Judge Rules Three Provisions of Alabama Voting Law Unconstitutional

(CN) — For Howard Porter, Jr., a Black man with asthma and Parkinson’s disease in his seventies, it is too much to vote in person at his polling location in Mobile County, Alabama where poll workers cannot enforce mask wearing during the pandemic.

“As important as the right to vote is, I just can’t endure that,” Porter testified during a trial held Sept. 8 to 18 in the U.S. District Court for Northern Alabama.

And in a ruling issued Wednesday, the judge overseeing that bench trial, Abdul Kallon, cited the testimony of Porter and the other plaintiffs in their suit challenging three provisions of Alabama voting law, which they say burdens their right to vote in a pandemic. 

“Their testimony speaks for itself,” Kallon, an Obama appointee, wrote.

The Hugo L. Black U.S. Courthouse in Birmingham, Alabama.

Kallon said while the state argued the provisions protect the integrity of the election and guards against voter fraud, they do so only marginally. 

Instead, the judge said, the provisions violate the Voting Rights Act and the Americans with Disabilities Act during the Covid-19 pandemic because they make voting inaccessible to medically vulnerable people. Furthermore, the witness requirement grew out of the state’s efforts to disenfranchise Black voters.

It’s a decision the Alabama Secretary of State and Attorney General said they plan to appeal — to the U.S. Supreme Court if need be, where in July Associate Justice Clarence Thomas stayed Kallon’s injunction in the suit.  

The provisions require Alabama voters casting ballots by mail include a copy of their photo ID when applying for a ballot and then have either a notary or two witnesses sign absentee ballot affidavits. The lawsuit also challenged a de facto ban on voters driving up to a polling location on Election Day and voting from their cars. 

“As applied during the COVID-19 pandemic, the Challenged Provisions unduly burden the fundamental Constitutional rights of Alabama’s most vulnerable voters and violate federal laws designed to protect America’s most marginalized citizens,” Kallon wrote in his 197-page decision.

The judge intended the order to be narrowly tailored at a time when the state has already begun collecting absentee ballots.

Kallon said he will enjoin the de facto ban in Alabama on curbside voting so that county election officials could offer the service if they so desire. He said he would also enjoin the witness requirement for voters “who provide a statement that they have an underlying medical condition that puts them at a heightened risk from COVID-19.”

And Kallon said part of the order would apply to the photo ID requirement: “for absentee voters over 65 or those under 65 who cannot safely obtain a copy of their photo ID during the COVID-19 pandemic due to an underlying medical condition, and, as required by the application, who provide other identifiers such as their driver’s license number and last four digits of their social security number.”

According to Kallon’s findings of fact and conclusions of law, Porter testified his sister and uncle are two of the more than 206,000 Americans who died from Covid-19. When Porter goes out to, say, a doctor’s appointment, he wears a mask, socially distances and then washes his clothes and showers when he returns home.

Porter, according Kallon’s decision, did not vote in Alabama’s July 14 primary runoff election because he never received an absentee ballot. And when he did vote in person, he parked in a disabled parking spot and walked with a cane 100 to 150 feet to enter the polling location.

That situation, Kallon said, may be enough for voters like Porter to have standing to challenge the de facto ban on curbside voting outside the pandemic, though the voters did not provide enough evidence at trial to prove their polling locations violated the Americans with Disabilities Act.

As for Porter, the resident of the state known for its history in the bitter struggle for civil rights, he testified his ancestors died in order to vote.

“While I don’t mind dying to vote, I think we’re past that — we’re past that time. Voting is the only day that rich, the poor, sick, the healthy, all should be counted as one and just as easy,” Porter said.

Attorneys with the American Civil Liberties Union, Alabama Disabilities Advocacy Program, NAACP Legal Defense and Educational Fund and the Southern Poverty Law Center helped bring the suit.

Caren Short, SPLC senior staff attorney said in a statement Kallon’s decision will bring about a “better public health situation” and provide “crucial relief” for voters seeking to vote by mail.

“We’re deeply hopeful that the secretary of state and county election officials will accept the court’s ruling and begin educating Alabama voters on how they can vote safely and easily for the general election,” Short said.

But in a statement, Secretary of State John Merrill expressed disappointment in the ruling, saying curbside voting can break the chain of custody for ballots, calling into question election integrity, and the absentee voting provisions are needed to stymie illegal election influence.

“We look forward to appealing this decision to the higher court as we continue fighting for safe and secure elections — free from voter fraud and judicial activism,” Merrill said.

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