The Independent View: NAACP Files Brief on Legality of AL Voter ID Law

The NAACP Legal Defense and Educational Fund, Inc. (LDF), Covington & Burling, LLP, and Local Counsel Mitch McGuire have filed an Appeal today of the U.S. District Court’s Decision to Dismiss a Lawsuit challenging Alabama’s Photo ID Law.

In January, U.S. District Judge L. Scott Coogler Dismissed the Lawsuit brought on behalf of Greater Birmingham Ministries, the Alabama NAACP, and individual Voters. The Appeal argues that the District Court should not have Granted the Secretary of State’s Motion for Summary Judgment and disregarded Powerful evidence that the Photo ID Law intentionally Discriminated against and burdened Black and Latino Voters.

“Our plaintiffs presented substantial evidence demonstrating that this photo ID law was enacted with discriminatory intent,” said Deuel Ross, LDF Assistant Counsel. “State legislators anticipated this law would have a racially discriminatory impact, and it did. We provided proof of Black and Latino Alabamians facing multiple burdens in accessing the proper identification in order to vote. Because our conflicting evidence has not been resolved, our plaintiffs deserve their day in court.”

In its dismissal in January, the District Court credited the Secretary of State’s evidence that suggested Home Visits by an ID-issuing Mobile Unit would erase the very real Burdens faced by Thousands of Voters, while completely disregarding the Plaintiffs’ contrary Evidence. In fact, only Five such Home Visits occurred, and the Visits began only after the Filing of this Lawsuit.

The District Court also disregarded Evidence that the Law purposefully imposes a Burden on Black and Latino Voters because they disproportionately Lack the appropriate Photo ID. That disproportionate impact means that the Photo ID Law cannot stand if it intentionally Discriminates against Black and Latino Voters regardless of whether they can successfully overcome the Burdens imposed on them.

“The district court acknowledged our evidence that over 100,000 voters, disproportionately Black and Latino voters, lack the required photo ID to vote, but suggested the disparities are not significant,” said LDF Assistant Counsel Natasha Merle. “The disenfranchisement of several thousand voters is not trivial. We will continue to fight to ensure every eligible Alabama voter can make their voice heard at the ballot box.”

The original Complaint, filed in December 2015, alleged that Alabama enacted a Photo ID Law that the State’s own initial Analysis showed would Disfranchise over a Quarter of a Million Registered Voters, a Disproportionate number of whom are Black and Latino, in Violation of the U.S. Constitution and the Voting Rights Act of 1965.

The Photo ID Law was passed in 2011 when Alabama was still subject to Section 5 of the Voting Rights Act. Section 5’s “preclearance” requirement Prevented Alabama from enforcing the Photo ID Law until the State could prove to a Federal Court or the U.S. Department of Justice that the Law was Non-Discriminatory.
Alabama never submitted the Photo ID Law for Preclearance.

Another option:

Voting Rights Act Bail-In

Section 3(c) contains a "Bail-In" or "Pocket Trigger" process by which Jurisdictions that fall outside the Coverage Formula may become Subject to Preclearance. Under this Provision, if a Jurisdiction has Racially Discriminated against Voters in Violation of the Fourteenth or Fifteenth Amendments, a Court may Order the Jurisdiction to have Future Changes to its Election Laws Preapproved by the Federal Government. Because Courts have interpreted the Fourteenth and Fifteenth Amendments to Prohibit only Intentional Discrimination, a Court may Bail-In a Jurisdiction only if the Plaintiff proves that the Jurisdiction enacted or operated a Voting Practice to purposely Discriminate.

Section 3(c) contains its own Preclearance language and differs from Section 5 Preclearance in several ways. Unlike Section 5 Preclearance, which applies to a covered Jurisdiction until such time as the Jurisdiction may Bail-Out of Coverage under Section 4(a), Bailed-In Jurisdictions remain subject to Preclearance for as long as the Court Orders. Moreover, the Court may require the Jurisdiction to Pre-Clear only particular Types of Voting Changes. For example, the Bail-In of New Mexico in 1984 applied for 10 years and required Preclearance of only Redistricting Plans. This differs from Section 5 Preclearance, which requires a Covered Jurisdiction to Pre-Clear All of its Voting Changes.

During the Act's early history, Section 3(c) was little used; No Jurisdictions were Bailed-In until 1975. Between 1975 and 2013, 18 Jurisdictions were Bailed-In, including 16 Local Governments and the States of Arkansas and New Mexico.

Although the Supreme Court held the Section 4(b) Coverage Formula Unconstitutional in Shelby County v. Holder (2013), it did not hold Section 3(c) Unconstitutional. Therefore, Jurisdictions may continue to be Bailed-In and subjected to Section 3(c) Preclearance.

In the Months following Shelby County, Courts began to consider Requests by the Attorney General and other Plaintiffs to Bail-In the States of Texas and North Carolina, and in January 2014 a Federal Court Bailed-In Evergreen, Alabama.

A more narrow Bail-In process pertaining to Federal Observer Certification is prescribed in Section 3(a). Under this Provision, a Federal Court may Certify a Non-Covered Jurisdiction to receive Federal Observers if the Court determines that the Jurisdiction Violated the Voting Rights guaranteed by the Fourteenth or Fifteenth Amendments. Jurisdictions certified to receive Federal Observers under Section 3(a) are not subject to Preclearance.