Plaintiffs in case over absentee voting law respond to state’s motion to dismiss

People enter a voting precinct to vote in the Michigan primary election at Trombly School Aug. 7, 2018 in Grosse Pointe Park, Michigan. (Bill Pugliano/Getty Images)

The plaintiffs in a case against Alabama’s absentee ballot application law filed a response Monday to the defendants’ motion to have the case dismissed.

In the 52-page filing in the Northern District of Alabama, the plaintiffs responded to claims by the Alabama Attorney General’s office’s motion to dismiss that alleged the law was not a burden on freedom of speech and that it was a “shotgun pleading.”

“Defendants’ voluminous efforts to manufacture any cognizable deficiencies in Plaintiffs’ claims fall short,” attorneys for the plaintiffs wrote.

Messages were left with representatives for the plaintiffs and the Attorney General’s office.

SB 1, sponsored by Sen. Garlan Gudger, R-Cullman, makes it a Class C felony, punishable by up to ten years in prison, for a person to receive a payment or gift for “ distributing, ordering, requesting, collecting, completing, prefilling, obtaining or delivering” an application and a Class B felony, punishable by up to 20 years in prison, for a person to knowingly pay or provide a gift for a “third party to distribute, order, request, collect, prefill, complete, obtain or deliver.”

Gov. Kay Ivey signed the bill in March.

Civil rights groups, including the ACLU of Alabama and the Alabama State Conference of the NAACP, filed a lawsuit against the law , which included the state’s history of voter suppression. In May, the Attorney General’s office filed a request to dismiss the lawsuit.

“It is easy for a voter who is eligible to vote absentee to request an application, and the recent reforms ensure that the process is driven by voters, not unduly influenced by interested parties,” the attorneys in the request for the dismissal argued.

In Monday’s filing, the attorneys for the plaintiffs wrote that claims that the argument was a “shotgun pleading” was “baseless.”

“As an initial matter — and setting aside the tenor of Defendants’ characterization — Defendants’ shotgun pleading theory necessarily fails since their own briefing demonstrates that they understand Plaintiffs’ claims,” they wrote.

The attorneys also wrote that the defendants’ claim that Secretary of State Wes Allen is a proper defendant because he is the chief election official of the state. The Attorney General’s attorneys had argued that Allen lacked enforcement authority and the plaintiffs lacked standing to sue him.

The plaintiffs’ attorneys also wrote that their complaint “plausibly alleges” burdens to speech and association. They wrote the First Amendment protects absentee ballot activity because it is communication about voting; it is “expressive conduct” for a message about voting; and providing assistance is the plaintiffs’ chosen association.

“Because it criminalizes First Amendment protected activity, SB 1 is subject to strict scrutiny,” they wrote.

They also wrote that, if the plaintiffs’ allegations are true, it would fail strict scrutiny.

“Applying strict scrutiny, Defendants bear the burden of establishing that SB 1 is necessary to serve a compelling and narrowly tailored government interest,” they wrote. “Defendants cannot meet their burden.”

The plaintiffs also countered claims by the Attorney General’s office that the rules were not vague, writing that a “law is unconstitutionally vague if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited, or if it authorizes or encourages seriously discriminatory enforcement.”

They wrote that the law would fail on both counts, including that “‘third party’” is a “limitless term” that “could encompass anyone at all, from a grandmother giving her grandchild gas money, to the federally mandated assistance organization, to prison or nursing home staff.”

They also wrote that they sufficiently stated their claims under the First Amendment for overbreadth; section 208 of the Voting Rights Act; and the Help America Vote Act.

This story was updated to correct a misspelling in the headline.

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