Fair Fight Action, Inc. v. Raffensperger

634 F.Supp.3d 1128

FAIR FIGHT ACTION, INC., et al., Plaintiffs, v. Brad RAFFENSPERGER, et al., Defendants.

CIVIL ACTION FILE No. 1:18-CV-5391-SCJ

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

Signed September 30, 2022

OPINION AND MEMORANDUM OF DECISION

STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This is a voting rights case that resulted in wins and losses for all parties over the course of the litigation and culminated in what is believed to have been the longest voting rights bench trial in the history of the Northern District of Georgia. "[B]earing in mind that these circumstances involve 'one of the most fundamental rights of ... citizens: the right to vote,'" the Court now, in accordance with applicable law, approaches this case with caution to render its Opinion and Memorandum of Decision, inclusive of findings of fact and conclusions of law. Ga. State Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs, 775 F.3d 1336, 1343 (11th Cir. 2015) (citations omitted).

TABLE OF CONTENTS

I. FINDINGS OF FACT...1144

A. Procedural History...1144

B. The Named Parties...1149

1. Plaintiffs...1149

2. The Named Defendants...1151

C. The Issues and Challenged Practices...1153

1. Training on Absentee Ballot Cancelations...1153

2. Exact Match...1157

3. The Secretary of State's Alleged Mismanagement of Voter Rolls...1163

4. Plaintiffs expert witnesses...1170

5. Other Evidence Considered...1175

II. CONCLUSIONS OF LAW...1176

A. Jurisdictional Considerations...1176

1. Standing...1176

2. Political Question Doctrine...1195

3. Mootness...1196

B. Count I: Fundamental Right to Vote Claim...1197

1. Legal Standard...1197

2. Issue: Absentee Ballot Cancelation Procedures...1199

3. Issue: The Secretary of State's Alleged Mismanagement of the Voter Rolls...1207

4. Issue: Exact Match...1217

C. Count II: Fifteenth Amendment...1225

1. Legal Standard...1225

2. Issue and Challenged Practices: Exact Match (MIDR and Citizenship Match)...1226

D. Count III: Equal Protection...1235

1. Legal Standard...1236

2. Racial Discrimination...1236

3. Geographic Discrimination...1236

E. Count V: Section 2 of the Voting Rights Act...1240

1. Analysis of the Applicable Factors and Guideposts...1241

F. Remaining Affirmative Defenses...1250

III. CONCLUSION...1251

I. FINDINGS OF FACT

Having considered the evidence at trial, the parties' presentations (pursuant to Federal Rule of Civil Procedure 52(c)), and closing arguments, this Court makes the following findings of fact.¹

A. Procedural History

A review of the record shows that on November 27, 2018, Fair Fight Action and Care in Action filed a Complaint in this Court for declaratory and injunctive relief in which they alleged "serious and unconstitutional flaws in Georgia's elections process." Doc. No. [1], ¶ 2. The Complaint has since been amended twice, first as a matter of right on February 19, 2019, and again with permission of the Court on December 3, 2020. See Doc. Nos. [41]; [570]; [582]. Four faith-based organizations—Sixth Episcopal District of the A.M.E. Church, Ebenezer Baptist Church, Baconton Missionary Baptist Church, and Virginia-Highland Church—subsequently joined the Amended Complaint as Plaintiffs. Doc. No. [41].²

In the operative Second Amended Complaint, Plaintiffs sue Secretary of State Brad Raffensperger in his official capacity.³ Doc. No. [582]. Plaintiffs also sue the State Election Board ("SEB") itself and members of the SEB in their official capacities. Id. Plaintiffs allege violations of federal law related to: the fundamental right to vote secured by the First and Fourteenth Amendments to the United States Constitution (Count I); the ban on racial discrimination in voting secured by the Fifteenth Amendment (Count II); violation of equal protection secured by the Fourteenth Amendment (Count III); violation of procedural due process secured by the Fourteenth Amendment (Count IV);⁴ and violation of Section 2 of the Voting Rights Act of 1965 (Count V). Id.

The Court has issued a number of substantive orders in this case. First, on May 30, 2019, the Court ruled on a Motion to Dismiss brought by Defendants. Doc. No. [68]. The Court granted the Motion to the extent it sought to dismiss the claims against the SEB premised on 42 U.S.C. § 1983 and on the Help America Vote Act (which Plaintiffs subsequently eliminated from the case with respect to all Defendants by the filing of the Second Amended Complaint). See Doc. Nos. [68], 84; [570]; [582]. The Court denied the Motion to the extent it sought to dismiss the remaining counts against all Defendants or to dismiss the Voting Rights Act claim against the SEB. Doc. No. [68], 83-84. The Court found all elements of standing were satisfied. Id. at 22.

Second, on December 27, 2019, the Court issued its decision on Plaintiffs' Motion for Preliminary Injunction, which concerned Georgia's list maintenance process and the changing of the status of a large number of Georgia voters on the State's inactive voter list to canceled status. Doc. No. [188]. The motion initially concerned 120,561 voters; however, "[s]ubsequent to the filing of Plaintiffs' motion, the Secretary of State returned 22,000 of the 120,561 voters [at issue] to the voting roll (after review of Plaintiffs' briefing and based upon the definition of a calendar year)." Doc. No. [188], 2-3. The Court eventually denied Plaintiffs' motion on Eleventh Amendment and state sovereignty grounds. Id. at 32. At the conclusion of the order, the Court exercised its inherent authority to control the conduct of the parties and ordered Defendants to make additional diligent and reasonable efforts (through notices on the Secretary of State's website and press releases) to inform the general public of the voter list maintenance process and the need for the canceled voters to reregister to vote during the applicable registration time period. Id. at 188.

Third, on February 16, 2021, the Court issued a decision on Defendants' Motion for Summary Judgment with respect to jurisdictional issues. Doc. No. [612]. The Court dismissed Plaintiffs' claims about changes in precincts and polling places on standing grounds, and it dismissed Plaintiffs' claims as they pertained to security of the voter registration database, dates of birth on absentee ballots, and failure to notify voters of absentee ballot rejections for mootness. Id. at 71-72. The standing dismissal was based largely on a recent opinion from the Eleventh Circuit, Jacobson v. Florida Secretary of State, 957 F.3d 1193 (11th Cir.), opinion vacated and superseded, 974 F.3d 1236 (11th Cir. 2020). The mootness dismissal was based upon the State of Georgia's significant change to its election laws in the form of HB 316 and HB 392 and cessation of the behavior on which Plaintiffs' claims were based. As stated in the Court's prior orders:

During the 2019 Legislative Session, the Georgia General Assembly passed HB 316 and HB 392. HB 316, which was signed into law by the Governor on April 2, 2019, amends the Georgia Election Code to, among other things, provide for more notice under Georgia's voter-list-maintenance process; to provide that a voter registration is not automatically rejected under the Exact Match policy; to provide for the implementation of new voting machines; to prohibit the superintendent of a county from changing a polling place less than thirty days before a general primary or general election; to authorize the Secretary of State to become a member of a nongovernmental entity whose purpose is to share and exchange information in order to improve the accuracy and efficiency of voter registration systems; and to change the way which provisional ballots and absentee ballots are counted

....

HB 392, which was signed into law by the Governor on April 29, 2019, requires the Secretary of State to promulgate a regulation establishing industry-based security standards and to annually certify that Georgia is substantially complying with its own security regulations.

Doc. No. [68], 23-24; see also Doc. No. [612], 58-64.

Fourth, the Court issued a decision on Defendants' Motion for Summary Judgment on the merits on March 31, 2021. Doc. No. [617]. The Court dismissed claims relating in general to provisional ballots, absentee ballot rejections, the untimely mailing of absentee ballots, and the "voter purge" process.⁵Id. at 24. The Court also dismissed Fifteenth Amendment claims and equal protection claims based on racial discrimination (other than those pertaining to Exact Match);⁶ equal protection claims relating to disparities based on geography or residence (other than those pertaining to Exact Match and in-person absentee ballot cancelation); and a procedural due process claim relating to list maintenance. Id. at 94-95. The Court stayed its consideration of Plaintiffs' Voting Rights Act claim pending the United States Supreme Court's decision in Arizona Republican Party v. Democratic National Committee, — U.S. —, 141 S. Ct. 221, 207 L.Ed.2d 1165 (Mem.) (2020) (No. 19-1258). Doc. No. [617], 95.

Finally, on November 15, 2021, the Court issued a decision on Defendants' Renewed Motion for Summary Judgment on Plaintiffs' Voting Rights Act claim following the Supreme Court's July 1, 2021, decision in Brnovich v. Democratic National Committee, — U.S. —, 141 S. Ct. 222, 207 L.Ed.2d 1165 (2020), which was consolidated with Arizona Republican Party. See — U.S. —, 141 S. Ct. 2321, 210 L.Ed.2d 753 (2021). This Court denied Defendants' Renewed Motion for Summary Judgment as to Plaintiffs' Voting Rights Act claim. See Doc. No. [636], 47.

After the summary judgment proceedings concluded, the Court entered a series of pretrial orders, and the Court's Amended-Final Consolidated Pretrial Order (Doc. No. [753]) governed the issues for trial. In Plaintiffs' Statement of the Case for purposes of the Pretrial Order, Plaintiffs described their remaining claims as follows:

Plaintiffs contend that Defendants the Georgia Secretary of State (SOS), the State Election

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