Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Plaintiffs-Appellants
Public Court Documents
May 18, 1983
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Brief Collection, LDF Court Filings. Greater Birmingham Ministries v. Alabama Secretary of State Brief for Plaintiffs-Appellants, 2018. fdf61021-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/32339fed-881e-41af-82ce-4aded8d5e648/greater-birmingham-ministries-v-alabama-secretary-of-state-brief-for-plaintiffs-appellants. Accessed August 19, 2025.
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No. 18-10151
Mtitizb States Court of Appeals
fo r the
iEleuentlj Circuit
GREATER BIRMINGHAM MINISTRIES, ALABAMA STATE
CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, GIOVANA AMBROSIO,
ELIZABETH WARE, SHAMEKA HARRIS,
Plaintiffs-Appellants,
' — v. -
SECRETARY OF STATE FOR THE STATE OF ALABAMA,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF
THE NORTHERN DISTRICT OF ALABAMA IN CASE NO. 2:15-CV-02193-LSC
(L. SCOTT COOGLER, U.S. DISTRICT JUDGE)
BRIEF FOR PLAINTIFFS-APPELLANTS
Sherrilyn A. Ifill
President & Director-Counsel
Janai S. N elson
Samuel Spital
Deuel Ross
Counsel o f Record
Natasha C. Merle
NAACP Legal Defense
and Educational Fund, Inc .
40 Rector Street, 5th Floor
New York, New York 10006
(212) 965-2200
dross@naacpldf.org
Joseph M itchell McGuire
McGuire & Associates
31 Clayton Street
Montgomery, Alabama 36104
(334) 517-1000
Coty R. Montag
Daniel Harawa
NAACP Legal Defense
and Educational Fund, Inc
1444 I Street NW
Washington, DC 20005
(202)682-1300
cmontag@naacpldf.org
Robert D. Fram*
Nathan E. Shafroth*
Covington & Burling LLP
One Front Street
San Francisco, California 94111
(415) 591-6000
rfram@cov.com
jmcguire@mandabusinesslaw.com
Attorneys for Plaintiffs-Appellants
(For Continuation o f Appearances See Inside Cover)
mailto:dross@naacpldf.org
mailto:cmontag@naacpldf.org
mailto:rfram@cov.com
mailto:jmcguire@mandabusinesslaw.com
Joanne B. Grossman*
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
j grossman@cov. com
Aaron Lewis*
Covington & Burling LLP
1999 Avenue of the Stars
Los Angeles, California 90067
(424)332-4800
alewis@cov.com
Attorneys for Plaintiffs-Appellants
* Not admitted to the Eleventh Circuit
mailto:alewis@cov.com
PLAINTIFFS-APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1 and this Court’s Local Rule
26.1-1, undersigned counsel for Plaintiffs-Appellants Greater Birmingham
Ministries (“GBM”), the Alabama State Conference of the National Association for
the Advancement of Colored People (“Alabama NAACP”), Giovana Ambrosio,
Shameka Harris and Elizabeth Ware make the following disclosures of interested
parties and corporate disclosure statement:
A. Interested Parties
1. Aden, Leah C. - Counsel for Plaintiffs-Appellants
2. Alabama Law Enforcement Agency, Former Defendant
3. Alabama Securities Commission, Counsel for the former Defendants
Governors Kay Ivey and Robert Bentley
4. Alabama State Conference of the National Association for the
Advancement of Colored People, Plaintiff-Appellant
5. Ambrosio, Giovana - Plaintiff-Appellant
6. Bentley, Robert J. - former Defendant in his official capacity as the
Governor of the State of Alabama
7. Buschell, Ryan M. - Counsel for Plaintiffs-Appellants
C-l of 6
8. Byrne, David B. Jr. - Counsel for the former Defendants Governors
Kay Ivey and Robert Bentley in their official capacity
9. Collier, Spencer - former Defendant-Appellee in his official capacity
as the Secretary of Law Enforcement of Alabama
10. Coogler, Hon. L. Scott - United States District Judge, Northern District
of Alabama
11. Covington & Burling LLP, Counsel for Plaintiffs-Appellants
12. Davis, James W. - Counsel for Defendant-Appellee
13. Douglas, Scott - Executive Director of Plaintiff-Appellant GBM
14. Drum, Starr Turner - Counsel for the former Defendants Governors
Kay Ivey and Robert Bentley in their official capacity
15. Escalona, Prim Formby - Counsel for the former Defendants
Governors Kay Ivey and Robert Bentley in their official capacity
16. Fram, Robert D. - Counsel for Plaintiffs-Appellants
17. Geise, John Michael - Counsel for Plaintiffs-Appellants
18. Gonzalez, Joshua A. - Counsel for Plaintiffs-Appellants
19. Greater Birmingham Ministries - Plaintiff-Appellant
20. Greenberg, Michael - former Counsel for Plaintiffs-Appellants
21. Grossman, Joanne B. - Counsel for Plaintiffs-Appellants
22. Harawa, Daniel - Counsel for Plaintiffs-Appellants
C-2 of 6
23. Harris, Shameka - Plaintiff-Appellant
24. Howell, Laura E. - Counsel for Defendant-Appellee
25. Huang, Sylvia - Counsel for Plaintiffs-Appellants
26. Ifill, Sherrilyn A. - Counsel for Plaintiffs-Appellants
27. Ivey, Kay E. - former Defendant in her official capacity as the
Governor of the State of Alabama
28. Johnson, Jr., Herman N. - former Counsel for Plaintiffs-Appellants
29. Laird, Richard J. Jr. - former Counsel for Defendant-Appellee
30. Lee, Wallace J. - former Counsel for Plaintiffs-Appellants
31. Lewis, Aaron - Counsel for Plaintiffs-Appellants
32. Mangan, Mary Kathryn - former Counsel for Defendant-Appellee
33. Marshall, Steven T. - Counsel for Defendant-Appel lee and former
Defendant in his official capacity as the Attorney General of Alabama
34. Maynard Cooper & Gale PC, Counsel for the former Defendants
Governors Kay E. Ivey and Robert J. Bentley in their official capacity
35. Maze, Corey L. - Counsel for Defendant-Appellee
36. McCollum, Carrie E. - Counsel for the former Defendants Governors
Kay Ivey and Robert Bentley in their official capacity
37. McGuire, Joseph Mitchell - Counsel for Plaintiffs-Appellants
38. Merle, Natasha C. - Counsel for Plaintiffs-Appellants
C-3 of 6
39. Merrill, John - Secretary of State for the State of Alabama, Defendant-
Appellee
40. Messick, Misty Shawn Fairbanks - Counsel for Defendant-Appellee
41. Montag, Coty R. - Counsel for Plaintiffs-Appellants
42. NAACP Legal Defense and Educational Fund, Inc., Counsel for
Plaintiffs-Appellants
43. Neiman, John C. Jr. - Counsel for the former Defendants Governors
Kay Ivey and Robert Bentley
44. Nelson, Janai S. - Counsel for Plaintiffs-Appellants
45. Oatis, Richard B. - Counsel for Plaintiffs-Appellants
46. Parker, William G. Jr. - Counsel for Defendant-Appellee
47. Prakash, Swati R. - Counsel for Plaintiffs-Appellants
48. Reese, Elizabeth - former Counsel for Plaintiffs-Appellants
49. Robinson, Michael W. - Counsel for former Defendant Stan Stabler
50. Ross, Deuel - Counsel for Plaintiffs-Appellants
51. Shafroth, Nathan E. - Counsel for Plaintiffs-Appellants
52. Silvers, Debra - former Plaintiff-Appellant
53. Simelton, Benard - President of Plaintiff-Appellant Alabama NAACP
54. Sinclair, Winfield J. - Counsel for Defendant-Appellee
55. Smith, James McCall - Counsel for Plaintiffs-Appellants
C-4 of 6
56. Spital, Samuel - Counsel for Plaintiffs-Appellants
57. Stabler, Stan - former Defendant-Appellee in his official capacity as
the Secretary of Law Enforcement of Alabama
58. Still, W. Edward - former Counsel for Plaintiffs-Appellants
59. Strange, Luther - former Counsel for Defendant-Appellee and former
Defendant in his official capacity as the Attorney General of Alabama
60. Swams, Christina - former Counsel for Plaintiffs-Appellants
61. Tolbert, Corrinda - former Plaintiff-Appellant
62. Ware, Elizabeth - Plaintiff-Appellant
63. Wilberforce, Nana - Counsel for Plaintiffs-Appellants
64. Williams, Edna - former Plaintiff-Appellant
65. Wu, Victorien - former Counsel for Plaintiffs-Appellants
66. Yangy, Xiyun - former Counsel for Plaintiffs-Appellants
67. Zaragoza, Liliana - former Counsel for Plaintiffs-Appellants
C-5 of 6
B. Corporate Disclosure Statement
Counsel for the Appellees further certify that no publicly traded company or
corporation has an interest in the outcome of this case or appeal.
C-6 of 6
STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-Appellants, pursuant to Federal Rule of Appellate Procedure 34 and
Eleventh Circuit Rules 34-3(c) and 34-4, respectfully request oral argument. This
case presents important legal and factual issues relating to the fundamental right to
vote, the Fourteenth and Fifteenth Amendments to the United States Constitution,
and the Voting Rights Act of 1965. Oral argument will assist this Court to analyze
the complex record and to resolve these important constitutional and legal issues.
i
TABLE OF CONTENTS
PLAINTIFFS-APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT.... ..................... C-l
STATEMENT REGARDING ORAL ARGUMENT................................. i
TABLE OF CONTENTS............................................................ ii
TABLE OF AUTHORITIES..................................................................... v
STATEMENT OF JURISDICTION.................. 1
STATEMENT OF THE ISSUES.................................................................................... 1
STATEMENT OF THE CASE.................................................................................. .....2
STANDARD OF REVIEW........................................................... 7
SUMMARY OF ARGUMENT..... ................................................................................ 8
ARGUMENT.................................................................................................................. 10
I. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER HB19
VIOLATES SECTION 2 OF THE VRA.......................................................... 10
A. The District Court Imposed Improper Legal Standards that are
Inconsistent with Section 2 and this Court’s Precedent...................... .13
1. Section 2 Is Not Merely An “Equal Treatment”
Requirement....................................................................................13
2. The District Court Improperly Limited Section 2 to Cases
Involving the Complete Prevention of Voting............................16
B. The Court Improperly Dismissed Plaintiffs’ Significant
Evidence Establishing a Triable Issue of Fact on their Results-
Test Claim..................................................................................................17
n
1. Undisputed Disparate ID Possession Rates Supported
Plaintiffs’ Section 2 Claim............................................................ 18
2. The Evidence of Disparate Burdens Supported Plaintiffs’
Section 2 Claim........... ......................... ..20
C. The Secretary’s Allegedly Ameliorative Steps Cannot, on
Summary Judgment, Be Deemed Per Se Sufficient to Eliminate
HB19’s Discriminatory Effect..... ................................................ 23
1. The Alabama Voter Card..............................................................23
2. The Mobile Unit and Potential Home Visit Program............... 24
D. Section 2 Does Not Require Proof of Declines in Minority
Turnout or Proof That Minorities Are Prevented from Voting,
but Plaintiffs Proved That As Well.........................................................26
E. The District Court Improperly Ignored the Senate Factors-
Based Evidence......................................................................................... 27
F. The District Court Erred in Crediting Pretextual Justifications
for HB19.................................................................................................... 30
G. The Court Ignored the Prevalence of Less Discriminatory
Alternatives.......................................................................... 32
II. THE DISTRICT COURT IMPROPERLY IGNORED MATERIAL FACTS
DEMONSTRATING THAT HB19 WAS ENACTED FOR A
DISCRIMINATORY PURPOSE, THEREBY REQUIRING A TRIAL ON
PLAINTIFFS’ CONSTITUTIONAL CLAIMS...............................................33
A. The District Court Committed Errors of Law in Concluding that
There was Insufficient Evidence of a Discriminatory Effect.............. 35
B. The District Court Erred in Failing to Conduct a Fact Intensive
Analysis of Plaintiffs’ Evidence of the Arlington Heights
Factors........................................................................................................37
in
1. The Legislators Who Enacted HB19 Made
Contemporaneous Statements Revealing an Intent to
Discriminate Against Black and Latino Voters and
Passed Other Discriminatory Voting Laws.................... 38
2. Plaintiffs Offered Detailed Circumstantial Evidence of
Intent................................................................................................43
III. THE POSITIVELY IDENTIFY PROVISION IS A “TEST OR DEVICE”
FORBIDDEN BY SECTION 201 OF THE V R A ........... .............. ................46
A. Text and Precedent Establish that the Secretary’s Interpretation
of the PIP is a Prohibited Test or Device Because It Is a
“Requirement” For Voters Without HB19 ID..... .................................48
B. A Prohibited “Test or Device” Cannot Be Used in a Proper
Manner....................................................................................................... 51
C. The Proper Remedy: An Alternate Interpretation of the PIP.............. 52
CONCLUSION...............................................................................................................52
CERTIFICATE OF COMPLIANCE................................ ...54
CERTIFICATE OF SERVICE..................................................................................... 55
IV
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Legislative Black Caucus v. Alabama,
231 F. Supp. 3d 1026 (M.D. Ala. 2017)......................................................... .......41
Arcia v. Fla. Sec V o f State,
772 F.3d 1335 (11th Cir. 2014).............................................................................. 48
Ball v. James,
451 U.S. 355 (1981)..................................................................................................49
Burton v. City o f Belle Glade,
178 F.3d 1175 (11th Cir. 1999)................................................................. 11, 13,27
Carrollton Branch ofNAACP v. Stallings,
829 F.2d 1547 (11th Cir. 1987).............................................................................40
Cent. Ala. Fair Hous. Ctr. v. Magee,
835 F. Supp. 2d 1165 (M.D. Ala. 2011), vacated as moot No. 11-
16114-CC, 2013 WL 2372302 (11th Cir. May 17, 2013)....................................41
Charles H. Wesley Educ. Found., Inc. v. Cox,
408 F. 3d 1349 (11th Cir. 2005)............................................................................. 17
Chisom v. Roemer,
501 U.S. 380 (1991)...................................................................................... ....15, 16
Church o f Scientology Flag Serv. Org. v. City o f Clearwater,
2 F.3d 1514 (11th Cir. 1993).................................................................................33
Cooper v. Harris,
137 S. Ct. 1455 (2017)...................................................................... ...................... 40
Crawford v. Marion County Election Board,
533 U.S. 181 (2008)...........................................................................................30,36
Davis v. Zant,
721 F.2d 1478 (11th Cir. 1983), a ff’d in relevant part 752 F.2d
1515 (11th Cir. 1985) (enbanc)............................................................................. 28
v
Ferr ill v. Parker Grp., Inc.,
168 F.3d 468 (11th Cir. 1999)........................................................... .....................34
Frank v. Walker,
819 F.3d 384 (7th Cir. 2016)........................................................................... .19, 33
Frank v. Walker,
768 F.3d 744 (7th Cir. 2014)...................................................................................14
Ga. State Conference ofNAACP v. Fayette Cty. Bd. o f Comm ’rs,
775 F.3d 1336 (11th Cir. 2015)............................................................. 8, 10, 11, 15
Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011).............................................................................. 31
Gomillion v. Lightfoot,
364 U.S. 339 (1960)................................................................................................ .20
Hispanic Interest Coal, o f Ala. v. Gov. o f Ala.,
691 F.3d 1236 (11th Cir. 2012)....... ...................................................................... 41
Huntv. Cromartie,
526 U.S. 541 (1999)....................................................................................................8
*Hunter v. Underwood,
471 U.S. 222 (1985).....................................................................................33 ,36,37
Jean v. Nelson,
711 F.2d 1455 (11th Cir. 1983)........................................................................38,43
Keyes v. Sch. Dist. No. 1,
413 U.S. 189(1973)....................... 42
Kirksey v. Bd. o f Supervisors,
554 F.2d 139 (5th Cir. 1977) (en banc)................................................................. 22
Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969)..................................................................................................49
*League o f Women Voters ofN.C. v. North Carolina,
769 F.3d 224 (4th Cir. 2014).......................................................................... .passim
vi
Lewis v. City o f Union City,
877 F.3d 1000 (11th Cir. 2017)................ ..............................................................38
Major v. Treen,
574 F. Supp. 325 (E.D. La. 1983)), aff’d in part, rev’d in part, 830
F.3d 2 1 6 ............................................................................ 22
Meek v. Metro. Dade Cty.,
985 F.2d 1471 (11th Cir. 1993).............................................................................. 42
Mich. State A. Philip Randolph Inst. v. Johnson,
833 F.3d 656 (6th Cir. 2016)................................................................... .............. 17
Miller-El v. Dretke,
545 U.S.231 (2005).................................................................. 39
Miss. State Chapter, Operation Push, Inc. v. Mabus,
932 F.2d 400 (5th Cir. 1991).................................................................................. 14
Morse v. Republican Party ofVa.,
517 U.S. 186(1996)...... 16
*Y.C. State Conference of'NAACPv. McCrory,
831 F.3d 204 (4th Cir. 2016)....... ...................................... ........................... .passim
Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009)..................................................................................................51
Oregon v. Mitchell,
400 US 112 (1970).................................................... 52
Palmer v. Thompson,
403 U.S. 217(1971)..................................................................................................33
Peightal v. Metro. Dade Cty.,
26 F.3d 1545 (11th Cir. 1994)............................................... ................................ 19
Powers v. Ala. D ep’t o f Educ.,
854 F.2d 1285 (11th Cir. 1988)..............................................................................19
Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227 (11th Cir. 2016)............................................................................. .40
vii
Reno v. Bossier Par. Sch. Bd.,
528 U.S. 320 (2000)............... ...............................................................16, 36, 49, 50
Rogers v. Lodge,
458 U.S. 613 (1982)................................................................................................. 38
Schwierv. Cox,
340 F.3d 1284 (11th Cir. 2003)................................................................................ 7
Schwier v. Cox,
439 F.3d 1285 (11th Cir. 2006).............................................................................. 47
Shelby County v. Holder,
570 U.S. 529 (2013).......................................................................................4, 44, 46
South Carolina v. Katzenbach,
383 U.S. 301 (1966)........................................................................................... 49, 50
*Stoutv. Jefferson Cty. Bd. ofEduc.,
No. 17-12338, 2018 WL 827855 (11th Cir. Feb. 13, 2018)................... 34, 40, 42
Teague v. Attala Cty.,
92 F.3d 283 (5th Cir. 1996).....................................................................................22
Thornburg v. Gingles,
478 U.S. 30 (1986).......................................................................................... ..passim
*Underwood v. Hunter,
730 F.2d 614 (11th Cir. 1984)................................................................... 16, 20,31
United States v. Atkins,
323 F.2d 733 (5th Cir. 1963)...................................................................................52
United States v. Bd. o f Comm ’rs o f Sheffield,
435 U.S. 110(1978)..................................................................................................47
United States v. Clement,
231 F. Supp. 913 (W.D. La. 1964), rev ’d as to remedy, 358 F.2d
89 (5th Cir. 1966)............................................................................................... 48,49
*United States v. Dallas County,
739 F.2d 1529 (11th Cir. 1984)...........................................................15, 17, 24, 34
viii
*United States v. Marengo Cty. Comm ’n,
731 F.2d 1546 (11th Cir. 1984).................................... ................................ .passim
United States v. McGregor,
824 F. Supp. 2d 1339 (M.D. Ala. 2011)................................................................ 43
United States v. Ward,
352 F.2d 329 (5th Cir. 1965).................................... ............................................. 49
*Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) (en banc)....................................................... .passim
Veasey v. Perry,
71 F. Supp. 3d 627 (S.D. Tex. 2014)......................................................................22
Vill. o f Arlington Heights v. Metro. Hons. Dev. Corp.,
429 U.S. 252 (1977)........................................................................................ .passim
Wliite v. Regester,
412 U.S. 755 (1973)................................................................................................. 23
Wright v. Sumter Cty. Bd. o f Elections & Registration,
657 F. App’x 871 (11th Cir. 2016)............................................................ ............ 11
Wyche v. Madison Par. Police Jury/,
” 635 F.2d 1151 (5th Cir. 1981).’............................................................................... 44
Young Apartments, Inc. v. Town o f Jupiter,
529 F.3d 1027 (11th Cir. 2008).............................................................................. 34
Statutes
28 U.S.C. § 1291.............................................................................................................. 1
52 U.S.C. § 10301(a)........................................................................................12, 16, 20
52 U.S.C. § 10303(a)(1)................................................................................................47
52 U.S.C. § 10310(c)(1)................................................................... 48
52 U.S.C. § 10501................................................................................................... 47,48
Ala. Code § 17-9-30 (House Bill 19 of 2011)...... .passim
IX
Other Authorities
House Bill 56 of 2011....................................................................................................40
Fed. R. Civ. P. 56 ............................. ............................................ ........................ 7, 9, 11
x
STATEMENT OF JURISDICTION
This case involves Plaintiffs-Appellants’ challenge under the Voting Rights
Act of 1965 (“VRA”), 52 U.S.C. §§ 10301, 10501, and the Fourteenth and Fifteenth
Amendments of the United States Constitution to Alabama’s photo voter ID law,
House Bill 19 of 2011, codified at Ala. Code § 17-9-30 (“HB19”). The District Court
granted summary judgment in favor of the Defendant Alabama Secretary of State
(the “Secretary”) on all claims on January 10, 2018. Plaintiffs filed a timely notice
of appeal on January 12, 2018. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the District Court erred in granting summary judgment to the
Secretary where Plaintiffs presented triable disputes of material fact as to whether
HB19 violates Section 2 of the VRA.
2. Whether the District Court erred in granting summary judgment to the
Secretary where Plaintiffs presented triable disputes of material fact as to: (a)
whether HB19 has a discriminatory result in violation of Section 2 of the VRA; and
(b) whether HB 19 was adopted, at least in part, for a racially discriminatory purpose
in violation of the Constitution.
3. Whether the District Court erred in denying Plaintiffs’ motion for summary
judgment and in granting summary judgment to the Secretary where the undisputed
facts demonstrated that the Secretary’s interpretation of the Positively Identify
1
Provision in HB19 is a prohibited “test or device” in violation of Sections 201 of the
VRA.
STATEMENT OF THE CASE
Efforts to pass a law requiring photo ID to vote began in the Alabama
Legislature in the late 1980s, at the height of the selective prosecutions of Black civil
rights activists. DE255 at 12 2 .1 These efforts intensified in the mid-1990s and
corresponded with the initial enforcement of the National Voter Registration Act
(“NVRA”) in 1995, which was designed to increase voter registration by, inter alia,
requiring states to register people to vote at motor vehicle and public welfare
agencies. Id. at 12-13 If 3. The NVRA led to a significant increase in Black voter
registration in Alabama. Id.
In the wake of the NVRA, numerous white elected officials openly tied the
increase in Black registrants to the need for a photo ID law. Id. The stated
justification for such a law was to “close a potential loophole” that might permit
voter fraud. Id. at 13-141 4. Evidence of voter impersonation fraud in Alabama as a
meaningful problem was never presented to support such concerns. Id. at 77-78 *}f
105-08. Instead, to the extent voter fraud does exist, it concerns absentee voter fraud,
which HB19 is ineffective at preventing. Id. at 78-80 109-18.
1 References to the district court record are by docket entry (“DE”) followed by the
relevant docket entry number.
2
While there is little evidence of voter impersonation, there is ample evidence
that HB19 was purposefully passed to harm voters of color. As the District Court
stated, “[bjetween 1995 and 2011, Black legislators and other individuals in
Alabama argued at length about how requiring photo ID would disfranchise voters
who lack access to vehicles and specifically about the anticipated effect of such
requirements on Black voters.” DE267 at 7. Senator Larry Dixon, the chief sponsor
of photo ID bills between 1995 and 2010, recognized as much. He publicly stated
that the lack of a photo ID law was “beneficial to the Black power structure.” DE266
1 272.
On June 9,2011, Alabama finally succeeded in passing a photo ID law, HB 19.
Sponsors of HB19 had contemporaneously called Black voters “illiterates” and
“aborigines,” made public speeches expressing antipathy towards Latino
Alabamians, and explicitly tied their political fortunes to manipulating state laws to
control the electorate’s racial makeup. DE255 at 51-52 1}H 13-14; at 55-56 fH 27-28;
at 57 til 34-35.
Every voting Black legislator opposed HB19. Id. at 70-72 t t 81, 84.
In the House, when Black legislators asked for evidence of voter fraud that
would be prevented by HB19, its sponsors were silent. Id. at 76-77 1f 104.
For its part, the Senate literally prevented the Black Caucus from speaking out
against the bill by denying them access to the microphone, invoking cloture, and
3
limiting debate to just 20 minutes. Id. at 71-72 t 84. The Black Caucus was not
allowed to present amendments that would have mitigated HB19’s adverse racial
impact. Id. at 71 t 82.
Nor were these the only departures from the ordinary process. Even though
enacted in 2011, HB19 was not scheduled to go into effect until June 2014. Id. at 72
t 86. The Legislature incorporated this provision because it anticipated a “lengthy
court battle” with the U.S. Department of Justice (DOJ) over whether HB19 would
survive preclearance under Section 5 of the VRA, which prohibited Alabama from
enacting laws that worsened the position of voters of color. Id.
But Alabama did not submit HB19 for preclearance. Id. at 73-74 t t 92-95.
Instead, Alabama did nothing until June 25, 2013, when the U.S. Supreme Court
issued its opinion in Shelby County v. Holder, 570 U.S. 529 (2013), suspending
preclearance. One day later, the Secretary announced that HB19 would be
implemented immediately through the issuance of proposed administrative rules.
DE266 I t 328-31.
As expected, HB19 has a disparate impact. Expert evidence shows that
between about 50,000 and 118,000 Alabamian registered voters either lack any form
of the photo ID required by HB19 (“HB19 ID”) or lack a “useable ID.” DE267 at 46
& n.5. Using the higher figure, 3.33% of white voters, 5.49% of Black voters, and
6.98% of Latino voters lack a useable ID. DE255 at 98-991 15. Even using the lower
4
figure, Black and Latino voters are about twice as likely as white voters to lack any
HB19 ID. DE267 at 47. Further, tens of thousands of voters of color confront the
real burdens of poverty, travel, and other impediments that keep them from obtaining
HB19 ID. See, e .g , id. at 36-38.
This suit was filed on December 2, 2015, by Greater Birmingham Ministries,
the Alabama NAACP, and four individual Plaintiffs. All of the Plaintiffs were unable
to vote on one or more occasions because they lacked HB19 ID, faced burdens
related to poverty, access to transportation, health, or childcare that prevented them
from obtaining such ID, and did not personally know two of their poll workers.
DE255 at 103 f 39. Even when Plaintiffs and witnesses were able to overcome such
burdens to reach ID-issuing offices, election officials still refused to issue them a
voter ID card. For example, Plaintiff Elizabeth Ware overcame her significant health
and travel burdens to go to the registrar’s office, only for the registrar to refuse to
provide her with a voter ID card because she previously possessed a driver’s license,
but had since lost it. DE266 ^ 53.
The District Court denied Plaintiffs’ motion for preliminary injunction on
their claim that HB19’s “Positively Identify Provision”— which as interpreted by the
Secretary requires two poll workers to vouch for a voter who lacks HB19 ID—
violates the prohibition on “tests or devices” of Section 201. DE23. The court later
granted motions to dismiss as to certain Defendants, but it denied the Secretary’s
5
motion to dismiss. D EI57. The court recognized that Plaintiffs had stated a claim
for relief under the Constitution and Section 2, specifically explaining that “Plaintiffs
have plausibly pled circumstantial evidence of [discriminatory] intent” on behalf of
the Legislature. D EI65 at 13.
Following discovery, including extensive expert analyses, the court granted
summary judgment for the Secretary on January 10, 2018. DE268.
While the District Court’s opinion acknowledged much of the above-
described evidence of discriminatory intent, the court nonetheless concluded that it
was “not necessary” to address whether Plaintiffs had presented a triable issue of
discriminatory intent. DE267 at 42-46. The court rested this determination on its
view that HB19 “does not in fact discriminate on the basis of race.” Id. at 45-46
(emphasis in original).
The court reached this conclusion even though it acknowledged Plaintiffs’
evidence that “Black and Latino registered voters are almost twice as likely as white
voters to lack an acceptable photo ID for voting.” Id. at 47. The court further
acknowledged that the Secretary’s expert found similar racial disparities as to HB19
ID possession rates. Id. But, the court dismissed this evidence as irrelevant because,
in its view, “it is so easy to get a photo ID in Alabama,” that “no one is prevented
from voting.” Id. at 48.
6
The District Court made these factual findings even though the case was being
adjudicated at summary judgment, and even though Plaintiffs presented substantial
evidence about the barriers that Black and Latino voters disproportionately face in
obtaining HB19 ID. The court concluded that the mere potential for a home visit by
an ID-issuing “mobile unit” might overcome the very real burdens faced by
thousands of voters. The court reached this conclusion, without a trial, by crediting
the speculative assertions of the Secretary about the availability of HB19 ID and
ignoring that there have been only five home visits since HB19’s enactment. DE224-
11 at 69.
Based on this same reasoning, the District Court also concluded that HB19
does not violate Section 2 ’s results test. DE267 at 60-69.
Finally, the District Court concluded that, although the Secretary interprets
the Positively Identify Provision as a voucher test, that interpretation does not violate
Section 201. According to the court, the Provision is not a “requirement,” but rather
a “failsafe” that permits some people to vote and that, in any event, voters without
HB19 ID have options for obtaining such ID. Id. at 66-67.
STANDARD OF REVIEW
This Court reviews the grant of summary judgment de novo. Schwier v. Cox,
340 F.3d 1284, 1287 (11th Cir. 2003). Any dispute of material fact is sufficient for
reversal. Id. This is because, under Rule 56(a), a “basic requirement for summary
7
judgment is that ‘there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”’ Ga. State Conference o f NAACP v.
Fayette Cty. Bd. o f Comm’rs, 775 F.3d 1336, 1343 (11th Cir. 2015) (“Fayette”)
(quoting Fed. R. Civ. P. 56(a)). Courts must not weigh conflicting evidence, find
facts, or make credibility determinations, and “must construe the facts and draw all
rational inferences therefrom in the manner most favorable to the nonmoving party.”
Id.
Summary judgment is generally inappropriate in intentional discrimination
cases because the “legislature’s motivation is itself a factual question,” Hunt v.
Cromartie, 526 U.S. 541, 549 (1999), and in Section 2 cases “due to the fact-driven
nature of the legal tests required by the Supreme Court and our precedent.” Fayette,
775 F.3d at 1348.
SUMMARY OF ARGUMENT
Like most voting rights cases, this case requires a trial. Plaintiffs presented
substantial evidence that FIB 19 was motivated by racial discrimination, including
overtly prejudiced statements by legislators, dramatic departures from the ordinary
legislative process, an anticipated racially discriminatory impact, and the lack of any
evidence to support the stated justification for the law. It is uncontested that Black
and Latino Alabamians are significantly less likely than whites to possess HB19 ID,
and Plaintiffs also presented evidence that they disproportionately face travel and
8
financial burdens to obtain HB19 ID. Under these circumstances, a reasonable
factfinder could conclude that HB19 violates both Section 2 and the Constitution.
The District Court, however, found that the disparate burdens imposed on
Black and Latino voters did not matter under Section 2 because it found, without a
trial, that it was not difficult for any voter to obtain HB19 ID. For example, the court
assumed that the possibility of a home visit by an ID-issuing mobi le unit would erase
the very real burdens faced by thousands of voters. But, there have been a total of
five such home visits and such visits began only after the filing of this lawsuit. The
court could only make such factual findings by crediting the Secretary’s evidence,
disregarding Plaintiffs’ contrary evidence, and drawing contested inferences in the
Secretary’s favor. That is not appropriate at summary judgment. Further, the court
erred as a matter o f law by misinterpreting Section 2 as limited to whether all voters
have the same procedural opportunities to vote, by ignoring that Section 2 bars any
“abridgement” of the right to vote (and not merely vote “denial”), and by failing
even to consider the well-established “totality of the circumstances” test.
The District Court compounded its errors by granting summary judgment on
Plaintiffs’ constitutional claims even though it acknowledged much of Plaintiffs’
powerful evidence of discriminatory intent. The court concluded that this evidence
did not need to be considered because, in its view, HB19 did not prevent anyone
from voting. Flere, the court not only disregarded Plaintiffs’ evidence in violation of
9
Rule 56, it misapplied foundational principles of constitutional law. HB19
purposefully imposes disproportionate burdens on Black and Latino voters because
they disproportionately lack HB19 ID. That impact, in and of itself, means that HB19
cannot stand if it is intentionally discriminatory regardless of whether Black and
Latino voters can successfully overcome the burdens imposed on them. For example,
a law designed to make Black voters wait longer in line than whites would be
unconstitutional even if every Black voter persevered and voted anyway.
Finally, the District Court erred in holding that the Positively Identify
Provision (“PIP”) of HB19 did not constitute an illegal “test or device” under Section
201. Not only is the PIP precisely the sort of test or device that this Court, Congress,
and the DOJ have held are subject to Section 201’s per se ban, but it is
unquestionably an arbitrary and racially discriminatory prerequisite for thousands of
Alabamian voters.
ARGUMENT
I. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER HB19
VIOLATES SECTION 2 OF THE VRA.
To establish a Section 2 violation, Plaintiffs “must prove that [HB19] results
in a discriminatory effect.” Fayette, 775 F.3d at 1342. “A discriminatory result is all
that is required; discriminatory intent is not necessary.” Id.
Here, Plaintiffs presented evidence that voters of color are significantly less
likely than whites to have HB19 ID, and that voters of color face disproportionate
10
burdens to obtain such ID compared to whites. Plaintiffs also presented evidence
that the justification for HB19 is tenuous because there is no evidence that voter
impersonation fraud has ever been a meaningful problem in Alabama, or that HB19
addresses absentee voter fraud. Thus, Plaintiffs presented material facts justifying a
trial as to whether, under the totality of the circumstances, HB19 results in the
impermissible denial or abridgment of the right to vote on account of race. Burton
v. City o f Belle Glade, 178 F.3d 1175, 1198 (11th Cir. 1999).
In reaching a contrary result on summary judgment, the District Court made
several legal errors and failed to adhere to Rule 56 by prematurely resolving material
factual disputes in favor of the Secretary. Any of these errors is a sufficient basis for
reversal. See Wright v. Sumter Cty. Bd. o f Elections & Registration, 657 F. App’x
871, 872 (11th Cir. 2016) (reversing summary judgment where the District Court
ignored parts of the plaintiffs’ expert’s analysis); Fayette, 775 F.3d at 1347-48
(same, where the court rejected the conclusions of one party’s expert in favor of the
other’s expert).
First, the District Court incorrectly read Section 2 as an “equal treatment” test,
reasoning that, so long as voters all have the same procedural opportunities to obtain
ID, then HB19 has no discriminatory result. DE267 at 58-63. That is not the law.
Such a test is inconsistent with this Court’s precedent and the very purpose of
Section 2.
11
Second, the District Court incorrectly limited Section 2 to cases where a voter
is completely prevented from voting, stating “there cannot be a discriminatory
impact on voting when the law does not prevent anyone from voting.” DE267 at 63
(emphasis added). Section 2, however, prohibits laws that result in the “denial or
abridgement” of the right to vote. 52 U.S.C. § 10301(a) (emphasis added). A photo
ID law that “causes a racial disparity in voter ID possession falls comfortably within”
the VRA’s definition of “abridgment.” Veasey v. Abbott, 830 F.3d 216, 259-60 (5th
Cir. 2016) (en banc).
Third, the District Court’s misunderstanding of Section 2 led it to disregard
Plaintiffs’ evidence that voters of color are significantly more likely to lack HB19
ID, and to lack access to cars or the other material resources needed to obtain ID.
DE267 at 63. Contrary to the court’s dismissal of such burdens as mere
“inconveniences,” Id. at 49, the evidence overwhelmingly shows that there is a
triable issue of fact as to whether HB19 has a discriminatory effect.
Fourth, the District Court erred by crediting the ameliorative measures, such
as the potential home visit program, that the Secretary has promised are sufficient to
overcome these discriminatory burdens. Id. at 51. His promises are speculative and
the court should not have made important credibility determinations in favor of the
Secretary at summary judgment.
12
Fifth, the court erred in failing to consider the “Senate Factors” to analyze
HB19’s impact. Burton, 178 F.3d at 1198-99 & n.20. Those factors overwhelming
favor Plaintiffs, and established a triable issue as to whether HB19 violates Section
2. League o f Women Voters ofN.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014) (“LW VNC ’).
A. The District Court Imposed Improper Legal Standards that are
Inconsistent with Section 2 and this Court’s Precedent.
1. Section 2 Is Not Merely An “Equal Treatment”
Requirement.
The District Court mischaracterized the inquiry required by Section 2 as
limited to determining whether minority and white voters have the same procedural
opportunities to obtain HB19 ID. See DE267 at 63 (concluding that all voters “have
the same opportunity to get to a registrar’s office, and to the extent there is a
difference in convenience, they have the same opportunity to request a home visit”).
Based on this false premise, the court dismissed Plaintiffs’ evidence showing that
voters of color disproportionately lack HB19 ID as not “[t]he issue.” Id. at 62.
Similarly, the court disregarded the evidence that voters of color disproportionately
face burdens in obtaining HB19 IDs; instead concluded that poor Black and poor
white voters have the same procedural options to obtain an HB19. Id. at 63.
The District Court erred as a matter of law. By its nature, a “results” test may
be violated even when the same procedures are applied to all persons. See, e.g.,
13
LWVNC, 769 F.3d at 244-47 (elimination and reduction of certain voting tools that
applied to all voters); Miss. State Chapter, Operation Push, Inc. v. Mabns, 932 F.2d
400, 412 (5th Cir. 1991) (dual registration requirement for all registrants). “[E]ven
a consistently applied practice premised on a racially neutral policy would not negate
a plaintiffs showing through other factors that the challenged practice denies
minorities fair access to the process.” United States v. Marengo Cty. Comm’n, 731
F.2d 1546, 1567-71 (11th Cir. 1984) (“Marengo”) (citation omitted). When facially
neutral procedures “interact[] with social and historical conditions” to
disproportionately burden voters of color, then the “result” is voting discrimination
within the meaning of Section 2. Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
In reaching a contrary conclusion, the District Court relied on a Seventh
Circuit decision, which erroneously treats Section 2 as limited to “an equal-treatment
requirement.” See DE267 at 62 (quoting Frank v. Walker, 768 F.3d 744, 753-54 (7th
Cir. 2014) (“Frank F)). The Seventh Circuit’s reasoning contravenes the law of this
Circuit and the VRA’s clear language.
In Marengo, this Court held that a registrar’s short office hours and
inconvenient location had a discriminatory effect because these procedures “made it
harder for unregistered voters, more of whom are black than white, to register. By
meeting only in [the county seat, the registrar] was less accessible to eligible rural
voters, who were more black than white.” 731 F.2d at 1570. It did not matter that all
14
voters had the same procedural opportunities to vote, because those procedures
disproportionately burdened Black voters. Id.
In United States v. Dallas County, this Court again expressly rejected a
District Court’s finding that “inconvenient location and hours of registration” were
“reasonable and . . . affected blacks and whites equally.” 739 F.2d 1529, 1538 (11th
Cir. 1984) (“Dallas”) (citations omitted). Rather, this Court explained that, “[wjhile
being open during the day may seem reasonable on first consideration, the evidence
indicate[d] that such hours are inconvenient to those who work, especially those who
work in the rural areas of the county.” Id. Such burdens had a discriminatory effect,
even where there was “substantial equality in voter registration of blacks and
whites.” Id. at 1537; see also Chisom v. Roemer, 501 U.S. 380, 408 (1991) (Scalia,
J., dissenting) (recognizing that Section 2 could be violated if “a county permitted
voter registration for only three hours one day a week, and that made it more difficult
for blacks to register than whites”).
An equal-treatment test asks the wrong question because it focuses solely on
whether a law on its face treats minorities and whites differently. But, under Section
2, a “discriminatory result is all that is required.” Fayette, 775 F.3d at 1342. This is
because the VRA was enacted to reach laws whereby states would “resort to facially
neutral ‘tests that took advantage of differing social conditions. Property tests,
literacy tests, residence requirements, the poll tax, and disqualification for
15
conviction of certain crimes all fell into this category.’” Underwood v. Hunter, 730
F.2d 614, 619 (11th Cir. 1984) (citation omitted).
2. The District Court Improperly Limited Section 2 to Cases
Involving the Complete Prevention of Voting.
The District Court further erred in its understanding of Section 2 and the
Constitution by stating that “there cannot be a discriminatory impact on voting when
the law does not prevent anyone from voting.” DE267 at 63 (emphasis added). But,
“both the Fifteenth Amendment and Section 2 also explicitly prohibit abridgement
of the right to vote.” Veasey, 830 F.3d at 253 (emphasis added) (citing U.S. CONST,
amend. XV, 52 U.S.C. § 10301(a)). The “core meaning” of “abridge” is to “shorten.”
Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 333-34 (2000). Federal law prohibits
all manner of discrimination, not solely laws that “prevent” minorities from voting:
“nothing in Section 2 requires a showing that voters cannot register or vote under
any circumstance.” LWVNC, 769 F.3d at 243. And “[a]ny abridgment of the
opportunity of members of a protected class to participate in the political process
inevitably impairs their ability to influence the outcome of an election.” Chisom, 501
U.S. at 397.
Therefore, policies that do not prevent people from voting, but that make
voting harder for minorities to participate in the political process, may “abridge”
their rights. N.C. State Conference ofNAACP v. McCrory, 831 F.3d 204, 233 (4th
Cir. 2016) (“McCrory”); see, e.g., Morse v. Republican Party o fV a ., 517 U.S. 186,
16
191, 206-07 (1996) (payment of a fee even where it could be waived); Mich. State
A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 666 (6th Cir. 2016) (abolition of
straight-ticket voting); Marengo, 731 F.2d at 1570 (time and place of registration
and lack of Black poll officials); Dallas, 739 F.2d at 1538 (same); cf. also Charles
H. Wesley Educ. Found., Inc. v. Cox, 408 F. 3d 1349, 1352 (11th Cir. 2005) (“A
plaintiff need not have the franchise wholly denied to suffer inj ury.”).
A finding that FIB 19 “abridges” the right to vote “falls comfortably within”
this schema. Veasey, 830 F.3d at 260. This is true even if some voters can overcome
the burden of obtaining HB19 ID. See id. at 260 n.58 (“some people paid the poll
tax or passed the literacy test and therefore voted, but their rights were still
abridged”).
B. The Court Improperly Dismissed Plaintiffs’ Significant Evidence
Establishing a Triable Issue of Fact on their Results-Test Claim.
Because it mischaracterized Section 2, the District Court failed to consider the
overwhelming evidence that HB19 has a discriminatory effect. That effect begins
with the significant racial disparities in FIB 19 ID possession rates, but it does not
end there. A range of other evidence shows that voters of color disproportionately
face greater travel, financial, and other socioeconomic burdens to obtaining FIB 19
ID than whites. This evidence creates a triable dispute as to whether HB19 violates
Section 2.
17
1. Undisputed Disparate ID Possession Rates Supported
Plaintiffs’ Section 2 Claim.
Plaintiffs’ expert estimated that 50,106 registered Alabamian voters do not
possess any HB19 ID, and that another 68,000 voters possess HB19 IDs containing
such material discrepancies (between the name or other information on the voter roll
and that on the ID) that the ID could not reasonably be used at the polls. DE255 at
135; DE266 ^ 342. Consequently, there are a total of over 118,000 voters who either
lack any HB19 ID or lack a “useable ID.”2 DE255 at 98 113; DE266 at 136-37.
The District Court acknowledged this evidence. DE267 at 46 & n.5. Yet,
focusing solely on the 50,000 voters who lacked any HB19 ID, the court stated that
the “discrepancy in photo ID possession rates among white, Black, and Hispanic
registered voters in Alabama is miniscule.” DE267 at 47.
In fact, under either measure, the disparities are clear and significant. Under
the 118,000 estimate, 3.33% of whites, but 5.49% of Black voters, and 6.98% of
Latinos lack useable ID. DE255 at 98-991 15. Under the 50,000 estimate, 1.37% of
whites, but 2.44% of Black voters and 2.29% of Latino voters, lack any HB19 ID.
These possession disparities are statistically and legally significant because they
represent standard deviations over 10, and in most cases well over 30. Id. at 97 8;
2 In the record in this case, HB19 IDs with material discrepancies are sometimes
called “contestable” IDs. Here, “useable IDs” are those HB19 IDs that do not contain
material discrepancies (i.e., are not contestable).
18
at 99 1 17; see Peightal v. Metro. Dade Cty., 26 F.3d 1545, 1555-56, n.16 (11th Cir.
1994) (holding that standard deviations between two and three are sufficient to show
“a prima facie case of a constitutional or statutory violation”); Powers v. Ala. Dep ’t
o f Educ., 854 F.2d 1285, 1298 & n.21 (11th Cir. 1988). Such large standard
deviations show that these racial disparities do not occur by chance. Peightal, 26
F.3d at 1555-56.
These disparate possession rates mean that, even if the burdens of obtaining
ID were the same for voters of all races, the fact remains that voters of color will
much more frequently bear the burdens of acquiring IDs. DE255 at 138; at 86-87 ^
141. As such, these disparities strongly support Plaintiffs’ claims that FIB 19 violates
Section 2. See Veasey, 830 F.3d at 250; see also Marengo, 731 F.2d at 1570 (“By
holding short hours the Board made it harder for unregistered voters, more of whom
are black than white, to register.”).
The District Court also suggested that these disparities are not significant by
asserting that “few registrants of any racial group [were] affected by the Photo ID
Law.” DE267 at 47. But “[t]he right to vote is personal and is not defeated by the
fact that 99% of other people can secure the necessary credentials easily.” Frank v.
Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank IF). Moreover, the denial or
abridgment of the rights of 50,000 (much less 118,000) voters is hardly trivial. The
court’s contrary suggestion ignores the “basic truth that even one disenfranchised
19
voter—let alone several thousand— is too many.” LWVNC, 769 F.3d at 244. “[W]hat
matters for purposes of Section 2 is not how many minority voters are being denied
equal electoral opportunities but simply that ‘any’ minority voter is being denied
equal electoral opportunities.” Id. (quoting 52 U.S.C. § 10301(a)).
Indeed, in Underwood, this Court found a “disparate effect” where Black
voters were “at least 1.7 times as likely as whites to suffer disfranchisement.” 730
F.2d at 620. This was based on data showing that, in the years preceding trial, the
challenged law had disfranchised 606 voters. Appellants’ Br., Underwood, 730 F.2d
614 (No. 82-7011), 1982 WL 1037553, at *7; cf. also Gomillion v. Lightfoot, 364
U.S. 339, 341 (1960) (state law prevented 400 Black people from voting in city
elections).
2. The Evidence of Disparate Burdens Supported Plaintiffs’
Section 2 Claim.
The District Court failed to consider the extensive evidence that Plaintiffs
presented to establish that there is a tri able dispute as to whether voters of color bear
a heavier burden than whites to obtaining HB19 ID. DE255 at 83-95 ^ 132-87.
Travel disparities, socioeconomic disparities, and the lack of Spanish-language
materials all disproportionately affect voters of color.
First, voters without useable ID are less likely to have access to vehicles than
voters with ID, with Black voters lacking access at even greater rates than whites:
“12.08% of Black voters without a useable photo ID have no vehicle nor live in a
20
household with a vehicle, compared to 5.71% of whites.” DE267 at 37. These figures
likely overstate vehicle access. DE255 at 140; DE252-16 at 150. The adjusted results
of Plaintiffs’ expert’s survey found that 51% of voters without HB19 ID (42% of
whites and 63% of Blacks) live in a household without a working vehicle. DE266
356-59; DE252-16at 17149.
Additionally, Plaintiffs’ expert estimated the number of voters by race that (a)
lived more than five miles from an ID-issuing office, (b) did not have a useable ID,
and (c) did not have access to a vehicle. The results show that Black voters are over
twice as likely as white voters to be among this extremely burdened group. DE255
at 86-87*1141.3
Second in addition to these travel burdens, voters of color without useable ID
are more likely to live below the poverty line, thus making it more difficult to obtain
ID. DE255 at 9 0 1 157. Voters of color also are more likely to face the challenges of
taking time off from work and arranging for childcare to obtain HB19 ID. For
instance, almost 90% of Latino and half of Black voters without any HB19 ID are
responsible for a child, whereas only about 14% of white voters without HB19 ID
3 Even if contestable IDs are not considered, the racial disparity is just as stark, i.e.,
Black voters are 2.7 times more likely to lack any HB19 ID, live more than five
miles from an ID-issuing office, and not live in a household with a vehicle. DE255
at 86-87 *[} 141.
21
are responsible for a child. DE255 at 91 162. The challenges are particularly
burdensome in single parent households.4
These socioeconomic disparities show why the burdens that HB19 creates for
voters of color “may not be rebutted under Section 2 by positing that this unequal
opportunity may be overcome if individuals devote sufficient resources to the task
or by positing that the unequal opportunity is somehow a product of individual
‘choice.’” Veasey v. Perry, 71 F. Supp. 3d 627, 693 n.497 (S.D. Tex. 2014) (citing
Teague v. Attala Cty., 92 F.3d 283, 293-95 (5th Cir. 1996); Kirksey v. Bd. o f
Supervisors, 554 F.2d 139, 145, 150 (5th Cir. 1977) (en banc); Marengo, 731 F.2d
at 1568-69; Major v. Treen, 574 F. Supp. 325, 351 n.31 (E.D. Fa. 1983)), a ff’d in
part, rev’d in part, 830 F.3d 216; see also McCrory, 831 F.3d at 233 (“Nor does
preference lead African Americans to disproportionately lack acceptable photo
ID.”).
Finally, the record further indicates that the Secretary did not translate FIB 19
educational materials into Spanish and rejected requests from the NAACP to do so.
DE255 at 94 *[fl[ 182-84; at 31-32 214-15. Plaintiffs translated materials about
HB19 into Spanish themselves to assist the 37.1% of Fatino Alabamians who speak
English “not well” or “not at all.” M ; see also DE252-9 at 117 f 236. Contrary to
4 Plaintiffs’ expert’s survey indicates significant racial disparities among people
without FIB 19 ID who live below the poverty line and are in single-parent
households. DE255 at 90-91 fflf 157-63.
22
the District Court’s suggestion that such evidence of unresponsiveness is irrelevant,
DE267 at 63 n. 13, this “cultural and language barrier . . . makes [the] participation
[of Spanish-speaking voters] in community processes extremely difficult.” White v.
Regester, 412 U.S. 755, 768 (1973); see also Veasey, 71 F. Supp. 3d at 649 n.114.
These numerous material factual disputes obligated the District Court to deny
summary judgment.
C. The Secretary’s Allegedly Ameliorative Steps Cannot, on
Summary Judgment, Be Deemed Per Se Sufficient to Eliminate
HB19’s Discriminatory Effect.
Rather than meaningfully engage with Plaintiffs’ evidence showing HB19’s
discriminatory effect, the District Court asserted that “it is so easy to get a photo ID
in Alabama [that] no one is prevented from voting.” DE267 at 48. To reach that
conclusion, the court resolved disputed facts and drew inferences in the Secretary’s
favor.
This was inappropriate given Plaintiffs’ record evidence showing that the
Secretary’s ameliorative efforts are ineffective. Such disputes should have been
resolved at trial.
1. The Alabama Voter Card
Contrary to the District Court’s suggestion, the existence of a nominally
“free” photo voter ID card does not immunize HB19 from challenge. See McCrory,
23
831 F.3d at 236; Veasey, 830 F.3d at 256. As discussed above at pp. 20-23, voters
without HB19 ID face material burdens related to obtaining the voter ID card.
Voters who apply for a voter ID card must also sign, under penalty of a felony
conviction, a confusing declaration stating that they do not already have a valid
HB19 ID— a class of ID that the declaration does not definitively define. DE255 at
93 f 176. The Secretary emphasizes this intimidating fact in public presentations.
DE255 at 93-94 176-77, 179; at 143. And the Secretary’s former Chief Legal
Advisor and other witnesses acknowledged that it may have a chilling effect on voter
ID applicants. DE266 ^ 504; cf. Dallas, 739 F.2d at 1538 (finding error in the district
court’s failure to consider evidence of Black voters’ sense of intimidation).
2. The Mobile Unit and Potential Home Visit Program
At the outset, in finding that the mobile unit and home visit programs are
sufficient to overcome any discriminatory effect, the court relied entirely on the
Secretary’s unfounded statement that, if any voter needed a home visit, that voter
would receive one. DE267 at 51 (“nonetheless, Secretary Merrill has made clear that
if the voter says he has no one to give him a ride, the voter is taken as his word”).
The court’s reliance on this material disputed fact at summary judgment was error.
It was wholly speculative for the District Court to assume at summary
judgment that “potential home visit[s],” could meet the needs of thousands of voters
who face substantial burdens to obtaining HB19 ID. See supra at 18. The court
24
acknowledged that “fewer than ten,” DE267 at 51 (in actuality, five),5 such home
visits had taken place as of the close of evidence on July 13, 2017. There was no
evidence that these rare visits could be scaled to serve thousands, or even that they
were adequately publicized. D E252-1911; DE252-7 f21; DE252-1414. Moreover,
no mobile unit visited anyone’s home until after Plaintiffs initiated litigation, and
nothing requires the Secretary to continue offering such visits after this lawsuit ends.
Cf Gingles, 478 U.S. at 71 (holding that, in examining the impact of a challenged
law, courts should “consider to what extent the pendency o f . . . litigation might have
worked a one-time advantage” for voters of color) (citation omitted).
Nor does the mobile unit program more generally overcome the disparate
impact imposed by HB19. The mobile unit program entails the Secretary’s staff
visiting a public location in each county at least once a year. DE267 at 48-49, 51. In
2016, no mobile units were deployed before the presidential primary. See DE224-11
at 61-62. The mobile unit has only provided roughly 850 IDs since 2014. DE266 f
374. But, again, tens of thousands of Alabamians remain without HB19 ID.6
At minimum, this evidence established a triable dispute of material fact as to
whether the mobile unit program adequately addresses HB19’s disparate impact.
5 See DE224-11 at 69; DE266 f 370.
6 The individual plaintiffs had to contend with these substantial burdens, as set forth
in DE266 at 9-11, 24, 30, 44, 56; DE255 at 33-38 224, 225, 229, 231, 232,
233 , 236-38, 241, 243 , 244, 246. The District Court improperly dismissed those
burdens.
25
D. Section 2 Does Not Require Proof of Declines in Minority Turnout
or Proof That Minorities Are Prevented from Voting, but Plaintiffs
Proved That As Well.
While Plaintiffs were not required by Section 2 to do so, Veasey, 830 F.3d at
260, they also showed that HB19 negatively impacted Black voter turnout and
prevented thousands of disproportionately Black people from voting. That Plaintiffs
offered evidence beyond what is necessary further underscores the inappropriateness
of summary judgment. Yet, the District Court did not even mention this evidence.
First, the District Court failed to mention that Plaintiffs’ expert, Dr. Zoltan
Hajnal, demonstrated the disparate impact of FIB 19 on Black voter turnout in
Alabama. See DE255 at 100 22. Dr. Hajnal found that in his comparisons of
elections and turnout in majority-minority counties versus overwhelmingly white
counties from before and after implementation of HB19, the relative declines in
turnout in majority-minority counties were much more pronounced in Alabama than
in Southern states without strict ID laws.7 These differences were statistically
significant. DE252-8 at 30, 31, 47-49.
Dr. Hajnal also performed a regression analysis on data from all counties in
the United States. DE255 at 101 30-31. He found that the turnout of minorities—
7 The relative decline in turnout in majority-minority counties, as compared to
overwhelmingly white counties, was 3.4 percentage points greater in Alabama than
in Southern non-strict ID states between the 2012 and 2016 presidential elections,
and 7.8 percentage points greater between the 2010 and 2014 general elections.
DE255 at 100 23-24; at 101 28-29.
26
relative to whites— declined significantly more from 2012 to 2016 in Alabama than
in other states. DE255 at 1011 32. All else equal, turnout in the most racially diverse
counties in Alabama declined by almost 5 percentage points, while turnout in the
least diverse counties increased by a similar amount. In other states, by contrast,
racial diversity plays a far more minor role in predicting changes in turnout. DE255
at 1 0 2 3 3 - 3 5 . Dr. Hajnal concluded that this difference between Alabama and the
rest of the country is statistically significant. DE255 at 102 1 36.
Second, it is undisputed that at least 2,197 otherwise eligible voters cast
provisional ballots that were rejected solely for failing to provide HB19 ID. DE234
| 18. Black voters were 4.58 times more likely than whites to have such ballots
rejected. Id:, c f LWVNC, 769 F.3d at 244. This data is incomplete and does not
represent the entirety of the tens of thousands affected by HB 19 as many voters were
not offered a provisional ballot or decided not to cast one, DE234 at 17-18 | | 19-20,
but it nonetheless constitutes further evidence of HB19’s disparate impact.
E. The District Court Improperly Ignored the Senate Factors-Based
Evidence.
The District Court was required to analyze whether HB 19 violates Section 2
by examining the nine Senate Factors. Burton, 178 F.3d at 1198-99 & n.20 (listing
the Senate Factors). In failing to conduct this analysis, the court made a legal error,
and ignored critical evidence of HB19’s discriminatory effect. Id.
27
The Senate Factors overwhelmingly support Plaintiffs’ claim. Yet, with one
exception (discussed below at pp. 30-32), the District Court did not even address
them.
As to the first Senate Factor, it is undisputed that Alabama has a history of
voting-related discrimination, DE267 at 42. There is also no dispute that Alabama
elections are racially polarized (Factor 2), id. at 7, 10-11, which provided the
Legislature an incentive to discriminate against voters of color. Infra at 38-43.
Regarding Senate Factor 3, Plaintiffs’ offered evidence, including the expert
testimony of Dr. Lonna Rae Atkeson, showing that the Positively Identify Provision
(“PIP”), and the administrative decisions of the Secretary and Governor have
“enhance[d] the opportunity for discrimination” against voters of color. Gingles, 478
U.S. at 36. The Secretary instructs election officials not to rely on objective criteria
(such as non-photo ID) in deciding whether to allow a voter to use the PIP, resulting
in a subjective process that is “easily capable of being manipulated.” Davis v. Zant,
721 F.2d 1478, 1484 (11th Cir. 1983), a ff’d in relevant part 752 F.2d 1515, 1516
(11th Cir. 1985) (en banc) (finding a juror selection process discriminatory because
a portion of jurors were chosen through a voucher test). Dr. Atkeson testified that
57% of white voters without driver’s licenses know their check-in poll workers, but
almost no Black voters do. DE255 at 106 50-51. Black voters constitute 40% of
28
voters without HB19 ID, but, in the November 2016 election, Black voters were only
23.1% of those voters who used the PIP to vote. Id. at 106-08 | | 52-57.
Likewise, the Governor’s decision to partially close the driver’s license
issuing offices in eight of the eleven majority-Black counties in Alabama for the
entire of the 2016 election season was a policy that enhanced HB19’s discriminatory
effect. DE255 at 62-63 | 56. The U.S. Department of Transportation found that the
driver’s license office closures and reductions in services had a disparate impact on
Black people in violation of Title VI of the Civil Rights Act of 1964. Id.
Senate Factor 5 was not seriously disputed insofar as voters of color bear the
effects of discrimination, DE255 at 61-63 | | 52-58; which results in them being
poorer than white voters, and increases the barriers to acquiring HB19 ID, see supra
at 20-23.
Finally, Plaintiffs’ evidence showed that racial appeals (Factor 6) were used
to stir support for HB19 and other discriminatory voting devices, see, e.g., DE255
at 44-47| | 20-22; see infra at 38-43; that voters of color are underrepresented in the
State Legislature (Factor 7), DE255 at 54-55 | | 20-22, which limited their influence
in the legislative process that led to HB19’s passage, id. at 71 | 82; and that the
Legislature was unresponsive to the particularized needs of voters of color (Factor
8) in, for example, not considering amendments to HB19. See infra at 45.
The Senate Factors strongly support Plaintiffs’ claims.
29
F. The District Court Erred in Crediting Pretextual Justifications for
HB19.
The only Senate Factor that the District Court did address was Factor 9, i.e.,
the tenuousness of the State’s justification for the voter law. The court found that
HB19 was justified by “important regulatory interests” to “combat voter fraud,
increase confidence in elections, and modernize election procedures.” DE267 at 55.
The court stated that it did not matter that there is little evidence of voter
impersonation fraud, and that the Secretary was not actually required “to prove voter
fraud exists . . . , that the Photo ID Law helps deter voter fraud, or that the law
increases confidence in elections.” Id.
This is incorrect on both the law and the facts.
Prevention of voter fraud is a valid government interest. However, contrary to
the District Court’s conclusion, Crawford v. Marion County Election Board, 533
U.S. 181 (2008), does not stand for the proposition that a state merely need refer to
a legitimate interest to overcome a challenge to its photo ID law. See DE267 at 55.
“[T]he articulation of a legitimate interest is not a magic incantation a state can utter
to avoid a finding of disparate impact.” Veasey, 830 F.3d at 262. Rather, there must
be some connection between the state’s advanced interests and the law at issue. Id.
Here, the evidence shows a material dispute of fact as to whether any such
connection exists.
30
The Secretary has never presented evidence that the kind of voter fraud that
HB19 might prevent actually exists in Alabama. When asked by opponents to
provide evidence of fraud, sponsors ofHB19 could not do so. DE255 at 76-771 104.
It is that record, and not the Secretary’s “hypothesized or invented post-hoc”
rationale for HB19, which matters. Glenn v. Brumby, 663 F.3d 1312,1321 (11th Cir.
2011); Underwood, 730 F.2d at 620-21.
Further, HB19 is both too broad and too narrow to address Alabama’s
“interest” in addressing voter fraud. DE267 at 55.
HB19 is too broad because, while a photo ID law might be useful in blocking
in-person impersonation fraud, sponsors of HB 19 admitted that they knew of no such
fraud. DE255 at 76-77 1 104. Indeed, there has been only one known conviction for
in-person voter impersonation fraud in Alabama’s history, which occurred in 2002.
DE267 at 3, 55.
While there is evidence of absentee voter fraud, DE267 at 3, 44, 55, HB19 is
too narrow insofar as it is ineffective at preventing any existing absentee fraud.
DE255 at 78-79 109-16. Although HB19 requires absentee voters to mail in
photocopies of their IDs along with their absentee ballots, there is no way for election
officials to determine whether the mailed-in ID in fact belongs to the voter, since
that voter is never required to present her/his face to officials for a comparison with
the photo ID. Id. Indeed, the Secretary’s witnesses admitted that an absentee photo
31
ID requirement is not a meaningful deterrent to absentee voter fraud. DE255 at 79 f
116. For example, persons seeking to commit fraud can and do simply request photo
IDs from voters (e.g., under the guise of assisting them), photocopy those IDs, and
mail them in with the fraudulently marked absentee ballots. DE255 at 78 1 110.
Therefore, at trial, a reasonable factfinder could infer that the voter fraud
justification is tenuous and pretextual. C f McCrory, 831 F.3d at 235. Indeed, just
like in Texas, Alabama has a long history of “justifying voter suppression efforts
such as the poll tax and literacy tests with the race-neutral reason of promoting ballot
integrity.” Veasey, 830 F.3d at 237; see also DE252-9 at 96 ^ 192.
G. The Court Ignored the Prevalence of Less Discriminatory
Alternatives.
Finally, the District Court stated that, if Plaintiffs were successful in this case,
any law imposing a “disparate inconvenience” would be invalid under Section 2.
DE267 at 61-62. For the reasons stated above, that is incorrect. This case is not about
a mere “disparate inconvenience.” It is about the concrete ways in which a
reasonable factfinder could conclude that Black and Latino voters face
disproportionate and substantial barriers to exercising their fundamental right to vote
because of HB19.
Nor does this case call into question the validity of photo ID laws generally.
Unlike Alabama, in Indiana, Florida, South Carolina, and at least nine other states
with photo ID laws, voters who face some “reasonable impediment” to obtaining
32
photo ID may submit affidavits or non-photo ID and cast an effective ballot.
Alabama has no such objective process for voting without showing HB19 ID.
Indeed, Plaintiffs recognize that, should they succeed solely on their Section
2 claim, they would only be entitled to a narrow remedy, like permitting those voters
who face reasonable impediments to obtaining HB19 to sign affidavits, “seeking for
[Alabama] the sort of safety net that Indiana [and Florida] ha[ve] had from the
outset.” FrankII, 819 F.3d at 387.
II. THE DISTRICT COURT IMPROPERLY IGNORED MATERIAL
FACTS DEMONSTRATING THAT HB19 WAS ENACTED FOR A
DISCRIMINATORY PURPOSE, THEREBY REQUIRING A TRIAL
ON PLAINTIFFS’ CONSTITUTIONAL CLAIMS.
While proof of discriminatory intent is not required under Section 2, it is
required for Plaintiffs to succeed on their constitutional claims. Hunter v.
Underwood, 471 U.S. 222, 225 (1985). On the other hand, once Plaintiffs establish
that a law has a discriminatory purpose, any relevant evidence of disparate impact,
“even if not overwhelming impact,” is sufficient to state a constitutional claim.
McCrory, 831 F.3d at 231. This is because “official actions motivated by a
discriminatory purpose have no legitimacy at all under our Constitution. Acts
generally lawful may become unlawful when done to accomplish an unlawful end.”8
s To the extent the District Court relied on Palmer v. Thompson, 403 U.S. 217
(1971), DE267 at 40, 45-46 & n.4, this Court has recognized that “Palmer's holding
simply has not withstood the test of time.” Church o f Scientology Flag Serv. Org. v.
City o f Clearwater, 2 F.3d 1514, 1529 (11th Cir. 1993).
33
Stout v. Jefferson Cty. Bd. ofEduc., No. 17-12338, 2018 WL 827855, at *19 (11th
Cir. Feb. 13, 2018) (internal alterations and citations omitted); see also id. at *9
(finding a discriminatory effect even where the effect “may seem insignificant at
first blush”).
In other words, a constitutional challenge to an intentionally discriminatory
law requires a lesser showing of discriminatory impact than is required under Section
2. See McCrory, 831 F.3d at 231 n.8 (explaining that “plaintiffs must make a greater
showing of disproportionate impact” under Section 2 than under the Constitution,
and that to require a “more onerous impact showing would eliminate the distinction
between discriminatory results claims . . . and discriminatory intent claims”).
Determining whether a law was motivated, at least in part, by discriminatory
intent “demands a sensitive inquiry into such circumstantial and direct evidence of
intent as may be available.” Young Apartments, Inc. v. Town o f Jupiter, 529 F.3d
1027, 1045 (11th Cir. 2008) (citing 177/. o f Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977)). Because “racial animus and intent to discriminate
are not synonymous,” proof of “ill will, enmity, or hostility are not prerequisites of
intentional discrimination.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472-73 & n.7
(11th Cir. 1999). And Plaintiffs “do[ ] not have to prove that racial discrimination
was a ‘dominant’ or ‘primary’ motive, only that it was a motive.” Dallas, 739 F.2d
at 1541.
34
Here, there is abundant evidence that the Legislature enacted HB19, at least
in part, for a discriminatory purpose. But, the District Court decided that it was “not
necessary” to engage with that evidence, DE267 at 45, because HB19 supposedly
had no discriminatory impact.
That was clearly wrong.
Even if Plaintiffs had not presented sufficient evidence under Section 2 (which
they did), the racial disparities in HB19 ID possession alone are sufficient evidence
of disparate impact to support Plaintiffs’ constitutional claims. Moreover, “evidence
that a voting device was intended to discriminate is circumstantial evidence that the
device has a discriminatory result.” Marengo, 731 F.2d at 1571.
A. The District Court Committed Errors of Law in Concluding that
There was Insufficient Evidence of a Discriminatory Effect.
The impact of HB19 “may provide an important starting point” for an intent
analysis. Arlington Heights, 429 U.S. at 266. But, contrary to the District Court’s
holding, it is not the lone factor in that analysis. See DE267 at 45 (holding Plaintiffs
have failed to “show that the law in fact discriminates” and thus an analysis of the
overwhelming evidence is “not necessary”). “When plaintiffs contend that a law was
motivated by discriminatory intent, proof of disproportionate impact is not The sole
touchstone’ of the claim. Rather, plaintiffs asserting such claims must offer other
evidence that establishes discriminatory intent in the totality of the circumstances.”
McCrory, 831 F.3d at 231 (citations omitted). Given this, “the standard the district
35
court used to measure impact required too much in the context of an intentional
discrimination claim.” Id.
A showing that Black voters “disproportionately lacked the photo ID required
by [law], if supported by the evidence, establishes sufficient disproportionate impact
for an Arlington Heights analysis.” Id.; see also Reno, 528 U.S. at 332 n.l (stating
that “it may sometimes be” easier to prove intent than effect).
It is undisputed that Plaintiffs made that showing: Black and Latino voters are
significantly more likely than whites to lack HB19 ID. See supra at 18-19. The court
dismissed this evidence by reasoning that the burdens required to obtain HB19 ID
for those who do not already have it are mere “inconveniences.” DE267 at 49. That
is factually wrong, see supra at 20-23, but it is also legally irrelevant to Plaintiffs’
constitutional claims. Crawford's holding that “merely inconvenient” burdens are
ordinarily not subject to strict scrutiny does not apply when, as here, there is “proof
of discriminatory intent.” 553 U.S. at 205, 207 (Scalia, J., concurring in the
judgment). This is because “[w]hen there is a proof that a discriminatory purpose
has been a motivating factor . . . judicial deference [to even legitimate interests] is
no longer justified.”9 Arlington Heights, 429 U.S. at 265-66. Indeed, should HB19
9 In Hunter, the Supreme Court held that the plaintiffs presented sufficient evidence
of a disparate impact where a law was enacted to disproportionately disqualified
Black voters convicted of crimes, it had that impact when enacted, and that impact
“persisted] today.” 471 U.S. at 227. Like this case, Alabama had argued that its law
36
ultimately be found unconstitutional, the entirety of the law, and any burdens
imposed by it, must be eliminated. McCroiy, 831 F. 3d 240-41.
In sum, the evidence of disparate ID possession rates, alone or in combination
with various other evidence discussed above at pp. 20-29, is sufficient for the
discriminatory purpose claims to survive summary judgment. McCrory, 831 F.3d at
231 &n.8.
B. The District Court Erred in Failing to Conduct a Fact Intensive
Analysis of Plaintiffs’ Evidence of the A rlin g to n H e ig h ts Factors.
The remaining question, which the District Court did not reach, is whether
Plaintiffs presented sufficient evidence of discriminatory intent to require a trial. The
following non-exhaustive factors help to guide the sensitive inquiry into direct and
circumstantial evidence of legislative intent: (1) the impact of the challenged law;
(2) the historical background; (3) the specific sequence of events leading up to its
passage; (4) procedural and substantive departures; (5) the contemporary statements
and actions of key legislators; (6) the foreseeability of the disparate impact; (7)
did not prevent the plaintiffs from voting, but rather that plaintiffs had “refused to
utilize th[e] simple procedure” of obtaining a pardon to restore their rights.
Appellants’ Br., Hunter, 471 U.S. 222 (No. 84-76), 1984 WL 565799, at *9. But, the
Court did not deem this argument relevant to its disparate impact analysis. See
Hunter, 471 U.S. at 227 (‘ ‘we can find no evidence . . . in the briefs . . . that would
undermine th[e] finding [that the law’s disparate impact persists]”).
37
knowledge of that impact, and (8) the availability of less discriminatory alternatives.
See Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983).
Plaintiffs provided significant and compelling direct and circumstantial
evidence, which clearly established a triable dispute of fact on the issue of
discriminatory intent. This was more than sufficient to meet their minimal burden at
summary judgment. See Lewis v. City o f Union City, 877 F.3d 1000, 1018 (11th Cir.
2017) (“plaintiff will always survive summary judgment if he presents a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination”).
1. The Legislators Who Enacted HB19 Made Contemporaneous
Statements Revealing an Intent to Discriminate Against Black and
Latino Voters and Passed Other Discriminatory Voting Laws.
Although “smoking gun” evidence is unusual, Rogers v. Lodge, 458 U.S. 613,
618 (1982), Plaintiffs presented it here. Plaintiffs also presented evidence of overt
racial appeals and contemporaneous discrimination in voting by the same legislators
who passed HB19. This pattern of discriminatory actions and statements by the same
legislators who enacted HB19 is “relevant to drawing an inference of purposeful
discrimination.” Id. at 625. Such evidence “can be very significant if it is present.”
Marengo, 731 F.2d at 1571.
Senator Larry Dixon served from 1995 until his retirement in 2010 as the chief
sponsor of photo ID bills like HB19. DE266 at 65 | 229. While leading the
38
Legislature’s efforts to enact photo ID bills, Senator Dixon twice publicly revealed
the bills’ discriminatory intent, stating that the lack of a photo ID law was “beneficial
to the Black power structure” and “benefits Black elected leaders” in 1995 and 2001,
respectively. Id. at 71 272-73.
Until his retirement in 2010, Senator Dixon worked with Representative Kerry
Rich, Senator Scott Beason, former Secretary of State Beth Chapman, a chief
architect of HB19, and the other Senate sponsors of HB19 on past photo ID bills.
DE255 at 52 f 15; at 64-65 | | 61-64. By their own accounts, they considered him a
leader on the photo ID issue. Id. at 52 15. A reasonable inference from these facts
is that, in 2011, the sponsors of HB19 carried forward Senator Dixon’s intent. See
Miller-El v. Dretke, 545 U.S. 231, 263-66 (2005) (finding that former prosecutors’
statements about a prosecutor’s office’s policy of racial discrimination in the 1960s
and 1970s, were evidence that that office had intentionally discriminated in 1986).
At the very least, the pertinence of Senator Dixon’s openly discriminatory views
should have been resolved at trial and not on summary judgment.
This conclusion is reinforced by the fact that taped recordings from 2010
revealed that Senator Dixon, Senator Beason, and six other Senate sponsors of HB19
had candid conversations about their plan to suppress the Black vote in the 2010
elections where some legislators made “racist statements (referring to Black voters
as ‘illiterates’ and ‘aborigines’).” DE267 at 42; see also DE255 at 51-52 ^ 14.
39
Moreover, Representative Rich, the sole sponsor of HB19 in the House, also
made “prejudiced comments about Latino citizens” in his speech introducing the
notorious anti-immigration House Bill 56 of 2011 (“HB56”). DE267 at 43. HB56
and HB19 were passed within days of one another, and Rep. Rich sponsored both
bills. DE266 at 66-67 ^[235-36, 244-45. Further, HB56 also includes a voter
identification requirement for first-time registrants that, like HB19, bears more
heavily on Latino voters. DE255 at 58-59 f 39.
These overt statements of racial bias against voters of color powerfully
support the inference that HB19 had a discriminatory purpose. As this Court has
held, a reasonable factfinder can infer from such overt statements that legislators
intended to “discriminate against black voters in any voting legislation before the
[Legislature] in that session.” Carrollton Branch ofNAACP v. Stallings, 829 F.2d
1547, 1552 (11th Cir. 1987) (reversing summary judgment because discriminatory
intent could be inferred from the fact that the sponsor of the challenged law had in
the past made a racist speech about a different voting bill); see also Cooper v. Harris,
137 S. Ct. 1455,1468-69 (2017) (finding that the statements of key decision-makers,
such as the challenged law’s sponsors, are indicative of intent); Stout, 2018 WL
827855, at *13; Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1242 (11th Cir.
2016).
40
In 2017, in discussing a proposed amendment to add a religious exemption to
HB19, Representative Rich also stated: “Some people have said it might apply to
Muslims . . . . It would not apply to Muslims.” DE252-9 at 9 1 1 182. The Secretary’s
own expert admitted that this statement is indicative of “anti-Muslim sentiment.”
DE235-19 at 65, 255:6-257:1. The statement is also indicative of anti-Black bias:
Muslim people in America are disproportionately Black, and former Secretary of
State Nancy Worley observed that “[i]f you refer to the Muslim religion, people in
Alabama associate that with blacks.” DE231-3 at 25, 98:21-98:23; see also DE252-
9 at 911182.
Evidence of contemporaneous discrimination was not limited to the disturbing
statements of HB19’s sponsors. The same Legislature that enacted HB19 passed
other laws that were found unconstitutional because of their racial puipose. Ala.
Legislative Black Caucus v. Alabama, 231 F. Supp. 3d 1026 (M.D. Ala. 2017) (3-
judge court) (state reapportionment laws were predominately motivated by race);
Cent. Ala. Fair Hous. Ctr. v. Magee, 835 F. Supp. 2d 1165, 1182 (M.D. Ala. 2011)
(HB56 likely intentionally discriminatory), vacated as moot No. 11-16114-CC, 2013
WL 2372302 (11th Cir. May 17, 2013);10 see also Hispanic Interest Coal, o f Ala. v.
Gov. o f Ala., 691 F.3d 1236, 1244-49 (11th Cir. 2012) (HB56 unconstitutionally 10
10 “[T]he opinion was not vacated on the merits and remains factually relevant as a
contemporary example of State-sponsored discrimination.” Veasey, 830 F.3d at 257
ti.54.
41
discriminates against the children of undocumented immigrants). The Legislature’s
“prior doing of other similar acts, whether clearly a part of a scheme or not, is useful
as reducing the possibility that the act in question was done with innocent intent.”
Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 207 (1973) (citation omitted); see also
McCrory, 831 F.3d at 225; Veasey, 830 F.3d at 240.
Likewise, the 2010 Republican platform—which all the legislators who voted
in favor of HB19 were elected on— connected the purported need for stricter voting
laws to unfounded concerns that “illegal immigrants and their allies are working to
gather political power and influence.” DE255 at 51 f 12. In a 2011 speech, Senator
Beason, a Senate sponsor of HB19, explained the basis for this concern. He said that
“Democrats do not want to solve the illegal immigration problem because they
know, this is a fact, that when more illegal immigrants move into an area, when their
children grow up and get the chance to vote, they vote for Democrats.” Id. at 51 f
13. Senator Beason later testified that Latino Americans are the voters he believes
will “grow up” to become Democrats. Id. This is significant as the Legislature’s
stated purpose for HB56 was to drive such “illegal aliens” and their “anchor babies,”
Magee, 835 F. Supp. 2d at 1182, 1189-90 & n.20— i.e., supposedly future Latino
Democrats— out of Alabama. The use of such racial appeals are compelling evidence
of discriminatory intent. See Stout, 2018 WL 827855, at *6; Meek v. Metro. Dade
Cty., 985 F.2d 1471, 1487 (11th Cir. 1993).
42
These statements must be understood in the context of intense racially
polarized voting in Alabama, DE267 at 7, the fact that, after 2011, “67% of the
remaining Democrats were Black Legislators who represented Black districts,” id.;
as well as the significant rises in Black political participation, and Latino population
growth at the time of HB19’s enactment. DE266 at 80 302.
“In an environment characterized by racially polarized voting, politicians can
predictably manipulate elections . . . to ‘minimize or cancel out minority voters’
ability to elect their preferred candidates.’” United States v. McGregor, 824 E. Supp.
2d 1339, 1346 (M.D. Ala. 2011) (quoting Gingles, 478 U.S. at 48). That is, racial
polarization “provide[s] an incentive for intentional discrimination in the regulation
of elections.” McCrory, 831 F.3d at 222.
This is all strong evidence that legislators were motivated by a desire to curb
the rising electoral influence of voters of color.
2. Plaintiffs Offered Detailed Circumstantial Evidence of
Intent.
Circumstantial evidence of discriminatory intent includes, but is not limited
to, legislators’ departures from past procedures, their foreknowledge of disparate
impact, and their rejection of less discriminatory alternatives. Jean, 711 F.2d at
1486.
Procedural Departures. When HB19 was passed in 2011, “the Legislature
invoked cloture and truncated debate during the passage of the law,” DE267 at 43-
43
44, including holding the microphone so that the Black Caucus could not speak out
against the bill. DE255 at 71-72 | 84. And, despite requests, HB19’s sponsors were
unable to provide opponents with any evidence of voter fraud. Id. at 76-77 | 104.
After 2011, state officials departed from past practices in refusing for two
years to submit HB19 for preclearance, DE255 at 73-74 f f̂ 92-95, suggesting that
they knew that E1B19 would not survi ve the then extant requirement. C f McCroiy,
831 F.3d at 215-16 (the State’s decision to hold a photo ID bill until after Shelby
County was indicative of discriminatory intent); Wyche v. Madison Par. Police Jw y,
635 F.2d 1151, 1160 (5th Cir. 1981) (finding that the fact that a change was made
“without the approval required under the [VRA]” revealed the parish’s
discriminatory intent).
Foreknowledge. The Legislative Black Caucus had warned for years that a
photo ID requirement would have a disparate impact and, according to former
Secretary Chapman, these concerns were “common knowledge” amongst the chief
proponents of HB19. DE255 at 73 | 89. The record refutes the District Court’s
statement that “there is no evidence that Legislators supporting [HB19] believed that
[it] would have [a disparate] impact.” DE267 at 45.
For example, in 2011, Representative Rich testified that he believed that
Latinos in Alabama do not possess driver’s licenses, the most common FIB 19 ID.
DE266 at 69 | 254. He also anticipated that HB19’s preclearance would result in a
44
“lengthy court battle and review by the U.S. Justice Department to see if the
legislation complies with the 1965 Voting Rights Act.” Id. at 81 f 307; at 82 1317.
This is the reason that HR 19 contains a three-year roll out period. DE255 at 72 f 86.
Likewise, former Secretary Chapman testified that previous photo ID bills had failed
because the Legislature knew that such bills would not be precleared by the DOJ.
DE255 at 73 88. A clear inference from this record is that, in 2011, proponents
believed that HB19 would have a discriminatory effect in violation of Section 5 of
the VRA. At a minimum, this is a reasonable inference, which precluded summary
judgment.
Less Discriminatory Alternatives. Finally, HB19’s proponents failed to
include options, such as a reasonable impediment provision, which would have
reduced the law’s discriminatory impact. See supra at 32-33. Nor did they permit its
opponents to introduce any such amendments. See Veasey, 830 F.3d at 237.
^ ^ ^
Even while failing to analyze the Arlington Heights factors, the District Court
asserted that the “record in this case is very different” than that in McCrojy. DE267
at 56-58. But, the evidence of intentional discrimination here is comparable to, or
stronger, than it was in McCrory.
First, despite the District Court denying Plaintiffs discovery from HB19’s
proponents, D E I58, the record here, unlike in McCrory, 831 F.3d at 229, includes
45
overt statements by legislators reflecting their intent to racially discriminate in
voting. See supra at 38-43. Second, when the North Carolina legislature considered
the photo ID bill in the 2013, it held multiple public hearings, McCrory, 831 F.3d at
227-28, but there were no such public hearings in Alabama. Third, just as there was
a “rush” to get North Carolina’s law passed, id., HB19’s proponents also rushed it
through the Legislature by using cloture and preventing opponents from even
speaking. Fourth, the North Carolina law included a reasonable impediment option
for voters without ID, id. at 240, which Alabama’s law does not. This means that,
contrary to the District Court’s suggestion, DE267 at 46, 56, the North Carolina law
was less restrictive than Alabama’s law. Finally, in both cases, proponents
anticipated their laws would likely not be precleared under Section 5, and
implemented them only in the wake of Shelby County. McCrory, 831 F.3d at 228-
29.
III. THE POSITIVELY IDENTIFY PROVISION IS A “TEST OR
DEVICE” FORBIDDEN BY SECTION 201 OF THE VRA.
The Positively Identify Provision (“PIP”) in HB19 allows a voter without
HB19 ID to vote if she or he is “positively identified” by two election officials. Ala.
Code § 17-9-30(e). The Secretary interprets the PIP to mean that a person without
HB19 ID may vote only if election officials, at their discretion, vouch for that
person’s identity based solely upon personal acquaintance. DE234 12-13 ^jf 7-10. If
the election officials decline to vouch for a person, that person may cast a provisional
46
ballot, which will only be counted if the voter returns within three days with HB19
ID. Id.
The Secretary’s interpretation of the PIP runs afoul of Section 201, which
states that “[n]o citizen shall be denied, because of his failure to comply with any
test or device, the right to vote.” 52 U.S.C. § 10501(a) (emphasis added). This
prohibition expressly includes “any requirement that a person as a prerequisite for
voting . . . prove his qualifications by the voucher of registered voters or members
of any other class.” Id. § 10501(b)(4). The Supreme Court has also held that Section
201 is to be broadly construed in light of “the fact that a ‘test or device’ may be
employed by any official with control over any aspect of an election.”11 United
States v. Bd. o f Comm’rs o f Sheffield, 435 U.S. 110, 120 (1978) (emphasis added).
Because it is undisputed that the Secretary interprets the PIP as a voucher test,
the District Court should have held that the Secretary’s interpretation violates
Section 201 and granted Plaintiffs’ motion for summary judgment. Cf. Schwier v.
Cox, 439 F.3d 1285, 1286 (11th Cir. 2006) (granting summary judgment for the
plaintiffs on a claim brought pursuant to a similar categorical prohibition in the
VRA). Instead the court granted the Secretary’s cross-motion for summary
judgment, reasoning that “no one in Alabama is ‘requiredp to rely on the positively
11 The Supreme Court and this Court in the cases cited herein are construing Section
4 of the VRA, not Section 201; but the sections are essentially identical. Compare
Section 4(a) (52 U.S.C. § 10303(a)(1)), with Section 201(a) (52 U.S.C. § 10501(a)).
47
identify provision because they have the option of acquiring a photo ID with little to
no effort and no costs.” DE267 at 66-67.
The court’s strained reasoning is inconsistent with the plain text of Section
201, and with precedent. Indeed, under the District Court’s reasoning, Alabama
would be permitted to enact laws that give voters the “choice” between showing
photo ID or passing a literacy test. That is not, and cannot be, the law.
A. Text and Precedent Establish that the Secretary’s Interpretation of
the PIP is a Prohibited Test or Device Because It Is a
“Requirement” For Voters Without HB19 ID.
For voters without HB19 ID, the PIP is a voting “requirement” under any
ordinary understanding of the word, because it is a “prerequisite for voting” that they
must surmount before casting a regular ballot. And Section 201 expressly prohibits
“any requirement that a person as a prerequisite for voting” satisfies a voucher test.
52 U.S.C. § 10501(b)(4) (emphasis added); see also Arcia v. Fla. Sec ’y o f State, 772
F.3d 1335, 1344 (11th Cir. 2014) (“when Congress does not add any language
limiting the breadth of that word, ‘any’ means all”); 52 U.S.C. § 10310(c)(1)
(defining “voting” in the VRA to “include all action necessary to make a vote
effective”).
It does not matter whether those voters could have complied with an
alternative voting qualification. In United States v. Clement, 231 F. Supp. 913, 916
(W.D. Fa. 1964), rev’d as to remedy, 358 F.2d 89, 93 (5th Cir. 1966), this Court
48
considered a Louisiana law that required all applicants to provide proof of identity.
However, the law allowed applicants to obtain the voucher of two registered voters
if the registrar had “reasonable grounds” to challenge the applicant’s identity. In
enjoining that law, this Court did not treat the use of voucher tests for only “some”
voters as acceptable, as the District Court held here. Id. Instead, this Court twice held
that “requiring any applicant” to “comply with any . . . test or device” violates the
VRA. Clement, 358 F.2d at 92-93 (emphases added); United States v. Ward, 352
F.2d 329, 331-32 (5th Cir. 1965).
Similarly, the Supreme Court has enjoined a law whereby voters could
comply with either a literacy test or a then-valid property qualification.12 South
Carolina v. Katzenbach, 383 U.S. 301, 319 (1966). And, the Court has explained
that the VRA “bars certain types of voting tests and devices altogether,” even if a
state “intended [a test or device] to permit” more people to vote. Reno, 528 U.S. at
338 n.6.
The District Court’s contrary ruling here fails to recognize the context in
which the VRA was enacted. When Congress enacted the VRA, tests or devices
often contained or were employed as “failsafe” alternatives to other requirements,
whose application “assure[d] that illiterate whites were not disenfranchised.” S. Rep.
12 Property qualifications are not per se unconstitutional, Ball v. James, 451 U.S.
355, 371 (1981), and the first property qualifications were not struck down until
three years later. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969).
49
No. 89-162 (1965), as reprinted in 1965 U.S.C.C.A.N. 2508, 2542-43. Far from
making those tests or devices more palatable, Congress clearly intended to ban any
test or device. Id.; see also Katzenbach, 383 U.S. at 310-11.
Finally, the U.S. Attorney General has also consistently understood the VRA
to forbid even those tests that constitute one option for voting among many.13 In
1992, Mississippi began offering mail-in registration, but required that mail-in
registrants comply with a voucher test. Mississippi, like the Secretary, argued that
this law did not violate the VRA because it “allowjed] for an alternative means of
registration that [did] not include this voucher requirement— i.e., registration in
person.” Letter from U.S. Asst. Atty. Gen. John Dunne to Spec. Asst. Atty. Gen.
Giles Bryant (May 1, 1992), at 2-3, http://tiny.ee/DOJMS92. The Attorney General
rejected this interpretation, and explained that there is “no basis in the [VRA] for
concluding that use of a ‘test or device’ is permissible if limited to one aspect of the
voter registration system.” Id. at 3; see also Letter from U.S. Assist. Atty. Gen. Jerris
Leonard to Ala. Atty. Gen. MacDonald Gallion (Mar. 13, 1970)
http://tiny.ee/DOJAL70 (objecting to a literacy test that applied only to certain mail-
in registrants).
13 The District Court noted that a similar provision was precleared by the DOJ in
2003. DE267 at 67. But that is irrelevant to Plaintiffs’ Section 201 claim.
Preclearance had “limited meaning” and did “not represent approval of the voting
change.” Reno, 528 U.S. at 335. Even a law that the DOJ did not object to under
Section 5 could still be “attacked through the normal means.” Id.
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http://tiny.ee/DOJMS92
http://tiny.ee/DOJAL70
B. A Prohibited “Test or Device” Cannot Be Used in a Proper
Manner.
The District Court compounded its errors by suggesting that, even if the
voucher test were a voting requirement, it would only be invalid if it were used in
an “improper manner.” DE267 at 67. But, Section 201’s ban on tests or devices is
categorical—it does not permit inquiry into whether a test or device has a
discriminatory purpose or effect. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557
U.S. 193, 198 (2009).
In any event, the undisputed expert evidence, described above at 28-29,
confirms that the PIP in fact has a significant discriminatory impact.
In addition, from 2014 to 2016, there is undisputed evidence that people
without HB19 ID were required to either comply with a voucher test or be prevented
from voting. For example, hundreds of in-person voters cast provisional ballots
because no election official vouched for them and those ballots were ultimately
rejected solely because the voter never presented HB19 ID. DE234 at 17 f 18.
Several Plaintiffs and witnesses who lacked HB19 ID were required to
comply with the PIP to vote or, because they did not know their poll workers, were
not able to vote. DE255 at 103-04 39-42.
Further, the District Court acknowledged there was evidence that voters were
not allowed to vote because the poll worker erroneously applied the PIP, DE267 at
67-68, but it dismissed this evidence as “human error.” Id. at 68. But such “human
51
error” is exactly what the VRA was designed to prevent. See Oregon v. Mitchell,
400 US 112, 216 (1970) (Op. of Harlan, J.) (“[The forbidden] tests unduly lend
themselves to discriminatory application, either conscious or unconscious”).
C. The Proper Remedy: An Alternate Interpretation of the PIP
To be clear, the text of the PIP does not violate Section 201; rather the
Secretary’s interpretation of it as a voucher test is the problem. DE234 at 12 f 8. The
remedy for this violation is to strike that interpretation and leave the PIP itself intact.
On remand, the Secretary should get “the first pass at devising remedies for [the]
violationf].” Veasey, 830 F.3d at 270 (citation omitted); see United States v. Atkins,
323 F.2d 733, 742 (5th Cir. 1963) (affording Alabama the opportunity to “adopt
uniform objective standards” to save its literacy test prior to the VRA).
Former Secretary Chapman already interprets the PIP to allow people to use
non-photo ID. DE234 at 13 *f[ 11; at 18 ^ 20. That interpretation would remedy the
Section 201 violation because, under it, the PIP would no longer serve as a voucher
test.
CONCLUSION
For the foregoing reasons, the January 10, 2018 order granting summary
judgment for the Secretary on all claims should be reversed, Plaintiffs’ motion for
partial summary judgment should be granted, and the remaining issues should be
remanded for trial.
52
Respectfully submitted on February 21, 2018.
/s/ Deuel Ross
Sherrilyn A. Ifill
President & Director-Counsel
Janai S. Nelson
Samuel Spital
Deuel Ross
Counsel o f Record
Natasha Merle
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, New York 10006
Tel: (212) 965-2200
Fax: (212) 226-7592
dross@naacpldf.org
Coty R. Montag
Daniel S. Flarawa
NAACP Legal Defense and
Educational Fund, Inc.
1444 I Street NW
Washington, D.C. 20005
Tel:(202)-682-1300
cmontag@naacpldf.org
J. Mitchell McGuire
McGuire & Associates
31 Clayton Street
Montgomery, Alabama 36104
Telephone: (334) 517-1000
Fax: (334) 517-1327
jmcguire@mandabusinesslaw.com
Robert D. Fram
Nathan E. Shafroth
Covington & Burling LLP
One Front Street
San Francisco, CA 941 11-5356
Tel: 415-591-6000
Fax:415-591-6091
rfram@cov.com
Joanne B. Grossman
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, D.C. 20001-4956
Tel: 202-662-6000
Fax: 202-662-6291
jgrossman@cov.com
Aaron Lewis
Covington & Burling LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
(424) 332-4754
alewis@cov.com
Attorneys fo r Plaintiffs-Appellants
53
mailto:dross@naacpldf.org
mailto:cmontag@naacpldf.org
mailto:jmcguire@mandabusinesslaw.com
mailto:rfram@cov.com
mailto:jgrossman@cov.com
mailto:alewis@cov.com
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) as the brief contains 12,666 words, excluding those parts exempted by
Fed. R. App. P. 32(f) and 11th Cir. Local R. 32-4.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) as this brief has been
prepared in a proportionally spaced typeface using Microsoft Word in 14 point
Times New Roman font.
/s/ Deuel Ross
Deuel Ross
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CERTIFICATE OF SERVICE
I hereby certify that on February 21, 2018, 7 copies of the brief were
dispatched for delivery to the Clerk’s Office of the United States Court of Appeals
for the Eleventh Circuit by third-party commercial carrier for overnight delivery at
the following address:
David J. Smith
Clerk of Court
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St., N.W.
Atlanta, Georgia 30303
On this same date, a copy of the brief was served on all counsel of record via
CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronic Notices of Electronic Filing.
(s/_Deuel Ross
Deuel Ross
NAACP Legal Defense &
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, N.Y. 10006
Telephone: (212) 965-2200
Filing and service were performed by direction of counsel.
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