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FILED
2010 Sep-02 PM 01:32 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’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO CLARIFY SCHEDULING ORDER

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Plaintiffs William Johnson et al., through undersigned counsel, reply as follows to defendants’ response, Doc. 17, to plaintiffs’ motion, Doc. 16, for clarification and/or reconsideration of the scheduling order entered August 30, 2010, Doc. 15. Defendants are simply wrong when they argue that scheduling a hearing on plaintiffs’ motions for preliminary injunction, Docs. 3 and 12, at the same time as a hearing on defendants’ motion to dismiss, Doc. 13, would be “contrary to the interests of both federalism and judicial economy....” Doc. 17 at 1. Only this three-judge court has jurisdiction to address both plaintiffs’ motion for preliminary injunction and defendants’ motion to dismiss plaintiffs’ claim under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c. And the three-judge court does not have jurisdiction to address the remaining statutory and constitutional claims in the complaint. It is judicially efficient and routine for a three-judge court to hold a single hearing on both a motion for preliminary injunction and a motion to dismiss. E.g., Smith v. Clark, 189 F.Supp.2d 503, 505 (S.D. Miss. 2002) (3-judge court) (Voting Rights Act), aff’d sub nom. Branch v. Smith, 538 U.S. 254 (2003); Johnson v. Mortham, 915 F.Supp. 1529, 1534 (N.D. Fla. 1995) (3-judge court) (Voting Rights Act). It is just as routine for the hearing on preliminary injunction and
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motion to dismiss to be consolidated in single-judge actions. E.g., National Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 848 (1985); Hodel v. Indiana, 452 U.S. 314, 320 (1981); Operation King's Dream v. Connerly, 501 F.3d 584, 586 (6th Cir. 2007) (Voting Rights Act); Kuhn v. Thompson, 304 F.Supp.2d 1313, 1321 (M.D. Ala. 2004). The hearing on the Governor of Alabama’s motion for preliminary injunction was consolidated with defendant’s motion to dismiss in Hunt v. Anderson, 794 F.Supp. 1551, 1553 (M.D. Ala. 1991). The motion for preliminary injunction and motion to dismiss both require the three-judge court to resolve the merits of plaintiffs’ § 5 claim: Did Governor Riley’s Executive Order 44 and the Task Force raids carried out pursuant to that executive order implement changes affecting voting? There is no point in hearing one motion but not the other. Delaying the hearing until November 2010 would effectively deny plaintiffs’ motion for preliminary injunction. WHEREFORE, plaintiffs pray that the three-judge court will grant the relief sought in their motion to clarify, Doc. 16. Respectfully submitted this 2nd day of September, 2010,

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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

s/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

CERTIFICATE OF SERVICE I hereby certify that on September 2, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel of record: Henry T. Reagan (REA021) OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 Martha Tierney (TIE001) OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130

Notice of this filing has also been sent by email and first class postage to: Hon. Troy King Attorney General 500 Dexter Ave. Montgomery AL 36130
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Respectfully submitted, s/James U. Blacksher Bar No. ASB-2381-S82J P.O. Box 636

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Birmingham AL 35201 205-591-7238 Fax: 866-845-4395 E-mail: jblacksher@ns.sympatico.ca

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