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FILED
2010 Aug-16 AM 09:49 U.S. DISTRICT COURT N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARL LEFTWICH, BOBBI MORGAN, DONALD MEANS, ERNEST EDMONDS, FAIRY GORDON, IRIS SERMON, JOHNNY BUTLER, MERJEAN LITTLE, MOSES JONES, VASSIE BROWN, WILLIE MAE REEVES, BEVERLY GORDON, JOHNNY B. MORROW, FANNIE ISHMAN, LESLIE CHEATEM, MARGIE JAMES, BOBBY SINGLETON, A. J. MCCAMBELL, JOHNNY FORD, LOUIS MAXWELL, MARY RUTH WOODS, LISA M. WARE, CLARA P. GRIMMETT, CHARLES CHAMBLISS, JOHNNIE B. HARRISON, G. DYANN ROBINSON, SHIRLEY W. CURRY, SARAH STRINGER, MILES D. ROBINSON, and WILLIE LEE PATTERSON, individually and on behalf of others similarly situated, Plaintiffs, v. BOB RILEY, in his individual capacity and in his official capacity as Governor of Alabama, and JOHN M. TYSON, JR., individually and in his official capacity as special prosecutor and task force commander of the Governor’s Task Force on Illegal Gaming, Defendants.

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Civil Action No. 7:10-cv-02067-SLB 3-judge court

PLAINTIFFS’ AMENDED MOTION FOR PRELIMINARY INJUNCTION

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Plaintiffs William Johnson et al., through undersigned counsel, pursuant to Rule 65, Fed.R.Civ.P., move for an expedited hearing and entry of a preliminary injunction under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, restoring the status quo ante in both Greene County and Macon County. Since plaintiffs filed their original motion for preliminary injunction, Doc. 4, the status quo has been altered in Macon County, and now the electronic bingo operations in both counties are closed on account of defendants’ actions or threatened actions. As grounds for their motion, plaintiffs rely on their brief supporting their original motion, Doc. 4, and further would show as follows: 1. Plaintiffs’ original motion for a preliminary injunction, Doc. 3, asked for relief preserving the status quo in Macon County. Subsequently, the electronic bingo operations at VictoryLand have been forced to close under the threat of imminent renewed raids by the defendants’ Task Force. 2. There is a substantial likelihood that plaintiffs will prevail on the merits. a. Ala. Const. Amendment 555, adopted in 1994, authorized local amendments to the state constitution to be approved solely by the voters in the county affected. The U.S. Attorney General precleared Amendment 555 under § 5 of the Voting Rights Act only after removal of the provision in Amendment 425 (to which the Attorney General had interposed an objection) requiring unanimous
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approval of a proposed amendment by the Local Constitutional Amendment Commission, composed of the Governor, Presiding Officer of the Senate, Attorney General, Secretary of State, and Speaker of the House of Representatives. See Exhibit A. b. In 2003, Greene County voters approved Amendment 743, which expressly authorizes electronic bingo in Greene County and designates the Sheriff as the officer charged with promulgating regulations and enforcing compliance. The legislative intent to authorize electronic bingo is clear in Amendment 743 because it uses the word “electronic.” The scheduling of a special election in Greene County to approve Amendment 743 was precleared under § 5 of the Voting Rights Act. See Exhibit B. c. In 2003, Macon County voters approved Amendment 744, which authorizes bingo in Macon County and designates the sheriff as the officer charged with promulgating regulations and enforcing compliance. The public debate (as evidenced by newspaper articles, advertising, and handbills circulated both pro and con) in 2003 regarding the proposed Amendment centered around whether to allow all forms of bingo including “electronic” and “machine” bingo. Therefore, the voters in Macon County were clearly aware that electronic bingo would be authorized under Amendment 744. The scheduling of a special election in Macon
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County to approve Amendment 744 was precleared under § 5 of the Voting Rights Act. See Exhibit B. d. The Greene County Sheriff’s regulations, issued pursuant to his authority provided by Amendment 743, expressly authorize electronic bingo. e. The Macon County Sheriff’s regulations, issued pursuant to his authority provided by Amendment 744, expressly authorize electronic bingo. f. Both the Alabama Supreme Court and the U.S. District Court for the Middle District of Alabama have acknowledged that the Macon County Sheriff’s bingo regulations have been in force and effect since late 2003. g. In 2006, Governor Riley proposed bills to amend the state constitution that, according to his official press release, would “ban[] the use of electronic devices in playing bingo under existing local amendments, limiting the games that are authorized to traditional paper bingo. Any future amendments to authorize any gambling in Alabama would require a statewide vote and not just a local vote by the county involved.” See Exhibit C. h. Thus defendant Riley recognized that a statewide constitutional amendment was necessary to overturn Local Amendments 743 and 744. Defendant Riley’s proposed statewide constitutional amendment did not pass the Legislature.
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i.

There is no question that, if Governor Riley’s proposed statewide

constitutional amendment had been adopted, it could not have been implemented without first being submitted and receiving preclearance under § 5 of the Voting Rights Act. j. In 2008, defendant Riley claimed he had the discretion to decide, unilaterally and without any judicial determination, that electronic bingo in Greene and Macon Counties violates certain provisions of the Alabama Constitution and anti-gambling statutes that were superseded by Amendments 743 and 744, adopted under the procedures of Amendment 555. So he issued Executive Order 44 and appointed a Task Force Commander. k. Defendant Riley’s executive order and Task Force actions effectively implement his 2006 proposed statewide constitutional amendment that failed to pass the Legislature. For the same reasons that defendant Riley’s proposed statewide constitutional amendment would have required § 5 preclearance, his executive order and Task Force actions constitute changes in standards, practices and procedures affecting voting that cannot be implemented without § 5 preclearance. l. Under § 5 of the Voting Rights Act, it does not matter whether Amendments 743 and 744 and the Sheriffs’ regulations and enforcement of them
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are valid under state law or not. It only matters that they have been “in force and effect,” which both state and federal courts have acknowledged. m. Defendant Riley’s Executive Order 44, as amended, and his Task Force actions are changes affecting the voting rights of citizens of Greene and Macon Counties, as granted by Amendment 555, in at least two ways: i. They have effectively vetoed Amendments 743 and 744 and the Sheriffs’ regulations promulgated thereunder, contrary to the condition on which Amendment 555 received § 5 preclearance, and they have nullified the votes of the citizens of those counties, denying their right to vote for electronic bingo. ii. Defendant Riley has de facto replaced the elected Sheriffs as the officers constitutionally responsible for enforcing the law governing bingo in Greene and Macon Counties with an appointed official, the Task Force Commander. 3. Plaintiffs and the class they seek to represent will suffer irreparable injury unless the preliminary injunction issues. a. Because of Congress’ intent to place the burdens of time and inertia on the state, South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966), the need for a preliminary injunction is particularly compelling in § 5 coverage cases and is necessary to prevent unprecleared changes affecting voting from being
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implemented. See Plaintiffs’ Brief Supporting Motion for Preliminary Injunction, Doc. 4 at 3-4. b. Contrary to Congress’ intent, the “advantage of time and inertia” in the instant action remains with defendants until such time as this Court enters either a preliminary or final injunction. c. In addition to the harm befalling the electorates in Greene and Macon Counties in being deprived of the home rule powers granted to those counties by Amendments 555, 743, and 744, there are severe economic injuries to the citizens, the school systems, and the economies of the two counties. See Doc. 4 at 15-20. The bingo operations in Greene County have been shut down for over a month now, and that has “effectively cut off the financial life blood of this poor Black Belt county.” See Exhibit D. The relief to which plaintiffs are entitled for violation of their rights under § 5 of the Voting Rights Act is urgently needed. 4. Defendants will suffer no irreparable injury if a preliminary injunction is entered. The electronic bingo constitutionally authorized by the voters in Greene and Macon Counties operated for over six years before defendants decided to close them with police raids. Alternatively, the threatened injury to plaintiffs and the class they seek to represent outweighs whatever damage the proposed injunction may cause defendants.
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5.

If issued, the injunction would not be adverse to the public interest. To

the contrary, it would carry out Congress’ intent in enacting § 5 of the Voting Rights Act, which is to shift the burden of time and inertia to the state to demonstrate that changes in standards, practices or procedures affecting voting will have neither the purpose nor the effect of denying or abridging the right to vote of African Americans. 6. The three-judge court statute, 42 U.S.C. § 2284(b)(2), contains the following requirement: “If the action is against a State, or officer or agency thereof, at least five days’ notice of hearing of the action shall be given by registered or certified mail to the Governor and attorney general of the State.” WHEREFORE, for the reasons set out above and in Plaintiffs’ Brief Supporting Motion for Preliminary Injunction, Doc. 4, plaintiffs pray: A. That the Court will schedule an expedited hearing on plaintiffs’ motion for preliminary injunction as amended. B. That the Court will give notice of the hearing on the motion for preliminary injunction by registered or certified mail to the Governor and attorney general of the State (or authorize the Plaintiffs to give such notice). C. Following the hearing before this three-judge Court, that the Court will:

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(1) enter a preliminary injunction prohibiting defendants Riley and Tyson and those acting in concert with them or at their direction from implementing Executive Order 44 and amended Executive Order 44 and from conducting, or threatening to conduct, the Task Force actions in Greene and Macon Counties complained of herein until they have been submitted and precleared under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c; and (2) grant such other and further equitable relief as may be necessary to restore the voting, personal, and property rights of plaintiffs and the class they seek to represent in Greene and Macon Counties violated by the unlawful implementation of Executive Order 44 and amended Executive Order 44 and the Task Force actions and threatened actions complained of herein. D. Plaintiffs further pray that the court will exercise its discretion under Rule 65(c), Fed.R.Civ.P., and waive the requirement that plaintiffs give security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. Alternatively, plaintiffs offer to post security in the form of a bond, or as otherwise required by the Court, in such sum as the Court deems necessary. Respectfully submitted this 16th day of August, 2010,

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s/Edward Still Bar No. ASB-4786-I 47W 2112 11th Avenue South Suite 541 Birmingham, AL 35205 205-320-2882 fax 205-449-9752 E-mail: still@votelaw.com

James U. Blacksher Bar No. ASB-2381-S82J P.O. Box 636 Birmingham AL 35201 205-591-7238 Fax: 866-845-4395 E-mail: jblacksher@ns.sympatico.ca Fred D. Gray Bar No. ASB-1727-R63F Gray, Langford, Sapp, McGowan, Gray & Nathanson P. O. Box 830239 Tuskegee , AL 36083-0239 334-727-4830 Fax: 334-727-5877 E-mail: fgray@glsmgn.com

Attorneys for plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on August 16, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, and I sent by email and first class mail notification of such filing to the following: John M. Tyson, Jr. Task Force Commander Office of Governor Bob Riley 600 Dexter Avenue Montgomery, Alabama 36130 John M. Tyson, Jr. District Attorney 205 Government Street Suite C-501 Mobile, Alabama 36644 Hon. Bob Riley Governor's Office State Capitol 600 Dexter Avenue Montgomery, Alabama 36130 Hon. Troy King Attorney General 500 Dexter Ave. Montgomery AL 36130

s/Edward Still

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