Section 177(b) of the Alabama Constitution disenfranchises individuals with convictions of felonies "involving moral turpitude." In 1985, the Supreme Court held that the 1901 drafters of the disenfranchisement provision specifically selected the vague and arbitrary "moral turpitude" standard in order to disenfranchise blacks. Hunter v. Underwood, 471 U.S. 222 (1985). But in 1996, Alabama put the exclusion back into its Constitution (though this time limiting it to felony convictions). The scope of the rule is unclear; in 2005, the state attorney general issued an opinion that did little to correct the ambiguity. A crime of “moral turpitude,” he wrote, is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general.” Whether to allow someone with a felony conviction to register to vote is up to each county's registrar.

This lawsuit was filed in the U.S. District Court for the Middle District of Alabama, on September 26, 2016, to challenge the exclusion. Plaintiffs were a class of unregistered persons otherwise eligible to register to vote in Alabama who were, or who might be in the future, denied the right to vote because of their felony conviction. They were represented by a large consortium of lawyers, including private counsel in Alabama and South Carolina, the Campaign Legal Center, the Washington DC office of Jenner & Block, voting rights expert and Stanford Professor Pam Karlan, and Georgetown Law's Institute for Public Representation. The defendant was the State of Alabama.

The plaintiffs alleged that Alabama's exclusionary law and practices were racially discriminatory in violation of the Fourteenth Amendment's Equal Protection Clause and the Voting Rights Act; and that they abridged the fundamental right to vote in violation of the Fifteenth Amendment, the Fourteenth Amendment (fundamental rights equal protection doctrine), the First Amendment, Due Process, and the Ex Post Facto Clause, among other claims. The plaintiffs also complain that the provisions of Alabama law that allowed convicted felons to petition for restoration of their voting rights if they paid any ordered restitution constituted a poll tax. The plaintiffs sought declaratory relief, injunctive relief, and damages.

The case was assigned to Chief Judge William Keith Watkins. On November 16, 2016, the defendants filed a motion to dismiss for failure to state a claim.

The plaintiffs moved for preliminary injunction on June 30, 2017. The plaintiffs relied on the fact that on May 25, 2017 the Governor signed the Felony Voter Disqualification Act, House Bill 282 (HB 282), which sought "to put an end to this unconstitutional system by establishing a comprehensive list of crimes that 'involve moral turpitude.'" The plaintiffs argued that HB 282 could franchise thousands of eligible voters currently denied the right to vote. As such, the plaintiffs asked the court to compel the defendants to implement HB 282, arguing that the defendants had not taken "any meaningful action to implement HB 282 and advise voters of their rights, including publicizing the new eligibility requirements on the Secretary of State’s website, updating voter registration forms, or issuing guidance to registrars."

The court denied the preliminary injunction on July 28, 2017. The court held that HB 282 clarified if a conviction involved moral turpitude, mooting the plaintiffs' legal challenge of the vagueness § 177(b) and entitling the defendants to a rebuttable presumption that they would not resume unconstitutional activities. Further, the court held that the requested relief was unlike the relief sought in the lawsuit. The court found that the original lawsuit was not about HB 282, nor were the plaintiffs challenging any of HB 282's provisions as unconstitutional. 2017 U.S. Dist. LEXIS 118606.

Then, on September 28, 2017, the court granted in part and denied in part the defendants' motion to dismiss. The court dismissed the plaintiffs contentions that Alabama law denied black voters equal opportunity to participate in the political process; denied plaintiffs franchise without a compelling state interest; restricted free speech and association, burdened the right to; disqualified voters without due process; was otherwise vague, arbitrary, and irrational; unconstitutionally imposed a poll tax by requiring plaintiffs to pay any ordered restitution; and disproportionately disenfranchised black citizens compared to white citizens with prior disqualifying convictions. The court allowed claims to stand that Alabama law was racially discriminatory; created retroactive punishment; imposed cruel and unusual punishment; and violated equal protection and required higher scrutiny as to the constitutionality of requiring convicted felons to pay ordered restitution as a condition of re-enfranchisement. 2017 U.S. Dist. LEXIS 211512.

The case is ongoing.

Saeeda Joseph-Charles - 11/15/2016
Virginia Weeks - 01/31/2018


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