Black Voters Matter Fund v. Raffensperger

508 F.Supp.3d 1283

BLACK VOTERS MATTER FUND, Transformative Justice Coalition, the Rainbow Push Coalition, and Southwest Voter Education Project, Plaintiffs,

v.Brad RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, Defendant.

Republican National Committee and Georgia Republican Party, Intervenor-Defendants.

CIVIL ACTION FILE NO. 1:20-CV-04869-SCJ

United States District Court, N.D. Georgia, Atlanta Division.

Signed December 16, 2020

Fred David Gray, Pro Hac Vice, Gray, Langford, Sapp, McGowan, Gray, Gray, & Nathanson, PC, Tuskegee, AL, Gerald A. Griggs, Gerald A. Griggs, LLC, Maria Olabosipo Banjo, Maria O. Banjo, LLC, Decatur, GA, Jeanne Ellen Mirer, Pro Hac Vice, Mirer, Mazzocchi & Julien PLLC, New York, NY, Tricia P. Hoffler, The CK Hoffler Firm, Atlanta, GA, for Plaintiffs.

Bryan Francis Jacoutot, Bryan P. Tyson, Loree Anne Paradise, Taylor English Duma LLP, Atlanta, GA, for Defendant.

Cameron T. Norris, Pro Hac Vice, Tyler R. Green, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, Zachary M. Wallen, Pro Hac Vice, Chalmers & Adams, LLC, Pittsburgh, PA, Douglas A. S. Chalmers, Jr., Chalmers & Adams, LLC, Johns Creek, GA, for Intervenor-Defendants.

ORDER

STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. No. [6]). Defendant Secretary of State ("Defendant" or the "Secretary") opposes the Motion (Doc. No. [31]), as do Intervenor-Defendants (Doc. No. [39]). The Court held an evidentiary hearing via videoconference on December 10, 2020. Doc. No. [51]. Following the hearing, the parties submitted supplemental briefing, which this Court has reviewed. Doc. Nos. [52]; [54]. The Court now rules as follows.¹

I. BACKGROUND

The four named Plaintiffs in this civil action are: Black Voters Matter Fund ("BVMF"), Transformative Justice Coalition ("TJC"), Rainbow Push Coalition ("RPC"), and Southwest Voter Education Project ("SVEP"). Doc. No. [27]. BVMF is a non-partisan civic organization with a goal of increasing power in communities of color and maintaining core programs related to voting rights and access. Id. ¶ 1. TJC is a non-partisan 501(c)(3) organization that seeks to be a catalyst for transformative institutional changes to bring about justice and equality in the United States. Id. ¶ 2. TJC is involved in promoting voting rights through its "Democracy and Voting Rights Project." Id. RPC is a multi-racial, multi-issue, progressive, international membership organization that fights for social change. Id. ¶ 3. The RPC has a programmatic arm and an initiative related to voter registration. Id. SVEP "is an organization with a long history in assisting voters in education and registration." Id. ¶ 4.

Plaintiffs collectively filed this civil action on December 2, 2020 (Doc. No. [1]) and amended their complaint on December 8, 2020 (Doc. No. [27]). They bring statutory and constitutional claims, alleging Defendant unlawfully cancelled thousands of voters from Georgia's voter rolls. Doc. No. [27], pp. 1–5. More specifically, in Count I of their Amended Complaint, Plaintiffs allege that Defendant violated the National Voting Rights Act ("NVRA") by failing to use a United States Postal Service ("USPS") licensee to evaluate notice of change of address lists and removing registered voters from Georgia' voter rolls when they had not moved. Id. at 31. In Count II of their Amended Complaint, Plaintiffs allege that Defendant violated the NVRA's requirement to have accurate and current voter lists. Id. at 32. In Count III of their Amended Complaint, Plaintiffs allege that the State of Georgia's implementation of a "Use it or Lose It" process to remove voters from the voting rolls (as a proxy that a registrant has changed addresses) violates the Fourteenth Amendment to the United States Constitution. Id. at 33. The essence of Plaintiffs' factual claims arise from the investigation of the Palast Investigative Fund and expert analysis, which concluded that a total of "199,908 Georgians [in 2019] had their [voter] registrations cancelled for allegedly moving, when, according to experts in the field, in all likelihood[,] they had not." Id. ¶¶ 18, 48, 50.

On December 3, 2020, Plaintiffs filed their Motion for Preliminary Injunction. Doc. No. [6]. Plaintiffs seek emergency injunctive relief and have asked this Court to order Defendant to place approximately 200,000 individuals (whose registrations were cancelled in 2019) back onto the voter rolls before the January 5, 2021 Senate runoff election. See Doc. No. [6], pp. 1, 3.

Defendant opposes Plaintiffs' Motion. Doc. No. [31]. Defendant argues that Plaintiffs lack organizational standing because they have failed to show that they diverted resources from their mission in response to Defendant's actions. Id. at 10.² Defendant also asserts that Plaintiffs have failed to establish the requirements for a preliminary injunction. Id. at 10–22.

Intervenor-Defendants also oppose Plaintiffs' Motion. Doc. No. [39]. They join Defendant's arguments (id. at 2) and emphasize two main points. First, they argue that the equities weigh against granting Plaintiffs' requested relief because they delayed too long in bringing this claim. Id. at 2–3. Second, they adopt Defendant's arguments in contending that Plaintiffs are unlikely to succeed on their statutory and constitutional claims. Id. at 4.

After full briefing and evidentiary hearing, this matter is now ripe for ruling.

II. LEGAL STANDARD

A. Organizational Standing

To bring a lawsuit in federal court, a plaintiff must have standing. Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020). To have standing, the plaintiff must show that it has suffered an injury in fact that has a causal connection to the defendant's conduct, and which the court likely can redress with a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Trichell, 964 F.3d at 996 (stating that the party invoking a federal court's jurisdiction has the burden to establish standing). An organization may have standing under a "diversion-of-resources" theory when it must divert resources to counteract a defendant's unlawful acts, thereby impairing the organization's ability to engage in its typical projects. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ; Common Cause Ind. v. Lawson, 937 F.3d 944, 952–53 (7th Cir. 2019) (listing cases finding organizational standing for voter-advocacy groups that were forced to divert resources to counteract unlawful election activity).³

Under Eleventh Circuit law, a litigant can establish organizational standing to challenge election laws by showing it has or will have to divert time, personnel, or other resources from its usual projects to assist voters whose ability to vote is affected by State action. See Arcia v. Fla. Sec'y of State, 772 F.3d 1335, 1341 (11th Cir. 2014) ; Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1165–66 (11th Cir. 2008) (finding organizational standing when a plaintiff diverted resources from election-day education and monitoring to educating volunteers and voters on compliance with a new election law). Even when an organization diverts its resources to achieve its typical goal in simply a different or amplified manner, the organization may still gain standing. See Browning, 522 F.3d at 1166 (finding organizational standing when a plaintiff anticipated that it would "expend many more hours than it otherwise would have" on specific election-related activity).

B. Preliminary Injunction

The Court considers four factors when deciding whether to issue a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 : (1) whether there is a substantial likelihood of success on the merits; (2) whether the preliminary injunction is necessary to prevent irreparable injury; (3) whether the threatened injury outweighs the harm that the preliminary injunction would cause to the non-movant; and (4) whether the preliminary injunction would be adverse to the public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). Injunctive relief is an extraordinary and drastic remedy and should not be granted unless the movant clearly establishes the burden of persuasion as to each of these four factors. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).

In addition, "[a]t the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the character and objectives of the injunctive proceeding.’ " Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). The decision to grant preliminary injunctive relief is within the broad discretion of the district court. Majd–Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 902 (11th Cir. 1984).

III. ANALYSIS

A. Plaintiffs Have Organizational Standing

Before addressing the merits of Plaintiffs' Motion for Preliminary Injunction, the Court must address whether Plaintiffs have Article III standing.

Caron Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d 1353, 1363 (S.D. Fla. 2012). Plaintiffs assert that they have established organizational standing under a diversion-of-resources theory. Doc. No. [6-1], pp. 8–14. Each Plaintiff is an organization involved in civic engagement and that undertakes work in voting rights and voter education. See Doc. No. [27], ¶¶ 1–4

BVMF and its founder assert that it has diverted resources from its typical election-related programs, such as voter education and registration, to counteract the Secretary's alleged NVRA violations by spending thousands of dollars to send postcards to individuals erroneously cancelled from Georgia voter rolls. Id. ¶ 1; Doc. No. [44], ¶¶ 10–11.⁴ TJC and its President assert that it diverted resources from its voting...