Case 7:10-cv-02067-SLB Document 12 Filed 08/16/10 Page 1 of 11 FILED

2010 Aug-16 AM 09:49

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

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARL *

LEFTWICH, BOBBI MORGAN, DONALD *
MEANS, ERNEST EDMONDS, FAIRY *
GORDON, IRIS SERMON, JOHNNY BUTLER, *
MERJEAN LITTLE, MOSES JONES, VASSIE *
BROWN, WILLIE MAE REEVES, BEVERLY *
GORDON, JOHNNY B. MORROW, FANNIE *
ISHMAN, LESLIE CHEATEM, MARGIE *
JAMES, BOBBY SINGLETON, A. J. *
MCCAMBELL, JOHNNY FORD, LOUIS *
MAXWELL, MARY RUTH WOODS, LISA M. *
WARE, CLARA P. GRIMMETT, CHARLES *
CHAMBLISS, JOHNNIE B. HARRISON, G. *
DYANN ROBINSON, SHIRLEY W. CURRY, *
SARAH STRINGER, MILES D. ROBINSON, and *
WILLIE LEE PATTERSON, individually and on *
behalf of others similarly situated, *
*
Plaintiffs, *
* Civil Action No.
v. * 7:10-cv-02067-SLB
*
BOB RILEY, in his individual capacity and in his * 3-judge court
official capacity as Governor of Alabama, and *
JOHN M. TYSON, JR., individually and in his *
official capacity as special prosecutor and task *
force commander of the Governor’s Task Force on *
Illegal Gaming, *
*
Defendants. *

PLAINTIFFS’ AMENDED MOTION FOR PRELIMINARY INJUNCTION

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Plaintiffs William Johnson et al., through undersigned counsel, pursuant to

Rule 65, Fed.R.Civ.P., move for an expedited hearing and entry of a preliminary

injunction under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, restoring the

status quo ante in both Greene County and Macon County. Since plaintiffs filed

their original motion for preliminary injunction, Doc. 4, the status quo has been

altered in Macon County, and now the electronic bingo operations in both counties

are closed on account of defendants’ actions or threatened actions. As grounds for

their motion, plaintiffs rely on their brief supporting their original motion, Doc. 4,

and further would show as follows:

1. Plaintiffs’ original motion for a preliminary injunction, Doc. 3, asked for

relief preserving the status quo in Macon County. Subsequently, the electronic

bingo operations at VictoryLand have been forced to close under the threat of

imminent renewed raids by the defendants’ Task Force.

2. There is a substantial likelihood that plaintiffs will prevail on the merits.

a. Ala. Const. Amendment 555, adopted in 1994, authorized local

amendments to the state constitution to be approved solely by the voters in the

county affected. The U.S. Attorney General precleared Amendment 555 under § 5

of the Voting Rights Act only after removal of the provision in Amendment 425 (to

which the Attorney General had interposed an objection) requiring unanimous

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approval of a proposed amendment by the Local Constitutional Amendment

Commission, composed of the Governor, Presiding Officer of the Senate, Attorney

General, Secretary of State, and Speaker of the House of Representatives. See

Exhibit A.

b. In 2003, Greene County voters approved Amendment 743, which

expressly authorizes electronic bingo in Greene County and designates the Sheriff

as the officer charged with promulgating regulations and enforcing compliance.

The legislative intent to authorize electronic bingo is clear in Amendment 743

because it uses the word “electronic.” The scheduling of a special election in

Greene County to approve Amendment 743 was precleared under § 5 of the Voting

Rights Act. See Exhibit B.

c. In 2003, Macon County voters approved Amendment 744, which

authorizes bingo in Macon County and designates the sheriff as the officer charged

with promulgating regulations and enforcing compliance. The public debate (as

evidenced by newspaper articles, advertising, and handbills circulated both pro and

con) in 2003 regarding the proposed Amendment centered around whether to allow

all forms of bingo including “electronic” and “machine” bingo. Therefore, the

voters in Macon County were clearly aware that electronic bingo would be

authorized under Amendment 744. The scheduling of a special election in Macon

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County to approve Amendment 744 was precleared under § 5 of the Voting Rights

Act. See Exhibit B.

d. The Greene County Sheriff’s regulations, issued pursuant to his

authority provided by Amendment 743, expressly authorize electronic bingo.

e. The Macon County Sheriff’s regulations, issued pursuant to his

authority provided by Amendment 744, expressly authorize electronic bingo.

f. Both the Alabama Supreme Court and the U.S. District Court for

the Middle District of Alabama have acknowledged that the Macon County

Sheriff’s bingo regulations have been in force and effect since late 2003.

g. In 2006, Governor Riley proposed bills to amend the state

constitution that, according to his official press release, would “ban[] the use of

electronic devices in playing bingo under existing local amendments, limiting the

games that are authorized to traditional paper bingo. Any future amendments to

authorize any gambling in Alabama would require a statewide vote and not just a

local vote by the county involved.” See Exhibit C.

h. Thus defendant Riley recognized that a statewide constitutional

amendment was necessary to overturn Local Amendments 743 and 744.

Defendant Riley’s proposed statewide constitutional amendment did not pass the

Legislature.

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i. There is no question that, if Governor Riley’s proposed statewide

constitutional amendment had been adopted, it could not have been implemented

without first being submitted and receiving preclearance under § 5 of the Voting

Rights Act.

j. In 2008, defendant Riley claimed he had the discretion to decide,

unilaterally and without any judicial determination, that electronic bingo in Greene

and Macon Counties violates certain provisions of the Alabama Constitution and

anti-gambling statutes that were superseded by Amendments 743 and 744, adopted

under the procedures of Amendment 555. So he issued Executive Order 44 and

appointed a Task Force Commander.

k. Defendant Riley’s executive order and Task Force actions

effectively implement his 2006 proposed statewide constitutional amendment that

failed to pass the Legislature. For the same reasons that defendant Riley’s

proposed statewide constitutional amendment would have required § 5

preclearance, his executive order and Task Force actions constitute changes in

standards, practices and procedures affecting voting that cannot be implemented

without § 5 preclearance.

l. Under § 5 of the Voting Rights Act, it does not matter whether

Amendments 743 and 744 and the Sheriffs’ regulations and enforcement of them

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are valid under state law or not. It only matters that they have been “in force and

effect,” which both state and federal courts have acknowledged.

m. Defendant Riley’s Executive Order 44, as amended, and his Task

Force actions are changes affecting the voting rights of citizens of Greene and

Macon Counties, as granted by Amendment 555, in at least two ways:

i. They have effectively vetoed Amendments 743 and 744 and

the Sheriffs’ regulations promulgated thereunder, contrary to the condition on

which Amendment 555 received § 5 preclearance, and they have nullified the votes

of the citizens of those counties, denying their right to vote for electronic bingo.

ii. Defendant Riley has de facto replaced the elected Sheriffs

as the officers constitutionally responsible for enforcing the law governing bingo in

Greene and Macon Counties with an appointed official, the Task Force

Commander.

3. Plaintiffs and the class they seek to represent will suffer irreparable

injury unless the preliminary injunction issues.

a. Because of Congress’ intent to place the burdens of time and

inertia on the state, South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966), the

need for a preliminary injunction is particularly compelling in § 5 coverage cases

and is necessary to prevent unprecleared changes affecting voting from being

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implemented. See Plaintiffs’ Brief Supporting Motion for Preliminary Injunction,

Doc. 4 at 3-4.

b. Contrary to Congress’ intent, the “advantage of time and inertia”

in the instant action remains with defendants until such time as this Court enters

either a preliminary or final injunction.

c. In addition to the harm befalling the electorates in Greene and

Macon Counties in being deprived of the home rule powers granted to those

counties by Amendments 555, 743, and 744, there are severe economic injuries to

the citizens, the school systems, and the economies of the two counties. See Doc.

4 at 15-20. The bingo operations in Greene County have been shut down for over

a month now, and that has “effectively cut off the financial life blood of this poor

Black Belt county.” See Exhibit D. The relief to which plaintiffs are entitled for

violation of their rights under § 5 of the Voting Rights Act is urgently needed.

4. Defendants will suffer no irreparable injury if a preliminary injunction is

entered. The electronic bingo constitutionally authorized by the voters in Greene

and Macon Counties operated for over six years before defendants decided to close

them with police raids. Alternatively, the threatened injury to plaintiffs and the

class they seek to represent outweighs whatever damage the proposed injunction

may cause defendants.

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5. If issued, the injunction would not be adverse to the public interest. To

the contrary, it would carry out Congress’ intent in enacting § 5 of the Voting

Rights Act, which is to shift the burden of time and inertia to the state to

demonstrate that changes in standards, practices or procedures affecting voting will

have neither the purpose nor the effect of denying or abridging the right to vote of

African Americans.

6. The three-judge court statute, 42 U.S.C. § 2284(b)(2), contains the

following requirement: “If the action is against a State, or officer or agency

thereof, at least five days’ notice of hearing of the action shall be given by

registered or certified mail to the Governor and attorney general of the State.”

WHEREFORE, for the reasons set out above and in Plaintiffs’ Brief

Supporting Motion for Preliminary Injunction, Doc. 4, plaintiffs pray:

A. That the Court will schedule an expedited hearing on plaintiffs’ motion

for preliminary injunction as amended.

B. That the Court will give notice of the hearing on the motion for

preliminary injunction by registered or certified mail to the Governor and attorney

general of the State (or authorize the Plaintiffs to give such notice).

C. Following the hearing before this three-judge Court, that the Court will:

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(1) enter a preliminary injunction prohibiting defendants Riley and

Tyson and those acting in concert with them or at their direction from

implementing Executive Order 44 and amended Executive Order 44 and from

conducting, or threatening to conduct, the Task Force actions in Greene and Macon

Counties complained of herein until they have been submitted and precleared

under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c; and

(2) grant such other and further equitable relief as may be necessary to

restore the voting, personal, and property rights of plaintiffs and the class they seek

to represent in Greene and Macon Counties violated by the unlawful

implementation of Executive Order 44 and amended Executive Order 44 and the

Task Force actions and threatened actions complained of herein.

D. Plaintiffs further pray that the court will exercise its discretion under

Rule 65(c), Fed.R.Civ.P., and waive the requirement that plaintiffs give security in

an amount that the court considers proper to pay the costs and damages sustained

by any party found to have been wrongfully enjoined or restrained. Alternatively,

plaintiffs offer to post security in the form of a bond, or as otherwise required by

the Court, in such sum as the Court deems necessary.

Respectfully submitted this 16th day of August, 2010,

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s/Edward Still James U. Blacksher

Bar No. ASB-4786-I 47W Bar No. ASB-2381-S82J
2112 11th Avenue South P.O. Box 636
Suite 541 Birmingham AL 35201
Birmingham, AL 35205 205-591-7238
205-320-2882 Fax: 866-845-4395
fax 205-449-9752 E-mail:
E-mail: still@votelaw.com jblacksher@ns.sympatico.ca

Fred D. Gray
Bar No. ASB-1727-R63F
Gray, Langford, Sapp, McGowan,
Gray & Nathanson
P. O. Box 830239
Attorneys for plaintiffs Tuskegee , AL 36083-0239
334-727-4830
Fax: 334-727-5877
E-mail: fgray@glsmgn.com

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CERTIFICATE OF SERVICE

I hereby certify that on August 16, 2010, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, and I sent by email and first
class mail notification of such filing to the following:

John M. Tyson, Jr. Hon. Bob Riley

Task Force Commander Governor's Office
Office of Governor Bob Riley State Capitol
600 Dexter Avenue 600 Dexter Avenue
Montgomery, Alabama 36130 Montgomery, Alabama 36130

John M. Tyson, Jr. Hon. Troy King

District Attorney Attorney General
205 Government Street Suite C-501 500 Dexter Ave.
Mobile, Alabama 36644 Montgomery AL 36130

s/Edward Still

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