United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
JURISDICTION AND VENUE
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.
STANDARDS OF REVIEW
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.
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”).
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) (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).
History of the Alabama Constitution's
Disenfranchisement of Individuals
Convicted of “Moral Turpitude”
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
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)-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.
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.)
The Felony Voter Disqualification Act (“HB
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.
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
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).
Section 15-22-36.1 of the Alabama Code
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
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).
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.
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.
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
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
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. §
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. ¶
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.
The Order Denying Plaintiffs' Motion for ...