65 F.4th 1288
11th Cir.2023Background
- Amendment 579 (Ala. Const. art. VIII, § 177), ratified 1996, replaced the 1901 blanket felon-disenfranchisement scheme with a narrower rule: only persons convicted of a felony involving "moral turpitude" are disqualified until restoration of rights. The amendment was approved by the legislature and 76% of voters and received DOJ preclearance in 1996.
- The 1901 Alabama constitution was adopted with an expressed intent to establish white supremacy and used various facially neutral devices (including felony disqualifications) to disenfranchise Black Alabamians; Hunter I/II struck down parts of that scheme as racially motivated.
- After Amendment 579, Alabama lacked a uniform list of crimes deemed to involve "moral turpitude;" local registrars initially applied the rule inconsistently. Over time the state produced nonbinding lists; in 2017 Ala. Code § 17-3-30.1 provided a statutory list for voter-disqualification purposes.
- Appellants (Greater Birmingham Ministries and several convicted Black felons) challenged Amendment 579 and related statutes/forms on three grounds: Equal Protection (reenactment failed to cleanse 1901 taint), Ex Post Facto (statutory vagueness/retroactivity/punitive effect), and NVRA (mail-registration form fails to "specify" disqualifying felonies).
- The district court granted summary judgment to Alabama; the Eleventh Circuit reviewed de novo and affirmed in part, holding (1) reenactment dissipated the 1901 taint, (2) the disenfranchisement provision is nonpunitive for Ex Post Facto purposes, and (3) Alabama’s mail registration form complies with the NVRA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amendment 579 re-enacts the discriminatory taint of the 1901 constitution | Amendment 579 retained the "moral turpitude" language and Alabama’s subsequent practice (vague/uneven definitions) perpetuates racial discrimination | Re-enactment followed deliberative, constitutionally prescribed procedures and narrowed the class of disenfranchised (all felons → only felons involving moral turpitude), thereby cleansing any taint | Affirmed: the re-enactment process (legislative procedure, voter ratification, preclearance) and substantive change dissipated the original taint under Johnson/Cotton framework; appellants forfeited any direct challenge to 1996 discriminatory intent on appeal |
| Whether Amendment 579 / Ala. Code § 17-3-30.1 violate the Ex Post Facto Clause by imposing retroactive punishment | The absence of a clear list of "moral turpitude" crimes prior to 2017 denied fair notice and the statutory scheme is punitive in purpose or effect | The provision is part of a civil regulatory franchise regime (located in "Suffrage and Elections," enforced via voter-registration statutes); disenfranchisement is a nonpunitive regulation of voting qualifications | Affirmed: provision is civil in text/structure/enforcement; Mendoza‑Martinez factors (most weighed nonpunitive) show it is not punishment for Ex Post Facto purposes |
| Whether Alabama’s mail voter-registration form violates the NVRA (52 U.S.C. § 20508(b)(2)(A)) by failing to "specify" eligibility requirements | Form must list each disqualifying felony (or otherwise explicitly detail the disqualifying crimes) to comply with the NVRA | The NVRA requires reasonable specification; informing applicants that felonies involving moral turpitude are disqualifying and providing a state website link is a practical and adequate specification | Affirmed: the form "specifies" eligibility in a practical manner; requiring a complete enumerative list (including out‑of‑state/federal/foreign offenses) would be absurd and unworkable |
Key Cases Cited
- Hunter v. Underwood, 471 U.S. 222 (1985) (1901 Alabama constitution adopted with racially discriminatory intent; struck down portions of disenfranchisement scheme)
- Underwood v. Hunter, 730 F.2d 614 (11th Cir. 1984) (historical analysis of 1901 Alabama constitution; district court decision later affirmed)
- Johnson v. Governor of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc) (re‑enactment can dissipate prior discriminatory taint if adopted through normal deliberative procedures and with substantive narrowing)
- Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (factors for assessing discriminatory intent in facially neutral laws)
- Smith v. Doe, 538 U.S. 84 (2003) (framework for deciding whether a statutory scheme is punitive for Ex Post Facto Clause analyses; use of Mendoza‑Martinez factors)
- Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (1963) (non‑exhaustive factors to determine whether a civil label masks punitive effect)
- Trop v. Dulles, 356 U.S. 86 (1958) (disenfranchisement may be penal or nonpenal depending on legislative purpose)
- Richardson v. Ramirez, 418 U.S. 24 (1974) (states may disenfranchise felons; historical background)
- Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) (reenactment analysis: deliberative procedure can remove discriminatory taint)
- Jones v. Governor of Fla., 975 F.3d 1016 (11th Cir. 2020) (en banc) (clarified that poverty‑based cases like Bearden/Griffin are not generally applicable to disenfranchisement challenges; Jones I overruled)