COVID-19 Summary: This lawsuit was filed by Alabama voters to temporarily enjoin Alabama’s voting law provisions during the COVID-19 pandemic. The plaintiffs challenged the witness and photo ID requirement, requiring absentee voters to obtain witness or notary signatures, and submit a photocopy of their ID with their ballot. The plaintiffs sought declaratory and injunctive relief to enjoin enforcement of the Witness and ID requirement and to allow curbside voting during the primary, municipal, and general election in 2020. On June 15, the preliminary injunction was granted in part in favor of the plaintiffs, pertaining to the July 14 primary runoff. The defendants appealed to the Eleventh Circuit; the court denied the defendant’s motion for stay pending appeal on June 25. The defendants then appealed to the U.S. Supreme Court which granted the stay on July 2. On July 17, the defendants voluntarily dismissed the interlocutory appeal, and the case moved forward. After a bench trial in September, the court gave relief to the plaintiffs on each of the requirements and on the curbside voting ban, as each was applied during the pandemic. The defendants appealed the judgment, and the Eleventh Circuit granted a stay of the case as to the witness and photo ID requirements but granted a stay as to the curbside voting ban.
NOTE: This case is being tracked in close to real time by the Stanford/MIT Healthy Elections Project. So for more current information, see their tracker.
On May 1, 2020, five voters and three organizations filed this class-action lawsuit against the State of Alabama to temporarily enjoin its voting law provisions during the COVID-19 pandemic. Specifically, the plaintiffs challenged Alabama’s witness requirement requiring absentee voters to sign their vote before a notary or two witnesses, and the ID application requirement, requiring absentee voters to submit a copy of their photo ID. The plaintiffs noted that Alabama is one of the only three states to require the absentee ballot to be notarized and one of the only 12 states that require an individual to submit an absentee ballot to have it witnessed. The plaintiffs also challenged Alabama’s prohibition on curbside voting, which allows voters to cast their ballots in person without leaving their vehicles.
Filed in the U.S. District Court for the Northern District of Alabama, the plaintiffs sought declaratory relief and injunctive relief to enjoin enforcement of the Witness and ID requirement and to allow curbside voting during the primary, municipal, and general election in 2020. The plaintiffs also sought an injunction requiring the defendants to accept otherwise valid absentee ballots missing a notary or two witnesses, and modify election materials accordingly to reflect the elimination of the challenged provisions. The plaintiffs were represented by the Southern Poverty Law Center, NAACP Legal Defense and Educational Fund, and the Alabama Disabilities Advocacy Program. The case was assigned to District Judge Abdul K. Kallon.
The plaintiffs alleged that the challenged provisions constituted an unreasonable burden on their fundamental right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act (ADA), and Sections 2, 3(b), and 201 of the Voting Rights Act of 1965 (VRA). Specifically, the plaintiffs alleged that the Witness and ID requirements exposed voters to additional risk of infection by posing additional barriers to voting, which threatened to disenfranchise voters adhering to social distancing guidelines.
On June 15, the preliminary injunction was granted in part, enjoining the defendants from enforcing the witness requirement for voters who cannot safely meet the requirements due to underlying medical conditions that increase their vulnerability to COVID-19. 2020 WL 3207824. The photo ID requirement was also enjoined for voters over the age of 65 or those who could not safely obtain a copy of their photo ID, and the defendants were also enjoined from prohibiting curbside voting. The injunction was granted only part, granting relief as to the July 14 primary runoff, instead of all elections to be held in 2020, as requested by the plaintiffs.
On June 17, the Alabama Secretary of State filed an appeal to the Eleventh Circuit, contending that the challenged laws were necessary to preserve the legitimacy of upcoming elections by preventing voter fraud and safeguarding voter confidence. On the same day, the defendant filed an emergency motion in the Eleventh Circuit to stay the June 15 order pending the appeal. On June 25, the emergency motion for stay pending appeal was denied. 2020 WL 3478093. The defendants appealed to the U.S. Supreme Court. On June 30, the parties entered into a settlement agreement as to defendant Circuit Clerk of Lee County. The parties agreed to dismiss the case as to the Circuit Clerk, in exchange for the defendant's compliance with the orders of the court regarding this lawsuit. The settlement agreement was approved on July 7. On July 2, in a 5-4 split decision, the Supreme Court granted a stay of the preliminary injunction pending the Eleventh Circuit appeal. 2020 WL 3604049.
The plaintiffs filed an amended complaint on June 6, 2020, which added an additional claim that the witness requirements constituted a poll tax and is therefore unconstitutional under the Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution. The plaintiffs asserted that requiring a notary to witness the absentee ballot for a fee amounted to a poll tax. The amended complaint also added a challenge to Alabama's requirement that voters provide an excuse to vote absentee and added facial challenges to the curbside voting ban. The amended complaint also added several defendants to the action, including absentee election managers, circuit clerks, and probate judges.
On July 17, the Eleventh Circuit dismissed the interlocutory appeal by the defendants after they voluntarily moved to dismiss. Back in the district court, on July 20, 2020, the State of Alabama and Secretary of State ("state defendants") filed a motion to dismiss along with their answer to the complaint. These defendants first argued that the challenge to the state's excuse requirement was moot since the Secretary of State had previously issued a rule waiving the requirement for the remainder of 2020. The plaintiffs, however, argued that their challenge was not moot since they wanted the requirement waived for the remainder of the pandemic. The state defendants then argued that they were entitled to sovereign immunity on the remainder of the claims against them. The plaintiffs argued that sovereign immunity does not apply to claims brought under the ADA and VRA and that the state defendants had waived their immunity as to the constitutional claims when they invoked a federal court's jurisdiction by appealing the earlier preliminary injunction. The Secretary of State also moved to dismiss the claims against him challenging the witness and photo ID requirements for lack of standing, since he does not enforce these requirements.
In addition to their mootness and sovereign immunity arguments, the state defendants also moved to dismiss the claims against them for failure to state a claim upon which relief can be granted. First, they moved to dismiss the claims that the witness requirement and curbside voting bans were facial violations of the First and Fourteenth Amendments.
In early August, the four probate judges charged in the complaint moved to dismiss the claims against them for lack of standing. These defendants argued that the witness requirement, the photo ID requirement, and the curbside voting ban were not traceable to nor redressable by them. The circuit clerk of Lowndes County also filed a motion to dismiss on August 5, arguing that she was an improper party to the case because she was no longer serving as an absentee election manager for Lowndes County. The plaintiffs argued that they were instead suing her in her official capacity as the circuit clerk and not as the absentee election manager.
On August 17, the court ruled on the three motions to dismiss. The court first held that the plaintiffs' challenge to the excuse requirement was moot, stating that it was too speculative to continue the challenge based on the mere possibility that the pandemic would continue into 2021 and that the state would decline to extend the waiver of the requirement. The court also dismissed the constitutional challenges against the state defendants due to their sovereign immunity but stated that the immunity does not apply for the claims brought under the ADA and VRA. The court did not find that the state defendants had waived their immunity as to the constitutional claims since those claims were not brought against the state defendants until the amended complaint was filed, after the appeal of the preliminary injunction had concluded. Therefore, the constitutional claims against the state defendants were dismissed. The court also dismissed the witness and photo ID requirement against the secretary of state for lack of standing.
In addition, the court ruled on the state defendants' motion to dismiss for failure to state a claim upon which relief can be granted. The court found that the plaintiffs' facial challenges to the witness requirement and curbside voting ban failed to state a facial claim because the plaintiffs only argued that they amounted to an unconstitutional burden only during the pandemic.
On the second motion to dismiss by the probate judges, the court found that the plaintiffs did have standing to sue these defendants regarding the witness and photo ID requirements, given the probate judges' integral role in the absentee ballot process and control over the poll workers. The court also found that the plaintiffs had standing to sue the probate judges regarding the curbside voting ban, since the plaintiffs alleged that the judges were ordered by the Secretary of State to shut down any curbside operations. On the third motion to dismiss by the circuit clerk of Lowndes County, the Court found that the plaintiffs had standing to sue the clerk regarding the witness and photo ID requirements due to the clerk's important role in tabulating absentee ballots and as a member of the appointing board for poll workers who count the absentee ballots. However, the court did dismiss the curbside voting ban challenge as to all circuit clerks named in the amended complaint, since the ban was not traceable to the circuit clerks.
The court then turned to the motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court found that the plaintiffs failed to state a claim that the witness requirement and curbside voting ban facially violated the First and Fourteenth Amendments since the claims hinged on a burden on the plaintiffs' right to vote specifically during a pandemic. These claims were therefore dismissed. The court then turned to the plaintiffs' claims under the ADA against the witness and photo ID requirements. The court found that the witness requirement was an essential eligibility requirement and therefore dismissed the ADA claim against this requirement. However, the court found that the photo ID requirement was not essential, so the ADA claim against this requirement was left standing.
The court next analyzed the motion to dismiss the claims under Section 2 of the Voting Rights Act, in which the plaintiffs asserted that the witness requirement, the photo ID requirement, and the curbside voting ban abridge their right to vote based on race. The court ruled that the plaintiffs, based on their contention of a legacy of discrimination making it harder for African Americans to comply with the practices, alleged sufficient facts to survive the motion. Based on historical discrimination, the plaintiffs alleged that African Americans are more likely to live alone, less likely to own a electronic devices or to have internet access, making it harder to comply with the witness requirement. The plaintiffs also stated that given the greater likelihood of disability for African Americans, the curbside voting ban disparately impacted them. Further, the plaintiffs' allegations that African Americans are at greater risk from COVID-19 due to underlying conditions, lack of access to healthcare, and heightened environmental and lifestyle risks were sufficient to state a claim for disparate impact from the requirements and curbside voting ban. The court therefore refused to dismiss the claims under Section 2 of the VRA.
The court then analyzed the motion to dismiss the plaintiffs' claim under Section 201 of the VRA against the witness requirement. The section prohibits the use of any test or device to deny a citizen the right to vote, including a requirement that a voter prove their qualifications by the voucher of registered voters or members of any other class. While the plaintiffs claimed that the option of using a notary qualified as a prohibited test or device, the court found that the notary option was not a requirement because voters may also use witnesses rather than a notary. Therefore, the court dismissed the claims under Section 201 of the VRA.
Lastly, the court turned to the motion to dismiss the plaintiffs' claim that the notary option is an unconstitutional poll tax in violation of the Twenty-Fourth Amendment and that it unconstitutionally conditions the right to vote on a person's wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. The court found that, while the services of a notary and videoconferencing are not free, they are not a tax since they do not produce revenue for the state. Therefore, the court dismissed the claim under the Twenty-Fourth Amendment. However, the court did allow the plaintiffs' claim that the notary requirement violates the Equal Protection Clause to stand, since it weighs more heavily on poorer citizens and limits access to voting.
On the same day as the court ruled on the motions to dismiss, several of the defendants filed motions for summary judgment, arguing that the plaintiffs lacked standing, that they failed to show that the challenged procedures burden their right to vote, and that they failed to join the necessary parties. On August 21, 2020, the Jefferson County and Montgomery County defendants entered into consent orders with the plaintiffs, in which they agreed to abide by any injunctions or orders of the Court affecting or relating to the enforcement of the challenged voting practices.
On September 8, 2020, the court ruled on the motions for summary judgment. The court first analyzed the standing challenges made by the defendants. Just as the court earlier found that the curbside voting ban was not traceable to circuit clerks, the court concluded on the motions for summary judgment that the ban was also not traceable to AEMs. Therefore, the court granted summary judgment on claims challenging the curbside voting ban against any defendant named solely as an AEM. The court also granted summary judgment to the State of Alabama on all curbside voting claims, since it found that the ban was only traceable to the Secretary of State and the probate judges. The court then granted the defendants summary judgment on any claim asserted by individual plaintiffs against county officials in any county in where the plaintiff does not vote. The court also granted summary judgment on specific claims made by specific individual plaintiffs for failure to challenge certain voting requirements.
Next, the court analyzed the defendants' argument that the plaintiffs failed to join indispensable parties. The defendants argued that the court could not fashion complete relief to the organizational plaintiffs, who have members throughout the state, due to the plaintiffs' failure to join election officials from each county in Alabama. The defendants argued that these officials were indispensable parties and that the entire case should be dismissed due to their absence. The court found that this argument overlooked that state defendants were named as defendants on the ADA and VRA claims and that the Secretary of State was named as a defendant to the constitutional claims against the curbside voting ban. Given the presence of these defendants, the court found that it could potentially order statewide relief, making the absent county defendants not indispensable. Therefore, the court denied the defendants' request to dismiss the entire action.
After the ruling on the motions to dismiss and motions for summary judgment, the following claims remained:
-- Claims of violations of the right to vote under the First and Fourteenth Amendments against county officials challenging the witness requirement and photo ID requirement and against state and county officials challenging the curbside voting ban;
-- Claims of violations of the ADA against the State of Alabama and county defendants challenging the photo ID requirement and against state and county defendants challenging the curbside voting ban both during and outside the pandemic;
-- Claims of violations of Section 2 of the VRA against the State of Alabama and against county defendants for enforcing the witness requirements and against state and county defendants for enforcing the curbside voting ban both during and outside the pandemic; and
-- Claims of violations of the Equal Protection Clause of the Fourteenth Amendment against county defendants challenging the witness requirement's notary option.
On the same day as the court ruled on the motions for summary judgment, the case went to trial before Judge Kallon. The bench trial continued until September 21, 2021. On September 30, the court filed an opinion and final judgment in the case. In the opinion, the court first analyzed the issue of standing in the case and confirmed that each remaining plaintiff had standing to sue on each of the remaining claims. The court then turned to whether the remaining claims were traceable and redressable to and by each named defendant. The court found that the claims regarding the photo ID requirement were not traceable to the probate judge in the case, since the probate judge had no role in enforcing the requirement. In addition, the court found that an injunction against the curbside voting ban could not be redressed by the probate judge, since the judge would not offer curbside voting even in the absence of a ban. The court also found that several of the individual plaintiffs lacked standing to challenge the curbside voting ban because the probate judges from their respective counties had stated that they would not offer curbside voting even in the absence of a ban.
Next, the court addressed the defendants' argument that lower federal courts should not alter election rules close to an election. The court found that it still could issue relief in the case on the ground that the plaintiffs raised the dispute in a timely manner, that the court's order would not cause voter confusion or create an incentive to remain away from the polls, and that the defendants' can adhere to the court's order without hardship. The court also noted that the state defendants are judicially estopped from objecting on these grounds, since they had previously argued that the plaintiffs had asserted their claims too early. The court then assessed the defendants' contention that the accelerated schedule of the case violated their due process rights by impairing their ability to prepare a defense. The court overruled this objection, finding that it had broad discretion to manage discovery and other aspects in the case and that the expedited schedule applied equally to all parties.
The court then moved into an analysis of the plaintiffs' claims. First, the court analyzed the plaintiffs allegations that the voting policies violated their fundamental right to vote under the First and Fourteenth Amendments. To decide this issue, the court weighed the character and magnitude of the asserted injury to the voters' constitutional rights against the precise interests the state offered to justify the rules. The court first addressed the witness requirement and noted that it does create a burden on the right to vote by requiring some voters to possible COVID-19 exposure. The court then turned to the state's justifications for the requirement, which included the curbing of voter fraud. The court found that the witness requirement marginally served the state's interest in preventing fraud but that the interest in preventing fraud did not justify the burdens of the witness requirements during the COVID-19 pandemic. The court therefore ruled that the requirement is unconstitutional as applied to vulnerable individuals who cannot safely satisfy the requirement during the pandemic.
The court next addressed the First and Fourteenth Amendment claims against the photo ID requirement. In deciding this issue, the court applied the same test as it applied for the witness requirement: weighing the injury to the voters' constitutional rights against the state's interests. The court again noted that the requirement could necessitate that some voters risk exposure to COVID-19 in order to satisfy the requirement. Again, the state's major interest justifying this requirement was to curb voter fraud. As above, the court found that the burdens placed on certain voters could not justify the requirement. The court therefore ruled that the photo ID requirement violated the First and Fourteenth Amendment rights of voters who are either age 65 or older or are disabled during the pandemic.
Next, the court addressed the First and Fourteenth Amendment claims against the curbside voting ban. The court found that the ban does burden some voters who may want to minimize their exposure to COVID-19. The justifications for the ban included the defendants' contention that curbside voting would corrupt the voting process in Alabama by creating an obstacle to orderly elections and sacrificing ballot secrecy. However, the court noted that several Alabama counties had previously adopted curbside voting before the Secretary of State intervened to stop them and that there was no evidence to suggest that the previous attempts at curbside voting had compromised elections in Alabama. The defendants also justified the ban by claiming that curbside voting would raise logistical problems related to costs, additional personnel, geographical constraints, weather issues, ballot integrity, traffic, and time limitations. However, the court noted that the plaintiffs only requested that the ban be lifted and not that curbside voting be required everywhere in Alabama, which would allow each county to decide if curbside voting could be implemented. The court therefore found that the state had failed to establish interests that would justify the burden created by the ban. Therefore, the court found that the curbside voting ban is unconstitutional.
Next, the court moved to the plaintiffs' claims under Title II of the ADA against the curbside voting ban both inside and outside of the pandemic. The court analyzed the claim under a three part test for claims under the ADA, which provides that plaintiffs must demonstrate that they are qualified individuals with a disability; that they were excluded from participation or denied the benefits of services, programs, or activities of a public entity or were otherwise discriminated against; and that the exclusion or discrimination occurred because of their disability. The court first ruled that the plaintiffs had not established a facial challenge to the ban because they failed to establish that any of the polling sites in Alabama were physically inaccessible to voters outside of the pandemic. However, the court did find that the ban applied during the pandemic violated the ADA because voting in person on Election Day is not readily accessible to disabled individuals and that the exclusion is due to the voters' disabilities. The court then addressed the plaintiffs' claims that the photo ID requirement violated Title II of the ADA as applied during the pandemic. The court found that the requirement would force some voters to risk exposure to the virus in order to vote by absentee ballot. The concluded that the photo ID requirement made voting inaccessible to some disabled individuals in Alabama and therefore concluded that the ban violated Title II of the ADA.
The court then moved to an analysis of the plaintiffs' claims that the curbside voting ban and witness requirements violated Section 2 of the Voting Rights Act. The court found that the plaintiffs did show that African-American voters do not have equal access to safely vote during the COVID-19 pandemic due to the absentee ballot witness requirement and that therefore, Black voters in Alabama had their voting rights abridged. The court also found that the abridgment was based on race since it was cause, in part, by Alabama's history of racial bias in voting, education, employment, economics, housing, and healthcare. The court agreed with the plaintiffs that Black Alabamians were less likely than White residents to be able to meet the witness requirement without increasing their risk of COVID-19 complications based on disparities in health, COVID-19 risks, and access to resources for safely adhering to the witness requirement, such as transportation, funds for a notary, technology, and internet access. However, the court found that the plaintiffs failed to show that the curbside voting ban amounts to a denial or abridgment of Black voting rights, since it does not apply to absentee voting. Since plaintiffs could still vote absentee curbside through their county AEM, the court found that the plaintiffs failed to prove denial or abridgment. Therefore, the court found that the ballot witness requirement violates Section 2 of the VRA as applied during the pandemic but did not find that the curbside voting ban violated the VRA.
Lastly, the court analyzed the plaintiffs' allegations that the notary option contained in the witness requirement conditions the right to vote on a person's wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the allegation involved a fundamental right of the plaintiffs, the court applied heightened scrutiny in analyzing the challenged law. The court first decided that the notary option was facially constitutional, since the plaintiffs offered little evidence that the authorization of notaries to accept fees burdened their right to vote and the state offered two interests to justify the rule: the prevention of voter fraud and the protection of the integrity of its elections. Even within the confines of the pandemic, the court found that the plaintiffs failed to prove that the notary option imposed even a slight burden on them. Therefore, the court dismissed the plaintiffs' equal protection claims.
In its final judgment, the court ordered the defendants enjoined from enforcing the witness requirements for absentee ballot affidavits for any qualified voters who provide a written statement that they have an underlying medical condition that puts them at a heightened risk from COVID-19 and, thus, that they cannot safely satisfy the requirement during the pandemic. The court also enjoined the defendants from enforcing the photo ID requirement for absentee ballot applications for voters over 65 years of age, or those under 65 who cannot safely obtain a copy of their ID during the COVID-19 pandemic due to an underlying condition that makes them particularly vulnerable to the virus, and who provide other identifiers with their application, such as their driver's license and last four digits of their Social Security Number. Finally, the court enjoined the Secretary of State from prohibiting counties form establishing curbside voting as long as the procedures otherwise comply with state and federal laws. The court also ruled that the plaintiffs are entitled to costs and attorneys' fees.
On the same day that the final judgment was filed by the district court, the defendants appealed and moved to stay the case pending the appeal. On October 6, 2020, the district court denied the defendants' motion to stay the case pending appeal. The court found that staying the judgment would substantially injure the plaintiffs by imposing burdens on their right to vote and therefore found that the public interest favored denying the stay. On October 13, the Eleventh Circuit granted a stay of the case as to the witness and photo ID requirements but denied a stay as to the curbside voting ban.
Averyn Lee - 07/06/2020
Nicholas Gillan - 11/07/2021
compress summary
