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The League of Women Voters of Alabama have filed a class action lawsuit against the Alabama secretary of state and others, asking for special provisions to absentee voting in light of the COVID-19 pandemic.
Plaintiff LWVAL, along with several co-plaintiffs, say the step is necessary to “ensure that all Alabama voters have adequate means to obtain and cast ballots and to have their votes counted without endangering their health and safety.”
LWVAL’s complaint alleges the steps that have been taken to ensure wider absentee voting is permitted during the July primary expire before the November general election, and that many Alabama residents are in need of special provisions to ensure they are able to vote while protecting their wellbeing.
One such voter is plaintiff Adris Albany. Albany, 73, has an artificial aortic valve and has been self-isolating at home since mid-March.
Albany says her polling place, an elementary school, is too crowded to allow for social distancing of voters or poll workers.
Because she fears COVID-19 exposure and infection, Albany has applied for an absentee ballot for the Nov. 3 election; however, on her application, she checked the box for being out of the county on election day, and says she is prepared to leave the county if necessary to vote, the complaint states.
Albany’s situation is just one of many cited in the class action lawsuit and represents the challenges faced by Alabama voters.
The complaint names defendants John Merrill, Alabama Secretary of State, who is in charge of election activities; Alabama Gov. Kay Ivey, who has the power to suspend election laws and regulations during the pandemic; Gina Ishman, Absentee Election Manager for Montgomery County; Derrick Cunningham, Montgomery County Sheriff and a member of the Canvassing Board for Montgomery County, who is being sued for relief purposes only.
Defendant Cunningham is sued for relief purposes only because he cannot adequately protect the health and safety of Montgomery County voters unless Merrill and Ivey exercise their emergency statutory and constitutional authority as sought by this complaint; and the members of the Montgomery County Commission.
The complaint also names J.C. Love III, judge of probate for Montgomery County, who is the chief elections officer for the county and a member of the Canvassing Board. The lawsuit states Love is unable to protect the voters’ health and safety unless Merrill and Ivey “exercise their emergency statutory and constitutional authority in the manner sought by the prayer for relief in this complaint.”
Has the CDC Made Recommendations for Safe Elections?
Local election officials are attempting to implement the Centers for Disease Control and Prevention recommendations for preventing the spread of COVID-19 during elections, according to the coronavirus lawsuit.
Among other steps, the CDC recommends encouraging voters to use voting methods that minimize contact with others and reduce crowds at polling stations, encouraging mail-in methods of voting if allowed, encouraging early and drive-up voting.
Local election officials have reported to Merrill that they are unable to comply with the CDC recommendations and keep all polling places open.
Most poll workers are older than 65 and are reluctant or unwilling to expose themselves to potential infection at polling places, according to a letter dated May 4.
The only emergency order Merrill has issued authorizes Alabama voters to obtain absentee ballots without a medical excuse, according to the lawsuit. It waives none of the other requirements for obtaining and submitting an absentee ballot, including “proper identification,” and expires July 17, three days after the July 14 primary runoff.
Merrill has not modified the application form for Alabama vote-by-mail to instruct voters which box to check in order to avoid committing a criminal offense, for purposes of the emergency, the lawsuit alleges.
According to the secretary of state’s website, Alabama has received $7,798,408 to be used to prepare for and respond to election activities related to the July 14 primary runoff and Nov. 3 general election.
On April 13, LWVAL president Barbara Caddell sent a letter to Merrill calling attention to the likelihood the coronavirus pandemic will affect all 2020 elections and urging him to exercise his emergency powers, according to the coronavirus lawsuit.
On April 15, Hugh R. Evans III, general counsel for the Office of the Secretary of State, reportedly replied to Caddell via email, saying: “Section 17-11-3(e) allows us to adopt an emergency rule when the state is operating under a state of emergency to make it easier for a citizen to vote by absentee ballot. We still however, have to operate within the parameters of the statutes.”
Caddell replied via email April 22, thanking Evans for his reply, but said, “We do not understand why the Secretary’s rule making authority does not allow the Secretary to modify some of the requirements for absentee voting, given that the statutory provision to which you refer specifically gives the Secretary the authority in a declared emergency to establish an emergency rule so that qualified voters can exercise their franchise when substantial compliance with the letter of the law is rendered impossible or unreasonable. That is exactly the situation we are facing.”
Caddell reportedly went on to ask if Evans would ask for an attorney general opinion about Merrill’s authority to make her requested changes, but has received no reply, the complaint states. The legislature adjourned its regular session May 18 without passing any emergency measures to protect Alabama voters.
What Allegations Does the Lawsuit Make?
The lawsuit filed by LWVAL alleges Merrill’s March 18 authorization of allowing absentee ballots without voters needing to satisfy the usual requirements extends only to the July primary runoff, and that Ivey has violated Alabama voters’ state constitutional rights by failing to exercise emergency authority to order no-excuse absentee voting for all 2020 elections.
The class action lawsuit alleges that by failing to exercise emergency authority to waive the photo ID requirement for absentee ballots, Merrill has violated the right to vote of the plaintiffs and all qualified Alabama voters, as well as their right to exercise the franchise free of undue influence from tumult guaranteed by the Alabama Constitution.
The lawsuit alleges Merrill’s March emergency order fails to waive a requirement that the voter have a notary public or two witnesses watch him or her sign the affidavit included with their absentee ballot.
It also claims Merrill’s emergency order failed to extend the deadlines for applying for an absentee ballot and delivery of an absentee ballot to the absentee election manager, and fails to move back the time for beginning to count absentee ballots.
And finally, the coronavirus lawsuit alleges the March emergency order failed to adopt procedures to ensure the safety of poll workers and voters casting ballots in-person during the pandemic.
The plaintiffs are asking the defendants named in this lawsuit to be representatives of their counterparts in all counties throughout Alabama.
In filing this coronavirus lawsuit, the plaintiffs are asking the Court to declare the failure of the defendants to modify absentee balloting procedures and protect poll workers’ and citizens’ health and safety violates the right to vote of the plaintiffs and all qualified Alabama voters.
The plaintiffs request the Court to enter a preliminary injunction to order Merrill and Ivey to submit an emergency plan remedying the constitutional violations alleged in this lawsuit and to notify all Alabama voters of the emergency measures.
The lawsuit also asks the Court to retain jurisdiction of this action to ensure compliance with the Court’s orders and to supplement or modify them as necessary to protect Alabama voters’ health and safety.
The plaintiffs are seeking an award of reasonable attorneys’ fees and court costs, and other relief as the Court deems fit.
Plaintiff the League of Women Voters of Alabama is represented by Augusta S. Dowd of White Arnold & Dowd PC and James U. Blacksher. All other plaintiffs are represented by Joseph Mitchell McGuire, Robert D. Segall of Copeland Franco Screws & Gill PA and Edward Still.
The Alabama Vote-By-Mail Class Action Lawsuit is League of Women Voters of Alabama, et al. v. John Merrill, et al., Case No. 03-CV-2020-900702.00, in the Circuit Court of Montgomery County, Alabama.
Join a Free Coronavirus Class Action Lawsuit Investigation
If you believe your rights were violated in a way that is directly related to the coronavirus pandemic, you may qualify to join this coronavirus class action lawsuit investigation.
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3 thoughts onAlabama Voters Want Vote-by-Mail Option During Coronavirus
In the Army, we were not given any option to vote while I was in basic training 2020. None of us who went through AIT with me voted. That’s hundreds of soldiers. We were not even informed of any mail-in ballot until I got home in December. I’m sure we weren’t the only ones. A lot of us got covid also and were sent to this place like a concentration camp where mail wasn’t ever even a thing.
Please add me
I live in Alabama.Add me