Case 7:10-cv-02067-SLB Document 18 Filed 09/02/10 Page 1 of 5 FILED

2010 Sep-02 PM 01:32

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’ REPLY TO DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ MOTION TO CLARIFY SCHEDULING ORDER
 Case 7:10-cv-02067-SLB Document 18 Filed 09/02/10 Page 2 of 5

Plaintiffs William Johnson et al., through undersigned counsel, reply as

follows to defendants’ response, Doc. 17, to plaintiffs’ motion, Doc. 16, for

clarification and/or reconsideration of the scheduling order entered August 30,

2010, Doc. 15.

Defendants are simply wrong when they argue that scheduling a hearing on

plaintiffs’ motions for preliminary injunction, Docs. 3 and 12, at the same time as a

hearing on defendants’ motion to dismiss, Doc. 13, would be “contrary to the

interests of both federalism and judicial economy....” Doc. 17 at 1. Only this

three-judge court has jurisdiction to address both plaintiffs’ motion for preliminary

injunction and defendants’ motion to dismiss plaintiffs’ claim under § 5 of the

Voting Rights Act, 42 U.S.C. § 1973c. And the three-judge court does not have

jurisdiction to address the remaining statutory and constitutional claims in the

complaint.

It is judicially efficient and routine for a three-judge court to hold a single

hearing on both a motion for preliminary injunction and a motion to dismiss. E.g.,

Smith v. Clark, 189 F.Supp.2d 503, 505 (S.D. Miss. 2002) (3-judge court) (Voting

Rights Act), aff’d sub nom. Branch v. Smith, 538 U.S. 254 (2003); Johnson v.

Mortham, 915 F.Supp. 1529, 1534 (N.D. Fla. 1995) (3-judge court) (Voting

Rights Act). It is just as routine for the hearing on preliminary injunction and

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motion to dismiss to be consolidated in single-judge actions. E.g., National

Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 848

(1985); Hodel v. Indiana, 452 U.S. 314, 320 (1981); Operation King's Dream v.

Connerly, 501 F.3d 584, 586 (6th Cir. 2007) (Voting Rights Act); Kuhn v.

Thompson, 304 F.Supp.2d 1313, 1321 (M.D. Ala. 2004). The hearing on the

Governor of Alabama’s motion for preliminary injunction was consolidated with

defendant’s motion to dismiss in Hunt v. Anderson, 794 F.Supp. 1551, 1553 (M.D.

Ala. 1991).

The motion for preliminary injunction and motion to dismiss both require

the three-judge court to resolve the merits of plaintiffs’ § 5 claim: Did Governor

Riley’s Executive Order 44 and the Task Force raids carried out pursuant to that

executive order implement changes affecting voting? There is no point in hearing

one motion but not the other.

Delaying the hearing until November 2010 would effectively deny plaintiffs’

motion for preliminary injunction.

WHEREFORE, plaintiffs pray that the three-judge court will grant the relief

sought in their motion to clarify, Doc. 16.

Respectfully submitted this 2nd day of September, 2010,

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Edward Still s/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: jblacksher@ns.sympatico.ca
E-mail: still@votelaw.com
Fred D. Gray
Bar No. ASB-1727-R63F
Gray, Langford, Sapp, McGowan,
Gray & Nathanson
P. O. Box 830239
Tuskegee , AL 36083-0239
Attorneys for plaintiffs 334-727-4830
Fax: 334-727-5877
E-mail: fgray@glsmgn.com

CERTIFICATE OF SERVICE

I hereby certify that on September 2, 2010, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following counsel of record:

Henry T. Reagan (REA021) Martha Tierney (TIE001)

OFFICE OF GOVERNOR BOB OFFICE OF GOVERNOR BOB
RILEY RILEY
600 Dexter Avenue 600 Dexter Avenue
Montgomery, Alabama 36130 Montgomery, Alabama 36130

Notice of this filing has also been sent by email and first class postage to:

Hon. Troy King Respectfully submitted,

Attorney General
500 Dexter Ave. s/James U. Blacksher
Montgomery AL 36130 Bar No. ASB-2381-S82J
P.O. Box 636

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Birmingham AL 35201
205-591-7238
Fax: 866-845-4395
E-mail: jblacksher@ns.sympatico.ca