People First of Ala. v. Merrill

Decision Date15 June 2020
Docket NumberCivil Action Number 2:20-cv-00619-AKK
Citation467 F.Supp.3d 1179
Parties PEOPLE FIRST OF ALABAMA, et al., Plaintiffs, v. John MERRILL, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Caren Elaine Short, Southern Poverty Law Center, Decatur, GA, Jenny R. Ryan, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Deuel Ross, Pro Hac Vice, Liliana Zaragoza, Pro Hac Vice, Natasha Merle, Pro Hac Vice, Steven Lance, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., New York, NY, Mahogane D. Reed, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., Washington, DC, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, AL, for Plaintiffs People First of Alabama, Howard Porter, Jr., Annie Carolyn Thompson, Greater Birmingham Ministries, Alabama State Conference of the NAACP.

Caren Elaine Short, Southern Poverty Law Center, Decatur, GA, Jenny R. Ryan, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Deuel Ross, Pro Hac Vice, Natasha Merle, Pro Hac Vice, Steven Lance, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., New York, NY, Mahogane D. Reed, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., Washington, DC, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, AL, for Plaintiff Robert Clopton.

Caren Elaine Short, Southern Poverty Law Center, Decatur, GA, Jenny R. Ryan, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Deuel Ross, Steven Lance, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., New York, NY, Mahogane D. Reed, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc., Washington, DC, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, AL, for Plaintiff Eric Peebles.

James W. Davis, Winfield J. Sinclair, Misty Shawn Fairbanks Messick, Brenton Merrill Smith, Jeremy Stone Weber, Office of the Attorney General, Montgomery, AL, for Defendants John Merrill, Kay Ivey.

James W. Davis, Misty Shawn Fairbanks Messick, Brenton Merrill Smith, Jeremy Stone Weber, Office of the Attorney General, Montgomery, AL, for Defendant State of Alabama (The).

Jay M. Ross, Aubrey Patrick Dungan, Adams and Reese LLP, Mobile, AL, Todd David Engelhardt, Robert F. Dyar, Adams and Reese, LLP, Birmingham, AL, for Defendant Alleen Barnett.

Donald McKinley Carroll, Theodore A. Lawson, II, Jefferson County Attorney's Office, Birmingham, AL, for Defendants Jacqueline Anderson-Smith, Karen Dunn Burks.

Brandon Keith Essig, Robert Jackson Sewell, Lightfoot Franklin & White LLC, Birmingham, AL, for Defendant Mary B. Roberson.

MEMORANDUM OPINION

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

"Voting is the beating heart of democracy. It is a fundamental political right, because it is preservative of all rights."1 One group that consistently exercises this right at higher rates of participation is persons 65 or older.2 It is also a group that is at substantially higher risk during the current COVID-19 pandemic. The individual plaintiffs in this case are generally over 65,3 have underlying medical conditions, and qualify as individuals with disabilities under the Americans with Disabilities Act. The plaintiffs assert that Alabama's election laws—specifically, the requirement that a notary or two witnesses must sign absentee ballots, the requirement that absentee voters must submit a copy of their photo ID, and the state's de facto ban on curbside voting—run afoul of the fundamental right to vote and violate federal law in light of the COVID-19 pandemic. To ensure that the individual plaintiffs and those similarly situated to them can continue to exercise their fundamental political right to vote without jeopardizing their health during this pandemic, the plaintiffs filed this lawsuit on May 1 seeking relief.

COVID-19 is a novel respiratory disease that can cause severe complications, including respiratory failure and death, and it has spread rapidly around the world, resulting in more than 115,000 deaths in the United States alone and leading to numerous restrictions ordered by states to try to curb this extraordinary public health crisis. Although COVID-19 presents risks to the entire population, people who have underlying medical conditions, such as diabetes

or hypertension, or who are over 65, African-American, or disabled have substantially higher risk of developing severe cases or dying of COVID-19. The individual plaintiffs are in those high-risk groups, and to protect their health, these plaintiffs have complied with relevant public health guidelines by self-isolating or limiting their interactions with others to reduce their exposure to COVID-19. The plaintiffs contend that the challenged election laws force them and similarly-situated voters to choose between jeopardizing their health by leaving their homes and engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic. And, because we are in the middle of a pandemic that, at least at this juncture, has no end in sight, the plaintiffs seek a preliminary injunction barring the defendants from enforcing these requirements so that they can exercise their right to vote by absentee ballot or by curbside voting from the safety of their cars in those jurisdictions, if any, that are willing to implement this practice.

On the other hand, the defendants contend that the challenged laws are necessary to preserve the legitimacy of upcoming elections by preventing voter fraud and safeguarding voter confidence. But, the plaintiffs have shown that Alabama has other election law provisions that are effective at preventing fraud and safeguarding voter confidence, including laws requiring all absentee voters to identify themselves by providing a driver's license number or the last four digits of their social security number and to submit an affidavit signed under penalty of perjury verifying their identity. And, Alabama already waives the photo ID requirement for absentee voters 65 or older who also have a physical infirmity that renders them unable to access their assigned polling place. As to the photo ID requirement, the individual plaintiffs who are 65 or older or who suffer from a disabling condition seek only to be included in this exemption and to allow them to vote by absentee ballot without providing a copy of their photo ID with their absentee ballot applications.

The plaintiffs seek relief that the state already affords to certain individuals (waiver of the photo ID requirement), or, as the defendants acknowledge, is not prohibited by state law (barring enforcement of the de facto ban on curbside voting), or that, in light of other provisions of state election law, will not undermine the state's interest in preventing voter fraud (waiver of the witness requirement). Therefore, because the plaintiffs have shown that the challenged laws will likely dissuade some citizens from voting and "even one disenfranchised voter ... is too many,"4 the court finds that the burdens imposed by the challenged election laws on voters at high risk of severe complications or death from COVID-19 are not justified by the state's interests in enforcing the laws.

As a result, and for the reasons explained below, the court will grant the plaintiffsmotion for a preliminary injunction in part, and, as to the July 14 runoff election, the court will enjoin: (1) the witness requirement for absentee ballots for voters who cannot safely obtain the signatures of two witnesses or a notary public due to the COVID-19 pandemic; (2) the photo ID requirement for absentee voters who are over the age of 65 or disabled and who cannot safely obtain a copy of their photo ID due to the COVID-19 pandemic; and (3) the state's de facto ban on curbside voting to permit jurisdictions willing to implement such a practice, if any, to do so.

This opinion is divided as follows. Part I briefly outlines the impact of COVID-19 and the plaintiffs’ claims. Part II addresses the defendants’ contentions related to standing, sovereign immunity, mootness, and justiciability. After determining that the issue is properly before the court, Part III turns to the plaintiffsmotion for a preliminary injunction and addresses the plaintiffs’ likelihood of success on the merits of each of their claims. In Part IV, the court addresses the remaining requirements for an injunction. Finally, Part V concludes and describes the injunctive relief the court will grant at this juncture.

I.

Alabama has seen over 25,000 confirmed cases, and more than 700 deaths, from COVID-19. Doc. 16-4 at 3; Coronavirus Disease 2019 (COVID-19) , https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html, (last visited June 15, 2020). "At this time, there is no known cure, no effective treatment, and no vaccine." S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring).

All persons are susceptible to contracting the virus, and people of all demographics have endured severe cases, but some groups have a substantially higher risk of developing complications and dying from COVID-19. Doc. 16-4 at 3–4. Older patients "are at the greatest risk" of experiencing "severe cases, long-term impairment, and death" from the virus. Id. at 3. Additionally, those with pre-existing conditions, such as hypertension

, certain heart conditions, lung diseases, diabetes, and obesity, "are at high risk of a life-threatening COVID-19 illness."5

Id. at 4. Available evidence also shows that, if infected, "racial and ethnic minority populations, especially African-Americans, are at a substantially elevated risk of developing life-threatening COVID-19 illnesses"...

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    • United States
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    ...minimal levels of effectiveness in advancing the state's interest in preventing election fraud. See People First of Alabama v. Merrill , 467 F. Supp. 3d 1179, 1211–19 (N.D. Ala. 2020), appeal dismissed, United States Court of Appeals, Docket No. 20-12184-GG, 2020 WL 5543717 (11th Cir. July ......
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