Greater Birmingham Ministries v. Secretary of State, 040921 FED11, 18-10151

Docket Nº18-10151
Judge PanelBefore BRANCH and ED CARNES, Circuit Judges, and GAYLES, District Judge. GAYLES, District Judge, dissenting
Case DateApril 09, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (11th Circuit)




No. 18-10151

United States Court of Appeals, Eleventh Circuit

April 9, 2021

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:15-cv-02193-LSC

Before BRANCH and ED CARNES, Circuit Judges, and GAYLES, [*] District Judge.


We sua sponte vacate our previous opinion and substitute the following in its place.

At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama's Secretary of State, John Merrill, challenging Alabama's 2011 Photo Voter Identification Law (hereinafter, the "voter ID law"), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the "VRA"). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama's voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily.

Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill's motion and Plaintiffs-Appellants timely appealed.

Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama's voter ID law is discriminatory, we affirm the district court's order granting summary judgment in favor of the Secretary of State for the State of Alabama.


This case was filed by Greater Birmingham Ministries and the Alabama State Conference of the National Association for the Advancement of Colored People, along with Giovana Ambrosio, Shameka Harris, Debra Silvers, and Elizabeth Ware (collectively, "Plaintiffs") against John Merrill, the Secretary of State for the State of Alabama. In summarizing the facts of this case, we pull directly from-and oftentimes quote verbatim-the "Undisputed Material Facts" identified by the parties in their corrected Joint Status Report filed with the district court. 2

A. Historical Background

Since the 1990s, there have been concerted efforts in Alabama to pass a voter ID law that addresses voter fraud. For the purposes of this case, the parties agree that cases of proven in-person impersonation voter fraud in Alabama are rare. However, in the mid-1990s, Alabama grappled with some recent, high-profile, and well-documented cases of absentee voter fraud that captured the public attention of Alabamians. These instances of voter fraud were summarized by a July 1996 article in The Birmingham News.[3]

Various citizen groups formed to spread the word about the need for a photo ID law to combat voter fraud.4 Alabama and the federal government worked together to investigate and prosecute cases of voter fraud in absentee voting. The investigation uncovered that, for example, voters would sign absentee ballot-related paperwork without ever marking the ballot, and, in a handful of instances, the voters were not involved in the process at all and their signatures were forged. Sometimes voters would be convinced, threatened, or bribed to give up their ballot materials and sometimes voters would sign the absentee ballot affidavits without marking the ballots. One investigation also revealed there were people at the polls on election day with a list of voters whose ballots had been fraudulently cast and they would chase away these voters when they came to the polls to cast their ballots.

Between the early 1990s and 2003, several voter ID bills were proposed in the Alabama legislature and failed. In 2003, the Alabama legislature successfully enacted a voter ID law that required voters to provide "current valid photo identification" or "a "copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter" (otherwise referred to as "non-photo ID").5 The 2003 law also included a "positively identify provision" ("PIP"). This provision provides that a registered voter who lacks the photo ID required to vote in person on election day may cast a regular ballot if she or he is positively identified by two election officials as a voter on the poll list who is eligible to vote and the two election officials sign a sworn affidavit so stating. Notably, the 2003 law (which included the PIP) was precleared by the Department of Justice; the PIP was cleared as an acceptable "fail-safe" provision.6

One Alabama State Senator, Larry Dixon, sponsored several unsuccessful voter ID bills during his tenure in the Alabama legislature from 1995-2010. Senator Dixon was seen as a leader on the photo ID issue by proponents of the requirement. In 1996, Senator Dixon stated that "the fact you don't have to show an ID is very beneficial to the black power structure and the rest of the Democrats." Later, in 2001, Senator Dixon said that voting without photo IDs "benefits black elected leaders, and that's why [black legislators are] opposed to it." Years later, in 2010, in a meeting with several other legislators, State Senator Scott Beason recorded Senator Dixon saying: "Just keep in mind if [a pro- gambling] bill passes and we have a referendum in November, every black in this state will be bused to the polls. And that ain't gonna help. . . Every black, every illiterate [will] be bused on HUD financed buses." In a separate recorded meeting, Senator Beason referred to people who are black as "Aborigines." 7 Senator Dixon retired in 2010 and was not in the legislature when the voter ID law at issue in this case was passed in 2011.[8]

Between 2003 and the 2011 passage of the now-challenged Alabama law, a plethora of other states also passed voter ID laws. By 2000, fourteen other states required some kind of ID in order to vote. In 2005, the bipartisan Commission on Federal Election Reform-chaired by former President Jimmy Carter and former U.S. Secretary of State James Baker-recommended that states move toward implementing a voter ID requirement to deter and detect fraud and to inspire public confidence in elections. See Report of the Commission on Federal Election Reform, Building Confidence in U.S. Elections § 2.5 (Sept. 2005). The Report noted that twenty-four states required identification for voters, "with some systems likely to restrict registration." The report nevertheless recommended "a photo ID system for voters designed to increase registration with a more affirmative and aggressive role for states in finding new voters and providing free IDs for those without driver's licenses." Id. at ii (Letter from the Co-Chairs). The Commission recommended states reach out to "non-drivers by providing more offices, including mobile ones, to register voters and provide photo IDs free of charge." Id. at iv (Executive Summary).

In 2008, the Supreme Court decided Crawford v. Marion County Election Board, 553 U.S. 181 (2008), which upheld an Indiana voter ID law requiring the presentation of a government-issued photo ID in order to vote. The Supreme Court's decision in Crawford generally affirmed the facial validity of voter ID laws.

On June 25, 2013, the Supreme Court issued its opinion in Shelby County, Alabama v. Holder, 570 U.S. 529 (2013), declaring unconstitutional Section 4(b) of the Voting Rights Act, 52 U.S.C. § 10303(b), which is the coverage provision of Section 5 of the Act. 570 U.S. at 557. Without Section 4(b), Section 5 has no present effect. Thus, the Shelby County decision resulted in Alabama no longer being subject to the preclearance requirement. The day after

Shelby County was decided, the Alabama Attorney General and Secretary of State announced that the result of the Shelby County ruling was that laws like Alabama's voter ID law could move forward without preclearance. The 2011 Alabama voter ID law went into effect in 2014, as planned.

B. The Passage of House Bill 19

The 2011 voter ID law began as House Bill 19 and was pre-filed with the

Alabama legislature on February 25, 2011. HB19 was sponsored by Representative Kerry Rich.9 Senator Beason was a co-sponsor of Senate Bill 86, the Senate's identical companion bill to HB19 during the 2011 legislative session.

During the legislative session, HB19 was considered by the House Standing Committee on Constitution, Campaigns, and Elections. The committee acted favorably on the bill, recommending a substitute and an amendment. On March 22, 2011, the House considered whether to approve the substitute and the amendment. In the end, the House adopted the substitute and rejected the amendment. The parties dispute details about the ultimate passage of HB19, but it is undisputed that: (1) the Senate invoked cloture, 10 (2) not a single black senator who was present voted in favor of HB19, (3) the House passed it by a largely party-line vote of 64-31, and (4) the...

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