14 Pltfs Resp Defts Motion Dismiss

8/9/2019 14 Pltfs Resp Defts Motion Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARL

LEFTWICH, BOBBI MORGAN, DONALD

MEANS, ERNEST EDMONDS, FAIRY

GORDON, IRIS SERMON, JOHNNY BUTLER,

MERJEAN LITTLE, MOSES JONES, VASSIE

BROWN, WILLIE MAE REEVES, BEVERLY

GORDON, JOHNNY B. MORROW, FANNIE

ISHMAN, LESLIE CHEATEM, MARGIE

JAMES, BOBBY SINGLETON, A. J.

MCCAMBELL, JOHNNY FORD, LOUISMAXWELL, MARY RUTH WOODS, LISA M.

WARE, CLARA P. GRIMMETT, CHARLES

CHAMBLISS, JOHNNIE B. HARRISON, G.

DYANN ROBINSON, SHIRLEY W. CURRY,

SARAH STRINGER, MILES D. ROBINSON, and

WILLIE LEE PATTERSON, individually and on

behalf of others similarly situated,

Plaintiffs,

v.

BOB RILEY, in his individual capacity and in his

official capacity as Governor of Alabama, and

JOHN M. TYSON, JR., individually and in his

official capacity as special prosecutor and task

force commander of the Governors Task Force on

Illegal Gaming,

Defendants.

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** Civil Action No.

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PLAINTIFFS MEMORANDUM BRIEF IN OPPOSITION TO

DEFENDANTS MOTION TO DISMISS

FI2010 Aug-30 AU.S. DISTRICT

N.D. OF AL

Case 7:10-cv-02067-SLB Document 14 Filed 08/30/10 Page 1 of 17


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Plaintiffs William Johnson et al., through undersigned counsel, respond as

follows to defendants motion to dismiss, Doc. 13. As we will show, defendants

motion demonstrates that Governor Rileys Executive Order 44 and Task Force

raids are changes affecting voting and that plaintiffs are not asking this Court to

resolve, as defendants argue, a question of what constitutes illegal gambling under

Alabama law. Doc. 13 at 3.

I. EXECUTIVE ORDER 44 AND THE TASK FORCE IT AUTHORIZES

HAVE EFFECTIVELY IMPLEMENTED CHANGES IN THE

COMPOSITION OF THE ELECTORATE WHO MAY APPROVELOCAL CONSTITUTIONAL AMENDMENTS 743 AND 744.

Defendants state correctly that the Department of Justice has not

precleared the substance of these amendments under 5 of the Voting Rights Act.

Doc. 13 at 7. Rather, when the U.S. Attorney General precleared Amendments 743

and 744, he was preclearing the schedul[ing] of referendum elections solely by

the voters in Greene County and Macon County to approve their adoption.1 The

composition of the electorate empowered to adopt local amendments to the

Alabama Constitution had been the subject of Amendment 555, which in 1994 for

1 This refers to Act Nos. 2003-75, 2003-124, 2003-189, 2003-377, and2003-433, which schedule the November 4, 2003, special constitutional

amendment elections in Conecuh, Macon, Marshall, Tallapoosa, and Greene

Counties, and Act No. 2003-287, which schedules the November 18, 2003, special

constitutional amendment election in Chambers County, Alabama, submitted to the

Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C.

1973c. Doc. 12-2 at 1.



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the first time in Alabama history authorized counties to exercise a degree of home

rule without first seeking the approval of a statewide electorate. When the U.S.

Attorney General precleared Amendment 555, he was concerned only that this

revolutionary constitutional provision be faithfully implemented, so that matters

affecting only one county be voted on by that countys electorate, not by a

statewide electorate.2 This voting rights concern would be present whether a local

constitutional amendment authorized or prohibited bingo or the sale of alcohol or

dogs off leash or anything else.

2 As the Assistant Attorney Generals letter stated:

The provisions of Act No. 94-611 are viewed as enabling.

Thus, the scheduling of future local constitutional amendment

referenda will be subject to Section 5 preclearance. See 28 C.F.R.

51.15, 51.17.

In addition, it appears that one other matter may still beunresolved with regard to the Attorney Generals January 31, 1994,

section 5 objection to the prior procedure for calling referenda on

local constitutional amendments (i.e the objection to Amendment 425

to the Alabama Constitution insofar as it provided that such a

referendum could not be held unless it was first approved by the Local

Constitutional Amendment Commission). We understand that a

number of local amendments proposed by the legislature were vetoed

by the Commission, and that the changes reflected in those

amendments have not been subsequently adopted. We ask that thestate provide a listing of these amendments (with copies of them), and

that the state advise us in writing as to its view as to their current

status under Section 5 and Alabama law.

Doc. 12-1 at 1-2.

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Governor Riley believes that the electronic bingo machines operating under

the authority of Amendments 743 and 744 and the Sheriffs regulations

promulgated pursuant to those amendments violate an anti-lottery provision in the

original 1901 Alabama Constitution and Alabama Supreme Court decisions

interpreting it. Doc. 13 at 5-6.3 He objected to an obvious lack of uniformity in

the enforcement of Alabamas gambling laws against these machines from

county to county. Doc. 13 at 10 (quoting Doc. 13-1 at 3) (bold emphasis added).

He issued Executive Order 44 and created the Task Force for the purpose of

promoting and supporting uniformstatewide enforcement of Alabamas

anti-gambling laws. Doc. 13 at 10 (quoting Doc. 13-1 at 3) (bold emphases

added). Thus, it is Governor Rileys view that electronic bingo can only be

3 Indeed, Governor Rileys motion restates his position that all electronicbingo machines are categorically unlawful. Doc. 13 at 12. This is the position he

took most recently in the Alabama Supreme Court. Ex parte State ex rel. Riley v.

Cornerstone Community Outreach, Inc., 2010 WL 2034825 (Ala., May 21, 2010)

at *24 (The Governor has taken the position that the term bingo in the local

amendments is a reference to the game traditionally known as bingo, i.e., a game

that is not played by or within the electronic or computerized circuitry of a

machine, but one that is played on physical cards (typically made of cardboard or

paper) and that requires meaningful interaction between those who are playing and

someone responsible for calling out the randomly drawn designationscorresponding to designations on the players cards.). In an earlier case Governor

Riley had not taken this hard stance. Barber v. Cornerstone Community Outreach,

Inc., 2009 WL 3805712 (Ala., Nov. 13, 2009) at *11 (For purposes of the present

case, the Riley defendants do not contend that a bingo game must be played only

on paper cards, and we, therefore, do not address that issue.).

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approved by a statewide electorate and that electorates composed solely of voters

in Greene County and Macon County do not have the power to approve electronic

bingo. That is Governor Rileys explicit purpose for his actions, and that is the

ultimate effect of his actions.

As defendants must concede, Doc. 13 at 18, one of the four typologies of

factual contexts that constitute changes affecting voting, and thus fall within the

coverage of 5 of the Voting Rights Act, 42 U.S.C. 1973c, are changes in the

composition of the electorate that may vote for candidates for a given office.

Presley v. Etowah County Commn, 502 U.S. 491, 502-03 (1992). In the instant

case, defendant Riley, relying on the authority he claims to have been given him by

a statewide electorate, is implementing a change in the composition of the

electorate that may approve a constitutional amendment authorizing electronic

bingo in Greene County and Macon County. For purposes of enforcing the Voting

Rights Act, there is no material difference between voting for a candidate for office

and voting to adopt a local constitutional amendment.

To enforce 5 of the Voting Rights Act, this Court is not required to inquire

into, much less to resolve, disputes about the validity of electronic bingo under

state law. The U.S. Supreme Court has established that an election practice may

be in force or effect for 5 purposes despite its illegality under state law if, as a

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practical matter, it was actually in effect. Riley v. Kennedy, 553 U.S. 406, 128

S.Ct. 1970, 1984 (2008) (citations omitted). Defendant Riley does not and cannot

dispute the fact, as alleged in the complaint, that Amendments 743 and 744 and the

Sheriffs regulations promulgated as required by those amendments have actually

been in force and effect since 2003.4 They have never been invalidated in a

judicial proceeding, unlike the statute at issue inRiley v. Kennedy. Governor Riley

failed to procure a statewide constitutional amendment in 2006 that would have

overruled Local Amendments 743 and 744. See Doc. 4 at 13 and Doc. 12-3.

Instead, Governor Riley claimed executive authority to create his Executive

4Macon County Greyhound Park, Inc. v. Knowles, --- So.3d ----, 2009 WL

4016073 (Ala., Nov. 20, 2009) at *1 (bold emphasis added) (In force at all times

relevant to this action were the Second Amended and Restated Bingo Regulations

for the Licensing and Operation of Bingo Games in Macon County (the sheriff's

regulations), promulgated by the Macon County sheriff pursuant to AmendmentNo. 744.); accord,Hope for Families & Community Service, Inc. v. Warren, ---

F.Supp.2d ----, 2010 WL 2629408 (M.D.Ala., June 30, 2010) at *46. See also

Macon County Investments, Inc. v. Warren, 2007 WL 3441995 (M.D.Ala., Jan. 5,

2009) at *1, affd 306 Fed.Appx. 478, 2009 WL 19346 (11th Cir. 2009) (In

reciting the facts, the court construes the evidence in a light most favorable to the

nonmovants. Amendment 744 to the Alabama Constitution made the operation of

bingo gaming by nonprofit organizations legal in Macon County, Alabama. Ala.

Const. Amend. No. 744. Amendment 744 also authorized the sheriff of Macon

County to promulgate rules and regulations for the licensing and operation of

bingo games within the county.Id.).The regulations of the Greene County Sheriff are attached to this brief as

Exhibit A, and the regulations of the Macon County Sheriff are Exhibit B.

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Order and Task Force in 2008, Doc. 13 at 9, and he proceeded to seiz[e], Doc. 13

at 12, the electronic bingo machines that had been operating under the regulations

and enforcement powers of the Sheriffs of Greene and Macon Counties for over six

years. Under 5 of the Voting Rights Act, this Court is not concerned about

whether or not defendants Riley and Tyson have misinterpreted the bingo

amendments found in the Alabama Constitution. Doc. 13 at 16. Its sole concern

is whether by implementing their interpretation of the Alabama Constitution

defendants have changed a policy or practice that has been in force and effect for

over six years.

Even if the Alabama Supreme Court, not Governor Riley, had declared the

operation of electronic bingo machines under Amendments 743 and 744 invalid

which it has not done, the change in standards, practices, or procedures effected by

the ruling would have been subject to 5 preclearance. We have also stated that

the preclearance requirement encompasses voting changes mandated by order of a

state court. Riley v. Kennedy, 128 S.Ct. at 1982 (citingBranch v. Smith, 538 U.S.

254, 262, (2003);Hathorn v. Lovorn, 457 U.S. 255, 265-266, and n. 16 (1982)).

To the extent the Alabama Supreme Court rulings uphold Governor Rileys

discretionary exercise of his executive powers to issue and to implement Executive

Order 44, see Doc. 4-1, those rulings too must receive 5 preclearance before they

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may be enforced.

Defendants assert that Plaintiffs reading of 5 would affirmatively

preclude the Governor from fulfilling his constitutional obligation to take care that

the laws be faithfully executed. ALA. CONST. Art V, 120. Doc. 13 at 22. But

the undisputed facts show that defendant Riley has not attempted to enforce the

provisions of Amendments 743 and 744 and the Sheriffs regulations promulgated

under them. Instead, he has attempted to veto or to nullify those local amendments

and regulations, effectively denying the right to vote of the county electorates who

approved them. Under the Voting Rights Act, this Court must look to the practical

effects of the discretionary action of executive or administrative officials to

determine whether they affect the right to vote.

Given the Voting Rights Acts aim of preventing the subtle, as

well as the obvious, state regulations which have the effect of denyingcitizens their right to vote because of their race, the Supreme Court

has broadly construed what constitutes a change under Section 5.

Presley v. Etowah County Comm'n, 502 U.S. 491, 501-03, 112 S.Ct.

820, 117 L.Ed.2d 51 (1992) (quotingAllen v. State Bd. of Elections,

393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) and listing post-Allen

cases). Changes may be informal as well as formal changes.

Foreman v. Dallas County, 521 U.S. 979, 980, 117 S.Ct. 2357, 138

L.Ed.2d 972 (1997) (quotingNAACP v. Hampton County Election

Comm'n, 470 U.S. 166, 178, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985)).

They may alter an election law in only a minor way. Presley, 502

U.S. at 501, 112 S.Ct. 820 (quotingAllen, 393 U.S. at 566, 89 S.Ct.

817). And they may even include an administrative effort to comply

with a statute that had already received clearance, or legislation

passed in an attempt to comply with provisions of the Act.

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Foreman, 521 U.S. at 980, 117 S.Ct. 2357 (quotingNAACP, 470 U.S.

at 178, 105 S.Ct. 1128);Allen, 393 U.S. at 565 n. 3, 89 S.Ct. 817.

Nor does it matter for the preclearance requirement whether the

change works in favor of, works against, or is neutral in its impact

upon the ability of minorities to vote. It is change that invokes thepreclearance process; evaluation of that change concerns the merits of

whether the change should in fact be precleared. Young, 520 U.S. at

285, 117 S.Ct. 1228 (citations omitted).

Connors v. Bennett, 202 F.Supp.2d 1308, 1317 (M.D. Ala. 2002) (3-judge court)

(per Hull, J.). See alsoReynolds v. Sims, 377 U.S. 533, 563 (1964) (One must be

ever aware that the Constitution forbids sophisticated as well as simpleminded

modes of discrimination.) (quotingLane v. Wilson, 307 U.S. 268, 275 (1939);

Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960)).

Governor Riley is not enforcing Amendments 743 and 744 or the Sheriffs

regulations. Instead, defendant Riley has decided to use the raw power of his

executive office to overrule the voters of Greene County and Macon County, to

nullify their constitutional choice of electronic bingo operations in their counties,

and to impose the uniform statewide policy he prefers. This is a change

affecting voting in the most fundamental way.

II. UNDER THE HOLDING AND RATIONALE OFPRESLEY,

DEFENDANT RILEY HASDE FACTO REPLACED AN ELECTED

OFFICIAL WITH AN APPOINTED OFFICIAL.

This is an alternative reason for finding that defendants actions are changes

that affect voting within the meaning of 5 of the Voting Rights Act. Defendants

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motion to dismiss misreads Presley v. Etowah County Commn as holding that

absolutely no transfer of power from an elected to an appointed official can ever

constitute a change affecting voting. Doc. 13 at 20. But a careful reading of the

Presley opinion shows that defendant Rileys appointment of the Mobile County

District Attorney to enforce Amendments 743 and 744 constitutes a de facto

replacement of an elective office with an appointive one, within the rule ofBunton

v. Patterson[, 393 U.S. 544 (1969)]. Presley, 502 U.S. at 508.5

First, said the Presley Court, the Etowah County Common Fund Resolution,

which transferred powers among members of the county commission,

has no connection to voting procedures: It does not affect the manner

of holding elections, it alters or imposes no candidacy qualifications

or requirements, and it leaves undisturbed the composition of the

electorate. It also has no bearing on the substance of voting power,

for it does not increase or diminish the number of officials for whom

the electorate may vote. Rather, the Common Fund Resolutionconcerns the internal operations of an elected body.

502 U.S. at 569-70 (bold emphases added). By contrast, as we showed in the

preceding section of this brief, Executive Order 44 does effectively change the

composition of the electorate empowered to choose which official will enforce the

provisions of these two local constitutional amendments. As a practical matter,

5Bunton v. Patterson was one of four cases consolidated and decided as

Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969).

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Amendments 743 and 744 create new constitutional offices to regulate and to

enforce their provisions, and they designate the elected Sheriffs of Greene and

Macon Counties to fill those offices. Defendant Rileys executive order has

created the office of Task Force Commander, has given that officer authority over

the officer designated by the constitutional amendments, and has filled that office

with a district attorney elected in Mobile County. This diminishes the number of

officials for whom the electorates of Greene and Macon Counties may vote by de

facto replacing the elected office they created by constitutional amendment with an

appointed office. This goes way beyond merely changing the internal operations

of an elected body such as the Etowah County Commission.

The Presley plaintiffs failed to provide the Court with what the majority

considered to be a workable standard for distinguishing between changes in rules

governing voting and changes in the routine organization and functioning of

government. 502 U.S. at 504 (bold emphasis added). The Court refused to adopt

a rule that

every time a state legislature acts to diminish or increase the power of

local officials, preclearance would be required. Governmental action

decreasing the power of local officials could carry with it a potential

for discrimination against those who represent racial minorities at the

local level. At the same time, increasing the power of local officials

will entail a relative decrease in the power of state officials, and that

too could carry with it a potential for discrimination against state

officials who represent racial minorities at the state level. The all but

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limitless minor changes in the allocation of power among officials

and the constant adjustments required for the efficient governance of

every covered State illustrate the necessity for us to formulate

workable rules to confine the coverage of 5 to its legitimate sphere:

voting.Changes which affect only the distribution of power among

officials are not subject to 5 because such changes have no direct

relation to, or impact on, voting. The Etowah County Commissions

Common Fund Resolution was not subject to the preclearance

requirement.

502 U.S. at 505-06 (bold emphases added). No one could argue that Governor

Rileys appointment of a Task Force Commander was a minor change in the

routine organization and functioning of government or that it merely redistributed

power among officials who are members of the same local government body. To

the contrary, the Alabama Supreme Court has said that Alabama governors invoke

law enforcement powers like those in defendant Rileys Executive Order 44 only in

rare cases. Tyson v. Jones, __ So.2d __, No. 1090878 (Ala., July 30, 2010) slip

op. at 39, Doc. 4-1. And the Task Force Commander is not a member of a local

government body.

Second, applying the same reasoning employed in its discussion of Etowah

County, the Presley Court held that the creation of a unit system of road

maintenance in Russell County and the transfer of power to supervise road crews

from individual county commissioners to an appointed county engineer was not a

change affecting voting.

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[I]t might be argued that the delegation of authority to an appointed

official is similar to the replacement of an elected official with an

appointed one, the change we held subject to 5 inBunton v.

Patterson. This approach, however, would ignore the rationale for

our holding: [A]fter the change, [the citizen] is prohibited fromelecting an officer formerly subject to the approval of the voters.

Allen, 393 U.S., at 569-570, 89 S.Ct., at 833-834. In short, the change

inBunton v. Patterson involved a rule governing voting not because it

effected a change in the relative authority of various governmental

officials, but because it changed an elective office to an appointive

one.

The change in Russell County does not prohibit voters from

electing an officer formerly subject to the[ir] approval.Allen, supra,

393 U.S., at 570, 89 S.Ct., at 834. Both before and after the change

the citizens of Russell County were able to vote for the members ofthe Russell County Commission. To be sure, after the 1979 resolution

each commissioner exercised less direct authority over road

operations, that authority having been delegated to an official

answerable to the commission. But as we concluded with respect to

Etowah County, the fact that an enactment alters an elected officials

powers does not in itself render the enactment a rule governing voting.

502 U.S. at 506-07 (bold emphases added). The Court then set out the express

exception that plaintiffs in the instant action rely on:

We need not consider here whether an otherwise uncovered

enactment of a jurisdiction subject to the Voting Rights Act might

under some circumstances rise to the level of a de facto replacement

of an elective office with an appointive one, within the rule ofBunton

v. Patterson. For present purposes it suffices to note that the Russell

County Commission retains substantial authority, including the power

to appoint the county engineer and to set his or her budget. The

change at issue in Russell County is not a covered change.

502 U.S. at 508. InBunton v. Patterson the Court addressed a Mississippi statute

that changed the office of school superintendent in eleven counties from an elected

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to an appointed position. It held:

In [Bunton] an important county officer in certain counties was

made appointive instead of elective. The power of a citizens vote is

affected by this amendment; after the change, he is prohibited fromelecting an officer formerly subject to the approval of the voters.

Such a change could be made either with or without a discriminatory

purpose or effect; however, the purpose of 5 was to submit such

changes to scrutiny.

Allen, 393 U.S. at 569-70.

Thus, contrary to defendants contention, Presley did not lay down a bright-

line rule. Doc. 13 at 19. Instead, it instructed lower courts to consider the

rationale for our holding, 502 U.S. at 506, and to assess the facts of each case in

the light of that rationale. This Court should perform the same analysis of the facts

here as did the district court in Connors v. Bennettto determine whether, as a

practical matter, Governor Rileys appointment of a Task Force Commander to

take control of enforcing the constitution and laws of Alabama regarding electronic

bingo in Greene and Macon Counties amounted to a de facto replacement of

elected officials with an appointed official. Those facts show that the elected

Sheriffs do not retain[] substantial authority, including the power to appoint the

[Task Force Commander] and to set his or her budget, as did the Russell County

Commissioners in Presley. 502 U.S. at 508. And, on motion of defendant Riley,

the Alabama Supreme Court has ordered the Sheriffs to stand aside for the Task

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Force Commander and to cease proceeding with the law enforcement actions they

had already begun. See Docs. 1-1, 1-2, 1-3, and 4-1. These circumstances

constitute a de facto replacement of officials constitutionally designated by and

elected by the voters of Greene County and Macon County with an official

appointed by the Governor over whom those voters have absolutely no control.

They are changes that affect voting within the meaning of 5 of the Voting Rights

Act.

III. THIS THREE-JUDGE COURT LACKS JURISDICTION TO RULEON DEFENDANTS MOTION TO DISMISS THE REMAINING

FEDERAL CLAIMS.

This three-judge court has jurisdiction to address only the limited question

whether the standards, practices, and procedures challenged in the complaint are

changes that affect voting within the meaning of 5 of the Voting Rights Act.

Presley, 502 U.S. at 495. It should reserve defendants arguments about the

sufficiency of the claims pleaded under 2 of the Voting Rights Act of

1965, as amended, 42 U.S.C. 1973; the Ku Klux Klan Act, 42 U.S.C. 1985(3),

and the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of

the United States for consideration in the event this action is remanded to the

single-judge court.

CONCLUSION

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This Court should schedule a hearing at the earliest possible date to consider

both the defendants motion to dismiss and the plaintiffs motion for an expedited

hearing and issuance of a preliminary injunction. This three-judge court should

also consider advancing the trial on the merits and consolidating it with the hearing

on motion for preliminary injunction, pursuant to Rule 65(a)(2), Fed.R.Civ.P.

Following such hearing, the motion to dismiss should be denied, and the motion

for preliminary injunction restoring the status quo ante in Greene County and

Macon County should be granted.

Respectfully submitted this 30th day of August, 2010,

s/Edward Still

Bar No. ASB-4786-I 47W

2112 11th Avenue South

Suite 541

Birmingham, AL 35205

205-320-2882fax 205-449-9752

E-mail: [email protected]

Attorneys for plaintiffs

James U. Blacksher

Bar No. ASB-2381-S82J

P.O. Box 636

Birmingham AL 35201

205-591-7238

Fax: 866-845-4395E-mail:[email protected]

Fred D. Gray

Bar No. ASB-1727-R63F

Gray, Langford, Sapp, McGowan,

Gray & Nathanson

P. O. Box 830239

Tuskegee , AL 36083-0239

334-727-4830

Fax: 334-727-5877


CERTIFICATE OF SERVICE

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I hereby certify that on August 30, 2010, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification

of such filing to the following counsel of record:

Henry T. Reagan (REA021)OFFICE OF GOVERNOR BOB

RILEY

600 Dexter Avenue

Montgomery, Alabama 36130

Martha Tierney (TIE001)OFFICE OF GOVERNOR BOB

RILEY

600 Dexter Avenue

Montgomery, Alabama 36130

Notice of this filing has also been sent by email and first class postage to:

Hon. Troy King

Attorney General

500 Dexter Ave.Montgomery AL 36130

Respectfully submitted,

s/Edward StillBar No. ASB-4786-I 47W

2112 11th Avenue South

Suite 541

Birmingham, AL 35205

205-320-2882

fax 205-449-9752


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14 Pltfs Resp Defts Motion Dismiss

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