Greater Birmingham Ministries et al v. State of Alabama et al
Filing
156
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/1/2017. (PSM)
FILED
2017 Mar-01 PM 01:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GREATER BIRMINGHAM
MINISTRIES, et al.,
Plaintiffs,
vs.
STATE OF ALABAMA, et al.,
Defendants.
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2:15-cv-02193-LSC
MEMORANDUM OF OPINION
I.
INTRODUCTION
On December 6, 2016, Plaintiffs, Greater Birmingham Ministries, the
Alabama State Conference of the National Association for the Advancement of
Colored People (“the Alabama NAACP”), Giovana Ambrosio, Debra Silvers,
Elizabeth Ware, and Shameka Harris, filed a Second Amended Complaint against
Defendants, the State of Alabama (“the State”), Robert J. Bentley in his official
capacity as Governor of Alabama (“the Governor”), Steven T. Marshall in his
official capacity as Alabama’s Attorney General (“the Attorney General”), 1 John
Merrill in his official capacity as Alabama’s Secretary of State (“the Secretary of
Steven T. Marshall replaced Luther Strange as Alabama’s Attorney General after this suit
was filed. Plaintiffs substituted Marshall for Strange. (Doc. 152).
1
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State”), and Stan Stabler in his official capacity as the Secretary of the Alabama
Law Enforcement Agency (“the ALEA Secretary”). 2 (Doc. 112.)
Plaintiffs seek to invalidate all or parts of section 17–9–30 of the Alabama
Code (Alabama’s “Photo ID Law”), which requires voters to “provide valid photo
identification to an appropriate election official prior to voting,” subject to some
exceptions. Ala. Code § 17–9–30(a). Plaintiffs claim that the Photo ID Law violates
Section 2 of the Voting Rights Act of 1965 (“VRA”), 52 U.S.C. § 10301,3 because
it was conceived or operates to abridge or deny the right to vote on account of race,
Stan Stabler replaced Spencer Collier as Secretary of ALEA after this suit was filed.
Plaintiffs substituted Stabler for Collier. (Doc. 37.)
2
3
Section 2 provides:
a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) of this title, as provided in subsection
(b).
(b) A violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the political processes leading to nomination or
election in the State or political subdivision are not equally open to participation
by members of a class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice. The extent to which
members of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided, That nothing
in this section establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population.
52 U.S.C. § 10301.
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color, or language minority status (Count One of the Second Amended Complaint),
and the Fourteenth and Fifteenth Amendments to the United States Constitution
pursuant to 42 U.S.C. § 1983, see U.S. Const., amends. XIV & XV, 42 U.S.C. §
1983, because it was purposefully enacted or operates to deny or abridge the right
to vote on account of race or color (Counts Three and Four). Plaintiffs also claim
that § 17–9–30(e) of the law, which states that a prospective in-person voter
without the required photo ID may still cast a regular ballot if two election officials
present at the polling place “positively identify” that person, violates the
prohibition on tests or devices enumerated in Section 201 of the VRA, 52 U.S.C. §
10501 4 (Count Two).
Plaintiffs request a declaratory judgment and an injunction enjoining
enforcement of the Photo ID Law. Additionally, new to their First and Second
Amended Complaints is a request that this Court require the State, the Governor,
4
Section 201 provides:
(a) No citizen shall be denied, because of his failure to comply with any test or
device, the right to vote in any Federal, State, or local election conducted in any
State or political subdivision of a State.
(b) As used in this section, the term “test or device” means any requirement that
a person as a prerequisite for voting or registration for voting (1) demonstrate the
ability to read, write, understand, or interpret any matter, (2) demonstrate any
educational achievement or his knowledge of any particular subject, (3) possess
good moral character, or (4) prove his qualifications by the voucher of registered
voters or members of any other class.
52 U.S.C. § 10501.
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and the ALEA Secretary to return thirty-one partially-closed ALEA offices, where
individuals may purchase driver’s licenses and non-driver ID cards, to full hours of
operation.
This opinion addresses the Motion to Dismiss the Second Amended
Complaint jointly filed by the State, the Governor, the Attorney General, and the
ALEA Secretary. (Doc. 117.) These defendants argue that they are not proper
parties to this case because (1) Plaintiffs lack Article III standing to seek relief
against them, and (2) they have sovereign immunity to Plaintiffs’ claims and do not
fall within the exception to sovereign immunity under Ex Parte Young, 209 U.S. 123
(1908).5 This opinion does not address the Secretary of State’s separately-filed
Motion to Dismiss (doc. 124), in which he concedes that he is a proper defendant
and (in large part) attacks the Second Amended Complaint on its merits. 6
Under the Ex Parte Young exception to the Eleventh Amendment’s grant of sovereign
immunity to States, persons may sue state officials in their official capacities “seeking
prospective equitable relief to end continuing violations of federal law.” Summit Med. Assocs.,
P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999) (emphasis removed).
5
The Secretary of State does argue that the two organizational plaintiffs, the Alabama
NAACP and Greater Birmingham Ministries, and two of the four individual plaintiffs, Shameka
Harris and Elizabeth Ware, lack standing to pursue claims against him. (See Docs. 48 & 124.) He
does not appear to challenge the standing of Plaintiffs Giovana Ambrosio and Debra Silvers.
According to the complaint, both of these plaintiffs are registered Alabama voters who lack the
required photo ID and therefore have allegedly not been able to vote in recent elections, injuries
that appear sufficient to confer their standing to seek an injunction against the Photo ID Law.
This is because “[u]nlike voters who already have photo identification, [Ms. Ambrosio and Ms.
Silvers] are required to obtain photo identification before they can vote, and the imposition of
that burden is an injury sufficient to confer standing.” Common Cause/Ga. v. Billups, 554 F.3d
6
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For the reasons stated below, 7 the joint motion to dismiss will be granted and
all claims against the State, the Governor, the Attorney General, and the ALEA
Secretary will be dismissed.
II.
STANDARD OF REVIEW
Both the standing and sovereign immunity arguments raised by Defendants
are jurisdictional ones, so in that respect this motion is governed by Federal Rule of
Civil Procedure 12(b)(1). See Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d
1229, 1232 (11th Cir. 2008) (standing); Tomberlin v. Clark, 1 F. Supp. 3d 1213, 1222
1340, 1351 (11th Cir. 2009). There is authority for the proposition that if this Court finds that at
least one plaintiff has standing, it can proceed to the merits without separately addressing the
standing of any of the other individual or organizational plaintiffs. See Nat’l Rifle Ass’n of Am.,
Inc. v. McCraw, 719 F.3d 338, 344 n.3 (5th Cir. 2013) (“Only one of the petitioners needs to have
standing to permit us to consider the petition for review.”); Hispanic Interest Coal. Of Ala. v.
Governor of Ala., 691 F.3d 1236, 1244 n.6 (11th Cir. 2012) (“Because one plaintiff with standing is
sufficient to permit our review of the constitutionality of section 28, we proceed to address the
merits without regard to the standing of other individuals or organizations.”). Based on this
guidance and on the fact that this opinion dismisses four of the five defendants in any event, the
Court is of the opinion that the question of Plaintiffs’ standing in general would be better
addressed in a forthcoming opinion ruling on the Secretary of State’s motion to dismiss. The
Court reserves the right to find that any or all of the four individual plaintiffs and the two
organizational plaintiffs lack standing in that opinion. Further references to “Defendants” in this
opinion will therefore not include the Secretary of State.
To the extent they are relevant to the issues addressed herein, the Court has considered
numerous other filings in ruling on this motion. For example, in their Motion to Dismiss the
Second Amended Complaint, Defendants adopt the arguments previously made in their Motion
to Dismiss Plaintiffs’ First Amended Complaint (doc. 47) and their reply in support thereof (doc.
61). Plaintiffs do the same: in their response brief in opposition to the Motion to Dismiss their
Second Amended Complaint (doc. 125), they largely adopt the arguments made in previous
response briefs (see docs. 56 & 57). Defendants have also filed a reply in support of their motion
(doc. 128) and a notice of supplemental authority (doc. 145). Plaintiffs have filed a sur-reply in
opposition (doc. 135–1), and several notices of supplemental authority (docs. 79, 82, & 150).
Additionally, the United States has also been granted leave to file a Statement of Interest. (Doc.
75).
7
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(N.D. Ala. 2014) (sovereign immunity). “[W]hen a defendant properly challenges
subject matter jurisdiction under Rule 12(b)(1) the district court is free to
independently weigh facts, and . . . . ‘satisfy itself as to the existence of its power to
hear the case.’” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). The burden of
proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Thomson v.
Gaskill, 315 U.S. 442, 446 (1942).
Plaintiffs assert that because Defendants have launched a “facial” attack on
their complaint by failing to append affidavits or other evidence to support their
motion, this Court must look only to the sufficiency of the allegations in the
complaint, which are presumed to be true. See Paterson v. Weinberger, 644 F.2d 521,
523 (5th Cir. 1981). 8 The following discussion is based upon the facts alleged in
Plaintiffs’ Second Amended Complaint, presumed to be true. Because the Court
dismisses this action based upon a lack of subject matter jurisdiction, it is not
necessary to address Defendants’ alternative argument that Plaintiffs’ Second
Amended Complaint fails to state a claim under Rule 12(b)(6). Therefore, the
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit,
sitting en banc, adopted as binding precedent all decisions rendered by the Fifth Circuit prior to
the close of business on September 30, 1981.
8
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Court’s discussion is limited to those facts that are relevant to subject matter
jurisdiction.
III.
DISCUSSION
A.
Plaintiffs Lack Article III Standing to Pursue Claims Against the
Governor, the Attorney General, and the ALEA Secretary
“Standing is a doctrine that ‘stems directly from Article III’s “case or
controversy” requirement,’ and thus it ‘implicates our subject matter
jurisdiction.’” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)
(quoting Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir.
2003)). As a “threshold jurisdictional question,” then, standing “must be
addressed prior to and independent of the merits of a party’s claims.” Id. (quoting
Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). To
establish that a case or controversy exists between a plaintiff and each defendant,
the plaintiff must establish three elements as to each defendant: (1) an injury in
fact—that is, an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a
causal connection between the injury and the conduct complained of—in other
words, the injury must be fairly traceable to the challenged action of the
defendants, and not the result of the independent action of some third party not
before the court; and (3) a likelihood, as opposed to a merely speculative chance,
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that the injury will be redressed by a favorable decision of the court. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–62 (1992). Failure to establish any one of
the three standing elements deprives the federal courts of jurisdiction to hear the
suit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
In suits such as this one, where “the plaintiff seeks a declaration of the
unconstitutionality of a state statute and an injunction against its enforcement, a
state officer, in order to be an appropriate defendant, must, at a minimum, have
some connection with enforcement of the provision at issue.” Socialist Workers Party
v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998) (emphasis added). This is so because
only when there is a “causal connection between” an officer’s “responsibilities
and any injury that the plaintiffs might suffer,” does an injunction against that
officer “redress” the plaintiffs’ asserted injuries. Planned Parenthood of Idaho, Inc.
v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004); accord Cressman v. Thompson, 719
F.3d 1139, 1145 (10th Cir. 2013). 9
In this context, Article III standing and Eleventh Amendment immunity involve the same
inquiry. See Cressman, 719 F.3d at 1146 n.8 (“[T]here is a common thread between Article III
standing analysis and Ex Parte Young [sovereign immunity] analysis.”) (citing Wasden, 376 F.3d
at 919; see also Wasden, 376 F.3d at 919 (“Whether [state] officials are, in their official capacities,
proper defendants in [a] suit is really the common denominator of two separate inquiries: first,
whether there is the requisite causal connection between their responsibilities and any injury that
the plaintiffs might suffer, such that relief against the defendants would provide redress [i.e.,
Article III standing]; and second, whether our jurisdiction over the defendants is proper under
the doctrine of Ex parte Young, which requires ‘some connection’ between a named state officer
and enforcement of a challenged state law.”).
9
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These principles mean that Plaintiffs have Article III standing 10 to pursue
their claims against only the Secretary of State but not the other officer defendants.
Plaintiffs seek an injunction prohibiting “Defendants” from “conducting any
elections using the Photo ID Law.” [Doc. 112 ¶ 195.] But the Governor, the
Attorney General, and the ALEA Secretary do not conduct elections. It is the
Secretary of State who is “the chief elections official in the state” and is required
to “provide uniform guidance for election activities.” Ala. Code § 17–1–3(a). The
Photo ID Law makes him, and not the other officer defendants, the officer with
“rule making authority for the implementation of [the Photo ID Law] under the
Alabama Administrative Procedure Act.” Id. § 17–9–30(o). The law further makes
him the officer who must “inform the public regarding the requirements of [the
Photo ID Law] through whatever means deemed necessary.” Id. § 17–9–30(n).
1.
Plaintiffs Lack Article III Standing to Pursue Claims
Against the Governor
Plaintiffs maintain that the Governor is a proper defendant because he “is a
constitutional officer who is vested with the supreme executive power of the
State.” [Doc. 112 ¶ 46.] But courts have allowed a federal claim for an injunction
against a state law to proceed against only the official who is responsible for
enforcing the law, not additional state officers who merely have a responsibility to
10
But see note 7, supra.
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enforce state laws more generally. As the Eleventh Circuit explained in addressing
these issues under the Eleventh Amendment,
A governor’s ‘general executive power’ is not a basis for jurisdiction
in most circumstances. If a governor’s general executive power
provided a sufficient connection to a state law to permit jurisdiction
over him, any state statute could be challenged simply by naming the
governor as a defendant. Where the enforcement of a statute is the
responsibility of parties other than the governor (the cabinet in this
case), the governor’s general executive power is insufficient to confer
jurisdiction.
Women’s Emergency Network v. Bush, 323 F.3d 937, 949–50 (11th Cir. 2003)
(citations omitted). 11 Accord Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998)
(“[A] generalized duty to enforce state law or general supervisory power over the
persons responsible for enforcing the challenged provision will not subject an
official to suit.”) (internal quotation marks omitted); Shell Oil Co. v. Noel, 608 F.2d
208, 211 (1st Cir. 1979) (“The mere fact that a governor is under a general duty to
The Court reiterates that although this governing Eleventh Circuit authority on the
proper defendants to a constitutional challenge to a state law was framed in terms of sovereign
immunity, other courts have explained that the standing and sovereign immunity analyses
overlap. See Wasden, 376 F.3d at 919; Cressman, 719 F.3d at 1145. Plaintiffs have offered no
reason why this should not be the case. In any event, the Eleventh Circuit has also recognized,
when discussing Article III justiciability doctrines, that “Under United States Supreme Court
precedent, when a plaintiff challenges the constitutionality of a rule of law, it is the state official
designated to enforce that rule who is the proper defendant, even when that party has made no
attempt to enforce the rule.” Am. Civil Liberties Union v. The Fla. Bar, 999 F.2d 1486, 1490 (11th
Cir. 1993) (emphasis added) (citing Diamond v. Charles, 476 U.S. 54, 64 (1986) (“The conflict
between state officials empowered to enforce a law and private parties subject to prosecution
under that law is a classic ‘case’ or ‘controversy’ within the meaning of Art. III.”)).
11
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enforce state laws does not make him a proper defendant in every action attacking
the constitutionality of a state statute.”).
There are of course instances where, due to the nature of a state statute and
a governor’s connection with that statute, a governor is a proper defendant. For
example, in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), the plaintiffs, on
behalf of a class of indigent persons charged with criminal offenses in Georgia and
attorneys representing those defendants, sued Georgia’s Governor and state
judges, requesting that they meet minimum constitutional standards in the
provision of indigent criminal defense services. Id. at 1013. The Eleventh Circuit
held that the Governor was a proper defendant because the Georgia Constitution
and statutes provide that he is responsible for law enforcement, has the residual
power to commence criminal prosecutions, and has the final authority to direct the
Attorney General to “institute and prosecute” on behalf of the state. Id. at 1016.
Thus, according to the court, the Governor was an appropriate party where he was
sufficiently responsible for the administration of the allegedly deficient indigent
defense services. Id.
However, the Eleventh Circuit in Women’s Emergency Network held that
Luckey did not mandate that Florida’s Governor was a proper defendant in that
case, where the plaintiffs challenged a Florida statute authorizing specialty license
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plates bearing the message “Choose Life” and the State’s disbursal of funds
generated from the sale of the license plates to organizations that provide adoption
services. 323 F.3d at 940. The court distinguished Luckey, stating, “Governor
Bush’s only connection with Fla. Stat. § 320.08058 is that he, along with six
members of the cabinet, are responsible for the Department of Highway Safety and
Motor Vehicles. Governor Bush’s shared authority over the Department is simply
too attenuated to establish that he is ‘responsible for’ the distribution of funds to
adoption agencies.” Id. at 949.
This case is more like Women’s Emergency Network than Luckey. Alabama law
provides that the Secretary of State is “the chief elections official in the state,” Ala.
Code § 17–1–3(a), and has various responsibilities specific to the Photo ID Law.
Nowhere does the Photo ID Law assign the Governor the power to enforce it. It
thus appears undeniable that that the Governor is not the official who is
“responsible for the challenged action.” Plaintiffs argue that the Governor signed
the Photo ID Law into effect, which is true, but Plaintiffs do not and could not
establish that merely signing legislation is a sufficient basis for standing under these
circumstances. Indeed, the Eleventh Circuit rejected the same argument in
Women’s Emergency Network, 323 F.3d at 950 (“Appellants further contend
Governor Bush is a proper party because he signed Fla. Stat. § 320.08058 into law.
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This argument, too, must fail. Under the doctrine of absolute legislative immunity,
a governor cannot be sued for signing a bill into law.”).
In an apparent attempt to align this case with Luckey, Plaintiffs also point to a
separate provision of the Alabama Code making it a misdemeanor for a polling
official to “knowingly fail[] to require proper identification to verify the name of
the prospective voter,” see Ala. Code § 17–17–28, arguing that the Governor could
theoretically play a role in the decision to prosecute, or not prosecute, election
officials who, according to Plaintiffs’ amended complaint, waived the Photo ID
Law for absentee voters in two “overwhelmingly white counties” during the June
3, 2014, primary. [See doc. 112 ¶ 153.] But Plaintiffs have not challenged § 17–17–28
nor sought an injunction against it, presumably because § 17–17–28 does not
criminalize any actions Plaintiffs are proposing to take, but rather the actions of poll
workers. Additionally, because § 17–17–28 also explicitly exempts those poll
workers from criminal responsibility for any actions they take in “good faith,” even
if this Court were to enjoin the Secretary of State from enforcing the Photo ID
Law, a poll worker who complied with the injunction would certainly be acting in
good faith and would thus be insulated from arrest and prosecution under § 17–17–
28. Plaintiffs’ attempt to use this separate criminal provision to establish their
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standing to sue the Governor for an injunction against the Photo ID Law is not
persuasive.
More than anything else, Plaintiffs emphasize that they have suffered an
injury traceable to and redressable by the Governor through their new request that
the Court “issue an order requiring that Defendants State, Governor, and
Secretary of ALEA to return the 31 partially-closed ALEA offices to their full hours
of operation prior to October 2015.” [Doc. 112 ¶ 197.] ALEA is responsible for
issuing driver’s licenses and non-driver ID cards. See Ala. Code § 32–6–4.
Plaintiffs’ complaint alleges that in response to budget cuts required by the
Alabama Legislature, the Governor and the ALEA Secretary significantly reduced
the hours of operation in ALEA offices in twenty-seven largely poor, rural counties.
[Doc. 112 ¶ 119.] Then on September 30, 2015, the Governor and the ALEA
Secretary announced that ALEA would permanently close thirty-one part-time
ALEA offices issuing driver’s licenses and non-driver ID cards, including offices in
eight of eleven contiguous counties in the so called “black belt”—a string of
counties where nearly half of the 130,000 eligible voters are African American and
where the African American poverty rate is 41 percent. [Id. ¶ 120.] Plaintiffs allege
that in response to public outcry over the proposed ALEA closures, on October 16,
2015, the Governor announced that rather than close completely, these thirty-one
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locations, which were previously open one to two days per week, would remain
open one day per month. [Id. ¶ 122.]
For reasons stated in the next section, Plaintiffs’ request for an order to
return ALEA offices to full hours of operation does not confer standing on
Plaintiffs to sue any of the defendants in this case. However, suffice it to say that
even assuming for the moment that Plaintiffs have alleged facts otherwise
establishing causation and redressability as to their request for a change in ALEA
office hours, Plaintiffs have not shown that they would have standing to seek an
order regarding ALEA office hours from the Governor. Again, when a particular
state official has the responsibility of administering a state department, that
particular state official, not the Governor, is the proper party to a suit seeking to
block laws administered by that department. See Women’s Emergency Network v.
Bush, 214 F. Supp. 2d 1316, 1318 (S.D. Fla. 2002) (holding that the Eleventh
Amendment barred claims against the Florida Governor because the agency’s
executive director had overall duty and responsibility for administering the law at
issue), aff’d, 323 F.3d 937. The statute that created ALEA provides that the ALEA
Secretary serves “as the appointing authority and executive head of the agency.”
Ala. Code § 41–27–2(a). So even if an injunction regarding ALEA office hours were
a plausible form of relief against some state official on the theories set forth in
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Plaintiffs’ complaint, which it is not for the reasons set forth immediately below, an
injunction against the ALEA Secretary would be sufficient to supply Plaintiffs the
relief they seek, not an overlapping injunction against the Governor.
2.
Plaintiffs Lack Article III Standing to Pursue Claims Against the
ALEA Secretary
ALEA is the executive-branch agency that “coordinate[s] public safety in
this state.” Ala. Code § 41–27–1. The ALEA Secretary does not play any direct
role in voting or elections, and the words “election” and “voter” appear nowhere
in the statute that created ALEA. See id. § 41–27–1 et seq. The principal relief
sought by Plaintiffs is an injunction blocking election officials from requiring photo
ID from voters, and the ALEA Secretary has nothing to do with that process.
Additionally, Plaintiffs cannot use the Second Amended Complaint’s
request for an extension of ALEA office hours to confer standing for their claims
against the ALEA Secretary for several reasons. First, Plaintiffs have not alleged a
cause of action challenging the decision to limit the ALEA’s office hours as
unconstitutional or violative of the VRA. 12 They are claiming that the Photo ID Law
Plaintiffs likely could not challenge the driver’s license office hours under the VRA
because, unlike the hours of a registrar’s office, the general hours of a satellite driver’s license
office—which predominately serves transportation-related functions having nothing to do with
elections—is not a condition of voting. Cf. Presley v. Etowah Cnty. Comm’n, 502 U.S. 491, 502–03
(1992) (holding that Section 5 of the VRA applied to state laws relating only to “voting” or
“election law”). The cases Plaintiffs rely upon for the proposition that ordering ALEA to extend
its hours of operation would be an appropriate Section 2 remedy are distinguishable because all
12
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is illegal, and if they prevail, the proper remedy will be to enjoin enforcement of the
Photo ID requirement, not revise the ALEA’s office hours. This is because
injunctive relief should typically “be no broader than necessary to remedy” the
violation of law. Newman v. State of Ala., 683 F.2d 1312, 1319 (11th Cir. 1982). Here,
taking Plaintiffs’ allegations as true, the ALEA office hours are among many
circumstances that allegedly make it more burdensome for African-American and
Latino individuals to exercise their right to vote in Alabama. For example, Plaintiffs
discuss the poverty rate among these groups (doc. 112 ¶ 54), the alleged disparity in
vehicle ownership between white individuals and African-American and Latino
individuals (id. ¶ 55–56), the lack of availability of public transportation (id.), and
the alleged disparity in broadband Internet access between white individuals and
African-American individuals (id. ¶ 59). But, as aptly stated by Defendants, “[I]f
the Court finds that the Photo ID Law is illegal, it cannot remedy that by changing
the background facts—by ordering the State to redistribute wealth, or to distribute
address changes to hours at registrar’s offices or polling places. In Ohio State Conference of the
NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), the plaintiffs challenged a law and related
directive from the Ohio Secretary of State changing the hours of early in-person voting at polling
places. In Mississippi State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991),
the plaintiffs challenged as violative of Section 2 of the VRA Mississippi’s requirement that
voters register twice, once with the county registrar for federal, state, and county elections, and
again with the municipal clerk to vote in municipal elections, as well as its elimination of satellite
voter registration locations. In United States v. Palmer, 356 F.2d 951, 952 (5th Cir. 1966), the
United States asked for an injunction requiring registrars to maintain hours as required by
Louisiana law.
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free vehicles, or to revamp its public transportation system, or install broadband in
every household, or, critically for present purposes, ordering ALEA to extend its
office hours.” [Doc. 47 at 10–11.] The proper remedy, instead, would be an
injunction against enforcement of the Photo ID Law.
Plaintiffs respond by insisting that they are mounting an “as-applied”
challenge to the Photo ID Law, rather than a “facial” one, so that if the Court finds
that the Photo ID Law only violates Section 2 of the VRA in part because of the
burden imposed on African-American and Latino voters by the closing of the
ALEA offices, but finds that the law is not unconstitutional, then the Court could
craft a remedial scheme that includes ordering the reopening of the ALEA satellite
offices. However, the question of whether the Photo ID Law violates the
Constitution (either as-applied to Plaintiffs or facially) is distinct from the question
of whether it violates Section 2 of the VRA. In any event, Plaintiffs have offered no
authority for the proposition that when a party convinces a court that a state law
violates the Constitution as applied to his particular circumstances, the proper
remedy is for the Court to remedy his injury by changing those circumstances.
Rather, when faced with a meritorious as-applied challenge, the proper remedy is
for a court to issue an injunction against the unconstitutional application of the law to
the plaintiffs. See, e.g., Ayotte v. Planned Parenthood of N. New England, 546 U.S.
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320, 328–29 (2006). Indeed, Plaintiffs’ request that the Court overturn an agency
decision that it has not even challenged as unconstitutional seems antithetical to
remedying a constitutional injury through a narrower, “as-applied” solution. See
id. (“Generally speaking, when confronting a constitutional flaw in a statute, we try
to limit the solution to the problem. We prefer, for example, to enjoin only the
unconstitutional applications of a statute while leaving other applications in
force.”) (emphasis added); United States v. Nat. Treas. Emp. Union, 513 U.S. 454,
478 (1995) (“[W]e neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants.”).
However, even assuming for the purpose of argument that Plaintiffs could
establish that reopening satellite driver’s license offices is an appropriate remedy
under Section 2 of the VRA despite the fact that they have not even challenged that
decision, Plaintiffs have still failed to establish the causation and redressability
elements of the standing inquiry relative to their request for a change in ALEA
office hours. First, Plaintiffs have not alleged facts showing that the current ALEA
office hours have caused them harm. Alabama’s Photo ID Law allows a voter to use
multiple forms of photo ID,13 including a free voter photo ID card issued by the
The forms of acceptable photo ID include (1) a valid Alabama driver’s license or nondriver ID card issued by the appropriate state or county department, (2) a valid Alabama photo
voter ID card, (3) a valid United States passport, (4) a valid employee ID card with a photograph
issued by a federal, state, or local government entity, (5) a valid student or employee photo ID
13
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Secretary of State through Board of Registrars’ offices. See Ala. Code § 17–9–30(f).
As Plaintiffs concede, there is a registrar’s office located inside the county
courthouses in every county, and they are generally open “during regular weekday
business hours.” [Doc. 112 ¶¶ 134–35.] The operating hours of the ALEA offices—
which simply govern when a party may obtain a new driver’s license or non-driver
ID—have no impact on a voter’s ability to obtain the free voter ID card from the
county registrar. Plaintiffs respond that these registrar-issued voter photo ID cards
are also burdensome to obtain. But even if that were true, Plaintiffs have not alleged
that it is more burdensome to obtain a registrar-issued voter photo ID card than it is
to obtain an ALEA-issued driver’s license or non-driver ID. To the contrary, they
allege that it costs over $40 for an ALEA-issued driver’s license and additional fees
for the underlying documentation needed to obtain one, 14 while there is no fee for a
registrar-issued voter photo ID card. Plaintiffs acknowledge that the Secretary of
card issued by a private or public college, university, or postgraduate technical school in
Alabama, (6) a valid United States military photo ID card, and (7) a valid tribal ID card with a
photograph. See Ala. Code § 17–9–30(a).
To obtain a driver’s license, a voting-age applicant must: (1) pay $36.25 to purchase the
license, (2) pay a $5 test fee and pass the road test, and (3) come with an already-licensed driver,
proof of car insurance, and a vehicle that will pass inspection. In addition to paying a fee for the
driver’s license, a voter must must include with his or her application one or more “primary”
documents, which include: (a) a certified U.S. birth certificate [$15 ] (b) a U.S. passport; (c) an
Alabama identification card [$36.25]; (d) a certificate of naturalization [$345]; a certificate of
citizenship [$600]; (e) a U.S. certificate of birth abroad [$50]; (f) a resident alien card [$450 for a
renewal or replacement card]; or (g) a valid foreign passport with a valid U.S. immigration
document. [Doc. 112 ¶¶ 116–17.]
14
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State will waive the fee to obtain the underlying documentation, such as a Birth
Certificate, although they allege that “this appears to be an infrequently-used
option.” [Id. ¶ 130.] 15 Moreover, while driver’s licenses and non-driver ID cards
are initially issued only by ALEA, renewals and duplicates can be secured in each
county at the offices of the judge of probate or a license or revenue commissioner.
See Ala. Code § 32–6–4(a)(2). Plaintiffs have made no persuasive allegation that the
ALEA office hours are a meaningful factor in this case.
Nor have Plaintiffs alleged plausible facts showing that an order changing the
hours of operation of ALEA offices would redress the injuries they claim the Photo
ID Law itself causes. Plaintiffs allege that the reduced hours “exacerbate[] the
difficulties faced by African-American and Latino residents of these counties in
obtaining the required photo IDs.” [Doc. 112 ¶ 122]. However, they do not allege
that the Photo ID Law would be constitutional if the ALEA offices were open
longer. Rather, they allege that, regardless of how short or long ALEA’s office
In order to obtain a photo voter ID card, the voter must present either (1) a photo identity
document, which includes (i) a high school student ID card; (ii) a student or employee ID card
from a private university outside Alabama; (iii) a private employee ID card; (iv) a nursing home
or hospital ID card; and (v) a wholesale club or other membership card, or (2) a non-photo
identity document showing his or her full legal name and date of birth, which includes (i) Birth
Certificate; (ii) Hospital or nursing home record; (iii) Marriage Record; (iv) State or Federal
Census Record; (v) Military Record; (vi) Medicare or Medicaid document; (vii) Social Security
Administration Document; (viii) Certificate of Citizenship; and (ix) Official school record or
transcript. One must also provide documentation showing his or her date of birth, that he or she
is registered to vote, and his or her name and address as they appear in the voter registration
records. Ala. Code § 17-9-30(j). A copy of a birth certificate or marriage license normally costs
$15.00 each. [Doc. 112 ¶¶ 129–30 & n.3, 4.]
15
Page 21 of 36
hours, the Photo ID Law “results in Alabama’s African-American and Latino (or
Hispanic) voters having less opportunity than other members of the electorate to
participate effectively in the political process and to elect candidates of their
choice.” [Id. ¶ 2.] That is, under Plaintiffs’ view, if this Court orders extended
hours for driver’s license offices, the Photo ID Law would still cause injury to
Plaintiffs. “Relief that does not remedy the injury suffered cannot bootstrap a
plaintiff into federal court; that is the very essence of the redressability
requirement.” Steel Co., 523 U.S. at 107.
In sum, it is not just a matter of the wrong defendant when it comes to
Plaintiffs’ request that this Court order ALEA offices to return to normal hours of
operation. 16 In any event, because Plaintiffs’ request for an order restoring ALEA
driver’s license office hours is not plausible, Plaintiffs have not established that an
Article III case or controversy exists between themselves and the ALEA Secretary.
The Court notes that ALEA’s office hours in these counties will soon be increasing
substantially, if they have not already. The United States Department of Transportation
(“DOT”) initiated an investigation into the closures and “concluded that African Americans
residing in the Black Belt region of Alabama are disproportionately underserved by ALEA’s
driver licensing services, causing a disparate and adverse impact on the basis of race.” [See Doc.
128 at 2 n.* (quoting Memorandum of Agreement Between the U.S. Department of
Transportation and the Alabama Law Enforcement Agency at 1 (Dec. 22, 2016)).] DOT and
ALEA agreed to a Memorandum of Agreement, which includes increased office hours in the
Black Belt within 90 days. [See Doc. 128–1]. The DOT’s conclusion was that ALEA office
closures violated Title VI of the Civil Rights Act of 1964 because they limited AfricanAmericans’ access to driver’s licensing offices and thus transportation. [Doc. 128–1 at 4.] No
finding was made regarding whether the closures violate the VRA.
16
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3.
Plaintiffs Lack Article III Standing to Pursue Claims
Against the Attorney General
Plaintiffs likewise have failed to plead facts establishing standing as to the
Attorney General. As they did with respect to the Governor, Plaintiffs largely rely
on the Attorney General’s generalized law-enforcement powers, alleging that he is
a proper defendant because he “is the State’s chief legal representative.” [Doc. 112
¶ 47.] However, the Supreme Court has held that a state’s attorney general cannot
be made a party to actions of this sort merely because he “might represent the
State in litigation involving the enforcement of its statutes.” Fitts v. McGhee, 172
U.S. 516, 530 (1899) (Eleventh Amendment case). All the considerations
explaining why the Governor’s general law-enforcement powers are insufficient for
these purposes apply equally to the Attorney General. Plaintiffs rely upon Georgia
Latino Alliance for Human Rights v. Governor of Georgia, where the court found that
its earlier decision in Luckey foreclosed the Georgia Governor and Attorney
General’s argument that they were not proper defendants to the suit. 691 F.3d
1250, 1260–61 & n.5 (11th Cir. 2012). This conclusion is not surprising given that
the Georgia Latino Alliance court considered a challenge to a state law that codified
various crimes for interactions with illegal aliens. Id. at 1256. Simply put, the line of
cases holding that a governor and attorney general (by virtue of their criminal law
enforcement responsibilities) are proper defendants in challenges to laws defining
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crimes or the administration of criminal justice do not overrule the separate holding
that when another state official has express responsibility for enforcing a civil
statute, neither a governor’s general executive authority nor an attorney general’s
general law enforcement authority will suffice to confer standing upon them. See
Women’s Emergency Network, 323 F.3d at 949–50; see also Shell Oil Co., 608 F.2d at
211 (“Nor is the fact that an attorney general has a duty to prosecute all actions in
which the state is interested enough to make him a proper defendant in every such
action.”).
The other mentions of the Attorney General in the Second Amended
Complaint make no colorable connection between him and Plaintiffs’ requested
injunction against the Photo ID Law. The complaint does allege that the Attorney
General “was previously charged with seeking Section 5 preclearance for Alabama
voting laws.” [Doc. 112 ¶ 47.] 17 But Plaintiffs do not seek, and could not plausibly
seek, an order compelling the Attorney General to submit the Photo ID Law for
The complaint discusses the fact that in June 2011, when the Alabama Legislature
approved, and the Governor signed, the Photo ID Law, Alabama was one of nine completely
“covered state[s]” under Section 5 of the VRA, 52 U.S.C. § 10304, which meant that Alabama
could not enforce any new voting law that might burden voters of color without first obtaining
preclearance from the U.S. Department of Justice or a federal three-judge court. Alabama did not
seek preclearance for the Photo ID Law. On June 25, 2013, the Supreme Court decided Shelby
County, Ala. v. Holder, 133 S. Ct. 2612 (2013), which ruled unconstitutional the preclearance
provision in the VRA. The next day, the Attorney General and the Secretary of State announced
that implementation of the Photo ID Law would begin immediately, so that it could be enforced
in Alabama’s 2014 election cycle.
17
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preclearance now that the Supreme Court has nullified that requirement. Likewise,
Plaintiffs mention that the Attorney General announced that the Photo ID Law
“would be implemented and enforced immediately” in the wake of the Supreme
Court’s decision in Shelby County. [Id. ¶ 79]. But Plaintiffs are not seeking to enjoin
the Attorney General from informing the public about his understanding of what
various Supreme Court decisions mean, and indeed they could not plausibly do so.
The complaint also discusses a separate bill from the Alabama House of
Representatives dealing with various aspects of immigration and voter registration
that Plaintiffs allege the Attorney General withdrew from the United States
Department of Justice preclearance “in anticipation of the Supreme Court’s
decision in Shelby County.” [Id. ¶ 86.] However, any causal link between failure to
submit for preclearance a bill not even challenged by Plaintiffs in this lawsuit and
their alleged injuries is too speculative to support standing against the Attorney
General.
Plaintiffs also observe that the Attorney General issued an advisory opinion
interpreting the Photo ID Law’s use of the word “valid” in describing various
forms of photo ID. [Id. ¶¶ 95, 123.] However, Plaintiffs are not seeking an order
requiring the Attorney General to withdraw or revise that advisory opinion.
Advisory opinions simply offer the Attorney General’s interpretation of Alabama
Page 25 of 36
law; they do not enforce or implement the law; and while they are persuasive,
advisory opinions are not binding. See Ala.-Tenn. Nat. Gas Co. v. S. Nat. Gas Co.,
694 So. 2d 1344, 1346 (Ala. 1997).
Plaintiffs additionally allege that in August 2014, the Attorney General
advised the Secretary of State that he was under no obligation to make a document
available to Plaintiff Alabama NAACP that would purportedly show how many
individuals in Alabama were registered to vote yet did not have an ALEA-issued
photo ID. [Doc. 112 ¶ 114.] Yet Plaintiffs do not request this document in their
complaint, nor do they indicate that receiving this document would obviate their
request for an injunction of the Photo ID Law.
Finally, Plaintiffs make no argument that the Attorney General is connected
in any way to the ALEA office closures, as they do with the Governor and the
ALEA Secretary. In sum, peppering the complaint with mentions of things the
Attorney General has done that may be tangentially related to the Photo ID Law
does not fix the flaw in Plaintiffs’ standing argument, which is that the Photo ID
Law will be in force regardless of any action this Court could order the Attorney
General (or the Governor, or the ALEA Secretary) to undertake. See Doe v. Pryor,
344 F.3d 1282, 1286 (11th Cir. 2003) (“Nothing the Attorney General could be
Page 26 of 36
ordered to do or refrain from doing would redress the injuries [Plaintiffs] allege[
].”).
B.
The Eleventh Amendment Bars Plaintiffs’ Claims Against the
State of Alabama
The Eleventh Amendment grants States and state officials sued in their
official capacities immunity from suits brought by private citizens. See U.S. Const.
amend. XI; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).
States can waive sovereign immunity on their own, which Alabama has not done.
See College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1999); Ala. Const. art. I, § 14 (‘[T]he State of Alabama shall never be
made a defendant in any court of law or equity.”). Furthermore, Congress can
abrogate sovereign immunity in certain situations. “In order to determine whether
Congress has abrogated the States’ sovereign immunity, we ask two questions: first
whether Congress has ‘unequivocally expresse[d] its intent to abrogate the
immunity,’ . . . and second, whether Congress has acted pursuant to a valid
exercise of power.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (quoting
Green v. Mansour, 474 U.S. 64, 68 (1985)) (internal citations omitted).
“Congress’ intent to abrogate the States’ immunity from suit must be
obvious from a ‘clear legislative statement.’” Id. (quoting Blatchford v. Native
Village of Noatak & Circle Village, 501 U.S. 775, 786 (1991)). “A general
Page 27 of 36
authorization for suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment. When Congress chooses
to subject the States to federal jurisdiction, it must do so specifically.” Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985), superseded by statute, 42 U.S.C. §
2000d–7; see Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (“[E]vidence of
congressional intent must be both unequivocal and textual.”). In cases where the
Supreme Court has found that Congress has unequivocally intended to abrogate
the States’ sovereign immunity, the text of the statutes has been especially clear.
For example, in the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., and in the Patent and Plant Variety Protection Remedy Clarification
Act (“Patent Remedy Act”), 35 U.S.C. §§ 271(h), 296(a), Congress specifically
stated that States were not immune from suit. See Tennessee v. Lane, 541 U.S. 509,
518 (2004) (quoting § 12202 of the ADA as stating, “A State shall not be immune
under the eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of this
chapter.”); Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. at 635 (quoting §
296(a) of the Patent Remedy Act as stating, “Any State . . . shall not be immune,
under the eleventh amendment of the Constitution of the United States or under
Page 28 of 36
any other doctrine of sovereign immunity, from suit in Federal court . . . for
infringement of a patent.”).
Additionally, in the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., and in the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq., Congress specifically authorized private actions against public
agencies and defined “public agencies” as States or subdivisions of States. See
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73–74 (2000) (“That provision [of the
ADEA] authorizes employees to maintain actions for backpay ‘against any
employer (including a public agency) in any Federal or State court of competent
jurisdiction . . .’ Any doubt concerning the identity of the ‘public agency’
defendant named in § 216(b) is dispelled by looking to § 203(x), which defines the
term to include ‘the government of a State or political subdivision thereof,’ and
‘any agency of . . . a State, or a political subdivision of a State.’”); Nev. Dep’t of
Human Res. v. Hibbs, 538 U.S. 721, 726 (2003) (“The [FMLA] enables employees
to seek damages ‘against any employer (including a public agency) in any federal or
State court of competent jurisdiction’ and Congress has defined ‘public agency’ to
include both ‘the government of a State or political subdivision thereof’ and ‘any
agency of . . . a State, or a political subdivision of a State.’”) (citations omitted).
Page 29 of 36
Here, Plaintiffs have amended their complaint to exclude the State from
Counts Three and Four, which arise under 42 U.S.C. § 1983. Indeed, the State
cannot be a defendant to the section 1983 claims because, as the Eleventh Circuit
has held, “Congress has not abrogated eleventh amendment immunity in section
1983 cases.” Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990).
The State is equally immune from the remaining two counts arising under
Sections 2 and 201 of the VRA. Neither section expressly (or even impliedly)
abrogates the sovereign immunity of States. While there are portions of the VRA
that create express rights of action specifically against States, those provisions
address actions when the United States itself, not an individual, is the plaintiff. For
example, for alleged violations of Section 2, the VRA authorizes the Attorney
General to “institute for the United States, or in the name of the United States, an
action for preventative relief,” including “an order directed to the State and State
or local election officials.” 52 U.S.C. § 10308(d). And the pertinent part of Section
201 of the VRA states:
Whenever the Attorney General has reason to believe that a State or
political subdivision (a) has enacted or is seeking to administer any test
or device as a prerequisite to voting in violation of the prohibition
contained in section 10501 of this title . . . he may institute for the
United States, or in the name of the United States, an action in a
district court of the United States . . . .
Page 30 of 36
Id. § 10504. The State has no sovereign immunity to the types of suits discussed in
these provisions because it has no sovereign immunity to any suit brought by the
United States. See United States v. Mississippi, 380 U.S. 128, 140 (1965).
Plaintiffs emphasize that because it is now established that private
individuals may bring suit to enforce Section 2 of the VRA, then a state can be a
proper defendant to such a suit. Plaintiffs are correct that while Congress did not
establish express rights of action for private plaintiffs under Section 2 of the VRA
when the VRA was enacted in 1965, courts held, and Congress later agreed, that
their private enforcement comes through implied rights of action. See Morse v.
Republican Party of Va., 517 U.S. 186, 232 (1996) (opinion of Stevens, J., joined by
Ginsburg, J., announcing judgment of Court) (“Although § 2, like § 5, provides no
right to sue on its face, ‘the existence of the private right of action under Section 2 .
. . has been clearly intended by Congress since 1965.’”) (quoting S. Rep. No. 97
417, at 30)). However, because Section 2 of the VRA’s actual text is silent as to
whether it creates a private right of action, it is also necessarily silent as to the
parameters of such a right, including whether sovereign immunity is abrogated.
And when the text is ambiguous as to abrogation, abrogation will not be found. See
Seminole Tribe, 517 U.S. at 55 (requiring a “clear legislative statement”); accord
Williams v. Poarch Band of Creek Indians, 839 F.3d 1312, 1321 (11th Cir. 2016)
Page 31 of 36
(“‘To be effective the expression of Congressional intent [to abrogate sovereign
immunity of Indian tribes] must be a clarion call of clarity. Ambiguity is the enemy
of abrogation.’”) (quoting Freemanville Water Sys. v. Poarch Band of Creek Indians,
563 F.3d 1205, 1206 (11th Cir. 2009)); accord Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 95 (1990) (holding, in the context of federal sovereign immunity, “A
waiver of sovereign immunity ‘cannot be implied but must be unequivocally
expressed.’”) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)); Dorsey
v. U.S. Dep’t of Labor, 41 F.3d 1551, 1554–55 (D.C.C. 1994) (holding that “[e]ven if
there is an implied right of action for damages under Title VI,” a plaintiff cannot
proceed against the federal government under that implied right of action because
“[a] waiver of sovereign immunity cannot be implied” (internal quotation marks
omitted)). 18
The Court acknowledges that the Sixth Circuit in Mixon v. State of Ohio held
that Section 2 of the VRA abrogates the Eleventh Amendment. 193 F.3d 389, 398
It is for this reason that the Court is not persuaded by Plaintiffs’ argument that the
Supreme Court’s discussion in Morse controls. The Court stated that Congress’s 1975
Amendments to Section 3 of the VRA to create an express private right of action “provide[d] the
same remedies to private parties as had formerly been available to the [U.S.] Attorney General
alone.” 517 U.S. at 233. Although the implication is that after the 1975 amendments, individuals
may name States as defendants in suing under Section 3, it is just that: an implication, and not
even one regarding Section 2. Regardless of what the Court said in Morse about Section 3, the
bottom line is that while the VRA provides for private plaintiff suits, either expressly or impliedly
depending on the section, the VRA still does not provide that a nonconsenting state can be the
defendant to those suits.
18
Page 32 of 36
(6th Cir. 1999). However, that decision did not analyze the language of the VRA in
depth. Instead, the court concluded that because Section 2 “specifically prohibits
‘any State or political subdivision’ from discriminating against voters on the basis
of race,” it necessarily abrogated state sovereign immunity. Id. (quoting 52 U.S.C.
§ 10301). The Sixth Circuit did not address the fact that the plaintiffs were
proceeding under an implied right of action. Moreover, in Mixon, “the Ohio
Attorney General ha[d] not [even] pressed the immunity question on appeal.” 193
F.3d at 397. The decision is simply incompatible with the Supreme Court’s holding
that Congress must make its intention to abrogate sovereign immunity
“unmistakably clear in the language of the statute.” Seminole Tribe, 517 U.S. at 56.
Lastly, Plaintiffs point to several cases in which States, and state officials,
have been sued under the VRA by private citizens, including a VRA decision of the
Supreme Court in which Alabama was a party. See, e.g., Ala. Legislative Black
Caucus v. Alabama, 135 S. Ct. 1257 (2015)). These opinions did not confront the
question before the Court: whether nonconsenting States have sovereign immunity
to these implied private rights of action under Sections 2 and 201 of the VRA. To
take the mere inclusion of a state or state official as a defendant in a case to mean
that the deciding court ruled that Congress intended for the VRA to abrogate the
Eleventh Amendment would violate the long-held principle that decisions that fail
Page 33 of 36
to address an issue have no precedential value as to that issue. See Pennhurst, 465
U.S. at 119 (“[W]hen questions of jurisdiction have been passed on in prior
decisions sub silentio, this Court has never considered itself bound when a
subsequent case finally brings the jurisdictional issue before us.”). Indeed, the most
likely implication is that the State did not raise sovereign immunity as a defense in
those cases, and the courts in those cases thus had no reason to address it. See
Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (“The Eleventh
Amendment . . . does not automatically destroy jurisdiction. . . . Unless the State
raises the matter, a court can ignore it.”).
Because a State cannot be an unwilling defendant to the implied private
rights of action under Sections 2 and 201 of the VRA, the State of Alabama is thus
due to be dismissed from this action.
C.
The Eleventh Amendment Bars Plaintiffs’ Claims Against the
Governor, Attorney General, and ALEA Secretary
In order for the Ex parte Young doctrine to circumvent sovereign immunity
with regard to a state official sued in his official capacity, the official must have a
“special relation to the particular statute” being challenged and must have been
“expressly directed to see to its enforcement.” Fitts, 172 U.S. at 530. In accordance
with that decision and the law in other circuits, the Eleventh Circuit has long held
that the defendant must have at least a “connection to the enforcement of the
Page 34 of 36
challenged law” beyond his or her duty to enforce state law as a general matter.
Summit Med. Assocs., P.C., 180 F.3d at 1341; accord Women’s Emergency Network,
323 F.3d at 949–50; Wasden, 376 F.3d at 919; Cressman, 719 F.3d at 1146 n.8. As
previously noted, the inquiry is largely the same as the one that governs standing.
See Cressman, 719 F.3d at 1146 n.8. Sovereign immunity thus bars Plaintiffs from
asserting claims against the Governor, Attorney General, and ALEA Secretary for
all the reasons Plaintiffs do not have Article III standing to sue those Defendants.
See supra, Section III.A.
IV.
CONCLUSION
Plaintiffs’ controversy in this case is with the Secretary of State, who is
especially designated to implement all aspects of the Photo ID Law, which
Plaintiffs challenge, and who has not contested that he is a proper defendant.
Plaintiffs do not have standing to sue the Governor, the Attorney General, and the
ALEA Secretary. Further, these Defendants and the State of Alabama are
protected by Eleventh Amendment sovereign immunity. Therefore, Defendants’
motion to dismiss will be granted and all claims against the State, the Governor, the
Attorney General, and the ALEA Secretary will be dismissed. A separate closing
order as to these defendants will be entered.
Page 35 of 36
DONE and ORDERED on March 1, 2017.
_____________________________
L. Scott Coogler
United States District Judge
160704
Page 36 of 36
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