(CN) — In a 106-page decision published Wednesday, a panel of 11th Circuit judges dismissed a constitutional challenge to Alabama’s mail-in voter registration form, but 60 pages were reserved for the partial dissent of one judge who argued the precedent supporting the decision was flawed.
The underlying class action was filed by a nonprofit organization in 2016, claiming language on the state’s mail-in voter registration forms was discriminatory because it blocked from voting anyone convicted of a “crime of moral turpitude.” At times, the state has attempted to further define the phrase to include convictions for specific violent crimes, thefts, human trafficking and crimes against children, but it remained open to interpretation.
The majority opinion, written by Senior U.S. Circuit Judge Gerald Bard Tjoflat, who was appointed to the court by Gerald Ford in 1975, recognizes that the 1901 Alabama Constitution was “intentionally enacted to discriminate against and disenfranchise Black Alabamians.” But it also acknowledges the language leading to the “moral turpitude” clause ultimately adopted by the Legislature in 2017 received the support of 76% of voters on a constitutional amendment in the 1996 primary election and was subsequently granted preclearance from the U.S. Department of Justice.
In 2020, a federal judge in the Middle District of Alabama granted summary judgment on behalf of the state, but Greater Birmingham Ministries appealed three substantive claims, including whether the constitutional amendment eliminates the “taint of discriminatory intent” behind previous versions of the law, whether it violates the ex post facto clause of the U.S. Constitution and whether the form violates the National Voting Rights Act, or NVRA.
Tjoflat wrote that Alabama’s law does not violate equal protection clauses of the U.S. Constitution because it was drafted, debated and passed in a deliberate process absent a discriminatory intent.
“While Alabama once used the moral turpitude standard as part of a racially discriminatory disenfranchisement scheme, it is not forever barred from disenfranchising individuals convicted of felonies involving moral turpitude,” he wrote, adding the new law amounted to a “substantial change” from the previous discriminatory version.
Tjoflat noted the ex post facto clause — which prohibits retroactively criminalizing certain behavior — does not apply because the Legislature intended it ”to be a nonpenal regulation of the franchise.” In other words, it’s an administrative statute rather than a criminal statute and thus is not punitive in nature.
Finally, Tjoflat dismissed the nonprofit's claims the registration form violated the NVRA because it fails to list each and every disqualifying crime of moral turpitude.
“Assuming Alabama could even identify every such felony, the resulting registration form would be of monstrous size,” he wrote. “Appellants may as well ask Alabama to attach a copy of each state, federal, and foreign criminal code to its voting form. And any time any state, federal, or foreign government amended their criminal code, Alabama would have to update its list of disqualifying felonies and print anew its prodigious voter registration forms.”
The judge concluded, “Alabama’s mail-in voting form has provided sufficient notice by informing registrants that persons convicted of disqualifying felonies are not eligible to vote and providing an easily accessible link whereby voters convicted of felonies can determine their voter eligibility.”
Tjoflat was joined in the majority by U.S. District Judge James S. Moody Jr., a Bill Clinton appointee sitting by designation from the Middle District of Florida.
In her lengthy dissent, U.S. Circuit Judge Robin S. Rosenbaum, another Obama appointee, said it is bizarre the state does not disqualify voters convicted of election-related crimes, bribery of public servants or perjury. She noted the amendment was passed without any clear intent but rather was described by one lawmaker as “strictly housekeeping.” Yet the appellate court’s hands are tied when reviewing the facts of the case, as it must simply determine whether the law was lawfully passed.
“Indeed, when, as here, the amended law does nothing to advance its stated purpose, it cannot cleanse the taint of its discriminatory origins,” Rosenbaum wrote. “For that reason, if I were not bound by our precedent, I would hold that Alabama’s felon-disenfranchisement provision violates the equal protection clause. But since I am bound, I cannot and must instead conclude that, under our case law, the provision does not violate the equal protection clause.”
Rosenbaum said the law does indeed violate the ex post facto clause and the NVRA.
“The ex post facto clause prevents governments from imposing new criminal sanctions on conduct that has already occurred,” she noted, adding, “The majority opinion concludes that losing the ability to vote is more like occupational disbarment than imprisonment.”
Instead, Rosenbaum wrote, “voting is a fundamental right” and “losing the right to vote constitutes an affirmative disability or restraint.”
Finally, the registration form does violate the NVRA because it is intentionally vague, she said.
“The form is problematic both because not everyone has access to the internet but also because a website link can’t possibly be said to ‘state explicitly in detail’ the disqualifying felonies,” Rosenbaum concluded. “And it doesn’t take much imagination to conclude that the form’s overly general description of who can’t vote discourages some who are eligible to vote from voting because, unsure of their eligibility based on the form’s instructions, they do not want to take the chance of violating the law.”
Alabama Secretary of State Wes Allen, a Republican who began his first term of office in January, did not immediately respond to a request for comment.
According to a 2022 study by The Sentencing Project, Alabama is one of just three states where more than 8% of adults have been disenfranchised at the ballot box, where disenfranchisement affects more than one in 10 African American adults and a total of 318,681 individuals.
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