Greater Birmingham Ministries v. Sec'y of State for Ala.
| Citation | 997 F.3d 1363 (Mem) |
| Decision Date | 01 June 2021 |
| Docket Number | No. 18-10151,18-10151 |
| 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. |
| Court | U.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, Natasha Clarise Merle, 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 Secretary of State for the State of Alabama
Julie Ebenstein, American Civil Liberties Union Foundation, New York, NY, Dale E. Ho, American Civil Liberties Union Foundation, New York, NY, 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 Amicus Curiae AMERICAN CIVIL LIBERTIES UNION, Matthew J. Higgins, Hogan Lovells US, LLP, Washington, DC, for Amicus Curiae American Civil Liberties UNION
Julie Ebenstein, American Civil Liberties Union Foundation, New York, NY, Dale E. Ho, American Civil Liberties Union Foundation, New York, NY, Danielle Marie Lang, Paul March Smith, Campaign Legal Center, Washington, DC, Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, Matthew J. Higgins, Hogan Lovells US, LLP, Washington, DC, Montgomery, AL for Amicus Curiae American Civil Liberties Union of Alabama, Campaign Legal Center
Starr Turner Drum, John C. Neiman, Jr., Maynard Cooper & Gale, PC, Birmingham, AL, Michael W. Robinson, Alabama Department of Public Safety, Montgomery, AL, for Amicus Curiae SERVICE.
Jonathan Edward Paikin, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC, for Amicus Curiae Joshua A. Douglas, Ellen D. Katz, Daniel P. Tokaji, Franita Tolson.
Samuel J. Brooke, Southern Poverty Law Center, Montgomery, AL, for Amicus 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, Montgomery Pride United.
Samuel J. 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 Amicus Curiae Judicial Watch, Inc., State of Michigan.
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges.*
A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this appeal should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this appeal will not be reheard en banc.
BRANCH, Circuit Judge, respecting the denial of rehearing en banc:
A majority of the Court has voted not to rehear this case en banc. Although the panel opinion fully addresses my dissenting colleague's arguments, see Greater Birmingham Ministries v. Sec'y of State , 992 F.3d 1299 (11th Cir. 2021), I write to emphasize three points.
First , the dissent argues that our discussion of Crawford v. Marion County Election Board , 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), was improper. But Crawford is Supreme Court precedent, and we are bound to follow it. See United States v. Johnson , 921 F.3d 991, 1001 (11th Cir. 2019). In Crawford , the Supreme Court held that Indiana's interests in deterring and detecting voter fraud, improving and modernizing election procedures, addressing mismanagement of voter rolls, and safeguarding voter confidence were "unquestionably relevant to the State's [legitimate] interest in protecting the integrity and reliability of the electoral process." 553 U.S. at 191, 128 S.Ct. 1610. Alabama invoked nearly identical interests here and it thus would have been inappropriate for us to ignore Crawford .1
Second , the dissent faults us for questioning the applicability of the Gingles factors to vote denial claims under Section 2 of the VRA. See Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Nevertheless, it admits that " Gingles is a case that addresses claims of vote dilution , not of vote denial , brought under VRA § 2." I agree that this distinction is meaningful. See Greater Birmingham Ministries , 992 F.3d at 1331–32.
We were not the first to question the applicability of the Gingles factors to vote denial claims. The First and Sixth Circuits have also done so. See Ne. Ohio Coal. for the Homeless v. Husted , 837 F.3d 612, 626 (6th Cir. 2016) (); Simmons v. Galvin , 575 F.3d 24, 42 n.24 (1st Cir. 2009) ().
Because the Gingles factors originated in the vote dilution context, several of the factors do not fit into a vote denial analysis. Consider these factors: "unusually large election districts, majority vote requirements, prohibitions against bullet voting, candidate slating processes, racial appeals in political campaigns, or minorities being elected to public office." Id . at 1332. The dissent does not explain how these factors fit into a vote denial analysis; its only response is to say that "not all factors need to be met for [ Gingles ] to apply." But this unsatisfactory response fails to demonstrate that the panel opinion was wrong to question the applicability of the Gingles factors here.
Third , the dissent argues that we misapplied the summary judgment standard. This criticism rehashes the panel dissent's arguments, which the panel opinion thoroughly rebutted and rejected. One point bears repeating. The dissent argues that we improperly resolved a dispute of material fact because "[p]laintiffs offered evidence showing that the photo ID law affects more than 118,000 voters." But that argument ignores circuit precedent—precedent that the dissent itself quotes: "When considering disparate effect the focus should not be on absolute numbers but rather on whether the challenged requirements operate to disqualify [minority voters] at a substantially higher rate." Williams v. City of Dothan , 818 F.2d 755, 764 (11th Cir. 1987) (quotation omitted).
The panel opinion considered whether Alabama's law operated to disqualify minority voters at a substantially higher rate than white voters and concluded that it does not. "There is only a 1% difference between the ID possession rates of white and minority Alabama voters." Greater Birmingham Ministries , 992 F.3d at 1330. Although the dissent calculates that minority voters are up to 2.10 times more likely than white voters to lack a qualifying photo ID, that calculation is "a misuse of data," because the small numbers involved "mask[ ] the fact that the populations [are] effectively identical." Greater Birmingham Ministries , 992 F.3d at 1330 (quoting Frank v. Walker , 768 F.3d 744, 753 n.3 (7th Cir. 2014) ).
"It is undisputed that approximately 99% of white voters and 98% of black voters possess a photo ID." Id . at 1329. Because "[t]here is only a 1% difference between the ID possession rates of white and minority Alabama voters," id . at 1330, the panel did not err in affirming the district court's decision.
MARTIN, Circuit Judge, joined by WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges, dissenting from the denial of rehearing en banc:
I believe the panel opinion in Greater Birmingham Ministries v. Secretary of State for Alabama ("GBM"), 992 F.3d 1299 (11th Cir. 2021), erred on several points of interpretation.1 I asked the whole court to reconsider the panel opinion, but the majority of active judges voted to leave the panel opinion in place. I therefore write in dissent to memorialize the problems created by the panel opinion, which now stands as the law of our Circuit.
The Plaintiffs who brought this suit are the 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. Together they challenge Alabama's 2011 Photo Voter Identification Law, Ala. Code § 17-9-30 ("photo ID law")2 GBM, 992 F.3d at 1304–05. The photo ID law requires all Alabama voters to present a photo ID when casting in-person and absentee votes. Id. at 1304. Plaintiffs believe the photo ID law discriminates on the basis of...
To continue reading
Request your trial