Thompson et al v. State of Alabama et al (JOINT ASSIGN)
MEMORANDUM OPINION AND ORDER: Accordingly, based upon careful consideration of Plaintiffs motion for preliminary injunction, Defendants opposition, the evidentiary hearing, and the oral arguments, and the record, it is ORDERED that the motion (Doc. 56 ) is DENIED as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 7/28/2017. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
TREVA THOMPSON, et al.,
STATE OF ALABAMA, et al.,
CASE NO. 2:16-CV-783-WKW
MEMORANDUM OPINION AND ORDER
Alabama citizens lose their right to vote if they are “convicted of a felony
involving moral turpitude.”
Ala. Const., Art. VIII, § 177(b) (1996).
Disenfranchisement of felons, for more than two decades, has hinged on the meaning
of “moral turpitude.” But what does “moral turpitude” mean? Because the Alabama
Constitution did not define this nebulous standard, “[n]either individuals with felony
convictions nor election officials ha[d] a comprehensive, authoritative source for
determining if a felony conviction involve[d] moral turpitude and [was] therefore a
disqualifying felony.” Ala. Code § 17-3-30.1 (eff. Aug. 1, 2017). But that dilemma
for felons and election officials appears to have resolved on May 25, 2017, at least
prospectively, with the enactment of the Felony Voter Disqualification Act,
Alabama Laws Act 2017-378 (“HB 282”), which for the first time established a
specific and inclusive list of felonies “involving moral turpitude.” HB 282, codified
as § 17-3-30.1 of the Alabama Code, has an effective date of August 1, 2017.
This lawsuit originally was not about HB 282; it could not have been because
its commencement preceded HB 282’s enactment by eight months.
Plaintiffs filed this proposed class action against the State of Alabama and its
officials, seeking in part to invalidate § 177(b) of Article VIII of the Alabama
Constitution of 1901 on federal constitutional grounds, including vagueness.
HB 282 changed the course of this lawsuit significantly. Acknowledging that
HB 282 “seeks to put an end to” a system that required “individual county registrars
to make subjective and contradictory determinations of citizens’ eligibility to vote
on an ad hoc basis” (Pls.’ Mot. Prelim. Inj., at 7), Plaintiffs filed a motion for
preliminary injunction thirty-seven days after HB 282’s enactment. Plaintiffs do not
challenge the provisions of HB 282 itself. Instead, they ask for a preliminary
injunction mandating Defendants to take specified steps to implement HB 282.
The urgency of the motion, according to Plaintiffs, is the upcoming special
election for the United States Senate seat in Alabama, and more specifically, the
voter registration deadline, which is July 31, 2017. The special primary election is
August 15, 2017; the special runoff election is September 26, 2017; and the special
general election is December 12, 2017. Plaintiffs contend that, “[a]bsent immediate
relief from this Court, thousands of eligible voters risk losing the opportunity to vote
in yet another election.” (Pls.’ Mot. Prelim. Inj., at 8.) The preliminary injunction
motion “seeks relief solely for those voters whose voting rights under Section 177
of the Constitution have been affirmed by HB 282.” (Id.) The motion refers to these
potential voters as “HB 282 voters.” (Id.)
In their motion, Plaintiffs ask for a preliminary injunction mandating
Defendants to take the following actions prior to the voter registration deadline on
July 31, 2017: (1) to provide notice of HB 282’s voting eligibility standards on the
electronic Alabama Voter Registration Form on the Alabama Secretary of State’s
website; (2) to post notice of HB 282’s voting eligibility standards on the Alabama
Secretary of State’s website and at county registrars and DMV offices; (3) to submit
a request to the federal Election Assistance Commission to provide notice of HB
282’s voting eligibility standards in Alabama’s state-specific instructions on the
Federal Voter Registration Form; and (4) to reinstate HB 282 voters—voters whose
registration applications were denied or who were struck from the voter registration
rolls in the last two years, but whose eligibility was affirmed by HB 282—to the
voter registration rolls and provide them with individualized notice of their
eligibility to vote.1
At the July 25, 2017, hearing on the motion for preliminary injunction, Plaintiffs orally
narrowed their written requests for preliminary injunctive relief. These are the modified requests.
Defendants oppose the motion, arguing that Plaintiffs have not met “the high
bar for an emergency mandatory injunction and [that] the equities clearly outweigh
granting one.” (Defs. Resp., at 2 (Doc. # 58).) Defendants further represent that the
Alabama Secretary of State is responsible for the unanimous passage of the Act and
“fully supports the new law and is implementing it in a deliberate fashion.” (Id.
at 8.) The record contains briefing and evidence in support of and in opposition to
the motion, and the parties presented additional evidence and arguments at the
hearing held on July 25, 2017.
For the reasons that follow, Plaintiffs have not demonstrated that they are
entitled to preliminary injunctive relief, and Plaintiffs’ motion (Doc. # 56) is due to
II. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331. The
parties do not contest personal jurisdiction or venue.
The Relevant Parties and Claims
Plaintiffs seek a preliminary injunction on some, but not all, counts. Only
those parties and claims that are the subject of the preliminary injunction are set out
Plaintiffs filed this lawsuit on September 26, 2016. The ten individual
Plaintiffs are Alabama citizens who, on the basis of their felony convictions, have
been removed 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 they
have been convicted of a disqualifying felony involving moral turpitude. The
organizational Plaintiff, Greater Birmingham Ministries, whose central goal is “the
pursuit of social justice in the governance of Alabama,” expends financial and other
resources to help individuals with felony convictions determine whether they are
eligible to vote or to have their voting rights restored. (Compl. ¶ 62 (Doc. # 1).)
Defendants are the State of Alabama, the Secretary of State of Alabama, 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.
The Complaint seeks to certify a class of Plaintiffs defined as:
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.
The motion for preliminary injunction also contains its own class, namely,
“those voters whose voting rights under Section 177 of the [Alabama] Constitution
have been affirmed by HB 282.” (Pls.’ Mot. Prelim. Inj., at 8 (Doc. # 56).)
Section 177(b)’s phrase “moral turpitude” is at the forefront of twelve of the
Complaint’s fifteen counts challenging the constitutionality of § 177(b) of the
Alabama Constitution. Only Counts 6–10 are relevant to the motion for preliminary
injunction. These counts seek injunctive and declaratory relief.
Counts 6 and 7 allege that § 177(b)’s failure to define which Alabama felonies
involve moral turpitude “imposes an unconstitutional burden on the right to vote of
eligible Alabama voters with felony convictions in violation of the Equal Protection
Clause” (Count 6) and the First Amendment (Count 7), and that, therefore, § 177(b)
is subject to strict scrutiny. (Compl. ¶¶ 204, 207.)
Count 8 is a Fourteenth Amendment procedural due process claim, alleging
that § 177(b)’s felon-disenfranchisement provision “provides Alabama citizens with
little to no pre-deprivation process before revoking their right to vote, a fundamental
right protected by both the Alabama and United States Constitutions.” (Compl.
¶ 210.) Count 9 alleges that the “prohibition on voting for those convicted of
felonies ‘involving moral turpitude’ is void for vagueness under the First and
Fourteenth Amendments.” (Compl. ¶ 225.)
Count 10 is a selective enforcement claim under the Fourteenth Amendment’s
Due Process Clause. It alleges that Defendants arbitrarily distinguish between
groups of felons by administering § 177(b) with an unequal hand from county to
county and that, therefore, § 177(b) cannot survive rational-basis scrutiny.
The Complaint’s prayer for relief seeks certification of the Plaintiff class, of
nine Plaintiff sub-classes, and of a Defendant class of county registrars. It also asks
for a declaratory judgment that § 177(b) of the Alabama Constitution, on its face and
as applied, violates the First Amendment and the Equal Protection and Due Process
Clauses of the Fourteenth Amendment.
Shortly after taking office in 2014, Alabama Secretary of State John Merrill
established an exploratory committee on “voter disenfranchisement and restoration
of voting rights.” (See Ex. A, Decl. of Edward Packard ¶ 6 (Doc. # 63-1).) A
subcommittee of the “voter disenfranchisement and restoration of voting rights”
committee drafted proposed legislation to create an exclusive list of felonies that
would qualify as felonies of “moral turpitude” for the purposes of voting. (Id.) After
this bill was introduced in previous sessions, the Legislature ultimately enacted this
proposed legislation in a modified form by a unanimous vote in the 2017 regular
legislature session. (Id.) 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
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) (eff. Aug. 1, 2017).
On May 25, 2017, Governor Kay Ivey signed HB 282 into law. Defendants
estimate that some 60,000 felons could be affected by HB 282.
The effective date of HB 282 is August 1, 2017. However, because the August
15 special primary election for the U.S. Senate seat in Alabama is after HB 282’s
effective date, the Alabama Secretary of State has instructed registrars to use the new
law to determine whether new registrants who have committed felonies are qualified
to vote in the August 15 primary election. (See Ex. E, Decl. of George Noblin ¶ 4
(Doc. # 63-5).) The Chairman of the Montgomery County Board of Registrars,
George Noblin, gave an example that, on July 17, 2017, his staff permitted an
individual convicted of a felony to register to vote based upon application of HB
282. The Secretary of State’s liaison with the Board of Registrars is “not aware of
any registrar who has received an application to register from a felon and has not
applied the new law.” (See Ex. B, Decl. of Clay Helms ¶ 7 (Doc. # 63-2).)
The Alabama Secretary of State also is implementing statewide training to
registrars. Through a contract with Auburn University, the Secretary of the State
implemented a three-year training program on a variety of subjects for all of the
state’s registrars. The program, which commenced in June 2017, includes a course
on felon disenfranchisement and the definition of “moral turpitude.” (See Ex. B,
Decl. of Clay Helms ¶ 12 & Ex. 6 (contract and course schedule).) Moreover, on
June 2, 2017, which was eight days after HB 282’s enactment, Secretary Merrill
gave a presentation on HB 282 to the state association of registrars at their summer
conference and advised them to use the list as the exclusive means of evaluating
registrants. (See id.) And the Secretary’s staff distributed a modified registrars’
handbook that incorporated HB 282. (See id. ¶ 9 & Ex. 5.) The Secretary of State
also has provided written guidance on HB 282 to all registrars via email. (Pls.’ Mot.
Prelim. Inj., at 9.) Based on the steps that the Alabama Secretary of State has taken
to train the registrars on HB 282, Plaintiffs, at the hearing, withdrew their request
for a preliminary injunction ordering that Defendants provide Alabama’s 200
registrars mandatory training regarding the proper implementation of HB 282 for the
upcoming special elections for the U.S. Senate seat in Alabama.
IV. STANDARD OF REVIEW
A party seeking a preliminary injunction must establish four elements: “(1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable
injury; (3) that its own injury outweighs the injury to the nonmovant; and (4) that
the injunction would not disserve the public interest.” Siegel v. LePore, 234 F.3d
1163, 1179 (11th Cir. 2000). “A preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant clearly establishes the burden of
persuasion as to the four prerequisites.” Am. Civil Liberties Union of Fla., Inc. v.
Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). That burden is
even higher where, as here, the plaintiff seeks a mandatory preliminary injunction.
See Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d 1206, 1218 (S.D. Fla.
2014); see also Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996) (A prohibitory
injunction “restrains” a party from acting, while a mandatory injunction requires a
party to “take action.”). “[T]he burden of persuasion [on a motion for preliminary
injunction] becomes even greater where the relief requested is a mandatory
injunction, as opposed to a prohibitory injunction.”); see also Harris v. Wilters, 596
F.2d 678, 680 (5th Cir. 1979) (“Only in rare instances is the issuance of a mandatory
preliminary injunction proper.” (citing Exhibitors Poster Exch., Inc. v. Nat’l Screen
Serv. Corp., 441 F.2d 560 (5th Cir. 1971)).
Plaintiffs have not met their high burden for obtaining a mandatory
preliminary injunction. They have failed to demonstrate that any of the preliminary
injunction factors weighs in their favor.
Plaintiffs have not shown a likelihood of success on the merits.
Plaintiffs argue that they are likely to succeed on their claims challenging
Alabama’s standardless enforcement of the “moral turpitude” provision of § 177(b)
as set out in Counts 6–10 of the Complaint. Defendants assert, on the other hand,
that Plaintiffs cannot succeed because HB 282 moots Counts 6–10 and because their
motion for preliminary injunction seeks relief that is outside the Complaint. These
arguments are addressed in turn.
Plaintiffs’ claims are moot.
When, during the pendency of a lawsuit, the challenged law undergoes
substantial amendment “so as plainly to cure the alleged defect, . . . there is no live
controversy for the Court to decide.”
Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670 (1993)
(O’Connor, J., dissenting). “Such cases functionally are indistinguishable from
those involving outright repeal: Neither a declaration of the challenged statute’s
invalidity nor an injunction against its future enforcement would benefit the plaintiff,
because the statute no longer can be said to affect the plaintiff.” Id. The Eleventh
Circuit has recognized that both it and the United States Supreme Court “have
repeatedly held that the repeal or amendment of an allegedly unconstitutional statute
moots legal challenges to the legitimacy of the repealed legislation.” Nat’l Advert.
Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (collecting cases).
“While [the] general rule is that repeal [or amendment] of a statute renders a
legal challenge moot, an important exception to that general rule is that mere
voluntary termination of an allegedly illegal activity is not always sufficient to
render a case moot and deprive the federal courts of jurisdiction to try the case.” Id.
As a general principle, “[a] defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.”
Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (citation omitted). However,
the Eleventh Circuit “gives government actors more leeway than private parties in
the presumption that they are unlikely to resume illegal activities”; this leeway
translates to a “rebuttable presumption” or a “lesser burden.” Id. (citations omitted).
Before the presumption can attach, a defendant’s termination of the
challenged conduct must be “absolutely clear.” Id. at 1322. Three factors guide that
analysis: (1) “whether the termination of the offending conduct was unambiguous”;
(2) “whether the change in government policy or conduct appears to be the result of
substantial deliberation, or is simply an attempt to manipulate jurisdiction”; and
(3) “whether the government has ‘consistently applied’ a new policy or adhered to a
new course of conduct.” Id. at 1323. The government’s repeal or amendment of a
challenged statute is “often a clear indicator of unambiguous termination.” Id.
When the presumption attaches, “the controversy will be moot in the absence
of some reasonable basis to believe that the policy will be reinstated if the suit is
terminated.” Id. (citation omitted). Stated differently, only “when a court is
presented with evidence of a ‘substantial likelihood’ that the challenged statute will
be reenacted, the litigation is not moot and the court should retain jurisdiction.”
Nat’l Advert. Co., 402 F.3d at 1334. “[T]he cases are legion from this [circuit] and
other courts where the repeal of an allegedly unconstitutional statute was sufficient
to moot litigation challenging the statute.” Id. at 1333–34.
Defendants argue for application of the general rule—that HB 282 is a
clarifying amendment that moots Counts 6–10. Plaintiffs contend that the voluntarycessation exception keeps this case alive.
The court begins with an analysis of the three Doe factors to determine
whether HB 282 makes it “absolutely clear” that Defendants have ceased the
challenged conduct. To begin, there is no serious debate that HB 282 resolves
Plaintiffs’ challenge to § 177(b)’s vagueness. (See, e.g., Pls. Counsel’s Letter to
Andrew Brasher (Doc. # 56-1), in which counsel acknowledges that “HB 282 is most
relevant to Counts 6–10,” which challenge “the prior standardless system for
determining who could vote,” and that “HB 282 is an important step to remedying
the harms we alleged in those counts of the complaint”).) At the heart of Counts 6,
7, 8, 9, and 10’s constitutional challenge is that § 177(b)’s phrase “moral turpitude”
is so vague that it fails to provide reasonable guidelines for determining whether a
felony conviction “involves moral turpitude.” (See, e.g., Compl. ¶ 198 (“The failure
[of the State of Alabama] to define . . . crimes of moral turpitude imposes an
unconstitutional burden on those qualified to vote under Alabama law but who have
been convicted of felonies.” (Count 6)); Compl. ¶ 207 (incorporating ¶ 198 into
Count 7); Compl. ¶ 211 (“[T]he risk of erroneous deprivation [of procedural due
process] is high” because county registrars, with no legal training, must interpret
§ 177(b) in order to determine a citizen’s eligibility to vote (Count 8); Compl.
¶¶ 222, 224, 225 (§ 177(b)’s “prohibition on voting for those convicted of felonies
involving moral turpitude—with possible exception of those crimes listed in
Alabama Code Section 15-22-36.1(g)”—is standardless, does not provide fair notice
of the conduct prohibited, and is void for vagueness (Count 9); Compl. ¶ 227
(“Defendants’ enforcement of Section 177(b) is not guided by a principled
determination of which felonies ‘involve moral turpitude’” and, thus, has resulted in
a system of arbitrary disenfranchisement in violation of the Fourteenth Amendment
Through the enactment of HB 282, the Alabama legislature has addressed
Plaintiffs’ quandary. HB 282’s list of specific Alabama felonies, by crime and code
section, is a definitive list of felonies involving moral turpitude under § 177(b)’s
felony disenfranchisement provision. Plaintiffs now can be certain whether their
convictions are disqualifying. They can review HB 282 and know whether their
felony conviction involves moral turpitude. In fact, as a result of HB 282’s listing
of disqualifying felonies, Antwoine Giles and Laura Corley now know with certainty
that they are eligible to vote because their felonies are not on the HB 282 list.2
Counts 6–10’s challenges that § 177(b)’s phrase “moral turpitude” is vague and lacks
reasonably clear guidelines hardly can be said to still exist in view of HB 282.
Plaintiffs have not argued that HB 282 fails to provide them with clarity as to
whether their felony convictions involve “moral turpitude.”
Additionally, although Plaintiffs are not content with the progress of HB 282’s
implementation, the preponderance of the evidence shows that registrars are abiding
by and applying HB 282 when registering felons to vote. More specifically, at the
state association of registrars conference in June 2017, the Alabama Secretary of
State advised registrars to use HB 282’s list as the exclusive means of evaluating
registrants. Registrars also have received an amended registrars’ handbook that has
been updated to incorporate the legislation. (Ex. B, Decl. of Clay Helms ¶¶ 8, 9.)
And, in Montgomery County, a felon was permitted to register to vote under the new
Mr. Giles alleges that his name was purged from the Montgomery County voter
registration list after his 2006 Alabama conviction for stalking in the first degree. Because that
felony is not on the HB 282 list, he now is eligible to register to vote. Ms. Corley alleges that she
received conflicting information from state agencies as to whether her 2015 Alabama convictions
for possession of controlled substances disqualified her from voting, and, thus, she was uncertain
whether she could register to vote in Jefferson County. Because the felony underlying Ms.
Corley’s convictions is not on the HB 282 list, she now knows with certainty that she is qualified
law, whose felony would have been disqualifying under the old law. (Ex. E, Decl.
of George Noblin ¶ 4.) The Secretary of State’s liaison with the Board of Registrars
is “not aware of any registrar who has received an application to register from a felon
and has not applied the new law.” (Ex. B, Decl. of Clay Helms ¶ 7.) These facts
demonstrate that HB 282, through its enactment and application, unambiguously
terminated the offending conduct. The first factor is satisfied.
As to the second factor, there is no evidence, argument, or suggestion that HB
282 was an attempt to manipulate this court’s jurisdiction over this lawsuit. There
is no evidence suggesting that the Alabama legislature intends to repeal HB 282 after
this lawsuit concludes. To the contrary, the record reveals that the passage of HB
282 is the culmination of several years of work initiated by the Alabama Secretary
of State. (See Ex. C, Decl. of Brent Beal ¶ 2 (Doc. # 63-3).) Defendants’ evidence
establishes that, shortly after taking office in 2014, Secretary of State Merrill
established an exploratory committee on “voter disenfranchisement and restoration
of voting rights.” (Ex. A, Decl. of Edward Packard ¶ 6.) A subcommittee of the
“voter disenfranchisement and restoration of voting rights” committee drafted
proposed legislation to create an exclusive list of felonies that would qualify as
felonies of “moral turpitude” for the purposes of voting. (Id.) Ultimately, after this
bill was introduced in previous sessions, the Alabama Legislature enacted this
proposed legislation in a modified form by a unanimous vote in 2017. (Id.) These
facts show that substantial deliberation undergirded HB 282’s enactment. The
second factor is met.
Finally, with respect to the third factor, Defendants are applying HB 282 and
are in the midst of implementing programs to educate registrars, voters, and other
officials on the new law. There is no evidence that any eligible HB 282 voter has
been denied the right to register to vote. This evidence, together with the unanimous
vote for the law in both chambers of the legislature, demonstrates Defendants’
commitment to abide by the new law and its “adhere[nce] to a new course of
conduct.” Doe, 747 F.3d at 1323.
In sum, the State of Alabama’s enactment of HB 282 is “a clear indicator of
unambiguous termination” of the allegedly unconstitutional conduct. Id. at 1322.
Accordingly, Defendants are entitled to a rebuttable presumption that “they are
unlikely to resume illegal activities.” Id. Plaintiffs have failed to rebut that
presumption; they have presented no evidence, for example, that the Alabama
Legislature intends that HB 282’s repeal will follow on the heels of the conclusion
of this lawsuit. The absence of this sort of evidence is not surprising, given that the
state legislature passed HB 282 unanimously and that the state’s extensive training
efforts on HB 282 already are underway.
Based on the foregoing, the enactment of HB 282, which clarifies for Plaintiffs
whether their convictions are felonies “involving moral turpitude” under § 177(b),
moots a legal challenge to the vagueness of § 177(b)’s moral turpitude phrase. The
claims’ mootness is a jurisdictional flaw that precludes the court from reaching the
merits of these claims. Because Counts 6, 7, 8, 9, and 10 are moot, Plaintiffs cannot
demonstrate a likelihood of success on the merits.3
Although the court’s decision on mootness obviates the necessity to delve into the merits
of Counts 6–10, it is nonetheless important to clear up a misconception in Plaintiffs’ briefing.
Plaintiffs contend that, because “Alabama’s system of disenfranchisement unquestionably . . . led
to the arbitrary deprivation of fundamental rights, Plaintiffs are likely to succeed” on Count 6–10.
(Pls.’ Mot. Prelim. Inj., at 19 (emphasis added).)
Felons do not have a fundamental right to vote protected by strict scrutiny (absent
allegations that a disenfranchisement classification discriminates on the basis of race or other
suspect criteria). A state’s decision to deprive some convicted felons, but not others, of voting
rights is not subject to a strict scrutiny standard. In Richardson v. Ramirez, 418 U.S. 24 (1974),
the Supreme Court upheld a California statute disenfranchising felons convicted of “infamous
crimes,” holding that, notwithstanding the guarantee of equal protection in Section 1 of the
Fourteenth Amendment, the reduced-representation clause in Section 2 permitted the state to
disenfranchise felons. See id. at 52–55. The Court rejected the petitioners’ argument that the
statute limiting their voting rights was subject to strict scrutiny. It reasoned that states can
disenfranchise felons on the “demonstrably sound proposition that § 1, in dealing with voting
rights as it does, could not have been meant to bar outright a form of disenfranchisement which
was expressly exempted from the less drastic sanction of reduced representation which § 2
imposed for other forms of disenfranchisement.” Id. at 55.
The Third, former Fifth, Sixth, and Ninth Circuits have interpreted Richardson’s analysis
of the interplay between Sections 1 and 2 of the Fourteenth Amendment as immunizing felondisenfranchisement provisions from strict scrutiny under the Equal Protection Clause. In Owens
v. Barnes, 711 F.2d 25 (3d Cir. 1983), which addressed a challenge that Pennsylvania’s law
disenfranchising convicted felons during their incarceration violated equal protection, the Third
Circuit held that Richardson compelled the conclusion that “the right of convicted felons to vote
is not fundamental.” Id. at 27 (citing Richardson, 418 U.S. at 654). It held that “the state cannot
only disenfranchise all convicted felons but it can also distinguish among them provided that such
distinction is rationally related to a legitimate state interest.” Id. Pennsylvania could have
rationally concluded that one of the losses attendant to incarceration should be the loss of
“participation in the democratic process” and that incarcerated and un-incarcerated felons did not
stand on equal footing for purposes of voting rights. Id. at 28. The Sixth Circuit aligned with
Owens, holding that “[i]t is undisputed that a state may constitutionally disenfranchise convicted
felons,” id. (citing Richardson, 418 U.S. at 24), and that “the right to vote is not fundamental,” id.
(citing Owens, 711 F.2d at 27).
The Ninth Circuit emphasized that, as for their equal protection claim, the plaintiffs could
not “complain about their loss of a fundamental right to vote because felon disenfranchisement is
explicitly permitted under the terms of Richardson, 18 U.S. at 55.” Harvey v. Brewer, 605 F.3d
The requested preliminary injunctive relief is unlike the relief sought
in the Complaint.
A preliminary injunction is not appropriate when it is based on relief that “is
not of the same character [as that requested in the complaint], and deals with a matter
lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, 122 F.3d 41, 43
(11th Cir. 1997) (per curiam), amended on reh’g on other grounds by 131 F.3d 950
(11th Cir. 1997). See also Westbank Yellow Pages v. BRI, Inc., No. 96-1128, 1996
WL 255912, at *1 (E.D. La. May 13, 1996) (“A preliminary injunction is not an
appropriate vehicle for trying to obtain relief that is not even sought in the underlying
1067, 1079 (9th Cir. 2010). It explained that it would “not apply strict scrutiny as [it] would if
plaintiffs were complaining about the deprivation of a fundamental right.” Id. Finally, in Shepherd
v. Trevino, 575 F.2d 1110, 1114–15 (5th Cir. 1978), the former Fifth Circuit applied the rationalbasis test, rather than strict scrutiny, to a state statutory scheme that disenfranchised all convicted
felons, but that provided a mechanism for the restoration of voting rights only to those who were
convicted in state court, not federal court.
All that said, the Supreme Court has not immunized all felon disenfranchisement laws from
constitutional review. In Hunter v. Underwood, 421 U.S. 22 (1985), the Court held that the 1901
Alabama Constitution’s provision that disenfranchised individuals convicted of misdemeanors
involving moral turpitude was racially discriminatory. The Court explained: “We are confident
that [Section] 2 [of the Fourteenth Amendment] was not designed to permit the purposeful racial
discrimination attending the enactment and operation of [the state constitutional provision] which
otherwise violates [Section] 1 of the Fourteenth Amendment. Nothing in our opinion in
Richardson v. Ramirez suggests the contrary.” Id. at 233. This is the claim Plaintiffs bring in
Count 1, which will be addressed in a separate opinion in the context of Defendants’ pending
motion to dismiss.
States cannot make arbitrary classifications between felons. See, e.g., Richardson, 418
U.S. at 56 (remanding a claim that “there was such a total lack of uniformity in county election
officials’ enforcement of the challenged state laws as to work a separate denial of equal
protection”); Owen v. Barnes, 711 F.2d 25, 27 (3d Cir. 1983) (noting in dicta that a state “could
not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons”); Shepherd v.
Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978) (“[S]elective disenfranchisement or
reenfranchisement of convicted felons . . . must bear a rational relationship to the achieving of a
legitimate state interest.” (internal citations omitted)).
action.”). The relief requested here is problematic, both for what it seeks and for
whom it is sought.
First, the relief requested in the motion for preliminary injunction is of a
different nature than that pleaded in the Complaint.
The Complaint seeks a
declaratory judgment that § 177(b)’s moral-turpitude standard is unconstitutional
and a permanent injunction enjoining Defendants from enforcing § 177(b), for
example, by preventing Defendants “from denying any voter registration
applications on the basis of felony convictions.” (Compl., at 56.) The motion for
preliminary injunction changes the focus of the relief to HB 282. (Pls.’ Mot. Prelim.
Inj., at 28.) As Plaintiffs admit, the motion for preliminary injunction asserts “new
facts relevant to the passage of HB 282,” (id. at 2), and asks the court to order the
Secretary to provide notice of HB 282 in a specified manner and to automatically
reinstate certain HB 282 voters. These remedies are not the remedies that the
Complaint requests should Plaintiffs succeed in their underlying suit challenging the
constitutionality of § 177(b).4
Moreover, to be clear, the subject matter of both the Complaint and the motion
for preliminary injunction concerns the voting rights of felons. But the Complaint
focuses on felons who, under § 177(b), could not vote, either because the state
Because the relief Plaintiffs seek in their motion for preliminary injunction arises from
the passage of HB 282, which occurred eight months after the commencement of this action, that
relief could not have been encompassed in the Complaint.
explicitly had taken away that right or because of the uncertainty § 177(b) created
as to whether a conviction arose from a felony involving moral turpitude. The
motion for preliminary injunction, on the other hand, turns attention to felons who
now undeniably can vote by virtue of HB 282. Felons whose voting rights have been
“affirmed” in that they now are eligible to register to vote (the subject of the motion
for preliminary injunction) are not felons whose voting rights have been denied
because of a felony conviction (the subject matter of the Complaint).
Second, Plaintiffs request preliminary injunctive relief for a new putative class
of felons. In their brief in support of their motion for preliminary injunction,
Plaintiffs ask for “relief solely for those voters whose rights under Section 177 of
the [Alabama] Constitution have been affirmed by HB 282.” (Pls.’ Mot. Prelim. Inj.,
at 8.) It appears that Plaintiffs have formulated a class of felons—those who
previously were denied voting rights or were unsure of their eligibility to vote under
§ 177(b) (and therefore did not attempt to register), but who now are eligible to vote
and are certain of that eligibility because HB 282 has clarified that their felonies are
not disqualifying. But this class is not a part of the class or nine sub-classes alleged
in the Complaint.
The Complaint’s class and sub-classes share a common factual denominator.
Each includes unregistered voters who have been denied the right to vote because
either their voting applications were denied, their names were purged from the
voting registration rolls, or they cannot be legally certain whether their felony
convictions are felonies involving moral turpitude. As Plaintiffs point out, the
Complaint could not have alleged a purported class of HB 282 voters because HB
282 was non-existent at the initiation of this suit. But this point ignores that adding
classes (and claims) in briefs circumvents the letter and spirit of the orderly
procedures established by the Federal Rules of Civil Procedure for the efficient
administration of a lawsuit. See Gyenis v. Scottsdale Ins. Co., No. 8:12-CV-805-T33AEP, 2013 WL 3013618, at *1 (M.D. Fla. June 14, 2013) (“The Federal Rules of
Civil Procedure are necessary for the orderly and efficient running of this Court and
to ensure that in the interests of justice, everyone is on a level playing field. The
Rules cannot be ignored or overlooked.”); see, e.g., Fed. R. Civ. 15(a), (d)
(governing pre-trial amendments to pleadings and supplemental pleadings); cf. Am.
Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th
Cir. 2013) (“A plaintiff may not amend her complaint through argument in a brief
opposing summary judgment.”).
Plaintiffs have not moved to amend the Complaint or to supplement the
pleadings in order to redefine the claims for relief or the purported class. These
pleading deficiencies, which expand the litigation highway outside the Complaint’s
roadmap, present yet another reason for denying the motion for preliminary
Plaintiffs have a Pennhurst problem.
The Eleventh Amendment prevents a federal court from issuing an injunction
against state officials solely to require them to adhere to state law. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106–07 (1984) (“[I]t is difficult to think
of a greater intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.”). To avoid the Pennhurst
problem, Plaintiffs’ new claims challenging Defendants’ implementation of HB 282
may only proceed in federal court if a provision of federal law creates a right to the
enforcement of HB 282.
Plaintiffs argue that Pennhurst is inapposite because they seek an injunction
against state officials to “remedy the harms caused by their unconstitutional
behavior” under federal law. (Doc. # 59, at 4 (emphasis in original).) Plaintiffs’
attempt to differentiate Pennhurst from this case is not convincing.
Plaintiffs express no dissatisfaction with HB 282 itself; they advance no
argument that HB 282 violates the federal constitution. Rather, Plaintiffs complain
that, since May 25, 2017, Defendants have refused to implement HB 282 in a manner
that would maximize notice to HB 282 voters and give more opportunities to HB
282 voters to vote in the August 15 special election for the U.S. Senate seat in
Alabama.5 (See Pls.’ Mot. Prelim. Inj., at 28, in which Plaintiffs argue that they seek
“full implementation of governing Alabama law”).) What Plaintiffs really appear to
be asking is that this court supervise and direct these state Defendants in how they
should carry out their responsibilities under HB 282, a state law. The true nature of
this “remedy” sounds in state law. Plaintiffs fail to persuade the court, at this
juncture, that Pennhurst is not prohibitive of what they are asking this court to do.
At the very least, Pennhurst presents another reason why Plaintiffs have not
demonstrated a substantial likelihood of success on the merits.
Plaintiffs have not shown a substantial threat of irreparable injury.
Plaintiffs contend that “[e]ligible HB 282 voters plainly face irreparable injury
if the State does not take the[ ] [requested] commonsense steps to implement HB
282, correct recent unlawful voter registration purges and application denials, and
educate voters about HB 282’s eligibility requirements.” (Pls.’ Mot. Prelim. Inj.,
at 26–27.) The argument is illogical on many levels.
“A showing of irreparable injury is the sine qua non of injunctive relief.”
Siegel, 234 F.3d at 1176 (citations omitted). “[T]he asserted irreparable injury must
There is irony in this argument because HB 282 is not effective until August 1, 2017.
However, because HB 282 voters will be able to vote in the August 15, 2017 special primary
election, should they choose to register to vote, Defendants are applying the law now so that these
individuals can meet the July 31 voter registration deadline.
be neither remote nor speculative, but actual and imminent.” Id. (citations omitted).
Here, for the most part, the asserted injuries are not actual.
An actual injury is imperceptible under these facts. An “HB 282 voter,” as
Plaintiffs explain it, is an individual whose felony offense does not appear on the list
of offenses in HB 282 and, thus, who is not disqualified to vote on the basis of a
felony involving moral turpitude. The injuries alleged in Counts 6–10 focus on the
harm to Plaintiffs—the inability to discern whether their felony convictions render
them unable to vote—caused by § 177(b)’s “failure to define or list disqualifying
crimes or crimes of moral turpitude.” (Compl. ¶ 198.) HB 282 has alleviated that
harm. It is no longer problematic for Plaintiffs to determine whether they are eligible
to vote. All a Plaintiff needs to know is the offense resulting in his or her conviction.
If that felony is on the HB 282 list, he or she cannot vote; if it is not on that list, he
or she can vote. Plaintiffs do not deny that HB 282’s “comprehensive list of crimes
that ‘involve moral turpitude’” provides the clarity they sought for § 177(b).6 (Pls.’
Mot. Prelim. Inj., at 7.)
Having acknowledged that the alleged unconstitutional scheme (and thus
necessarily the injury) of which Plaintiffs allege in the Complaint is “in the past”
because of HB 282 (Prel. Inj. H’rg, June 25, 2017), Plaintiffs are left to argue that
At this phase of litigation, the parties have not argued, and the court does not address,
felony convictions outside Alabama law. As alleged in the Complaint, all of the named Plaintiffs
have Alabama felony convictions.
Defendants are not doing enough to get the word out on HB 282 to all felons, who
were previously disenfranchised under Alabama’s old § 177(b) scheme, but who
now are eligible to vote by reason of HB 282.7 They want this court to direct the
Alabama Secretary of State to post notice about HB 282’s voting eligibility standards
on its website and to update state and federal voter registration forms.8 Plaintiffs go
so far as to insist that as to those felons, who in the past two years were denied voter
registration or were struck from the voter registration rolls, Defendants should
automatically reinstate them on the voter registration rolls and provide them with
individualized notice of their automatic registration and right to vote. Having
reconstructed their injuries in their motion for preliminary injunction, Plaintiffs
contend that, post HB 282, they have suffered injuries as a result of Defendants’
failure to take these affirmative steps to provide notice and automatic reinstatement.
But, at bottom, these alleged injuries are misdirected. It is true that, once the
August 15 special primary election passes, “there can be no do-over” for an
Of the named Plaintiffs, Mr. Giles and Ms. Corley fit within this new class of HB 282
voters Plaintiffs have identified.
There is no dispute that the Alabama Secretary of State’s website includes an electronic
state voter registration form and that the Secretary has modified the instructions on the electronic
form by including a hyperlink that lists the HB 282 felonies. (See Ex. B, Decl. of Clay Helms
¶ 13.) Plaintiffs want this court to order the Alabama Secretary of State to attach the list generated
by that hyperlink and attach that list to the PDF of the registration form. This additional step, says
Plaintiffs, would give voters access to the HB 282 crimes list on the downloaded voter registration
unconstitutionally disenfranchised voter. League of Women Voters of N. Carolina
v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014). But the HB 282 voters do not
contend that they have been disenfranchised. To quote Plaintiffs, HB 282 has
“affirmed” these individuals’ right to vote. It would be an entirely different matter
if Defendants were refusing to allow felons to register to vote where their offense of
conviction was not on the HB 282 list. There is no evidence, however, that
Defendants have denied any eligible HB 282 voter’s application to register to vote
or have engaged in any type of prohibitive tactic. Instead, the evidence demonstrates
that the county registrars, at the direction of the Alabama Secretary of State, are
adhering to HB 282 and are permitting individuals to register whom HB 282 does
not disqualify. Plaintiffs, who are eligible HB 282 voters, cannot claim irreparable
harm when they have been granted the right to vote.9
Moreover, as to the different forms of notice Plaintiffs request—a posting on
the Alabama Secretary of State’s website; updated state and federal registration
forms; and individualized notice—Plaintiffs have presented no evidence that either
named Plaintiff suffered any injury based upon a lack of notice. There is no evidence
that Mr. Giles or Ms. Corley do not know that they can go to their respective county
registrars office and register to vote. There is no evidence that imminent injury will
Alabama has in place statutory procedures for disenfranchised felons to request
restoration of voting rights. There is no evidence that the State of Alabama is requiring an eligible
HB 282 voter to apply to have his or her rights restored before he or she can register to vote.
occur to Mr. Giles or Ms. Corley if the requested forms of notice are denied to them.
Moreover, as a matter of general observation on public notice rather than a
finding, HB 282 and Alabama’s felon disenfranchisement laws have received
widespread news coverage at the local, county, state, and national levels through
broadcast news, the internet, and print media. Exhibits, submitted by both Plaintiffs
and Defendants, include compilations of the coverage on these issues and confirm
that there have been no less than thirty-five sources of publicity about Alabama’s
laws on felon disenfranchisement, with most of those sources also reporting on HB
282. Notwithstanding Plaintiffs’ contention that Defendants have failed to provide
adequate notice of HB 282 to the targeted felon pool of eligible HB 282 voters, it is
relevant for the equitable equation that the press has assisted in notifying the public
about HB 282.10
As to the putative class members of eligible HB 282 voters, the following
represents the nature of Plaintiffs’ evidence. There is a declaration from a Greater
Birmingham Ministries employee, who “think[s] many of these [eligible HB 282]
voters may never discover that they have the right to vote” unless they receive
“individual notification” of HB 282. (Shearer Decl. ¶ 10 (Doc. # 66-6).) She
The media coverage is not referenced here for the truth of the matter asserted, but rather
to demonstrate that the news industry is reporting on HB 282 in and outside this state in multiple
media formats. See, e.g., United States v. Michtavi, 155 F. App’x 433, 435 (11th Cir. 2005)
(observing that “the Government did not offer the newspaper articles to prove the truth of the
matter asserted therein—the occurrence of the drug bust—but rather to show that newspaper
articles reporting a New York drug bust existed, and thereby rehabilitate Cohen’s testimony”).
explains that many of the eligible HB 282 voters “are poor and do not have regular
access to computers and the internet,” and, thus, “website notification alone would
be insufficient.” (Id. ¶ 11.) There also are two declarations from individuals who
are eligible HB 282 voters, but who say that they would have been “unaware of the
new law and [their] ability to register to vote” if they had not been contacted by the
Campaign Legal Center.
(Brio Richardson Decl. ¶ 8 (Doc. # 66-9); (Willie
Goldsmith Decl. ¶ 4 (Doc. # 66-10).)
Individualized notice, along with automatic reinstatement on the voter
registration rolls, is what the putative class really seeks because Plaintiffs, in effect,
concede that a posting on the Secretary’s website on HB 282 would not effectively
reach eligible HB 282 voters. These affirmative steps, if Defendants were ordered
to take them, would not give HB 282 voters any more voting rights than they have
today.11 They, like their proposed class representatives, can register to vote in their
respective counties; there is no question as to their eligibility to vote after HB 282.
Plaintiffs contend, though, that Hobson v. Pow, 434 F. Supp. 362 (N.D. Ala.
1977), requires individualized notice and reinstatement to the voter registration rolls
It can be assumed that a prominent posting about HB 282 on the Alabama Secretary of
State’s website would provide the possibility of more opportunities, for an individual who
previously was denied or purged from the voting list, to learn about his or her eligibility to register
to vote under HB 282. It is just a possibility on this record, though, where one declarant claims it
would be inadequate alone, no Plaintiff contends that such a notice would be adequate, and where
the supposition is that most HB 282 voters do not have internet access. This requested relief is too
speculative to warrant preliminary injunctive relief.
of the eligible HB 282 voters. In that case, the district court enjoined the State of
Alabama from disenfranchising men convicted of “wife-beating,” which it found to
be an impermissible gender-based classification, and ordered registrars to “either
publish the notice [of the court’s order] or send notice to each person purged by firstclass mail.” Id. It also ordered some counties to take the extra step of “reinstat[ing]
all voters purged” for wife-beating. Id. at 368. Hobson is distinguishable for at least
First, in Hobson, the plaintiffs secured the right to vote through litigation and
a federal court order. Here, the State changed the law through legislation, which
“everyone is presumed to know” and of which everyone “is bound to take notice.”
See Meacham v. Halley, 103 F.2d 967, 972 (5th Cir. 1939). Second, Hobson found
that it was a violation of equal protection to disqualify a discrete group of male felons
(and not their female counterparts). The relief the court granted was prospective
declaratory and injunctive relief compelling state officials to comply with federal
law. There is no federal constitutional claim by the HB 282 voters; these voters have
secured their right to vote. The relief they request arises under state law and seeks
enforcement of state law. Again, the HB 282 voters’ claims in this lawsuit succumb
to Pennhurst. Because their alleged injuries have no federal law grounding in this
court, they cannot be said to be actual, irreparable, or imminent.
Finally, Plaintiffs’ delay in seeking preliminary injunctive relief undercuts
their argument of irreparable injury. Under Eleventh Circuit law, “[a] delay in
seeking a preliminary injunction of even only a few months—though not necessarily
fatal—militates against a finding of irreparable harm.” Wreal, LLC v. Amazon.com,
Inc., 840 F.3d 1244, 1248 (11th Cir. 2016).
Here, two significant events preceded Plaintiffs’ preliminary injunction
motion. First, Plaintiffs have known since April 18, 2017, when Governor Kay Ivey
signed a proclamation, of the dates for the special election for the United States
Senate seat in Alabama. Yet, Plaintiffs delayed filing a preliminary injunction
motion until nearly two-and-a-half months later on June 30, 2017. Second, Plaintiffs
have been on notice since May 25, 2017, when HB 282 was enacted, of the bill’s
effect on current felons’ eligibility to vote, but they still waited more than a month
to file their preliminary injunction motion. The court is mindful of the efforts
Plaintiffs say they made to reach an agreement with the State without the need for
court intervention. But with a July 31 voter registration deadline for the special
primary election looming and given the multitude of steps that the State must take
to get ready for the election, the delay nevertheless cuts against the premise that
these HB 282 voters needed urgent action to protect their rights.
For all of these reasons, Plaintiffs have not shown a substantial threat of
irreparable injury if the requested relief is not granted.
Plaintiffs have not shown that the threatened injury to them outweighs
the harm an injunction may cause the defendant.
Plaintiffs argue that Defendants will not be harmed by their relief because “[i]t
falls squarely within the Secretary of State’s responsibilities to update the voter
registration forms, [the website], and all other voter education materials, both to
reflect current Alabama law and to provide registrars with ‘uniform guidance’ on the
administration of the Election Code.” (Pls.’ Mot. Prelim. Inj., at 27.) Plaintiffs
contend that the important “principle of election law . . . that, because of the risk of
voter confusion, courts as a general rule should be reluctant to allow last-minute
changes to the status quo” is inapplicable in this case because their motion for a
preliminary injunction is intended to eliminate confusion. Hall v. Merrill, 212 F.
Supp. 3d 1148, 1157 (M.D. Ala. 2016) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006)
Contrary to Plaintiffs’ position, the requested preliminary injunction, if
granted, would alter the status quo. Defendants would have to divert essential
resources needed to prepare for and conduct the election in order to fulfill the many
last-minute tasks that Plaintiffs want them to perform. Plaintiffs are requesting, for
example, the court to order Defendants to send individualized notice to a sub-group
of the approximate 60,000 felons who were removed from voter rolls or denied
registration over an indeterminate time frame. Defendants have demonstrated, at the
very least, that identifying the dates of conviction, the specific felonies committed,
and whether new felonies had been committed would be an arduous, case-by-case
task. With an election looming and only six employees in the Secretary of State’s
Election Division, just the task of preparing the mass mailings to provide
individualized notice to potential HB 282 voters in 67 counties and potentially 3,487
precincts would be massive, and likely impossible. Considering cumulatively
Plaintiffs’ requests for preliminary injunction, completion of those tasks by
Defendants so close to an election would harm Defendants.
Moreover, the harm to Defendants from this court’s meddling with the state’s
election law is not inconsequential, particularly here, where Plaintiffs ask this court
to oversee Defendants’ implementation of state law.
The Eighth Circuit’s
observations on principles of federalism are fitting:
The value of decentralized government is recognized more clearly
today than it has been for decades. This recognition, born of
experience, enables us (and not only us) to see that federal judicial
decrees that bristle with interpretive difficulties and invite protracted
federal judicial supervision of functions that the Constitution assigns to
state and local government are to be reserved for extreme cases of
demonstrated noncompliance with milder measures. They are last
resorts, not first.
Ass'n of Cmty. Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791, 798
(7th Cir. 1995).
Overall, Plaintiffs have not shown that the threatened injury to them
outweighs the harm an injunction may cause Defendants.
Plaintiffs have not demonstrated that a preliminary injunction would
serve the public interest.
Finally, the public interest militates against the granting of the preliminary
injunction motion. The HB 282 voters can have a voice in the election for the U.S.
Senate seat in Alabama; all of them are, by Plaintiffs’ definition of the putative class,
eligible to register to vote and to cast a vote in the special election. The grant of a
preliminary injunction will not give these voters additional voting rights. HB 282
has advanced, therefore, the public interest in protecting voting rights from
erroneous disenfranchisement, and, thus, there is little for the public to gain by
granting Plaintiffs’ preliminary injunctive relief.
At the same time, “there is a strong public interest in smooth and effective
administration of the voting laws that militates against changing the rules in the
hours immediately preceding the election.” Summit Cty. Democratic Cent. & Exec.
Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004). Plaintiffs contend that they
only are seeking enforcement of the new HB 282, not a change in the law, so as to
avoid voter confusion. Even so, the diversion of the state’s resources to fulfilling
Plaintiffs’ requested tasks, when balanced against the multitude of hurdles Plaintiffs
face as to the other elements for obtaining injunctive relief and the steps Defendants
have taken to implement HB 282, weighs heavily against granting preliminary
HB 282 offered long-needed and sought-after clarification to the conundrum
in the Alabama Constitution’s disenfranchising provision, § 177(b), when it defined
a “felony involving moral turpitude.” HB 282 did not exist when Plaintiffs filed this
lawsuit challenging § 177(b) on federal constitutional grounds, but after its
enactment, Plaintiffs filed a motion for preliminary injunction asking this court to
tell Alabama’s state officials how to implement the law.
however, is based on claims that HB 282 has mooted; raises new claims, new
requests for relief, a new putative class of voters who were ineligible to vote prior to
HB 282, but now are eligible; seeks to alter the status quo; and raises serious
concerns about federal instruction into state election law.
The motion for
preliminary injunction is due to be denied for all these reasons and more. Plaintiffs
satisfy none of the elements for granting a preliminary injunction.
Accordingly, based upon careful consideration of Plaintiffs’ motion for
preliminary injunction, Defendants’ opposition, the evidentiary hearing, and the oral
arguments, and the record, it is ORDERED that the motion (Doc. # 56) is DENIED.
DONE this 28th day of July, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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