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Thompson v. State

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

December 26, 2017

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




         Under Alabama law, an individual of voting age who commits a “felony involving moral turpitude” forfeits his or her right to vote. Ala. Const. art. VIII, § 177(b). Restoration of the right to vote is available only after the felon has completed all the terms of his or her sentence, which includes full payment of all fines, court costs, fees, and restitution. Ala. Code § 15-22-36.1 (2016). In this putative class action against the State of Alabama and its officials, Plaintiffs contend that these laws-section 177(b) of Article VIII of the Alabama Constitution of 1901, and section 15-22-36.1 of the Alabama Code-violate the federal constitution and section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Plaintiffs allege that, due to their felony convictions or their financial inability to satisfy the monetary obligations associated with their convictions, they cannot vote in the State of Alabama.

         In a prior Order, the court granted in part and denied in part Defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and noted that a memorandum opinion would follow. (Doc. # 75.) This is that opinion. For the reasons to follow, Counts 3, 4, 5, 6, 7, 8, 9, 10, 14, and 15 are due to be dismissed either for failure to state a claim upon which relief can be granted or sua sponte for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(6), (h)(3). But this action will proceed as to Counts 1, 2, 11, 12, and 13.


         Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, with the exception of the counts over which this court lacks subject-matter jurisdiction for the reasons discussed below. The parties do not contest personal jurisdiction or venue.


         A. Rule 12(b)(6)

         A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint against the legal standard articulated by Rule 8 of the Federal Rules of Civil Procedure. Rule 8 provides that the complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). However, the court need not accept mere legal conclusions as true. Id. at 1325.

         To survive a 12(b)(6) motion, the 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Additionally, notwithstanding the alleged facts, Rule 12(b)(6) “[d]ismissal is . . . permitted ‘when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.'” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (quoting Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)); see also Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (explaining that Rule 12(b)(6) allows a court “to dismiss a claim on the basis of a dispositive issue of law”).

         B. Rule 12(h)(3)

         “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “Rule 12(h)(3) motions are subject to the same standard as motions brought pursuant to Rule 12(b)(1)” of the Federal Rules of Civil Procedure. Peterson v. Cont'l Airlines, Inc., 970 F.Supp. 246, 248-49 (S.D.N.Y. 1997). In this case, the mootness inquiry is resolved on the complaint and the undisputed post-suit enactment of HB 282, as discussed in Part V.E., and, thus, presents a factual challenge. See Williamson v. Tucker, 645 F.2d 404, 413-14 (5th Cir. 1981)[1] (explaining that a factual Rule 12(b)(1) motion can be resolved as a matter of law when it implicates facts outside the pleading that are not contested).


         A. History of the Alabama Constitution's Disenfranchisement of Individuals Convicted of “Moral Turpitude” Crimes

         In the beginning, section 182 of the Alabama Constitution of 1901 denied the right to vote to individuals convicted of “any . . . crime involving moral turpitude, ” be it a misdemeanor or a felony. Ala. Const. art. VII, § 182 (repealed 1996). Eighty-four years after the adoption of section 182, on a challenge to its application to misdemeanors, the U.S. Supreme Court in Hunter v. Underwood, 471 U.S. 222 (1985), held that section 182's “original enactment was motivated by a desire to discriminate against blacks on account of race, ” the impact of which had continued up to that point. Id. at 233. Thus, the Court struck down section 182's disenfranchisement provision as applied to misdemeanor offenses on grounds that it violated the Fourteenth Amendment's Equal Protection Clause. The Court expressly declined to decide whether section 182 “would be valid if enacted today without any impermissible motivation.” Id.

         A decade after the Court's decision in Hunter, the Alabama Legislature replaced section 182. In 1996, the Alabama Legislature unanimously passed Amendment 579, and the state's voters ratified the amendment thereafter. Amendment 579-hereinafter referred to and cited as section 177(b)[2]-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). Section 177(b) thus restricted disenfranchisement to individuals convicted of felonies involving moral turpitude and effectively re-enfranchised individuals convicted of misdemeanors involving moral turpitude.

         Section 177(b), the same as its predecessor, did not define “moral turpitude.” The Alabama Constitution of 1901-and, until earlier this year, the Alabama Code-contained no definition of the phrase. As a result, the state's county boards of registrars had the unenviable task of sorting through “Alabama case law or, in absence of a court precedent, opinions of the Alabama Attorney General to determine whether” a given crime was a crime of moral turpitude. Hunter, 471 U.S. at 226; Pippin v. State, 197 Ala. 613, 616 (1916) (explaining, not too helpfully, that “moral turpitude” “impl[ies] something immoral in itself, regardless . . . whether it is punishable by law”). The Alabama Attorney General and the Alabama Administrative Office of Courts attempted to define the phrase in 2005, 2007, and 2008. (See Compl. ¶¶ 24-30, 32-35); see generally Chapman v. Gooden, 974 So.2d 972, 976 (Ala. 2007) (recounting the Alabama Attorney General's 2005 opinion listing crimes that the Alabama courts have determined are crimes involving moral turpitude under § 177(b)). But, as alleged in the Complaint, this administrative guidance “is non-exhaustive, non-authoritative, vague, and internally inconsistent.” (Compl. ¶ 23.)

         B. The Felony Voter Disqualification Act (“HB 282”)

         The phrase “moral turpitude” evaded an authoritative definition until after the filing of this lawsuit. In its 2017 regular session, the Alabama Legislature defined the phrase “moral turpitude” for the first time when it unanimously passed the Felony Voter Disqualification Act, House Bill 282 (“HB 282”). Governor Kay Ivey signed HB 282 into law on May 25, 2017, and HB 282 went into effect on August 1, 2017.

         HB 282, which now is codified at section 17-3-30.1 of the Alabama Code, enumerates a list of more than forty Alabama felonies that “involv[e] ‘moral turpitude'” within the meaning of section 177(b). Only the Alabama felony convictions listed prohibit an individual from voting in Alabama. 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) (2017).

         C. Section 15-22-36.1 of the Alabama Code

         Section 177(b) provides an exception to voter disqualification where the individual convicted of a felony involving moral turpitude has had his or her “civil and political rights” restored. Ala. Const. art. VIII, § 177(b). This exception leads to the second Alabama law challenged in this action, namely, section 15-22-36.1(3) of the Alabama Code.

         Under section 15-22-36.1, a convicted felon can apply for a Certificate of Eligibility to Register to Vote (“CERV”) from the Board of Pardons & Paroles. An individual convicted of a felony involving moral turpitude is eligible to receive a CERV if he or she meets specified requirements, including that “[t]he person has paid all fines, court costs, fees, and victim restitution ordered by the sentencing court at the time of sentencing on disqualifying cases.” Ala. Code § 15-22-36.1(a)(3). If a person meets the eligibility requirements for a CERV, issuance of the certificate is mandatory. Id. § 15-22-36.1(b).

         D. This Lawsuit

         1.The Parties

         The ten individual Plaintiffs are Alabama citizens who, due to their felony convictions, have been purged 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 their convictions disqualify them to vote. The organizational Plaintiff, Greater Birmingham Ministries, expends financial and other resources to help individuals with felony convictions determine if they are eligible to vote or to have their voting rights restored. The organization's central goal is “the pursuit of social justice in the governance of Alabama.” (Compl. ¶ 62.)

         Plaintiffs also seek 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.

         Defendants are the State of Alabama, Alabama's Secretary of State, 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.

         2. The Claims

         The phrase “moral turpitude” is at the forefront of Counts 1 through 12, which challenge section 177(b) of the Alabama Constitution on federal constitutional and statutory grounds. Section 15-22-36.1 is the focus of the federal constitutional and statutory challenges in Counts 13 through 15.

         In Counts 1 through 12, Plaintiffs bring a multitude of challenges against section 177(b). They contend that section 177(b) is racially discriminatory (Counts 1, 2), denies black voters equal opportunity to participate in the political process (Count 3), denies the franchise to Plaintiffs without a compelling state interest (Count 4), restricts free speech and association (Count 5), and burdens the right to vote (Counts 6, 7). Plaintiffs contend further that section 177(b) disqualifies voters without due process (Count 8), is vague, arbitrary, and irrational (Counts 9, 10), is an ex post facto law that retroactively punishes citizens (Count 11), and imposes cruel and unusual punishment (Count 12). These counts allege violations under the First Amendment, the Eighth Amendment, the Fourteenth Amendment's Equal Protection and Due Process clauses, the Fifteenth Amendment, and section 2 of the Voting Rights Act, 52 U.S.C. § 10301 (“VRA”).

         In Counts 13 through 15, Plaintiffs allege that section 15-22-36.1(a)(3) transforms the ability to pay into an electoral standard, imposes a poll tax on voting, and denies black citizens the right to vote, in violation of the Fourteenth Amendment's Equal Protection Clause, the Twenty-Fourth Amendment, and section 2 of the VRA, respectively. Specifically, two of the individual Plaintiffs allege that they cannot meet the eligibility requirements for voting because they “are unable to afford to pay their remaining legal financial obligations.” (Compl. ¶ 250.)

         Plaintiffs ask for a declaratory judgment that section 177(b) of the Alabama Constitution, on its face and as applied, violates the First, Eighth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution, the Ex Post Facto Clause of Article I of the U.S. Constitution, and section 2 of the VRA. They also seek a declaratory judgment that section 15-22-36.1(a)(3) of the Alabama Code violates the Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution and section 2 of the VRA.

         3. The Order Denying Plaintiffs' Motion for ...

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