IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDK-.:DISTFRICT OF ALABAMA

LIBERTARIAN PARTY OF ALABAMA 4: 48

Plaintiff,
i
v. Action No.&:ÍCI-CV-69- rn -SW

JOHN HAROLD MERRILL,

Secretary of State for the State of Alabama, :

Defendant.

COMPLAINT

INTRODUCTION

Plaintiff herein seeks a declaratory judgment that Alabama law that provides

for the major political parties to be provided with a voter registration list free of

charge, while charging a prohibitively expensive charge for minor political parties

to obtain the same list, codified at §§17-4-33(a)(10) and 17-4-38, Code of

Alabama(as amended)is unconstitutional on its face and as applied to the Plaintiff

and preliminary and permanent injunctive relief prohibiting its enforcement and

requiring that Plaintiff be provided a copy of Alabama's voter registration list free

of charge.

Section 17-4-33 provides in pertinent part as follows:

§ 17-4-33. Computerized statewide voter registration list.

(a) The State of Alabama shall provide, through the Secretary of State, a
nondiscriminatory, single, uniform, official, centralized, interactive computerized
statewide voter registration list defined, maintained, and adrninistered by the
Secretary of State, with advice from the Voter Registration Advisory Board and
the President of the Alabama Probate Judges Association, which contains the
name and registration information of every legally registered voter in the state.
The computerized list shall comply with the following requirements:
(1)It shall serve as the single system for storing and managing the official list of
registered voters throughout the state.
(2)It shall contain the name, address, and voting location, as well as other
information deemed necessary by the Voter Registration Advisory Board or the
Secretary of State, of every legally registered voter in the state.
(3) A unique identifier shall be assigned to each legally registered voter in the
state.
(4)It shall contain the voting history of each registered voter.
(5)It shall be coordinated with the driver's license database of the Department of
Public Safety and the appropriate state agency to assist in the removal of deceased
voters.
(6) Any election official in the state, including any local election official, may
obtain immediate electronic access to the information contained in the
computerized list.
(7) All voter registration information obtained by any registrar in the state shall be
electronically entered into the computerized list on an expedited basis at the time
information is provided to the registrar.
(8)The Secretary of State shall provide such support as may be required so that
registrars are able to enter voter registration information.
(9)It shall serve as the official voter registration list for the conduct of all
elections.
(10) Following each state and county election, the Secretary of State shall
provide one electronic copy of the computerized voter list free of charge to
each political party that satisfied the ballot access requirements for that
election. The electronic copy of the computerized voter list shall be provided
within 30 days of the certification of the election or upon the completion of
the election vote history update following the election, whichever comes first.
In addition, upon written request frorn the chair of a political party, the
Secretary of State shall furnish up to two additional electronic copies of the
computerized voter file during each calendar year to each political party that
satisfied the ballot access requirements during the last statewide election held
prior to that calendar year. The electronic copies provided pursuant to this
section shall contain the full, editable data as it exists in the computerized
voter list maintained by the Secretary of State.
(11)The list shall be maintained so that it is technologically secure.
(Emphasis added)

Section 17-4-33 unconstitutionally discriminates against minor or small

political parties, like the Plaintiff, by providing a copy of voter registration lists

free of charge to major parties, while charging the Plaintiff and other small or

minor parties a great deal of money for a copy ofthe list.

Plaintiff alleges that this statute and the State's discriminatory practice

2
under it violates their rights under the First and Fourteenth Amendments to the

United States Constitution, as a party that fields candidates for elective office in

Alabama and which has as members Alabama voters who wish to associate with

others who support the Libertarian Party of Alabama and its candidates for

elective office, as well as with other Alabama voters who also support and cast

their vote for candidates representing the Libertarian Party of Alabama. es

Constitution.

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331

(Federal Question). Plaintiff brings this action under 42 U.S.C. § 1983. Plaintiff

also seeks relief authorized by the Declaratory Judgment Act, 28 U.S.C. § 2201, et

seq.

2. This Court is an appropriate venue for this action pursuant to 28 U.S.C.

§ 1391(b).

PARTIES

3. Plaintiff Libertarian Party of Alabama("LPN')is the Alabama affiliate of

the Libertarian Party. In 2000, after collecting over 60,000 signatures, the

Libertarian Party of Alabama ran a small slate of candidates in Alabama for

various national, state, and local elective offices. LPA candidates appeared on the

ballot in Alabama for elective offices including, President of the United States,

U.S. Congress, the Alabama Supreme Court, and the Alabama Public Service

Commission. One LPA candidate garnered over 20% in a statewide race and in

3
2002 the LPA was the first minor party to have achieved major party status in

Alabama in over thirty years. In the next election cycle the Libertarian Party of

Alabama ran 58 candidates ranging from governor to tax collector. The LPA lost

its major party status and associated ballot access after 2002. However, several

Libertarian Party candidates for President have appeared on the ballot in Alabama

since 2002 as independent candidates. The LPA had a legislative candidate on the

ballot in Alabama 2009. The LPA gained ballot access in Jefferson, Shelby,

Chilton, and Bibb Counties, Alabama in 2014 and in 2018,the LPA ran four

candidates for local elective office in Alabama. The LPA has been active at all

times relevant to this Complaint in addressing policy issues of great public interest

to Alabamians. The LPA has continued to seek ballot access in Alabama in many

races for elective office, putting forward a platform of smaller government and

greater individual freedoms and will do so in the future. It is a membership

organization and its members support its political agenda; but support for its

political agenda and voters who cast and wish to cast their votes for its candidates

in Alabama are not limited to members.

4. Defendant John Harold Merrill, is, upon information and belief, an adult

resident-citizen of Montgomery, Alabama. He is the Secretary of State for the

State of Alabama, and as such, is charged with the general administration ofthe

election laws and specific duties under such laws which are relevant to the issues

in this lawsuit.

4
 FACTS

5. Under §17-4-33 and §17-4-38, Code of Alabama (as amended), the

Defendant is required by Alabama law to compile and maintain a list of all

registered voters in Alabama.

6. Such lists, as to each registered voter must contain, inter alia, the name,

address, and voting location for each registered voter.

7. The voter registration list compiled and maintained by the Defendant is used

as the official list at voting locations to determine who is eligible to cast a vote in

any given election.

8. The voter registration list and the information contained on the list is very

valuable to a political party seeking access to the ballot and seeking votes in a

primary or general election in Alabama and gives a significant advantage in these

areas to a political party that has a copy ofthe voter registration list and a political

party which does not have copy of the voter registration list is placed at a distinct

disadvantage in its efforts to gain ballot access and to solicit and win votes..

9. The voter registration list is very valuable to a political party and having the

list gives a political party a distinct advantage in seeking to win an in a number of

ways, including, but not limited to the following:

A. The voter registration list allows a political party to know the number of
(
voters in a political voting location so as to know what voting locations the

political party might want to prioritize in its efforts to gain support among the

electorate.

5
 B. The voter registration list allows a political party, among other

advantages, to reach out directly to registered voters by name and at their home,to

solicit their support at the ballot box and with the party's platform, to

communicate political speech directly to voters to whom the political speech on

specific political issues might most directly apply and to introduce specific voters

to prospective or active candidates most relevant to such voters.

C. The voter registration list is vitally important to a party's ability to grow

and disseminate its political message and to seek out and have its members

associate with politically like-minded voters in order to solicit and obtain ballot

access signatures and to win elections for party candidates.

10. At present, upon information and belief, pursuant to §17-4-33(a)(10), the.

Defendant provides a copy of the voter registration list free of charge only to the

Democratic and Republican parties and charges any other political party or

independent candidate or prospective candidate for public elective office a fee for

a copy of the list.

11. On August 13, 2018, the LPA Chairperson wrote an email to the

Defendant's office, advising that with "massive" signature requirements under

Alabama law for the LPA to gain ballot access for the 2020 election, the LPA

needed to start its signature drive "immediately." To that end, the LPA requested

a copy of the Alabama voter registration list. The LPA received no response to its

email.

12. On December 31, 2018, the LPA Chair again wrote to the Defendant's

6
office, referred to her unanswered August email inquiry and again asked about

obtaining the voter registration list, specifically inquiring as to whether it can be

obtained in electronic/digital format, whether there would be a cost associated

with providing it to the LPA and, if so, how much that cost would be.

13. On January 7, 2019, the Defendant's Administrator of Elections sent an

email in response to the LPA's December 31, 2018 email, advising, inter alia, that

the LPA could, indeed, obtain a copy of the voter registration list in "electronic

format" at a cost of"approximate(ly)' $34,000. The LPA was referred to the

Defendant's website for online ordering, and was advised further that if payment

were to be made by credit or debit card, there would be an additional charge of

2.5%(approximately $850 more))

14. Under §17-4-33(a)(10), Code of Alabama(as amended), the

Defendant provides this exact same voter registration list that the LPA would have

to pay approximately $34,000 for free of charge to the Democratic and Republican

parties upon their request.

15. In fact, under §17-4-33(a)(10), if the Chair ofthe Democratic or Republican

parties sent a written request to the Defendant for the same voter registration list

the Chair of the LPA requested, the Defendant would provide two copies of the

list to the Chair of the Democratic or Republican parties free of charge.

16. Section 17-4-38(b), Code of Alabama(as amended) provides:

The following is the site to which the Defendant referred the LPA to order and make payment
for the voter registration list online:
https://www.alabamainteractive.org/sos/voter/voterWelcome.action.

7
"Except as provided in this section, there shall be a uniform charge for the

production of voter lists. The reproduction costs of the basic electronic copy of

the statewide file shall be reasonable as determined by the Secretary of State ...."

17. Neither of the sentences from §17-4-38(b)excerpted in the previous

paragraph is true or accurate.

18. In the subsections of §17-4-38 which follow subsection (b)and to which the

"excepr language in (b)applies, provide for(1)a free copy of the voter

registration list to legislators for their district [§17-4-38(e);(2)a free copy of the

statewide voter registration list to the Administrative Office of the Courts [§17-4-

38(0]; and (3)the free exchange of the statewide voter registration list with any

other state at the Defendant's discretion [§17-4-38(g). But when it comes to the

production of a statewide voter registration list to political parties in Alabama,

notwithstanding the language of §17-4-38(b), there is anything but a "uniform

charge;" for the major political parties get it for free, while minor political parties

have to pay an exorbitant fee for it. In effect, those who can least afford it, have to

pay the most.

19. Notwithstanding the provision in §17-4-38(b)that "... The reproduction

costs of the basic electronic copy of the statewide file shall be reasonable as

determined by the Secretary of State ...," the cost for those, like the Plaintiff, who

have to pay for the statewide voter registration list is prohibitively expensive and

has been set at a level that virtually ensures that a minor political party or an

independent candidate could never afford it.

8
20. The Defendant is required by law in Alabama to compile and maintain a

current statewide voter registration list and it maintains it in electronic/digital

format, for its own purposes as the law requires. See e.g., §17-4-38.1, Code of

Alabama(as amended).

21. There is no significant additional expense generated by providing a copy of

the statewide voter registration list, already compiled and maintained as required

by Alabama law, in electronic/digital form, to any requesting party.

22. Having a copy of Alabama's statewide voter registration list provides a

distinct advantage to any political party trying to obtain access to the ballot iw

Alabama and trying to transmit its political message to Alabama voters in order to

obtain their support for ballot access, increase their ability to associate with others

who share their political philosophy and goals and, ultimately to obtain additional

votes.

23. Plaintiff LPA is required under Alabama law to obtain 51,588 signatures to

gain access to the statewide ballot in Alabama for the 2020 election. This is an

onerous burden. The discrimination described herein between the major parties

and minor parties like the Plaintiff, by providing the major parties with the

statewide voter registration list free of charge, while charging the LPA

approximately $34,000, is just one more obstacle Alabama places in the way of

minor parties to try to prevent them from growing and to gaining access to the

ballot.

24. Alabama law, especially through the cornbination of §§17-4-33 and 17-4-

9
38, unconstitutionally discriminates between major political parties and minor

political parties, in an effort to, and with the direct effect of rnaking creating

obstacles which make it more difficult for a minor political party like the LPA to

establish itself and grow, garner support, gain access to the ballot in Alabama, and

obtain votes in order to grow and have its members and followers hold public

elective office,

25. This discrimination by Defendant and as a matter of Alabama law, between

major political parties and minor political parties like the Plaintiff violates the

rights of Plaintiff, its members, its followers, and those who wish to cast their vote

for LPA candidates and associate with them, guaranteed under the First

Amendment and under the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution.

26. The price Defendant charges minor parties like the Plaintiff to obtain a copy

of the voter registration list is far higher than any fee for a voter registration list

charged by just about any other State in the nation, many of which provide them

entirely free of charge.

27. The requirement that minor political parties and independent candidates for

elective office pay a prohibitively and unjustifiably expensive price for the

electronic transfer of statewide voter registration lists already compiled and

maintained by the Defendant violates the rights of Plaintiff, its member, its

followers, and those who wish to cast their votes for LPA candidates and associate

with them, guaranteed under the First and Fourteenth Amendments to the United

10
States Constitution.

28. Plaintiff and its members and followers among Alabama's voters have been

proximately harmed by this discrimination with respect to the provision of voter

registration lists. They have been denied their fundamental constitutional rights as

candidates and voters.

29. There is no state interest sufficient to justify this unconstitutional

discrimination against the LPA and other similarly situated political parties in

Alabama, their members, voters, and others who wish to associate with the LPA

for political purposes.

30. Defendant has at all times relevant to this action acted under color of state

law and the rights violated by Defendant's discrimination as described herein have

been clearly established rights under the First and Fourteenth Amendments for

many years.

31. Defendant's actions under color of law have deprived and will continue to

deprive Plaintiff and their members and voters oftheir fundamental constitutional

rights, and unless enjoined, will continue to inflict continuing and irreparable

injury to the them.

32. Defendant's provision of the statewide voter registration list in the

discriminatory manner described herein and the prohibitively and unjustifiably

high price Defendant charges Plaintiff and others similarly situated will continue

to cause irreparable injury to Plaintiff and the fundamental constitutional rights of

their members and voters for which there is no adequate remedy at law. Plaintiff

11
is likely to succeed on the rnerits in this action, and both the balance of harrn and

the public interest favor granting an injunction as hereinbelow requested.

CAUSE OF ACTION (42 U.S.C.§ 1983)

33. Paragraphs 1-32 of this Complaint are incorporated and restated herein as

if expressly set forth.

34. Sections 17-4-33 and 17-4-38 and other provisions of Alabama law

described herein that discriminate between major political parties on the one hand

and minor political parties and independent candidates on the other with respect to

the provision of voter registration lists, providing such lists to the former free of

charge and to the latter only upon payment of an unjustifiably exorbitant,

prohibitively expensive price, effectively denying them a copy, on their face and

as applied to this Plaintiff, violate Plaintiffs rights guaranteed to them under the

First Amendment and under the Equal Protection Clause ofthe Fourteenth

Amendment to the United States Constitution.

35. Such provisions of Alabama law on their face and as applied to this

Plaintiff and its members,followers, voters, and those who wish to associate with

them for political purposes violate their right to cast their votes effectively and to

advance their political beliefs as guaranteed,by the First and Fourteenth

Amendments to the United States Constitution.

CLAIMS FOR RELIEF

WHEREFORE,Plaintiff respectfully requests that this Court grant the

following relief:

12
1. Enter a judgment declaring the Alabama state law provisions codified in

§§17-4-33(a)(10) and 17-4-38, insofar as they refer to the provision of voter

registration lists and discriminate with respect to the same between major political

parties on the one hand and minor political parties and independent candidates and

voters on the other, as described herein, to be violative of the First and Fourteenth

Amendments to the United States Constitution and otherwise unconstitutional

facially and as applied to this Plaintiff;

2. Issue a preliminary and permanent injunction prohibiting the Defendant,

his agents, employees, and other persons in concert with him from enforcing the

state statutes at issue that prevent Plaintiff LPA from obtaining a statewide voter

registration list free of charge and requiring Defendant to provide a statewide

voter registration list to the Plaintiff free of charge.

3. Award Plaintiff reasonable attorney's fees and costs ofthis action;

4. Grant Plaintiff such other and further relief as this Court deems just and

equitable.

Respectf lly S bmi d.

/s/ David I. Schoen

Counsel for Plaintiff
(ASB-0860-042D)
David I. Schoen
Attorney at Law
2800 Zelda Road, Suite 100-6
Montgomery, Alabama 36106
Telephone: 334-395-6611
Facsimile: 917-591-7586
E-Mail: Dschoen593@aol.com
Schoenlawfirm@zmail.com

13
 JS 44 (Rev. 12/12) CIVIL COVER SHEET
• The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the liling and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Contcrence of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE(JF' THIS FORM.)

I. (a) PLAINTIFFS
(\L.. r% i t I 7.DEFENDANTS
E V
Libertarian Party of Alabama ~3.64 Harold Merrill, Ala. Secty of State
(b) County of Rcsidcncc of First Listed Plaintiff • 44
Montgo JAN 21 1Coi4t8of Residenecof First Listed Dcfcndant Montgomery
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONL Y)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
•
II !PT
(e) Attorneys (Firm Name, Address, and Telephone Namheo D;
!. 1 r -; ikaprneys (lfKnown)
David I. Schoen, 2800 Zelda Rd., Se. 100-6, Montgomery, AL 36106 Alabama Attorney General, 501 Washington Ave, Montgomery, AL
334-395-6611 36014; 334-242-7300

I I. BAS1S OF JURISDICTION (Place an "X- in One Bar Only) III. CI FIZENSHIP OF PRINCIPAL PARTIES(Place an "X- in One Bar Plaintiff
For Diversity Cases Only) and ale Box Thr Delinidant)
1 I U.S. Gove-rnment 11, 3 Fcdcral Qucstion PTF I)EF PTF DEF
Plaintiff (U.S. GoVernment Not a Par1,0 Citizen of This State Di 1 11.11 I Incorporated or Principal Placc 71 4 D 4
of Business In This State

CI 2 U.S. Government D 4 Diversity Citizen of Another Statc D 2 0 2 Incorporated and Principal Place D 5 D 5
Dcfcndant (Indicate Citizenship pl.Panics in Item 110 of Business ln AnothcrStatc

Citizen or Subjcct of a 0 3 D 3 Foreign Nation D 6 06

IV. NATURE OF SUIT (Place an "X"in One Box Onlv)
I "sCO RACT`M - myoRTS-:i-w-3
, ,- ,--mim;:
0 110 Insurance PERSONAL INJURY
D 120 Marine D 310 Airplane
D 130 Miller Act D 315 Airplane Product
D 140 Negotiable Instrument Liability
D 150 Recovery of Overpayment D 320 Assault, Libel &
& Enforcement ofJudgment Slander
D 151 Medicare Act D 330 Federal Employers'
1 152 Recovery of Detbulted Liability
Studcnt Loans D 340 Marine
(Excludes Vcterans) D 345 Marine product
71 153 Recovery of Overpayment Liability
of Veteran's Benefits 0 350 Motor Vchicle
0 160 Stockholders• Suits D 355 Motor Vehicle
D 190 Other Contract Product Liability
71 195 Contract Product Liability 1 360 Other Personal
D 196 Franchise Injury
0 362 Personal Injury -
Medical Malpractice
1:',':.r7RE' DPFRTYWN_-, ;',,'•:L,,CrYILEIGETTS:,;, . .,.' RISONEWEETI
0 210 Land Condemnation D 440 Other Civil Rights
D 220 Foreclosure D 441 Voting
D 230 Rent Leasc & Ejectment D 442 Employment
1 241) Torts to Land D 443 Housing/
D 245 Tort Product Liability Accommodations
71 290 All Other Real Property ri 445 Amer. w/Disabilities -
Employment
71 446 Amer. w/Disabilifies -
Otber
D 445 Education
PERSONAL INJURY
D 365 Personal Injury -
Product Liability
D 367 Health Carc/
Pharmaceutical
Personal Injury
Product Liability
ci 368 Asbeslos Personal
Injwy Product
Liability
PERSONAL PROPERTY
D 370 Other Fraud
D 371 Truth in Lending
D 380 Other Personal
Property Damage
D 385 Property Damage
Product Liability
S',K, D 791 Employee Retirement
Habeas Corpus:
D 463 Alien Detainee
D 510 Motions to Vacatc
Sentence
0 530 General
ri 535 Death Penalty
Other:.
D 540 Mandamus & Other
0 550 Civil Rights
D 555 Prison Condition
D 560 Civil Detainee -
Conditions of
Confinement
Foreign.Conntry .
-FORFEITURE/PENALTY,P
D 625 Drug Related Seizure
of Property 21 USC 881
1 690 Othcr
A DITQw,
D 710 Fair Labor Standards
Act
D 720 Labor/Management
Relations
n 740 Railway Labor Act
D 751 Family and Mcdical
Lcavc Act
0 790 Other Labor Litigation
Income Security Act
I MIGRATION:Li,—
71 462 Natural ization ,Appl ication
D 465 Other Immigration
Actions
-.:LIAN 1) elP:'
',,-, '0",
' , .•;',- -ADTHERSTATUTES:
0 422 Appeal 28 USC 158 71 375 False Claims Act
D 423 Withdrawal 1 400 State Reapportioninent
28 USC 157 D 410 Antitrust
D 430 Banks and Banking
.,,:,
) r ,PROPERTY5 GILTS . '-" D 450 Commerce
D 820 Copyrights D 460 Deportation
D 830 Patent D 470 Racketeer Influenced and
1 840 Trademark Corrupt Organizations
D 480 Consumer Credit
,,'SDC 'SWUM, -,,",,,,,,:,' D 490 Cable/Sat TV
71 861 HIA (I 395ff) D 850 Seeurities/Corrnodities/
D 862 Blaek Lung(923) Exchange
D 863 DIWC/DIWW (405(g)) D 890 Other Statutory Actions
0 864 SSID Title XVI 0 891 Agricultural Acts
Itl 865 RSI (405(g)) 71 893 Environmental Matters
D 895 Freedom of Information
Act
D 896 Arbitration
FED -''Tif.:X' TS.:,-,:. D 899 Administrative Procedure
0 870Taxes(U.S. Plaintiff Act/ReView or Appeal of
or Defendant) Agency Decision
D 871 IRS—Third Party /9 950 Constitutionaliry of
26 USC 7609 State Statutes

V. ORIGIN (Place an "X''in One Box Only)

O I Original 0 2 Removed from 0 3 Remanded frorn 0 4 Reinstated or D 5 Transferred from D 6 Multidistrict
Procecding State Quirt Appcllatc Court Rcopcncd Another District Litigation
--- (spect09
Cite the U.S. Civil Statute under which you are filing(no iftpl citejurisdictimtal statutes unless diversity):
42. U.S.C. Sec. 1983
VI. CAUSE OF ACTION Brief description of cause:
Challenge to constitutionality of Ala. law Charging a fee for minor parties to obtain voter registration lists
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES Only if demanded in complaint:

COMPLAINT: UNDER RULE 23, F.R.Cv.P. 0.00 JURY DEMAND: 0 Yes X No

VI1l. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER

DATE SIGNATURE() ORNE )F RE

191 1
FOR-OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG.JUDGE

CORRECTED
Court Name: U S DISTRICT COURT - AL/M
DiAsion: 2
Receipt Number: 4602052139
Cashier ID: estrmn9
Transaction Date: u1424/2019
Payer Name: DAVID SCHOEN
CIVIL FILING FEE
For: DAVID SCHOEN
Case/Party: D-ALM-2-19-CV-000069-001
Amount: $400.00
CHECK
Check/Money Order Num: 951
Amt Tendered: $400.00
TOtal Due: 400.00
Iotal Tendered: 400.00
uhange Amt: $0.00
2:19-cv-00069-ECM-SRW
Libertarian Party of Alabama v.
Mettill