New Ga. Project v. Raffensperger

484 F.Supp.3d 1265

The NEW GEORGIA PROJECT, et al., Plaintiffs,

v.Brad RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al., Defendants.

1:20-CV-01986-ELR

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

Signed August 31, 2020

Adam Martin Sparks, Halsey G. Knapp, Jr., Joyce Gist Lewis, Krevolin & Horst, LLC, Atlanta, GA, Amanda R. Callais, Pro Hac Vice, Perkins Coie, K'shaani Smith, Pro Hac Vice, Marc E. Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Kevin J. Hamilton, Pro Hac Vice, Perkins Coie LLP, Stephanie R. Holstein, Pro Hac Vice, Perkins Coie, Seattle, WA, Lilian Magarita Timmermann, Pro Hac Vice, Perkins Coie LLP, Denver, CO, Christian Ramses Ruiz, Perkins Coie, Phoenix, AZ, for Plaintiff The New Georgia Project.

Adam Martin Sparks, Halsey G. Knapp, Jr., Joyce Gist Lewis, Krevolin & Horst, LLC, Atlanta, GA, Amanda R. Callais, Pro Hac Vice, Perkins Coie, K'shaani Smith, Pro Hac Vice, Marc E. Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Kevin J. Hamilton, Pro Hac Vice, Perkins Coie LLP, Stephanie R. Holstein, Pro Hac Vice, Perkins Coie, Seattle, WA, Lilian Magarita Timmermann, Pro Hac Vice, Perkins Coie LLP, Denver, CO, for Plaintiffs Reagan Jennings, Candace Woodall, Beverly Pyne.

Alexander Fraser Denton, Joshua Barrett Belinfante, Melanie Leigh Johnson, Brian Edward Lake, Carey Allen Miller, Vincent Robert Russo, Jr., Robbins Ross Alloy Belinfante Littlefield, LLC, Charlene S. McGowan, Georgia Attorney General's Office, Atlanta, GA, for Defendants Brad Raffensperger, Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, Anh Le.

Irene B. Vander Els, Shelley Driskell Momo, DeKalb County Law Department, Decatur, GA, for Defendants Samuel E. Tillman, Anthony Lewis, Susan Motter, Dele Lowman Smith, Baoky N. Vu.

Daniel Walter White, Haynie, Litchfield & White, PC, Marietta, GA, for Defendants Phil Daniell, Fred Aiken, Jessica M. Brooks, Neera Bahl, Darryl O. Wilson, Jr.

Bryan Francis Jacoutot, Bryan P. Tyson, Diane Festin LaRoss, Loree Anne Paradise, Taylor English Duma LLP, Atlanta, GA, for Defendants Beauty Baldwin, Ben Satterfield, Stephen Day, Alice O'Lenick, John Mangano.

Ralph Jonathan Hart, Chatham County Attorney, Savannah, GA, for Defendant Colin Mcrae.

Bryan P. Tyson, Taylor English Duma LLP, Atlanta, GA, for Defendants Darry Hicks, Addison Lester, Aaron Wright.

Jack Reynolds Hancock, Freeman Mathis & Gary, LLP, Forest Park, GA, for Defendants Carol Wesley, Dorothy Foster Hall, Patricia Pullar, Darlene Johnson, Diane Givens.

Alan G. Snipes, James Clinton Clark, Jr., Page, Scrantom, Sprouse, Tucker & Ford, P.C., Columbus, GA, for Defendants Margaret Jenkins, Uhland Roberts, Diane Scrimpshire, Linda Parker, Eleanor White.

David Alan Cole, Timothy M. Boughey, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants David C. Fedack, Robert Proctor, Daniel Zimmermann, Myesha Good, Maurice Hurry.

Kenneth Paul Robin, Jarrard & Davis, LLP, Cumming, GA, for Defendants Pamela Middleton, Dontravious M. Simmons, Benny G. Hand, Annabelle T. Stubbs, Frederick Williams, Barbara Luth, Matthew Blender, Joel Natt, Carla Radzikinas, Randy Ingram.

William J. Linkous, III, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants Aldren Sadler, Sr., Karen James, Gerald Barger.

Kenneth Paul Robin, Megan Nicole Martin, Jarrard & Davis, LLP, Cumming, GA, for Defendants Phil Johnson, Kelly Robinson, Dustin Thompson.

Rachel Nicole Mack, Augusta Georgia Law Department, Augusta, GA, for Defendants Tim McFalls, Sherry T. Barnes, Marcia Brown, Terence Dicks, Bob Finnegan.

Virginia Candace Josey, William H. Noland, Noland Law Firm, LLC, Macon, GA, for Defendants Henry Ficklin, Mike Kaplan, Herbert Spangler, Cassandra Powell, Rinda Wilson.

Gregory C. Sowell, Cook & Tolley, LLP, John Matthew Hawkins, Athens-Clarke County Attorney's Office, Athens, GA, for Defendants Jesse Evans, Charles Knapper, Willa Fambrough, Ann Till.

Kenneth Paul Robin, Patrick D. Jaugstetter, Jarrard & Davis, LLP, Cumming, GA, for Defendants Arch Brown, Mildred Schmelz, Dan Richardson, Donna Morris-McBride, Andy Callaway.

Kaylan L. Phillips, Pro Hac Vice, Public Interest Legal Foundation, Indianapolis, IN, Harry W. MacDougald, Caldwell Propst & DeLoach, LLP, Atlanta, GA, for Defendant Public Interest Legal Foundation.

Matthew C. Forys, Pro Hac Vice, Michael J. O'Neill, Pro Hac Vice, Landmark Legal Foundation, Leesburg, VA, Harry W. MacDougald, Caldwell Propst & DeLoach, LLP, Atlanta, GA, for Defendant Landmark Legal Foundation.

ORDER

Eleanor L. Ross, United States District Judge Presently before the Court is Plaintiffs’ Motion for Preliminary Injunction. [Doc. 57]. For the reasons below, the Court grants in part and denies in part Plaintiffs’ motion.

I. Background

This case concerns Plaintiffs The New Georgia Project, Reagan Jennings, Candace Woodall, and Beverly Pyne's challenge to five (5) aspects of Georgia's absentee voting system (hereinafter "the Challenged Policies"). Am. Compl. [Doc. 33]. Plaintiffs bring these challenges in light of the dangers presented by COVID-19 in relation to the upcoming November 2020 general election. Id. The Challenged Polices are:

1. O.C.G.A. § 21-2-381(b)(4) (labeled by Plaintiffs as "the Notification Process") — This statute governs Georgia's notification process to voters when the relevant election official is unable to determine the identity of the elector from the information given on an absentee ballot application. O.C.G.A. § 21-2-381(b)(4). Specifically, the statute states: "[i]f the registrar or clerk is unable to determine the identity of the elector from information given on the application, the registrar or clerk should promptly write [to the elector] to request additional information." Id. Plaintiffs claim that the term "promptly" fails to provide a uniform standard to govern the process for notifying voters about any "errors" in their ballot applications.

2. O.C.G.A. § 21-2-381(a)(1)(G) (labeled by Plaintiffs as "Absentee Age Restriction") — This statute allows electors sixty-five (65) years of age or older, voters with disabilities, and Uniformed Overseas Citizens Absentee Voting Act voters to submit one application absentee ballot application for an entire election cycle. O.C.G.A. § 21-2-381(a)(1)(G).¹ All other voters must submit a separate, distinct absentee application for each election (primary, general, etc.). Id. Plaintiffs claim that this statute discriminates against younger voters by creating an unconstitutional age restriction on those who may submit a single application to vote by mail for an entire election cycle.

3. "Absentee Postage Tax" — There is no portion of the Georgia Code that addresses who must pay for postage for absentee ballot applications and absentee ballots being cast through the mail. Plaintiffs claim that Georgia's failure to provide pre-paid postage for the return mailing of absentee ballots is an unconstitutional poll tax that severely burdens the right to vote in light of the dangers posed by COVID-19.

4. O.C.G.A. § 21-2-386(a)(1)(F) (labeled by Plaintiffs as "Receipt Deadline") — This statute requires that absentee ballots must be delivered to a county election official by 7:00 p.m. on Election Day. O.C.G.A. § 21-2-386(a)(1)(F).² Plaintiffs claim that this receipt deadline will disenfranchise voters whose absentee ballots arrive after that time through "no fault of their own."

5. O.C.G.A. § 21-2-385(a) (labeled by Plaintiffs as "Voter Assistance Ban") — This statute prohibits third-party assistance in mailing or delivering completed absentee ballots, subject to certain defined exceptions. O.C.G.A. § 21-2-385(a).³

Plaintiffs claim that this statute "significantly raises the risk that lawful, eligible voters will be disenfranchised," eliminates critical assistance to voters who are homebound, and "hamstrings the ability of organizations like The New Georgia Project to assist voters in making the transition to absentee voting."

See generally Am. Compl. at 10–14. In sum, Plaintiffs allege that in the context of the public health emergency caused by COVID-19, the Challenged Policies will unconstitutionally burden and disenfranchise thousands of voters in the upcoming November 2020 election. See generally id.

In accordance with these allegations, Plaintiffs seek declaratory and injunctive relief. [Doc. 57]. Specifically, Plaintiffs request the Court to: (a) issue a declaratory judgment that the Challenged Policies are unconstitutional, and (b) preliminarily enjoin Defendants⁴ from implementing and enforcing the Challenged Policies. [Doc. 57-1 at 2]. Additionally, Plaintiffs ask the Court to:

• order Defendants to "notify all voters of absentee application deficiencies within three (3) days of receiving the application, or by the next business day for applications received during the eleven (11) days before the election;"

• "permit voters of all ages to submit a single absentee ballot application per election cycle to vote by mail ballot in any election during that cycle;"

• "provide voters with prepaid postage on all absentee ballots;"

• "accept and count otherwise valid absentee ballots from qualified voters that are postmarked by Election Day and arrive at their respective county's office within, at a minimum, five (5) business days after Election Day;" and

• "allow voters to designate any third party to assist in the collection and submission of their absentee ballots."

[Id. at 2–4].

The Court first provides an overview of Georgia's absentee ballot system and other relevant context before addressing the substance of Plaintiffs’ motion.

A. Georgia's Absentee Ballot System

In Georgia, the law permits a registered voter to vote via absentee ballot. See O.C.G.A. § 21-2-380. To do so, a voter must submit an application with sufficient identifying information—i.e., name, date of birth, phone number, and registration address—"either by mail, by facsimile transmission, by electronic transmission, or in person in...