Greater Birmingham Ministries et al v. State of Alabama et al

Filing 22

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/17/2016. (PSM)

FILED
2016 Feb-17 PM 04:25
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 and ALABAMA
STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF
COLORED PEOPLE,
Plaintiffs,
vs.
STATE OF ALABAMA, et al.,
Defendants.

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2:15-cv-02193-LSC

MEMORANDUM OF OPINION
“No right is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we must live.”
Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The constitutional right to vote no doubt
means that every individual who wishes to cast a vote is free to do so without undue
burden. However, the right to vote also includes the right to participate in an
electoral process that is structured so that those who do vote are able to rest
assured that their votes are counted. After all, any fraudulent vote cast effectively
cancels the right of a citizen to have his or her vote counted. The issues presented
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in this matter require balancing these sometimes competing interests.
On December 2, 2015, Plaintiffs, Greater Birmingham Ministries and the
Alabama State Conference of the National Association for the Advancement of
Colored People (“NAACP”), brought this action seeking to invalidate Alabama’s
voter identification law, which has already been in effect since 2014 through one
primary and one general statewide election. The law requires voters to show some
form of photo identification before casting a ballot, subject to some exceptions—
including one providing that if an election official can positively identify a would-be
voter at the polling place, that individual need not present a valid form of photo
identification.
On January 8, 2016, Plaintiffs filed a motion for a mandatory preliminary
injunction, asking this Court to order John Merrill, Alabama’s Secretary of State,
to cease administering the “positively identify” provision of the law, Ala. Code §
17-9-30(e), as written, and instead implement it in a way that Plaintiffs feel is
appropriate—a way that would allow registered voters who lack a photo ID to cast a
ballot if they can produce certain non-photo identification documents or
information. (Doc. 5.) Plaintiffs seek this relief for all of Alabama’s 2016 elections,
the most immediate of which are the March 1, 2016 primary and the possible April

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12, 2016 runoff. 1
To be clear, Plaintiffs are not challenging the photo ID requirement of
Alabama’s voter identification law in their motion and are not asking this Court to
enjoin it. Instead, they are asking the Court to rewrite the positively identify
provision in a way that circumvents the photo identification requirement
altogether—without actually providing proof that the photo ID requirement is
unduly burdensome on Alabama voters. For the reasons stated below, the motion
for a preliminary injunction is due to be denied.
I.

BACKGROUND
Alabama has required voters to present some form of identification before

voting for over ten years. In 2003, Alabama adopted a voter identification law that
required voters to present one of fourteen forms of non-photo or photo ID before
casting a ballot. 2 2003 Ala. Acts 381. In addition, a voter could cast a ballot if he or
1

Plaintiffs subsequently moved to amend their original motion for a preliminary injunction. (Doc.
14.) The motion to amend is hereby GRANTED, and the amendments are incorporated into
Plaintiffs’ submissions.
2

Acceptable forms of identification included (1) a current valid photo identification or (2) a copy
of a utility bill, bank statement, government check, paycheck, or other government document
with the voter’s name and address. 2003 Ala. Acts 381. Acceptable forms of “other government
document” included: (a) a valid ID card issued by any branch of the federal government or the
state of Alabama, (b) a valid U.S. passport, (c) a valid Alabama hunting or fishing license, (d) a
valid Alabama permit to carry a pistol or revolver, (e) a valid pilot’s license issued by the Federal
Aviation Administration or other authorized agency, (f) a valid military ID, (g) a certified birth
certificate, (h) a valid social security card, (i) certified naturalization documentation, (j) a
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she was “positively identified by two election officials.” Id. At that time, the
Voting Rights Act of 1965, 52 U.S.C. §§ 10101–10702 (the “VRA”), required
Alabama to seek preclearance for any change in voting requirements from either
the U.S. Attorney General or a three-judge court in the United States District
Court for the District of Columbia. See 52 U.S.C. § 10304. The Attorney General
precleared Alabama’s 2003 voter ID law, including the positively identify
provision, and it was in effect until the current photo ID law became effective in
2014.
On June 15, 2011, Alabama Governor Robert Bentley signed into law Ala.
Code § 17-9-30 (the current “Voter ID Law”), which repealed the 2003 voter ID
law and required voters, with some exceptions, to present a photo ID before casting
a ballot. The text of the Voter ID law expressly delayed enforcement of it until the
2014 statewide elections, which allowed time for the Secretary of State’s office to
educate Alabamians about the photo ID requirement and time for voters to acquire
a photo ID if they did not have one. See 2011 Ala. Acts 673. (“The photo
identification requirements of this act shall be operative in the first statewide
primary for 2014. The voter identification requirements prior to the effective date
certified copy of court records showing adoption or name change, or (k) a valid Medicare,
Medicaid, or electronic benefits transfer card. Id.

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of this act shall continue to apply in any election prior to that election.”). In 2013,
the Supreme Court handed down its decision in Shelby County v. Holder, 133 S.Ct.
2612 (2013), which eliminated the preclearance requirement. Plaintiffs assert that
Alabama only began enforcement of the Voter ID law after the Shelby County
decision, insinuating that the State was waiting on that decision to avoid having to
obtain preclearance. This, however, is misleading because the original bill as passed
by the Legislature and signed by the Governor in 2011 expressly delayed
enforcement until 2014.
Alabama’s Voter ID Law is certainly not an outlier but is instead one of many
state laws that require voters to present a photo ID before voting.3 These laws have
been passed to combat voter fraud and ensure integrity in the voting process. They
are, in part, consistent with the proposals put forth by American University’s
Commission on Federal Election Reform. 4 The Commission, chaired by former
President Jimmy Carter and former U.S. Secretary of State James A. Baker III,
3

Georgia, see O.C.G.A. § 21-2-417, Idaho, see Idaho Code Ann. § 34-1113, Indiana, see Ind. Code
§ 3-11-8-25.1, Kansas, see Kan. Stat. Ann. § 25-2908, North Dakota, see N.D. Cent. Code § 16.105-07, Tennessee, see Tenn. Code Ann. § 2-7-112, Texas, see Tex. Elec. Code Ann. § 63.001,
Virginia, see Va. Code Ann. § 24.2-643, and Wisconsin, see Wis. Stat. § 6.79, all require some
form of photo identification before casting a ballot.

4

Commission on Federal Election Reform, Center for Democracy and Election Management,
American University, Building Confidence in U.S. Elections Report of the Commission on Federal
Election Reform, 18–21 (2005) [hereinafter Building Confidence in U.S. Elections]; Doc. 15-6.

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encouraged states to move towards requiring voters to present photo IDs before
being allowed to vote. The Commission found that even in the absence of extensive
voter fraud, the use of photo IDs would inspire public confidence in the voting
process and act as a deterrent to fraud. See Building Confidence in U.S. Elections at §
2.5 (“Photo IDs currently are needed to board a plane, enter federal buildings, and
cash a check. Voting is equally important.”).
As noted, at least ten states, including Alabama, have adopted some form of
a photo ID law in recent years. Notably, the Supreme Court in Crawford v. Marion
County Election Board, 553 U.S. 181 (2008), the Eleventh Circuit in Common
Cause/Georgia v. Billups, et al., 554 F. 3d 1340 (11th Cir. 2009), and the Seventh
Circuit in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), respectively found
Indiana, Georgia, and Wisconsin’s photo ID laws constitutional and not in violation
of the VRA. Alabama’s Voter ID Law is highly similar, if not identical, to those
states’ laws.
For example, Alabama, Georgia, Indiana, and Wisconsin all require voters to
present a photo ID when voting, and if they do not have a photo ID, voters can cast
a provisional ballot and provide their local election officials with a photo ID within
a specified time. See Ala. Code §§ 17-9-30, 17-10-2(a)(3); O.C.G.A. § 21-2-417; Ind.
Code § 3-11-8-25.1; Wis. Stat. § 6.97. Alabama and Wisconsin also require voters to
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include a photocopy of their IDs with their absentee ballots. Ala. Code § 17-930(b); 5 Wis. Stat. § 6.86. Valid photo IDs in all four states include driver’s licenses,
passports, federal issued military or employee IDs, and tribal identification cards.
See Ala Code § 17-9-30(a); 6 O.C.G.A. § 21-2-417; Ind. Code § 3-5-2-40.5; Wis.
Stat. § 5.02. Alabama and Wisconsin additionally allow voters to present student
IDs from universities and colleges within the state. See Ala. Code § 17-9-30(a)(5);
Wis. Stat. § 5.02. Moreover, all four of those states’ laws, including Alabama’s,
require authorities to issue free photo IDs for voters who otherwise do not have
photo IDs. See Ala. Code § 17-9-30(f); O.C.G.A. § 21-2-417.1; Ind. Code § 9-24-1610; Wis. Stat. § 343.50. Alabama, however, is the only state that provides positive
identification by election officials as an additional means of meeting the
identification requirement. See Ala. Code § 17-9-30(e).
As mentioned, Alabama’s Secretary of State issues photo voter ID cards free
5

However, Alabama voters entitled to vote an absentee ballot pursuant to the Uniformed and
Overseas Citizens Absentee Voting Act, 52 U.S.C. §§ 20301–20311, the Voting Accessibility for
the Elderly and Handicapped Act, 52 U.S.C. §§ 20101–20107, or any other federal law are not
required to produce photo identification before voting. Ala. Code § 17-9-30(c).
6

Specifically, Alabama allows (1) a valid Alabama driver’s license or non-driver identification
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 identification card with a
photograph issued by a federal, state, or local government entity, (5) a valid student or employee
photo identification card issued by a private or public college, university, or postgraduate
technical school in Alabama, (6) a valid United States military photo identification card, and (7) a
valid tribal identification card with a photograph. See Ala. Code § 17-9-30(a).

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of charge to registered voters who otherwise do not have a photo ID. See Ala. Code
§ 17-9-30.(f)-(g) 7 Voters can obtain photo voter ID cards at the Secretary of State’s
office at the State Capitol or at their local Board of Registrar’s office. 8 Every county
in Alabama has a registrar’s office. 9 Further, Alabama’s Secretary of State’s office
has a mobile unit that makes photo voter IDs, and during former Secretary of State
Bennett’s term, it travelled to every county in Alabama on at least one occasion.
(Doc. 15-13 at ¶ 4–6). In 2015, the mobile unit visited all but fifteen counties
through September of that year and was scheduled to visit eight more. (Doc. 15-15,
at ¶ 5 and Ex. 4) (Decl. of Clay Helms, Asst. Dir. Of Elections and Supervisor of

7

To obtain a photo voter ID card, a voter must provide (1) a photo identity document or nonphoto identity document with her full legal name and birth date, (2) documentation showing the
person’s birth date, (3) documentation of voter registration, and (4) documentation of the voter’s
address as shown in the voter registration records. Ala. Code § 17-9-30(j). Examples of
acceptable documents include a birth certificate, a hospital or nursing home record, a marriage
certificate, a State or Federal Census Record, military record, a Medicaid or Medicare document,
a Social Security Administration document, a Certificate of Citizenship, or an official school
record or transcript. See Doc. 15-10. Further, the Secretary of State has entered into an
agreement with the Alabama Department of Public Health that allows the election officials to
obtain an electronic copy of the voter’s birth certificate at no cost to the voter. See id. A copy of
the Voter ID Guide is published on the Secretary of State’s website, How to Get a Free Photo Voter
ID Card, AlabamaVoterId.com, http://www.alabamavoterid.com/getfreephotovoterid.aspx (last
visited Feb. 10, 2016).
8

See Doc. 15-16 at ¶ 2, Decl. of John C. Bennett, Dep. Chief of Staff for the Secretary of State;
Doc. 15-13 at ¶ 4 Decl. of Emily T. Marsal, Deputy Secretary of State.
9

Doc. 15-16 at ¶ 2, Decl. of John C. Bennett; see also Free Alabama Photo Voter ID Locations,
AlabamaVoterID.com, http://www.alabamavoterid.com/permanentLocations.aspx (last visited
Feb. 12, 2016) (listing the physical addresses and phone numbers for all the locations of the
Boards of Registrars).
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Voter Registration). On at least one occasion, it even went to an individual voter’s
house. (Doc. 15-16 at ¶ 3) (Decl. of John C. Bennett).Through these efforts, the
Secretary of State and election officials have issued over 7,800 photo voter ID cards
since 2014. (Doc. 15-17 at ¶¶ 8-10) (Declaration of Madeleine Raiford-Holland,
Vice President of PASP, the company providing the photo voter ID cards).
A voter who arrives at his or her polling place without a photo ID has two
additional options. That voter may cast a provisional ballot, but for that ballot to
count, the voter must provide the board of registrars with proper photo
identification by 5:00 PM on the Friday following the election. Ala. Code §§ 17-930(d), 17-10-2(a)(3). Additionally, a voter without an acceptable form of photo ID
may cast a ballot “if the individual is positively identified by two election officials as
a voter on the poll list who is eligible to vote and the election officials sign a sworn
affidavit so stating,” (the “positively identify provision”). Ala. Code § 17-9-30(e).
The Secretary of State has not promulgated any regulations applicable to the
upcoming elections interpreting the positively identify provision. However, before
the June 3, 2014, statewide primary election, the Secretary of State promulgated
emergency regulations interpreting it as requiring election officials to establish
positive identification by personal acquaintance with the voter. (Doc. 5-2 at 10–11,
13–14). These regulations were, at least in part, in response to a letter sent by the
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same Plaintiffs in this case in March of 2014 urging the Secretary of State to adopt
regulations with objective criteria applicable to the positively identify provision.
(Docs. 5-1, 5-2). The Secretary of State acknowledged that their request had
“merit” and subsequently adopted the emergency regulations, (Doc. 5-2 at 8), but
did not promulgate any new regulations after the emergency ones expired after the
elections. (Doc. 5-3 at 13).
Moreover, before the June 2014 primary election, then-Secretary of State
Jim Bennett began publicizing the photo ID requirement and educating voters on
how to comply with the law. The Secretary of State’s office published an “Alabama
Voter ID Guide” on its website that included details on what IDs were accepted,
how to get a free voter ID, and how to contact their office with questions. 10 Emily
T. Marsal, a Deputy Secretary of State, met with citizens and groups to explain the
photo ID requirements. (Doc. 15-13 at ¶¶ 2–3). Further, Secretary Bennett spent
“substantial resources” on billboards, radio advertisements, and television
advertisements in an effort to education the public on the photo ID requirements.
(Doc. 15-13 at ¶ 7) (Decl. of Emily T. Marsal). In addition to the Voter ID Guide,
current Secretary of State John Merrill has an entire website dedicated to educating
10

See Doc. 15-10; Alabama Photo Voter ID Guide, AlabamaVoterID.com,
http://www.alabamavoterid.com/downloads/AlabamaPhotoVoterIDGuide.pdf (last visited Feb.
11, 2016).

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voters about the photo ID requirement, 11 and he has given interviews to the media
on the Voter ID Law. (Doc. 15-16 at ¶ 2) (Decl. of John C. Bennett).
Plaintiffs in this case, Greater Birmingham Ministries and the NAACP, are
organizations that work to increase voter turnout and political involvement among
their constituents. Both identify African Americans as their target constituency,
and Greater Birmingham Ministries identifies Latinos as well. In their complaint,
they provide the anecdotal example of G.A. as being a Latina woman who turned
eighteen in December 2015. At the time Plaintiffs filed their complaint, G.A. was
alleged to not be registered to vote but intended to register, and she did not have a
photo ID. She has no access to reliable transportation, and her parents often work
long hours. Plaintiffs point to G.A. as the type of person potentially injured by the
Voter ID Law and their reason for challenging it.
Plaintiffs, in an attempt to provide broader context to the impact of the Voter
ID Law, estimate that 280,000 registered voters in Alabama do not have a photo ID
and must rely on the positively identify provision to vote. (Doc. 6 at p. 9). If that
number is accurate, then 9.3% of registered voters in Alabama do not have a valid

11

Alabama Photo Voter Identification, AlabamaVoterID.com, http://www.alabamavoterid.com/
(last visited Feb. 11, 2016).
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photo ID. 12 That number is based on an estimate made by the Secretary of State in
early 2014 through a comparison of voter registration lists and driver’s license
records. (Doc. 6 at 16). However, that number is clearly flawed. As an initial
matter, that estimate is approximately two years old, and it was made before the
Secretary of State began much of its educational outreach. Since that time, many
voters could have obtained some form of photo ID. Further, the Secretary of State
had no accurate way of determining how many voters had a form of photo ID other
than a driver’s license, and the voter registration records, which were compared to
driver’s license records, were prone to error because of the systematic entry of
driver’s license information into the wrong field. (Doc. 5-1 at 13).
Plaintiffs did provide a chart purporting to show that 630 voters were not
able to cast a ballot in the June 2014 and November 2014 elections because they did
not have a photo ID. This supports the conclusion that the 280,000 estimate is
clearly inaccurate. Further, since that time, those individuals could have certainly
obtained a free voter ID. Stated another way, they certainly had the opportunity to
obtain one.
Importantly, Plaintiffs have known since 2014 that the official position of the
12

According to Secretary of State records, there were more than 3 million registered voters in
Alabama as of December 31, 2015. See Doc. 15-12; Voter Registration Statistics – Year 2015,
AlabamaVotes.gov, https://www.alabamavotes.gov/voterreg.aspx?a=voters (last visited Feb. 11,
2016).
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Secretary of State is that the 280,000 estimate is unreliable, but they nonetheless
relied upon it in their motion. (Doc. 5-1 at 13). Instead of relying on the Secretary of
State’s flawed estimate, Plaintiffs could have obtained the same lists of persons
with driver’s licenses, non-driver identification cards, and photo voter IDs used to
make the estimate and perform their own cross-check between those persons and
registered voters. (Doc. 5-1 at 14). The Secretary of State informed them of the
availability of this information in a letter dated May 29, 2014. However, Plaintiffs
have met their burden of proving the number of voters without a photo ID who
might rely on the positively identify provision, leaving this Court to guess as to the
actual number—something this Court will not do.
While Plaintiffs challenge the validity of the entire Voter ID Law—both the
photo ID requirement and the positively identify provision—under the VRA, the
Fourteenth Amendment, and the Fifteenth Amendment in their complaint, their
motion for a preliminary injunction targets only the positively identify provision of
the Voter ID Law. They limit their requested relief to a mandatory preliminary
injunction ordering the Secretary of State 13 to enforce the positively identify
provision in such a way as to allow a voter without an acceptable form of photo ID
13

The parties have agreed that the Secretary of State is the only necessary defendant for the
preliminary injunction, but Plaintiffs contend that the remaining Defendants are necessary
parties for the remainder of the issues.

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to cast a ballot if the voter states that he or she has a reasonable impediment, such
as lack of money or transportation, and can “(a) accurately answer questions about
identifying information in the poll book, such as the voter’s name and address, (b)
sign an affidavit confirming his or her identity, or (c) produce a form of non-photo
identification that was previously acceptable under Alabama’s non-photo ID law.”
(Doc. 6 at 10). Plaintiffs’ proposed relief would require election officials to
positively identify individuals attempting to vote without a photo ID based on those
forms of identification unless they have a good faith basis for contesting them.
II.

STANDARD OF REVIEW
Parties seeking a preliminary injunction must demonstrate (1) substantial

likelihood of success on the merits, (2) that they will suffer irreparable harm unless
the injunction is granted, (3) that the threatened injury outweighs any damage the
injunction might cause the opposing party, and (4) that the injunction would not be
adverse to the public interest. See McDonald’s Corp. v. Robertson, 147 F.3d 1301,
1306 (11th Cir. 1998). “The preliminary injunction is an extraordinary and drastic
remedy not to be granted unless the movant ‘clearly carries the burden of
persuasion’ as to the four prerequisites.” United States v. Jefferson Cnty., 720 F.2d
1511, 1519 (11th Cir. 1983) (quoting Canal Auth. of State of Fla. v. Callaway, 489
F.2d 567, 573 (5th Cir. 1974)).
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Typically, “[t]he purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can be held.” Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981). However, Plaintiffs seek a mandatory
injunction, which goes beyond maintaining the status quo and would force the
Secretary of State to act. Courts generally disfavor mandatory injunctions and only
issue them when “the facts and law clearly favor the moving party.” Martinez v.
Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).14
III.

DISCUSSION
A. Standing
The Court questions whether Plaintiffs have sufficiently demonstrated that

they have standing to assert the rights of Alabama voters and to seek this injunctive
relief. Although Defendants have not contested standing, it is a “threshold
jurisdictional question which must be addressed prior to and independent of the
merits of a party’s claims.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th
Cir. 2005) (quoting Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 1275 (11th
Cir. 2000)). “Standing is a doctrine that ‘stems directly from Article III’s “case or
controversy” requirement,’ and thus it ‘implicates our subject matter

14

The Eleventh Circuit adopted as binding precedent all decisions handed down by the old Fifth
Circuit before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
Page 15 of 29

jurisdiction.’” Id. (quoting Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229,
1242 (11th Cir. 2003)). To show standing, a plaintiff must generally demonstrate
that he suffered or shall immediately suffer an injury in fact, that the injury was
caused by the defendant’s conduct, and that the injury is redressible by a favorable
court decision. See Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d
1153, 1159 (11th Cir. 2008). Moreover, a plaintiff must “demonstrate standing
separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see City of Los Angeles v. Lyons, 461
U.S. 95, 106 (1983). Specifically, in this case, Plaintiffs need to demonstrate that
they have standing both to challenge the law as a whole and to seek injunctive
relief.
In Common Cause/Georgia, the Eleventh Circuit held that the plaintiff,
NAACP, had an injury in its own right sufficient to confer standing to challenge
Georgia’s voter ID Law because it diverted resources from its regular activities to
educate and assist voters in complying with the photo ID requirement. 554 F.3d at
1351; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (“Such
concrete and demonstrable injury to the organization’s activities—with the
consequent drain on the organization’s resources—constitutes far more than
simply a setback to the organization’s abstract social interests . . . .”). In Clapper v.
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Amnesty International USA, 133 S.Ct. 1138 (2013), the Supreme Court has since
noted that standing based on diverting resources to avoid the risk of “hypothetical
future harm” is not a sufficient injury. Clapper, 133 S.Ct. at 1151.
Both NAACP and Greater Birmingham Ministries allege that they are
diverting resources from their normal activities to help voters get valid photo IDs,
similar to the plaintiff in Common Cause/Georgia. Those injuries are not
speculative. According to Plaintiffs, some voters were in fact not allowed to cast
ballots in 2014 because they did not have a photo ID, and the State has indicated
that it will continue to enforce the photo ID requirement for future elections. Thus,
the challenge to the Voter ID Law as a whole, at least with regard to asserting the
Plaintiffs’ own interests, does not appear to be affected by Clapper. Further,
Plaintiffs’ diversion of resources is directly traceable to the photo ID requirement,
and it would be redressed by the ultimate relief sought in the complaint. As a result,
Plaintiffs appear to have standing to assert their own rights as to the challenge to
the Voter ID Law as a whole.
It is doubtful, however, that Plaintiffs’ injury would be redressed by the
preliminary injunction concerning the positively identify provision. In other words,
because the positively identify provision is separate from the photo ID
requirement, Plaintiffs would have the same interests and efforts in educating the
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voters about obtaining a photo ID even if the injunction were granted. Thus,
Plaintiffs are required to also have standing to assert the rights of voters affected by
the positively identify provision in order to pursue the preliminary injunction. In an
effort to demonstrate such standing, Plaintiffs appear to assert associational
standing 15—which is standing obtained from injuries to members of an
organization. “[T]he doctrine of associational standing” allows “an organization
[to] sue to redress its members’ injuries, even without a showing of injury to the
association itself.” United Food and Commercial Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 552 (1996). To demonstrate associational standing, the
organization must show that (1) at least one of its members would otherwise have
standing to sue in his or her own right, (2) the interests it seeks to protect are
germane to the organization’s purpose, and (3) neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit.
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).
The NAACP and Greater Birmingham Ministries both identify AfricanAmerican Alabamians as their “constituents,” and Greater Birmingham Ministries
additionally identifies Latinos as its “constituents.” In their complaint, Plaintiffs
15

Common Cause/Georgia did not address associational standing. 554 F.3d at 1351. Presumably,
this is because two individual voters without photo IDs were also plaintiffs and could assert their
own rights. Id.
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generally allege that African American and Latino voters are less likely to have a
photo ID and less able to obtain one, as with the example of G.A. Presumably,
being a Latina, she is a constituent of Greater Birmingham Ministries, but the
Court questions whether a mere “constituent” with an injury can confer
associational standing without actual membership or “indicia of membership.” See
Hunt, 432 U.S. at 344. Moreover, NAACP has not specifically identified one of its
members who does not possess a photo ID and intends to vote, and Greater
Birmingham Ministries has not alleged whether G.A. is a member of its
organization and further whether she is a United States citizen eligible to vote in
the upcoming elections.
Typically, a party may not assert the rights of others. This principle
“assumes that the party with the right has the appropriate incentive to challenge
(or not challenge) governmental action and to do so with the necessary zeal and
appropriate presentation.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Even so,
the doctrine of “third party standing” allows a party who has standing in his own
right to assert the rights of another upon “two additional showings.” Id. at 130.
The first question is “whether the party asserting the right has a ‘close’
relationship with the person who possesses the right. Second, [it has been]
considered whether there is a ‘hindrance’ to the possessor’s ability to protect his
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own interests.” Id. (citations omitted). Plaintiffs have not shown that they have
third party standing and can properly assert the rights of Alabama voters without
photo IDs. Specifically, they have shown no close relationship to voters without
photo IDs, and even if they are able to do that, there is nothing that would
demonstrate a hindrance to those individuals pursuing an action in their own name.
For all of these reasons, the Court will enter a separate order directing the parties
to brief standing in the case. However, due to the time constraints, the Court will
assume standing, as to this motion, and proceed to its merits.
B. Substantial Likelihood of Success on the Merits
Plaintiffs argue that the positively identify provision violates section 201 of
the VRA. That section of the VRA prohibits the denial of the right to vote because
of a person’s “failure to comply with any test or device.” 52 U.S.C. § 10501(a). As
used in the VRA,
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.
Id. at § 10501(b). This prohibition on tests and devices was passed by Congress to
combat the use of discriminatory tests to suppress the registration of minorities. See
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Oregon v. Mitchell, 400 U.S. 112, 132 (1970). This per se ban on tests and devices
removed the burden of demonstrating the discriminatory application of a test that
was required under prior law. See Briscoe v. Bell, 432 U.S. 404, 410 n.9 (1977)
(“The Act suspends the operation of all ‘tests and devices’ . . . .”); Reno v. Bossier
Parish Sch. Bd., 528 U.S. 320, 338 n.6 (11th Cir. 2000) (stating that the VRA “bars
certain types of voting tests and devices altogether”).
However, even though proof of discrimination is unnecessary, the history of
discriminatory tests and devices, particularly voucher requirements, provides
helpful context in analogizing the case at hand. For example, prior to United States
v. Ward, 349 F.2d 795 (5th Cir. 1965), Louisiana law required voters to establish
“their identities to the satisfaction of the registrar.” Id. at 799. The registrar,
pursuant to this law, required African American voters to produce two registered
voters to vouch for their identities. Id. Because no African Americans were
registered voters in that particular parish, African American persons wishing to
register were generally unable to find two registered voters to vouch for their
identities. Id. Thus, African American voters were largely denied the right to vote
because of this voucher requirement. The Fifth Circuit enjoined enforcement of
the voucher requirement, finding it discriminatory.
Similarly, in United States v. Logue, 344 F.2d 290 (5th Cir. 1965), the Fifth
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Circuit addressed an Alabama requirement that any person registering to vote had
to produce a qualified voter to vouch for such voter. Id. at 291. As in Ward, African
Americans in Alabama had been largely denied the right to register to vote. Thus, it
was difficult for them to find registered voters to vouch for them, effectively
denying their right to register and vote. Because of the discriminatory application of
this law, the Fifth Circuit enjoined this voucher requirement as well.
The positively identify provision in Alabama’s Voter ID Law is dissimilar
from these vouchers of the past in that it is not a requirement that must be met
before voting. The VRA defines “test or device” to mean “any requirement that a
person as a prerequisite to voting or registration for voting” must meet. 52 U.S.C.
§ 10501(b) (emphasis added). The positively identify provision is merely a
peripheral method of proving a voter’s identity that supplements the objective
requirement of producing a photo ID. The pre-VRA vouchers in Ward and Logue
were in fact enforced as strict requirements. Voters, in particular minority voters,
could register to vote only if other registered voters vouched for them. Plaintiffs
reject the differentiation between a requirement and an additional option, calling it
semantic and saying that pre-VRA tests and devices were often portrayed as
options. This argument fails to take into account that obtaining a photo ID provides
an objective, guaranteed option of proving one’s identity that pre-VRA voter laws
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with tests and devices lacked. Alabama voters can always present a photo ID and
avoid reliance on the positively identify provision. In other words, no voter is
required, as a prerequisite to vote or register, to be positively identified by an
election official. In fact, the positively identify provision gives more voters,
including minority voters, the opportunity to vote. Even if a voter does not have a
photo ID, he can still vote if he is positively identified by election officials.
Accordingly, because the positively identify provision is not a requirement or
prerequisite to voting, it is not a voucher within the meaning of the VRA’s ban on
tests and devices. As such, Plaintiffs have failed to show a likelihood of success on
the merits of their claim that the positively identify provision violates section 201 of
the VRA.
C. Irreparable Harm
Plaintiffs have additionally failed to show irreparable harm if the positively
identify provision is enforced. With regard to their assertion of injury in their own
right as organizations, the NAACP and Greater Birmingham Ministries argue that
the Voter ID Law forces them to “divert significant amounts of their scarce
resources from their regular activities to protecting the rights of those affected
voters.” (Doc. 6 at 25). This injury amounts to no more than a loss of money and
time, which is generally not irreparable harm in the preliminary injunction context.
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See Sampson v. Murray, 415 U.S. 61, 90 (1974) (“The possibility that adequate
compensatory or other corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim of irreparable harm.”)
(quoting Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925
(D.C. Cir. 1958)).
Plaintiffs further assert that their constituents are irreparably harmed
because the positively identify provision denies them the right to vote. Once again,
this Court questions Plaintiffs standing to assert the rights of such voters but will
nonetheless address the alleged harm to voters. Although a constitutional violation
does not always constitute irreparable harm, see Siegel v. LePore, 234 F.3d 1163, 1177
(11th Cir. 2000), the denial of the right to vote likely constitutes an irreparable
injury in many, if not all, cases. See Charles H. Wesley Educ. Found., Inc. v. Cox, 408
F.3d 1349, 1355 (indicating that the threatening of “franchise-related rights”
constitutes irreparable harm). The underlying purpose of voting—choosing one’s
preferred candidate and participating in the electoral process—cannot be
compensated with monetary damages, and once an election passes, a person who
did not cast a vote cannot regain the lost vote.
However, even though the denial of the right to vote is often an irreparable
injury, Plaintiffs have failed to show that the positively identify provision, as part of
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the Voter ID Law as a whole, will actually result in voters being unlawfully denied
this right. Because no voter is strictly required to be positively identified, no voter
is required to prove his qualifications by what Plaintiffs describe as a voucher.
Voters can always present a photo ID and be objectively identified by election
officials, bypassing the positively identify provision and any harm it might inflict
altogether. Further, even if they have no such photo ID when they attempt to vote,
they are permitted to cast a provisional ballot and return with appropriate photo ID
and have their vote counted.
Plaintiffs’ insistence that they are only seeking to enjoin the positively
identify provision of the Voter ID Law in their request for a preliminary injunction
dooms their argument. They offer no convincing reason as to why obtaining a valid
photo ID is an undue burden on voters. In fact, they state that such an inquiry is
irrelevant for their present purposes. (Doc. 17 at 17.) But for purposes of analyzing
the irreparable harm alleged, the Court cannot consider the positively identify
provision of the Voter ID Law in a vacuum. Plaintiffs have simply failed to meet
their burden of showing that anyone will suffer irreparable harm by the State’s
enforcement of the positively identify provision because they have chosen to ignore
that Alabamians can avoid relying on the positively identify option to vote by
simply obtaining some form of valid photo ID.
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Because Plaintiffs are not seeking to preliminarily enjoin the photo ID
portion of the Voter ID Law, the Court need not address it here. However, as
previously noted, the Supreme Court, the Eleventh Circuit, and the Seventh
Circuit have largely already answered the question as to whether photo ID laws like
Alabama’s violate the U.S. Constitution and/or the VRA. The Supreme Court has
held that “‘evenhanded restrictions that protect the integrity and reliability of the
electoral process itself’ are not invidious.” Crawford, 553 U.S. at 189–190 (quoting
Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983)). Accordingly, “reasonable,
nondiscriminatory restrictions” are valid when balanced against the state’s
legitimate interests. See id. at 189–191; Common Cause/Georgia, 554 F.3d at 1352.
The Eleventh Circuit applied the standard from Crawford in Common
Cause/Georgia. Specifically, Common Cause/Georgia recognized that states do have
legitimate interests in deterring voter fraud and preserving the integrity of the
election process, and in the case of Georgia’s voter ID law, the Eleventh Circuit
also found that the burden of getting a photo ID was not unreasonable. 554 F.3d at
1354; see also Frank, 768 F.3d at 748 (“[I]f photo ID is available to people willing to
scrounge up a birth certificate and stand in line at the office that issues [IDs], then
all we know from the fact that a particular person lacks a photo ID is that he was
unwilling to invest the necessary time.”).
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D. Balance of the Harm Imposed on the Parties and Public Interest
The Court has not found irreparable harm and therefore does not need to
weigh Plaintiffs’ alleged harm against the burden imposed on the Secretary of
State. However, the Court notes that the State would be injured by an injunction
preventing enforcement of a law “enacted by representatives of its people.” New
Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist,
Circuit Justice). Additionally, election officials throughout the state have been
training workers on how to conduct elections, and any change in the identification
requirements would require retraining in a short period of time.
Moreover, the public has an interest in ensuring effectiveness and integrity
in the electoral process. “Court orders affecting elections . . . can themselves result
in voter confusion and consequent incentive to remain away from the polls. As an
election draws closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4–5
(2006). Any change in voting procedures ordered by this Court less than two weeks
from the next election could have a negative impact on the public perception of the
electoral process with little time to dispel confusion and doubt. Therefore, “the
importance of preserving the status quo” outweighs any speculative harm at this
point in time. Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014).
Lastly, Plaintiffs’ requested relief is far more expansive than what would be
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necessary if the positively identify provision was actually an illegal test or device.
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).
Plaintiffs’ motion essentially asks this Court to rewrite the Voter ID Law as a whole
by importing the identification requirements from Alabama’s repealed voter
identification law and go even further by allowing a voter merely to state his name
and address or sign an affidavit swearing to his identity. Their requested remedy
would, in effect, invalidate the photo ID requirement entirely. Having not met, or
even attempted to meet, their burden of showing the photo ID requirement is likely
unconstitutional, the Court will not employ a backdoor method of invalidating a
statute duly adopted by the elected officials of the State of Alabama. Rather, if the
positively identify provision was an illegal test or device—which it is not—then a
proper remedy would be to strike that provision while leaving intact the remainder
of the law. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329
(2006) (“[M]indful that our constitutional mandate and institutional competence
are limited, we restrain ourselves from ‘rewrit[ing] state law to conform it to
constitutional requirements’ even as we try to salvage it.”) (quoting Virginia v. Am.
Booksellers Assn., Inc., 484 U.S. 383, 397 (1988)).
If the Court were to strike the positively identify provision, it is more likely
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that some voters who do not have a photo ID will be denied their ability to vote
even though they could be positively identified. Further, as the Voter ID Law exists
today, any voter without a photo ID is free to cast a provisional ballot, return to
their local registrar before 5:00 PM on the Friday following the election, obtain a
free voter ID, and have his or her vote counted. If the State or any local registrar in
any way interfered with or failed to carry out this portion of the Voter ID Law, then
the Court would be able to address those problems under well-identified
circumstances.
IV.

CONCLUSION
Plaintiffs have failed to prove either likelihood of success on the merits or

that they will suffer irreparable harm. As a result, their Motion for a Preliminary
Injunction (Doc. 5) is due to be denied. A separate order consistent with this
opinion will be entered.
Done and Ordered this 17th day of February 2016.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
182185

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