united states district court for the northern district of alabama southern division corrected...

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREATER BIRMINGHAM MINISTRIES,

et al.,

Plaintiffs,

v.

JOHN MERRILL, in his official capacity as

the Alabama Secretary of State,

Defendant.

Civil Case No.: 2:15-cv-02193-LSC

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

FILED 2017 Nov-06 AM 09:12U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:15-cv-02193-LSC Document 255 Filed 11/06/17 of 160

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

RESPONSE TO DEFENDANT’S STATEMENT OF FACTS ............................... 1

PLAINTIFFS’ UNDISPUTED STATEMENT OF FACTS .................................. 37

PLAINTIFFS’ DISPUTED STATEMENT OF FACTS ........................................ 85

I. INTRODUCTION ........................................................................................ 98

II. THE LEGAL STANDARD ON SUMMARY JUDGMENT ...................... 98

III. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE

LEGISLATURE ACTED WITH A DISCRIMINATORY INTENT. ....... 100

A. Historical Background ...................................................................... 102

1. Other Discrimination by the Same Legislature and

Sponsors ................................................................................. 102

2. Alabama’s Pattern of Violating Federal Voting Laws .......... 106

B. Specific Sequence of Events ............................................................ 108

C. Statements of Racial Bias Contemporary to the Passage of HB

19 ...................................................................................................... 110

D. Knowledge and Foreseeability of the Racial Impact in 2011 .......... 112

E. Procedural Departures ...................................................................... 113

F. Substantive Departures ..................................................................... 114

1. HB 19 is Not Justified by Concerns of Voter Fraud. ............. 115

2. The Photo ID Law Is Not Justified by Alleged

Enhancement of Voter Confidence. ....................................... 117

3. The Rejection of Less Discriminatory Alternatives .............. 119

4. Some Constituents’ Concerns about Voter Fraud were

Motivated by Improper Biases. .............................................. 119

IV. THE SECRETARY CANNOT MEET HIS SUMMARY JUDGMENT

BURDEN ON PLAINTIFFS’ SECTION 2 RESULTS CLAIM. .............. 121

A. The Court Must Evaluate the Plaintiffs’ Section 2 Results Claim


ii

Using the Same Test It Applied in Denying the Motion to

Dismiss. ............................................................................................ 122

B. Under Prong One, Voters of Color Are More Likely to Lack HB

19 ID and Disproportionately Incur the Burdens of Obtaining It. ... 123

1. It Is Undisputed that Voters of Color Disproportionately

Lack the Required HB 19 IDs. ............................................... 123

2. There Is Substantial Evidence That Voters of Color

Disproportionately Lack the Requisite Photo ID. .................. 123

3. The Disparate Possession Rates Are Not “Miniscule.” ......... 125

4. Voters of Color Disproportionately Bear the Burdens that

Affect the Acquisition of HB 19 ID. ...................................... 127

C. Under Prong 2, the Evidence Establishes that the Racial Impact

of HB 19 Is Linked to Socio-Historical Conditions in Alabama ..... 133

D. The Secretary Invites Reversible Error by Misstating the

Requirements of a Section 2 Claim. ................................................. 136

1. The Secretary Improperly Invites the Court to Impose an

“Intent” Requirement on Plaintiffs’ Section 2 Claim. ........... 136

2. The Secretary’s “Equal Treatment” Theory Is Inconsistent

with Settled Law Interpreting Section 2. ............................... 137

3. The Secretary Improperly Attempts to Narrow the

“Causation Requirement” of a Section 2 Claim. ................... 138

4. The Secretary’s “Slippery Slope” Argument Is Misplaced.

................................................................................................ 140

E. Plaintiffs Need Not Show an Impact on Turnout from HB 19, but

that Impact Exists and Further Supports Their Section 2 Claim. .... 141

F. Section 2 Provides a Remedy for Any Group of Voters for Whom

the Burden Imposed by the Photo ID Requirement Is Too Great. ... 144

V. THE POSITIVELY IDENTIFY PROVISION VIOLATES THE VRA.

.................................................................................................................... 145

VI. CONCLUSION ........................................................................................... 147


iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Legis. Black Caucus v. Alabama,

231 F. Supp. 3d 1026, 1348 (M.D. Ala. 2017) ................................................... 50

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ...................................................................................... 113

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .......................................................................................... 100

Arce v. Douglas,

793 F.3d 968 (9th Cir. 2015) ............................................................................ 114

Askew v. City of Rome,

127 F. 3d 1355 (11th Cir. 1997) ....................................................................... 103

Ave. 6E Invs., LLC v. City of Yuma,

818 F.3d 493 (9th Cir. 2016) ............................................................................ 106

Bartlett v. Strickland,

556 U.S. 1 (2009) .............................................................................................. 140

Benson v. Tocco, Inc.,

113 F. 3d 1203 (11th Cir. 1997) ....................................................................... 128

Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976 (D.S.D. 2004), aff’d 461 F.3d 1011 (8th Cir.

2006) ................................................................................................................. 138

Bozeman v. Lambert,

487 F. Supp. 1021 (M.D. Ala. 1984), aff’d 762 F.2d 1022 (11th

Cir. 1985) .............................................................................................................. 1

Brooks v. Hobbie,

631 So. 2d 883 (Ala. 1993) ................................................................................. 50

Brown v. Bd. of Sch. Comm’rs of Mobile Cty.,

542 F. Supp. 1078 (S.D. Ala. 1982), aff’d, 706 F.2d 1103 (11th

Cir. 1983), aff’d, 464 U.S. 1005 (1983) ........................................................ 1, 110


iv

Burton v. City of Belle Glade,

178 F.3d 1175 (11th Cir. 1999) ................................................................ 125, 137

Burton v. Hobbie,

561 F. Supp. 1029 (M.D. Ala. 1983) .................................................................. 50

Carrollton Branch of NAACP v. Stallings,

829 F.2d 1547 (11th Cir. 1987) ........................................................ 108, 113, 114

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .......................................................................................... 101

Central Ala. Fair Hous. Ctr. v. Magee,

835 F. Supp. 2d 1165 (M.D. Ala. 2011) ..................................................... 46, 106

Chisom v. Roemer,

501 U.S. 380 (1991) ..................................................................124, 141, 143, 145

Church of Scientology Flag Serv. Org., v. City of Clearwater,

2 F.3d 1514 (11th Cir. 1993) ............................................................................ 114

Common Cause/Ga. v. Billups,

406 F. Supp. 2d 1326 (N.D. Ga. 2005) ........................................................passim

Cooper v. Harris,

137 S. Ct. 1455 (2017) .............................................................................. 102, 113

Crawford v. Marion County Election Board,

553 U.S. 181 (2008) .......................................................................................... 121

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) ............................................................................ 140

Frank v. Walker,

819 F.3d 384 (7th Cir. 2016) .................................................................... 130, 148

Ga. State Conference of NAACP v. Fayette Cty. Bd. of Comm’rs,

775 F.3d 1336 (11th Cir. 2015) ................................................101, 137, 140, 145

Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ........................................................................ 114

Gonzalez v. Arizona,

677 F.3d 383 (9th Cir. 2012) (en banc) .................................................... 142, 143


v

Hawkins v. Persons,

484 So. 2d 1072 (Ala. 1986) ................................................................................. 6

Hereford v. Huntsville,

2015 WL 13398941 (N.D. Ala. Apr. 21, 2015) .................................................. 52

Hispanic Interest Coal. of Ala. v. Governor of Ala.,

691 F.3d 1236 (11th Cir. 2012) .................................................... 48, 49, 105, 106

Hunter v. Underwood,

471 U.S. 222 (1985) .................................................................................. 102, 103

Jean v. Nelson,

711 F.2d 1455 (11th Cir. 1983) ................................................103, 114, 115, 116

Johnson v. Governor of Florida,

405 F.3d 1214 (11th Cir. 2005) (en banc) ........................................................ 137

Johnson v. Hamrick,

196 F.3d 1216 (11th Cir. 1999) ........................................................................ 140

Keyes v. School Dist. No. 1,

413 U.S. 189 (1973) .......................................................................................... 107

Knight v. Alabama,

469 F. Supp. 2d 1016 (N.D. Ala. 2006) .............................................................. 52

Knight v. Alabama,

787 F. Supp. 1030 (N.D. Ala. 1991), aff’d in part, rev’d in part, 14

F.3d 1534 (11th Cir. 1994) ................................................................................. 52

Kolender v. Lawson,

461 U.S. 352 (1983) .......................................................................................... 135

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................................................................. 109, 138

League of Women Voters of N.C. v. North Carolina,

769 F.3d 224 (4th Cir. 2014) .......................................................................passim

League of Women Voters v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ........................................................................ 49, 106


vi

Lee v. Lee Cty. Bd. of Educ.,

476 F. Supp. 2d 1356 (M.D. Ala. 2007), 2009 WL 1231497 (M.D.

Ala. Apr. 28, 2009) ............................................................................................. 52

Lee v. Lee Cty. Bd. of Educ.,

963 F. Supp. 1122 (M.D. Ala. 1997) .......................................................... 52, 135

Lee v. Virginia State Board of Elections,

843 F.3d 592 (4th Cir. 2016) .................................................................... 135, 136

McIntosh Cty. Branch of NAACP v. City of Darien,

605 F.2d 753 (5th Cir. 1979) .................................................................... 110, 138

Michigan State A. Philip Randolph Inst. v. Johnson,

833 F.3d 656 (6th Cir. 2016) ............................................................................ 125

Miller-El v. Dretke,

545 U.S. 231 (2005) .......................................................................................... 114

Mitchell v. Wright,

154 F.2d 924 (5th Cir. 1946) ................................................................................ 1

N.C. State Conference of NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) .......................................................................passim

Newmann v. United States,

938 F.2d 1258 (11th Cir. 1991) ................................................................ 127, 128

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) .................................................................. 139, 140

One Wisconsin Inst., Inc. v. Nichol,

186 F. Supp. 3d 958 (W.D. Wis. 2016) ............................................................ 101

Palmore v. Sidoti,

466 U.S. (1984) ................................................................................................. 122

Peightal v. Metro. Dade Cty.,

26 F.3d 1545 (11th Cir. 1994) .................................................................. 128, 129

Perkins v. Matthews,

400 U.S. 379 (1971) .......................................................................................... 144


vii

Pleasant Grove v. United States,

479 U.S. 462 (1987) .................................................................................... 51, 110

Quigg v. Thomas Cty. Sch. Dist.,

814 F.3d 1227 (11th Cir. 2016) ................................................................ 113, 114

Rogers v. Lodge,

458 U.S. 613 (1982) .......................................................................................... 104

Shelby County v. Holder,

133 S. Ct. 2612 (2013) .......................................................................... 49, 65, 115

Smith v. Meese,

821 F.2d 1484 (11th Cir. 1987) ............................................................................ 1

Stout v. Jefferson County Bd. of Educ.,

250 F. Supp. 3d 1092 (N.D. Ala. 2017) ...................................................... 52, 100

Teague v. Attala Cty.,

92 F.3d 283 (5th Cir. 1996) .............................................................................. 134

Thornburg v. Gingles,

478 U.S. 30 (1986) .......................................................................................passim

Underwood v. Hunter,

730 F.2d 614 (11th Cir. 1984) .......................................................................... 106

United States v. Alabama,

691 F.3d 1269 (11th Cir. 2012) ........................................................................ 105

United States v. Dallas Cty. Comm’n.,

739 F.2d 1529 (11th Cir. 1984) ...................................................................passim

United States v. Gordon,

817 F.2d 1538 (11th Cir. 1987) ............................................................................ 1

United States v. Gordon,

836 F.2d 1312 (11th Cir. 1988) ............................................................................ 1

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) ..................................... 42, 104, 105, 108


viii

Veasey v. Abbott,

249 F. Supp. 3d 868 (S.D. Tex. 2017) ................................................................ 66

Veasey v. Abbott,

796 F.3d 487 (5th Cir. 2015) ............................................................................ 138

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) .................................................................. 66

Vill. of Arlington Heights v. Metro. Hous. Development Corp.,

429 U.S. 252 (1977) .....................................................................................passim

Wate v. Kubler,

839 F.3d 1012 (11th Cir. 2016) ........................................................................ 101

Wesch v. Hunt,

785 F. Supp. 1491 (SD Ala. 1992), aff’d 6 F.3d 1465 (11th Cir.

1993) ................................................................................................................... 50

Wright v. Southland Corp.,

187 F.3d 1287 (11th Cir. 1999) ........................................................................ 102

Wright v. Sumter Cty. Bd. of Elections & Registration,

657 F. App’x 871 (11th Cir. 2016) ................................................................... 101

Young Apartments, Inc. v. Town of Jupiter,

529 F.3d 1027 (11th Cir. 2008) ................................................................ 102, 123

Statutes

52 U.S.C. § 10101 .................................................................................................. 143

52 U.S.C. § 10301 .......................................................................................... 124, 148

52 U.S.C. § 10304 .................................................................................................... 19

52 U.S.C. § 10501 .................................................................................................. 143

52 U.S.C. § 10508 .............................................................................................passim

Ala. Admin. Code § 820-2-9-.01 et seq. ...................................................... 16, 17, 84


ix

Ala. Code § 17-4-127 (1978) ..................................................................................... 6

Ala. Code § 17-9-30 ..........................................................................................passim

Ala. Code § 31-13-2 ......................................................................................... 48, 105

Ala. Code § 32-6-1 ................................................................................................... 16

Ala. Code § 32-6-4 ............................................................................................. 15, 16

Fed. R. Civ. P. 56(a) ............................................................................................... 100

Ga. Code Ann. § 21-2-381(b) .................................................................................. 66

Ind.Code Ann. § 3-11-8-25.1(e) .............................................................................. 66

Ind. Code Ann. § 3-11.7-5-2.5(c) ............................................................................ 66

Tex. Elec. Code §§ 82.001 to 82.004 ................................................................. 66, 67

Tex. Elec. Code § 65.054 ......................................................................................... 67

Other Authorities

Alabama. DOJ-CRD, Housing Cases Summary Page,

https://www.justice.gov/crt/housing-cases-summary-page ................................ 53

Central Ala. Fair Housing Ctr. v. Magee,

No. 2:11-cv-982 (M.D. Ala. Nov. 23, 2011), ECF No. 68 ..................... 45, 46, 63

Currency, Answers About Identification,

https://www.helpwithmybank.gov/get-answers/bank-

accounts/identification/faq-bank-accounts-identification-02.html ....................... 6

http://blog.al.com/breaking/2014/05/6_opinions_from_

wayne_flynt_on.html .......................................................................................... 44

https://newrepublic.com/article/119019/civil-rights-movement-going-

reverse-alabama .................................................................................................. 43

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/LA-

2250.pdf ................................................................................................................ 7

https://www.tsa.gov/travel/frequently-asked-questions ............................................ 6


x

Letter from Patrick Deval,

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/L

A-2250.pdf ........................................................................................................ 6, 7

Mobile County License Commission, Driver License General

Information,

http://www.mobilecountylc.com/media/1116/reqdldoc.pdf ......................... 26, 27

U.S. Dep’t of Justice, Civil Rights Div., Voting Determination Letters

for Alabama, http://bit.ly/2ibn3qS (Nov. 3, 2017) ..................................... 51, 109

U.S. Dept. of Transp. and ALEA (Dec. 22, 2016),

http://bit.ly/2gLgNJE .......................................................................................... 53


1

RESPONSE TO DEFENDANT’S STATEMENT OF FACTS

1. Disputed. The first Alabama law to require voters to display their registration

certificates (voter identification) at the polls was the Sayre Election Law in 18931

and, beginning in the 1940s, Alabama required vouchers as proof of identity.2

2. Disputed. In the late 1980s, when legislators first began to introduce voter ID bills,

prosecutions of Black activists in Alabama brought widespread public attention to

alleged absentee ballot fraud. PXO-I (Kousser Decl.), Ex. 1 (Kousser Rpt.) ¶¶ 34,

43-48. It was widely understood that these prosecutions were intended to discourage

increased Black voter participation in the “Black Belt”. PXO-DD (Sanders Dep.) at

39:16-48:21, 178:5-180:5; DX-68 at 215:7-216:8, 341:15-344:1; PXO-X (Douglas

Dep.) vol. 1 at 118:14-125:14; PXO-F (Figures Dec.) ¶ 11; see also Smith v. Meese,

821 F.2d 1484, 1486 (11th Cir. 1987); United States v. Gordon, 817 F.2d 1538, 1540

(11th Cir. 1987). These prosecutions led to acquittals or federal courts later reversing

the convictions. PXO-I, Ex. 1 ¶¶ 41-46; see also Bozeman v. Lambert, 487 F. Supp.

1021 (M.D. Ala. 1984), aff’d 762 F.2d 1022 (11th Cir. 1985); United States v.

Gordon, 836 F.2d 1312 (11th Cir. 1988).

3. Disputed. Murdock found no evidence of in-person voter impersonation fraud in

any of his investigations. PXO-M (Murdock Sup. Decl.) ¶ 1. In 1995, according to

1 Brown v. Bd. of Sch. Comm’rs of Mobile Cty., 542 F. Supp. 1078, 1091 (S.D. Ala. 1982), aff’d,

706 F.2d 1103 (11th Cir. 1983), aff’d, 464 U.S. 1005 (1983). 2 Mitchell v. Wright, 154 F.2d 924, 927 n.10 (5th Cir. 1946).

(continued…)


2

then-Secretary of State Bennett, state officials began to publicly raise concerns about

the purported need for voter ID bills because the National Voter Registration Act of

1993 (NVRA) was going into effect for the first time.3 The NVRA allowed mail-in

registration and registration at motor vehicle and welfare offices and led to 180,000

new registrants in 1995 who were disproportionately Black and poor voters. PXO-I,

Ex. 1 ¶ 62. The Republican State Chairman said he was uneasy about these new

registrants because “Those people have not been voting with us.” Id. Sen. Larry

Dixon, the chief sponsor of photo ID bills from 1995 to 2010, said his 1995 bill was

“definitely being used to make sure the [NVRA] is not used to fill up the voter rolls

with people registered under more than one name.” PXO-I, Ex. 1 ¶ 62.

4. Disputed. Hearsay objection to the extent the Secretary relies on the Murdock

video for the truth of the matter asserted. The video largely references unverified

rumors. Mr. Murdock never investigated, nor is he aware of, any impersonation

fraud at the polls. PXO-M ¶ 1. In 1996, Secretary Bennett wrote in an op-ed that he

was unaware of any voter impersonation fraud: “It is in the area of absentee voting

—voting done out of sight—where most of our problems originate, not in voting at

the polls.” PXO-I, Ex. 1 ¶ 63. Secretary Bennett’s spokesperson said that support for

a voter ID bill was “more to cover a potential loophole in the future,” not to address

3 PXO-I, Ex. 1 ¶ 34; PXO-DD at 32:2-9 (“this effort to get voter ID was a reaction to the voter

motor law”), id. at 55:15-56:12 (“once the motor voter act passed, th[e] [voter ID law] was just a

continuing of—of those long history of efforts” to disfranchise Black voters).


3

existing issues. Id. Then-Lt. Gov. Don Siegelman, a former Secretary of State,

declared that a voter ID law was unnecessary because “election officials have the

power now to require someone to produce an ID if they believe the person is not the

one listed on voting records.” Id. ¶ 67.

5. Admitted. However, Mr. Murdock’s allegations of fraud did not involve in-person

voter impersonation fraud. PXO-M ¶ 1. Hearsay to the extent the Secretary relies on

the article for the truth of the matters asserted.

6. Admitted.

7-8. Disputed. Absentee Voting Relevance Objection.4 Hearsay to the extent the

Secretary seeks to rely on the article for the truth of the matters asserted.

9. Disputed. Absentee Voting Relevance Objection. Hearsay to the extent Ms.

Montgomery did not herself witness Spiver Gordon following the mail truck and

removing absentee ballots from mailboxes.

10-12. Disputed. Absentee Voting Relevance Objection.

13. Disputed. Absentee Voting Relevance Objection. Hearsay to the extent Biggs

did not review the evidence himself.


16. Disputed. Absentee Voting Relevance Objection. Objection as to hearsay to the

4 Disputed on the grounds of relevance as: (a) the investigations at issue in this paragraphs all

concerned absentee voter fraud allegations, not in-person impersonation fraud; and (b) all of these

elections took place before the 1996 law changing the absentee voting requirements.


4

extent that Defendant intends to rely on the statements of the absentee voters for the

truth of the matter asserted.

17. Disputed. Absentee Voting Relevance Objection. Objection as to hearsay to the

extent Murphy did not observe this evidence himself.


21. Disputed. Absentee Voting Relevance Objection.

22-23. Admitted.

24. Disputed. Objection as hearsay to the extent the Secretary relies on the op-ed for

the truth of the matter asserted.

25. Disputed. Black Senators voted for a compromise voter ID bill, which, unlike

HB 19, allowed the use of 14 forms of photo and non-photo ID and let voters without

ID sign a sworn affidavit; but, the bill failed due to Black opposition in the House.

PXO-I, Ex. 1 ¶¶ 81-90.

26. Disputed. Sen. Roger Smitherman first proposed a “clean” early voting bill to

increase turnout in Alabama. He added a photo ID requirement only at the insistence

of Secretary Merrill as a logroll to gain needed Republican support. DX-32.

27. Admitted.

28. Disputed. There was no consensus amongst the newspaper editorial boards.

Some editorial boards expressed opposition to voter ID bills in the late 1990s. For

instance, an May 3, 1999 editorial in the Anniston Star opposed voter ID bill. PXO-

I, Ex. 1 ¶ 96.


5

29. Disputed. Attorney General Pryor was not aware of any voter impersonation

fraud. PXO-I, Ex. 1 ¶¶ 83, 97, 226. The Secretary mischaracterizes the evidence to

the extent that he asserts that HB 19 has in fact “restored” voter confidence and

increased turnout. Hearsay to the extent Defendant seeks to rely on Pryor’s statement

for the truth of the matters asserted.

30. Disputed. Hearsay, lack of foundation, and mischaracterization. Plaintiffs’

Disputed Facts (“PDF”) ¶¶ 1-23.

31. Admitted.

32. Disputed. Not relevant. Mr. Biggs’s opinions regarding voter fraud are not

relevant to the case. No foundation: The statement is speculative and is not based on

personal knowledge. Hearsay to the extent Defendants seek to rely on rumors Mr.

Biggs heard from others about the dead voting.

33. Disputed. Hearsay. Mr. Stewart was stating what he had “read in one of the

papers.” DX-84 at 227:8.

34. Disputed. There is no evidence that the Legislature in 2011 knew about any

reports or allegations of voter impersonation fraud. Plaintiffs’ Undisputed Facts

(“PUF”) ¶ 104.

35. Admitted.

36. Admitted that this statement appeared in the preclearance statement, but disputed

and objected to as hearsay to the extent the Secretary relies on it for the truth of the

matter asserted. Under a prior law, poll officials could challenge a voter and require


6

the voter to show his/her voter registration certificate. Ala. Code § 17-4-127 (1978);

see also Hawkins v. Persons, 484 So. 2d 1072, 1072-73 (Ala. 1986).

37. Disputed. Objection as hearsay to the extent the Secretary relies on the statement

for the truth of the matter asserted. Before 2000, the adoption of voter ID laws

attracted significant “fanfare” and controversy in Alabama and elsewhere. PXO-I,

Ex. 1 ¶¶ 34-103. For example, the DOJ objected to Louisiana’s photo ID law in 1994

under Section 5 of the Voting Rights Act because of its likely disparate impact on

Black voters. Nov. 21, 1994 Letter from Patrick Deval,

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/LA-2250.pdf.

38. Admitted that statement is a quote from the Baker-Carter Report, but objection

as hearsay to the extent the Secretary relies on it for the truth of the matter asserted.

39. Admitted that this is a quote from the Baker-Carter Report, but disputed and

objection as hearsay to the extent the Secretary relies on it for the truth of the matter

asserted. Photo ID is not required to board a plane, or cash a check.5 Further, voting

is a fundamental right, the other identified activities, e.g., a boarding a plane, are not.

40. Disputed. Louisiana passed a “strict” photo ID law in 1994. Nov. 21, 1994 Letter

5 U.S. Transportation Security Administration, FAQ: I forgot my identification; can I still proceed

through security screening?, https://www.tsa.gov/travel/frequently-asked-questions (“In the event

you arrive at the airport without proper ID . . . you may still be allowed to fly. By providing

additional information, TSA has other ways to confirm your identity . . . ”); U.S. Department of

Treasury, Office of the Comptroller of the Currency, Answers About Identification,

https://www.helpwithmybank.gov/get-answers/bank-accounts/identification/faq-bank-accounts-

identification-02.html (The bank “can verify [personal] information by comparing the information

you provided with information from a credit-reporting agency or by checking prior bank

references”).


https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/LA-2250.pdf

7

from Patrick Deval.

41. Admitted that the Indiana law survived a legal challenge different than the one

at issue in this case.

42. Admitted that, after an earlier version of the Georgia photo ID law was found to

be an unconstitutional poll tax, Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326,

1367 (N.D. Ga. 2005), the Eleventh Circuit upheld an amended version of the law,

in a case that raised different claims from the claims at issue in this case.

43. Admitted.

44. Admitted that the Alabama Department of Revenue used to confirm taxpayer

identity with dates of birth and Social Security Numbers, and that taxpayers are now

asked to provide ALEA-issued ID numbers.

45. Admitted.

46. Admitted that the Alabama Department of Public Health implemented proof of

identity requirements. Objection on the ground of improper expert testimony as to

whether such requirements are “standard in the industry.”

47. Disputed. Forgery Relevance Objection.6

48. Disputed. Forgery Relevance Objection. Admitted that Alabama power bills

6 Not relevant as the evidence demonstrates that: (1) cases of in-person voter fraud in Alabama are

extremely rare, see PUF ¶¶ 103-08; (2) Alabama’s absentee voter law permits an absentee voter to

submit a photocopy of a photo identification, Ala. Code § 17-9-30(b); (3) a person reviewing an

absentee ballot and a photocopy of a photo identification can also not look at the person who

submitted it to compare their picture to a physical human being; and (4) forging a photo

identification is not even necessary to commit voter fraud, PUF ¶¶ 109-18.


https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/LA-2250.pdf

8

have been forged. Admitted that Special Agent Moore testified that “Like bank

statements and Social Security Income statements, utility statements are easy to

forge.” No foundation: Lack of personal knowledge as to Special Agent Moore’s

statements that (1) “utility statements are easy to forge” and (2) Alabama power bills

are “not ‘a reliable identification document.’” His declaration details investigations

involving the forgery of bank statements and Social Security Income statements, not

utility bills. DX-111 ¶ 4.

49. Disputed. Forgery Relevance Objection. Admitted that Detective Alexander

made these statements with clarification. Detective Alexander also testified that it is

not harder to forge a photocopy of a photo ID than to forge a photocopy of any other

identification document. PUF ¶ 114.

50. Disputed. Forgery Relevance Objection.

51. Disputed. Forgery Relevance Objection. Mischaracterization of evidence.

Detective Alexander stated she had seen successfully forged photo identifications.

DX-91 ¶¶ 2, 4.

52. Disputed. Forgery Relevance Objection. Mischaracterization of the evidence as

Special Agent Moore also testified that, regarding photocopies of certain types of

photographic identification, “you could, yes, mass produce them like you could the

utility bill.” DX-76 at 49:17-18.

53-54. Disputed. Forgery Relevance Objection.

55. Disputed. Mischaracterization of the evidence as Agent Moore also testified that,


9

regarding certain types of photo ID, “you could, yes, mass produce them like you

could the utility bill.” PUF ¶ 115. Det. Alexander also testified that it is not harder

to forge a photocopy of a photo ID than to forge a photocopy of any other

identification document. Id. ¶ 114.

56. Disputed. Mischaracterization of the evidence as Det. Alexander testified that

the holograph would appear on a photocopy of the driver’s license. DX-122 at 30:17-

23, 34:12-16.

57. Disputed. Forgery Relevance Objection No foundation, based on speculation.

58. Disputed. Not relevant. The evidence shows that voters will readily hand over

their photo ID to individuals seeking to commit absentee voter fraud. PUF ¶ 112.

59. Admitted.

60. Admitted that Faye Cochran made this statement.

61-62. Admitted.

63. Disputed. Hearsay regarding rumors of voters being impersonated at the polls.

64-65. Disputed. Signature Relevance Objection.7

66. Admitted.

67. Disputed. Not relevant and not material as to the circumstances of Mr. Barrows’

arrest.

7 Not relevant as to the signature comparison, since many types of photo identification accepted

for absentee ballots in Alabama—including the Alabama photo voter identification card, Ala. Code

§ 17-9-30(h)—do not contain a signature.


10

68. Disputed. Not relevant and not material as to the recusal of Circuit Judge Marvin

Wiggins from the Tinker case.

69. Disputed. Not relevant and not material as to the relevance of the press coverage

of these matters.

70. Admitted.

71. Gordon testified that he visited people in the nursing home who were “blind” or

disabled and should not have been allowed to vote. See DX-67 32:19-33:11; 34:6-

15. This is incorrect. 52 U.S.C. § 10508. Gordon was not sure if all the absentee

ballots that were overturned came from the nursing home. Id. at 90:4-16. All of the

absentee ballots that were overturned contain photo IDs with them. Id.at 91:14-

92:12.

72. Disputed. Gordon did not know whether the “formal hearing-type procedure”

regarding the absentee ballots was in front of a judge or the Democratic party. Id. at

31:21-32:8; 87:16-23. Gordon testified in his opinion that there was “signature

manipulation,” but he did not testify that the handwriting expert came to the same

conclusion. Id. at 32:19-33:4. Further, Gordon testified that he has encountered

patients who have difficulty getting an ID. Id. at 46: 5-7. Most of his patients without

ID are African American. Id. at 70:18-23. Gordon accepts patients with any form of

photo I.D. or if somebody can say who the patient is. Id. at 67:4-17, 68:1-10.

73. Undisputed. However, Gordon noted that most of the voters he visited after the

election lived in a nursing home called Eight Mile Nursing Home. Dr. Gordon went


11

by the nursing home “every day” after the City of Prichard bus service was cut off

by the City of Mobile in May 2016 and he began a bus service for six months. Id. at

28:11-23; 74:16-21. The service ended in November 2016. Id. at 28:11-23.

74. Disputed. Gordon has not “been for a while locally” to a Mobile NAACP

meeting though he is a “member” and he is not an officer at his local branch. Id.at

20:16-21; 84:12-20. Gordon does not know what photo ID requirements were in

place when he served in the Alabama Legislature from 2006 to 2010. Id. at 44:3-13.

Gordon did not know if the photo ID requirement itself would have made the 2006

election “more honest.” See Id.at 93:2-16. Gordon does not know what is required

for voting absentee in relation to the photo ID law. Id.at 78:4-12. Gordon voted to

delay the 2009 voter ID bill which was similar to the 2011 photo ID bill. Id.at

107:11-16. Gordon testified that the cost and travel required to get an ID came up

while the photo ID bill was being discussed. Id. at 51:3-7; 79:12-21.

75-76. Admitted. However, because Mr. Hernandez-Hernandez had obtained a

photo ID in someone else’s name, HB 19 would not have stopped him from voting.

77. Disputed. Not relevant as this case concerned absentee voter fraud, not in-person

impersonation fraud.

78. Not relevant. There are no allegations or evidence in the records that suggests

that these ballots were cast by anyone other than the voters.

79. Disputed, no foundation for the assertion that the handwriting on the absentee

application and on the absentee ballot affidavit did not match: Scarbrough is not a


12

handwriting expert.

80. Admitted.

81. Disputed. No foundation: Woodall is not a handwriting expert, thus her

statement does not support the assertion that the handwriting on the absentee

applications and on the absentee ballot affidavits are the same. DX-88 at 80:9-11.

82-96. Admitted.

97. Disputed. No foundation: Lambert’s declaration only indicates that he personally

worked on a voter fraud case in Clay County, a case that he neither started nor

finished. DX-107 at 2, ¶ 8. Thus, no basis for the assertion that the lack of

convictions for voter fraud does not indicate that voter fraud is not occurring:

98. Admitted.

99. Hearsay to the extent that Defendant intends to rely on the reports made to

Chapman for the truth of the matters asserted.

100. Admitted.

101. Disputed. Hearsay. Mischaracterization of the evidence as Judge King testified

that he has “no idea” as to whether the allegation was ever even reported or

investigated. DX-73 at 107:21-109:1.

102. Disputed. Hearsay.

103. Admitted.

104. Disputed to the extent the Secretary claims that there was anonymity amongst

newspapers in support for photo ID bills.


13

105. Admitted.

106. Disputed. Mischaracterization of the evidence as Mr. Beasley’s only

“evidence” that persons from other counties were coming to Hale County to vote

was that he “saw numerous car tags at Greensboro’s largest polling place.” DX-62

at 37:20-21. Mr. Beasley acknowledged that he did not know if anyone from any of

the cars he observed voted, and that if they did vote he also did not know if they

impersonated someone else when voting. Id. at 39:1-45:6.

107. Disputed. Not relevant and not material as to Mr. Beasley’s views regarding

the appropriate use of the state’s resources. Disputed as a mischaracterization of the

evidence that the investigations and prosecutions were not racially motivated. Mr.

Beasley testified that he has never investigated—or heard of any investigation in

Alabama—in which the alleged perpetrator was white. Id. at 58:16-63:1.

108-109. Admitted.

110. Disputed. Mischaracterization of evidence to state that the Democracy Defense

League (“DDL”) was multi-racial. See PUF ¶ 127. Admitted the DDL was founded

in 2005 by Perry Beasley and Faye Cochran.

111. Disputed. Not relevant, not material, and no foundation for Mr. Beasley’s

biased, unsupported lay opinion concerning the 2003 voter ID law. See PUF ¶ 128.

112-114. Admitted.

115. Disputed. Mr. Harris’s supplemental declaration states, “the extensive use of

cloture in 2011 was a departure from past practices. The use of cloture motions


14

increased contemporaneously when Republicans obtained a super majority in the

Senate in 2010.” DX-101 ¶ 6. Senators also testified that the frequent use of cloture

in 2011 departed from past practices. PXO-F ¶ 9; PXO-DD at 88:2-90:8.

116. Disputed. The frequent use of cloture in 2011 was a departure from the past

practices in the House. According to Mr. Woodard’s supplemental declaration, in

2011, there were 12 cloture votes, but only 3 cloture votes in 2010, no cloture votes

in 2009, 1 such vote in 2008, and 2 cloture votes in 2007. PXO-T (Woodard Sup.

Decl.) ¶ 3.

117-118. Admitted.

119. Admitted that Cochran and Beasley made these statements.

120. Disputed. No foundation for Mr. Beasley’s unsupported lay opinion as to

whether it is possible for a Photo ID law to prevent anyone from voting.

121. Disputed. Not relevant, not material, and no foundation supporting Beasley's

speculative lay opinion regarding the effect of the invalidation of the Photo ID law.

Not relevance and no foundation supporting Cochran's speculative lay opinion

regarding fraud.

122. Disputed. Not relevant, not material, and no foundation for Beasley’s

unsupported and speculative opinions concerning the effect of the photo ID law.

123. Disputed. No foundation: The DDL’s opinion concerning the effect of a photo

ID is a speculative lay opinion.

124. Disputed. Mischaracterization of the evidence concerning the DDL and its


15

biased founders. See PUF ¶¶ at 128-129.

125. Admitted.

126. Admitted that HB 19 first became operative with the June 2014 statewide

primary elections. Disputed that this was “to provide time for publicity and for voters

to adjust.” See PUF ¶¶ 41, 96; PXO-I, Ex. 1 ¶ 176.

127. Admitted.

128. Admitted that Ala. Code § 17-9-30(a) lists seven categories of photo IDs that

can be used to satisfy Alabama’s photo ID voting requirement.

129. Admitted that there is no existing list of all forms of identification that could

be used for voting under HB 19; disputed that the reason this list does not exist is

that there are “too many forms” of photo ID that could be used to vote.

130. Admitted that Ala. Code § 32-6-4(a)(1) prescribes that initial driver’s licenses

and non-driver ID cards are available only at ALEA offices, and that renewals can

be obtained from “the judge of probate or license commissioner of the county of his

or her residence.”

131. Admitted in that the Secretary accurately quotes Ala. Code § 32-6-1(b).

132. Admitted that, under certain conditions, a driver’s license that has been expired

for three years or less can be renewed without going to an ALEA office.

133. Admitted.

134. Disputed. There is no record of any voter ever receiving a non-driver ID card

for voting purposes after the expiration of their driver’s license, and ALEA offices


16

actively discouraged registered voters from receiving such free non-driver ID cards.

See DX-79 at 134-153; DX-71 at 262-263.

135-138. Admitted.

139-162. Admitted that the entities described in paragraphs 139 through 162

provided information concerning the number—and in some cases, the racial

breakdown—of photo IDs issued by those entities. Plaintiffs object to the

introduction of this evidence as irrelevant to the determination of the number of

Alabama registered voters without a photo ID.

163. Admitted.

164. Disputed. The regulations promulgated to implement the photo ID law state

that voters can only apply for voter ID cards at their local Board of Registrars or

from the mobile unit in their county. DX-4 (Ala. Admin. Code § 820-2-9-.01 et seq.).

165-166. Admitted.

167. Disputed. Mischaracterization of materials cited. The materials only show

communication to a single Registrar and they do not contain an explicit instruction

not to ask why an applicant wants a voter ID card. DX-64 at 213:14-214:21, Ex. 5

at 1-2.

168. Disputed. Mischaracterization of materials cited. The materials only show

instructions to two Registrars that persons with expired or lost IDs are eligible for a

voter ID card. The cited materials do not support proposition that the Secretary has

instructed that a person in possession of a suspended license is eligible for a voter


17

ID card. DX-71 at 214:17-215:23; DX-64 at 214:22-215:9.

169–182. Admitted.

183. Admitted to the extent that Dr. Marker made the statement attributed to him.

PXO-L (Marker Decl.), Ex. A (Marker Rpt.) ¶ 5.

184. Admitted.

185. Disputed. The cited materials do not support the proposition that the schedule

for the mobile unit was developed with input from every mayor’s office, but only

that every mayor’ office was “contacted.” DX-109 ¶ 5.

186-190. Admitted.

191. Disputed. While a voter can request a home visit through the Secretary website,

such a request does not guarantee that a representative from the Secretary’s office

will make a home visit; the Secretary has a “check list to determine if [a person]

actually need[s] it.” DX-75 at 90:21-22. The Secretary does not take “[the

requester’s] word” on whether they need a home visit and reserves the right to deny

a home visit when he feels like he is being “embarrass[ed]” or the State is being

“take[n] advantage of.” Id. at 98:4-5. The Secretary formerly took a requestor’s word

for the need for a visit, because the protocol before was that if someone “just called

. . . then [they] would go to [his or her] home.” Id. at 91:20-92:4. Now, however, he

screens home visit requests to first determine that, in his judgment, a person “can’t

go somewhere” for help. Id. at 93:22-23.

192. Admitted.


18

193. Disputed. While the Secretary did make the statement, he also said that he is

“not going to let anybody take advantage of the State of Alabama because that’s not

right.” Id. at 98:7-9. Mobile ID units and county boards of registrar’s office have

rejected the voter ID applications from dozens of people for vague and improper

reasons. PXO-E (Castopheny Decl.) ¶ 6; DX-87 at 77:13-81:15.

194. Admitted.

195. Disputed. While the Secretary has “promulgated various regulations to

implement the photo ID law,” it has not implemented any regulations detailing how

poll workers should implement the positively identify provision, nor defined how or

when a poll worker can vouch for a voter’s identity. See DX-4 at 15-16.

196. Disputed. While in a letter about the 2003 Voter ID Law—which is not at issue

here—the DOJ did call a positively identify provision a “failsafe,” this does “not bar

subsequent litigation to enjoin the enforcement of the [law].”8 In 2011, the DOJ

objected to a similar “failsafe” provision in South Carolina’s photo ID law. PXO-I,

Ex. 1 at 73-77.

197. Disputed. While poll workers are trained generally on the Positively Identify

Provision, there is no specific guidance defining “positively identify.” DX-60

(Atkeson Dep.) at 10:12-18.

8 DX-49 at 1-2; see also 52 U.S.C. § 10304(a) (“Neither an affirmative indication by the Attorney

General that no objection will be made, nor the Attorney General’s failure to object, . . . shall bar

a subsequent action to enjoin enforcement”).


19

198. Admitted only as to legal eligibility for provisional ballots, but not as to the

practices of poll workers and Boards of Registrars in Alabama with respect to

provisional ballots. Ala. Code § 17-9-30(d); id. § 17-10-2(a)(3).

199-200. Admitted.

201. Admitted, partially disputed, and clarified. Judge Tatum testified that poll

workers in Bullock Country are trained and that the training includes “the option to

cast a provisional ballot.” DX-119 ¶ 14 (emphasis added). But disputed in that Judge

Tatum did not indicate that poll workers are trained “to offer provisional ballots” to

voters without photo ID. Id. Neither Tatum nor King testified about provisional

ballot related training in other counties.

202-204. Admitted.

205. Admitted and clarified. Evidentiary materials cited do not include specific

details regarding the frequency, location, date, length, or reach of Secretary Merrill’s

public statements. DX-93 ¶ 2.

206. Admitted that Ms. Marsal made the quoted statement, but Plaintiffs’ dispute

her assertion that “substantial time and resources” were spent. DX-109 ¶ 7.

207. Disputed. Cited materials do not support proposition that publicity efforts are

ongoing. DX-63 at 17:17-18:15, 20:18-21:8.

208. Disputed. Cited materials do not support proposition that vendors were

specifically consulted with to determine the best way to reach the public. Id.

209. Admitted to the extent that quoted language reflects a statement by the


20

Secretary of State. Objection as to the relevance of Secretary of State’s stated but

unrealized goals.

210. Admitted and clarified. The cited evidence shows ads featuring five

individuals, four of whom are involved in athletics, including two Black voters. DX-

6 at 106-107.

211. Admitted.

212. Admitted.

213. Disputed. Unclear what “all” refers to and stated proposition is a conclusion

not a fact.

214. Disputed. Lack of foundation and mischaracterization. Mr. Brewer does not say

the Secretary had not definitely received requests to advertise services in Spanish.

Rather, Mr. Brewer states that he “does not believe” the Secretary of State has

received such requests. DX-63 at 21:18-20. The Secretary’s cited materials do not

show that Mr. Brewer would have knowledge of all requests for Spanish translations

received by the Secretary of State. Id. Indeed, in October 2015, Latino members of

the NAACP asked Secretary Merrill to make voting materials available in Spanish,

and he denied that request. PXO-AA (Portillo Dep.) at 48:13-17. The Secretary said,

“The official language of the United States is English. When you come to the United

States, you are coming here to improve your life. I’m not saying that learning English

will improve your life, but it will help you become a [better] citizen when you get

here.” PXO-I, Ex. 1 ¶ 182. Isabel Rubio, the executive director of the Hispanic


21

Interest Coalition of Alabama, testified that she was not aware of any Spanish

translators or Spanish voting materials, and never saw any at her polling place, but

that such resources would be helpful to Latinos. PXO-CC (Rubio Dep.) at 56:8-19.

215. Admitted only to the extent quoted statements were made. Statements related

to Brewer’s mother and his own heritage are not relevant. Disputed and not relevant

to the extent that cited materials provide no details regarding what materials were

translated and whether they relate to voting information or HB 19. DX-63 at 97:3-8,

118:23-119:15. The Secretary was made aware that there was a need for Spanish

materials in at least 2015. PXO-AA at 48:13-17. Plaintiffs and civil rights groups

have translated voting materials into Spanish to assist Latino voters in Alabama. Id.

at 49:4-7; PXO-X vol. 1 at 139:23-140:18; PXO-Y (Fountain Dep.) at 32:11-36:7.

216. Admitted that Dr. Siskin performed a matching analysis between Alabama’s

voter registration file and certain government photo ID databases, and that Dr. Siskin

did not (and could not) compare the voter file to every photo ID database. Further

admitted that matches could be under-inclusive because of differences between the

databases compared. Disputed to the extent the Secretary’s Statement of Facts

implies that the list could not also be over-inclusive because those same differences

or others (e.g., lost photo IDs). PXO-P (Siskin Decl.), Ex. A (Mar. 21, 2017 Siskin

Rpt.) at 25.

217. Admitted.

218. Admitted that when applying Dr. Marker survey results, Dr. Siskin estimated


22

that 29,491 (1.37%) White, 20,087 Black (2.44%), and 528 Hispanic registered

voters (2.29%) have no photo ID. PUF ¶ 4.

219. Admitted.

220. Admitted that Dr. Hood removed additional categories of registered voters from

Dr. Siskin’s no-match list, and that the total number of registered voters Dr. Hood

states he removed was 103,636. Disputed to the extent the Statement of Facts implies

that such reductions were accurate or reasonable.

221. Admitted that Dr. Hood’s expert report states that the removal of the registered

voters referenced in Paragraph 220 reduced the number of Black registered voters

on the no-match list by 38%, and the number of white and Latino registered voters

on the no-match list by 32.5%. Disputed to the extent the Statement of Facts implies

that such reductions were accurate or reasonable.

222. Admitted that Dr. Hood’s expert report concluded that 19,900 white voters

(0.87%), 12,448 Black voters (1.44%), and 356 Hispanic voters (1.26%) had no valid

photo ID. Disputed to the extent the Statement of Facts implies that such reductions

were accurate or reasonable.

223. Admitted.

224. Admitted and clarified. Ms. Silvers attempted to get a new non-driver ID just

two months after the fire, but was unable to due to government officials requesting

multiple forms of additional identification. DX-82 at 32:16-35:17.

225. Disputed. Ms. Silvers did not know she needed an ID to vote in March 2016


23

because she had previously used a non-photo ID to vote. Id. at 38:22-39:4. In the

March 2016 election, she tried to use a photocopy of her non-driver ID to vote, but

was not permitted to do so and was turned away by poll officials without being

offered a provisional ballot. Id. at 61:15-62:11. To the extent Ms. Silvers would have

tried to obtain a photo ID even if she did not need it to vote, she nonetheless would

have faced the same roadblocks to obtaining a photo ID, including finding and

paying for a ride to Eutaw. Id. at 45:10-13.

226. Disputed. Ms. Silvers testified that she obtained photocopies of her prior non-

driver ID. Id. at 58:18-61:11.

227. Admitted.

228. Admitted and clarified. Although poll workers did not know her, Ms. Silvers

was not asked to present a photo ID when she voted in the November 2016 election.

Id. at 62:12-63:2.

229. Disputed. Ms. Silvers lost a vehicle in a house fire in September 2015. Id.at

29:13-16, 40:4-40:12. After the fire, she did not have a vehicle again until after she

was denied the right to vote in March 2016, and after she obtained a new ID. Id. at

39:23-40:3, 87:5-7. She rarely drove the vehicle and primarily used it for medical

emergencies. Id. at 19:10-21:10. Ms. Silvers had friends and relatives with cars, but

they would consistently charge her $15 to $20 per a ride. Id. at 39:9-22, 87:12-20.

230. Admitted.

231. Admitted and clarified. Ms. Harris’ documents, including her non-driver ID


24

and her Medicaid card, were stolen in 2014. DX-69 at 31:5-10, 46:8-12.

232. Disputed. While Ms. Harris has a smart phone with internet access capabilities,

id. at 13:22-14:4, she must pay to add data to her phone before she can access the

internet. Id. at 56:12-57:1. Ms. Harris does not have a computer or Wi-Fi in her

home. Id. at 14:5-14:7, 57:12-13.

233. Disputed. Admitted to the extent that Ms. Harris lives with Jamie Parker who

uses the car to drive to his two jobs. Id. at 11:1-17, 14:8-22. Ms. Harris does not

drive Mr. Parker’s car. Id. at 23:22-24:3. Prior to Mr. Parker obtaining a car, Ms.

Harris knew friends and relatives who, for a fee of at least $10, would give her a ride

if she needed to go to the county seat in Livingston or elsewhere. Id. at 17:15-19:4,

37:6-38:4, 73:14-74:8. At times, Ms. Harris has had to borrow money from her mom

to pay for rides. Id. at 51:9-11.

234. Admitted and clarified. Ms. Harris went to Livingston after the November

election. Id. at 26:5-8.

235. Admitted.

236. Disputed. Mischaracterization. Ms. Harris recalled one attempt to replace her

photo ID after a case worker told her that she needed an ID to receive food stamps

for her son. Id. at 27:13-28:9. However, Ms. Harris’ testimony does not indicate that

this was her only attempt to get a photo ID. Ms. Harris attempted to get an ID at the

ALEA office about two days later, only after she was able obtain enough money to

get one. Id. at 28:14-20; 55:6-16. Ms. Harris had to borrow money from her mother


25

to pay for both the ride to the ALEA office and the photo ID. Id. at 51:1-11. Ms.

Harris explained that the reason that she did not get her photo ID replaced sooner is

because she could not afford the associated costs until her mother gave her the

money. Id. at 49:3-13, 54:9-55:16, 61:2-66:19. Because Ms. Harris’ mother supports

several other people, she has not always been able to help Ms. Harris with money.

Id. at 49:14-50:23. Ms. Harris got copies of her voter registration records only after

being turned away from the ALEA office and later returning with her voter

registration records. Id. at 28:14-29:9.

237. Admitted and clarified. Ms. Harris had to pay $15 to replace her birth

certificate, which she borrowed from her boyfriend, and had to pay for the ride to

the government office. Id. at 59:12-60:14.

238. Disputed. Elizabeth Ware’s ID was stolen from the hospital while she was

having gall stone surgery. DX-87 at 55:1-3, 82:11-12. To renew her ID, Ms. Ware

would have to meet the “requirements for proof of identity.” DX-95 ¶ 13. According

to the Mobile County Commission website, Ms. Ware would be required to show

either (1) two forms of ID, at least one of which contains a photo and the other from

the “primary” ID list, in addition to a social security card; or (2) three forms of non-

photo ID (one must be from the “primary” list), in addition to a social security card.

The primary list includes a birth certificate, non-driver ID, driver’s license, or

passport; and the secondary list includes a marriage license, military ID, professional

license, and “medical identification insurance card.” See Mobile County License


26

Commission, Driver License General Information,

http://www.mobilecountylc.com/media/1116/reqdldoc.pdf. Ms. Ware lacks a

passport, DX-87 at 59:17-18, driver’s license, id. at 25:16-18, birth certificate, id. at

13:15-14:4, which was destroyed in a fire, or any other form of ID, except for a

social security card and a Medicaid card, id. at 58:18-19, 59:19-20. Thus, she would

not have been able to renew her ID.

239. Admitted.

240. Disputed. The License Commission employees “sometimes offer helpful

suggestions to guide citizens through the [renewal] process,” and in the past, have

“suggested citizens who lost their driver’s license check with their physician to see

if that office has a copy on file.” DX-95 ¶ 13 (emphasis added). There is no

indication in Ms. Ware’s testimony or elsewhere in the record that Commission

employees do, as a matter of practice, or that Ms. Ware was in fact told to check

whether her doctor had a file copy of her ID.

241. Admitted. However, Ms. Ware was unaware of the mobile ID unit home visit

until she became plaintiff in this lawsuit, and her deposition. DX-87 at 95:21-96:20.

242. Admitted.

243. Disputed. A voter ID card is available at the Franklin County courthouse, but

Ms. Ambrosio could not get there because she needed a ride. Although it is about a

mile away, Ms. Ambrosio has never walked from her home to the courthouse-area.

DX-59 at 81:13-81:21. According to Ms. Ambrosio, the road has no sidewalks, the


www.mobilecountylc.com/media/1116/reqdldoc.pdf

27

vehicles drive fast, and she has never seen anyone walk on the roads between her

home and the courthouse. Id. at 94:10-95:1, 109:12-110:1. Her own schedule and

the schedules of her family members with cars, did not permit her going to the

courthouse during its regular hours. Id. at 27:5-27:15.

244. Disputed. Ms. Ambrosio’s schedule is a significant barrier to obtaining a photo

ID, she was required to be present at her extracurricular activities. Id. at 41:19-49:9.

Even on days when Ms. Ambrosio could leave school early or did not have

extracurricular activities, she was required to watch her 4-year old niece. Id. at 41:4-

16; 83:15-84:4; 84:23-85:17. Because of work and childcare responsibilities, Ms.

Ambrosio’s mother was never able to give her a ride to the courthouse. Id. at 43:4-

45:18.

245. Admitted.

246. Disputed. Mischaracterization. While Ms. Ambrosio did know about the

mobile ID unit, she was not aware that it did home visits or that visits could be

scheduled on the weekends. Id. at 37:18-38:23; 83:19-84:4. Ms. Ambrosio explained

that she did not know her weekend schedule yet because she was working every

weekend over the next few months and teaches Sunday school. Id. at 73:5-73:22;

89:10-90:22.

247. Admitted.

248. Disputed. Mischaracterization. Northwest Shoals Community College issues

student IDs to all students. Although the IDs typically include a photo, not all of the


28

IDs include one. DX-77 at 39:21-43:13, Exs. 1, 2. Ms. Ambrosio’s student ID did

not have a photo. Id. at 40:4-41:6. Her student ID has since been lost or stolen. PXO-

A (Ambrosio Decl.) ¶ 4.

249. Disputed. The student ID that arrives without a photo is not temporary. DX-77

at 39:21-43:13.

250-251. Admitted.

252. Disputed. Dr. Stewart’s opinion that turnout comparisons between Alabama

and other states are not meaningful is contradicted by the expert report of Dr. Hajnal,

PDF ¶ 22-23, as well as witness testimony. DX-68 at 211:23-212:12, 360:7-361:12;

PXO-F ¶ 17. No foundation for Dr. Stewart’s assertion that Democrats in other

Southern states like Georgia have greater enthusiasm, and chances of success, than

in Alabama. DX-121 at 8-9; see also DX-84 at 326:7-328:21. To the extent Dr.

Stewart’s claim focuses on Georgia, it is also irrelevant, in that Dr. Hajnal did not

compare Alabama to Georgia.

253. Disputed. According to Sen. Figures, “Democrats in Alabama are in a position

similar to other Democrats in the South, including Georgia, South Carolina, and

Mississippi.” PXO-F ¶ 17. Jerome Gray, a longtime Democratic political operative,

DX-68 at 142:19-143:20, 33:10-34:22, testified that levels of Democratic and Black

voter enthusiasm in Alabama are similar to Democratic and Black voter enthusiasm

in Georgia, Louisiana and South Carolina, id. at 360:7-361:12.

254. Disputed. See Responses to Defendants’ Statement of Facts (“RDS”) ¶ 253.


29

255. Admitted.

256. Disputed. Dr. Hood compared turnout rates for those on versus off the no-match

list, but this comparison is contested by Dr. Hajnal as fundamentally flawed

precisely because, as the Secretary admits, the no-match list compiled by Dr. Siskin

“included people who have IDs.” See PXO-H (Hajnal Decl.), Ex. B (Hajnal Dep.) at

141:9-142:15, 146:7-147:18.

257. Disputed. While turnout rates fell more for those on the no-match list after

implementation of HB 19, Dr. Hood’s assertion that the drop in turnout was greater

for white voters than for black voters is baseless. See PXO-H ¶¶ 21-26.

258. Admitted.

259. Admitted and clarified. Dr. Siskin’s analysis focused on voters without IDs, not

on “voters” generally. PXO-P, Ex. C (April 24, 2017 Siskin Rpt.) at 1 et seq.

260. Disputed. Mischaracterization and not relevant. Dr. Siskin agrees that black

voters are “more likely” to be within walking distance of the closest Registrar’s

office, but does not agree they are “twice as likely” to live within that distance. PXO-

P, Ex. B (Siskin Dep.) at 164:5-13. Further, this is not relevant as to whether black

voters without HB 19 ID, who live more than five miles away from a Registrar’s

office and lack vehicles, are disproportionately burdened as compared to similarly

situated whites.

261. Disputed. Mischaracterization that “we do not know if [voters] are within the

group that lives near or far from a particular office.” Dr. Siskin’s analysis uses


30

probability to accurately estimate the average distance that voters without ID, within

a group, live from a particular office. PXO-P, Ex. C at 2-3.

262-263. Disputed. Lack of foundation, relevance, and not material. Defendant fails

to cite to statement of fact in motion for summary judgment.

264-267. Disputed. Lack of foundation, conclusory, relevance, and not material.

Defendant fails to cite to statement of fact in motion for summary judgment.

268. Partially admitted, partially disputed, and clarified. The provisional ballot data

in the statewide voter database does not indicate whether voters of ID-related

provisional ballots do or do not possess a photo ID. Disputed in that Dr. Hood

provided no evidence that any voters simply forgot to bring their photo ID to the

polls. PXO-JJ (Hood Decl.) at 6 n.7.

269. Partially admitted, partially disputed, and clarified. Dr. Siskin acknowledged

that the number of people who are offered a provisional ballot because of an ID

problem but decline to accept or to cast the ballot is not known. The Secretary’s

statement, however, is misleading in that Dr. Siskin was explaining that the number

of voters affected by HB 19 is likely to be greater than the number of ID-related

provisional ballots cast because voters with ID problems or with no photo ID must

choose “whether or not they want to have a provisional vote” at all. See PXO-P, Ex.

C at 195:3-196:7. For example, several individual Plaintiffs and voters without HB

19 ID testified that they did not cast provisional ballots because they lacked ID and

thus knew that those ballots would never be counted. PXO-A ¶¶ 2, 8; DX-69 at 58:3-


31

59:7; DX-86 at 69:11-71:9, 113:6-114:10.

270-273. Admitted.

274. Admitted that Judge Allen made the quoted statement, but objection as hearsay

and disputed to the extent the Secretary relies on this statement for the truth of the

assertion that HB 19 is not a problem for voters in Pike County.

275. Admitted to the extent that the quoted language reflects a statement by Judge

Hulett, but disputed and objection as hearsay and disputed to the extent the Secretary

relies on this statement for the truth of the assertion that the Positively Identify

Provision is helpful in Lowndes County and that everyone in the county knows each

other. Sen. Sanders, who represents parts of Dallas, Lowndes, and several other

Black Belt counties, PXO-DD at 12:22-13:5, testified that he was concerned about

the Provision because “most of the election officials are white throughout the state”

and the Provision gives white officials the ability to “decide that blacks cannot vote,

whether they know them or not.” Id. at 126:21-131:1; PXO-B (Atkeson Decl.) ¶¶

14-16.

276. Disputed and objection as hearsay as a statement of fact as it represents the

opinion of Probate Judge John E. Hulett.

277. Disputed as Isaac retired prior to the 2016 General Election. DX-105 at 1, ¶ 2.

278. Admitted to the extent that the quoted language reflects a statement by Earleen

Isaac but dispute the accuracy of the statement as well as Isaac’s knowledge of issues

in all rural communities.


32

279. Admitted to the extent that the quoted language reflects a statement by Earleen

Isaac but dispute the accuracy of the statement. Dr. Siskin, Plaintiffs’ expert, and Dr.

Hood, the Secretary’s expert, found that there are statistically significant disparities

in photo ID possession rates between Black and white voters.

280. Admitted that Isaac made the quoted statement but dispute the accuracy of the

statements, particularly the assertion that the positively identify provision is helpful.

281. Disputed. Judge King “guess[ed]” that 80-85% of poll workers have served as

poll workers in Jefferson County. DX-73 at 27:19-28:3. He testified that the

affluence of poll workers is likely to be similar to voters in their precincts, but he

did not address racial demographics, thus the Secretary’s “logical[]” conclusion is

disputed. Id. at 30:15-32:4; PXO-B ¶¶ 14-16.

282. Admitted to the extent that the statement represents Judge King’s personal

knowledge and evidence related to Jefferson County. DX-73 at 114:6-15.

283. Admitted.

284. Disputed as to the general knowledge of people in Macon County. Admitted to

the extent that the statement represents his personal beliefs that most people in

Macon County know about HB 19 and that he does not know anyone prevented from

voting by HB 19. DX-74 at 48:18-49:10.

285. Disputed as Defendant mischaracterizes the testimony of Judge Menefee. It is

not fact that there will be at least two black poll workers at every polling place but

Judge Menefee believes that it is highly likely that there will be. Id. at 93:11-22.


33

286. Admitted to the extent the statement represents the beliefs of Menefee.

287. Admitted.

288. Disputed as a mischaracterization. Judge Tatum testified that HB 19 did have a

negative impact in Bullock County because of “the due diligence, the hard work that

some of the elected officials and other concerned citizens” to attempt to make sure

that the Photo ID law did not negatively impact voters. DX-85 at 48:7-17.

289. Admitted to the extent that this represents a statement by Tatum.

290. Admitted.

291. Disputed as not relevant. Ms. Williams is no longer a plaintiff. Further, Ms.

Williams lacked any form of HB 19 ID and, therefore, was required to vote pursuant

to a voucher test, a method of voting that is strictly forbidden under Section 201 of

the VRA.

292. Disputed as a mischaracterization. To force the white chief inspector to simply

follow the law and allow two Black voters to use the Provision, Mr. Gray was

required to go great lengths, including calling the Secretary’s office. DX-68 at

266:15-272:16. Yet, that chief inspector continues to misapply HB 19. Id. 265:20-

272:21; 315:5-318:16; 328:2-329:3.

293. Admitted only to the extent that this reflects a statement by Harris as to his

opinion on the 2016 Bullock County elections.

294. Disputed. DX-116.

295. Disputed. While Scarbrough testified that he did not receive complaints about


34

the photo ID requirement, he noted that “[t]here is confusion sometimes with voters”

with regards to voting and absentee voting, including when to submit a copy of a

photo ID. DX-81 at 186:7-193:10.

296. Admitted only to the extent that the statement represents Woodall’s testimony.

297. Disputed as Defendants mischaracterize Cochran’s statements. Cochran

specifically remembered that at least one individual complained because the

individual had to “find and bring voters into the Board’s office to get their photo

IDs.” DX-97 ¶ 18; DX-66 at 212:7-19. Plaintiffs admit Cochran’s testimony but note

that she contradicts herself as she has turned voters away for not having sufficient

documentation. DX-97 ¶ 19.

298. Disputed. Mischaracterization. Stephenson’s recollection is supported by no

evidence and represent only instances of which Stephenson was “personally aware.”

PXO-EE (Stephenson Dep.) at 141:1-2.

299. Disputed. Mischaracterization. Deponent is speaking for himself. DX-64 at

209:14-18.

300. Disputed. Not relevant, not material, and no foundation for Secretary

Chapman’s lay unsupported belief that the photo ID helps deter absentee voter fraud.

301. Disputed. Not relevant, not material, and no foundation for George Barrows’

lay unsupported opinions concerning HB 19. Disputed that it is difficult to get

someone’s license and make a photo copy of it. See PUF ¶ 112.

302. Disputed. Not relevant, not material, and no foundation for Greg Biggs’ lay


35

unsupported opinions concerning HB 19.

303. Objection to the relevance of Woodall’s opinions regarding HB 19. Objection

on the grounds that Woodall’s statement that HB 19 “is a security feature for our

elections” is speculative and not based on personal knowledge.

304. Admitted.

305-306. Disputed. Not relevant as to the prevention of voter fraud (only after-the-

fact investigations).

307-308. Disputed to the extent that it calls for speculation.

309. Disputed. Signature Relevance Objection. See PDF ¶¶ PUF 117-18.

310. Admitted.

311. Admitted as clarified: no foundation provided for how frequently this dual

photo submission takes place.

312. Disputed. Not material to the prevention of voter fraud.

313. Disputed. Signature Relevance Objection. See PUF ¶¶ 117-18.

314. Disputed as not relevant, not material, and no foundation. Montgomery’s

opinion concerning the integrity of the election process and the existence of “large-

scale fraud” is a speculative lay opinion. DX-110 ¶ 30. Several elected officials

disagree that there is “very little voter fraud in Alabama.” PXO-Q (Todd Decl.) ¶ 7;

PXO-N (Reed Decl.) ¶ 2; PXO-F ¶ 10.

315. Disputed as not relevant, not material, and no foundation for Roper’s

unsupported and speculative opinions concerning the existence of voter fraud and


36

means to deter it.

316. Disputed as not relevant, not material, and no foundation. Gordon himself

recognizes that photo ID requirements did not prevent voter fraud. DX-67 at 92:14-

23.

317. Disputed. Forgery relevance objection, not material, and no foundation as

Alexander has never been involved in any voter fraud investigations. DX-122 at

12:8-10.

318. Disputed. Forgery relevance objection, not material, and no foundation.

319. Disputed as not relevant, not material, and no foundation. Regardless of

whether voting allows utility bills or photo IDs, one could vote as someone else.

DX-67 at 92:14-23.

320. Disputed. Forgery relevance objection, not material, and no foundation. Senator

Hank Sanders has been involved in elections since 1966 and is not aware of any

concerns voter impersonation fraud and only a few cases of concern about absentee

voter fraud. PXO-DD at 28:1-10, 39:5-40:17.

321. Disputed. Not relevant, not material, and no foundation. A survey of Alabama

voters showed that HB 19 “did not increase confidence.” PXO-B, Ex. 1 (Atkeson

Rept.) at 30 (emphasis in original).

322. Disputed as not relevant, not material, and no foundation.

323. Disputed as not relevant, not material, and no foundation. “There is no reason

to believe the Photo ID Law will improve voter confidence in Alabama elections.”


37

Id. at 31.

324. Disputed as not relevant, not material, and no foundation. According to Dr.

Lonna Rae Atkeson, who is qualified to speak on such matters, “peer reviewed

research shows that the . . . administration of voter ID laws . . . lower voter

confidence.” Id. at 20.

325. Objection. Not relevant to the prevention of voter fraud.

326-327. Admitted.

PLAINTIFFS’ UNDISPUTED STATEMENT OF FACTS

1. According to the 2010 Census, Alabama’s total population is 4,779,736, with a

non-Hispanic white population of 3,204,402 (67.04%), a Black population of

1,244,437 (26.03%), and a Latino9 population of 185,602 (3.88%). Doc. 172 ¶ 50.

According to the 2014 American Community Survey (ACS), Alabama’s voting age

population (“VAP”) is 3,647,817, with a white VAP of 2,544,727 (69.7%), a Black

VAP of 954,944 (26.1%), and a Latino VAP of 67,220 (1.8%). Doc. 172 ¶ 52.

2. Black people make up 27.5% of Alabama’s registered voter population, Hispanics

make up 0.8% of Alabama’s registered voter population, and whites make up 71.8%

of Alabama’s registered voter population. PXO-P ¶ 2, Ex. A at 34, Table 4.

3. Between the 2000 and 2010 censuses, the Latino population of Alabama doubled

9 The census uses the term Hispanic, rather than Latino, to refer to Spanish-speaking people of any

race or national origin. Here, Plaintiffs use the terms Hispanic or Latino interchangeably. Plaintiffs

use the terms “white” and “Black” to refer to “non-Hispanic” white or Black people.


38

going from 1.7% to 4% and the Black population grew by 9.6%. Doc. 172 ¶ 65;

PXO-I, Ex. 1 ¶¶ 159, 206.

4. The data showing a rapid increase in Alabama’s Latino population was widely

disseminated and discussed by state officials, in the media, and in the Alabama

Legislature, beginning as early as 2007. PXO-I, Ex. 1 ¶ 154.

5. For example, in June 2007, the Legislature created the Joint Interim Patriotic

Immigration Commission. PXO-I, Ex. 1 ¶ 154. Sen. Scott Beason (R) was its Vice

Chairman and Rep. Mickey Hammon (R) was a member of the Commission. Id. The

Commission was tasked with addressing the “unprecedented influx of non-English

speaking immigrants” and “outlining suggestions and proposals to address the issues

of illegal and legal immigration in Alabama.” Id. (emphasis added). In February

2008, the Commission issued its report, which made numerous recommendations to

the Legislature, including the suggestion that “the Legislature should work with the

Secretary of State to ensure that illegal immigrants are not able to vote” and

endorsing the ultimate goal that “illegal immigrants be discouraged from coming to

Alabama.” Id. ¶ 155.

6. According to the Pew Research Center, 52% of the unauthorized immigrants in

Alabama are Mexican. Id. ¶ 154.

7. The issue of immigration and the growth in the Latino population played a

significant role in the 2011 legislative session, in particular the passage of House

Bill 56 (HB 56). When Hammon introduced H.B. 56, he explained that “much of


39

what is in this legislation” came from the Commission’s report. Id. ¶ 155. The

sponsors and drafters of HB 56 also sponsored and drafted HB 19 and the bills were

passed almost simultaneously. Id. ¶¶ 153-69.

8. Dr. William H. Stewart, the Secretary’s expert, conceded that there was racial

polarized voting (RPV) in Alabama in the 2008 presidential primary and general

elections and the 2010 legislative elections. See DX-84 at 216:2-218:21.

9. According to exit polls, less than 20% of white Alabamians supported the

Democratic candidate in the 2004-12 presidential elections. PXO-I, Ex. 1 ¶ 207. In

November 2008, Sen. John McCain (R) won both Alabama and 90% of the white

Alabamian vote, regardless of party (including 51% of white Democrats). Pres.

Barack Obama (D) received 92% of the non-white vote, regardless of party. Pres.

Obama received 10% of the white Alabama vote, nine points less than what Sen.

John Kerry received from whites in 2004. In 2012, 15% of white and 95% of Black

Alabamians voted for Pres. Obama. In the 2008 U.S. Senate race, State Sen. Vivian

Figures (D), who is Black, won 90% of the Black vote, regardless of party. Sen. Jeff

Sessions (R) received 89% of the white vote, including: 58% of white Democrats.

Id. ¶ 207 n.451.

10. Black turnout increased in 2008 in response to Pres. Obama’s presidential

candidacy. Doc. 172 ¶ 64.

11. Republican legislators and leaders were well-aware of RPV and voter turnout

rates by race. Contemporaneous to HB 19’s passage, they made express comments


40

that tied their political fortunes to exploiting RPV and to whether Black and Latino

people could vote in Alabama. See RDS ¶ 3.

12. For example, the 2010 Republican platform called for a photo ID law, a voter ID

requirement for registration, and making it a “Class C felony” to assist “illegal

immigrants” with voting. The platform stated that new restrictions on voting were

necessary because “illegal immigrants and their allies are working to gather political

power and influence.” PXO-I, Ex. 1 ¶ 156. There is no evidence of Democrats or

anyone else trying to register noncitizens to vote. Id. ¶ 144; DX-89 at 45:22-47:5.

13. In 2011, Sen. Beason, a co-sponsor of the senate version of HB 19 and prior

photo ID bills, said: “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.” Sen. Beason later testified and explicitly identified Latinos as “that

group” of citizens who would “grow up” to be Democrats. PXO-I, Ex. 1 ¶ 157.

14. In 2010, Sen. Beason recorded himself in a meeting with other influential

Republican legislative leaders, including Sen. Ben Brooks, Sen. Larry Dixon, Sen.

Rusty Glover, Rep. Ben Lewis, Sen. Paul Sanford, Sen. Jabo Waggoner, and

legislative staffer Monica Cooper. PXO-MM (PLSID_00002153) at 79, 241. In the

recordings, the politicians discussed their plan and desire to defeat a gambling

referendum partly because they believed that its absence on the ballot would lower

Black voter turnout in the 2010 elections. Sen. Dixon stated “Just keep in mind if [a


41

pro-gambling] bill passes and we have a referendum in November, every black in

this state will be bused to the polls. And that ain’t gonna help.” Id. at 80. Sen. Dixon

predicted: “Every black, every illiterate” would be “bused on HUD financed buses.”

Id. Sen. Beason agreed: “They won’t be bused as much as they will be up to the

gambling.” Sen. Beason added: “That’s right. That’s right. This will be busing

extra.” Id. at 81. Sen. Dixon predicted that coach buses “will meet at the gambling

casino to get free certificates for black[s].” Sen. Brooks added in agreement, “Free

buffet.” Id. No one present objected to the plan or derisive language. Id. at 79-81. In

a separate meeting, Rep. Lewis asked whether the predominantly Black residents of

Greene County were “y’all’s Indians?,” id. at 86, Sen. Beason responded by referring

to Black people as “Aborigines.” Id. at 87; see also Doc. 172 ¶ 67; McGregor, 824

F. Supp. 2d at 1345-46.

15. The Senate sponsors of the Photo ID Law included Sen. Beason, Sen. Brooks,

Sen. Glover, Sen. Sanford, and Sen. Waggoner. Doc. 172 ¶ 70. From 1995-2010,

Sen. Dixon led efforts to pass a strict photo ID bill. PXO-I, Ex. 1 ¶ 216; PXO-U

(Beason Dep.) at 75:11-16, 77:23-78:2. Republicans saw him as a leader on this

issue. DX-65 at 75:7-77:5, 81:9-13.

16. According to his 2012 memoir, Mike Hubbard, the Republican Chair in 2010

and House Speaker in 2011, “commissioned an in-depth study of voting patterns in

various districts represented by white Democratic legislators across the state. We

looked at past results in presidential elections, gubernatorial contests, and other


42

statewide offices and pinpointed the areas that cast the most Republican ballots yet

continued to send [white] Democratic lawmakers to Montgomery.” Republicans

then targeted those white districts. PXO-I, Ex. 1 ¶ 140.

17. At the same time, Republicans convinced white Democratic federal and state

legislators to switch parties. Republicans never seriously approached Black

legislators about switching. PXO-DD at 73:19-74:6; PXO-U at 198:1-200:20; DX-

89 at 231-33.

18. Both the targeting and conversion of white Democrats further polarized the

parties by race and benefited Republicans in majority-white districts. PXO-I, Ex. 1

¶¶ 139-40.

19. In 2010, Republicans nationalized Alabama’s 2010 state races by primarily

running against Pres. Obama, the first Black President. According to former Sen.

Lowell Barron, a white Democrat who served for 28 years until 2010, “People

weren’t voting against me in 2010, they were voting against that black man in the

White House. They were pretty specific about it, only they didn’t refer to him as a

black man.” State Sen. Cam Ward (R) conceded that “Anybody who denies that

Barack Obama’s unpopularity in Alabama didn’t help Republicans come to power

is just not being truthful about it.” https://newrepublic.com/article/119019/civil-

rights-movement-going-reverse-alabama. Sen. Sanders testified that, in 2010, “you

had people even with school board—local school board election people running

against President Obama. He became a symbol for black people and they didn’t have


43

to say, you know, vote against blacks. They could just say vote against Obama.”

PXO-I, Ex. 1 ¶ 144. Auburn University Professor Wayne Flynt, a premier Alabama

historian, agreed that the 2010 Republican campaign was “basically running against

Barack Obama. Obama as a metaphor and everybody understands what that’s about.

It’s not about Obama and it’s not about race in Washington and it’s not about race

in America. But it’s about race in Alabama.” PXO-I, Ex. 1 ¶ 144.

20. The November 2010 elections produced a historic Republican landslide and

supermajorities in both Houses. PXO-I, Ex. 1 ¶ 199. It was the first time in 136 years

that Republicans had won the Legislature. Id. ¶ 137. White Republicans’ landslide

defeat of white Democrats led to a partisan divide in the Legislature that more

closely reflected the RPV in the State. Id. ¶ 141. Prior to the 2010 election, the House

had 60 Democrats, 34 of them white and 26 black. After 2010, there were 36

Democrats—ten white, 26 black. Id. ¶ 142, Fig. 1.A. In Senate, the number of Black

Democrats remained seven, but white Democrats fell from 13 to four. There were

no non-white Republicans. Id. ¶ 142, Fig. 1B. Thus, after 2010, 67% of the

remaining Democrats were Black legislators who represented Black districts. Id. ¶

142.

21. Latino Alabamians make up about 2% of the VAP, but there has never been a

Latino in the Legislature or in any statewide office. As of 2008, there were no Latino

local elected officials anywhere in Alabama. PXO-I, Ex. 1 ¶ 260.

22. Since Justice Ralph Cook won an election in 1994, no Black candidate has won


44

a statewide office, despite Black candidates running for Secretary of State,

Lieutenant Governor, and State Auditor in 2014; and for U.S. Senate in 2008. PXO-

I, Ex. 1 ¶ 259.

23. The same Legislature that passed the Photo ID Law passed HB 56, which

included a voter ID requirement for new registrants. Doc. 172 ¶¶ 83-86.

24. Fourteen of the seventeen senators who cosponsored the Senate companion bill

to HB 56 also cosponsored HB 19’s companion bill in the Senate. Doc. 172 ¶ 85.

25. In February 2011, Sen. Beason spoke to the Cullman County Republican Party

about “illegal immigration.” In his speech, Beason encouraged Republicans to

“empty the clip, and do what has to be done” on immigration. PXO-I, Ex. 1 ¶ 153.

26. In a campaign video, Hammon claimed that Alabama paid $200 million per year

to educate noncitizen and U.S. citizen children of immigrants. He did not there

distinguish undocumented immigrants from U.S. citizens. Id. ¶ 159.

27. In court, Rep. Rich testified that “[t]he major problem with illegals in [his] area

is with Hispanics” and that he considered Hispanic U.S. citizens whose parents are

undocumented to be a “drain on the taxpayers.” He also testified that the only groups

of “illegal immigrants” that his constituents had ever expressed concerns about were

Hispanics. Id. ¶ 159; Central Ala. Fair Housing Ctr. v. Magee, No. 2:11-cv-982

(M.D. Ala. Nov. 23, 2011), ECF No. 68 at 52, 54-57 (transcript of proceedings).

28. In a statement posted on his personal website, Rich expressed a concern that “[i]t

is impossible for an area to assimilate the number of people that we have had forced


45

on us,” saying that he was “primarily” concerned about “Hispanic” immigrants and

their alleged inability “to speak English.” PXO-I, Ex. 1 ¶ 159.

29. In the legislative debates, Sen. Beason and Rep. Hammon said that the goal of

HB 56 was to “reduce the number of illegal aliens in the state” through “self

deportation.” Central Ala. Fair Hous. Ctr. v. Magee, 835 F. Supp. 2d 1165, 1182

(M.D. Ala. 2011). Hammon and Beason used terms like “anchor babies” to refer to

the U.S. citizen children of immigrants. Central Ala. Fair Housing Ctr. v. Magee,

No. 2:11-cv-982 (M.D. Ala. Nov. 23, 2011), ECF No. 68, at 27-28, 129 (transcript

of proceedings).

30. In a campaign video, Rep. Hammon stated that Alabama’s population has risen

by 30% just in the past year [because] of illegal immigrants,” but, in court, he

admitted that the source of this data was a study on Hispanics. Id. at 30:8-32:17.

31. In court, Sen. Beason stated that he shared this goal even though he was aware

that such “self-deportation” would also result in Hispanic U.S. citizens in families

with mixed-immigration status leaving Alabama. PXO-I, Ex. 1 ¶ 162, Central Ala.

Fair Housing Ctr. v. Magee, No. 2:11-cv-982 (M.D. Ala. Nov. 23, 2011), ECF No.

68, at 118, 127.

32. During legislative debate in the House over HB 56, Black Rep. Alvin Holmes

said that “[t]he purpose of this bill is that these Mexican[s] . . . in the state of

Alabama, you-all[,] [Republicans,] are trying to get as many in here out and trying

to stop as many coming in because you think, if they become registered voters, and


46

they join up with the blacks in Alabama, they can control Alabama politics.” While

Rep. Hammon was present and interrupted Rep. Holmes elsewhere in the same

speech, neither Hammon, nor any other legislators denied or protested Holmes’

allegations. PXO-I, Ex. 1 ¶ 162.

33. The co-sponsors of HB 56 were Rep. Hammon in the House and Sen. Beason in

the Senate, and Rep. Kerry Rich was one of the most prominent co-sponsors and co-

authors. Id. ¶ 158.

34. Rep. Rich’s own opening statement to the Legislature repeatedly conflated

“illegal immigrants” and “Hispanics” when discussing the “kinds of social and

economic problems” that H.B. 56 purportedly sought to address.10 Rich relied on

Census Bureau figures for Hispanics in Marshall County, not figures for non-citizens

or undocumented immigrants, to argue that “[i]t is costing our area hundreds of

thousands, if not millions, of dollars to educate these [Hispanic] children. And the

taxpayers in my area — they don’t deserve to have to pay that bill.” Id. ¶ 163.

35. Based on this speech, the Secretary’s expert, Dr. Stewart, testified that Rep. Rich

is “prejudice[d] against” Latino people. DX-84 at 257:18-260:9.

36. Dr. Stewart also testified that Latino people were the “primary target” of HB 56.

DX-84 at 257:18-260:9. According to Dr. Stewart, HB 56 was an “unnecessary piece

10 PXO-I, Ex. 1 ¶ 163; Central Ala. Fair Housing Ctr. v. Magee, No. 2:11-cv-982 (M.D. Ala. Nov.

23, 2011), ECF No. 14-3 at 33-34.


47

of legislation, and it is an example of Alabama going too far on an issue and spending

money that [the State] do[es]n’t have trying to defend something that’s really

indefensible.” DX-84 at 257:18-260:9.

37. HB 56 proclaimed that “the costs incurred by school districts for the public

elementary and secondary education of children who are aliens not lawfully present

in the United States can adversely affect the availability of public education

resources to students who are United States citizens or are aliens lawfully present in

the United States.” Ala. Code § 31-13-2. H.B. 56 addressed this “problem” by

requiring schools to determine the legal status of students and parents. When the

Eleventh Circuit found this requirement unconstitutional, it stated that a purported

“interest in preservation of resources for the state’s lawful residents was no more

than a concise expression of an intention to discriminate.” Hispanic Interest Coal.

of Ala. v. Governor of Ala., 691 F.3d 1236, 1246 (11th Cir. 2012) (citation omitted).

38. Black legislators voted overwhelmingly in opposition to HB 56. Doc. 172 ¶ 87.

39. The final bill, enacted into law, contained a requirement that all who registered

to vote in the future had to provide a proof of citizenship by showing a birth

certificate, an ALEA-issued STAR driver’s license or non-driver ID card, a U.S.

passport, a naturalization document, or similar documents. Previous registrants were

exempted from this requirement or “grandfathered in.” Therefore, although only

about 33% of black and white citizens of voting age faced this ID requirement, 59%

of Alabama’s Latino citizens of voting age had to meet this new, more difficult


48

requirement. PXO-I, Ex. 1 ¶ 166.

40. HB 56 also reduced the percentage of non-whites in Alabama and the electorate

by forcing Hispanic citizens or registered voters in “mixed status” families to “self-

deport.” PXO-CC at 63:23-65:23; PXO-AA at 81:12-84:15.

41. Although passed in 2011 and submitted to the DOJ for preclearance under the

VRA, the Alabama Attorney General withdrew that submission on May 15, 2013 in

anticipation of the Supreme Court’s decision in Shelby County v. Holder. HB 56 was

never precleared. Doc. 172 ¶ 86. On December 18, 2014, Secretary Bennett sought

to enforce the photo ID requirement in HB 56 by requesting that the Election

Assistance Commission (EAC) modify the federal voter registration form

instructions to include HB-56 voter ID requirements. In January 2016, that request

was granted by the EAC executive director without sufficient approval from the

EAC. PXO-I, Ex. 1 ¶ 167.

42. However, in League of Women Voters v. Newby, the D.C. Circuit blocked

Alabama’s request to enforce HB-56’s photo ID requirements for federal voters. 838

F.3d 1, 9-10 (D.C. Cir. 2016). The D.C. Circuit found that there was “precious little

record evidence” that an injunction would undermine the state’s interests in

preventing “fraudulent registration by noncitizens.” Id. 13-14.

43. Much of HB-56 was later found unconstitutional, preempted by federal law, or

amended in response to litigation and public pressure. PXO-I, Ex. 1 ¶ 169.

44. For nearly 50 years, Alabama was a covered jurisdiction under Section 5 of the


49

VRA because of its racially discriminatory abuse of literacy tests and voucher (i.e.,

identification) requirements. Doc. 172 ¶ 60.

45. In five of the six decennial redistricting cycles since 1960, at least one of

Alabama’s statewide plans has been successfully challenged in litigation, settled a

VRA claim, or blocked under the VRA or the U.S. Constitution. In 1965, 1972, 1983,

and 1992, courts or the DOJ found that those plans were intentionally discriminatory

or bore the mark of intentional discrimination. PXO-I, Ex. 1 ¶ 239 nn.528-35

(collecting cases and citations); see, e.g., Wesch v. Hunt, 785 F. Supp. 1491, 1498-

99 (SD Ala. 1992), aff’d 6 F.3d 1465 (11th Cir. 1993); Burton v. Hobbie, 561 F.

Supp. 1029, 1035 (M.D. Ala. 1983); Brooks v. Hobbie, 631 So. 2d 883 (Ala. 1993).

46. The same Legislature that enacted HB 19 passed a state legislative redistricting

in 2012. In 2017, a three-judge court agreed with Black voters that the Legislature’s

redistricting was predominately motivated by race. The Legislature intentionally and

unjustifiably had packed 12 majority-Black districts by removing Black voters, who

are reliable Democrats, from surrounding majority-white districts. Ala. Legis. Black

Caucus v. Alabama, 231 F. Supp. 3d 1026, 1348 (M.D. Ala. 2017). Because of

racially polarized voting in Alabama, this packing made the Republican-controlled

white districts “safer” for white Republican incumbents. PXO-I, Ex. 1 ¶ 170.

47. Alabama settled separate NVRA complaints from the Alabama NAACP in 2014

and the DOJ in 2015. Prior to these settlements, Alabama was not in compliance

with the NVRA requirement that citizens interacting with driver’s license offices,


50

public benefits offices, and other government services offices affirmatively offer

people the opportunity to register to vote. PXO-I, Ex. 1 ¶ 241.

48. Since 1980, the DOJ issued 48 unwithdrawn objections under Section 5 of the

VRA to proposed changes because the State failed to prove that the changes would

not have a discriminatory purpose or effect. U.S. Dep’t of Justice, Civil Rights Div.,

Voting Determination Letters for Alabama, http://bit.ly/2ibn3qS, (Nov. 3, 2017).

49. Private Plaintiffs have successfully litigated or settled dozens of VRA or

constitutional challenges to state election laws and policies, local annexations, local

methods of election and/or other local legislation enacted by the State Legislature.11

50. The stark socioeconomic disparities that persist between minority and white

Alabamians are the result of past and present racial discrimination. PXO-I, Ex. 1 ¶

249. Because racial discrimination creates cycles of disadvantage, its effects are

slow to fade. Id. ¶¶ 246–255. The costs that a low-income voter must incur to cast a

valid ballot are a substantial determinant of whether a voter will vote. Id. ¶ 246.

51. According to a U.S. Census survey of Alabamians from November 2014, 41.5%

of the Latino citizen VAP, 64.6% of the Black citizen VAP, and 65.8% of the white

citizen VAP were registered to vote in Alabama. Id. ¶ 166 n.343.

52. In the 1990s, federal courts found that Alabama had retained the vestiges of a

11 See PXO-I, Ex. 1 ¶ 238 nn.526-27 (collecting cases); see, e.g., Pleasant Grove v. United States,

479 U.S. 462, 466 (1987).

(continued…)


http://bit.ly/2ibn3qS

51

segregation in its public education and higher education systems.12 The state public

education system remained under a desegregation order until 2009. Lee v. Lee Cty.

Bd. of Educ., 476 F. Supp. 2d 1356, 1366-67 (M.D. Ala. 2007), 2009 WL 1231497

(M.D. Ala. Apr. 28, 2009). Alabama’s higher education system remained under a

desegregation order until 2011. Knight v. Alabama, 469 F. Supp. 2d 1016, 1028

(N.D. Ala. 2006) (5-year settlement).

53. As of December 2014, there remained 54 Alabama school districts under active

school desegregation orders. PXO-I, Ex. 1 ¶ 249; see, e.g., Stout v. Jefferson County

Bd. of Educ., 250 F. Supp. 3d 1092, 1167 (N.D. Ala. 2017); Hereford v. Huntsville,

2015 WL 13398941, at *3 (N.D. Ala. Apr. 21, 2015).

54. According to the 2015 ACS 1-Year Estimates, only 12.9% of Latino and 16.4%

of Black Alabamians, but 26.9% of whites, have received a bachelor’s degree or

higher. PXO-I, Ex. 1 ¶ 247.

55. As late as the 2010s, Alabama government employers have engaged in racial

discrimination or violated court-ordered remedial plans. Id. ¶ 252 n.565-569.

56. In 2015, the Governor partially closed the driver’s license-issuing offices in eight

of the eleven majority-black counties in Alabama. Id. ¶ 205. On December 28, 2016,

the U.S. Department of Transportation found that these office closures and

12 See, e.g., Knight v. Alabama, 787 F. Supp. 1030 (N.D. Ala. 1991), aff’d in part, rev’d in part,

14 F.3d 1534 (11th Cir. 1994), on remand, 900 F. Supp 272 (N.D. Ala. 1995); Lee v. Lee Cty. Bd.

of Educ., 963 F. Supp. 1122, 1129-30 (M.D. Ala. 1997).


52

reductions in services violated Title VI of the Civil Rights Act of 1964 because of

their disparate impact on Black people. Mem. of Agreement between U.S. Dept. of

Transp. and ALEA (Dec. 22, 2016), http://bit.ly/2gLgNJE. The driver’s license-

issuing offices operated with reduced hours and in violation of the Civil Rights Act

during the entirety of the 2016 election season.

57. In the last fifteen years, the U.S. Department of Justice has settled over a dozen

cases of racial discrimination in housing in Alabama. DOJ-CRD, Housing Cases

Summary Page, https://www.justice.gov/crt/housing-cases-summary-page.

58. Three studies based on the 2010 census found that Birmingham is one of

America’s most highly racially segregated metropolitan areas. PXO-I, Ex. 1 ¶ 248.

59. Prior to the enactment of HB 19, Alabama did not require photo ID to vote in

person or absentee. Under prior voter ID law enacted in 2003, a voter registration

certificate constituted one of many different forms of photo or non-photo ID that

could be used to cast a valid, in-person or absentee ballot. Election officials mail it

to the residence of every registered voter, free of charge and without any further

administrative requirements. DX-89 at 40:17-42:16.

60. From 1995 through 2003, Alabama legislators debated a voter ID bill in each

session. Throughout this period, whether the governor, lieutenant governor, or

secretary of state was Republican or Democratic, the issues were the same and the

divisions were the same. PXO-I, Ex. 1 ¶ 7. Republicans and a large majority of white

Democrats contended that the mere possibility of fraud required that voters present


53

some form of ID. Id. ¶10. Although some knowledgeable officeholders, like Don

Siegelman, admitted that under current law, poll officials could demand ID if they

doubted a voter’s identity. Id. ¶ 14.

61. From the initial committee votes on a voter ID bill in 1995, there was a straight

racial split on the issue. For example, in late May 1995, the Senate Constitution,

Campaign Finance, Ethics and Elections Committee, split 4-3 in endorsing a voter

ID bill by white Sen. Dixon (R). Dixon and three white Democrats favored Dixon’s

bill. In the first of many racial divisions on the issue, the three Black senators on the

committee, Sens. Rodger Smitherman, Charles Steele, and Michael Figures, all

voted nay. “It’s going to keep legitimate people from voting,” claimed Smitherman.

“The bill died after running into opposition from Democratic legislators who felt it

was an attempt to keep poor blacks from voting.” PXO-I, Ex. 1 ¶¶ 35-36.

62. In 1996, concern over the unsettled state of case law concerning absentee voting

and disputed, largely circumstantial evidence of absentee ballot fraud in rural Black

Belt counties led the legislature to amend the sections of the election code

concerning absentee voting. Black legislators, responding to a series of selective

prosecutions against black activists in rural areas in the 1980s, opposed the absentee

amendments, but the legislature eventually passed the changes in a special session.

Black legislators prevented a voter ID bill from coming to a vote in the 1996 special

session. Black senators and Lt. Governor Don Siegelman prevented voter ID bills

from being voter on because they feared “the bills would create a new hurdle for the


54

less-educated and elderly in the voting process.” Id. ¶ 50.

63. In 1996, Sen. Dixon overtly 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.” PXO-I,

Ex. 1 ¶¶ 63, 216.

64. The 1996 special session introduced a potential logroll. In negotiations between

black state senators and the Fob James Administration, including the special

assistant he recruited to oversee the only two bills considered during the special

session, Kerry Rich, the black senators floated a proposal to restore the voting rights

of people with felony convictions once they were released from prison and paid their

fines. In return, the black senators said they would not filibuster the voter ID bill.

PXO-I, Ex. 1 ¶¶ 49–52, 53, 76. It was widely understood that twice as high a

proportion of the beneficiaries of a felon re-enfranchisement bill would be black as

white. Id. ¶ 197.

65. Despite Gov. James’s very temporary agreement to the trade, Republicans were

so opposed to letting people who had been convicted of crimes of “moral turpitude”

vote that a re-enfranchisement bill by Rep. Yvonne Kennedy was considered the

least likely bill introduced into the legislature in 1998. Nevertheless, the potential

logroll involving Kennedy’s bill and various voter ID bills became one of the central

foci of the legislature for consecutive legislative sessions.

66. By 1999, the issue of voter ID had become twinned with that of making it easier

to vote for people who had been released after having been convicted of crimes of


55

“moral turpitude,” who were predominantly black. That year, when whites,

Democratic, as well as Republican, blocked the re-enfranchisement bill on a House

procedural vote, black legislators immediately blocked a voter ID bill, and both bills

died. The head of the House Republican Caucus, Representative Mike Rogers stated

that Republicans would not support Rep. Yvonne Kennedy’s (D) bill that would

eliminate the pardon requirement for re-enfranchisement and would either

automatically register people with felony convictions or would inform counties of

the names of those individuals who were eligible to vote, until House Democrats

supported voter ID. Specifically, he stated, “It’s the only way we’re going to get

Voter ID passed.” PXO-I, Ex. 1 ¶ 78. The Huntsville Times explained the widely

understood political calculous animating the logroll, “‘Democrats want felons’

voting rights restored because they believe those former felons—many of whom are

black—would generally vote for Democratic candidates. Republicans don’t want the

voting rights restored because they are afraid those former felons would do just what

the Democrats hope.” Id. ¶ 117.

67. In 2000, that year’s voter ID bill passed the House by 80-20. All or nearly all

white Democrats joined the Republicans in favor of the bill. But because Senate

Republicans refused to take up the re-enfranchisement bill, the logroll failed, and

Black senators successfully filibustered the voter ID bill. PXO-I, Ex. 1 ¶ 102-103.

68. Again in 2001, the House passed a voter ID bill, this time by 78-17. All 17

opponents were black, and all white Democrats who voted joined the Republicans


56

in favoring it. After Senate Republicans refused to take up the re-enfranchisement

bill, the Black Caucus opposed the voter ID bill in response, and both bills failed.

PXO-I, Ex. 1 ¶¶ 108-110. The coupling of the bills and attempt at a logroll were very

public. According to a Mobile Press-Register article from 2001, Committee chair

Jeff Enfinger, (D) “said he was willing to move [the re-enfranchisement] measure

along in exchange for a chance to get voter identification passed. ‘As long as they're

coupled, we think there’s enough support in the House and Senate to get voter ID,’

Enfinger said. ‘It’s easy for me to support the package.’” Id. ¶ 110.

69. In 2001, Sen. Dixon alleged that voting without photo IDs “benefits black

elected leaders, and that’s why they’re opposed to it.” Id. ¶¶ 105, 216. Senate

Minority Leader Jabo Waggoner (R), eventually a sponsor of HB 19, said that voter

ID would “cut out the stealing of elections in Alabama by Democrats.” Id. ¶ 106.

70. In 2002, action on the twinned bills followed the same pattern as in the two

previous sessions. On the same day, the House passed the voter ID bill by 77-17 and

the re-enfranchisement bill by 65-34. In the Senate, the failure to reach a deal on the

re-enfranchisement bill meant that voter ID died, with Black Senators in opposition

and white Democrats and Republicans in favor. Id. ¶¶ 111-112.

71. At the start of the 2003 session, Republicans remained opposed to the re-

enfranchisement bill and the Black Caucus opposed to any voter ID bill. Sen. Dixon,

a chief sponsor of photo ID and an opponent of ex-felon voting, stated that

Representative Kennedy’s re-enfranchisement bill was “a very big Black Caucus


57

issue, primarily because so many of the black voters in the state would be benefited.”

Id. ¶ 117. At the start of the 2003 session, Rep. Alvin Holmes (D) stated that the

Black Caucus would “use every method known to human ingenuity to block this,”

and called voter ID a way “to keep black people oppressed in this country.” Id. ¶

134. Republican State Chair Marty Connors said that he opposed the re-

enfranchisement bill because “There is no more anti-Republican [Party] bill than

this. As frank as I can be, we’re opposed to it because felons don’t tend to vote

Republican.” Id. ¶ 117. In Alabama, felony disfranchisement affects 15% of the

Black VAP, but only 7% of the white. Id. ¶ 237.

72. Finally, on the last day of the legislative session in 2003, the Black Caucus’s re-

enfranchisement bill and the Republican voter ID bill passed after both sides, at the

last possible minute, agreed to and abided by pledges not to filibuster either the ex-

felon voting bill or the voter ID bill. The logroll led to the 2003 voter ID law, which

required voters to present one of various forms of photo or non-photo ID to vote in-

person or absentee went through. Id. ¶¶ 118-19.

73. However, Gov. Riley vetoed the re-enfranchisement bill. After the veto, Sen.

Dixon, who carried the voter ID bill in the Senate, denied there had been a deal to

allow the re-enfranchisement bill to become law. This is despite Dixon’s previous

statement that he would be “very surprised” if Governor Riley vetoed the ex-felon

voting bill. But Dixon admitted there was an agreement that Republicans would not

filibuster it. After the veto, Dixon stated that “There was never a Senate Republican


58

that agreed to any kind of linkage. The only thing I agreed to was that I would not

filibuster felon voting rights.” The Anniston Star described both Governor Riley and

Dixon’s position after the veto as disingenuous because, “Everyone in Montgomery

has known for more than a decade that a voter ID bill and felon voting legislation

were companion pieces, to be passed and signed together.” Id. ¶ 121

74. Gov. Riley only to agree to back the re-enfranchisement bill in a special session

in the face of Black legislative opposition to a tax referendum in September 2003,

and a threatened NAACP boycott. The governor met with Black leaders and

promised to support an ex-felon voting bill in a special legislative session to be held

after the tax vote. To secure the passage of the re-enfranchisement bill, Black

legislative leaders had withheld support from a tax plan that would exempt about

half of all black households from paying any income tax and reduce cuts in education

spending. Id. ¶¶ 122-23. A modified re-enfranchisement bill was passed over a

Republican filibuster in the House and opposition in the Senate led by Sen. Dixon.

Id. ¶ 124.

75. In the House, the 2003 vote on the voter ID bill was 81-17, with white Democrats

and Republicans in favor and 17 Black legislators opposed. Id. ¶ 118.

76. From 2003 to 2010, the State had a voter ID law, and attempts to restrict that law

to only photo IDs failed repeatedly because of Black opposition. Id. ¶¶ 133-36.

77. Before 2011, repeated investigations by Attorneys General and Secretaries of

State, and significant cash rewards offered by state elected officials and the


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Republicans failed to turn up evidence of voter impersonation fraud. Id. ¶¶ 130-32.

78. In February 2011, when Rep. Rich, the sole House sponsor of HB 19, first

“prefiled” the bill, it had many non-photo options: a certified birth certificate, a

Social Security card, court records showing an adoption or name change, and

Medicaid or food stamp cards. Rich “said he is working with Secretary of State Beth

Chapman on a possible compromise bill.” But, the bill as it emerged from the House

Committee on a 7-2 vote, just five days after the prefiling, did not contain any of the

non-photo IDs that were in the original bill. Id. ¶ 148. As enacted, HB 19 eliminated

all forms of ID connected with poverty, like Medicaid or food stamp cards, even

though such IDs are strictly policed, because they are necessary to claim government

benefits. Id. ¶ 202.

79. During her deposition, Secretary of State Beth Chapman could not explain why

the pre-filed version of HB 19 had permitted the use of certain non-photo IDs, but

the final bill did not. DX-65 (Chapman Dep.) 132:8-133:10.

80. Data from the U.S. Department of Housing and Urban Development shows that

Black people comprise 71% and white people are 28% of public housing residents

in Alabama. PXO-I, Ex. A ¶ 248. The Secretary of State does not interpret HB 19 to

permit people to vote using public housing photo. DX-75 at 150:7-152:19; Doc. 172

¶ 152.

81. Twenty days after HB 19 emerged from Committee, the House passed HB 19 by

“a largely party-line vote of 64-31.” Black legislators “predicted it would suppress


60

voting by seniors and poor people who don’t have easy access to transportation” and

decried it as “a step back to the days of poll taxes and literacy tests.” Responding to

the black legislators, Rep. Rich noted that under Section 5 of the Voting Rights Act,

the DOJ could refuse to preclear the bill if “the department determined it would limit

the right to vote on account of race.” PXO-I, Ex. A ¶ 150.

82. A week later, the Senate Constitution, Campaign Finance, Ethics and Elections

Committee passed HB 19 on a 5-1 vote along party lines. There was no attempt to

compromise with Democrats, even the few white Democrats left in the legislature,

much less the Black members, and there were no recorded votes on amendments.

PXO-I, Ex. A ¶ 151; PXO-DD at 98:3-6; PXO-F ¶¶ 8-9.

83. The Birmingham News, which had previously supported a Photo ID requirement,

opposed HB 19 in 2011 as unnecessary because “we’ve had no reports of voter fraud

at the polls that would have been stopped had the law required photo ID only.” PXO-

I, Ex. A ¶ 151.

84. Neither house took any other action on HB 19 until the last day of the session,

more than two months later. In June 9, 2011, the last day of the session, the Senate

invoked cloture and passed the bill through on a straight party-line vote. PXO-I, Ex.

1 ¶ 152. The Rules Committee placed HB 19 on the regular calendar and added it to

the “special order” calendar for that Legislative Day. DX-101 at 3, ¶14. At that time,

Sen. Beason was the chair of the Senate Rules Committee and had influence over

setting the legislative agenda. PXO-U at 40:15-42:14. Because of cloture vote, the


61

debate on HB 19 lasted only 20 minutes, during which Republicans held the

microphone, and refused to let the seven Black and two white photo ID opponents

speak out against the bill. PXO-DD at 88:2-91:10.

85. According to the then-Democratic chairman, Mark Kennedy, Republicans in

2011 broke the record for the number of cloture votes during a legislative session.

PXO-I, Ex. 1 ¶ 152.

86. After H.B. 19 passed the House, “Rich anticipate[d] a lengthy court battle and

review by the U.S. Justice Department to see if the legislation complies with the

1965 Voting Rights Act. He said his bill wouldn’t take effect until 2014, which is

when legislators will be up for election again.” Id. ¶ 179. Rep. Rich created the three-

year roll out period in anticipation of preclearance litigation and to avoid potential

confusion in the event that HB 19 was precleared between the 2012 presidential

primary and the November general election. DX-65, Ex. 3. Rich said, “You don’t

want to start out and have a set of rules for the primary and maybe one for the general

election if it gets precleared then.” Id.

87. Rep. Rich testified in 2011 that he believed Latinos were unlikely to have

driver’s licenses. When asked for the basis for his belief, Rich gave two anecdotes

about when he and his sister were each in traffic accidents and the Hispanic drivers

did not have driver’s license. He did not state whether the Hispanic drivers were

citizens or not. PXO-I, Ex. 1 ¶ 179; Central Ala. Fair Housing Ctr. v. Magee, No.

2:11-cv-982 (M.D. Ala. Nov. 23, 2011), ECF No. 68 at 51:4-52:6 (transcript of


62

proceedings).

88. The reason photo ID bills had failed in the past was because legislators did not

think the bills would be precleared. DX-65 at 125:21-126:20; PXO-DD at 32:2-

33:13; PXO-I, Ex. 1 ¶ 61.

89. For years, it was “common knowledge” amongst legislators and the chief

proponents of phot ID that Black legislators in Alabama were opposed to photo ID

bills because of their anticipated disparate impact on Black voters. PXO-U at

168:10-69:9; see also DX-65 133:15-134:17; PXO-DD 98:15-100:20; PXO-F ¶ 7;

PXO-Q ¶ 4; PXO-O (Sewell Decl.) ¶ 10; and DX-89 at 36:22-39:12]

90. In 2011, the Department of Public Safety (“DPS”), the predecessor of ALEA,

had the ability to match the personal information of people in the voter registration

databases to the state-ID databases to determine how many people lacked state-

issued photo IDs by race. PXO-I, Ex. A ¶¶ 179, 223.

91. A DPS analysis in 1991 showed that 90% of white eligible voters, but only 74%

of Black voters had a Alabama driver’s licenses. PXO-I, Ex. A ¶ 61. In 2014, a DPS

analysis showed that about 20% of Alabama’s registered voters did not have ALEA-

issued ID, and this data was available by race and county. Id. ¶ 179. Then-Secretary

Bennett asserted that half of that 20% had some other photo ID. Id.

92. There was no issuance of administrative rules for HB 19, public education about

HB 19, trainings of election officials, or the issuance of voter ID cards before June

25, 2013. PXO-W (Brown Dep.) 31:7-35:13; DX-114 at 380:3-381:2, 382:2-385:10.


63

93. Secretary Chapman testified the only reason why her office did not educate

voters or issue voter ID cards prior to June 2013 was because HB 19 needed to be

precleared first. DX-65 at 172:22-173:23; see also DX-78 at 382:2-385:10.

94. Former Secretary Worley, Dep. 244:8-245:2, Sen. Figures, PXO-F ¶ 12, and the

former chief legal counsel for Secretary Merrill, PXO-W at 33:1-34:13, testified that

voter education from 2011 to 2013 would have been helpful to voters.

95. The State did not even attempt to preclear HB 19 for two years. Ed Packard, an

employee in the Secretary of State’s office for 20 years, could not think of any other

election law that the State had held back from submitting for preclearance for so

long. DX-78 at 30-33, 786-87. Secretary Worley and Sen. Sanders also were

unaware of a similar instance where preclearance took that long. DX-89 at 59-60,

244-45; PXO-DD at 96.

96. The Alabama Attorney General refused to submit HB 19 for preclearance,

despite requests from the Black Caucus to do so. PXO-DD at 91-92. In early June

2013, Kerry Rich “said he was surprised to learn the election change hadn't been

submitted for preclearance,” but Attorney General Strange’s spokeswoman claimed

that the failure to submit HB 19 was because of the Secretary of State’s delays in

drafting the administrative rules. However, within days of the Supreme Court’s June

25, 2013 ruling in Shelby County v. Holder, Chapman stated that “Photo voter ID

[would be] the first process” to go forward without preclearance, and, on June 28,

she issued the fully drafted administrative rules for public comment. Further, while


64

passed in 2011, HB 19, by its own terms, did not go into effect until the first primary

in 2016. Senator Beason testified that this delayed effective date was unusual. These

departures from normal procedures are an indication of intent.

97. Former Secretary Chapman gave directives to her staff that HB 19 was to be

modeled after the Georgia, Indiana, and Texas laws. DX-65 at 125:3-11. She

testified that her office helped Rep. Rich draft HB 19. Id. at 140:10-17.

98. Unlike Alabama, Georgia’s law allows any registered voter to vote by mail

without providing photo ID and without any specified reason (e.g., meeting an age

or disability criterion). Ga. Code Ann. § 21-2-381(b). Therefore, any Georgia voter

who lacks the photo ID required to vote in-person retains an abridged ability to vote

by mail. Georgia also permits voters to establish identity using an expired Georgia

driver’s license.

99. Unlike Alabama, Indiana’s law allows a voter without photo ID to vote absentee,

Ind. Code Ann. § 3-11-8-25.1(e), or to cast a ballot in-person that will be counted if

the voter executes an affidavit stating that she lacks ID because she is unable to

obtain photo ID without paying a fee or has a religious objection to photography.

Ind. Code Ann. § 3-11.7-5-2.5(c).

100. Texas’s 2011 photo ID law is one of the “strictest photo ID law[s] in the

country.” Veasey v. Perry, 71 F. Supp. 3d 627, 701 (S.D. Tex. 2014). The U.S. Court

of Appeals for the Fifth Circuit found that the Texas law violates Section 2 of the

VRA. Veasey v. Abbott, 830 F.3d 216, 272 (5th Cir. 2016) (en banc). On remand,


65

the district court found that the Texas law has a discriminatory intent. Veasey v.

Abbott, 249 F. Supp. 3d 868, 875-76 (S.D. Tex. 2017).

101. However, unlike Alabama, Texas did not require absentee voters to provide

photo ID. Veasey, 830 F. 3d at 255. To vote absentee in Texas, a voter must be over

65 years old, or disabled, or out-of-the-county on Election Day, or in a jail. Tex.

Elec. Code §§ 82.001 to 82.004. Unlike Alabama, Texas’ also allows voters with

religious objections to photography or who lose their IDs due to a natural disaster to

vote by affidavit. Id. § 65.054 (b)(2)(B) & (C).

102. However, Ms. Chapman was unaware that Indiana’s law permitted voters who

are indigent or have a religious objection to photography to vote by affidavit, and

that Indiana does not require photo ID for absentee voting. DX-65 at 142:2-16. She

was also unaware that Georgia does not required photo ID for absentee voters and

permits anyone to vote absentee for any reason. Id. at 142:17-143:14. She was

unaware that the DOJ did not preclear Texas’s law under the VRA. Id. at 125:3-11.

103. Because in-person voter impersonation—the only type of fraud addressed by

HB 19—is not a problem in Alabama, this issue does not credibly explain the law’s

purpose.

104. Although the Black Caucus and other Democrats asked for proof of voter fraud

or the need for a photo ID law, no evidence was presented in the Legislature in 2011


66

that voter impersonation or other voter fraud were problems in Alabama.13

105. Cases of in person impersonation voter fraud in Alabama are extremely rare.

See generally, DX-6 at 99. The Secretary has provided evidence of two cases of

alleged in-person impersonation voter fraud throughout the history of Alabama,

including only one conviction for in-person impersonation voter fraud. See id.; DX-

78 at 27:13-16; 731:13-17.

106. The lack of in-person impersonation fraud is consistent with the testimony of

numerous Alabama officials, including:

• The Secretary of State (former and current) and Chief of Staff to the

Secretary of State. See, e.g., DX-75 at 221, 257; DX-65 at 39:3-40:18,

80:2-82:9; and DX-63 at 100:13-101:1.

• Many of the Secretary's own declarants. See, e.g., DX-66 at 116:4-8,

145:18-23, 17:4-6, 118:4-8; DX-81 at 252:11-15; DX-85 at 116:11-19;

PXO-J (Lambert Sup. Decl.) ¶ 1; DX-108 at 3, ¶¶ 2-3, 7; PXO-K (Linder

Sup. Decl.) ¶ 3; PXO-C (Biggs Suppl. Decl.) at 1, ¶ 1; DX-64 at 217:19-

218:12; PXO-EE at 88:19-89:15; PXO-M ¶ 1.

• Other witnesses. PXO-N ¶ 2; PXO-BB (Reed Dep.) at 111:8-14; DX-89 at

48:6-9; 62:3-5; PXO-F ¶ 10; PXO-Q ¶ 5.

107. Former Secretary Worley testified “I don’t personally believe that a mandatory

photo ID law achieves what some people would tell you it achieves, and that’s

keeping impersonators from voting. If a person wants to vote fraudulently, there are

plenty of places where they can get a fraudulent ID that looks exactly like a photo

13 PXO-U at 73-74; PXO-DD at 28:1-29:21, 212:11-213:7, 327:5-328:8; DX-89 at 49:10-50:5;

PXO-F ¶ 10; PXO-Q ¶ 5; see also PXO-I, Ex. 1 ¶¶ 149-51, 225-29.


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ID. So saying—saying that this photo ID law has prevented people from voting

fraudulently, in my opinion, is just not valid.” DX-89 at 85:10-21.

108. Numerous elections officials have also testified that they do not believe voter

fraud is an issue in their counties, including: Probate Judge Menefee (DX-74 at 59:8-

18); Probate Judge Hulett (DX-72 at 100:8-16); Probate Judge King (DX-73 at

44:19-23); Probate Judge Tatum (DX-85 at 116:7-117:11); Probate Judge Reed

(PXO-N ¶ 2; PXO-BB at 111:8-14.); and Board of Registrars Chair Stephenson

(PXO-EE at 88:19-89:15).

109. HB 19 does not prevent people intent on engaging in absentee voter fraud from

procuring voters’ IDs. See DX-80 at 47:20-48:6; 54:3-7.

110. In the city of Dothan case, an absentee voter fraud case that involved the August

6, 2013 Dothan municipal election, Captain Bill Rafferty testified that the defendants

were able to obtain IDs from voters. DX-80 at 47:20-48:6; 54:3-7. The defendants

had a photocopy machine in a van and would make photocopies of voters’ IDs using

the machine. Id. The majority of the copies of IDs that were submitted with the

absentee ballots during that election were photo IDs. Id. at 53:6-52:2.

111. Former Rep. Gordon testified that all the illegal absentee ballots that were

overturned in his 2006 election contest had photo IDs. DX-67 at 91:14-92:12.

112. Absentee voters also testified during the trials of Olivia Lee Reynolds and Lesa

Coleman that they willingly provided the defendants with their photo IDs to be

photocopied. See PXO-KK (Absentee Voters’ Testimony).


68

113. On July 1, 2014, Jean Brown forwarded a voter fraud complaint in Wilcox

County, reported to the US Postal Inspection Service, to the Attorney General’s

Office. According to the US Postal Inspection Service, the complainant alleged that

county commissioner Michael Saulsberry, who was on the ballot, offered to assist

voters in obtaining their absentee ballots. PXO-LL (DEF_00057149-00057151).

“According to the complaint, now that Alabama has a voter ID law, the absentee

ballot applicant must show ID, so the commissioner and persons helping the

commissioner, have a copy made of the prospective voter’s identification. The

commissioner and those working with him then mail the application for absentee

ballot in, along with the copy of the identification.” Id.

114. Detective Patricia Alexander testified that it is not harder to forge a photocopy

of a photo ID than to forge a photocopy of any other identification document. DX-

122 at 36:15-37:22.

115. Special Agent Robert Moore testified that, regarding photocopies of certain

types of photographic identification, “you could, yes, mass produce them like you

could the utility bill.” DX-76 at 49:17-18.

116. Detective Patricia Alexander testified that she does not believe that the

requirement of submitting a photocopy of a photo ID prevents absentee voter fraud.

DX-122 at 39:4-8.

117. Not all of the accepted forms of photo IDs that can be used to vote contain

signatures. DX-81 at 110:17-20. Poll workers are not trained to match signatures on


69

photo IDs with signatures on ballots. DX-73 at 66:10-14.

118. Absentee election managers are not tasked with comparing signatures on

affidavits and photo IDs. DX-81 at 110:3-8. And absentee elections managers do not

compare every signature on a photo ID with the signatures on the absentee voter

ballot affidavits. Id. at 109:12-110:2.

119. Driver’s licenses in Alabama do not indicate citizenship. PXO-U at 143:23-

146:6; PXO-DD at 117:14-17.

120. According to former Secretary Worley, some legislators expressed concerns

about black voters committing voter fraud and the need for photo ID. DX-89 at

64:16-65:1. Most legislative proponents of photo ID, however, were concerned

about Mexican “immigrants” voting. DX-89 at 47:6-22, 64:2-13.

121. Because of the severe repercussions, including deportation, noncitizens or the

undocumented are unlikely to intentionally vote illegally. DX-89 at 45:22-47:5;

PXO-CC at 83:10-85:5; PXO-AA 100:7-14.

122. The one confirmed instance of noncitizen voting in Alabama involved a man

who had assumed another person’s identity and possessed documents, including an

Alabama driver’s license, that would permit him to vote under HB 19. PXO-I, Ex. 1

at p.6 n.12; see also PXO-DD at 217:6-218:17.

123. Since 1982, and before, Alabama has employed and defended intentionally

racially discriminatory at-large elections, felony and misdemeanor disfranchisement

laws, selective prosecutions, re-identification laws, local number-post laws, oath


70

requirements, and documentary proof of citizenship laws on the grounds that such

laws are necessary to prevent “voter fraud.” PXO-I, Ex. 1 ¶¶ 156, 190-92, 240-41.

124. Secretary Merrill and former Secretary Worley both testified that some of the

complaints from constituents about alleged fraud were based on racial animus. For

example, Secretary Merrill personally investigated a complaint in Dale County

where “a white guy” alleged that Black voters did not reside in the city. Secretary

Merrill determined that the man was simply “irritated” because “a black mayor . . .

just had got elected” and that his meritless complaint amounted to “racial behavior

which was negative.” DX-75 at 238:7-242:15. Similarly, Secretary Worley testified

that, during her 2003-2007 tenure, she never heard “anyone other than white people,

Caucasians, bring up the idea of impersonation” and that it was always in the context

of “white people [who] are concerned about blacks voting and impersonating

somebody.” DX-89 at 62:6-65:1.

125. In recent years, poll workers and police officers in Alabama have harassed

voters of color at the polls. Former Secretary Worley testified that, in 2016, police

officers were stationed inside a polling place and they were arresting voters with

outstanding warrant as they checked in. DX-89 at 101:21-106:12. In 2013, poll

watchers in Evergreen near sign in tables for voters and, in some instances,

challenged the identities and qualifications of Black voters, but not white voters.

DX-68 at 336:21-341:14; id. Ex. 7 at 4. Jerome Gray, the former political director

of the NAACP, testified that, in 2008, white individuals stood outside a


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predominately Black polling place in Evergreen to intimidate and take pictures of

voters. DX-68 at 76:6-79:6. During the 2010 general election, former Secretary

Chapman’s investigations into alleged voter fraud focused only on counties that

were heavily Democratic and Black. PXO-I, Ex. 1 ¶ 131. While Secretary of State

from 2003 to 2007, Secretary Worley received complaints from Black voters who

were elderly or illiterate about discrimination and mistreatment by poll workers. DX-

89 at 65:22-66:18.

126. In 2008, when a Black minister began registering people incarcerated for

crimes other than ones of “moral turpitude,” the State Department of Corrections

approved, because officials considered it part of a program to reform and rehabilitate

prisoners. PXO-I, Ex. 1 at 237. But after Republican Party Chair (and 2011 House

Speaker) Mike Hubbard objected and raised the possibility of voter fraud, the

program was quickly halt. Id. After the minister sued, he was allowed to at least put

up flyers on “Voting While Incarcerated” on prison bulletin boards. Id.

127. DDL has 95% white membership. DX-62 Ex. 7; DX-66 at 125:17-126:13.

128. Perry Beasley, who founded the DDL, had only ever investigated cases of voter

fraud in which the alleged perpetrator was Black. DX-62 at 58:16-63:1. Beasley also

testified to his belief that any person who claims they cannot obtain a photo ID is

“stupid or retarded or is lying through his anal orifice.” Id. at 102:9-10.

129. Cochran also testified about her decision to refuse to register a voter who she

believed was living in public housing at another address. DX-66 at 101:15-103:10.


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Even after Cochran was told by the County Commissioner that the woman could use

that residence for voting, Cochran refused to register the woman at another address

“as long as I’m helping pay her rent for public housing.” Id. at 102:20-21.

131. Three quarters of those without an ID are female, but whites without an ID are

almost all female. In other words, the one demographic group that appears relatively

unaffected by the Photo ID Law is white males. PXO-L ¶ 12, Ex. A at 10, ¶ 23, Table

13.

132. According to Dr. Siskin’s April 24, 2017 report, 69,704 voters without a

useable ID live at least five miles from an ID-issuing office.14 PXO-P ¶ 34, Ex. C at

22-23, Table 1. Of these voters, 20,863 (29.93%)15 are black, 992 (1.42%) are

Hispanic, and 47,848 (68.65%) are white. Id. Excluding contestable IDs from the

analysis, the results total 27,941 registered voters who live more than five miles

away from either an ALEA office or a registrars’ office of which 17,933 (64.18%)

are white, 9,672 (34.61%) are black, and 336 (1.20%) are Hispanic. PXO-P, ¶ 34

Ex. D Table 1.

133. After reviewing Dr. Hood’s report, Dr. Siskin found a minor technical error in

the algorithm that calculated each registered voter’s distance from the nearest of

14 Either an ALEA office or a Board of Registrars’ office, as well as the Secretary of State’s office.

Siskin also performed this analysis for ALEA and registrars’ offices individually. See PXO-P ¶¶

32-33. 15 Percentages are calculated by dividing the number of voters by race by the total number of voters

(e.g., 20,863 / 69,704 = .2993).


73

either an ALEA office or a registrars’ office. Dr. Siskin corrected the issue, which

resulted in the distances for several hundred registered voters being reduced.

However, none of these changes reduced any registered voter’s distance from over

five miles to less than five miles, which means this change had no impact on my

analysis of distance in the above paragraphs. PXO-P ¶35, Ex. F at 1-3.

134. In Dr. Hood’s May 16, 2017 Declaration, Dr. Hood removed additional

categories of voters from the no-match list. While Dr. Siskin does not agree with

these removals, he conducted an additional analysis of the burdens providing the

“benefit of the doubt” to Dr. Hood by generally deferring to Dr. Hood on who should

be removed from the no-match list. PXO-P ¶ 36.

135. PXO-P, ¶ 38, Ex. E at 2, Table 1B contains the results of Dr. Siskin’s analysis

when the UOCAVA, nursing home, disabled, 2016 NVRA, and 2017 Interstate

Cross Check Program registrants identified by Dr. Hood are removed from the

studied population, and 2016 voters are removed from the no match list. With those

registered voters removed, Dr. Siskin estimated that 47,997 voters without a usable

HB 19 ID live at least five miles from either an ALEA office or a registrars’ office.

PXO-P ¶¶ 37-38. Of these voters, 33,010 are white, 14,281 are Black, and 706 are

Hispanic. Id.

136. A conservative estimate, using census tract data, indicates that 6.1% of

households in Alabama have zero vehicles in the household, 8.19% of voters without

a usable HB 19 ID have no vehicle nor live in a household with a vehicle, 12.08%


74

of African-Americans without a usable HB 19 ID have no vehicle nor live in a

household with a vehicle, compared to 5.71% of whites, and the difference of 6.37%

is statistically significant at 37.83 units of standard deviation. PXO-P ¶ 41, Ex. C at

40.

137. A conservative estimate, using census tract data, indicates that 2,555 black,

2,536 white, and 51 Hispanic voters without a usable HB 19 ID live more than five

miles from an ALEA office AND have no vehicle nor live in a household with a

vehicle. PXO-P ¶ 42, Ex. C at 41. Dr. Siskin also calculated these figures excluding

contestable IDs from the analysis. The results total 2,186 registered voters who live

more than five miles away from either an ALEA office or a registrars’ office AND

have no vehicle nor live in a household with a vehicle of which 1,210 are black, 959

are white, and 18 are Hispanic. PXO-P ¶ 42, Ex. D at 13, Table 3.

138. A conservative estimate, using census tract data, indicates that 2,255 white,

2,151 black, and 48 Hispanic voters without a usable HB 19 ID live more than five

miles from a registrars’ office AND have no vehicle nor live in a household with a

vehicle. PXO-P ¶43, Ex. C at 41. Dr. Siskin also calculated these figures excluding

contestable IDs from the analysis. The results total 1,896 registered voters who live

more than five miles away from either an ALEA office or a registrars’ office AND

have no vehicle nor live in a household with a vehicle of which 860 are white, 1,019

are black, and 17 are Hispanic. PXO-P ¶ 43, Ex. D at 13, Table.


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139. A conservative estimate,16 using census tract data, indicates that 2,028 white

(53.6%), 1,717 black (45.3%), and 42 Hispanic (1.1%) voters without a usable HB

19 ID live more than five miles from either an ALEA office or a registrars’ office

AND have no vehicle nor live in a household with a vehicle. PXO-P ¶ 44, Ex. E at

4, Table 3. Dr. Siskin also calculated these figures excluding contestable IDs from

the analysis. The results total 1,597 registered voters who live more than five miles

away from either an ALEA office or a registrars’ office of which 776 are white, 807

are black, and 14 are Hispanic. PXO-P ¶ 44, Ex. D at 13, Table 3.

140. When certain registered voters identified by Dr. Hood, and listed in Paragraph

135 above are removed, Dr. Siskin found 1,403 white (54%), 1,168 black (44.9%),

and 29 Hispanic (1.1%) voters without a usable HB 19 ID, who live at least five

miles from either an ALEA office or a registrars’ office AND have no vehicle nor

live in a household with a vehicle. PXO-P ¶ 46 , Ex. E at 4, Table 3.

141. There are 822,039 black registered voters and 2,147,778 white registered voters

in Alabama. PXO-P ¶ 2, Ex. A at 34, Table 4. Using the number of total registered

voters by race and the estimates for burdened voters by race shown in Paragraphs

139 and 140 above, one can calculate the increased likelihood that a Black registered

voter without an HB 19 ID is burdened as compared to a white registered voter.

16 Reflecting adjustments made to account for the travel distances issue noted on pages 4-5 of Dr.

Hood's Second Declaration related to Baldwin County, which resulted in no change from original

report. PXO-JJ.


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Depending on the estimate used, a Black registered voter is 2.72, 2.21, or 2.17 times

more likely than a white registered voter to not possess an HB 19 ID, live more than

five miles from an ID issuing office, and not own a vehicle nor live in a household

with a vehicle. (807 / 822,039) / (776 / 2,147,778) = 2.72, PUF ¶ 139; (1,717 /

822,039) / (2,028 / 2,147,778) = 2.21, PUF ¶ 139; (1,168 / 822,039) / (1,403 /

2,147,778) = 2.17, PUF ¶ 140.

142. Dr. Siskin’s methodology for calculating vehicle ownership assumes that,

within a census tract, the probability of a household not having a vehicle is

independent of race income, and possession of a photo ID. See PXO-P ¶ 47, Ex. A

at 42. At the statewide level in Alabama, 14.1 % of African American households

do not have a vehicle, as opposed to 3.90% of white households. Id. at 42. It is also

conservative for the simple reason that individuals without a driver's license are less

likely than the average voter not to have a car. PXO-L, Ex. A at 8, Table 8; see also

PXO-P ¶ 48, Ex. C at 46. And it is further excessively conservative in that

individuals without an ID are poorer than individuals with an ID, id. at 47 (“lack of

a valid ID is highly negatively correlated with household income”), and therefore

less likely to own a car.

143. Dr. Marker’s survey, found that of people not possessing an HB 19 ID, 49.1%

(57.7% white, 37.1% Black, and 63.8% Hispanic) reported that someone in their

home owns or leases a car that works. PXO-L ¶ 11. Consequently, the percentages

by race of people who do not live in a household where someone owns or leases a


77

car that works are: 62.9% Black, 42.3% white, and 36.2% Hispanic.

144. Applying vehicle access percentages found by Dr. Marker’s survey to Dr.

Siskin’s estimate for the number of people who live more than five miles from an

ID issuing office and do not possess a usable HB 19 ID yields 13,123 (20,863 x

62.9%) Black, 20,240 (47,848 x 42.3%) white, and 359 (992 x 36.2%) Hispanic

voters, who lack a usable HB 19 ID, live more than five miles from an ID issuing

office, and do not own a vehicle nor live in a household with a vehicle. PUF ¶¶ 132,

143.

145. Calculating these figures excluding contestable IDs from the analysis yields

6,084 (9,672 x 62.9%) Black, 7,586 (17,933 x 42.3%) white, and 122 (336 x 36.2%)

Hispanic voters, who lack an HB 19 ID, live more than five miles from an ID issuing

office, and do not own a vehicle nor live in a household with a vehicle. PUF ¶¶ 132,

143.

146. Calculating these figures excluding certain categories of registered voters that

Dr. Hood excluded from consideration in his May 16, 2017, Report,17 yields 8,983

(14,281 x 62.9%) Black, 13,963 (33,010 x 42.3%) white, and 256 (706 x 36.2%)

Hispanic voters, who lack a usable HB 19 ID, live more than five miles from an ID

issuing office, and do not own a vehicle nor live in a household with a vehicle. PUF

17 Removing voters from the studied population that Dr. Hood categorized as UOCAVA, nursing

home, disabled, 2016 NVRA registrants, and 2017 Interstate Cross Check program registrants, and

removing from the no match list 2016 voters.


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¶¶ 135, 143.

147. There are 822,039 Black registered voters and 2,147,778 white registered

voters in Alabama. PXO-P ¶ 2, Ex. A at 34, Table 4. Using the number of total

registered voters by race and the estimates for burdened voters by race shown in

Paragraphs 144, 145, and 146 above, one can calculate the increased likelihood that

a Black registered voter without an HB 19 ID is burdened as compared to a white

registered voter. Depending on the estimate used, a Black registered voter is 2.10,18

1.69,19or 1.6820 times more likely than a white registered voter to not possess an HB

19 ID, live more than five miles from an ID issuing office, and not own a vehicle

nor live in a household with a vehicle.

148. Public transportation options in Alabama are limited. See, e.g., PXO-F ¶ 16.

The American Association of State Highway and Transportation Officials, and the

American Public Transportation Association report that Alabama does not provide

state funding of public transit. PXO-P ¶ 50, Ex. C at 43-44.

149. Alabama is one of three to five (depending on the year) states that provide no

state funding for public transportation. Id. ¶ 51.

156. Based on the characteristics of census tracts, voters without valid ID are more

likely to hold hourly wage positions than to be salaried or not employed – 30.5% of

18 (6,084 / 822,039) / (7,586 / 2,147,778) = 2.10. PUF ¶ 145. 19 (13,123 / 822,039) / (20,240 / 2,147,778) = 1.69. PUF ¶ 144. 20 (8,983 / 822,039) / (13,963 / 2,147,778) = 1.68. PUF ¶ 146.


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voters without ID should be expected to hold salaried positions, while 45.2% (49.4%

among African-Americans, 42.5% among whites, and 42.5% among Hispanics)

likely hold hourly wage jobs. Id. ¶ 52.

157. Estimates indicate that 10,831 (24.68%) Black voters, and 241 (15.87%)

Hispanic voters without a useable HB 19 ID live below the poverty line, as compared

with 9,360 (13.84%) white voters without ID. Id. ¶ 53. These disparities are

statistically significant. Id.

158. Of Dr. Siskin’s study population of voters without a usable HB 19 ID, 11.96%

have an annual income of less than $10,000 (by race: 9.52% for whites, 15.81% for

African Americans, and 9.76% for Hispanics), and 33.97% have a household income

of less than $25,000 (by race: 28.92% for whites, 41.90% for African Americans,

and 29.69% for Hispanics). Id. ¶ 54.

159. 9.92% of Alabama households report being single parent households and

13.33% of the population of voters without a usable HB 19 ID are in single parent

households. Id. ¶ 55.

160. By race, 19.68% of Black and 11.4% of Hispanic voters without a usable HB

19 ID are estimated to live in single parent households, as compared to 9.25% of

white voters without photo ID. Id. ¶ 56. These disparities are statistically significant.

Id.

161. After adjusting for respondents who answered “Don’t know” or refused to

respond, Dr. Siskin found that Dr. Marker’s survey data shows that 56.5% of those


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without a usable HB 19 ID have a household income of less than $10,000, and 89.5%

have a household income of less than $25,000. Id. ¶ 57.


respond, Dr. Siskin found that Dr. Marker’s survey found that 15.2% of voters

without a usable HB 19 ID are estimated to be responsible for at least one child

without help from another adult. Id. ¶ 58. The great majority of white survey

respondents, without an HB 19 ID are not responsible for any children. PXO-L ¶ 13.

But almost 90% of Hispanics without an HB 19 ID, and almost half of Black

respondents without an HB 19 ID are responsible for at least one child. Id. The point

estimate for white survey respondents who did not report having an HB 19 ID and

did report responsibility for at least one child is 13.4%. PXO-L ¶ 13.


respond, Dr. Siskin found that Dr. Marker’s survey notes that 25.5% of survey

respondents without a HB 19 ID (with significantly more Black and Hispanics) were

responsible for children (whether they were single parents). PXO-P ¶ 58, Ex. C. at

49.

164. In Alabama, there are three times as many African Americans living below the

poverty level (30.1%) as there are whites (12.1%). PXO-I, Ex. 1 at 99, ¶ 203 (citing

Table B17001, 2006-10 ACS).

165. In Alabama, white median family income ($59,845) is 1.77 times as high as

Black median family income ($33,902). Id. (citing Table B19113, 2006-10 ACS).


81

166. As of November 1, 2016, for 23.3% of voters without a usable HB 19 ID, their

nearest ALEA office was open only 2 days a week or less; for 17.6%, their nearest

ALEA office was open only one day a week or less; and for 14.1 %, the nearest

ALEA office was open less than one day a week (i.e., either once a month or twice

a month). PXO-P ¶ 59, Ex. C at 31.

167. The percentage of African American voters without a usable HB 19 ID, whose

nearest ALEA office was open only one or twice a month was 15.9%, as compared

to 13.1% for white voters without a usable HB 19 ID, which is a statistically

significant disparity. Id. ¶ 60.

168. The nearest ALEA office to more than half of voters without a usable HB 19

ID was closed during the day for lunch and Black voters without valid ID are

statistically significantly more likely than white voters to have their nearest ALEA

office closed for lunch (62.2% for Black voters vs. 45.4% for whites). Id. ¶ 61.

169. There are no ALEA or registrars’ offices open on weekends. Id. ¶ 62; PXO-HH

(March 22, 2017 ALEA Stipulation); PXO-GG at 25 (SOS’s Third Am. Resp. to

Interrog. No. 12).

170. Between March 17, 2014 and October 23, 2016, the mobile units visited 329

locations in Alabama. PXO-GG at 44-67.

171. 7% of mobile unit locations were within a quarter mile of a registrars’ office,

11% were within a half-mile of a registrars’ office, and 15% were within a mile of a

registrars’ office. PXO-P ¶ 63, Ex. C at 28.


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172. On average, mobile unit locations were open for 3.6 hours a day – in 20.4% of

visits, mobile units were open for 2 hours or less, and in 82.6% of visits they were

open for four hours or less. Id. ¶ 64.

173. Poverty, household wealth, and racial demographics were not factors

considered when scheduling locations for mobile unit visits. DX-71 at 101:4-13.

The mobile units have only made, or been scheduled to make, 4 home visits. PXO-

W at 308:18-22.

174. One of the mobile units home visits came about from a member of the

legislature contacting Secretary Merrill to arrange a mobile visit for a constituent.

PXO-Q ¶ 8; DX-93 at 1-2, ¶¶ 3-4.

175. The Secretary of State’s office chose not to allow polling places to issue voter

ID cards on election day. PXO-W at 142:5-143:6.

176. In order to obtain a free photo voter ID, Alabama voters must sign a form under

penalty of perjury, that they do not currently possess any form of valid photo ID.

DX-4 (Ala. Admin. Code §§ 820-2-9-.03, 820-2-9-.13); DX-109 at 7, Ex. 2; see also

PXO-Z (Marsal Dep.), Ex. 2 at 12; DX-71 at 171:1-23.

177. The submission of an application for a free photo voter ID, while possessing a

valid photo ID is punishable by a class C felony. DX-4 at §§ 820-2-9-.03; DX-71 at

171:19-172:1.

178. The Secretary of State’s former Chief Legal Advisor, and Counsel for Elections

and Administration, believes it is possible that the Rule 820-2-9-.03 may have a


83

chilling effect on application for the photo voter ID card. PXO-W at 160:4-12.

179. There is no existing list, nor can a list be created, that identifies all of the

documents that can be used by an applicant in order to obtain an Alabama voter ID

card. DX-6 at 19; see also PXO-FF (SOS’s Am. Resps. to Pls.’ First Set of Interrogs.,

Interrog. Nos. 1 & 2) at 9-18.

180. There is a risk of felony for applicants who apply for the free photo voter ID

card, while already possessing a valid ID for voting, even if they do not understand

that they already possess a valid ID. DX-71 at 171:5-11.

181. After taking office, Secretary Merrill determined to budget roughly $350,000

for advertising per election, which represented a cut to approximately one third of

previous administrations expenditures. DX-63 at 27:4-12, 28:2-13.

182. The Secretary of State did not offer any Spanish language advertisements

related to the photo ID law in any medium. Id. at 21:9-13.

183. The mobile unit schedule and advertisements related to home visits were not

publicized in Spanish. Id. at 59:22-60:2, 63:6-13, 93:17-21.

184. No voting or election information provided by the Secretary of State’s office is

offered in Spanish. Id. at 96:6-18.

185. As of January 2016, ALEA had only issued 33 free non-driver IDs. DX-78 at

549:13-17 and Ex. 51 thereto.

186. In 2013 Alabama was ranked 49th out of 50 states and the District of Columbia

in household computer penetration and 48th in high-speed Internet penetration.


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PXO-P ¶ 63, Ex. C at 51.

187. According to the 2015 ACS 1 year estimates, statewide, 27.1 % of Black and

23.6% of Hispanic households do not have a computer at home and 41.8% of Black

households and 41.2% of Hispanic households do not have a high-speed Internet

subscription. Id. This compares to 16.2% of white households which do not have a

computer at home and 27.7% of white households without a high-speed Internet

subscription. Id.

188. Turnout among African-American voters in Alabama fell 8.8 percentage points

between the 2010 and 2014 general elections. PXO-JJ at 9, Table 7.

189. In the 2010 and 2014 elections, white turnout in Alabama was higher than Black

turnout, by 7.5 points in 2010 and by 5.8 points in 2014. Id. at 20, Table 10. Between

the 2012 and 2016 presidential elections, after the photo ID law was implemented,

Black turnout in Alabama dropped 7.8 percentage points, while white turnout

increased 1.6 points. Id. at 12.

190. In both the 2014 and 2016 general elections, a higher proportion of Black voters

than white voters in Alabama had their provisional ballots rejected for ID-related

reasons. Id. at 6, Table 4.

191. In the 2014 general election, the percentage of Black voters whose provisional

ballots were rejected for ID-related reasons in Alabama was more than three times

as high as the percentage of white voters. Id.

192. In the 2014 general election, 286 Black Alabama voters had provisional ballots


85

rejected for ID-related reasons in 2014, compared to only 260 white voters. Id.

193. HB 19 proponents ignored the repeated warnings of Black legislators that

minority voters were less likely to possess requisite ID under HB 19. PXO-I, Ex. 1

¶¶ 150-151; PXO-U at 168:10-69:9; see also DX-65 at 133:15-134:17; PXO-DD at

98:15-100:20, PXO-F ¶ 7, PXO-Q ¶ 4; PXO-O ¶ 10; and DX-89 at 36:22-39:12. For

example, Sen. Beason was aware of Black legislators’ concerns about HB 19’s

disparate impact, he dismissed them out of hand. PXO-U at 168:17-169:9. But, he

was unaware that Black Alabamians are more likely than whites to be poor. Id. at

173:20-174:1.

194. Between 1995 and 2011, Black legislators and other individuals 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. Former Secretary Worley testified that photo ID proponents were “very

aware” that Black legislators opposed photo ID and why. DX-89 at 36:16-39:12.

PLAINTIFFS’ DISPUTED STATEMENT OF FACTS

1. Plaintiffs’ experts used a two-step approach to determine the number of Alabama

registered voters who do not possess a photo ID acceptable for voting under the

Photo ID Law (“HB 19 ID”). See PXO-P ¶ 3, Ex. A at 1-3.

2. Based on the survey results, Dr. Marker determined that—out of the registered

voters on the “no match list” provided by Dr. Siskin—84% of White registered

voters, 82% of Black registered voters, and 86.3% of Hispanic registered voters had


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some form of valid HB 19 ID. PXO-L ¶ 10, Ex. A, Table 1.

3. Dr. Siskin then applied the results of this survey to his own analysis, and

concluded that, out of the approximately 300,000 registered voters he could not

match to an ALEA photo ID, 50,106 had no form of photo ID. See PXO-P ¶ 9, Ex

A at 23-24; Table 1, Panel B.

4. Dr. Siskin concluded that 29,491 White registered voters, 20,087 Black registered

voters, and 528 Hispanic registered voters did not have a photo ID. Id. ¶ 10.

5. This translates into 1.37% of all White registered voters, 2.44% of all Black

registered voters, and 2.29% of all Hispanic registered voters. Id. ¶ 11

6. Dr. Siskin concluded that Black registered voters are 1.78 times more likely than

White registered voters to lack a photo ID; and that Hispanic registered voters are

1.67 times more likely than white registered voters to lack a HB 19 ID. Id. ¶ 12.

7. Dr. Siskin then performed an analysis to determine whether these results were

“statistically significant”—meaning not likely to have arisen by chance. Id. ¶ 13.

8. After performing this analysis, Dr. Siskin concluded that the differences between

African-American and White registered voters and Hispanic and White registered

voters in Paragraph 5 are statistically significant, id. ¶ 14-15, with standard

deviations of 64.42 and 11.79, respectively, id. ¶ 16.

9. The record evidence plainly indicates that if the name on a Photo ID materially

differs from that in the voter file the ID may be contested if used to satisfy the Photo

ID Law. See PXO-GG at 92-94; DX-65 at 99:9-16, 102:1-6; DX-72 at 53:5-14; DX-


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88 at 104:13-105:15.

10. Dr. Siskin used criteria for what constitutes a “contestable ID” that is more

lenient than that used by the Secretary or his predecessor, resulting in a more

conservative estimate of the number of contestable IDs. Compare PXO-P, Ex. A at

19 with PXO-GG at 92-94; DX-65 at 99:9-16, 102:1-6; DX-72 at 53:5-14; DX-88 at

104:13-105:15.

11. Dr. Siskin’s statistical analysis estimated that approximately 58,000 photo IDs

contain dramatic differences such as no similar first name, last name, date of birth,

or address. See PXO-P ¶¶ 17-20, Ex. A, Table 3A.

12. Dr. Siskin estimated that an additional approximately 10,000 photo IDs suffered

from significant discrepancies not quite rising to that level: either (1) non-matching

first or last name as well as a mismatch of address and date of birth; or (2) non-

matching first and last name. See id. ¶ 21.

13. When Dr. Siskin’s estimate of the number of approximately 68,046 “contestable

IDs” are combined with the estimate of 50,106 registered voters who do not possess

any form of HB 19 ID, Dr. Siskin’s overall estimate of registered voters who do not

possess a usable HB 19 ID that can be used to vote in Alabama is 118,152. Id. ¶ 22,

Ex. A, Table 1, Panel A.

14. Dr. Siskin concluded that 71,433 white, 45,108 Black, and 1,611 Hispanic

registered voters did not have a usable HB 19 ID. Id. ¶ 23.

15. This translates into 3.33% of all White registered voters, 5.49% of all African-


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American registered voters, and 6.98% of all Hispanic registered voters. Id. ¶ 24.

16. Dr. Siskin concluded Black registered voters are estimated to be 1.65 times more

likely than White registered voters to lack a usable HB 19 ID that can be used to

vote in Alabama. Hispanic are 2.10 times more likely than white registered voters to

lack a usable HB 19 that can be used to vote in Alabama. Id. ¶ 25.

17. Dr. Siskin performed the same statistical significance analysis only this time

accounting for “contestable IDs”, and concluded that these differences between

African-American and White registered voters and Hispanic and White registered

voters was also statistically significant, id. ¶ 26, with standard deviations of 85.83

and 30.57, respectively, id., Ex. A, Table 1, Panel A.

18. Although Dr. Siskin disagreed with much of methodology Dr. Hood used when

providing his estimate of Alabama voters without a HB 19 ID, Dr. Hood re-ran the

analysis by accepting some of Dr. Hood’s assumptions and correcting for several

errors in Dr. Hood’s calculations. See PXO-P ¶ 27, Ex. B at Exs. 10 and 11.

19. The existence of the mobile ID units, and the availability of home visits, has not

been adequately publicized. PXO-R (Ware Decl.) ¶ 1; PXO-G (Grant Decl.) ¶ 21;

PXO-N ¶ 4.

20. The availability of a free photo voter ID card has not been adequately publicized.

PXO-G ¶ 20, resulting in voters believing they must present underlying

documentation in order to acquire a free photo ID or free non-driver ID card. Id. at

2-3, ¶¶ 8-18.


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21. Between 2011, when Alabama’s photo ID law was passed, and 2014, when the

law went into effect, the Secretary of State failed to adequately publicize the

requirements of the photo ID law. PXO-F ¶ 12.

22. Two independent tests both indicate that Alabama’s strict voter identification

law has had a disproportionately negative impact on the turnout of racial and ethnic

minorities in Alabama. See PXO-H, Ex. A at 3-8. Both tests rely upon cross-state

turnout comparisons in which local politics and other factors affecting turnout are

taken into account. PXO-H ¶ 3.

23. From 2012 to 2016, turnout declined 4.1 percentage points more in Alabama’s

majority-minority counties than in similar counties in Southern non-strict ID states.

PXO-H ¶ 7, Ex. A at 19-20.

24. From 2012 to 2016, the relative decline in turnout in majority-minority counties,

compared to turnout in overwhelmingly white counties, was 3.4 percentage points

greater in Alabama than in Southern states with no strict ID law. PXO-H ¶ 8, Ex. A

at 22-23.

25. As a check, Dr. Hajnal also performs a focused comparison of Alabama to South

Carolina, the Southern state most similar to Alabama in key respects other than its

voter identification law. In both Alabama and South Carolina, state-level politics

have been dominated by Republicans, demographic indicators are closely aligned,

and other electoral laws are similar. PXO-H ¶ 9, Ex. A at 21-22.

26. From 2012 to 2016, turnout in Alabama’s majority-minority counties fell by


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nearly twice as much as in South Carolina’s majority-minority counties, a difference

that is statistically significant. PXO-H ¶ 10, Ex. at 21-22.

27. As another check, Dr. Hajnal also analyzes changes in turnout between the 2010

and 2014 elections. PXO-H ¶ 11, Ex. A at 11.

28. From 2010 to 2014, turnout in majority-minority counties fell significantly more

in Alabama than in similar counties in Southern states that did not implement a strict

voter identification law during that time. PXO-H ¶ 12, Ex. A at 20.

29. From 2010 to 2014, the drop in turnout in majority-minority counties, relative to

the turnout drop in predominantly white counties, was 7.8 points greater in Alabama

than in Southern states with no strict voter ID requirement. PXO-H ¶ 13, Ex. A at

24.

30. In the second test, Dr. Hajnal performs a regression analysis on data from all

counties in the United States. PXO-H ¶ 14, Ex. A at 27-29.

31. The regression analyzes the impact of a range of control variables identified in

the scholarly literature as affecting voter turnout, including education, income, age,

electoral laws, and partisan and electoral competitiveness. PXO-H ¶ 15, Ex. A at 27-

29. These control variables enable Dr. Hajnal to assess the distinct impact of

Alabama’s strict voter ID law on minority turnout. PXO-H ¶ 15, Ex. A at 27-29.

32. The regression results indicate that the turnout of minorities—relative to

whites—declined significantly more from 2012 to 2016 in Alabama than in other

states nationwide. PXO-H ¶ 16, Ex. A at 29-31.


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33. All else equal, turnout in the most racially diverse counties in Alabama is

estimated to decline by almost 5 percentage points from 2012 to 2016. PXO-H ¶ 17,

Ex. A at 29-31.

34. By contrast, all else equal, turnout in the least diverse counties in Alabama is

estimated to increase by almost 5 percentage points from 2012 to 2016. PXO-H ¶

18, Ex. A at 29-31.

35. In other states, racial/ethnic diversity plays a far more minor role in predicting

changes in turnout than in Alabama. PXO-H ¶ 19, Ex. A at 30-31, Fig. 1.

36. This difference between Alabama and the rest of the country is statistically

significant and robust against alternative specifications of the regression model.

PXO-H ¶ 20, Ex. A at 31-32, Table A4.

37. Probate Judge King testified that he does not think absentee election managers

can ensure that the person identified in the photo ID is the person whose vote is being

cast through the absentee ballot simply by looking at a copy of a photo ID. DX-73

at 101:15-23. He further testified that he does not believe that the Photo ID Law can

prevent a person from casting another person’s absentee ballot. Id. at 102:1-12.

38. While Beth Chapman testified that she was informed of allegations of potential

voter fraud, she testified that she did not know whether the state even investigated

any of these allegations. See DX-65 at 31:6-32:11.

37. Photo ID laws do not necessarily “inspire public confidence” in the election

system, particularly for the people disfranchised by the laws. See PXO-DD at


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137:12-138:17; PXO-B, Ex. 1 at 30-31 (Tables 4 & 5), Ex. 2 at 2-3 (Tables A2 &

A3); PXO-H, Ex. A at 5-8, 36-37.

38. Elected officials in Alabama, including U.S. Congresswoman Terri Sewell, State

Sen. Sanders, State Sen. Figures, Rep. Todd, Montgomery County Probate Judge

Steven Reed, and former Secretary of State Worley, testified that HB 19 undermined

confidence in the election system or needlessly disfranchised voters. See PXO-O ¶

11; PXO-F ¶ 5; PXO-P ¶¶ 4-7; PXO-N ¶¶ 4-5; DX-89 at 86:21-23, 87:1-17.

39. Ms. Ambrosio, Ms. Harris, Ms. Silvers, and Ms. Ware were unable to cast

effective ballots on at least one occasion because they lacked HB 19 ID, did not

know their poll officials, or no poll official vouched for them. DX-59 at 30:1-30:20;

46:18-48:12; PXO-A at 1-2, ¶¶ 2-9; DX-69 at 58:3-59:7; DX-82 at 21:11-24, 28:10-

31:2, 77:18-78:5; DX-87 at 89:2-14, 137:23-139:7. Ms. Silvers and Ms. Ware were

not told of the PIP by poll officials when trying to vote. DX-82 at 28:10-20, 77:18-

78:5; DX-87 at 89:2-14, 137:23-139:7.

40. Josh Wahl is a white registered voter who, for religious reasons, lacks HB 19 ID.

In the 2014 general and 2016 primary and runoff elections, Mr. Wahl and four of his

family members were denied the right to vote because those same poll officials

capriciously refused to vouch for them. Id. at 17:9-18:23; 68:5-69:10; 73:21-74:20;

109:4-20; 122:16-123:4.

41. Celestine Megginson (PXO-V (Binder Dep.) at 10:3-21, 12:18-13:5, 14:10-

15:18, 18:8-19:6, 47:19-52:8; see also PXO-II (GBM_0001150)) and Chris


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Cameron (PXO-D (Cameron Decl.) at 1, ¶¶ 1-3, 6-9; see also DX-82 at 63:9-15,

91:24-92:6) are Black registered voters who were unable to vote in at least one

election because they lack HB 19 ID, and no poll officials vouched for them or

informed them of the PIP. Tina Grant is a Black registered voter who was told by

her poll official that she could not vote with her valid driver’s license unless she also

had a “voter ID card.” The official improperly denied her the right to cast any ballot

and did not vouch for her or tell her about the PIP. PXO-G ¶¶ 1-5.

42. In 2014, Jerome Gray, a member of Plaintiff Alabama NAACP, assisted two

Black voters who lacked HB 19 ID, but knew two of their poll officials. However,

the white chief inspector (who is the head of the polling place) refused to let them

vote at all and insisted that everyone had to show HB 19 ID. In response, Mr. Gray

called the Secretary’s office. The Secretary’s office instructed this chief inspector

that people could use the PIP to vote. In 2016, a federal observer reported that the

same chief inspector continued to incorrectly inform all voters that they “[m]ust

bring in photo ID” without mentioning either the PIP or provisional ballot process.

DX-68 at 265:20-272:21, 315:5-318:16, 328:2-329:3.

43. Reverend Deb Welsh is the director of Project ID, a Church-funded organization

dedicated to assisting its clients with obtaining state issued photo IDs and birth

certificates in the Birmingham area. PXO-S (Welsh Decl.) ¶ 1. Project ID works

with more than 1,000 clients each year. Id. at 1, ¶ 4. Even with the assistance of

Project ID, a quarter of the clients do not obtain identification. Id. at 2, ¶ 8. Project


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ID clients also confront barriers to obtaining photo ID, including (1) navigating the

process; (2) taking time off from work or finding transportation to ID-issuing offices;

and (3) facing any type of government office for fear of warrant checks and

outstanding tickets. Id. at 2, ¶ 7.

44. GBM has encountered individuals who do not possess HB 19 ID and attempted

to assist them. PXO-X vol. 1 at 17:1-11, (June 9, 2017 Douglas Dep.) at 18:15-21.

45. Anecdotal evidence from the experience of individual voters and civil rights

groups demonstrate that voters who lack HB 19 ID face substantial logistical hurdles

to obtaining the required photo ID, in particular transportation, language barriers,

and childcare. PXO-A at 1-2, ¶ 7, 9; PXO-S ¶ 5; PXO-X vol. 1 at 10:2-10, 164:2-

166:9; PXO-AA at 85:23-87:11; PXO-CC at 77:13-78:20.

46. Political science research has established that there is no relationship between

the strictness of state voter ID laws and voter confidence. PXO-B, Ex. 1 at 28-30 In

addition, research has shown that confidence in the integrity of elections is not

correlated with a propensity to turn out to vote. Id. at 28.

47. In the Survey of Performance of American Elections (SPAE), voters were asked,

“How confident are you that your ballot was counted correctly,” responses included

very confident, somewhat confident, not too confident, not at all confident. Id. at 30.

The results clearly show that HB 19 did not increase confidence. A comparison

between the mean value of voter confidence in 2014 (post-HB 19) and the mean

value for every other pre-2014 election shows no significant difference in values,


95

suggesting that individual voter confidence was largely the same across all years. Id.

at 30-31, Table 4.

48. In addition, in 2012 (before the implementation of HB 19) and 2014 (after the

implementation of HB 19), the SPAE asked about state voter confidence, “how

confident are you that votes in [respondent state’s name] were counted as voter

intended?” Id. at 31. On average, state voter confidence was nearly identical across

both federal election years. Id. at 31, Table 5.

49. There is no indication that any legislator or state official between 2003 and 2011

conducted any analysis on any relationship between voter turnout in Alabama and

voter concerns about election fraud.

50. Based on the Survey of Performance of American Elections (SPAE) from 2008,

2012, and 2014, Dr. Lonna Rae Atkeson, Plaintiffs’ expert, determined that, in

Alabama, 89.1% of white voters and 64.5% of Black voters had a check-in poll

worker of the same race as themselves. While 35.5% of Black voters in Alabama

had a check-in poll worker of a different race than themselves, only 2.7% of Black

voters knew their poll worker if that poll worker was white. PXO-B at X, ¶ 14.

51. Based on the SPAE from 2008 to 2016, Dr. Atkeson determined that, in

Alabama, 57% of white voters without a driver’s license know their check-in poll

workers, while 0% of Black voters without a driver’s license know their check-in

poll workers. Id. ¶ 15. This difference is statistically significant. Id. ¶ 16.

52. Dr. Hood has opined that Black people are “overrepresented” among those who


96

use the positively identify provision. See PXO-JJ at 24. This is based on incomplete

data from Dale, Henry, Tallapoosa, Coffee, Jackson, Baldwin, Hale, and Tuscaloosa

Counties concerning the November 2016 election. In these selected counties,

approximately 23.1% of voters who used the Provision were Black, while Black

registered voters accounted for only 18.8% of those counties' collective population.

Id. Plaintiffs’ dispute that partial information from these few counties is competent

evidence of whether any racial group uses the positively identify provision at a

greater frequency than other racial groups.

53. But even this incomplete data does not suggest that Blacks are overrepresented.

The Provision need only be used by voters without an HB 19 ID, and so that is the

relevant group that needs to be measured, and not the registered voter population as

a whole.

54. Both Dr. Hood and Dr. Siskin agree that Black registered voters comprise

approximately 40% of all Alabama registered voters without an HB 19 ID.

Specifically, Dr. Siskin estimates that 20,087 out of the 50,106 registered voters

without an HB 19 ID are Black (40.1%). PXO-P ¶ 9. Dr. Hood estimates that 12,448

out of 32,704 registered voters without HB 19 ID are Black (38.1%). Doc. 236, pg.

46 ¶ 222. This is significantly greater than the percentage that Blacks comprise of

Alabama’s registered voters—approximately 27%. PXO-P ¶ 2.

55. Because a higher percentage of Black registered voters have no HB 19 ID and

therefore need to use the provision, one would expect the Provision to be used by a


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higher percentage of Black registered voters. DX-60 at 138:5-139:4; DX-70 at

233:8-235:17.

56. Accordingly, Dr. Hood’s observation that—in a handful of counties—a slightly

higher percentage of Black voters used the Provision than did white voters does not

demonstrate that Black registered voters without an HB 19 ID are positively

identified at a greater rate than white registered voters without an HB 19 ID. DX-60

at 138:5-139:4. Dr. Hood has ignored the fact that a disproportionate number of

Black registered voters need to use the Provision. DX-70 at 233:8-235:17.

57. Estimating that Black people in these self-selected counties also makeup 40% of

those voters without HB 19 ID, this suggests that Black voters were in fact

significantly underrepresented (by 17 percentage points) among those who used the

Provision to vote in November 2016. Id.


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ARGUMENT

I. INTRODUCTION

For two years, Plaintiffs Greater Birmingham Ministries, the Alabama

NAACP, Giovana Ambrosio, Shameka Harris, and Elizabeth Ware developed a

detailed record demonstrating that the racially discriminatory purpose and effect of

House Bill 19 of 2011 (“HB 19” or the “Photo ID Law”) violates the Voting Rights

Act (“VRA”) and the U.S. Constitution. This evidentiary record confirms each of

the factual allegations that this Court found sufficient in its opinion denying the

Secretary’s motion to dismiss. Greater Birmingham Ministries v. Merrill, 250

F.Supp.3d 1238, 1245 (N.D. Ala. 2017) (“GBM”). The Secretary’s motion ignores

this overwhelming record, and asks this Court to do the same. That is not the proper

basis for summary judgment. Thus, the Secretary’s motion should be denied.

II. THE LEGAL STANDARD ON SUMMARY JUDGMENT

Summary judgment is only appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). The moving party “always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions

of [the evidence] which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).


99

At the summary judgment stage, this Court “do[es] not weigh conflicting

evidence or make credibility determinations.” Wate v. Kubler, 839 F.3d 1012, 1018

(11th Cir. 2016). This Court “must construe the facts and draw all rational inferences

therefrom in the manner most favorable to the nonmoving party. In so doing, the

district court may not weigh the evidence or find facts.” Ga. State Conference of

NAACP v. Fayette Cty. Bd. of Comm’rs, 775 F.3d 1336, 1343 (11th Cir. 2015)

(“Fayette”).

Summary judgment is rarely appropriate in voting rights litigation “due to the

fact-driven nature of the legal tests required by the Supreme Court and [Eleventh

Circuit] precedent.” Fayette, 775 F.3d at 1348; see also Wright v. Sumter Cty. Bd. of

Elections & Registration, 657 F. App’x 871, 872 (11th Cir. 2016); One Wisconsin

Inst., Inc. v. Nichol, 186 F. Supp. 3d 958, 968-70, 975 (W.D. Wis. 2016) (denying a

summary judgment motion because the disputed material facts in a photo ID case—

including the racial disparities in resource access and an expert report supporting

plaintiffs’ discriminatory intent claim—were “enough to carry plaintiffs to trial”).

In this case, “[g]iven the fundamental nature of the right at issue, the intensely

local appraisal of the facts warranted, and the complex questions of fact and law that

must be settled by the court,” the Secretary’s motion must be denied. Fayette, 775

F.3d at 1349.


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III. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE

LEGISLATURE ACTED WITH A DISCRIMINATORY INTENT.

In analyzing legislative intent, this Court must apply the familiar Arlington

Heights factors. Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429

U.S. 252, 266 (1977). Under Arlington Heights, a claim of intentional racial

discrimination brought pursuant to Constitution or VRA “does not require direct

evidence.” United States v. Marengo Cty. Comm’n., 731 F.2d 1546, 1552 (11th Cir.

1984) (“Marengo”). Plaintiffs need not “submit one particular form of proof to

prevail.” Cooper v. Harris, 137 S. Ct. 1455, 1479 (2017). Rather, the Arlington

Heights analysis “demands a sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” Young Apartments, Inc. v. Town of Jupiter,

529 F.3d 1027, 1045 (11th Cir. 2008).

This task is complex, but not impossible. At trial, Plaintiffs will need only

show by a “preponderance of the evidence” that the Legislature intended to

discriminate. Hunter v. Underwood, 471 U.S. 222, 225 (1985); see also Wright v.

Southland Corp., 187 F.3d 1287, 1301 (11th Cir. 1999) (“courts should not treat

discrimination differently from other ultimate questions of fact” (internal quotation

and citation omitted)). Indeed, because “rarely can it be said that a legislature . . .

made a decision motivated solely by a single concern,” Arlington Heights, 429 U.S.

at 265, Plaintiffs “do[ ] not have to prove that racial discrimination was a ‘dominant’

or ‘primary’ motive, only that it was a motive.” United States v. Dallas Cty.


101

Comm’n., 739 F.2d 1529, 1541 (11th Cir. 1984) (“Dallas”). “Once intent is shown,

it is not a defense under the [VRA] that the same action would have been taken

regardless of the racial motive.” Askew v. City of Rome, 127 F. 3d 1355, 1373 (11th

Cir. 1997) (citation omitted).

As the Secretary concedes, “an important starting point” under Arlington

Heights is “[t]he impact of the official action [and] whether it bears more heavily on

one race than another.” 429 U.S. at 266; see Doc. 236 at 71. That factor is easily met

here; as described infra at 126-36, the Secretary’s own expert determined that Black

and Hispanic voters were respectively 1.66 times and 1.45 times more likely to lack

HB 19 IDs than white voters. RDS ¶ 222. Cf. Hunter, 471 U.S. at 227 (finding a

disparate impact where Black voters were 1.7 times more likely to be affected than

whites).

The list of additional, but “non-exhaustive,” factors for this Court to consider

in analyzing intent include:

(1) historical background of the decision, (2) the specific

sequence of events leading up to the challenged decision,

(3) departures from the normal procedural sequence, as

well as substantive departures, and (4) legislative or

administrative history . . . (5) foreseeability of

discriminatory impact, (6) knowledge of discriminatory

impact, and (7) the availability of less discriminatory

alternatives.

Jean v. Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983) (citations omitted). Here, an

analysis of those factors creates—at a minimum—a triable issue of discriminatory


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intent.

A. Historical Background

The Secretary is right that “history did not end in 1965.” Doc. 236 at 77.

Unfortunately, however, neither did Alabama’s pattern of racial discrimination in

voting. This discrimination, as well as the racially polarized voting and racial appeals

that continue to characterize Alabama elections, are “relevant to drawing an

inference of purposeful discrimination.” Rogers v. Lodge, 458 U.S. 613, 625 (1982).

1. Other Discrimination by the Same Legislature and Sponsors

The Secretary downplays, but cannot dispute, the fact that the same

Legislature that passed the Photo ID Law passed both HB 56, an anti-immigrant law

that unconstitutionally targeted Latinos, and an unconstitutional reapportionment

that limited the electoral influence of Black voters. He also ignores that the same

influential legislators who sponsored HB 19 and had pushed photo ID bills for years

also sponsored HB 56 and plotted to manipulate Black voter turnout in 2010.

Further, the Secretary does not address the racially polarized voting (RPV) in

Alabama, nor does he address the fact that, “[i]n an environment characterized by

[RPV], politicians can predictably manipulate elections . . . to ‘minimize or cancel

out [voters’ of color] ability to elect their preferred candidates.’” United States v.

McGregor, 824 F. Supp. 2d 1339, 1346 (M.D. Ala. 2011) (quoting Thornburg v.

Gingles, 478 U.S. 30, 48 (1986) (“Gingles”)). Indeed, photo ID proponents in the

Legislature were well-aware of RPV, and had relied on it as a method of increasing


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their political fortunes by minimizing minority voting strength.

First, as the Secretary’s own expert, Dr. Stewart, conceded HB 56 was an

“unnecessary” and “indefensible” law whose “primary target” was Latino people.

PUF ¶ 37. The statute contained a variety of measures designed to achieve its stated

goal: the “self-deportation” of Latino immigrants. Id. ¶ 29. In his speech introducing

HB 56, Rep. Kerry Rich—who was also the sole House sponsor of HB 19—made

prejudiced comments about Latino people. Id. Rep. Rich also relied on racial appeals

to the public to garner support for HB 56. Id. Likewise, Senator Scott Beason—the

co-author of HB 56 and a co-sponsor of HB 19’s Senate companion, Senate Bill

86—explicitly connected HB 56 to his concern that young Latino U.S. citizens might

grow up to support his party’s political opponents.

Most of HB 56 was invalidated by the courts. See, e.g., United States v.

Alabama, 691 F.3d 1269 (11th Cir. 2012). The Eleventh Circuit held that the HB 56

requirement that public school students disclose the immigration status of their

families unconstitutionally discriminated against the children of immigrants.

Hispanic Interest Coal. Of Ala. v. Governor of Ala., 691 F.3d 1236, 1249 (11th Cir.

2012). The Court recognized that the Legislature’s stated justification for HB 56, see

Ala. Code § 31-13-2, was “no more than ‘a concise expression of an intention to

discriminate.’” Id. at 1246 (quoting Plyler v. Doe, 457 U.S. 202, 227 (1982)).

Another appellate court blocked the Secretary’s request to modify the federal voter

registration form to include the HB 56 voter ID requirement. See League of Women


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Voters v. Newby, 838 F.3d 1, 9-10 (D.C. Cir. 2016). And, while vacated as moot, a

federal district court found “substantial evidence that race and national origin played

a role in the [Legislature’s] passage of HB 56.” Cent. Ala. Fair Hous. Ctr. v. Magee,

835 F. Supp. 2d 1165, 1188 (M.D. Ala. 2011), vacated 2013 WL 2372302 (11th Cir.

May 17, 2013).

The sponsors of HB 19 and HB 56 invoked overt and subtle racial appeals to

link voter fraud and increased minority voting in the minds of the public. For

example, the 2010 Republican platform—on which the legislative proponents and

sponsors of HB 19 were elected—connected the purported need for stricter voter ID

laws and requirements to constituent concerns about Latino immigration. PUF ¶ 12.

Further, during public discussions about HB 56, Rep. Micky Hammon, Sen. Beason,

and other legislators used words like “anchor babies” to refer to Latino-American

citizens and stoked racialized fears about noncitizen voting. Id. ¶ 29. Such barely

disguised racial “‘code words’ may demonstrate discriminatory intent.” Ave. 6E

Invs., LLC v. City of Yuma, 818 F.3d 493, 505 (9th Cir. 2016); see also Underwood

v. Hunter, 730 F.2d 614, 621 (11th Cir. 1984) (identifying code words like the

“corrupt and the ignorant” as references to Black and poor white voters).

The Legislature’s passage of the unconstitutional and discriminatory HB 56

is probative of its intent in enacting HB 19. As the Supreme Court has explained,

“the 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


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intent.” Keyes v. School Dist. No. 1, 413 U.S. 189, 207 (1973) (quoting 2 J. Wigmore,

Evidence 200 (3d ed. 1940)).

Second, in January 2017, a three-judge court struck down a reapportionment

plan enacted in 2012 by the same Legislature that passed HB 19. The court found

that race was the Legislature’s predominant motive in drawing twelve majority-

Black districts in violation of the Constitution. PUF ¶ 46. In light of racially

polarized voting, this intentional and unjustified packing of majority-Black districts

directly benefited photo ID proponents by making surrounding districts whiter and

“safer” for their incumbent party. Id. Despite the Secretary’s claim to the contrary,

Doc. 236 at 79, “a holding that a legislature impermissibly relied on race certainly

provides relevant evidence as to whether race motivated other election legislation

passed by the same legislature.” N.C. State Conference of NAACP v. McCrory, 831

F.3d 204, 225 (4th Cir. 2016) (“McCrory”). And the Secretary’s assertion that

Alabama packed these districts solely because it “misinterpreted” the VRA, Doc.

236 at 78-79, must be viewed with skepticism given the known partisan effects of

such packing and Alabama’s history of discriminating against Black voters in

redistricting. PUF ¶ 45. Indeed, it is significant that in five of the six redistricting

cycles since 1960, Alabama has violated the Constitution or the VRA with racially

gerrymandered districts. Id.;cf. Veasey v. Abbott, 830 F.3d 216, 240 (5th Cir. 2016)

(en banc), cert. denied, 137 S. Ct. 612 (2017).

Third, in 2010, the same legislators who sponsored HB 19, HB 56, and the


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unconstitutional racially gerrymandered districts also conspired to stop a gambling

referendum from appearing on that year’s ballot. As a federal court found, they did

so with the purpose of depressing Black turnout to “maintain and strengthen white

control of the political system.” McGregor, 824 F. Supp. 2d at 1347. This overtly

racial scheme was hatched and discussed by Alabama Senators Beason, Brooks,

Glover, Sanford, and Waggoner, each of whom sponsored Senate Bill 86, the

companion bill to HB 19. PUF ¶¶ 14-15. Sen. Dixon, the longtime “leader” of the

legislative push for a photo ID law, was also involved. Id. That the photo ID

proponents also engaged in these tactics designed to suppress Black turnout is

“evidence of an intent to discriminate against black voters in any voting legislation.”

Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1552 (11th Cir. 1987)

(“Stallings”).

2. Alabama’s Pattern of Violating Federal Voting Laws

The historical background of HB 19 is not limited to other laws passed by the

same legislature. Since 1980,21 the DOJ and federal courts have repeatedly found

that the Alabama Legislature acted with discriminatory intent, PUF ¶¶ 48-49, which

“reveals a series of official actions taken for invidious purposes.” Arlington Heights,

21 This 37 year “look back” to 1980 is consistent with precedent.

See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 439-40 (2006) (“LULAC”)

(considering the prior 40 years of discrimination relevant); McCrory, 831 F.3d at 223-24 (prior 36

years); Veasey, 830 F.3d at 239-407 (prior 40 years).

(continued…)


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429 U.S. at 267. For example, there were findings of intentional racial discrimination

in statewide reapportionments by a three-judge court in 1983 and the DOJ in 1992.

Id. ¶ 45. And, from 1981 to 1990, the Legislature enacted, and the DOJ blocked, five

local voter re-identification laws22 (which presaged HB 19), at times finding

evidence of intentional discrimination. Id. ¶¶ 43, 123; see also McCrory, 831 F.3d

at 224 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978))

(DOJ objections are “administrative findings of discrimination”).

Since 1980, the DOJ issued 48 unwithdrawn objections under Section 5 of the

VRA to proposed changes because the State failed to prove that the changes would

not have a discriminatory purpose or effect. U.S. DOJ, Civil Rights Div., Voting

Determination Letters for Alabama, http://bit.ly/2ibn3qS, (Nov. 3, 2017). During

this time, dozens of cases ended in judicial decisions or settlements finding that state

laws or policies had a racially discriminatory purpose or effect. PUF ¶ 49.

The totals above include local legislation, i.e., state laws that affected county

and municipal methods of election or approving annexations that either originated

in the Legislature or received its approval. Over 20 objections and judicial decisions

have found such state laws to be discriminatory. Id. Because of the Legislature’s

22 Re-identification laws required voters who had already registered to vote to complete a second

registration (identification) process, which usually involved traveling to the county courthouse.

PXO-I, Ex. 1 ¶ 240.

(continued…)


http://bit.ly/2ibn3qS

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direct role,23 any alleged “distinction between state and local governments hinted at

by the [Secretary] is without merit.” McIntosh Cty. Branch of NAACP v. City of

Darien, 605 F.2d 753, 759 (5th Cir. 1979); see also McCrory, 831 F.3d at 224

(finding that the state legislature had a history of discrimination based, in part, on its

repeated passage of discriminatory local legislation).

And, since 2014, Alabama has settled two complaints that, for years, it failed

to comply with the National Voter Registration Act of 1993 (“NVRA” or “motor

voter law”). PUF ¶ 47. The settlements required the State to offer voter registration

opportunities online and at driver’s license and welfare offices. Id.

B. Specific Sequence of Events

“The specific sequence of events leading up to the challenged decision,” i.e.,

the prior versions of Alabama’s voter ID laws, “also may shed some light on the

decisionmaker’s purposes.” Arlington Heights, 429 U.S. at 267.

Contrary to the Secretary’s argument, Doc. 236 at 80-82, the Legislature’s

initial efforts to pass a voter ID bill began in the late 1980s and coincided with the

selective prosecutions of Black civil rights activists for “voter fraud.” RDS ¶ 2. The

more significant efforts to pass a voter ID bill began in 1995 were spurred by the

NVRA and its expanded access to the franchise. Id. ¶ 3. When the NVRA went into

23 See, e.g., Pleasant Grove, 479 U.S. at 466 (describing the Alabama Legislature’s approval of

intentionally discriminatory municipal annexations); Brown, 542 F. Supp. at 1099 (finding that, at

the behest of local officials, the Legislature had maintained until 1982 an intentionally

discriminatory method of election); Bolden v. Mobile, 542 F. Supp. 1050, 1068 (S.D. Ala. 1982).


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effect in 1995, it allowed people to register at motor vehicle and public welfare

agencies or by mailing in easily-available voter registration forms. Id. In Alabama,

the NVRA led to 180,000 new disproportionately Black and low-income people

becoming registered voters in 1995. Id. The Republican State Chairman said he was

uneasy about new NVRA registrants, a disproportionate number of whom were

Black, because “those people have not been voting with us.” Id.

According to contemporaneous statements from then-Secretary of State Jim

Bennett, state officials respond to the NVRA by publicly raising concerns about

alleged voter fraud and the purported need for voter ID laws. Id. Likewise, Sen.

Dixon, the chief sponsor of photo ID bills from 1995 to 2010, said his 1995 photo

ID bill was “definitely being used to make sure the [NVRA] is not used to fill up the

voter rolls with people registered under more than one name.” Id. In 1996, when the

Black Caucus again blocked his photo ID bill, Sen. Dixon stated: “the fact you don’t

have to show an ID is very beneficial to the black power structure and the rest of the

Democrats.” PUF ¶ 63.

Second, the Secretary does not address the events that led up to the passage

of the 2003 voter ID law. Beginning in 1996 and continuing to 2003, the Black

Caucus and Republicans sought to negotiate a logroll: in exchange for Republicans

agreeing to not block a re-enfranchisement bill, the Black Caucus would agree not

to block voter ID. PUF ¶¶ 66-75. The bills would offset one another: one decreasing

the number of Black voters, and the other increasing the number of eligible Black


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voters. Despite the Secretary’s claim to the contrary, Doc. 236 at 80 n.6, there is

clear evidence that the voter ID bill and re-enfranchisement bills were linked for

years. Id. For example, in 1999, the head of the House Republican Caucus, Rep.

Mike Rogers, acknowledged Republican support for the re-enfranchisement bill

depended on Democratic support for voter ID. Id. ¶ 66. In 2003, Sen. Dixon admitted

that there was an agreement that he “would not filibuster felon voting rights.” Id. ¶

73.

C. Statements of Racial Bias Contemporary to the Passage of HB 19

After the 2003 law was passed, Sen. Dixon and other prominent legislators

continued to advocate for a stricter photo ID law. Until 2010, their efforts continued

to be blocked by the extraordinary and sustained efforts of the Black Caucus. PUF ¶

76. In 2011, white legislators finally defeated these efforts and enacted HB 19.

Consistent with the historical background and sequence of events described above,

the legislative history of HB 19 itself, the numerous procedural and substantive

departures, and the known discriminatory impact on Black and Hispanic voters all

support an inference of discrimination.

In analyzing legislative intent, “[t]he legislative or administrative history may

be highly relevant, especially where there are contemporary statements by members

of the decisionmaking body.” Arlington Heights, 429 U.S. at 268.

Here, the sponsors of HB 19 made numerous contemporary statements

indicating an overt racial intent or a willingness to discriminate based on race. The


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following are particularly instructive:

• Rep. Rich’s prejudiced statements on the floor of the House during the debate

over HB 56 about American children of Latino immigrants, including

identifying their presence in Marshall County as one of the “problems” with

the school system, PUF ¶¶ 34-35;

• Sen. Beason’s statements tying HB 56 (which included a voter ID law) to his

party’s desire to stop the American children of Latino immigrants from

growing up to vote in support of their political opponents, PUF ¶ 13;

• The recorded discussions among Senators Beason, Brooks, Glover, Sanford,

Waggoner—all of who sponsored HB 19 and HB 56—and others about their

plan to suppress Black turnout in 2010, wherein some legislators denigrated

Black voters, calling them “illiterates” and “aborigines,” PUF ¶¶ 14-15.

While a “smoking gun” statement is not required, these statements by key sponsors

of HB 19 offer considerable insight into the entire Legislature’s purpose for action.

Stallings, 829 F.2d at 1552; see also Cooper, 137 S. Ct. at 1468-69; Ala. Legislative

Black Caucus v. Alabama, 135 S. Ct. 1257, 1266-67 (2015); Quigg v. Thomas Cty.

Sch. Dist., 814 F.3d 1227, 1241-42 (11th Cir. 2016).

And, in fact, here there is a “smoking gun.” As noted, Sen. Dixon claimed, in

connection with the 1996 photo ID law, that the lack of a photo ID law was

“beneficial to the black power structure.” PUF ¶ 63. In 2001, Sen. Dixon again

asserted that the lack of a photo ID law “benefits black elected leaders.” Id. ¶ 69. In

addition, while plotting the discriminatory 2010 scheme to suppress Black voter

turnout, Sen. Dixon referred to Black voters as “illiterates.” Id. ¶ 14. Although Sen.

Dixon retired in 2010, he was still viewed as a leader on the photo ID issue among

the legislators who passed HB 19, and the enacted law was similar to the bills


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sponsored by Dixon.24 Id. ¶ 15.

In sum, taken together and in the light most favorable to Plaintiffs, these

contemporary statements are “very significant” evidence of racial discrimination,

Marengo, 731 F.2d at 1571, and create a triable issue of fact. Stallings, 829 F.2d at

1552; see also Glenn v. Brumby, 663 F.3d 1312, 1320-21 (11th Cir. 2011).

D. Knowledge and Foreseeability of the Racial Impact in 2011

Here, the disparate racial impact of HB 19 was not only foreseeable, it was

known, further supporting the inference of discrimination. Jean, 711 F.2d at 1485-

86. For fifteen years, the Legislature and photo ID proponents had been warned of

its likely discriminatory effect by the Black Caucus, PUF ¶¶ 89, 194-94; there was

data available from the Law Enforcement Agency that would have confirmed this

impact, id. ¶ 91; and Rep. Rich, the author of HB 19, testified to his personal belief

that Hispanic people in Alabama “don’t have driver’s license[s].” Id. ¶ 87.

Further, a pre-filed version of HB 19 included Medicaid, food stamp, and

Social Security cards as acceptable IDs. Id. ¶ 78. Even though such IDs are strictly

policed because allow a person to access government benefits, the Legislature later

eliminated them from the list of acceptable IDs. Id.; see McCrory, 831 F.3d at 227-

24 Cf. Miller-El v. Dretke, 545 U.S. 231, 263-66 (2005) (finding that a 1968 manual, authored by

a former prosecutor, which was only in circulation until 1976, relevant in finding that the county

prosecutor’s office intentionally discriminated in 1986); Arce v. Douglas, 793 F.3d 968, 978-80

(9th Cir. 2015) (finding the actions and statements of a former state official and non-legislator who

led on an issue to be significant in determining intent); Church of Scientology Flag Serv. Org., v.

City of Clearwater, 2 F.3d 1514, 1534 (11th Cir. 1993) (a newspaper’s opinion about the purpose

of a 1983 law was relevant in deciding legislative intent as to a 1984 law).


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228 (finding that “the removal of public assistance IDs [as acceptable for voting] in

particular was ‘suspect,’ because ‘a reasonable legislator . . . could have surmised

that African Americans would be more likely to possess this form of ID’”).

Additionally, Rep. Rich stated that he expected that HB 19 would result in a

“lengthy court battle” with DOJ, which is one of the reasons he included a three-

year roll out period in the law. PUF ¶ 86. A reasonable inference from that statement

is that Rich anticipated that HB 19 would be denied preclearance because he thought

it would have a discriminatory effect in violation of Section 5 of the VRA. Likewise,

Secretary Chapman, a chief HB 19 proponent, admitted that past photo ID bills had

failed because the Legislature feared that the bills would not be precleared by the

DOJ. PUF ¶ 88; cf. Veasey, 830 F.3d at 236. The State’s failure to submit HB 19 for

Section 5 preclearance also indicates that state officials knew that HB 19 would have

a disparate impact. This decision was unprecedented and meant that there was no

voter education, no issuance of voter ID cards, and no public release of HB 19’s

administrative rules until after Shelby County v. Holder, 133 S. Ct. 2612 (2013).

PUF ¶¶ 92-94.

Thus, the sponsors and proponents of HB 19 were clearly aware of the racial

implications and disparate impact of the law.

E. Procedural Departures

HB 19 also involved numerous procedural departures that support an

inference of discrimination. Jean, 711 F.2d at 1486. These included: (1) the repeated


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use of the cloture by photo ID proponents in the House and Senate to prevent any

significant debate in 2011, RDS ¶¶ 115-16, PUF ¶¶ 84-85; (2) the limiting of debate

on HB 19 to 20 minutes in the House and Senate, which prevented opponents from

amending or raising concerns about HB 19, PUF ¶ 84; and (3) proponents’ refusal

to respond to opponents’ demand for evidence demonstrating the need for a strict

photo ID bill. Id. ¶ 104. These maneuvers were employed by white proponents after

the Black Caucus had successfully blocked the attempts of a bipartisan group of

white legislators to pass photo ID bills in the 1990s and 2000s. Id. ¶¶ 60-75.

The Secretary attempts to dismiss Plaintiffs’ argument that this unusual

legislative activity is indicative of discrimination, arguing that the Legislature did

not violate parliamentary rules, Doc. 236 at 86-87. “But, of course, a legislature need

not break its own rules to engage in unusual procedures.” McCrory, 831 F.3d at 228.

As compared to the “usual” procedures, such as the infrequent cloture votes before

2010, RDS ¶¶ 115-16, the processes used for HB 19 are telling departures from past

practices.

F. Substantive Departures

Legislatures ordinarily enact measures that are consistent with federal law and

address actual concerns. Substantive departures exist when “factors usually

considered important by the decisionmaker strongly favor a decision contrary to the

one reached.” Arlington Heights, 429 U.S. at 267. Thus, when a legislature passes a

bill that violates federal law, addresses an imaginary concern, or has no connection


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to its stated purpose, those substantive departures from the ordinary lawmaking

process support an inference of discrimination. See McCrory, 831 F.3d at 235-37;

Veasey, 830 F.3d at 238-39. Here, against a backdrop of warnings that HB 19 would

have a disparate impact and Rep. Rich’s open concern that it would not withstand

the then extant preclearance requirement under the VRA, no one presented evidence

that the kind of voter fraud that HB 19 might prevent actually existed in Alabama.

That the legislature nonetheless went ahead and passed such a law (without any

ameliorative amendments) is a substantive departure indicative of discrimination.

1. HB 19 is Not Justified by Concerns of Voter Fraud.

A photo ID law might be useful in blocking in-person impersonation fraud at

the polls, where a poll worker could look at a person’s face and determine if it was

the same as the face on the photo ID. But, there is no evidence of any voter in-person

impersonation fraud that such a law could have prevented between the passage of

the voter ID law in 2003 and HB 19 in 2011. PUF ¶¶ 77, 109-16. There is no evidence

legislators were aware of any in-person fraud in 2011. Id. ¶ 104. Indeed, while

millions of votes were cast in the decade before 2011, the Secretary’s motion

mentions only two alleged instances of in-person voter impersonation fraud. Doc.

236 at 6, 15-16; PUF ¶ 105. One instance occurred in 2002, before the enactment of

the 2003 law, and the other involved a noncitizen who had a stolen identity and a

driver’s license. PUF ¶¶ 105, 122. This dearth of evidence is despite numerous

investigations, as well as Republicans’ and Secretary Chapman’s repeated offers of


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a monetary reward for information leading to a conviction for voter fraud. Id. ¶ 77.

The Secretary’s arguments that HB 19 prevents absentee voter fraud, Doc.

236 at 85-86, are belied by the evidence on the record. First, although HB 19 requires

absentee voters to make photocopies of their HB 19 IDs and mail them with the

absentee ballots, there is in fact no way for state election officials to determine

whether the mailed-in ID belongs to the voter, since that voter is never required to

present his/her face to officials for a comparison with the photo ID. See Ala. Code §

17-9-30(b) (1975); PUF ¶¶ 109-16.

Second, Captain Rafferty’s testimony regarding the Dothan investigation

demonstrates that absentee voter fraud can be carried out simply by copying the

voters’ HB 19 ID and mailing it in with the absentee ballot. Id. ¶ 110. In that case,

the perpetrators of that fraud had a photocopy machine in their van and would make

photocopies of IDs provided by the voters. Id. In the instance of alleged absentee

ballot fraud from 2006 cited by former Rep. Gordon, all the voters had sent in copies

of photo IDs pursuant the 2003 voter ID law. RDS ¶ 71; PUF ¶ 111.

Third, while forging an ID is hardly necessary, it also turns out that it is not a

significant obstacle to absentee voter fraud. The Secretary’s own witnesses have

admitted that forging a photocopy of a photo identification may be no harder than

forging a photocopy of a utility bill or other form of identification. PUF ¶¶ 114-115.

Fourth, the Secretary’s argument that some photo IDs contain a signature

which can be compared to the signature on the ballot is unavailing. Absentee election


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managers are not tasked with comparing those signatures—and in fact do not do so.

PUF ¶¶ 117-118. Indeed, one of the many HB 19 IDs that does not have a voter’s

signature is the voter ID card itself. See Ala. Code § 17-9-30(h) (1975).

Fifth, the fact that certain absentee voters come in to complete their absentee

ballot in the presence of a state official is irrelevant. None of the cases of absentee

fraud offered by the Secretary involved this scenario. See Doc. 236 ¶¶ 59-74, 77-96.

In sum, HB 19’s strict in-person photo ID requirement seeks to address a

“problem” that does not exist in Alabama (in-person voter fraud), but does not

address the type of voter fraud that may exist in Alabama (absentee voter fraud). HB

19 “is both too restrictive and not restrictive enough to effectively prevent voter

fraud; ‘it is at once too narrow and too broad.’” McCrory, 831 F.3d at 235 (citations

omitted)). This is evidence “that the cloak of ballot integrity could be hiding a more

invidious purpose.” Veasey, 830 F.3d at 238-41.

2. The Photo ID Law Is Not Justified by Alleged Enhancement

of Voter Confidence.

Similarly, while the Secretary refers to the State’s interest in enhancing voter

confidence, the Secretary does not demonstrate (and certainly does not undisputedly

demonstrate as would be required at summary judgment) that HB 19 supports voter

confidence. Instead, he relies on anecdotal and post hoc evidence from a handful of

voters that are “more confident in the electoral process with a photo ID requirement

in place.” Doc. 236 ¶¶ 314-324. The belief of some citizens and officials calling for


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a photo ID law to prevent fraud is not enough to justify the law’s passage, see RDS

¶¶ 300-303, especially when Plaintiffs have offered witness testimony to the

contrary. PDF ¶¶ 38-42. Indeed, at least one investigator and two election officials

relied upon by the Secretary in his motion testified that they believe HB 19 does

nothing to combat absentee voter fraud, or fraud in general.

Further, the Secretary does not even attempt to address Plaintiffs’ witnesses

(e.g., state legislators, election officials, civil rights leaders, politicians, and

individual voters) who testified to the contrary. PUF ¶¶ 107-09; PDF ¶¶ 38-42. He

also does not, and cannot, dispute Dr. Atkeson’s expert conclusion that HB 19 has

not in fact increased voter confidence. PDF ¶¶ 46-49.

Rather than meaningfully engage with these facts concerning the lack of voter

fraud or evidence that HB 19 enhances voter confidence, the Secretary claims that

Crawford v. Marion County Election Board, 553 U.S. 181 (2008), means a state

defending a photo ID can simply refer generally to voter fraud and voter confidence.

Doc. 236 at 82-83. But, Crawford did not address a claim that a voter ID law was

motivated by racial discrimination, and the Arlington Heights analysis therefore did

not apply. Crawford stands for the proposition that, under the less strenuous

Anderson-Burdick standard, concerns about voter fraud and voter confidence may

justify photo ID laws so long as they are genuine; it does not allow them to be used

as pretexts for discrimination. McCrory, 831 F.3d at 235. As the Fifth Circuit has

explained in the context of a Section 2 claim, “the articulation of a legitimate interest


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is not a magic incantation a state can utter to avoid a finding of disparate impact”

and there must be some connection between the advanced state policy and the statute

at issue. Veasey, 830 F.3d at 262.

3. The Rejection of Less Discriminatory Alternatives

Echoing the assertions by the chief proponents and drafters of HB 19, PUF ¶¶

97-99, the Secretary’s motion claims that HB 19 is comparable to Indiana and

Georgia’s photo ID laws, which were upheld against different legal challenges. Doc.

236 at 81-82. But, HB 19 failed to adopt those laws’ ameliorative provisions, such

as Indiana’s affidavits for indigent voters and those with a religious objection to

photography or Georgia’s exemptions for anyone who wanted to vote absentee. PUF

¶¶ 97-99. Former Secretary Chapman also stated that HB 19 was patterned after

Texas’s photo ID law, a law that survived neither preclearance nor a Section 2

challenge. Id. ¶¶ 97, 100-101. And, while the Secretary stresses that HB 19 accepts

some types of ID that Texas’s law does not, Doc. 236 at 76-77, he fails to

acknowledge that HB 19 lacks other ameliorative provisions contained in even

Texas’s highly restrictive and illegal photo ID law, such as exemptions for absentee

voters, certain religious voters, and people affected by natural disasters. PUF ¶100-

101.

4. Some Constituents’ Concerns about Voter Fraud were

Motivated by Improper Biases.

The Secretary attempts to divert attention from the contemporary statements


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of the legislators who sponsored HB 19, see supra at 104-108, by arguing that HB

19 was primarily a response to the vocal concerns of certain constituents. In fact, the

proponents of HB 19 were motivated by their own desire to suppress minority

voting. See id.

Nonetheless, the Secretary’s argument requires an examination of those

constituents’ intentions. For example, if legislators knowingly passed HB 19 in

response to constituents who believed in the racist stereotype that voters of color are

more likely to commit “voter fraud” that would still constitute discriminatory intent.

See Palmore v. Sidoti, 466 U.S. at 429, 433 (1984) (“Private biases may be outside

the reach of the law, but the law cannot, directly or indirectly, give them effect.”);

Young Apartments, 529 F.3d at 1033 (accepting allegations that municipal officials

were responding to communal animus against Latino immigrants as relevant to an

intentional discrimination claim). Three points are worth noting.

First, in Alabama, the perpetrators of racial discrimination in voting have

repeatedly claimed that they were motivated by a desire to prevent alleged voter

fraud. PUF ¶ 123. Former Secretary Worley and Secretary Merrill himself both

testified that the complaints from constituents of alleged voter fraud were at times

motivated by racial biases or the pernicious stereotype that Black people are more

likely to commit voter fraud than white voters. Id. ¶ 124.

Second, while the Secretary highlights the work of the “biracial” Democracy

Defense League in passing HB 19, that group’s role only confirms the inference of


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discrimination. Id. ¶ 128. The League was a group of citizens who were 95% white

for the entirety of its existence. Id. ¶ 127. The League was founded by an investigator

whose entire career involved investigations of only Black people who were alleged

perpetrators of voter fraud. Id. ¶ 128. Notwithstanding the undisputed evidence that

tens of thousands of Alabama registered voters do not have a HB 19 ID and face

non-trivial burdens to obtain them, see infra 126-36, it is this investigator’s view that

any person who claims they cannot obtain a photo ID is “stupid or retarded or is

lying through his anal orifice.” PUF ¶ 128. Another founder of the League was a

former Hale County registrar who rejected a Black voter’s registration application

in part because the person lived in public housing and, thus, the registrar believed

she was “paying [the voter’s] rent.” Id. ¶ 129. The “sheer outrageousness” of these

statements from the League’s leaders—who the Secretary calls instrumental to HB

19’s passage—provides helpful context to the political environment in which the

Legislature acted. McCrory, 831 F.3d at 229 n.7.

* * *

Considering each of the Arlington Heights factors, as well as weighing all of

the corresponding record evidence and drawing all reasonable inferences in favor of

Plaintiffs, the Secretary’s motion for summary judgment on Plaintiffs’ intentional

racial discrimination claim must be denied.

IV. THE SECRETARY CANNOT MEET HIS SUMMARY JUDGMENT


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BURDEN ON PLAINTIFFS’ SECTION 2 RESULTS CLAIM.

A. The Court Must Evaluate the Plaintiffs’ Section 2 Results Claim

Using the Same Test It Applied in Denying the Motion to Dismiss.

Alabama’s Photo ID Law has a discriminatory result in violation of Section 2

of the VRA. Section 2 prohibits the State from imposing any voting qualification or

practice that “results in a denial or abridgment of the right of any citizen . . . to vote

on account of race or color.” 52 U.S.C. § 10301(a) (emphasis added). Consistent

with the statute’s focus on the “results” of a challenged voting practice, it is well

established that a violation of Section 2 can be established by proof of

“discriminatory results alone.” Chisom v. Roemer, 501 U.S. 380, 404 (1991). Thus,

as this Court acknowledged in its Order denying the Motion to Dismiss, the proper

test for evaluating a Section 2 challenge comprises a two-prong inquiry, asking:

• first, does the challenged law impose a discriminatory burden on members

of a protected class—in this case, voters of color (“Prong One”); and

• second, is that burden caused by or linked to social and historical

conditions that have produced discrimination against members of that

class (“Prong Two”).

Doc. 165 at 9; see also Veasey, 830 F.3d at 244; Michigan State A. Philip Randolph

Inst. v. Johnson, 833 F.3d 656, 666 (6th Cir. 2016); League of Women Voters of N.C.

v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (“LWVNC”). “In making this

determination, ‘a court must assess the impact of the contested structure or practice

on minority electoral opportunities on the basis of objective factors,” in particular,

the nine “Senate Factors.” Burton v. City of Belle Glade, 178 F.3d 1175, 1198 (11th


123

Cir. 1999) (quoting Gingles, 478 U.S. at 44).

B. Under Prong One, Voters of Color Are More Likely to Lack HB 19

ID and Disproportionately Incur the Burdens of Obtaining It.

To assess whether HB 19 imposes a discriminatory burden on voters of color,

the Court must first examine (a) whether voters of color are more likely to lack the

required photo ID, and (b) whether the burdens of obtaining an ID are

disproportionately visited on minority voters. See Veasey, 830 F.3d at 250-56. The

Secretary’s motion fails on both points.

1. It Is Undisputed that Voters of Color Disproportionately

Lack the Required HB 19 IDs.

As to the first issue, the Court should assess whether voters of color are

“disproportionately affected by [the imposition of the photo ID] law based on

statistical analyses” of possession rates. Id. at 252. Where the disparity in possession

is “statistically significant,” it is “highly unlikely to have arisen by chance.” Id at

250.

2. There Is Substantial Evidence That Voters of Color

Disproportionately Lack the Requisite Photo ID.

As more fully set forth in Plaintiffs’ Motion for Partial Summary Judgment,

Doc. 234 at 14-16, experts for both the Secretary and the Plaintiffs agree on a critical

point: registered voters of color possess photo IDs at disproportionately low rates,

and the difference is statistically significant, i.e., the racially disparate possession

rates are not due to random chance. See id. at 1-4, 13-18; see also PDF ¶¶ 4-7. Dr.

Siskin found that Black and Latino registered voters are almost twice as likely as


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white voters to have no HB 19 ID at all. Id. ¶ 7 (1.78 and 1.67 times more likely,

respectively). Dr. Hood estimated those numbers to be 1.65 and 1.49, respectively.

See Doc. 236 ¶ 222 (finding non-possession rates of 0.87% to 1.44% for white to

African-American registered voters, and 0.87% to 1.26% for white to Hispanic

registered voters). Accordingly, there is no factual dispute as to whether voters of

color are less likely than whites to possess HB 19 ID.

Dr. Siskin calculated that over 50,000 registered voters in Alabama do not

possess any form of photo ID. PDF ¶ 3. He further estimated that over 68,000 voters

possess HB 19 IDs containing such material discrepancies (between the name or

information on the voter roll and that on the voter’s HB 19 ID) that their use would

likely be contested at the polls.25 Id. ¶¶ 11-13. Consequently, there are a total of over

118,000 impacted registered voters. Id. ¶13.

Dr. Siskin’s estimates were based on a careful matching of relevant databases

and then the application of a survey, conducted by Plaintiffs’ survey expert, Dr.

David Marker, to both (a) make sure all forms of ID were considered, and (b)

perform a quality control on any errors that might have been generated due to any

flaws in the databases. Id. ¶ 1. Dr. Siskin’s estimates of the number of registered

voters who do not possess an HB 19 ID creates a triable issue of fact for purposes of

25 The Secretary has moved to exclude Dr. Siskin’s estimate of contestable IDs. As explained in

Plaintiffs’ Opposition, his motion is baseless and should be denied. See Doc. 241. Indeed, in his

Reply, Doc. 245, the Secretary appears to concede that his dispute is with the weight to be afforded

to Dr. Siskin’s “contestability” opinion and not to its admissibility.


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summary judgment, even assuming the Court accepts the Secretary’s flawed

argument regarding “substantial” disparities. Doc. 236 at 93-94. see Newmann v.

United States, 938 F.2d 1258, 1262 (11th Cir. 1991) (“Once . . . an issue of fact has

been created [by the submission of admissible expert testimony], its resolution is for

the trier of fact”).

3. The Disparate Possession Rates Are Not “Miniscule.”

The Secretary’s contention that there can be no Section 2 or Equal Protection

Clause violation because it concerns a “miniscule” number of voters, Doc. 236 at

73, who lack photo ID has no support in law or fact.

First, there is no legal support for the Secretary’s position that a law that

disenfranchises 50,000 voters (much less 118,000) has an impact that is simply too

small (“miniscule” or de minimis) to support a violation of the VRA or the Equal

Protection Clause. See Doc. 236 at 73. “Setting aside the basic truth that even one

disenfranchised voter—let alone several thousand—is too many, what 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.” LWVNC, 769 F.3d at 244 (citing 52 U.S.C. § 10301(a)).

Second, the case law is clear that standard deviations26 between 2 and 3 are

26 Statistical significance is measured in “standard deviations.” The higher the standard deviation,

the lower the chance that an observed difference could have been caused by chance (as opposed

to, e.g., dependent on race). See Peightal, 26 F.3d at 1556 n.16. A standard deviation higher than

3 approaches infinitesimally small probabilities that the disparity exists independent of race. Id.


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sufficient to support the inference that a practice has a discriminatory effect, because

they show a disparity is highly unlikely to occur by chance. See, e.g., Benson v.

Tocco, Inc., 113 F. 3d 1203, 1208-09 (11th Cir. 1997); Peightal v. Metro. Dade Cty.,

26 F.3d 1545, 1556, n.16 (11th Cir. 1994). The evidence in this case more than meets

that threshold requirement.27 The disparate possession rates estimated by Dr. Siskin

are so dramatic that the standard deviations are all over 10, with most well over 30.

PDF ¶ 8. This means that Dr. Siskin determined that there are only astronomically

low probabilities that the difference in possession rates between white and minority

voters could occur independent of race (i.e., solely because of chance). Cf. Peightal,

26 F.3d 1545 at 1555-56 (17.6 standard deviations would occur by chance only once

in every one billion cases).

Third, Dr. Siskin’s “contestable IDs” estimates results in non-possession

numbers (3.33% of white voters, 5.49% of Black voters, and 6.98% of Hispanic

voters) that are larger than those that were the basis for finding a Section 2 violation

in Texas. PDF ¶ 15. See Veasey, 830 F.3d at 251 (“Even the study performed by [Dr.

Hood,] the State’s expert, which the district court found suffered from ‘significant

methodological oversights,’ found that 4% of eligible White voters lacked SB 14 ID,

27 The Secretary’s hypothetical suggesting that Plaintiffs’ position would require a photo ID law

to be invalidated where even one more white voter possesses a photo ID when compared to

minority voters, see Doc. 236 at 73, is wrong. Such a small disparity would never yield a standard

deviation anywhere close to 2 or 3—i.e., differences of one person can easily be explained by

chance in a way that the significant and dramatic disparities observed in this case cannot.


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compared to 5.3% of eligible Black voters and 6.9% of eligible Hispanic voters.”).

4. Voters of Color Disproportionately Bear the Burdens that

Affect the Acquisition of HB 19 ID.

Many voters without a non-contestable HB 19 ID (“useable ID”) face heavy

burdens in acquiring a useable ID, and voters of color are disproportionately

affected. Even if the burdens of obtaining a useable ID were the same for voters of

all races, the fact remains that Black voters are 1.65 times and Latino voters are 2.10

times more likely than white voters to lack a useable ID. This means that voters of

color more frequently bear the burdens associated with the acquisition of such IDs.

PDF ¶ 16; see LWVNC, 769 F.3d at 245 (finding that the elimination of same-day

registration for all voters disproportionately impacted Black voters because they had

used same-day registration at higher rates than white voters); 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.”). This creates a dispute of fact.

In any event, there is also a triable dispute as to whether voters of color who

lack HB 19 ID bear an even heavier burden than white voters seeking useable ID.

PUF ¶¶ 132-187. The cases have recognized burdens relevant to obtaining an ID to

include a range of factors, including burdens related to transportation, poverty,

limited office hours, and inflexible work and child care schedules. See Veasey, 830

F.3d at 254-56; Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (“Frank II”);

Dallas, 739 F.2d 1 at 1538. These factors are present here and support a finding of


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disparate impact. PUF ¶¶ 132-187.

a) The Burdens Associated with Traveling to an ID-

Issuing Office Are Significant and Disproportionately

Fall on Minority Voters.

The Secretary seeks to undermine the existence of a transportation burden that

disparately impacts minority voters by stating that “Black voters are actually more

likely than white voters to live within 5 miles of a Registrar’s office.” Doc. 236 at

75. The Secretary misses the point. Twice.

First, the percentage of voters who live close to an ID issuing office is

irrelevant. What matters for the purposes of a transportation burden is the percentage

that lack an ID and live far away from an office. Dr. Siskin has estimated that

between 9,672 and 20,863 Black voters, between 336 and 992 Hispanic voters, and

between 17,933 and 47,848 whites live at least five miles away from an ID-issuing

office and lack an ID or do not have a useable ID. PUF ¶ 132. Thus, while Black

voters constitute only 27% of registered voters in Alabama, PDF ¶ 54, Black

Alabamians without any HB 19 ID make up 34.61% of voters who live at least five

miles from the nearest ID issuing office. PUF ¶ 132.

Second, distance matters most if you have no means to traverse it.28 Many of

the burdened voters lack access to a car or other forms of transportation. And this is

true for a disproportionate number of Black voters.

28 Vehicle access is particularly significant given that Alabama does not have state funded public

transportation, PUF ¶ 148, and many rural areas lack any public transportation options.


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According to Dr. Siskin’s census tract-based estimate, thousands of registered

voters who lack a useable ID do not have access to a vehicle and live more than five

miles from an ID issuing office. PUF ¶¶ 19. Black voters are over twice as likely as

white voters to be a part of this particularly burdened group. PUF ¶ 141.

As Dr. Siskin recognized, however, his census tract estimate is too

conservative as regards the incidence of vehicle ownership because the census tract

estimates assume that everyone in a census tract has the same likelihood of having

access to a vehicle. PUF ¶ 142. In other words, the census tract estimate improbably

assumes that a middle-class voter and a poor voter are equally likely to own a car.29

PUF ¶ 142.

According to Dr. Marker’s survey,30 51% of Alabamians without an HB 19

ID reside in a household without a vehicle. PUF ¶ 143. This is only common sense:

if someone does not have a driver’s license, it is more likely s/he also does not have

a car.

Furthermore, statewide census data indicates that 14.1% of Black households

do not own a vehicle, as opposed to 3.90% of white households. PUF ¶ 142. Dr.

29 Three times as many Black Alabamians live below the poverty level (30.1%) as compared to

whites (12.1%). PUF ¶ 164. White median family income is 1.77 times as high as Black median

family income in the state. PUF ¶ 165. 30 Dr. Marker’s vehicle ownership data was not as robust as his ID possession data because his

response rate was not high enough to establish statistical significance. Data robustness only goes

to the weight of the evidence, however, and not to whether it should be considered when

determining if there is a material dispute of fact precluding summary judgment.


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Marker’s survey, which unlike census data actually focuses on the relevant set of

people, i.e., those without IDs, shows an even more dramatic racial disparity in

vehicle ownership: 63% of Black respondents without an HB 19 ID reported living

in a household without a motor vehicle, compared to 42% for whites. PUF ¶ 143.

b) The Burdens of Obtaining a HB 19 ID Are Magnified

by the Socioeconomic Status of Voters of Color.

In addition to distance and vehicle access, various life circumstances make it

particularly difficult for voters of color to obtain a requisite ID. These include:

• Limited office hours for ID-issuing offices. Minority voters are less likely

than whites to live near ID-issuing offices that are open during lunch, PUF

¶ 168, or open more than twice a month. Id. ¶¶ 166-67; see Dallas, 739

F.2d at 1538 (“While being open during the day may seem reasonable on

first consideration, the evidence indicates that such hours are inconvenient

to those who work, especially those who work in the rural areas”).

• Poverty. Minority voters without photo ID are more likely to live below

the poverty line. PUF ¶ 157.31 Poverty makes it more difficult for these

voters to obtain a qualifying ID.

• Inflexible work schedules and/or child care responsibilities. Burdened

voters face the challenge of taking time off from work, or arranging for

childcare to obtain HB 19 ID; this is particularly true in single parent

households. For instance, almost 90% of Latino and half of Black voters

without HB 19 ID are responsible for a child, whereas only about 14% of

white voters without ID are responsible for a child. PUF ¶ 162. These

burdens are substantial for these individuals, both in terms of time and

money. PXO-A ¶ 7,9; see also PXO-S ¶ 5; PXO-X 10:2-10, 164:2-166:9;

PXO-AA 85:23-87:11; PXO-CC 77:13-78:20.

These burdens are not trivial. The Secretary may not minimize them on

31 As with vehicle ownership, Dr. Siskin’s estimates are conservative and Dr. Marker’s survey

results indicate that the actual numbers of individuals and racial disparities among people living

below the poverty line and in single-parent households are significantly higher. PUF ¶ ¶¶ 157-163.


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summary judgment simply by stating that “anyone who needs and wants a photo ID

can get one,” Doc. 236 at 94, implying that the failure to obtain HB 19 ID is just the

product of “choice.” See generally Marengo, 731 F.2d at 1568-69 (“Both Congress

and the courts have rejected efforts to blame reduced black participation on

‘apathy’.”); see also Teague v. Attala Cty., 92 F.3d 283, 293-95 (5th Cir. 1996)

(rejecting the finding that “voter apathy explains the depressed level of political

participation”).

c) The Voter ID Card Does Not Solve the Problem.

The fact that a state offers a free voter ID card does not automatically cure a

Section 2 violation. McCrory, 831 F.3d at 236; Veasey, 830 F.3d at 256. That is

particularly true for Alabama’s voter ID card. The availability of this free ID card

does nothing to cure the transportation burdens discussed above; whatever the cost,

voters cannot obtain an ID if they cannot get to the place where the ID is available.

Nor is transportation the only barrier. Voters who apply for a “free” photo

voter ID card must sign, under penalty of perjury and a felony, a confusing

declaration stating that they do not already have a valid form of photo ID. PUF ¶

176; cf. Dallas, 739 F.2d at 1538 (holding that the district court erred in not

considering the fear and intimidation that black voters felt in registering to vote);

Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1369 (N.D. Ga. 2005) (finding

that voters without ID might be reluctant to sign affidavits requiring them to state

that they are “indigent and cannot pay the fee”). The Secretary’s office emphasizes


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this intimidating fact to potential applicants in public presentations. PUF ¶ 176. And

it has acknowledged the severity of the threatened punishment that accompanies the

declaration, PUF ¶ 177, and its likely chilling effect on applicants. PUF ¶ 178.

For example, an applicant for a free photo ID must affirm that she or he does

not already have one. But, to know that, the applicant must understand whether or

not a photo ID that she or he already has is “valid” under HB 19. PUF ¶¶ 176-180.

This requirement is particularly problematic given that the Secretary is unable to

provide an exhaustive list of valid IDs, PUF ¶ 179; see also PXO-E ¶ 6, leaving

voters to guess whether they possess an adequate photo ID—at the risk of going to

prison if they are wrong. Cf. Kolender v. Lawson, 461 U.S. 352, 358 (1983) (voiding

a criminal law, which required people to show “credible and reliable” ID, because it

offered no clear rule defining what was acceptable ID).

The Secretary argues that Alabama’s photo ID scheme here is analogous to

the Virginia scheme at issue in Lee v. Virginia State Board of Elections, 843 F.3d

592 (4th Cir. 2016), in that “a voter can get a photo ID without presenting additional

documentation.” Doc. 236 at 95. But, unlike in Alabama, Virginia did not advise

applicants for a voter ID card that they were subject to felony perjury in swearing

that they did not possess an alternate form of valid ID. And, of course, Lee was

decided after a trial on the merits, not at summary judgment. 843 F.3d at 594.

d) The Mobile Units Do Not Solve the Problem.

The Secretary argues that the distance burden is ameliorated by the mobile ID


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unit, claiming that “if someone truly has no access to transportation, the Secretary

of State will come to the voter’s home and issue an ID.” Mot. at 95. But, as of

February 13, 2017, the mobile ID unit has made a total of four home visits. One

home visit of which required a state legislator to personally contact the Secretary to

request the visit for a constituent, PUF ¶ 174, and another involved a Plaintiff in this

case. RDS ¶ 241. Furthermore, when traveling around the state, the mobile unit has

often picked public locations near ID issuing offices—thus failing to address the

distance burden—and has only offered limited hours. PUF ¶ 171-72.

e) Public Education Has Not Solved the Problem.

The Secretary claims to have spent “a lot of time and money,” educating the

public about the Photo ID Law. The Secretary, however, neglects to mention that he

chose to cut the election advertising budget by approximately a third of what the

previous administration had funded. PUF ¶ 181. Moreover, there has been such a

dearth of publicity regarding the availability of free IDs from an ALEA that as of

January 2016, only 33 ALEA free non-driver IDs have been issued. PUF ¶ 185. And

the record indicates that the Secretary made no real effort to translate voter ID law

educational materials into Spanish. PUF ¶ 182-184.

C. Under Prong 2, the Evidence Establishes that the Racial Impact of

HB 19 Is Linked to Socio-Historical Conditions in Alabama

Because Plaintiffs have raised a triable dispute as to HB 19’s discriminatory

effect, the Court must further consider whether that effect is “caused by or linked to


134

social and historical conditions that have or currently produce discrimination against

members of the protected class.” LWNC, 769 F.3d at 240. This is a highly fact-

intensive inquiry, making summary judgment a particularly inappropriate vehicle for

assessing Plaintiffs’ claims. Fayette, 775 F.3d at 1349.

In applying this second step of the Section 2 test, the Court must consider the

“totality of circumstances” under which the Photo ID Law operates, guided by the

nine “Senate Factors.” The Secretary’s argument that this Court should disregard the

Senate Factors based on the opinion of a dissenting judge in another circuit, see Doc.

236 at 93, n.12, is foreclosed by the controlling precedent of this Circuit. See

Johnson v. Governor of Florida, 405 F.3d 1214, 1227 n.26 (11th Cir. 2005) (en banc)

(holding that in vote denial claims, like this one, courts consider the Senate Factors);

Burton, 178 F.3d at 1198 (same).

Although “there is no requirement that any particular number of factors be

proved, or that a majority of them point one way or the other,” Burton, 178 F.3d at

1196 n.20 (quoting Gingles, 478 U.S. at 45), here the Senate Factors

overwhelmingly support Plaintiffs’ claim. Specifically, the relevant Senate Factors

include the following:

• Factor 1: the history of voting-related discrimination in Alabama, supra

at 104-110; see also PUF ¶¶ 44-48, 125;

• Factor 2: Alabama elections are racially polarized, which provided the

Legislature an incentive to discriminate against voters of color, PUF ¶¶ 8-

9, 46, and ignore minorities’ interests without electoral consequences,

supra at 104-05;


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• Factor 3: Alabama has used procedures that tend to enhance HB 19’s

discriminatory effect, including, the Positively Identify Provision, which

disproportionately and primarily benefits white voters without HB 19 ID,

PUF ¶¶ 54-57, and administrative decisions, like rejecting public housing

ID and limiting the locations and hours of the mobile unit, id. ¶¶ 80, 171-

172; cf. Veasey v. Abbott, 796 F.3d 487, 507 (5th Cir. 2015); Marengo,

731 F.2d at 1570;

• Factor 5: Black and Latino voters bear the effects of ongoing

discrimination in education, employment, transportation, and other

areas,32 PUF ¶¶ 52-59; which results in voters of color being poorer than

white voters, having less access to the financial and other resources

needed to obtain HB 19 than whites, increases the burdens of acquiring

HB 19 ID and otherwise hinders their ability to participate effectively in

the political process, see infra at 126-36, 144-47; cf. LULAC, 548 U.S. at

440 (“the political, social, and economic legacy of past discrimination for

Latinos in Texas may well hinder their ability to participate effectively in

the political process.”) (internal citations and quotations omitted);

• Factor 6: the use of racial appeals, particularly their use to stir support for

HB 19 and other similar or contemporaneous discriminatory devices, PUF

¶¶ 11-14, 19, 25-29, 34-35; see also supra at 104-108; cf. Bone Shirt v.

Hazeltine, 336 F. Supp. 2d 976, 1026 (D.S.D. 2004), aff’d 461 F.3d 1011,

1022 (8th Cir. 2006);

• Factor 7: the underrepresentation of Black and Latino voters in state and

local elected offices, including the Legislature, PUF ¶¶ 20-22, which

limited their influence in the legislative process that led to HB 19’s

passage, id. ¶ 82;

• Factor 8: evidence demonstrating that elected officials are unresponsive

to the particularized needs of Black and Latino voters, including, among

other issues, the failure to even consider ameliorative amendments to the

Photo ID Law, id. ¶¶ 82, 193-94; and

• Factor 9: the extent to which the policy underlying HB 19 is tenuous,

including, for example, lack of evidence of in-person impersonation fraud,

32 The Eleventh Circuit has held that, under Section 2, there is no distinction between state and

local discrimination, McIntosh, 605 F.2d at 759, and that “private discrimination should be

considered, because such discrimination can contribute to the inability of blacks to assert their

political influence and to participate equally in public life.” Marengo, 731 F.2d at 1567 n.36.


136

PUF ¶ 103-09; and the absolute futility of an absentee voter photo ID

requirement, see supra at 117-20, PUF ¶ 109-22.

The Secretary does not even attempt to dispute this evidence. Instead, he

rehashes the same meritless legal arguments from his motion to dismiss.

D. The Secretary Invites Reversible Error by Misstating the

Requirements of a Section 2 Claim.

1. The Secretary Improperly Invites the Court to Impose an

“Intent” Requirement on Plaintiffs’ Section 2 Claim.

The Secretary’s suggestion that Section 2 requires a showing of

discriminatory intent contravenes clear precedent. “It is patently clear that Congress

has used the words ‘on account of race or color’ in the Act to mean ‘with respect to’

race or color, and not to connote any required purpose of racial discrimination.”

Gingles, 478 U.S. at 71 n.34 (citation and quotation marks omitted). Congress

expressly rejected an intent test when it amended the VRA in 1982. See Gingles, 478

U.S. at 43-45.

The Secretary relies heavily on Nipper v. Smith, 39 F.3d 1494, 1514-15 (11th

Cir. 1994), in which two judges concluded that Section 2 only prohibits “voting

systems that have the effect of allowing a community motivated by racial bias to

exclude a minority group from participation in the political process.” (emphasis

added). But, only one judge of seven joined Judge Tjoflat in his articulation of this

“racial bias” test, with six others declining to join that portion of his decision, either

concurring on other grounds, Nipper, 39 F.3d at 1547 (Edmondson, J., concurring),

or dissenting. id. (Hatchett, J., dissenting). Unlike the Supreme court’s opinion in


137

Gingles, Judge Tjoflat’s interpretation of Section 2 does not bind this Court.33 See,

e.g., Johnson v. Hamrick, 196 F.3d 1216, 1220 (11th Cir. 1999).

Thus, not surprisingly, no court has adopted the Secretary’s approach, and the

Supreme Court and Eleventh Circuit have continued to reaffirm that Section 2 does

not require a finding of intent. See Bartlett v. Strickland, 556 U.S. 1, 10 (2009)

(Kennedy, J., plurality) (“The amended version of § 2 requires consideration of

effects”); Fayette, 775 F.3d at 1342 (“A discriminatory result is all that is required;

discriminatory intent is not necessary.” (citation omitted)).

2. The Secretary’s “Equal Treatment” Theory Is Inconsistent

with Settled Law Interpreting Section 2.

Relying on Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (“Frank I”) and a

dissenting opinion in Veasey, 830 F.3d at 311, the Secretary also seeks to limit

Section 2 to an “equal treatment requirement” test. Doc. 236 at 93. The Secretary’s

contention boils down to another iteration of its improper effort to limit Section 2 to

claims of intentional race discrimination. It is contrary to law.

As Justice Scalia once explained, Section 2 could be violated if “a county

permitted voter registration for only three hours one day a week, and that made it

33 Moreover, even Judge Tjoflat found that proof of racially polarized voting “will ordinarily create

a sufficient inference that racial bias is at work. In many cases, the surest indication of race-

conscious politics is a pattern of racially polarized voting.” Nipper, 39 F.3d at 1525-26 (citations

and quotation marks omitted). And here, the parties do not dispute the existence of racially

polarized voting, see PUF ¶¶ 9-12, 21 racial appeals, id. ¶¶ 12-14, 15 or Alabama’s long history

of discrimination in voting and many other areas. Id. ¶¶ 44-48, 125.


138

more difficult for blacks to register than whites.” See Chisom, 501 U.S. at 408

(Scalia, J., dissenting). If it were the case that Section 2 required only equal

treatment, then Justice Scalia “must have [been] mistaken[],” since, “ignoring

disparities due to past discrimination, [such a] law would give everyone the ‘same

opportunity’ to register.” Veasey, 830 F.3d at 277 (Higginson, J., concurring); see

also Dallas, 739 F.2d at 1538-39 (holding that “inconvenient location and hours of

registration” violate Section 2 even if they “affected blacks and white equally”).

An equal-treatment standard that focuses solely on whether a voting practice

itself treats voters of color and white voters the same, see Doc. 236 at 93, cannot be

squared with the fact that Section 2 was passed to address facially race-neutral laws,

like literacy tests and poll taxes, that interacted with “social and historical conditions

to cause an inequality in the opportunities enjoyed by black and white voters to elect

their preferred representatives.” Gingles, 478 U.S. at 47. Accordingly, “‘even a

consistently applied practice premised on a racially neutral policy’” may violate

Section 2 if it interacts with societal discrimination to impose a discriminatory

burden on minorities and deny them “fair access to the process.” Marengo, 731 F.2d

at 1571 (quoting S. Rep. No. 97-417, at 29 n.117).

3. The Secretary Improperly Attempts to Narrow the

“Causation Requirement” of a Section 2 Claim.

The Secretary further contends that, to pursue their Section 2 claim, Plaintiffs

must establish that any racially discriminatory result was caused solely by the


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challenged restriction itself, i.e., by the Photo ID Law. Doc. 236 at 93-94. This

simply ignores that this Court has already held that facts revealing that “persistent

inequalities linked to socio-economic discrimination result in voters of color facing

greater burdens in obtaining the required photo ID” are relevant to the causation

analysis. GBM, 250 F. Supp. 3d at 1243.

Nor is the Secretary’s position supported by its reliance on an out-of-context

quotation from the Ninth circuit’s decision in Gonzalez v. Arizona, in which that

court stated that a Section 2 challenge “based purely on a showing of some relevant

statistical disparity between minorities and whites, without any evidence that the

challenged voting qualification causes that disparity, will be rejected.” See Doc. 236

at 93-94 (quoting Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc)).

Here, Plaintiffs do not rely purely on a statistical disparity. On the contrary, based

on the analysis of the Senate Factors described above, Plaintiffs show that the voting

qualification (HB 19) causes that disparity because of how it interacts with social

and historical discrimination in Alabama. Supra at 136-39. That is precisely analysis

adopted by the Ninth Circuit in Gonzalez, where the court explained that “causation”

under Section 2 comprises a “totality of the circumstances test” made with reference

to “a non-exhaustive list of nine factors (generally referred to as the ‘Senate


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Factors.’”). Gonzalez, 677 F.3d at 405.34

4. The Secretary’s “Slippery Slope” Argument Is Misplaced.

In contending that this Court should override the express legislative judgment

concerning the scope of Section 2, the Secretary advances a “slippery slope”

argument, claiming that if Plaintiffs’ test were valid, “then the case becomes quite

easy for challengers of nearly any voting regulation.” Doc. 236 at 92. But the

Secretary’s policy argument cannot override the plain text of Section 2 which, in any

event, does not create the slippery slope imagined by the Secretary.

Section 2 expressly encompasses all “voting qualification or prerequisite to

voting,” 52 U.S.C. § 10501(a), and defines “voting” broadly to include “all action

necessary to make a vote effective.” 52 U.S.C. § 10101(e).; see also Marengo, 731

F.2d at 1570 (hours of registration and lack of Black poll officials). A finding that

HB 19 “abridges the right to vote by causing a racial disparity in voter ID possession

falls comfortably within this definition.” Veasey, 830 F.3d at 260.

Although Section 2 is to be broadly interpreted, Chisom, 501 U.S. at 403, that

does not mean that the statute lacks any limiting principle in practice. Section 2 does

not per se invalidate any voting law. Gingles, 478 U.S. at 46. Instead, it requires “an

34 The Gonzalez court affirmed the district court’s ruling that the plaintiffs had failed to show that

“Latinos’ ability or inability to obtain or possess identification for voting purposes (whether or not

interacting with the history of discrimination and racially polarized voting) resulted in Latinos

having less opportunity to participate in the political process,” 677 F.3d at 407, based on its

confirmation that the plaintiffs had “produced no evidence” on that point or to show that Latinos

are less likely to possess ID. Id.


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intensely local appraisal of the design and impact of the [law] in the light of past and

present reality, political and otherwise.” Id. at 78. Thus, a number of race-neutral

election laws have and will survive Section 2 scrutiny. But those that meaningfully

and disproportionately burden voters of color without justification, like HB 19,

cannot.

Accordingly, this Court need not engage in line-drawing regarding

hypothetical cases (e.g., the moving of a polling place a small distance to

accommodate minority voters).35 The fact that HB 19 imposes a heavy burden on

voters of color, see supra at 129-36, cannot be trivialized as an “unfortunate

sociological fact.” Doc. 236 at 92. Such an abridgement of the right to vote is illegal

under Section 2.

E. Plaintiffs Need Not Show an Impact on Turnout from HB 19, but

that Impact Exists and Further Supports Their Section 2 Claim.

The Secretary asserts that “[v]oter turnout does not suggest a discriminatory

impact,” and that if HB 19 “affected turnout at all, it did so more for white voters

than black voters.” See Doc. 236 at 75-76. That assertion is both legally irrelevant

and factually wrong.

At the outset, Section 2 does not require proof of HB 19’s effect on turnout.

It prohibits either the outright denial of the right to vote or its abridgement. “Any

35 The Supreme Court has long held that locating polling places distant from Black communities

or at places meant to intimidate them may violate the VRA. Perkins v. Matthews, 400 U.S. 379,

387 (1971).


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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 (emphasis added). Although the fifth Senate

Factor permits Plaintiffs to offer evidence on turnout, they are not required to do so.

See Fayette, 775 F.3d at 1347 (rejecting as “misplaced” the defendant’s claim that

the plaintiffs’ presentation of “no evidence that past discrimination has any impact

on the [minority] political participation” was fatal to a Section 2 case). “[N]o

authority supports requiring a showing of lower turnout, since abridgement of the

right to vote is prohibited along with denial.” Veasey, 830 F.3d at 260.

Nonetheless, Plaintiffs have proffered expert evidence from Dr. Zoltan Hajnal

demonstrating the disparate impact of the Photo ID Law on minority voter turnout

in Alabama. See PDF ¶ 22.

According to the Secretary, Dr. Hajnal’s expert report “does not

offer . . . evidence that a difference in turnout is caused by the photo ID law, and not

some factor or group of factors.” Doc. 236 at 75. To the contrary, using two distinct

methods of empirical analysis, Dr. Hajnal demonstrates that Alabama’s strict voter

identification law has had a disproportionately negative impact on the turnout of

racial and ethnic minorities, after taking into consideration the extent to which other


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factors also affected turnout.36 PDF ¶ 22.

First, Dr. Hajnal compared Alabama to other Southern States without strict

voter ID laws, and found that:

• Between the 2012 and 2016 presidential elections,37 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. PDF ¶ 24.

• Between the 2010 and 2014 general elections, the relative decline in

turnout in majority-minority counties, as compared to overwhelmingly

white counties, was 7.8 percentage points greater in Alabama than in

Southern states with no strict ID law. PDF ¶ 29.

• In both the 2012-2016 and 2010-2014 comparisons, the declines in turnout

in Alabama, compared to Southern states without strict ID laws, were

much more pronounced in majority-minority counties than in

overwhelmingly white ones. PDF ¶¶ 23-24, 28-29.38

Second, Dr. Hajnal performed a regression analysis on data from all counties

in the United States. PDF ¶¶ 30-31. Based on this regression analysis, Dr. Hajnal

found that the turnout of minorities—relative to whites—declined significantly more

36 To the degree that turnout is deemed to be relevant, it is the disproportionate incremental impact

on turnout that matters, not the absolute turnout of particular racial groups in a particular election.

See Veasey, 830 F.3d at 260 (“An election law may keep some voters from going to the polls, but

in the same election, turnout by different voters might increase for some other reason. . . . That

does not mean the voters kept away were any less disenfranchised.”). 37 In these presidential election years, when turnout is driven substantially by the presidential

campaign, differences across states are less likely to be driven by local or state elections and thus

more likely to reflect any difference in voter identification laws, the focus of the analysis. 38 Dr. Hajnal did a focused comparison of Alabama to South Carolina, the Southern state most

similar to Alabama in key respects other than its voter ID law, and found the same result. In both

Alabama and South Carolina, state-level politics have been dominated by Republicans,

demographic indicators are closely aligned, and other electoral laws are similar. PDF ¶ 25. Yet

from 2012 to 2016, turnout in Alabama’s majority-minority counties fell by nearly twice as much

as it did in South Carolina’s majority-minority counties—a difference that is statistically

significant. Id. ¶ 26.


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from 2012 to 2016 in Alabama than in other states. PDF ¶ 32. All else equal, turnout

in the most racially diverse counties in Alabama is estimated to have declined by

almost 5%, while turnout in the least diverse counties increased by a similar amount.

In other states, by contrast, racial and ethnic diversity plays a far more minor role in

predicting changes in turnout. PDF ¶¶ 33-35. This difference between Alabama and

the rest of the country is statistically significant. PDF ¶ 36.

The Secretary and his experts contest Dr. Hajnal’s findings. Their principal

objection is to the propriety of making any comparison between Alabama and other

states, given supposedly unique aspects of Alabama politics. Doc. 236 at 75-76; RDS

¶¶ 252-53. Yet Dr. Hajnal took key features of Alabama politics and society fully

into account in both of his analyses.39 And, as demonstrated in RDS ¶¶ 256-57, the

Secretary is wrong to contend that HB 19 disproportionately suppressed white voter

turnout. In any event, these disputes simply create a material issue of fact that

precludes summary judgment.

F. Section 2 Provides a Remedy for Any Group of Voters for Whom

the Burden Imposed by the Photo ID Requirement Is Too Great.

Regarding the remedy to the Section 2 “results test” claim, this Court need not

invalidate the entire law. Instead, it could fashion a remedy for those

39 The Secretary asserts that if HB 19 affected turnout at all, it had a larger adverse effect on whites

than on Black voters. Doc. 236 at 76. This implausible contention rests on a disputed and

methodologically improper analysis of individual turnout performed by Dr. Hood. RDS ¶¶ 256-

57.


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disproportionately minority voters who are meaningfully burdened by HB 19. See

52 U.S.C. § 10301(a) (proscribing voting policies that deny or abridge “the right of

any citizen” to vote) (emphasis added)). As Judge Easterbrook aptly described,

“[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 II, 819 F.3d at 386. “Setting aside

the basic truth that even one disenfranchised voter—let alone several thousand—is

too many, what matters for purposes of Section 2 is not how many minority voters

are being denied equal opportunities but simply that ‘any’ minority voter is being

denied equal electoral opportunities.” LWVNC, 769 F.3d at 244. Plaintiffs are thus

fully entitled to “endeavor[] to protect the voting rights of those who encounter high

hurdles” under HB 19. Frank II, 819 F.3d at 386-87.

This point is of particular relevance here, given that Plaintiffs have sought, as

one potential form of relief, a “reasonable impediment” option. Doc. 112 at 74, ¶

196. This remedy directly targets those who are most significantly burdened by HB

19.

V. THE POSITIVELY IDENTIFY PROVISION VIOLATES THE VRA.

As demonstrated in Plaintiffs’ Motion for Partial Summary Judgment, the

Positively Identify Provision is a prohibited “test of device” within the meaning of

Section 201 of the VRA. Doc 234 at 18-30.

This is especially true given the undisputed facts that have come to light in

the two years since this Court’s prior decision. Those facts, including the testimony


146

of the Secretary’s expert, demonstrate that there are thousands of voters who lack

HB 19 ID and are required to use the Provision to vote. PDF ¶ 54. Individual voters

who could not obtain HB 19 ID also testified that the Provision act as their sole

means of voting. PDF ¶¶ 39-42. Some of these eligible voters were arbitrarily denied

the right to vote or had to go to extraordinary measures to do so. RDS ¶ 292; PDF

¶¶ 40, 42. The Provision also has a disparate impact, insofar as white voters without

HB 19 ID are more likely to know their poll workers than similarly situated Black

voters. PDF ¶¶ 50-51. While both parties’ experts estimate that Blacks make up 40%

of the registered voters who lack HB 19 ID, Black voters constituted only 23% of

the voters who used the Provision to vote in November 2016—a 17-point disparity.

PDF ¶¶ 54-57.

The Secretary’s reliance on testimony that it would “hurt” voters to invalidate

the Provision is unavailing. Doc. 236 at 97-98. Plaintiffs do not seek the Provision’s

invalidation, but simply want to reinstate former Secretary Chapman’s original

interpretation, which allowed voters to be “positively identified” by showing non-

photo ID. Doc. 234 at 29-30. This remedy would allow more people without ID to

vote.

Finally, contrary to the Secretary’s suggestion it is not undisputed that every

voter can obtain HB 19 ID without facing a substantial burden. Cf. Doc. 236 at 97.

At best, the Secretary’s arguments raise a material dispute of fact over whether some

voters are required to submit to a prohibited voucher test as their sole method of


147

voting. PDF ¶¶ 39-41, 43-44. Thus, the Court either should grant Plaintiffs’ motion

on the Section 201 claim or deny the Secretary’s motion and allow this claim to be

resolved at trial.

VI. CONCLUSION

For the reasons set forth above, the Secretary’s motion for summary judgment

must be denied.


148

Respectfully submitted this 6th day of November 2017.

/s/ Deuel Ross

Deuel Ross

Natasha Merle

Nana Wilberforce

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

[email protected]

[email protected]

Coty Montag

Daniel S. Harawa

NAACP Legal Defense and

Educational Fund, Inc.

1444 I Street NW

Washington, D.C. 20005

Tel: (202) 682-1300

[email protected]

/s/ J. Mitchell McGuire

31 Clayton Street

Montgomery, Alabama 36104

Telephone: (334) 517-1000

Fax: (334) 517-1327

[email protected]

/s/ Robert D. Fram

Robert D. Fram

Nathan E. Shafroth

Covington & Burling LLP

One Front Street

San Francisco, CA 94111-5356

Tel: 415-591-6000

Fax: 415-591-6091

[email protected]

[email protected]

Joanne B. Grossman

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, D.C. 20001-4956

Tel: 202-662-6000

Fax: 202662-6291

[email protected]

Attorneys for Plaintiffs


149

CERTIFICATE OF SERVICE

I certify that on November 6th, 2017, I filed the foregoing document

electronically via the Court’s CM/ECF system, which will send a copy to all

counsel of record.

/s/ Deuel Ross

Deuel Ross


united states district court for the northern district of alabama southern division corrected...

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