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Thompson v. State

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

July 28, 2017

TREVA THOMPSON, et al., Plaintiffs,
v.
STATE OF ALABAMA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Alabama citizens lose their right to vote if they are “convicted of a felony involving moral turpitude.” Ala. Const., Art. VIII, § 177(b) (1996). Disenfranchisement of felons, for more than two decades, has hinged on the meaning of “moral turpitude.” But what does “moral turpitude” mean? Because the Alabama Constitution did not define this nebulous standard, “[n]either individuals with felony convictions nor election officials ha[d] a comprehensive, authoritative source for determining if a felony conviction involve[d] moral turpitude and [was] therefore a disqualifying felony.” Ala. Code § 17-3-30.1 (eff. Aug. 1, 2017). But that dilemma for felons and election officials appears to have resolved on May 25, 2017, at least prospectively, with the enactment of the Felony Voter Disqualification Act, Alabama Laws Act 2017-378 (“HB 282”), which for the first time established a specific and inclusive list of felonies “involving moral turpitude.” HB 282, codified as § 17-3-30.1 of the Alabama Code, has an effective date of August 1, 2017.

         This lawsuit originally was not about HB 282; it could not have been because its commencement preceded HB 282's enactment by eight months. Rather, Plaintiffs filed this proposed class action against the State of Alabama and its officials, seeking in part to invalidate § 177(b) of Article VIII of the Alabama Constitution of 1901 on federal constitutional grounds, including vagueness.

         HB 282 changed the course of this lawsuit significantly. Acknowledging that HB 282 “seeks to put an end to” a system that required “individual county registrars to make subjective and contradictory determinations of citizens' eligibility to vote on an ad hoc basis” (Pls.' Mot. Prelim. Inj., at 7), Plaintiffs filed a motion for preliminary injunction thirty-seven days after HB 282's enactment. Plaintiffs do not challenge the provisions of HB 282 itself. Instead, they ask for a preliminary injunction mandating Defendants to take specified steps to implement HB 282.

         The urgency of the motion, according to Plaintiffs, is the upcoming special election for the United States Senate seat in Alabama, and more specifically, the voter registration deadline, which is July 31, 2017. The special primary election is August 15, 2017; the special runoff election is September 26, 2017; and the special general election is December 12, 2017. Plaintiffs contend that, “[a]bsent immediate relief from this Court, thousands of eligible voters risk losing the opportunity to vote in yet another election.” (Pls.' Mot. Prelim. Inj., at 8.) The preliminary injunction motion “seeks relief solely for those voters whose voting rights under Section 177 of the Constitution have been affirmed by HB 282.” (Id.) The motion refers to these potential voters as “HB 282 voters.” (Id.)

         In their motion, Plaintiffs ask for a preliminary injunction mandating Defendants to take the following actions prior to the voter registration deadline on July 31, 2017: (1) to provide notice of HB 282's voting eligibility standards on the electronic Alabama Voter Registration Form on the Alabama Secretary of State's website; (2) to post notice of HB 282's voting eligibility standards on the Alabama Secretary of State's website and at county registrars and DMV offices; (3) to submit a request to the federal Election Assistance Commission to provide notice of HB 282's voting eligibility standards in Alabama's state-specific instructions on the Federal Voter Registration Form; and (4) to reinstate HB 282 voters-voters whose registration applications were denied or who were struck from the voter registration rolls in the last two years, but whose eligibility was affirmed by HB 282-to the voter registration rolls and provide them with individualized notice of their eligibility to vote.[1]

         Defendants oppose the motion, arguing that Plaintiffs have not met “the high bar for an emergency mandatory injunction and [that] the equities clearly outweigh granting one.” (Defs. Resp., at 2 (Doc. # 58).) Defendants further represent that the Alabama Secretary of State is responsible for the unanimous passage of the Act and “fully supports the new law and is implementing it in a deliberate fashion.” (Id. at 8.) The record contains briefing and evidence in support of and in opposition to the motion, and the parties presented additional evidence and arguments at the hearing held on July 25, 2017.

         For the reasons that follow, Plaintiffs have not demonstrated that they are entitled to preliminary injunctive relief, and Plaintiffs' motion (Doc. # 56) is due to be denied.

         II. JURISDICTION AND VENUE

         Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue.

         III. BACKGROUND

         A. The Relevant Parties and Claims

         Plaintiffs seek a preliminary injunction on some, but not all, counts. Only those parties and claims that are the subject of the preliminary injunction are set out here.

         1. Parties

         Plaintiffs filed this lawsuit on September 26, 2016. The ten individual Plaintiffs are Alabama citizens who, on the basis of their felony convictions, have been removed from the voter registration list, have been denied applications to vote, or have not registered to vote in this state based on the uncertainty of whether they have been convicted of a disqualifying felony involving moral turpitude. The organizational Plaintiff, Greater Birmingham Ministries, whose central goal is “the pursuit of social justice in the governance of Alabama, ” expends financial and other resources to help individuals with felony convictions determine whether they are eligible to vote or to have their voting rights restored. (Compl. ¶ 62 (Doc. # 1).) Defendants are the State of Alabama, the Secretary of State of Alabama, the Chair of the Board of Registrars for Montgomery County, and a Defendant class consisting of “[a]ll voter registrars in the State of Alabama.” (Compl. ¶ 68.) The individual Defendants are sued in their official capacities only.

         The Complaint seeks to certify a class of Plaintiffs defined as: “All unregistered persons otherwise eligible to register to vote in Alabama who are now, or who may in the future be, denied the right to vote because they have been convicted of a felony.” (Compl. ¶ 50.) The Complaint also enumerates nine subclasses of Plaintiffs.

         The motion for preliminary injunction also contains its own class, namely, “those voters whose voting rights under Section 177 of the [Alabama] Constitution have been affirmed by HB 282.” (Pls.' Mot. Prelim. Inj., at 8 (Doc. # 56).)

         2. Claims

         Section 177(b)'s phrase “moral turpitude” is at the forefront of twelve of the Complaint's fifteen counts challenging the constitutionality of § 177(b) of the Alabama Constitution. Only Counts 6-10 are relevant to the motion for preliminary injunction. These counts seek injunctive and declaratory relief.

         Counts 6 and 7 allege that § 177(b)'s failure to define which Alabama felonies involve moral turpitude “imposes an unconstitutional burden on the right to vote of eligible Alabama voters with felony convictions in violation of the Equal Protection Clause” (Count 6) and the First Amendment (Count 7), and that, therefore, § 177(b) is subject to strict scrutiny. (Compl. ¶¶ 204, 207.)

         Count 8 is a Fourteenth Amendment procedural due process claim, alleging that § 177(b)'s felon-disenfranchisement provision “provides Alabama citizens with little to no pre-deprivation process before revoking their right to vote, a fundamental right protected by both the Alabama and United States Constitutions.” (Compl. ¶ 210.) Count 9 alleges that the “prohibition on voting for those convicted of felonies ‘involving moral turpitude' is void for vagueness under the First and Fourteenth Amendments.” (Compl. ¶ 225.)

         Count 10 is a selective enforcement claim under the Fourteenth Amendment's Due Process Clause. It alleges that Defendants arbitrarily distinguish between groups of felons by administering § 177(b) with an unequal hand from county to county and that, therefore, § 177(b) cannot survive rational-basis scrutiny.

         The Complaint's prayer for relief seeks certification of the Plaintiff class, of nine Plaintiff sub-classes, and of a Defendant class of county registrars. It also asks for a declaratory judgment that § 177(b) of the Alabama Constitution, on its face and as applied, violates the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

         B. HB 282

         Shortly after taking office in 2014, Alabama Secretary of State John Merrill established an exploratory committee on “voter disenfranchisement and restoration of voting rights.” (See Ex. A, Decl. of Edward Packard ¶ 6 (Doc. # 63-1).) A subcommittee of the “voter disenfranchisement and restoration of voting rights” committee drafted proposed legislation to create an exclusive list of felonies that would qualify as felonies of “moral turpitude” for the purposes of voting. (Id.) After this bill was introduced in previous sessions, the Legislature ultimately enacted this proposed legislation in a modified form by a unanimous vote in the 2017 regular legislature session. (Id.) HB 282 sets out its purposes, which are:

a. To give full effect to Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of Article VIII of the Official Recompilation of the Constitution of Alabama of 1901, as amended.
b. To ensure that no one is wrongly excluded from the electoral franchise.
c. To provide a comprehensive list of acts that constitute moral turpitude for the limited purpose of disqualifying a person from exercising his or her right to vote.

Ala. Code § 17-3-30.1(b)(2) (eff. Aug. 1, 2017).

         On May 25, 2017, Governor Kay Ivey signed HB 282 into law. Defendants estimate that some 60, 000 felons could be affected by HB 282.

         The effective date of HB 282 is August 1, 2017. However, because the August 15 special primary election for the U.S. Senate seat in Alabama is after HB 282's effective date, the Alabama Secretary of State has instructed registrars to use the new law to determine whether new registrants who have committed felonies are qualified to vote in the August 15 primary election. (See Ex. E, Decl. of George Noblin ΒΆ 4 (Doc. # 63-5).) The Chairman of the Montgomery County Board of Registrars, George Noblin, gave an example that, on July 17, 2017, his staff permitted an individual convicted of a felony to register to vote based upon application of HB 282. The Secretary of State's liaison with the Board of ...


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