A federal judge ruled Monday that a lawsuit intended to allow Alabama counties to offer curbside voting to make voting safer and easier for people who are disabled or at risk of serious illness from COVID-19 can proceed.
U.S. District Judge Abdul Kallon of the Northern District of Alabama dismissed some of the claims and defendants in the case but allowed others to go forward.
Five voters and four organizations are plaintiffs and are represented by the NAACP Legal Defense and Educational Fund, the American Civil Liberties Union, the Southern Poverty Law Center, the Alabama Disabilities Advocacy Program, and the ACLU of Alabama.
The plaintiffs claim a state ban on curbside voting violates federal law as applied to voters with disabilities or those at risk of serious illness from COVID-19 because of age or medical condition.
They claim curbside voting should be an option during the pandemic, noting that Gov. Kay Ivey’s Safer at Home orders have encouraged curbside service at restaurants and senior centers. Alabama does not have a law against curbside voting, but Secretary of State John Merrill opposes it and has moved to block two counties from allowing it in previous elections, according to the lawsuit.
Jefferson County and Montgomery County officials have told the court they will “undertake reasonable efforts to provide curbside voting” if the court rules that the curbside ban cannot be enforced.
The plaintiffs also challenged the Alabama law requiring absentee ballots to be signed by two witnesses or notarized and the requirement that absentee voters submit a photo ID, which has some exceptions.
Defendants in the case are Merrill, who is the state’s top election official, and some county election officials. They are represented by the attorney general’s office.
Kallon dismissed claims against some of the defendants. Merrill is no longer a defendant on the challenges to the witness and photo ID requirement.
“I think the best way to explain this is that the court carefully looked at the claims, who was actually able to fix those areas if they were in fact illegal, and dismissed everybody else out,” William Van Der Pol, an attorney for the Alabama Disabilities Advocacy Program, said.
Merrill declined comment on the ruling Tuesday because his office has not yet formally received any new information from the court, Press Secretary Grace Newcombe said.
The lawsuit was filed in May. In June, Kallon ruled the state could not enforce the ban on curbside voting for the July 14 runoff. Kallon’s ruling also blocked enforcement of the witness and photo ID requirements for absentee voters, although that only applied to Jefferson, Lee, and Mobile counties.
On July 2, the U.S. Supreme Court granted the state’s request for a stay on Kallon’s ruling, so the ruling was not in effect for the runoff. But the issues remain pending for the Nov. 3 general election.
A trial in the case is scheduled for September.
Van Der Pol said curbside voting is an appropriate accommodation under the Americans with Disabilities Act and hopes counties will follow through if the court rules in the plaintiffs’ favor on the issue.
“I would certainly hope that they would take advantage of that opportunity to protect voters and make sure that everybody, including vulnerable individuals, retain the right to vote and do not have to choose between exercising that incredibly important and fundamental right vs. their health and safety and ability to stay alive,” Van Der Pol said. “That’s the whole reason we brought this lawsuit.”
The Alabama attorney general’s office maintains that any burden imposed on the plaintiffs by the restrictions challenged in the lawsuit are slight and that they are not excluded from voting.
“The depositions of the five individual Plaintiffs remaining in this case reveal that Plaintiffs’ main complaint is not that the challenged provisions force them to choose between exercising their right to vote and endangering their health,” state attorneys wrote. “Rather, their complaint is that the challenged provisions require them to exercise the slightest bit of creativity and initiative to satisfy these nondiscriminatory, reasonable requirements.”
Attorneys for the state also note that Merrill and election officials have already made some accommodations because of the pandemic.
Merrill issued an emergency rule to allow any absentee voting for any voter who does not want to go to the polls because of COVID-19. That emergency rule was in place for the July 14 runoff and is in place for the general election.
The emergency rule is an exception to Alabama’s normal requirement that voters choose from a list of reasons on the absentee ballot application in order to vote absentee. Merrill said any voter concerned about COVID-19 can check a box that says, “I have a physical illness or infirmity that prevents my attendance at the polls.”
The lawsuit challenged the normal requirement to provide a reason for voting absentee. In Kallon’s ruling on Monday, he dismissed that claim as moot because of the emergency rule.
Organizations that are plaintiffs in the case are People First Alabama, the Alabama State Conference of the NAACP, Greater Birmingham Ministries, and Black Voters Matter Capacity Building Institute.