Greater Birmingham Ministries v. Sec'y of State for Ala., 18-10151

Decision Date09 April 2021
Docket NumberNo. 18-10151,18-10151
Citation992 F.3d 1299
Parties GREATER BIRMINGHAM MINISTRIES, Alabama State Conference of the National Association for the Advancement of Colored People, Giovana Ambrosio, Elizabeth Ware, Shameka Harris, Plaintiffs - Appellants, v. SECRETARY OF STATE FOR the STATE OF ALABAMA, Defendant - Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Deuel Ross, Leah Aden, Natasha Clarise Merle, Samuel Spital, NAACP Legal Defense & Educational Fund, Inc., NEW YORK, NY, Ryan M. Buschell, Robert D. Fram, Joshua A. Gonzalez, Sylvia Huang, Richard B. Oatis, Nathan E. Shafroth, Covington & Burling, LLP, SAN FRANCISCO, CA, John Michael Geise, Perkins Coie, LLP, WASHINGTON, DC, Joanne B. Grossman, James MaCall Smith, Covington & Burling, LLP, WASHINGTON, DC, Daniel Scott Harawa, Coty Rae Montag, NAACP Legal Defense and Educational Fund, Inc, WASHINGTON, DC, Joseph Mitchell McGuire, McGuire & Associates, LLC, MONTGOMERY, AL, Swati R. Prakash, Covington & Burling, LLP, NEW YORK, NY, Nana Wilberforce, Wilmer Cutler Pickering Hale & Dorr, LLP, WASHINGTON, DC, for Plaintiffs - Appellants.

James W. Davis, Steven Marshall, Corey L. Maze, Misty Shawn Fairbanks Messick, Winfield J. Sinclair, Alabama Attorney General's Office, MONTGOMERY, AL, for Defendant - Appellee.

Julie Ebenstein, Dale E. Ho, American Civil Liberties Union Foundation, NEW YORK, NY, Matthew J. Higgins, Hogan Lovells US, LLP, WASHINGTON, DC, Danielle Marie Lang, Paul March Smith, Campaign Legal Center, WASHINGTON, DC, Randall C. Marshall, American Civil Liberties Union, MONTGOMERY, AL, Ezra D. Rosenberg, Lawyers' Committee for Civil Rights Under Law, Voting Rights Project, WASHINGTON, DC, for Amici Curiae AMERICAN CIVIL LIBERTIES UNION, CAMPAIGN LEGAL CENTER, and LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW.

Julie Ebenstein, Dale E. Ho, American Civil Liberties Union Foundation, NEW YORK, NY, Matthew J. Higgins, Hogan Lovells US, LLP, WASHINGTON, DC, Danielle Marie Lang, Paul March Smith, Campaign Legal Center, WASHINGTON, DC, Randall C. Marshall, American Civil Liberties Union, MONTGOMERY, AL, for Amicus Curiae AMERICAN CIVIL LIBERTIES UNION OF ALABAMA.

Jonathan Edward Paikin, Wilmer Cutler Pickering Hale & Dorr, LLP, WASHINGTON, DC, for Amici Curiae JOSHUA A. DOUGLAS, ELLEN D. KATZ, DANIEL P. TOKAJI, and FRANITA TOLSON.

Samuel Jacob Brooke, Southern Poverty Law Center, MONTGOMERY, AL, for Amici Curiae SOUTHERN POVERTY LAW CENTER, LEAGUE OF WOMEN VOTERS OF ALABAMA, ADELANTE ALABAMA WORKER CENTER, ALABAMA ARISE, CENTRAL ALABAMA FAIR HOUSING CENTER, LOW INCOME HOUSING COALITION OF ALABAMA, and MONTGOMERY PRIDE UNITED.

Samuel Jacob Brooke, Southern Poverty Law Center, MONTGOMERY, AL, James Uriah Blacksher, James U. Blacksher, Attorney, BIRMINGHAM, AL, for Amicus Curiae ALABAMA LEGISLATIVE BLACK CAUCUS.

Thomas Molnar Fisher, Office of the Attorney General, INDIANAPOLIS, IN, for Amicus Curiae STATE OF INDIANA.

John J. Park, Jr., Strickland Brockington Lewis, LLP, ATLANTA, GA, for Amicus Curiae AMERICAN CIVIL RIGHTS UNION.

Paul Joseph Orfanedes, Judicial Watch, Inc., WASHINGTON, DC, for Amici Curiae JUDICIAL WATCH, INC. and ALLIED EDUCATIONAL FOUNDATION.

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

BRANCH, Circuit 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.

I. BACKGROUND

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...

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