One Ga., Inc. v. Carr

599 F.Supp.3d 1320

ONE GEORGIA, INC.; AFG Group Inc. d/b/a Abrams for Governor; and Stacey Y. Abrams, Plaintiffs,

v.Christopher M. CARR, in his official capacity as the Attorney General of Georgia; James D. Kreyenbuhl, in his official capacity as Chairman of the Georgia Government Transparency and Campaign Finance Commission ; Eric L. Barnum, in his official capacity as Vice Chair of the Georgia Government Transparency and Campaign Finance Commissions ; Robert A. Watts, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission ; Darryl Hicks, in his official capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission. Rick Thompson, capacity as a Member of the Georgia Government Transparency and Campaign Finance Commission; and David Emadi, in his official capacity as Executive Secretary of the Georgia Transparency and Campaign Finance Commission, Defendants.

CIVIL ACTION FILE NO. 1:22-CV-1130-MHC

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

Signed April 14, 2022

Adam Martin Sparks, Joyce Gist Lewis, Krevolin & Horst, LLC, Atlanta, GA, for Plaintiffs.

Elizabeth Marie Wilson Vaughan, Elizabeth T. Young, Department of Law - Division 5, Atlanta, GA, for Defendants Christopher M. Carr, James D. Kreyenbuhl, Eric L. Barnum, Darryl Hicks, Rick Thompson, Robert A. Watts, David Emadi.

ORDER

MARK H. COHEN, United States District Judge

This case comes before the Court on Plaintiffs’ Motion for Preliminary Injunction¹ ("Pls.’ Mot.") [Doc. 9] and Defendants’ Motion for an Order to Certify a Question of Law to the Supreme Court of Georgia ("Defs.’ Mot.") [Doc. 33].

I. BACKGROUND

A. The Law Authorizing the Creation of Leadership Committees

On July 1, 2021, a state law became effective which provided a new mechanism by which certain Georgia public office holders may obtain contributions for elective office. Ga. Laws 2021, Act 219, § 1, eff. July 1, 2021. The new law, codified at O.C.G.A. § 21-5-34.2 (the "LC Statute"), provides, in pertinent part, that "[a] leadership committee may accept contributions or make expenditures for the purpose of affecting the outcome of any election or advocating for the election or defeat of any candidate ...." O.C.G.A. § 21-5-34.2(d). A "leadership committee" is defined as follows:

[A] committee, corporation, or organization chaired by the Governor, the Lieutenant Governor, the nominee of a political party for Governor selected in a primary election in the year in which he or she is nominated, or the nominee of a political party for Lieutenant Governor selected in a primary election in the year in which he or she is nominated. Such term shall also mean up to two political action committees designated by the majority caucus of the House of Representatives, the minority caucus of the House of Representatives, the majority caucus of the Senate, and the minority caucus of the Senate. No person may chair more than one leadership committee.

O.C.G.A. § 21-5-34.2(a).

A leadership committee may begin to accept contributions prior to being registered as such, but must register with the Georgia Government Transparency and Campaign Finance Commission (the "Commission") within ten days of beginning to accept contributions and must disclose contributions or expenditures in excess of $500.00:

A leadership committee which accepts contributions or makes expenditures in excess of $500.00 shall register with the commission within ten days of such accepted contribution or such expenditure and, thereafter, shall file disclosure reports pursuant to the schedule defined for candidates and campaign committees in subsection (c) of Code Section 21-5-34. Such disclosure reports shall be made pursuant to subsection (b) of Code Section 21-5-34.

O.C.G.A. § 21-5-34.2(e). A key component of the LC Statute is that "[t]he contribution limits in Code Section 21-5-41 shall not apply to contributions to a leadership committee or expenditures made by a leadership committee in support of a candidate or a group of named candidates," meaning that a leadership committee may accept contributions in any amount and is not bound by the current monetary limitation of $7,600 imposed upon candidates for statewide office and their campaign committees.²

B. Perdue v. Kemp

On July 8, 2021, Georgians First Leadership Committee, Inc. ("Georgians First") was established with Governor Brian Kemp as its chairperson. Perdue v. Kemp, 1:22-CV-0053-MHC, 584 F.Supp.3d 1310, 1315–16 (N.D. Ga. Feb. 7, 2022). On December 6, 2021, former United States Senator David Perdue ("Perdue") announced his intent to run for Governor of Georgia. Id. One month later, Perdue filed a complaint challenging the constitutionality of the LC Statute because it permitted Governor Kemp, as the sitting Governor, to raise and spend unlimited funds through Georgians First in the Republican Party primary election for Governor while Perdue could raise only a maximum of $7,600 from an individual contributor for the same primary election. Id.

On February 7, 2022, this Court found that Perdue was likely to succeed on the merits of his claim that the LC Statute violated his rights under the First Amendment because (1) the LC Statute effectively negated the contribution limit imposed upon all candidates for Governor in the primary election for just one candidate, Governor Kemp, through his leadership committee, Georgians First, (2) the State failed to demonstrate a sufficiently important state interest to support such a distinction, and (3) the statute was not closely drawn to serve any such purported interest. Id. at 1321–28. The Court preliminarily enjoined Georgians First

from expending funds beginning on the date of this Order (1) for the purpose of advocating for the re-election of Governor Kemp or the defeat of an opponent of Governor Kemp through the 2022 primary election and 2022 primary runoff election, if any there be, or (2) to defray ordinary and necessary expenses incurred in connection with Governor Kemp's campaign for re-election as Governor of Georgia though the 2022 primary election and 2022 primary runoff election, if any there be, until further Order of this Court.

Id. at 1329. The injunction did not prevent Georgians First from continuing to receive funds and make expenditures "in support of public officials other than Governor Kemp" nor make unlawful any expenditures made prior to the Court's Order to promote Governor Kemp's re-election or the defeat of an opponent of Governor Kemp. Id.

C. One Georgia

One Georgia, Inc. ("One Georgia") is a leadership committee chaired by Stacey Y. Abrams ("Abrams"), who has qualified to run in the Democratic Party primary election for Governor of Georgia. Verified Compl. ("Compl.") [Doc. 1] ¶¶ 13, 15, 46. One Georgia began accepting contributions following the end of the qualifying period for the primary election for Governor on March 11, 2022. Id. ¶ 51. Abrams was the only candidate to qualify for the Democratic Party's primary election for Governor of Georgia. Id. ¶ 47; Aff. of Nikema Williams (Mar. 15, 2022) [Doc. 1-2] ¶ 7. On March 16, 2022, One Georgia electronically submitted its registration form through the Commission's online portal. Id. ¶ 52. One Georgia received an email confirming that its registration had been processed and approved by the Commission. Id. ¶ 53.

However, that same day, One Georgia sought confirmation from Robert Lane ("Lane"), Deputy Executive Director and General Counsel of the Commission, "that approval of One Georgia's registration as a leadership committee constituted acceptance of One Georgia's lawful status as a leadership committee under the LC Statute." Id. ¶ 54. Following a phone conversation between Lane and One Georgia's counsel, One Georgia sent Lane an affidavit from the Chair of the Democratic Party of Georgia, Nikema Williams, "stating the party's position that Ms. Abrams is the party's nominee for Governor." Email from Adam M. Sparks to Robert Lane (Mar. 16, 2022 at 3:00 PM) [Doc. 1-3 at 12-13]. Lane responded back as follows:

The Commission acknowledges receipt of Ms. Williams’ affidavit. We are currently working with the Secretary of State's Office and the Department of Law to see if the affidavit is legally sufficient to declare Ms. Abrams the DPG's official nominee. As soon as I have an official response, I will circle back. Until then, as we discussed earlier, Ms. Abrams’ leadership committee One Georgia is not officially approved to commence fundraising pursuant to O.C.G.A. § 21-5-34.2(a).

Email from Robert Lane to Adam M. Sparks (Mar. 16, 2022 at 4:22 PM) [Doc. 1-3 at 12].

After receiving no further communication by the next morning, One Georgia asked Lane for the status of his response, Email from Adam M. Sparks to Robert Lane (Mar. 17, 2022 at 10:31 AM) [Doc. 1-3 at 11], and Lane indicated that he was trying to get an answer "as soon as practicable" but added, in part:

[T]he Commission is not the arbiter of when a person is declared a candidate, nominee or public officer; for that determination, we must defer to others. Once I have that legal opinion, I will be able to communicate it promptly ....

That being said, the Commission's position has always been crystal clear and communicated to your client via several avenues, including in person to her campaign manager, that until there was an official nomination to stand for election, your client would not be able to commence fundraising under the provisions of O.C.G.A. § 21-5-34.2.

Email from Robert Lane to Adam M. Sparks (Mar. 17, 2022 at 12:59 AM) [Doc. 1-3 at 4]. Lane next advised One Georgia's attorney that the response from the Secretary of State's office should come on March 18, 2022, Email from Robert Lane to Adam M. Sparks (Mar. 18, 2022 at 12:41 PM) [Doc. 1-3 at 8], and then revised that prediction to a later date of Monday, March 21, 2022, Email from Robert Land to Adam M. Sparks (Mar. 18, 2022 at 5:33 PM) [Doc. 1-3 at 1]. Plaintiffs...