Case: League of Women Voters of Alabama v. Merrill

This case involved allegations that Alabama election officials violated the right to vote of plaintiffs and of all qualified Alabama voters guaranteed by the Alabama Constitution Article VIII, Section 177, and their right to exercise the franchise free of undue influence from tumult guaranteed by the Alabama Constitution Article I, Section 33, by failing to exercise emergency statutory and constitutional authority and by maintaining restrictive voting requirements during the COVID-19 pandemic that forced voters to risk infection.

The League of Women Voters of Alabama, along with eight individual Alabama residents, filed this lawsuit on May 28, 2020 in the Circuit Court of Montgomery County, Alabama. Defendants included John Merrill, in his official capacity as Alabama Secretary of State; Kay Ivey, in her official capacity as Governor of Alabama; and various Montgomery County election officials. Plaintiffs brought this action as a putative class action on behalf of all citizens of the United States eligible to vote in Alabama. Plaintiffs were represented by private counsel. Plaintiffs cited the Constitution of Alabama Article VIII, Section 177 and Article I, Section 33, which protected voting rights. Plaintiffs sought declaratory relief that defendants’ failures violated state constitutional voting rights, and injunctive relief requiring defendants to modify absentee balloting procedures and institute procedures to protect poll workers and in-person voters. Plaintiffs also sought a preliminary injunction ordering Defendants Merrill and Ivey to promptly submit an emergency plan remedying the alleged constitutional violations and adequately notifying all Alabama voters of emergency measures. Plaintiffs also sought attorneys’ fees and costs. The case was assigned to Circuit Judge J.R. Gaines.

The eight individual plaintiffs were Alabama voters ranging in age from 60 to 75, all with underlying health conditions that put them at heightened risk from COVID-19. All had sequestered themselves at home due to COVID-19 risks, and many had no safe way to obtain notarization or two witness signatures for absentee ballots.

On March 13, 2020, Governor Ivey issued, and on May 8, 2020 renewed, an emergency order declaring a public health emergency during the coronavirus pandemic. Defendant Merrill issued an emergency rule authorizing no-excuse absentee voting, but it waived none of the other absentee ballot requirements including photo identification and notary or witness signatures, and it expired July 17, 2020, three days after the July 14, 2020 primary runoff.

Local election officials reported to Defendant Merrill their inability to comply with Centers for Disease Control and Prevention (CDC) recommendations for safe voting. In a letter dated May 4, 2020, Mobile County Probate Judge Don Davis informed Secretary Merrill that at least 75 percent of Mobile County’s election officials who served in the March 3, 2020 primary were 65 years or older and many had expressed concern about serving in the July 14, 2020 runoff. Mobile County’s assessment showed 46 of 88 poll locations could not accommodate the same number of election officials while maintaining social distancing. Judge Davis stated he was at a loss to determine how to discharge his legal responsibilities in a manner compliant with state and federal election law and CDC social distancing guidelines.

On April 13, 2020, the League’s President sent a letter to Defendant Merrill urging him to exercise his emergency powers to waive photo identification and notary/witness requirements for absentee ballots and to adopt safety measures for in-person voting. On April 15, 2020, General Counsel for the Secretary of State replied that the office was required to operate within statutory parameters, and the photo identification and witness requirements could not be changed without legislative action. The Legislature adjourned on May 18, 2020 without passing emergency measures.

Plaintiffs had five key allegations. First, defendants violated plaintiffs’ state constitutional voting rights by failing to extend no-excuse absentee voting beyond the July 14, 2020 primary runoff to all 2020 elections. Second, defendants violated voting rights by failing to waive the photo identification requirement for absentee ballot applications. Third, defendants violated voting rights by failing to waive the requirement that voters obtain a notary public or two witnesses to witness the affidavit included with the absentee ballot. Fourth, defendants violated voting rights by failing to modify deadlines for absentee ballots, including the five-day advance application deadline and the noon on election day delivery deadline. Fifth, defendants violated voting rights by failing to adopt safety measures for in-person voting, including providing personal protective equipment, implementing social distancing procedures, authorizing early voting at least fourteen days before election day, providing drive-through voting, establishing vote centers, and providing financial resources for these measures.

The court held a hearing on the motions by video conference on June 23, 2020. On August 5, 2020, the court issued an order addressing both plaintiffs’ motion for a preliminary injunction and defendants’ motions to dismiss. The court found that it lacked jurisdiction over plaintiffs’ complaint because plaintiffs presented a non-justiciable political question, plaintiffs lacked standing to sue defendants, and the claims against defendants were barred by sovereign immunity. The court additionally noted that even if jurisdiction existed, it would have found that plaintiffs failed to state a claim upon which relief could be granted. The court granted defendants’ motions to dismiss, dismissed plaintiffs’ claims without prejudice, and denied plaintiffs’ motion for a preliminary injunction.

As of August 5, 2020, the case was dismissed.