TREVA THOMPSON, et al., v. JOHN H. MERRILL, etc., et al.
Case No. 2:16-cv-783-ECM
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION
December 3, 2020
[WO]
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
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
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
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
II. JURISDICTION AND VENUE
The Court has subject-matter jurisdiction over the claims at issue pursuant to
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.
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
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
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.”
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
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).
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 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
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).
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.
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).
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
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 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
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.
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
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.
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
Alabama law sets out the procedure for a person to apply to the Board of Pardons and Paroles for a CERV.
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
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
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
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
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.
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:
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
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
a. Issue of Discriminatory Intent Continuing from 1901
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
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
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.,
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
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 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
The Plaintiffs also point to the State of Alabama‘s implementation of the “moral turpitude” standard over time as evidence8 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 evidence 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
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
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.,
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
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
There is an intent-effects test for analyzing whether a statute imposes punishment for purposes of the
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
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
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
a. Count 11
The Plaintiffs’ initial claim was that
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
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
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
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
The parties’ arguments with respect to an
The Court infers from the multi-page evidence referred to by the Plaintiffs that they are arguing that GMB can assert an
b. Count 12 Eighth Amendment Claim
The Plaintiffs have clarified that their claim under the
An
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
While neither of these decisions involved
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
3. Count 13 Equal Protection Wealth Discrimination
Count 13 is an equal protection wealth discrimination claim which challenges
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
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
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
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
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).
The Eleventh Circuit in Jones II made it clear that issues regarding disenfranchised
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,
The Court has already discussed why the Plaintiffs have not shown that the application of the 2017 law was a violation of the
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
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
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
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
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
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
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
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
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
VI. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
- The Defendants’ motion to exclude (doc. 258) is DENIED.
- The Plaintiffs’ motion to exclude (doc. 259) is GRANTED in part and DENIED in part, as discussed above.
- The Defendants’ evidentiary objections (doc. 264) are SUSTAINED in part and OVERRULED in part, as discussed above.
- The Defendants’ motion for summary judgment (doc. 257) is GRANTED.
The Plaintiffs’ motion for partial summary judgment (doc. 260) is DENIED. - 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