People First of Ala. v. Merrill

• Decision Date: 30 September 2020
• Docket Number: Civil Action Number 2:20-cv-00619-AKK
• Citation: 491 F.Supp.3d 1076
• Parties: PEOPLE FIRST OF ALABAMA, et al., Plaintiffs, v. John MERRILL, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

491 F.Supp.3d 1076

PEOPLE FIRST OF ALABAMA, et al., Plaintiffs,

v.John MERRILL, et al., Defendants.

Civil Action Number 2:20-cv-00619-AKK

United States District Court, N.D. Alabama, Southern Division.

Signed September 30, 2020

Caren Elaine Short, Southern Poverty Law Center, Decatur, GA, Jenny R. Ryan, Maia Fleischman, Pro Hac Vice, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Katrina Robson, Pro Hac Vice, Peter Friedman, Pro Hac Vice, Stephen D. Brody, Pro Hac Vice, O'Melveny & Myers LLP, Washington D.C., Randall C. Marshall, American Civil Liberties Union of Alabama Foundation, Inc, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Davin Rosborough, American Civil Liberties Union, Deuel Ross, Pro Hac Vice, Liliana Zaragoza, Pro Hac Vice, Natasha Merle, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc, Steven Lance, Pro Hac Vice, NAACP Legal Defense Andeducational Fund, Inc, New York, NY, Mahogane D. Reed, Pro Hac Vice, NAACP Legal Defense and Educational Fund Inc, Sarah Brannon, American Civil Liberties Union, 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, Maia Fleischman, Pro Hac Vice, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Katrina Robson, Pro Hac Vice, Peter Friedman, Pro Hac Vice, Stephen D. Brody, Pro Hac Vice, O'Melveny & Myers LLP, Washington D.C., Randall C. Marshall, American Civil Liberties Union of Alabama Foundation, Inc, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Davin Rosborough, American Civil Liberties Union, 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, Sarah Brannon, American Civil Liberties Union, Washington, DC, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, AL, for Plaintiff Eric Peebles.

Caren Elaine Short, Southern Poverty Law Center, Decatur, GA, Jenny R. Ryan, Maia Fleischman, Pro Hac Vice, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Katrina Robson, Pro Hac Vice, Peter Friedman, Pro Hac Vice, Stephen D. Brody, Pro Hac Vice, O'Melveny & Myers LLP, Washington D.C., Randall C. Marshall, American Civil Liberties Union of Alabama Foundation, Inc, Sara M. Zampierin, Southern Poverty Law Center, Montgomery, AL, Alora Thomas-Lundborg, Davin Rosborough, American Civil Liberties Union, 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, Sarah Brannon, American Civil Liberties Union, Washington, DC, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, AL, for Plaintiffs Black Voters Matter Capacity Building Institute, Teresa Bettis, Sheryl Threadgill-Matthews.

James W. Davis, Andrew Reid Harris, Winfield J. Sinclair, Misty Shawn Fairbanks Messick, Alexander Barrett Bowdre, Brenton Merrill Smith, Jeremy Stone Weber, Office of the Attorney General for the State of Alabama, Montgomery, AL, for Defendant John Merrill.

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

James W. Davis, Misty Shawn Fairbanks Messick, Alexander Barrett Bowdre, Brenton Merrill Smith, Jeremy Stone Weber, Office of the Attorney General for the State of Alabama, 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.

Todd David Engelhardt, Robert F. Dyar, Adams and Reese, LLP, Birmingham, AL, Aubrey Patrick Dungan, Jay M. Ross, Adams and Reese, LLP, Mobile, AL, James W. Davis, Office of the Attorney General, Montgomery, AL, for Defendant JoJo Schwarzauer.

Thomas T. Gallion, III, Constance C. Walker, Haskell Slaughter Gallion & Walker, LLC, Tyrone Carlton Means, Norbert H. Williams, Means Gillis Law LLC, Montgomery, AL, for Defendants Gina Jobe Ishman, J C Love, III.

Jerome E. Speegle, Jennifer S. Holifield, Speegle, Hoffman, Holman & Holified, LLC, Lee Louis Hale, Mobile, AL, James W. Davis, Office of the Attorney General, Montgomery, AL, for Defendant Don Davis.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

Voting is an inviolable right, occupying a sacred place in the lives of those who fought to secure the right and in our democracy, because it is "preservative of all rights."¹ The parties do not dispute those fundamental truths. The parties' dispute centers instead on whether three provisions of Alabama's election laws—the requirement that a notary or two witnesses sign absentee ballot affidavits, the requirement that absentee voters submit a copy of their photo ID with an absentee ballot application, and the de facto ban on curbside voting² —violate the right to vote in light of the COVID-19 pandemic.

The plaintiffs assert that the defendants' enforcement of the Challenged Provisions during the pandemic compels voters to risk exposure to COVID-19 in order to exercise their right to vote, leading to potentially deadly consequences for vulnerable voters whose age, race, disabilities, or health conditions place them at heightened risk from the virus. The plaintiffs contend that forcing voters to bear that risk runs afoul of their fundamental right to vote and violates federal law, and they seek an order barring the defendants from enforcing the Challenged Provisions for the general election in November. Without this relief, the plaintiffs believe voters will face an impossible choice between jeopardizing their health by engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic.

These issues are important to all people, but the plaintiffs find them particularly significant. Their testimony speaks for itself. Plaintiff Eric Peebles, an Alabama voter who uses a wheelchair and suffers from spastic cerebral palsy

, described what voting means for people with disabilities:

"Voting is important to me because as a person with a disability and for people with disabilities, voting is the one way that we can participate .... Voting is blind. Everybody's ballot looks the same when you're counting them."³ Susan Ellis, the executive director of plaintiff People First, echoed that sentiment: "[Voting is] a way to have a visible participation in policy making, and decision making, and law making. ... [O]ur members are proud to ... be examples to our community that people with intellectual and developmental disabilities are valued citizens and want to express and be seen expressing the right to vote."⁴ Many Black Alabamians, another group with a historically fraught relationship with the franchise, feel the same. As plaintiff Howard Porter, Jr., a Black man in his seventies, earnestly expressed: "[S]o many of my [ancestors] even died to vote. And while I don't mind dying to vote, I think we're past that – we're past that time."⁵ Mr. Porter believes that voting should be as easy and secure as possible because Election Day "is the only day that rich, the poor, sick, the healthy, all should be counted as one and just as easy."⁶ Similarly, plaintiff Annie Carolyn Thompson, a sixty-eight-year-old Black woman, explained that the importance of voting "has been instilled in [her] from a young person because of ... how hard it was for us to get the right to vote, the things that some of my ancestors had to go through in order to get the right to vote ...."⁷ Thus, she concluded, "[T]he right to vote is very important to me, and I do not take it lightly."⁸

Neither do the defendants. Alabama Secretary of State John Merrill, for example, testified that he wants every eligible voter who wishes to vote in November to do so "[w]ithout any obstacle being placed in their way."⁹ However, he and the other defendants maintain that the Challenged Provisions are necessary to preserve the legitimacy of the general election by preventing voter fraud and safeguarding voter confidence. The defendants also contend that the Challenged Provisions do not impose any undue burdens on the plaintiffs, especially when balanced against the State's interests, and that enjoining the Challenged Provisions so close to the election will result in voter confusion and unduly burden the defendants.

Based on the evidence presented during the trial the court held from September 8 to 18, the plaintiffs have proved that their fears are justified. As applied during the COVID-19 pandemic, the Challenged Provisions unduly burden the fundamental Constitutional rights of Alabama's most vulnerable voters and violate federal laws designed to protect America's most marginalized citizens. That is for three reasons. First, because the Challenged Provisions only marginally advance the State's interests in maintaining them while significantly burdening the right to vote, all three provisions violate the First and Fourteenth Amendments during the pandemic. Second, because the photo ID requirement and the de facto curbside voting ban make voting inaccessible for voters with disabilities, both those provisions violate the Americans with Disabilities Act during the pandemic. Finally, because the witness requirement interacts with...