Thompson v. State, CIVIL CASE NO. 2:16-cv-783-ECM

• Decision Date: 03 December 2019
• Docket Number: CIVIL CASE NO. 2:16-cv-783-ECM
• Parties: Treva THOMPSON, et al., Plaintiffs, v. State of ALABAMA, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

428 F.Supp.3d 1296

Treva THOMPSON, et al., Plaintiffs,

v.State of ALABAMA, et al., Defendants.

CIVIL CASE NO. 2:16-cv-783-ECM

United States District Court, M.D. Alabama, Northern Division.

Signed December 3, 2019

Aderson B. Francois, Pro Hac Vice, Danielle Lang, Pro Hac Vice, Joseph Gerald Hebert, Pro Hac Vice, Mark Peter Gaber, Pro Hac Vice, Molly Elizabeth Danahy, Institute for Public Representation, Jennifer J. Yun, Pro Hac Vice, Jessica Ring Amunson, Pro Hac Vice, Michael E. Stewart, Pro Hac Vice, Jenner & Block LLP, Washington, DC, Armand Derfner, Pro Hac Vice, Derfner & Altman LLC, Charleston, SC, James Uriah Blacksher, Attorney at Law, Birmingham, AL, Jason P. Hipp, Pro Hac Vice, Jenner & Block LLP, New York, NY, Joseph Mitchell McGuire, McGuire & Associates LLC, Montgomery, AL, Pamela Karlan, Pro Hac Vice, Stanford Law School, Stanford, CA, for Plaintiffs.

James William Davis, Brad A. Chynoweth, Winfield James Sinclair, Laura Elizabeth Howell, Office of the Alabama Attorney General, Montgomery, AL, for Defendants.

MEMORANDUM OPINION and ORDER

EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE

Now pending before the Court are a renewed motion to dismiss, motion to dismiss supplemental complaint, or in the alternative, motion for summary judgment (Doc. 95) filed by the Defendants on March 15, 2018; a cross-motion for summary judgment on count 18 (Doc. 97) filed by the Plaintiffs on April 5, 2018; and a motion to strike untimely declaration (Doc. 109) filed by the Defendants on May 22, 2018.

Upon consideration of the complaint, the supplemental complaint, the motions, and the briefs and submissions of the parties, and for the reasons that follow, the Defendants' renewed motion to dismiss is due to be DENIED, the motion to dismiss is due to be GRANTED in part and DENIED in part, the motions for summary judgment are due to be DENIED, and the motion to strike is due to be DENIED as moot.

I. FACTS and PROCEDURAL HISTORY

The individual Plaintiffs are citizens who either have been denied applications to vote because of, or have not registered to vote due to uncertainty arising from, the Alabama Constitution's exclusion from voting of persons convicted of crimes of moral turpitude. The organizational plaintiff, Greater Birmingham Ministries ("GBM"), expends resources to help individuals with felony convictions determine if they are eligible to vote or to have their voting rights restored.

In 1996, an amendment to the Alabama Constitution was ratified which provides that "[n]o person convicted of a felony involving moral turpitude ... shall be qualified to vote until restoration of civil and political rights." Ala. Const. art. VIII, § 177 (b). This section did not define "moral turpitude." A separate statute, Ala. Code § 15-22-36.1(a)(3), sets out the procedure for a person to apply to the Board of Pardons and Paroles for a Certificate of Eligibility to Register to Vote.

On September 26, 2016, the Plaintiffs filed a putative class-action complaint in this Court challenging Alabama Constitution § 177 (b) and Ala. Code § 15-22-36.1(a)(3).

The Defendants filed a motion to dismiss the original complaint on November 16, 2016. (Doc. 43).

House Bill 282 ("HB 282"), codified at Ala. Code § 17-3-30.1, went into effect on August 1, 2017, and defines crimes of moral turpitude. The statute lists forty-seven crimes tied to specific Alabama Criminal Code Sections and lists crimes "as defined by the laws of the United States or by the laws of another state, territory, country, or other jurisdiction, which, if committed in this state, would constitute one of the offenses listed in this subsection." Ala. Code § 17-3-30.1(c).

On December 26, 2017, the Court denied the Defendants' motion to dismiss in part and granted it in part. (Doc. 80). The Court concluded that counts asserting vagueness of § 177 (b) were mooted by Ala. Code. § 17-3-30.1 and dismissed those counts. (Doc. 80 at 28).

With respect to counts 1 and 2, which are claims that section 177(b) of the Alabama Constitution violates the Fourteenth and Fifteenth Amendments, this Court found as follows:

Here, without suggesting any view on whether Plaintiffs ultimately will be able to prove intentional discrimination and having considered Defendants' arguments, the court finds, under Arlington Heights that the law's impact, its historical context, and the events leading up to the enactment of section 177 (b) are sufficient to allege a plausibly discriminatory intent to disenfranchise black voters.

(Doc. 80 at 14).

As to counts 11 and 12, which are claims that section 177 (b) is an Ex post facto law that retroactively punishes citizens and violates the Eighth Amendment's proscription against cruel and unusual punishment, this Court found as follows:

Absent developed arguments from Defendants, the court declines to formulate the arguments, to attempt to discern the legislature's intent behind section 177 (b)'s enactment, and to apply the multiple factors relevant to that analysis. That analysis is better left for another stage of this lawsuit, on an evidentiary record and on reasoned arguments.

(Doc. 80 at 30-31).

As to count 13, the Court concluded that the parties had not adequately addressed in briefing the level of scrutiny to be applied in the analysis and found even rational basis review did not justify dismissal on the Defendants' thin arguments. (Doc. 80 at 35).

As a result of this Court's Order, the Plaintiffs proceeded on their claims in counts 1, 2, 11, 12, and 13. (Doc. 80 at 40).

On March 1, 2018, the Plaintiffs filed a supplemental complaint (Doc. 93).¹ In it, the Plaintiffs have alleged that the Alabama Secretary of State unilaterally determined that HB 282 applies retroactively to persons convicted of crimes prior to the effective date of HB 282. (Doc. 93 at ¶14). They contend that the statute is plainly written to apply prospectively. In their supplemental complaint, the Plaintiffs added factual allegations to counts 1, 2, 11, 12, and 13 and added counts 16, 17, and 18. Count 16 is a claim that the Secretary of State's determination that HB 282 applies retroactively is contrary to the language of the statute and therefore violates the Due Process Clause of the Fourteenth Amendment. Count 17 is a claim that the retroactive application of Ala. Code § 17-3-30.1 violates the Due Process Clause.

Count 18 is a claim for violation of the National Voter Registration Act of 1993, 52 U.S.C. § 20501 et seq. ("NVRA"). The Plaintiffs challenge two forms: the State of Alabama Mail-In Voter Registration Form ("State Form") and the state-specific instructions for Alabama on the National Mail Registration Form ("Federal Form"). The Plaintiffs' statutory claim is that Defendants failed to include complete voter eligibility requirements on the forms in violation of the NVRA by referring only to "disqualifying felonies" without listing those felonies. At the time of the supplemental complaint, the State Form stated simply that to register to vote in Alabama a person must not have been convicted of a disqualifying felony, or if the person has been convicted, must have had their civil rights restored. (Doc. 93 at ¶ 19).

In response to the supplemental complaint, the Defendants filed a motion to dismiss which renews their motion to dismiss as to counts 1, 2, 11, 12, and 13; which seeks dismissal of counts 16, 17, and 18; and which alternatively moves for summary judgment as to count 18. The Plaintiffs have cross-moved for summary judgment as to count 18.

On July 23, 2019, the Defendants filed a notice with the Court and attached to that notice a revised State Form (Doc. 171-1 at 4) which states in the requirements section that to register to vote you must not "have been convicted of a disqualifying felony, or if you have been convicted, you must have had your civil rights restored." In the Voter Declaration section, the form now also includes this statement: "I am not barred from voting by reason of a disqualifying felon conviction (The list of disqualifying felonies is available on the Secretary of State's web site at: sos.alabama.gov/mtfelonies)." (Doc. 171-1 at 4). The State instructions for the Federal Form now state that to register in Alabama you must "not have been convicted of a felony involving moral turpitude (or have had your civil and political rights restored). The list of moral turpitude felonies is available on the Secretary of State web site at: sos.alabama.gov/mtfelonies." (Doc. 171 at 2).

The parties have advanced arguments regarding the revised forms in notices to the Court filed by the Defendants and a response to Defendants' notice filed by the Plaintiffs. (Doc. 161, 164, 171). The parties have also filed supplemental notices regarding two non-binding decisions. (Doc. 173, 174).

II. LEGAL STANDARDS

A. Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U. S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U. S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

"Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663, 129 S.Ct. 1937 (alteration in original) (citation omitted). The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U. S. at 678, 129 S.Ct. 1937. Conclusory allegations that are merely "conceivable" and fail to rise "above the speculative level" are insufficient to meet the plausibility standard. Twombly , 550 U. S. at 555, 570, 127 S.Ct. 1955...