United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
pending before the Court are a renewed motion to dismiss,
motion to dismiss supplemental complaint, or in the
alternative, motion for summary judgment (Doc. 95) filed by
the Defendants on March 15, 2018; a cross-motion for summary
judgment on count 18 (Doc. 97) filed by the Plaintiffs on
April 5, 2018; and a motion to strike untimely declaration
(Doc. 109) filed by the Defendants on May 22, 2018.
consideration of the complaint, the supplemental complaint,
the motions, and the briefs and submissions of the parties,
and for the reasons that follow, the Defendants' renewed
motion to dismiss is due to be DENIED, the motion to dismiss
is due to be GRANTED in part and DENIED in part, the motions
for summary judgment are due to be DENIED, and the motion to
strike is due to be DENIED as moot.
FACTS and PROCEDURAL HISTORY
individual Plaintiffs are citizens who either have been
denied applications to vote because of, or have not
registered to vote due to uncertainty arising from, the
Alabama Constitution's exclusion from voting of persons
convicted of crimes of moral turpitude. The organizational
plaintiff, Greater Birmingham Ministries (“GBM”),
expends resources to help individuals with felony convictions
determine if they are eligible to vote or to have their
voting rights restored.
1996, an amendment to the Alabama Constitution was ratified
which 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). This section did not define
“moral turpitude.” A separate statute, Ala. Code
§15-22-36.1(a)(3), sets out the procedure for a person
to apply to the Board of Pardons and Paroles for a
Certificate of Eligibility to Register to Vote.
September 26, 2016, the Plaintiffs filed a putative
class-action complaint in this Court challenging Alabama
Constitution §177(b) and Ala. Code
Defendants filed a motion to dismiss the original complaint
on November 16, 2016. (Doc. 43).
Bill 282 (“HB 282”), codified at Ala. Code §
17-3-30.1, went into effect on August 1, 2017, and defines
crimes of moral turpitude. The statute lists forty-seven
crimes tied to specific Alabama Criminal Code Sections and
lists crimes “as defined by the laws of the United
States or by the laws of another state, territory, country,
or other jurisdiction, which, if committed in this state,
would constitute one of the offenses listed in this
subsection.” Ala. Code § 17-3-30.1(c).
December 26, 2017, the Court denied the Defendants'
motion to dismiss in part and granted it in part. (Doc. 80).
The Court concluded that counts asserting vagueness of §
177(b) were mooted by Ala. Code. § 17-3-30.1 and
dismissed those counts. (Doc. 80 at 28).
respect to counts 1 and 2, which are claims that section
177(b) of the Alabama Constitution violates the Fourteenth
and Fifteenth Amendments, this Court found as follows:
Here, without suggesting any view on whether Plaintiffs
ultimately will be able to prove intentional discrimination
and having considered Defendants' arguments, the court
finds, under Arlington Heights that the law's
impact, its historical context, and the events leading up to
the enactment of section 177(b) are sufficient to allege a
plausibly discriminatory intent to disenfranchise black
(Doc. 80 at 14).
counts 11 and 12, which are claims that section 177(b) is an
Ex post facto law that retroactively punishes
citizens and violates the Eighth Amendment's proscription
against cruel and unusual punishment, this Court found as
Absent developed arguments from Defendants, the court
declines to formulate the arguments, to attempt to discern
the legislature's intent behind section177(b)'s
enactment, and to apply the multiple factors relevant to that
analysis. That analysis is better left for another stage of
this lawsuit, on an evidentiary record and on reasoned
(Doc. 80 at 30-31).
count 13, the Court concluded that the parties had not
adequately addressed in briefing the level of scrutiny to be
applied in the analysis and found even rational basis review
did not justify dismissal on the Defendants' thin
arguments. (Doc. 80 at 35).
result of this Court's Order, the Plaintiffs proceeded on
their claims in counts 1, 2, 11, 12, and 13. (Doc. 80 at 40).
March 1, 2018, the Plaintiffs filed a supplemental complaint
(Doc. 93). In it, the Plaintiffs have alleged that
the Alabama Secretary of State unilaterally determined that
HB 282 applies retroactively to persons convicted of crimes
prior to the effective date of HB 282. (Doc. 93 at ¶14).
They contend that the statute is plainly written to apply
prospectively. In their supplemental complaint, the
Plaintiffs added factual allegations to counts 1, 2, 11, 12,
and 13 and added counts 16, 17, and 18. Count 16 is a claim
that the Secretary of State's determination that HB 282
applies retroactively is contrary to the language of the
statute and therefore violates the Due Process Clause of the
Fourteenth Amendment. Count 17 is a claim that the
retroactive application of Ala. Code § 17-3-30.1
violates the Due Process Clause.
18 is a claim for violation of the National Voter
Registration Act of 1993, 52 U.S.C. § 20501 et
seq. (“NVRA”). The Plaintiffs challenge two
forms: the State of Alabama Mail-In Voter Registration Form
(“State Form”) and the state-specific
instructions for Alabama on the National Mail Registration
Form (“Federal Form”). The Plaintiffs'
statutory claim is that Defendants failed to include complete
voter eligibility requirements on the forms in violation of
the NVRA by referring only to “disqualifying
felonies” without listing those felonies. At the time
of the supplemental complaint, the State Form stated simply
that to register to vote in Alabama a person must not have
been convicted of a disqualifying felony, or if the person
has been convicted, must have had their civil rights
restored. (Doc. 93 at ¶ 19).
response to the supplemental complaint, the Defendants filed
a motion to dismiss which renews their motion to dismiss as
to counts 1, 2, 11, 12, and 13; which seeks dismissal of
counts 16, 17, and 18; and which alternatively moves for
summary judgment as to count 18. The Plaintiffs have
cross-moved for summary judgment as to count 18.
23, 2019, the Defendants filed a notice with the Court and
attached to that notice a revised State Form (Doc. 171-1 at
4) which states in the requirements section that to register
to vote you must not “have been convicted of a
disqualifying felony, or if you have been convicted, you must
have had your civil rights restored.” In the Voter
Declaration section, the form now also includes this
statement: “I am not barred from voting by reason of a
disqualifying felon conviction (The list of disqualifying
felonies is available on the Secretary of State's web
site at: sos.alabama.gov/mtfelonies).” (Doc. 171-1 at
4). The State instructions for the Federal Form now state
that to register in Alabama you must “not have been
convicted of a felony involving moral turpitude (or have had
your civil and political rights restored). The list of moral
turpitude felonies is available on the Secretary of State web
site at: sos.alabama.gov/mtfelonies.” (Doc. 171 at 2).
parties have advanced arguments regarding the revised forms
in notices to the Court filed by the Defendants and a
response to Defendants' notice filed by the Plaintiffs.
(Doc. 161, 164, 171). The parties have also filed
supplemental notices regarding two non-binding decisions.
(Doc. 173, 174).
Motion to Dismiss
12(b)(6) motion to dismiss tests the sufficiency of the
complaint against the legal standard set forth in Rule 8:
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “To survive a motion to dismiss, a 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)).
whether a complaint states a plausible claim for relief [is]
... a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Id. at 663 (alteration in original) (citation
omitted). The plausibility standard requires “more than
a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
Conclusory allegations that are merely
“conceivable” and fail to rise “above the
speculative level” are insufficient to meet the
plausibility standard. Twombly, 550 U.S. at 555,
570. This pleading standard “does not require
‘detailed factual allegations,' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. at 678. Indeed, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Id.
Motion for Summary Judgment
judgment is proper if the evidence shows ‘that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.'”
Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th
Cir. 2018) (quoting Fed.R.Civ.P. 56(a)). “[A] court
generally must view all evidence and make all reasonable
inferences in favor of the party opposing summary
judgment.” Fla. Int'l Univ. Bd. of Trs. v. Fla.
Nat'l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir.
2016). However, “conclusory allegations without
specific supporting facts have no probative value.”
Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924-25
(11th Cir. 2018). If the record, taken as a whole,
“could not lead a rational trier of fact to find for
the non-moving party, ” then there is no genuine
dispute as to any material fact. Hornsby-Culpepper,
906 F.3d at 1311 (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
movant bears the initial burden of demonstrating that there
is no genuine dispute as to any material fact, and the movant
must identify the portions of the record which support this
proposition. Id. (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). The movant may carry
this burden “by demonstrating that the nonmoving party
has failed to present sufficient evidence to support an
essential element of the case.” Id. The burden
then shifts ...