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Case 7:10-cv-02067-SLB Document 13 Filed 08/27/10 Page 1 of 37 FILED

2010 Aug-27 PM 05:00


U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

WILLIAM JOHNSON, et al., )


)
Plaintiffs, )
)
CIVIL ACTION NUMBER:
v. )
7:10-cv-02067-SLB
)
BOB RILEY, et al., )
)
Defendants. )

GOVERNOR RILEY AND COMMANDER TYSON’S MOTION TO DISMISS


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TABLE OF CONTENTS

Table of Contents ....................................................................................................... i 

Table of Authorities .................................................................................................. ii 

Introduction ................................................................................................................1 

Standard of Review ....................................................................................................3 

Legal Background and Allegations in Plaintiffs’ Complaint ....................................5 

I.  Alabama’s laws prohibiting gambling.............................................................5 

II.  The Greene and Macon bingo amendments. ...................................................6 

III.  Executive Order 44 and the Governor’s enforcement of Alabama’s


prohibition on slot-machine gambling.............................................................9 

IV.  The Task Force’s enforcement of the law. ....................................................10 

V.  Plaintiffs’ Complaint .....................................................................................13 

Argument..................................................................................................................16 

I.  Plaintiffs have no § 5 claim. ..........................................................................16 

A.  The Governor and Commander’s conclusion that the machines


are illegal is not a § 5 change. .............................................................17 

B.  The Governor’s directive to Tyson to enforce the law in Greene


and Macon Counties is not a Section 5 “change.” ..............................19 

II.  Plaintiffs have no § 2 claim. ..........................................................................23 

III.  Plaintiffs make no plausible claim of “purposeful discrimination.” .............24 

IV.  Plaintiffs make no plausible claim under the Ku Klux Klan Act. .................28 

Conclusion ...............................................................................................................29 

Certificate of Service ...............................................................................................31


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TABLE OF AUTHORITIES

Cases 

Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009)........................................................................... passim

Barber v. Cornerstone Community Outreach, Nos. 1080805 & 1080806,


___ So. 3d ___, 2009 WL 3805712 (Ala. Nov. 13, 2009) .................. 2, 7, 12

Barber v. Houston County Econ. Dev. Ass’n, No. 1090444


(Ala. Jan. 15, 2010) (unpub. order) ...............................................................12

Barrett v. State,
705 So. 2d 529 (Ala. Crim. App. 1996) ................................................... 6, 22

Bell Atl. v. Twombly,


550 U.S. 544 (2007)...................................................................... 3, 26, 27, 28

Bryant v. Avado Brands, Inc.,


187 F.3d 1271 (11th Cir. 1999) .......................................................................9

City of Piedmont v. Evans,


642 So. 2d 435 (Ala. 1994)..........................................................................1, 5

Clayton v. North Carolina State Bd. of Elections,


317 F. Supp. 915 (E.D.N.C 1970) .................................................................29

Dickerson v. Alachua County Comm’n,


200 F.3d 761 (11th Cir. 2000) .......................................................................28

Ex parte State, No. 1090808,


___ So. 3d ___, 2010 WL 2034825 (Ala. May 21, 2010) .............................12

Foster v. State,
705 So. 2d 534 (Ala. Crim. App. 1997) ..........................................................6

Givens v. Zerbst,
255 U.S. 11 (1921)...........................................................................................9

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Holder v. Hall,
512 U.S. 874 (1994).......................................................................................24

Opinion of the Justices No. 373,


795 So. 2d 630 (Ala. 2001)..............................................................................5

Patterson v. Esch, Civ. A. No. 3:09cv438,


2009 WL 2424408 (S.D. Miss. Aug. 5, 2009) ..............................................20

Personnel Administrator of Mass. v. Feeney,


442 U. S. 256 (1979) .....................................................................................26

Presley v. Etowah County Commission,


502 U.S. 491 (1992)............................................................................... passim

Reno v. Bossier Parrish Sch. Bd.,


528 U.S. 320 (2000).......................................................................................22

Robertson v. Bartels,
148 F. Supp. 2d 443 (D.N.J. 2001) ................................................................29

Rosado v. Wyman,
397 U.S. 397 (1970).......................................................................................29

Surles v. City of Ashville, Nos. 1080826 & 1081015,


___ So. 3d ___, 2010 WL 336689 (Ala. Jan. 29, 2010) ................................13

Thornburg v. Gingles,
478 U.S. 30 (1986).........................................................................................24

Tyson v. Jones, Nos. 1090878 & 1090939,


___ So. 3d ____, 2010 WL 2983188 (Ala. July 30, 2010) ...........................12

Tyson v. Macon County Greyhound Park, No. 1090548,


___ So. 3d ___, 2010 WL 415271 (Ala. Feb. 4, 2010) .................................12

Washington v. Finlay,
664 F.2d 913 (4th Cir. 1981) .........................................................................26

Constitutional Provisions 

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ALA. CONST. amend. 50 .............................................................................................6

ALA. CONST. amend. 743 ...........................................................................................6

ALA. CONST. amend. 744 ...........................................................................................7

ALA. CONST. Art V, § 120........................................................................................22

U.S. CONST. amend. 13 ............................................................................................25

U.S. CONST. amend. 15 ............................................................................................25

Statutes 
42 U.S.C. § 1973 (Voting Rights Act of 1965, § 2) ................................... 14, 23, 24

42 U.S.C. § 1973c (Voting Rights Act of 1965, § 5) ............................... 1, 8, 13, 17

42 U.S.C. § 1983 ......................................................................................................14

42 U.S.C. § 1985(3) (Ku Klux Klan Act) ......................................................... 15, 28

ALA. CODE § 12-17-184(10) ....................................................................................10

ALA. CODE § 13A-12-20(10) .....................................................................................5

ALA. CODE § 13A-12-27 ............................................................................................5

ALA. CODE 1940, Tit. 13, § 229 ...............................................................................19

Rules 
FED. R. CIV. P. 12 ............................................................................................. passim

FED. R. CIV. P. 8 .........................................................................................................4

Regulations 
28 CFR § 51.36 ........................................................................................................23

28 CFR § 51.9(a) ......................................................................................................23

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Other Authorities 
5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE (2d ed. 1990) ............................................9

Bob Riley, Luck Running Out for Casinos,


HUNTSVILLE TIMES, Aug. 7, 2010 .................................................................11

Sebastian Kitchen, VictoryLand Closes as Raid Looms,


MONTGOMERY ADVERTISER, Aug. 10, 2010..................................................11

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INTRODUCTION

This case is frivolous. It has nothing to do with voting rights, and

everything to do with moneyed interests’ attempts to flout Alabama’s laws

prohibiting gambling. The principal statute Plaintiffs invoke, § 5 of the Voting

Rights Act, gives citizens the right to challenge the State’s implementation of its

laws “with respect to voting.” 42 U.S.C. § 1973c(a). But Plaintiffs are not

bringing this case to challenge the State’s implementation of its voting laws. They

are bringing it as a last-ditch effort to block the State from enforcing its gambling

laws. There is not even a colorable argument that federal law gives them a right to

do that.

The Alabama Constitution and Code prohibit gambling generally, and slot

machines in particular. They have for decades. But in recent years, gambling

interests defiantly built casinos throughout the State and filled them with slot

machines. They claimed that their machines played a form of “bingo” that is legal

under certain local amendments to the Alabama Constitution. Alabama courts

have repeatedly made clear, however, that those amendments legalize only the

traditional form of “bingo” that grandmothers have long taught their grandchildren

on summer vacations. See City of Piedmont v. Evans, 642 So. 2d 435, 436 (Ala.

1994); Barber v. Cornerstone Community Outreach, Nos. 1080805 & 1080806,

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___ So. 3d ___, 2009 WL 3805712, at *18 (Ala. Nov. 13, 2009). And anyone who

saw these machines operate knew that they were not playing the game traditionally

known as bingo. As the Alabama Supreme Court explained last year, the

“electronic bingo” machines at a Lowndes County casino

operate almost exactly like slot machines. In fact, an entire “bingo


game” takes approximately six seconds, involves no numbered cards,
and requires no player interaction at all, other than the player initially
inserting cash or a “player’s card” with cash credits into the machine
and then pressing a button or pulling a handle to find out the outcome.
A player learns the outcome through a large display that specifically
tells the player whether he or she has won and a smaller display that
shows a bingo board and the balls that could have been drawn. A
losing player is not told who, if anyone, won the “bingo game.”

Id. at *18.

Concerned about the proliferation of illegal gambling across the State,

Governor Riley created a Task Force on Illegal Gambling and made John Tyson its

Commander. Operating at Governor Riley’s direction, Commander Tyson and

other law-enforcement officers took various steps to rid Alabama of these illegal

machines. Now, casinos that once operated in counties throughout the State—in

not only Greene and Macon County, but also Houston, Jefferson, Lowndes,

Madison, and Mobile County—have shut down.

Having decisively and repeatedly failed in attempts to block the Task

Force’s efforts in state court, those who support illegal gambling have now sought

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refuge here, in federal court, under the most baseless of theories. They have tried

to transform this question of what constitutes illegal gambling under Alabama

law—and thus, whether the State has been correct in seizing these machines—into,

of all things, a federal voting-rights claim. As explained below, Supreme Court

precedent makes clear that § 5 of the Voting Rights Act has no application here.

And Plaintiffs’ claims under § 2 of that Act, the Reconstruction Amendments, and

the Ku Klux Klan Act have even less merit. This Court should dismiss the

Complaint (Doc. 1) for failure to state a claim upon which relief can be granted.

STANDARD OF REVIEW

The Supreme Court recently reaffirmed the standard governing 12(b)(6)

motions in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009):

To survive a motion to dismiss, a complaint must contain sufficient


factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’ ”

Id. at 1949 (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)) (citations

omitted).
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The Iqbal Court explained that “[t]wo working principles underlie” the

12(b)(6) analysis, id., and both are critical here. First, “the tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.” Id. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. Second, “only a

complaint that states a plausible claim for relief survives a motion to dismiss.” Id.

at 1950. When “the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P.

8(a)(2)).

As explained below, in light of Iqbal’s statement of the standard of review—

and in light of the background principles of Alabama law against which Plaintiffs

are making their assertions that Governor Riley and Commander Tyson have

deprived them of their right to vote—Plaintiffs’ claims must be dismissed under

Rule 12(b)(6).

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LEGAL BACKGROUND AND ALLEGATIONS IN PLAINTIFFS’ COMPLAINT

I. Alabama’s laws prohibiting gambling.


The Alabama Constitution of 1901 prohibits all “lotteries,” a term the

Alabama Supreme Court has defined for constitutional purposes as including all

forms of gambling for prizes awarded predominately on the basis of chance. See

Opinion of the Justices No. 373, 795 So. 2d 630, 634–35 (Ala. 2001). Similarly,

Alabama law has for nearly a century prohibited the possession or use of any “slot

machine,” ALA. CODE § 13A-12-27, which the Code broadly defines as any

“gambling device that, as a result of the insertion of a coin or other object,

operates, either completely automatically or with the aid of some physical act by

the player, in such a manner that, depending upon elements of chance, it may eject

something of value,” id. § 13A-12-20(10). Machines readily adaptable to use as

slot machines are illegal as well. Id.

Against that backdrop, Alabama promulgated several local constitutional

amendments that authorize the operation of “bingo games,” for charitable

purposes, within certain counties. Doc. 1 at 8, ¶ 38 (citing various amendments

that use this language, including those governing Greene and Macon Counties). In

a 1994 case, City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994), the Alabama

Supreme Court held that the term “bingo” in the Calhoun County amendment,

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ALA. CONST. amend. 508, did not allow a city to authorize its residents to play a

game, called “instant bingo,” that did not incorporate the traditional elements of

bingo, because that game was not the game “commonly known as bingo.” See 642

So. 2d at 436–37. Later Alabama decisions confirmed that the term “bingo” in the

Calhoun County amendment referred only to “the ordinary game of bingo.”

Barrett v. State, 705 So. 2d 529, 531 (Ala. Crim. App. 1996); accord Foster v.

State, 705 So. 2d 534, 538 (Ala. Crim. App. 1997).

II. The Greene and Macon bingo amendments.


In 2004, after the Alabama Supreme Court had decided City of Piedmont,

the Alabama Constitution was again amended to add local “bingo” amendments in

Greene County and Macon County. See Doc. 1 at 9–12, ¶¶ 41–51. It is those two

amendments that are at issue here.

The Greene County amendment, ALA. CONST. amend. 743, authorizes the

“operat[ion]” of “[b]ingo games” by “a nonprofit organization” in Greene County.

Using similar language to that employed by the Alabama courts when construing

the Calhoun County amendment, the Greene County amendment says that “bingo”

is “[t]hat specific kind of game commonly known as bingo.” ALA. CONST. amend.

743. The amendment says that “bingo” can be played “on a card or electronic

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marking machine,” id., but as the Alabama Supreme Court has recognized,

“electronic marking machines” are an entirely different type of machine from the

slot-machine devices being used in these “electronic bingo” casinos. Thus, the

“electronic marking machines” language “contemplates a game . . . that is

materially different from the types of electronic gaming machines at issue” in these

cases. Barber, 2009 WL 3805712, at *11.

The Macon County amendment, ALA. CONST. amend. 744, is identical in all

material respects to the Calhoun County amendment that the Alabama Supreme

Court interpreted in City of Piedmont. It states that “[t]he operation of bingo

games for prizes or money by nonprofit organizations for charitable, educational,

or other lawful purposes shall be legal” in Macon County. ALA. CONST. amend.

744. It does not purport to broaden the term “bingo” beyond its traditional

meaning. Nor does it contain language purporting to allow bingo to be played on

slot machines.

Contrary to what Plaintiffs seem to be implying in their Complaint, the

Department of Justice has not precleared the substance of these amendments under

§ 5 of the Voting Rights Act. The Complaint alleges, somewhat ambiguously, that

the Greene County and Macon County amendments were “precleared by the

Attorney General of the United States.” Doc. 1 at 9, ¶ 42; id. at 11, ¶ 47. But “the

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tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” Iqbal, 129 S. Ct. at 1949; and if Plaintiffs are

alleging that DOJ approved the these amendments’ provisions allowing “bingo,”

that conclusion is false. Under § 5’s plain terms, DOJ must preclear only changes

in state law relating to “voting.” 42 U.S.C. § 1973c(a). Thus, DOJ’s preclearance

letter for these amendments—which Plaintiffs have attached to their amended

motion for a preliminary injunction—purported to preclear only the “schedul[ing]”

of the “special constitutional amendment elections.” Doc. 12-2 at 2 (emphasis

added). It said nothing about the substance of the amendments themselves. Thus,

while the Complaint may plausibly allege that DOJ precleared the election at

which Alabama citizens voted on whether to adopt these amendments, the

Complaint does not plausibly allege that DOJ actually precleared the amendments’

provisions making “bingo games” legal in those counties. Preclearing that sort of

thing is simply not within the job description of the DOJ’s Voting Section.

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III. Executive Order 44 and the Governor’s enforcement of Alabama’s


prohibition on slot-machine gambling.
In 2008, Governor Riley created the Task Force on Illegal Gambling by

signing Executive Order 44. Doc. 1 at 12–13, ¶¶ 52–53. The Order stated that

“there is occurring at sites across this State, under the name of ‘bingo,’ gambling

activity which no reasonable observer could assert in good faith to be ‘the ordinary

game of bingo.’” Exh. A at 2.1 The Order reported that in the casinos recently

built throughout the State, “an electronic device or system automatically processes

an instant game of virtual ‘bingo’ upon activation and a wager by the human

player, the outcome of which is based predominantly on chance rather than on any

meaningful human interaction and skill.” Id. The Order stated that this form of

“slot-machine style gambling” is illegal. Id. And the Order took note that there

1
This Court may consider the entire Order, for the purposes of determining
its contents, when addressing this motion to dismiss. See Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1280 (11th Cir. 1999) (“‘[i]n determining whether to grant a
Rule 12(b)(6) motion, the court primarily considers the allegations in the
complaint, although matters of public record ... may be taken into account.’”
(quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 1357, at 299 (2d ed. 1990)); see also Givens v. Zerbst, 255 U.S. 11,
18 (1921) (President’s order “was a part of the law of the land, which we judicially
notice without averment or proof”). Accordingly, the entirety of Executive Order
44, as amended, is attached as Exhibit A.

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was “an obvious lack of uniformity” in the enforcement of Alabama’s gambling

laws against these machines “from county to county.” Id. at 3.

Accordingly, “for the purpose of promoting and supporting uniform

statewide enforcement of Alabama’s anti-gambling laws,” id. at 3, the Order

created the Task Force. The Task Force consists of various law-enforcement

officers having statewide jurisdiction, including officers of the Alabama

Department of Public Safety and the Alabama Alcoholic Beverage Control Board.

See id. The Order also states that the Task Force’s “Commander” is a “Special

Prosecutor” with “statewide jurisdiction” to “conduct investigations” and represent

the State in “the prosecution or defense of any case related to gambling activity in

the State of Alabama.” Id. Governor Riley amended the Order in 2010 to mandate

that the Commander could be a sitting district attorney. See id. at 5 (citing ALA.

CODE § 12-17-184(10)). Governor Riley then appointed Tyson, the sitting district

attorney from Mobile County, to serve as Commander and Special Prosecutor. See

Doc. 1 at 13, ¶ 54.

IV. The Task Force’s enforcement of the law.


Exercising their authority under Executive Order 44, Governor Riley and

Commander Tyson have enforced Alabama’s law against slot machines. To this

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end, Plaintiffs allege that Commander Tyson, exercising “the purported law

enforcement authority of defendant Governor Riley,” has “conducted non-judicial,

warrantless police raids against bingo operations in Macon and Greene Counties.”

Doc. 1 at 13, ¶ 55. Although Plaintiffs allege that “Defendants have raided bingo

facilities without obtaining judicial warrants only in Macon and Greene Counties,”

id. at 13–14, ¶ 56, they do not allege, and could not plausibly allege, that Governor

Riley and Commander Tyson have failed to enforce Alabama’s prohibition on

gambling in other counties. Likewise, although Plaintiffs allege that Governor

Riley and Commander Tyson have “shut[] down the bingo operations in Greene

and Macon Counties,” id. at 15, ¶ 61, they do not allege, and could not plausibly

allege, that these are the only two counties where the Task Force has fulfilled its

mandate.2

2
Indeed, published newspaper reports indicate that no so-called “electronic
bingo” facility within the State’s jurisdiction is currently operating. See Sebastian
Kitchen, VictoryLand Closes as Raid Looms, MONTGOMERY ADVERTISER, Aug. 10,
2010 (reporting that the VictoryLand casino in Macon County “voluntarily closed
its doors” in response to the Task Force’s actions and that VictoryLand had been
“the only non-Indian casino still open in the state”); Bob Riley, Luck Running Out
for Casinos, HUNTSVILLE TIMES, Aug. 7, 2010 (noting that even before
VictoryLand’s decision to close, “[t]he task force succeeded in helping to stop
illegal slot machine operations in Houston, Etowah, St. Clair, Jefferson, Mobile,
Lowndes, Walker, Madison and Greene counties”). Although this Court need not
consider this fact when evaluating this motion to dismiss, the Governor and
Commander bring it to the Court’s attention for informational purposes.

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As Plaintiffs acknowledge, the Alabama Supreme Court has issued

numerous opinions validating the Task Force’s work. The Supreme Court has held

that the Governor had the power under Alabama law to create the Task Force and

to direct its members to enforce the law throughout the State.3 The Court has

repeatedly rebuffed the gambling interests’ attempts to obtain injunctions against

the Task Force’s seizures of these slot machines—or to preempt, via declaratory-

judgment actions, the Task Force’s attempts to enforce the law through forfeiture

actions.4 And the Court has repeatedly held that the term “bingo” in the local

constitutional amendments means only the traditional game with all of its human

skill and interaction, thus indicating that the game played on these so-called

“electronic bingo” machines is illegal.5

3
See Tyson v. Jones, Nos. 1090878 & 1090939, ___ So. 3d ____, 2010 WL
2983188, at *11–*17 (Ala. July 30, 2010); Ex parte State, No. 1090808, ___ So.
3d ___, 2010 WL 2034825, at * 12–30 (Ala. May 21, 2010).
4
See Tyson v. Macon County Greyhound Park, No. 1090548, ___ So. 3d
___, 2010 WL 415271, at *2 (Ala. Feb. 4, 2010); Barber v. Houston County Econ.
Dev. Ass’n, No. 1090444 (Ala. Jan. 15, 2010) (unpublished order); see also Docs.
1-1, 1-2, & 1-3 (unpublished orders from Greene County case).
5
See Barber, 2009 WL 3805712, at *18 (noting that the ordinary game of
bingo is “materially different from the types of electronic gaming machines at
issue here”); id. at *17–*18 (describing six-part test to determine whether a game
is “bingo”); Ex parte State, 2010 WL 2034825, at *24 (noting that the Governor’s
position on the legality of “electronic bingo” is “consistent with at least three
appellate decisions”); Surles v. City of Ashville, Nos. 1080826 & 1081015, ___ So.
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V. Plaintiffs’ Complaint
Plaintiffs allege that they are African-American citizens and either registered

voters in Greene and Macon Counties or state representatives for those Counties.

See Doc. 1 at 3–7, ¶¶ 4–34. None alleges that he or she voted for the local

amendments authorizing charitable bingo in those counties, but one Plaintiff does

allege that he sponsored the bill that “became” the Macon County amendment. Id.

at 5–6, ¶ 23. The Complaint asserts four causes of action.

First, Plaintiffs assert that the Governor and Commander have violated § 5

of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Section 5 requires Alabama

to preclear, with either the Department of Justice or the U.S. District Court for the

District of Columbia, certain changes in the law “with respect to voting.” Id. In an

attempt to support their claim under that statute, Plaintiffs allege that the Governor

and Commander have “overridden” and “exercised veto power” over the local

amendments authorizing “bingo.” Id. at 15–16, ¶ 65. Plaintiffs further allege that

the Governor, by directing Commander Tyson to enforce the law in Greene and

Macon Counties, “has implemented a de facto replacement of the” elected local

3d ___, 2010 WL 336689, at *6–*8 (Ala. Jan. 29, 2010) (reaffirming Barber’s six-
part test and confirming that only bingo played on paper or printed cards is
permitted).

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sheriffs “with an official appointed by the Governor.” Id. at 16, ¶ 66. Plaintiffs

conclude from these assertions that the Governor’s and Commander’s “executive

orders, police raids and law enforcement actions” are “standards, practices, and

procedures affecting voting,” id. at 15, ¶ 64; and they assert that the State’s failure

to preclear these “executive orders, police raids and law enforcement actions” with

federal authorities violated § 5, see id. at 17, ¶ 69.

Second, Plaintiffs assert that Governor Riley and Commander Tyson have

violated § 2 of the Voting Rights Act, which precludes the State from imposing or

applying a “voting qualification or prerequisite to voting or standard, practice, or

procedure . . . in a manner which results in a denial or abridgement of the right of

any citizen of the United States to vote on account of race or color.” 42 U.S.C.

§ 1973(a). Plaintiffs try to support this theory by alleging that “African Americans

constitute” large majorities of the “voting age population” in Greene and Macon

Counties. Doc. 1 at 17, ¶ 72. Plaintiffs conclude that the Governor’s and

Commander’s “actions complained of herein are standards, practices, and

procedures that have” abridged or diluted their right to vote “in violation of § 2.”

Id. at 18, ¶¶ 74–75.

Third, Plaintiffs assert a count, presumably under 42 U.S.C. § 1983, for

“[p]urposeful [d]iscrimination.” Doc. 1 at 18. They assert that Governor Riley’s

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and Commander Tyson’s actions “perpetuate” the State’s prior history of

discrimination against African-Americans “and have both the racially

discriminatory purpose and effect of denying plaintiffs and African-American

members of the class they seek to represent the ability to choose by constitutional

amendment the laws and means of their enforcement in their own counties.” Id. at

19, ¶ 78. Plaintiffs further allege that Governor Riley and Commander Tyson

“have acted in callous disregard of Alabama’s long history of discriminatorily

denying African Americans the ability to exercise home rule in their respective

counties.” Id. ¶ 79. Plaintiffs assert that this alleged “purposeful discrimination”

violates § 2 of the Voting Rights Act and the Thirteenth, Fourteenth, and Fifteenth

Amendments. See id. ¶¶ 78, 79.

Finally, Plaintiffs assert a cause of action under the Ku Klux Klan Act, 42

U.S.C. § 1985(3), which makes it unlawful for “two or more persons in any State

or Territory [to] conspire or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws.” To support that claim,

Plaintiffs assert that Governor Riley and Commander Tyson have implemented

Executive Order 44 “for the purpose of threatening and intimidating plaintiffs and

African-American members of the class they seek to represent, and for the racially

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discriminatory purpose of usurping or bypassing the law enforcement provisions

constitutionally approved by plaintiffs and the class they seek to represent.” Id. at

20, ¶ 82.

ARGUMENT

Plaintiffs are insulting the letter and the spirit of nation’s most important

Civil Rights laws by invoking them to shield illegal gambling. Plaintiffs are not

really alleging, and cannot possibly allege, that the Governor and Commander have

violated their right to vote. At best, what Plaintiffs are really alleging is that the

Governor and Commander—and, indeed, the Alabama Supreme Court—have

misinterpreted the “bingo” amendments found in the Alabama Constitution. There

is no plausible argument that such an allegation states a claim under the Voting

Rights Act, the Ku Klux Klan Act, or the Thirteenth, Fourteenth, and Fifteenth

Amendments. This Court should therefore dismiss Plaintiffs’ Complaint under

Rule 12(b)(6).

I. Plaintiffs have no § 5 claim.


Although Plaintiffs appear to be relying principally on § 5—and thus have

sought a temporary restraining order and preliminary injunction based on that

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provision alone (Docs. 3–5 & 12)—their § 5 claim is squarely foreclosed by the

U.S. Supreme Court’s decision in Presley v. Etowah County Commission, 502 U.S.

491 (1992). Section 5, by its terms, requires the State to obtain federal

preclearance before enacting any “voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting” that was not in place on

November 1, 1964. 42 U.S.C. § 1973c(a). The Supreme Court explained in

Presley that this language means precisely what it says: for § 5 to apply, the

changes at issue must be “changes in voting” or “election law.” 502 U.S. at 501

(internal quotation marks omitted). Presley held that an attenuated link between

the “change” and voting will not suffice: the “change” must have “a direct relation

to voting and the election process.” Id. at 503. Plaintiffs have not alleged, and

could not possibly allege, any “change” that comes close to satisfying that

standard.

A. The Governor and Commander’s conclusion that the machines are


illegal is not a § 5 change.

Plaintiffs cannot plausibly maintain that the Governor and Commander’s

position that these machines are illegal, and their attempts to enforce the law based

on that position, somehow constitute § 5 “changes” under Presley. See Doc. 4 at

5–6. Even if Alabama’s enforcement of its gambling laws could be deemed a


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“change”—and it cannot be, for the State’s prohibitions on slot-machine gambling

predate § 5’s enactment by many decades, see supra at 5—Plaintiffs cannot

seriously maintain that the State’s enforcement of these laws has “a direct relation

to voting and the election process.” Presley, 502 U.S at 503. The Presley Court

held that only four types of “changes” generally meet the “direct relation” test:

those that (1) “involve[] the manner of voting”; (2) “involve candidacy

requirements and qualifications”; (3) “concern[] changes in the composition of the

electorate that may vote for candidates for a given office”, or (4) “affect[] the

creation or abolition of an elective office.” Id. at 502–03. Plaintiffs cannot even

begin to argue that the Governor’s and Commander’s enforcement of Alabama’s

gambling laws looks anything like one of these four categories.

The Presley Court had good reason for ruling as it did. If Plaintiffs were

right, then every time a citizen believed that a state executive official was

misinterpreting a state law in a covered jurisdiction, that citizen could file a federal

suit alleging that the official’s interpretation constituted a “change” affecting his or

her voting rights. That would require DOJ to review virtually every state executive

officer’s interpretation of every state law, even if it had no relationship to voting or

elections, before he or she enforced that interpretation. And that cannot be the law.

Section 5 protects voting rights and the integrity of state elections. It does not

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provide a forum for resolving the meaning of state laws that have nothing to do

with voting, and it does not require advance federal approval each time a covered

State wishes to enforce its criminal laws.

B. The Governor’s directive to Tyson to enforce the law in Greene and


Macon Counties is not a Section 5 “change.”
Nor is there any colorable argument that the Governor’s appointment of

Tyson as Task Force Commander—and his directive that Tyson, rather than local

officials in Greene and Macon County, enforce the anti-gambling laws against

“electronic bingo” casinos in those counties—constitutes a § 5 “change.” See Doc.

4 at 6–8. As an initial matter, there has been no “change” in Alabama law

regarding the Governor’s power to direct an attorney to represent the State;

statutory provisions giving the Governor power to issue such directives were

around long before Congress passed the Voting Rights Act. See ALA. CODE 1940,

Tit. 13, § 229(11). But even more critically, Presley squarely held that

“reallocations of authority within government” are, as a bright-line rule, never § 5

“changes.” 502 U.S at 508. The plaintiffs in Presley, represented by the same

attorney who is representing Plaintiffs here, argued that transfers of duties among

elected county commissioners and an appointed official constituted “changes” that

had to be precleared with DOJ. See id. at 493. The Supreme Court rejected that
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argument, finding that such changes do not have a “direct relation to voting and the

election process.” Id. at 503–08; accord Patterson v. Esch, Civ. A. No. 3:09cv438,

2009 WL 2424408, at *2 (S.D. Miss. Aug. 5, 2009) (holding that “drastic changes

in the power and authority of the office of mayor” were not subject to preclearance

in light of Presley).

Plaintiffs cannot distinguish Presley in any meaningful way. They have

tried to manufacture two exceptions to Presley, and they have tried to squeeze their

case into those two purported exceptions. But neither gambit gets their Complaint

past Rule 12(b)(6).

First, Plaintiffs erroneously assert that Presley’s holding applies only to

“routine” transfers of power between state officials—and, on the basis of that

erroneous premise, assert that the asserted transfer here counts as a § 5 change

because it was not “routine.” Doc. 4 at 8. Plaintiffs have things precisely

backwards. The Presley Court held not that the particular transfer of power at

issue there was exempt from preclearance because it was “routine,” but rather that

no transfer of power between officials could ever require preclearance precisely

because all such transfers are “routine.” Presley, 502 U.S. at 507–08. The Court

explained that if preclearance were required “every time a state legislature acts to

diminish or increase the power of public officials,” DOJ’s supervision over the

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States’ affairs would become “limitless.” Presley, 502 U.S. at 505–06. That is

precisely why the Presley Court held that courts must “formulate workable rules to

confine the coverage of § 5 to its proper sphere: voting.” Id. at 506.

Second, Plaintiffs also erroneously argue that “[b]y appointing defendant

Tyson to enforce the provisions set out in Amendments 743 and 744, defendant

Riley has implemented a de facto replacement of” local elected officials in Greene

and Macon Counties. Doc. 1 at 16, ¶ 66. Presley expressly holds that when a State

transfers power between elected public officials and appointed ones, the State will

not be deemed to have engaged in a de facto replacement of the official who lost

power so long as he or she “retains substantial authority.” 502 U.S. at 508.

Plaintiffs do not allege, and could not possibly allege, that the elected local sheriffs

in Greene and Macon Counties have not “retain[ed] substantial authority.” Id.

They do not allege, and could not plausibly allege, that the Governor’s directive to

Tyson has deprived the sheriffs of all their power to conduct investigations and

arrest those who commit crimes in their counties. Indeed, the local sheriffs still

retain substantial authority to regulate legal “bingo” within their jurisdictions. All

they may not do under longstanding Alabama law is “broaden[] the scope of the

narrow [bingo] exception to the prohibition of lotteries in the Alabama

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Constitution” by authorizing gambling activities that are not, in fact, the traditional

game of bingo. Barrett v. State, 705 So. 2d 529, 532 (Ala. Crim. App. 1996).

The Supreme Court has cautioned against reading § 5 in a manner that

would “exacerbate the substantial federalism costs that the preclearance procedure

already exacts, . . . perhaps to the extent of raising concerns about § 5’s

constitutionality.” Reno v. Bossier Parrish Sch. Bd., 528 U.S. 320, 336 (2000)

(internal quotation marks omitted). Yet that is precisely what Plaintiffs are asking

this Court to do. They want the Court to hold that before the Governor may

exercise his authority to enforce his State’s criminal laws—in a way that has

nothing to do with voting or an election—he must first obtain permission from

federal executive officials in Washington, D.C. And Plaintiffs want this Court to

require the Governor to seek DOJ preclearance not only of his “executive orders,”

but also of any “police raids” or “law enforcement actions” that he may determine

to be appropriate. Doc. 1 at 21; id. at 15, ¶ 64.

Indeed, Plaintiffs’ reading of § 5 would affirmatively preclude the Governor

from fulfilling his constitutional obligation to “take care that the laws be faithfully

executed.” ALA. CONST. Art V, § 120. If Plaintiffs’ view prevails, then the next

time an illegal casino opens, the Governor will not be able to immediately bring it

into compliance with Alabama law. He will need to seek DOJ’s permission first.

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He won’t be able to keep his investigation confidential, because DOJ regulations

allow the Attorney General to release information about preclearance requests to

“any interested individual or group.” 28 CFR § 51.36. And he won’t be able to

move forward quickly, because those same regulations give DOJ “60 days” to rule

on any preclearance request. 28 CFR § 51.9(a). Only after those months have

passed—and after the casino has reaped millions in illicit profits off Alabama’s

citizens—will the Governor be able to fulfill his constitutional mandate. And even

then, he will be able to only if DOJ says yes.

Such a world would be a casino boss’s dream, but it is not a world the

Voting Rights Act creates. This Court should dismiss Count One under Rule

12(b)(6).

II. Plaintiffs have no § 2 claim.


For largely the same reasons, Plaintiffs’ § 2 claim is meritless as well.

Section 2, no less than § 5, restricts itself to acts with a direct relationship to

voting. By its terms, § 2 prohibits a State from enacting only a “voting

qualification or prerequisite to voting or standard, practice, or procedure . . . which

results in a denial or abridgement of the right of any citizen of the United States to

vote on account of race or color.” 42 U.S.C. § 1973(a) (emphasis added). A

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plaintiff proves a § 2 violation by showing that “the political processes leading to

nomination or election in the State or political subdivision are not equally open to

participation by members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of

their choice.” Id. § 1973(b) (emphasis added). The Supreme Court has therefore

reasoned that “[t]he essence of a § 2 claim is that a certain electoral law, practice,

or structure interacts with social and historical conditions to cause an inequality in

the opportunities enjoyed by black and white voters to elect their preferred

representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (emphasis added).

Thus, the same arguments that doom Plaintiffs’ § 5 claim doom their § 2 claim,

too. See Holder v. Hall, 512 U.S. 874, 883 (1994) (opinion of Kennedy, J.)

(“[T]he coverage of §§ 2 and 5 is presumed to be the same.”); id. at 887

(O’Connor, J., concurring in part and concurring in the judgment) (“[A]t least for

determining threshold coverage, §§ 2 and 5 have parallel scope.”).

III. Plaintiffs make no plausible claim of “purposeful discrimination.”


This Court should also dismiss Count Three. That Count asserts a cause of

action for “purposeful discrimination” under § 2 of the Voting Rights Act as well

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as the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth

Amendment. But that Count fails to state a claim upon which relief can be granted

for at least two independent reasons.

First, to the extent that Plaintiffs are premising these “purposeful

discrimination” claims on the notion that Governor Riley and Commander Tyson

have deprived them of their right to vote, those claims fail for the same reasons

discussed above: the Complaint does not plausibly allege that the Governor and

Commander’s enforcement of Alabama’s gambling laws has deprived them of

their voting rights. Plaintiffs’ § 2 and Fourteenth and Fifteenth Amendment

claims depend expressly on the premise that Governor Riley and Commander

Tyson have impaired their voting rights. See supra at 23 (discussing § 2’s

relationship with voting); Doc. 1 at 19, ¶¶ 78 & 79 (asserting Fourteenth

Amendment claim on premise that the defendants have compromised the plaintiffs’

“ability to” enact laws “by constitutional amendment”); U.S. CONST. amend. 15, §

1 (Fifteenth Amendment guarantees “the right of citizens of the United States to

vote” (emphasis added)). And Plaintiffs’ Thirteenth Amendment claim fails

because the Complaint does not allege—and could not plausibly allege—that

Governor Riley and Commander Tyson’s enforcement of the state’s gambling laws

has caused “slavery” or “involuntary servitude.” U.S. CONST. amend. 13, § 1; cf.

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Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981) (“[T]he [Thirteenth]

amendment’s independent scope is limited to the eradication of the incidents or

badges of slavery and does not reach other acts of discrimination.”).

Second and perhaps even more importantly, all these claims are due to be

dismissed because, as the Supreme Court’s recent decision in Iqbal confirms,

Plaintiffs have failed to allege facts setting forth a plausible claim that Governor

Riley and Commander Tyson engaged in unlawful, “purposeful discrimination.”

As Iqbal noted, to establish a claim of purposeful discrimination, a plaintiff must

show that a state actor undertook a course of action “‘because of,’ not merely ‘in

spite of,’ [the action’s] adverse effects upon an identifiable group.” 129 S. Ct. at

1948 (quoting Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279

(1979)). The Court emphasized that to survive Rule 12(b)(6), the allegations that

the defendant acted with such a motive cannot be “conclusory.” Id. at 1951.

Likewise, allegations of facts that are merely “consistent with” allegations of

purposeful discrimination against a racial group will not suffice if there are “more

likely explanations” for the defendant’s actions. Id.

As was the case in Iqbal, Plaintiffs have not “‘nudged [their] claims’ of

invidious discrimination ‘across the line from conceivable to plausible.’” Id.

(quoting Twombly, 550 U.S. at 570). As an initial matter, their allegation that

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Governor Riley and Commander Tyson acted with a “racially discriminatory

purpose” amounts to “nothing more than a ‘formulaic recitation of the elements’ of

a constitutional discrimination claim.” Id. (quoting Twombly, 550 U.S. at 555).

That allegation is thus “conclusory and not entitled to be assumed true.” Id.

Nor do the Complaint’s factual allegations give rise to a plausible claim of

intentional discrimination. The only fact on which Plaintiffs appear to rely on this

front is the percentage of African-American voters in Greene and Macon County.

See Doc. 1 at 17–18, ¶¶ 72–73. “But given more likely explanations” for Governor

Riley and Commander Tyson’s actions, the mere fact that those counties have large

African-American populations “do[es] not plausibly establish [a discriminatory]

purpose.” Iqbal, 129 S. Ct. at 1950. Executive Order 44 called for the Task Force

to “promot[e] and support[] uniform statewide enforcement of Alabama’s anti-

gambling laws.” Exh. A at 3. The Complaint does not allege, and could not

plausibly have alleged, that the Task Force failed to enforce the State’s gambling

laws in other counties—including counties with white majorities. The Governor’s

and Commander’s uniform enforcement of the gambling laws throughout Alabama

is thus a “more likely explanation[]” for their acts in Greene and Macon County.

Iqbal, 129 S. Ct. at 1951. “As between that ‘obvious alternative explanation’” and

“the purposeful, invidious discrimination [Plaintiffs] ask[] [the Court] to infer,

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discrimination is not a plausible conclusion.” Iqbal, 129 S. Ct. at 1951–52

(quoting Twombly, 550 U.S. at 567).

IV. Plaintiffs make no plausible claim under the Ku Klux Klan Act.
Plaintiffs’ claims under the Ku Klux Klan Act should be dismissed as well.

That Act makes it unlawful for “two or more persons in any State or Territory [to]

conspire or go in disguise on the highway or on the premises of another, for the

purposes of depriving, either directly or indirectly, any person or class of persons

of the equal protection of the laws.” 42 U.S.C. § 1985(3). As an initial matter,

Plaintiffs cannot prove a “conspiracy” between Governor Riley and Commander

Tyson because the State and the officials who act on its behalf “constitute[] a

single legal entity that cannot conspire with itself” for the purposes of § 1985(3).

Dickerson v. Alachua County Comm’n, 200 F.3d 761, 768 (11th Cir. 2000). But

more critically, for the reasons given above, Plaintiffs have made no plausible

allegation that Governor Riley and Commander Tyson have acted to “depriv[e]”

anyone “of the equal protection of the laws” here. 42 U.S.C. § 1985(3). Plaintiffs

are complaining because Governor Riley and Commander Tyson have followed

Executive Order 44’s mandate, which by its terms expressly called for the equal

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enforcement of the laws throughout Alabama. Plaintiffs’ allegations of racism are

baseless, and Count Four must be dismissed.

CONCLUSION

Although this three-judge panel was convened to hear Plaintiffs’ § 5 claim, it

has discretion to exercise jurisdiction over, and dismiss, all of Plaintiffs’ claims.

See Clayton v. North Carolina State Bd. of Elections, 317 F. Supp. 915, 920

(E.D.N.C 1970) (citing Rosado v. Wyman, 397 U.S. 397, 402–05 (1970)). The

panel should do so. Alternatively, the three-judge panel also has discretion to

dismiss Plaintiffs’ § 5 claim and then transfer jurisdiction over the remainder of the

claims to the single-judge court, which may then dismiss them under Rule

12(b)(6). See Robertson v. Bartels, 148 F. Supp. 2d 443, 461–62 (D.N.J. 2001) .

Either way, this Court should dismiss this entire case.

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Respectfully submitted,

__s/Henry T. Reagan_____
Attorney for Defendant
Governor Bob Riley

OF COUNSEL:
Henry T. Reagan (REA021)
OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(334) 242-7120
(334) 242-2335 (fax)

__s/Martha Tierney_____
Attorney for Defendant
Commander John M. Tyson, Jr.

OF COUNSEL:
Martha Tierney (TIE001)
OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(334) 242-7120
(334) 242-2335 (fax)

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CERTIFICATE OF SERVICE

On August 27, 2010, I electronically filed the foregoing with the Clerk of the
Court using the CM/ECF system, which will send notification of the filing to the
following counsel of record:

Edward Still
2112 11th Avenue South
Suite 541
Birmingham, AL 35205
205-320-2882
fax 205-449-9752
E-mail: still@votelaw.com
James U. Blacksher
P.O. Box 636
Birmingham AL 35201
205-591-7238
Fax: 866-845-4395
E-mail: jblacksher@ns.sympatico.ca
Fred D. Gray
Bar No. ASB-1727-R63F
Gray, Langford, Sapp, McGowan,
Gray & Nathanson
P. O. Box 830239
Tuskegee , AL 36083-0239
334-727-4830
Fax: 334-727-5877
E-mail: fgray@glsmgn.com
s/ Henry T. Reagan
OF COUNSEL

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