11th Circ. Reinstates Ala. Mail Ballot Witness Requirement

Law360 (October 13, 2020, 9:57 PM EDT) -- The Eleventh Circuit on Tuesday blocked a district court order that would have lifted Alabama's witness and photo ID requirements for absentee voters at higher risk for COVID-19, but the appeals court refused to reinstate a ban on curbside voting.

In a brief order, the appeals court said it would grant the state's request to stay an injunction on the absentee ballot requirements, which the district court found to significantly burden voters, particularly Black citizens. But the Eleventh Circuit said the block on Alabama's de facto ban on curbside voting could stay, allowing counties that want to offer voters that service to begin to prepare for that option.

U.S. Circuit Judge Jill Pryor said she would have denied the state's request for an injunction in its entirety, while Circuit Judge Barbara Lagoa said she would have granted the request completely.

Alabama, which does not offer early in-person voting, requires that voters send a copy of their photo ID with their request for an absentee ballot. That ballot then needs to be returned with an affidavit from the voter signed by either two witnesses or a notary.

The state does not have an official ban on curbside voting, which some counties have offered in previous elections, but Alabama Secretary of State John Merrill has maintained that it is against the law because of concerns about chain of custody of the ballot and ballot privacy.

The plaintiffs — a group of elderly Black voters and a disabled white man who are at high risk of complications from COVID-19 — filed suit in May challenging the requirements and the ban on curbside voting, citing their concerns about how in-person voting could expose them to the coronavirus, particularly since Alabama's mask mandate does not apply to voters.

On Sept. 30, after a 10-day bench trial, U.S. District Judge Abdul K. Kallon issued a 197-page decision finding that the requirements are unconstitutional and violate the Voting Rights Act.

The state appealed the decision and asked for a stay of Judge Kallon's injunction, arguing that the U.S. Supreme Court's decision in Purcell v. Gonzalez in 2006 advised against changes that could cause voter confusion close to an election.

In its motion, the state touted the extra millions of dollars it has sent to counties to safely administer elections during the pandemic and said there is an exemption from the photo ID requirement for voters who are unable to access their assigned polling place and are either disabled or over 65.

The state also said a mobile ID unit has held at least 40 events during the pandemic providing free IDs and copies for anyone who needs them, and with absentee voting up to 55 days before the election, voters have nearly two months to meet the requirements.

Caren Short, a senior staff attorney for the Southern Poverty Law Center, which helps represent residents challenging the requirements, called the Eleventh Circuit's decision "unfortunate" and said the absentee ballot regulations place an undue burden on high-risk voters while adding no protection against voter fraud.

"Expert testimony and a voluminous record entered into evidence during a 10-day trial last month made clear why the state's ban on curbside voting and onerous absentee ballot requirements represent unconstitutional barriers to voting for medically vulnerable Alabamians during an ongoing pandemic," Short said. "We know that Alabama voters — particularly Black voters — have and will overcome countless barriers to cast their ballot, and we encourage them to do so as safely as possible."

Merrill called the decision "a win for the people of Alabama" that maintains the integrity and security of the election.

"The photo ID and witness requirements are necessary deterrents for those looking to commit voter fraud, and I am glad the Eleventh Circuit has recognized their importance in safeguarding the elections process."

He added that he intends to appeal to the U.S. Supreme Court the injunction blocking the ban on curbside voting, which Merrill says is not allowed by state law.

U.S. Circuit Judges Adalberto Jordan, Jill Pryor and Barbara Lagoa sat for the Eleventh Circuit.

Alabama is represented by Todd D. Engelhardt, Robert F. Dyar, Jay M. Ross and A. Patrick Dungan of Adams and Reese LLP, Jerome E. Speegle and Jennifer S. Holifield of Speegle Hoffman Holman & Holifield LLC and Steve Marshall, Edmund G. LaCour Jr., A. Barrett Bowdre, James W. Davis, Winfield J. Sinclair, Jeremy S. Weber, Misty S. Fairbanks Messick, Brenton M. Smith and A. Reid Harris of the Office of the Attorney General of Alabama.

The challengers are represented by Deuel Ross, Samuel Spital, Natasha C. Merle, Liliana Zaragoza and Mahogane Reed of NAACP Legal Defense & Educational Fund Inc., Caren E. Short and Nancy G. Abudu of the Southern Poverty Law Center, T. Alora Thomas-Lundborg, Davin M. Rosborough and Sarah Brannon of the American Civil Liberties Union Foundation, Randall C. Marshall of the ACLU Foundation of Alabama Inc., William Van Der Pol, Jenny Ryan and Maia Fleischman of Alabama Disabilities Advocacy Program and Katrina Robson of O'Melveny & Myers LLP.

The case is People First of Alabama et al. v. Secretary of State et al., case number 20-13695, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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