People First of Alabama et al v. Merrill et al

Filing 225

MEMORANDUM OPINION AND ORDER- For the foregoing reasons set out in this order, the plaintiffs motion for partial summary judgment, 169 , is DENIED. Signed by Judge Abdul K Kallon on 09/08/2020. (AKD)

FILED
2020 Sep-08 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PEOPLE FIRST OF ALABAMA, et
al.,

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Plaintiffs,
v.
JOHN MERRILL, et al.,

Civil Action Number
2:20-cv-00619-AKK

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Defendants.

MEMORANDUM OPINION AND ORDER
This action is currently before the court on the plaintiffs’ motion for partial
summary judgment. Doc. 169. In particular, the plaintiffs contend that they are
entitled to a judgment on their claim that the defendants’ de facto ban on curbside
voting violates Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131,
et seq. Id. For the reasons explained below, the court finds that questions of fact
exist regarding whether the plaintiffs have shown that they are excluded from voting
by reason of their disabilities and whether allowing curbside voting is a reasonable
modification.
I.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is proper “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
“Rule 56[] mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). The moving party bears the initial burden
of proving the absence of a genuine issue of material fact. Id. at 323. The burden
then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal
quotation marks omitted). A dispute about a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
On summary judgment motions, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). See also Anderson,
477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s
favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.
2002). However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321,
1326 (11th Cir. 2005) (per curiam) (citation omitted).
II.
To succeed on their Title II claim, the plaintiffs must establish that (1) they
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are “qualified individual[s] with a disability;” (2) who were “‘excluded from
participation in or denied the benefits of the services, programs, or activities of a
public entity’ or otherwise ‘discriminated against by such entity;’” (3) and that the
exclusion, denial of benefits, or discrimination was “‘by reason of such disability.’”
Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) (quoting 42 U.S.C. § 12132)
(alteration in original omitted). The defendants dispute only the second and third
prongs.1 See doc. 206.
To establish the second prong of their claim, the plaintiffs do not need to prove
that they have been “‘completely prevented from enjoying a service, program, or
activity’ . . . .” Disabled in Action v. Bd. of Elec. in City of N.Y., 752, F.3d 189, 198
(2nd Cir. 2014) (quoting Shotz, 256 F.3d at 1080). Rather, they only need to
establish that the service program or activity was not “‘readily accessible’ . . . .” See
Shotz, 256 F.3d at 1080 (quoting 28 C.F.R. § 35.150). The third prong requires a
causal connection between the plaintiffs’ disabilities and the exclusion or denial of
benefits or alleged discrimination. See Bircoll v. Miami-Dade County, 480 F.3d
1072, 1081 n.11 (11th Cir. 2007); see also Schwarz v. City of Treasure Island, 544
F.3d 1201, 1212 n.6 (11th Cir. 2008) (noting that “the ADA requires only the lesser

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As to the first prong, the plaintiffs are qualified individuals if they “meet[] the essential eligibility
requirements for the receipt of services or the participation in programs or activities provided by a
public entity . . . with or without reasonable modifications to rules, policies, or practices, . . . or the
provision of auxiliary aids and services.” United States v. Georgia, 546 U.S. 151, 153-54 (2006)
(quoting 42 U.S.C. § 12131(2)).

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‘but for’ standard of causation”) (citation omitted).
A.
The plaintiffs assert that voting is not readily accessible to them due to the
curbside voting ban in part because “not every polling place in Alabama is accessible
to voters with ambulatory disabilities.” Doc. 169 at 21. On this record, however,
the plaintiffs have not cited evidence showing that specific polling places are in fact
inaccessible to voters with ambulatory disabilities. Indeed, none of the individual
plaintiffs claim that they have difficulty accessing their polling sites due to
ambulatory disabilities. See docs. 172-1; 172-2; 172-3; 172-4; 172-5; see also doc.
169 at 14-16. And, although the organizational plaintiffs have members who use
wheelchairs and who have ambulatory disabilities, the plaintiffs do not cite evidence
that those members had difficulty accessing their polling sites. See doc. 169 at 16.2
To be sure, the plaintiffs have offered evidence that probate judges in three counties
have allowed curbside voting on several occasions. See docs. 169 at 12-13; 170-6
at 11-15; 170-13 at 11-12; 170-15 at 8. However, that evidence does not establish
that the regular polling sites in those counties were not readily accessible.
Consequently, on the current record, the plaintiffs have not established that some
polling sites in Alabama are not readily accessible to voters with ambulatory

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Scott Douglas, the executive director of Greater Birmingham Ministries, testified that one GBM
member had to park “way back in the parking lot” at her polling site and walk with a walker to the
front door of the site. Doc. 172-7 at 24. But, standing alone, this testimony is not sufficient to
establish that the site was not readily accessible to the member.

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disabilities.
B.
Relying on the court’s order granting their motion for a preliminary
injunction, the plaintiffs contend that the defendants exclude them from voting based
on their disabilities because voting in person “would expose them to significant and
unnecessary risk without the availability of curbside voting” during the COVID-19
pandemic. Doc. 169 at 21, 24 (quoting Doc. 58 at 68 n.46) (alteration in original
omitted). 3

The plaintiffs further contend that curbside voting is a reasonable

accommodation. Id. at 24-29. The defendants disagree.4
To prevail on their Title II claim, the plaintiffs “must propose a reasonable
modification to the challenged public program that will allow them the meaningful
access they seek.” Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir.

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As the court noted, at the preliminary injunction stage, the defendants did not specifically contest
the plaintiffs’ prima facie case for the claim that the curbside voting ban violated the ADA. See
doc. 36 at 27-32; 58 at 68, n.46. The defendants, however, now challenge the prima facie case.
See doc. 206 at 20-24.
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In particular, the defendants assert that the plaintiffs are not excluded from voting; that the
plaintiffs’ difficulties with voting, if any, are not by reason of their disabilities; and that allowing
curbside voting is not a reasonable accommodation. Doc. 206 at 21-29. Finally, The defendants
contend that the curbside voting ban does not violate the ADA because the plaintiffs have viable
alternative methods, i.e., by voting absentee. Doc. 206 at 21-22. But, as the court previously
noted, the “ADA is not so narrow that the plaintiffs’ rights only extend to voting ‘at some time and
in some way,’ . . . [and] [t]he plaintiffs have the right to ‘fully participate in Alabama’s voting
program,’ [] including by casting a vote in person.” Doc. 58 at 68, n.46 (quoting Disabled in
Action, 752 F.3d at 199) (alteration in original omitted); see also 28 C.F.R. § 35.130(b)(1)(ii) (“A
public entity, in providing any [] service, may not, . . . on the basis of disability . . . [a]fford a
qualified individual with a disability an opportunity to participate in or benefit from the [] service
that is not equal to that afforded others; [or] [p]rovide a qualified individual with a disability with
a[] service that is not as effective . . . as that provided to others . . . .”).

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2016) (citation omitted).5 “[T]he burden of establishing the reasonableness of an
accommodation is ‘not a heavy one’ . . . .” Id. (citing Henrietta D. v. Bloomberg,
331 F.3d 261, 280 (2nd Cir. 2003). Nevertheless, the ADA does not require public
entities to make modifications “that would impose an undue financial or
administrative burden . . . .” Lane, 541 U.S. at 532 (citing 28 C.F.R. §§ 35.50(a)(2),
(a)(3)). Determining whether a proposed modification is reasonable is a “factspecific” inquiry. Lamone, 813 F.3d at 508 (citation omitted).
The plaintiffs are correct that Alabama law does not expressly prohibit
curbside voting, 6 doc. 58 at 21, 49, and election officials in at least two counties
have expressed a willingness to undertake reasonable measures to implement
curbside voting if they are allowed to do so, see docs. 144-1 at 8-9; 162-1 at 8-9.
But, the defendants have presented evidence that curbside voting “would be
completely unfeasible for . . . any 2020 election.” Doc. 34-1 at 22. And, the probate
judges from Mobile and Lee Counties testified that it is not feasible to place a voting
machine outside, that the process for curbside voting “would take ten or fifteen

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See also 42 U.S.C. § 12131(2); Nat’l Assoc. of the Deaf v. Florida, 945 F.3d 1339, 1351 (11th
Cir. 2020) (citing Tennessee v. Lane, 541 U.S. 509, 532 (2004)).
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The plaintiffs suggest that an order mandating curbside voting is a reasonable accommodation.
See doc. 169 at 24-29. But, as stated previously, the plaintiffs only seek an order enjoining the
defendants from enforcing the ban, rather than an order mandating curbside voting. Doc. 75 at 78.
Moreover, Clay Helms, the Deputy Chief of Staff and the Director of Elections for the Alabama
Secretary of State’s Office, attests that “implementation of ‘curbside’ voting would be completely
unfeasible for . . . any 2020 election.” Doc. 34-1 at 22. At the very least, that testimony creates a
question of fact regarding if such a modification would be reasonable.

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minutes per voter and the traffic jams would be unimaginable,” and that they would
not implement curbside voting in their counties even if they were allowed to do so.
Doc. 210-3 at 27; 210-4 at 35. Finally, the State defendants contend that an order
allowing counties to implement curbside voting would increase the financial and
administrative burdens of ensuring that every county complies with all election laws.
Doc. 206 at 28.
Taken together and viewed in the light most favorable to them, the defendants’
evidence and contentions create a question of fact regarding whether an order
enjoining the ban on curbside voting would afford the plaintiffs the relief they seek
and whether the order may impose a burden on the State defendants. As a result, the
plaintiffs have not established as a matter of law that allowing curbside voting is a
reasonable modification.
III.
For the foregoing reasons, the plaintiffs’ motion for partial summary
judgment, doc. 169, is DENIED.
DONE the 8th day of September, 2020.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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