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Underwood v. Gulley

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

August 24, 2018

ANTHONY UNDERWOOD, et al., Plaintiff,
v.
KENNETH E. GULLEY, Mayor of Bessemer, et al, Defendants.

          MEMORANDUM OPINION

          MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the plaintiffs' motion for preliminary injunction. (Doc. 2). The plaintiffs are citizens of the City of Bessemer who ask the Court to enjoin the defendants, officials of the City of Bessemer, from participating in the administration of the City's August 28, 2018 elections. (Doc. 1). The plaintiffs allege that in the 2014 election, the defendants violated their constitutional rights by, for example, diluting votes, and the plaintiffs anticipate that the defendants will do so again in next week's election. The plaintiffs also contend that the defendants violated the Voting Rights Act in 2014 by intimidating voters, and the plaintiffs anticipate that the defendants will do so again on August 28, 2018. The plaintiffs seek integrity in the municipal election process.

         Plaintiffs filed their motion for a temporary injunction on August 16, 2018. (Doc. 2). The Court conducted a telephone conference with the parties on August 17, 2018, and the Court held an evidentiary hearing on the plaintiffs' motion on August 20, 2018. (August 17, 2018 and August 20, 2018 docket entries). On August 21, 2018, the parties filed briefs concerning the plaintiffs' motion. (Docs. 12, 13). Having considered the evidence and the parties' arguments, the Court denies the plaintiffs' motion for the reasons stated below.

         I. JURISDICTION

         Pursuant to 28 U.S.C. § 1331, this Court has jurisdiction over this matter because the plaintiffs allege violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Voting Rights Act of 1965. (Docs. 1, 8).

         II. STANDARD FOR A PRELIMINARY INJUNCTION

         “A party seeking a preliminary injunction bears the burden of establishing entitlement to relief.” Scott v. Roberts, 612 F.3d 1279, 1289 (11th Cir. 2010). “To obtain such relief, the moving party must show: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury unless the injunction is issued; (3) that the threatened injury outweighs possible harm that the injunction may cause the opposing party; and (4) that the injunction would not disserve the public interest.” GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318, 1322 (11th Cir. 2015) (citing Burk v. Augusta-Richmond Cnty., 365 F.3d 1247, 1262-63 (11th Cir. 2004)). “A preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these prerequisites.” Id. (alteration and internal quotation marks and citation omitted).

         III. ANALYSIS

         A. Likelihood of Success on the Merits

         To date, the plaintiffs have not demonstrated a likelihood of success on the merits of their claims. At this preliminary stage, through the testimony of 2014 poll watchers and other witnesses, the plaintiffs have offered evidence that suggests that there may have been some voter intimidation during the 2014 municipal election in Bessemer and that election officials may have tampered with absentee ballots and ballots cast on the day of the election. (August 20, 2018 evidentiary hearing). If ultimately proven on a full record, these would be serious election violations. With respect to the 2018 municipal election, the plaintiffs point out that the City had received more than 700 absentee ballots as of August 20, 2018. The plaintiffs also contend that some of the individuals who the City of Bessemer initially selected to oversee the election are not qualified because the appointed individuals have conflicts of interest. (Doc. 8).

         With respect to conflicts of interest, at the August 20, 2018 evidentiary hearing, counsel for the City explained that the Bessemer City Council already has replaced some election officials who appeared to have conflicts of interest, and the City Council was scheduled to replace two other officials at a meeting on August 21, 2018. Mr. Underwood, one of the plaintiffs, testified that the City already has received hundreds of absentee ballots (August 20, 2018 Tr., p. 15), but without more, that fact standing alone does not establish a violation of federal law.

         There is no other evidence of irregularities that would warrant a preliminary injunction. Just before the evidentiary hearing began, Mr. Underwood attended the inspection of the voter machines that the City has rented for the election. Mr. Underwood presented no evidence that suggests that, to date, a voting machine has been compromised. The City held training for all poll workers on August 23, 2018. To date, the Court has not received evidence that suggests that the training was inadequate. The plaintiffs' initiation of this action focuses a spotlight on the upcoming election and no doubt serves as a deterrent to misconduct with respect to absentee ballots and all other aspects of the election.

         Thus, on the record before it, the Court thus cannot conclude that there is a substantial likelihood that the plaintiffs will succeed in proving a constitutional violation or a violation of the Voting Rights Act with respect to the August 28, 2018 election.

         B. ...


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