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Greater Birmingham Ministries v. Merrill

United States District Court, N.D. Alabama, Southern Division

January 10, 2018

GREATER BIRMINGHAM MINISTRIES, et al., Plaintiffs,
v.
JOHN MERRILL, in his official capacity as the Alabama Secretary of State, Defendant.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         I. INTRODUCTION

         This case addresses the voting rights claims of Plaintiffs Greater Birmingham Ministries, the Alabama State Conference of the National Association for the Advancement of Colored People (“the Alabama NAACP”), Giovana Ambrosio, Shameka Harris, and Elizabeth Ware, against John Merrill in his official capacity as Alabama's Secretary of State (“Secretary Merrill”). In this action, Plaintiffs challenge Alabama's Photo Voter Identification Law, House Bill 19 of 2011, codified at Ala. Code § 17-9-30 (1975) (“the Photo ID Law”), which requires absentee and in-person voters to show photo identification in order to cast a regular ballot, subject to some exceptions. Plaintiffs allege that the law has a racially discriminatory purpose and effect that violates the Voting Rights Act and the United States Constitution. Specifically, Plaintiffs allege that the Photo ID Law violates Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, Section 201 of the Voting Rights Act, 52 U.S.C. § 10501, and the Fourteenth and Fifteenth Amendments. Based on their claims, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of the Photo ID Law. Secretary Merrill denies Plaintiffs' allegations and contends that the law was passed for valid and non-discriminatory purposes, that nearly every eligible voter in Alabama has an acceptable photo ID, and that anyone who does not have an acceptable photo ID can easily obtain one.

         Presently before the Court are cross motions for summary judgment filed by all parties. Specifically, Secretary Merrill has filed a Motion for Summary Judgment seeking the dismissal of all of Plaintiffs' claims. (Doc. 236.) Plaintiffs have filed a Motion for Partial Summary Judgment seeking a judgment in their favor on one of their claims and on one discrete issue. (Doc. 234.) For the reasons that follow, Secretary Merrill's motion is due to be granted and this action dismissed in its entirety.[1]

          II. FACTS[2]

         A. Historical and Contemporaneous Background

         Penalties for voter fraud have existed in Alabama since the 1850s. While cases of proven in-person voter fraud in Alabama are extremely rare, there are some documented cases of absentee voter fraud in Alabama in recent history. For example, a July 1996 article in The Birmingham News discussed the types of voter fraud allegedly occurring in Alabama: “Since 1994, affidavits and courtroom testimony have established the following abuses: (1) absentee ballots cast in the names of dead people and people who have long since moved out of the county; (2) absentee ballots mailed to unregistered voters; (3) voter brokers following mail trucks and removing absentee ballots from mailboxes; (4) intimidation of poor and elderly voters who are made to fear a cutoff of their governmental assistance from local politicians if they do not cooperate by handing over their absentee ballots; (5) pressuring and solicitation of nursing home patients; (6) vote buying at $5 and $10 a piece; (7) bulk mailing of hundreds of absentee ballots by just a few individuals in some counties . . . .” The State and federal governments worked together to investigate and prosecute voter fraud in absentee voting in places like Greene and Wilcox counties. Various citizen groups formed to spread the word about the need for a photo ID law to combat voter fraud, such as the bi-racial Honest Elections Coalition.

         In 1995, the National Voter Registration Act of 1993 went into effect, allowing persons to register to vote at motor vehicle and public welfare agencies or by mailing in easily-available voter registration forms. See 52 U.S.C. § 20501 et seq. The Act led to 180, 000 new, disproportionately Black and low-income people becoming registered voters in 1995 in Alabama.

         Although some in the Legislature tried, voter ID bills failed in the Legislature in the nineties. In 1998, Governor Fob James, Attorney General Bill Pryor, and Secretary of State Jim Bennett were unified in fighting for a voter ID law. An article reported that then-Attorney General Bill Pryor “believes honest elections would restore voter confidence and increase turnout. He said critics who claim there's no vote fraud need to check the record. State and federal prosecutors have won convictions in several counties against officials and citizens who illegally cast ballots.”

         By 2000, fourteen other states requested some kind of ID in order to vote. In 2003, Alabama passed a voter ID law that allowed the use of both photo and non-photo Id. See Ala. Act No. 2003-381. The law was the result of a deal that Democrat Legislators would support the bill as long as Republican Legislators would support a bill that would restore the voting rights of certain felons once they were released from prison and paid their fines. Acceptable forms of identification under the 2003 law included (1) a copy of a utility bill, bank statement, government check, paycheck, or other document with the voter's address, (2) a valid Alabama hunting or fishing license, (3) a valid Alabama concealed carry permit, (4) a valid pilot's license issued by the Federal Aviation Administration, (5) a certified birth certificate, (6) a valid social security card, (7) certified naturalization documentation, (8) a certified copy of court records showing adoption or name change, (9) a valid Medicare, Medicaid, or electronic benefits transfer card, and (10) a valid voter registration card. In addition, a voter could cast a ballot if he or she was “positively identified by two election officials.” At that time, the Voting Rights Act required Alabama to seek preclearance for any change in voting requirements from either the U.S. Attorney General or a three-judge court in the United States District Court for the District of Columbia. See Shelby Cty. v. Holder, 133 S.Ct. 2612, 2620 (2013). The U.S. Attorney General precleared Alabama's 2003 voter ID law, including the positively identify provision, and the law remained in effect until 2014.

         In 2005, the Commission on Federal Election Reform, chaired by former President Jimmy Carter and former U.S. Secretary of State James Baker, issued a report encouraging States to move towards requiring voters to present photo IDs before being allowed to cast a ballot. See Report of the Commission on Federal Election Reform, Building Confidence in U.S. Elections § 2.5 (Sept. 2005) (“the Carter-Baker Report”). The Carter-Baker Report found that even in the absence of extensive voter fraud, the use of photo IDs would inspire public confidence in the voting process and act as a deterrent to fraud. See Id. (“In the old days and in small towns where everyone knows each other, voters did not need to identify themselves. But in the United States, where 40 million people move each year, and in urban areas where some people do not even know the people living in their own apartment building let alone their precinct, some form of identification is needed. . . . Photo IDs currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.”).

         In 2008, Indiana's photo ID law was challenged, and it was upheld by the United States Supreme Court. Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008). The next year, the Eleventh Circuit upheld Georgia's photo ID law. Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009).

         Between 1995 and 2011, Black legislators and other individuals in Alabama argued at length about how requiring photo ID would disfranchise voters who lack access to vehicles and specifically about the anticipated effect of such requirements on Black voters. In the 2008 presidential election, Black voter turnout and political engagement increased significantly as compared to prior elections. However, the 2010 elections produced a Republican landslide and supermajorities in both the Alabama House and Senate, for the first time in 136 years. There was racially polarized voting in both the 2008 and 2010 elections. White Republicans' defeat of white Democrats led to a partisan divide in the Alabama Legislature. Prior to the 2010 election, the House had 60 Democrats, 34 of them white and 26 Black. After the 2010 election, there were 36 Democrats-ten white, 26 Black. In the Senate, the number of Black Democrats remained seven; white Democrats fell from 13 to four. There were no non-white Republicans. Thus, after 2010, 67% of the remaining Democrats were Black Legislators who represented Black districts.

         In 2011, one of the priorities of the newly elected Alabama Legislature was the enactment of a bill that required photo ID to vote either in-person or absentee. House Bill 19 was pre-filed in the Alabama House of Representatives for the 2011 Legislative Session on February 25, 2011. The bill was considered by the House Standing Committee on Constitution, Campaigns, and Elections, which acted favorably on it and recommended a substitute and an amendment. On March 22, 2011, the House considered whether to approve the substitute and the amendment; the substitute was adopted and the amendment was rejected. The House passed House Bill 19 by a largely party-line vote of 64-31. Some Black Legislators were vocal in their warnings that it would allegedly suppress voting by seniors and poor people who don't have easy access to transportation and decried it as “a step back to the days of poll taxes and literacy tests.”

         The Senate's Rules Committee added House Bill 19 to the “special order” calendar for June 9, 2011, the last day of the 2011 Legislative Session. On June 9, the Senate invoked cloture, a procedure used by the majority in a legislative assembly for ending debate and taking a vote, and passed the bill on a straight party-line vote. All Black Senators who were present voted against the bill. The Senate used cloture more frequently in 2011, 36 cloture votes in fact, once the Republicans had a supermajority allowing them to utilize it.

         Governor Robert Bentley signed House Bill 19 into law on June 15, 2011. At that time, Alabama was still a “covered” State under Section 5 of the Voting Rights Act and thus could not enforce the law without first obtaining preclearance from the U.S. Department of Justice or a federal three-judge court. By its terms, the Photo ID Law was not to become operative until the first statewide primary in June 2014. Republican Representative Kerry Rich was quoted as anticipating a “lengthy court battle and review by the U.S. Justice Department to see if the legislation complies with the 1965 Voting Rights Act.”

         In the 2011 Legislative Session, Republican Senator Scott Beason was the chair of the Senate Rules Committee and had influence over setting the legislative agenda. On June 17, 2011, just after the 2011 Legislative session concluded, Senator Beason's comments referring to Black voters as “aborigines” became publicly known through the trial testimony in United States v. McGregor, See 824 F.Supp.2d 1339, 1345 (M.D. Ala. Oct. 20, 2011). His comment was made in conversations unrelated to the Photo ID Law that were recorded by the Federal Bureau of Investigation in its efforts to obtain evidence of legislative bribery. On November 15, 2011, Senator Beason was stripped of his position on the Senate Rules Committee before the 2012 Legislative Session.

         From the 1990s until his retirement in 2010, Republican Senator Larry Dixon sponsored photo ID bills like House Bill 19. In 1996 he made a comment to the effect that Alabama's lack of a photo ID law was “beneficial to the Black power structure” and “benefits Black elected leaders.” In 2011, comments he made referring to Black voters as “illiterates, ” during the same recorded conversations that Senator Beason was involved in, also became publicly known through the trial testimony in United States v. McGregor. Senator Dixon was not in the Legislature when House Bill 19 was passed in 2011.

         Several days before the Photo ID Law was passed, the same Legislature passed House Bill 56, a wide-ranging anti-immigration bill. Many of the same Legislators sponsored both bills. Black Legislators voted overwhelmingly in opposition to the anti-immigration bill. It contained a proof of citizenship requirement for voter registration. Anyone already registered was not required to provide proof of citizenship. Several of the Republican Legislators made prejudiced comments conflating Latinos with illegal immigrants in connection with promoting the bill, including Rep. Rich and Sen. Beason. Much of House Bill 56 was later invalidated by Federal courts. See, e.g., United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012).

         In 2012, the same Legislature that passed the Photo ID Law passed a state legislative redistricting plan. In 2017, a three-judge court ruled that twelve majority-Black districts violated federal law and that the Legislature's redistricting was predominately motivated by race. Ala. Legis. Black Caucus v. Alabama, 231 F.Supp.3d 1026, 1033 (M.D. Ala. 2017).

         Alabama's Secretary of State, then Jim Bennett, did not issue administrative rules, educate the public, train election officials, issue photo ID cards, or otherwise implement the Photo ID Law before June 25, 2013. Taking some of those actions before that date would have violated Section 5 of the Voting Rights Act.

         On June 25, 2013, the Supreme Court issued its opinion in Shelby County, declaring unconstitutional Section 4(b) of the Voting Rights Act, which is the coverage provision of Section 5 of the Act. 133 S.Ct. at 2622-28. The Shelby County decision resulted in Alabama no longer being subject to preclearance before implementing a change such as that contained in the Photo ID Law. Thus, on June 29, 2013, Secretary Bennett issued proposed administrative rules for implementation of the Photo ID Law, and on October 22, 2013, issued final administrative rules for the law generally. On April 16, 2014, Secretary Bennett issued supplemental emergency administrative rules governing the positively identify provision of the law at the urging of some of the plaintiffs and their counsel and others. When those groups then objected to the rules that were promulgated because they believed the rules did not address the concerns raised in their objections, Secretary Bennett allowed the emergency administrative rules to expire without replacing them.

         B. Alabama's Photo ID Law-Its Provisions and Operation

         Alabama's Photo ID Law requires voters to present a valid photo ID to vote. Ala. Code § 17-9-30(a). It applies to in-person and absentee voters. Id. § 17-9-30(b). Voters voting absentee are required to include a photocopy of their photo IDs, in a separate envelope, when they mail in their absentee ballots. Id. Pursuant to the positively identify provision of the Photo ID Law, an in-person voter without the required photo ID can still cast a regular ballot if two election officials present at the polling place positively identify that person as a person who is eligible to vote and they each sign a sworn affidavit so stating. Id. § 17-9-30(e). Voters without the required photo ID can also cast a provisional ballot. Id. § 17-9-30(d). Law already in effect at the time of the Photo ID Law's passage states that a provisional ballot for an in-person voter is counted if the voter returns to the appropriate Board of Registrars with the required photo ID by the deadline, generally the Friday after Election Day. Voters entitled to vote absentee by federal law, including the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq., and provisions concerning voting accessibility for elderly and/or handicapped voters, are not required to show or provide a copy of photo ID to vote. Ala. Code § 17-9-30(c).

         The Photo ID Law lists seven specific categories of valid photo ID:

(1) A valid Alabama driver's license or nondriver identification card which was properly issued by the appropriate state or county department or agency.
(2) A valid Alabama photo voter identification card issued under subsection (f) or other valid identification card issued by a branch, department, agency, or entity of the State of Alabama, any other state, or the United States authorized by law to issue personal identification, provided that such identification card contains a photograph of the elector.
(3) A valid United States passport.
(4) A valid employee identification card containing the photograph of the elector and issued by any branch, department, agency, or entity of the United States government, this state, or any county, municipality, board, authority, or other entity of this state.
(5) A valid student or employee identification card issued by a public or private college, university, or postgraduate technical or professional school located within the state, provided that such identification card contains a photograph of the elector.
(6) A valid United States military identification card, provided that such identification card contains a photograph of the elector.
(7) A valid tribal identification card containing a photograph of the elector.

Id. § 17-9-30(a).

         In addition to Alabama driver's licenses and nondriver IDs, Alabama allows voters to use driver's licenses and nondriver IDs issued by other States. The Alabama Law Enforcement Agency (“ALEA”), formerly the Alabama Department of Public Safety, handles initial issuances of driver's licenses and nondriver IDs, but renewals and duplicates are available in every county in Alabama from a Judge of Probate, a License Commissioner, or a Revenue Commissioner. Renewals and duplicates are also available from Self-Service Kiosks or the Alabama Online Driver License Issuance System. A grace period of 60 days after expiration of a driver's license exists for the purpose of driver's license renewal and the driver's license remains valid during that time. Under certain conditions, a driver's license that has been expired for three years or less can be renewed without going to an ALEA office. Persons 62 and older may obtain a “lifetime” nondriver ID that does not expire. There is a fee to obtain a driver's license. In addition to paying a fee for the driver's license, a person must present various forms of documentation to receive a driver's license, and some of those have fees.

         ALEA also requires documentation to obtain a nondriver ID, such as birth and marriage certificates. However, and although not required by the Photo ID Law, Secretary Merrill has entered into a Memorandum of Understanding (“MOU”) with ALEA, whereby if a person seeks an ALEA nondriver ID for the purposes of voting, the fee for the nondriver ID will be paid by the Secretary. As of the fall of 2017, ALEA had invoiced the Secretary for 33 voters who requested a nondriver ID for voting purposes. Another MOU was reached between the Secretary and the State's Department of Public Health (“ADPH”) whereby the ADPH will perform searches for birth and marriage certificates for ALEA when a person requests a nondriver ID to vote but does not have a copy of the necessary underlying documentation and bill the Secretary for the search.

         The Photo ID Law also provides for the Secretary to issue free photo voter ID cards specifically for the purposes of voting. Ala. Code § 17-9-30(f). Because they cost money to print, these cards are only meant for registered voters who do not have one of the other forms of photo ID accepted under the Photo ID Law. See Id. § 17-9-30(g). To obtain a photo voter ID card, voters must sign a form, under penalty of perjury, that they do not currently possess any form of valid photo Id. Id. § 17-9-30(i). Any falsification or fraud in making the application is a Class C felony. Id. These photo voter ID cards may be obtained at Board of Registrars' offices located in every Alabama county, the Secretary of State's office at the State Capitol in Montgomery, or from the Secretary of State's mobile ID unit. The Board of Registrars for each county is responsible for maintaining voter rolls. Most counties have one office for the Board of Registrars, but a few have more than one office.

         In order to obtain a free photo voter ID card, the voter must present

(1) A photo identity document, except that a non-photo identity document is acceptable if the document includes both the person's full legal name and date of birth.
(2) Documentation showing the person's date of birth.
(3) Documentation showing the person is registered to vote in this state.
(4) Documentation showing the person's name and address as reflected in the voter registration record.

Id. § 7-9-30(j). While there is no existing list of all forms of documents that could be used to get a photo voter ID card, non-photo ID documents that can be used include a birth certificate, social security document, hospital or nursing home record, marriage record, census record, military record, Medicare or Medicaid document, certificate of citizenship, official school record or transcript, and a selective service card or documentation. Indeed, the mobile ID unit has issued free photo voter ID cards based upon the presentation of a wide variety of documents, including voter registration forms, registration update forms, arrest records, bank documents, Birmingham Housing Authority ID cards, expired county employee IDs, court paternity documents, fishing licenses, EBT cards, pay stubs, Sam's Club cards, and a ticket issued by a municipality. There may be fees to obtain documents that may be used to obtain a photo voter ID card. For example, a birth certificate and a marriage license, both documents that would confirm a voter's name and date of birth, cost $15.00 each. However, the Secretary of State has entered into another MOU with the ADPH providing that an official issuing a photo voter ID card can request a copy of a voter's Alabama birth or marriage certificate, for purposes of issuing the ID, at no cost to the voter. Pursuant to the MOUs, the ADPH processed 164 requests for free birth or marriage certificates between March 2014 and September 2014; 87 in Fiscal Year 2015 (October 2014 through September 2015); 89 in Fiscal Year 2016; and 78 for October 2016 through July 2017.

         Another way for a voter to meet the requirements to obtain a photo voter ID card is simply to complete a voter registration form or a voter registration update form and sign the same in front of an election official under penalty of perjury. Persons already registered to vote may submit a voter registration update form, even if nothing needs updating, and prove their identity with that update form alone. Voters in Alabama are currently required to update their registration when they move. Voter registration cuts off on the fifteenth day before each election, but the Boards of Registrars offices are required to stay open during the 14-day period leading to each election and on Election Days. Photo voter IDs are available to the voter at the Boards of Registrars' offices on Election Days, but are not available at polling places on Election Days.

         Secretary Merrill contracted with Police & Sheriff's Press, Inc. (“PASP”) to produce the photo voter ID cards at $8.00 each. When a voter applies for a photo voter ID card, a temporary card is issued on the spot at no cost to the voter. The permanent card is mailed to the voter, normally within ten business days. PASP began printing Alabama photo voter ID cards in February 2014. PASP printed 5, 294 Alabama photo voter ID cards in 2014, another 2, 316 cards in 2015, another 4, 429 in 2016, and 1, 403 in 2017 (through June 30). As of June 30, 2017, Alabama had issued 13, 442 free photo voter ID cards to voters, and the Secretary of State had paid more than $280, 000 to PASP for card-printing and other services and equipment related to the photo voter ID program.

         In 2014, then-Secretary of State Bennett first implemented the mobile ID unit program, the schedule for which was developed after contacting every mayor's office in the State. While he was Secretary of State, the mobile ID unit went to every county in the State, and it went to some counties more than once. It was stationed at a variety of locations, including churches, libraries, and malls. Secretary of State Merrill continued with the mobile ID unit when he was elected in 2015. He solicited input on the mobile ID unit's schedule from the Judges of Probate, as well as from members of the Alabama House and Senate. Secretary Merrill issued press releases informing voters about the photo ID requirement and announcing the mobile ID unit's upcoming locations. Poverty, household wealth, and racial demographics were not factors considered when scheduling locations for mobile ID unit visits. Secretary Merrill has said he tries to get the mobile ID unit to festivals and events throughout the State that are high traffic areas, and he tries not to have the unit go to the same places every year. For instance, the mobile ID unit has been to the Chilton County Peach Festival in Clanton, the Peanut Butter Festival in Brundidge in Pike County, the Peanut Festival in Dothan in Houston County, the Magic City Classic in Birmingham where Alabama State and Alabama A&M play football every year, the Tomato Festival in Slocomb in Geneva County, and the Rattlesnake Rodeo in Opp in Covington County. The mobile ID unit has made more than 350 visits across the State since 2014 and issued more than 850 photo voter IDs. As of April 12, 2017, 85% of mobile ID unit locations were more than a mile from a Board of Registrars' office. As of April 12, 2017, on average, mobile ID unit locations were open for 3.6 hours a day.

         Voters may also request, through the Secretary of State's website, that the mobile ID unit come to their home or group to issue a photo voter ID card. The number of home visits actually made to date is fewer than ten. One of the mobile unit home visits came about from a member of the Legislature contacting Secretary Merrill to assist a constituent. Another was made for a plaintiff in this litigation. The Secretary has implemented a protocol whereby the voter is asked questions about his or her transportation options before a home visit is scheduled. Nonetheless, Secretary Merrill has made clear that if the voter says he has no one to give him a ride, the voter is taken at his ...


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