies each eligibility requirement (including citizenship)” is satisfied by the

specification that a registering voter must not have a disqualifying felony, without the

additional particularized listing of each felony that is disqualifying.

To support this reading of the statute, the Defendants point out that there is more

than one form which can be provided for voter registration and that the statutory language

regarding the forms is not the same. The mail-in form is governed by the statute which

uses the term “specifies,” 52 U.S.C. § 20508(b)(2)(A), whereas the statute which applies

to the “voter registration application portion of an application for a State motor vehicle

driver's license” requires a “statement that--(i) states each eligibility requirement

(including citizenship).” 52 U.S.C. § 20504 (c)(2)(C)(i) (emphasis added).

The Defendants contend that this Court should apply the canon of statutory

construction that where the literal reading of a statutory term would “compel an odd result,”

courts can look for other evidence of congressional intent to lend the term its “proper

scope.” Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454 (1989). In this case, if

one form with voter eligibility requirements requires a listing of the disqualifying felonies

and the other does not, the difference in language would produce the odd result of

substantially different forms. As the Defendants point out, in 52 U.S.C. § 20507(a)(5),

Congress required that in the administration of voter registration for elections for federal

office, each State shall inform applicants under sections 20504, 20505, and 20506, of voter

eligibility requirements. This indicates an intent to inform voters of eligibility

requirements in the same manner with respect to motor, mail-in, and agency registration.

This Court agrees, therefore, that to avoid the “odd result” of different voter registration

forms, the NVRA which requires eligibility requirements to be “specified” does not require

each felony to be separately listed, but only requires that the eligibility requirement itself-

-having no disqualifying felony conviction--be specified.

The Plaintiffs argue that there is no reason why “specify” should not inform the

Court’s reading of “states,” in the motor registration form, rather than vice versa. If,

through the comparison of these two provisions of the statute, the NVRA is rendered

ambiguous, the Defendants have argued that this Court should defer to the interpretation

of the EAC of the NVRA, citing Chevron, U.S.A. v. Nat’l Re. Def. Council, Inc., 467 US.

837, 842 (1984). The Defendants further argue that even if Chevron deference does not

apply, the deference given to agency interpretations in less formal formats should apply.

See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

An agency's interpretation may merit some deference whatever its form, given the

specialized experience and broader investigations and information available to the agency,

and given “the value of uniformity in its administrative and judicial understandings of what

a national law requires.” United States v. Mead Corp., 533 U.S. 218, 234–35 (2001); see

also Fish v. Kobach, 840 F.2d 710 (10th Cir. 2016) (holding that the contents of the mail-

in Federal Form are prescribed partly by statute and otherwise entrusted to the

administrative judgment of the EAC, a federal agency).

The NVRA provides that the EAC, in consultation with the chief election officers

of the states, shall develop a mail voter registration application form for elections for

Federal office. 52 U.S.C. § 20508(a)(2). This form must include a statement that specifies

each eligibility requirement. 52 U.S.C. § 20508(b)(2).

The Defendants have provided evidence of electronic mail communications

between the EAC and the Secretary of State’s office in which the EAC requested guidance

on the changes in Alabama’s law and stated that it would review Alabama’s requested

changes for the voter registration form. (Doc. 257-35 at 11 & 12). The EAC changed the

instructions on the Federal Form in 2018 to provide that conviction of a felony of moral

turpitude is a disqualification, and referring to the Alabama Secretary of State’s website

without listing each felony. (Id. ¶ 4). The State mail-in form had contained language that

a person must not have been convicted of a disqualifying felony, but in 2019 that form was

changed to also refer to the Secretary of State’s website, consistent with the Federal Form.

(Doc. 257-35 ¶ 8).

The Court finds it appropriate to give deference to the determination by the EAC

that the language adopted in the Federal Form complied with the NVRA. Therefore, if the

NVRA is ambiguous, with deference to the EAC, the Court concludes that the NVRA does

not require a list of each felony within the specification of the eligibility requirements. The

Plaintiffs’ partial motion for summary judgment is due to be DENIED and the Defendants’

motion is due to be GRANTED as to this claim.

VI. CONCLUSION

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

1. The Defendants’ motion to exclude (doc. 258) is DENIED.

2. The Plaintiffs’ motion to exclude (doc. 259) is GRANTED in part and

DENIED in part, as discussed above.

3. The Defendants’ evidentiary objections (doc. 264) are SUSTAINED in part and

OVERRULED in part, as discussed above.

4. The Defendants’ motion for summary judgment (doc. 257) is GRANTED.

5. The Plaintiffs’ motion for partial summary judgment (doc. 260) is DENIED.

6. The Plaintiffs’ motion to clarify and continue (doc. 285) is DENIED as moot.

A separate Final Judgment will be entered in accordance with this Memorandum

Opinion and Order.

Done this 3rd day of December, 2020.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE