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Greater Birmingham Ministries, Et Al. V. Secretary of State for the State Of

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Greater Birmingham Ministries, Et Al. V. Secretary of State for the State Of USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 1 of 96 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 18-10151 D.C. Docket No. 2:15-cv-02193-LSC GREATER BIRMINGHAM MINISTRIES, ALABAMA STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, GIOVANA AMBROSIO, ELIZABETH WARE, SHAMEKA HARRIS, Plaintiffs - Appellants, versus SECRETARY OF STATE FOR THE STATE OF ALABAMA, Defendant - Appellee. Appeal from the United States District Court for the Northern District of Alabama (April 9, 2021) USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 2 of 96 Before BRANCH and ED CARNES, Circuit Judges, and GAYLES,* District Judge. BRANCH, Circuit Judge: We sua sponte vacate our previous opinion and substitute the following in its place. * * * At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types * Honorable Darrin P. Gayles, United States District Judge for the Southern District of Florida, sitting by designation. 2 USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 3 of 96 of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily. Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely appealed. Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama’s voter ID law is discriminatory, we affirm the district court’s order granting summary judgment in favor of the Secretary of State for the State of Alabama. I. BACKGROUND This case was filed by Greater Birmingham Ministries and the Alabama State Conference of the National Association for the Advancement of Colored People, along with Giovana Ambrosio, Shameka Harris, Debra Silvers, and Elizabeth Ware (collectively, “Plaintiffs”) against John Merrill, the Secretary of State for the State of Alabama. In summarizing the facts of this case, we pull 1 Plaintiffs requested summary judgment on their Section 201 claim. Plaintiffs also argued that the “facts show that there is a statistically significant racial disparity” between the ID possession rates for voters of color and white voters in Alabama, and requested “partial summary judgment on this issue, which is a discrete element of Plaintiffs’ claims.” 3 USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 4 of 96 directly from—and oftentimes quote verbatim—the “Undisputed Material Facts” identified by the parties in their corrected Joint Status Report filed with the district court. 2 A. Historical Background Since the 1990s, there have been concerted efforts in Alabama to pass a voter ID law that addresses voter fraud. For the purposes of this case, the parties agree that cases of proven in-person impersonation voter fraud in Alabama are rare. However, in the mid-1990s, Alabama grappled with some recent, high- profile, and well-documented cases of absentee voter fraud that captured the public attention of Alabamians. These instances of voter fraud were summarized by a July 1996 article in The Birmingham News.3 Various citizen groups formed to spread the word about the need for a photo ID law to combat voter fraud.4 Alabama and the federal government worked together to investigate and prosecute cases of voter fraud in absentee voting. The 2 Although “the parties dispute the relevance and materiality of some of the facts contained herein,” the parties have agreed that these facts are undisputed. Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253, 1257 n.2 (N.D. Ala. 2018). 3 At least some newspapers were supportive of efforts to pass a voter ID requirement in the late 1990s. 4 The Honest Election Coalition was formed and “produced a 10-minute video entitled ‘Something is Wrong in Alabama.’ Through the video, . the Coalition described some of the voter fraud allegedly occurring in Alabama and argued for legislative reforms.” The Coalition pushed for legislative reforms and, “[i]n 1996, the Alabama Legislature passed half of the Honest Election Coalition’s proposed election reform package by altering rules concerning absentee ballots; the Legislature failed to pass a voter ID law. The Honest Elections Coalition continued to support a voter ID law.” Another grassroots citizen group, Citizens for a Better Greene County, also focused on fighting voter fraud. 4 USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 5 of 96 investigation uncovered that, for example, voters would sign absentee ballot- related paperwork without ever marking the ballot, and, in a handful of instances, the voters were not involved in the process at all and their signatures were forged. Sometimes voters would be convinced, threatened, or bribed to give up their ballot materials and sometimes voters would sign the absentee ballot affidavits without marking the ballots. One investigation also revealed there were people at the polls on election day with a list of voters whose ballots had been fraudulently cast and they would chase away these voters when they came to the polls to cast their ballots. Between the early 1990s and 2003, several voter ID bills were proposed in the Alabama legislature and failed. In 2003, the Alabama legislature successfully enacted a voter ID law that required voters to provide “current valid photo identification” or “a “copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter” (otherwise referred to as “non-photo ID”).5 The 2003 law also 5 The 2003 law provided “[t]he term ‘other government document’ may include, but is not limited to, any of the following: a. A valid identification card issued by a branch, department, agency, or entity of the State of Alabama, any other state, or the United States authorized by law to issue personal identification. b. A valid United States passport. c. A valid Alabama hunting or fishing license. d. A valid Alabama permit to carry a pistol or revolver. e. A valid pilot’s license issued by the Federal Aviation Administration or other authorized agency of the United States. f. A valid United States military identification card. g. A certified copy of the elector’s birth certificate. h. A valid Social Security card. i. Certified naturalization documentation. j. A certified copy of court records showing adoption or name change. k. A valid Medicaid card, 5 USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 6 of 96 included a “positively identify provision” (“PIP”). This provision provides that a registered voter who lacks the photo ID required to vote in person on election day may cast a regular ballot if she or he is positively identified by two election officials as a voter on the poll list who is eligible to vote and the two election officials sign a sworn affidavit so stating. Notably, the 2003 law (which included the PIP) was precleared by the Department of Justice; the PIP was cleared as an acceptable “fail-safe” provision.6 One Alabama State Senator, Larry Dixon, sponsored several unsuccessful voter ID bills during his tenure in the Alabama legislature from 1995-2010. Senator Dixon was seen as a leader on the photo ID issue by proponents of the requirement. In 1996, Senator Dixon stated that “the fact you don’t have to show an ID is very beneficial to the black power structure and the rest of the Democrats.” Later, in 2001, Senator Dixon said that voting without photo IDs “benefits black elected leaders, and that’s why [black legislators are] opposed to it.” Years later, in 2010, in a meeting with several other legislators, State Senator Scott Beason recorded Senator Dixon saying: “Just keep in mind if [a pro- Medicare card, or an Electronic Benefits Transfer card (formerly referred to as a ‘food stamp card’).” 6 At that time, Section 5 the Voting Rights Act required Alabama to seek preclearance for any change in voting requirements from either the U.S. Attorney General or a three-judge court in the United States District Court for the District of Columbia. See Shelby Cty. v. Holder, 570 U.S. 529, 544 (2013). The U.S. Attorney General precleared Alabama’s 2003 voter ID law, including the positively identify provision, and that law remained in effect until 2014 when the 2011 law went into effect. See infra note 20. 6 USCA11 Case: 18-10151 Date Filed: 04/09/2021 Page: 7 of 96 gambling] bill passes and we have a referendum in November, every black in this state will be bused to the polls.
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