Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 1 of 37

FILED
2010 Aug-27 PM 05:00 U.S. DISTRICT COURT N.D. OF ALABAMA

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

WILLIAM JOHNSON, et al., Plaintiffs, v. BOB RILEY, et al., Defendants.

) ) ) ) CIVIL ACTION NUMBER: ) 7:10-cv-02067-SLB ) ) ) )

GOVERNOR RILEY AND COMMANDER TYSON’S MOTION TO DISMISS

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 2 of 37

TABLE OF CONTENTS Table of Contents ....................................................................................................... i  Table of Authorities .................................................................................................. ii  Introduction ................................................................................................................1  Standard of Review ....................................................................................................3  Legal Background and Allegations in Plaintiffs’ Complaint ....................................5  I.  II.  III.  IV.  V.  Alabama’s laws prohibiting gambling.............................................................5  The Greene and Macon bingo amendments. ...................................................6  Executive Order 44 and the Governor’s enforcement of Alabama’s prohibition on slot-machine gambling.............................................................9  The Task Force’s enforcement of the law. ....................................................10  Plaintiffs’ Complaint .....................................................................................13 

Argument..................................................................................................................16  I.  Plaintiffs have no § 5 claim. ..........................................................................16  A.  B.  II.  III.  IV.  The Governor and Commander’s conclusion that the machines are illegal is not a § 5 change. .............................................................17  The Governor’s directive to Tyson to enforce the law in Greene and Macon Counties is not a Section 5 “change.” ..............................19 

Plaintiffs have no § 2 claim. ..........................................................................23  Plaintiffs make no plausible claim of “purposeful discrimination.” .............24  Plaintiffs make no plausible claim under the Ku Klux Klan Act. .................28 

Conclusion ...............................................................................................................29  Certificate of Service ...............................................................................................31 i

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 3 of 37

TABLE OF AUTHORITIES Cases  Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)........................................................................... passim Barber v. Cornerstone Community Outreach, Nos. 1080805 & 1080806, ___ So. 3d ___, 2009 WL 3805712 (Ala. Nov. 13, 2009) .................. 2, 7, 12 Barber v. Houston County Econ. Dev. Ass’n, No. 1090444 (Ala. Jan. 15, 2010) (unpub. order) ...............................................................12 Barrett v. State, 705 So. 2d 529 (Ala. Crim. App. 1996) ................................................... 6, 22 Bell Atl. v. Twombly, 550 U.S. 544 (2007)...................................................................... 3, 26, 27, 28 Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999) .......................................................................9 City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994)..........................................................................1, 5 Clayton v. North Carolina State Bd. of Elections, 317 F. Supp. 915 (E.D.N.C 1970) .................................................................29 Dickerson v. Alachua County Comm’n, 200 F.3d 761 (11th Cir. 2000) .......................................................................28 Ex parte State, No. 1090808, ___ So. 3d ___, 2010 WL 2034825 (Ala. May 21, 2010) .............................12 Foster v. State, 705 So. 2d 534 (Ala. Crim. App. 1997) ..........................................................6 Givens v. Zerbst, 255 U.S. 11 (1921)...........................................................................................9

ii

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 4 of 37

Holder v. Hall, 512 U.S. 874 (1994).......................................................................................24 Opinion of the Justices No. 373, 795 So. 2d 630 (Ala. 2001)..............................................................................5 Patterson v. Esch, Civ. A. No. 3:09cv438, 2009 WL 2424408 (S.D. Miss. Aug. 5, 2009) ..............................................20 Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979) .....................................................................................26 Presley v. Etowah County Commission, 502 U.S. 491 (1992)............................................................................... passim Reno v. Bossier Parrish Sch. Bd., 528 U.S. 320 (2000).......................................................................................22 Robertson v. Bartels, 148 F. Supp. 2d 443 (D.N.J. 2001) ................................................................29 Rosado v. Wyman, 397 U.S. 397 (1970).......................................................................................29 Surles v. City of Ashville, Nos. 1080826 & 1081015, ___ So. 3d ___, 2010 WL 336689 (Ala. Jan. 29, 2010) ................................13 Thornburg v. Gingles, 478 U.S. 30 (1986).........................................................................................24 Tyson v. Jones, Nos. 1090878 & 1090939, ___ So. 3d ____, 2010 WL 2983188 (Ala. July 30, 2010) ...........................12 Tyson v. Macon County Greyhound Park, No. 1090548, ___ So. 3d ___, 2010 WL 415271 (Ala. Feb. 4, 2010) .................................12 Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981) .........................................................................26 Constitutional Provisions  iii

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 5 of 37

ALA. CONST. amend. 50 .............................................................................................6 ALA. CONST. amend. 743 ...........................................................................................6 ALA. CONST. amend. 744 ...........................................................................................7 ALA. CONST. Art V, § 120........................................................................................22 U.S. CONST. amend. 13 ............................................................................................25 U.S. CONST. amend. 15 ............................................................................................25 Statutes  42 U.S.C. § 1973 (Voting Rights Act of 1965, § 2) ................................... 14, 23, 24 42 U.S.C. § 1973c (Voting Rights Act of 1965, § 5) ............................... 1, 8, 13, 17 42 U.S.C. § 1983 ......................................................................................................14 42 U.S.C. § 1985(3) (Ku Klux Klan Act) ......................................................... 15, 28 ALA. CODE § 12-17-184(10) ....................................................................................10 ALA. CODE § 13A-12-20(10) .....................................................................................5 ALA. CODE § 13A-12-27 ............................................................................................5 ALA. CODE 1940, Tit. 13, § 229 ...............................................................................19 Rules  FED. R. CIV. P. 12 ............................................................................................. passim FED. R. CIV. P. 8 .........................................................................................................4 Regulations  28 CFR § 51.36 ........................................................................................................23 28 CFR § 51.9(a) ......................................................................................................23 iv

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 6 of 37

Other Authorities  5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE (2d ed. 1990) ............................................9 Bob Riley, Luck Running Out for Casinos, HUNTSVILLE TIMES, Aug. 7, 2010 .................................................................11 Sebastian Kitchen, VictoryLand Closes as Raid Looms, MONTGOMERY ADVERTISER, Aug. 10, 2010..................................................11

v

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 7 of 37

INTRODUCTION This case is frivolous. It has nothing to do with voting rights, and

everything to do with moneyed interests’ attempts to flout Alabama’s laws prohibiting gambling. The principal statute Plaintiffs invoke, § 5 of the Voting Rights Act, gives citizens the right to challenge the State’s implementation of its laws “with respect to voting.” 42 U.S.C. § 1973c(a). But Plaintiffs are not

bringing this case to challenge the State’s implementation of its voting laws. They are bringing it as a last-ditch effort to block the State from enforcing its gambling laws. There is not even a colorable argument that federal law gives them a right to do that. The Alabama Constitution and Code prohibit gambling generally, and slot machines in particular. They have for decades. But in recent years, gambling interests defiantly built casinos throughout the State and filled them with slot machines. They claimed that their machines played a form of “bingo” that is legal under certain local amendments to the Alabama Constitution. Alabama courts have repeatedly made clear, however, that those amendments legalize only the traditional form of “bingo” that grandmothers have long taught their grandchildren on summer vacations. See City of Piedmont v. Evans, 642 So. 2d 435, 436 (Ala. 1994); Barber v. Cornerstone Community Outreach, Nos. 1080805 & 1080806, 1

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 8 of 37

___ So. 3d ___, 2009 WL 3805712, at *18 (Ala. Nov. 13, 2009). And anyone who saw these machines operate knew that they were not playing the game traditionally known as bingo. As the Alabama Supreme Court explained last year, the

“electronic bingo” machines at a Lowndes County casino operate almost exactly like slot machines. In fact, an entire “bingo game” takes approximately six seconds, involves no numbered cards, and requires no player interaction at all, other than the player initially inserting cash or a “player’s card” with cash credits into the machine and then pressing a button or pulling a handle to find out the outcome. A player learns the outcome through a large display that specifically tells the player whether he or she has won and a smaller display that shows a bingo board and the balls that could have been drawn. A losing player is not told who, if anyone, won the “bingo game.” Id. at *18. Concerned about the proliferation of illegal gambling across the State, Governor Riley created a Task Force on Illegal Gambling and made John Tyson its Commander. Operating at Governor Riley’s direction, Commander Tyson and other law-enforcement officers took various steps to rid Alabama of these illegal machines. Now, casinos that once operated in counties throughout the State—in not only Greene and Macon County, but also Houston, Jefferson, Lowndes, Madison, and Mobile County—have shut down. Having decisively and repeatedly failed in attempts to block the Task Force’s efforts in state court, those who support illegal gambling have now sought 2

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 9 of 37

refuge here, in federal court, under the most baseless of theories. They have tried to transform this question of what constitutes illegal gambling under Alabama law—and thus, whether the State has been correct in seizing these machines—into, of all things, a federal voting-rights claim. As explained below, Supreme Court precedent makes clear that § 5 of the Voting Rights Act has no application here. And Plaintiffs’ claims under § 2 of that Act, the Reconstruction Amendments, and the Ku Klux Klan Act have even less merit. This Court should dismiss the

Complaint (Doc. 1) for failure to state a claim upon which relief can be granted.

STANDARD OF REVIEW The Supreme Court recently reaffirmed the standard governing 12(b)(6) motions in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009): To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 1949 (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)) (citations omitted). 3

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 10 of 37

The Iqbal Court explained that “[t]wo working principles underlie” the 12(b)(6) analysis, id., and both are critical here. First, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Second, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)). As explained below, in light of Iqbal’s statement of the standard of review— and in light of the background principles of Alabama law against which Plaintiffs are making their assertions that Governor Riley and Commander Tyson have deprived them of their right to vote—Plaintiffs’ claims must be dismissed under Rule 12(b)(6).

4

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 11 of 37

LEGAL BACKGROUND AND ALLEGATIONS IN PLAINTIFFS’ COMPLAINT I. Alabama’s laws prohibiting gambling. The Alabama Constitution of 1901 prohibits all “lotteries,” a term the Alabama Supreme Court has defined for constitutional purposes as including all forms of gambling for prizes awarded predominately on the basis of chance. See Opinion of the Justices No. 373, 795 So. 2d 630, 634–35 (Ala. 2001). Similarly, Alabama law has for nearly a century prohibited the possession or use of any “slot machine,” ALA. CODE § 13A-12-27, which the Code broadly defines as any “gambling device that, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of some physical act by the player, in such a manner that, depending upon elements of chance, it may eject something of value,” id. § 13A-12-20(10). Machines readily adaptable to use as slot machines are illegal as well. Id. Against that backdrop, Alabama promulgated several local constitutional amendments that authorize the operation of “bingo games,” for charitable purposes, within certain counties. Doc. 1 at 8, ¶ 38 (citing various amendments that use this language, including those governing Greene and Macon Counties). In a 1994 case, City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994), the Alabama Supreme Court held that the term “bingo” in the Calhoun County amendment, 5

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 12 of 37

ALA. CONST. amend. 508, did not allow a city to authorize its residents to play a game, called “instant bingo,” that did not incorporate the traditional elements of bingo, because that game was not the game “commonly known as bingo.” See 642 So. 2d at 436–37. Later Alabama decisions confirmed that the term “bingo” in the Calhoun County amendment referred only to “the ordinary game of bingo.” Barrett v. State, 705 So. 2d 529, 531 (Ala. Crim. App. 1996); accord Foster v. State, 705 So. 2d 534, 538 (Ala. Crim. App. 1997).

II.

The Greene and Macon bingo amendments. In 2004, after the Alabama Supreme Court had decided City of Piedmont,

the Alabama Constitution was again amended to add local “bingo” amendments in Greene County and Macon County. See Doc. 1 at 9–12, ¶¶ 41–51. It is those two amendments that are at issue here. The Greene County amendment, ALA. CONST. amend. 743, authorizes the “operat[ion]” of “[b]ingo games” by “a nonprofit organization” in Greene County. Using similar language to that employed by the Alabama courts when construing the Calhoun County amendment, the Greene County amendment says that “bingo” is “[t]hat specific kind of game commonly known as bingo.” ALA. CONST. amend. 743. The amendment says that “bingo” can be played “on a card or electronic 6

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 13 of 37

marking machine,” id., but as the Alabama Supreme Court has recognized, “electronic marking machines” are an entirely different type of machine from the slot-machine devices being used in these “electronic bingo” casinos. Thus, the “electronic marking machines” language “contemplates a game . . . that is materially different from the types of electronic gaming machines at issue” in these cases. Barber, 2009 WL 3805712, at *11. The Macon County amendment, ALA. CONST. amend. 744, is identical in all material respects to the Calhoun County amendment that the Alabama Supreme Court interpreted in City of Piedmont. It states that “[t]he operation of bingo games for prizes or money by nonprofit organizations for charitable, educational, or other lawful purposes shall be legal” in Macon County. ALA. CONST. amend. 744. It does not purport to broaden the term “bingo” beyond its traditional

meaning. Nor does it contain language purporting to allow bingo to be played on slot machines. Contrary to what Plaintiffs seem to be implying in their Complaint, the Department of Justice has not precleared the substance of these amendments under § 5 of the Voting Rights Act. The Complaint alleges, somewhat ambiguously, that the Greene County and Macon County amendments were “precleared by the Attorney General of the United States.” Doc. 1 at 9, ¶ 42; id. at 11, ¶ 47. But “the 7

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 14 of 37

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” Iqbal, 129 S. Ct. at 1949; and if Plaintiffs are alleging that DOJ approved the these amendments’ provisions allowing “bingo,” that conclusion is false. Under § 5’s plain terms, DOJ must preclear only changes in state law relating to “voting.” 42 U.S.C. § 1973c(a). Thus, DOJ’s preclearance letter for these amendments—which Plaintiffs have attached to their amended motion for a preliminary injunction—purported to preclear only the “schedul[ing]” of the “special constitutional amendment elections.” Doc. 12-2 at 2 (emphasis added). It said nothing about the substance of the amendments themselves. Thus, while the Complaint may plausibly allege that DOJ precleared the election at which Alabama citizens voted on whether to adopt these amendments, the Complaint does not plausibly allege that DOJ actually precleared the amendments’ provisions making “bingo games” legal in those counties. Preclearing that sort of thing is simply not within the job description of the DOJ’s Voting Section.

8

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 15 of 37

III.

Executive Order 44 and the Governor’s enforcement of Alabama’s prohibition on slot-machine gambling. In 2008, Governor Riley created the Task Force on Illegal Gambling by

signing Executive Order 44. Doc. 1 at 12–13, ¶¶ 52–53. The Order stated that “there is occurring at sites across this State, under the name of ‘bingo,’ gambling activity which no reasonable observer could assert in good faith to be ‘the ordinary game of bingo.’” Exh. A at 2.1 The Order reported that in the casinos recently built throughout the State, “an electronic device or system automatically processes an instant game of virtual ‘bingo’ upon activation and a wager by the human player, the outcome of which is based predominantly on chance rather than on any meaningful human interaction and skill.” Id. The Order stated that this form of “slot-machine style gambling” is illegal. Id. And the Order took note that there

This Court may consider the entire Order, for the purposes of determining its contents, when addressing this motion to dismiss. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999) (“‘[i]n determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record ... may be taken into account.’” (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1357, at 299 (2d ed. 1990)); see also Givens v. Zerbst, 255 U.S. 11, 18 (1921) (President’s order “was a part of the law of the land, which we judicially notice without averment or proof”). Accordingly, the entirety of Executive Order 44, as amended, is attached as Exhibit A.
1

9

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 16 of 37

was “an obvious lack of uniformity” in the enforcement of Alabama’s gambling laws against these machines “from county to county.” Id. at 3. Accordingly, “for the purpose of promoting and supporting uniform statewide enforcement of Alabama’s anti-gambling laws,” id. at 3, the Order created the Task Force. The Task Force consists of various law-enforcement officers having statewide jurisdiction, including officers of the Alabama Department of Public Safety and the Alabama Alcoholic Beverage Control Board. See id. The Order also states that the Task Force’s “Commander” is a “Special Prosecutor” with “statewide jurisdiction” to “conduct investigations” and represent the State in “the prosecution or defense of any case related to gambling activity in the State of Alabama.” Id. Governor Riley amended the Order in 2010 to mandate that the Commander could be a sitting district attorney. See id. at 5 (citing ALA. CODE § 12-17-184(10)). Governor Riley then appointed Tyson, the sitting district attorney from Mobile County, to serve as Commander and Special Prosecutor. See Doc. 1 at 13, ¶ 54.

IV.

The Task Force’s enforcement of the law. Exercising their authority under Executive Order 44, Governor Riley and

Commander Tyson have enforced Alabama’s law against slot machines. To this 10

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 17 of 37

end, Plaintiffs allege that Commander Tyson, exercising “the purported law enforcement authority of defendant Governor Riley,” has “conducted non-judicial, warrantless police raids against bingo operations in Macon and Greene Counties.” Doc. 1 at 13, ¶ 55. Although Plaintiffs allege that “Defendants have raided bingo facilities without obtaining judicial warrants only in Macon and Greene Counties,” id. at 13–14, ¶ 56, they do not allege, and could not plausibly allege, that Governor Riley and Commander Tyson have failed to enforce Alabama’s prohibition on gambling in other counties. Likewise, although Plaintiffs allege that Governor Riley and Commander Tyson have “shut[] down the bingo operations in Greene and Macon Counties,” id. at 15, ¶ 61, they do not allege, and could not plausibly allege, that these are the only two counties where the Task Force has fulfilled its mandate.2

Indeed, published newspaper reports indicate that no so-called “electronic bingo” facility within the State’s jurisdiction is currently operating. See Sebastian Kitchen, VictoryLand Closes as Raid Looms, MONTGOMERY ADVERTISER, Aug. 10, 2010 (reporting that the VictoryLand casino in Macon County “voluntarily closed its doors” in response to the Task Force’s actions and that VictoryLand had been “the only non-Indian casino still open in the state”); Bob Riley, Luck Running Out for Casinos, HUNTSVILLE TIMES, Aug. 7, 2010 (noting that even before VictoryLand’s decision to close, “[t]he task force succeeded in helping to stop illegal slot machine operations in Houston, Etowah, St. Clair, Jefferson, Mobile, Lowndes, Walker, Madison and Greene counties”). Although this Court need not consider this fact when evaluating this motion to dismiss, the Governor and Commander bring it to the Court’s attention for informational purposes. 11

2

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 18 of 37

As Plaintiffs acknowledge, the Alabama Supreme Court has issued numerous opinions validating the Task Force’s work. The Supreme Court has held that the Governor had the power under Alabama law to create the Task Force and to direct its members to enforce the law throughout the State.3 The Court has repeatedly rebuffed the gambling interests’ attempts to obtain injunctions against the Task Force’s seizures of these slot machines—or to preempt, via declaratoryjudgment actions, the Task Force’s attempts to enforce the law through forfeiture actions.4 And the Court has repeatedly held that the term “bingo” in the local constitutional amendments means only the traditional game with all of its human skill and interaction, thus indicating that the game played on these so-called “electronic bingo” machines is illegal.5

See Tyson v. Jones, Nos. 1090878 & 1090939, ___ So. 3d ____, 2010 WL 2983188, at *11–*17 (Ala. July 30, 2010); Ex parte State, No. 1090808, ___ So. 3d ___, 2010 WL 2034825, at * 12–30 (Ala. May 21, 2010).
3

See Tyson v. Macon County Greyhound Park, No. 1090548, ___ So. 3d ___, 2010 WL 415271, at *2 (Ala. Feb. 4, 2010); Barber v. Houston County Econ. Dev. Ass’n, No. 1090444 (Ala. Jan. 15, 2010) (unpublished order); see also Docs. 1-1, 1-2, & 1-3 (unpublished orders from Greene County case). See Barber, 2009 WL 3805712, at *18 (noting that the ordinary game of bingo is “materially different from the types of electronic gaming machines at issue here”); id. at *17–*18 (describing six-part test to determine whether a game is “bingo”); Ex parte State, 2010 WL 2034825, at *24 (noting that the Governor’s position on the legality of “electronic bingo” is “consistent with at least three appellate decisions”); Surles v. City of Ashville, Nos. 1080826 & 1081015, ___ So. 12
5

4

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 19 of 37

V.

Plaintiffs’ Complaint Plaintiffs allege that they are African-American citizens and either registered

voters in Greene and Macon Counties or state representatives for those Counties. See Doc. 1 at 3–7, ¶¶ 4–34. None alleges that he or she voted for the local amendments authorizing charitable bingo in those counties, but one Plaintiff does allege that he sponsored the bill that “became” the Macon County amendment. Id. at 5–6, ¶ 23. The Complaint asserts four causes of action. First, Plaintiffs assert that the Governor and Commander have violated § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Section 5 requires Alabama to preclear, with either the Department of Justice or the U.S. District Court for the District of Columbia, certain changes in the law “with respect to voting.” Id. In an attempt to support their claim under that statute, Plaintiffs allege that the Governor and Commander have “overridden” and “exercised veto power” over the local amendments authorizing “bingo.” Id. at 15–16, ¶ 65. Plaintiffs further allege that the Governor, by directing Commander Tyson to enforce the law in Greene and Macon Counties, “has implemented a de facto replacement of the” elected local 3d ___, 2010 WL 336689, at *6–*8 (Ala. Jan. 29, 2010) (reaffirming Barber’s sixpart test and confirming that only bingo played on paper or printed cards is permitted). 13

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 20 of 37

sheriffs “with an official appointed by the Governor.” Id. at 16, ¶ 66. Plaintiffs conclude from these assertions that the Governor’s and Commander’s “executive orders, police raids and law enforcement actions” are “standards, practices, and procedures affecting voting,” id. at 15, ¶ 64; and they assert that the State’s failure to preclear these “executive orders, police raids and law enforcement actions” with federal authorities violated § 5, see id. at 17, ¶ 69. Second, Plaintiffs assert that Governor Riley and Commander Tyson have violated § 2 of the Voting Rights Act, which precludes the State from imposing or applying a “voting qualification or prerequisite to voting or standard, practice, or procedure . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Plaintiffs try to support this theory by alleging that “African Americans constitute” large majorities of the “voting age population” in Greene and Macon Counties. Doc. 1 at 17, ¶ 72. Plaintiffs conclude that the Governor’s and

Commander’s “actions complained of herein are standards, practices, and procedures that have” abridged or diluted their right to vote “in violation of § 2.” Id. at 18, ¶¶ 74–75. Third, Plaintiffs assert a count, presumably under 42 U.S.C. § 1983, for “[p]urposeful [d]iscrimination.” Doc. 1 at 18. They assert that Governor Riley’s 14

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 21 of 37

and Commander Tyson’s actions “perpetuate” the State’s prior history of discrimination against African-Americans “and have both the racially

discriminatory purpose and effect of denying plaintiffs and African-American members of the class they seek to represent the ability to choose by constitutional amendment the laws and means of their enforcement in their own counties.” Id. at 19, ¶ 78. Plaintiffs further allege that Governor Riley and Commander Tyson “have acted in callous disregard of Alabama’s long history of discriminatorily denying African Americans the ability to exercise home rule in their respective counties.” Id. ¶ 79. Plaintiffs assert that this alleged “purposeful discrimination” violates § 2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth Amendments. See id. ¶¶ 78, 79. Finally, Plaintiffs assert a cause of action under the Ku Klux Klan Act, 42 U.S.C. § 1985(3), which makes it unlawful for “two or more persons in any State or Territory [to] conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws.” To support that claim, Plaintiffs assert that Governor Riley and Commander Tyson have implemented Executive Order 44 “for the purpose of threatening and intimidating plaintiffs and African-American members of the class they seek to represent, and for the racially 15

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 22 of 37

discriminatory purpose of usurping or bypassing the law enforcement provisions constitutionally approved by plaintiffs and the class they seek to represent.” Id. at 20, ¶ 82.

ARGUMENT Plaintiffs are insulting the letter and the spirit of nation’s most important Civil Rights laws by invoking them to shield illegal gambling. Plaintiffs are not really alleging, and cannot possibly allege, that the Governor and Commander have violated their right to vote. At best, what Plaintiffs are really alleging is that the Governor and Commander—and, indeed, the Alabama Supreme Court—have misinterpreted the “bingo” amendments found in the Alabama Constitution. There is no plausible argument that such an allegation states a claim under the Voting Rights Act, the Ku Klux Klan Act, or the Thirteenth, Fourteenth, and Fifteenth Amendments. This Court should therefore dismiss Plaintiffs’ Complaint under Rule 12(b)(6).

I.

Plaintiffs have no § 5 claim. Although Plaintiffs appear to be relying principally on § 5—and thus have

sought a temporary restraining order and preliminary injunction based on that 16

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 23 of 37

provision alone (Docs. 3–5 & 12)—their § 5 claim is squarely foreclosed by the U.S. Supreme Court’s decision in Presley v. Etowah County Commission, 502 U.S. 491 (1992). Section 5, by its terms, requires the State to obtain federal

preclearance before enacting any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” that was not in place on November 1, 1964. 42 U.S.C. § 1973c(a). The Supreme Court explained in Presley that this language means precisely what it says: for § 5 to apply, the changes at issue must be “changes in voting” or “election law.” 502 U.S. at 501 (internal quotation marks omitted). Presley held that an attenuated link between the “change” and voting will not suffice: the “change” must have “a direct relation to voting and the election process.” Id. at 503. Plaintiffs have not alleged, and could not possibly allege, any “change” that comes close to satisfying that standard.

A. The Governor and Commander’s conclusion that the machines are illegal is not a § 5 change. Plaintiffs cannot plausibly maintain that the Governor and Commander’s position that these machines are illegal, and their attempts to enforce the law based on that position, somehow constitute § 5 “changes” under Presley. See Doc. 4 at 5–6. Even if Alabama’s enforcement of its gambling laws could be deemed a 17

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 24 of 37

“change”—and it cannot be, for the State’s prohibitions on slot-machine gambling predate § 5’s enactment by many decades, see supra at 5—Plaintiffs cannot seriously maintain that the State’s enforcement of these laws has “a direct relation to voting and the election process.” Presley, 502 U.S at 503. The Presley Court held that only four types of “changes” generally meet the “direct relation” test: those that (1) “involve[] the manner of voting”; (2) “involve candidacy requirements and qualifications”; (3) “concern[] changes in the composition of the electorate that may vote for candidates for a given office”, or (4) “affect[] the creation or abolition of an elective office.” Id. at 502–03. Plaintiffs cannot even begin to argue that the Governor’s and Commander’s enforcement of Alabama’s gambling laws looks anything like one of these four categories. The Presley Court had good reason for ruling as it did. If Plaintiffs were right, then every time a citizen believed that a state executive official was misinterpreting a state law in a covered jurisdiction, that citizen could file a federal suit alleging that the official’s interpretation constituted a “change” affecting his or her voting rights. That would require DOJ to review virtually every state executive officer’s interpretation of every state law, even if it had no relationship to voting or elections, before he or she enforced that interpretation. And that cannot be the law. Section 5 protects voting rights and the integrity of state elections. It does not 18

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 25 of 37

provide a forum for resolving the meaning of state laws that have nothing to do with voting, and it does not require advance federal approval each time a covered State wishes to enforce its criminal laws.

B. The Governor’s directive to Tyson to enforce the law in Greene and Macon Counties is not a Section 5 “change.” Nor is there any colorable argument that the Governor’s appointment of Tyson as Task Force Commander—and his directive that Tyson, rather than local officials in Greene and Macon County, enforce the anti-gambling laws against “electronic bingo” casinos in those counties—constitutes a § 5 “change.” See Doc. 4 at 6–8. As an initial matter, there has been no “change” in Alabama law regarding the Governor’s power to direct an attorney to represent the State; statutory provisions giving the Governor power to issue such directives were around long before Congress passed the Voting Rights Act. See ALA. CODE 1940, Tit. 13, § 229(11). But even more critically, Presley squarely held that

“reallocations of authority within government” are, as a bright-line rule, never § 5 “changes.” 502 U.S at 508. The plaintiffs in Presley, represented by the same attorney who is representing Plaintiffs here, argued that transfers of duties among elected county commissioners and an appointed official constituted “changes” that had to be precleared with DOJ. See id. at 493. The Supreme Court rejected that 19

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 26 of 37

argument, finding that such changes do not have a “direct relation to voting and the election process.” Id. at 503–08; accord Patterson v. Esch, Civ. A. No. 3:09cv438, 2009 WL 2424408, at *2 (S.D. Miss. Aug. 5, 2009) (holding that “drastic changes in the power and authority of the office of mayor” were not subject to preclearance in light of Presley). Plaintiffs cannot distinguish Presley in any meaningful way. They have tried to manufacture two exceptions to Presley, and they have tried to squeeze their case into those two purported exceptions. But neither gambit gets their Complaint past Rule 12(b)(6). First, Plaintiffs erroneously assert that Presley’s holding applies only to “routine” transfers of power between state officials—and, on the basis of that erroneous premise, assert that the asserted transfer here counts as a § 5 change because it was not “routine.” Doc. 4 at 8. Plaintiffs have things precisely

backwards. The Presley Court held not that the particular transfer of power at issue there was exempt from preclearance because it was “routine,” but rather that no transfer of power between officials could ever require preclearance precisely because all such transfers are “routine.” Presley, 502 U.S. at 507–08. The Court explained that if preclearance were required “every time a state legislature acts to diminish or increase the power of public officials,” DOJ’s supervision over the 20

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 27 of 37

States’ affairs would become “limitless.” Presley, 502 U.S. at 505–06. That is precisely why the Presley Court held that courts must “formulate workable rules to confine the coverage of § 5 to its proper sphere: voting.” Id. at 506. Second, Plaintiffs also erroneously argue that “[b]y appointing defendant Tyson to enforce the provisions set out in Amendments 743 and 744, defendant Riley has implemented a de facto replacement of” local elected officials in Greene and Macon Counties. Doc. 1 at 16, ¶ 66. Presley expressly holds that when a State transfers power between elected public officials and appointed ones, the State will not be deemed to have engaged in a de facto replacement of the official who lost power so long as he or she “retains substantial authority.” 502 U.S. at 508. Plaintiffs do not allege, and could not possibly allege, that the elected local sheriffs in Greene and Macon Counties have not “retain[ed] substantial authority.” Id. They do not allege, and could not plausibly allege, that the Governor’s directive to Tyson has deprived the sheriffs of all their power to conduct investigations and arrest those who commit crimes in their counties. Indeed, the local sheriffs still retain substantial authority to regulate legal “bingo” within their jurisdictions. All they may not do under longstanding Alabama law is “broaden[] the scope of the narrow [bingo] exception to the prohibition of lotteries in the Alabama

21

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 28 of 37

Constitution” by authorizing gambling activities that are not, in fact, the traditional game of bingo. Barrett v. State, 705 So. 2d 529, 532 (Ala. Crim. App. 1996). The Supreme Court has cautioned against reading § 5 in a manner that would “exacerbate the substantial federalism costs that the preclearance procedure already exacts, . . . perhaps to the extent of raising concerns about § 5’s constitutionality.” Reno v. Bossier Parrish Sch. Bd., 528 U.S. 320, 336 (2000) (internal quotation marks omitted). Yet that is precisely what Plaintiffs are asking this Court to do. They want the Court to hold that before the Governor may exercise his authority to enforce his State’s criminal laws—in a way that has nothing to do with voting or an election—he must first obtain permission from federal executive officials in Washington, D.C. And Plaintiffs want this Court to require the Governor to seek DOJ preclearance not only of his “executive orders,” but also of any “police raids” or “law enforcement actions” that he may determine to be appropriate. Doc. 1 at 21; id. at 15, ¶ 64. Indeed, Plaintiffs’ reading of § 5 would affirmatively preclude the Governor from fulfilling his constitutional obligation to “take care that the laws be faithfully executed.” ALA. CONST. Art V, § 120. If Plaintiffs’ view prevails, then the next time an illegal casino opens, the Governor will not be able to immediately bring it into compliance with Alabama law. He will need to seek DOJ’s permission first. 22

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 29 of 37

He won’t be able to keep his investigation confidential, because DOJ regulations allow the Attorney General to release information about preclearance requests to “any interested individual or group.” 28 CFR § 51.36. And he won’t be able to move forward quickly, because those same regulations give DOJ “60 days” to rule on any preclearance request. 28 CFR § 51.9(a). Only after those months have passed—and after the casino has reaped millions in illicit profits off Alabama’s citizens—will the Governor be able to fulfill his constitutional mandate. And even then, he will be able to only if DOJ says yes. Such a world would be a casino boss’s dream, but it is not a world the Voting Rights Act creates. This Court should dismiss Count One under Rule 12(b)(6).

II.

Plaintiffs have no § 2 claim. For largely the same reasons, Plaintiffs’ § 2 claim is meritless as well.

Section 2, no less than § 5, restricts itself to acts with a direct relationship to voting. By its terms, § 2 prohibits a State from enacting only a “voting

qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a) (emphasis added). A 23

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 30 of 37

plaintiff proves a § 2 violation by showing that “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Id. § 1973(b) (emphasis added). The Supreme Court has therefore reasoned that “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (emphasis added). Thus, the same arguments that doom Plaintiffs’ § 5 claim doom their § 2 claim, too. See Holder v. Hall, 512 U.S. 874, 883 (1994) (opinion of Kennedy, J.) (“[T]he coverage of §§ 2 and 5 is presumed to be the same.”); id. at 887 (O’Connor, J., concurring in part and concurring in the judgment) (“[A]t least for determining threshold coverage, §§ 2 and 5 have parallel scope.”).

III.

Plaintiffs make no plausible claim of “purposeful discrimination.” This Court should also dismiss Count Three. That Count asserts a cause of

action for “purposeful discrimination” under § 2 of the Voting Rights Act as well 24

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 31 of 37

as the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment. But that Count fails to state a claim upon which relief can be granted for at least two independent reasons. First, to the extent that Plaintiffs are premising these “purposeful discrimination” claims on the notion that Governor Riley and Commander Tyson have deprived them of their right to vote, those claims fail for the same reasons discussed above: the Complaint does not plausibly allege that the Governor and Commander’s enforcement of Alabama’s gambling laws has deprived them of their voting rights. Plaintiffs’ § 2 and Fourteenth and Fifteenth Amendment

claims depend expressly on the premise that Governor Riley and Commander Tyson have impaired their voting rights. See supra at 23 (discussing § 2’s

relationship with voting); Doc. 1 at 19, ¶¶ 78 & 79 (asserting Fourteenth Amendment claim on premise that the defendants have compromised the plaintiffs’ “ability to” enact laws “by constitutional amendment”); U.S. CONST. amend. 15, § 1 (Fifteenth Amendment guarantees “the right of citizens of the United States to vote” (emphasis added)). And Plaintiffs’ Thirteenth Amendment claim fails

because the Complaint does not allege—and could not plausibly allege—that Governor Riley and Commander Tyson’s enforcement of the state’s gambling laws has caused “slavery” or “involuntary servitude.” U.S. CONST. amend. 13, § 1; cf. 25

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 32 of 37

Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981) (“[T]he [Thirteenth] amendment’s independent scope is limited to the eradication of the incidents or badges of slavery and does not reach other acts of discrimination.”). Second and perhaps even more importantly, all these claims are due to be dismissed because, as the Supreme Court’s recent decision in Iqbal confirms, Plaintiffs have failed to allege facts setting forth a plausible claim that Governor Riley and Commander Tyson engaged in unlawful, “purposeful discrimination.” As Iqbal noted, to establish a claim of purposeful discrimination, a plaintiff must show that a state actor undertook a course of action “‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” 129 S. Ct. at 1948 (quoting Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979)). The Court emphasized that to survive Rule 12(b)(6), the allegations that the defendant acted with such a motive cannot be “conclusory.” Id. at 1951. Likewise, allegations of facts that are merely “consistent with” allegations of purposeful discrimination against a racial group will not suffice if there are “more likely explanations” for the defendant’s actions. Id. As was the case in Iqbal, Plaintiffs have not “‘nudged [their] claims’ of invidious discrimination ‘across the line from conceivable to plausible.’” Id.

(quoting Twombly, 550 U.S. at 570). As an initial matter, their allegation that 26

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 33 of 37

Governor Riley and Commander Tyson acted with a “racially discriminatory purpose” amounts to “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Id. (quoting Twombly, 550 U.S. at 555). That allegation is thus “conclusory and not entitled to be assumed true.” Id. Nor do the Complaint’s factual allegations give rise to a plausible claim of intentional discrimination. The only fact on which Plaintiffs appear to rely on this front is the percentage of African-American voters in Greene and Macon County. See Doc. 1 at 17–18, ¶¶ 72–73. “But given more likely explanations” for Governor Riley and Commander Tyson’s actions, the mere fact that those counties have large African-American populations “do[es] not plausibly establish [a discriminatory] purpose.” Iqbal, 129 S. Ct. at 1950. Executive Order 44 called for the Task Force to “promot[e] and support[] uniform statewide enforcement of Alabama’s antigambling laws.” Exh. A at 3. The Complaint does not allege, and could not plausibly have alleged, that the Task Force failed to enforce the State’s gambling laws in other counties—including counties with white majorities. The Governor’s and Commander’s uniform enforcement of the gambling laws throughout Alabama is thus a “more likely explanation[]” for their acts in Greene and Macon County. Iqbal, 129 S. Ct. at 1951. “As between that ‘obvious alternative explanation’” and “the purposeful, invidious discrimination [Plaintiffs] ask[] [the Court] to infer, 27

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 34 of 37

discrimination is not a plausible conclusion.” (quoting Twombly, 550 U.S. at 567).

Iqbal, 129 S. Ct. at 1951–52

IV.

Plaintiffs make no plausible claim under the Ku Klux Klan Act. Plaintiffs’ claims under the Ku Klux Klan Act should be dismissed as well.

That Act makes it unlawful for “two or more persons in any State or Territory [to] conspire or go in disguise on the highway or on the premises of another, for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws.” 42 U.S.C. § 1985(3). As an initial matter, Plaintiffs cannot prove a “conspiracy” between Governor Riley and Commander Tyson because the State and the officials who act on its behalf “constitute[] a single legal entity that cannot conspire with itself” for the purposes of § 1985(3). Dickerson v. Alachua County Comm’n, 200 F.3d 761, 768 (11th Cir. 2000). But more critically, for the reasons given above, Plaintiffs have made no plausible allegation that Governor Riley and Commander Tyson have acted to “depriv[e]” anyone “of the equal protection of the laws” here. 42 U.S.C. § 1985(3). Plaintiffs are complaining because Governor Riley and Commander Tyson have followed Executive Order 44’s mandate, which by its terms expressly called for the equal

28

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 35 of 37

enforcement of the laws throughout Alabama. Plaintiffs’ allegations of racism are baseless, and Count Four must be dismissed. CONCLUSION Although this three-judge panel was convened to hear Plaintiffs’ § 5 claim, it has discretion to exercise jurisdiction over, and dismiss, all of Plaintiffs’ claims. See Clayton v. North Carolina State Bd. of Elections, 317 F. Supp. 915, 920 (E.D.N.C 1970) (citing Rosado v. Wyman, 397 U.S. 397, 402–05 (1970)). The panel should do so. Alternatively, the three-judge panel also has discretion to dismiss Plaintiffs’ § 5 claim and then transfer jurisdiction over the remainder of the claims to the single-judge court, which may then dismiss them under Rule 12(b)(6). See Robertson v. Bartels, 148 F. Supp. 2d 443, 461–62 (D.N.J. 2001) . Either way, this Court should dismiss this entire case.

29

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 36 of 37

Respectfully submitted, __s/Henry T. Reagan_____ Attorney for Defendant Governor Bob Riley OF COUNSEL: Henry T. Reagan (REA021) OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 (334) 242-7120 (334) 242-2335 (fax) __s/Martha Tierney_____ Attorney for Defendant Commander John M. Tyson, Jr. OF COUNSEL: Martha Tierney (TIE001) OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 (334) 242-7120 (334) 242-2335 (fax)

30

Case 7:10-cv-02067-SLB Document 13

Filed 08/27/10 Page 37 of 37

CERTIFICATE OF SERVICE On August 27, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of the filing to the following counsel of record: Edward Still 2112 11th Avenue South Suite 541 Birmingham, AL 35205 205-320-2882 fax 205-449-9752 E-mail: still@votelaw.com James U. Blacksher 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 s/ Henry T. Reagan OF COUNSEL

31

Sign up to vote on this title
UsefulNot useful