In December 2015, NAACP-LDF, with Covington & Burling LLP, challenged Alabama’s enforcement of a 2011 photo ID law. Plaintiffs claim that the law intentionally discriminates on the basis of race in violation of the Fourteenth and Fifteenth Amendment and Section 2 of the VRA, and that it is prohibited by Section 201 of the VRA as a “test or device” voting qualification. The district court granted defendants’ motion for summary judgment on all claims. Greater Birmingham Ministries v. Merrill, 284 F.Supp.3d 1253 (N.D. Ala. 2018).

The photo ID law requires in-person and absentee voters to possess one of seven specified photo IDs. Ala. Code. 17-9-30(a)(1)-(7). African American and Latino voters are less likely than white voters to possess a required ID. Voters who do not have a qualifying ID are entitled to a fee waiver for Alabama Enforcement Agency (“ALEA”) ID, or to obtain a free voter ID from county registrar’s offices or mobile ID units. To apply for a free ID, the voter must swear under penalty of perjury that they do not have a “valid” ID, then either present documentation of identify, date of birth, voter registration, and their name and address, id. 17-9-30(j), or complete and sign a voter registration form in front of an election official. There is an exemption from the ID requirement for in-person voters who can be “positively identified” by two election officials. Id. 17-9-30(a) (the basis for the voucher claim).

LDF filed suit on September 30, 2015, soon after the Alabama Governor announced the permanent closure of 31 part-time ALEA offices, including offices in eight of the eleven majority African-American counties that comprise the so-called “black belt.” In response to the outcry over the ALEA offices closure, the Governor announced on October 16, 2015, that the 31 offices would not be closed completely, but instead opened for one day per month. The challenge focuses not on the costs of obtaining the underlying documents for a fee waiver ID, but on the disproportionate obstacles to accessing the ALEA office or the mobile ID units, including the limited opening hours, lack of access to transportation, and other barriers, and the intimidating requirement that voters determine what is a “valid” ID and swear under penalty of perjury that they do not have one.

In its January 10 summary judgement opinion, the district court explicitly finds that it does not need to undertake “the delicate and highly fact intensive consideration” of assessing plaintiffs’ circumstantial evidence of discriminatory intent in accordance with Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). Instead, the court holds that because the law’s burden on voters is not severe, nobody is prevented from obtaining an ID, and the law therefore has no discriminatory effect and could not have been passed with a discriminatory intent.

Along with failing to undertake the Arlington Heights analysis, the decision misinterprets Anderson-Burdick (Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992)) and Crawford v. Marion Cty. Election Bd., 553 U.S. 187, 191 (2008), treating an unconstitutional burden as a requirement for a discriminatory intent claim, and the justifications for photo ID approved in Crawford as a per se legitimate purpose for passing the ID law, and therefore not discriminatory.

We have submitted an amicus brief arguing that the decision warrants reversal because the court applied the wrong standard to the intentional discrimination claim, and discussing the similarities between this decision and the North Carolina district court decision in NAACP v. McCrory that was overturned by the Fourth Circuit. N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 2014 (4th Cir. 2016).

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