FILED

Case 2:18-cv-00907-KOB Document 17 Filed 08/06/18 Page 1 of 21

2018 Aug-06 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA

LAKEISHA CHESTNUT, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
JOHN H. MERRILL, Secretary of State, )
)
Defendant.
)

Civil Action No.:
2:18-cv-907-KOB

ANSWER TO THE AMENDED COMPLAINT
Defendant John Merrill, sued in his official capacity as Alabama Secretary of
State, Answers the Amended Complaint (doc. 14) as follows:
Introductory Comment
Plaintiffs’ Amended Complaint, rather than being a “short and plain
statement” of their claim, Fed. R. Civ. P. 8(a)(2), reads like a 32-page, 109-paragraph
press release. See Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla., 63
F.3d 1030, 1046 n. 51 (11th Cir. 1995) (characterizing the complaint at issue as “a
quintessential shotgun pleading, replete with vague and cursory allegations”);
Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991) (“[Plaintiff's complaints]
are quintessential ‘shotgun’ pleadings, replete with factual allegations that could not
possibly be material to any of the causes of actions they assert.”). Beginning with
the 1870s, Plaintiffs recount long-ago racial sins by people who were dead long

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before passage of the challenged 2011 law, even though the Supreme Court has ruled
that Alabama cannot forever be condemned for historic acts. Shelby County v.
Holder, 570 U.S. 529, 552-53 (2013). They allege that discrimination by
municipalities is relevant in a challenge to a State law (see doc. 14 ¶ 78, recounting
actions by the City of Evergreen), and they allege that this law should be viewed
with suspicion because of laws that courts held not to be discriminatory (see doc. 14
¶ 82, complaining of a legal challenge to a photo ID law in which the District Court
entered summary judgment for the State on grounds that the law did not discriminate
against minority voters). They allege acts by private citizens, a Presidential
candidate, and a Senatorial candidate rejected by Alabama voters, even though such
acts have no probative value in ascertaining the motivations of the Alabama
Legislature. See doc. 14 ¶¶ 89-90. Many paragraphs contain numerous factual
allegations, some of which are true and some of which are not, mixed in with general
conclusory comments on Alabama history.
All of this makes it a challenge to respond to the Amended Complaint; as
noted below, Secretary Merrill cannot even respond to some of the most general
paragraphs in their current form. But because the Amended Complaint does manage
to convey to the Secretary the nature of the claim being raised and at least some of
the grounds upon which Plaintiffs intend it to rest, see Weiland v. Palm Beach Cty.

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Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015), Secretary Merrill now
answers its allegations as follows to the best of his ability:
Responses to Numbered Paragraphs
1.

Admitted that Plaintiffs bring the action as described. Otherwise

denied.
2.

Denied.

3.

Denied.

4.

Admitted.

5.

Admitted that the BVAP of CD 7 was 58.33% in Alabama’s 2002

Congressional districting plan and 60.91% in in Alabama’s 2011 Congressional
districting plan. Any allegations or implications of discriminatory intent in the
drawing of CD 7 are denied.
6.

Denied.

7.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
8.

Denied.

9.

Admitted that Plaintiffs seek the relief alleged in this paragraph; denied

that they are entitled to the relief sought.
10.
court.

Denied to the extent jurisdiction of this matter lies with a three-judge

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11.

Denied to the extent jurisdiction of this matter lies with a three-judge

12.

Admitted.

13.

Upon information and belief, admitted that Plaintiff LaKeisha Chestnut

court.

is an African-American citizen of the United States and the State of Alabama; that
she is a resident and registered voter in Mobile County in CD 1, and has been since
2016; and that she votes Democratic. The Secretary denies the remaining allegations
in this paragraph.
14.

Upon information and belief, admitted that Plaintiff Marlene Martin is

an African-American citizen of the United States and the State of Alabama, and that
she is a resident and registered voter in Montgomery County in CD 7. The Secretary
denies the remaining allegations in this paragraph.
15.

Upon information and belief, admitted that Plaintiff Bobby DuBose is

an African-American citizen of the United States and the State of Alabama, and that
he is a resident and registered voter in Jefferson County in CD 7. The Secretary
denies the remaining allegations in this paragraph and denies that this Plaintiff has
standing to pursue this claim based upon the facts alleged.
16.

Upon information and belief, admitted that Plaintiff Rodney Love is an

African-American citizen of the United States and the State of Alabama, and that he
is a resident and registered voter in Jefferson County in CD 7. The Secretary denies

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the remaining allegations in this paragraph and denies that this Plaintiff has standing
to pursue this claim based upon the facts alleged.
17.

Upon information and belief, admitted that Plaintiff Janice Williams is

an African-American citizen of the United States and the State of Alabama, and that
she is a resident and registered voter in Jefferson County in CD 7. The Secretary
denies the remaining allegations in this paragraph and denies that this Plaintiff has
standing to pursue this claim based upon the facts alleged.
18.

Upon information and belief, admitted that Plaintiff Karen Jones is an

African-American citizen of the United States and the State of Alabama, and that
she is a resident and registered voter in Montgomery County in CD 7. The Secretary
denies the remaining allegations in this paragraph.
19.

Upon information and belief, admitted that Plaintiff Roderick Clark is

an African-American citizen of the United States and the State of Alabama, and that
he is a resident and registered voter in Bullock County in CD 2. The Secretary denies
the remaining allegations in this paragraph.
20.

Upon information and belief, admitted that Plaintiff John Harris is an

African-American citizen of the United State and the State of Alabama, and that he
is a resident and registered voter in Lee County in CD 3. The Secretary denies the
remaining allegations in this paragraph and denies that this Plaintiff has standing to
pursue this claim based upon the facts alleged.

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21.

Upon information and belief, admitted the Plaintiff Minnie Austin is an

African-American citizen of the United States and the State of Alabama, and that
she is a resident and registered voter in Macon County in CD 3. The Secretary denies
the remaining allegations in this paragraph.
22.

Upon information and belief, admitted that Plaintiff Joseph Boykins is

an African-American citizen of the United States and the State of Alabama, and that
he is a resident and registered voter in Clarke County in CD 7. The Secretary denies
the remaining allegations in this paragraph.
23.

Admitted.

24.

The text of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301,

speaks for itself.
25.

Thornburg v. Gingles, 478 U.S. 30 (1986), speaks for itself.

26.

Thornburg v. Gingles, 478 U.S. 30 (1986), speaks for itself.

27.

The text of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301,

speaks for itself, as does the Senate Report on the 1982 amendments to the Voting
Rights Act, S. Rep. No. 97-417, at 28-29 (1982).
28.

Admitted that the “Senate factors” listed in paragraph 28 are among

those listed in the Senate Report on the 1982 amendments to the Voting Rights Act.
Otherwise, the Senate Report speaks for itself. See S. Rep. No. 97-417, at 28-29
(1982).

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29.

The Senate Report, S. Rep. No. 97-417 (1982), and cited case, United

States v. Marengo County Commission, 731 F.2d 1546 (11th Cir. 1984), speak for
themselves.
30.

Admitted.

31.

Admitted, upon information and belief.

32.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
33.

Admitted.

34.

The holding in Alabama Legislative Black Caucus v. Alabama, 231 F.

Supp. 3d 1026 (M.D. Ala. 2017), speaks for itself. Otherwise, the Secretary lacks
sufficient information to admit or deny the allegations in this paragraph, and so
denies the same.
35.

Admitted that CD 7 is the only Congressional district created by Act

2011-518 with a majority minority racial composition, that the district has elected
African-American

Representatives

to

Congress

since

1992,

and

that

Congresswoman Terri Sewell is the current Representative for CD 7, having been
first elected to that position in 2010. The Secretary objects to the remaining
allegations in this paragraph as argument, and denies the same.
36.

Admitted.

37.

Admitted.

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38.

Admitted that CD 7’s BVAP increased to 60.91% in the 2011

redistricting process. Otherwise, denied.
39.

The Secretary objects to the allegations in this paragraph as argument,

and denies the same.
40.

Admitted, upon information and belief.

41.

The Secretary objects to the allegations in this paragraph as argument,

and denies the same.
42.

Denied.

43.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same. The Secretary further denies
that a constitutional district could be drawn linking three separate majority-black
areas located in three separate Congressional districts.
44.

First, fifth, and sixth sentences admitted. Otherwise, the Secretary lacks

sufficient information to admit or deny the remaining allegations contained in this
paragraph and so denies the same.
45.

Admitted that the counties that traditionally compose the Black Belt are

divided among four of Alabama’s Congressional districts. Denied that the AfricanAmerican population was deliberately “cracked” into three Congressional districts.
46.

Admitted.

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47.

Admitted that a majority of white voters in Alabama currently tend to

support Republican candidates. Otherwise denied.
48.

Admitted that Democratic candidate Doug Jones won a statewide

special election in 2017 to fill Alabama’s second seat in the United States Senate.
The Secretary lacks sufficient information to admit or deny the remaining allegations
in this paragraph, and so denies the same.
49.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
50.

Admitted that since 1965, Alabama’s first congressional district has

continuously been represented by Republicans. Otherwise, the Secretary lacks
sufficient information to admit or deny the allegations in this paragraph, and so
denies the same.
51.

Admitted that Democratic candidate Burton LeFlore has twice sought

election to the U.S. House of Representatives from CD 1, and has twice lost to
Republican candidate Bradley Byrne, in 2013 and 2014. Denied that LeFlore’s
defeat was as a result of racially polarized voting. The remaining allegations in this
paragraph are denied.
52.

The holding in Buskey v. Oliver, 565 F. Supp. 1473 (M.D. Ala. 1983),

speaks for itself. Denied that a recitation of findings made in the cited case is

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sufficient to meet Plaintiffs’ burden of proof in this case. The remaining allegations
in this paragraph are denied.
53.

The holdings in United States v. Dallas County Commission speak for

themselves. See 739 F.2d 1529 (11th Cir. 1984) and 636 F. Supp. 704 (S.D. Ala.
1986), rev’d on other grounds, 791 F.2d 831 (11th Cir. 1986). Denied that a
recitation of findings made in the cited case is sufficient to meet Plaintiffs’ burden
of proof in this case.
54.

The holding in Dillard v. Baldwin County Commission, 222 F. Supp.

2d 1283 (M.D. Ala. 2002), speaks for itself. Denied that a recitation of findings made
in the cited case is sufficient to meet Plaintiffs’ burden of proof in this case.
55.

The holding in Brown v. Board of School Commissioners, 542 F. Supp.

1078 (S.D. Ala. 1982), speaks for itself. Denied that a recitation of findings made in
the cited case is sufficient to meet Plaintiffs’ burden of proof in this case.
56.

Denied.

57.

Admitted that the State of Alabama did, in the past, implement voting

practices designed to hinder African Americans’ ability to participate in the political
process; denied that it continues to do so today. Otherwise, denied.
58.

The Secretary lacks sufficient information to admit or deny the

allegations contained in this paragraph, and so denies the same. Averred that the

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allegations contained in this paragraph constitute history too remote to be relevant
to the totality of the circumstances inquiry in this case.
59.

The Secretary lacks sufficient information to admit or deny the

allegations contained in this paragraph, and so denies the same. Averred that the
allegations contained in this paragraph constitute history too remote to be relevant
to the totality of the circumstances inquiry in this case.
60.

The Secretary lacks sufficient information to admit or deny the

allegations contained in this paragraph, and so denies the same. Averred that the
allegations contained in this paragraph constitute history too remote to be relevant
to the totality of the circumstances inquiry in this case.
61.

The Secretary lacks sufficient information to admit or deny the

allegations contained in this paragraph, and so denies the same. Averred that the
allegations contained in this paragraph constitute history too remote to be relevant
to the totality of the circumstances inquiry in this case.
62.

Admitted, but averred that the allegations contained in this paragraph

constitute history too remote to be relevant to the totality of the circumstances
inquiry in this case.
63.

United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966), speaks

for itself. Otherwise, admitted, upon information and belief, but averred that the

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allegations contained in this paragraph constitute history too remote to be relevant
to the totality of the circumstances inquiry in this case.
64.

Admitted, upon information and belief, but averred that the allegations

contained in this paragraph constitute history too remote to be relevant to the totality
of the circumstances inquiry in this case.
65.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
66.

United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966), speaks

for itself. Otherwise, admitted, but averred that the allegations contained in this
paragraph constitute history too remote to be relevant to the totality of the
circumstances inquiry in this case.
67.

Gomillion v. Lightfoot, 364 U.S. 339 (1960), speaks for itself.

Otherwise, admitted, but averred that the allegations contained in this paragraph
constitute history too remote to be relevant to the totality of the circumstances
inquiry in this case.
68.

Smith v. Allwright, 321 U.S. 649 (1944), City of Rome v. United States,

446 U.S. 156 (1980), Shelby County v. Holder, 570 U.S. 529 (2013), and Nevitt v.
Sides, 571 F.2d 209 (5th Cir. 1978), speak for themselves. Admitted that the
Alabama legislature passed laws in the 1950s that prohibited the use of single-shot
voting in at-large municipal elections, but averred that the factual allegations

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contained in this paragraph constitute history too remote to be relevant to the totality
of the circumstances inquiry in this case. The remaining allegations in this paragraph
constitute legal argument, and thus no response is required at this time. To the extent
a response is required, the remaining allegations are denied.
69.

Dillard v. Crenshaw County, 640 F. Supp. 1347 (M.D. Ala. 1986),

speaks for itself. Otherwise, denied.
70.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
Averred that the allegations contained in this paragraph constitute history too remote
to be relevant to the totality of the circumstances inquiry in this case.
71.

Admitted, but averred that the allegations contained in this paragraph

constitute history too remote to be relevant to the totality of the circumstances
inquiry in this case.
72.

South Carolina v. Katzenbach, 383 U.S. 301 (1966) and Shelby County

v. Holder, 570 U.S. 529 (2013), speak for themselves. Admitted that Alabama was
a covered state under Section 4(b) of the Voting Rights Act, and was subject to the
preclearance requirements of Section 5 of the Act. Otherwise, denied.
73.

Shelby County v. Holder, 570 U.S. 529 (2013), speaks for itself.

Admitted that between 1965 and 2013, Alabama was subject to the preclearance
requirements of Section 5 of the Voting Rights Act. Otherwise, denied.

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74.

Denied.

75.

Denied.

76.

The cited cases speak for themselves. Admitted that groups have

regularly brought suit alleging that voting practices or procedures in Alabama are
racially discriminatory; denied that those allegations are always true, and further
denied that courts have always found them to be true.
77.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
78.

Allen v. City of Evergreen, 2014 WL 12607819 (S.D. Ala. 2014),

speaks for itself. Denied that the isolated events in Evergreen reflect on the State as
a whole, or are relevant to the claims in this case.
79.

Alabama Legislative Black Caucus v. Alabama, 231 F. Supp. 3d 1026

(M.D. Ala. 2017), speaks for itself.
80.

Denied.

81.

Denied.

82.

The opinions in Greater Birmingham Ministries v. Merrill, see 161 F.

Supp. 3d 1104 (N.D. Ala. 2016) & 284 F. Supp. 3d 1253 (N.D. Ala. 2017), speak
for themselves. Admitted that the case is on appeal.
83.

Admitted that Thompson v. Alabama, Docket No. 2:16-cv-783-WKW

(M.D. Ala. filed Sept. 26, 2016), is currently pending litigation challenging

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Alabama’s felon voting laws. The Secretary avers that Alabama’s laws concerning
felon voting speak for themselves, and denies the remaining allegations in this
paragraph.
84.

Admitted that automatic voter registration is not, and has never been,

the applicable voter registration policy or law of the State of Alabama. Further
admitted that the Secretary has made statements expressing his personal opinion on
the policy of automatic voter registration, which speak for themselves. Denied that
such statements are in any way racially discriminatory or evidence of past or present
racial discrimination. Averred that the allegations in this paragraph are not relevant
to the claim presented in this case. Otherwise, denied.
85.

United States v. McGregor, 824 F. Supp. 2d 1339 (M.D. Ala. 2011),

Hunter v. Underwood, 417 U.S. 222 (1985), and Dillard v. Crenshaw County, 640
F. Supp. 1347 (M.D. Ala. 1986), speak for themselves. Otherwise, denied.
86.

Denied.

87.

Admitted that George Wallace ran on such a platform fifty years ago in

the 1968 Presidential election.
88.

Admitted that certain former State legislators were recorded making

racially-charged statements, and that a District Court made findings based on those
recorded statements. The Secretary denies the remaining allegations in this
paragraph.

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89.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
90.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
91.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
92.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
93.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
94.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
95.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
96.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
97.

The allegations in this paragraph lack sufficient specificity to enable

the Secretary to form a response thereto, and so the Secretary denies the same.
Averred that the allegations in this paragraph are not relevant to the claim presented
in this case.

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98.

The Secretary lacks sufficient information to admit or deny the

allegations in this paragraph, and so denies the same.
99.

Admitted that under the 2010 Census numbers, African Americans

represent approximately 26% of Alabama’s total population. Otherwise, the
Secretary lacks sufficient information to admit or deny the remaining allegations in
this paragraph, and so denies the same. Averred that the remaining allegations in this
paragraph are not relevant to the claim presented in this case.
100. Admitted that none of the currently elected statewide officials is
African American, and that the state has not elected an African American governor
or federal senator. Otherwise, denied.
101. Admitted that two African Americans were elected by statewide
majority vote to serve as Alabama Supreme Court Justices. The remaining
allegations in this paragraph are denied.
102. This paragraph requires no response. To the extent a response is
deemed required, the Secretary adopts and incorporates by reference his responses
to “all prior paragraphs of this complaint and the paragraphs in the counts below” as
if fully set forth herein.
103. Section 2(a) of the Voting Rights Act, 52 U.S.C. § 10301(a), speaks for
itself.
104. Denied.

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105. Denied.
106. Denied.
107. Denied.
108. Denied.
109. Denied.
Prayer for Relief
The Secretary Admits that the Plaintiffs seek the relief set out in paragraphs
A through E; denies that the Plaintiffs are entitled to any of the relief they seek,
and further avers that relief sought in paragraphs B and D is not within the
Secretary of State’s authority or power to accomplish. The Secretary expressly
reserves the right to challenge any petition for costs and/or any award of attorneys’
fees.

Affirmative Defenses
1.

The Secretary denies any allegation in Plaintiffs’ Amended Complaint

that is not expressly admitted above.
2.

This Court lacks subject matter jurisdiction over Plaintiffs’ claim,

which should be properly submitted to a three-judge court for adjudication. See 28
U.S.C. § 2254 (“[a] district court of three judges shall be convened when otherwise
required by Act of Congress, or when an action is filed challenging the

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constitutionality of the apportionment of congressional districts or the
apportionment of any statewide legislative body”).
3.

Plaintiffs have failed to allege sufficient facts that would entitle them

to relief, as they have not alleged that a reasonably compact second majorityminority Congressional district can be drawn.
4.

To the extent that Section 2 would require a racial gerrymander to

create a second majority-minority district, it is unconstitutional.
5.

Plaintiffs seek inappropriate relief, including relief that is not within the

Secretary of State’s authority to accomplish, although he is the only named
defendant in this case. Secretary Merrill has no authority to draw a second majorityminority Congressional district, or any other form of district.
6.

Plaintiffs’ claims are barred by laches.

7.

Plaintiffs Bobby DuBose, Rodney Love, and Janice Williams lack

standing to pursue their claims based on the facts alleged. Drawing an additional
majority-minority district “anywhere . . . as long as racially polarized voting exists
where the district is ultimately drawn” does not remedy the injury of an individual
residing elsewhere. Shaw v. Hunt, 517 U.S. 899, 916–17 (1996). Such a proposed
remedy misconceives the nature of a vote-dilution claim as belonging “to the
minority as a group and not to its individual members. It does not.” Id. at 917. These

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Plaintiffs do not request that their own district be redrawn, so that their alleged
injuries cannot be remedied even if the Court grants the relief they purport to seek.
8.

Plaintiff John Harris lacks standing to pursue his claim because he has

failed to allege facts sufficient to demonstrate that the injury he purportedly suffered
would be remedied by the relief sought, namely, that he would reside in a second
majority-minority district if one were drawn.

Respectfully submitted,
Steve Marshall
Attorney General
James W. Davis (ASB-4063-I58J)
Deputy Attorney General
s/ Laura E. Howell
Winfield J. Sinclair (ASB-1750-S81W)
Misty S. Fairbanks Messick (ASB-1813-T71F)
Laura E. Howell (ASB-0551-A41H)
Brad A. Chynoweth (ASB-0030-S63K)
Assistant Attorneys General

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Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Fax: (334) 353-8440
jimdavis@ago.state.al.us
wsinclair@ago.state.al.us
mmessick@ago.state.al.us
lhowell@ago.state.al.us
bchynoweth@ago.state.al.us
Counsel for the Defendant

CERTIFICATE OF SERVICE
I certify that on August 6, 2018, I filed the foregoing document electronically
via the Court’s CM/ECF system, which will send a copy to all counsel of record.

s/ Laura E. Howell
Counsel for the Defendant