Case 2:24-cv-00420-RDP Document 78 Filed 09/24/24 Page 1 of 12 FILED

2024 Sep-24 PM 09:02

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ALABAMA STATE CONFERENCE )

OF THE NAACP, et al., )
)
Plaintiffs, )
)
v. ) Case No. 2:24-cv-420-RDP
)
STEVE MARSHALL, in his official )
capacity as Attorney General of Alabama, )
)
Defendant. )

DEFENDANT’S MOTION TO STAY INJUNCTION PENDING APPEAL

Today, this Court enjoined Defendant Marshall from enforcing portions of Ala. Code §17-

11-4 (“SB1”), specifically subsections (c) (“Submission Provision”) and (d) (“Compensation Pro-

vision”), to the extent those provisions conflict with 52 U.S.C. §10508 (“§ 208”). See DE 76. De-

fendant has appealed that order, see DE 77, and now moves this Court to stay its injunction pending

appeal. Defendant requests that the Court rule on this motion as soon as possible, or, at the latest,

by Friday, September 27, 2024.

When Plaintiffs first asked the Court to preliminarily enjoin SB1 as being preempted by

§ 208, they argued that SB1 irreparably harmed “Plaintiffs’ members and constituents and many

other Alabamians” by severely burdening, if not “entirely” foreclosing, the “right to vote” of “sen-

ior, disabled, blind,” and “low literacy” voters. DE 34-1 at 41. The evidence Plaintiffs have prof-

fered since then paints nowhere near so dismal a picture. They have not proven that even one voter

whose § 208 right to choose an assistor is so seriously and immediately burdened by SB1 that the

“extraordinary and drastic remedy” of a preliminary injunction is warranted. DE 76 at 2. In con-

trast, the State’s and public’s interests in preventing voter fraud and confusion are significantly

undercut by this injunction. As this Court and others have recognized, and as Defendant’s evidence
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demonstrates, “voter fraud may be a problem” in Alabama. DE 69 at 42. SB1 installs com-

monsense protections for all of Alabama’s voters, including the vulnerable voters § 208 is meant

to protect, while ensuring that § 208 voters’ rights to receive necessary and trustworthy assistance

remain secure. Defendant respectfully requests that the Court stay its preliminary injunction while

the Eleventh Circuit considers this order on appeal.

*
When a court “grants … an injunction,” it may still “suspend” that injunction while “an

appeal” from its order “is pending.” Fed. R. Civ. P. 62(d); see also Fed. R. App. P. 8. The relevant

considerations are essentially the same as the four factors for a preliminary injunction, see Ala-

bama v. U.S. Sec’y of Educ., 2024 WL 3981994, at *3 (11th Cir. Aug. 22, 2024)—specifically,

“(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a

stay will substantially injure the other parties interested in the proceeding; and (4) where the public

interest lies.” Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309,

1313 (11th Cir. 2000) (cleaned up). However, “when the balance of equities … weighs heavily in

favor of granting the stay,” “the stay may be granted upon a lesser showing of a substantial case

on the merits.” League of Women Voters of Fla. V. Fla. Sec’y of State, 32 F.4th 1363, 1370 (11th

Cir. 2022) (quotations omitted). A stay is warranted for the reasons given in Defendant’s PI brief-

ing, incorporated here by reference, see Doc. 46 at 13-23, and for the reasons that follow.

* *
Defendant will likely win on appeal. Section 208 states that “any voter” who is disabled,

blind, or unable to read or write and who “requires assistance” may choose “a person” to help them

exercise their right to vote. 52 U.S.C. § 10508. Under either Defendant’s reading of § 208 or this

Court’s, Plaintiffs’ preemption claim should fail.

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First, the text of § 208 does not contain a “clear statement” that Congress intended to

“preempt state law” in an area “of traditional state responsibility.” Bond v. United States, 572 U.S.

844, 859 (2014); see also Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 599 (2011) (discuss-

ing the primacy of the text in the preemption inquiry); Kansas v. Garcia, 589 U.S. 191, 208 (2020)

(same); Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022) (same). At best, § 208’s text “is

ambiguous,” as this Court has repeatedly noted. DE 69 at 50, 51 n.12, 52 (“to be clear, it is” am-

biguous); DE 76 at 4. Defendant posits that a congressional intent “to rewrite dozens of state elec-

tions laws around the county” cannot be discerned from an ambiguous federal law. DNC v. Wis.

State Legislature, 141 S. Ct. 28, 35 (2020) (Kavanaugh, J., concurral); see also Altria Group, Inc.,

v. Good, 555 U.S. 70, 77 (2008).

Second, on this evidentiary record, Defendant will prevail under the three-prong frame-

work the Court articulated for examining Plaintiffs’ § 208 preemption claim. See DE 69 at 52-53.

Only the third prong is at issue—whether “SB 1’s provisions ‘unduly burden the right’” “to ‘as-

sistance by a person of the voter’s choice.’” Id. at 53, 55 (quoting S. Rep. No. 97-417, at 63 (1982)

and 52 U.S.C. § 10508). Plaintiffs’ evidence does not identify any disabled voter whose § 208

right is “unduly burdened” under SB1.

Declarants Louis Courie and Terry McKee, two homebound voters with disabilities,

“strongly prefer” voting assistance from their neighbor of “nearly 25 years,” a member of the

League of Women Voters. DE 74-1 ¶¶ 5-6 (Courie Decl.); DE 74-2 ¶¶ 5-6 (McKee Decl.) (same).1

Their neighbor has been “gifted pens and t-shirts by the League.” DE 74-1 ¶¶ 6-7. Another declar-

ant, Lauren Faraino, “would choose to ask for assistance from [her] mother” but fears her mother

1
The declarations by Courie and McKee are identical except for paragraph 3, where the voters’
disabilities are described, and paragraph 8, where the witnesses name the other declarant. Unless
otherwise specified, citations to Courie’s declaration (74-1) refer to both witnesses’ testimony.

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would face prosecution for helping. DE 74-3 ¶ 6. Still, there is no indication that the neighbor or

the mother have been paid to act upon the declarants’ absentee ballot applications or that their

assistance can only be induced through compensation. In other words, under SB1, these § 208

voters are free to choose the assistors they prefer.

The fourth declarant, Eric Peebles, “would prefer to choose ADAP” to help him vote ab-

sentee. DE 74-4 ¶ 8. Four years ago, ADAP sent him a link to the absentee ballot application and

in some unspecified way “assisted” him in completing it. Id. ¶ 5. Because of his disability, Mr. Pee-

bles requires assistance with the physical steps necessary to mail the application, which his “assis-

tants—not ADAP—have helped [him] to do” “[i]n the past.” Id. ¶ 6. Because the only assistance

from ADAP consisted of sending a link to an application, it is entirely unclear whether SB 1 pro-

hibits the person of Mr. Peebles’s choice from helping him vote absentee.

Finally, Nicole Watkins, an employee of Plaintiff ADAP, declares that to date this year she

has told “at least 30 people with disabilities that [she] could not help them” “with the absentee

voting process.” Doc. 74-5. Nowhere does she say what kind of assistance was requested (i.e.

whether it was likely prohibited by SB1), why she thinks these people needed help, or whether she

would have been these voter’s assistor of choice were it not for SB1.

The Supremacy Clause “provides a rule of decision for determining whether federal or

state law applies in a particular situation.” Kansas v. Garcia, 589 U.S. 191, 202 (2020). Thus, any

preemption analysis must be conducted “under the circumstances of th[e] particular case.” Geier

v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000). Based on the evidence presented, SB1 “would

affect so few” assistors preferred by § 208 voters “that its rule of law” does “not create a legal

‘obstacle’ to” § 208’s objective. Geier, 529 U.S. at 885. SB1 erects no barrier for § 208 voters to

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receive necessary assistance from spouses, family members, caregivers, neighbors, and volun-

teers—the people voters actually choose to help them. For example, each of Plaintiffs’ declarants

have ready and willing assistors, such as personal caregivers, who are not compensated for distrib-

uting, collecting, or completing “a voter’s absentee ballot application.” Ala. Code §17-11-4(d);

DE 74-1 ¶ 8; DE 74-2 ¶ 8; DE 74-3 ¶ 62; DE 74-4 ¶ 3. SB1 stands as no obstacle to their right to

choose a trustworthy assistor. And as to the Submission Provision, any “voter who requires assis-

tance” with submission can receive it. See Ala. Code § 17-11-4(e).

By contrast, SB1 does stand as an obstacle to the paid ballot harvester, like the one lurking

about the 2016 mayoral election in the small city of Brundidge, Alabama. DE 73-3 ¶ 7 (Scarbrough

Decl.). Likewise, SB1 impedes the paid agent who goes “door-to-door handing out [absentee bal-

lot] applications and instructing voters to contact them when their ballot arrive[s].” DE 73-2 ¶ 15.

It removes monetary incentives for “working the absentees,” a way of controlling the votes of

lower-income voters. Id. ¶¶ 21-22. It prevents paid third parties from hijacking the mail-in voting

system and producing inexplicably high rates of absentee voting. Cf. DE 73-4 ¶ 13. And it protects

the right to vote of less educated voters in rural counties who struggle to read or write or may “not

understand the process” for absentee voting but “always” make their voices heard on Election Day

“at the polls.” DE 74-1 ¶ 22. The removal of this obstacle to fraudulent conduct is no “minimal”

thing. DE 76 at 7.

Yet this Court found it “obvious” that “Section 208 voters in Alabama would be deprived

of the assistors of their choice due to” SB 1’s Compensation Provision. DE 76 at 11. But this find-

ing does not follow either from the evidentiary record or “common sense.” DE 76 at 9. If SB 1

prohibited only serial fraudsters from assisting voters with the absentee voting process, it would

2
Ms. Faraino does not require a caregiver due to her “proximity to [her] mother.”

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not be “obvious” that § 208 voters’ rights to receive assistance were “unduly burdened.” Indeed,

one cannot know whether the burden is “undue” without determining what valid goals the burden

advances and what alternative forms of assistance remain available to exercise the § 208 right.

These are fact-bound questions. Cf. June Med. Servs. L. L. C. v. Russo, 591 U.S. 299, 321-22

(2020) (“consider[ing] evidence in the record” to determine if a law constitutes an “undue bur-

den”). Here, the burdens are minimal. The Court accepted that “Section 208 voters perhaps can

choose people not within the scope of SB 1 to assist them.” DE 76 at 13 n.1. The fact that “[a]lter-

natives are available” clearly supports “[t]he conclusion that the Act does not impose an undue

burden.” Gonzales v. Carhart, 550 U.S. 124, 164 (2007). Indeed, anyone can assist a § 208 voter,

just not in exchange for cash or gifts. Thus, even if the § 208 voter has a right to choose a particular

assistor, § 208 doesn’t give the assistor a right to get paid for that assistance. Ultimately, Plaintiffs

have not come close to showing that the potentially millions of unpaid assistors who live in Ala-

bama are somehow so inadequate that SB 1 imposes “a substantial obstacle to the [§ 208] right.”

Id. at 165. Meanwhile, SB1’s goals are firmly grounded in Alabama’s “legitimate right … to es-

tablish necessary election procedures … designed to protect the rights of voters.” S. Rep. 97-417

at 63, see also Purcell v. Gonzales, 549 U.S. 1, 4 (2006) (per curiam). With Section 208, Congress

intended to compliment such laws, not preempt them.

* *

Absent a stay, Defendant and the people of Alabama will be irreparably harmed. As a State

official, Defendant Marshall’s “interest and harm merge with the public interest.” Swain v. Junior,

958 F.3d 1081, 1091 (11th Cir. 2020). The “inability to enforce” a “duly enacted” state law “clearly

inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018); see also

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J.,

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in chambers) (“[A]ny time a State is enjoined by a court form effectuating statutes enacted by

representatives of the people, it suffers a form of irreparable injury.”). Further, the injunction is

adverse to compelling public interests advanced by SB1—first and foremost, “preventing voter

fraud,” intimidation, and manipulation targeting Alabama’s most vulnerable.

The public suffers when pernicious actors are permitted to target those in the electorate

most susceptible to intimidation and manipulation. This harm is exacerbated in the context of ab-

sentee voting, where an assistor taking payment to handle a disabled voter’s absentee ballot appli-

cation may “work the absentee” in seclusion and secrecy. DE 73-2 ¶16. A disabled voter requiring

assistance may be unable to speak or “physically mark” paperwork. Id. ¶ 11. The public interest is

in protecting that vulnerable voter by taking steps to ensure that people with an ulterior motive

(e.g., money), are not handling the voter’s “absentee ballot application.” Ala. Code § 17-11-

4(d)(1)-(2).

There is a long history of ballot brokers targeting absentee voting—“a source of fraud and

voter manipulation in Alabama.” DE 73-1 ¶ 5 (Biggs Decl.); see also DE 42 at 7-9 (collecting

examples of fraud convictions and successful elections contests). Houston County Circuit Clerk

Carla Woodall has witnessed numerous instances of fraud, manipulation, or otherwise troubling

behavior infecting the absentee voting process in Dothan, Alabama. DE 73-2 ¶¶ 13-16, 21-22. The

same goes for Pike County Circuit Clerk Jamie Scarbrough in Troy, Alabama. DE 73-3 ¶¶6-9.

Between October 1995 and April 2001, former Alabama Assistant Attorney General Gregory

Biggs successfully prosecuted voter fraud cases in Wilcox, Greene, Hale, and Winston Counties,

all of which involved absentee ballots. DE 73-1 ¶ 3. In his experience, high absentee voting per-

centages are a marker of fraud. Id. ¶ 6.

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Data for the elections immediately preceding the Legislature’s enactment of SB1 contain

such markers. In the 2024 Primary Election, 1.91% of the total ballots cast in Alabama were ab-

sentee. DE 74-4 (Elrod Decl.) ¶ 8. However, absentee ballots accounted for 8.39% of total ballots

in Wilcox County, 8.88% in Marengo County, 9.21% in Bullock County, and a whopping 21.22%

in Perry County. Id. These abnormally high and inherently suspicious rates cannot be easily ex-

plained by a disproportionate number of disabled persons residing in these counties.3 For instance,

Bullock County’s disability rate of 11.2% is substantially lower than the 16.9% disability rate for

Alabama’s total population. DE 75-1 at 6.

The counties with abnormally high absentee voting percentages also show abnormally

skewed absentee results by party. For example, in Bullock County, in-person voting favored the

Democratic over the Republican ticket by a 5.8 to 1 margin, while absentee ballots broke for Dem-

ocrats at a ratio of 27 to 1. In Perry County, where the share of absentee voting was ten-fold higher

than in the state as a whole, in-person voting reflected a 4.4 to 1 advantage for Democrats, while

absentee ballots broke for Democrats at a staggering rate of 95 to 1. ¶ 13.4

As Defendant’s evidence shows, Alabama’s elections will be less secure and the voting

rights of the State’s most vulnerable voters less protected if SB1’s injunction remains in place. To

be sure, the Court held that the “injunction does not in any way prevent Alabama from prosecuting

voter fraud when it occurs.” DE 76 at 12. But voter fraud was already illegal when the Legislature

3
In Wilcox, Marengo, and Perry counties, U.S. Census Bureau data reports the following dis-
ability rates, respectively: 21.2%, 22.6%, and 25.2%. DE 73-10 at 6 (Wilcox); DE 73-11 at 6 (Ma-
rengo); DE 73-9 at 6 (Perry). That the percentage of disabled persons in Wilcox County, for ex-
ample, is about 1.25 times greater than the statewide average does not explain why the percentage
of absentee ballots cast in Wilcox County is 4.4 times greater than the statewide average.
4
For comparison, the 2022 General Election results in Pickens County showed that the Dem-
ocrat-to-Republican ratio for in-person votes was 1 to 1.4, while the same ratio for absentee ballots
was 1:1. Id. ¶ 1. In Dale County for the same election, the Democrat-to-Republican ratio for in-
person votes was 1 to 4, compared to a 1 to 3.5 for absentee ballots. Id.

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determined, based on the historical record, that proactive and preventative measures were also

needed. Likewise, “bribery laws and narrowly drawn disclosure requirements” were available to

“deal[] with proven and suspected quid pro quo arrangements” with public officials, yet the Su-

preme Court upheld campaign contribution limits under a “rigorous standard of review.” Buckley

v. Valeo, 424 U.S. 1, 27, 29 (1976). The Court recognized that “laws making criminal the giving

and taking of bribes deal with only the most blatant and specific attempts of those with money to

influence governmental action,” and so an additional, prophylactic protection was justified. Id. at

27-28. The same is true of SB 1. Whatever burdens it imposes on the § 208 right are not “undue”—

certainly not based on this preliminary record. Thus, the irreparable harms enjoining SB 1 will

impose on the public weigh strongly in favor of a stay pending appeal.

By contrast, Plaintiffs will suffer little to no injury under the status quo; indeed, they have

not shown that they are suffering irreparable harm now. At the moment, Plaintiffs can educate

voters about the absentee election process, and disabled voters have ample time to secure whatever

assistance they may require to vote in November. Plaintiffs have not proven that anyone will face

the “denial of an opportunity to cast a vote that a person may otherwise be entitled to cast.” DE 76

at 6 (quoting Gonzalez v. Kemp, 470 F. Supp. 3d 1343, 1351 (N.D. Ga. 2020)); cf. Wesberry v.

Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country ….”). Plaintiffs’ own

evidence suggests that no disabled voter is “suffering serious harm or facing imminent injury.”

Siegel v. LePore, 234 F.3d 1163, 1177 (11th Cir. 2000). Every declarant with a disability has

someone nearby, such as a neighbor, mother, or caregiver, who can help them navigate the absen-

tee voting process. The relative ease with which disabled voters can apply to vote absentee is

corroborated by the absentee election managers’ declarations. Voters residing in assisted living or

nursing home facilities commonly receive voting assistance from nurses, staff, and other residents.

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DE 73-2 ¶¶17-18; DE 73-3 ¶¶14. Others receive help from a family member, friend, caregiver, or

volunteer at a regional Area Agencies on Agency like SARCOA. DE 73-2 ¶¶9, 11, 19, DE 73-3

¶¶13-14, 16. Of course, every county’s absentee election manager and his or her staff are always

available and willing to assist with the absentee voting process. DE 73-2 ¶¶20-21; DE 73-3 ¶¶11-

12.5

In sum, the compelling interests advanced and protections afforded by SB1 are substantial,

while the “injuries” SB1 allegedly would inflict on Plaintiffs and § 208 voters remain unsubstan-

tiated.

Finally, this Court should have held an evidentiary hearing. Credibility issues and disputes

of material fact abound. For example, declarant Nicole Watkins states that she has told “at least 30

people with disabilities that [she] could not help them” “with the absentee voting process.”

Doc. 74-5. Are we to understand from this testimony that but for SB1, she would be these 30

callers’ assistor of choice? What questions did the callers ask, or did Ms. Watkins end the calls as

soon as she heard the phrase, “help with the absentee voting process”? Id. How does Ms. Watkins

know that these callers needed assistance? The Court held that it could “fully and properly analyze

whether SB 1’s procedure denies ‘assistance at some stages of the voting process during which

assistance was needed.’” DE 76 at 11 (quoting S. Rep. 97-417 at 63). But a factual finding is nec-

essary to determine whether “assistance was needed.” Similarly, whether necessary assistance

could be obtained by someone other than a paid operative without imposing an undue burden on

5
Also, Jeff Elrod, Election Manager for the Secretary of State, appends to his declaration the
short, simple, online form a person can submit to receive an absentee ballot application. DE 73-4
at 71 (Elrod Ex. P). As of September 11, 2024, the Secretary of State’s Office had fulfilled over
17,000 requests for absentee ballot applications.

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the voter’s § 208 rights is a question of fact. In short, the Court appeared to “accept one construc-

tion of the evidence and reject the other without the benefit of an evidentiary hearing.” CBS Broad.,

Inc. v. EchoStar Commc’ns Corp., 265 F.3d 1193, 1207 (11th Cir. 2001). The Court “was not at

liberty to make such a credibility determination or inferential leap on this contested issue without

the benefit of an evidentiary hearing.” Id. Thus, at the least, this Court should stay its injunction

while the Eleventh Circuit considers whether to remand the case for an evidentiary hearing.

* * *

This Court should grant Defendant’s motion.

Respectfully submitted,
Steve Marshall
Attorney General
s/ Edmund G. LaCour Jr.
Edmund G. LaCour Jr. (ASB-9182-U81L)
Solicitor General
James W. Davis (ASB-4063-I58J)
Deputy Attorney General
Soren Geiger (ASB-0336-T31L)
Dylan Mauldin (ASB-3281-Z11M)
Assistant Solicitors General
Brenton M. Smith (ASB-1656-X27Q)
Charles A. McKay (ASB-7256-K18K)
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Fax: (334) 353-8400
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for Defendant

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CERTIFICATE OF SERVICE
I certify that on September 24, 2024, I electronically filed the foregoing notice with the

Clerk of the Court using the CM/ECF system, which will send notice to all counsel of record.

s/ Edmund G. LaCour Jr.

Counsel for Defendant

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