Ward v. Alabama

31 F. Supp. 2d 968, 1998 U.S. Dist. LEXIS 20022, 1998 WL 930968

• Court: District Court, M.D. Alabama
• Decided: December 17, 1998
• Docket: Civ.A. 98-D-1156-N, Civ.A. 98-T-1181-N
• Status: Published

Opinions

MEMORANDUM OPINION

CARNES, Circuit Judge.

This is a section 5 preclearance case, see 42 U.S.C. § 1973c, involving a 1996 amendment to Alabama’s absentee voting laws. The provision in question, which is contained in section 3 of Act No. 96-885, now codified as Ala.Code § 17-10-5(a) (Michie Supp.1997), changed the law so that absentee ballots could no longer be mailed to the address where a voter regularly receives mail, if it is different from the voter’s residence address.

After conducting a hearing, on October 21, 1998, we issued an order holding that, contrary to the contentions of Alabama officials, this particular change in the state’s voting laws had not been precleared by the Attorney General of the United States. We also held that as a result, the change could not be implemented until precleared by the Attorney General or by the United States District Court for the District of Columbia, as provided in 42 U.S.C. § 1973c. We issue this opinion to explain the basis for our prior order.

I. BACKGROUND AND PROCEDURAL HISTORY

Following a heightened degree of public concern about absentee voting fraud arising out of the elections of 1994, the Alabama Legislature passed Act No. 96-885, which was signed into law by the Governor on August 2, 1996. The Act revised the procedures for absentee voting in a number of ways. Only one of the revisions is at issue in this proceeding, and that is the one which amended Ala.Code § 17-10-5. Prior to its amendment, under that code section delivery of an absentee ballot could be made “by (1) forwarding it by United States mail to the applicant’s or voter’s residence address or the address where the voter regularly receives mail or (2) by handing the absentee ballot to the voter or, in the case of emergency voting, his or her designee in person” (emphasis added). Section 3 of the Act deleted the underscored words. The result of eliminating the alternative of delivery to “the address where the voter regularly receives mail” is to prevent those who receive their mail at some address other than their residence from receiving absentee ballots by mail.

As the Attorney General of Alabama subsequently noted in a June 19, 1997, advisory opinion discussing the amendment, the Act would not affect the delivery of absentee ballots to military personnel or their spouses or dependents.¹ They could continue to receive absentee ballots at their active duty addresses or their residence addresses. But other voters would be affected by the provision. For example, as the Alabama Attorney General advised, a college student who had not affirmatively established her college residence as her new address and changed her voter registration could no longer have election officials mail an absentee ballot to her at college.

This change in the law would have had a significant impact on a substantial number of Alabamians, many of them residents of smaller rural communities across the State. In approximately 373 locations in the State of Alabama, the United States Postal Service will not deliver mail directly to homes. Residents of these communities must retrieve their mail from the post office, receiving it either General Delivery or in a rented post office box.² Because they cannot receive mail at their “residence address,” voters in these communities would no longer receive absentee ballots by mail.

On August 5, 1996, the State submitted Act No. 98-885 to the Attorney General of the United States for preclearance pursuant to § 5 of the Voting Rights Act of 1965, 42 U.S.C.A. § 1973c.³ In its five-page submission letter, the State provided eommendably detailed descriptions of amendments made by the Act to Ala.Code §§ 17-10-3 and 17-10-7. Significantly, however, the submission letter made no mention at all of § 17-10-5, nor did it indicate any desire to have any amendment to that section precleared. The submission letter did refer to an enclosed “redlined” copy of the Act, with deletions from the former language of the statute indicated by struek-through text and additions marked by underlined text. A copy of the pre-amendment legislation was also included, as were a number of newspaper articles discussing the Act.

On October 7, 1996, the Department of Justice requested further information from the State. The request included queries about provisions other than the two sections specifically referred to in the State’s submission letter, but not about any change to § 17-10-5. The Justice Department’s letter included a request for “a discussion of whether the proposed changes are expected to reduce the number of persons casting absentee ballots in any Alabama county.” On December 5, 1996, the State provided a lengthy response, which noted that absentee voters “may still apply for and cast an absentee ballot by mail or at the absentee election manager’s office, as now provided by law.” The State’s response did not refer to or discuss the amendment to § 17-10-5, which restricted the delivery of absentee ballots by mail.

With the additional information in hand, the Department of Justice issued a letter on February 4, 1997, preclearing the “specified changes,” along with further additional changes that had been noted by the Attorney General in the course of reviewing the State’s submission.⁴ None of the changes mentioned in the preelearance letter involved any part of § 17-10-5(a).

The plaintiffs in these actions claim that the State failed to obtain preclearance for the Act’s amendment of the absentee ballot mail delivery provision, now § 17-10-5(a). The plaintiffs in the first case, Ward v. State of Alabama, civil action no. 98-D-1156-N, are five residents of Five Points, Alabama, suing for themselves and on behalf of other registered voters in the State of Alabama who lack residential mail service.⁵ The Attorney General, on behalf of the United States, is the plaintiff in the second action, United States v. State of Alabama, civil action no. 98-T-1181-N. This three-judge district court panel was convened to hear the consolidated actions. See 42 U.S.C.A. §§ 1973c, j(d); Allen v. State Board of Elections, 393 U.S. 544, 555-58, 89 S.Ct. 817, 826-27, 22 L.Ed.2d 1 (1969).

II. DISCUSSION

A.

Under § 5 of the Voting Rights Act of 1965, the State of Alabama must submit for the approval of the federal government “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force and effect on November 1, 1964.” See 42 U.S.C.A. § 1973c. The State may pre-clear a voting change in one of two ways. It may obtain a declaratory judgment in the United States District Court for the District of Columbia, or it may submit the change to the Attorney General for approval. If the Attorney General approves the change, or fails to register an objection to the change within 60 days, the change is precleared.⁶ See id. “No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance.” Lopez v. Monterey County, 519 U.S. 9, 117 S.Ct. 340, 347, 136 L.Ed.2d 273 (1996).

Both the Attorney General and private litigants may ensure a State’s compliance with the preelearance provisions of the Voting Rights Act by bringing an enforcement action before a three-judge district court panel. See 42 U.S.C.A. § 1973c, j(d); Allen, 393 U.S. at 555-58, 89 S.Ct. at 826-27. Because Congress has reserved for consideration by the Attorney General or the District Court for the District of Columbia the duty to determine whether a change covered by the Voting Rights Act has the purpose or effect of “denying or abridging the right to vote on account of race or color,” see 42 U.S.C.A. § 1973c, our own inquiry is necessarily a limited one. See Allen, 393 U.S. at 555-56, 89 S.Ct. at 826; Perkins v. Matthews, 400 U.S. 379, 383-85, 91 S.Ct. 431, 434-35, 27 L.Ed.2d 476 (1971). We do not inquire into the discriminatory purpose or effect of a change. We ask only “(I) whether a change was covered by § 5, (ii) if the change was covered, whether § 5’s approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy [is] appropriate.” See City of Lockhart v. United States, 460 U.S. 125, 129 n. 3, 103 S.Ct. 998, 1001 n. 3, 74 L.Ed.2d 863 (1983). Here, there is no dispute that the amendment to § 17-10-5 is a covered change under the Voting Rights Act of 1965; the State concedes it is. Nor is there any dispute as to the proper remedy absent preclearance. Instead, the only dispute is about whether the Attorney General precleared the change.

B.

The State of Alabama contends that it obtained preclearance of Act No. 96-885, in-eluding the change in the absentee ballot mailing provision at issue here, when the Attorney General issued her letter of February 4, 1997, declining to interpose any objection to the “specified changes.” We disagree.

It has long been the law that in order to successfully obtain preclearance of a voting change from the Attorney General, the State submitting the change must “in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the [Voting Rights] Act.” See Allen, 393 U.S. at 571, 89 S.Ct. at 834-35 (emphasis added). The State must clearly identify the changes it is submitting for preclearance by the Attorney General. This requirement helps ease the burden on the Attorney General, who each year must carefully review thousands of electoral changes. See Clark v. Roemer, 500 U.S. 646, 658-59, 111 S.Ct. 2096, 2104, 114 L.Ed.2d 691 (1991). The requirement of clear identification also recognizes that a State may decide to leave some part of a statute affecting voting unenforced, whether due to an independent determination that the provision violates the Voting Rights Act, a conclusion that it conflicts with other state law, or for some other rea-, son. See, e.g., McCain v. Lybrand, 465 U.S. 236, 256 n. 28, 104 S.Ct. 1037, 1049 n. 28, 79 L.Ed.2d 271 (1984) (“There is an analytical distinction between two questions: whether a particular electoral provision was subject to § 5 preelearance, and whether it was actually submitted for preclearance on a particular occasion. Even though a number of the elements of an electoral scheme are subject to preclearance and should be submitted, only some of those features may actually be submitted for review.”). Without an unambiguous identification of the changes being submitted for preclearance, the Attorney General would have no clear idea of what she was being asked to do.

Because the burden is on the State to submit an “unambiguous description of proposed changes,” see Young v. Fordice, 520 U.S. 273, -, 117 S.Ct. 1228, 1237, 137 L.Ed.2d 448 (1997) (summarizing McCain), courts apply a “presumption that ‘any ambiguity in the scope of the preclearance request’ must be construed against the submitting jurisdiction.” Clark, 500 U.S. at 659, 111 S.Ct. at 2105 (quoting McCain, 465 U.S. at 257, 104 S.Ct. at 1050). That presumption is determinative in this case, because the State’s submission did not unambiguously identify the change in § 17-10-5 as one being submitted.

The State makes three principal points in favor of its assertion that the change in § 17-10-5 was precleared by the Attorney General. First, it argues that the redlined version of the Act, which formed part of its initial submission to the Attorney General on August 5, 1996, made all changes “readily apparent on the face of the documents provided,” see 28 C.F.R. § 51.27(c), and so the amendment to § 17-10-5 need not have been called to the attention of the Attorney General any more specifically.⁷

It is true that the change in the language of the absentee ballot mailing provision is apparent from an examination of the version of the Act submitted by the State of Alabama, which reflected all changes to existing code provisions with underlines or strike-throughs. Had the State clearly stated in its submission letter that all changes indicated on the face of the enclosed redlined version of the Act should be treated as voting changes submitted for preclearance by the Attorney General, that might satisfy the requirement that the proposed changes be clearly identified. We need not reach that question here, however, because the State’s submission letter said nothing of the kind. The submission letter simply stated that “[a] copy of Act No. 96-885 is enclosed.”⁸ It then proceeded to discuss, in some detail, specific changes to the State’s absentee voting procedures, but did not mention the change at issue before us.⁹

A well-established canon of statutory construction provides that the inclusion of one implies the exclusion of others. See, e.g., O'Melveny & Myers v. Federal Deposit Insurance Corp., 512 U.S. 79, 86, 114 S.Ct. 2048, 2054, 129 L.Ed.2d 67 (1994) (“Inclusio unius, exclusio alterius .”); United States v. Koonce, 991 F.2d 693, 698 (11th Cir.1993) (“The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established.”). That “canon is frequently cited and employed because in many circumstances it makes good sense.” 991 F.2d at 698. The canon also makes good sense in construing submission requests such as the one before us. By specifying that certain changes were submitted for preelearance, the State’s submission letter implied that other changes were not. At a minimum, it created an ambiguity, and ambiguities must be resolved against the submitting authority. See Clark, 500 U.S. at 659, 111 S.Ct. at 2105 (quoting McCain, 465 U.S. at 257, 104 S.Ct. at 1050). The State also failed to discuss the amendment to § 17-10-5 in its clarifying letter of December 5, 1996, which went into further detail about the background of the Act and the effect of its revisions. That failure only deepened the ambiguity.

Nor can we conclude that the changes to § 17-10-5 are “readily apparent on the face of the document[ ]” in this case, see 28 C.F.R. § 51.27(c), given the inconsistency between the numerous changes indicated by the red-lined version of the Act and the limited number of changes specified in the State’s submission letter. As we stated earlier, a distinction must be drawn between electoral provisions that are subject to preclearance, and those that are actually submitted for preclearanee. See McCain, 465 U.S. at 256 n. 28, 104 S.Ct. at 1049 n. 28.

The State’s second argument, closely related to its first, fails on the same grounds. The State contends that the amendment to the absentee ballot delivery provision was specifically identified in the voluminous exhibits provided by the State in support of its submission.¹⁰ Those exhibits included several hundred pages of newspaper and magazine articles, transcripts of testimony, and other materials discussing the mischief addressed by the Act, as well as the passage of the Act itself. A newspaper article in the exhibits does note that one effect of the 1996 amendments is to “[r]equire[ ] that absentee ballots be sent to the residence of the applicant.” The problem with the State’s contention is that the voluminous exhibits it submitted discuss numerous voting changes effected by the Act, some of which were identified in the submission letter itself and some of which were not. Nowhere in the submission letter, however, did the State refer to specific exhibits as expanding the list of changes it was submitting for preclearanee. Thus the exhibits did nothing to clarify the ambiguity in the submission documents.

The State notes that in 1994, when it sought preclearance for an earlier set of revisions of Alabama election laws, it referred to secondary materials to indicate to the Attorney General the specific changes it was submitting for preclearance, and the Department of Justice has never suggested those changes were not precleared.¹¹ But in that case, the State’s submission letter stated: “An excellent and informative description of Act No. 94-320 and the changes it makes in the current absentee voting laws is found on page 2 of the May 1994 newsletter of the Alabama Secretary of State’s office. This newsletter is submitted as Exhibit C and as an explanation of Act No. 94-320 and the changes in voting made by that Act.” The specifically referenced newsletter was an official document, in contrast to the newspaper article in this case. More importantly, the newspaper article in this case was not brought to the attention of the Attorney General with anything approaching the same degree of explicitness as was the newsletter in the 1994 submission letter. In the absence of a more specific incorporation by reference of this secondary material into the State’s submission letter, the ambiguity remains.

Finally, the State points to the fact that the Department of Justice raised questions on its own about other aspects of the Act in its October 7, 1996, letter. It argues that “[i]f there was something the Department wanted but did not get, the State had no idea what it was before the Department stopped asking questions.”¹² But the burden of persuasion rests with the State, see McCain, 465 U.S. at 257, 104 S.Ct. at 1050, as does the burden of submitting an “unambiguous description of proposed changes,” see Young, 520 U.S. at-, 117 S.Ct. 1228, 1237, 137 L.Ed.2d 448 (1997) (summarizing McCain), and that burden was not shifted in this case with respect to § 17-10-5(a) merely because the Attorney General raised questions about other provisions.

We therefore conclude that the State has not yet fulfilled its obligation to obtain pre-clearance of the change in the State of Alabama’s absentee ballot delivery laws effected by Act No. 96-885 and codified at Ala.Code § 17-10-5(a).

We do feel it only fair to note that no one questions the good faith of the state officials involved in the submission at issue in this case. Neither the Department of Justice, the attorneys representing the private plaintiffs, nor any member of this Court believes that those officials attempted to slip something by the Attorney General. All the evidence indicates the ambiguity in the submission request was unintentional. The standard we apply, however, is an objective one, and under that standard we are required to resolve even unintentional ambiguities against preclearance.

C.

We end our discussion of the merits of this case with a reply to Part I of Judge Thompson’s separate concurring opinion, which we find a bit puzzling.¹³ That part of his concurring opinion takes issue with one sentence of this opinion, the sentence in which we state: “Had the State clearly stated in its submission letter that all changes indicated on the face of the enclosed redlined version of the Act should be treated as voting changes submitted for preclearance by the Attorney General, that might satisfy the requirement that the proposed changes be clearly identified.” Supra at 972-973. The reason we are somewhat puzzled by Judge Thompson’s concurring opinion is that when it gets down to the nitty gritty of actually taking a position on the matter, the position it takes is not materially different from the one it criticizes us for taking.

We say that clearly identifying the changes indicated in a redlined version of the amen-datory legislation as the ones for which pre-clearance is sought “might satisfy the clear statement requirement.” See supra at 973. Similarly, the concurring opinion says that additional materials “may be necessary,” that “[i]t may be necessary to look beyond the redlining,” and that “[i]n other words redlining may or may not be sufficient.” See concurring op. of Thompson, J., at 977. Thus, the basis upon which Part I of the concurring opinion is written is the difference between “might satisfy” and “may or may not be sufficient.” That difference is too subtle for us to grasp.

There being no real difference between our positions on the matter, Judge Thompson’s concurring opinion is left to the age-old device of erecting a straw man, which it proceeds to tear down. For example, it accuses us of suggesting that the State’s burden does not include identifying in a clear manner each change for which it seeks preclearance. See concurring op. at 976. Not only do we not suggest that, but the very basis of our decision that the amendment to § 17-10-5 was not precleared is the State’s failure to clearly identify that amendment as one of the changes for which preclearanee was sought.

For the same reason, it cannot fairly be said that we “appear” to read 28 C.F.R. § 51.27(e)’s requirement that the change submitted be readily apparent on the face of the documents “very narrowly.” See concurring op. Of Thompson, J., at 977. If the submission letter and an accompanying redlined version of the legislation make “readily apparent” on their face what the changes sought to be preeleared are, then the “readily apparent” requirement is satisfied. If not, not. This case involves a situation in which the changes sought to be precleared were not all readily apparent on the face of the documents, which is why we reach the decision we do in this case. In another case involving redlining, the documents — to borrow the concurring opinion’s words — “may or may not be sufficient.” In recognizing that, we do not read § 51.27(c)’s language “very narrowly,” but just as it is written.

Judge Thompson’s concurring opinion says we are “suggesting that a State can be absolved of the specificity requirement.” See concurring op. 977. It is strange to infer from an opinion vigorously enforcing a requirement a suggestion of absolution from that requirement. In any event, we no more suggest absolution from the specificity requirement when we say that in different facts documents including a redlined version of legislation “might satisfy the requirement,” than the concurring opinion suggests absolution by saying that it “may or may not be sufficient.” Finally, as to the admonition that “the court should be inviting the State to be more open and forthcoming with information, not less so,” concurring op. of Thompson, J., at 977, we have not issued an invitation of any sort to any party. Nor do we view it as our role to invite any party to do anything in the future. Courts sit to apply the law, not to suggest policy.

D.

As to the appropriate remedy in this ease, “[n]o new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance,” Lopez, 519 U.S. at -, 117 S.Ct. at 347. The State may not enforce the revision to § 17-10-5 until it has sought and obtained preclearance of this change, by the Attorney General or the United States District Court for the District of Columbia. No further order is necessary at this time, however, as the parties have already filed with this court a joint remedial plan, by which they agreed to abide should this court rule as we have.

1 . United States v. Alabama, civil action no. 98-T-1181-N, memorandum in support of United States’ motion for a temporary restraining order and preliminary injunction, filed October 19, 1998, Attachment A at 4-5 (Alabama Attorney General Opinion No. 97-00209 (June 19, 1997)).

2 . Ward v. Alabama, civil action no. 98-D-1156-N, complaint ¶ 12.

3 . Ward v. Alabama, civil action no. 98-D-1156-N, brief of the State of Alabama, James Bennett, and Charles W. Story in opposition to section 5 claims, filed October 20, 1998, at 1.

4 . United States v. Alabama, civil action no. 98-T-1181-N, memorandum in support of United States’ motion for a temporary restraining order and preliminary injunction, filed October 19, 1998, Attachment C.

5 . Ward v. Alabama, civil action no. 98-D-1156-N, complaint ¶ 12.

6 . The Attorney General may extend the 60-day period, and did so in this case. See 28 C.F.R. § 51.37(c). The State contends that the Attorney General affirmatively approved the amendment to § 17-10-5 by its letter of February 4, 1997, not by the failure to respond earlier, so no issue of timing is presented in this case.

7 . Ward v. Alabama, civil action no. 98-D-1156-N, brief of the State of Alabama, James Bennett, and Charles W. Story in opposition to section 5 claims, filed October 20, 1998, at 4-5.

8 . There is no suggestion that state officials making the submission prepared the "redlined” copy of Act No. 96-885 in order to indicate the provisions being submitted for preclearance. Instead, the rules of the Alabama Legislature require that amendatory legislation be prepared in red-lined form. See Rules of the House of Representatives of the State of Alabama 12(a)(1) (1997) ("No bill amending an existing statute shall be accepted for introduction in the Legislature unless: (1) the language to be deleted is stricken through ... and (2) the language to be inserted is underscored ____"); Rules of the Senate of the State of Alabama 12(a)(1) (1995). The copy of the Act in the submission enclosures was simply the legislation in the form in which it was enacted.

9 . United States v. Alabama, civil action no. 98-T-1181-N, memorandum in support of United States’ motion for a temporary restraining order and preliminary injunction, filed October 19, 1998, Attachment B.

10 . Ward v. Alabama, civil action no. 98-D-1156-N, brief of the State of Alabama, James Bennett, and Charles W. Story in opposition to section 5 claims, filed October 20, 1998, at 5.

11 . The State’s arguments are actually more pointed than that. The changes that were submitted for preclearance in 1994 included the addition of the very language in § 17-10-5 (“or the address where the voter regularly receives mail") the deletion of which is challenged in this case. If the submission involving deletion of this language in the 1996 Act was not clear enough, says the State, neither was the submission involving addition of the same language in the 1994 Act. The net result would be that the addition of the language in 1994 could not be enforced, thus achieving the same result as an enforceable deletion of the language in 1996. It is a nice argument, but it fails. As we explain hereafter in the text, the 1994 submission was clear enough about the change to § 17-10-5 for preclearance of that amendment, while the 1996 submission was not as clear, nor was it clear enough.

12 . Ward v. Alabama, civil action no. 98-D-1156-N, brief of the State of Alabama, James Bennett, and Charles W. Story in opposition to section 5 claims, filed October 20, 1998, at 5.

13 . This Part C of our opinion is the part Judge Thompson refers to in the first sentence of the last paragraph in Part I of his concurring opinion.