Ballot Harvesting Motion To Dismiss

Case 2:24-cv-00420-RDP Document 42 Filed 05/20/24 Page 1 of 52 FILED
2024 May-20 PM 05:51

U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALABAMA STATE CONFERENCE )

OF THE NAACP, et al., )
)
Plaintiffs, )
)
v. ) Case No. 2:24-cv-420-RDP
)
STEVE MARSHALL, in his official )
capacity as Attorney General of )
Alabama, et al., )
)
Defendants. )
DEFENDANTS’ MOTION TO DISMISS
OFFICE OF THE ATTORNEY GENERAL Steve Marshall

STATE OF ALABAMA Attorney General
501 Washington Avenue
Edmund G. LaCour Jr. (ASB-9182-U81L)
P.O. Box 300152
Solicitor General
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300 James W. Davis (ASB-4063-I58J)
Fax: (334) 353-8400 Deputy Attorney General
[email protected] Soren Geiger (ASB-0336-T31L)
[email protected] Dylan Mauldin (ASB-3281-Z11M)
[email protected] Assistant Solicitors General
[email protected]
[email protected] Brenton M. Smith (ASB-1656-X27Q)
[email protected] Charles A. McKay (ASB-7256-K18K)
Assistant Attorneys General
Counsel for Defendants
May 20, 2024

Case 2:24-cv-00420-RDP Document 42 Filed 05/20/24 Page 2 of 52
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1
II. BACKGROUND ................................................................................................................ 3
A. Statutory Framework ....................................................................................................... 3
B. Voter Fraud in Alabama................................................................................................... 5
III. LEGAL STANDARD ......................................................................................................... 9
IV. ARGUMENT ...................................................................................................................... 9
A. Plaintiffs’ Complaint Is An Impermissible Shotgun Pleading. ........................................ 9
B. Plaintiffs Cannot Establish Standing To Sue Secretary Allen. ...................................... 13
C. SB1 Does Not Violate Plaintiffs’ Free Speech Rights (Count I). .................................. 15
1. SB1 does not abridge speech. ............................................................................... 15
2. SB1 does not abridge expressive conduct either................................................... 21
3. Even if SB1 imposes some incidental burden on Plaintiffs’ First Amendment
rights, it easily meets the applicable and “relatively lenient” O’Brien
standard. ............................................................................................................... 24
D. SB1 Does Not Violate Plaintiffs’ Right To Associate (Count II). ................................. 27
E. SB1 Is Not Unconstitutionally Vague (Count III). ........................................................ 30
F. SB1 Is Not Unconstitutionally Overbroad (Count IV). ................................................. 37
G. By Exempting from Liability the Exact Assistance That § 208 of the VRA Permits,
SB1 Cannot Violate or Be Preempted by It (Count V). ................................................ 41
H. ADAP’s HAVA Claim Fails Because SB1 Permits ADAP to Assist Voters, But
Regardless They Lack a Cause of Action to Bring This Claim (Count VI). ................. 44
V. CONCLUSION ........................................................................................................................ 48
I. INTRODUCTION
Any “government whose essential character is republican … must have the power to pro-
tect the elections on which its existence depends from violence and corruption.” The Ku Klux
Cases, 110 U.S. 651, 657-58 (1884). Without “this power it is left helpless before the two great
natural and historical enemies of all republics, open violence and insidious corruption.” Id. at 658.
Alabama has exercised this power in several ways. For example, the State prohibits vote buying.
ALA. CODE § 17-17-34. “With payments being made for voting, voters who might otherwise not
have voted are brought into the electoral pool; the voters who are paid are subject to manipulation
by the parties who paid them,” and the election devolves into “a spending contest with the candi-
date most willing and able to make such payments having the greatest chance of winning.” United
States v. Bowman, 636 F.2d 1003, 1012 (5th Cir. Feb. 9, 1981).
More recently, in light of the long history of abuses of absentee voting, the State enacted
SB1, codified at ALA. CODE § 17-11-4, which safeguards the absentee ballot applications process.
It is easy for a voter who is eligible to vote absentee to request an application, and the recent
reforms ensure that the process is driven by voters, not unduly influenced by interested parties.
Applications must be submitted by the applicant (unless a disabled voter requires assistance). Pre-
filling an application is prohibited, which among other things, cuts down on potential fraud (e.g.,
through mass applications) and confusion (e.g., when voters receive misaddressed or unsolicited
forms). And SB1 prohibits absentee ballot application buying. No one may knowingly provide or
“receive a payment or gift for distributing, ordering, requesting, collecting, completing, prefilling,
obtaining, or delivering a voter’s absentee ballot application.” ALA. CODE § 17-11-4(d)(1)-(2). No
federal law or constitutional provision forbids these commonsense safeguards for the franchise.
Plaintiffs respond with a sprawling 6-count, 71-page, 173-paragraph complaint that fails
first as a shotgun pleading, and second for failing to state a claim. First, Plaintiffs’ complaint is a
1
classic shotgun pleading. Each count incorporates all “relevant allegations contained in the pre-
ceding paragraphs.” See, e.g., Doc. 1, ¶ 121. And many of Plaintiffs’ factual allegations are irrel-
evant anyway; most notably, the complaint features a lengthy discussion of racial discrimination
despite featuring no racial discrimination claim. See, e.g., Doc. 1, ¶¶ 36-45. Each problem alone
(and certainly combined) make Plaintiffs’ complaint an impermissible shotgun pleading.
On the merits, each of Plaintiffs’ claims fails. First, Plaintiffs’ free speech rights are not
violated by the ballot harvesting ban because the statute they challenge does not regulate their
speech. While prefilling, distributing, or collecting absentee ballot applications might sometimes
accompany Plaintiffs’ speech, that does not transform the prohibited conduct into speech, any more
than the State’s ban on paying a potential voter (or absentee ballot applicant). Second, Plaintiffs’
freedom of association claim likewise fails because the ballot harvesting ban does not impose any
significant constraint on Plaintiffs’ associational rights. Third, Plaintiffs assert that the law is un-
constitutionally vague, but establish only “that close cases can be envisioned.” United States v.
Williams, 553 U.S. 285, 305 (2008). Fourth, Plaintiffs’ First Amendment overbreadth claim fails
because the law does not prohibit speech, and even if it did, it still has a plainly legitimate sweep.
Fifth, Plaintiffs assert that the law is preempted by Section 208 of the Voting Rights Act, which
provides: “Any voter who requires assistance to vote by reason of blindness, disability, or inability
to read or write may be given assistance by a person of the voter’s choice, other than the voter’s
employer or agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. § 10508.
But subsection (e) of the ballot harvesting ban includes the same language. Moreover, § 208 allows
a disabled voter to select “a” person of her choice, not “any” person, and thus does not preempt
SB1’s targeted restriction on paid operatives distributing, completing, and collecting ballot appli-
2
cations. Finally, Plaintiff Alabama Disabilities Advocacy Program claims that the ballot harvest-
ing ban violates the Help America Vote Act (HAVA) because that statute grants ADAP money to
“ensure full participation in the electoral process for individuals with disabilities.” 52 U.S.C.
§ 21061(a). But HAVA does not provide ADAP a cause of action to sue Defendants or provide
judicially administrable standards. Accordingly, Defendants move to dismiss Plaintiffs’ claims
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. BACKGROUND
A. Statutory Framework
While every citizen qualified to vote in Alabama “shall be entitled to register and to vote
at any election by the people,” ALA. CODE § 17-3-30, a registered voter in Alabama “may apply
for and vote an absentee ballot” only “if he or she makes application in writing and meets one or
more of [eight] requirements,” id. § 17-11-3(a). Absentee voting is an accommodation for those
who cannot vote in person on election day, not a general vote-by-mail alternative.
A voter is legally qualified to vote absentee only if he or she: (1) plans to be out of the
county or state on election day; (2) has an illness or infirmity that prevents in-person attendance at
the polls; (3) has a work shift of at least ten hours that coincide with the hours at his polling loca-
tion; (4) is “a student at an educational institution located outside the county of his or her personal
residence, attendance at which prevents his or her attendance at the polls;” (5) is a service member
or qualified relative of a service member pursuant to “the federal Uniformed and Overseas Citizens
Absentee Voting Act;” (6) is an election official or volunteer at polling place other than his own
polling place; (7) the person is a qualified family caregiver; or (8) is incarcerated and has not been
convicted of a felony involving moral turpitude. ALA. CODE § 17-11-3(a)(1)-(8). “[A]ny person
who willfully aids any person unlawfully to vote an absentee ballot, any person who knowingly
3
and unlawfully votes an absentee ballot, and any voter who votes both an absentee and a regular
ballot at any election” is guilty of a Class C felony. Id. § 17-17-24(a).
The absentee ballot application has two pages: one for the applicant’s personal information
and the other specifying crimes of moral turpitude and penalties for unlawful absentee voting.
https://www.sos.alabama.gov/alabama-votes/voter/absentee-voting (General Absentee Applica-
tion). Absentee applications for all 67 counties in Alabama are publicly available on the Secretary
of State’s website. See https://www.sos.alabama.gov/alabama-votes/absentee-ballot-application-
by-county. Anybody without access to a printer may request that an application be sent to them.
https://www.sos.alabama.gov/contact/absentee_application_request.
On March 20, 2024, Governor Kay Ivey signed Senate Bill 1 into law, which amended the
section of the Alabama Code that governs the absentee ballot application process. SB1 clarifies
that the absentee application issued by the Secretary of State shall require “[t]hat the applicant
submit sufficient information to identify the applicant,” a declaration that the applicant is not
barred from voting, and “[a]n explanation of penalties for violations of this section.” id. § 17-11-
4(a). Consistent with existing law, “any applicant may receive assistance in filling out the appli-
cation as he or she desires,” but each applicant signs their own application “under penalty of per-
jury,” id. § 17-11-4(b)(1). If the applicant signs by mark, “the application shall also include the
name of the witness and the witness’s signature.” Id.
SB1 then creates four new election offenses related to absentee applications. Under the
Prefilled-Application Provision, “[i]t shall be unlawful for any person to knowingly distribute an
absentee ballot application to a voter that is prefilled with the voter’s name or any other information
required on the application form.” Id. § 17-11-4(b)(2). Under the Submission Provision, “it shall
be unlawful for an individual to submit a completed absentee ballot application to the absentee
4
election manager other than his or her own application,” except in cases where a voter requires
emergency medical treatment “within five days before an election.” Id. § 17-11-4(c)(2). Lastly,
the Compensation Prohibition criminalizes trafficking absentee ballot applications, specifying dif-
ferent offenses for the two different actors in the transaction. It is a Class C felony for “a third
party to knowingly receive a payment or gift for distributing, ordering, requesting, collecting, pre-
filling, obtaining, or delivering a voter’s absentee ballot application.” Id. § 17-11-4(d)(1). It is a
Class B felony “for a person to knowingly pay or provide a gift to a third party to distribute, order,
request, collect, prefill, complete, obtain, or deliver a voter's absentee ballot application.” Id. § 17-
11-4(d)(2).
SB1 provides an accommodation for disability voting assistance identical to federal law:
“Any voter who requires assistance to vote by reason of blindness, disability, or inability to read
or write may be given assistance by an individual of the voter’s choice, other than the voter’s
employer or agent of that employer or officer or agent of the voter’s union.” Compare id. § 17-11-
4(e), with 52 U.S.C. § 10508 (same).
B. Voter Fraud in Alabama

Although Alabama is not required to wait until widespread fraud occurs before it acts, fraud
arising from absentee balloting and ballot harvesting has occurred in Alabama and elsewhere—
and not just with the ballots, but with the applications too. The Eleventh Circuit has recognized
the existence of such schemes:
[I]n the mid-1990s, Alabama grappled with some recent, high-profile, and well-
documented cases of absentee voter fraud that captured the public attention of Al-
abamians. These instances of voter fraud were summarized by a July 1996 article
in The Birmingham News.
Various citizen groups formed to spread the word about the need for a photo ID law
to combat voter fraud. Alabama and the federal government worked together to
investigate and prosecute cases of voter fraud in absentee voting. The investigation
uncovered that, for example, voters would sign absentee ballot-related paperwork
5
without ever marking the ballot, and, in a handful of instances, the voters were not
involved in the process at all and their signatures were forged. Sometimes voters
would be convinced, threatened, or bribed to give up their ballot materials and
sometimes voters would sign the absentee ballot affidavits without marking the bal-
lots. One investigation also revealed there were people at the polls on election day
with a list of voters whose ballots had been fraudulently cast and they would chase
away these voters when they came to the polls to cast their ballots.
Greater Birmingham Ministries v. Sec’y of State for State of Ala., 992 F.3d 1299, 1305 (11th Cir.
2021) (footnotes omitted) (emphasis added); see also Greater Birmingham Ministries v. Sec’y of
State for State of Ala., 284 F. Supp. 3d 1253, 1257 (N.D. Ala. 2018) (discussing same instances in
more detail, including “voter brokers following mail trucks and removing absentee ballots from
mailboxes,” intimidating poor and elderly voters, and pressuring and solicitation of nursing home
patients); Ala. State Conf. of NAACP v. Alabama, 612 F. Supp. 3d 1232, 1305 n.51 (M.D. Ala.
2020) (discussing several instances of voter fraud involving absentee ballots).
Of the many cases that arose (both through criminal prosecutions and election contests),
several concerned not just fraud involving the absentee ballots, but the absentee ballot applications
as well. See, e.g., Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999) (recognizing several instances of
absentee ballot applications fraudulently signed in election contest); Evans v. State, 794 So. 2d
415, 425-429 (Ala. Crim. App. 2000) (affirming multiple convictions for illegal absentee voting
premised on fraudulent absentee ballot applications); Wilder v. State, 401 So. 2d 151, 162 (Ala.
Crim. App. 1981) (affirming illegal voting convictions and recounting testimony that defendant
brought voter an absentee ballot application and told her she would “fix the paper” for her to which
voter did not object “because she did not know what it was all about” but “did not sign anything
for them or mark any ballot”); United States v. Smith, 231 F.3d 800, 805 n.2, 822 (11th Cir. 2000)
(affirming all but one conviction of one defendant on nine counts related to fraudulent absentee
ballot applications).
6
Nor is voter fraud a thing of the past in Alabama. Both convictions and successful election
contests have been maintained in the last several years in Alabama premised on absentee ballot
fraud. For example, a successful election contest required the vacatur from office of Brandon
Dean—who had been declared mayor of Brighton, Alabama in 2016—upon finding that he pro-
cured a number of illegal absentee votes in his favor, many of which falsely listed Dean’s own
address as the address at which they regularly received mail. See Final Order, Cooper v. Brown,
No. 68-CV-2016-900602.00 (Jefferson Cnty. Cir. Ct. Sept. 25, 2017) (Doc. 246).1 Similarly, an
election contest involving a 2018 Bessemer City Council race seat resulted in 27 votes being dis-
counted upon finding a number of irregularities in the balloting process including signature mis-
matches, residency problems, and improper witnessing of applications from nursing home resi-
dents. See Final Order on Election Contest, Porter v. Alexander, No. 68-CV-2018-900776.00 (Jef-
ferson Cnty. Cir. Ct. Sept. 3, 2021) (Doc. 294). Criminal prosecutions have occurred as well, such
as the 2017 convictions of Gordon Mayor Elbert Melton for falsely notarizing absentee ballots
without the voter present. See State v. Melton, No. 38-CC-2017-1469 & -1467 (Houston Cnty. Cir.
Ct. Jan. 16, 2019).2 These examples are not exhaustive; they cover only a few of the documentable
cases of voter fraud in Alabama in recent years, and do not (definitionally) capture those instances
of voter fraud that could not be detected or proved for one reason or another.
1
A copy of this order, as well as the other State court orders referenced in this section, are
attached as exhibits to this motion. The Court can take judicial notice of these orders and the judi-
cial acts they represent. See FED R. EVID. 201(c)(2); McGuire v. Marshall, 50 F.4th 986, 994 n.8
(11th Cir. 2022).
2
Melton’s charges came in three separate cases; the indictments and verdicts from the two
cases ending in conviction are attached to this motion as an exhibit. The third case was dismissed
on the State’s motion due to the death of the victim. See State v. Melton, No. 38-CC-2017-1471
(Houston Cnty. Cir. Ct. Jan. 16, 2019) (Doc. 23).
7
Fraud involving absentee ballots and applications occurs not just in Alabama, but in other
States as well. In League of Women Voters of Florida Inc. v. Florida Secretary of State, where
challengers questioned Florida’s motivations for election security laws, the Eleventh Circuit found
that “the record includes undisputed evidence of fraud—including vote-by-mail fraud in Florida.”
66 F.4th 905, 26 (11th Cir. 2023). Such evidence included “ballot brokers” who exploited elderly
voters, voted other persons’ ballots, and “harassed and pressured elderly voters.” Id. And in North
Carolina, the State Board of Elections called for a new congressional election after uncovering
pernicious ballot harvesting.3 There, Republican congressional candidate Mark Harris hired
McCrae Dowless to operate a ballot harvesting operation. Dowless paid workers to collect and
submit absentee by mail request forms, some of which were fraudulent, and to collect absentee by
mail ballots, some of which were unsealed and unvoted. All such applications and ballots were
delivered to Dowless. Id. at 13-25. They forged witness signatures, voted the blank ballots, and
admitted that they “pushed” votes for the Republican candidate. Id.
Again, these are just a few examples. The Supreme Court has recognized “that flagrant
examples of such fraud in other parts of the country have been documented throughout this Na-
tion’s history by respected historians and journalists, that occasional examples have surfaced in
recent years, and that not only is the risk of voter fraud real but that it could affect the outcome of
3
The North Carolina State Board of Election’s Order can be found at
https://dl.ncsbe.gov/State_Board_Meeting_Docs/Congressional_District_9_Portal/Order_031320
19.pdf. This Court can take judicial notice of the Order because it is an official document of an
independent agency created by North Carolina law. See FED R. EVID. 201(c)(2); McGuire v., 50
F.4th at 994 n.8. The State Board has the authority to “investigate when necessary or advisable,
the administration of election laws, frauds and irregularities in elections in any county and munic-
ipality and special district, and shall report violations of the election laws to the State Bureau of
Investigation for further investigation and prosecution.” N.C. Gen. Stat. Ann. § 163-22.
8
a close election.” See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 194 (2008) (lead
opinion).
III. LEGAL STANDARD

“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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “Plaintiffs must plead all facts establishing an entitlement to relief with more than
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Resnick
v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). The “allegations must permit the court based on its ‘judicial experience
and common sense … to infer more than the mere possibility of misconduct.’” Kornegay v. Baretta
USA Corp., 614 F. Supp. 3d 1029, 1033-34 (N.D. Ala. 2022) (quoting Iqbal, 556 U.S. at 679).
IV. ARGUMENT
A. Plaintiffs’ Complaint Is An Impermissible Shotgun Pleading.
“Shotgun pleadings ‘are flatly forbidden by the spirit, if not the letter, of” Rule 8(a)(2) and
10(b) of the Federal Rules of Civil Procedure. Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th
Cir. 2021). Rule 8(a)(2) requires complaints to give “a short and plain statement of the claim show-
ing that the pleader is entitled to relief.” And Rule 10(b) requires a party to “state its claim or
defenses in numbered paragraphs, each limited as far as practicable to a single set of circum-
stances.” “The ‘self-evident’ purpose of these rules is ‘to require the pleader to present his claims
discreetly and succinctly, so that[] his adversary can discern what he is claiming and frame a re-
sponsive pleading.’” Barmapov, 986 F.3d at 1324 (quoting Weiland v. Palm Beach Cnty. Sheriff’s
Off., 792 F.3d 1313, 1320 (11th Cir. 2015)) (alteration in original). “These rules were also for the
benefit of the court, which must be able to determine ‘which facts support which claims,’ ‘whether
9
the plaintiff has stated any claims upon which relief can be granted’ and whether evidence intro-
duced at trial is relevant.” Id.
A shotgun pleading undermines these foundational aspects of litigation “because they are
‘calculated to confuse the enemy, and the court,’” to mask some aspect of the case to the prejudice
of an opponent. Id. “Such a pleading is never plain because it is impossible to comprehend which
specific factual allegations the plaintiff intends to support which of his causes of action, or how
they do so.” Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir. 2020). Moreover,
they “waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on
appellate court dockets, and undermine the public’s respect for the courts.” Barmapov, 986 F.3d
at 1324. Courts thus “have ‘little tolerance’ for them.” Id.
The Eleventh Circuit has identified four rough categories of shotgun pleading, two of
which are relevant here. See id. at 1324-25. The first type is a complaint with multiple counts that
adopt and incorporate allegations en masse—including those contained within previous counts—
causing uncertainty as to which factual allegations support which claims. The second type is a
complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action.” Id. Ultimately, “[t]he unifying characteristic of all types of shotgun
pleadings is that they fail to one degree or another, and in one way or another, to give the defend-
ants adequate notice of the claims against them and the grounds upon which each claim rests.”
Weiland, 792 F.3d at 1323.
Plaintiffs’ complaint implicates the first category of shotgun pleading by, in each separate
count, “realleg[ing] and incorporat[ing] by reference the relevant allegations contained in the pre-
ceding paragraphs, as if fully set forth herein.” Doc. 1, ¶¶ 121, 134, 143, 151, 158, 167. Though
this language varies slightly from the classic shotgun complaint formulation—which adopts all
10
preceding allegations, regardless of their purported relevance—it offers no more clarity. Both De-
fendants and the Court still face the onerous task of sifting through Plaintiffs’ 71-page, 173-para-
graph complaint to “determin[e] which fact(s) are relevant to which count(s).” Dugas v. 3M Co.,
Case No: 3:14-cv-1096-J-39JBT, 2014 WL 12618701, at *1 (M.D. Fla. Nov. 20, 2014) (rejecting
sua sponte proposed amended complaint that incorporated “by reference … all relevant allega-
tions” as impermissible shotgun complaint); see also Chudasama v. Mazda Motor Corp., 123 F.3d
1353, 1359 n.9 (11th Cir. 1997) (“[A] reader of the complaint must speculate as to which factual
allegations pertain to which count.”).4 It also remains possible that each count incorporates all or
some of the counts that came before (a reader can only guess whether Plaintiffs consider allega-
tions within preceding counts to be “relevant”), resulting in the last count being some “combination
of the entire complaint.” Weiland, 792 F.3d at 1321. Moreover, determining which allegations are
relevant becomes even more difficult when large swaths of the complaint aren’t relevant at all.
To that point, Plaintiffs’ complaint also implicates the second category of shotgun pleading
by alleging many “conclusory, vague, and immaterial facts” that don’t align with their claims. Id.
at 1322. Most prominently, it levels accusations of racial discrimination throughout—in varying
degrees of directness—despite not raising any claim to which race is relevant. See, e.g., Doc. 1,
4
For instance, Plaintiffs’ Count III specifically identifies only the “Payment and Gift Provi-
sions” as “unconstitutionally vague laws,” without reference to any other provisions of SB1. Doc.
1, ¶ 146. But a preceding section of the complaint titled “SB 1’s Vague Provisions Do Not Suffi-
ciently Protect Disabled, Blind, or Low Literacy/Illiterate Voters,” id. at 48, criticizes the clarity
of the Submission Restriction, Prefilling Restriction, and the Disability Provision, in addition to
the “Payment and Gift Provisions,” id. ¶¶ 106-114. An even earlier section about “Vague and
Overbroad Provisions,” id. at 38, takes issue with the word “submit,” id. ¶ 86, which first appears
in § 17-11-4(a)(1). Have Plaintiffs alleged that virtually the entirety of SB1—from subsection (a)
to (e)—is incomprehensible? Readers are left to speculate.
11
¶¶ 1, 3, 5, 36-45, 51, 87, 97-98, 104-05.5 Similarly, discriminatory intent or impact (whether racial
or otherwise) is not relevant to any of Plaintiffs’ claims, rendering wholly unnecessary any discus-
sion of Alabama’s history or the legislative history of the challenged provisions. See, e.g., id.
¶¶ 36-61 (Sections I and II of Plaintiffs’ “Factual Allegations” starting at page 22). “A substantial
number” of voters protected by SB1 surely “are Black or Latino,” id. ¶ 87, but they share in the
same free speech rights and disability voting protections enjoyed by all voters—regardless of race.
Conclusory factual and legal allegations also abound. See, e.g., id. ¶ 80 (asserting that the statute
criminalizes “core political speech, noncommercial expressive conduct, and conduct which im-
pacts the right to vote”). Any of these categories of problematic allegations alone would warrant
striking Plaintiffs’ complaint as a shotgun pleading, let alone all of them together.
The sheer scope of Plaintiffs’ complaint compounds these problems. The document con-
sists of 71 pages with 173 separately numbered paragraphs (not counting the prayer for relief). It
names 44 separate defendants, 43 of whom Plaintiffs did not need to sue to get the relief they
sought. Indeed, Plaintiffs quickly agreed to voluntarily dismiss all 42 of the district attorney de-
fendants. The only defendant necessary to enjoin criminal enforcement of Alabama law is the
Attorney General. See Doe v. Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003) (citing Graddick v.
5
Racializing a case without a race-based claim is not a new strategy for at least several of
Plaintiffs’ attorneys. See Hudson v. Ivey, SC-2022-0836, 2023 WL 2620607, at *6-8 (Ala. Mar.
24, 2023) (Mitchell, J., concurring) (“[R]epeated references to [race, sex, and gender identity]
characteristics are made throughout [plaintiff’s] filings in this case, for no apparent reason other
than to make an ideological point. I caution attorneys practicing in our courts not to repeat these
tactics in future cases.”). Further, Plaintiffs’ assertion that “[a] direct line can be traced from” Jim
Crow-era racial discrimination to SB1 cheapens the repugnant practices in “Alabama’s history.”
See Doc. 1, ¶ 51. Moreover, their insinuation that “the right to vote” would be “an empty promise”
for minority voters unless someone else provides, fills out, and submits their voter forms sends the
demeaning message that minority voters lack the sophistication to participate in the democratic
process. See id. ¶ 5.
12
Galanos, 379 So. 2d 592, 594 (Ala. 1980)); ALA. CODE § 36-15-14.6 Moreover, Secretary Allen
has no enforcement power here and thus is not even a proper defendant (let alone a necessary one).
See infra Section IV.B. Adding numerous unnecessary defendants imposes significant burdens on
defense counsel, but also implicates other aspects of the case such as venue and potential conflicts
for counsel or the Court.
In sum, Plaintiffs’ complaint is more press release than pleading. Exacerbated by opaque
claims, immaterial factual allegations, and the sheer breadth of the filing, the effort required to
determine where Plaintiffs’ legal claims begin and where their posturing ends requires exertion
well beyond that tolerated by Rules 8(a)(2) and 10(b). It should not fall to Defendants and the
Court to unravel Plaintiffs’ mess. Instead, this Court should dismiss Plaintiffs’ complaint as a shot-
gun pleading, with leave to refile a new complaint that cures the problems identified above.
B. Plaintiffs Cannot Establish Standing To Sue Secretary Allen.

“[T]he irreducible constitutional minimum of standing contains three elements”: (1) injury,
(2) traceability; (3) redressability. Defs. of Wildlife v. Lujan, 504 U.S. 555, 560 (1992). Plaintiffs
cannot establish that their alleged injury is either traceable to or redressable by Secretary Allen.
Starting with traceability, “the relevant inquiry is whether the plaintiffs’ injury can be
traced to ‘allegedly unlawful conduct’ of the defendant, not to the provision of law that is chal-
lenged.” Collins v. Yellen, 141 S. Ct. 1761, 1779 (2021). Plaintiffs frame their alleged injury as
fear of prosecution; indeed, the injunctive relief sought is to prohibit “enforcing the Challenged
Provisions of SB1.” Doc. 1, p. 69 ¶ B. But Plaintiffs’ only allegations regarding Secretary Allen’s
6
Indeed, at least one of the organizations representing Plaintiffs have not always adhered to
the view that they need all 42 district attorneys to get effective relief. See, e.g., Yellowhammer
Fund v. Marshall, No. 2:23-cv-450-MHT-KFP (M.D. Ala. filed July 31, 2023) (ECF No. 1); but
see W. Ala. Women’s Center v. Marshall, 2:23-cv-451-MHT-KFP (M.D. Ala. filed July 31, 2023)
(ECF No. 1) (marked as a related case and subsequently consolidated with Yellowhammer Fund).
13
connection to the challenged provisions is that he “has the authority, and indeed the obligation, to
tell election officials how to implement election laws.” Id. ¶ 35. Regardless, Secretary Allen has
no authority to prosecute violations of the challenged provisions and thus Plaintiffs’ alleged injury
is not traceable to him. Even Secretary Allen’s general rulemaking authority does not establish
causation because Secretary Allen lacks any authority to force local election officials to follow
those rules. See Nat’l Fed’n of the Blind of Ala. v. Allen, 661 F. Supp. 3d 1114, 1121-22 (N.D.
Ala. 2023). Either way, Plaintiffs cannot show that their supposed injuries have been caused by
any “allegedly unlawful conduct” of Secretary Allen.
Similarly, Secretary Allen cannot redress Plaintiffs’ alleged injury because he has no au-
thority to carry out the relief they request. Redressability requires considering whether a favorable
decision significantly increases the likelihood that plaintiffs “would obtain relief that directly re-
dresses the injury” alleged. Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (en
banc). Additionally, “‘it must be the effect of the court’s judgment on the defendant’—not an ab-
sent third party—‘that redresses the plaintiff’s injury, whether directly or indirectly.’” Id. (quoting
Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015)). Redressability
thus cannot be established when another party bears responsibility for enforcing the challenged
statute. See Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1255 (11th Cir. 2020); Nat’l Fed’n of
the Blind of Ala., 661 F. Supp. 3d at 1122-23. Plaintiffs’ request that this Court enjoin enforcement
of the statute would accomplish nothing as to Secretary Allen given his lack of enforcement au-
thority. Plaintiffs thus lack standing to sue Secretary Allen, and the claims against him should be
dismissed for lack of subject-matter jurisdiction.
14
C. SB1 Does Not Violate Plaintiffs’ Free Speech Rights (Count I).
The First Amendment protects the freedom of speech and the press. SB1 abridges neither.
Instead, it targets conduct; specifically, the ballot harvesting kind. While some “speechless” sym-
bolic acts—like burning an American flag or draft card in protest, sleeping in a public place in
protest, wearing a black armband to school in protest, or performing a “sit-in” in protest—enjoy a
degree of First Amendment protection, ballot harvesting does not. No “particularized message,”
Texas v. Johnson, 491 U.S. 397, 404 (1989), is communicated by a third party “distributing, or-
dering, requesting, collecting, completing, prefilling, obtaining, or delivering a voter’s absentee
ballot application.” ALA. CODE §§ 17-11-4(d)(1), (2). Because these ballot harvesting actions are
no more “inherently expressive” than paying applicants to request ballots, their regulation does
not infringe First Amendment rights. Rumsfeld v. Forum for Acad. & Inst. Rights (“FAIR”),
547 U.S. 47, 66 (2006). But even assuming SB1 does, the law furthers important and substantial
state interests sufficient to justify any “incidental restriction on alleged First Amendment free-
doms.” United States v. O’Brien, 391 U.S. 367, 377 (1968). Plaintiffs fail to state a free speech
claim as a matter of law. See Sykes v. McDowell, 786 F.2d 1098, 1103 (11th Cir. 1986) (“Whether
certain activity or speech is protected by the first amendment is a question of law….”).
1. SB1 does not abridge speech.

SB1 does not abridge speech in any way. It does not directly target “the written or spoken
word,” Johnson, 491 U.S. at 406, nor does it “proscribe particular conduct because it has expres-
sive elements,” id., nor does it indirectly burden “speech by restricting conduct that helps produce
it,” Lichtenstein v. Hargett, 83 F.4th 575, 587 (6th Cir. 2023) (citing Meyer v. Grant, 486 U.S.
414, 424 (1988)). Because SB1 does not target speech in any way, it does not trigger strict scrutiny
and Plaintiffs’ claims premised on its abridgment of speech fail as a matter of law.
15
i. SB1 does not directly target political speech.

Plaintiffs do not allege that SB1 prohibits them from communicating, either orally or in
writing, their “core message that Black voters and voters from other marginalized groups are fully
entitled to participate in the political process.” Doc. 1,¶ 5. But SB1 unquestionably does not sup-
press any actual speech. Cf. Citizens United v. FEC, 558 U.S. 310, 337 (2010) (holding unconsti-
tutional a federal law “outright ban[ning]” corporations from funding “electioneering communi-
cations”). Plaintiffs remain free to “communicate the importance of voting through voter partici-
pation drives and civic engagement outreach.” Doc. 1, ¶ 69. And “nothing in [SB1] in any way
restricts the Plaintiffs’ actual oral or written speech about the ‘benefits’ of absentee voting.” Lich-
tenstein, 83 F.4th at 586. SB1 does not directly target speech.
ii. SB1 is content neutral.

A State “has no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” Police Dep’t of Chicago v. Mosely, 408 U.S. 92, 95 (1972). Such “content-
based regulations of speech” must overcome “strict scrutiny.” Reed v. Town of Gilbert, 576 U.S.
155, 159 (2015); see also Johnson, 491 U.S. at 406 (A “law directed at the communicative nature
of conduct must, like a law directed at speech itself” satisfy strict scrutiny). But Plaintiffs do not
allege that SB1’s proscriptions of specific ballot harvesting actions show “hostility—or favorit-
ism—towards the underlying message expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 386
(1992). For good reason—SB1’s prohibitions are content neutral. For example, sending a voter a
prefilled absentee ballot application is illegal no matter who does it or why it’s done. See ALA.
CODE § 17-11-4(b)(2). And submitting someone else’s completed application (with limited excep-
tions) is prohibited whether as a favor, a paid service, an attempt to boost a party’s absentee voter
rolls, or anything in between. See id. § 17-11-4(c)(2). SB1 targets “action[s],” not “ideas.” R.A.V.,
505 U.S. at 385. Plaintiffs’ options dwindle further.
16
iii. SB1 does not indirectly target political speech.

Some laws will trigger strict scrutiny because they burden “actual oral or written speech
by restricting conduct that helps produce it.” Lichtenstein, 83 F.4th at 587. Asserting that SB1 is
such a law, Plaintiffs rely on Meyer v. Grant, where the Supreme Court held unconstitutional a
Colorado statute that criminalized paying people to circulate petitions. 486 U.S. 414, 416-17
(1988). The Court found that “the circulation of a petition involves the type of interactive commu-
nication concerning political change that is appropriately described as ‘core political speech.’” Id.
at 421-22. To get there, the Court recalled that “solicitation is characteristically intertwined with
informative and perhaps persuasive speech seeking support for particular causes or for particular
views on economic, political, or social issues,” and “that without solicitation the flow of such
information and advocacy would likely cease.” Id. at 422 n.5 (quoting Schaumburg v. Citizens for
a Better Env’t, 444 U.S. 620, 632 (1980)). Thus, forbidding the payment of petition circulators
would have “the inevitable effect of reducing the total quantum of” the circulators’ speech. Id. at
423. And even though the plaintiffs “remain[ed] free to employ other means to disseminate their
ideas,” the Court emphasized that the First Amendment protects advocacy as well as the right to
select what the advocate “believe[s] to be the most effective means for so doing.” Id. at 424.
In the same vein, the Supreme Court has subjected to strict scrutiny a federal law that re-
stricted monetary contributions to political campaigns, reasoning that the law necessarily “re-
strict[ed] the voices of people and interest groups who have money to spend.” Buckley v. Valeo,
424 U.S. 1, 13, 17 (1976). And in Buckley v. American Constitutional Law Foundation, the Court
applied strict scrutiny to a Colorado statute that required petition circulators to be registered voters
because it “cut[] down the number of message carriers in the ballot-access arena without impelling
cause.” 525 U.S. 182, 197 (1999). Those laws throttled speech by targeting the resources needed
to create speech: money and people.
17
Plaintiffs, in turn, allege that (1) “providing absentee ballot application assistance to pro-
mote civic engagement is core political speech,” Doc. 1, ¶¶ 5, 73, 127; (2) “absentee ballot activi-
ties are characteristically intertwined with informational and persuasive speech,” id. ¶¶ 74, 125;
and (3) SB1 “diminishes the effectiveness of [their] speech,” id. ¶¶ 68-69. These allegations do
not trigger strict scrutiny. Lichtenstein v. Hargett from the Sixth Circuit shows why.
In Lichtenstein, plaintiffs brought a free speech challenge against a Tennessee law making
“it a crime for anyone other than election officials to distribute the State’s official form for apply-
ing to vote absentee.” 83 F.4th at 579. The Sixth Circuit affirmed the dismissal of the complaint
on the pleadings, holding that Tennessee’s law prohibits “conduct, not speech,” and thus did not
encroach upon First Amendment rights. Id. While accepting that “the Plaintiffs’ underlying get-
out-the-vote activities—that is, their speech to convince voters to vote absentee—qualifies as ‘core
political speech,’” the court rejected the idea that restricting distribution of absentee ballot appli-
cations “in any way restricts the Plaintiffs’ actual oral or written speech about the ‘benefits’ of
absentee voting.” Id. at 586. Unlike in Meyer, reasoned the court, where Colorado targeted the
money used “to create oral speech,” Tennessee targets the distribution of a form, which is not
“something that the Plaintiffs use to speak.” Id. at 586.7
The Lichtenstein court rejected a second Meyer argument that strict scrutiny applies when-
ever a law bans conduct that “is ‘intertwined’ with or ‘involves’ … actual political speech.” Lich-
tenstein, 83 F.4th at 586. Such an “amorphous” test, reasoned the court, would “call into doubt
many of the Supreme Court’s expressive-conduct cases because conduct often accompanies
7
The court noted, in contrast, that if “Tennessee barred the Plaintiffs from paying their em-
ployees to promote absentee voting, they may have a strong case for strict scrutiny.” Lichtenstein,
83 F.4th at 587. Neither Tennessee’s nor Alabama’s law prohibits Plaintiffs from “host[ing] voter
participation drives and promot[ing] absentee voting.” Doc. 1, ¶ 79.
18
speech.” Id. at 587 (asking, to illustrate the problems with the test, “How much ‘intertwinedness
is necessary? How is it measured?”). Further, Meyer teaches that the appropriate question is
whether the regulation of conduct “burdens” speech by inevitably “reducing the total quantum of
it,” not whether it is “‘intertwined’ with actual speech.” Id. at 586-87. The Lichtenstein plaintiffs
did not allege that the distribution ban would “have any ‘effect’ on the ‘quantum’ of their oral or
written speech encouraging absentee voting.” Id. at 586. Thus, the law did not elicit strict scrutiny.
Id.
Finally, the Lichtenstein court refused to apply strict scrutiny despite the plaintiffs’ lament
that the law would make “it harder to achieve their bottom-line goal of increasing absentee voting,”
83 F.4th at 587—in other words, that the law “diminishe[d] the effectiveness of [their] speech,”
Doc. 1, ¶¶ 68-69. The court found no support for this theory in Supreme Court precedent, Meyer
notwithstanding. The rule in Meyer that the First Amendment protects the right “to select what
[one] believe[s] to be the most effective means” “to advocate [one’s] cause,” 83 F.4th at 424 (em-
phasis added), “applies only to laws that target speech,” Lichtenstein, 83 F.4th at 588. It simply
reiterates that a State “may not avoid strict scrutiny for a speech restriction on the ground that it
leaves open other ways to convey a message.” Id.8 And an effects-based argument for strict scru-
tiny would have “no stopping point.” Lichtenstein, 83 F.4th at 587. Myriad laws restricting conduct
reduce the effectiveness of speech, like “[o]rdinary speed limits,” which “increase the time it takes
8
See also Biddulph v. Mortham, 89 F.3d 1491, 1498 (11th Cir. 1996) (“But Meyer does not
require us to subject a state’s initiative process to strict scrutiny in order to ensure that the process
be the most efficient or affordable. Absent some showing that the initiative process substantially
restricts political discussion of the issue [the plaintiff] is seeking to put on the ballot, Meyer is
inapplicable.”) (emphasis added).
19
speakers to travel in between venues and so reduce their speech’s reach and its chances of achiev-
ing a desired result.” Id. Such laws impose, if anything, an incidental burden on speech and do not
trigger strict scrutiny.
Here, Plaintiffs echo the same arguments rejected in Lichtenstein. First, they allege that by
banning ballot harvesting conduct, SB1 burdens their “core political speech” of “assisting a voter
in filling out an absentee ballot application during a voter engagement event.” Doc. 1, ¶¶ 70, 73,
82, 85. But prefilling, transporting, or completing someone else’s ballot application is not “core
political speech.” And beyond that prohibited conduct, SB1 permits “[a]ny applicant [to] receive
assistance in filling out the application as he or she desires.” ALA. CODE § 17-11-4(b)(1); see also
infra IV.G; cf. Democracy N.C. v. N.C. State Bd. of Elections, 476 F. Supp. 3d 158, 225 (M.D.N.C.
2020) (finding that North Carolina’s interests in preventing fraud would justify its criminalization
of assisting another voter complete his absentee ballot application). More fundamentally, SB1 does
not limit the supply of money (Meyer and Buckley) or people (American Constitutional Law Foun-
dation) used by Plaintiffs to create “core political speech.” Id. at 586. Those resources remain
untouched. For example, unlike money used to fund a petition circulator’s speech, distributing a
prefilled application or submitting another voter’s completed application do not create speech.
Compare Meyer, 486 U.S. 422-23, with ALA. CODE. §§ 17-11-4(b)(2), (c)(2). And while the Pay-
ment and Gift Prohibitions target money, they do not target money used for speech (like in Meyer),
but rather money used for ballot harvesting conduct.
Further, Plaintiffs’ general allegations that their “absentee ballot activities are characteris-
tically intertwined with informational and persuasive speech” are insufficient to trigger strict scru-
tiny, Doc. 1, ¶¶ 74, 125, because they do not plausibly allege that SB1 would “reduc[e] the total
quantum” of their actual speech. Meyer, 486 U.S. at 423. And because SB1 targets conduct, not
20
speech, Plaintiffs’ allegations that the law “diminishes the effectiveness of [their] speech,” fall flat.
Doc. 1, ¶¶ 68-69; see Lichtenstein, 83 F.4th at 587. Were it otherwise, then paying voters to hand
over their ballot applications would implicate the payor’s free speech rights. That is not the law.
In sum, SB1 is a content-neutral law crafted to prohibit and deter ballot harvesting conduct.
Plaintiffs remain as free today as they were before SB1 was enacted to educate voters one-on-one,
encourage them to vote absentee, guide voters through the absentee ballot application process, and
generally spread the “good news” about voting absentee. Because SB1 does not target speech in
any way, it does not trigger strict scrutiny and Plaintiffs’ claims premised on its abridgment of
speech fail as a matter of law.
2. SB1 does not abridge expressive conduct either.

Laws directly burdening speech, proscribing conduct because of its expressive elements,
or targeting the resources used to create speech all trigger strict scrutiny. Supra Section IV.C.1.
SB1 is not one of those laws. Nevertheless, Plaintiffs allege that SB1 restricts “inherently expres-
sive conduct,” FAIR, 547 U.S. at 66; if so, SB1 must satisfy the “relatively lenient standard” pro-
vided in United States v. O’Brien and Texas v. Johnson. Under that test, conduct qualifies as “in-
herently expressive” if (1) the actor intended “to convey a particularized message” and (2) “the
likelihood was great that the message would be understood by those who viewed it.” Johnson,
491 U.S. at 404, 407.9 At this stage of the proceedings (at which the complaint’s allegations must
9
In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court
commented that “a narrow, succinctly articulable message is not a condition of constitutional pro-
tection, which if confined to expressions conveying a ‘particularized message’ would never reach
the unquestionably shielded painting of Jackson Pollock,” etc. 515 U.S. 557, 569 (1995). The
Courts of Appeals are split regarding the effect Hurley’s statement had upon the O’Brien test. See
Cressman v. Thompson, 798 F.3d 938, 955-56 (10th Cir. 2015) (collecting cases). The Eleventh
Circuit has attempted to reconcile the two by asking whether “the reasonable person would inter-
pret [the conduct] as some sort of message, not whether an observer would necessarily infer a
specific message.” Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). But see Church
21
be taken as true), Defendants do not dispute that Plaintiffs’ allegations would satisfy the first ele-
ment. But Plaintiffs have not plausibly alleged that their ballot harvesting conduct communicates
even some message to the reasonable viewer.
Nothing banned by SB1 is inherently expressive. Plaintiffs generally allege that their “ab-
sentee voter assistance activities are … reasonably understood as promoting civic participation,
generally, and the utilization of inclusive methods of voting, including absentee voting, specifi-
cally.” Doc. 1, ¶ 75; see also id. ¶¶ 129-30. Maybe so, but nowhere do Plaintiffs allege that any
specific conduct prohibited by SB1 exhibits a great likelihood of being understood by a reasonable
viewer as communicative. For example, Plaintiffs fail to identify the message supposedly under-
stood by the recipient of a blank or pre-filled absentee ballot application or by a voter whose ap-
plication was completed, collected, and submitted by a third party. See ALA. CODE § 17-11-4(b)(2),
(c)(2).10 If an Alabama resident opened his mailbox to find only an absentee ballot application, the
message conveyed by the piece of paper would be entirely unclear. Does it mean he's eligible to
vote absentee, that he has a legal obligation or civic duty to vote, that voting absentee is preferable
to voting in person, or that the mailer simply had the wrong address?
As other federal courts have recognized, the sort of conduct SB1 prohibits is unlikely to be
understood as conveying any message. See, e.g., Knox v. Brnovich, 907 F.3d 1167, 1180 (9th Cir.
2018) (concluding that the plaintiff failed to demonstrate that “the conduct of collecting ballots
of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 n.6 (2d Cir. 2004). Defendants
proceed under binding circuit precedent while preserving their right to challenge its correctness on
appeal, if necessary.
10
It “is the obligation of the person desiring to engage in assertedly expressive conduct to
demonstrate that the First Amendment even applies,” and Plaintiffs have not met that obligation
here. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Plaintiffs’ com-
plaint contains no factual allegations going to the five contextual factors identified by the Eleventh
Circuit as relevant when conducting the “inherently expressive conduct” inquiry. See Fort Lauder-
dale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1242-43 (11th Cir. 2018).
22
would reasonably be understood by viewers as … conveying a symbolic message of any sort”);
Feldman v. Ariz. Sec’y of State’s Office, 840 F.3d 1057, 1084 (9th Cir. 2016) (same); DCCC v.
Ziriax, 487 F. Supp. 3d 1207, 1234-35 (N.D. Okla. 2020) (“completing a ballot request for another
voter, and collecting and returning ballots of another voter, do not communicate any particular
message”); New Ga. Project v. Raffensperger, 484 F. Supp. 3d 1265, 1300-01 (N.D. Ga. 2020)
(“delivering absentee ballot requests is not expressive conduct”); Lichtenstein v. Hargett,
489 F. Supp. 3d 742, 767 (M.D. Tenn. 2020) (“the recipient [of an absentee-ballot application]
most likely would perceive it as a mere means of facilitating the (absentee) voting the speaker has
been encouraging”); Voting for Am., Inc. v. Steen, 732 F.3d 382, 391 (5th Cir. 2013) (regulating
“the receipt and delivery of completed voter-registration applications” does “not in any way restrict
or regulate … any communicative conduct”); Voting for Am. v. Andrade, 488 F. App’x 890, 898
(5th Cir. 2012) (same); League of Women Voters of Fla. v. Browning, 575 F. Supp. 2d 1298, 1319
(S.D. Fla. 2008) (“the collection and handling of voter registration applications is not inherently
expressive activity”).
To hurdle this wall of caselaw, Plaintiffs try to color all of their relevant conduct as expres-
sive by conflating it with the “speech that accompanies it” at their voter participation drives. FAIR,
547 U.S. at 66. Although “context matters,” Fort Lauderdale, 901 F.3d at 1237, “the drives them-
selves cannot be amalgamated into protected ‘expressive conduct,’” Steen, 732 F.3d at 391. The
“conduct itself” must create Plaintiffs’ expression. FAIR, 547 U.S. at 66. If “explanatory speech is
necessary for the reasonable observer to perceive a message from the conduct,” then the conduct,
by definition, is not inherently expressive. Fort Lauderdale, 901 F.3d at 1244 (emphasis omitted).
Put simply, “non-expressive conduct does not acquire First Amendment protection whenever it is
combined with another activity that involves protected speech.” Steen, 732 F.3d at 389.
23
Here, Plaintiffs repeatedly lump together their non-expressive ballot harvesting conduct
with their voter participation drives involving protected speech. See Doc. 1, ¶¶ 20, 25, 69, 70, 77,
131. But without “explanatory speech,” the “point” of distributing prefilled or blank absentee bal-
lot applications would not be “overwhelmingly apparent” to the viewer. FAIR, 547 U.S. at 66
(quoting Johnson, 491 U.S. at 406). In other words, the recipient of an application has “no way of
knowing” why he was given the application without some further explanation. Id. Plaintiffs do not
allege otherwise. Cf. Doc. 1, ¶¶ 75, 139. Because their allegations attribute no communicative
value to their discrete ballot harvesting activities, they fail to state a claim under the First Amend-
ment. This must be so, because if “combining speech and conduct were enough to create expressive
conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about
it.” FAIR, 547 U.S. at 66.
3. Even if SB1 imposes some incidental burden on Plaintiffs’ First Amendment

rights, it easily meets the applicable and “relatively lenient” O’Brien standard.
Assuming Plaintiffs have sufficiently alleged that their ballot harvesting conduct is inher-
ently expressive, they still fail to state a claim under the operative O’Brien test.11 In contrast to a
law targeting speech, a law imposing an incidental burden on First Amendment freedoms must
satisfy only O’Brien’s “less demanding” standard, Johnson, 491 U.S. at 407, which asks whether
11
Although the Anderson-Burdick balancing test is often employed in election law challenges,
it does not apply here because Plaintiffs do not bring voting rights or ballot access claims. Rather,
they bring a pure free speech claim, which “leaves no room for balancing.” Lichtenstein, 83 F.4th
at 593. The Eleventh Circuit has never extended the Anderson-Burdick test to a free speech claim
like Plaintiffs’ here, opting instead to employ it in the “ballot access” and “voting rights” contexts.
As the Sixth Circuit recognized, the “Anderson-Burdick balancing test has historically applied to
claims that an election law interferes with the right of voters to vote or political parties to associate
with voters—not the right of speakers to speak.” Id. at 590-91 (collecting Supreme Court cases).
See also, e.g., Bell v. Sec’y of State for Ga., 2024 WL 1299927, at *7 (11th Cir. 2024) (ballot
access); Curling v. Raffensperger, 50 F.4th 1114, 1121 (11th Cir. 2022) (right to vote). But even
if Anderson-Burdick were to apply, Plaintiffs’ allegations fail to plausibly show that SB1 would
fail it for the same reasons discussed in this section.
24
the law “furthers an important or substantial governmental interest” and “is no greater than is es-
sential to the furtherance of that interest.”12 O’Brien, 391 U.S. at 377. SB1 easily satisfies this test.
An “incidental burden on speech is no greater than is essential, and therefore is permissible
under O’Brien, so long as the neutral regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.” United States v. Albertini, 472 U.S. 675,
689 (1985); accord FAIR, 547 U.S. at 67; First Vagabonds Church of God v. City of Orlando,
638 F.3d 756, 762-63 (11th Cir. 2011) (en banc). This does not require a “least restrictive means
analysis.” City of Erie v. Pap’s A.M., 529 U.S. 277, 301-02 (2000) (plurality op.); accord Turner
Broad. Sys. v. FCC, 512 U.S. 622, 662 (1994). And “proposed alternative methods” of pursuing
these interests “are beside the point.” Rumsfeld, 547 U.S. at 67.
SB1 furthers several “general interests that are obviously important,” Lichtenstein, 83 F.4th
at 597, including combatting voter fraud, see Crawford v. Marion Cnty. Election Bd., 553 U.S.
181, 194 (2008) (lead opinion), maintaining “public confidence in the integrity of the electoral
process,” id. at 197, and “protecting voters from confusion and undue influence,” Burson v. Free-
man, 504 U.S. 191, 199 (1992); see also Jenness v. Fortson, 403 U.S. 431, 442 (1971). No “evi-
dentiary showing” is required to establish that the harms combatted by SB1 are “real.” City of Erie
v. Pap’s A.M., 529 U.S. 277, 299 (2000) (plurality op.). Contra Doc. 1, ¶ 53 (alleging “no evidence
12
This test only applies “to those cases in which ‘the governmental interest is unrelated to the
suppression of free expression.’” Johnson, 491 U.S. at 407 (quoting O’Brien, 391 U.S. at 377). As
explained in Section IV.C.2 supra, SB1 is a content neutral regulation of conduct, not expression.
Alabama’s interests in regulating ballot harvesting conduct are entirely “unconnected to expres-
sion.” Id. Further, the State must have the “constitutional power” to enact the law. O’Brien,
391 U.S. at 377. Alabama has the legitimate authority to regulate federal and state elections by
identifying who may vote absentee, creating the process for doing so, and imposing sanctions for
violations. See Boyd v. Thayer, 143 U.S. 135, 161 (1892) (“Each State has the power to prescribe
the qualifications of its officers and the manner in which they shall be chosen.”).
25
of any widespread voter fraud attributable to absentee voting or so-called ballot harvesting”). In-
deed, “the Supreme Court has already held that deterring voter fraud is a legitimate policy on
which to enact an election law, even in the absence of any record evidence of voter fraud.” Greater
Birmingham Ministries v. Sec’y of State for State of Ala., 992 F.3d 1299, 1334 (11th Cir. 2021)
(“GBM”) (citing Crawford, 553 U.S. at 192-97). And States may “respond to potential deficiencies
in the electoral process with foresight rather than reactively.” Munro v. Socialist Workers Party,
479 U.S. 189, 195 (1986); accord Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2348
(2021) (“[A] State may take action to prevent election fraud without waiting for it to occur and be
detected within its own borders.”). Nonetheless, there is extensive evidence of voter fraud—in-
cluding that involving absentee ballots, absentee ballot applications, and ballot harvesting activi-
ties—both in Alabama and other States. See supra Section II.B. These interests are “unquestiona-
bly relevant,” Crawford, 553 U.S. at 191, to Alabama’s efforts “to preserve the basic conception
of a political community,” Sugarman v. Dougall, 413 U.S. 634, 647 (1973), by promoting “fair,”
“honest,” and orderly elections. Storer v. Brown, 415 U.S. 724, 730 (1974).
SB1 “add[s] to the effectiveness” of achieving these interests by fortifying the absentee
ballot application process. Rumsfeld, 547 U.S. at 67. Mass distribution of blank or prefilled absen-
tee ballot applications, like mass submission of completed applications, “could cause mass confu-
sion” and “increase[] the risk of fraud.” Lichtenstein, 83 F.4th at 600; see also VoteAmerica v.
Raffensperger, —F. Supp. 3d.—, No. 1:21-cv-01390-JPB, 2023 WL 6296928, at *3-4, 12 (N.D.
Ga. Sept. 27, 2023) (cataloguing and weighing voter complaints regarding confusion and alarm
caused by receiving prefilled or multiple absentee ballot applications). It stands to reason, then,
that just like “[l]imiting … who may handle early ballots to those less likely to have ulterior mo-
tives deters potential fraud and improves voter confidence,” a State might also limit who handles
26
applications for those ballots. Brnovich, 141 S. Ct. at 2347 (citing Report on the Comm’n on Fed.
Election Reform, Building Confidence in U.S. Elections 46 (Sept. 2005)); see also Feldman,
840 F.3d at 1084. Alabama is just one of many states to regulate the preparation and handling of
absentee ballot applications in the interests of election integrity and voter protection. In Tennessee,
it is a felony for anyone other than an election official to “give[] an application for an absentee
ballot to any person.” TENN. CODE ANN. § 2-6-202(c)(3). Other States prohibit the distribution of
prefilled absentee ballot applications to voters. O.C.G.A. § 21-2-381(a)(1)(C)(ii); S.D. CODIFIED
LAWS § 12-19-1.3; IOWA CODE §53.2(2)(d); TEX. ELECTION CODE ANN. § 276.016(a)(4). For over
two decades in Texas, it has been unlawful for any person to offer to buy or sell a “signed appli-
cation for an early voting mail ballot,” TEX. ELECTION CODE ANN. § 276.010(a).
Because the integrity of the electoral process “would be more exposed to harm without
the” ballot harvesting “prohibition than with it, the ban is safe from invalidation under the First
Amendment.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 297 (1984). Plaintiffs fail
to state a free speech claim under the First Amendment as a matter of law.
D. SB1 Does Not Violate Plaintiffs’ Right To Associate (Count II).

The Supreme Court has interpreted the First Amendment to protect the “right of expressive
association” because the rights enumerated by the First Amendment—speech, religion, petition,
and assembly—would mean little if citizens could not exercise those rights together. See FAIR,
547 U.S. at 68; Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). So, naturally, it protects the
ability to associate for the “purpose” of engaging “in activities independently protected by the First
Amendment.” McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994). “The Supreme Court has
described the freedom of association as the exercise of one’s right to choose one’s associates.”
O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1054 (11th Cir. 2022) (cleaned up).
27
“[S]ignificant” interference with the ability to exercise First Amendment rights with the
associates of one’s choosing violates the right. See N.Y. State Club Ass’n, Inc. v. City of New York,
487 U.S. 1, 13 (1988) (quoting Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537,
548 (1987)); Lyng v. Int’l Union, 485 U.S. 360, 366, 367 n.5 (1988). Take a few examples. It may
violate the right to require a group to accept a member when associating with that member forces
the group to advance views contrary to its own, see Boy Scouts v. Dale, 530 U.S. 640, 654 (2000),
to punish someone based on membership, see NAACP v. Claiborne Hardware Co., 458 U.S. 886,
918-19 (1982), to require a group to disclose its associates, see Brown v. Socialist Workers ‘74
Campaign Comm. (Ohio), 459 U.S. 87, 101-02 (1982), or to prevent a group from seeking out new
associates, see NAACP v. Button, 371 U.S. 415, 419, 431 (1963). In those circumstances, the
government limits association in a way that creates “First Amendment concerns about affecting
the group’s ability to express its message.” See FAIR, 547 U.S. at 69.
Plaintiffs fail to state an expressive association claim because SB1 does not significantly
burden group expression or group association. Dale, 530 U.S. at 648. To the contrary, SB1 allows
Plaintiffs to create and convey speech while associating with anyone willing to join.
Plaintiffs nonetheless allege that SB1 violates their expressive associational rights in a few
ways. In their view, “absentee ballot application assistance is a crucial means of associating with
their primary constituencies” and “a means” to promote “the importance of voting.” Doc. 1, ¶ 76;
see id. ¶ 138. They believe that the bans on distributing prefilled absentee ballot applications and
submitting a third-party’s application “prohibit entire forms of association.” Id. ¶ 77; see also id.
¶ 139. And, they continue, the prohibitions on paying or providing gifts to those engaged in other
types of assistance limit their ability to associate with the community and voters because Plaintiffs
28
pay their employees, reimburse volunteers, and provide materials to voters. Id. ¶¶ 78, 139. Simi-
larly, they allege that if SB1 limits their ability to associate with voters, it necessarily limits their
ability to associate with each other to assist voters. Id. ¶¶ 79, 139.
Plaintiffs have failed to state a claim because SB1 does not impose a “significant” burden
on their associational rights. See N.Y. State Club, 487 U.S. at 13; Lyng, 485 U.S. at 366, 367 n.5
(1988). Indeed, SB1 is not a limitation at all. The freedom of association allows them to join with
others of their choosing to participate in “activities protected by the First Amendment.” Roberts,
468 U.S. at 618; see McCabe, 12 F. 3d at 1563. SB1 does not tell Plaintiffs whom they may asso-
ciate with to exercise their rights. It instead instructs Plaintiffs that, while they are associating with
others of their choice, they may not engage in certain forms of non-expressive conduct. Thus, SB1
does not interfere with their associational rights. See City of Dallas v. Stanglin, 490 U.S. 19, 24-
25 (1989) (freedom of association does not protect right to associate for activities not protected by
First Amendment); see also Claiborn Hardware, 458 U.S. at 933.
Even if SB1 works some incidental burden on Plaintiffs’ associational rights, it is far short
of the level that raises “concerns” about Plaintiffs’ “ability to express” their message. FAIR, 547
U.S. at 69. SB1 does not create a “likelihood of substantial restraint” on Plaintiffs’ association by
forcing them to disclose their membership lists to those who have shown them “hostility.” See
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-63 (1958). SB1 does not flat-out bar
Plaintiffs from “solicit[ing]” new “political association[s].” See Button, 371 U.S. at 419, 431. Nor
does it punish anyone for joining their groups or attending their events. See Claiborn Hardware,
458 U.S. at 888-89. SB1 “does not require” Plaintiffs to “alter or abandon” any of their “activities
that are protected by the First Amendment.” Rotary Club, 481 U.S. at 548. It “does not require
them to abandon their basic goals,” voter education efforts, or voter registration drives. Id. SB1
29
doesn’t even interfere with Plaintiffs’ ability to engage in the vast majority of their absentee appli-
cation assistance, such as providing detailed instructions, reviewing applications for correctness,
photocopying IDs, or sharing a pen. Doc. 1, ¶¶ 14; 19; 25; see supra IV.C.3.
In this light, Plaintiffs’ allegations do not permit an inference that their circumstances under
SB1 are comparable to those of a group barred from advertising their events, forced to publish
membership lists, or whose associates are fined for being members. As the Sixth Circuit concluded
in Lichtenstein, Plaintiffs’ “amorphous theory interprets the right of association more broadly than
the Supreme Court’s cases permit.” 83 F.4th at 602. Because SB1 does not significantly affect
Plaintiffs’ expressive association, they fail to state a claim as a matter of law.
E. SB1 Is Not Unconstitutionally Vague (Count III).

Plaintiffs allege the so-called “Payment and Gift Provisions”—ALA. CODE § 17-11-
4(d)(1)-(2))—are “unconstitutionally vague laws because they regulate a sweeping amount of
noncommercial speech and constitutionally protected expressive conduct.” Doc. 1, ¶ 146. Because
SB1 does “not define ‘payment,’ ‘gift,’ or ‘third party,’” Plaintiffs allege (d)(1) and (d)(2) impede
“all” of their “absentee ballot application activities in Alabama[.]” Doc. 1, ¶ 147. They relatedly
assert that they lack “reasonable notice of what constitutes prohibited conduct.” Id. ¶ 148. Even
with their shotgun complaint taking aim at every clause in SB1, supra Section IV.A, Plaintiffs fail
to identify any “confusing and misleading terms,” contra Doc. 1, ¶ 149.
Plaintiffs muddle their causes of action by invoking the First Amendment as an independ-
ent source of protection against “the enactment of unconstitutionally vague restrictions.” Doc. 1,
¶ 144. However, “[v]agueness doctrine is an outgrowth not of the First Amendment, but of the
Due Process Clause of the Fifth Amendment.” United States v. Williams, 553 U.S. 285, 304
30
(2008).13 The Due Process Clause “requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.” Gonzales v. Carhart,
550 U.S. 124, 148–49 (2007) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Yet, “per-
fect clarity and precise guidance have never been required even of regulations that restrict expres-
sive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). SB1 therefore is
sufficiently clear if it provides citizens “of ordinary intelligence a reasonable opportunity to know
what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The Court “has made
clear that scienter requirements alleviate vagueness concerns.” Gonzales, 461 U.S. at 149.
“In ascertaining the plain meaning of the statute, the court must look to the particular
statutory language at issue, as well as the language and design of the statute as a whole.” K Mart
Corp. v. Carter, Inc., 486 U.S. 281, 291 (1988). Any arguments about arbitrary enforcement “are
somewhat speculative” at this point. Gonzales, 550 U.S. at 150 “This is a preenforcement chal-
lenge, where ‘no evidence has been, or could be, introduced to indicate whether the [Act] has been
enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected con-
duct].’” Id. at 150 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503
(1982)). Accordingly, with no evidence available, Plaintiffs’ vagueness challenge can be rejected
as a matter of law based on statutory text alone.
As previously explained (supra Section IV.C), SB1 prohibits conduct, not speech.
Specifically, subsections (d)(1) and (d)(2) (hereinafter the “Compensation Prohibition”) prohibit
third-party transactions in which someone pays an agent (the third party) for specified harvesting
13
Although the Fifth Amendment’s Due Process Clause only applies to the federal govern-
ment, the Fourteenth Amendment likewise contains a Due Process Clause and does apply to the
States.
31
conduct. Plaintiffs find vagueness in the Compensation Prohibition by reading its terms in isolation
devoid of any context and presenting hypothetical edge cases. But citizens do “not read words or
strings of them in isolation[]” as Plaintiffs have, but instead “in context.” Wachovia Bank, N.A. v.
United States, 455 F.3d 1261, 1267 (11th Cir. 2006). And “what renders a statute vague is not the
possibility that it will sometimes be difficult to determine whether the incriminating fact it estab-
lishes has been proved; but rather the indeterminacy of precisely what that fact is.” Williams, 553
U.S. at 306. The plain text puts citizens of ordinary intelligence on notice of the incriminating facts
under the Compensation Prohibition: (1) taking specified actions toward a voter’s absentee ballot
application in return for compensation or (2) paying someone else to do the same.
The Compensation Prohibition consists of two subsections, which state the following:
(d)(1) . . . it shall be unlawful for a third party to knowingly receive a payment or

gift for distributing, ordering, requesting, collecting, completing, prefilling
obtaining, or delivering a voter’s absentee ballot application. . . .
(d)(2) . . . it shall be unlawful for a person to knowingly pay or provide a gift to a
third party to distribute, order, request, collect, prefill, complete, obtain, or deliver
a voter’s absentee ballot application. . . . .
ALA. CODE § 17-11-4(d)(1)-(2).
By implausibly splitting the Compensation Prohibition into separate “Payment” and “Gift”
provisions, Doc. 1, ¶¶ 65–66, Plaintiffs obscure the obvious meaning of the phrases “third party”
and “payment or gift” when read in context. The structure of the Compensation Prohibition
confirms its twin provisions address two sides of the same coin: the third-party harvesting of
voters’ applications in return for compensation. Just as (d)(1) disallows “a third party” from
“knowingly receiv[ing] a payment or gift for” specified conduct with a voter’s application, (d)(2)
disallows anyone from “knowingly pay[ing] or provid[ing] a gift to [that] third party to” engage
in that same specified conduct. The consistent use of the word “third party” establishes the “third
party” as the payee-harvester. A statutory definition for the term “third party” is unnecessary
32
because in both provisions the third-party harvester is plainly someone who is being paid to harvest
an absentee ballot application.
The phrase “payment or gift” is equally self-explanatory. It refers to something of value
(whether a $100 bill or $100 gas card) provided or received in exchange for enumerated harvesting
services. The verb “pay” ordinarily means to “engage for money” or “to give in return for goods
or service.” Pay, Merriam-Webster, Merriam-Webster.com (May 16, 2024), https://www.mer-
riam-webster.com/dictionary/pay, (definitions 1b & 2a). Here, “service[s],” not goods, are being
paid for, and the services are identical in both provisions: “distributing, ordering, requesting, col-
lecting, completing, prefilling, obtaining, or delivering a voter's absentee ballot application.”
(d)(1); accord (d)(2). Sandwiched between the noun “payment” and the enumerated harvesting
services is the term “gift,”14 which also refers to a thing of monetary value—not just cash—that is
given to compensate for the specified services. See Yates v. United States, 574 U.S. 528, 543 (2015)
(“[A] word is known by the company it keeps.”). In other words, “payment or gift” covers any
form of compensation.
Read together (and coherently), the “payment or gift” provisions criminalize compensated
harvesting transactions. Specifically, they prevent any “person” from knowingly providing com-
pensation to a third party—and likewise prevent that third party from knowingly receiving such
compensation—for certain conduct: “distributing, ordering, requesting, collecting, completing,
prefilling, obtaining, or delivering a voter's absentee ballot application.” ALA. CODE § 17-11-
4(d)(1). The text and structure of these provisions shows that the “payment or gift” provisions
(though broad) are not vague.
14
ALA. CODE §36-25-1(34) provides the following definition for “thing of value”: “a. Any gift,
benefit, favor, service, gratuity, . . . or honoraria or other item of monetary value.”
33
The explicit mens rea requirements in the Compensation Prohibition alleviate any possible
vagueness concerns. That the payor or payee must “knowingly” enter into the harvesting transac-
tion “narrow[s] the scope of the Act’s prohibition and limit[s] prosecutorial discretion.” Gonzales,
550 U.S. at 149. Consider Plaintiffs’ “jail and prison-staff” hypothetical. Doc. 1, ¶ 147. Plaintiffs
suggest that a prison guard or administrator who hands an inmate an application and subsequently
collects his salary for working at the prison has received a payment for distribution of an applica-
tion. Id. But that prison staffer has not partaken in a quid pro quo involving harvesting; rather, he
has received a general salary for professional services unrelated to absentee voting.15 And he cer-
tainly hasn’t entered a ballot harvesting transaction “knowingly.” See Ex parte Phillips, 287 So.3d
1179, 1196 (Ala. 2018) (quoting ALA. CODE § 13A-2-2(2)) (“A person acts knowingly with respect
to conduct or to a circumstance described by a statute defining an offense when he is aware that
his conduct is of that nature or that the circumstance exists.”). Even during election season, no one
would say the Alabama prison staffer is paid to provide absentee ballot assistance for eligible
voters who are incarcerated. By contrast, Plaintiffs’ staff are admittedly paid to go into prisons to
specifically provide “absentee application assistance” to “incarcerated voters,” and to the extent
“this work” involves doling out applications to inmates, it is prohibited. Doc. 1, ¶ 26. Put simply,
15
In statutes, “the word person includes corporations and other entities, but not the sovereign.”
SCALIA & GARNER, READING LAW 273. So, when the entity paying third parties to distribute ab-
sentee applications is a State or Federal government, (d)(2) would not apply. And, of course, elec-
tion officials are not third parties; they (along with the voter) are necessarily party to the voting
process. Moreover, under Alabama law, corporate criminal liability exists only when the criminal
statute explicitly provides for it. State v. St. Paul Fire & Marine Ins. Co., 835 So. 2d 230, 233
(Ala. Crim. App. 2000). Because SB1 has not “specifically provided for corporate liability,” Plain-
tiff organizations themselves cannot be prosecuted. Id.
34
a third-party harvester under (d)(1) must be “aware that his conduct is of that” quid-pro-quo “na-
ture” to be criminally liable. Ex parte Phillips, 287 So.3d at 1196. The scienter elements distin-
guish the innocent jailer from the culpable harvester.
As alluded to above, Plaintiffs invite confusion by presenting harvesting conduct as “voter
assistance,” but they ignore SB1’s express recognition that any applicant who desires assistance
in “filling out” their application may receive it, subject to the applicable signature and witnessing
requirements. § 17-11-4-(b)(1) (“Any applicant may receive assistance in filling out the applica-
tion as he or she desires, but each application shall be manually signed by the applicant . . . .”).
Second, “any voter who requires assistance to vote by reason of blindness, disability, or inability
to read or write may be given assistance by an individual of the voter’s choice, other than the
voter’s employer or agent of that employer or officer or agent of the voter’s union.” § 17-11-4(e).
By allowing “require[d] assistance” from “a person of the voter’s choice,” rather than any per-
son or the person of the voter’s choice, subsection (e) and § 208 allow a disabled voter to obtain
assistance from a broad array of people, save those categories the federal government or State have
reasonably determined might exert undue influence. According to a natural reading of the statute,
“ordinary people can understand what conduct is prohibited.” Kolender, 461 U.S. at 357.
Plaintiffs betray the clarity of the law by resorting to hypotheticals. But “litigants cannot
argue that a law is vague based on how it might apply to a hypothetical scenario.” Doe 1 v. Mar-
shall, 367 F. Supp. 3d 1310, 1334 (M.D. Ala. 2019). Rather, “courts ‘consider whether a statute is
vague as applied to the particular facts at issue.’” Id. (quoting Holder v. Humanitarian Law Pro-
ject, 561 U.S. 1, 18 (2010)). Nonetheless, Plaintiffs assert that “providing gas money or stamps to
submit an absentee ballot application[]” may run afoul of the “payment or gift” prohibition. Doc.
1, ¶ 147. Notably, this hypothetical doesn’t identify any of the parties involved—the payor/donor,
35
the payee/donee, or actor who is submitting an application.16 If the gas money or stamps are pro-
vided to staff members for them “to submit” voters’ applications, then the conduct is prohibited
under SB1’s separate submission provision, regardless of compensation. See ALA. CODE § 17-11-
4(c)(2). Though Plaintiffs present hypotheticals, “the mere fact that close cases can be envisioned”
does not “render[] a statute vague.” Williams, 553 U.S. at 305.
Finally, the Prefilled-Application and Submission Provisions are sufficiently clear without
statutory definitions for the verbs “prefill,” “distribute,” and “submit.” Doc. 1, ¶¶ 85–86.17 As
Plaintiffs acknowledge elsewhere in their shotgun complaint (see, e.g., Doc. 1, ¶ 35), SB1 explic-
itly defines the three ways an absentee ballot application “may be submitted to the absentee elec-
tion manager”: delivery in person, by U.S. mail, or by commercial carrier. (c)(1)(a.)-(c.). Thus, a
person submits an application when they either hand deliver or mail (through U.S. mail or com-
mercial carrier) an application to an absentee election manager. Rather than covering an “amor-
phous amount of conduct,” contra Doc. 1, ¶ 86, the submission restriction clearly bars a person
from “dropping [other people’s] applications off in the mailbox,” ¶ 86, at UPS (or FedEx), or at
an absentee ballot office, unless the voter is disabled and “requires” such “assistance,” see ALA.
CODE § 17-11-(e). The statute’s use of the verb “distribute” is similarly straightforward. “Distrib-
ute” ordinarily means “to divide among several or many,” “to spread out so as to cover something,”
16
State and Federal law already prevent Plaintiffs from paying people to vote. ALA. CODE § 17-
17-34 (“It shall be unlawful for any person to pay or offer to pay, or for any person to accept such
payment, either to vote or withhold his or her vote.”); see also 18 U.S.C. § 597 (prohibiting persons
from offering or soliciting “an expenditure” to vote). SB1 provides important additional protec-
tions against adjacent conduct that may lead to or enable concealment of vote buying and similar
abuses.
17
Defendants construe the incorporation of “all relevant allegations” in Count III as alleging
the Submission and Prefilling Restrictions are vague. Count III does not specifically allege that all
challenged provisions are unconstitutionally vague, though Plaintiffs’ preliminary injunction mo-
tion does. Compare Doc. 1, ¶¶ 143–150 (alleging that only “the Payment and Gift Provisions” are
vague), with Doc. 34-1, pp. 30–34 (arguing the “Challenged Provisions” are vague).
36
or “to give out or deliver, especially to members of a group.” Distribute, Merriam-Webster, Mer-
riam-Webster.com (Apr. 6, 2024), https://www.merriam-webster.com/dictionary/distribute (defi-
nitions 1, 2a, & 2b). Of course, “prefilled” means “filled in advance.” Prefilled, Collins English
Dictionary, https://www.collinsdictionary.com/us/dictionary/english/prefilled (last accessed Apr.
8, 2024). Again, these words do not cover an “amorphous amount of activity,” contra Doc. 1, ¶ 85;
if a person (even a relative) fills out another voter’s name and address on an application in advance
of delivering that application to the voter, he has distributed a prefilled absentee ballot application.
Plaintiffs may dislike this policy, but they cannot fairly say that it is unclear. Because Plaintiffs
fail to plausibly allege that SB1 is unconstitutionally vague, Count III is due to be dismissed.
F. SB1 Is Not Unconstitutionally Overbroad (Count IV).

Plaintiffs’ overbreadth claim relies heavily on their vagueness arguments. Doc. 1, ¶ 155
(“The threat of penalties for violations of SB 1’s ambiguous and overbroad provisions will imper-
missibly chill or present the substantial risk of chilling Plaintiffs’ protected speech and expressive
conduct.”); id. ¶ 157 (“SB 1’s language is full of uncertainties and risk a degree of capricious
enforcement that will make Plaintiffs’ compliance potentially impossible”). Merging these “re-
lated yet distinct” doctrines,18 Plaintiffs’ Count IV could be interpreted as an “overbreadth from
indeterminacy” claim. Am. Booksellers v. Webb, 919 F.2d 1493, 1505-06 (11th Cir. 1990).
But incorporating “indeterminacy” into the overbreadth inquiry does Plaintiffs no favors.
Supra Section IV.E. “The first step in overbreadth analysis is to construe the challenged statute.”
United States v. Williams, 553 U.S. 285, 293 (2008). The second is to determine whether the stat-
ute, so construed, “criminalizes a substantial amount of protected expressive activity.” Id. at 297.
18
While a law that clearly prohibits a substantial amount of protected speech is overbroad but
not vague, a statute that fails to define prohibited non-expressive conduct with sufficient clarity is
vague but not overbroad. Webb, 919 F.2d at 1505.
37
To meet this burden, Plaintiffs must show ” that SB1 “punishe[s] a ‘substantial’ amount of pro-
tected expression, ‘judged in relation to the statute’s plainly legitimate sweep.’” Virginia v. Hicks,
539 U.S. 113, 118 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). And this
they must do “from the text of the law and from actual fact.” Id. at 122. Because “invalidation for
overbreadth is strong medicine that is not to be casually employed,” courts “vigorously enforce[]
the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also
relative to the statute’s plainly legitimate sweep.” Williams, 553 U.S. at 292–93 (cleaned up) (ci-
tations omitted). Plaintiffs cannot clear that high bar.
SB1 prohibits specific nonexpressive conduct involving absentee ballot applications. With
“the boundaries of the forbidden” harvesting conduct “clearly marked” by SB1, Webb, 919 F.2d
at 1506 (cleaned up), Plaintiffs bear the burden to identify “real” and “substantial” overbreadth
within them, Broadrick, 413 U.S. at 615.
Plaintiffs offer the bare assertion that SB1 is “unconstitutionally overbroad because it reg-
ulates a sweeping amount of noncommercial political speech and constitutionally protected ex-
pressive conduct.” Doc. 1, ¶ 153. Setting aside the conclusory refrain about SB1 “criminaliz[ing]
a sweeping amount of speech,” see e.g., Doc. 1, ¶ 80, Plaintiffs do not identify a single provision
of SB1 that specifically addresses speech. “Rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or to conduct necessarily
associated with speech (such as picketing or demonstrating).” Hicks, 539 U.S. at 124 (2003). Rec-
ognizing SB1 does not regulate speech, Plaintiffs argue the prohibited conduct is “intertwined”
with speech. Doc. 1 ¶¶ 74, 125, 138. Yet, if they cease trafficking applications entirely—still host-
ing meetings and demonstrations, distributing pamphlets and informational materials, or providing
actual instructive assistance—the “total quantum of their oral or written” advocacy for absentee
38
voting will remain unaffected. Supra Section IV.C. Plaintiffs’ First Amendment overbreadth claim
doesn’t even pass go.
Plaintiffs’ reliance on Board of Airport Comm’rs of City of L.A. v. Jews for Jesus, Inc., 482
U.S. 576 (1987), proves the point. There, the Supreme Court applied the overbreadth doctrine to
an airport regulation that stated, “the Central Terminal Area at Los Angeles International Airport
is not open for First Amendment activities by any individual and/or entity.” Id. at 570–71
(emphasis added). Whereas that regulation purported to convert the airport into “a virtual ‘First
Amendment Free Zone,’” SB1 ensures Alabama is a Ballot Harvesting Free Zone—prohibiting
conduct directed at official government forms that “might create problems” for the fair administra-
tion of absentee voting. Id. at 574. The airport authorities in Jews for Jesus offered a “vague
limiting construction” deputizing them to draw “[t]he line between airport-related speech and
nonairport-related speech.” Id. at 576. In contrast to “airport-related” or election-related speech,
giving out, gathering, or completing (other people’s) absentee ballot applications is not protected
expression, Lichtenstein, 83 F.4th at 579, and performing the steps necessary to vote absentee is
not protected by the First Amendment. See Hand v. Scott, 888 F.3d 1206, 1211 (11th Cir. 2018)
(“It is well established in [the Eleventh Circuit] that the First Amendment provides no greater
protection for voting rights than is otherwise found in the Fourteenth Amendment.”); Thompson
v. Alabama, 293 F.Supp.3d 1313, 1327 (M.D. Ala. 2017) (concluding “the First Amendment does
not guarantee the right to vote”). Because SB1, on its face, does not even “reach[] the universe of
expressive activity” protected by the First Amendment, Jews for Jesus, 482 U.S. at 574, it cannot
be facially invalid.
Even assuming SB 1 reaches expressive conduct, any overbreadth would be insubstantial
“judged in relation to the statute’s plainly legitimate sweep.” Hicks, 539 U.S. at 118. Plaintiffs can
39
argue otherwise only by dismissing “so-called ‘ballot harvesting’” as a nonconcern., Doc. 1, ¶ 53,
and by asserting Alabama elections are “already sufficiently” secure, id. ¶ 132. But these un-
founded, conclusory assertions do not negate the legitimate sweep of SB1. It is uncontroversial
that absentee ballots are an avenue for electoral abuse and indisputable that the absentee applica-
tion is necessary for those abuses to occur. See supra Section II.B. SB 1, as a whole, “reduce[s]
the risks of fraud and abuse in absentee voting by prohibiting ‘third-party’ organizations, candi-
dates, and political party activists” from requesting, obtaining, and submitting absentee ballot ap-
plications on behalf of voters who decide their political fate. Building Confidence at 46 (emphasis
added). By reserving the steps of absentee voting to voters, SB 1’s “plainly legitimate sweep” is
broad and vital “to maintain the integrity of the democratic system.” Burdick v. Takushi, 504 U.S.
428, 441 (1992).
As with the purported examples of vagueness, the alleged “overbreadth” of the
“Submission and Prefilling Restrictions” comprises conduct that is either reasonably prohibited or
clearly permissible. Beginning with the permissible, simply writing down another voter’s name on
an application is prohibited only if done prior to distributing the application to a voter who has
neither input his own information nor obtained the application for himself. It is prefilling that is
prohibited; not any filling at all. Indeed, “[a]ny applicant may receive assistance in filling out the
application as he or she desires,” subject to SB1’s reasonable constraints as to how and from whom
that assistance derives. These guardrails aim to ensure (at a minimum) “that every [absentee] vote
is cast freely, without intimidation or undue influence.” Brnovich, 141 S. Ct. at 2340. None of this
chills expressive conduct; it’s a bulwark against dubious ballot harvesting.
Taking aim at the Compensation Prohibition, Plaintiffs rely on token gifts to establish
overbreadth. E.g., Doc. 1, ¶ 153 (asserting the Compensation Prohibition “lacks any reasonable
40
bounds” because a stamp or sticker might be given “in exchange for” a service). It is doubtful
whether anyone has ever knowingly provided or accepted a common “stamp or sticker” as
compensation for a service. Indeed, Plaintiffs allege that they “give away stickers to voters” and
volunteers alike, with no indication that the organizations offer or the volunteers receive stickers
as compensation for particular services rendered. Id. ¶¶ 20, 72. The scenarios envisioned by
Plaintiffs “demonstrate nothing so forcefully as the tendency of [the] overbreadth doctrine to
summon forth an endless stream of fanciful hypotheticals.” Williams, 553 U.S. at 301. Plaintiffs
try to “conceive of some impermissible applications of” the Compensation Prohibition, Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984), identifying
expressive gifts that could be compensatory. Doc. 1, ¶ 72. But “the existence of that exception”—
say, the “Get Out The Vote” t-shirt knowingly provided and received as compensation for
harvesting services—“would not establish that the statute is substantially overbroad.” Williams,
553 U.S. at 303. Judged in relation to the statute’s plainly legitimate sweep in curtailing voter
fraud—which Plaintiffs refuse to even acknowledge—SB1’s overbreadth would be insubstantial.
Plaintiffs fail to plausibly allege that SB1 criminalizes a substantial amount of speech in
relation to the statute’s plainly legitimate sweep. Count IV is due to be dismissed.
G. By Exempting from Liability the Exact Assistance That § 208 of the VRA Permits,
SB1 Cannot Violate or Be Preempted by It (Count V).
Alabama law explicitly permits “[a]ny voter who requires assistance to vote by reason of
blindness, disability, or inability to read or write [to] be given assistance by an individual of the
voter’s choice” with limited exceptions. ALA. CODE § 17-11-4(e). The Legislature directly copied
the VRA’s provision regarding “Voting assistance for blind, disabled or illiterate persons[,]” 52
U.S.C. § 10508 (title) (“§ 208”). But under Plaintiffs’ reading, because the Legislature did not use
certain magic words or directly cite the federal law that it copies word for word, the exception
41
apparently means nothing, and the law violates the VRA. See Doc. 1, ¶¶ 162–66. Such a reading
fails to give any effect to the Legislature’s express adoption of federal law.19
Statutory text “obviously transplanted from another legal source … brings the old soil with
it.” Hall v. Hall, 584 U.S. 59, 73 (2018). Subsection (e) “is obviously transplanted” from § 208
because it copies the language verbatim. Put another way, copying § 208 “word for word” in ALA.
CODE § 17-11-4(e) “would have been a bizarre way of suggesting that the two [statutes] should
bear drastically different meanings.” United States v. Davis, 588 U.S. 445, 460 (2019). There is no
reason for this Court to give § 17-11-4(e)’s exception for assisting disabled voters a different
meaning from that given to identical language in § 208. Stokeling v. United States, 139 S. Ct. 544,
551 (2019) (“We can think of no reason to read ‘force’ in the revised statute to require anything
more than the degree of ‘force’ required in the 1984 statute.”).
Under the old-soil canon, § 208’s definition of “vote” and “voting” apply to § 17-11-4(e).
See Doc. 1, ¶ 160 (citing 52 U.S.C. § 10310(c)(1) (defining “vote” and “voting” under the VRA
to “include all action necessary to make a vote effective”)).20 Plaintiffs’ reading renders § 17-11-
4(e) meaningless21 because it doesn’t use their preferred magic words, see Doc. 1, ¶ 162–63, and
“flouts the interpretive canon against surplusage—the idea that every word and every provision is
to be given effect and that none should needlessly be given an interpretation that causes it … to
19
It is only this reading that puts wind in the sails of most of Plaintiffs’ armada of manufactured
examples regarding disabled voters. A blind voter who requires assistance will not “face criminal
liability for … asking someone to submit their application on their behalf” nor will someone who
cannot walk be prosecuted for requesting required assistance from “a friend to place their applica-
tion in the mailbox.” Contra Doc. 1, ¶ 113.
20
Even without the old-soil canon, the State does not interpret “voting” to only cover “the
mechanical act of filling out the ballot sheet[,]” Doc. 1, ¶ 160 (quoting OCA-Greater Houston v.
Texas, 867 F.3d 604, 607 (5th Cir. 2017)).
21
This theory—and the complaint entirely—also ignores § 4(b)(1), which allows any applicant
to “receive assistance in filling out the application as he or she desires.”
42
have no consequence.” Nielsen v. Preap, 139 S. Ct. 954, 969 (2019) (cleaned up) (quoting ANTO-
NIN SCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174
(2012)). Instead, § 17-11-4(e) authorizes absentee voting assistance for disabled individuals con-
sistent with § 208.22 SB1—by expressly incorporating § 208’s protection for disabled voters—
avoids “criminaliz[ing] conduct expressly protected and authorized under the VRA.” Doc. 1,
¶ 166. For that same reason, neither can § 17-11-4(e) “create[] an impermissible barrier to accom-
plishing the full purposes and goals of Congress[,]” id., which could invoke federal preemption.
Plaintiffs’ VRA claim thus fails to state a claim on the merits.
To the extent Plaintiffs contend that § 208 broadly preempts § 17-11-4(d)’s prohibitions
on ballot harvesting transactions, they are mistaken. Section 208 does not expressly preempt sub-
section (d), and it does not meet the “high threshold” for conflict preemption. Chamber of Com. of
U.S. v. Whiting, 563 U.S. 582, 607 (2011). In considering conflict preemption, courts look to Con-
gressional intent, and assume “the historic police powers of the States are not superseded unless
that was the clear and manifest purpose of Congress.” Marrache v. Bacardi U.S.A., Inc., 17 F.4th
1084, 1095 (11th Cir. 2021). Here, “Section 208 allows certain voters who need help voting to
select ‘a person of the voter’s choice’—not ‘any person,’ not ‘the person.’” Priorities USA v.
Nessel, 628 F. Supp. 3d 716, 732 (E.D. Mich. 2022) (emphasis added by court). Both § 208’s use
of the indefinite article “a” and its limitation on a disabled voter relying on her employer or union
show that Congress did not intend to give the voter boundless options. “When used as an indefinite
article, ‘a’ means some undetermined or unspecified particular.” McFadden v. United States, 576
22
To be clear, § 17-11-4(e) exempts from criminal liability voting assistance that is both re-
quired by reason of a voter’s disability and provided by someone of that voter’s choice. It does not
provide immunity for individuals to target disabled persons with impermissible harvesting con-
duct. For instance, mailing prefilled ballots to nursing homes or assisted living facilities would
not be lawful simply because a high proportion of the recipients are disabled.
43
U.S. 186, 191 (2015) (quotations omitted). And by excluding unions and employers, Congress
recognized that certain people might unduly influence a disabled voter’s choice. Thus, “a State
law that limits a voter’s choice does not automatically flout Section 208,” Priorities USA, 628 F.
Supp. 3d at 733, particularly when it operates to limit the influence of paid operatives. Thus,
§ “208’s natural effect allows some wiggle room: a voter may select ‘a person’ to assist them, but
not the person of their choice.” Id. Otherwise, States would be powerless to limit even known
fraudsters from trying to manipulate voters.
H. ADAP’s HAVA Claim Fails Because SB1 Permits ADAP to Assist Voters, But Re-
gardless They Lack a Cause of Action to Bring This Claim (Count VI).
Plaintiffs’ “claim” under Count VI suffers from three fatal flaws. First, the claim depends
on the mistaken assumption, see supra Section IV.G, that the challenged provisions prohibit “ab-
sentee assistance” that HAVA allegedly implicitly authorized ADAP to conduct. Because § 17-
11-4(e) expressly allows disabled individuals to “receive assistance,” ADAP is not at risk of crim-
inal prosecution23 by helping disabled voters apply to vote absentee nor do the challenged provi-
sions “create[] an impermissible barrier to accomplishing the full purposes and goals of Congress”
under HAVA. See Doc. 1, ¶ 170.
Second, Plaintiffs lack an avenue to bring this claim. Despite bringing a claim for “Viola-
tion of the Supremacy Clause and the Help America Vote Act of 2002[,]” Doc. 1, p. 67, Plaintiffs
don’t allege a private right to enforce either. Nor could they. “The Supremacy Clause is not the
source of any federal rights, . . . and certainly does not create a cause of action.” Armstrong v.
Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015) (cited by Doc. 1, ¶ 172). Neither does the
Supremacy Clause create rights enforceable under § 1983, Golden State Transit Corp. v. City of
23
ADAP itself is not at risk of criminal prosecution anyway. Alabama law does not provide
for corporate criminal liability unless the Legislature “has specifically provided for corporate lia-
bility.” State v. St. Paul Fire & Marine Ins. Co., 835 So. 2d 230, 233 (Ala. Crim. App. 2000).
44
Los Angeles, 493 U.S. 103, 107 (1989). And “HAVA creates no private cause of action.” Bellitto
v. Snipes, 935 F.3d 1192, 1202 (11th Cir. 1992). Thus, Plaintiffs cannot rely on the Supremacy
Clause, § 1983, or HAVA to allow them to bring this claim. Plaintiffs instead appeal to one line
from Armstrong: “if an individual claims federal law immunizes him from state regulation, the
court may issue an injunction upon finding the state regulatory actions preempted.” 575 U.S. at
326 (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)).24
But “[t]here is no such thing as a suit for a traditional injunction in the abstract.” Alabama
v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005). Instead, any request for
injunctive relief “must be based upon a cause of action.” Id. But, as just discussed, Plaintiffs have
no cause of action under which to enforce either the Supremacy Clause or HAVA. Indeed, even
Armstrong recognized that the Supremacy Clause’s force only comes into play “once a case or
controversy properly comes before a court[.]” Armstrong, 575 U.S. at 326. Moreover, the line from
Armstrong upon which Plaintiffs rely cites Ex parte Young, which provides an exception to the
States’ sovereign immunity that allows prospective injunctive relief against State officials for on-
going violations of federal law—but not a standalone cause of action. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 103 (1984). And whether a plaintiff possesses a cause of action
is not a question of subject-matter jurisdiction (and subject to challenge under Rule 12(b)(1)), but
rather whether a plaintiff can state a claim (subject to challenge under Rule 12(b)(6)). See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). In sum, Plaintiffs fail to state a claim in
Count VI because they lack a cause of action under which to assert it.
24
Armstrong, 575 U.S. at 327 (This is a “judge-made remedy” that does not “rest[] upon an
implied right of action contained in the Supremacy Clause.”).
45
Lastly, even if Plaintiffs had some standalone cause of action under which to assert their
Count VI claim, federal courts’ equitable powers must yield to express and implied statutory lim-
itations. Armstrong, 575 U.S. at 327 (citations omitted). Indeed, the Supreme Court in Armstrong
did not allow respondents to proceed against Idaho. Id. at 327–28. Plaintiffs here merely allege
that “Congress has not evinced any ‘intent to foreclose’ equitable relief under the PAVA provi-
sions of HAVA[,]” Doc. 1, ¶ 172, but Plaintiffs don’t engage with the reasons such intent could
exist. In fact, the same two reasons that Armstrong discusses as to the Medicaid Act apply to
HAVA: exclusive alternative remedies and judicially unadministrable text. Thus, “Plaintiffs can-
not cloak their [HAVA] arguments in the guise of the Supremacy Clause to assert a private en-
forcement action that is precluded by the statute.” Corey v. Rockdale County, __F. Supp. 3d__,
No. 1:22-cv-3918-MLB, 2023 WL 6242669, at *5 (N.D. Ga. Aug. 28, 2023).
Armstrong first held that Congress intended to foreclose equitable relief because “the sole
remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the
State’s ‘breach’ of the Spending Clause contract—is the withholding of Medicaid funds by the
Secretary of [HHS][.]” 575 U.S. at 328 (citing 42 U.S.C. § 1396c). Similarly, “Congress estab-
lished only two HAVA enforcement mechanisms: (1) a civil action brought by the Attorney Gen-
eral, and (2) a state-based administrative complaint procedure.” Bellitto, 935 F.3d at 1202 (citing
52 U.S.C. §§ 21111, 21112). The “express provision” of HAVA’s enforcement to the U.S. Attor-
ney General and State-based administrative processes “suggests that Congress intended to pre-
clude” private equitable enforcement. See Alexander v. Sandoval, 532 U.S. 275, 290 (2001).
Next, because “[t]he provision for the [HHS] Secretary’s enforcement by withholding
funds might not, by itself, preclude the availability of equitable relief[,]” the Armstrong Court
found that it did “when combined with the judicially administrable nature of §30(A)’s text.” 575
46
U.S. at 328 (citing Va. Office for Prot. and Advocacy v. Stewart, 563 U.S. 247, 256 n.3 (2011)).
Asking a federal court to determine whether a State has violated § 21061(a) has similar judicial
administration issues. The provision merely states that that “the Secretary of Health and Human
Services shall pay [ADAP] to ensure full participation in the electoral process for individuals with
disabilities[.]” The only duty § 21061(a) imposes is on the Secretary of HHS; it imposes no duty
on the States.
The language that supposedly insulates ADAP from liability—“ensur[ing] full participa-
tion” is “precatory.” Cf. Blessing v. Freestone, 520 U.S. 329, 341 (1997) (“[T]he provision giving
rise to the asserted right must be couched in mandatory, rather than precatory, terms.”). Does
ADAP assert that if disabled individuals do not have a 100% registration and turnout rate in elec-
tions that they have violated § 21061(a) by not ensuring full participation? Of course not. This
aspirational language doesn’t impose any duty on ADAP, so the challenged provisions cannot
“make[] it impossible for ADAP to exercise its duties under 52 U.S.C. § 21061[,]” contra Doc. 1,
¶ 170. This judicially unadministrable language further suggests that Congress intended to fore-
close judicial equitable enforcement of § 21061(a).
Relatedly, it’s quite the stretch to argue that HAVA “immunizes [ADAP] from state regu-
lation” whatsoever. Armstrong, 575 U.S. at 326 (citing Ex parte Young, 209 U.S. at 155-56). Nor
would § 21061(a) prohibit a State court from convicting ADAP’s employee for violating the chal-
lenged provisions. Id. (citing Pennsylvania v. Nelson, 350 U.S. 497, 499, 509 (1956)). ADAP’s
argument has no limiting principle. ADAP could argue that any State statute or regulation with the
most marginal impact on its efforts to “ensure full participation” is preempted. Or it could argue
that HAVA preempts Ala. Code § 17-17-34, which makes it unlawful to pay someone to vote,
47
because paying disabled individuals to vote would work to “ensure full participation.” Section
21061(a)’s text does not mandate—let alone plausibly support—these absurd results.
Because HAVA “implicitly precludes private enforcement” of §[21061(a)] through its pro-
vision of other enforcement mechanisms and its use of judicially unadministrable text, Plaintiffs
“cannot . . . circumvent Congress’s exclusion of private enforcement” by invoking this Court’s
equitable powers. Armstrong, 575 U.S. at 328 (citation omitted). By not having a standalone cause
of action to raise in this pre-enforcement suit, it’s not as if Plaintiffs are left “with no resort.” 575
U.S. at 331. Plaintiffs’ employees could raise this preemption argument as a defense in any poten-
tial criminal prosecution. See Armstrong, 575 U.S. at 326 (referring to immunity from ongoing
“state regulatory actions”). But as discussed supra Section IV.G, Ala. Code § 17-11-4(e) exempts
from liability the assistance ADAP intends to perform. Thus, Plaintiffs’ “claim” for “Violation of
the Supremacy Clause and [HAVA]” fails to state a claim.
V. CONCLUSION
The Complaint should be dismissed.
Steve Marshall
Attorney General
s/ Edmund G. LaCour Jr.
Edmund G. LaCour Jr. (ASB-9182-U81L)
Solicitor General
James W. Davis (ASB-4063-I58J)
Deputy Attorney General
Soren Geiger (ASB-0336-T31L)
Dylan Mauldin (ASB-3281-Z11M)
Assistant Solicitors General
Brenton M. Smith (ASB-1656-X27Q)
Charles A. McKay (ASB-7256-K18K)
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
48
Montgomery, Alabama 36130-0152

Telephone: (334) 242-7300
Fax: (334) 353-8400
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
49
CERTIFICATE OF SERVICE
I certify that on May 20, 2024, I electronically filed the foregoing notice with the Clerk of
the Court using the CM/ECF system, which will send notice to all counsel of record.
s/ Edmund G. LaCour Jr.

50
Case 2:24-cv-00420-RDP Document 42-1 Filed 05/20/24 Page 1 of 11 FILED
2024 May-20 PM 05:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
Exhibit A
Final Order, Cooper v. Brown, No. 68-CV-2016-900602.00
(Jefferson Cnty. Cir. Ct. Sept. 25, 2017) (Doc. 246).
DOCUMENT 246
ELECTRONICALLY
Case 2:24-cv-00420-RDP Document 42-1 Filed 05/20/24 Page 29/25/2017 FILED
of 11 9:34 AM
68-CV-2016-900602.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
KAREN DUNN BURKS, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION
COOPER EDDIE MR., )

Plaintiff, )
)
V. ) Case No.: CV-2016-900602.00
)
DEAN BRANDON MR., )
Defendant. )
FINAL ORDER
This is an election contest.
Plaintiff Eddie Cooper (hereafter referred to as “Plaintiff” or “Cooper”), a candidate for
the office of Mayor of the City of Brighton, Alabama during the 2016 mayoral election claims
Defendant Mayor Brandon Dean (hereafter referred to as “Defendant” or “Dean”) is not
qualified to hold the office of Mayor of the City of Brighton, Alabama because he was not a
resident of Brighton for the 90 day period prior to the election date. Cooper seeks an Order
from the Court removing Dean from office and installing him as Mayor.
Alternatively, Cooper contends that illegal absentee ballots were cast during the election
and discounting these ballots would result in Dean not receiving a majority of the votes cast.
Under this alternative theory Cooper wants the Court to Order a run-off election between he
and Dean.
Dean denies these allegations.
This case was called to trial on August 7, 2017 before the undersigned. Sworn testimony
and other evidence was received on August 7th and August 8th with closing argument
DOCUMENT 246
Case 2:24-cv-00420-RDP Document 42-1 Filed 05/20/24 Page 3 of 11
presented on August 9th. During trial the Court had the opportunity to hear the testimony of
the parties and witnesses and observe their demeanor both on and off the witness stand.
Based upon the same and the evidence submitted to the Court and the applicable law the Court
makes the following finding of facts, analysis and conclusion.
I. EVIDENTIARY SUBMISSIONS AND FINDING OF FACTS
A. ELECTION RESULTS
On August 23, 2016 municipal elections were held in the City of Brighton, Alabama
resulting in the following results for the Office of Mayor: Brandon Dean - 376 votes (52%); Eddie
E. Cooper - 195 votes (27%); Barbara E. “Bobbie” Watkins - 74 votes (10%); Tyrone Rudolph - 42
votes (6%) and, Annie Woods - 30 votes (4%).
B. PLAINTIFF’S RESIDENCY CLAIM
Plaintiff contends Defendant was not a resident of the City of Brighton, Alabama for the
time period required by law to qualify to run for elective municipal office.
Defendant denies this contention and claims 4508 Letson Street, Brighton, Alabama has
been his residence for years prior to 2016, throughout 2016 and remains his residence to date.
Plaintiff presented evidence from Reverend Tyrone Banks, Defendant’s uncle; Juanita Dean,
Defendant’s grandmother; and the Defendant himself in an attempt to establish that Dean was
not a resident of the City of Brighton for the requisite 90 day time period prior to the election.
Reverend Banks testified that he lives at 4506 Letson Street, Brighton which is next door to 4508
Letson Street and that although he does not believe 4508 was Dean’s permanent residence he
could not say so for sure. However, he was sure that he saw Dean on a much more frequent
DOCUMENT 246
basis at 4508 Letson Street prior to the date of the 2016 Brighton municipal election than after
the election.
Dean’s grandmother Juanita Dean testified that Dean lived with her at the 2508 Letson
Street address for years and that it was his permanent residence. She testified that this was the
fact although Dean may spend the night on occasion at his girlfriend’s house or in Atlanta due to
his work. She further testified that he stayed in the second bedroom in the house and kept his
clothes and personal belongings there.
Dean himself testified that even while he was in Washington D. C. attending college at
Howard University he always considered 4508 Letson Street his permanent residence. He
testified that prior to the 2016 election he would stay at 4508 at least 3 or 4 days out of the
week. He further testified that while other family members have stayed at the residence on
occasion (e.g., his sisters intermittently during 2016), he now lives there alone with his
grandmother.
Dean further testified that since the election he has entered into a short term lease on a
condo in Atlanta, Georgia to facilitate his work there but, he lives at 4508 from 10 - 15 days out
of each month. He also testified that he has continually used the 4508 address for income tax
purposes and to receive important mail there through the years.
Based upon the evidence presented the Court finds that Dean’s legal residence for the
90 day time period prior to the date of the 2016 Brighton Municipal election was, and through
the date of trial is 4508 Letson Street, Brighton, Alabama.
C. PLAINTIFF’S ILLEGAL ABSENTEE VOTE CLAIM
Cooper contends that the voting paperwork submitted by certain absentee voters was
DOCUMENT 246
improperly filled out. He specifically contends either: (1) the voters themselves did not sign the
required forms; (2) the voters improperly listed Dean’s address as the “address where they
regularly received mail” when they did, in fact, not regularly receive mail at Dean’s address; or,
(3) the voters did not live within the city limits of Brighton.
The Court takes judicial notice that generally, the proper procedure to vote by absentee
ballot in Alabama is to make a written request. Two documents must be submitted to the
Absentee Election Manager (the Brighton City Clerk in this case): (1) an “Application for
Absentee Ballot;” and, (2) an “Affidavit of Absentee Voter.” Both must be signed by the voter:
the Application need not be witnessed unless the voter signs by mark - the Affidavit must be
either notarized or signed by two witnesses to the voter’s signature or mark.
The voter must indicate one of the following reasons for voting absentee on the Affidavit of
Absentee Voter:
*I will be out of the county or the state on Election Day;
*I am physically incapacitated and will not be able to vote in person on Election Day;
*I work a required workplace shift which has at least 10 hours which coincide with the
polling hours at my regular polling place;
*I am a student at an educational institution located outside the county of my
permanent residence and am therefore unable to vote at my usual polling place on election day;
*I am a member of or a spouse or dependent of a member of the armed forces of the
United States or am otherwise entitled to vote pursuant to the Uniformed and Overseas Citizens
Absentee Voting Act, 42 U.S.C. 1973ff;
*I have been appointed as an election officer at a polling place which is not my regular
DOCUMENT 246
polling place.
The voter must indicate on the Application for Municipal Absentee Ballot where to
“[m]ail my ballot to the address where I regularly receive mail” if that address is different from
the address where the voter is registered to vote.
1. INCONSISTENT SIGNATURE CLAIM
Cooper’s first witness was Steve Drexler, a forensic document and handwriting analysis
expert who’s qualifications and expertise were not challenged by Dean.
Drexler testified that he had been hired by Plaintiff to examine the Application for
Municipal Absentee Ballot with the Affidavit of Absentee Voter submitted during the August
2016 Brighton Municipal election. When possible, he compared the affixed signatures with a
known signature (e.g., the signature on a drivers license).
Drexler found that the signature on 21 Applications for Absentee Ballot were different
from the corresponding signature on the Affidavit of Absentee Voter, to wit, those evidenced on
Plaintiff’s Exhibits 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and
45.
Drexler’s testimony was not objected to or controverted in any way by Dean and the
Court both found his testimony and analysis credible and compelling and further adopts his
factual conclusion that these Applications and corresponding Affidavits were signed by different
individuals.
2. IMPROPER MAILING ADDRESS CLAIM
Dean testified that his 4508 Letson Street residence was also used as his campaign
headquarters. He admits that he and his campaign workers encouraged prospective absentee
DOCUMENT 246
voters to use this address as one where they could receive their absentee ballot and list as an
address where they regularly received mail. At least one witnesses testified that they did not
know why 4508 Letson Street was used as an address where they regularly received mailed and
further testified that Dean’s campaign workers filled out their absentee voter paperwork.
Cooper challenges the following 19 absentee votes for improperly listing [the] “address
where I regularly receive mail, if different from the street address provided above” as 4508
Letson Street, Brighton, Alabama, to wit: those votes evidenced on Plaintiff’s Exhibits 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22.
Of these 19 absentee voters Dean himself testified that 16 of them did not regularly
receive mail at his 4508 Letson Street address. He testified the voters evidenced by Plaintiff’s
Exhibit 11 and 16 had lived at 4508 Letson Street and that the voter evidenced by Plaintiff’s
Exhibit 20 would receive mail at 4508 Letson Street. This testimony, however, does not
convince the Court that any of these voters “regularly received mail” at his address.
3. FALSE REASON FOR VOTING ABSENTEE CLAIM
Absentee Voter evidenced by Plaintiff’s Exhibit 61 was called to the witness stand by
Cooper. She testified that although she marked “[having] a physical illness or infirmity which
prevents my attendance at the polls” as the reason she voted absentee, she admitted and the
Court finds that it was her brother who was infirm and that she was afraid that caring for him
might prevent her from being able to vote on election day. She further testified that she was in
fact present at Brighton City Hall on election day during voting hours.
Cooper called to the witness stand absentee voter evidenced by Plaintiff’s Exhibit 62
who testified that although he marked “I work a shift which has at least ten (10) hours that
DOCUMENT 246
coincide with the polling hours at my regular polling place” as the reason he voted absentee, he
admitted, and the Court finds, that this was not the case. He further testified that he was
actually present at Brighton City Hall on election day during voting hours.
Defendant’s only witness testified and the Court finds that although he voted absentee
in the Brighton election: (1) there was nothing preventing him from voting during the regular
voting hours on August 23, 2016; and, (2) he was actually a resident of the City of Vestavia when
he voted and that he had lived in Vestavia for the past two years and his two minor children
were students in the Vestavia school system. This witnesses’ Application and Affidavit are
admitted into evidence as Plaintiff’s Exhibit 41.
4. OTHER ILLEGAL VOTE CLAIM
Plaintiff also contends: (1) that the absentee vote evidenced by Plaintiff’s Exhibit 63
should not be counted because Dean testified this individual lived in Pleasant Grove, Alabama
and not Brighton; and (2) that the absentee votes evidenced by Plaintiffs Exhibit 64, 65 and 70
should not be counted because Dean himself testified that they did not regularly receive mail at
4508 Letson Street.
The Court finds the voter evidenced in Plaintiff’s Exhibit 63 in fact lived in Pleasant Grove
on the date of the election. The Court also finds that the voters evidenced in Plaintiff’s Exhibits
64 and 70 did not regularly use Dean’s address for the receipt of mail. Dean did testify that the
voter evidenced in Plaintiff’s Exhibit 65 received mail at his house but the Court is not convinced
that this voter “regularly received mail” at Dean’s address.
II. LEGAL ANALYSIS

DOCUMENT 246
A. DEAN’S LEGAL RESIDENCE
The Court has made the factual finding that Dean resided for the requisite time period at
4508 Letson Street, Brighton, Alabama and concludes that this address was his legal residence.
Dean therefore, was eligible to run for the office of Mayor of the City of Brighton, Alabama. See,
§ 11-44F-1 ALA. CODE (1975).
B. ILLEGAL ABSENTEE VOTE CLAIM
1. INCONSISTENT SIGNATURES
The signature contained on the Application for Absentee Ballot and the Affidavit of
Absentee Voter must be by the same individual voter applying to vote absentee. There is no
provision in Alabama law authorizing another person to sign in the voter’s place. See, generally,
Long v. Bryant, 992 So.2d 673 (Ala. 2008). Thus, all 21 votes evidenced by Plaintiff’s Exhibits 25,
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 are hereby
discounted and held for naught.
2. FALSE MAILING ADDRESS
Alabama law is likewise clear that if one wants their absentee ballot mailed to them at
an address different from the address they list as their residence it must be one where they
regularly receive mail. Long v. Bryant, supra. Thus, all 19 votes evidenced by Plaintiff’s Exhibits
4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 as well as the three votes
evidenced by Plaintiff’s Exhibits 64, 65 and 70 are hereby discounted and held for naught.
3. FALSE REASON FOR VOTING ABSENTEE
The absentee voters evidenced by Plaintiff’s Exhibit 61 and 62 gave false reasons for
voting absentee. Both absentee voters, in fact, were present at Brighton City Hall on election
DOCUMENT 246
day during polling hours. Both votes are hereby discounted and held for naught. § 17-11-3 ALA.
CODE (1975). Long v. Bryant, supra.
4. IMPROPER ABSENTEE VOTER RESIDENCE
Defendant’s sole witness admitted that he actually lived in Vestavia Hills and the vote of
that witness as evidenced by Plaintiff’s Exhibit 41 has already been discounted. However, the
vote evidenced by Plaintiff’s Exhibit 63 must also be discounted as Dean testified he had
personal knowledge that this voter actually lived in Pleasant Grove, Alabama. See, § 11-44F-1
ALA. CODE (1975).
III. COMPUTATION OF LEGAL VOTES
As discussed above, 46 illegal absentee votes must be discounted both from the total number of
votes cast during the 2016 Brighton Mayoral Election and from Dean’s total. After these
deductions, Dean must obtain a majority of the legal votes cast to avoid a run-off election. § 11-
46-142 ALA. CODE (1975).
The total votes cast for mayor during the election August 2016 election was 717. From
this number the 46 illegal absentee votes must be deducted leaving a total of 671 legal votes
cast. To avoid a run-off Dean must receive a total of 336 votes.
Dean received 376 votes during the election. From this total 46 illegal absentee votes
must be deducted leaving Dean with a total of 330 votes.
IV. CONCLUSION
DOCUMENT 246
The Court hereby finds that the Defendant did not receive the requisite number of votes
to be declared the winner of the 2016 Mayoral Election for the City of Brighton, Alabama. Thus,
the Court hereby DECLARES AND ORDERS AS FOLLOWS:
1. A vacancy exists in the Office of Mayor for the City of Brighton, Alabama;
2. A run-off election pursuant to applicable Alabama law shall forthwith take place;
3. Counsel for the parties’ shall immediately deliver a copy of this Order to each
member of the Brighton City Council and to the Brighton City Clerk; and,
4. Costs of this action are taxed as paid. Any requests for relief not specifically granted
within this Order are hereby deemed to be denied.
DONE this 25th day of September, 2017.
/s/ HON. EUGENE R. VERIN

CIRCUIT JUDGE
2024 May-20 PM 05:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
Exhibit B
Final Order on Election Contest, Porter v. Alexander,
No. 68-CV-2018-900776.00 (Jefferson Cnty. Cir. Ct. Sept. 3,
2021) (Doc. 294)
DOCUMENT 294
ELECTRONICALLY
Case 2:24-cv-00420-RDP Document 42-2 Filed 05/20/24 Page 29/3/2021 FILED
of 12 10:23 AM
68-CV-2018-900776.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
KAREN DUNN BURKS, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION
PORTER CHESTER W., )

Plaintiff, )
)
V. ) Case No.: CV-2018-900776.00
)
ALEXANDER KIMBERLY, )
ALEXANDER LOUISE, )
Defendants. )
FINAL ORDER ON ELECTION CONTEST
On August 28, 2018 the City of Bessemer held its general election. Vying for the City
Council District 2 position were the incumbent Chester Porter, Kimberly Alexander and
Robert Mickelle Jackson. Porter received 495 votes (48%), Alexander 483 votes
(47%), and Jackson 53 votes (5%), resulting in a runoff election between Porter and
Alexander.
October 9, 2018 arrived and after all votes were counted Alexander was declared the
winner of the runoff election with a total vote count of 523 (53.04%) versus Porter who
received 463 votes (46.96%). Porter was concerned with what he considered to be the
extraordinarily high number of absentee votes received by Alexander (229) and rumors
of improprieties taken by the Alexander campaign. As a result, he filed a pro se
election contest on October 12, 2018 which alleged:
1. Absentee Voter Fraud - Casting Absentee Votes for the Deceased.
2. Registering Voters at Empty Lots and/or Non-habitual Structures.
3. U. S. Mail Fraud - Tampering and interfering with U. S. Mail Delivery of Absentee

Ballots.
4. Voter Identity Fraud - Illegally marking an X for signatures on behalf of voters.
5. Moving citizens to abandoned structures from other districts prior to election.
6. Instructing Absentee Runners and Campaign Workers to retrieve absentee ballots

from opponents’ supporters.
7. Voting for citizens that are mentally incapable of exercising their rights to vote.
DOCUMENT 294
These allegations were realleged via the Amended Complaint filed by Plaintiff’s lawyer
on October 19, 2018.
From the onset of the litigation there were allegations of improper custodianship by the
Bessemer City Clerk of the absentee ballots and election documents, i.e., the
Applications, Affidavits, copies of photo identification and ballots. The City Clerk was
ordered to testify before the Court resulting in both a hearing and inspection of
documents held at Bessemer City Hall on December 17, 2018.
As a result of the hearing the Clerk was ordered to provide duplicate copies of all
election documents pertaining to the runoff election to counsel for the parties under a
protective order, and copies of the same to the Court.
After numerous delays due to illness, funeral attendance and Covid-19 mandated
delays, trial commenced on Tuesday, August 10, 2021. As a preliminary matter,
Alexander moved to strike four (4) challenges made by Plaintiff on the basis that the
names of those voters were not submitted on Plaintiff’s Notice of Nature of Evidence.
§17-16-48, ALA CODE (1975). Strict compliance with this code section is mandatory.
Cochran v. Grubbs, 913 So.2d 446 (Ala. 2005). Plaintiff conceded that the 4 names
were not submitted on his Notice of Nature of Evidence but contended they should be
considered as their names were on Plaintiff’s witness list pursuant to the Court’s July
11, 2019 Scheduling Order. These voters were: Plaintiff’s Exhibit No. 14, Voter F. R.,
Plaintiffs Exhibit No. 18, Voter A.J., Plaintiffs Exhibit No. 39, Voter F. P., and Plaintiffs
Exhibit No. 81, Voter R.F. (Note: hereafter voters will be identified by the letter P
followed by a number, representing Plaintiff Exhibit Number, and the letter V followed by
a number representing Voter Number.). However, listing these voters’ names on a
witness list with 131 other names fails to notify Defendant that the witness is in fact a
voter whose ballot is being challenged. For these reasons Plaintiff’s challenge to these
four voters is denied and their votes are counted.
The vote tally thus remains 523 for Alexander and 463 for Porter.
During the course of the litigation Plaintiff voluntarily withdrew challenges to the
following absentee voters and conceded their ballots should count: P52 V45; P79 V57.
Thus, the vote tally remains 523 for Alexander and 463 for Porter.
THE ABSENTEE VOTING PROCESS - IN GENERAL
Generally, eligible registered voters may vote by absentee ballot if they:
(1) will be out of the county or state on Election Day; or,
(2) have a physical illness or infirmity which prevents their attendance at the polls and
are over 65 years old or have a disability; or,
PAGE 2
DOCUMENT 294
(3) work a shift which has at least 10 hours that coincide with polling hours; or,
(4) are enrolled as a student at an educational institution located outside the county of
their personal residence; or,
(5) are a member or the spouse of a member of the Armed Forces of the United States;
or,
(6) have been appointed as an election officer at a polling place.
§17-11-3(a), ALA CODE (1975)
To vote absentee, a prospective absentee voter obtains an Absentee Voter Application,

has the application filled out with the appropriate excuse for voting absentee specified,
and then the voter themself must either personally sign the application or affix their
mark, i.e., an “X” - if the voter signs the application it need not be witnessed - however,
if they place their mark on the application the affixing of their mark must be witnessed,
and the witness must sign the application.
The application need not be submitted on the official form supplied by the election
manager. “Notwithstanding the foregoing, handwritten applications can also be
accepted ... [which] shall contain sufficient information to identify the applicant and shall
include the applicant’s name, residence address, or such other information necessary
to verify that the applicant is a registered voter.” §17-11-4, ALA CODE (1975).
The prospective voter then has the Application for Absentee Ballot delivered, by mail or
in person, to the office of the Absentee Election Manager. The Absentee Election
Manager confirms that the prospective voter’s name is on the list of eligible voters
provided to them by the Jefferson County Board of Registrar, and if so, an envelope
containing the following materials are sent to the voter: a ballot and security envelope
and, an envelope within which to mail the security envelope which also has an affidavit
thereon which the voter must personally sign or affix their mark - however, this time the
signature or mark must be witnessed by either a notary or two witnesses who must
verify with their signature(s) they have witnessed the voter either sign or affix their
mark. Like the application the affidavit has other identifying information that must be
filled out (e.g., county and place of residence, voting precinct and date of birth) and the
reason for voting absentee must also be specified.
In bold capital letters below the signature lines the voter is warned:
IF YOUR AFFIDAVIT IS NOT SIGNED (OR MARKED), AND IF YOUR AFFIDAVIT IS

NOT WITNESSED BY TWO WITNESSES 18 YEARS OF AGE OR OLDER OR A
NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ACKNOWLEDGE OATHS,
PRIOR TO BEING DELIVERED OR MAILED TO THE ABSENTEE ELECTION
MANAGER, YOUR BALLOT WILL NOT BE COUNTED.
PAGE 3
DOCUMENT 294
Underneath the above warning are sections where either the notary notates or the two
witnesses notate their signatures and address(es). The notary section also has a
space to note the date and an acknowledgment that “the affiant is known (or made
known) to [them] to be the identical party he or she claims to be” - the witnesses
section has no such language.
These documents, along with a copy of the voter’s identification authorized by §17-9-
30, ALA CODE (1985) are placed in the “affidavit envelope” along with the security
envelope containing the ballot, and is returned to the election manager.
LAW APPLICABLE TO ELECTION CONTESTS
An absentee voter “may receive assistance in filling out the application [for an absentee
ballot] as he or she desires.” §17-11-4, ALA CODE (1975). But Alabama law is clear
that failure of a voter to personally sign or affix their mark on the application and or
affidavit renders their vote invalid. Fluker v. Wolff, 46 So.3d 942, at 956/956 (Ala.
2010); Taylor v. Cox, 710 So.2d 406 Ala. 1998) at 956, 957 . It is equally clear that
failure to have their signature properly witnessed (i.e., having their mark on the
application - and having their mark or signature on the affidavit notarized or witnessed
by two individuals also renders their vote invalid. This last provision “[goes] to the the
integrity and sanctity of the ballot and election.” Eubanks, infra.
However,
“[so] long as any irregularities in the voting process do not ‘adversely affect the sanctity
of the ballot and the integrity of the election,’ substantial compliance ‘with the essential
requirements of the absentee voting law’ is sufficient. Williams,Supra, at 536.
Eubanks v. Hale,752 So.2d 1113 at 1156 (Ala. 1999).
Therefore, strict compliance is the standard with the law’s signature and witnessing
provisions while substantial compliance is the standard with the other absentee voting
provisions of §17-10-1, et. seq. ALA CODE (1975).
Thus, failure to mark one of the six reasons for voting absentee, along with other
irregularities other than those mentioned above, (i.e., either failure of the voter to
personally sign or failure of proper attestation) in and of themselves, do not necessarily
affect the integrity and sanctity of the electoral process or disqualify a vote from being
counted (e.g., applications having different reasons for voting absentee, or dates of
birth). The court, in these situations must determine, based upon the evidence, on a
vote by vote basis, whether the voter made an honest good faith effort to comply with
the elections laws or whether the integrity and sanctity of the electoral process was
violated. Eubanks v. Hale,752 So.2d 1113 (Ala. 1999).
PAGE 4
DOCUMENT 294
DOCUMENTS INVALID ON THEIR FACE
Both voters represented by P04 V32 and P07 V75 have no signatures on their
applications. The voter represented by P05 V05’s affidavit is not notarized and has
only one witness. As mentioned above, these are fatal defects and all three (3) of
these votes must not be counted.
The vote tally is now 520 for Alexander and 463 for Porter.
VOTER P38 V83’S TESTIMONY
P38 V83 purports to be the application, affidavit and ballot of voter 83. However, V83
testified under oath via deposition that they did not vote during the 2018 Bessemer
Runoff election and Defendant conceded that this vote should not count.
The vote tally is now 519 for Alexander and 463 for Porter.
CHALLENGES BASED ON CHESTER PORTER’S TESTIMONY
Plaintiff Chester Porter took the witness stand and testified as to his personal
observations regarding alleged voting irregularities.
Porter contended that the two voters who claimed to live at 814 22nd Street North,
Bessemer Alabama, P32 V25; P33 V26, should have their votes rejected because prior
to the 2018 election, a tree fell on the residence demolishing it. He further testified that
he helped the residents therein move and that the City of Bessemer raized the
structure. Defendant agreed that those two (2) votes should not be counted.
The tally = 517 for Alexander - 463 for Porter.
Porter also challenged voter P34 V51 claiming as his residence 2729 12th Avenue
North, Bessemer Al 35020. Porter testified that this address is to a grocery store that
has no room to double as a residence; has no bedroom therein; and at night the people
working therein lock up the store and leave. Defendant agreed that this vote should not
count.
Tally = 516 for Alexander - 463 for Porter.
Porter challenges voter P35 V62 because the given address, 3010 9th Avenue North,
Bessemer Al is a motel and he was not aware of anyone living there. However Voter
62 took the stand and under oath testified, with the assistance of his son who was also
placed under oath, to the Court’s satisfaction that although his driver’s license listed his
son’s Shelby County address, he lived at the hotel, a business he owned and took care
of full time. When shown his voting documents he confirmed he recognized them
PAGE 5
DOCUMENT 294
and acknowledged his signatures and provided an handwriting exemplar which

matched the signatures on P35. The Court finds that this vote should be counted.
The four (4) Voters who gave their residence as 2722 12th Avenue North, Bessemer,
Alabama are also being challenged by Porter on the basis that this address is a
licensed day care within which the voters did not reside at the time of the runoff
election. He testified that he is very familiar with this location - the gates to the location
would be locked at night and that not one of the four had identification showing this
address thereon. Both P26 V59 and P27, V19 had the
exact same address in Calera, Shelby County, Alabama on their driver’s licenses; P28
V20 had a Bessemer address on Exeter Avenue outside District 2; and P29 V23 had a
Bessemer address on Avenue M which Porter also testified was not in District 2.
Three of the four referred to voters had the same last name and witness Carla Lacey,
who was a campaign worker for Alexander, testified that she knew the members of this
family, that they lived at this address, and that while the residence used to be a daycare
center prior to the 2018 election, it was not such at the time of the runoff election and
has not been since that time. However, refer to the Court’s assessment as to Ms.
Lacey’s credibility, infra.
Porter does not challenge these voters’ voting documents, and the Court finds no
irregularities therein. The Court is concerned that none of the four voters has 2722
12th Avenue North, Bessemer, Alabama listed as their address on their identification.
The Court has the same concerns with Porter’s challenge with the two voters who listed
their residence as 2516 11th Avenue North. These two (2) voters have the same last
names as the family members residing at the purported daycare. Porter testified that
this address was vacant at the time of the runoff election, although it is now occupied.
The identification of these voters gave addresses that were outside of District 2: P30
V21 a Birmingham address and P31 V22 a Bessemer address on Fairfax Avenue,
Bessemer.
None of the six voters appeared in Court despite at least one being duly served with a
subpoena to appear. Based on the totality of the evidence and inferences the Court
draws therefrom, the challenge to these votes are upheld as being fraudulently
procured, and those six votes shall not be counted.
Porter also challenges the absentee ballot cast by P60 V08. He testified he has known
this voter for years and that this voter was a mentor to him. He also testified that in
PAGE 6
DOCUMENT 294
2017 this voter took ill and her daughters took her to California where she now
resides. Based upon Porter’s demeanor on the stand, which at times portrayed deep
emotional feelings, the Court is convinced that he was telling the truth. The Court is
suspicious that the purported witnesses to this voter’s mark both have Bessemer
addresses and not addresses in California. The Court also notes that Defendant
moved to have the subpoena to one of those witnesses quashed as not being
personally served on him and that neither witness to the Voter’s signature appeared in
Court to testify. Based upon the evidence presented and inferences therefrom the
Court rules that the ballot of this voter should not count as being fraudulently procured.
OTHER BASIS FOR CHALLENGES
Porter challenges P45 V12 because the voter did not identify an excuse on their
affidavit for voting absentee. Without proof that this voter had a fraudulent or other
improper motive, the court is constrained to apply the substantial compliance rule and
find that this vote should be counted.
Eight votes are challenged because of mixed signatures and marks, i.e., either the
application has a signature but the affidavit has a mark or vice versa. The Court is
unaware of any
provision in the law prohibiting this practice and after examining the exhibits to all eight
concludes that they all should be counted: these voters are P13 V17 (despite McGee
witnessing the signature on the application, refer to discussion regarding Frenchia
McGee, infra); P49 V46 (the application is signed, and there appears to be an
attempted signature where an “x” is place on both the signature and printed name lines
indicating where the signature and printed name should be written), P85 V47, P48 V54
(the signatures on the application and affidavit are identical, and the affidavit also has a
mark), P90 V60, P54 V76, P80 V82, and P83 V61.
Challenges are made to the following four (4) voters because the applications have
different birth dates than the Affidavits. The Court finds that these differences, in and
by themselves, do not offend the integrity of the voting process and denies the
challenges to P09 V16, P11 V24, P10 V39, and P73 V53.
Tally = 509 for Alexander - 461for Porter
Porter challenges the following four (4) ballots because there is no identification of
these Voters who gave having to work a 10 hour shift as their reason for voting
PAGE 7
DOCUMENT 294
absentee - Porter contends that they did not establish that they were 65 years of age
or older. Because there is no such requirement under the law the challenges to these
four ballots fail: P20 V01, P21 V73, P25 V74, and P23 V84 are counted.
Tally = 509 for Alexander - 461 for Porter
Porter challenges P64 V69 because no excuse is marked on their affidavit and the
affidavit and applications have mixed signatures and mark. As discussed earlier, this
challenge is denied as the voter has substantially complied with the absentee voting
laws and there is no proof of bad faith or fraud.
Tally = 509 - 461
Challenge is made to four (4) ballots because both the excuses for voting absentee and
the voters birth date are different on the application and the affidavit. Even though
standing alone the Court does not deem these differences to affect the integrity of the
voting process individual assessment of each vote is required. After doing so the Court
concludes that P61 V79 should be excluded because of the differences in excuses and
dates of birth AND the fact that the signatures on the application and affidavit are
different. However, the challenges to the other three are denied because re: P19 V02,
P12 V50 and P15 V78 the signatures are not so dissimilar as to preclude the possibility
that they were signed by the same person.
Porter challenges three (3) ballots because there are different birth dates and mixed
signatures and marks on the respective applications and affidavits. Again, even though
standing alone either of these defects and perhaps both combined do not necessarily
affect the sanctity of the voting process, after examining the supporting documents the
Court concludes that the challenge to P16 V31 should be upheld as the signatures on
the application and affidavit are different; the challenge to P06 V18 should be rejected
(only the year of the dates of birth are different, i.e., 1940 v. 1942), and the challenge to
P08 V41 is rejected because other than the different dates of birth, nothing else
regarding the documentation is irregular.
Porter’s challenge to P24 V72 is rejected because although there are different excuses
and birth dates on the application and affidavit, the signatures on them are identical.
Porter challenges P77 V28 because they submitted a high school identification card
with their absentee voting documents. A high school identification card is not one of the
enumerated forms of identification listed and required pursuant to §17-9-30, ALA
PAGE 8
DOCUMENT 294
CODE (1975). However, there are no other irregularities on this voters paperwork,
there is no showing that they acted in bad faith, and, the date of birth is in accord with
one of regular high school age as a senior. The Court concludes that this vote should
be counted pursuant to the substantial compliance rule.
Tally = 507 Alexander - 461 Porter
CHALLENGES BASED ON THE TESTIMONY OF FRENCHIA MCGEE
Frenchia McGee was a campaign worker who testified she worked on Alexander’s
campaign and had worked on all of Alexander’s mother’s campaigns. She stated
under oath that she never went to a nursing home during Alexander’s runoff campaign
and that if an application had a mark in the signature space, although she may have
signed as a witness she did not, in fact, witness the voter making the mark. Thus, all of
the ballots witnessed by McGee having a mark thereon must be rejected and not
counted. These nine (9) voters are P58 V29, P63 V37,P69 V15, P70 V66, P71 V35,
P74 V52, P83 V30, P88 V58, and, P89 V 49.
During her testimony she stated that she witnessed Applications that had signatures on
them that were either given to her as people would leave the flower shop or that were
given to her in stacks. All of the remaining challenges Applicants purportedly witnessed
by McGee were of voters who resided at nursing homes. Although she signed the
following ten (10) Applications as a witness, the following voter ballots will not be
disqualified because they did not have to be witnessed: P05 V05 (disqualified for other
reason), P13 V17 (disqualified for other reason), P40 V03, P41 V04, P42 V06, P44
V33, P55 V71, P65 V13, P66 V67, and, P86 V77.
PORTER’S REMAINING CHALLENGES
Porter’s remaining challenges are based on the signatures or marks being different on
the application than on the affidavit. The Court has compared the signatures or marks
on the following ballots and makes the following factual determinations:
The ballot of the voter represented by P53 V40 should not count because the
signatures are different and were made by different individuals. The same holds true
for P50 V48 (the “signature” on the Application matches identically to the printed name
underneath the Affidavit’s signature line - the actual “signature” on the affidavit consists
of a mark after the voter’s initial) - this ballot was also fraudulently procured.
PAGE 9
DOCUMENT 294
All other challenges to the remaining votes fail because the signatures/marks are either
identical or not so dissimilar as to preclude the possibility that they were made by the
same person:
The Court, after reviewing the following applications and affidavits finds that the
signatures are identical: P36 V36, P76 V38, P22 V42, and P62 V55.
After comparing the signatures on the Applications and affidavits the Court finds that
they are not so dissimilar as to preclude the possibility that they were made by the
same person: P51 V09, P87 V14, P43 V27, P47 V34, P84 V43 , P48 V44 , P57 V56,
P67 V63 and P79 V57.
Voter P72 V07, whose Application and Affidavit were signed with a mark, has an
improper birth date blotted out. The Court finds that this should not disqualify this vote.
The same rationale holds true for Voter P56 V80 which also has an incorrect birth date
blotted out. Further, the Court finds that the signatures on the application and affidavits
are not so dissimilar as to preclude the possibility that they were made by the same
person.
Regarding Voter P59 V10, although the mark on the affidavit is not squarely on the
signature line but is in fact below it, the Court finds the voter made a valid attempt to
make their mark and holds that the vote should not be discounted. The same
conclusion holds true for voter P75 V11 (the Court finding that the multiple marks on
Affidavit reflect a valid attempt by the voter to mark the affidavit) and voter P46 V68
(who’s dissimilar marks made by this nursing home resident should not disqualify their
vote).
The Court concludes that the ballot of voter P37 V64 should count despite the fact that
there is no application of record and the Plaintiff attempted to introduce a document into
evidence, excluded by the Court, purporting to establish that this voter did not vote
during the runoff. (The Court will note that the signature on the excluded document
and the signature on the Affidavit are practically identical, but the rules of evidence do
not permit the admission of this improperly authenticated, hearsay document.)
Despite the signatures on the Application and Affidavit being quite dissimilar the Court
will not disqualify the ballot of voter P68 V65. This voter resides at a nursing home and
the signature on the affidavit is witnessed by 2 individuals who have not been shown to
have been involved with any improper attestations (unlike Frenchia McGee who
admitted she signed Applications as a witness without actually seeing the voting signing
them, or Carla Lacey, who had no explanation as to her witnessing and observing the
signature of a voter who was proven to be dead on Election Day - see P93). The
signature on the affidavit is quite “squiggly” and is indicative of a person who may be
elderly and infirm who had trouble signing their name on the date they
PAGE 10
DOCUMENT 294
signed it. The same analysis holds true for P46 V 68 re: the differences in their
signatures.
OTHER EVIDENCE PRESENTED AT TRIAL
Witness Mary Ann Jackson, a campaign worker for Alexander who switched allegiance
to Porter during the runoff election produced purported statements from P36 V36, P37
V64, and P38 V 83 disclaiming they had voted during the runoff - these statements
were excluded from evidence as being improperly authenticated and inadmissible
hearsay. Her testimony of seeing Alexander opening and resealing ballots and not
witnessing 20 voters sign their applicants was discounted by the Court due to her
failure to either identify specific voters or vagueness as to alleged improprieties made
by Alexander. The same is the case with witness Fayenell Jackson
Page, Jacquetta Jackson and Talonya Jackson. And while the Court at first generally
found the testimony of Carla Jackson credible, her credibility was called into serious
question when, despite having testified that if her signature was on an absentee
election document as a witness she both saw the voter sign the document and
observed proof of their identity, she had no explanation when presented with P93 which
showed her signature witnessing the signature of a voter that had died prior to the 2018
election.
CONCLUSION
After all illegal votes are deducted from Alexander’s votes, Alexander received 496
votes to Porter’s 461 votes. Because she still received a majority of the votes cast in
the runoff election the Court finds and ORDERS AS FOLLOWS:
1. Alexander received a majority of the votes in the 2018 Bessemer Runoff election;
2. Alexander is entitled to retain the Office of City Councilor of District 2 for the City of
Bessemer, Alabama; and
3. Costs of this action are taxes against the Plaintiff.
DONE this 3rd day of September, 2021.
/s/ HON. EUGENE R. VERIN

CIRCUIT JUDGE
PAGE 11
2024 May-20 PM 05:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
Exhibit C
Indictments and Verdicts, State v. Melton, No. 38-CC-2017-
1469 & -1470 (Houston Cnty. Cir. Ct. Jan. 16, 2019) (Docs. 3,
30 in -1469; Docs. 3, 25 in -1470)
DOCUMENT 3
DOCUMENT 3
DOCUMENT 3
DOCUMENT 3
DOCUMENT 30
DOCUMENT 25

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Case 2:24-cv-00420-RDP Document 42 Filed 05/20/24 Page 1 of 52 FILED

2024 May-20 PM 05:51

IN THE UNITED STATES DISTRICT COURT

ALABAMA STATE CONFERENCE )

DEFENDANTS’ MOTION TO DISMISS

OFFICE OF THE ATTORNEY GENERAL Steve Marshall

May 20, 2024

obtaining, or delivering a voter’s absentee ballot application.” ALA. CODE § 17-11-4(d)(1)-(2). No

(and certainly combined) make Plaintiffs’ complaint an impermissible shotgun pleading.

judicially administrable standards. Accordingly, Defendants move to dismiss Plaintiffs’ claims

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

ballot at any election” is guilty of a Class C felony. Id. § 17-17-24(a).

https://www.sos.alabama.gov/alabama-votes/voter/absentee-voting (General Absentee Applica-

of State’s website. See https://www.sos.alabama.gov/alabama-votes/absentee-ballot-application-

name of the witness and the witness’s signature.” Id.

filling, obtaining, or delivering a voter’s absentee ballot application.” Id. § 17-11-4(d)(1). It is a

4(e), with 52 U.S.C. § 10508 (same).

B. Voter Fraud in Alabama

the existence of such schemes:

2020) (discussing several instances of voter fraud involving absentee ballots).

III. LEGAL STANDARD

duced at trial is relevant.” Id.

at 1324. Courts thus “have ‘little tolerance’ for them.” Id.

Weiland, 792 F.3d at 1323.

at 1322. Most prominently, it levels accusations of racial discrimination throughout—in varying

for counsel or the Court.

B. Plaintiffs Cannot Establish Standing To Sue Secretary Allen.

any “allegedly unlawful conduct” of Secretary Allen.

dismissed for lack of subject-matter jurisdiction.

protest, wearing a black armband to school in protest, or performing a “sit-in” in protest—enjoy a

dering, requesting, collecting, completing, prefilling, obtaining, or delivering a voter’s absentee

certain activity or speech is protected by the first amendment is a question of law….”).

1. SB1 does not abridge speech.

i. SB1 does not directly target political speech.

tenstein, 83 F.4th at 586. SB1 does not directly target speech.

ii. SB1 is content neutral.

505 U.S. at 385. Plaintiffs’ options dwindle further.

iii. SB1 does not indirectly target political speech.

to create speech: money and people.

“something that the Plaintiffs use to speak.” Id. at 586.7

trigger strict scrutiny.

but rather money used for ballot harvesting conduct.

speech fail as a matter of law.

2. SB1 does not abridge expressive conduct either.

even some message to the reasonable viewer.

would reasonably be understood by viewers as … conveying a symbolic message of any sort”);

(“delivering absentee ballot requests is not expressive conduct”); Lichtenstein v. Hargett,

it.” FAIR, 547 U.S. at 66.

3. Even if SB1 imposes some incidental burden on Plaintiffs’ First Amendment

An “incidental burden on speech is no greater than is essential, and therefore is permissible

prefilled absentee ballot applications to voters. O.C.G.A. § 21-2-381(a)(1)(C)(ii); S.D. CODIFIED

D. SB1 Does Not Violate Plaintiffs’ Right To Associate (Count II).

First Amendment); see also Claiborn Hardware, 458 U.S. at 933.

Plaintiffs’ expressive association, they fail to state a claim as a matter of law.

E. SB1 Is Not Unconstitutionally Vague (Count III).

4(d)(1)-(2))—are “unconstitutionally vague laws because they regulate a sweeping amount of

to identify any “confusing and misleading terms,” contra Doc. 1, ¶ 149.

as a matter of law based on statutory text alone.

(d)(1) . . . it shall be unlawful for a third party to knowingly receive a payment or

ALA. CODE § 17-11-4(d)(1)-(2).

an absentee ballot application.

The phrase “payment or gift” is equally self-explanatory. It refers to something of value

or service.” Pay, Merriam-Webster, Merriam-Webster.com (May 16, 2024), https://www.mer-