Treva Thompson v. Secretary of State for the State of Alabama ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10034
____________________
TREVA THOMPSON,
individually and behalf of all others similarly situated,
TIMOTHY LANIER,
individually and behalf of all others similarly situated,
GREATER BIRMINGHAM MINISTRIES,
Plaintiffs-Appellants,
DARIUS GAMBLE,
PAMELA KING,
individually and behalf of all others similarly situated,
Plaintiff,
versus
STATE OF ALABAMA, et al.,
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2 Opinion of the Court 21-10034
Defendants,
SECRETARY OF STATE FOR THE STATE OF ALABAMA,
LEIGH GWATHNEY,
in her official capacity as Chairman of the Board of Pardons and
Paroles,
JAMES SNIPES, III,
in his official capacity as Chairman of the Montgomery County
Board of Registrars and on behalf of a class of all voter registrars
in the State of Alabama,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:16-cv-00783-ECM-SMD
____________________
Before ROSENBAUM, TJOFLAT, Circuit Judges, and MOODY,* District
Judge.
TJOFLAT, Circuit Judge:
* The Honorable James S. Moody, Jr., United States District Judge for the Mid-
dle District of Florida, sitting by designation.
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21-10034 Opinion of the Court 3
Greater Birmingham Ministries (“GBM”), an Alabamian
non-profit organization dedicated to aiding low-income individu-
als, and several Alabamian felons 1 (collectively “Appellants”) ap-
peal the District Court for the Middle District of Alabama’s sum-
mary judgment denying their Equal Protection Clause, U.S. Const.
amend. XIV, § 1, challenge to Amendment 579 of the Alabama state
constitution, their Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3,
challenge to Amendment 579’s disenfranchisement provisions, and
their National Voting Registration Act of 1993 (“NVRA”), 52 U.S.C.
§ 20501 et seq., challenge to the format of Alabama’s mail voting
registration form. Because we hold that (1) Amendment 579 suc-
cessfully dissipated any taint from the racially discriminatory mo-
tives behind the 1901 Alabama constitution; (2) Amendment 579
does not impose punishment for purposes of the Ex Post Facto
Clause; and (3) Alabama’s mail voting registration form complies
with the NVRA, we affirm.
I.
As both the Supreme Court and this Court have previously
explained, the 1901 Alabama state constitution was intentionally
1 This case was initially filed as a putative class action with ten named defend-
ants. The District Court denied class certification, and on appeal only two
individual plaintiffs remain: (1) Treva Thompson, a black woman convicted of
theft of property in the first degree, and (2) Timothy Lanier, a black man con-
victed of attempted murder and two counts of burglary in the first degree.
Ala. Code § 17-3-30.1(c) specifies that each of these felonies involve moral tur-
pitude.
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4 Opinion of the Court 21-10034
enacted to discriminate against and disenfranchise black Alabami-
ans. See Underwood v. Hunter (Hunter I), 730 F.2d 614 (11th Cir.
1984) (explaining the history of the 1901 Alabama constitution),
aff’d, Hunter v. Underwood (Hunter II), 471 U.S. 222, 105 S. Ct.
1916 (1985) (same). The express goal of the 1901 constitutional
convention was “to establish white supremacy” in Alabama
“within the limits imposed by the Federal Constitution.” Hunter
I, 730 F.2d at 619 (quoting John B. Knox, President of the 1901 Con-
vention, I Off. Proceedings of the Const. Convention of the State
of Ala., May 21st, 1901, to Sept. 3rd, 1901, at 8 (1940)). To accom-
plish their goal of disenfranchising black Alabamians, the 1901
drafters resorted to “facially neutral tests that took advantage of
differing social conditions. Property tests, literacy tests, residence
requirements, the poll tax, and disqualification for conviction of
certain crimes all fell into this category.” Id. (internal quotation
marks omitted).
While § 182 enumerated a great many crimes resulting in
disenfranchisement, 2 of relevance to this case is the provision of
2 Section 182 disenfranchised the following individuals:
All idiots and insane persons; those who shall by reason of con-
viction of crime be disqualified from voting at the time of the
ratification of this Constitution; those who shall be convicted
of treason, murder, arson, embezzlement, malfeasance in of-
fice, larceny, receiving stolen property, obtaining property or
money under false pretenses, perjury, subornation of perjury,
robbery, assault with intent to rob, burglary, forgery, bribery,
assault and battery on the wife, bigamy, living in adultery,
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§ 182 disenfranchising individuals convicted of “any . . . crime in-
volving moral turpitude.” In Hunter I, we held that “discrimina-
tory intent was a motivating factor in the adoption of section 182”
and that the Alabama registrars could not show that “[t]here was
no evidence from which the district court could have found that
section 182 would have been adopted had a permissible reason
been the sole consideration” under the approach adopted by the
Supreme Court in Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 270 & n.21, 97 S. Ct. 555, 566 & n.21 (1977).
Hunter I, 730 F.2d at 620–21. Accordingly, we struck down the
provisions of § 182 “that disfranchise[d] nonprison offenders.” Id.
at 621. The Supreme Court unanimously affirmed our decision in
Hunter II, specifying that § 182 could not “deny the franchise to
persons who commit misdemeanors involving moral turpitude”
under the Equal Protection Clause. 471 U.S. at 233, 105 S. Ct. at
1922–23.
sodomy, incest, rape, miscegenation, crime against nature, or
any crime punishable by imprisonment in the penitentiary, or
of any infamous crime or crime involving moral turpitude;
also, any person who shall be convicted as a vagrant or tramp,
or of selling or offering to sell his vote or the vote of another,
or of buying or offering to buy the vote of another, or of mak-
ing or offering to make a false return in any election by the
people or in any primary election to procure the nomination
or election of any person to any office, or of suborning any
witness or registrar to secure the registration of any person as
an elector.
Ala. Const. art. VIII, § 182.
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However, long before the Hunter decisions, Alabama had
already begun the process of repealing and replacing the disenfran-
chisement provisions of Article VIII of the 1901 Alabama constitu-
tion, including § 182. In 1970, Alabama convened a Constitutional
Revision Commission to consider potential amendments to the Al-
abama constitution. As part of that process, Dr. Samuel A. Beatty,
a Commission staff member, wrote a report to the Commission
members suggesting, inter alia, that § 182 be rewritten to disqualify
voters in “general terms” instead of “a long, scattered and redun-
dant list of disqualifying crimes.” Dr. Beatty’s proposed language
(very similar to what Alabama ultimately adopted in 1996) stated
that “[n]o person convicted of a felony involving moral turpitude,
or having been adjudicated in this or any other state, territory, or
district to be mentally incompetent, shall be qualified to vote until
restoration of civil rights or removal of disability.” The Commis-
sion agreed with Dr. Beatty’s proposed language and submitted it
as part of their recommendations to the Alabama legislature in
1973. Nevertheless, the 1973 Alabama legislature did not approve
the proposed amendments. The Commission’s proposed amend-
ments were reintroduced in 1976, and again were not approved by
the legislature.
In 1979, newly elected Alabama Governor Fob James assem-
bled a “working group” to amend the Alabama constitution headed
by Michael Waters. Waters testified in a deposition that the work-
ing group began with the Commission’s 1973 proposal as a starting
point. According to Waters, the working group agreed with Dr.
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Beatty and the 1973 Commission’s proposal because “by eliminat-
ing that laundry list and keeping it general, you’re saying, we don’t
endorse what the 1901 Constitution was doing.” Further, Waters
and his group did not read the “moral turpitude” language from
the 1973 draft “as meaning we hereby endorse any segregationist
or racial philosophy that was part of the 1901 Constitution.”
Besides Waters’s working group, Alabama state legislators
also discussed the working group’s proposed amendments in the
“Joint Interim Committee to Study New Constitution.” There,
Representative Tony Harrison praised the proposed amendment
to § 182 as “one of the best sections that was proposed” because “it
has less language and has chopped out some of the most unneces-
sary language that was in the Constitution.” Representative Harri-
son then asked Senator Bob Harris, a member of the working
group, about “the legal definition of moral turpitude.” Senator
Harris responded
It means doing wrong. I don’t know that there is an
ironclad definition of moral turpitude. I could proba-
bly look in Webster’s and there is, Tony. I am not
being short about it. You know as well as I do that
the Courts have wrestled with this question since we
have had Court. And if you go back to the 1901 Con-
stitution, they try to go at it maybe a little bit differ-
ent. I doubt that you want to go back to that.
Representative Harrison replied, “You know that I don’t want to
go back to it, Senator.” Following this, the two legislators
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discussed whether the state constitution should disenfranchise fel-
ons at all after they have served their sentence and whether the
proposed amendments would allow the state legislature to restore
voting rights to felons immediately after completion of their sen-
tence. The discussion then returned to the moral turpitude lan-
guage:
SENATOR MAC PARSONS: Wouldn’t it have been
simpler just to have left moral turpitude out? The
way I understand it, there is just one or two felonies
that don’t include moral turpitude. I think stealing
whiskey and transporting are about the only two.
SENATOR HARRIS: I think that is all. There may be
some other. Somebody around here is bound to tell
me. There are a very limited number of felonies that
do not involve -- that the Courts have said don’t in-
volve moral turpitude.
SENATOR PARSONS: Wouldn’t it have just been
simpler if you just said “felony,” then?
SENATOR HARRIS: Well, of course, that would dis-
enfranchise some moonshiners, I guess, then. It
might not be a bad idea.
Representative Martha Smith then suggested that misdemeanors
involving moral turpitude should also result in disenfranchisement.
Senator Harris responded:
Well, let me simply say that what we were trying to
do is get away from the restraints and restrictions of
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the 1901 Constitution as far as we could, as safely as
we could, in the simplest language that we could, in-
vest in the Legislator as much power as we could con-
sonant with Federal laws and Federal decisions to
govern the election process and the qualification of
voters.
The joint committee then moved on to discuss other topics.
The joint committee also held public hearings on the pro-
posed amendments in February 1979. At one of these public hear-
ings, Mary Weidler of the Civil Liberties Union of Alabama ob-
jected to the felony disenfranchisement provision because “there is
no reason to continue to penalize those convicted of felonies once
they have served their time.” Weidler also criticized the “moral
turpitude” language as “vague and indefinite” and “unwarranted
and discriminatory,” arguing that “[i]t was clear from the legislative
history of the 1901 Alabama Constitution” that the disenfranchise-
ment section was specifically adopted with the intent to “disenfran-
chise blacks” and a “continuation of that thinking today is clearly
unacceptable.” At another public hearing, Tom Leonard of Appel-
lant GBM argued that felon disenfranchisement punishes those
who have served their sentence and is “a constitutionally-imposed
disability [that] serves to mark an ex-convict with an additional
badge of inferiority.” A 1979 Alabama House bill removed the
phrase “moral turpitude” from the proposed amendment, instead
proposing that no person convicted “of a felony” shall be qualified
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to vote. Like the previous proposed amendments in 1973 and 1976,
this bill did not gain final passage.
In 1983, the Alabama legislature attempted to replace the
1901 constitution entirely with a new state constitution. This ef-
fort, spearheaded by Lieutenant Governor Bill Baxley, State Sena-
tor Ryan deGraffenreid, and State Representative Jack Venable,
was undertaken by a specially formed constitutional revision com-
mittee comprised of members from both chambers of the Alabama
legislature. The committee spent seven weeks debating and draft-
ing a new state constitution and, relevantly, adopted the disenfran-
chisement amendments proposed by the 1973 and 1979 commis-
sions. The Alabama legislature ultimately passed the proposed
constitution as Act 83-68. As Senator deGraffenreid explained in a
memorandum,
The proposed new constitution completely rewrites
the provisions relating to voting and elections in the
current constitution. The provisions of the Constitu-
tion of 1901 relating to voting and elections were spe-
cifically designed to prevent blacks from voting and
also prevented women and persons under the age of
21 years from voting. These lengthy and complex
provisions of the present Constitution have been held
to be unconstitutional under the Constitution of the
United States. The new provisions relating to voting
and elections are very short and concise and conform
to the requirements of the United States Constitu-
tion.
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Despite the state legislature’s approval, however, the proposed
1983 constitution failed because the Alabama Supreme Court held
that the Alabama legislature lacked the authority to replace the
state constitution. State v. Manley, 441 So. 2d 864 (Ala. 1983). Five
months later, on April 10, 1984, this Court decided Hunter I, which
the Supreme Court affirmed in 1985 with Hunter II.
In 1995, Representative Venable introduced House Bill 38 to
repeal and replace Article VIII of the 1901 constitution. The bill
incorporated the language proposed by the 1973 and 1979 commis-
sions and passed in the 1983 constitutional replacement effort, in-
cluding the provision to disenfranchise persons convicted of felo-
nies involving moral turpitude. House Bill 38 was favorably re-
ported out of committee, received three procedural readings as re-
quired by the Alabama Constitution, Ala. Const. art. XVIII, § 284,
and then passed the Alabama House unanimously without debate.
Representative Seth Hammett, who later served as Speaker of the
Alabama House of Representatives from 2001 to 2010, recalled that
The article on voting was brought to the floor by Jack
[Representative Venable], and he spoke on the bill.
There was limited, really no debate on the bill. The
amendment was viewed as non-controversial. We
knew Jack was very passionate about revising the
constitution, and he had worked hard on these bills.
We passed it and there was no controversy.
House Bill 38 then moved to the Alabama Senate, where it was also
favorably reported out of committee, received three procedural
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readings, and approved unanimously without debate or amend-
ment.
The proposed amendment was then placed on the ballot of
the June 4, 1996, primary election. Two days before the primary
election, Representative Venable was quoted in a newspaper arti-
cle as saying that the constitutional changes were “strictly house-
keeping” to reflect “the voting requirements of the state today, ra-
ther than in 1901 when the constitution was written.” The news-
paper article also quoted Secretary of State Jim Bennett as saying,
“It’s an amendment whose time has come” and that “he wished the
proposed constitutional amendment could have been on the ballot
many years ago. If we had passed the amendment in 1902, we
could have avoided all the pain and suffering we went through in
the 1950s and 60s.” No public hearings were held on the amend-
ment. The proposed amendment was approved by 76% of the vot-
ers, including eight of the ten counties in Alabama with majority
black populations, and so became Amendment 579 to the Alabama
constitution. Amendment 579, now codified as Ala. Const. art.
VIII, § 177, provides that
(a) Every citizen of the United States who has attained
the age of eighteen years and has resided in this state
and in a county thereof for the time provided by law,
if registered as provided by law, shall have the right
to vote in the county of his or her residence. The Leg-
islature may prescribe reasonable and nondiscrimina-
tory requirements as prerequisites to registration for
voting. The Legislature shall, by statute, prescribe a
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procedure by which eligible citizens can register to
vote.
(b) No person convicted of a felony involving moral
turpitude, or who is mentally incompetent, shall be
qualified to vote until restoration of civil and political
rights or removal of disability.
Before implementing Amendment 579, Alabama was re-
quired to receive preclearance by the United States Justice Depart-
ment or a three-judge panel. See 52 U.S.C. § 10304(a). 3 In support
of that request, Representative Venable wrote a letter to the Office
of the U.S. Attorney General stating that he knew of “no effect”
Amendment 579 would have on minority groups “because Ala-
bama is already using the provisions of the proposed Article.” 4 Ad-
ditionally, Representative Venable noted that
3 Section 10304(a) of the Voting Rights Act of 1965 requires certain covered
states and counties, which in 1996 included Alabama, to receive preclearance
from a three-judge panel before implementing any changes to the state or
county’s voting requirements unless the Attorney General declined to object
to the change within sixty days. In 2013, the Supreme Court struck down the
coverage formula used in § 10304(a), 52 U.S.C. § 10303(b), in Shelby County,
Ala. v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013), rendering § 10304(a)’s pre-
clearance requirement inoperative.
4 This statement was not entirely correct. Section 182 prohibited persons con-
victed of all felonies from voting, not just felonies involving moral turpitude.
Accordingly, Amendment 579 expanded Alabama’s franchise to those con-
victed of felonies not involving moral turpitude.
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The proposed Article has been a part of the last three
Constitutional Revision efforts. There was numerous
public hearings held during the 1973, 1979 and 1983
efforts, and I recall no opposition to this Article from
any group. There were no public hearings when the
Article passed the legislature in 1995, and I do not re-
call any opposition.
The U.S. Attorney General’s Office then granted preclearance to
Amendment 579 on June 24, 1996.
After Amendment 579 came into effect, Alabama voting reg-
istrars had to make determinations about which felonies involved
“moral turpitude” because there was no definitive list of morally
turpitudinous felonies. See Ala. Op. Atty. Gen. No. 2005-092, 2005
WL 1121853, at *2 (March 18, 2005) (Ala. A.G.) (“[T]his Office can-
not provide an exhaustive list of every felony involving moral tur-
pitude.”). In fact, at least some voting registrars refused to register
any convicted felon whose civil rights had not been restored after
Amendment 579 passed, regardless of whether the felony involved
moral turpitude, until the Alabama Attorney General and the Ala-
bama Supreme Court intervened. See Chapman v. Gooden, 974
So. 2d 972, 987–91 (Ala. 2007); Order, Worley v. Gooden, Case No.
1051712 (Ala. Oct. 25, 2006) (“[P]ursuant to Amendment No. 579
the voter registrars cannot deny voter registration to an individual
otherwise qualified to vote simply because he or she has been con-
victed of some felony; denial of voter registration based on a felony
conviction is appropriate only if the felony involved moral turpi-
tude.” (emphasis in original)). In an attempt to provide some
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guidance to voting registrars, in 2007 the Alabama Administrative
Office of the Courts (the “AOC”) circulated a non-binding list of
felonies that Alabama case law, state statutes, or Attorney Gen-
eral’s opinions had identified as involving moral turpitude. How-
ever, some Alabama registrars continued to deny voting registra-
tion to felons convicted of crimes not on the AOC’s list. In 2014,
Alabama Secretary of State Jim Bennett also circulated a list of
crimes involving moral turpitude based off a Wikipedia entry on
federal immigration law. Finally, in 2017, the Alabama legislature
passed Ala. Code § 17-3-30.1 to “provide a comprehensive list of
acts that constitute moral turpitude for the limited purpose of dis-
qualifying a person from exercising his or her right to vote.” Ala.
Code § 17-3-30.1(b)(2)(c).
Prior to 2019, Alabama’s mail voting registration form listed
as a registration requirement that eligible voters must “[n]ot have
been convicted of a disqualifying felony, or if you have been con-
victed, you must have had your civil rights restored.” In 2018, the
federal Election Assistance Commission (the “EAC”) contacted Ed
Packard, Alabama’s Administrator of Elections, to ask how the pas-
sage of Ala. Code § 17-3-30.1 would change Alabama’s voter regis-
tration form. In response, Packard drafted new language for the
registration requirements section of Alabama’s voting form. The
EAC approved this new language, which took effect in June 2019
and clarifies that “[t]o register in Alabama you must: . . . not have
been convicted of a felony involving moral turpitude (or have had
our civil and political rights restored). The list of moral turpitude
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16 Opinion of the Court 21-10034
felonies is available on the Secretary of State web site at: sos.ala-
bama.gov/mtfelonies.”
Appellants filed the instant action on September 26, 2016, as
a putative class action with fifteen different claims. After extensive
discovery, the District Court granted summary judgment in favor
of Alabama on all claims on December 3, 2020. Thompson v. Ala-
bama, 505 F. Supp. 3d 1239 (M.D. Ala. 2020). On appeal, Appellants
raise only three substantive issues: (1) whether Amendment 579
eliminated the taint of discriminatory intent behind § 182, (2)
whether Amendment 579 violates the Ex Post Facto Clause of the
U.S. Constitution, and (3) whether Alabama’s mail voter registra-
tion form violates the NVRA.5
II.
We review grants of summary judgment de novo. Brown
v. Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317 (11th Cir. 2022). Sum-
mary judgment is proper “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
On summary judgment review, we view all evidence in “the light
most favorable to the nonmoving party” and draw “all justifiable
inferences in that party’s favor.” Id. (internal quotation marks
omitted).
5 Appellants also contend that the District Court applied the wrong legal
standard for summary judgment, which we address infra in Part II.
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The parties argue about whether the District Court below
correctly drew inferences based on incontrovertible facts under the
Nunez framework. See Nunez v. Superior Oil Co., 572 F.2d 1119,
1123–24 (5th Cir. 1978). While we have since approved the Nunez
framework, we have also explained that our standard of review on
appeal is “unaffected by any inferential conclusions reached be-
low.” Fla. Int’l Univ. Bd. of Tr. v. Fla. Nat’l Univ., Inc., 830 F.3d
1242, 1252 (11th Cir. 2016) (quoting Usden v. Acker, 947 F.2d 1563,
1573 n.14 (11th Cir. 1991)). And the parties agree that we should
review the District Court’s decision in this case de novo. Accord-
ingly, we will proceed under our usual standard of review for ap-
peals from summary judgment.
III.
As the appellants raise three separate issues on appeal, we
will address each in turn. In Part A, we discuss the enactment of
Amendment 579 and hold that it successfully dissipated any taint
from the 1901 convention. In Part B, we explain that Amendment
579’s felon disenfranchisement provision does not impose punish-
ment for purposes of the Ex Post Facto Clause. In Part C, we con-
clude that Alabama’s voter form “specifies each eligibility require-
ment” for voting in compliance with the NVRA.
A.
Appellants first claim that Amendment 579’s felon disenfran-
chisement provision violates the Equal Protection Clause because
the re-enactment process did not adequately dissipate the taint of
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18 Opinion of the Court 21-10034
the discriminatory intent behind § 182 of the 1901 constitution. To
start with, “[a] state’s decision to permanently disenfranchise con-
victed felons does not, in itself, constitute an Equal Protection vio-
lation.” Johnson v. Gov. of Fla., 405 F.3d 1214, 1217 (11th Cir.
2005) (en banc) (citing Richardson v. Ramirez, 418 U.S. 24, 53–55,
94 S. Ct. 2655, 2670–71 (1974)). However, the Equal Protection
Clause does prevent states from disenfranchising voters based on
race, and a “facially-neutral law violates the Equal Protection
Clause if adopted with the intent to discriminate against a racial
group.” Id. at 1222 (citing Washington v. Davis, 426 U.S. 229, 239,
96 S. Ct. 2040, 2047 (1976)). Determining whether a facially neutral
law violates the Equal Protection Clause involves a two-step anal-
ysis. First, we “examine whether racial discrimination was a sub-
stantial or motivating factor in the state’s decision to deny the right
to vote to felons.” Id. at 1223. If the plaintiffs succeed in making
this showing, “we then ask whether the state can show that the
provision would have been enacted in the absence of any racially
discriminatory motive.” Id.
However, here Appellants do not contend that Amendment
579 was enacted with discriminatory intent in 1996. 6 Instead,
6 Appellants did make this argument in the District Court. Thompson, 505 F.
Supp. 3d at 1259–61. The Court found that Appellants had presented insuffi-
cient evidence of discriminatory intent to survive summary judgment under
the Arlington Heights factors. Id. Appellants have forfeited this issue on ap-
peal by not raising it in their opening brief, so we decline to address it. United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc).]
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Appellants argue that Amendment 579 failed to eliminate the dis-
criminatory intent behind § 182 by re-enacting the “moral turpi-
tude” language of § 182. To determine “whether a subsequent leg-
islative re-enactment can eliminate the taint from a law that was
originally enacted with discriminatory intent,” we consider
whether the law was re-enacted “through a deliberative process”
while paying special attention to whether the re-enactment re-
sulted in any substantive changes. Johnson, 405 F.3d at 1223–24
(citing Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1988)).
In Johnson, this Court sitting en banc considered whether a
felon disenfranchisement provision in the 1968 Florida constitution
successfully dissipated the assumed racial motivations behind the
criminal disenfranchisement provisions of Florida’s 1868 constitu-
tion.7 Id. at 1220–22. Because Florida had followed its normal de-
liberative procedures and “narrowed the class of disenfranchised
individuals to those convicted of felonies” when enacting its 1968
provision, we found that “Florida’s 1968 re-enactment eliminated
any taint from the allegedly discriminatory 1868 provision.” Id. at
1223–24.
Likewise, Amendment 579 was also passed through a delib-
erative process. Alabama considered reforms to § 182 as part of
three different constitutional reform efforts in 1973, 1979, and 1983
7 As Johnson was an appeal from summary judgment, we assumed without
deciding that the 1868 Florida constitution’s felon disenfranchisement provi-
sion was racially motivated. Johnson, 405 F.3d at 1223.
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20 Opinion of the Court 21-10034
before Amendment 579 finally passed the Alabama legislature
unanimously in 1995 and was ratified by 76% of the Alabama pop-
ulation in 1996. Further, Amendment 579 also resulted in substan-
tive changes to Alabama law; while § 182 disenfranchised all felons,
Amendment 579 expanded the franchise by only disenfranchising
persons convicted of felonies involving moral turpitude. Accord-
ingly, Alabama has successfully eliminated any taint from the ra-
cially discriminatory motives behind § 182 under the test we set
forth in Johnson.
Appellants argue that because Amendment 579 was de-
scribed as “strictly housekeeping,” it lacked the legislative intent
necessary to cleanse the discriminatory motivations behind § 182.
However, in Johnson we rejected the proposition that a state legis-
lature must demonstrate an intent to remove the discriminatory
intent of previous provisions when re-enacting a law. 405 F.3d at
1224–25. The Johnson plaintiffs argued that “Florida must affirm-
atively prove that racial discrimination was not a substantial or mo-
tivating factor behind the disenfranchisement law in 1968” by
“demonstrat[ing] that it acknowledged that racial discrimination
tainted the 1868 provision, and yet it knowingly reenacted the dis-
enfranchisement provision for non-discriminatory reasons in
1968.” Id. We rejected that argument because “[t]he result would
be to reverse the presumption that a State’s laws are constitutional,
and plunge federal courts into far-reaching expeditions regarding
the sins of the past in order to question the laws of today.” Id. at
1225 n.21. The question is whether the re-enactment was done
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21-10034 Opinion of the Court 21
through a deliberative process and without discriminatory intent,
not whether the legislature intended the re-enactment to eliminate
the earlier provision’s discriminatory intent. Appellants point to
no evidence on appeal that Amendment 579 was enacted with dis-
criminatory intent. Id. at 1225.
Appellants also argue that the amendment process was not
sufficiently deliberate because there was no debate when the
amendment passed the Alabama legislature in 1995 and because
the prior reform efforts did not, in their view, adequately consider
the history and potential impacts of disenfranchising individuals
convicted of felonies involving moral turpitude. Appellants urge
us to review the “nature of the deliberations” when deciding
whether Alabama re-enacted its felony disenfranchisement provi-
sion through a deliberative process. However, Appellants’ argu-
ment misstates the “deliberative process” requirement for re-enact-
ment. When evaluating Florida’s deliberative process in Johnson,
we looked only to see whether Florida had passed its 1968 provi-
sions in accordance with its normal deliberative procedures for
amending the state constitution:
The provision first was considered by the Suffrage
and Elections Committee. The Committee sent its
final proposal to the [Constitutional Revision Com-
mission]. The CRC reviewed the changes to the Con-
stitution and sent a draft to the legislature, which ap-
proved the new Constitution. Finally, the voters ap-
proved the new Constitution. Thus, as in Cotton v.
Fordice, Florida’s 1968 re-enactment eliminated any
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22 Opinion of the Court 21-10034
taint from the allegedly discriminatory 1868 provi-
sion.
405 F.3d at 1224. Cotton v. Fordice, the Fifth Circuit case Johnson
relied on, performed a similar analysis:
The [Fifth Circuit] emphasized the deliberative pro-
cess through which the provision had twice been
amended: First, both houses of the legislature had to
pass the amendment by a two-thirds vote; then the
Mississippi Secretary of State had to publish the full
text of the provision at least two weeks before the
popular election; finally, a majority of the voters had
to approve the full text of the provision. Thus, the
Fifth Circuit held that “because Mississippi’s proce-
dure resulted both in 1950 and in 1968 in a reenact-
ment of the provision, each amendment superseded
the previous provision and removed the discrimina-
tory taint associated with the original version.”
Id. (citing Cotton, 157 F.3d at 191) (internal citations and alterations
omitted).
Alabama adopted Amendment 579 through its normal delib-
erative process for amending the state constitution, which required
three readings of the amendment in each chamber of the state leg-
islature, approval by three-fifths of each chamber of the state legis-
lature, publication to the public, and then ratification by the Ala-
bama electorate. Ala. Const. art. XVIII, § 284. Further, Alabama
even had to receive preclearance from the federal government be-
fore Amendment 579 could come into effect. See 52 U.S.C.
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21-10034 Opinion of the Court 23
§ 10304(a). As the deliberate process by which Amendment 579
was enacted was like the deliberate process used in Johnson and
Cotton, it suffices under our re-enactment test. Appellants’ pro-
posed standard, by contrast, would “reverse the presumption that
a State’s laws are constitutional” by requiring the Alabama legisla-
ture to show, to this Court’s arbitrary satisfaction, that it suffi-
ciently debated the moral turpitude standard. See Johnson, 405
F.3d at 1225 n.21. The Equal Protection Clause only permits fed-
eral courts to review state legislation for discriminatory intent or
purpose. See Arlington Heights, 429 U.S. at 265, 97 S. Ct. at 563(“Proof of racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.”). Even if we
agreed with Appellants that Alabama did not sufficiently deliberate
over the moral turpitude standard, the Equal Protection Clause
would not permit us to overturn a validly enacted, nondiscrimina-
tory state law. Accordingly, we reject Appellants’ invitation to re-
view the extent the Alabama legislature debated the “moral turpi-
tude” language of Amendment 579.
Finally, Appellants purport to make a separate argument
that Alabama’s re-enactment of the moral turpitude standard “per-
petuated” the “racially discriminatory substance” of § 182. They
argue that there is “substantial evidence that the moral turpitude
standard itself gave substance to the 1901 framers’ discriminatory
intent” and that “[e]liminating redundancies and restating the pro-
vision in ‘general terms’ did not change the underlying
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24 Opinion of the Court 21-10034
discriminatory purpose of the moral turpitude standard.” This ar-
gument fails for two reasons.
First, the moral turpitude standard is not inherently discrim-
inatory. Both federal and state statutes use the standard in other
contexts. See 8 U.S.C. § 1227(a)(2)(A)(i) (permitting deportation of
any alien “convicted of a crime involving moral turpitude”); Ala.
Code § 5-17-55(c)(1) (providing for removal of members of finan-
cial boards “convicted of a felony or any other crime involving
moral turpitude”); Ala. Code § 34-8A-16(a)(1) (permitting the revo-
cation of counselor licenses for individuals convicted “of a felony
or any offense involving moral turpitude”). While Alabama once
used the moral turpitude standard as part of a racially discrimina-
tory disenfranchisement scheme, it is not forever barred from dis-
enfranchising individuals convicted of felonies involving moral tur-
pitude.
Second, this argument is merely a restatement of Appellants’
argument that the Alabama legislature needed to affirmatively in-
tend to eliminate the discriminatory intent behind § 182 when en-
acting Amendment 579. Under Johnson, it is sufficient that Ala-
bama re-enacted its disenfranchisement provision through a delib-
erative process and with a substantial change. Even if the Alabama
legislature and electorate only enacted Amendment 579 for
“strictly housekeeping” purposes like Appellants contend, that is
sufficient to eliminate the discriminatory taint from § 182 of the
1901 constitution. Because we hold that Amendment 579 success-
fully dissipated the racially discriminatory taint from § 182 and
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21-10034 Opinion of the Court 25
because Appellants do not argue the Alabama legislature had dis-
criminatory intent when enacting Amendment 579, we need not
reach the second step of the Equal Protection Clause analysis and
determine whether Alabama would have enacted Amendment 579
without discriminatory intent.
B.
The Ex Post Facto Clause prohibits “retroactive punish-
ment.” Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146 (2003).
Accordingly, for a state law to violate the Ex Post Facto Clause, it
must either have been intended by the state legislature to “impose
punishment” or it must be “so punitive either in purpose or effect
as to negate the State’s intention to deem it civil.” Id. at 92, 123 S.
Ct. at 1147 (quotation and alteration omitted). Appellants argue
that the lack of a definitive list of felonies involving moral turpitude
before 2017 violated the Ex Post Facto Clause by failing to give any
Alabamian felon fair warning of whether his or her crime involved
moral turpitude. Appellants further argue that retroactive applica-
tion of Ala. Code § 17-3-30.1(c) to felons convicted before 2017 is
“itself an ex post facto violation” because it changed what qualified
as a felony involving moral turpitude under Amendment 579.
However, Appellants do not argue on appeal that Alabama in-
tended Amendment 579’s felon disenfranchisement provision to
impose punishment or that felon disenfranchisement is so punitive
as to override the intent of the Alabama legislature. Instead, Ap-
pellants urge us to affirm the District Court’s determination that
binding Eleventh Circuit precedent held that disenfranchisement is
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26 Opinion of the Court 21-10034
inherently punishment. Thompson, 505 F. Supp. 3d at 1262–63.
We begin by analyzing whether we are bound by our prior panel
precedent rule to hold that felon disenfranchisement is punishment
for purposes of the Ex Post Facto Clause. As we conclude we are
not, we then analyze whether Amendment 579’s disenfranchise-
ment provision constituted punishment under the Supreme
Court’s two-prong test.
i.
“The prior-panel-precedent rule requires subsequent panels
of the court to follow the precedent of the first panel to address the
relevant issue, ‘unless and until the first panel’s holding is overruled
by the Court sitting en banc or by the Supreme Court.’” Scott v.
United States, 890 F.3d 1239, 1257 (11th Cir. 2018) (quoting Smith
v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)). Later pan-
els “must faithfully follow the first panel’s ruling” even when “con-
vinced the earlier panel is wrong.” Id. (quoting United States v.
Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc) (alteration
omitted)). Although we are not bound by “mere dictum,” “we
must follow the reasoning behind a prior holding if we cannot dis-
tinguish the facts or law of the case under consideration.” Id. (cita-
tions omitted). Appellants point to three Eleventh Circuit deci-
sions they contend held that disenfranchisement is punishment for
purposes of the Ex Post Facto Clause: Johnson v. Gov. of Fla., 405
F.3d at 1218 n.5, 1228, Jones v. Gov. of Fla. (Jones I), 950 F.3d 795(11th Cir. 2020), and Jones v. Gov. of Fla (Jones II), 975 F.3d 1016(11th Cir. 2020) (en banc). We examine each case in turn.
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21-10034 Opinion of the Court 27
In Johnson, this Court considered whether a section of the
Voting Rights Act of 1965, 52 U.S.C. § 10301, “applie[d] to Florida’s
felon disenfranchisement provision.” 405 F.3d at 1227. Congress
enacted § 10301 “for the remedial purpose of eliminating racially
discriminatory voting practices” and, to achieve that purpose, al-
lowed plaintiffs to challenge state voting regulations based on ra-
cially disparate impacts “without proving discriminatory intent.”
Id. We held that § 10301 did not apply to felon disenfranchisement
provisions under the doctrine of constitutional avoidance after ex-
amining the legislative history of § 10301. Id. at 1227–34. As part
of our discussion about the history and constitutionality of felon
disenfranchisement provisions, we stated that “[f]elon disenfran-
chisement laws are unlike other voting qualifications. These laws
are deeply rooted in this Nation’s history and are a punitive device
stemming from criminal law.” Id. at 1228 (citing Richardson, 418
U.S. at 48–52, 94 S. Ct. at 2668–70). We also noted that
Indeed, throughout history, criminal disenfranchise-
ment provisions have existed as a punitive de-
vice. See Harvard Law Review Association, One Per-
son, No Vote: The Laws of Felon Disenfranchise-
ment, 115 Harv. L. Rev. 1939, 1939–42 (2002). When
the Fourteenth Amendment was ratified, twenty-
nine of thirty-six states had some form of criminal dis-
enfranchisement law. See Richardson, 418 U.S. at 48,
94 S. Ct. [at 2668]. Today, forty-eight states have
some form of criminal disenfranchisement provision.
Although Florida’s felon disenfranchisement law may
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28 Opinion of the Court 21-10034
be among the most restrictive, Florida hardly stands
alone in its long-standing use of these laws.
Id. at 1218 n.5.
Our two references to felon disenfranchisement as histori-
cally “a punitive device” in Johnson did not constitute a holding
that all felon disenfranchisement provisions are punishment for
purposes of the Ex Post Facto Clause. Johnson did not concern the
Ex Post Facto Clause or any other constitutional or statutory pro-
vision where disenfranchisement being “punishment” is analyti-
cally relevant. If it had, we would have performed the two-prong
analysis set forth by the Supreme Court for determining whether a
law is penal or nonpenal. See Doe, 538 U.S. at 92, 123 S. Ct. at 1147;
see also Trop v. Dulles, 356 U.S. 86, 96–97, 78 S. Ct. 595 (1958) (plu-
rality opinion) (explaining that a felon disenfranchisement provi-
sion can be penal or nonpenal).
Instead, Johnson concerned whether § 10301 of the Voting
Rights Act applied to felon disenfranchisement provisions, a sepa-
rate statutory analysis that turned on felon disenfranchisement’s
unique constitutional status and the legislative history of the Vot-
ing Rights Act. 405 F.3d at 1227–34. Our two off-hand references
to felon disenfranchisement as historically a “punitive device” were
thus non-binding dicta. See United States v. Gillis, 938 F.3d 1181,
1198 (11th Cir. 2019) (“[D]icta is a statement that neither consti-
tutes the holding of a case, nor arises from a part of the opinion that
is necessary to the holding of the case.”) (internal quotation marks
omitted).
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21-10034 Opinion of the Court 29
By contrast, we did outright hold in Jones I that “[d]isenfran-
chisement is punishment.” 950 F.3d at 819. Jones I involved an
appeal from a preliminary injunction requiring Florida to restore
the voting rights of felons who had completed their sentence and
parole but who could not pay the fines and costs imposed as part
of their sentence. See Jones v. DeSantis, 410 F. Supp. 3d 1284 (N.D.
Fla. 2019); see also Fla. Const. art. VI, § 4. The Jones I panel held
that Florida’s requirement that indigent felons pay all fines and fees
before being re-enfranchised constituted a wealth classification
subject to heightened scrutiny under the Supreme Court’s deci-
sions in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956) and
Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064 (1983). Jones I,
950 F.3d at 817–25. As part of its holding, 8 the Jones I panel con-
cluded that “[d]isenfranchisement is punishment.” Id. at 819. The
Jones I panel did not reach this conclusion after performing the Su-
preme Court’s two-prong analysis for determining whether a law
is penal or nonpenal. Id; see Doe, 538 U.S. at 92, 123 S. Ct. at 1147.
Instead, the Jones I panel relied on the dicta in Johnson, an off-hand
reference to disenfranchisement as “not an unusual punishment”
8 Because the Jones I panel held that Bearden and Griffin applied whenever a
state “alleviate[s] punishment for some, but mandates that punishment con-
tinue for others, solely on account of wealth,” its determination that disenfran-
chisement constituted punishment was essential for its holding. See Jones I,
950 F.3d at 817–820.
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30 Opinion of the Court 21-10034
in a separate opinion by Justice Scalia, 9 a vacated Second Circuit
panel opinion,10 and two law review articles11 for its conclusion
that disenfranchisement is punishment. Id. at 819.
However, Jones I is no longer good law. After the Jones I
panel affirmed the district court’s preliminary injunction, the dis-
trict court issued a permanent injunction. Jones II, 975 F.3d at
1027–28. Florida appealed and petitioned this Court for initial hear-
ing en banc, which we granted. Id. at 1028. The en banc Court
then explicitly overruled Jones I and held that the “Bearden and
Griffin lines of precedent are limited to the contexts in which they
arose,” i.e., “poverty-based imprisonment.” Id. at 1032–33. Be-
cause disenfranchisement is not poverty-based imprisonment,
Bearden and Griffin were inapplicable and only “rational basis re-
view applie[d].” Id. at 1033. The en banc Court did note that “even
if Bearden applied beyond poverty-based imprisonment,” Florida’s
re-enfranchisement scheme was distinguishable from Bearden be-
cause Florida did not impose “additional punishment” on con-
victed felons as “Florida automatically disenfranchises all felons
9 Harmelin v. Michigan, 501 U.S. 957, 983, 111 S. Ct. 2680, 2695 (1991) (Scalia,
J., separate opinion).
10 Muntaqim v. Coombe, 366 F.3d 102, 123 (2d Cir. 2004), vacated en banc,
449 F.3d 371 (2d Cir. 2006).
11 Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Con-
stitutional No Man's Land, 56 Syracuse L. Rev. 85, 133–34 (2005); Note, One
Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev.
1939, 1939–42 (2002).
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21-10034 Opinion of the Court 31
upon conviction, and the challenged laws only lift that punishment
for felons who have completed all terms of their sentences.” Id. at
1032 (emphasis in original). But as with Johnson, Jones II’s off-hand
reference to disenfranchisement as punishment, made without
analysis or citation, was neither a holding of the case nor a neces-
sary component of the case’s holding. Accordingly, Jones II’s ref-
erence to disenfranchisement as punishment was non-binding
dicta. Gillis, 938 F.3d at 1198. 12 As both Johnson and Jones II’s
references to disenfranchisement as punishment are dicta and Jones
I has been overruled by this Court sitting en banc, we will proceed
to analyze de novo whether Amendment 579’s felon disenfran-
chisement provision constitutes punishment for purposes of the Ex
Post Facto Clause.
ii.
Disenfranchisement can be penal or nonpenal. As a plurality
of the Supreme Court explained in Trop v. Dulles,
The [Supreme] Court has recognized that any statute
decreeing some adversity as a consequence of certain
conduct may have both a penal and a nonpenal effect.
12 Jones II also briefly referred to disenfranchisement as punishment in a later
section of the opinion analyzing whether Florida’s re-enfranchisement scheme
was an unconstitutional poll tax. 975 F.3d at 1039 (“Some punishments, like
disenfranchisement, are imposed on all felons alike regardless of the severity
of their crimes.”). This reference, again without analysis or citation, is also
dicta because it was not a holding of Jones II nor necessary to the en banc
Court’s holdings. Gillis, 938 F.3d at 1198.
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32 Opinion of the Court 21-10034
The controlling nature of such statutes normally de-
pends on the evident purpose of the legislature. The
point may be illustrated by the situation of an ordi-
nary felon. A person who commits a bank robbery,
for instance, loses his right to liberty and often his
right to vote. If, in the exercise of the power to pro-
tect banks, both sanctions were imposed for the pur-
pose of punishing bank robbers, the statutes author-
izing both disabilities would be penal. But because
the purpose of the latter statute is to designate a rea-
sonable ground of eligibility for voting, this law is sus-
tained as a nonpenal exercise of the power to regulate
the franchise.
356 U.S. at 96–97, 78 S. Ct. at 596. Accordingly, courts must deter-
mine the legislative intent behind the felon disenfranchisement
statute or constitutional provision under consideration before
holding that it is penal or nonpenal for constitutional purposes. Id.Alabama urges us to hold that all felon disenfranchisement
provisions are always nonpenal based on the decisions of three of
our sister circuits. See Johnson v. Bresdesen, 624 F.3d 742, 753 (6th
Cir. 2010) (“Moreover, in Trop v. Dulles, the Supreme Court ex-
pressly stated that felon disenfranchisement laws serve a regula-
tory, non-penal purpose. Accordingly, as a matter of federal law,
disenfranchisement statutes do not violate the Ex Post Facto
Clause of the U.S. Constitution.” (citation omitted)); Simmons v.
Galvin, 575 F.3d 24, 43 (1st Cir. 2009) (“The Supreme Court has
stated that felon disenfranchisement provisions are considered
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21-10034 Opinion of the Court 33
regulatory rather than punitive.” (citing Trop, 356 U.S. at 96–97, 78
S. Ct. at 596)); Green v. Bd. of Elections of City of N.Y., 380 F.2d
445, 450 (2d Cir. 1967) (“Depriving convicted felons of the franchise
is not a punishment but rather is a ‘nonpenal exercise of the power
to regulate the franchise.’” (citing Trop, 356 U.S. at 97, 78 S. Ct. at
596)).
But those three decisions all reached the conclusion that
felon disenfranchisement is always nonpenal based on a misreading
of Trop. Trop used felon disenfranchisement as the quintessential
example of a “consequence” that “may have both a penal and a
nonpenal effect.” 356 U.S. at 96, 78 S. Ct. at 596. “The controlling
nature” of these provisions “normally depends on the evident pur-
pose of the legislature.” Id. Thus, in Trop’s bank robbery example,
if disenfranchisement was “imposed for the purpose of punishing
bank robbers,” the disenfranchising provision “would be penal.”
Id. But if the purpose of the disenfranchising provision “is to des-
ignate a reasonable ground of eligibility for voting,” then the pro-
vision is “a nonpenal exercise of the power to regulate the fran-
chise.” Id. at 96–97, 78 S. Ct. at 596. Consequently, we reject Ala-
bama’s argument that disenfranchisement is always nonpenal.
The first step in determining whether a statute or constitu-
tional provision imposes retroactive punishment for purposes of
the Ex Post Facto Clause is to “ascertain whether the legislature
meant the [provision] to establish ‘civil’ proceedings.” Doe, 538
U.S. at 92, 123 S. Ct. at 1146–47 (quoting Kansas v. Hendricks, 521
U.S. 346, 361, 117 S. Ct. 2072, 2082 (1997)). And determining
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34 Opinion of the Court 21-10034
“[w]hether a statutory [or constitutional] scheme is civil or criminal
‘is first of all a question of statutory construction.’” Id. at 92, 123 S.
Ct. at 1147 (quoting Hendricks, 521 U.S. at 361, 117 S. Ct. at 2081).
Thus, we begin by considering Amendment 579’s “text and its
structure” to determine whether the Alabama legislature “indi-
cated either expressly or impliedly a preference for one label or the
other.” Id. at 92–93, 123 S. Ct. at 1147 (quoting Hudson v. United
States, 522 U.S. 93, 99, 118 S. Ct. 488, 493 (1997)).
Alabama’s felony disenfranchisement provision (as
amended by Amendment 579) is located in Article VIII of the Ala-
bama constitution. Ala. Const. art. VIII, § 177(b). This article, en-
titled “Suffrage and Elections,” sets forth Alabama’s requirements
for voter eligibility and empowers the Alabama legislature to pass
legislation regulating voter registration and election administra-
tion. Ala. Const. art. VIII, § 177. An individual is eligible to vote in
Alabama if he or she is (1) a U.S. citizen, (2) “who has attained the
age of eighteen years,” (3) “has resided in [Alabama] and in a
county thereof for the time provided by law,” (4) has registered to
vote “as provided by law,” (5) is not “mentally incompetent,” and
(6) has not been “convicted of a felony involving moral turpitude”
without having his or her “civil and political rights” restored. Id.
While Article VIII is not expressly labeled as “civil,” it is clear from
plain text of the article that the Alabama legislature intended Arti-
cle VIII to set forth a civil scheme for regulating the franchise.
There is no indication from the text that Alabama intended to crim-
inally punish non-U.S. citizens, non-Alabama residents, non-
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21-10034 Opinion of the Court 35
registered voters, minors, or the mentally incompetent by denying
them the franchise in Article VIII. Nor could Alabama. Further,
Article VIII disenfranchises individuals convicted of felonies involv-
ing moral turpitude by other sovereigns, see Ala. Code § 17-3-
30.1(c)(48), despite Alabama lacking the authority to punish felons
convicted by other sovereigns. By placing Alabama’s felon disen-
franchisement provision amongst its other voter eligibility provi-
sions and in the article concerned with voter eligibility require-
ments and election administration, Alabama implicitly indicated a
preference that its felon disenfranchisement provision be consid-
ered civil instead of criminal.
Besides the text and structure of the law, “[o]ther formal at-
tributes of a legislative enactment, such as the manner of its codifi-
cation or the enforcement procedures it establishes, are probative
of the legislature’s intent.” Doe, 538 U.S. at 94, 123 S. Ct. at 1148.
The felon disenfranchisement provision of Amendment 579 is cod-
ified as Article VIII, “Suffrage and Elections,” of the Alabama con-
stitution, which Amendment 579 repealed and replaced. Ala.
Const. amend. DLXXIX. Codifying Alabama’s felon disenfran-
chisement provision within an article of the Alabama constitution
likewise indicates a civil, regulatory intent by the legislature, as the
vast majority of the Alabama constitution—and all provisions of
Article VIII—sets forth civil regulations.
Further, while Article VIII does not set forth any enforce-
ment provisions, the voter registration provisions of Article VIII
are enforced by Chapter 3, “Voter Registration,” of Title 17,
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36 Opinion of the Court 21-10034
“Elections,” of the Alabama Code. See Ala. Code § 17-3-1 et seq.
Chapter 3 sets forth a civil, regulatory scheme whereby registrar
boards evaluate registration applications by potential voters to de-
termine their eligibility without any discussion of criminal liability.
Id. Of particular note is Ala. Code § 17-3-30.1, the Alabama statute
defining felonies involving moral turpitude. Section 17-3-30.1, en-
titled the “Felony Voter Disqualification Act,” repeatedly describes
conviction of a felony involving moral turpitude as “disqualifying,”
not as punishment, and states that one of the purposes of the Act is
“[t]o ensure that no one is wrongly excluded from the electoral
franchise.” See Ala. Code § 17-3-30.1(b),(c),(d),(e). While § 17-3-
30.1 passed 21 years after Amendment 579 (unlike other provisions
of Chapter 3), Alabama’s enforcement mechanisms clearly treat
felon disenfranchisement as “a nonpenal exercise of the power to
regulate the franchise.” Trop, 356 U.S. at 97, 78 S. Ct. at 596.
Considering the text and structure of Article VIII, its codifi-
cation in the Alabama constitution, and its enforcement mecha-
nisms, we hold that the Alabama legislature intended Amendment
579’s felon disenfranchisement provision to be a nonpenal regula-
tion of the franchise. This conclusion, however, does not end our
analysis; “we must further examine whether the statutory scheme
is so punitive either in purpose or effect as to negate the State’s
intention to deem it ‘civil.’” Doe, 538 U.S. at 92, 123 S. Ct. at 1147(quotation, quotation marks, and alterations omitted)). “Because
we ordinarily defer to the legislature’s stated intent, only the clear-
est proof will suffice to override legislative intent and transform
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21-10034 Opinion of the Court 37
what has been denominated a civil remedy into a criminal penalty.”
Id. (internal quotations and citations omitted). This analysis is con-
ducted under the “useful framework” of the seven non-exhaustive
and non-dispositive factors set forth in Kennedy v. Mendoza-Mar-
tinez, 372 U.S. 144, 168–69, 83 S. Ct. 554, 567–68 (1963). Doe, 538
U.S. at 97, 123 S. Ct. at 1149. Those factors are:
[1] Whether the sanction involves an affirmative dis-
ability or restraint, [2] whether it has historically been
regarded as a punishment, [3] whether it comes into
play only on a finding of scienter, [4] whether its op-
eration will promote the traditional aims of punish-
ment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6]
whether an alternative purpose to which it may ra-
tionally be connected is assignable for it, and [7]
whether it appears excessive in relation to the alter-
native purpose assigned.
Mendoza-Martinez, 372 U.S. at 168–69, 83 S. Ct. at 567–68 (num-
bering added and citations omitted). Of these seven factors, the
most important are whether the sanction “has been regarded in our
history and traditions as a punishment; imposes an affirmative dis-
ability or restraint; promotes the traditional aims of punishment;
has a rational connection to a nonpunitive purpose; or is excessive
with respect to this purpose.” Doe, 538 U.S. at 97, 123 S. Ct. at
1149. We examine each factor in turn.
First, disenfranchisement is not an “‘affirmative disability or
restraint’ as that term is normally understood.” Hudson, 522 U.S.
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38 Opinion of the Court 21-10034
at 104, 118 S. Ct. at 496. In Hudson, the Supreme Court considered
whether occupational disbarment for violations of certain federal
banking statutes was punishment for purposes of the Double Jeop-
ardy Clause. Id. at 95–96, 118 S. Ct. at 491. The Court concluded
that occupational disbarment did not impose an “affirmative disa-
bility or restraint” as disbarment is “certainly nothing approaching
the ‘infamous punishment’ of imprisonment.” Id. at 104, 118 S. Ct.
at 496 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S. Ct.
1367, 1376 (1960)). While the Hudson Court did not consider this
factor further after concluding it did not impose imprisonment, we
observe that felon disenfranchisement and occupational disbar-
ment are similar in many ways. See Simmons, 575 F.3d at 44–45
(also comparing occupational disbarment to felon disenfranchise-
ment under this factor). Both remove the civil rights of individuals
due to their criminal behavior as part of the State’s regulatory
power. And Hudson ultimately held that occupational disbarment
is nonpunitive. 522 U.S. at 105, 118 S. Ct. at 496.
The second factor, whether felon disenfranchisement has
been historically regarded as punishment, is neutral. As the Su-
preme Court explained in Trop, felon disenfranchisement has
“both a penal and a nonpenal effect,” and the “controlling nature”
is the “evident purpose of the legislature.” 356 U.S. at 96, 78 S. Ct.
at 596. And there is evidence that American courts and legislatures
have considered felon disenfranchisement provisions as both penal
and nonpenal. Compare Washington v. State, 75 Ala. 582, 585
(1884) (“It is quite common also to deny the right of suffrage, in the
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21-10034 Opinion of the Court 39
various American States, to such as have been convicted of infa-
mous crimes. The manifest purpose is to preserve the purity of the
ballot box . . . The presumption is, that one rendered infamous by
conviction of felony, or other base offense indicative of great moral
turpitude, is unfit to exercise the privilege of suffrage, or to hold
office, upon terms of equality with freemen who are clothed by the
State with the toga of political citizenship. . . .The exclusion must
for this reason be adjudged a mere disqualification, imposed for
protection, and not for punishment--withholding an honorable
privilege, and not denying a personal right or attribute of personal
liberty.”), and Anderson v. Baker, 23 Md. 531, 626 (1865) (observing
that the felon disenfranchisement provision of the 1864 Maryland
constitution “is dissociated from any reference to penalty, and
made the consequence of conviction, in the same connection with
lunacy or persons non compos,” for purposes of the Ex Post Facto
Clause), and Simmons, 575 F.3d at 45 (“[F]elon disenfranchisement
has historically not been regarded as punitive in the United States,
as the Supreme Court indicated in Trop v. Dulles. Indeed, in hold-
ing that felon disenfranchisement has ‘affirmative sanction’ in
§ 2 of the Fourteenth Amendment of the U.S. Constitution, Rich-
ardson, 418 U.S. at 54, 94 S. Ct. [at 2670–71], the Supreme Court
noted the historical prevalence of state felon disenfranchisement
laws and never characterized even California’s broad disqualifica-
tion of former felons as punitive. Id. at 55, 94 S. Ct. [at 2671].), with
Richardson, 418 U.S. at 51–52, 94 S. Ct. 2669–70 (explaining that
Congress readmitted states to the Union after the Civil War on the
condition that their state constitutions “never be so amended or
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40 Opinion of the Court 21-10034
changed as to deprive any citizen or class of citizens of the United
States of the right to vote who are entitled to vote by the constitu-
tion herein recognized, except as a punishment for such crimes as
are now felonies at common law” (citations omitted)), and John-
son, 405 F.3d at 1218 n.5, 1228 (noting in dicta that felon disenfran-
chisement has historically functioned as a “punitive device”).
The third and fifth factors—whether the sanction requires a
finding of scienter and whether the behavior to which the sanction
applies is already criminal—both weigh in favor of felon disenfran-
chisement being nonpunitive. There is no scienter requirement for
felon disenfranchisement; it is sufficient that the person be con-
victed of a disqualifying felony. Likewise, felon disenfranchise-
ment only sanctions behavior that is already criminal. That felon
disenfranchisement laws are “tied to criminal activity . . . is insuffi-
cient to render the [laws] punitive.” United States v. Ursery, 518
U.S. 267, 292, 116 S. Ct. 2135, 2149 (1996); see also Simmons, 575
F.3d at 45 (also finding the third and fifth factors weigh in favor of
felon disenfranchisement being nonpunitive).
Further, felon disenfranchisement does not “promote the
traditional aims of punishment—retribution and deterrence” un-
der the fourth factor. It is very unlikely that an individual consid-
ering whether to commit a felony would be willing to risk impris-
onment but not disenfranchisement. And even if there were a de-
terrent effect, “[t]o hold that the mere presence of a deterrent pur-
poses renders such sanctions ‘criminal’ . . . would severely under-
mine the Government’s ability to engage in effective regulation.”
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21-10034 Opinion of the Court 41
Doe, 538 U.S. at 102, 123 S. Ct. at 1152 (quoting Hudson, 522 U.S.
at 105, 118 S. Ct. at 496)). Moreover, the text of Amendment 579
reveals no retributive intent, and it is clear from the legislative his-
tory of the amendment that its “strictly housekeeping” purpose
was to update Alabama’s voting requirements for the modern day.
Under the sixth factor, Alabama has a clear “alternative pur-
pose” for felon disenfranchisement besides punishment. “The
States have long been held to have broad powers to determine the
conditions under which the right of suffrage may be exercised, ab-
sent of course the discrimination which the Constitution con-
demns.” Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S.
45, 50, 79 S. Ct. 985, 989 (1959) (internal citation omitted). “Resi-
dence requirements, age, [and] previous criminal record are obvi-
ous examples indicating factors which a State may take into con-
sideration in determining the qualifications of voters.” Id. at 51, 79
S. Ct. at 990 (internal citations omitted). And Alabama, which
could lawfully disenfranchise all felons permanently, Richardson,
418 U.S. at 56, 94 S. Ct. at 2671, has not exceeded its interest per
the seventh factor by choosing only to disenfranchise individuals
who commit felonies Alabama considers especially heinous.
Besides the second factor, which is neutral, all seven Men-
doza-Martinez factors weigh in favor of finding that Alabama’s dis-
enfranchisement provision is not “so punitive either in purpose or
effect as to negate the State’s intention to deem it ‘civil.’” Doe, 538
U.S. at 92, 123 S. Ct. at 1147 (quotation, quotation marks, and al-
terations omitted)). Even if the second factor weighed in the
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42 Opinion of the Court 21-10034
Appellants’ favor, we could not say that factor alone is “clearest
proof” sufficient to “transform what had been denominated a civil
remedy into a criminal penalty.” Id. (quoting Hudson, 522 U.S. at
100, 118 S. Ct. at 493). Accordingly, we hold that the disenfran-
chisement provision of Amendment 579 does not constitute pun-
ishment for purposes of the Ex Post Facto Clause.
C.
Finally, Appellants contend that Alabama’s mail voter regis-
tration form violates the NVRA because the form does not explic-
itly list all the disqualifying felonies under Alabama law. The
NVRA requires the EAC to “develop a mail voter registration ap-
plication form” in consultation with the states. 52 U.S.C.
§ 20508(a)(2). This form must “include a statement that . . . speci-
fies each eligibility requirement.” 52 U.S.C. § 20508(b)(2)(A) (em-
phasis added). The verb “specifies” is not defined by the NVRA.
Under Appellants’ view, a state that disqualifies voters for some fel-
onies but not others can only sufficiently specify its eligibility re-
quirements on its mail voting form by listing each disqualifying fel-
ony. So, the portion of Alabama’s form informing registrants that
felonies involving moral turpitude are disqualifying and that regis-
trants can access the list of disqualifying felonies by following a
specified link is insufficient.
Appellants, however, propose an absurd, unworkable, and
internally inconsistent interpretation of § 20508(b)(2)(A). As the
District Court observed, Appellants’ interpretation would require
Alabama to list every state, federal, and foreign felony involving
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21-10034 Opinion of the Court 43
moral turpitude to sufficiently specify disqualifying felonies under
Alabama law. Thompson, 505 F. Supp. 3d at 1271. After all, Ala-
bama’s felon disenfranchisement provision applies to all individu-
als who have committed felonies involving moral turpitude,
whether convicted by Alabama or another sovereign. Ala. Code
§ 17-3-30.1(c)(48) (disqualifying individuals who have committed
“[a]ny crime as defined by the laws of the United States or by the
laws of another state, territory, country, or other jurisdiction,
which, if committed in this state, would constitute one of the of-
fenses listed in this subsection” as involving moral turpitude). As-
suming Alabama could even identify every such felony, the result-
ing registration form would be of monstrous size. Appellants may
as well ask Alabama to attach a copy of each state, federal, and for-
eign criminal code to its voting form. And any time any state, fed-
eral, or foreign government amended their criminal code, Alabama
would have to update its list of disqualifying felonies and print
anew its prodigious voter registration forms.
Appellants respond that this is a “strawman argument” and
that listing the catchall provision of Ala. Code § 17-3-30.1(c)(48)
would suffice for non-Alabama felony convictions. But this argu-
ment renders Appellants’ position internally inconsistent. As the
District Court put it, if “a catchall provision which generally refers
to particular crimes is sufficiently specific to satisfy the requirement
that the form ‘specify’ the qualification, then a specification of a
qualification—disqualifying felony—which generally refers to
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44 Opinion of the Court 21-10034
particular crimes must also be specific enough.” Thompson, 505 F.
Supp. 3d at 1271. We agree.
We have explained before that “[c]ourts should avoid slic-
ing a single word from a sentence, mounting it on a definitional
slide, and putting it under a microscope in an attempt to discern
the meaning of an entire statutory provision.” Wachovia Bank,
N.A. v. United States, 455 F.3d 1261, 1267 (11th Cir. 2006). Appel-
lants’ attempt to do so here would produce a clearly absurd result.
See United States ex rel. Hunt v. Cochise Consultancy, Inc., 887
F.3d 1081, 1091 (explaining that courts “should refrain from inter-
preting a statute in a way that produces a result that is not just un-
wise but is clearly absurd” (quotation and quotation marks omit-
ted)). Boiled down, § 20508(b)(2)(A) is a notice statute enacted for
the convenience of voting registrants. Alabama’s mail-in voting
form has provided sufficient notice by informing registrants that
persons convicted of disqualifying felonies are not eligible to vote
and providing an easily accessible link13 whereby voters convicted
of felonies can determine their voter eligibility. Accordingly, Ala-
bama has complied with the requirements of § 20508(b)(2)(A).
13 Appellants argue in a footnote that “[i]ncluding a link to the State’s website
does not satisfy the NVRA” as “[r]egistrants at a motor vehicle or other gov-
ernment agency may not have access to the Internet, defeating the purpose of
promoting on-site registration.” But § 20508(b)(2)(A) governs state mail vot-
ing registration forms, not on-site voting registration forms. Registrants may
thus access Alabama’s website for the list of disqualifying felonies at their lei-
sure.
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21-10034 Opinion of the Court 45
IV.
For the reasons stated above, we affirm the District Court’s
grant of summary judgment in favor of Alabama.
AFFIRMED.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 1
ROSENBAUM, Circuit Judge, Concurring in Part and Dissenting in
Part:
Deceiving an elector in preparation of her ballot. 1 Altering
another person’s ballot. 2 Failing to count legally cast absentee
votes. 3 Illegally voting more than once in an election (second vio-
lation).4 Willfully and intentionally signing the name of another
elector in a poll book.5 Bribery of public servants. 6 And perjury. 7
Perhaps this recitation sounds like a list of felonies that
would disqualify an Alabamian from voting under Amendment 579
to Alabama’s constitution—Alabama’s felon-disenfranchisement
provision. Nope. Those convicted of any of these voting-fraud-
related felonies are A-okay, good to go when it comes to voting in
Alabama. Alabama exempts them from its felon-disenfranchise-
ment provision, Amendment 579. Under that provision, only
other felons—those convicted of felony crimes that Alabama says
are crimes of “moral turpitude”—can’t vote.
1 ALA. CODE § 17-17-19.
2 ALA. CODE § 17-17-24(a).
3 ALA. CODE § 17-17-27.
4 ALA. CODE § 17-17-36.
5 ALA. CODE § 17-17-15.
6 ALA. CODE § 13A-10-61.
7 ALA. CODE § 13A-10-101.
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2 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Even worse, in the nearly thirty years since Alabama
amended its felon-disenfranchisement provision, Alabama has de-
fined the phrase “moral turpitude” in contradictory or non-uni-
form ways. At one point, Alabama even allowed each local regis-
trar to interpret the term for herself. In other words, when Ala-
bama precluded those convicted of felony crimes of “moral turpi-
tude” from voting, it may as well have excluded those convicted of
“whatever felonies Alabama (or any of its local registrars) at any
point in the future might say disqualify a voter,” as Alabama had
no definition of the phrase “moral turpitude” in mind.
All of this raises the question: just what was Alabama trying
to accomplish with its felon-disenfranchisement provision?
Going back some time to when Alabama adopted its original
felon-disenfranchisement provision (which disenfranchised all fel-
ons) in 1901, Alabama did so to further white supremacy and sup-
press Black voting. Hunter v. Underwood, 471 U.S. 222, 229 (1985)
(noting that no one “seriously dispute[d] the claim that this zeal for
white supremacy ran rampant at the convention”) (“Hunter”).
So maybe when Alabama amended its felon-disenfranchise-
ment provision in 1996, narrowing those prohibited from voting
from all felons to only those convicted of felony crimes of moral
turpitude, it sought to cleanse the taint of racism from the provi-
sion’s history? Nope. We can’t say that. Alabama has never stated
that it amended its felon-disenfranchisement provision to correct
the provision’s racist origins.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 3
Rather, when Alabama adopted Amendment 579, it de-
scribed the purpose as “strictly housekeeping.” Doc. 257-17 at
52. But that description is hard to believe both because of (1) the
substantive changes the 1996 amendment made to Alabama’s fel-
ony-disenfranchisement provision and (2) Alabama’s ongoing
struggle to define what it means by felony crimes of moral turpi-
tude.
Indeed, if Alabama’s purpose was “strictly housekeeping,”
Alabama needs a new housekeeper. When Alabama amended its
felon-disenfranchisement provision to preclude those convicted of
felonies of moral turpitude from voting, it left felonies strewn all
over without identifying whether they went into or outside the
“moral turpitude” closet. In fact, Alabama had no idea what was
in its closet and even less of an idea about what it wanted to put
there. And the mismatch between Alabama’s stated purpose for
amending its felon-disenfranchisement provision and the disarray
in which Alabama’s amendment left its felon-disenfranchisement
provision sure makes it seem like Alabama’s purpose was not
“strictly housekeeping.”
So let’s review the facts: (1) Alabama’s felon-disenfranchise-
ment provision undisputedly began as a racist mechanism to sup-
press the Black vote; (2) Alabama’s only stated purpose for reenact-
ing an amended form of that provision is inconsistent with what
Alabama actually did; and (3) Alabama’s construction of its felony-
disenfranchisement provision—allowing those convicted of vot-
ing-related fraud to continue to vote—is inconsistent the purpose
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4 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
of disenfranchising those convicted of felony crimes of “moral tur-
pitude” (i.e., not letting those involved in fraud-related crimes vote
because they damage the collective honor of the community).
But our Equal Protection Clause precedent requires us to ig-
nore all these facts. Rather, we simply ask whether the amended
version of the law that was originally enacted for discriminatory
reasons went through both chambers of the legislature and was
properly effected into law. See Johnson v. Governor of State of
Fla., 405 F.3d 1214, 1223–25 (11th Cir. 2005) (en banc). What kind
of test is that? None at all, for every law that comes before this
Court has experienced bicameralism and presentment. So a law
that is a law passes muster under our precedent.
Nor is our deficient test consistent with Supreme Court
precedent. When a law is challenged as discriminatory for the first
time, the Supreme Court applies a variety of factors (known as the
Arlington Heights factors)—including, among others, whether the
law has a discriminatory impact, the historical background of a law,
and the “substantive departures” the law makes from the reasons
stated for its enactment—to assess whether the law violates the
Equal Protection Clause. 8 So if a federal court concludes under
these factors that a law violates the Equal Protection Clause, and
that law is later reenacted, why should that law that continues to
have a disparate impact get a free pass on the factors and be
8 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252(1977).
USCA11 Case: 21-10034 Document: 78-1 Date Filed: 04/26/2023 Page: 50 of 106
21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 5
reviewed instead solely to ensure it went through the proper legis-
lative process? That makes no sense. It should be harder, not eas-
ier, for a law to survive an Equal Protection Clause challenge when
it has been reenacted after a federal court has found the law to vio-
late the Equal Protection Clause.
Applying the Arlington Heights factors to assess whether a
reenacted version of a law that a federal court has previously held
to violate the Equal Protection Clause not only makes far more
sense, but it is truer to Supreme Court precedent than is our test.
And applying the Arlington Heights factors to Amendment 579 and
its interpretive statute yields only one conclusion: a material issue
of fact exists about whether these laws were adopted for a discrim-
inatory purpose.
Indeed, when, as here, the amended law does nothing to ad-
vance its stated purpose, it cannot cleanse the taint of its discrimi-
natory origins. For that reason, if I were not bound by our prece-
dent, I would hold that Alabama’s felon-disenfranchisement provi-
sion violates the Equal Protection Clause. But since I am bound, I
cannot and must instead conclude that, under our case law, the
provision does not violate the Equal Protection Clause.
That said, though, Alabama’s felon-disenfranchisement stat-
ute and its voter registration form do violate the Ex Post Facto
Clause and the National Voter Registration Act, respectively. So I
would reverse the district court’s denial of those challenges.
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6 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
My discussion proceeds in five parts. In Section I, I recount
Alabama’s unfortunate history of discrimination against Black vot-
ers. Section II tells the story of how Amendment 579 came to be. I
address the Equal Protection Clause issue in Section III. In Section
IV, I explain why Section 17-3-30.1 violates the Ex Post Facto
Clause. And Section V shows that Alabama’s voter-registration
form does not comply with the National Voter Registration Act’s
requirements.
I.ALABAMA’S HISTORY OF RACIAL DISCRIMINATION
IN VOTING
Black suffrage in the United States was a long time in com-
ing. But after the Civil War, things began looking up for Blacks
during Reconstruction. For instance, the United States ratified the
Fourteenth Amendment on July 9, 1868. Among other functions,
the Fourteenth Amendment began ensuring that Black people
“born or naturalized in the United States” enjoyed citizenship and
“equal protection of the laws.” U.S. Const. amend. XIV. And it
reduced a state’s representation in the House of Representatives in
proportion to that state’s refusal to allow male citizens over 21 to
vote (other than for “participation in . . . [as relevant here,] crime”).
Id.Two years later, on February 3, 1870, the United States rati-
fied the Fifteenth Amendment. The Fifteenth Amendment guar-
antees that “[t]he right of citizens of the United States to vote shall
not be denied or abridged . . . by any State on account of race, color,
or previous condition of servitude.” U.S. Const. amend. XV.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 7
These rights translated into results at the ballot box in Ala-
bama. For the 42nd, 43rd, and 44th United States Congresses, Ala-
bama elected a Black man to serve as one of its Representatives. 9
But Alabama’s burgeoning nineteenth-century tradition of Black
congressional representatives quickly and unceremoniously ended
with the 44th Congress, which closed in 1877. Not coincidentally,
1877 was also when Reconstruction ended with the Compromise
of 1877. 10 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 120 (1996)
(Souter, J., dissenting).
9 From 1871 through 1873, in the 42nd Congress, Congressman Benjamin
Sterling Turner represented Alabama. https://history.house.gov/Exhibi-
tions-and-Publications/BAIC/Historical-Data/Black-American-Representa-
tives-and-Senators-by-State-and-Territory/ (last visited Apr. 20, 2023). Con-
gressman James Thomas Rapier represented the state from 1873 through 1875,
in the 43rd Congress. Id. And Congressman Jeremiah Haralson had the honor
from 1875 through 1877 in the 44th Congress. Id. Alabama didn’t elect an-
other Black man or woman to Congress for almost 120 years. Id.10 The Compromise of 1877 resolved the disputed 1876 Presidential election.
Nathan Colvin & Edward Foley, The Twelfth Amendment: A Constitutional
Ticking Time Bomb, 64 U. MIAMI L. REV. 475, 502 (2010). In the 1876 Presi-
dential election, Rutherford B. Hayes, the Republican nominee, ran against
Samuel Tilden, the Democratic nominee. Id. At the time, 185 votes would
clinch an Electoral College majority. But on election night, Tilden had 184
votes and Hayes had 165. Chris Land & David Schultz, On the Unenforcea-
bility of the Electoral Count Act, 13 RUTGERS J. LAW & PUB. POL’Y 340, 350–51
(2016). Twenty votes remained outstanding because, in three states (including
Florida, which shows that history does indeed repeat itself), both political par-
ties’ electors said they were the winners. Id. at 351. Congress created an elec-
toral commission to resolve the dispute. Id. Eventually, the commission
awarded all twenty disputed electoral votes to Hayes, so Hayes won by one
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8 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
The Compromise was this: following a disputed presiden-
tial election, Democratic southern states would accede to the Re-
publican northern states’ choice—Rutherford B. Hayes—provided
that the new President withdraw federal troops from the south. Id.
While “President-elect Hayes received assurances that the Demo-
cratic governments of the southern states would take upon them-
selves the responsibility to protect the civil rights of their [B]lack
citizens . . . [t]h[o]se assurances . . . probably were . . . disingenu-
ous.” Michael McConnell, The Forgotten Constitutional Moment,
11 CONST. COMMENTARY 115, 130–31 (1994). “Once power shifted
back to the southern states and away from Congress, the promises
of continued respect for the rights of [B]lack Americans quickly
proved illusory. This probably came as no surprise to anyone.” Id.
Alabama took this opening and ran with it. See Underwood
v. Hunter, 730 F.2d 614, 618 (11th Cir. 1984) (“Underwood”). As
we have recognized, “the white citizens of Alabama moved to re-
assert their once unquestioned political supremacy” over Black Al-
abamians. Id. In 1901, Alabama adopted a state constitution de-
signed to restrict Black voting. Id. at 619.
“When the Alabama constitutional convention assembled in
May 1901, the question was not whether to disfranchise the Negro
vote (185 to 184). Id. But Southern Democrats would not acknowledge Hayes
as the President unless Republicans met certain demands, including giving
Democrats in southern states the ability to legislate about Black citizens with-
out northern interference. McConnell, The Forgotten Constitutional Mo-
ment, infra at 130–31.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 9
but rather how to do so constitutionally.” Id. at 619. As the presi-
dent of the Alabama constitutional convention put it, “[a]nd what
is it that we want to do? Why it is within the limits imposed by the
Federal Constitution, to establish white supremacy in this State.”
John B. Knox, President of the 1901 Convention, Off. Proceedings
of the Const. Convention of the State of Ala., May 21st, 1901, to
Sept. 3rd, 1901, at 2278 (1940). He continued, explaining that “if
we would have white supremacy, we must establish it by law—not
by force or fraud.” Id. at 2279. As the Supreme Court later noted,
no one “seriously dispute[s] the claim that this zeal for white su-
premacy ran rampant at the convention.” Hunter, 471 U.S. at 229.
To disenfranchise Black voters without expressly disenfran-
chising Black voters, Alabama’s so-called “Suffrage” Committee
adopted a Swiss-cheese approach, layering various voting re-
strictions on top of each other. Together, those layers “would sub-
vert the guarantees of the fourteenth and fifteenth amendments
without directly provoking a legal challenge.” Underwood, 730
F.2d at 619. The committee settled on a combination of property
tests, literacy tests, residency requirements, a poll tax, and, as rele-
vant here, a felon-disenfranchisement provision, resulting in an
“exceptionally byzantine suffrage scheme.” Id.The lynchpin of the plan—or, as newspapers owned by Ala-
bama’s governor put it at the time, the “milk in the cocoanut
[sic]”—were the county registrars. Doc. 270-3 at 46. The registrars,
through the ability to require character affidavits and impose other
opaque exclusions, had “a powerful set of instruments to shape the
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10 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
state’s voting rolls nearly at-will.” Id. For instance, registrars could
impose (then-permissible) tests, like an “understanding test” on
particular would-be voters and not others. Id. at 47.
Over the years, “[s]ome of the more blatantly discriminatory
selections” were “struck down by the courts.” Hunter, 471 U.S. at
233. Still, though, Black voter registration in Alabama lagged be-
hind (and still lags behind) non-Black voter registration. For in-
stance, in 1957, only 1% of Blacks in Dallas County, Alabama, were
registered to vote. James Blacksher, Voting Rights in Alabama:
1982–2006, 17 S. CAL. REV. L. & SOC. JUST. 249, 252 (2008) (herein-
after “Voting Rights”). Every time the Department of Justice elim-
inated one disenfranchising device, Dallas County implemented a
new one. Id. In fact, in the legislative history for the Voting Rights
Act, Congress cited Dallas County as an example of “[t]he insuffi-
ciency of existing remedies and the need for stronger measures.”
H.R. Rep. 89-439 (1965), U.S.C.C.A.N. 2437, 2441 (1965). And Ala-
bama’s racial gerrymandering of districts led to the seminal one
person, one vote case, Reynolds v. Sims, 377 U.S. 533 (1964). Black-
sher, Voting Rights, supra, at 272.
Unfortunately, the Voting Rights Act (“VRA”) didn’t end
some Alabamians’ determination to restrict Black Alabamians from
voting. In the seventeen years between 1965 and 1982, the Depart-
ment of Justice had to object fifty-nine times to proposed re-
strictions on voting by Alabama or a political subdivision in Ala-
bama because the Department found those restrictions racially dis-
criminatory. Blacksher, Voting Rights, supra, at 254. And in 1982,
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 11
Congress amended the VRA in response to (yet another) Alabama
voting restriction. Id. at 253 (citing City of Mobile v. Bolden, 446
U.S. 55 (1980)).
The list of cases in which federal courts had to enjoin or
strike down Alabama voting restrictions in the 1970s, 80s, and 90s
just goes on and on. See, e.g., Pleasant Grove v. United States, 479
U.S. 462, 472 (1987) (concluding that Pleasant Grove engaged in
purposeful discrimination to minimize future Black voting
strength); United States v. Marengo Cnty. Comm’n, 731 F.2d 1546,
1574 (11th Cir. 1984) (“We hold that the record shows a clear vio-
lation of the results test adopted by Congress in section 2 of the
Voting Rights Act. . . . We note, however, that despite our repeated
requests at oral argument, counsel for the defendants did not pro-
vide this Court with any sign that would indicate that the political
opportunities for Marengo County blacks have improved since
1978.”); Harris v. Siegelman, 695 F. Supp. 517, 525 (M.D. Ala. 1988)
(“The plaintiffs also presented compelling evidence that this his-
tory of racial inhumanity continues into today, and, more specifi-
cally, that, in the tradition established by this state, white poll offi-
cials continue to harass and intimidate black voters. Witnesses de-
tailed numerous instances of where white poll officials refused to
help illiterate black voters or refused to allow them to vote, where
they refused to allow black voters to cast challenged ballots, and
where they were simply rude and even intimidating toward black
voters.”); Dillard v. Crenshaw Cnty., 640 F. Supp. 1347, 1360 (M.D.
Ala. 1986) (“From the late 1800s through the present, [Alabama]
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12 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
has consistently erected barriers to keep black persons from full and
equal participation in the social, economic, and political life of the
state.” (cleaned up)); Dillard v. Baldwin Cnty. Bd. of Educ., 686 F.
Supp. 1459, 1461 (M.D. Ala. 1988) (“[T]he evidence established that
the legislature engaged in a century-long pattern and practice of
switching between local at-large systems and local single-member
district systems as needed to diminish black voting strength.”);
Shaw v. Reno, 509 U.S. 630, 640 (1993) (“Alabama redefined the
boundaries of the city of Tuskegee ‘from a square to an uncouth
twenty-eight-sided figure’ in a manner that was alleged to exclude
black voters, and only black voters, from the city limits.” (citing
Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960))).
And this discrimination did not end with the close of the
twentieth century. Rather, in 2010, the FBI recorded members of
the Alabama State Senate referring to Black Alabamians as “Abo-
rigines” and aiming to quash a referendum that might increase
Black voter turnout. Shelby Cnty. v. Holder, 570 U.S. 529, 584
(2013) (Ginsberg, J., dissenting) (citing United States v. McGregor,
824 F. Supp. 2d 1339, 1334–48 (M.D. Ala. 2011)). That didn’t hap-
pen in 1901 but just a few short years ago.
II. ALABAMA’S HISTORY OF FELON DISENFRANCHISE-
MENT
With this background, I return to Alabama’s felon-disenfran-
chisement statute in particular. At the 1901 Convention, to choose
which crimes—felonies and misdemeanors—would trigger loss of
the right to vote, the Suffrage Committee perused the Alabama
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 13
criminal code for statutes that were “peculiar to the Negro’s low
economic and social status.” Underwood, 730 F.2d at 619.
Though, on paper, the Committee disenfranchised all felons, Ala-
bama did not equally enforce that restriction against Black and
white felons, id. at 620. The Committee also selected a long list of
disenfranchising non-felony crimes, adding the catchall category of
“moral turpitude”:
All idiots and insane persons; those who shall by rea-
son of conviction of crime be disqualified from voting
at the time of the ratification of this Constitution;
those who shall be convicted of treason, murder, ar-
son, embezzlement, malfeasance in office, larceny,
receiving stolen property, obtaining property or
money under false pretenses, perjury, subornation of
perjury, robbery, assault with intent to rob, burglary,
forgery, bribery, assault and battery on the wife, big-
amy, living in adultery, sodomy, incest, rape, misce-
genation, crime against nature, or any crime punish-
able by imprisonment in the penitentiary, or of any
infamous crime or crime involving moral turpitude;
also, any person who shall be convicted as a vagrant
or tramp, or of selling or offering to sell his vote or
the vote of another, or of buying or offering to buy
the vote of another, or of making or offering to make
a false return in any election by the people or in any
primary election to procure the nomination or elec-
tion of any person to any office, or of suborning any
witness or registrar to secure the registration of any
person as an elector.
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14 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Ala. Const. art. VIII, § 182 (1901) (emphasis added).
The Committee achieved its aim. Just two short years later,
by 1903, the felon-disenfranchisement provision applied to roughly
ten times as many Blacks as whites. Underwood, 730 F.2d at 620.
The disparity continues until today. Doc. 215-13 ¶ 28.
Over the years, Alabama considered revisiting the felon-dis-
enfranchisement provision from time to time, though it never
made any changes until 1995. But during the late 1960s and early
1970s, Governor Albert Brewer convened a commission to investi-
gate the need to amend the constitution and to provide a final re-
port to the legislature. That commission then formed a subcom-
mission on Suffrage and Elections. And the subcommission sent a
draft report to the full commission, which suggested moving from
a list of enumerated crimes to one that proposed “general terms,”
whereby “[a]s statutory offenses grow or change, their inclusion or
exclusion becomes a matter of constitutional interpretation or con-
stitutional amendment.” The subcommission on Suffrage and
Elections also proposed “eliminating a long, scattered[,] and redun-
dant list of disqualifying crimes.”
The new draft proposal denied the vote (1) to only those
convicted of a felony involving moral turpitude and (2) the incom-
petent. Though the commission’s minutes do not reflect any de-
bate on the proposed changes, the proposed changes were ap-
proved by a vote of 11-2. The commission’s proposed constitu-
tion—with the new language on felon disenfranchisement—was
introduced into the Alabama Legislature with no debate or changes
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 15
to the language. Ultimately, the Alabama Legislature did not pass
the proposed language.
In the late 1970s, Alabama tried again to amend its constitu-
tion. Governor Fob James convened an informal working group
to amend the constitution, stressing that the “subjects in which [he]
was most interested” were “popular democracy . . . and low prop-
erty taxes.” The working group briefly discussed which felonies
revealed “moral turpitude.” Along these lines, the working group
heard testimony from the ACLU that the phrase “moral turpitude”
was “vague and indefinite” and appeared “unwarranted and dis-
criminatory.” In the end, the working group suggested eliminat-
ing the list of enumerated felonies, thereby simplifying the provi-
sion. Again, the proposed new constitution was never passed.
After a false start in the 1980s, Alabama returned to the
felon-disenfranchisement question in 1995. State Representative
Jack Venable introduced a bill that would amend the felon-disen-
franchisement provision to prohibit only those convicted of felo-
nies of moral turpitude (and the mentally incompetent) from vot-
ing. No debate on the amendment occurred in committee. And
no hearings on the amendment occurred in committee, either.
Rather, the day after Representative Venable introduced the
amendment, the Standing Committee on Constitution and Elec-
tions simply returned it to the House with a favorable report.
Then the full House passed the amendment without any debate or
discussion. At no point did the legislature explain the meaning of
“moral turpitude” in the amendment.
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16 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Once the amendment went to the Senate, it quickly moved
through committee to the floor and passed. After it passed both
houses of the Alabama Legislature, the amendment went to a vote
before the Alabama voters. In an editorial to the public, Repre-
sentative Venable urged the public to pass the amendment and de-
scribed it as “strictly housekeeping.” The Alabama public ap-
proved the change.
The bill had one final step before it became a law. In 1996,
because Alabama had been part of perpetrating “an insidious and
pervasive evil . . . through unremitting and ingenious defiance of
the Constitution” (meaning Jim Crow laws and segregation), it was
required to obtain “preclearance” from the Department of Justice
before it could implement a change to state election law. Shelby
Cnty., 570 U.S. at 535, 537. While Alabama obtained the necessary
approvals, it falsely told the Department of Justice that the bill
didn’t make a change because Alabama was already using the pro-
visions. Maj. Op. at 12–14. But the bill did make a change—it re-
moved a laundry list of felonies and left in its place the ambiguous
“moral turpitude” language, giving county registrars free rein to
reject voting registrations for any crime they saw fit.
And thus began Alabama’s decades-long struggle to explain
what it meant by felonies of “moral turpitude.” As the history of
Alabama’s varied interpretations of the phrase from Amendment
579 show—since 1996, Alabama officials (including local registrars
in the initial years) have construed crimes of “moral turpitude” to
include anywhere from fifteen crimes to all felonies—Alabama’s
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 17
selection of qualifying crimes is most accurately described as arbi-
trary.
As I’ve noted, upon adoption of Amendment 579, Alabama
registrars were inconsistent in deciding which felonies were those
of moral turpitude. Indeed, as the Majority Opinion acknowl-
edges, some registrars refused to register any felons at all. Maj. Op.
at 14–15. As a result, the moral-turpitude provision could be con-
strued so that the same crime could be disqualifying in one county
but not in another.
Various Alabama governmental actors stepped up to fix the
problem. First, in 2005, the Alabama Board of Pardons and Paroles
asked the Attorney General which felonies involved moral turpi-
tude. Ala Op. Atty. Gen. No. 2005-092 (Ala. A.G.), 2005 WL
1121853. Conceding the vague nature of the phrase, the Attorney
General explained that he could not provide “an exhaustive list” of
felonies involving moral turpitude but that he could generate a list
of crimes that Alabama courts had determined to be crimes of
moral turpitude. Id. at *2. The Attorney General’s list had about
fifteen crimes. Id.Second, between 2007 and 2008, the Alabama governor and
the Alabama Administrative Office of the Courts (“AOC”) pro-
duced dueling lists. Doc. No. 269-12 at 2. As background, the
United States sued Alabama to comply with the Help America Vote
Act. Id. at 11 (citing United States v. Alabama, 06-cv-392-WKW
(M.D. Ala.)). The federal judge handling the case appointed the
Alabama governor as a special master. Id. The governor “believed
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18 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
that [his] obligations as [s]pecial [m]aster included making a deter-
mination of what felonies involved moral turpitude.” Id. Accord-
ing to the AOC, the governor’s office had an attorney and a law-
student intern compile a list that ultimately took the position that
about 480 felonies (out of the then-existing 575 felonies under Ala-
bama law) involved moral turpitude. Id. at 11–12. The governor
asked the AOC to review the list. Id. at 12.
The AOC responded that the governor’s list was too expan-
sive and instead identified only seventy or so felonies that it said
involved moral turpitude. Id. In the AOC’s view, the governor’s
list was too broad because it included more than those crimes that
the Alabama courts had said involved moral turpitude. Id. “In light
of the preeminent importance of the right to vote in our country
and also the relatively recent history of voting rights strife, includ-
ing voter and voter registrant intimidation, in [Alabama],” the
AOC wrote, it would “not be a party” to denying citizens the right
to vote. Id.The Alabama Secretary of State insisted that the shorter
AOC list, not the governor’s longer list, be supplied to county reg-
istrars. Id. But the next fall, the AOC received disturbing reports:
county registrars were refusing to register people to vote because
those people had been convicted of crimes on the governor’s list.
Id. In September 2008, the AOC learned that registrars were being
sent lists entitled “Weekly Felon Check” that listed crimes that
were definitively not crimes of moral turpitude. Id. at 13. For
instance, one registrar refused to allow someone to register to vote
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 19
because that person had been convicted of “having more beer in
their car than the law allowed.” Id. Beer, for Pete’s sake!
The arbitrariness didn’t end there. When the AOC followed
up with the governor’s office, it learned that the governor’s list had
been used to disqualify voters. Id. at 15. The AOC sought to cor-
rect the problem so that only the AOC list would be used to dis-
qualify voters. But the governor’s office resisted, replying that “the
big list” was “in the system” and taking it out would be “very ex-
pensive.” Id. Ultimately, the governor’s office did not agree to
change the report until the “end of October” 2008. Id. But that
meant that Alabama enforced the wrong list and arbitrarily prohib-
ited the registration of voters with nonqualifying felonies until just
a week before the 2008 general election. Id.Unsurprisingly, the dueling lists caused confusion. At the
time, two registrars (out of three) had to agree to register someone
to vote. So the process (a best two-out-of-three system that in-
volved no standardized list) led to unpredictable enforcement.
And somehow, the situation got worse still.
In 2014, Secretary of State John Merrill’s office tasked a col-
lege-student-campaign-staffer-turned-employee 11 with compiling
an official list of which crimes involved moral turpitude for inclu-
sion in a registrar’s handbook. The student didn’t know much
11 The record indicates that he was a college student at the time, given his
testimony that he graduated college in 2015.
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20 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
about moral turpitude, so he asked Wikipedia. Yes, Wikipedia.
There, the student pulled the federal statutory list of crimes used
to disqualify applicants from obtaining visas or citizenship and cop-
ied it. The student didn’t check the list against Alabama law and
didn’t do anything to learn more about moral turpitude. Then
this arbitrarily assembled list was sent to state registrars.
Alabama took its next stab at what it meant by felonies of
“moral turpitude” in late 2015. At that time, Secretary Merrill
formed a “Voter Disenfranchisement and Restoration of Voting
Rights Exploratory Committee.” (“The Exploratory Committee”).
The Committee had a subcommittee, chaired by Edward Pack-
ard—Alabama’s Administrator of Elections since 1994—on moral
turpitude. That subcommittee recommended a list of fifteen dis-
qualifying felonies to satisfy the moral-turpitude provision. The
list of crimes of moral turpitude didn’t include crimes like bribery,
public corruption, and perjury. Packard (who drafted the list) ad-
mitted that “there wasn’t any particular reason for excluding”
those crimes. In other words, he conceded the arbitrariness of his
subcommittee’s suggested list.
The subcommittee presented its findings to the Exploratory
Committee. The Exploratory Committee considered the list and
added one other crime: human trafficking. Had the Exploratory
Committee’s list been adopted, Black Alabamians would not have
been disenfranchised at a higher rate than their representation in
the Alabamians-with-felony-convictions population.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 21
Despite the Exploratory Committee’s recommendation,
Secretary Merrill “redirected the discussion” to a longer list (of
about forty crimes) patterned after a 2015 Alabama bill, H.B. 344.
Packard—who was at the meeting and who had drafted Secretary
Merrill’s longer list—didn’t know why Secretary Merrill had ig-
nored the Committee’s recommendation. He didn’t remember
being surprised that no one objected—even though the Committee
had approved a shorter list the previous hour—and said that any
impact the Committee had was in adding crimes—not removing
them. Packard recalled that the Committee had gone through the
longer list and “asked if people thought [particular crimes] should
be removed from the list.”
Along these lines, Packard didn’t remember any objection
to including crimes like voter fraud or public corruption. In fact,
Packard said, there were no set criteria by which crimes were in-
cluded: none were discussed and everyone used their own per-
sonal criteria. He didn’t “recall there being that much discussion”
about the list all.
The longer list was sent to the legislature, introduced as H.B.
282, and ultimately become Alabama Code Section 17-3-30.1,
which lists felonies that automatically disenfranchise those con-
victed of them as felony crimes of moral turpitude. ALA. CODE §
17-3-30.1. Section 17-3-30.1 has a discriminatory impact: of those
Alabamians convicted of a felony, Black Alabamians are more
likely to be disenfranchised than white Alabamians by a rate of 35%
of whites to 40% of Blacks.
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22 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
***
This sad history brings me to our case. The Plaintiff-Appel-
lants are a group of Black Alabamians with convictions that cur-
rently qualify as felony crimes of “moral turpitude” under Section
17-3-30.1. They are therefore unable to exercise their constitution-
ally protected right to vote under Amendment 579 and Section 17-
3-30.1, and they challenge those provisions. The district court
dismissed or granted summary judgment on all their claims. On
appeal, they press just three: (1) that Alabama’s 1996 reenactment
of its felon-disenfranchisement provision in its constitution is still
tainted by the 1901 racist enactment and therefore violates the
Equal Protection clause; (2) that Alabama’s 1996 reenactment and
subsequent statutory clarification of which felons are disenfran-
chised constitute “punishment” and thus violate the Ex Post Facto
Clause; and (3) that Alabama’s voter-registration form doesn’t
comply with the National Voter Registration Act’s requirements.
I must concur with the Majority Opinion as to the first claim
because our precedent requires it, even though it seems clear to me
that Alabama has not done enough to cleanse the taint of Amend-
ment 579’s discriminatory origins. As to the Ex Post Facto Clause
and VRA claims, though, I respectfully dissent.
III. PROPERLY ANALYZED, ALABAMA’S REENACTMENT
VIOLATES THE EQUAL PROTECTION CLAUSE
On a blank slate, I would remand this case to the district
court for a trial on the Appellants’ Equal Protection Clause claim
because Amendment 579 didn’t erase the racist taint of Alabama’s
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 23
felon-disenfranchisement provision. Unfortunately, I don’t write
on a blank slate, and our precedent requires me to vote to affirm.
But in my view, our precedent is wrong: it allows states to
simply reenact racially discriminatory laws without debate or dis-
cussion, entirely undercutting the purpose of the Equal Protection
Clause litigation that found the initial provision to have been en-
acted for a discriminatory reason in the first place. We should re-
visit our precedent. In Part III.A, I explain why our precedent re-
quires me to vote to affirm and why our precedent is wrong. In
Part III.B, I sketch out what the proper test should look like and
apply it to this case.
A. Our precedent sets the bar too low to remove discriminatory
taint from an earlier law.
Our precedent sets a meaningless “bar” to reenact discrimi-
natory laws and is out of step with the Supreme Court’s jurispru-
dence. Indeed, the standard to survive an Equal Protection Clause
challenge in this Circuit is lower when a state reenacts a law that a
court has already found to be enacted with discriminatory intent
than when a state enacts a law without a predecessor that was
found to have been enacted with discriminatory intent. In other
words, it’s easier for a state to reenact a law with racist origins than
it is for a state to enact a law without racist origins.
Johnson v. Governor of State of Florida is our seminal prec-
edent on reenactments of laws that were originally enacted with
discriminatory intent. 405 F.3d at 1223. There, we approved Flor-
ida’s reenactment of its discriminatory disenfranchisement
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24 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
provision because the bill went through what we said was a delib-
erative process: the law went through a committee, then the full
legislature, and then was approved by the voters. Id. at 1224. We
said that was enough. Id. And we rejected the notion that the Flor-
ida legislature had to explicitly discuss (and discount) the racist mo-
tivation underlying the earlier law. Id. We also did not consider
requiring the state to provide a legitimate, non-discriminatory rea-
son for reenacting the law that had previously been found to be
discriminatory.
Alabama’s reenactment sufficiently parallels Florida’s pro-
cess. Like Florida’s version, Alabama’s Amendment 579 went
through a committee, then the full legislature, and then was ap-
proved by the voters.
To be sure, Alabama’s process was less deliberative than
Florida’s. Representative Venable introduced the amendment into
committee, where it spent a single day before being reported out
favorably. No hearings were held. The next week, Representa-
tive Venable offered it for a second reading, and it was brought to
the House floor, where in Representative Venable’s words, “lim-
ited, really no debate on the bill” occurred. But I can’t say that
Alabama’s process is distinguishable in any meaningful way from
the process we approved in Johnson. After all, as Judge Barkett
pointed out in her dissent, as we used the term, “the adjective ‘de-
liberative’ describes the procedural aspects of the decision, [but] it
need not include any substantive component at all.” Johnson, 405
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 25
F.3d at 1246 (Barkett, J., dissenting). So I am bound to vote to af-
firm.
Our precedent is wrong, though. Our precedent requires
only bicameralism and presentment to “cleanse” a law of discrimi-
natory taint. I see two problems with our minimal “test”: it is in-
consistent with the Supreme Court’s jurisprudence in Arlington
Heights, and it is so low a bar as to be meaningless.
As to Arlington Heights, the Supreme Court has explained
that we should consider a variety of indicators to determine
whether the government enacted a law for discriminatory reasons
(I discuss these factors later), in violation of the Equal Protection
Clause. Arlington Heights, 429 U.S. at 267–68. But in Johnson, we
skipped Arlington Heights’s multifactor test altogether in favor of
a single question: did the law go through bicameralism and pre-
sentment? 405 F.3d at 1224. We didn’t even mention the factors
the Supreme Court enumerated in Arlington Heights. Id.It cannot be that the bar is lower in a case like this—with a
past finding of discrimination—than in an ordinary case. That is, if
Alabama had passed this amendment with a disparate impact in the
first instance, we would perform an Arlington Heights analysis to
determine whether Alabama had discriminatory intent. But now
that Alabama is reenacting an amended version of a provision the
Supreme Court determined was originally adopted for discrimina-
tory reasons, somehow, Alabama doesn’t have to pass an Arlington
Heights analysis? That can’t be right.
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26 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Second, even taken on its own terms, the Johnson bicamer-
alism-and-presentment requirement is meaningless. How could
that requirement ever be unsatisfied in the real world? As a federal
court, we will likely never be asked to rule on a law or constitu-
tional amendment that didn’t go through that very process. In fact,
a challenge before that process is completed might be unripe. But
our standard—which doesn’t require the legislature to state a non-
discriminatory basis for the new law that is actually furthered by
the new law—lays the bar reenactments must clear flat on the
floor. Any law can shuffle right over it so long as legislators are not
obtuse enough to state out loud any discriminatory intentions.
Such a requirement is meaningless. Cf. Dep’t of Comm. v. New
York, 139 S. Ct. 2551, 2575–76 (“[We cannot ignore the disconnect
between the decision made and the explanation given. Our review
is deferential, but we are ‘not required to exhibit a naiveté from
which ordinary citizens are free.’ United States v. Stanchich, 550
F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.). The reasoned explana-
tion requirement of administrative law, after all, is meant to ensure
that agencies offer genuine justifications for important decisions,
reasons that can be scrutinized by courts and the interested public.
Accepting contrived reasons would defeat the purpose of the en-
terprise. If judicial review is to be more than an empty ritual, it
must demand something better than the explanation offered for
the action taken in this case.”).
Think about how reenacting court-enjoined discriminatory
legislation unfolds under our precedent. At Time 1, a legislature
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 27
votes with a discriminatory purpose to prevent minority citizens
from voting. Plaintiffs challenge the law or regulation and prove
that the legislature acted with discriminatory intent, no small feat.
At Time 2 (which, under our precedent, could be next year), a leg-
islature reenacts the exact same statute, or tweaks the original stat-
ute a little bit, and the law will sail through a court challenge, so
long as no legislator is foolish enough to say the quiet part out loud.
And after all, what legislator in modern times is? Cf. Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987) (“It is rare that
direct evidence of discrimination exists.”); see also Price Water-
house v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concur-
ring), superseded in part by The Civil Rights Act of 1991, Title I, §
107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e-2(m)) (“[T]he
entire purpose of the McDonnell Douglas prima facie case is to
compensate for the fact that direct evidence of intentional discrim-
ination is hard to come by.”).
Our precedent effectively clothes laws with a presumption
of good faith—even if the law is a reenacted version of a law that
has been established to have been enacted originally for a discrim-
inatory purpose. See Johnson, 405 F.3d 1214. But when the impe-
tus for the original version of a law was racial discrimination and
the law is reenacted after an express finding of taint, the Supreme
Court has suggested that the presumption that the government
acted in good faith should not persist: “In these cases, we do not
confront a situation like the one in Hunter [where the law was
never struck down and therefore never reenacted]. Nor is this a
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28 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
case in which a law originally enacted with discriminatory intent is
later reenacted by a different legislature.” See Abbott v. Perez, 138
S. Ct. 2305, 2325 (2018) (reversing lower courts for not applying
presumption of good faith).
For good reason. A presumption of good faith when a past
finding of discriminatory animus exists isn’t consistent with other
areas of Equal Protection Clause jurisprudence. Take employ-
ment-discrimination cases, for instance. We have explained that
discrimination claims under the Equal Protection Clause (and 42
U.S.C. § 1981) and discrimination claims under Title VII “have the
same requirements of proof and use the same analytical frame-
work.” Lewis v. City of Union City, 918 F.3d 1213, 1220 n.5 (11th
Cir. 2019) (en banc) (citation and quotation marks omitted).
In those types of cases, in the usual situation—when no di-
rect evidence of discrimination exists—we use the McDonnell
Douglas burden-shifting framework to evaluate a claim. See id. at
1220–21. Under that framework, the plaintiff must carry the initial
burden of setting out a prima facie case of discrimination “by show-
ing (1) that she belongs to a protected class, (2) that she was sub-
jected to an adverse employment action, (3) that she was qualified
to perform the job in question, and (4) that her government em-
ployer treated ‘similarly situated’ employees outside her class more
favorably.” Id. Once the plaintiff establishes these elements, the
burden shifts to government defendant “to articulate a legitimate,
nondiscriminatory reason for its actions.” Id. at 1221. If the gov-
ernment satisfies that burden, the plaintiff then must establish that
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 29
the government’s stated reason was “a pretext for unlawful dis-
crimination, an obligation that merges with the plaintiff’s ultimate
burden of persuading the factfinder that she has been the victim of
intentional discrimination.” Id. (cleaned up).
And that framework makes sense. It accounts for reality—
in particular, both the near-impossibility of proving discriminatory
purpose through direct evidence in modern times and the truth
that the government doesn’t act without a purpose—so if its pur-
pose is not discriminatory, the government should be able to artic-
ulate that purpose and show how that purpose is advanced by its
action.
The employment-discrimination Equal Protection Clause
analysis differs from the legislative Equal Protection Clause analy-
sis in one key way: there is no presumption that the governmental
employer acted in good faith. And that’s true even though there’s
no past finding of intentional discrimination by the government
(employer) against the plaintiff.
In the discriminatory-taint-legislation context, though, the
situation is just the opposite: we’ve found discriminatory intent
about the current law’s immediate predecessor. But under our
precedent, we still give the current law a presumption of good
faith. That is illogical.
Our precedent’s sole taint-cleansing “requirement” (going
through the “deliberative process”) is wholly insufficient for ensur-
ing the government is not continuing to violate the Equal
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30 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Protection Clause. The requirement provides no assurance that
the reenacted law that was previously found to have been adopted
for discriminatory reasons was reenacted for nondiscriminatory
reasons.
B. A Better Way
In my view, if we are really interested in ensuring the enact-
ment of an amended version of an acknowledged racist and dis-
criminatory law has been cleansed of its taint, we should be faith-
fully applying the Arlington Heights factors to the amended ver-
sion of the reenacted law. This type of inquiry considers, among
other things, whether the amended law has a disparate impact and
if so, whether the new law advances the stated purpose for the law
so as to outweigh the harm that the disparate impact of what began
as a tainted law imposes. Only an inquiry like this, which peers
under the hood to evaluate the legitimacy and sincerity of a state’s
reason for reenactment, addresses the discriminatory-taint prob-
lem. When, as here, the amended law has a disparate impact and
does nothing to further (and in fact contradicts) its stated purpose,
it cannot cleanse the taint of its discriminatory origins.
i. How to Remove Discriminatory Taint
I begin by reviewing the framework under which we evalu-
ate Equal Protection Clause challenges to legislation that has not
previously been found to be discriminatory. I then compare that
situation to the one here, where we must consider whether an
amended version of a reenacted statute that was previously found
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 31
to have been enacted for a discriminatory reason has been cleansed
of its taint.
The Supreme Court has explained that the Equal Protection
Clause prohibits only laws that have both (1) a racially dispropor-
tionate impact and (2) a racially discriminatory purpose. Hunter,
471 U.S. at 228 (citing Washington v. Davis, 426 U.S. 229, 239
(1976)). Once plaintiffs have shown a disparate impact, we con-
sider direct and indirect evidence of the legislature’s motivation or
purpose in enacting the statute. Arlington Heights, 429 U.S. at 267;
Burton v. Belle Glade, 178 F.3d 1175, 1189 (11th Cir. 1998) (“We
evaluate all available direct and circumstantial evidence of intent in
determining whether a discriminatory purpose was a motivating
factor in a particular decision.”).
In a traditional Equal Protection analysis, we consider sev-
eral factors: “(1) the impact of the challenged law; (2) the historical
background; (3) the specific sequence of events leading up to its
passage; (4) procedural and substantive departures; [] (5) the con-
temporary statements and actions of key legislators;” (6) “the fore-
seeability of the disparate impact; (7) knowledge of that impact,
and (8) the availability of less discriminatory alternatives.” Greater
Birmingham Ministries v. Sec’y of State of Ala., 992 F.3d 1299, 1322
(11th Cir. 2021) (citing Arlington Heights, 429 U.S. at 267–68).
We’ve explained that these factors are not exhaustive. Jean v. Nel-
son, 711 F.2d 1455, 1485 (11th Cir. 1983). To determine whether a
law violates the Equal Protection Clause in cases where no court
has ruled that a predecessor provision of the challenged provision
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32 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
violated the Equal Protection Clause, we apply these Arlington
Heights factors (the Supreme Court has not yet decided a reenact-
ment case). See Hunter, 471 U.S. at 233 (“As such, [the provision]
violates equal protection under Arlington Heights.”).
Although Arlington Heights governs our Equal Protection
Clause analysis of laws with a discriminatory effect, our precedent
does not appear to consider the Arlington Heights factors at all in
a challenge to a reenacted law that was previously found to have
been enacted for a discriminatory reason. Rather, our sole reenact-
ment case assumed that the original statute had been passed with
discriminatory animus. Johnson, 405 F.3d at 1223. Yet without
mentioning the Arlington Heights factors and based solely on the
reenacted law’s bicameralism and presentment, we concluded that
the readoption had no indicia of discriminatory animus. Id.In my view, this makes no sense. It should be harder, not
easier, for a law that has been reenacted after a discriminatory find-
ing to survive an Equal Protection Clause challenge than it is for a
law facing an Equal Protection Clause challenge for the first time
to satisfy such an inquiry. So the Arlington Heights factors should
govern reenactment challenges to at least the same extent that they
control the analysis in Equal Protection challenges to laws that
have not previously been found to be discriminatory.
The Arlington Heights factors allow for consideration of bi-
cameralism and presentment, as Johnson considers. More specifi-
cally, the fourth Arlington Heights factor requires consideration of
“procedural and substantive departures.” Greater Birmingham
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 33
Ministries, 992 F.3d 1299 at 1322. A failure to engage in bicameral-
ism and presentment could indicate a “procedural . . . departure[].”
Id.But that factor does not end the Arlington Heights inquiry.
Rather, we consider seven other factors, as well as the other half of
the fourth factor—“substantive departures.” The term “substan-
tive departures” refers to substantive irregularities—for instance, a
law that does the opposite of its claimed purpose. The category of
“substantive departures” accounts for the fact that the state has ei-
ther failed to give a reason for reenacting its law that a federal court
has previously found to have been enacted for discriminatory rea-
sons or failed to provide a reason that matches the effect of the
reenacted law. See Arlington Heights, 429 U.S. at 564–65 (“Sub-
stantive departures too may be relevant, particularly if the factors
usually considered important by the decisionmaker strongly favor
a decision contrary to the one reached.”); cf. Dep’t of Comm., 139
S. Ct. at 2576 (“If judicial review is to be more than an empty ritual,
it must demand something better than the explanation offered for
the action taken in this case.”).
Either way, a substantive departure is a telltale sign that the
state lacks a nondiscriminatory reason for reenactment. After all,
as I’ve noted, the government doesn’t act without a purpose. And
when what the legislature says it wants to do and what it actually
does don’t match, we can find evidence of animus. Cf. Williams v.
Valdosta, 689 F.2d 963, 975 (11th Cir. 1982) (reversing summary
judgment where employee was denied promotion for not passing
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34 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
an exam but adherence to the promotional policy was “incon-
sistent and arbitrary at best”). As Justice Thomas has recognized,
“if a policy remains in force, without adequate justification and de-
spite tainted roots and segregative effect, it appears clear—clear
enough to presume conclusively—that the State has failed to dis-
prove discriminatory intent.” United States v. Fordice, 505 U.S.
717, 747 (1992) (Thomas, J., concurring). For this reason, when an
earlier finding of discriminatory intent exists, in a reenactment
challenge, the most telling aspect of the Arlington Heights factors
is any “substantive departure.”
To see why, look at employment actions. Except for dis-
crimination, a true reason for taking adverse action against an em-
ployee favorably resolves an employment-discrimination action for
the employer. So why offer a false reason—unless, of course, the
true reason is discrimination, which would impose liability on the
employer. The same is true in the legislation context. Just as a false
reason for an employment action against a member of a protected
group can suggest discrimination under the Equal Protection
Clause, a false reason for the enactment of a law that has a discrim-
inatory impact can indicate pretext for discrimination. And that is
especially the case when the law is the reenactment of a law that a
federal court has previously expressly found to have been enacted
for a discriminatory purpose.
To purge that taint, to assure citizens and courts that a leg-
islature is not merely “taint laundering,” the reenacting legislature
must identify its policy goal and justify any disparate impact, see
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 35
W. Kerrel Murray, Discriminatory Taint, 135 HARV. L. REV. 1190,
1244 (2022), as part of its showing that no impermissible substan-
tive departures have occurred in the legislative process. Otherwise,
“taint is a time-wasting paper tiger,” id. at 1264, because a state can
reenact the same law that’s already been struck down as discrimi-
natory—as long as the state doesn’t say it intends to discriminate.
See Palmer v. Thompson, 403 U.S. 217, 225 (1971) (“[T]here is an
element of futility in a judicial attempt to invalidate a law because
. . . [i]f the law is struck down . . . it would presumably be valid as
soon as the legislature or relevant governing body repassed it for
different reasons.”). 12
ii. Alabama’s reenactment doesn’t remove the discriminatory
taint that the Supreme Court found in Hunter.
With that in mind, I apply the Arlington Heights factors
here. And in the light most favorable to the Plaintiffs-Appellants
(as the nonmoving party), those factors reveal a genuine issue of
fact about whether Alabama adopted Amendment 579 and its def-
initions of “moral turpitude” with discriminatory animus.
First, the Plaintiffs-Appellants have submitted evidence that
the reenactment has a racially discriminatory effect. Of Alabami-
ans convicted of felonies, 40% of Blacks and 35% of whites are
12 Cf. Ne. Fla. Chapter of Associated Gen. Contractors v. Jacksonville, 508
U.S. 656, 662 (1993) (refusing to deem a case moot if defendant repealed a
challenged statute and replaced “it with one that differ[ed] only in some insig-
nificant respect”).
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36 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
disenfranchised. 13 Comparatively, that means that 14% more of
the Black felon population than the white felon population is dis-
enfranchised. 14
So I proceed to the Arlington Heights factors. Of those, all
but two weigh against Alabama.
I begin with the second part of the fourth factor—“proce-
dural and substantive departures”—because, as I’ve explained, the
inquiry into substantive departures is the most revealing (and
therefore the most important) in a case when a state reenacts a law
that a federal court has previously established was enacted origi-
nally for discriminatory reasons.
Here, the “substantive departures” factor weighs heavily
against Alabama for four reasons.
One, Alabama’s only stated reason for adopting Amend-
ment 579 is inconsistent with what Amendment 579 actually did.
That makes Alabama’s stated reason suspect.
13 Because the history of Alabama’s adoption and application of the constitu-
tional amendment shows that the amendment’s reference to felony crimes of
“moral turpitude” is meaningless in the absence of the statute, I use the statu-
tory definition interchangeably with the amendment’s reference to felonies of
“moral turpitude.”
14 40 divided by 35 is 1.14. See Hunter, 471 U.S. at 227 (noting that the Elev-
enth Circuit there found that Amendment 579’s predecessor made it “at least
1.7 times as likely [that Blacks would] suffer disenfranchisement” as whites).
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 37
Indeed, Alabama’s only stated purpose for adopting Amend-
ment 579—“strictly housekeeping”—was, at best, an inaccurate de-
scription of what the amendment actually did to Alabama’s felon-
disenfranchisement law. When we think of housekeeping, we
think of cleaning things up—in the context of legislation, clarifying
the law.
Amendment 579 did the exact opposite. Before the state
adopted the amendment, Alabama’s constitution disenfranchised
all convicted felons. Though it did so for an impermissible and dis-
criminatory reason, the provision was clear on its face: convicted
felons knew the law said they could not vote. But after adoption
of Amendment 579, no one—not even the State of Alabama—
knew which convicted felons were prohibited from voting. The
law was in such a state of disarray that different local registrars en-
forced the amendment to apply to different crimes. An amend-
ment that throws so much uncertainty into a once-clear law cannot
accurately be described as one adopted for “strictly housekeeping”
reasons.
Nor does Amendment 579—at least as Alabama has con-
strued it—seem to match with the usual reasons given for disen-
franchising those convicted of felonies of moral turpitude. Crimi-
nals historically were disenfranchised because they did “damage to
the ‘collective honor’ of the polis.” Aristotle, for instance, “be-
lieved that ‘criminals who break laws cannot govern themselves
and hence are not fit to govern others.’” And Rousseau asserted
that “every offender who attacks the social right becomes through
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38 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
his crimes a rebel and a traitor to his homeland; he ceases to be one
of its members by violating its laws, and he even wages war against
it.”
As for disenfranchising those convicted of felonies of moral
turpitude in particular, “moral turpitude,” insofar as it has gener-
ally been defined, involves “fraud” or “fraudulent conduct,” see
Jordan v. De George, 341 U.S 223, 227–28 (1951). 15 Indeed, the
Supreme Court has said that, “[w]ithout exception, federal and
state courts have held that a crime in which fraud is an ingredient
involves moral turpitude.” Id. at 227.
But that doesn’t seem to be what Alabama thinks a crime of
“moral turpitude” is. Consider what’s not on Alabama’s list. Ala-
bama’s version of “moral turpitude” doesn’t disenfranchise those
who’ve committed voting-fraud-related felonies like deceiving an
elector in preparation of her ballot, 16 altering another person’s bal-
lot, 17 failing to count legally cast absentee votes, 18 illegally voting
15 The term “moral turpitude” was first used in an 1891 immigration statute
accompanied without comment or debate. Brian C. Harms, Redefining
“Crimes of Moral Turpitude”: A Proposal to Congress, 15 GEO. IMM. L.J. 259,
262 (2001) (“The lack of legislative history makes it impossible to know
whether Congress considered the term to be a new criterion, or . . . merely a
synthesis of previously recognized distinctions.”) (cleaned up).
16 ALA. CODE § 17-17-19.
17 ALA. CODE § 17-17-24(a).
18 ALA. CODE § 17-17-27.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 39
more than once in an election (second violation),19 willfully and
intentionally signing the name of another elector in a poll
book,20 bribery of public servants, 21 and perjury. 22 So Alabama
doesn’t disenfranchise those who’ve been convicted of election-re-
lated or government-corruption-related fraud.
This underinclusiveness “raises serious doubts about
whether the government is in fact pursuing the interest” tradition-
ally invoked for felon-disenfranchisement provisions that pertain
to crimes of moral turpitude. Cf. Brown v. Ent. Merchants Ass’n,
564 U.S. 786, 802 (2011); see also Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1125 (11th Cir. 1993) (“[T]his underinclusiveness shows
that the City’s claim that it was motivated by safety concerns is in
fact pretextual.”). In other words, Alabama says that it is concerned
about disenfranchising people who do collective damage to the po-
lis’s honor (including election integrity) through what have histor-
ically been viewed as fraud-related crimes. But then Alabama ex-
empts from its felon-disenfranchisement provision those convicted
of election-related fraud—which goes to the heart of the collective
honor of our polis.
19 ALA. CODE § 17-17-36.
20 ALA. CODE § 17-17-15.
21 ALA. CODE § 13A-10-61.
22 ALA. CODE § 13A-10-101.
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40 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Let’s just say it: that’s really odd. And the incongruity be-
tween the traditional purpose for disenfranchising those convicted
of crimes of moral turpitude and those Alabama has actually disen-
franchised—or more accurately, has not disenfranchised—should
make a court question whether the traditional purpose of such a
provision is in fact Alabama’s purpose here.
Two, Amendment 579 employs vague language—“moral
turpitude”—that was selected in Amendment 579’s predecessor for
a discriminatory purpose and was enforced in a discriminatory
way. Not coincidentally with that history, it has long been recog-
nized that “the loose terminology of moral turpitude hampers uni-
formity.” Note, Crimes Involving Moral Turpitude, 43 HARV. L.
REV. 117, 121 (1930). As Justice Robert Jackson pointed out seven
decades ago, the phrase was “not one which has settled significance
from being words of art in the profession. If we go to the diction-
aries, the last resort of the baffled judge, we learn little except that
the expression is redundant, for turpitude alone means moral wick-
edness or depravity and moral turpitude seems to mean little more
than morally immoral.” Jordan, 341 U.S at 235 (Jackson, J., dissent-
ing).
Using a vague term like “moral turpitude” gives local regis-
trars, who were the ultimate arbiters of what qualified as felonies
of moral turpitude in the years immediately after Amendment 579
was adopted, carte blanche to discriminate. Indeed, the govern-
ment in Jordan conceded that “moral turpitude” was “a term that
[was] not clearly defined,” and that “[t]he various definitions of
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 41
moral turpitude provide no exact test by which we can classify the
specific offenses here involved.” Id. In Justice Jackson’s view,
“moral turpitude” was an “undefined and undefinable standard.”
Id. In other words, we know that Alabama in 1901 used the phrase
“moral turpitude” for racially discriminatory reasons. Hunter, 471
U.S. at 233. So its use of that same phrase again should trigger
closer inquiry.
Alabama is of course free to use the same phrase again. But
its unexplained choice to do so—especially when Alabama itself
had not even settled on a definition for the term—counsels against
finding the earlier impermissible intent was cleansed.
Three, and relatedly, Alabama arbitrarily enforced the
amendment in the immediate aftermath of its ratification, leaving
it entirely to local registrars to construe the meaning of the term
“moral turpitude.” As Clay Helms, the Assistant Director of Elec-
tions and Supervisor of Voter Registration, acknowledged in his
deposition, the moral-turpitude provision meant different things in
different counties because local registrars made individual deci-
sions without binding guidance from the state. As a result, the
moral-turpitude provision could be interpreted so that the exact
same crime could be disqualifying in one county but not another.
That arbitrary enforcement of Amendment 579 undermines any
conceivable legitimacy behind Alabama’s reason or the traditional
reason for disenfranchising those convicted of felonies of moral tur-
pitude.
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42 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
Four, Alabama’s whipsaw change in definitions of “moral
turpitude” further belies the notion that Alabama adopted Amend-
ment 579 for a legitimate purpose. As the history of the provision’s
interpretation shows, Alabama went from leaving it up to the local
registrars to construe the phrase to categorizing just 15 crimes as
involving moral turpitude to including over 480—with stops along
the way. Compare the Exploratory Committee’s list, Doc. 215-13
¶ 39, with the Governor’s list, Doc. 269-12 at 11–12. The huge var-
iance in Alabama’s definition of felonies of “moral turpitude” over
the years is perhaps unsurprising given that Alabama never had a
meaning of the phrase in mind when it adopted Amendment 579
and instead treated the task of determining qualifying convictions
as a complete afterthought, assigning everyone from interns to
committees to tell Alabama whom it had disenfranchised. But the
point is this: Alabama’s process of determining what qualifies as a
felony of moral turpitude was completely arbitrary. That sheer ar-
bitrariness casts doubt on any conclusion that Alabama adopted
Amendment 579 for a legitimate purpose.
In sum, on the substantive-departure inquiry, the mismatch
between Alabama’s stated purpose in adopting Amendment 579
and the actual effect of that Amendment (not to mention the sheer
arbitrariness of how Alabama has construed Amendment 579)
strongly weighs in favor of finding discriminatory intent.
Almost all the other Arlington Heights factors also weigh in
favor of finding discriminatory intent.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 43
As to the first factor—“the impact of the challenged law”—
as I’ve already noted, Alabama’s felon-disenfranchisement provi-
sion has a racially disparate effect because under it, of Alabamians
convicted of felonies, 40% of Blacks are disenfranchised and 35% of
whites are disenfranchised. 23 So this factor weighs against Ala-
bama.
On the second factor—“the historical background”—that
also figures heavily in favor of a finding of intent here. Alabama
has a long, long history of racial discrimination in general—espe-
cially in the voting context. See supra at 6–22. Of course, the past
is the past. But here, some of the discriminatory past is not so long
ago. After all, it was less than fifteen years ago when Alabama state
senators were caught on video referring to Blacks as “Aborigines”
and strategizing to reduce the Black-voter turnout. Shelby Cnty.,
570 U.S. at 584 (Ginsberg, J., dissenting). So we have direct evi-
dence of discriminatory intent by Alabama legislators not just in
the distant past but even after Amendment 579 was adopted. We
cannot ignore that under the Arlington Heights framework. And
this factor also weighs heavily against Alabama.
I combine my consideration of the third factor—“the specific
sequence of events leading up to [the law’s] passage”—the “proce-
dural . . . departures” aspect of the fourth factor, and the fifth
23 Consideration of a law’s disparate impact occurs twice in an Equal Protec-
tion Clause analysis—once on its own as a requirement and again as part of
the factor-based inquiry into intent. Of course, the analysis is the same here.
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44 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
factor—“the contemporary statements and actions of key legisla-
tors.” As I’ve mentioned, after its introduction on the floor, the
amendment underwent no discussion in committee. Yet the day
after introduction, the Standing Committee on Constitution and
Elections returned it to the House with a favorable report. The
full House passed the amendment without any debate or discus-
sion. The amendment moved to the Senate, and it quickly moved
through committee to the floor and passed. After it passed both
houses of the Alabama Legislature, the amendment survived a vote
by the Alabama voters. To be sure, the fact that the bill went
through bicameralism and presentment (and was approved by the
voters) reveals no “procedural . . . departures” and puts some
weight on the scale in Alabama’s favor.
But then again, Alabama adopted the amendment (complete
with the “moral turpitude” language) with no discussion—so we
can’t evaluate “the contemporary statements and actions of key
legislators.” And the law went through bicameralism and present-
ment without discussion after the unsuccessful lead-ups to the 1996
adoption, where Alabama heard evidence from the ACLU that the
amendment’s use of the phrase “moral turpitude” was “vague and
indefinite” and appeared “unwarranted and discriminatory.”
Given this objection, Alabama’s historic use of the phrase “moral
turpitude” to disenfranchise Blacks through Amendment 579’s pre-
decessor, and Alabama’s lack of definition for “moral turpitude” at
the time of Amendment 579’s adoption, that the amendment en-
dured utterly no discussion on its way to adoption is certainly
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 45
curious. And in that respect, it seems to me to outweigh any
weight for Alabama that bicameralism and presentment otherwise
would have accorded.
As to the sixth factor—“the foreseeability of the disparate
impact”—that also weighs against Alabama. For starters, Alabama
had historically used the phrase “moral turpitude” to disenfran-
chise Black voters with Amendment 579’s predecessor. Plus, the
ACLU warned Alabama previously that the phrase was “discrimi-
natory” and “vague.” Even with that historic knowledge, Alabama
still chose to use the phrase “moral turpitude” without defining it—
and then it assigned its local registrars to construe it. It’s hard to
imagine how it would have been unreasonable for Alabama to
have foreseen the likelihood of the Amendment’s discriminatory
effect.
On the seventh factor—“knowledge of [the discriminatory]
impact”—the record does not include direct evidence that legisla-
tors who voted in favor of what became Amendment 579 would
have a discriminatory impact. So I do not weigh that against Ala-
bama. Still, it’s hard to understand how Alabama would not have
known, given its history of using the phrase “moral turpitude” for
the very purpose of disenfranchising Blacks, the ACLU’s warning,
and Alabama’s failure to attempt to define the phrase “moral turpi-
tude” in the Amendment. Indeed, against that background, use of
the phrase “moral turpitude” almost seems designed to inflict a dis-
criminatory impact.
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46 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
On the eighth factor—the availability of less discriminatory
alternatives—the Plaintiffs-Appellants do not point to any. So I
weigh this factor in Alabama’s favor.
In short, only one factor weighs against a finding of discrim-
inatory intent. But several—and some heavily—support the no-
tion that Amendment 579 flunks its Equal Protection Clause chal-
lenge. If our precedent were aligned with the Supreme Court’s in-
structions—and common sense—we would remand for a jury to
decide whether these indicators prove that the legislator acted with
discriminatory intent. So if I were not confined by our precedent,
I would conclude that Amendment 579 did not cleanse the discrim-
inatory taint of Alabama’s 1901 felon-disenfranchisement provi-
sion.
IV. THE FELON DISENFRANCHISMENT STATUTE VIO-
LATES THE EX POST FACTO CLAUSE.
I would also conclude that Alabama’s felon-disenfranchise-
ment law is an unconstitutional ex post facto punishment. 24
24 The Plaintiffs-Appellants also challenge the 1996 amendment—not just the
2017 statute—under the Ex Post Facto Clause. As far as I can tell, only one
plaintiff was convicted of a crime before 1996: a woman who was convicted
of first-degree murder in 1995. But those with murder convictions were dis-
qualified from voting both before and after 1996, so there is no ex post facto
problem with her disqualification. Compare ALA. CONST. § 182 (1901), with
ALA. CONST. § 177(b) (1996).
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 47
The Ex Post Facto Clause prevents governments from im-
posing new criminal sanctions on conduct that has already oc-
curred. Weaver v. Graham, 450 U.S. 24, 30 (1981) (citing U.S.
CONST. Art. I, § 9, cl. 3). That prohibition ensures that people have
“fair notice” of the consequences for breaking the law. Id.
The Ex Post Facto Clause prohibits only punishments. Id.,
So we begin our Ex Post Facto Clause analysis by evaluating
whether a law is punitive, which turns on the legislative intent.
Smith v. Doe, 538 U.S. 84, 92 (2003). If the legislature expressed its
intention for the statute to be punitive, then our inquiry ends. Id.But even if the legislature didn’t so intend, a law may still be puni-
tive. Id. If the statutory scheme is “so punitive either in purpose
or effect,” then we deem the scheme to be criminal. Id. We use
the Kennedy v. Mendoza-Martinez factors to assess whether a stat-
utory scheme is sufficiently punitive to implicate the Ex Post Facto
Clause. Id. at 97 (citing 372 U.S. 144 (1963)). Here, the amendment
and the statute contain no express indication that they are intended
as punishment. So we must turn to the Mendoza-Martinez factors.
Before I begin, I note two assumptions my analysis makes
because they don’t matter to the outcome, and the Majority Opin-
ion has opined on them. First, I assume that even though we’ve
previously said that felon disenfranchisement is always punitive, 25
25 Johnson, 405 F.3d at 1218 n.5, 1228; Jones v. Gov. of Fla. (“Jones I”), 950
F.3d 795 (11th Cir. 2020); and Jones v. Gov. of Fla (“Jones II”), 975 F.3d 1016(11th Cir. 2020) (en banc).
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48 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
those statements were dicta and therefore nonbinding. Maj. Op. at
26–31. Second, I assume that Trop v. Dulles, 356 U.S. 86 (1958),
stands for only the proposition that disenfranchisement may (or
may not) be punitive. Maj. Op. at 31–33. From that assumption,
the Majority Opinion’s conclusion that our sister circuits have mis-
read Trop follows.
At the first step of the Ex Post Facto analysis, I also agree
with the Majority Opinion that the text of Amendment 579 isn’t
clear on whether Alabama intended felon disenfranchisement to be
civil or criminal. Maj. Op. at 33–35. But that’s not the end of the
analysis because the Supreme Court has instructed lower courts to
determine if—even though the legislature didn’t affirmatively in-
tend for a regulation to be punitive—the regulations are so severe
that the law is punitive in effect. Smith, 538 U.S. at 91–92.
For this analysis, we must consider the Mendoza-Martinez
factors. These factors include the following: (1) whether the sanc-
tion is an “affirmative disability or restraint as that term is normally
understood,” Hudson v. United States, 522 U.S. 93, 104 (1997); (2)
whether the sanction was historically considered civil or criminal,
Mendoza-Martinez, 372 U.S. at 168; (3) whether the sanction-trig-
gering conduct requires scienter, id., (4) whether the law serves
the traditional aims of punishment: (deterrence and retribution),
id.; (5) whether the behavior to which it applies is already a crime;
id.; (6) “whether the alternative purpose to which it may rationally
be connected is assignable for it,” id. at 168–69; and (7) whether the
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 49
law appears excessive in relation to the alternative purpose as-
signed, id. at 169.
I must vigorously dissent from the Majority Opinion’s anal-
ysis of the Mendoza-Martinez factors because the Majority Opinion
misconstrues and misapplies those factors. Maj. Op. at 37–42.
The first Mendoza-Martinez factor asks whether the sanc-
tion is an “affirmative disability or restraint as that term is normally
understood.” Hudson v. United States, 522 U.S. 93, 104 (1997).
The Majority Opinion concludes that losing the ability to vote is
more like occupational disbarment than imprisonment. Maj. Op.
at 38.
That conclusion defies logic. As the Supreme Court has ex-
plained, the “right to vote freely for the candidate of one’s choice
is of the essence of a democratic society, and any restrictions on
that right strike at the heart of representative government.” Reyn-
olds, 377 U.S. at 555. Indeed, voting is a fundamental right. Id.And Amendment 579 and Alabama Code § 17-3-30.1 prevent citi-
zens from affirmatively exercising their fundamental rights. On the
other hand, though certainly important, “the right to practice a par-
ticular profession is not a fundamental one.” Locke v. Shore, 634
F.3d 1185, 1196 (11th Cir. 2011) (citation omitted). Because voting
is a fundamental right and practicing a particular profession is not,
losing the right to vote more closely resembles imprisonment than
losing the right to practice a particular profession. See Simmons v.
Galvin, 575 F.3d 24, 65 (1st Cir. 2009) (Torruella, J., dissenting)
(“Disenfranchisement, though neither physical nor permanent,
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50 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
deprives U.S. citizens of a fundamental right, and as such, is un-
doubtedly an affirmative disability.”).
Also under the first Mendoza-Martinez factor (whether the
sanction is an “affirmative disability or restraint”), we must con-
sider the arbiter of the sanction: an agency or a jury. In Hudson,
the Supreme Court relied on the fact that the business license could
be revoked by an agency as evidence that occupational disbarment
was civil. 522 U.S. at 103. But that consideration cuts the other
way here: only a jury can find an Alabama voter guilty of a felony
of moral turpitude. So I would conclude that losing the right to
vote constitutes an affirmative disability or restraint.
As to the second Mendoza-Martinez factor—whether the
sanction was historically considered civil or criminal, Mendoza-
Martinez, 372 U.S. at 168—the Majority Opinion, faced with the
overwhelming weight of history, cites to some cases from the
1800s and declares a draw. Maj. Op. at 38–40. But a Maryland Su-
preme Court case from 1865 and an Alabama Supreme Court case
from 1884 aren’t probative of how history has viewed felon disen-
franchisement. Instead, we should look at history in full.
Let’s start pre-Founding. Ancient Greece and Rome had “in-
famy” laws that revoked political rights as an additional punish-
ment for committing crimes. See Alexander Keyssar, THE RIGHT
TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED
STATES 62–63 (2000); Mirjan R. Damaska, Adverse Legal Conse-
quences of Conviction and their Removal: A Comparative Study,
59 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 347, 351 (1968)
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 51
(explaining that the Roman Republic also employed infamy as a
penalty for those convicted of crimes involving moral turpitude).
Medieval continental Europe assessed “civil death” for committing
crimes, and Medieval England had “attainder” laws. Id. In nine-
teenth-century Europe, it wasn’t uncommon for penal statutes to
disenfranchise felons automatically. Damaska, Adverse Legal Con-
sequences of Conviction and their Removal, supra, at 352–53 (cit-
ing statutes from Belgium, Italy, Luxembourg, Monaco, and
Spain).
Turning to this country, we have historically viewed disen-
franchisement as a punitive device. In readmitting Confederate
States to the Union, Congress required that states amend their con-
stitutions to ensure universal (male) suffrage except as a punish-
ment for felonies. See Ramirez, 418 U.S. at 48–51. The upshot of
this is that Congress recognized that felon disenfranchisement was
a punitive sanction.
Indeed, the Second Circuit has described the “nearly univer-
sal use of felon disenfranchisement as a punitive device.”
Muntaqim v. Coombe, 366 F.3d 102, 123 (2d Cir. 2004) (vacated en
banc on other grounds). And the American Law Institute’s Model
Penal Code described prisoner disenfranchisement as “an integral
part of the criminal law.” Model Penal Code § 306.3 (Proposed Of-
ficial Draft 1962). We’ve even said so ourselves. In our en banc
Johnson opinion, we recognized that “throughout history, criminal
disenfranchisement provisions have existed as a punitive device.”
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52 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
405 F.3d at 1218 n.5. When we don’t cherry-pick history, it shows
that felon disenfranchisement is a punitive sanction.
Even if this factor were neutral—which it isn’t—the Major-
ity Opinion’s analysis reveals that this factor deserves little weight
here. After all, the Majority Opinion relies on two cases from the
1860s and 1880s, when voting wasn’t considered a fundamental
right. Richard Briffault, The Contested Right to Vote, 100 MICH.
L. REV. 1506, 1512 (2001) (“Moreover, suffrage was a state matter,
not an aspect of national citizenship. The federal Constitution
largely sidestepped the question of the vote . . . Voting was in no
sense a federal constitutional right.”). So even if those two cases
represented the legal consensus at the time—and they don’t—
whether felon disenfranchisement was viewed as punitive in 1860
(when voting wasn’t yet understood to be a fundamental right)
cannot inform whether felon disenfranchisement is punitive today.
Turning to the third Mendoza-Martinez factor, Alabama’s
felon-disenfranchisement law unquestionably requires scienter.
Maj. Op. at 40. The Majority Opinion claims (without analysis or
citation) that the provision doesn’t have a scienter requirement.
Maj. Op. at 40. But that’s just not correct. The statute disenfran-
chises only those who commit crimes of moral turpitude. See Ala.
Code. § 17-3-30.1. How can one commit a crime of moral turpi-
tude without a mental state? The Majority Opinion doesn’t list any
strict-liability-moral-turpitude crimes (nor can I think of any). Nor
does the Alabama Legislature’s list include any strict-liability
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 53
crimes. Id. (including murder, manslaughter, kidnapping, rape,
sodomy, sexual torture, terrorism, human trafficking). 26
On the fourth Mendoza-Martinez factor, the felon-disen-
franchisement provision serves the traditional aims of punishment:
retribution and deterrence. Felon disenfranchisement is retribu-
tive because the restriction, by “deny[ing] the civic and human dig-
nity of persons who have been convicted of doing wrong,” is “em-
blematic of the denunciatory function of criminal law.” Simmons,
575 F.3d at 66 (citing Bell v. Wolfish, 441 U.S. 520, 593–93 n.26
(1979) (Stevens, J., dissenting)).
Losing the right to vote is also a deterrent to criminal behav-
ior. The Majority Opinion claims (again without citation or analy-
sis) that “[i]t is very unlikely that an individual considering whether
to commit a felony would be willing to risk imprisonment but not
disenfranchisement.” Maj. Op. at 40. There are many problems
with this claim. The first problem is that there is no record evi-
dence for that assertion. And we are, after all, talking about a fun-
damental right. See Simmons, 575 F.3d at 65 (Torruella, J.,
26 To be fair, the statute includes “possession” crimes, like possessing a bacte-
riological or biological weapon. Id. § 17-3-30.1 (citing id. § 13A-10-193). I’m
unaware of any authority as to whether those crimes require scienter. But I
presume that they do because the general rule in Alabama is that “all criminal
statutes must contain the element of scienter.” McCrary v. State, 429 So. 2d
1121, 1124 (Ala. Crim. Ct. App. 1982). Given that general statement of law,
the Majority Opinion’s claim that the listed crimes don’t require scienter can-
not be right.
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54 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
dissenting) (“Of course, the threat of being deprived of a fundamen-
tal right will, to a certain extent, always operate to deter a rational
person from engaging in unlawful conduct.”). So we should hesi-
tate to base a decision on the Majority Opinion’s suppositions in
this respect.
And, even if we accepted the Majority Opinion’s hypothesis,
the assertion also proves too much. Try this: “[i]t is very unlikely
that an individual considering whether to commit a felony would
be willing to risk” nineteen years’ imprisonment but not twenty
years. Under the Majority Opinion’s logic, would the twentieth
year of imprisonment be non-punitive because it didn’t increase
the deterrent effect? Of course not. Neither is disenfranchisement.
The Majority Opinion also doesn’t explain the positive case
for its conclusion. In other words, the Majority Opinion doesn’t
explain why, if felon disenfranchisement isn’t retributive or a de-
terrent, felon disenfranchisement is instead compensatory or regu-
latory. How, exactly, does not letting people who have served
their sentence and paid their legal financial obligations vote “com-
pensate” their victims?
Finally, there is another reason why felon-disenfranchise-
ment statutes are punitive and not regulatory: states can’t screen
for “good character” in voters as a regulatory matter. After Reyn-
olds, states can’t require “good character” for voting because vot-
ing is a fundamental right. Pamela S. Karlan, Convictions and
Doubts: Retribution, Representation, and the Debate over Felon
Disenfranchisement, 56 STAN. L. REV. 1147, 1155 (2004). Given
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 55
that, “it would be perverse to rely on criminal convictions as evi-
dence that individuals lack qualities that voters are not required to
have.” Id. In sum, this fourth factor—whether disenfranchisement
serves the traditional aims of punishment, Mendoza-Martinez, 372
U.S. at 168, also supports a finding of punitiveness.
As to the fifth Mendoza-Martinez factor, the Majority Opin-
ion admits that “felon disenfranchisement only sanctions behavior
that is already criminal.” Maj. Op. at 40. The Majority Opinion
seems to feel that this fact favors the conclusion that a restriction is
civil. Maj. Op. at 40 (citing United States v. Ursery, 518 U.S. 267,
292 (1996)). It does not. The Supreme Court has explained that
the fact that sanctions are linked to criminalized behavior “sug-
gests” that the sanctions are, in fact, “criminal in nature.” United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984).
In other words, the Majority Opinion’s admission that felon disen-
franchisement is linked directly to criminal behavior (such as com-
mission of a felony) supports finding that disenfranchisement is a
punitive sanction.
To be sure, the Supreme Court has given this factor little
weight because “Congress may impose both a criminal and a civil
sanction in respect to the same act or omission.” Helvering v.
Mitchell, 303 U.S. 391, 399 (1938); 89 Firearms, 465 U.S. at 365 (“But
that indication is not as strong as it might seem at first blush.”);
Ursery, 518 U.S. at 292 (“[T]hough both statutes are tied to criminal
activity, as was the case in 89 Firearms, this fact is insufficient to
render the statutes punitive.”). In other words, a link between a
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56 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
crime and a sanction is not sufficient (without more) to show a stat-
ute is punitive. But we have more here—five of the six other Mar-
tinez-Mendoza factors favor a finding of punitiveness.
Sixth, I concede that Alabama could have a legitimate pur-
pose for disenfranchising felons. States, even after the Fourteenth
Amendment, can restrict felons from the franchise. See U.S.
CONST., amend XIV, § 2 (recognizing that States may exclude from
the franchise those who participated in rebellion or other crime
without losing representation in Congress). But see Ramirez, 418
U.S. at 72–73 (Marshall, J., dissenting) (arguing that there is little
legislative history or explanation of the meaning of “any crime” in
the Fourteenth Amendment).
But seventh, that purpose is “excessive in relation to the al-
ternate purpose assigned.” Mendoza-Martinez, 372 U.S. at 169. Al-
abama says that it wants to exclude those who have engaged in
crimes of moral turpitude. Fair enough. But if that’s true, why
doesn’t Alabama want to exclude those convicted of bribery of
public servants 27; perjury 28; deceiving an elector in preparation of
her ballot 29; altering another person’s ballot30; failing to count
27 ALA. CODE § 13A-10-61.
28 ALA. CODE § 13A-10-101.
29 ALA. CODE § 17-17-19.
30 ALA. CODE § 17-17-24(a).
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 57
legally cast absentee votes 31; illegally voting more than once in an
election (second violation) 32; and willfully and intentionally sign-
ing the name of another elector in a poll book? 33 Of course, it isn’t
my place to tell Alabama which felons to exclude from the fran-
chise (or who not to exclude). But it is my job to point out when
Alabama is drawing lines at odds with its stated purpose—lines that
suggest its purpose might be something else. Cf. Weinberger v.
Wiesenfeld, 420 U.S. 636, 648 (1975) (“But the mere recitation of a
benign, compensatory purpose is not an automatic shield which
protects against any inquiry into the actual purposes underlying a
statutory scheme.”). The mismatch between Alabama’s stated aim
and its method suggests that the restriction may be punitive.
To recap, then, six of the seven factors support finding that
Alabama’s felon-disenfranchisement statute is punitive.
This conclusion—that the felon-disenfranchisement statute
is punitive—means that the Ex Post Facto Clause prohibits applica-
tion of the statute to the Plaintiffs-Appellants. That is so because
the statute took effect after the Plaintiffs-Appellants committed
their crimes, and the Plaintiffs-Appellants committed their crimes
after Alabama adopted Amendment 579, which made Alabama’s
disenfranchisement provision applicable to only a then-undefined
31 ALA. CODE § 17-17-27).
32 ALA. CODE § 17-17-36.
33 ALA. CODE § 17-17-15.
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58 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
group of crimes—felonies of “moral turpitude.” Simply put, be-
cause the Plaintiffs-Appellants didn’t know that they would lose
their right to vote when they committed their crimes, it is uncon-
stitutional to retroactively strip them of that right. Lynce v.
Mathis, 519 U.S. 433, 449 (1997). I therefore disagree with the Ma-
jority Opinion’s conclusion to the contrary.
V. ALABAMA’S VOTER REGISTRATION FORM VIO-
LATES THE NATIONAL VOTER REGISTRATION ACT
Finally, I would also reverse as to the National Voter Regis-
tration Act (“NVRA”) claim. As I see it, the Majority Opinion ig-
nores the text of the statute and the Plaintiffs-Appellants’ actual ar-
guments. Maj. Op. at 42–44.
The NVRA requires that mail voter-registration forms
“shall” include a statement that “specifies each eligibility require-
ment (including citizenship).” 52 U.S.C. § 20508(b)(2)(A) (emphasis
added). To “specify” something means “to name or state explicitly
or in detail.” Specify, MERRIAM-WEBSTER ONLINE DICTION-
ARY (https://www.merriamwebster.com/dictionary/specify (last
accessed Apr. 20, 2023). Alabama’s voter-eligibility requirements
mandate that the voter not be “convicted of a felony involving
moral turpitude” unless his or her civil and political rights were re-
stored. ALA. CONST., Art. VIII, § 177(b). Alabama’s voter form
then, must “specify” what it means to be convicted of a felony in-
volving moral turpitude.
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21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 59
But Alabama’s form does not “name or state explicitly in de-
tail” what it means to have been convicted of a felony involving
moral turpitude. Rather, Alabama’s form says only that a pro-
spective voter can register by swearing—under penalty of per-
jury—that he or she is “not barred by reason of a disqualifying fel-
ony conviction. (The list of disqualifying felonies is available on the
Secretary of State’s web site[.] [URL omitted]).” A form that iden-
tifies a requirement but doesn’t give any information about that
requirement can’t be said to state it “explicitly in detail.” For in-
stance, the form doesn’t even mention the requirement that the
felony be one of moral turpitude. Nor does it have a list of the
felony convictions that are disqualifying. The form provides only
a website link. The form is problematic both because not everyone
has access to the Internet but also because a website link can’t pos-
sibly be said to “state explicitly in detail” the disqualifying felonies.
And it doesn’t take much imagination to conclude that the form’s
overly general description of who can’t vote discourages some who
are eligible to vote from voting because, unsure of their eligibility
based on the form’s instructions, they do not want to take the
chance of violating the law.
The Majority Opinion concludes that the website URL is
sufficiently specific. But it never explains why a URL link is suffi-
ciently specific and never grapples with the text of the statute. In
fact, the Majority Opinion claims that courts should avoid picking
out individual words to discern an entire statute’s meaning. Maj.
Op. at 44. While I agree with that approach, it doesn’t give us
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60 ROSENBAUM, J., Concurring and Dissenting in Part 21-10034
license to ignore the text entirely. See Van Buren v. United States,
141 S. Ct. 1648, 1654 (2021) (“[W]e start where we always do: with
the text of the statute.”). Here, the Majority never analyzes the
only verb in the section of the statute—the only thing that Alabama
must do. How can we know if Alabama has performed its required
duty without so much as mentioning what that duty—as codified
in the verb “specify”—is? Nor am I construing the meaning of an
entire statute based on one word: I’m ensuring that the one
word—enacted by Congress and signed by the President—is given
its proper meaning. See id. (discussing the meaning of “so” in the
phrase “entitled so to obtain.”).
Finally, the Majority Opinion sets up and knocks down a
strawman version of the Plaintiffs-Appellants’ argument. Contrary
to the Majority Opinion’s (mis)-characterization, the Plaintiffs-Ap-
pellants aren’t asking Alabama to list “every state, federal, and for-
eign felony involving moral turpitude.” Maj. Op. at 42–43 (empha-
sis added). They just want the list of crimes that Alabama says qual-
ify—the forty-seven enumerated crimes and the catchall provision.
And contrary to the Majority Opinion’s suggestion, the
Plaintiffs-Appellants’ position isn’t internally inconsistent. Maj.
Op. at 42–43. The Plaintiffs-Appellants just want more specificity
than a generic description and a website URL and don’t want (and
have never asked for) a constantly shifting list of federal and foreign
crimes of moral turpitude that are irrelevant to whether they can
vote. Asking for a middle position isn’t inconsistent—it’s moder-
ate.
USCA11 Case: 21-10034 Document: 78-1 Date Filed: 04/26/2023 Page: 106 of 106
21-10034 ROSENBAUM, J., Concurring and Dissenting in Part 61
VI. CONCLUSION
Ultimately, I agree with the Majority Opinion that Ala-
bama’s reenactment of its felon-disenfranchisement provision sat-
isfies our precedent’s required procedure to remove discriminatory
taint from an earlier statute. But in my view, our precedent im-
poses a meaningless test to ascertain whether a reenacted version
of a law that a federal court has previously found to have been en-
acted for a discriminatory reason violates the Equal Protection
Clause. Because our precedent requires us to apply that meaning-
less test, though, I am constrained to concur in affirming the district
court’s judgment.
But I dissent from the Majority Opinion’s holding that Ala-
bama’s felon-disenfranchisement statute is civil and therefore isn’t
subject to the Ex Post Facto Clause. In fact, the statute is punitive
and therefore can be applied only prospectively. I also dissent from
the Majority Opinion’s holding on the National Voter Registration
Act claim because Alabama’s voter-registration form doesn’t “spec-
ify” which individuals convicted of felonies cannot vote and there-
fore violates federal law.