U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:20−cv−01312−ELR

4months

Cooper et al v. Raffensperger Assigned to: Judge Eleanor L. Ross Cause: 42:1983 Civil Rights Act Plaintiff James L. (Jimmy) Cooper, III an individual
Plaintiff Martin Cowen an individual
Plaintiff Georgia Green Party an unincorporated political body

Date Filed: 03/26/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question
represented by Bryan Ludington Sells The Law Office of Bryan L. Sells, LLC P.O. Box 5493 1226 Springdale Road, NE Atlanta, GA 31107−0493 404−480−4212 Email: bryan@bryansellslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Ludington Sells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Ludington Sells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Brad Raffensperger in his official capacity as Secretary of State of the State of Georgia

represented by Charlene S McGowan Georgia Attorney General's Office 40 Capitol Square SW Atlanta, GA 30334 404−656−3389 Email: cmcgowan@law.ga.gov ATTORNEY TO BE NOTICED

Date Filed 03/26/2020
03/26/2020 03/27/2020 04/01/2020

# Docket Text
1 COMPLAINT filed by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Filing fee $400, receipt number AGANDC−9524709) (Attachments: # 1 Civil Cover Sheet)(bnp) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 03/27/2020)
2 Electronic Summons Issued as to Brad Raffensperger. (bnp) (Entered: 03/27/2020)
3 General Order 20−01 re: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 3/16/2020. (bnp) (Entered: 03/27/2020)
4 WAIVER OF SERVICE Returned Executed by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. Brad Raffensperger waiver mailed on 3/26/2020, answer

04/01/2020 05/01/2020 05/04/2020 05/04/2020 05/04/2020 05/05/2020 05/08/2020
05/18/2020 05/18/2020 05/26/2020 05/27/2020 05/29/2020 05/29/2020

due 5/26/2020. (Sells, Bryan) (Entered: 04/01/2020)
5 Amended General Order 20−01 re COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 3/30/20. (dgs) (ADI) (Entered: 04/01/2020)
6 Unopposed MOTION for Leave to File Excess Pages by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Text of Proposed Order)(Sells, Bryan) (Entered: 05/01/2020)
7 ORDER granting in part and denying in part 6 Motion for Leave to File Excess Pages. The page limit for each party's principal brief on the plaintiffs' motion for preliminary injunction shall be thirty−five (35) pages. Signed by Judge Eleanor L. Ross on 5/4/2020. (jap) (Entered: 05/04/2020)
8 NOTICE FROM THE COURT: INSTRUCTIONS FOR CIVIL CASES ASSIGNED TO THE HONORABLE ELEANOR L. ROSS. (mlb) (Entered: 05/04/2020)
9 SECOND AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 04/30/2020. (dgs) (ADI) (Entered: 05/04/2020)
10 NOTICE of Appearance by Charlene S McGowan on behalf of Brad Raffensperger (McGowan, Charlene) (Entered: 05/05/2020)
11 MOTION for Preliminary Injunction by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Exhibit 1: Executive Order 03.14.20.01, # 2 Exhibit 2: Executive Order 03.16.20.01, # 3 Exhibit 3: Executive Order 03.23.20.01, # 4 Exhibit 4: Executive Order 03.26.20.02, # 5 Exhibit 5: Executive Order 04.01.20.01, # 6 Exhibit 6: Executive Order 04.02.20.01, # 7 Exhibit 7: Executive Order 04.08.20.02, # 8 Exhibit 8: Executive Order 04.23.20.02, # 9 Exhibit 9: Executive Order 04.30.20.01, # 10 Exhibit 10: Raffensperger announcement of March 14, 2020, # 11 Exhibit 11: Raffensperger announcement of March 24, 2020, # 12 Exhibit 12: Raffensperger announcement of April 9, 2020, # 13 Exhibit 13: letter from Harvey to Cowen, # 14 Exhibit 14: WHO statement, # 15 Exhibit 15: WHO directors remarks, # 16 Exhibit 16: Azar determination, # 17 Exhibit 17: Presidential Proclamation, # 18 Exhibit 18: Cowen ECF 113, # 19 Exhibit 19: Cowen ECF 97, # 20 Exhibit 20: Declaration of Scott Cambers, # 21 Exhibit 21: Declaration of Jimmy Cooper, # 22 Exhibit 22: Declaration of Martin Cowen, # 23 Exhibit 23: Declaration of Hugh Esco, # 24 Exhibit 24: Declaration of Joe Reed, # 25 Exhibit Index)(Sells, Bryan) (Entered: 05/08/2020)
12 Consent MOTION for Extension of Time File Response re: 11 MOTION for Preliminary Injunction with Brief In Support by Brad Raffensperger. (Attachments: # 1 Text of Proposed Order)(McGowan, Charlene) (Entered: 05/18/2020)
13 ORDER granting 12 Motion for Extension of Time. Defendant shall have up to and including May 29, 2020, to file his response. Signed by Judge Eleanor L. Ross on 5/18/2020. (jap) (Entered: 05/18/2020)
14 ANSWER to 1 COMPLAINT by Brad Raffensperger. Discovery ends on 10/23/2020.(McGowan, Charlene) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 05/26/2020)
15 THIRD AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 05/26/2020. (adg) (ADI) (Entered: 05/27/2020)
16 Certificate of Interested Persons by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Sells, Bryan) (Entered: 05/29/2020)
17 RESPONSE in Opposition re 11 MOTION for Preliminary Injunction filed by Brad Raffensperger. (Attachments: # 1 Affidavit Exhibit 1: Harvey Declaration, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(McGowan, Charlene) (Entered: 05/29/2020)

06/01/2020 06/03/2020
06/05/2020 06/09/2020 06/10/2020 06/11/2020
06/15/2020 06/23/2020 06/23/2020 06/26/2020 06/26/2020 06/30/2020
07/02/2020 07/09/2020

Clerks Notation re 16 Certificate of Interested Persons/Corporate Disclosure Statement by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. Read and approved by District Judge Eleanor L. Ross. (mlb) (Entered: 06/01/2020)
18 ORDER Setting Hearing on 11 MOTION for Preliminary Injunction. Motion Hearing set for 6/30/2020 at 09:30 AM in ATLA Courtroom 1708 before Judge Eleanor L. Ross. The Court DIRECTS the Parties to jointly submit, within fourteen (14) days from the date of entry of this order, a joint proposed schedule of the hearing setting forth how much time is requested by each party for oral argument. Signed by Judge Eleanor L. Ross on 6/3/2020. (jpk) (Entered: 06/03/2020)
19 Unopposed MOTION for Leave to File Excess Pages by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Text of Proposed Order)(Sells, Bryan) (Entered: 06/05/2020)
20 ORDER granting 19 Motion for Leave to File Excess Pages. The page limit for the plaintiffs' reply in support of their motion for a preliminary injunction shall be 22 pages. Signed by Judge Eleanor L. Ross on 6/8/2020. (jpk) (Entered: 06/09/2020)
21 Joint RESPONSE Regarding Oral Argument re 18 Order Setting Hearing on Motion filed by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Sells, Bryan) Modified on 6/11/2020 to edit text (jpk). (Entered: 06/10/2020)
22 REPLY BRIEF in Support of 11 MOTION for Preliminary Injunction filed by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Exhibit 25: Executive Order 05.28.20.01, # 2 Exhibit 26: Executive Order 05.28.20.02, # 3 Exhibit 27: Declaration of Richard Winger, # 4 Exhibit 28: Faulkner Complaint, # 5 Exhibit Index)(Sells, Bryan) Modified on 6/12/2020 to edit event text (jpk). (Entered: 06/11/2020)
Submission of 11 MOTION for Preliminary Injunction to District Judge Eleanor L. Ross. (jpk) (Entered: 06/15/2020)
23 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Text of Proposed Order)(Sells, Bryan) (Entered: 06/23/2020)
24 NOTICE by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party re 11 MOTION for Preliminary Injunction Notice of Supplemental Authority (Sells, Bryan) (Entered: 06/23/2020)
25 NOTICE by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party re 11 MOTION for Preliminary Injunction Second Notice of Supplemental Authority (Attachments: # 1 Exhibit People First v. Secretary of State of Alabama)(Sells, Bryan) (Entered: 06/26/2020)
26 NOTICE Of Filing by Brad Raffensperger re 17 Response in Opposition to Motion, Second Declaration of Chris Harvey (Attachments: # 1 Affidavit)(McGowan, Charlene) (Entered: 06/26/2020)
27 Minute Entry for proceedings held before Judge Eleanor L. Ross: Motion Hearing held on 6/30/2020 re 11 MOTION for Preliminary Injunction. Also present during the hearing was Assistant Attorney General Miles Skedsvold. Court called to order. Oral arguments regarding outstanding motion. All issues were taken under advisement with an order forthcoming. Court adjourned. (Court Reporter Penny Condriet) (jpk) (Entered: 06/30/2020)
28 FOURTH AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 07/01/2020. (dgs) (ADI) (Entered: 07/02/2020)
29 ORDER granting in part and denying in part 11 Motion for Preliminary Injunction. The Court grants Plaintiffs' request for preliminary injunctive relief but declines to impose their invited remedy. The Court ORDERS the Secretary to reduce the relevant signature requirements by 30% for the 2020 general election. Signed by Judge Eleanor L. Ross on 7/9/2020. (jed) (Entered: 07/09/2020)

07/13/2020 07/15/2020 08/04/2020 08/11/2020 08/21/2020
08/24/2020 09/02/2020

30 FIFTH AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 7/10/2020 (ddm) (ADI) (Entered: 07/13/2020)
31 SCHEDULING ORDER on the 23 Joint Preliminary Report and Discovery Plan. Discovery ends on 11/25/2020. Motions for summary judgment due by 12/24/2020. Proposed Pretrial Order due by 12/24/2020, or 30 days after entry of the Court's ruling on any pending motions for summary judgment. Signed by Judge Eleanor L. Ross on 7/15/2020. (jpk) (Entered: 07/15/2020)
32 SIXTH AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 08/03/2020. (jpa) (ADI) (Entered: 08/04/2020)
33 CERTIFICATE OF SERVICE of the Plaintiffs' Initial Disclosures, the Plaintiffs' First Interrogatories to the Defendant, and the Plaintiffs' First Requests for Production by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party.(Sells, Bryan) (Entered: 08/11/2020)
34 MOTION for Summary Judgment with Brief In Support by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party. (Attachments: # 1 Exhibit 1: Executive Order 07.31.20.01, # 2 Exhibit 2: Second Declaration of Hugh Esco, # 3 Statement of Material Facts)(Sells, Bryan) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 08/21/2020)
35 CERTIFICATE OF SERVICE of the plaintiffs' expert disclosures by James L. (Jimmy) Cooper, III, Martin Cowen, Georgia Green Party.(Sells, Bryan) (Entered: 08/24/2020)
36 SEVENTH AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONAVIRUS. Signed by Judge Thomas W. Thrash, Jr. on 9/1/2020. (dgs) (ADI) (Entered: 09/02/2020)

 
 Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, an individual, Martin Cowen, an individual, and the Georgia Green Party, an unincorporated political body,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. ___________________
Complaint

Nature of the Case 1. This is an action to modify Georgia’s ballot-access requirements for independent and third-party candidates in light of the current public health emergency caused by the novel coronavirus. Although the Secretary of State has exercised his authority under

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 2 of 20
O.C.G.A. § 21-2-50.1 to extend the deadline for independent and thirdparty candidates to submit nomination petitions for the 2020 general election, he lacks authority under state law to pro-rate the number of signatures required or to modify any other petition requirements. The result is that the plaintiffs have no reasonable opportunity to qualify for the ballot without endangering their own lives and the lives of others.
2. The plaintiffs are two third-party candidates for U.S. Representative who timely filed a declaration of candidacy and paid the required qualifying fee in March and the Georgia Green Party, which seeks to have the Green Party’s nominee for President of the United States appear on the ballot in November. They allege that, under these unprecedented circumstances, Georgia’s ballot-access restrictions unconstitutionally burden their rights under the First and Fourteenth Amendments to the U.S. Constitution, and they seek declaratory and injunctive relief pro-rating the number of petition signatures required and making other appropriate modifications to the petition requirements for the 2020 general election.
2

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 3 of 20
Jurisdiction and Venue 3. This Court has original jurisdiction over this case under Article III of the U.S. Constitution and 28 U.S.C. §§ 1331 and 1343(a)(3). 4. This suit is authorized by 42 U.S.C. § 1983. 5. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 6. Venue is proper in the Northern District of Georgia under 28 U.S.C. § 1391(b) and in the Atlanta Division under Local Rule 3.1.
Parties 7. Plaintiff James L. “Jimmy” Cooper, III, is the Georgia Green Party’s nominee for U.S. Representative in Georgia’s Eighth Congressional District. He timely filed a declaration of candidacy and paid the required qualifying fee in March 2020 but has not yet submitted the nomination petition required by Georgia law. He is 51 years old and meets all of the other qualifications for the office of U.S. Representative. 8. Plaintiff Martin Cowen is the Libertarian Party of Georgia’s nominee for U.S. Representative in Georgia’s Thirteenth Congressional District. He timely filed a declaration of candidacy and paid the required qualifying fee in March 2020 but has not yet submitted the nomination
3

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 4 of 20
petition required by Georgia law. He is 68 years old and meets all of the other qualifications for the office of U.S. Representative.
9. Plaintiff Green Party of Georgia is an unincorporated political body within the meaning of O.C.G.A. § 21-2-170. The party is registered under O.C.G.A. § 21-2-110(a) and (b). The party has participated in every presidential election since 1996 and expects to do so again this year. The party is prepared to submit its slate of presidential electors before the June deadline and to meet all of the other qualifications to have its presidential candidate appear on the ballot in the 2020 general election.
10. Defendant Brad Raffensperger is the Secretary of State of the State of Georgia (hereinafter, the “Secretary”). He is the chief election official of the State of Georgia. He is charged by statute with enforcing Georgia’s ballot-access restrictions. At all relevant times, the Secretary exercised his authority under color of state law within the meaning of 42 U.S.C. § 1983. He is sued in his official capacity only.
Background I. The Novel Coronavirus Presents a Threat to Public Health
4

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 5 of 20
11. In December 2019, an outbreak of respiratory disease caused by a novel coronavirus emerged in Wuhan, China.
12. The respiratory disease caused by the novel coronavirus, now known as “COVID-19,” is an infectious disease that can spread from person to person and can result in serious illness and death.
13. On January 30, 2020, after the coronavirus outbreak had spread well beyond China, the World Health Organization declared that COVID-19 constitutes a Public Health Emergency of International Concern.
14. On January 31, 2020, as a result of confirmed cases of COVID-19 in the United States, Health and Human Services Secretary Alex M. Azar II declared a nationwide public health emergency retroactive to January 27, 2020.
15. On February 27, 2020, the Centers for Disease Control issued guidance recommending, among other things, that members of the public practice “social distancing,” minimizing close contact with others, in order to slow the spread of COVID-19.
16. On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic.
5

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 6 of 20
17. On March 13, 2020, the President of the United States declared a national emergency (retroactive to March 1, 2020) due to the COVID-19 outbreak in the United States.
18. On March 14, 2020, Governor Brian Kemp declared a Public Health State of Emergency in the State of Georgia due to the public health emergency from the spread of COVD-19.
19. Also on March 14, 2020, Secretary of State Raffensperger postponed Georgia’s presidential preference primary from March 24 to May 19, 2020, due to the public health emergency from COVID-19. In announcing the postponement, Secretary Raffensperger noted that older Americans face an increased risk from COVID-19 and that “[a]ll individuals should practice social distancing and minimize contact with others . . . .”
20. On March 20, 2020, due to the COVID-19 public health emergency, Secretary Raffensperger invoked his authority under O.C.G.A. § 21-2-50.1 to extend the deadline for independent and political-body candidates to submit nomination petitions until 12:00 noon on Friday, August 14, 2020.
6

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 7 of 20
21. On March 24, 2020, Secretary Raffensperger announced unprecedented steps to protect public health and safety in the election process as a result of COVID-19. Those steps include mailing absentee ballot request forms to Georgia’s 6.9 million active voters, encouraging as many voters as possible to vote by mail, and implementing socialdistancing measures in polling places during the May 19 primary election.
22. According to the Centers for Disease Control, older adults (particularly those over 65) and people of any age who have serious underlying medical conditions (including asthma, heart disease, cancer, and diabetes) may be at higher risk for severe illness from COVID-19.
23. As of 7:00 p.m. on March 25, 2020, Georgia reported 1387 confirmed cases of COVID-19 and 47 deaths from the disease. There was at least one confirmed case of COVID-19 in 96 of Georgia’s 159 counties. II. Georgia’s Current Ballot-Access Restrictions
24. Georgia’s current ballot-access laws distinguish between three kinds of candidates for partisan public offices: (1) candidates nominated by a political party; (2) candidates nominated by a political body; and (3) independent candidates.
7

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 8 of 20
25. A “political party” is any political organization whose nominee received at least 20 percent of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2 (25).
26. Political parties choose nominees in partisan primaries, and the candidate nominated by the party appears automatically on the ballot for any statewide or district office. O.C.G.A. § 21-2-130(1).
27. The only political parties that meet the current definition of “political party” under Georgia law are the Democratic Party of Georgia and the Georgia Republican Party.
28. A “political body” is any political organization other than a political party. O.C.G.A. § 21-2-2 (23).
29. Political bodies must nominate candidates for partisan public offices by convention. O.C.G.A. § 21-2-170(g).
30. Political-body candidates for non-statewide offices, including the office of U.S. Representative, do not appear automatically on the ballot. In order to appear on the general-election ballot, such candidates must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 212-132(d); and (2) a nomination petition signed by five percent of the
8

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 9 of 20
number of registered voters eligible to vote for that office in the last election, O.C.G.A. § 21-2-170(b).
31. The notice of candidacy and qualifying fee for non-statewide candidates is due during the thirty-fifth week before the election (a date that falls in March). O.C.G.A. § 21-2-132(d).
32. The nomination petition for non-statewide candidates is due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2132(e). The Secretary’s recent order extends that deadline for the 2020 election to noon on Friday, August 14, 2020.
33. The nomination petition must be on sheets of uniform size and different sheets must be used by signers residing in different counties or municipalities. O.C.G.A. § 21-2-170(d). Each sheet of the nomination petition must also contain a sworn and notarized affidavit of the circulator attesting, among other things, that each signature on the sheet was gathered within 180 days of the filing deadline. Id.
34. For the 2020 election, a political-body candidate for U.S. Representative in Georgia’s Eighth Congressional District must submit at least 20,719 valid signatures in order to appear on the generalelection ballot.
9

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 10 of 20
35. For the 2020 election, a political-body candidate for U.S. Representative in Georgia’s Thirteenth Congressional District must submit at least 24,503 valid signatures in order to appear on the general-election ballot.
36. Political-body candidates for President of the United States do not appear automatically on the ballot. In order to appear on the general election ballot, (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a nomination petition containing 7,500 signatures. O.C.G.A. § 21-2-170(b); Green Party v. Kemp, 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016) (reducing the number of signatures from one percent of registered voters to 7,500), aff’d 674 F. Appx. 974 (11th Cir. 2017) (mem).
37. The notice of candidacy and qualifying fee for presidential candidates is due in late June. O.C.G.A. § 21-2-132(d).
38. The nomination petition for presidential candidates is due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2132(e). The Secretary’s recent order extends that deadline for the 2020 election to noon on Friday, August 14, 2020.
10

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 11 of 20
39. Independent candidates do not appear automatically on the ballot for any office unless the candidate is an incumbent. Nonincumbent candidates must follow the same rules as political-body candidates. III. The Burdens of Georgia’s Ballot-Access Restrictions
40. Georgia’s signature requirement for political-body candidates for U.S. Representative in the Eighth and Thirteenth Congressional Districts are higher, in absolute terms, than any signature requirement that an independent or third-party candidate for U.S. Representative has ever overcome in the history of the United States.
41. No political-body candidate for U.S. Representative has ever satisfied the requirements to appear on Georgia’s general-election ballot since the five-percent petition requirement was adopted in 1943.
42. Since 2002, more than 20 independent and political-body candidates for U.S. Representative have unsuccessfully attempted to qualify for the general-election ballot. Other potential candidates have been deterred by the signature requirement.
11

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 12 of 20
43. Georgia’s general elections for U.S. Representative have been among the most uncompetitive in the nation. In the three election cycles from 2012 through 2016, Georgia had 15 unopposed races for U.S. Representative—more than any other state in the nation.
44. The Secretary of State’s error-prone signature-validation process results in signatures being improperly rejected and signaturevalidation rates that are well below industry norms and those of other states. The most recent petition by an independent candidate for U.S. Representative resulted in a validation rate of only two percent. As a result, independent and political-body candidates must gather signatures far in excess of the number of valid signatures required to obtain ballot access under Georgia law.
45. The form of a nomination petition calls for a voter to provide a residential address, which is considered confidential, personally identifying information under Georgia law. O.C.G.A. § 21-2-225(b). In the past, potential petition-signers have expressed reluctance to sign, have provided incomplete information, or have refused to sign altogether, because of the information called-for by the form and the
12

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 13 of 20
possibility that it could be used for identity theft or other nefarious purposes.
46. The public-health emergency caused by COVID-19 makes it virtually impossible to gather petition signatures. Government officials at virtually every level are encouraging people to stay at home, to practice “social distancing,” and to avoid being within six feet of other people.
47. Gathering signatures during the COVID-19 outbreak endangers public health and the lives of petition-circulators and potential signers.
48. Even if it were feasible to gather signatures during the current public health emergency, it is unlikely that petition-circulators would be able to gather very many signatures because there are fewer people congregating in public places and fewer people are likely to open their doors to strangers who come knocking.
49. The postponement of the March 24 presidential preference primary also has had a negative effect on signature-gathering. Even though Georgia law prohibits canvassing for signatures within 150 feet of a polling place, it is still possible to gather signatures outside of that
13

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 14 of 20
buffer zone at some polling locations, making them an especially attractive place to gather voters’ signatures under normal circumstances.
50. The Secretary of State has also encouraged voters to make use of early voting and absentee voting in the upcoming elections, and that will likely reduce the number of voters present and available to sign petitions at the polls during the May 19 primary election.
51. Even after the public-health emergency subsides, the COVID-19 outbreak is likely to have a negative effect on signaturegathering. Voters may remain wary of close physical contact for some time. IV. Courts have Pro-Rated Petition Requirements in the Past
52. In Parker v. Barnes, Civ. No. 1:02-CV-1883-BBM (July 30, 2002), this Court pro-rated the number of signatures required of political-body candidates for U.S. Representative due to the fact that the boundaries of the congressional districts were not in place until 60 of the 180 days of the petitioning period had expired.
53. In 1982, a different federal court in Busbee v. Smith, civ. no. 82-0665 (D.D.C. 1982), suspended Georgia’s five-percent signature
14

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 15 of 20
requirement due to preclearance litigation over the State’s redistricting plan that delayed the adoption of new districts following the 1980 Census. Billy McKinney, who was an African-American and Democratic state representative from Atlanta, needed only 4,037 signatures to have his name placed on the general-election ballot as an independent candidate alongside the white Democratic incumbent, Wyche Fowler, in Georgia’s Fifth Congressional District.
54. In both cases, the courts pro-rated the number of signatures based on the fraction of the petitioning period remaining. V. The 2020 Election
55. In Georgia’s Eighth Congressional District, the Republican and Democratic parties have fielded candidates for the primary election in 2020. This means that there will be at least two candidates on the ballot in November. Plaintiff Cooper is the only independent or thirdparty candidate to submit a notice of candidacy and qualifying fee, so the maximum number of candidates on the general-election ballot is three.
56. In Georgia’s Thirteenth Congressional District, the Republican and Democratic parties have fielded candidates for the primary election in 2020. This means that there will be at least two
15

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 16 of 20
candidates on the ballot in November. Plaintiff Cowen is the only independent or third-party candidate to submit a notice of candidacy and qualifying fee, so the maximum number of candidates on the generalelection ballot is three.
57. With only three candidates for U.S. Representative on the ballot in 2020, the general-election ballot in Georgia’s Eighth and Thirteenth congressional districts is not likely to be so long as to lead to voter confusion.
58. Georgia is likely to have at least three presidential candidates on its general-election ballot in 2020: one each from the Democratic, Libertarian, and Republican parties. Georgia has not had more than three candidates for President on its ballot since 2000, when it had four such candidates. This year, no serious independent candidates for President have yet emerged, and the only other politicalbody that is likely to make an effort to have its presidential candidate appear on Georgia’s general-election ballot is the Green Party. As a result, there is not likely to be more than four candidates for President on Georgia’s general-election ballot in 2020.
16

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 17 of 20
59. With only four candidates for President of the United States on the ballot in 2020, Georgia’s general-election ballot is not likely to be so long as to lead to voter confusion.
60. Georgia may have a general run-off in January 2021 because of the large number of candidates running in the special election to fill Johnny Isakson’s seat in the U.S. Senate.
61. A runoff for a statewide office like U.S. Senator would be more expensive than a runoff for U.S. Representative would be. If there were to be a runoff for both U.S. Senator and U.S. Representative, the latter would only add a small marginal cost.
62. In total, there are no more than 12 independent or thirdparty candidates at the state or federal level who timely filed a declaration of candidacy and paid the required qualifying fee in March 2020 but who have not yet submitted the nomination petition required by Georgia law.
Claim One 63. Under present circumstances, Georgia’s ballot-access laws for independent political-body candidates for President of the United States and U.S. Representative violate rights guaranteed to these
17

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 18 of 20
plaintiffs by the First and Fourteenth Amendments to the U.S. Constitution, as enforced by 42 U.S.C. § 1983.
Relief 64. A real and actual controversy exists between the parties. 65. The plaintiffs have no adequate remedy at law other than this action for declaratory and equitable relief. 66. The plaintiffs are suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
WHEREFORE, the plaintiffs respectfully pray that this Court: (1) assume original jurisdiction over this case; (2) enter a declaratory judgment that, in light of the current public health emergency caused by the novel coronavirus, Georgia’s ballot-access laws for independent and political-body candidates for President of the United States and U.S. Representatives violate rights guaranteed by the First and Fourteenth Amendments to the U.S. Constitution, as enforced by 42 U.S.C. § 1983;
18

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 19 of 20
(3) enjoin the Secretary of State from enforcing O.C.G.A. § 21-2170(d)(3), which requires that all signatures on a nomination petition be gathered within 180 days of the extended deadline, to the extent that signatures on any such nomination petition were gathered within 180 days of the original deadline; (4) enjoin the Secretary of State from enforcing O.C.G.A. § 21-2170(b), which contains the signature requirements, and from failing to accept petitions, for the 2020 election only, containing a number of valid signatures pro-rated as follows:
(a) the start date shall be seven days after the Centers for Disease Control rescinds its guidance on social distancing and indicates that it is now safe for members of the public in Georgia to come into close contact with others (the seven days added to allow for petitioning efforts to ramp up); (b) the pro-rated number of signatures required shall be the number of days between the start date and the August 14 deadline divided by 180, multiplied by the original number of signatures required;
19

Case 1:20-cv-01312-ELR Document 1 Filed 03/26/20 Page 20 of 20
(c) if the start date has not occurred before the August 14 deadline, then the Secretary shall not require any signatures; (5) award the plaintiffs the costs of this action together with their reasonable attorneys’ fees under 42 U.S.C. § 1988; and (6) retain jurisdiction of this action and grant the plaintiffs any further relief which may in the discretion of the Court be necessary and proper.
Respectfully submitted this 26th day of March, 2020. /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
20

JS44 (Rev. 6/2017 NDGA) Case 1:20-cv-01312-ELRCIVDILocCuOmVenEtR1-S1HEFEilTed 03/26/20 Page 1 of 2
The JS44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)

I. (a) PLAINTIFF(S)
James L. "Jimmy" Cooper, III, Martin Cowen, and the Georgia Green Party

DEFENDANT(S)
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia

(b) COUNTY OF RESIDENCE OF FIRST LISTED

PLAINTIFF

Crawford

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) ATTORNEYS (FIRM NAME, ADDRESS, TELEPHONE NUMBER, AND
E-MAIL ADDRESS)
Bryan L. Sells The Law Office of Bryan L. Sells LLC PO Box 5493 Atlanta, GA 31107

COUNTY OF RESIDENCE OF FIRST LISTED

DEFENDANT

Fulton

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED
ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION
(PLACE AN “X” IN ONE BOX ONLY)

1 U.S. GOVERNMENT PLAINTIFF
2 U.S. GOVERNMENT DEFENDANT

3 FEDERAL QUESTION (U.S. GOVERNMENT NOT A PARTY)
4 DIVERSITY (INDICATE CITIZENSHIP OF PARTIES IN ITEM III)

III. CITIZENSHIP OF PRINCIPAL PARTIES
(PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)

PLF DEF

PLF

DEF

1

1 CITIZEN OF THIS STATE

4

4 INCORPORATED OR PRINCIPAL

PLACE OF BUSINESS IN THIS STATE

2

2 CITIZEN OF ANOTHER STATE 5

5 INCORPORATED AND PRINCIPAL PLACE OF BUSINESS IN ANOTHER STATE

3

3 CITIZEN OR SUBJECT OF A

6

FOREIGN COUNTRY

6 FOREIGN NATION

IV. ORIGIN (PLACE AN “X “IN ONE BOX ONLY)

1 ORIGINAL PROCEEDING

2 REMOVED FROM STATE COURT

3 REMANDED FROM APPELLATE COURT

4 REINSTATED OR REOPENED

TRANSFERRED FROM 5 ANOTHER DISTRICT
(Specify District)

MULTIDISTRICT 6 LITIGATION -
TRANSFER

APPEAL TO DISTRICT JUDGE 7 FROM MAGISTRATE JUDGE
JUDGMENT

MULTIDISTRICT 8 LITIGATION -
DIRECT FILE

V. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE - DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
This is an action to modify Georgia's ballot-access requirements for independent and third-party candidates in light of the current public health emergency caused by the novel coronavirus. The plaintiffs allege that, under current circumstances, these requirementsunconstitutionally burden their rights under the First and Fourteenth Amendments to the U.S. Constitution, as enforced by 42 U.S.C. 1988.

(IF COMPLEX, CHECK REASON BELOW)
1. Unusually large number of parties. 2. Unusually large number of claims or defenses. 3. Factual issues are exceptionally complex 4. Greater than normal volume of evidence. 5. Extended discovery period is needed.

6. Problems locating or preserving evidence 7. Pending parallel investigations or actions by government. 8. Multiple use of experts. 9. Need for discovery outside United States boundaries. 10. Existence of highly technical issues and proof.

FOR OFFICE USE ONLY RECEIPT # JUDGE

AMOUNT $ MAG. JUDGE

(Referral)

CONTINUED ON REVERSE

APPLYING IFP NATURE OF SUIT

MAG. JUDGE (IFP) ______________________ CAUSE OF ACTION______________________

Case 1:20-cv-01312-ELR Document 1-1 Filed 03/26/20 Page 2 of 2 VI. NATURE OF SUIT (PLACE AN “X” IN ONE BOX ONLY)

CONTRACT - "0" MONTHS DISCOVERY TRACK 150 RECOVERY OF OVERPAYMENT & ENFORCEMENT OF JUDGMENT 152 RECOVERY OF DEFAULTED STUDENT LOANS (Excl. Veterans) 153 RECOVERY OF OVERPAYMENT OF VETERAN'S BENEFITS
CONTRACT - "4" MONTHS DISCOVERY TRACK 110 INSURANCE 120 MARINE 130 MILLER ACT 140 NEGOTIABLE INSTRUMENT 151 MEDICARE ACT 160 STOCKHOLDERS' SUITS 190 OTHER CONTRACT 195 CONTRACT PRODUCT LIABILITY 196 FRANCHISE
REAL PROPERTY - "4" MONTHS DISCOVERY TRACK
210 LAND CONDEMNATION 220 FORECLOSURE 230 RENT LEASE & EJECTMENT 240 TORTS TO LAND 245 TORT PRODUCT LIABILITY 290 ALL OTHER REAL PROPERTY
TORTS - PERSONAL INJURY - "4" MONTHS DISCOVERY TRACK
310 AIRPLANE 315 AIRPLANE PRODUCT LIABILITY 320 ASSAULT, LIBEL & SLANDER 330 FEDERAL EMPLOYERS' LIABILITY 340 MARINE 345 MARINE PRODUCT LIABILITY 350 MOTOR VEHICLE 355 MOTOR VEHICLE PRODUCT LIABILITY 360 OTHER PERSONAL INJURY 362 PERSONAL INJURY - MEDICAL
MALPRACTICE 365 PERSONAL INJURY - PRODUCT LIABILITY 367 PERSONAL INJURY - HEALTH CARE/
PHARMACEUTICAL PRODUCT LIABILITY 368 ASBESTOS PERSONAL INJURY PRODUCT
LIABILITY
TORTS - PERSONAL PROPERTY - "4" MONTHS DISCOVERY TRACK
370 OTHER FRAUD 371 TRUTH IN LENDING 380 OTHER PERSONAL PROPERTY DAMAGE 385 PROPERTY DAMAGE PRODUCT LIABILITY
BANKRUPTCY - "0" MONTHS DISCOVERY TRACK 422 APPEAL 28 USC 158 423 WITHDRAWAL 28 USC 157

CIVIL RIGHTS - "4" MONTHS DISCOVERY TRACK 440 OTHER CIVIL RIGHTS 441 VOTING 442 EMPLOYMENT 443 HOUSING/ ACCOMMODATIONS 445 AMERICANS with DISABILITIES - Employment 446 AMERICANS with DISABILITIES - Other 448 EDUCATION
IMMIGRATION - "0" MONTHS DISCOVERY TRACK 462 NATURALIZATION APPLICATION 465 OTHER IMMIGRATION ACTIONS
PRISONER PETITIONS - "0" MONTHS DISCOVERY TRACK
463 HABEAS CORPUS- Alien Detainee 510 MOTIONS TO VACATE SENTENCE 530 HABEAS CORPUS 535 HABEAS CORPUS DEATH PENALTY 540 MANDAMUS & OTHER 550 CIVIL RIGHTS - Filed Pro se 555 PRISON CONDITION(S) - Filed Pro se 560 CIVIL DETAINEE: CONDITIONS OF
CONFINEMENT
PRISONER PETITIONS - "4" MONTHS DISCOVERY TRACK
550 CIVIL RIGHTS - Filed by Counsel 555 PRISON CONDITION(S) - Filed by Counsel
FORFEITURE/PENALTY - "4" MONTHS DISCOVERY TRACK
625 DRUG RELATED SEIZURE OF PROPERTY 21 USC 881
690 OTHER
LABOR - "4" MONTHS DISCOVERY TRACK 710 FAIR LABOR STANDARDS ACT 720 LABOR/MGMT. RELATIONS 740 RAILWAY LABOR ACT 751 FAMILY and MEDICAL LEAVE ACT 790 OTHER LABOR LITIGATION 791 EMPL. RET. INC. SECURITY ACT
PROPERTY RIGHTS - "4" MONTHS DISCOVERY TRACK
820 COPYRIGHTS 840 TRADEMARK
PROPERTY RIGHTS - "8" MONTHS DISCOVERY TRACK
830 PATENT 835 PATENT-ABBREVIATED NEW DRUG
APPLICATIONS (ANDA) - a/k/a Hatch-Waxman cases

SOCIAL SECURITY - "0" MONTHS DISCOVERY TRACK
861 HIA (1395ff) 862 BLACK LUNG (923) 863 DIWC (405(g)) 863 DIWW (405(g)) 864 SSID TITLE XVI 865 RSI (405(g))
FEDERAL TAX SUITS - "4" MONTHS DISCOVERY TRACK
870 TAXES (U.S. Plaintiff or Defendant) 871 IRS - THIRD PARTY 26 USC 7609
OTHER STATUTES - "4" MONTHS DISCOVERY TRACK
375 FALSE CLAIMS ACT 376 Qui Tam 31 USC 3729(a) 400 STATE REAPPORTIONMENT 430 BANKS AND BANKING 450 COMMERCE/ICC RATES/ETC. 460 DEPORTATION 470 RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS 480 CONSUMER CREDIT 490 CABLE/SATELLITE TV 890 OTHER STATUTORY ACTIONS 891 AGRICULTURAL ACTS 893 ENVIRONMENTAL MATTERS 895 FREEDOM OF INFORMATION ACT 899 ADMINISTRATIVE PROCEDURES ACT /
REVIEW OR APPEAL OF AGENCY DECISION 950 CONSTITUTIONALITY OF STATE STATUTES
OTHER STATUTES - "8" MONTHS DISCOVERY TRACK
410 ANTITRUST 850 SECURITIES / COMMODITIES / EXCHANGE
OTHER STATUTES - “0" MONTHS DISCOVERY TRACK
896 ARBITRATION (Confirm / Vacate / Order / Modify)
* PLEASE NOTE DISCOVERY
TRACK FOR EACH CASE TYPE. SEE LOCAL RULE 26.3

VII. REQUESTED IN COMPLAINT:
CHECK IF CLASS ACTION UNDER F.R.Civ.P. 23 DEMAND $_____________________________ JURY DEMAND YES NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT)

VIII. RELATED/REFILED CASE(S) IF ANY

JUDGE______________M__a_y______________

DOCKET NO.___1_:1_7__-C__V_-_0_4_6_6_0_-_L_M__M___

CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (CHECK APPROPRIATE BOX)
1. PROPERTY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 2. SAME ISSUE OF FACT OR ARISES OUT OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 3. VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 4. APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.
5. REPETITIVE CASES FILED BY PRO SE LITIGANTS. 6. COMPANION OR RELATED CASE TO CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED STYLE OF OTHER CASE(S)):

7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO.

DISMISSED. This case IS

IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.

, WHICH WAS

SIGNATURE OF ATTORNEY OF RECORD

March 26, 2020
DATE

 
 Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Plaintiffs’ Motion for a Preliminary Injunction

The plaintiffs respectfully move the Court for a preliminary injunction prohibiting the Secretary of State from enforcing Georgia’s signature requirements for independent and third-party candidates in light of the current public health emergency caused by the novel coronavirus.

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 2 of 37
Background This lawsuit seeks to ensure that independent and third-party candidates have a reasonable opportunity to qualify for the ballot without endangering their own lives and the lives of others. Georgia’s ballot-access laws require such candidates to submit nomination petitions containing many thousands of signatures gathered over a 180day period. With the state on lockdown as a result of a global pandemic arising from a highly communicable infectious disease, they cannot lawfully or safely gather the signatures necessary to meet that requirement. The plaintiffs are two third-party candidates and the Georgia Green Party. They have met, or will have met, all of Georgia’s ballotaccess requirements other than the petition. They allege that, under these unprecedented circumstances, Georgia’s signature requirements unconstitutionally burden their rights under the First and Fourteenth Amendments to the U.S. Constitution, and they seek declaratory and injunctive relief for the 2020 general election.
2

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 3 of 37
I. The Novel Coronavirus Presents a Threat to Public Health In December 2019, an outbreak of respiratory disease caused by a
novel coronavirus emerged in Wuhan, China. (Ex. 1: Exec. Order 03.14.20.01 at 1.) It is an infectious disease, now known as “COVID-19,” that can spread from person to person and can result in serious illness and death. (Id.) According to the Centers for Disease Control and Prevention, older adults (particularly those over 65) and people of any age who have serious underlying medical conditions (including asthma, heart disease, cancer, and diabetes) may be at higher risk for severe illness from COVID-19.1
On January 30, 2020, after the coronavirus outbreak had spread well beyond China, the World Health Organization (WHO) declared that COVID-19 constituted a Public Health Emergency of International Concern. (Ex. 14: WHO statement at 4.) The next day, as a result of confirmed cases of COVID-19 in the United States, Health and Human Services Secretary Alex M. Azar II declared a nationwide public health
1 Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited May 8, 2020).
3

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 4 of 37
emergency retroactive to January 27, 2020. (Ex. 16: Azar
determination.)
Immediately thereafter, public health officials in the United States
began taking aggressive measures to stop the spread of the disease.2
They began to warn the public about the possibility of severe disruption
from COVID-19 outbreaks in the United States, and they urged cities
and towns to begin preparing for social-distancing measures like school
closures and meeting cancellations.3
On March 11, the World Health Organization declared COVID-19
to be a global pandemic. (Ex. 15: WHO director’s remarks at 2.) Two
days later, the President of the United States declared a national
emergency (retroactive to March 1, 2020) due to the COVID-19 outbreak
in the United States. (Ex. 17: Presidential Proclamation at 2.)
2 See, e.g., Julie Bosman and Denise Grady, U.S. Officials Promise ‘Aggressive Measures’ to Contain Coronavius, N.Y. Times, Feb. 3, 2020, available at https://nyti.ms/2Or1seZ; Shraddha Chakradhar, To fight coronavirus spread, the U.S. may expand ‘social distancing’ measures. But it comes at a cost, STAT, Feb. 3, 2020, available at https://www.statnews.com/2020/02/03/coronavirus-spread-social-distancing-us/. 3 See, e.g., Helen Branswell, CDC director: More person-to-person coronavirus infections in U.S. likely, but containment still possible, STAT, Feb. 12, 2020, available at https://www.statnews.com/2020/02/12/cdc-director-more-person-to-person-coronavirusinfections-in-u-s-likely-but-containment-still-possible/; Peter Belluck and Noah Weiland, C.D.C. Officials Warn of Coronavirus Outbreaks in the U.S., N.Y. Times, Feb. 25, 2020, available at https://nyti.ms/2uu1r30; Megan Thielking, CDC expects ‘community spread’ of coronavirus, as top official warns disruptions could be ‘severe’, STAT, Feb. 25, 2020, available at https://www.statnews.com/2020/02/25/cdc-expects-community-spread-of-coronavirus-as-topofficial-warns-disruptions-could-be-severe/.
4

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 5 of 37
On March 14, Georgia Governor Brian Kemp declared a Public Health State of Emergency in the State of Georgia due to the public health emergency from the spread of COVID-19. (Ex. 1: Exec. Order 03.14.20.01 at 1.) The Governor’s order observed that COVID-19 “is proliferating via ‘community spread,’ meaning people have contracted the virus in areas of Georgia as a result of direct or indirect contact with infected persons.” (Id.) That same day, Secretary of State Brad Raffensperger postponed Georgia’s presidential preference primary from March 24 to May 19, 2020, due to the public health emergency from COVID-19. (Ex. 10: Raffensperger announcement of March 14, 2020, at 1.) In announcing the postponement, Secretary Raffensperger noted that older Americans face an increased risk from COVID-19 and that “[a]ll individuals should practice social distancing and minimize contact with others . . . .” (Id.)
Two days later, the Governor closed all public schools through March 31, 2020. (Ex. 2: Exec. Order 03.16.20.01) He later extended the closures through April 24 (Ex. 4: Exec. Order 03.26.20.02 at 2), and then he closed them for the remainder of the school year in order to stop the spread of COVID-19 (Ex. 5: Exec. Order 04.01.20.01 at 2).
5

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 6 of 37
On March 20, due to the COVID-19 public health emergency, Secretary Raffensperger invoked his authority under O.C.G.A. § 21-250.1 to extend the deadline for independent and third-party candidates to submit nomination petitions until 12:00 noon on Friday, August 14, 2020. (Ex. 13: letter from Harvey to Cowen.)
On March 23, Governor Kemp issued an order closing all bars, banning gatherings of more than 10 people, and ordering “medically fragile” residents to shelter in place. (Ex. 3: Kemp Exec. Order 03.23.20.01 at 2.) The order also directed the Department of Public Health to undertake a public information campaign to encourage businesses to “limit personal interaction” during transactions. (Id. at 3.)
On March 24, 2020, Secretary Raffensperger announced unprecedented steps to protect public health and safety in the election process as a result of COVID-19. (Ex. 11: Raffensperger announcement of March 24, 2020, at 1.) Those steps include mailing absentee ballot request forms to Georgia’s 6.9 million active voters, encouraging as many voters as possible to vote by mail, and implementing socialdistancing measures in polling places during the primary election. (Id.)
6

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 7 of 37
On April 2, Governor Kemp issued an executive order requiring “[t]hat all residents and visitors of the State of Georgia” shelter in place between April 3 and April 13. (Ex. 6: Exec. Order 04.02.20.01 at 2.) Less than a week later, the Governor extended the state of emergency in Georgia until May 13 and extended the shelter-in-place order through April 30. (Ex. 7: Exec. Order 04.08.20.02 at 1-2.)
On April 9, Secretary Raffensperger postponed the primary election from May 19 to June 9. (Ex. 12: Raffensperger announcement of April 9, 2020, at 1.) His press release announcing the delay stated that “challenges will certainly remain on June 9” but the additional time would permit officials “to shore up contingency plans, find and train additional poll workers, and procure supplies and equipment necessary to clean equipment and protect poll workers.” (Id.)
On April 23, Governor Kemp issued an executive order which, among other things, ordered “all residents and visitors in the State of Georgia” to practice social distancing and sanitation in accordance with the guidelines published by the Centers for Disease Control and Prevention; encouraged residents and visitors to wear masks in public to prevent the spread of COVID-19; continuing to require high-risk
7

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 8 of 37
individuals, including everyone over age 65, to shelter in place; and prohibited such people from receiving visitors. (Ex. 8: Exec. Order 04.23.20.02 at 2-6.) The lockdown and social-distancing provisions in the order are effective from May 1 through May 13. (Id. at 2.)
On April 30, Governor Kemp renewed the public health emergency due to COVID-19 and extended the shelter-in-place and no-visitors requirements for high-risk individuals and those over 65 through Friday, June 12. (Ex. 9: Exec. Order 04.30.20.01 at 1-2.) On May 1, this Court extended its coronavirus-prevention measures though May 29. (ECF 9.) And on May 4, the Georgia Supreme Court announced its intention to extend the statewide judicial emergency due to the coronavirus through June 12.4
As of the date of this motion, Georgia is among the states hardest hit by COVID-19. There are at least 32,016 confirmed cases and 1,391 confirmed deaths from the disease in the state.5 And the Centers for
4 Georgia Supreme Court, Chief Justice Will Extend Statewide Judicial Emergency (May 4, 2020), https://www.gasupreme.us/extend-judicial-emergency/ (last visited May 8, 2020). 5 Georgia Dep’t of Pub. Health, COVID-19 Daily Status Report, https://dph.georgia.gov/covid19-daily-status-report (last visited May 8, 2020).
8

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 9 of 37
Disease Control and Prevention continue to recommend that members of the public wear masks and practice social distancing.6
II. Georgia’s Ballot-Access Restrictions Georgia’s ballot-access laws distinguish between three kinds of
candidates for partisan public offices: (1) candidates nominated by a political party; (2) candidates nominated by a political body; and (3) independent candidates.
A “political party” is any political organization whose nominee received at least 20 percent of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2 (25). Political parties choose nominees in partisan primaries, and the candidate nominated by the party appears automatically on the ballot for any statewide or district office. O.C.G.A. § 21-2-130(1).7
A “political body” is any political organization other than a political party. O.C.G.A. § 21-2-2 (23). Political bodies must nominate
6 Centers for Disease Control and Prevention, How to Protect Yourself and Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited May 8, 2020). 7 The only political parties that meet the current definition of “political party” under Georgia law are the Democratic Party of Georgia and the Georgia Republican Party.
9

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 10 of 37
candidates for partisan public offices by convention. O.C.G.A. § 21-2170(g).
Political-body candidates for non-statewide offices, including the office of U.S. Representative, do not appear automatically on the ballot. In order to appear on the general-election ballot, such candidates must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2132(d); and (2) a nomination petition signed by five percent of the number of registered voters eligible to vote for that office in the last election, O.C.G.A. § 21-2-170(b). The notice of candidacy and qualifying fee for non-statewide candidates is due during the thirty-fifth week before the election (a date that in 2020 fell on March 6). O.C.G.A. § 21-2132(d). The nomination petition for non-statewide candidates is due no later than noon on the second Tuesday in July (which this year is July 14). O.C.G.A. § 21-2-132(e). The Secretary’s recent order extends that deadline for the 2020 election to noon on Friday, August 14, 2020. (Ex. 13: letter from Harvey to Cowen).
The nomination petition must be on sheets of uniform size and different sheets must be used by signers residing in different counties or municipalities. O.C.G.A. § 21-2-170(d). Each sheet of the nomination
10

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 11 of 37
petition must also contain a sworn and notarized affidavit of the circulator attesting, among other things, that each signature on the sheet was gathered within 180 days of the filing deadline. Id. The 180th day before the new filing deadline was February 16, 2020.
For the 2020 election, a political-body candidate for U.S. Representative in Georgia’s Eighth and Thirteenth Congressional District, where plaintiffs Jimmy Cooper and Martin Cowen seek to run, must submit at least 20,719 and 24,503 valid signatures, respectively, in order to appear on the general-election ballot.8 The qualifying fee is $5,220.9
Political-body candidates for President of the United States do not appear automatically on the ballot.10 In order to appear on the general election ballot, such candidates must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a nomination petition containing 7,500 signatures. O.C.G.A. § 21-2-170(b); Green Party v.
8 Ga. Sec’y of State, Number of Signatures Required for 2020 Nomination Petitions, https://sos.ga.gov/admin/files/2020_Nomination_Signatures_Required.pdf (last visited May 8, 2020). 9 Ga. Sec’y of State, Qualifying Fees for State and Federal Candidates for 2020 Elections in Georgia, https://sos.ga.gov/admin/files/2020%20QUALIFYING%20FEES.pdf (last visited May 8, 2020). 10 Georgia law provides a second method by which a political body can place candidates for statewide offices on the general election ballot. See O.C.G.A. § 21-2-180. That method is not at issue here.
11

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 12 of 37
Kemp, 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016) (reducing the number of signatures from one percent of registered voters to 7,500), aff’d 674 F. Appx. 974 (11th Cir. 2017) (mem). The notice of candidacy and qualifying fee for presidential candidates is due in late June—this year on June 26, 2020. O.C.G.A. § 21-2-132(d). The nomination petition for presidential candidates is due no later than noon on the second Tuesday in July (July 14, 2020). O.C.G.A. § 21-2-132(e). The Secretary’s recent order extends that deadline for the 2020 election to noon on Friday, August 14, 2020. The qualifying fee for each presidential elector is $1.50.
Independent candidates do not appear automatically on the ballot for any office unless the candidate is an incumbent. Non-incumbent candidates must follow the same rules as political-body candidates.
III. The Burdens of Georgia’s Ballot-Access Restrictions Even in normal times, Georgia’s ballot-access restrictions on
independent and third-party (or “political-body”) candidates for U.S. Representative are incredibly burdensome. In fact, no third-party candidate for U.S. Representative has ever satisfied the requirements to appear on Georgia’s general-election ballot, despite many attempts to do so, since the five-percent signature requirement was adopted in 1943.
12

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 13 of 37
(Ex. 18: Order, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660-LMM at 6 (N.D. Ga. Sept. 23, 2019) (ECF 113).) Georgia requires more signatures for third-party candidates for U.S. Representative to appear on the general-election ballot than any other state in the nation, both as a percentage of votes cast, and as an absolute number of signatures. (Id. at 5.) Among states with a mandatory petition for ballot-access, Georgia’s qualifying fees are also higher than any other state in the nation. (Id. at 4.) And Georgia’s signature requirements are higher, in absolute terms, than any signature requirement that an independent or third-party candidate for U.S. Representative has ever overcome in the history of the United States. (Ex. 19: Def’s Resp. to Pls. Statement of Undisputed Material Facts, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660-LMM at ¶¶83-91 (N.D. Ga. Aug. 07, 2019) (ECF 97) (hereinafter “Ex. 19: Cowen ECF 97”).)
Aside from the amount of the qualifying fee and the number of signatures required, several other factors contribute to the difficulty of Georgia’s ballot-access restrictions for independent and third-party candidates. For example, the Secretary of State’s signature-validation process results in signatures being improperly rejected and validation
13

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 14 of 37
rates below 50 percent. (Ex. 19: Cowen ECF 97 ¶¶ 146, 148; Ex. 23: Esco decl. ¶10.) One recent petition by an independent candidate for U.S. Representative resulted in a validation rate of only two percent. (Ex. 19: Cowen ECF 97 ¶ 147.) As a result, independent and third-party candidates must gather signatures far in excess of the number of valid signatures required in order to be reasonably assured of obtaining ballot access under Georgia law. (Ex. 23: Esco decl. ¶ 10.)
Gathering signatures, moreover, is slow and difficult work. (Ex. 19: Cowen ECF 97 ¶¶ 150-157.) Experienced signature-gatherers report being able to gather only about 5 signatures per hour going door-to-door over the course of a week. (Id.; Ex. 21: Cooper decl. ¶ 16; Ex. 22: Cowen decl. ¶ 19.) At that rate, a full-time petitioner could collect only 4,800 raw signatures over the course of the entire 180-day petitioning period, well short of the number required of a single independent or politicalbody candidate for President or U.S. Representative.
Another factor is the combined effect of the cost of petitioning and the impact of federal campaign-finance law. Professional petition circulators typically charge $2-$5 per signature collected, plus expenses for travel, lodging and incidentals. (Ex. 23: Esco decl. ¶ 12.) A petition
14

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 15 of 37
for U.S. Representative could cost tens of thousands or even hundreds of thousands of dollars. But federal campaign-finance law prohibits a political party or other large donor from contributing enough money to a candidate to cover a substantial number of signatures. (Ex. 19: Cowen ECF 97 ¶¶ 162-71.) A candidate’s petition drive must therefore either be self-funded or be funded by many donors.
A lack of access to voters is yet another factor. In Georgia, petitioncirculators may not lawfully solicit signatures on private property without the permission of the property owner. (Id. ¶ 173.) Virtually all of the places where large numbers of people congregate, like grocery stores and shopping malls, are on private property. Petition-circulators are relegated to gathering signatures on public sidewalks, which are often far away from where voters park to enter the stores. (Id. ¶ 174; Ex. 23 Esco decl. ¶ 11; Ex. 22: Cowen decl. ¶ 20.)
One final factor that makes Georgia’s ballot-access requirements virtually impossible to meet—even in normal times—is widespread public concern about disclosing confidential information to petitioners. (Ex. 19: Cowen ECF 97 ¶¶ 181-84.) The form of a nomination petition calls for a voter to provide a residential address, which is considered
15

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 16 of 37
confidential, personally identifying information under Georgia law. O.C.G.A. § 21-2-225(b).11 (Id. ¶¶ 181-83.) Potential petition-signers have expressed reluctance to sign, have provided incomplete information, or have refused to sign altogether, because of the information called-for by the form and the possibility that it could be used for identity theft or other nefarious purposes. (Id. ¶ 184-88; Ex. 22: Cowen decl. ¶ 20; Ex. 23: Esco decl. ¶ 11.)
IV. The Coronavirus Pandemic Increases the Burdens of Georgia’s Ballot-Access Restrictions But these are not normal times. The public-health emergency
caused by COVID-19 has made it virtually impossible to gather petition signatures. Government and public-health officials at virtually every level have encouraged people to stay at home, to practice social distancing, and to avoid being within six feet of other people. Gathering signatures during the COVID-19 outbreak endangers public health and the lives of petition-circulators and potential signers.
11 Until this year, the petition form also called for a voter to provide a birth date. Now, it only requires a birth year. This change will likely make it more difficult for election officials to validate signatures because there are likely to be many Georgia voters with identical names and birth years.
16

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 17 of 37
From April 2 through April 30, it was clearly unlawful for anyone to gather signatures because of Governor Kemp’s shelter-in-place order. It continues to be unlawful for Plaintiff Cowen to gather signatures because he is over the age of 65 and remains subject to the shelter-inplace order through at least June 12. (Ex. 22: Cowen decl. ¶¶ 1, 14-16.) It also continues to be unlawful for high-risk individuals and anyone over the age of 65 to open his or her door to a signature-gatherer because of the continuing no-visitors order. And it is at best questionable whether it is lawful now for anyone else to engage in the petition process—either as a petition-circulator or as a petition-signer—because of the socialdistancing requirements that remain in effect through at least May 13.
Aside from its legality, moreover, petitioning continues to contravene the best advice of America’s most trusted public-health officials. The Centers for Disease Control and Prevention continue to encourage social-distancing and isolation, and prominent public health officials have vocally criticized states, including Georgia, that have begun to ease such restrictions.12 Dr. Deborah Birx, the White House’s
12 See, e.g., Alyson Chiu, Fauci warns states rushing to reopen: ‘You’re making a really significant risk’, Wash. Post, May 1, 2020, available at https://www.washingtonpost.com/nation/2020/05/01/fauci-open-states-coronavirus/; Keren Landman, Georgia Went First. And It Screwed Up. N.Y. Times. Apr. 30, 2020, available at
17

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 18 of 37
coronavirus task force coordinator, recently said on national television that “social distancing will be with us through the summer to really ensure that we protect one another as we move through these phases.”13
Even if it were feasible to gather signatures during the current public health emergency, it is unlikely that petition-circulators would be able to gather very many signatures because there are fewer people congregating in public places and fewer people are likely to open their doors to strangers who come knocking. Indeed, that was precisely the experience of one independent candidate for the state legislature who saw his door-to-door response rate drop off in March—before the President or the Governor declared public-health emergencies—as the public became aware of the impending crisis. (Ex. 24: Reed decl. ¶¶ 912.) He then announced a signature-gathering event in his district in the middle of March. But the announcement yielded such a negative
https://www.nytimes.com/2020/04/30/opinion/georgia-coronavirus-reopening.html; Opinion: It’s just too soon to reopen Ga., Atlanta Journal-Constitution, May 1, 2020, available at https://www.ajc.com/news/opinion/opinion-just-too-soonreopen/UUJUrsM06vJ45y5wPV0pWK/. 13 Felicia Sonmez, Paige Winfield Cunningham, and Meryl Kornfield, Social distancing could last months, White House coronavirus coordinator says, Wash. Post, Apr. 26, 2020, available at https://www.washingtonpost.com/politics/social-distancing-could-last-months-white-housecoronavirus-coordinator-says/2020/04/26/ad8d2f84-87de-11ea-8ac1-bfb250876b7a_story.html.
18

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 19 of 37
reaction, with constituents accusing him of endangering public health, that he had to cancel the event.
The emerging crisis completely disrupted Plaintiff Cooper’s signature-gathering plans. He had been in discussions with the Green Party’s presidential candidates to fund as many as three full-time staffers to gather signatures and coordinate volunteers in his district, but those plans fell through with the virus emerged in the middle of March. (Ex. 21: Cooper decl. ¶ 11.)14
The postponement of the March 24 presidential preference primary also has had a negative effect on signature-gathering. Even though Georgia law prohibits canvassing for signatures within 150 feet of a polling place, it is still possible to gather signatures outside of that buffer zone at some polling locations, making them an especially attractive place to gather voters’ signatures under normal circumstances. Plaintiff Cowen had planned a significant effort to collect signatures during the March 24 primary in Douglas County before the pandemic upended those plans. (Ex. 22: Cowen decl. ¶¶ 12-13.) The
14 The pandemic also disrupted the signature-gathering plans of two independent candidates for state legislative offices, Scott Cambers and Joe Reed. (Ex. 20: Cambers decl. ¶¶ 8-10, 15; Ex. 24: Reed decl. ¶¶ 10-12.)
19

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 20 of 37
Secretary of State has also encouraged voters to make use of early voting and absentee voting in the upcoming elections, and that will likely reduce the number of voters present and available to sign petitions at the polls during the June 9 primary election.
Even after the public-health emergency subsides, the COVID-19 outbreak is likely to have a negative effect on signature-gathering. (Ex. 20: Cambers decl. ¶¶ 12-13; Ex. 21: Cooper decl. ¶¶ 12-17; Ex. 22: Cowen decl. ¶ 22; Ex. 23: Esco decl. ¶ 15; Ex. 24: Reed decl. ¶¶ 12-15.) Voters may remain wary of close physical contact for some time. There is absolutely no reason at the moment to believe that members of the public will greet door-knocking petitioners with open arms as soon as the President, the Governor, or public-health officials say that it is okay to do so. And that is particularly likely to be the case if the door-knockers are wearing masks for self-protection. Welcoming masked strangers at your door is inadvisable even in normal times.
Petitioning is thus likely to be unusually challenging for some time after the pandemic subsides, and we’re not even there yet.
20

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 21 of 37
V. The 2020 Election The individual plaintiffs in this case are third-party candidates for
U.S. Representative. Both of them timely submitted a notice of candidacy and paid the $5,220 qualifying fee before the March 6 deadline. (Ex. 21: Cooper decl. ¶ 9; Ex. 22: Cowen decl. ¶ 10.) And both of them are the only independent or third-party candidate to have qualified in their respective district,15 so the maximum number of candidates on the general-election ballot is three.
The other plaintiff is the Georgia Green Party. It has not yet paid the filing fee or filed a notice of candidacy for its presidential electors because the applicable qualifying period does not begin until June 22. But it is prepared to do so at that time.16
In total, there are fewer than a dozen independent or third-party candidates at the state or federal level who timely filed a declaration of candidacy and paid the required qualifying fee but who have not yet submitted a nomination petition required by Georgia law. There are also
15 See Georgia Sec’y of State, Qualifying Candidate Information, available at https://elections.sos.ga.gov/GAElection/CandidateDetails (last visited May 8, 2020). 16 The Green Party had planned to gather signatures for its slate of electors soon after its nominating convention on February 22, but the Secretary of State’s office did not make the appropriate form available until March 24, 2020. (Ex. 23: Esco decl. ¶¶ 6-7.)
21

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 22 of 37
fewer than a dozen such candidates at the local level. Any relief ordered by this Court would therefore be limited, and it would not overwhelm Georgia’s ballots with a laundry list of candidates.
Legal Standard A plaintiff seeking a preliminary injunction must demonstrate that: (1) there is a substantial likelihood of success on the merits; (2) it will suffer irreparable injury if relief is not granted; (3) the threatened injury outweighs any harm the requested relief would inflict on the nonmoving party; and (4) entry of relief would serve the public interest. See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). The decision as to whether a plaintiff carried this burden “is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.” Int’l Cosmetics Exch., Inc. v. Gapardis Health & Beauty, Inc., 303 F.3d 1242, 1246 (11th Cir. 2002) (quoting Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002)) (internal quotation marks omitted).
22

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 23 of 37
Discussion I. The plaintiffs are likely to succeed on the merits.
To determine whether Georgia’s ballot-access restrictions violate the First and Fourteenth Amendments, this Court must apply the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983):
First, a court must evaluate the character and magnitude of the asserted injury to rights protected by the First and Fourteenth Amendments. Second, it must identify the interests advanced by the State as justifications for the burdens imposed by the rules. Third, it must evaluate the legitimacy and strength of each asserted state interest and determine the extent to which those interests necessitate the burdening of the plaintiffs’ rights.
Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir. 1985) (paraphrasing Anderson); accord Stein v. Ala. Sec’y of State, 774 F.3d 689, 694 (11th Cir. 2014); Common Cause/Georgia v. Billups, 554 F. 3d 1340, 1352 (11th Cir. 2009).
Under this test, the level of scrutiny varies on a sliding scale with the extent of the asserted injury. When, at the low end of the scale, the law “imposes only ‘reasonable, nondiscriminatory restrictions’ upon First and Fourteenth Amendment rights of voters, ‘the State’s important
23

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 24 of 37
regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 788, 788-89 n.9). But when the law places “severe” burdens on the rights of political parties, candidates, or voters, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’” Id. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
The plaintiff bears the burden of proof on the first step in the Anderson test, and the defendant bears the burden on the second and third. Burson v. Freeman, 504 U.S. 191, 199 (1992); Nader v. Brewer, 531 F.3d 1028, 1039-40 (9th Cir. 2008); Lopez Torres v. New York State Bd. of Elections, 462 F.3d 161, 203 (2d Cir. 2006), rev’d on other grounds 552 U.S. 196 (2008); Patriot Party v. Allegheny Cnty. Dept. of Elections, 95 F.3d 253, 267-68 (3d Cir. 1996).
A. The Character and Magnitude of the Injury Georgia’s signature requirements burden “two different, although
overlapping kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.”
24

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 25 of 37
Williams v. Rhodes, 393 U.S. 23, 30 (1968). “Both of these rights, of course, rank among our most precious freedoms.” Id.
The right to associate, which includes the “right of citizens to create and develop new political parties,” is obviously diminished if a party can be kept off the ballot. Norman, 502 U.S. at 288; see also Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Ballot-access restrictions also implicate the right to vote because, except for initiatives and referenda, “voters can assert their preferences only through candidates or parties or both.” Lubin v. Panish, 415 U.S. 709, 716 (1974). “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Id. An election campaign is a platform for the expression of views on the issues of the day, and a candidate “serves as a rallying point for like-minded citizens.” Anderson, 460 U.S. at 787-88.
Even in normal times, the burdens of Georgia’s ballot-access restrictions on independent and third-party candidates for U.S. Representative are undoubtedly heavy. Those restrictions are by far the most stringent in the nation, and—despite many attempts—no third-
25

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 26 of 37
party candidate for U.S. Representative has appeared on the generalelection ballot since the petition requirement was first enacted in 1943. As the Supreme Court has recognized, “[t]he right to vote is ‘heavily burdened’ if that vote may be cast only for major-party candidates at a time when other parties or other candidates are ‘clamoring for a place on the ballot.’” Anderson, 460 U.S. at 787 (quoting Lubin, 415 U.S. at 716).
But, again, these are not normal times. Petitioning has been unlawful for a significant portion of the 180-day petitioning period. It continues to be unlawful for Plaintiff Cowen to petition, due to his age. And it continues to be unlawful for many potential signers to open their doors to petitioners.
Putting legality aside, it is simply not reasonable for signature requirements designed for normal times to govern access to the ballot when we are in the middle of a global pandemic caused highly communicable infectious disease. More than five months after the virus arrived in America, the pandemic remains a public health crisis without any modern equivalent, and the situation remains dynamic. Much is still unknown about the nature of the virus, its transmission, and its effects.
26

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 27 of 37
There is still no vaccine, no cure and no widely available treatment. Uncertainty, like the virus, hangs in the air.
Because it has been shown that one can carry and spread COVID19 without any apparent symptoms, every encounter with another person—particularly a stranger—poses a risk of infection. And because it is not altogether clear how long the virus can survive on various surfaces, touching a pen, a clipboard, or a piece of paper that has recently been touched by another person also poses a risk of infection. Circulating a petition during this crisis risks the health and safety not only of the person requesting the signature but also the health and safety of the person who is signing the petition, the signer’s family, and potentially the entire community.
Every federal court that has addressed this issue so far has found that signature requirements for ballot-access impose severe burdens on candidates’ rights during the time of this pandemic. See Garbett v. Herbert, Civ. No. 2:20-cv-245-RJS, 2020 WL 2064101 at *12 (D. Utah May 1, 2020); Libertarian Party of Ill. v. Pritzker, Civ. No. 1:20-cv-2112, 2020 WL 1951687 at *4 (E.D. Ill. April 23, 2020); Esshaki v. Whitmer, Civ. No. 2:20-cv-10831, 2020 WL 1910154 at *6 (E.D. Mich. April 20,
27

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 28 of 37
2020), aff’d in part and reversed in part, No. 20-136, 2020 WL 2185553 at *1 (6th Cir. May 5, 2020)(“The district court correctly determined that the [ballot-access restrictions] imposed a severe burden on the plaintiffs’ ballot access, so strict scrutiny applied…”). One state court that applies an analogous framework similarly found a severe burden. See Goldstein v. Secretary of the Commonwealth, 125 N.E.3d 560, 571 (Ma. 2020).
This Court should likewise conclude that Georgia’s signature requirements impose a severe burden under current circumstances.
B. Asserted State Interests and Narrow Tailoring Because Georgia’s signature requirements impose a severe burden
here, they must be narrowly drawn to advance a compelling state interest. Although it remains to be seen what interests, if any, the Secretary of State will assert to justify enforcement of the signature requirements under these circumstances, the State has no compelling interest in preventing independent and third-party candidates from running for office by enforcing insurmountable barriers to the ballot.
The Supreme Court held in Storer v. Brown, 415 U.S. 724, 736 (1974), that a state has a “compelling” interest in “the stability of its political system.” But the Court held more recently that this interest
28

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 29 of 37
does not extend so far as to permit a state to protect existing parties from competition with independent or minor-party candidates. Anderson, 460 U.S. at 801-02. Indeed, “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment Freedoms.” Id. at 802 (quoting Williams, 393 U.S. at 32).
The Supreme Court has also recognized that States have an important interest in minimizing the potential for voter confusion caused by “laundry list” ballots, which it described as ballots with more than 12 candidates for a single office. See Lubin, 415 U.S. at 715-18. But there is no danger of that here because only a small number of independent and third-party candidates timely filed a notice of candidacy and paid the applicable qualifying fee by March 6. Plaintiffs Coooper and Cowen have already demonstrated a significant modicum of support by gaining their respective party’s nomination and paying the highest-in-the-nation qualifying fee.
In short, because enforcement of Georgia’s signature requirements is not narrowly tailored to advance a compelling state interest under
29

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 30 of 37
present circumstances, it is highly likely that the Plaintiffs will succeed on the merits of their claim.
II. The plaintiffs will suffer irreparable harm in the absence of a preliminary injunction. Harm is irreparable for purposes of a preliminary injunction when
“it cannot be undone through monetary means.” Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981). Harms that touch upon the constitutional and statutory rights of political parties, candidates, and voters are generally not compensable by money damages and are therefore considered irreparable. See, e.g., Elrod v. Burns, 427 U.S. 347 373 (1976) (plurality opinion); League of Women Voters v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); Ga. State Conference of the NAACP v. Fayette Cnty. Bd. of Comm’rs, 118 F. Supp. 3d 1338, 1347 (N.D. Ga. 2015).
Part of the reason for this treatment of political and voting harms is the special importance of the right to vote in the American democratic tradition:
Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right
30

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 31 of 37
to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Reynolds v. Sims, 377 U.S. 533, 561-62 (1962); accord Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”). Money cannot fully compensate an individual for the loss of a right so fundamental. Part of the reason is also practical: a court simply cannot undo, by means of a special election or otherwise, all of the effects of an unconstitutional election. Tremendous practical advantages accrue to those who win even tainted elections, and a court simply has no way to re-level the playing field. See, e.g., League of Women Voters of N.C., 769 F.3d at 247 (“Courts routinely deem restrictions on fundamental voting rights irreparable injury" because “once the election occurs, there can be no do-over and no redress.”). In this case, the irreparable nature of the injuries is obvious. Money cannot compensate the plaintiffs for the loss of their opportunity, as candidates, to play an important part in our democracy. See Anderson, 460 U.S. at 794 (discussing the importance of “political figures
31

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 32 of 37
outside the two major parties”); Socialist Workers Party, 440 U.S. at 18586 (discussing “the significant role that third parties have played in the political development of the Nation”). This Winter factor therefore weighs in favor of granting the injunction.
III. The balance of harms favors the plaintiffs. The third Winter factor requires the Court to consider the
potential impact that the requested injunction might have upon the Secretary of State, and to balance that potential with the considerable and irreparable harms that the plaintiffs would suffer should their request be denied. There is no question that the balance of equities tips in the plaintiffs’ favor here.
The Secretary of State will suffer no harm if the injunction is granted. The plaintiffs have already qualified (or will qualify soon, in the case of the Green Party’s presidential electors). Nothing unusual or additional would be required of the Secretary.
IV. A preliminary injunction would serve the public interest. The public interest in this case is clear. “[I]t is always in the public
interest to prevent the violation of a party’s constitutional rights.” Hobby
32

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 33 of 37
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (quoting Awad v. Ziriax, 670 F.3d 1111, 1131–32 (10th Cir. 2012)), aff’d 134 S. Ct. 2751 (2014); accord League of Women Voters of N.C., 769 F.3d at 247. The requested injunction will also ensure that Georgia citizens have a greater opportunity to vote for candidates of their choice. Without an injunction, voter choices will be limited. In some instances, voters may have no choice at all. The public undoubtedly has a vital interest in a broad selection of candidates as well as the conduct of free, fair, and constitutional elections. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (recognizing the public has a “strong interest in exercising the fundamental political right to vote” (citations omitted)). The requested injunction, if granted, would therefore favor the public interest.
Remedy It is black-letter law that, “wherever practical,” a federal court should give elected officials an opportunity to remedy an unlawful election law. Wise v. Lipscomb, 437 U.S. 535, 540 (1978). In this case, because the Georgia General Assembly is still in session, this Court should enjoin enforcement of the signature requirements and give the
33

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 34 of 37
General Assembly an opportunity to enact ballot-access requirements that are constitutional under present circumstances.
Such was the result in Michigan, where the Sixth Circuit recently stayed part of the district court’s preliminary injunction. See Esshaki, 2020 WL 2185553 at *2. The district court not only enjoined enforcement of the signature requirements—which the Sixth Circuit upheld—but it also re-wrote state statutes to impose a new signature requirement and to loosen other restrictions on the petitioning process. But the Sixth Circuit stayed the mandatory portions of the injunction out of concern for States’ rights to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” Art. I, § 4, cl. 1. The court invited the state to devise a constitutionally permissible alternative system if it wished to do so.
And so should the Court here. If the General Assembly adopts an alternative system that this Court finds to be constitutional under the circumstances, the plaintiffs will do their best to comply with it. If the General Assembly chooses not to do so, then a preliminary injunction against the signature requirements would have the effect of granting a
34

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 35 of 37
place on the ballot to the plaintiffs for having complied with the remaining requirements for ballot access.
Conclusion For the foregoing reasons, the Court should enjoin the Secretary of State from enforcing Georgia’s petitioning requirements for independent and third-party candidates.
Respectfully submitted this 8th day of May, 2020. /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
35

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 36 of 37
CERTIFICATE OF COMPLIANCE I hereby certify that the forgoing PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION was prepared in 13-point Century Schoolbook in compliance with Local Rules 5.1(C) and 7.1(D). /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
36

Case 1:20-cv-01312-ELR Document 11 Filed 05/08/20 Page 37 of 37
CERTIFICATE OF SERVICE I hereby certify that on May 8, 2020, I electronically filed the foregoing PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Charlene McGowan: cmcgowan@law.ga.gov /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
37

Case 1:20-cv-01312-ELR Document 11-1 Filed 05/08/20 Page 1 of 5

Case 1:20-cv-01312-ELR Document 11-1 Filed 05/08/20 Page 2 of 5

Case 1:20-cv-01312-ELR Document 11-1 Filed 05/08/20 Page 3 of 5

Case 1:20-cv-01312-ELR Document 11-1 Filed 05/08/20 Page 4 of 5

Case 1:20-cv-01312-ELR Document 11-1 Filed 05/08/20 Page 5 of 5

Case 1:20-cv-01312-ELR Document 11-2 Filed 05/08/20 Page 1 of 2

Case 1:20-cv-01312-ELR Document 11-2 Filed 05/08/20 Page 2 of 2

Case 1:20-cv-01312-ELR Document 11-3 Filed 05/08/20 Page 1 of 3

Case 1:20-cv-01312-ELR Document 11-3 Filed 05/08/20 Page 2 of 3

Case 1:20-cv-01312-ELR Document 11-3 Filed 05/08/20 Page 3 of 3

Case 1:20-cv-01312-ELR Document 11-4 Filed 05/08/20 Page 1 of 2

Case 1:20-cv-01312-ELR Document 11-4 Filed 05/08/20 Page 2 of 2

Case 1:20-cv-01312-ELR Document 11-5 Filed 05/08/20 Page 1 of 3

Case 1:20-cv-01312-ELR Document 11-5 Filed 05/08/20 Page 2 of 3

Case 1:20-cv-01312-ELR Document 11-5 Filed 05/08/20 Page 3 of 3

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 1 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 2 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 3 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 4 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 5 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 6 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 7 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 8 of 9

Case 1:20-cv-01312-ELR Document 11-6 Filed 05/08/20 Page 9 of 9

Case 1:20-cv-01312-ELR Document 11-7 Filed 05/08/20 Page 1 of 2

Case 1:20-cv-01312-ELR Document 11-7 Filed 05/08/20 Page 2 of 2

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 1 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 2 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 3 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 4 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 5 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 6 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 7 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 8 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 9 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 10 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 11 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 12 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 13 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 14 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 15 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 16 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 17 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 18 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 19 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 20 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 21 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 22 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 23 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 24 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 25 of 26

Case 1:20-cv-01312-ELR Document 11-8 Filed 05/08/20 Page 26 of 26

Case 1:20-cv-01312-ELR Document 11-9 Filed 05/08/20 Page 1 of 3

 
9

Case 1:20-cv-01312-ELR Document 11-9 Filed 05/08/20 Page 2 of 3

Case 1:20-cv-01312-ELR Document 11-9 Filed 05/08/20 Page 3 of 3

Case 1:20-cv-01312-ELR Document 11-10 Filed 05/08/20 Page 1 of 2

3/23/2020

HOME

Secretary Of State Raffensperger Postpones The Presidential Preference Primary | Elections

CORPORATIONS

ELECTIONS

LICENSING

SECURITIES

CHARITIES

VOTER INFO.

RESULTS & STATS

CANDIDATE INFO.

COUNTY & AGENCY

SECRETARY OF STATE RAFFENSPERGER POSTPONES THE PRESIDENTIAL PREFERENCE PRIMARY

ATLANTA -- In light of the public health emergency posed by COVID-19, the illness caused by the coronavirus, in-person voting presents increased risk to voters and poll workers. Governor Kemp has declared a public health emergency. President Trump has declared a national emergency, said Secretary of State Brad Raffensperger. "Events are moving rapidly and my highest priority is protecting the health of our poll workers, their families, and the community at large."
Speaker of the Georgia House of Representatives David Ralston agreed.
“I support Secretary Raffensperger’s decision to delay the presidential preference primary and other March elections until May," he said. "This will ensure an orderly and safe elections process and is in the best interest of Georgia’s citizens.”
The Democratic Party of Georgia is also in accordance.
"Our priority is to protect the health and safety of all Georgians and to ensure that as many Georgians as possible have an opportunity to vote," said State Senator Nikema Williams, the Chairwoman of the Democratic Party of Georgia. "Continued in-person voting could compromise both goals. Georgians who have already cast their vote in person or by mail for the March 24 primary will be able to vote again in the May 19 primary for the elections already scheduled for that date. If Georgians who have already cast their vote for the March 24 primary do not vote again in the May 19 primary, their votes for the presidential preference primary will still count."
Secretary Raffensperger has represented that all votes already cast in person and all absentee ballots will be counted and every Georgia voter that has not yet had a chance to cast a ballot in the March 24 elections will be able to do so on May 19, along with the elections already scheduled for that date."
"Given these circumstances, I believe it is necessary and prudent to suspend in-person voting in the Presidential Preference Primary, and the local elections associated with them, and resume in-person voting for those elections as part of the already scheduled May 19 General Primary."
The CDC recommends those, including seniors, who are at greater risk from COVID-19 limit their exposure to the virus by keeping space between themselves and others, avoiding crowds, and staying at home during outbreaks in their community. Dr. Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, has likewise identi ed individuals 65-years-old and older as facing increased risk from COVID-19. He explained that older Americans infected with COVID-19 stand a greater risk of serious dif culty and even death from the virus. All individuals should practice social distancing and minimize contact with others to minimize the risk to them and others.
With this decision, Secretary Raffensperger looks to confront the public health threat to our state, and the health of Georgians, while also maintaining an avenue for the people of Georgia to exercise their fundamental democratic right to vote. In the midst of a public health emergency like the one facing our state, taking strong action to protect all Georgians, including its dedicated poll workers, is paramount.
###

Key Election Dates and Information

Military and Overseas Voting

Register to Vote

Where do I vote? (MVP)

QUICK LINKS

Secure The Vote

2019 List Maintenance

Posted Rule for Public Comment

Vote Safe

FAQs

iVote - Students / Educators

Advance Voting Info.

Intent to Tabulate Early

GA Voter ID Info.

Elections Advisory Council

2019 Of cial Directory

Proposed Constitutional Amendments

Reexamination Costs

Notice to Voters Who Are Entitled to Assistance While Voting

Check Your Provisional

Information for Voter

Ballot Status for November Registrations Pending

6, 2018 Election

Due to Citizenship

SAFE Commission

Voter Registration Drive

State Election Board

Online Complaints

Stop Voter Fraud

Great Seal

LATEST ELECTIONS NEWS
Secretary of State Raffensperger postpones the Presidential Preference Primary Saturday, March 14th 2020

https://sos.ga.gov/index.php/elections/secretary_of_state_raffensperger_postpones_the_presidential_preference_primary

1/2

Case 1:20-cv-01312-ELR Document 11-10 Filed 05/08/20 Page 2 of 2

3/23/2020

Secretary Of State Raffensperger Postpones The Presidential Preference Primary | Elections State Sanctions Clarke Board for Violating Uniform Voting Law Wednesday, March 11th 2020
Safeguards, Options Available for Voting During Virus Concerns Tuesday, March 10th 2020
New National Vote Early Day Announced To Drive Voter Turnout Tuesday, March 10th 2020
Voting Machine Use Soars as Georgians Enjoy First Early Voting Weekend Monday, March 09th 2020

OFFICE OF BRAD RAFFENSPERGER NEWS & ANNOUNCEMENTS PRESS & MEDIA KIT PRIVACY POLICY

CONTACT
214 State Capitol Atlanta, Georgia 30334 844.753.7825 E-Mail © 2018 Georgia Secretary of State

https://sos.ga.gov/index.php/elections/secretary_of_state_raffensperger_postpones_the_presidential_preference_primary

2/2

Case 1:20-cv-01312-ELR Document 11-11 Filed 05/08/20 Page 1 of 2

4/29/2020

HOME

Raffensperger Takes Unprecedented Steps To Protect Safety And Voter Integrity In Georgia | Elections

CORPORATIONS

ELECTIONS

LICENSING

SECURITIES

CHARITIES

VOTER INFO.

RESULTS & STATS

CANDIDATE INFO.

COUNTY & AGENCY

RAFFENSPERGER TAKES UNPRECEDENTED STEPS TO PROTECT SAFETY AND VOTER INTEGRITY IN GEORGIA

(ATLANTA) -- Secretary of State Raffensperger is taking unprecedented steps to protect the public health of Georgia voters while also upholding the integrity of the vote. These temporary steps are being made because of the COVID-19 pandemic threatening public health in Georgia and around the world.
Secretary Raffensperger will be mailing absentee ballot request forms to every Georgia voter. This extraordinary effort to ensure all Georgians can vote without fear for their health will supplement extra measures to ensure those who rely on in-person voting to access the ballot can do so safely.
“Times of turbulence and upheaval like the one we Georgians face require decisive action if the liberties we hold so dear are to be preserved,” said Raffensperger. “I am acting today because the people of Georgia, from the earliest settlers to heroes like Rev. Dr. Martin Luther King, Jr. and Congressman John Lewis, have fought too long and too hard for their right to vote to have it curtailed. Georgia has faced challenges before and overcome them, and we can do so again through the grit and ingenuity that has made America a shining example for democracies around the world.”
Secretary of State Brad Raffensperger is moving to increase Georgia voter access and protect the public health of voters and poll workers during the COVID-19 emergency through increased mail in voting. In the 2016 and 2018 November elections, around 95 percent of Georgia voters opted to cast their ballot in person versus the 5 percent who did so by mail. With social distancing as the most important tool for limiting the spread of coronavirus, providing alternatives to voting in person is crucial. All Georgia voters can request and vote an absentee ballot for any reason.
Raffensperger will send absentee ballot request forms to the Georgia’s 6.9 million voters in an effort to allow as many Georgia voters as possible to exercise their right to vote without leaving their homes. In doing so, Raffensperger will literally be dropping a way to vote in safety and security on each Georgia voter’s doorstep. They will simply have to ll out and return the application to vote by mail in the upcoming elections with no in-person risk of exposure to COVID-19.
Georgia’s most vulnerable, those over age 65 and those with a disability, can request absentee ballots for the primary and general election as well as all elections through the 2020 election cycle with this one application. Other voters will need to submit another application for future elections. The elderly and disabled will to be able to vote in safety and security.
While Secretary Raffensperger is encouraging as many voters as possible to vote by mail, some rely on in-person voting to exercise their right to vote privately and securely. People without internet or mail access, such as those experiencing homelessness; Georgians who need language assistance; and people with disabilities who rely on voting machines to cast their ballot will still be able to do so in person on the state’s new voting system. Additionally, research from the Brennan Center for Justice at the NYU School of Law shows that eliminating “in-person voting could disproportionately disenfranchise Black, Latino, and young voters”. Their right to vote too needs protection.
To that end, Raffensperger is taking extra steps to limit the threat of COVID-19 at the polling place. Poll workers will receive additional resources to clean the equipment regularly. In-person voters who show up to vote in person will be instructed to maintain a safe distance when waiting to vote.

Key Election Dates and Information

Military and Overseas Voting

Register to Vote

Where do I vote? (MVP)

QUICK LINKS

SD 4 Quali ed Candidates

Secure The Vote

2019 List Maintenance Vote Safe

FAQs

iVote - Students / Educators

Advance Voting Info.

Intent to Tabulate Early

GA Voter ID Info.

Elections Advisory Council

2019 Of cial Directory

Proposed Constitutional Amendments

Reexamination Costs

Check Your Provisional Ballot Status for November 6, 2018 Election

Information for Voter Registrations Pending Due to Citizenship

SAFE Commission

Voter Registration Drive State Election Board

Online Complaints

Stop Voter Fraud

Great Seal

LATEST ELECTIONS NEWS
Secretary of State Brad Raffensperger Appoints Absentee Ballot Fraud Task Force Monday, April 27th 2020
Call for Special Election for State Senator, District 4 Monday, April 13th 2020

https://sos.ga.gov/index.php/elections/raffensperger_takes_unprecedented_steps_to_protect_safety_and_voter_integrity_in_georgia

1/2

Case 1:20-cv-01312-ELR Document 11-11 Filed 05/08/20 Page 2 of 2

4/29/2020

Raffensperger Takes Unprecedented Steps To Protect Safety And Voter Integrity In Georgia | Elections

These measures will protect poll workers as well. Understanding the extra risk Georgia’s generally

Raffensperger Announces Postponement of Primary

elderly poll workers face, Raffensperger is working to help counties hire more and younger poll workers.

Election Until June 9

Extra staff will allow those who feel sick to be absent from the polls without signi cantly impacting

Thursday, April 09th 2020

continuity while a younger pool of workers will increase resiliency in the face of the COVID-19 threat.
Senate President Pro Tempore Butch Miller commended Raffensperger for taking initiative to safeguard health and preserve voter access.

Statement from Secretary of State Brad Raffensperger Regarding the Upcoming May 19th Primary Wednesday, April 01st 2020

“I want to applaud Secretary of State Brad Raffensperger and his of ce for taking decisive measures in this time of crisis," Miller said. "These steps are critical in this temporary environment to protect our poll workers and give our counties time to successfully plan for the Georgia General Primary in May. Make no mistake about it, the members of the majority caucus and I remain committed to keep the General Primary on May 19th.”

Raffensperger Takes Unprecedented Steps to Protect Safety and Voter Integrity in Georgia Tuesday, March 24th 2020

Secretary of State Brad Raffensperger is taking these unprecedented actions for the safety and security of Georgia’s voters. Through these decisive steps, Raffensperger is protecting public health and the right to vote in Georgia.

###

OFFICE OF BRAD RAFFENSPERGER NEWS & ANNOUNCEMENTS PRESS & MEDIA KIT PRIVACY POLICY

CONTACT
214 State Capitol Atlanta, Georgia 30334 844.753.7825 E-Mail © 2018 Georgia Secretary of State

https://sos.ga.gov/index.php/elections/raffensperger_takes_unprecedented_steps_to_protect_safety_and_voter_integrity_in_georgia

2/2

Case 1:20-cv-01312-ELR Document 11-12 Filed 05/08/20 Page 1 of 2

4/29/2020

HOME

Raffensperger Announces Postponement Of Primary Election Until June 9 | Elections

CORPORATIONS

ELECTIONS

LICENSING

SECURITIES

CHARITIES

VOTER INFO.

RESULTS & STATS

CANDIDATE INFO.

COUNTY & AGENCY

RAFFENSPERGER ANNOUNCES POSTPONEMENT OF PRIMARY ELECTION UNTIL JUNE 9

(ATLANTA) — Today, Secretary of State Brad Raffensperger announced that, pursuant to the authority vested in him by O.C.G.A. § 21-2-50.1, he is postponing the Statewide General Primary/Presidential Preference Primary Election until June 9, 2020.
Yesterday, Governor Brian Kemp extended the current public health state of emergency until May 13, 2020. Lieutenant Governor Geoff Duncan and Speaker of the House David Ralston concurred in the Governor’s extension of the state of emergency.
“Due to the Governor’s extension of the state of emergency through a time period that includes almost every day of in-person voting for an election on May 19, and after careful consideration, I am now comfortable exercising the authority vested in me by Georgia law to postpone the primary election until June 9,” said Secretary Raffensperger. “This decision allows our of ce and county election of cials to continue to put in place contingency plans to ensure that voting can be safe and secure when in-person voting begins and prioritizes the health and safety of voters, county election of cials, and poll workers.”
Throughout this crisis, the Secretary of State’s of ce has been in close contact with county election of cials across the state. Over the past week, the reports of mounting dif culties from county election of cials, particularly in Southwest Georgia, grew to a point where county election of cials could not overcome the challenges brought on by COVID-19 in time for in-person voting to begin on April 27. Additionally, current modeling by the U.S. Centers for Disease Control and Prevention and by the Institute for Health Metrics and Evaluation projects the COVID-19 pandemic in Georgia will peak around April 24, only days before in-person voting was scheduled to begin. While challenges will certainly remain on June 9, these additional three weeks will give the Secretary of State’s of ce and counties time to shore up contingency plans, nd and train additional poll workers, and procure supplies and equipment necessary to clean equipment and protect poll workers.
Emergency authority is something that should be exercised carefully, and moving an election should only take place in the rarest of circumstances. While Secretary Raffensperger previously expressed concern that he did not have the authority to move the primary election again, the Governor’s extension of the state of emergency to a time that includes almost every day of in-person voting for a May 19 election is suf cient to allow the Secretary to exercise the emergency authority given to him by O.C.G.A. § 21-2-50.1 and move the primary election to June 9.
“I certainly realize that every dif culty will not be completely solved by the time in-person voting begins for the June 9 election, but elections must happen even in less than ideal circumstances,” said Raffensperger. “Just like our brave healthcare workers and rst responders, our county election of cials and poll workers are undertaking work critical to our democracy, and they will continue to do this critical work with all the challenges that the current crisis has brought forth. This postponement allows us to provide additional protection and safety resources to county election of cials, poll workers, and voters without affecting the November election.”
The voter registration deadline for the June 9, 2020 election will be May 11, 2020. Early voting will begin on May 18, 2020. Pursuant to O.C.G.A. § 21-2-501, moving the primary election to June 9, 2020

Key Election Dates and Information

Military and Overseas Voting

Register to Vote

Where do I vote? (MVP)

QUICK LINKS

SD 4 Quali ed Candidates

Secure The Vote

2019 List Maintenance Vote Safe

FAQs

iVote - Students / Educators

Advance Voting Info.

Intent to Tabulate Early

GA Voter ID Info.

Elections Advisory Council

2019 Of cial Directory

Proposed Constitutional Amendments

Reexamination Costs

Check Your Provisional Ballot Status for November 6, 2018 Election

Information for Voter Registrations Pending Due to Citizenship

SAFE Commission

Voter Registration Drive State Election Board

Online Complaints

Stop Voter Fraud

Great Seal

LATEST ELECTIONS NEWS
Secretary of State Brad Raffensperger Appoints Absentee Ballot Fraud Task Force Monday, April 27th 2020
Call for Special Election for State Senator, District 4 Monday, April 13th 2020

https://sos.ga.gov/index.php/elections/raffensperger_announces_postponement_of_primary_election_until_june_9

1/2

Case 1:20-cv-01312-ELR Document 11-12 Filed 05/08/20 Page 2 of 2

4/29/2020

Raffensperger Announces Postponement Of Primary Election Until June 9 | Elections

will move the primary runoff to August 11, 2020.Pushing back the primary to June 9 gives Georgia

Raffensperger Announces Postponement of Primary

election of cials additional time to put in place contingency plans to allow for safe and secure voting,

Election Until June 9

but pushing back the primary election any further could potentially have negative consequences on

Thursday, April 09th 2020

preparation for the November 3, 2020 General Election. Given existing deadlines to prepare and send ballots for the November election, particularly for military voters, moving forward on June 9 is the best way to ensure a successful election year in Georgia.
Absentee ballot applications for the upcoming primary election will continue to be accepted and

Statement from Secretary of State Brad Raffensperger Regarding the Upcoming May 19th Primary Wednesday, April 01st 2020

processed by counties even if the application said May 19. Once county election of cials properly verify the signature on the application, the voter will be sent an absentee ballot for the primary election now to be held on June 9.

Raffensperger Takes Unprecedented Steps to Protect Safety and Voter Integrity in Georgia Tuesday, March 24th 2020

See the attached le to understand how the date was chosen: Timeline2.jpg

###

OFFICE OF BRAD RAFFENSPERGER NEWS & ANNOUNCEMENTS PRESS & MEDIA KIT PRIVACY POLICY

CONTACT
214 State Capitol Atlanta, Georgia 30334 844.753.7825 E-Mail © 2018 Georgia Secretary of State

https://sos.ga.gov/index.php/elections/raffensperger_announces_postponement_of_primary_election_until_june_9

2/2

Case 1:20-cv-01312-ELR Document 11-13 Filed 05/08/20 Page 1 of 1

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 1 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

©
Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019­ nCoV)
30 January 2020 | Statement | Geneva, Switzerland
The second meeting of the Emergency Committee convened by the WHO Director­ General under the International Health Regulations (IHR) (2005) regarding the outbreak of novel coronavirus 2019 in the People’s Republic of China, with exportations to other countries, took place on Thursday, 30 January 2020, from
https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 1/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 2 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

13:30 to 18:35 Geneva time (CEST). The Committee’s role is to give advice to the Director­General, who makes the final decision on the determination of a Public Health Emergency of International Concern (PHEIC). The Committee also provides public health advice or suggests formal Temporary Recommendations as appropriate.
Proceedings of the meeting
Members and advisors of the Emergency Committee were convened by teleconference
The Director­General welcomed the Committee and thanked them for their support. He turned the meeting over to the Chair, Professor Didier Houssin.
Professor Houssin also welcomed the Committee and gave the floor to the Secretariat.
A representative of the department of compliance, risk management, and ethics briefed the Committee members on their roles and responsibilities.
Committee members were reminded of their duty of confidentiality and their responsibility to disclose personal, financial, or professional connections that might be seen to constitute a conflict of interest. Each member who was present was surveyed and no conflicts of interest were judged to be relevant to the meeting. There were no changes since the previous meeting.
The Chair then reviewed the agenda for the meeting and introduced the presenters.
Representatives of the Ministry of Health of the People’s Republic of China reported on the current situation and the public health measures being taken. There are now 7711 confirmed and 12167 suspected cases throughout the country. Of the confirmed cases, 1370 are severe and 170 people have died. 124 people have recovered and been discharged from hospital.

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 2/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 3 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

The WHO Secretariat provided an overview of the situation in other countries. There are now 83 cases in 18 countries. Of these, only 7 had no history of travel in China. There has been human­to­human transmission in 3 countries outside China. One of these cases is severe and there have been no deaths.
At its first meeting, the Committee expressed divergent views on whether this event constitutes a PHEIC or not. At that time, the advice was that the event did not constitute a PHEIC, but theCommittee members agreed on the urgency of the situation and suggested that the Committee should continue its meeting on the next day, when it reached the same conclusion.
This second meeting takes place in view of significant increases in numbers of cases and additional countries reporting confirmed cases.
Conclusions and advice
The Committee welcomed the leadership and political commitment of the very highest levels of Chinese government, their commitment to transparency, and the efforts made to investigate and contain the current outbreak. China quickly identified the virus and shared its sequence, so that other countries could diagnose it quickly and protect themselves, which has resulted in the rapid development of diagnostic tools.
The very strong measures the country has taken include daily contact with WHO and comprehensive multi­sectoral approaches to prevent further spread. It has also taken public health measures in other cities and provinces; is conducting studies on the severity and transmissibility of the virus, and sharing data and biological material. The country has also agreed to work with other countries who need their support. The measures China has taken are good not only for that country but also for the rest of the world.
The Committee acknowledged the leading role of WHO and its partners.

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 3/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 4 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

The Committee also acknowledged that there are still many unknowns, cases have now been reported in five WHO regions in one month, and human­to­human transmission has occurred outside Wuhan and outside China.
The Committee believes that it is still possible to interrupt virus spread, provided that countries put in place strong measures to detect disease early, isolate and treat cases, trace contacts, and promote social distancing measures commensurate with the risk. It is important to note that as the situation continues to evolve, so will the strategic goals and measures to prevent and reduce spread of the infection. The Committee agreed that the outbreak now meets the criteria for a Public Health Emergency of International Concern and proposed the following advice to be issued as Temporary Recommendations.
The Committee emphasized that the declaration of a PHEIC should be seen in the spirit of support and appreciation for China, its people, and the actions China has taken on the frontlines of this outbreak, with transparency, and, it is to be hoped, with success. In line with the need for global solidarity, the Committee felt that a global coordinated effort is needed to enhance preparedness in other regions of the world that may need additional support for that.
Advice to WHO
The Committee welcomed a forthcoming WHO multidisciplinary technical mission to China, including national and local experts. The mission should review and support efforts to investigate the animal source of the outbreak, the clinical spectrum of the disease and its severity, the extent of human­to­human transmission in the community and in healthcare facilities, and efforts to control the outbreak. This mission will provide information to the international community to aid in understanding the situation and its impact and enable sharing of experience and successful measures.
The Committee wished to re­emphasize the importance of studying the possible source, to rule out hidden transmission and to inform risk management measures

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 4/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 5 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

The Committee also emphasized the need for enhanced surveillance in regions outside Hubei, including pathogen genomic sequencing, to understand whether local cycles of transmission are occurring.
WHO should continue to use its networks of technical experts to assess how best this outbreak can be contained globally.
WHO should provide intensified support for preparation and response, especially in vulnerable countries and regions.
Measures to ensure rapid development and access to potential vaccines, diagnostics, antiviral medicines and other therapeutics for low­ and middle­income countries should be developed.
WHO should continue to provide all necessary technical and operational support to respond to this outbreak, including with its extensive networks of partners and collaborating institutions, to implement a comprehensive risk communication strategy, and to allow for the advancement of research and scientific developments in relation to this novel coronavirus.
WHO should continue to explore the advisability of creating an intermediate level of alert between the binary possibilities of PHEIC or no PHEIC, in a way that does not require reopening negotiations on the text of the IHR (2005).
WHO should timely review the situation with transparency and update its evidence­ based recommendations.
The Committee does not recommend any travel or trade restriction based on the current information available.
The Director­General declared that the outbreak of 2019­nCoV constitutes a PHEIC and accepted the Committee’s advice and issued this advice as Temporary Recommendations under the IHR.
To the People’s Republic of China

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 5/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 6 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

Continue to:
• Implement a comprehensive risk communication strategy to regularly inform the population on the evolution of the outbreak, the prevention and protection measures for the population, and the response measures taken for its containment.
• Enhance public health measures for containment of the current outbreak.
• Ensure the resilience of the health system and protect the health workforce.
• Enhance surveillance and active case finding across China.
• Collaborate with WHO and partners to conduct investigations to understand the epidemiology and the evolution of this outbreak and measures to contain it.
• Share relevant data on human cases.
• Continue to identify the zoonotic source of the outbreak, and particularly the potential for circulation with WHO as soon as it becomes available.
• Conduct exit screening at international airports and ports, with the aim of early detection of symptomatic travelers for further evaluation and treatment, while minimizing interference with international traffic.
To all countries
It is expected that further international exportation of cases may appear in any country. Thus, all countries should be prepared for containment, including active surveillance, early detection, isolation and case management, contact tracing and prevention of onward spread of 2019­nCoVinfection, and to share full data with WHO. Technical advice is available on the WHO website.
Countries are reminded that they are legally required to share information with WHO under the IHR.

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 6/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 7 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

Any detection of 2019­nCoV in an animal (including information about the species, diagnostic tests, and relevant epidemiological information) should be reported to the World Organization for Animal Health (OIE) as an emerging disease.
Countries should place particular emphasis on reducing human infection, prevention of secondary transmission and international spread, and contributing to the international response though multi­sectoral communication and collaboration and active participation in increasing knowledge on the virus and the disease, as well as advancing research.
The Committee does not recommend any travel or trade restriction based on the current information available.
Countries must inform WHO about travel measures taken, as required by the IHR. Countries are cautioned against actions that promote stigma or discrimination, in line with the principles of Article 3 of the IHR.
The Committee asked the Director­General to provide further advice on these matters and, if necessary, to make new case­by­case recommendations, in view of this rapidly evolving situation.
To the global community
As this is a new coronavirus, and it has been previously shown that similar coronaviruses required substantial efforts to enable regular information sharing and research, the global community should continue to demonstrate solidarity and cooperation, in compliance with Article 44 of the IHR (2005), in supporting each other on the identification of the source of this new virus, its full potential for human­to­ human transmission, preparedness for potential importation of cases, and research for developing necessary treatment.
Provide support to low­ and middle­income countries to enable their response to this event, as well as to facilitate access to diagnostics, potential vaccines and therapeutics.

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 7/8

Case 1:20-cv-01312-ELR Document 11-14 Filed 05/08/20 Page 8 of 8

3/23/2020

Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (20…

Under Article 43 of the IHR, States Parties implementing additional health measures that significantly interfere with international traffic (refusal of entry or departure of international travellers, baggage, cargo, containers, conveyances, goods, and the like, or their delay, for more than 24 hours) are obliged to send to WHO the public health rationale and justification within 48 hours of their implementation. WHO will review the justification and may request countries to reconsider their measures. WHO is required to share with other States Parties the information about measures and the justification received.
The Emergency Committee will be reconvened within three months or earlier, at the discretion of the Director­General.
The Director­General thanked the Committee for its work.

Subscribe to our newsletters →

https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-… 8/8

Case 1:20-cv-01312-ELR Document 11-15 Filed 05/08/20 Page 1 of 5

3/23/2020

WHO Director-General's opening remarks at the media brieﬁng on COVID-19 - 11 March 2020

WHO Director­General's opening remarks at the media briefing on COVID­ 19 ­ 11 March 2020
11 March 2020
Good afternoon.
In the past two weeks, the number of cases of COVID­19 outside China has increased 13­fold, and the number of affected countries has tripled.
There are now more than 118,000 cases in 114 countries, and 4,291 people have lost their lives.
Thousands more are fighting for their lives in hospitals.
In the days and weeks ahead, we expect to see the number of cases, the number of deaths, and the number of affected countries climb even higher.
WHO has been assessing this outbreak around the clock and we are deeply concerned both by the alarming levels of spread and severity, and by the alarming levels of inaction.

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-brieﬁng-on-covid-19---11-march-2020

1/5

Case 1:20-cv-01312-ELR Document 11-15 Filed 05/08/20 Page 2 of 5

3/23/2020

WHO Director-General's opening remarks at the media brieﬁng on COVID-19 - 11 March 2020

We have therefore made the assessment that COVID­19 can be characterized as a pandemic.
Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death.
Describing the situation as a pandemic does not change WHO’s assessment of the threat posed by this virus. It doesn’t change what WHO is doing, and it doesn’t change what countries should do.
We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus.
And we have never before seen a pandemic that can be controlled, at the same time.
WHO has been in full response mode since we were notified of the first cases.
And we have called every day for countries to take urgent and aggressive action.
We have rung the alarm bell loud and clear.
===
As I said on Monday, just looking at the number of cases and the number of countries affected does not tell the full story.
Of the 118,000 cases reported globally in 114 countries, more than 90 percent of cases are in just four countries, and two of those – China and the Republic of Korea ­ have significantly declining epidemics.
81 countries have not reported any cases, and 57 countries have reported 10 cases or less.
We cannot say this loudly enough, or clearly enough, or often enough: all countries can still change the course of this pandemic.

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-brieﬁng-on-covid-19---11-march-2020

2/5

Case 1:20-cv-01312-ELR Document 11-15 Filed 05/08/20 Page 3 of 5

3/23/2020

WHO Director-General's opening remarks at the media brieﬁng on COVID-19 - 11 March 2020

If countries detect, test, treat, isolate, trace, and mobilize their people in the response, those with a handful of cases can prevent those cases becoming clusters, and those clusters becoming community transmission.
Even those countries with community transmission or large clusters can turn the tide on this virus.
Several countries have demonstrated that this virus can be suppressed and controlled.
The challenge for many countries who are now dealing with large clusters or community transmission is not whether they can do the same – it’s whether they will.
Some countries are struggling with a lack of capacity.
Some countries are struggling with a lack of resources.
Some countries are struggling with a lack of resolve.
We are grateful for the measures being taken in Iran, Italy and the Republic of Korea to slow the virus and control their epidemics.
We know that these measures are taking a heavy toll on societies and economies, just as they did in China.
All countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.
WHO’s mandate is public health. But we’re working with many partners across all sectors to mitigate the social and economic consequences of this pandemic.
This is not just a public health crisis, it is a crisis that will touch every sector – so every sector and every individual must be involved in the fight.

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-brieﬁng-on-covid-19---11-march-2020

3/5

Case 1:20-cv-01312-ELR Document 11-15 Filed 05/08/20 Page 4 of 5

3/23/2020

WHO Director-General's opening remarks at the media brieﬁng on COVID-19 - 11 March 2020

I have said from the beginning that countries must take a whole­of­government, whole­ of­society approach, built around a comprehensive strategy to prevent infections, save lives and minimize impact. Let me summarize it in four key areas. First, prepare and be ready. Second, detect, protect and treat. Third, reduce transmission. Fourth, innovate and learn. I remind all countries that we are calling on you to activate and scale up your emergency response mechanisms; Communicate with your people about the risks and how they can protect themselves – this is everybody’s business; Find, isolate, test and treat every case and trace every contact; Ready your hospitals; Protect and train your health workers. And let’s all look out for each other, because we need each other. === There’s been so much attention on one word. Let me give you some other words that matter much more, and that are much more actionable. Prevention. Preparedness.

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-brieﬁng-on-covid-19---11-march-2020

4/5

Case 1:20-cv-01312-ELR Document 11-15 Filed 05/08/20 Page 5 of 5

3/23/2020

WHO Director-General's opening remarks at the media brieﬁng on COVID-19 - 11 March 2020

Public health. Political leadership. And most of all, people. We’re in this together, to do the right things with calm and protect the citizens of the world. It’s doable. I thank you.

Subscribe to the WHO newsletter →

https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-brieﬁng-on-covid-19---11-march-2020

5/5

Case 1:20-cv-01312-ELR Document 11-16 Filed 05/08/20 Page 1 of 1

3/23/2020

https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx

Preparedness

Emergency

About ASPR

PHE Home > Emergency > News & Multimedia > Public Health Actions > PHE > Determination that a Public Health Emergency Exists

Search...

Determination that a Public Health Emergency Exists

More Emergency and Response Information

As a result of confirmed cases of 2019 Novel Coronavirus (2019­nCoV), on this date and after consultation with public health officials as necessary, I, Alex M. Azar II, Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby determine that a public health emergency exists and has existed since January 27, 2020, nationwide.

01/31/2020 _____________________________ Date

/s/ _____________________________ Alex M. Azar II

Declarations of a Public Health Emergency Public Health Emergency Determinations to Support an Emergency Use Authorization Section 1135 Waivers Emergency Use Authorizations

This page last reviewed: January 31, 2020
Home | Contact Us | Accessibility | Privacy Policies | Disclaimer | HHS Viewers & Players | HHS Plain Language Assistant Secretary for Preparedness and Response (ASPR), 200 Independence Ave., SW, Washington, DC 20201
U.S. Department of Health and Human Services | USA.gov | GobiernoUSA.gov | HealthCare.gov in Other Languages

https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx

1/1

Case 1:20-cv-01312-ELR Document 11-17 Filed 05/08/20 Page 1 of 3

3/23/2020

Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak | The White House

PROCLAMATIONS
Proclamation on Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak
Issued on: March 13, 2020

In December 2019, a novel (new) coronavirus known as SARS-CoV-2 (“the virus”) was first detected in Wuhan, Hubei Province, People’s Republic of China, causing outbreaks of the coronavirus disease COVID-19 that has now spread globally. The Secretary of Health and Human Services (HHS) declared a public health emergency on January 31, 2020, under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID-19. I have taken sweeping action to control the spread of the virus in the United States, including by suspending entry of foreign nationals seeking entry who had been physically present within the prior 14 days in certain jurisdictions where COVID-19 outbreaks have occurred, including the People’s Republic of China, the Islamic Republic of Iran, and the Schengen Area of Europe. The Federal Government, along with State and local governments, has taken preventive and proactive measures to slow the spread of the virus and treat those a ected, including by instituting Federal quarantines for individuals evacuated from foreign nations, issuing a declaration pursuant to section 319F 3 of the Public Health Service Act (42 U.S.C. 247d 6d), and releasing policies to accelerate the acquisition of personal protective equipment and streamline bringing new diagnostic capabilities

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

1/3

Case 1:20-cv-01312-ELR Document 11-17 Filed 05/08/20 Page 2 of 3

3/23/2020

Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak | The White House

to laboratories. On March 11, 2020, the World Health Organization announced that

the COVID-19 outbreak can be characterized as a pandemic, as the rates of infection

continue to rise in many locations around the world and across the United States.

The spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability. Additional measures, however, are needed to successfully contain and combat the virus in the United States.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. Pursuant to this declaration, I direct as follows:

Section 1. Emergency Authority. The Secretary of HHS may exercise the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID 19 outbreak.

Sec. 2. Certification and Notice. In exercising this authority, the Secretary of HHS shall provide certification and advance written notice to the Congress as required by section 1135(d) of the SSA (42 U.S.C. 1320b-5(d)).

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

2/3

Case 1:20-cv-01312-ELR Document 11-17 Filed 05/08/20 Page 3 of 3

3/23/2020

Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak | The White House

Sec. 3. General Provisions. (a) Nothing in this proclamation shall be construed to

impair or otherwise a ect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the O ice of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its o icers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this thirteenth day of March, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

3/3

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 1 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 1 of 15

%S +S ,%+S *++*S *+(+S &,(+S &(S+S%&(+(%S*+( +S&S&(S
+"%+S -*&%S

$(+%S&.%S 

'D2BFLB;KS
N
S
)S(%*'((S BFSABKS G<5B2DS52I25BLRS2KS*75J7L2JRSG9S*L2L7S G9S7GJ@B2S

-"S+&%S%&
S S-#$$S

797F62FL
S 
+ABKSE2LL7JSBKS479HJ7SLA7SGMJLSGFS'D2BFLB;KS$GLBGFS9HJS*MEE2JRS !M6@E7FLS /0S2F6S798F62FLKS$GLBGFS9GJS*MEE2JRS!M6@E7FLS /1S2F6S 797F62FLKS$GLBGFSLGSQ5DM67SQI7JLS(7IGJLSG9S2J5RS(B5A2J6KGFS /1
S 9L7JS 6M7S5GFKB67J2LBGFS LA7SGMJLS7FL7JKSLA7S=DDGPBF@S&J67JS
 
  +ABKS E2LL7JS 2JBK7KS >GES 2S 5GFKLBLMLBGF2DS 5A2DD7F@7SLGS 7GJ@B2KS 42DDGL 2557KKS J7KLJB5LBGFKS9HJSLABJ6I2JLRS 52F6B62L7KS K77CBF@S 7D75LBGFSLGSLA7S ,FBL76S*L2L7KS GMK7SG9S(7IJ7K7FL2LBN7K
S'D2BFLB;KS2J7SLA7S"B47JL2JB2FS'2JLRSG9S7GJ@B2S IJGKI75LBN7S"B47JL2JB2FS52F6B62L7KS 2F6S"B47JL2JB2FSNGL7JK
S *77SCL
S %G
S /1S

 ,FD7KKSGLA7JPBK7SBF6B52L76SLA7S:25LKSJ7DB76SMIGFSBFSLABKSK75LBGFS2J7SL2C7FS?GES LA7SKL2L7E7FLKSG9SE2L7JB2DS935LKSIJGOB676S4RSLA7SI2JLB7K
S*77SCL
S %GK
S / S S 0S

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 2 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 2 of 15
MMN  N!:(7<D70CNC,,9N7<8E<*D7F,NA,:7,.N(<+N(N+,*:(A(D7=<ND6(DN ,=A47(CN)(::=DK (**,CCNA,CDA7*D7=<CNNE<*=<CD7DED7=<(::IN)EA+,<N!:(7<D70CNA746DCNE<+,AND6,N 7ACDN (<+N =EAD,,<D6N;,<+;,<DCN (<+N NF7=:(D,ND6,N@E(:N!A=D,*D7=<N :(EC,N=.ND6,N =EAD,,<D6N;,<+;,<D N#,,N 9D N= N&'NMMN  N

N 7CD=BN=.N ,=A57(CN (::=DN**,CCN",CDA7*D7=<CN ,=A47(N,<(*D,+N7DCN2ACDN)(::=D(**,CCN:(HN7<NN H67*6N?A=G7+,+ND6(DN(<N 7<+,?,<+,<DN*(<+7+(D,N =AND6,N<=;7<,,N=.N(<IN?(ADIN*=E:+N(??,(AN=<ND6,N4,<,A(:L ,:,*D7=<N)(::=DN(CN(N*(<+7+(D,N.>AN(<IN=1*,NH7D6N<=N?,D7D7=<N(<+N<=N/,, N9D N= N &'NMN  N<NN ,=A47(N(+=?D,+N(NN ?,D7D7=<NA,@E7A,;,<DN.>AN(**,CCND=ND6,N 4,<,A(:,:,*D7=<N)(::=D N+
NMN  N$6(DN:(HN(::=H,+N*(<+7+(D,CN=.N(<IN?=:7D7*(:N?(ADIN D6(DNA,*,7F,+N(DN:,(CDNN =.ND6,NF=D,CN7<ND6,N:(CDN4,<,A(:N,:,*D7=<N3AND6,N=1*,ND=N (??,(AN=<ND6,N4,<,A(:,:,*D7=<N)(::=DNH7D6=EDN(N?,D7D7=<N=AN.-, N+ N::N=D6,AN *(<+7+(D,CNH,A,NA,@E7A,+N)IN:(HND=N .7:,N(N?,D7D7=<N C74<,+N)IN(DN:,(CDNN =.ND6,N A,47CD,A,+NF=D,ACN7<ND6,ND,AA7D=AIN*=F,A,+N)IND6,N=1*, N+
N $6,N+,(+:7<,N.>AND6,N ?,D7D7=<NH(CND67ADIN+(ICN),3A,ND6,N4,<,A(:N,:,*D7=< N+ NMN  N,DH,,<NN(<+N N D6,N ,=A47(N ,<,A(:NCC,;):IN(+=?D,+N(NC,A7,CN=.N7<*A,;,<D(:N*6(<4,CND=N D6,N?,D7D7=<N+,(+:7<,N (++,+N(N2:7<4N.,,N (<+N7;?=C,+N(N<E;),AN=.N=D6,AN A,CDA7*D7=<C N+ MMN  N
 N ,=A57(CN EAA,<DN (::=DN**,CCN ",CDA7*D7=<CN %<+,AN ,=A47(N:(HN (N?=:7D7*(:N?(ADIN 7CN(<IN?=:7D7*(:N=A4(<7J(D7=<N H6=C,N <=;7<,,N A,*,7F,+N (DN:,(CDN DH,<DIN ?,A*,<DN =.ND6,N F=D,N 7<N D6,N :(CDN 4E),A<(D=A7(:N =AN ?A,C7+,<D7(:N,:,*D7=< N   N
NN*(<+7+(D,N;(IN(??,(AN=<N ,=A47(CN
N

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 3 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 3 of 15
1>1/I;BAR.->>BIR6GR -AOR HI-I1M;01RBGR0;HIG;/IR B4/1R;2R:1R BGR H:1R ;HR AB?;A-I10R;AR-R EG;?-GPR/BA0J/I10R.OR-REB>;I;/->RE-GIOR% "R  R
R EB>;I;/->R .B0OR ;HR -AOR EB>;I;/->R BG9-A;Q-I;BARBI:1GRI:-AR-R EB>;I;/->RE-GIPR % "R   R&B>;I;/->R.B0;1HR?JHIRAB?;A-I1R/-A0;0-I1HR6GRE-GI;H-AR B4/1HR.OR/BAK1AI;BAR% "R   C9R"1BG9;-R>-MREGBK;01HRI:-IR-R EB>;I;/->R .B0OR .1/B?1HR FJ->;510RIBRAB?;A-I1R /-A0;0-I1HR 7GR HI-I1M;01REJ.>;/R B4/1R.OR/BAK1AI;BAR;2R R;IRHJ.@;IHR-RFJ->;8;A9RE1I;I;BARH;9A10R.OR-IR>1-HIRBA1R E1G/1AIRB2RI:1RIBI->RAJ@.1GR B2RG19;HI1G10RKBI1GHR-IRI:1R>-HIR 91A1G->R 1>1/I;BAR BGRR ;IRAB?;A-I10R-R/-A0;0-I1R7GRHI-I1M;01R EJ.>;/R B25/1R;ARI:1R>-HIR 91A1G->R1>1/I;BAR M:BRG1/1;K10RKBI1HRIBI->;A9R-IR>1-HIRBA1RE1G/1AIRB2RI:1RIBI->RAJ?.1GRB2RG19;HI1G10R KBI1GHR;ARI:1R1>1/I;BAR% "R   R -A0;0-I1HR2DGRHI-I1M;01RB25/1HR ;A/>J0;A9RI:1RB4/1RB2RI:1R&G1H;01AIRB2RI:1R*A;I10R(I-I1HR AB@;A-I10R.OR-REB>;I;/->R .B0ORI:-IR;HRFJ->;510RJA01GR(1/I;BAR 
R-EE1-GR-JIB?-I;/->>PRBARI:1R91A1G->R 1>1/I;BAR.->>BIR M;I:BJIR -RAB?;A-I;BARE1I;I;BAR % "R    1R):1R #;.1GI-G;-AR &-GIOR;HR-REB>;I;/->R.B0ORJA01GR"1BG9;-R>-MR-A0R:-HR.11ARFJ->;510R JA01GR(1/I;BAR  RH;A/1RR!=IR$BR +,R R
-A0;0-I1HR6GRABA HI-I1N<01RB4/1HR ;A/>J0;A9RI:1RB4/1RB2R*(R '1EG1H1AI-I;K1R AB@;A-I10R.OR-REB>;I;/->R.B0ORI:-IR;HR FJ->;510RJA01GR(1/I;BAR  R0BRABIR-EE1-GR-JIB@-I;/->>ORBARI:1R91A1G->1>1/I;BAR.->>BIR G-I:1GR HJ/:R /-A0;0-I1HR@JHIRHJ.@;IR R-RABI;/1RB2R /-A0;0-/PR -A0R FJ->;8;A9R211R  "R
 &JGHJ-AIRIBR % "R 9R-R/-A0;0-I1R?-PR5>1R-RE-JE1GHR -40-L<IR;AR >;1JR B2R I:1R FJ->;8;A9R31R
R

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 4 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 4 of 15
 
3S0E3SS0SEFD@E0N@FESI4N@N@FESM@=E43S1RSSF5SN?4SEOD14LSF5S L4=@MN4L43SPFN4LMS4C@=@1B4SNFSPFN4S9LSN?0NSF724S@ESN?4SB0MNS4C42N@FES$S   G1S
S &O0B@<E>S44S0E3S#FD@E0N@FES%4N@N@FES(4JO@L4D4ENMS *?4SKO0B@:@E=S64S9LSDFMNSI0LN@M0ESIO1B@2SF724MS@E2CO3@E=S+)S (4IL4M4EN0N@P4S@MSN?L44SI4L24ENSF5SN?4S0EEO0BSM0B0LRSF5SN?4SF724S$S  0S*?4S2OLL4ENS0EEO0BS M0B0LRS 9LS+)S (4IL4M4EN0N@P4MS @MS SANS #FS-/SSMSMO2?SN?4SKO0B@:@E=S64S9LS402?S20E3@30N4S5HLS+)S FOM4SF5S (4IL4M4EN0N@P4MS@MSS!3SFE=SMN0N4MSQ@N?S0SD0E30NFLRSI4N@N@FES4FL=@0MS KO0B@;@E=S64MS0L4S?@=?4LSN?0ES0ERSFN?4LSMN0N4S@ESN?4SE0N@FES!3SS 'O0B@:@E=S64MS9LSIFB@N@20C I0LNRS20E3@30N4MS9LS+)S(4IL4M4EN0N@P4S0L4S I0@3S3@L42NBRSNFSN?4SMN0N4SIFB@N@20BSI0LNRSQ?@2?SL4N0@EMSM4P4ENR 8P4SI4L24ENS0E3S M4E3MSNQ4ENR
8P4S I4L24ENSNFSN?4S)42L4N0LRS F5S)N0N4SS  

1
2S 'O0B@;@E=S64MS9LS@E34I4E34ENS0E3SIFB@N@20B
1F3RS20E3@30N4MS5FLS+)S (4IL4M4EN0N@P4S0L4SI0@3SNFSN?4S)42L4N0LRSF5S)N0N4S$S  1SFLS IFB@N@20C
1F3RS20E3@30N4MSN?4S)42L4N0LRS L4N0@EMSNQ4ENR 8P4SI4L24ENS0E3SM4E3MS M4P4ENR
8P4SI4L24ENSNFSN?4SIFB@N@20BS1F3RS$S
 2S,?@B4SN?4S MN0NON4SL4KO@L4MSN?4S)42L4N0LRSF5S)N0N4SNFS3@MNL@1ON4SN?4S5OE3MS0MSMFFES0MS IL02N@201B4SN?4S"@14LN0L@0ES%0LNRS3@3SEFNSL424@P4SN?4@LSM?0L4SF5SN?4SKO0B@:@E=S 544MS5HLSN?4SS4C42N@FESOEN@BS05N4LSN?4S4B42N@FESQ0MSFP4LS@ESD@3
IL@BSS $S  
2S ANS#FS.
/S 
S
S

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 5 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 5 of 15
':1R01,0=;@1R3CGREA=;I;/,=.A0NR/,@0;0,I1HRIAR6=1RI:1;GR@AI;/1RA3R/,@0;0,/NR ,@0R FJ,=;8;@9R321R ;HR @AA@R A@R I:1R G;0,NR 3D==AM;@9R I:1R !A@0,NR A3R I:1RI:;GIN63I:R L11<R.13CG1RI:1R91@1G,=R1=1/I;A@,R0,I1RI:,IR3-==HR;@R1,G=NR!,G/:RA3R,@R1=1/I;A@R N1,G R #    R  0 R ':1R@A?;@,I;A@RE1I;I;A@R;HR0J1R@AR=,I1GRI:,@R @AA@RA@RI:1RH1/A@0R'J1H0,NR;@RJ=N R   
 R  1 R ':1R3CG?RA3RI:1R E1I;I;A@R;HRH1IRAJIR.NRHI,IJI1 R #    R   R R@A?;@,I;A@RE1I;I;A@R?JHIR.1R A@RH:11IHRA3R J@;3DG?R H;O1R ,@0R0;41G1@IR H:11IHR?JHIR.1RJH10R .NR H;9@1GHR G1H;0;@9R;@R 0;41G1@IR/AJ@I;1HRAGR?J@;/;E,=;I;1H R #    R B0 R ,/:RH:11IR?JHIR,=HAR /A@I,;@R,RHLAG@R,@0R @AI,G;P10R ,50,K;IRA3RI:1R/;G/J=,GR ,II1HI;@9R ,?A@9RAI:1GR I:;@9HRI:,IR 1,/:R H;9@,IJG1R A@R I:1R H:11IR L,HR9,I:1G10RL;I:;@R R 0,NHR A3R I:1R 6=;@9R 01,0=;@1 R 0 R
//AG0;@9R IAR I:1R&1/G1I,GNR A3R &I,I1R1AG9;,R :,0R R ,/I;K1R G19;HI1G10RKAI1GHR,HRA3RI:1RR91@1G,=R1=1/I;A@ R <I R "A R )*R  R 1AG9;,R /JGG1@I=NR:,HR3CJGI11@R?1?.1GHRA3RI:1R( & R AJH1RA3R%1EG1H1@I,I;K1HR1,/:RA3R L:;/:R;HR1=1/I10R7A?R ,RH;@9=1?1?.1GR0;HIG;/I R 0 R   R ':1R&1/G1I,GNRA3R&I,I1R 1HI;?,I1HRI:,IR I:1R ;.1GI,G;,@R $,GINR LAJ=0R @110RIAR 9,I:1GR RH;9@,IJG1HRIAR GJ@R,R3J==RH=,I1RA3R/,@0;0,I1HR3CGRI:1R A36/1R A3R (@;I10R&I,I1HR %1EG1H1@I,I;K1HR;@R  R 0 R R H11R,=HAR<I R "A R )+R ,IR R 1AG9;,R G1FJ;G1HR?AG1RH;9@,IJG1HR 3CGRI:;G0E,GINR /,@0;0,I1HR3DGR ( & R %1EG1H1@I,I;K1RIAR,EE1,GRA@RI:1R91@1G,=Q 1=1/I;A@R.,=>AIRI:,@R,@NRAI:1GRHI,I1R;@RI:1R@,I;A@R.AI:R,HR,RE1G/1@I,91RA3RKAI1HR /,HIR,@0R,HR,@R,.HA=JI1R@J?.1GRA3RH;9@,IJG1H R <I R "A R )+R  R
R

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 6 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 6 of 15
!` (0TU`UU4IOUT`UK`)W0HD>`6MS`UC4`#4J4S0H"H42UDKJ`0HHKU`0J3` (S02UD20H`0SSD4ST`UK` (4UDUDKJDJ@`
&K`PKHDUD20H1K3\`20J3D30U4`6MS`-+`*4PS4T4JU0UDY4`C0T`4Y4S`T0UDT:43`UC4` S4RWDS4I4JUT` UK` 0PP40S`KJ` #4KSAD0T`A4J4S0H4H42UDKJ`10HHKU`TDJ24`UC4`` P4UDUDKJ`S4RWDS4I4JU`[0T`03KPU43`DJ``$3`^` `(H0DJUD8T`C0Y4`TW1IDUU43` 4YD34J24`UC0U`TDJ24``0U`H40TU`U[4JU\`DJ34P4J34JU`0J3`PKHDUD20H`1K3\` 20J3D30U4T`C0Y4`WJTW224TT7WHH\`0UU4IPU43`UK`0224TT`UC4`10HHKU`$3__` ` (H0DJUD8T`0HTK`PSKZF34`4YD34J24`K6`UC4`Y0SDKWT`PS02UD20H`10SSD4ST`UK`A0UC4SDJA` 4JKWAC`TDAJ0UWS4T`UK`T0UDT?`UC4``P4UDUDKJ`S4RWDS4I4JU`DJ2HW3DJA` `UC4` +42S4U0S\`K6`+U0U4T`TDAJ0UWS42C42GDJA`PSK24TT` [CD2C`022KS3DJA`UK`(H0DJUD8T`DT` 4SSKS`PSKJ4``UC4`3D92WHU\`0J3`P024` K6`P4UDUDKJDJA` `UC4`2KTU`K6`P4UDUDKJDJA` 0J3`UC4`DIP02U`K6`6434S0H`20IP0DAJ`:J0J24`H0[` `P4UDUDKJ2DS2WH0UKST`H02G`K6` 0224TT` UK`YKU4ST` 0J3` `PW1HD2`2KJ24SJ`01KWU`3DT2HKTDJA`UC4`2KJ:34JUD0H` DJ6MSI0UDKJ`S4RWDS43`1\`UC4`6KSI`K6`0`JKIDJ0UDKJ`P4UDUDKJ`$3^_` `` ` ``
"` +XQQNSU`6KS`UC4` %D14SU0SD0J`(0SV`&0UDKJ[D34`0J3`DJ`#4KSBD0` ,C4`%D14SU0SD0J`(0SU\`[0T`<WJ343`DJ``0J3`DT`KSA0JD]43`DJ`0HH`;=\` TU0U4T`PHWT`UC4`!DTUSD2U`K6` KHWI1D0`!GU`&K` ./`^` `&0UDKJ[D34`UC4`
`$J34P4J34JU`20J3D30U4T`3K`JKU`0PP40S`0WUKI0UD20HH\`KJ`UC4`10HHKU`6MS`0J\`K924` WJH4TT`UC4`20J3D30U4`DT`0J`DJ2WI14JU` UK`0PP40S`KJ`UC4`A4J4S0H4H42UDKJ`10HHKU` DJ34P4J34JU` 20J3D30U4T`<S` JKJTU0U4[D34` P0SUDT0J`PW1HD2`K66E24T`IWTU` TW1IDU`` 0`JKUD24`K6`20J3D302\`0J3`RW0HD?DJA`654` ' #` 
3`0J3``0` JKIDJ0UDKJ`P4UDUDKJ`TDAJ43`1\`` K6`UC4`JWI14S`K6`S4ADTU4S43`YKU4ST`4HDAD1H4`UK` YKU4`6MS`UC0U`K6:24`DJ`UC4`H0TU`4H42UDKJ`' #`L1`
`

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 7 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 7 of 15
$=15IK/I=/CS &/IKQS=JS3LII5DKAQSK<5SK<=I4 A/I;5JKSGEA=K=3/ASG/IKQS=DSK<5S*D=K54S(K/K5JS 1QSMEK5IS I5;=JKI/K=ECS "4S  S "CSSK<5S %/K=EC/AS $=15IK/I=/DS &/IKQS3ELCK54S /JSB5B15IJS=C3AL4=D;SG5IJECJSK</KSG/=4SCES/DCL/AS4L5JSSG5IJEDJSI5J=4=D;S =CS 5EI;=/S@KS%ES, -SS)<5SBEJKSI535CKS4/K/S:EBSK<5SG/IK=5JSJ<ENJSK</KS =CSSK<5S$=15IK/I=/CS&/IKQSE7S 5EI;=/S</4SS4L5 G/Q=C;SB5B15IJS"4SS
 
  545I/AS 'LA5SE7S =M=AS &IE354LI5SSGIEM=45JS ,K-<5S3ELIKS J</AAS ;I/CKS JLBB/IQS?L4;B5CKS=7S K<5S BEM/CKS J<ENJSK</KS K<5I5S=JS CES ;5CL=C5S4=JGLK5S /JS KES /CQSB/K5I=/AS7/3KS/C4SK<5SBEM/CKS=JS5CK=KA54SKES?L4;B5CKS/JS/SB/KK5ISE7 A/NSS 'S#+S&S/S S703KL/AS 4=JGLK5S =JS ;5CL=C5S=7SK<5S 5M=45C35S NELA4S/AAENS/S I5/JEC/1A5S?LIQS KES 9C4S 7FISK<5S CEDBEM=D;SG/IKQSC45IJECSMS $=15IKRS $E12S"D3SS*(SSS SS7/3KS=JS B/K5I=/AS =7S=KS=JS /SA5;/AS 5A5B5CKSE7SK<5S3A/=BSLC45ISK<5S /GGA=3/1A5SJL1JK/CK=M5SA/NSN<=3<SB=;<KS/853KSK<5SELK3EB5SE7SK<5S3/J5SA5CSMS )RJECS EE4JS "C3SS4SSS K<S =ISS )<5SBEM=D;SG/IKQS15/IJSK<5S =C=K=/AS1LI45CSE7SJ<EN=D;SK<5S ELIKS1QS I576I5C35SKESB/K5I=/AJS=CSK<5SI53EI4SK</KSK<5I5S=JSCES;5CL=C5S4=JGLK5S/JSKES/CQS B/K5I=/AS703KS K</KSJ<ELA4S15S453=454S/KS KI=/AS !=3@JECSEIHS MS %S IEJJ/IBSES S 4S S SK<S=ISS3=K=C;S 5AEK5PS EIHS MS /KI5KKS S *(S S SS)<5SBEM=C;SG/IKQJS1LI45CS=JS4=J3</I;54SB5I5AQS1QSJ<EO>C;
K</KS =JSGE=CK=C;SELKSKES K<5S4=JKI=3KS3ELIK
K</KSK<5I5S=JS /CS/1J5C35SE7S5M=45C35SKES JLGGEIKS,/CS5JJ5DK=/AS5A5B5CKSE7.S K<5S CECBEM=D;SG/IKQJS3/J5S5AEK5PSEIHSS
S

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 8 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 8 of 15
'%Y,MYYDY01M1KC=D=D;YT<1M<1KYM<1YCER=D;YH,KMVY<,LYC1MYM<=LY.QK01DYM<1Y 0=LMK=/MY/EQKMYCQLMYR=1TYM<1Y1S=01D/1Y,D0Y,ABY3-/MQ,AY=D32K1D/1LY=DYM<1YA=;<MYCELMY 6REK,.A1YMEYM<1YH,KMVYEHHEL=D;YM<1YCEM=EDY E<DLEDYRYA=5OEDYY0YY YM<Y=KYY
"D/1Y M<1YCER=D;YH,KMVY<,LY,01JQ,M1AVYLQHHEKM10Y=MLYCEM=EDY M<1YDEDX CER,DMYM<1DY<,LYM<1Y.QK01DYE3YL<ET=D;YM<,MYLQCC,KVY?Q0;C1DMY=LY=CHKEH1KY.VY /EC=D;Y3FKT,K0YT=M<YLH1/=9/Y3-/MLYL<ET=D;Y,Y;1DQ=D1Y0=LHQM1Y!,MLQL<=M,YB1/Y D0QLYEYRY(1D=M<Y$,0=EYEKIY Y'%YYYY&<1K1Y=LYDEY;1DQ=D1Y )0=LHQM1+Y :KYMK=,AY T<1DYM<1YK1/EK0Y,LY ,Y T<EA1Y/EQB0YDEMYA1,0Y,YK,M=ED,AYMK=1KYE3Y 3-/MYMEY9D0Y3GKYM<1YDEDCES>D;YH,KNVY 0Y/=M,M=EDLYEC=NM10YBAYK1,LED,.B1Y 0EQ.MLY <ET1R1KY ,K1YK1LEBR10Y=DYM<1Y6REKYE3YM<1YDED CER,DMY=MWI,MK=/@YRY=PY E3YMA,DM,Y Y 0YYY M<Y=KYY
&<1YL,C1YLM,D0,K0YE3YK1S=1TY,HHA=1LYMEY/KELL
CEM=EDLY3FKYLQCC,KVY ?Q0;C1DMY.QMYM<1YEQKMYCQLMY01M1KC=D1YT<1M<1KY1=M<1KYE3YM<1YH,KM=1LY01L1KR1LY ?Q0;C1DMY,LY ,YC,MM1KYE3YA,TYEDYM<1YQD0=LHQM10Y4,/MLY%Y #=AEMY DLYEY RY%Y D/YYY%QHHY0YY
Y,YY /=M=D;YC ,D@1KLYDLYKIY RY 'D=M10Y%M,M1LY Y 0YY Y M<Y=KYY,/<YCEM=EDYCQLMY.1Y /EDL=01K10YEDY=MLYETDYC1K=MLY )U=M<+Y,AAYK1,LED,.B1Y=D7K1D/1LY*K1LEAR10+Y,;,=DLMY M<1YH,KMVYT<EL1Y CEM=EDY=LYQD01KY /EDL=01K,M=EDY 0Y,MYY
 
DYCES=D;Y3FKYLQCC,KVY?Q0;C1DMY #A,=DM=8LY ,K;Q1YM<,MY 1EK;=,LY.,ABEM

Y

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 9 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 9 of 15
.002IIS@.PIS9HSFD@<K<0.@/D1RS0.B1<1.K2IS4EHS*(S '2FH2I2BK.K<M2B.A2@RS
%!S   LB0DBIK<KLK<DB.@@RS/LH12BSK;2<HS <HIKS.B1S DLHK22BK;S
A2B1A2BKS H<:;KIS?KS$DIS +,S S +,S.KSS &@.<BK<6IS4LHK;2HS0;.@@2B:2S
!2DH:<.IS/.@@DK .002IIS@.PISLB12HSK;2S GL.@S&HDK20K<DBS@.LI2S<BSK;.KS!2DH:<.S
@.PS 0H2.K2IS.S0@.II<80.K<DBS/RSKH2.K<B:S"</2HK.H<.BS&.HKRS0.B1<1.K2IS4EHS *(S
'2FH2I2BK.K<M2S1<62H2BK@RSK;.BS "</2HK.H<.BS &.HKRS0.B1<1.K2IS9HSIK.K2P<12SD702IS
?KS$DS +,SS + ,S.KSS
243B1.BKIS ;.M2S ADM21S4EHSILAA.HRS>L1:A2BKS DCS /DK;S D4S &@.<BK<6IS
0@.<AIS.ISP2@@S.ISDCS &@.<BK<6ISFDII</@2JS0@.<ASK;.KS!2DH:<.ISF2K<K<DBS
H2GL<H2A2BKS P.IS2B.0K21SP<K;S.S1<I0H<A<B.KDHRS<BK2BKS (22S?KS$DS +,S
243B1.BKIS 8HIKS .H:L2S K;.KS K;2SM2HRSIK.KLKDHRSI0;2A2S .KS<IIL2S ;.IS/22BSH2F2.K21@RS
LF;2@1S/RS/DK;SK;2S@2M2BK;S<H0L<KS.B1SK;2S(LFH2A2SDLHKS(22S?KS$DS +,S
S &@.<BK<6IS.H:L2SK;.KS 242B1.BKIS/H<24SDC@RS.11H2II2IS &@.<CK<6IS <HIKS A2B1A2BKS0@.<AS.B1SK;2H24DH2SLH:2SK;2SDLHKSKDSKH2.KS 243B1.BKISADK<DBS.IS DB2S9HSF.HK<.@SILAA.HRS>L1:A2BKS(22S?KS $DS +-S .KSSBS);2SDLHKS ;DP2M2HS H2.1IS 243B1.BKISADK<DBS .IS DB2S 4EHS ILAA.HRS>L1:A2BKS DBS/DK;SD4S &@.<CK<6IS0@.<AIS.B1SP<@@SK;2H24EH2S KH2.KS <KS.ISIL0;S(22S?KS $DS + ,S.KS
S 1<I0LII<B:S &@.<BK<6IS0@.<AISLB12HSK;2S <HIKS.B1S DLHK22BK;SA2C1A2BKS.B1SK;2S GL.@S &HDK20K<DBS0@.LI2S JS &@.<BK<6ISFD<BKSDLKSK;.KS.@K;DL:;SK;2<HS0@.<AISLB12HSK;2S <HIKS.B1S DLHK22BK;S A2B1A2CKS .C1S K;2S GL.@S&HDK20K<DBS@.LI2S 0DL@1S 0DC02<M./@RS2B0DAF.IIS.S 0@.<AS D4S1<I0H<A<B.KDHRS<BK2BKS DHS N=2PFD<BKS 1<I0H<A<B.K<DBS K;2RS;.M2S BDKS IDL:;KS ILAA.HRS>L1:A2BKSDBSK;<IS<IIL2S(22S?KS$DS +,S.KSSCS#DH2DM2HS 243B1.BKS;.ISI<B02S8@21S.S#DK<DBSKDS Q0@L12SK;2SQF2HKS'2FDHKSD4S.H0RS '<0;.H1IDCS +,SP;<0;S<IS@.H:2@RSH21LB1.BKS D4S25C1.CKIS.H:LA2BKS<BS;<IS 
      @2M2BK;S<H0L<KS.B1SK;2S(LFH2A2SDLHKS;.M2S;2@1SK;2S0;.@@2B:21SFHDOI<DCIS 0DBIK<KLK<DB.@SK;2S<IIL2SD4S1<I0H<A<B.KDHRS<BK2BKS<ISADDKS );LIS/DK;SK;<ISFDHK<DBS D4S 243C1.BKIS ADK<DBS4EHSILAA.HRS>L1:A2BKS .B1SK;2SQF2HKS '2FDHKSD4S.H0RS '<0;.H1IDBS +,S.H2S  
S

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 10 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 10 of 15
/MTT 31/NL3TM<>LT ENKMT>LT0ENC2T0RTLN1<TKNA>C:L
T>MT>LTMETM<>LT/K:NB3CMTM</MT M<3T ENKMT8KLMTMNKCLT
T (K>EKT /L3LT,G<EA2>C;T#3EK;>/LT /AAEM113LLT )3LMK>1M>ECLT $CT&3CC3LLTOT "EKMLEC
TM<3T*NHK3B3T ENKMTK3?31M32T/T1ECLM>MNM>EC/AT 1</AA3C:3TMET3LL3CM>/AARTM<3TL/B3T0/AAEM/113LLTK3LMK>1M>ECLTM</MT(A/>CM>6LT 1</AA3C:3TME2/RM</MT>L
TM<3THKEO>L>ECLTE5TM<3T#3EK:>/T!A31M>ECT E23TK3JN>K>C:T HEA>M>1/AT0E2RT1/C2>2/M3LTMETLN0B>MTT/TCEB>C/M>C:TH3M>M>ECTL>:C32T0RT/MTA3/LMT T E5TM<3TCNB03KTE5TK3:>LM3K32TOEM3KLT>CTM<3TA/LMT:3C3K/AT3A31M>ECT5FKTM=3TE5813T>CT JN3LM>ECT/C2T T/T8A>C:T543T3JN/ATMETTE5TM<3T/CCN/ATL/A/KRTE5TM<3TE713TLEN:=MT T,*T T T T $CTNH<EA2>C:T#3EK:>/LTLM/MNMEKRTL1<3B3
TM<3T*NHK3B3T ENKMT3QHA/>C32TM</MT-M.<3K3T>LT/TLNK3ART/CT>BHEKM/CMTLM/M3T>CM3K3LMT>CTK3JN>K>C:T LEB3THK3A>B>C/KRTL<EP>C:TE5T/TL>:C>81/CMTBE2>1NBTE5TLNHHEKMT039K3THK>CM>C:T M<3TC/B3TE5T/THEA>M>1/ATEK:/C>S/M>ECLT1/C2>2/M3TECTM<3T0/AAEMT%2T /MTT +<3T *NHK3B3T ENKMT/1@CEPA32:32TM</MT-M.<3TT8:NK3T>L
TMET03TLNK3
T/HH/K3CMART LEB3P</MT<>:<3KTM</CTM<3TH3K13CM/:3TE5TLNHHEKMTK3JN>K32TMET03TL<EPCT>CTB/CRT *M/M3L
T0NMT23M3KB>C32TM=/MTM<>LTP/LT0/A/C132T0RTM<3T5/1MTM</MT#3EK:>/T</LT >BHEL32TCET/K0>MK/KRTK3LMK>1M>ECLTP=/M3O3KTNHECTM=3T3A>:>0>A>MRTE5T/CRTK3:>LM3K32T OEM3KTMETL>:CT/LTB/CRTCEB>C/M>C:TH3M>M>ECLT/LT<3TP>L<3LT$2T $CTM<3TR3/KLT5FAAEP>C:TM<3T&3CC3LLT231>L>EC
TM<3T!A3O3CM=T >K1N>MT=/LT K3H3/M32ART/7KB32TM=3T1ECLM>MNM>EC/A>MRTE5T#3EK:>/LTTL>:C/MNK3TK3JN>K3B3CMT *33T E73A2TOT'3BI
TT"2T TTDM<T >KTTNH<EA2>C:T#3EK:>/LT TH3M>M>ECTK3JN>K3B3CMT/LTCEMTMEET0NK23CLEB3T /KMPK>;<MTOT/KC3L
TT
T

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 11 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 11 of 15
"2U U U M>U ?JUU NH>FC2?E<UU H4M?M?FEUJ4IN?J4D4EMUNE24JU #4FJ<?.UC.PU &01J.KUOU(FS>J4LL UU"2U U U M>U?JU&.JUU HJFO?L?FELU F5U#4FJ<?.U !C40M?FEU F24U2?2UEFMUHC.04UNE0FELM?MNM?FE.CU J4LMJ?0M?FELU NHFEUM>4UHC.?EM?7LU.004LLUMFU<4E4J.CU4C40M?FEU/.CCFMU'4O4JM>4C4LL U (C.?EM?7LU.O4JU M>.MULN0>U0.L4LU2FUEFMU:J40CFL4UM>4?JU0C.?DLU5GJUMPFUHJ?D.JRUJ4.LFELU*44U BMU 'FU ,-U .MU
U
"?JLM U (C.?EM?7LU.J<N4UM>.MUM>4U !C4O4EM>U ?J0N?MU>.LUJ4H4.M42CRUJ4A40M42U LN0>U.U C?MDNLH.H4JUM4LMU .HHJF.0>U.E2U?ELM4.2UJ4IN?J4U2?LMJ?0MU0FNJMLUMFU 5GCCFPU M>4UM>J44LM4HUHJF04LLU5GJU.E.CRT?E<U 0FELM?MNM?FE.CU0>.CC4E<4LUMFULM.M4ULM.MNM4LU J4LMJ?0M?E<U/.CCFMU.004LLU L4MU 5GJM>U/RUM>4U *NHJ4D4U FNJMU ?EUE24JLFEU OU 4C4/J4TT4 U U+*UU U*44U?2U.MUURUP.RUF5U/.0B<JFNE2 U ?EU E24JLFE UM>4U*NHJ4D4UFNJMUC.?2UFNMUM>4U5GCCFP?E<U.HHJF.0>U5GJU24M4JD?E?E<U P>4M>4JU.U/.CCFMU.004LLUC.PUO?FC.M4LUM>4U "?JLMU.E2U"FNJM44EM>UD4E2D4EMLU
%MU DNLMU 5@JLMU 0FEL?24JU M>4U 0>.J.0M4JU .E2U D.<E?MN24U F5U M>4U .LL4JM42U ?EANJRU MFU M>4U J?<>MLU HJFM40M42U /RU M>4U "?JLMU .E2U "FNJM44EM>U D4E2D4EMLUM>.MUM>4UHC.?EM?65UL44BLUMFUO?E2?0.M4U%MUM>4EUDNLMU?24EM?;U .E2U 4O.CN.M4U M>4U HJ40?L4U ?EM4J4LMLU HNMU :JP.J2U /RU M>4U *M.M4U .LU ANLM?90.M?FELU5FJUM>4U/NJ24EU?DHFL42U/RU?MLUJNC4U %EUH.LL?E<UAN2<D4EM U M>4UFNJMUDNLMUEFMUFECRU34M4JD?E4UM>4UC4<?M?D.0RU.E3ULMJ4E<M>UF5U4.0>U F5UM>FL4U?EM4J4LMLU ?MU .CLFU DNLMU0FEL?24JU M>4U 4QM4EMUMFU P>?0>UM>FL4U ?EM4J4LMLU D.B4U ?MU E404LL.JRU MFU /NJ24EU M>4U HC.?EM?8LU J?<>MLU U+*U.MUU)4CR?E<UFEU4J=C.E2UOU$.JJ?L U(C.?EM?7LUNJ<4UM>4UFNJMUM>.MU 0.L4LUP>?0>U>.O4UNH>4C2UM>4U #4FJ<?.UHJFO?L?FELU.<.?ELMU0FELM?MNM?FE.CU.MM.0BU/RU HJFLH40M?O4U0.E3?3.M4LU.E3U D?EFJUHFC?M?0.CUH.JM?4LU3FU EFMU5FJ40CFL4UM>4UH.JM?4LU J?<>MUMFUHJ4L4EMUM>4U4O?24E04UE404LL.JRUMFUNE24JM.B4UM>4U/.C.E0?E<U.HHJF.0>U
U

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 12 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 12 of 15
CMJ?=A10S=ASA01GICASNS1?1-G1RR1S 0S*JSS.=J=A9S S0SS S BJ;S=GS SAS 1G:?*A0S J;1S0=IJG=.JS .CMGJS 0=I@=II10SJ;1SE?*=AJ=5IS.CAIJ=JMJ=CA*?S .;*??1A91IS JCSEGCN=I=CAIS C2SJ;1S 1CG9=*S ?1.J=CAS C01S =A.?M0=A9S J;1S I=9A*JMG1S G1FM=G1@1AJIS 2DGSAC@=A*J=A9SE1J=J=CAIS 2DGS3*=?MG1SJCSIJ*J1S*S.?*=@SS0S*JS S#AS*EE1*?S J;1S?1N1AJ;S=G.M=JSG1N1GI10S*A0SG1@*A010S 7A0=A9S *AS =AIM6.=1AJS2,.JM*?SG1.CG0SJCS.*GGQSCMJSJ;1SA01GICASG1FM=G1@1AJIS 0S*JSS AS;C?0=A9S J;*JS 1AA1IIS+A0S !./G*HS0=0SACJS-*GSJ;1SE?*=AJ=5IS.?*=@IS ;CO1N1GS J;1S .CMGJS 1@E;*I=R10SJ;1S MA=FM1A1IIS C2S*S .CAIJ=JMJ=CA*?S .;*??1A91S -QS*S EGCIE1.J=N1SEG1I=01AJ=*?S.+A0=0*J1S&11S=0S*JS S
IS 2MGJ;1GSIMEECGJS 2DGS J;1=GS *G9M@1AJS J;*JS EG=CGS .*I1ISME;C?0=A9S 1CG9=*IS S G1FM=G1@1AJS*G1S ACJS.CAJGC??=A9S $?*=AJ=5IS.=J1SJCSG11AS$*GKSC2S1CG:=*SNS 1CG:=*S *ASMAEM-?=I;10S01.=I=CAS8C@SJ;1S?1N1AJ;S=G.M=JS>JS"CS ()S *JS
S .=J=A9SSSEEPSSSBJ;S=GSSASG11AS%*GLS J;1S?1N1AJ;S =G.M=JS 01J1G@=A10S J;*JS J;1S 0=IJG=.JS .CMGJS ;*0S 1GG10S =AS 0=I@=II=A9SJ;1SE?*=AJ=5IS .CAIJ=JMJ=CA*?S.;*??1A91ISJCS 1CG9=*IS E1J=J=CA
I=9A*JMG1SG1FM=G1@1AJS4CGS EG1I=01AJ=*?S.*A0=0*J1IS ACJS *6?=*J10S O=J;S *AQSG1.C9A=R10S EC?=J=.*?SE*GJQS-*I10S CAS
1AA1IIS *A0S IM-I1FM1AJS .*I1ISS S EEPS *JS 
S';1S .CMGJS G1@*A010S J;1S @*JJ1GS JCSJ;1S0=IJG=.JS.CMGJSO=J;S=AIJGM.J=CAIS JCS*EE?QSJ;1SA01GICAS-*?*A.=A9S *EEGC*.;S 1PE?*=A=A9SJ;*JSO1S EG1N=CMI?QS *00G1II10SO;1J;1GSCMGSE*IJS01.=I=CAIS ME<C?0=A9S *SS E1J=J=CA
I=9A*JMG1SG1FM=G1@1AJS EG1.?M01S*S.;*??1A91SJCS*S?CO1GS E1J=J=CA I=9A*JMG1SG1FM=G1@1AJS2DGS*S EG1I=01AJ=*?S.*A0=0*J1S*A0SO1S.CA.?M010S J;*JSCMGSE*IJS01.=I=CAIS*G1S 0=IJ=A9M=I;*-?1S 0S*JSS
S

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 13 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 13 of 15
&C/@EM@8LWJ4C@/E24WFEW 4J=C/E3W/E3W!J44EW &/KUW@LWD@LHC/243WLWL4MW;JM?W /1FO4 W 1FM?W2/L4LW4DH?/L@V43WM?4WNE@IN4E4LLWF6WHJ4L@34EM@/CW4C42M@FEL W 2@M@E>W E34JLFEW7FJWM?4WHJFHFL@M@FEWM?/MWM?4W(M/M4W?/LW /WC4LLW@DHFJM/EMW@EM4J4LMW@EW J4>NC/M@E>W&J4L@34EM@/CW4C42M@FELWM?/EWLM/M4P@34WFJWCF2/CW4C42M@FEL W142/NL4WM?4W FNM2FD4WF6WM?4W 6GJD4JW P@CCWC/J>4CSW 14W34M4JD@E43W 1SW OFM4JLW 14SFE3W M?4W(M/M4LW 1FNE3/J@4LW4J=C/E3 WW 3W/MWW 2@M@E>WE34JLFE W W*(W/MWW !J44EW&/JMT WW WHHRW/MWWL/D4W&C/@EM@8LW/J>N4WM?/MWM?4W(M/M4W ?/LW4O4EW C4LLW @EM4J4LMW@EWJ4>NC/M@E>W4C42M@FELW6GJW *(W '4HJ4L4EM/M@O4W M?/EW @MW 3F4LW @EW J4>NC/M@E>W4C42M@FELW6FJWHJ4L@34EMW142/NL4WM?4W FELM@MNM@FEW4LM/1C@L?4LW6534J/CW C/PW/LWM?4W NCM@D/M4W/NM?FJ@MSWFO4JW4C42M@FELW6GJW*(W'4HJ4L4EM/M@O4W BMW %FW ,-W /MWW2@M@E>W*(WFELMW/JMW   W 
WNMW6GCCFQ@E>W4J=C/E3 W M?4W C4O4EM?W @J2N@MW?/LW2FEM@EN43WMFWJ4A42MW 2?/CC4E>4LW MFW !4FJ>@/LWW JNC4W1JFN>?MW 1SWHJFLH42M@O4W2/E3@3/M4LW;JW M?4W *E@M43W(M/M4LW "FNL4W F6W'4HJ4L4EM/M@O4LW 4E>/>@E>W@EWM?4W/E/CSL@LWL4MW6GJM?W@EWE34JLFEW(44WF6:4C3 WW 3W/MWW /JMPJ@=?M W W 3W/MWW)?NL W M?4W2/L4WC/PW@EWM?@LW2@J2N@MWL@DHCSW3F4LWEFMW LNHHFJMW&C/@EM@9LW/J>ND4EMWM?/MWM?@LW FNJMWDNLMW /E/CSV4W &C/@EM@8LW 2C/@DLWNE34JW E34JLFE WEFMP@M?LM/E3@E>WM?4W2C4/JWJNC@E>W@EW#4EE4LLW(44W BMW%FW ,.W /MWW
(42FE3 W &C/@EM@8LW2FEM4E3WM?/MWM?4W602MLW /E3WM?4WC/PW146GJ4WM?4W FNJMW/J4W 3@LM@E>N@L?/1C4W<FDWM?FL4W4/JC@4JW2/L4LW BMW%FW ,-W /MWW &C/@EM@8LWLMJ4LLWM?/MW EFW$@14JM/J@/EW&/JMSW2/E3@3/M4W6GJW *(W '4HJ4L4EM/M@O4W?/LW4O4JW L/M@L:43W M?4W J4IN@J4D4EMLW MFW /HH4/JW FEW !4FJ>@/LW >4E4J/C4C42M@FEW1/CCFMW L@E24W M?4W W H4M@M@FEW J4IN@J4D4EMW P/LW /3FHM43W@EW W(44W @3W+?@C4WM?4W FNJMW @LW LSDH/M?4M@2WMFW
W

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 14 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 14 of 15
!:'7<C7.BL?:746CBL C6+L :+E+<C6L 7A)D7CL B@D'A+:JLA+8+)C+*LC67BL 'A4D;+<CL7<L 'ACGA756CL =<LC6+L('B7BLC6'CL+<<+BBL*7A+)C:JL'**A+BB+*LC6+LL04DA+L
   
LLL *L'CLL<L'LB7;7:'AL E+7<L C6+L)DAA+<CL,+*+A':L)';?'74<L0<'<)+L:'GBLC6'CL !:'7<C7.BL):'7;L:7;7CL C6+7AL'(7:7CJL C=L ,D<*L?+C7C7=<L*A7E+BL7BL<=CL BD/)7+<CL C=L +BC'(:7B6LC6'CL+<<+BBL<=L:=<4+AL'??:7+BL#++L 9CL =L$%L 'CLL ),
L'ACGA756CL L*L'CLLA+,DB7<4LC=L0<*LC6'CLC6+L?:'7<C7.BL+E7*+<)+LH7C6LA+B?+)CLC=L A+'??=AC7=<;+<CL7;?=B+*LBD.=)'C7<4LA+BCA7)C7=<BLBD/)7+<CLC=LA+<*+AL+<<+BBL 7<'??:7)'(:+L
!:'7<C7.BL'CC+;?CBLC=L*7BC7<4D7B6LC6+7AL):'7;BL2=;L?A7=AL)'B+BL:79+G7B+L-::L B6=ACL#++L9CL =L$&L'CL L:C6=D46L'ACGA756CL?A7;'A7:JL7<E=:E+*L'L):'7;L D<*+ALC6+L "D':70)'C7=<BL:'DB+L C6+L :+E+<C6L 7A)D7CL+I?:7)7C:JLBC'C+*LC6'CLC6+L '<':JB7BL 7<L+<<+BBLBC7::L+@D'::JL?+AC'7<BL C=*'JL H7C6LA+B?+)CL C=LC6+L #D?A+;+L =DACBL6=:*7<4BLD<*+ALC6+L7ABCL'<*L =DAC++<C6L;+<*;+<CBL'<*LC6+L@D':L !A=C+)C7=<L :'DB+L L*L'CLL <L=/+:*LC6+L :+E+<C6L 7A)D7CL<=C+*LC6'CL !:'7<C7.L-7:+*LC=L '::+4+L6=GL;'<JL)'<*7*'C+BL 6'E+LCA7+*L C=L @D':73L,>AL C6+L ('::=CL 9CL =L$%L 'CLL)7C7<4LL*L'CLL=G+E+AL)=<CA'AJLC=L !:'7<C7.BL'A4D;+<CL C6+L =DACL*=+BL<=CL0<*LC6'CLC67BL:'<4D'4+L?A=F7*+BL 'L BD/)7+<CL1=C6=:*L ,>AL*7BC7<4D7B67<4L =/+:*L 2=;LC6+L 7<BC'<CL )'B+L(+)'DB+LC6+L =,0+:*L)=DACLD:C7;'C+:JL+;?6'B7K+*LC6'CL $C&6+L?+AC7<+<CL:'GBL =,L +=A47'L6'E+L <=CL)6'<4+*L;'C+A7'::JLB7<)+LC6+L*+)7B7=<BL7<L+<<+BBL'<*L'ACGA756CLG+A+L ;'*+LL
*L'CLL
L

Case 1:20-cv-01312-ELR Document 11-18 Filed 05/08/20 Page 15 of 15
Case 1:17-cv-04660-LMM Document 113 Filed 09/23/19 Page 15 of 15

+97>;+,/%>/ ,18,(7>46%7%18> >62"978>6%#26$> 1$>720%>#204%//,1*>

6*90%187> 8+%> 2968># 1128>,*126%>8+%>'!#8>8+ 8>7,0,/ 6>#+ //%1*%7>82>8+%> %26*, >

/%#8,21>2$%>+ :%>"%%1>6%-%#8%$>"=>+,*+%6>#29687>+%>2968>,7>"291$>"=>8+%>

#/% 6>69/,1*7>2'>"28+>8+%>/%:%18+>,6#9,8> 1$>8+%>946%0%>2968>+%6%'26%>

/ ,18,(7>28,21>'36>900 6=>9$*0%18> > ,7>
# 1$>%'&1$ 187>

28,21>'36>900 6=>9$*0%18> > ,7> # 7>82> / ,18,)7>#/ ,07>91$%6>

8+%>,678> 1$>2968%%18+>0%1$0%187> 1$>8+%> 59 />628%#8,21>/ 97%>

# 
#

/ ,18,(7>28,21>'36> 900 6=>9$*0%18> > ,7>
# %'&1$ 187>

28,21>'36>900 6=>9$*0%18> > ,7> # # ## 
# 
#

## # %'%1$ 187>28,21>82> <#/9$%><4%68>%4268>2'> 6#=>

,#+ 6$721> > ,7>
## #

+%>/%6.>,7>
#82> #8+,7># 7%>

 
#
###8+,7 $ =>2'>%48%0"%6> >



  

 # "#

 #   #   #!#


>

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 1 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 1 of 111

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARTIN COWEN, ALLEN BUCKLEY, AARON GILMER, JOHN MONDS, and the LIBERTARIAN PARTY OF GEORGIA, INC., a Georgia nonprofit corporation,
Plaintiffs,
v.
BRAD RAFFENSPERGER, Georgia Secretary of State,
Defendant.

* * * * * CASE NO.: 1:17cv04660-LMM * * * * * * * * *

DEFENDANT BRAD RAFFENSPERGER’S RESPONSE TO PLAINTIFFS’ STATEMENT OF MATERIAL FACTS
Defendant Brad Rafensperger (“Defendant”) submits the following response to Plaintiffs’ Statement of Material Facts for Which There is No Genuine Issue to be Tried in support of Plaintiffs’ Motion for Summary Judgment. I. Jurisdiction and Venue
1. This Court has original jurisdiction over this case under Article III of the U.S. Constitution and 28 U.S.C. §§ 1331 and 1343(a)(3). (Ex. 33: Answer (ECF 14) ¶ 3.)

1

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 2 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 2 of 111
Response: Defendant objects to paragraph 1 as a statement of law and not fact. Subject to this objection, Defendant does not dispute the Court’s jurisdiction over this case.
2. This suit is authorized by 42 U.S.C. § 1983. (Ex. 33: Answer ¶ 4.) Response: Defendant objects to paragraph 2 as a statement of law and not fact. Subject to this objection, Defendant does not dispute that this action is authorized by statute. 3. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. (Ex. 33: Answer ¶ 5.) Response: Defendant objects to paragraph 3 as a statement of law and not fact. Defendant does not dispute that declaratory relief is authorized by statute but denies that Plaintiffs are entitled to the relief requested in this action. 4. Venue is proper in the Northern District of Georgia under 28 U.S.C. § 1391(b) and in the Atlanta Division under Local Rule 3.1. (Ex. 33: Answer ¶ 6.) Response: Defendant objects to paragraph 4 as a statement of law and not fact. Subject to this objection, Defendant does not dispute that venue is proper in this Court.
2

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 3 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 3 of 111
II. Parties 5. Plaintiff Martin Cowen is a prospective political-body candidate in
Georgia’s Thirteenth Congressional District. (Ex. 33: Answer ¶ 7.) He meets all of the qualifications for the office of U.S. Representative and wants to appear on the general-election ballot as the nominee of the Libertarian Party of Georgia. He was the Libertarian Party’s nominee for that seat in 2018, but he was unable to qualify for the general-election ballot. He intends to run again for that seat in 2020. (Ex. 5: Cowen decl. ¶¶ 1, 8, 10, 18, 20, 22-23.)
Response: Admitted. 6. Plaintiff Allen Buckley is a registered voter in Georgia’s Thirteenth Congressional District. He wants to vote for Martin Cowen as the Libertarian Party of Georgia’s nominee for the office of U.S. Representative in his district. (Ex. 33: Buckley decl. ¶¶ 15-16). Response: Admitted. 7. Plaintiff Aaron Gilmer, whose full name is Robin Aaron Gilmer, is a prospective political-body candidate in Georgia’s Ninth Congressional District. (Ex. 27: Def’s Resp Pls.’ Corrected First Req. Admis. ¶ 1 (“First Admissions”).) He meets all of the qualifications for the office of U.S. Representative. He was the Libertarian Party’s nominee for that seat in 2018, but he was unable to qualify for
3

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 4 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 4 of 111
the ballot. He is planning to run for office again as a Libertarian Party candidate in 2020 and would prefer to run for the office of U.S. Representative.
Response: Admitted. 8. Plaintiff John Monds is a registered voter in Georgia’s Second Congressional District. (Ex. 33: Answer ¶10.) He wants to vote for the Libertarian Party of Georgia’s nominee for the office of U.S. Representative in his district. (Ex. 13: Monds decl. ¶¶ 10-11.) Response: Admitted. 9. Plaintiff Libertarian Party of Georgia, Inc. is a Georgia nonprofit corporation and a political body within the meaning of O.C.G.A. § 21-2-170. (Ex. 33: Answer ¶ 11.) Response: Admitted. 10. The Libertarian Party of Georgia was founded in 1972 and is the official Georgia affiliate of the national Libertarian Party, which was founded in 1971. (Ex. 33: Answer ¶ 12.) Response: Defendant objects to paragraph 10 because the facts stated are not material. Subject to this objection, Defendant does not dispute paragraph 10. 11. Since its founding, the Libertarian Party of Georgia has run candidates for statewide public offices and for state legislative offices. (Ex. 33: Answer ¶ 13.)
4

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 5 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 5 of 111
The party has never had any nominee for U.S. Representative appear on Georgia’s general-election ballot. (Ex. 33: Answer ¶ 13.) The party wants to nominate a candidate for U.S. Representative in all of Georgia’s congressional districts and to have those nominees appear on the general election ballot. (Ex. 9: Graham decl. ¶ 19.)
Response: Admitted. 12. Defendant Brad Raffensperger is the Secretary of State of the State of Georgia (hereinafter, the “Secretary”). (ECF 48.) He is the chief election official of the State of Georgia. (Ex. 33: Answer ¶ 14.) He is charged by statute with enforcing Georgia’s ballot-access restrictions for candidates for U.S. Representative. (Ex. 33: Answer ¶ 14.) At all relevant times, the Secretary exercised his authority under color of state law within the meaning of 42 U.S.C. §1983. (Ex. 33: Answer ¶ 14.) He is sued in his official capacity only. (Ex. 33: Answer ¶ 14.) Response: Admitted. III. The History of Georgia’s Ballot-Access Restrictions 13. Georgia enacted its first ballot-access law in 1922. Act of Aug. 21, 1922, ch. 530, § 3, 1922 Ga. Laws 97, 100 (codified at 1933 Ga. Code § 34-1904). That law provided that an independent candidate, or the nominee of any party,
5

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 6 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 6 of 111
could appear on the general-election ballot as a candidate for any office with no petition and no fee. (Ex. 33: Answer ¶ 15.)
Response: Admitted. 14. Before 1922, Georgia did not use government-printed ballots. Voters had to use their own ballots, and these were generally provided to voters by a political party. (Ex. 33: Answer ¶ 16.) Response: Admitted. 15. In 1943, Georgia added a five-percent petition requirement for access to the general-election ballot. Act of March 20, 1943, ch. 415, § 1, 1943 Ga. Laws 292. That law allowed candidates of any political party that received at least five percent of the votes in the last general election for the office to appear on the general-election ballot without a petition or fee. (Ex. 33: Answer ¶ 17.) The law required all other candidates to file a petition signed by at least five percent of the registered voters in the territory covered by the office. (Ex. 33: Answer ¶ 17.) Response: Admitted. 16. When Georgia first enacted its five-percent petition requirement in 1943, the petition deadline was 30 days before the general election. See Act of March 20, 1943, ch. 415, § 1, 1943 Ga. Laws 292 (amending 1933 Ga. Code § 341904, which provided that “All candidates for National and State offices, or the
6

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 7 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 7 of 111
proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least thirty days prior to the regular election, except in cases where a second primary election is necessary.”). (Ex. 27: First Admissions ¶ 2.)
Response: Admitted. 17. In 1964, the State added a time limit for gathering signatures on a nomination petition, providing that candidates could not begin circulating a nomination petition more than 180 days before the filing deadline. Georgia Election Code, ch. 26, § 1, 1964 Ga. Laws Ex. Sess. 26, 93 (codified at 1933 Ga. Code § 34-1010). That law also changed the petition filing deadline to 50 days before the general election. Id. at 87 (codified at 1933 Ga. Code § 34-1001). (Ex. 33: Answer ¶ 20.) Response: Admitted. 18. In 1965, the General Assembly moved the petition deadline to 60 days before the general election. Act of March 22, 1965, Ch. 118, § 1, 1965 Ga. Laws 224, 225 (codified at 1933 Ga. Code § 34-1001). (Ex. 33: Answer ¶ 21.) Response: Admitted.
7

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 8 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 8 of 111
19. In 1969, the petition deadline was moved to the second Wednesday in June. Act of April 9, 1969, ch. 89, § 8B, 1969 Ga Laws. 329, 336 (codified at 1933 Ga. Code § 34-1001). In 1977, the petition deadline was moved to the second Wednesday in July. Act of March 30, 1977, ch. 294, § 3(c), 1977 Ga. Laws 1053, 1056 (codified at 1933 Ga. Code § 34-1002). (Ex. 33: Answer ¶ 22.)
Response: Admitted. 20. In 1969, the petition deadline was moved to the second Wednesday in June. Act of April 9, 1969, ch. 89, § 8B, 1969 Ga Laws. 329, 336 (codified at 1933 Ga. Code § 34-1001). In 1977, the petition deadline was moved to the second Wednesday in July. Act of March 30, 1977, ch. 294, § 3(c), 1977 Ga. Laws 1053, 1056 (codified at 1933 Ga. Code § 34-1002). (Ex. 33: Answer ¶ 22.) Response: Admitted. 21. In 1974, the General Assembly lowered the qualifying fee to three percent of the annual salary of the office, where it remains today. Act of January 29, 1974, ch. 757, § 2, 1974 Ga. Laws 4, 6. (Ex. 27: First Admissions ¶ 19.) Response: Admitted. 22. In 1979, the General Assembly created a separate petition requirement for statewide offices. Act of April 12, 1979, ch. 436, 1979 Ga Laws 617 (codified at 1933 Ga. Code § 34-1010). Under that provision, an independent or political-
8

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 9 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 9 of 111
body candidate seeking a statewide office needed to file a petition signed by at least two and a half percent of the registered voters eligible to vote in the last election for the office. Candidates for all other offices still had to meet the fivepercent threshold. (Ex. 33: Answer ¶23.)
Response: Admitted. 23. In 1986, the General Assembly lowered the petition threshold for statewide candidates to one percent. Act of April 3, 1986, ch. 1517, § 3, 1986 Ga. Laws 890, 892-93 (codified at Ga. Code § 21-2-170). The threshold for all other independent and political-body candidates remained at five percent. (Ex. 33: Answer ¶ 24.) Response: Admitted. 24. In 1986, the General Assembly also moved the petition deadline to the first Tuesday in August. Id. at 891-92 (codified at Ga. Code § 21-2-132). (Ex. 33: Answer ¶ 25.) Response: Admitted. 25. In 1989, the General Assembly moved the petition deadline to the second Tuesday in July, where it remains today. Act of April 4, 1989, ch. 492, § 2, 1989 Ga. Laws 643, 647 (codified at Ga. Code § 21-2-132). (Ex. 33: Answer ¶ 26.) Response: Admitted.
9

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 10 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 10 of 111
26. In 1999, the General Assembly added a further requirement that each sheet of a nomination petition be notarized. Act of April 1, 1999, ch. 23, § 2, 1999 Ga. Laws 23, 24-25 (codified at Ga. Code § 21-2-170). (Ex. 27: First Admissions ¶ 9.)
Response: Admitted. IV. The Purpose of Georgia’s Petition Requirement
27. Georgia’s five-percent petition requirement was enacted with the discriminatory purpose of preventing Communist Party candidates from appearing on Georgia’s ballots. (Ex. 17: Richardson decl. ¶ 15.)
Response: Defendant objects to the cited testimony in the Richardson Declaration because the witness is not qualified to testify as an expert and his testimony is unreliable. Defendant will file a motion to exclude Richardson’s testimony as inadmissible under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). Defendant also disputes this statement as contradicted by Richardson in his deposition, wherein he admitted that the basis for his claim was limited to newspaper archives from 1940 through 1943. See Doc. 77-1, Richardson Dep. at 18:18 – 19:4. Richardson also conceded that “there was never really a communist party in Georgia ever.” Id. at 18:9-12. This statement is further disputed by the 1948 Attorney General Opinion (which Mr. Richardson did not review), which
10

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 11 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 11 of 111
noted that the purpose of the 1943 statute “was to prevent persons with little or no following encumbering the official ballot.” 1948 Ga. AG Op. at 158 (attached as Exhibit C to Defendant’s Motion for Summary Judgment).
28. Prior to its enactment in 1943, Georgia had never had a problem with crowded ballots. (Ex. 24: Richardson dep. 14:14-17:6.) Between 1922 and 1943 Georgia had never had more than 5 candidates on its presidential ballot, and there had never been more than 2 senatorial candidates in a general election. (Ex. 17: Richardson decl. ¶ 14.).)
Response: Defendant objects to the cited testimony in the Richardson Declaration because the witness is not qualified to testify as an expert and his testimony is unreliable.
29. In 1940, Georgia’s Secretary of State, John B. Wilson, had unilaterally barred Earl Browder, the Communist Party’s nominee for president, and other members of the party from appearing on the state’s ballots in the 1940 election. Wilson justified his ruling on the grounds of public policy: “It would be against public policy to place on our ballot the names of candidates of a party which seeks to overthrow our democratic constitutional form of government.” Wilson also relied on advice from Georgia’s Attorney General, Ellis Arnall, a noted anti-communist politician who had waged a campaign to keep communist
11

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 12 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 12 of 111
candidates off of Georgia’s ballots. (Ex. 17: Richardson decl. ¶ 10; Ex. 34 at 1-2: newspaper articles.)
Response: Defendant objects to the cited testimony in the Richardson Declaration because the witness is not qualified to testify as an expert and his testimony is unreliable.
30. Wilson’s action came in the midst of a wave of anti-communist and nativist sentiment in the United States. (Ex. 17: Richardson decl. ¶ 11.) Eleven states took similar action to arbitrarily keep the communist party off the ballot in 1940. (Ex. 24: Richardson dep. 20:4-7.)
Response: Defendant objects to the cited testimony because the witness is not qualified to testify as an expert and his testimony is unreliable.
31. Shortly after the 1940 presidential election, Wilson was reported to be seeking legislation to keep the Communist party permanently off the ballot. At the time, Wilson proposed to require all candidates for state and national office in Georgia to file with the secretary of state sufficient information to determine whether the party is designed to overthrow our constitutional form of government. Although the communist party would not be mentioned in the bill, Wilson said that it and any other similar party would be the primary target. (Ex. 17: Richardson decl. ¶ 12; Ex. 34 at 3: newspaper articles.)
12

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 13 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 13 of 111
Response: Defendant objects to the cited testimony because the witness is not qualified to testify as an expert and his testimony is unreliable. Defendant also objects to the newspaper articles in Ex. 34 as inadmissible hearsay.
32. Although the General Assembly did not adopt Wilson’s proposal in 1941 or 1942, it did adopt the five-percent petition requirement in 1943, when hostility to the Soviet Union and communism was still high. (Ex. 24: Richardson dep. 20:19-21:9, 23:5-11.) The bill was signed into law by Ellis Arnall, who had been elected governor of Georgia in 1942. (Ex. 24: Richardson dep. 25:3-7.)
Response: Defendant objects to the cited testimony because the witness is not qualified to testify as an expert and his testimony is unreliable.
33. Even though the Communist Party was never a significant force in Georgia, Wilson and Arnall knew that the issue would be popular with the voters. (Ex. 24: Richardson dep. 17:21-18:16, 20:15-18.)
Response: Defendant objects to the cited testimony because the witness is not qualified to testify as an expert and his testimony is unreliable.
34. A contemporaneous article in the Atlanta Constitution indicated that the five-percent petition requirement “sustained Secretary of State John B. Wilson in refusing a Communist candidate for president a place on the Georgia ballot in the 1940 election.” (Ex. 34 at 4-5: newspaper articles.) The article offered no other
13

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 14 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 14 of 111
justification for the bill, and no other justification for the bill appears in the contemporaneous historical record. (Ex. 33: Answer ¶ 19; Ex. 17: Richardson decl. ¶13; Ex. 24: Richardson dep. 18:17-19:4, 28:6-29:21.)
Response: Defendant objects to the cited testimony because the witness is not qualified to testify as an expert and his testimony is unreliable. V. Georgia’s Current Ballot-Access Restrictions
35. Georgia’s current ballot-access laws distinguish between three kinds of candidates for partisan public offices: (1) candidates nominated by a political party; (2) candidates nominated by a political body; and (3) independent candidates. (Ex. 33: Answer ¶27.)
Response: Admitted. 36. A “political party” is any political organization whose nominee received at least 20 percent of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2 (25). (Ex. 33: Answer ¶ 28.) Response: Admitted. 37. Political parties choose nominees in partisan primaries, and the candidate nominated by the party appears automatically on the ballot for any statewide or district office. O.C.G.A. § 21-2-130(1). No nomination petition is
14

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 15 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 15 of 111
required of a political party or any nominee of a political party. (Ex. 33: Answer ¶ 29.)
Response: Admitted. 38. The only political parties that meet the current definition of “political party” under Georgia law are the Democratic Party of Georgia and the Georgia Republican Party. (Ex. 33: Answer ¶ 30.) Response: Admitted, although any political organization can become a political party by nominating a candidate for Governor or President that receives at least 10 percent of the total votes cast for that office. See O.C.G.A. § 21-2-2(25). 39. A “political body” is any political organization other than a political party. O.C.G.A. § 21-2-2(25). (Ex. 33: Answer ¶ 31.) Response: Admitted. 40. Political bodies must nominate candidates for partisan public offices by convention. O.C.G.A. § 21-2-170(g). (Ex. 33: Answer ¶ 32.) Response: Admitted. 41. Georgia law permits a political body to become “qualified to nominate candidates for statewide public office by convention.” O.C.G.A. § 21-2-180. (Ex. 27: First Admissions ¶ 3.) Response: Admitted
15

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 16 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 16 of 111
42. A political body becomes qualified to nominate candidates for statewide public office by convention if: (a) it submits a qualifying petition signed by at least one percent of the total number of registered voters at the last general election; or (b) it nominated a candidate for statewide public office in the last general election who received votes totaling at least one percent of the total number of registered voters in the election. O.C.G.A. § 21-2-180. (Ex. 27: First Admissions ¶ 4.)
Response: Admitted. 43. Petitions seeking to qualify a political body to nominate candidates for statewide public office by convention are due no later than the second Tuesday in July, O.C.G.A. § 21-2-185, and all signatures must be gathered within 15 months of the date on which the petition is submitted, O.C.G.A. § 21-2-182. (Ex. 27: First Admissions ¶ 5.) Response: Admitted. 44. Candidates for statewide partisan public offices nominated by a political body that is qualified under Section 21-2-180 appear automatically on the ballot without a nomination petition. O.C.G.A. § 21-2-132(e)(5). Each such nominee must submit a notice of candidacy and pay the applicable qualifying fee
16

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 17 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 17 of 111
by the deadlines prescribed in O.C.G.A. § 21-2-132(d), but no nomination petition is required. (Ex. 27: First Admissions ¶ 6.)
Response: Admitted. 45. Candidates for all other partisan public offices, including the office of U.S. Representative, nominated by a political body that is qualified under Section 21-2-180 do not appear automatically on the ballot. In order to appear on the general-election ballot, such candidates must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a nomination petition signed by five percent of the number of registered voters eligible to vote for that office in the last election, O.C.G.A. § 21-2-170(b). (Ex. 33: Answer ¶ 37.) Response: Admitted. 46. The qualifying fee for most partisan public offices, including U.S. Representative, is three percent of the annual salary of the office; however, the qualifying fee for candidates for the General Assembly is a flat $400. O.C.G.A. § 21-2-131. (Ex. 33: Answer ¶ 38.) Response: Admitted. 47. Qualifying fees for political-party candidates for U.S. Representative are paid directly to the state political party, which retains 75 percent and sends 25 percent to the Secretary of State. O.C.G.A. § 21-2-131(b)-(c). Qualifying fees for
17

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 18 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 18 of 111
independent and political-body candidates for U.S. Representative are paid to the Secretary of State. O.C.G.A. § 21-2-131(b)(2). For independent candidates, the Secretary of State retains the entire fee. O.C.G.A. § 21-2-131(c)(4)(B). For political-body candidates, the Secretary of State retains 25 percent and sends 75 percent to the political body after the election is over. O.C.G.A. § 21-2-131(c)(4)(A). (Ex. 9: Graham decl. ¶¶ 15-16; Ex. 12: Metz decl. ¶ 13.)
Response: Defendant disputes that the statute mandates distributing funds after the election. The statute requires only that the Secretary of State distribute the funds “as soon as practicable.” O.C.G.A. 21-2-131(c)(4)(A).
48. A nomination petition must be on sheets of uniform size and different sheets must be used by signers residing in different counties or municipalities. O.C.G.A. § 21-2-170(d). Each sheet of the nomination petition must also contain a sworn and notarized affidavit of the circulator attesting, among other things, that each signature on the sheet was gathered within 180 days of the filing deadline. Id. The nomination petition is due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2-132(e). (Ex. 33: Answer ¶ 39.)
Response: Admitted. 49. Candidates nominated by political bodies that are not qualified under Section 21-2-180 do not appear automatically on the ballot for any office. In order
18

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 19 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 19 of 111
to appear on the general-election ballot, such candidates for statewide public offices (other than president) must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a nomination petition signed by one percent of the number of registered voters eligible to vote for that office in the last general election, O.C.G.A. § 21-2-170(b). Such candidates for all other partisan public offices must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2132(d); and (2) a nomination petition signed by five percent of the number of registered voters eligible to vote for that office in the last general election, O.C.G.A. § 21-2-170(b). Nomination petitions are due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2-132(e). (Ex. 27: First Admissions ¶ 8.)
Response: Admitted. 50. Independent candidates do not appear automatically on the ballot for any office unless the candidate is an incumbent. In order to appear on the generalelection ballot, independent candidates for statewide public offices (other than president) must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a nomination petition signed by one percent of the number of registered voters eligible to vote for that office in the last election, O.C.G.A. § 21-2-170(b). Such candidates for all other partisan public offices must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d); and (2) a
19

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 20 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 20 of 111
nomination petition signed by five percent of the number of registered voters eligible to vote for that office in the last election, O.C.G.A. § 21-2-170(b). Nomination petitions are due no later than noon on the second Tuesday in July. O.C.G.A. § 21-2-132(e). (Ex. 33: Answer ¶ 41.)
Response: Admitted. 51. Because of recent litigation, the signature requirements for independent presidential candidates and presidential candidates nominated by political bodies that are not qualified under Section 21-2-180 is currently lower than prescribed by Georgia law. In 2016, U.S. District Judge Richard Story ruled that the one-percent signature requirement in O.C.G.A. § 21-2-170(b) is unconstitutional as applied to presidential candidates. See Green Party of Georgia v. Kemp, 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016), aff’d No. 16-11689 (11th Cir. Feb. 1, 2017) (per curiam). As a remedy, he lowered the signature requirement for presidential candidates from one percent (about 50,000 signatures) to 7,500 signatures until the Georgia General Assembly enacts a different measure. Id. at 1374. To date, the General Assembly has not done so. (Ex. 33: Answer ¶ 42.) Response: Admitted. 52. In light of Judge Story’s order and the General Assembly’s acquiescence in it, the number of signatures required for independent presidential
20

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 21 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 21 of 111
candidates and presidential candidates nominated by political bodies that are not qualified to appear on the ballot statewide is now less than half the number of signatures required for an independent or political-body candidate for U.S. Representative to appear on the general-election ballot in any one of Georgia’s fourteen congressional districts. (Ex. 33: Answer ¶ 43.)
Response: Admitted. VI. The Pauper’s Affidavit in Lieu of Filing Fee
53. Georgia law permits candidates to file a pauper’s affidavit in lieu of paying an applicable qualifying fee. O.C.G.A. § 21-2-132(g). (Ex. 29: Def’s Resp. Pls.’ Second Req. Admis. 3 ¶ 47 (“Second Admissions”).)
Response: Defendant objects to paragraph 53 as a conclusion of law and not a statement of fact. Subject to this objection, Defendant admits this paragraph.
54. A pauper’s affidavit requires the candidate to swear under oath that the candidate has neither the assets nor the income to pay the filing fee, and it requires the candidate to submit a personal financial statement. O.C.G.A. § 21-2132(g). (Ex. 29: Second Admissions ¶ 48.)
Response: Defendant objects to paragraph 54 as a conclusion of law and not a statement of fact. Subject to this objection, Defendant admits this paragraph.
21

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 22 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 22 of 111
55. In addition, a pauper’s affidavit for a candidate for U.S. Representative must be accompanied by a petition signed by one percent of the number of registered voters eligible to vote for the office in the last election. O.C.G.A. § 21-2-132(h). (Ex. 23: Harvey dep. 170:4-13.)
Response: Defendant objects to paragraph 55 as a conclusion of law and not a statement of fact. Subject to this objection, Defendant admits this paragraph.
56. Each sheet of the petition must also contain a sworn and notarized affidavit of the circulator attesting, among other things, that each signature on the sheet was gathered within 180 days of the filing deadline. O.C.G.A. § 21-2-132(h). (Ex. 29: Second Admissions ¶ 50.)
Response: Defendant objects to paragraph 56 as a conclusion of law and not a statement of fact. Subject to this objection, Defendant admits this paragraph.
57. For a political-body candidate, the petition is due at the same time that a candidate’s notice of candidacy is due—no later than noon on the Friday following the Monday of the thirty-fifth week before the general election—a date that falls in early March of an election year. O.C.G.A. § 21-2-132(d). (Ex. 23: Harvey dep. 169:15-170:3.)
Response: Defendant objects to paragraph 57 as a conclusion of law and not a statement of fact. Subject to this objection, Defendant admits this paragraph.
22

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 23 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 23 of 111
VII. The Number of Valid Signatures and Qualifying Fee Required for Political-Body Candidates. 58. In determining the number of petition signatures needed by
independent or political body candidates to appear on a general election ballot, the Secretary of State uses only the total number of “active” voters. (Ex. 33: Answer ¶ 49.)
Response: Admitted. 59. According to figures provided by the Secretary of State’s office, Georgia had 6,434,388 active registered voters as of the 2018 general election. (Ex. 31: Def’s Resp. Pls.’ Second Interrogs.) Response: Admitted. 60. Georgia currently has 14 members of the U.S. House of Representatives, each of which is elected from a single-member district. (Ex. 33: Answer ¶ 52.) Response: Admitted. 61. Because the actual number of registered voters in each congressional district varies from district to district, the actual number of valid signatures required for an independent or political-body candidate for the U.S. House of
23

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 24 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 24 of 111

Representative to appear on the 2020 general election ballot also varies from

district to district. (Ex. 33: Answer ¶ 53.)

Response: Admitted.

62. According to the Secretary of State, the number of active voters and

petition signatures projected to be required for an independent or political-body

candidate to appear on the 2020 general election ballot in each of Georgia’s 14

congressional districts is as follows:

District
1 2 3 4 5 6 7 8 9 10 11 12 13 14 TOTAL

Active Voters (11/06/18) 447,321 397,565 474,044 485,112 530,774 479,056 469,959 414,387 459,485 472,606 499,459 418,996 490,064 395,560 6,434,388

Signatures Required 2020 22,367 19,879 23,703 24,256 26,539 23,953 23,498 20,720 22,975 23,631 24,973 20,950 24,504 19,778 321,726

(Ex. 31: Def’s Resp. Pls.’ Second Interrogs.)

Response: Defendant disputes this statement as inaccurate. The numbers

listed in the “Signatures Required 2020” column in the chart above are not

24

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 25 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 25 of 111
consistent with the numbers provided in Defendant’s Responses to Plaintiffs’ Second Interrogatories (Ex. 31). All numbers (except for District 14) in this column have been increased by one from the original document.
63. As a result, the Libertarian Party would need to gather at least 321,726 valid signatures in order to run a full slate of candidates for the office of U.S. Representative. (Ex. 31: Def’s Resp. Pls.’ Second Interrogs.)
Response: Defendant disputes this statement as inaccurate. The cited number of valid signatures differs from the numbers provided in Defendant’s Responses to Plaintiffs’ Second Interrogatories (Ex. 31). The correct number is 321,713.
64. The current annual salary for U.S. Representatives is $174,000. As a result, the qualifying fee for each candidate for U.S. Representative in 2020 is $5,220, and the Libertarian Party would need to pay $73,080 in qualifying fees in order to run a full slate of candidates for the office of U.S. Representative in 2020. (Ex. 33: Answer ¶ 55.)
Response: Defendant admits that the qualifying fee for any candidate for U.S. House of Representatives is $5,220, regardless of party. Defendant disputes this statement to the extent it is not consistent with O.C.G.A. § 21-2-131, which governs qualification fees.
25

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 26 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 26 of 111
VIII. Other States’ Signature Requirements 65. Georgia requires more signatures for third-party candidates for U.S.
Representative to appear on the general-election ballot than any other state in the nation, both as a percentage of votes cast and as an absolute number of signatures. (Ex. 22: Winger decl. ¶¶ 8-9.)
Response: Defendant objects to this statement as immaterial and irrelevant. Whether a state election law violates the Constitution is not dependent on how other states choose to run their elections. Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir. 1983) (explaining that “[a] court is no more free to impose the legislative judgments of other states on a sister state than it is free to substitute its own judgment for that of the state legislature.”).
66. In 2016, Georgia law required more than 259,500 valid signatures for a third party to run a full slate of candidates for U.S. Representative. This number represents more than 6.3 percent of all votes cast in Georgia for president in 2016. (Ex. 33: Answer ¶ 77.)
Response: Defendant admits this statement with the qualification that if fourteen candidates were qualifying by petition for U.S. House of Representatives in 2016, those fourteen candidates would have cumulatively required approximately 259,500 signatures.
26

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 27 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 27 of 111
67. In 2018, Georgia law required more than 272,000 valid signatures for a third party to run a full slate of candidates for U.S. Representative. This number represents more than 6.6 percent of all votes cast in Georgia for president in 2016. (Ex. 22: Winger decl. ¶ 11.)
Response: Defendant admits this statement with the qualification that if fourteen candidates were qualifying by petition for U.S. House of Representatives in 2018, the full slate of candidates would have cumulatively required more than 272,000 signatures.
68. The state that required the next-highest number of signatures for a third party to run a full slate of candidates for U.S. Representative was Illinois, which required approximately 178,400 valid signatures in 2016 and 262,000 valid signatures in 2018. These numbers represent approximately 3.2 percent and 4.7 percent of all votes cast in Illinois for president in 2016, and they would have qualified 18 candidates. (Ex. 22: Winger decl. ¶ 12.)
Response: Defendant objects to this statement as immaterial and irrelevant. 69. The state that required the third-highest number of signatures for a third party to run a full slate of candidates for U.S. Representative in 2016 and 2018 was New York, which required approximately 94,500 valid signatures. This number represents approximately 1.2 percent of all votes cast in New York for
27

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 28 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 28 of 111
president in 2016, and it would have qualified 27 candidates. (Ex. 22: Winger decl. ¶ 13.)
Response: Defendant objects to this statement as immaterial and irrelevant. 70. Thirty states required 10,000 or fewer signatures for an unqualified third party to run a full slate of candidates for U.S. Representative in 2016. In 2018, that number was 29. (Ex. 22: Winger decl. ¶ 14.) Response: Defendant objects to this statement as immaterial and irrelevant. 71. In some states, moreover, it is possible for third parties to qualify to nominate candidates for U.S. Representative without submitting any signatures. (Ex. 22: Winger decl. ¶ 15.) Response: Defendant objects to this statement as immaterial and irrelevant. IX. Other State’s Qualifying Fees 72. Unlike Georgia, most other states do not require third-party candidates for U.S. Representative who qualify for the general-election ballot by petition to pay a qualifying fee at all. Among the states with a mandatory petition, Georgia’s qualifying fees are higher than any other state in the nation. (Ex. 22: Winger decl. ¶¶ 16-17.) Response: Defendant objects to this statement as immaterial and irrelevant.
28

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 29 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 29 of 111
73. In 2016, the last year for which complete data are available, Georgia law required $5,220 for a single congressional candidate and $73,080 for a third party to run a full slate of candidates for U.S. Representative. (Ex. 33: Answer ¶ 83.)
Response: Defendant admits that the filing fee in 2016 was $5,229 for every candidate seeking the office of U.S. House of Representative, regardless of party. Defendant disputes this statement to the extent it is not consistent with O.C.G.A. § 21-2-131, which governs qualification fees.
74. The state that requires the second highest qualifying fees for thirdparty candidates for U.S. Representative who qualify for the general election ballot by petition is North Carolina, which has a qualifying fee of $1,740 (one percent of the annual salary of U.S. Representative) for a single candidate and $22,620 for a third-party to run a full slate of thirteen candidates for U.S. Representative. (Ex. 22: Winger decl. ¶ 19.)
Response: Defendant objects to this statement as immaterial and irrelevant. 75. The state that requires the third highest qualifying fees for third party candidates for U.S. Representative who qualify for the general-election ballot by petition is West Virginia, which has a qualifying fee of $1,740 (one percent of the annual salary of U.S. Representative) for a single candidate and $5,220 for a third-
29

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 30 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 30 of 111
party to run a full slate of three candidates for U.S. Representative. (Ex. 22: Winger decl. ¶ 20.)
Response: Defendant objects to this statement as immaterial and irrelevant. X. The Impact of Georgia’s Ballot-Access Restrictions
76. No candidate for U.S. Representative nominated by a political body has ever satisfied the five-percent signature requirement to appear on Georgia’s general-election ballot. (Ex. 33: Answer ¶44.)
Response: Admitted. 77. No independent candidate for U.S. Representative has satisfied the five-percent signature requirement to appear on Georgia’s general-election ballot since 1964, when Milton Lent qualified to be an independent candidate in Georgia’s First Congressional District. (Ex. 33: Answer ¶45.) Response: Admitted. 78. In 1964, when an independent candidate for U.S. Representative last satisfied the five-percent signature requirement to appear on Georgia’s generalelection ballots, the congressional district in which the candidate qualified did not split any county boundaries. See Act of March 13, 1964, ch. 923, 1964 Ga. Laws 478. (Ex. 27: First Admissions ¶ 10.) Response: Admitted.
30

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 31 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 31 of 111
79. In 1964, when an independent candidate for U.S. Representative last satisfied the five-percent signature requirement to appear on Georgia’s generalelection ballots, only 25 percent of Georgia’s nonwhite voting-age population was registered to vote. See S. Rep. No. 89-162, at 44 (1965), reprinted in 1965 U.S.C.C.A.N. 2508. (Ex. 27: First Admissions ¶ 11.)
Response: Admitted. 80. In 1964, when an independent candidate for U.S. Representative last satisfied the five-percent signature requirement to appear on Georgia’s generalelection ballots, the overall registration rate was approximately 63 percent of voting-age population, which is below where it is today (approximately 86 percent). See S. Rep. No. 89-162, at 41 (1965), reprinted in 1965 U.S.C.C.A.N. 2508. (Ex. 27: First Admissions ¶ 12.) Response: Admitted 81. Only one independent candidate for U.S. Representative, Billy McKinney, has appeared on Georgia’s general-election ballot since 1964. (Ex. 33: Answer ¶47.) However, when McKinney qualified for the ballot in 1982, a federal court in Busbee v. Smith, civ. no. 82-0665 (D.D.C. 1982), had suspended the fivepercent signature requirement due to preclearance litigation over the State’s redistricting plan that delayed the adoption of new districts following the 1980
31

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 32 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 32 of 111
Census. McKinney, who was an African-American and Democratic state representative from Atlanta, needed only 4,037 signatures to have his name placed on the general-election ballot alongside the white Democratic incumbent, Wyche Fowler, in Georgia’s Fifth Congressional District. (Ex 35: Application for Writ of Mandamus, Dixon v. Poythress, Civ. A. No. C-92177, (Fulton Cnty. Sup. Ct. 1982); Ex. 36: Jerry Schwartz and Ron Taylor, McKinney Petition OK’d for 5th District Election, Atlanta Constitution, Oct 30, 1982, at 1-B.)
Response: Admitted. 82. No independent candidate for U.S. Representative has ever satisfied Georgia’s ballot-access laws as they exist today, including the signature requirement, the filing deadline, the qualifying fee, and the technical requirements as to the form of the petition. (Ex. 37: Election Results 2000-2018 (excerpts) (“election results”).) Response: Defendant objects to paragraph 82 as argumentative. Defendant does not dispute the authenticity of the election results shown in Exhibit 37. XI. Signature Requirements Met by Independent and Third-Party Candidates for U.S. Representative in Other States. 83. In the entire history of the United States, only six independent or third-party candidates for U.S. Representative have ever overcome a signature
32

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 33 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 33 of 111
requirement as high as 10,000 signatures. Only one such candidate has ever overcome a petition requirement higher than 15,000 signatures. (Ex. 22: Winger decl. ¶ 29.)
Response: Defendant objects to this statement as immaterial and irrelevant. 84. The first was in Ohio in 1954, when the incumbent in the Ninth Congressional District in Toledo, Frazier Reams, met the requirement of 12,919 signatures. (Ex. 22: Winger decl. ¶ 30.) Response: Defendant objects to this statement as immaterial and irrelevant. 85. The second was in Montana in the regular at-large election in 1994, when Steve Kelly successfully met the requirement of 10,186 signatures. (Ex. 22: Winger decl. ¶ 31.) Response: Defendant objects to this statement as immaterial and irrelevant. 86. The third was in California in 1996, when Steven Wheeler in the Twenty-Second Congressional District met the requirement of 10,191signatures. (Ex. 22: Winger decl. ¶ 32.) Response: Defendant objects to this statement as immaterial and irrelevant. 87. The fourth was in 1998, when the Reform Party nominee in the Fifth Congressional District in Florida, Jack Gargan, met the requirement of 12,141 signatures. (Ex. 22: Winger decl. ¶ 33.)
33

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 34 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 34 of 111
Response: Defendant objects to this statement as immaterial and irrelevant. 88. The fifth was in 2008, when Cindy Sheehan in California’s Eighth Congressional District in San Francisco met the requirement of 10,198 signatures. (Ex. 22: Winger decl. ¶ 34.) Response: Defendant objects to this statement as immaterial and irrelevant. 89. The last instance was in 2010, when the Service Employees International Union drafted independent candidate Wendall Fant and successfully collected the needed 16,292 signatures in the Eighth Congressional District in North Carolina. However, after the petition was checked, Fant declined to run, so the petition success had no observable concrete consequence. (Ex. 22: Winger decl. ¶ 35.) Response: Defendant objects to this statement as immaterial and irrelevant. 90. In four of the six instances when an independent or minor-party candidate for U.S. Representative satisfied a signature requirement as high as 10,000 signatures, the time period to collect the signatures was unlimited. (Ex. 22: Winger decl. ¶ 36.) Response: Defendant objects to this statement as immaterial and irrelevant. 91. Illinois has never had a successful petition attempt for U.S. House if the petition requirement was 10,000 or greater and the petition was challenged.
34

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 35 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 35 of 111
(Illinois has a unique system in which all petitions are deemed valid unless they are challenged. Petitions are not checked unless someone files a challenge, even if the petition has only a single signature.) (Ex. 22: Winger decl. ¶ 37.)
Response: Defendant objects to this statement as immaterial and irrelevant. XII. Past Attempts to Qualify for the General-Election Ballot
92. Independent and political-body candidates for U.S. Representative have sought unsuccessfully to qualify for the general-election ballot under Georgia’s current ballot-access laws. (Ex. 33: Answer ¶ 86.)
Response: Admitted. 93. In 2018, plaintiff Martin Cowen made a genuine effort to qualify for the general-election ballot as the Libertarian candidate in Georgia’s Thirteenth Congressional District. He submitted a notice of candidacy and paid the qualifying fee. With the help of volunteer circulators, he spent more than 120 hours gathering signatures over 40 days. He timely submitted 620 signatures to the Secretary of State and did not qualify for the ballot. (Ex. 5: Cowen decl. ¶¶ 8-14, 17.) Response: Defendant does not dispute that plaintiff Martin Cowen attempted to qualify for the general-election ballot in 2018 and failed to qualify. Defendant disputes that the collection of only 620 signatures over 180 days is a “genuine effort.”
35

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 36 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 36 of 111
94. In 2018, plaintiff Aaron Gilmer made a genuine effort to qualify for the general-election ballot as the Libertarian candidate in Georgia’s Ninth Congressional District. He submitted a notice of candidacy and paid the qualifying fee. With the help of volunteer and paid circulators, he and his team spent approximately 150 hours gathering signatures over 60 days. He submitted 308 raw signatures to the Secretary of State and did not qualify for the ballot. (Ex. 8: Ex. 8: Gilmer decl. ¶¶ 10-17.)
Response: Defendant does not dispute that plaintiff Aaron Gilmer attempted to qualify for the general-election ballot in 2018 and failed to qualify. Defendant disputes that the collection of only 308 signatures over 180 days is a “genuine effort.”
95. In 2018, Steve “Fred” Abrams made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Fourteenth Congressional District. In email correspondence with the Secretary of State’s office, he declared his intention to run and inquired about the number of signatures required on both the pauper’s affidavit and nomination petition. He subsequently set up a campaign website, produced campaign materials, and held events to gather signatures. He did not qualify for the ballot. (Ex. 37 at 6: election results; Ex. 38 at 1-24: candidate materials.)
36

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 37 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 37 of 111
Response: Defendant disputes this statement, which is unsupported by the cited record excerpts. There is no evidence that Abrams attempted to gather signatures and there is no evidence in the record that Abrams actually submitted a petition to the Secretary of State. Defendant also objects to the materials attached as Exhibit 38, which have not been authenticated and contain inadmissible hearsay.
96. In 2018, Jimmy Cooper made a genuine effort to qualify for the general-election ballot as a Green candidate in Georgia’s Eighth Congressional District. He submitted a statement of candidacy to the Federal Elections Commission and set up a campaign website. He sought volunteers for his petition drive and gathered 171 signatures in January and February of 2018 before abandoning his effort. He filed as a write-in candidate. (Ex. 6: Esco decl. ¶ 14; Ex. 37 at 8: election results; Ex. 38 at 25-36: candidate materials.)
Response: Defendant disputes this statement of fact as unsupported by the record citations. Defendant also objects to this statement of fact as based upon inadmissible hearsay in the Esco Declaration (Ex. 6) and Exhibit 38. See Defendant’s Objections to Plaintiffs’ Evidence, submitted contemporaneously herewith.
97. In 2016, Hien Dai Nguyen made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Fourth
37

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 38 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 38 of 111
Congressional District. He submitted a notice of candidacy and paid the qualifying fee. He had a team of mostly volunteer petition circulators who gathered approximately 25,000 raw signatures in the predominantly minority communities of Dekalb, Gwinnett, and Rockdale counties. But the Secretary of State’s office invalidated almost 98 percent of them, and he therefore did not qualify for the ballot. (Ex. 15: Nguyen decl. ¶¶ 6-10.)
Response: Defendant objects to the statement that the “Secretary of State’s office invalidated almost 98 percent” of the signatures in the petition as based upon inadmissible hearsay. See Defendant’s Objections to Plaintiffs’ Evidence. Defendant does not dispute the remaining statements in this paragraph.
98. In 2016, Lincoln Nunnally made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Fourth Congressional District. He submitted a statement of candidacy to the Federal Elections Commission and set up a campaign website. He reported having at least 50 volunteer petition circulators, and he promoted his signature gathering efforts on social media. He did not submit any signatures and did not qualify for the ballot. (Ex. 37 at 13: election results; Ex. 38 at 37-53: candidate materials.)
38

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 39 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 39 of 111
Response: Defendant disputes this statement, which is unsupported by the record citations. Defendant also objects to the materials in Exhibit 38, which have not been authenticated and contain inadmissible hearsay.
99. In 2016, Leonard Ware made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Tenth Congressional District. He filed a statement of candidacy with the Federal Elections Commission, set up a campaign website and Facebook page, and sought out volunteers to gather signatures. He did not gather enough signatures to qualify for the ballot but did qualify as a write-in candidate. The incumbent in that district ultimately ran unopposed on the general-election ballot. (Ex. 37 at 14: election results; Ex. 38 at 54-88: candidate materials.)
Response: Defendant disputes this statement, which is unsupported by the record citations. Defendant also objects to the materials in Exhibit 38, which have not been authenticated and contain inadmissible hearsay.
100. In 2012, Cynthia McKinney made a genuine effort to qualify for the general-election ballot as the Green candidate in Georgia’s Fourth Congressional District. She submitted a statement of candidacy form with the Federal Elections Commission declaring her intention to run and then began trying to raise the money necessary to mount a successful petition drive. McKinney found that
39

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 40 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 40 of 111
raising money for a petition drive proved to be difficult and time consuming. In her experience, donors do not like to spend their money on gathering signatures for ballot access when success is far from assured. McKinney soon determined that she would not be able to raise the resources necessary to mount a successful ballotaccess campaign and a competitive campaign in the general election once ballot access had been secured, and she therefore withdrew from the race. (Ex. 11: McKinney decl. ¶¶ 7-13.)
Response: Defendant disputes this statement and objects to the admissibility of the McKinney Declaration. See Defendant’s Objections to Plaintiffs’ Evidence. By her own admission, McKinney never attempted a signature gathering campaign, and her testimony is neither competent nor based upon personal knowledge. The cited testimony is also based upon inadmissible hearsay.
101. In 2010, Jeff Anderson made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Eleventh Congressional District. He had a team of approximately 24 volunteer petition circulators who spent hundreds, if not thousands of hours on the effort and gathered somewhere between 11,000 and 12,000 signatures. Because that number was far short of what he needed, he did not file the signatures with the Secretary of
40

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 41 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 41 of 111
State. The incumbent in his district ultimately ran unopposed in the 2010 general election. (Ex. 1: Anderson decl. ¶¶ 5-9, 11.)
Response: Defendant does not dispute that Jeff Anderson attempted to qualify for the general-election ballot in 2010 and failed to qualify. However, Defendant disputes and objects to Anderson’s testimony that volunteers spent “hundreds if not thousands of hours” gathering signatures. This testimony is speculative and not based upon the witness’s personal knowledge. See Defendant’s Objections to Plaintiffs’ Evidence.
102. In 2010, Eugene Moon made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Ninth Congressional District. He had a team of volunteers in each of the counties covered by his district. His teams gathered approximately 13,000 raw signatures, but he did not turn them in because he knew that he would not qualify for the ballot. The Republican nominee ultimately ran unopposed on the ballot in the 2010 general election. (Ex. 14: Moon decl. ¶¶ 4-8.)
Response: Defendant does not dispute that Eugene Moon attempted to qualify for the general-election ballot in 2010 and failed to qualify.
103. In 2010, Victor Armendariz made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Fourth
41

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 42 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 42 of 111
Congressional District. He used volunteers to gather signatures door to door. Although his team gathered quite a few signatures, he quickly realized that he would not be able to gather enough, and he decided to run instead for the Republican nomination. (Ex. 2: Armendariz decl. ¶¶ 4-8; Ex. 29: Second Admissions ¶ 29.)
Response: Defendant disputes this statement and objects to the Armendariz Declaration because it consists entirely of conclusory statements and inadmissible opinion testimony. See Defendant’s Objections to Plaintiffs’ Evidence. The allegation that Armendariz made a “genuine effort” is not supported by the record evidence. By his own admission, Armendariz stopped gathering signatures shortly after beginning his signature gathering campaign. Subject to these objections, Defendant does not dispute that Armendariz ran as a Republican candidate in 2010.
104. In 2008, Faye Coffield made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Fourth Congressional District. She assembled a team of volunteers and spent hundreds of hours trying to gather signatures over approximately two months. She gathered approximately 2,000 raw signatures—well short of the approximately 15,000 she needed—and therefore did not qualify for the ballot. The incumbent in her district
42

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 43 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 43 of 111
ultimately ran unopposed in the 2008 general election. (Ex. 4: Coffield decl. ¶¶ 310.)
Response: Defendant does not dispute that Faye Coffield attempted to qualify for the general-election ballot in 2008 and failed to qualify.
105. In 2008, James P. Mason made a genuine effort to qualify for the general-election ballot as an independent candidate in Georgia’s Tenth Congressional District. He filed a statement of candidacy with the Federal Elections Commission, informed the Secretary of State’s office of his intention to run, set up a campaign website, and kicked off “PROJECT: PETITION” with a two-day tour of the district. He did not qualify for the ballot. (Ex. 37 at 33: election results; Ex. 38 at 89-95: candidate materials.)
Response: Defendant disputes this statement, which is unsupported by the record citations. Defendant furthermore objects to the materials in Exhibit 38, which have not been authenticated and contain inadmissible hearsay.
106. In 2006, Jay Fisher made a genuine effort to qualify for the generalelection ballot as the Libertarian candidate in Georgia’s Sixth Congressional District. He announced his candidacy in the media and in correspondence with the Secretary of State’s office. He ran on a platform of opposition to the Iraq War and to the Patriot Act, both of which were supported by the then-incumbent Republican
43

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 44 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 44 of 111
representative, Dr. Tom Price. He assembled a team of approximately five volunteers and went door to door. After a while, he realized that he would not be able to qualify for the ballot with volunteer petitions, and the option of using paid petitioners was too expensive. He therefore abandoned his effort to qualify for the ballot and did not submit any signatures. (Ex. 7: Fisher decl. ¶¶ 4-10; Ex. 33: Answer ¶93.)
Response: Defendant does not dispute that Jay Fisher announced his candidacy as a Libertarian candidate in the 2006 election and attempted but failed to qualify for the general-election ballot.
107. In 2004, Philip Bradley made a genuine effort to qualify for the general-election ballot as the Libertarian candidate in Georgia’s Thirteenth Congressional District. He announced intention to run correspondence with the Secretary of State’s office, and it was reported in the media that he had gathered 500 signatures as of March of that year. He did not qualify for the ballot. The Democratic nominee ultimately ran unopposed on the general-election ballot. (Ex. 33: Answer ¶ 103; Ex. 37 at 40: election results; Ex. 38 at 96-99: candidate materials.)
44

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 45 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 45 of 111
Response: Defendant disputes this statement, which is unsupported by the record citations. Defendant furthermore objects to the materials in Exhibit 38, which have not been authenticated and contain inadmissible hearsay.
108. In 2002, the Libertarian Party made a genuine effort to qualify three candidates for U.S. Representative: Wayne Parker in Georgia’s Eleventh Congressional District, Carol Ann Rand in Georgia’s Sixth Congressional District, and Chad Elwartowski in Georgia’s Ninth Congressional District. Because the 2002 redistricting process had reduced the time available for petitioning, a federal judge reduced the signature requirement by about half. The party raised approximately $40,000 for the effort and used 35 professional, paid petition circulators. The party ultimately decided to focus on Parker’s campaign, and Parker submitted more than 20,000 raw signatures. But the Secretary of State’s office rejected more than half of them, leaving Parker about 1,100 valid signatures shy of the court-adjusted requirement. (Ex. 16: Parker decl. ¶¶ 5-15; Ex. 33: Answer ¶ 111.)
Response: Defendant disputes this statement, which is unsupported by the record citations. This statement relies on the Parker Declaration, which provides no foundation for the basis of Parker’s knowledge of the campaigns of other candidates or the Libertarian Party’s campaign strategies in 2002. Defendant also
45

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 46 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 46 of 111
objects to the Parker Declaration as including conclusory statements, testimony beyond Parker’s personal knowledge, and inadmissible hearsay. See Defendant’s Objections to Plaintiffs’ Evidence.
109. In 2002, Joyce Griggs made a genuine effort to qualify for the general-election ballot as the Green candidate in Georgia’s First Congressional District. With approximately eight volunteers, Griggs gathered approximately 400 signatures over a period of six to eight weeks. (Ex. 6: Esco decl. ¶ 12.)
Response: Defendant disputes this statement of fact as unsupported by the record citations. Defendant also objects to this statement of fact as based upon inadmissible hearsay in the Esco Declaration (Ex. 6). See Defendant’s Objections to Plaintiffs’ Evidence.
110. In 2002, Al Herman made a genuine effort to qualify for the generalelection ballot as the Green candidate in Georgia’s Seventh Congressional District. With approximately ten volunteers, Herman collected more than 2,000 signatures over a five-month period. (Ex. 6: Esco decl. ¶ 13.)
Response: Defendant disputes this statement of fact as unsupported by the record citations. Defendant also objects to this statement of fact as based upon inadmissible hearsay in the Esco Declaration (Ex. 6). See Defendant’s Objections to Plaintiffs’ Evidence.
46

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 47 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 47 of 111
111. In 1982, Maceo Dixon made a genuine effort to qualify for the general-election ballot as the Socialist Workers Party’s candidate in Georgia’s Fifth Congressional District. Because the 1982 redistricting process had reduced the time available for petitioning, a federal judge reduced the signature requirement to approximately 4,037. Dixon submitted 7,821 raw signatures, but the Secretary of State’s Office rejected more than 3,000 of them. As a result, Dixon did not qualify for the general-election ballot. (Ex 35: Application for Writ of Mandamus, Dixon v. Poythress, Civ. A. No. C-92177, (Fulton Cnty. Sup. Ct. 1982; Ex. 36: Jerry Schwartz and Ron Taylor, McKinney Petition OK’d for 5th District Election, Atlanta Constitution, Oct 30, 1982, at 1-B; Ex. 39: Sara Jean Johnston, Atlanta Socialist Worker Fights for Ballot Status, The Militant, Nov. 26, 1982, at 4.)
Response: Defendant admits only that Dixon did not qualify for the general election ballot, that Dixon submitted about 7,281 signatures to the Secretary of State, that over 3,000 signatures were rejected, and that the signature requirement was reduced in 1982.
112. John Monds, who has run three times as a Libertarian candidate for statewide office in Georgia and has cumulatively received millions of votes, would
47

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 48 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 48 of 111
have run for U.S. Representative but was deterred from doing so by the ballotaccess restrictions. (Ex. 13: Monds decl. ¶ 9-10.)
Response: Defendant admits only that John Monds has run for statewide office three times and that he cumulatively received millions of votes. Defendant objects to the Monds Declaration as irrelevant and not based upon the witness’s personal knowledge. See Defendant’s Objections to Plaintiffs’ Evidence.
113. In 2018, Luanne Taylor wanted to qualify for the general-election ballot as an independent candidate for U.S. Representative in Georgia’s Sixth Congressional District. She called the Secretary of State’s office to inquire about the number of signatures required on her nomination petition. When the Secretary of State’s office responded by email that she would need 20,918 valid signatures, she was shocked at how high the number was. She was immediately deterred from running for Congress and decided instead to try to run for state representative. (Ex. 19: Taylor decl. ¶¶ 2-4.)
Response: Defendant admits that Luanne Taylor contacted the Secretary of State’s office, and the Secretary of State responded with the number of valid signatures she would be required to submit. Defendant objects to the Taylor Declaration because the witness is lacks personal knowledge and is not competent
48

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 49 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 49 of 111
to testify regarding the subject matter. See Defendant’s Objections to Plaintiffs’ Evidence.
114. In 2016, David Moreland inquired to the Secretary of State’s office about qualifying for the general-election ballot as an independent candidate in Georgia’s First Congressional District. The Secretary of State’s office then informed him of the filing fee, signature requirement and other legal requirements for qualifying for the ballot. Moreland did not qualify for the ballot. The incumbent in that district ultimately ran unopposed on the ballot in the 2016 general election. (Ex. 29: Second Admissions ¶ 30; Ex. 37 at 12: election results; Ex. 38 at 100-101: candidate materials.)
Response: Defendant objects to this statement of fact as not relevant. The mere fact that Moreland received information from the Secretary of State about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant also objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
115. In 2016, Raymond Beckwith declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s First Congressional District. The Secretary of State’s office then informed him of the filing fee, signature requirement and other legal requirements for qualifying for the
49

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 50 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 50 of 111
ballot. Beckwith did not qualify for the ballot. The incumbent in that district ultimately ran unopposed on the ballot in the 2016 general election. (Ex. 29: Second Admissions ¶ 31; Ex. 37 at 12: election results; Ex. 38 at 102-103: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Raymond Beckwith received a letter from the Secretary of State’s office containing information about qualifying for the general election ballot. See Ex. 38 at 102-103. There is no evidence that Beckwith “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
116. In 2010, Charles Perry declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Thirteenth Congressional District. The Secretary of State’s office then informed him of the filing fee, signature requirement and other legal requirements for qualifying for the ballot. Perry did not qualify for the ballot. (Ex. 29: Second Admissions ¶ 28; Ex. 37 at 29: election results; Ex. 38 at 104-105: candidate materials.)
50

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 51 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 51 of 111
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Charles Perry merely wrote a letter to the Secretary of State’s office requesting information about qualifying for the general election ballot. See Ex. 38 at 104-105. There is no evidence that Perry “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
117. In 2008, Timothy J. Payne declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Fifth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Payne did not qualify for the ballot. (Ex. 29: Second Admissions ¶ 26; Ex. 37 at 32: election results; Ex. 38 at 106-107: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Timothy J. Payne merely wrote a letter to the Secretary of State’s office requesting information about qualifying for the general election ballot. See Ex. 38 at 106-107. There is no evidence that Payne
51

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 52 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 52 of 111
“declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
118. In 2006, Loren Collins declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Fourth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Collins did not qualify for the ballot. (Ex. 33: Answer ¶ 92; Ex. 37 at 37: election results; Ex. 38 at 108: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Loren Collins received a letter from the Secretary of State’s office containing information about qualifying for the general election ballot. See Ex. 38 at 108. There is no evidence that Collins “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in
52

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 53 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 53 of 111
this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
119. In 2006, Chip Shirley declared his intention to qualify for the generalelection ballot as an independent candidate in Georgia’s Tenth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Shirley did not qualify for the ballot. (Ex. 33: Answer ¶ 94; Ex. 37 at 38: election results; Ex. 38 at 109-110: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Chip Shirley received a letter from the Secretary of State’s office containing information about qualifying for the general election ballot. See Ex. 38 at 109-110. There is no evidence that Shirley “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
120. In 2006, Richard Clarke declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Twelfth
53

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 54 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 54 of 111
Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Clarke did not qualify for the ballot. (Ex. 33: Answer ¶ 95; Ex. 37 at 38: election results; Ex. 38 at 111-112: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Richard Clarke requested and received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 111-12. There is no evidence that Clarke “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
121. In 2005, the Veterans Party of America declared its intention to qualify a candidate as a political-body candidate in Georgia’s Second Congressional District. The Secretary of State’s office then informed the party of the signature requirement and other legal requirements for qualifying for the ballot. The party did not qualify a candidate for the ballot. (Ex. 33: Answer ¶ 91; Ex. 37 at 37: election results; Ex. 38 at 113-115: candidate materials.)
54

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 55 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 55 of 111
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that a representative of the Veterans Party of America contacted the Secretary of State’s office requesting information about qualifying a candidate for the general election ballot and received information in response. See Ex. 38 at 113-15. There is no evidence of a “declaration” of intent to qualify a candidate. Defendant also objects to this statement of fact as not relevant; the fact that a party inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
122. In 2004, the Veterans Party of America declared its intention to qualify a candidate a political-body candidate in Georgia’s Second Congressional District. The Secretary of State’s office then informed the party of the signature requirements and other legal requirements for qualifying for the ballot. The party did not qualify a candidate for the ballot. (Ex. 33: Answer ¶ 96; Ex. 37 at 39: election results; Ex. 38 at 116-117: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that a representative of the Veterans Party of America contacted the Secretary of State’s office requesting information about qualifying a candidate for the general election ballot and received information in
55

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 56 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 56 of 111
response. See Ex. 38 at 116-17. There is no evidence of a “declaration” of intent to qualify a candidate. Defendant also objects to this statement of fact as not relevant; the fact that a party inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
123. In 2004, Steven Muhammad declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Fifth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Muhammad did not qualify for the ballot. The incumbent in that district ran unopposed on the ballot in the 2004 general election. (Ex. 33: Answer ¶ 97; Ex. 37 at 40: election results; Ex. 38 at 118: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Steven Muhammad received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 118. There is no evidence that Muhammad “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in
56

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 57 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 57 of 111
this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
124. In 2004, Andy Altizer declared his intention to qualify for the generalelection ballot as an independent candidate in Georgia’s Sixth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Altizer did not qualify for the ballot. The Republican nominee in that district ultimately ran unopposed on the ballot in the 2004 general election. (Ex. 33: Answer ¶ 98; Ex. 37 at 40: election results; Ex. 38 at 119-120: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Andy Altizer requested and received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 119-20. There is no evidence that Altizer “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
57

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 58 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 58 of 111
125. In 2004, Chris Borcik declared his intention to qualify for the generalelection ballot as an independent candidate in Georgia’s Eighth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Borcik did not qualify for the ballot. (Ex. 33: Answer ¶ 99; Ex. 37 at 40: election results; Ex. 38 at 121: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Chris Borcik received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 121. There is no evidence that Borcik “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
126. In 2004, Malcolm Rogers declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Thirteenth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot.
58

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 59 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 59 of 111
Rogers did not qualify for the ballot. The Democratic nominee in that district ultimately ran unopposed on the ballot in the 2004 general election. (Ex. 33: Answer ¶ 102; Ex. 37 at 40: election results; Ex. 38 at 122-123: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Malcolm received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 122-23. There is no evidence that Malcolm “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
127. In 2002, Ryan Anthony Cancio declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Sixth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Cancio did not qualify for the ballot. (Ex. 33: Answer ¶ 105; Ex. 37 at 43: election results; Ex. 38 at 124-126: candidate materials.)
59

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 60 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 60 of 111
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Ryan Anthony Cancio received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 124-26. There is no evidence that Cancio “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
128. In 2002, Daniel Kozarich declared his intention to qualify for the general-election ballot as an independent candidate in Georgia’s Tenth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Kozarich did not qualify for the ballot. The Republican nominee in that district ultimately ran unopposed on the ballot in the 2002 general election. (Ex. 33: Answer ¶ 109; Ex. 37 at 44: election results; Ex. 38 at 127-129: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Daniel Kozarich received information from
60

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 61 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 61 of 111
the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 127-29. There is no evidence that Kozarich “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
129. In 2002, Brian Brown declared his intention to qualify for the generalelection ballot as an independent candidate in Georgia’s Tenth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Brown did not qualify for the ballot. The Republican nominee in that district ultimately ran unopposed on the ballot in the 2002 general election. (Ex. 33: Answer ¶ 110; Ex. 37 at 44: election results; Ex. 38 at 130: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Brian Brown received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 130. There is no evidence that Brown “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as
61

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 62 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 62 of 111
not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
130. In 2002, Ron Smith declared his intention to qualify for the generalelection ballot as an independent candidate in Georgia’s Thirteenth Congressional District. The Secretary of State’s office then informed him of the signature requirement and other legal requirements for qualifying for the ballot. Smith did not qualify for the ballot. (Ex. 33: Answer ¶ 111; Ex. 37 at 44: election results; Ex. 38 at 131-134: candidate materials.)
Response: Defendant disputes this statement, which is not supported by the record citations. The record shows that Ron Smith received information from the Secretary of State’s office regarding qualifying for the general election ballot. See Ex. 38 at 124-26. There is no evidence that Smith “declared his intention to qualify for the general election ballot.” Defendant also objects to this statement of fact as not relevant; the fact that a person inquired about the requirements for qualifying for the general election is not probative of the issues in this case. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay.
62

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 63 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 63 of 111
131. In 2000, Gail Debra Allen-Cartwright declared her intention to qualify for the general-election ballot as an independent candidate in Georgia’s Eleventh Congressional District. She filed a statement of candidacy with the federal elections commission. She also filed a notice of candidacy with the Secretary of State’s office and paid the filing fee. Allen-Cartwright did not qualify for the ballot. The Republican nominee in that district ultimately ran unopposed on the ballot in the 2000 general election. (Ex. 29: Second Admissions ¶ 35; Ex. 37 at 46: election results; Ex. 38 at 135-139: candidate materials.)
Response: Defendant does not dispute that Gail Allen-Cartwright filed a notice of candidacy and paid the filing fee. However, Defendant objects to this statement of fact as not relevant; the fact that a person paid a filing fee but did not appear on the ballot is not probative of the issues in this case. There are no additional facts regarding Allen-Cartwright’s efforts to qualify. Defendant further objects to the materials attached as Exhibit 38 as unauthenticated and inadmissible hearsay. XIII. The Petition-Checking Process
132. Under Georgia law, it is the duty of the Secretary of State to check the validity of signatures on nomination petitions submitted by candidates for
63

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 64 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 64 of 111
President, U.S. Senator, U.S. Representative, and all state offices. O.C.G.A. §§ 212-132(d), -171(a). (Ex. 33: Answer ¶ 56.)
Response: Admitted. 133. A signature on a nomination petition is valid and must be counted if it matches the signature on file of a duly qualified and registered voter who is eligible to vote for the office to be filled. (Ex. 33: Answer ¶ 57.) Response: Admitted. 134. Georgia law does not prescribe any particular method for checking signatures, but the Georgia Supreme Court has indicated that Secretary of State must choose a method which “can reasonably be expected to operate in a thorough and professional way so as to produce accurate results.” Anderson v. Poythress, 246 Ga. 435, 271 S.E.2d 834 (1980). (Ex. 33: Answer ¶ 58.) Response: Admitted. 135. The current petition-checking process is as follows. When a candidate submits a nomination petition, the Secretary sends a duplicate of the petition to county election officials along with a one-page letter asking them to use certain codes on the petition when verifying signatures to indicate why a particular signature was deemed invalid. (Ex. 33: Answer ¶ 60.) The counties send back their results. And, if there is more than one county involved, the Secretary of State’s
64

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 65 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 65 of 111
office then adds up the total number of signatures validated by the counties and makes a determination as to whether or not the petition contains a sufficient number of valid signatures for the candidate to qualify for the ballot. (Ex. 23: Harvey dep. 32:11-33:16, 38:4-39:2; Ex. 40: petition-verification instruction letters.)
Response: Admitted. 136. The Secretary of State’s office provides no instructions other than the one-page letter when transmitting petitions to county election officials, and it provides no guidance on what constitutes a valid signature unless county election officials affirmatively ask for specific guidance. (Ex. 23: Harvey dep. 36:4-19, 47:12-49:1.) Response: Defendant disputes this statement because it misstates the cited testimony of Chris Harvey. Mr. Harvey testified that the Secretary of State’s office provides training to county election workers on signature verification, and that the requirements for signature verification are set out in O.C.G.A. § 21-2-170 and § 21-2-171. See Harvey dep. 36:4-19; 47:17-25; 52:2-9. 137. The Secretary of State’s office does nothing to ensure that county election officials follow the instructions set out in the one-page letter that accompanies each petition. (Ex. 23: Harvey dep. 45:21-46:2). The Secretary of
65

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 66 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 66 of 111
State’s office conducts no audit of the verifications returned from the counties to determine whether the county election officials have complied with the instructions. (Ex. 23: Harvey dep. 46:3-8, 70:5-71:3.) There are no possible repercussions from the Secretary of State’s office for a county election official who fails to follow the Secretary’s instructions, and county election officials are not required to attest to the results. (Ex. 23: Harvey dep. 46:9-47:11.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations. Defendant admits that county election officials and offices determine the process by which the Secretary of State’s guidance is implemented.
138. The Secretary of State’s office takes no action, audit, or review even when it is apparent on the face of a petition returned by county election officials that they did not comply with the Secretary’s one-page instruction letter. (Ex. 23: Harvey dep. 91:13-92:9.) The office could conduct an audit or review if it wished to do so; it has the necessary tools (access to the petitions and the state’s voterregistration database). (Ex. 23: Harvey dep. 84:20-23, 86:24-87:3.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations.
66

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 67 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 67 of 111
139. The Secretary of State’s office does nothing to ensure that the workers who verify petitions in the county election offices have undertaken any form of training. (Ex. 23: Harvey dep. 52:11-16.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations.
140. The Secretary of State’s office provides no training on handwriting analysis even though it admits that a voter’s signature can change over time and based on the conditions under which the voter signs. (Ex. 23: Harvey dep. 60:2261:9.) And the office conducts no review of a county’s determination that a signature does not match. (Ex. 23: Harvey dep. 61:22-25.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations.
141. In fact, the Secretary of State’s office keeps no records as to the basis on which counties have rejected signatures. (Ex. 23: Harvey dep. 62:1-10.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations.
142. The Secretary of State’s signature validation process results in valid signatures being improperly rejected. (Ex. 23: Harvey dep. 113:20-25, 118:22119:4, 140:24-141:1, 158:5-11.)
67

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 68 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 68 of 111
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations.
143. In addition, unlike most other states, Georgia does not grant petitioncirculators access to the records they need in order to check their petitions before they turn them in. Most states provide public-access terminals that allow petitioncirculators to see if they can find a person who signed their petition and to check whether the signature matches. Georgia does not offer this kind of access. It offers only one public access terminal with limited data and search capabilities. There are no instructions for the public on how to use the software, and it does not give access to a voter’s signature. (Ex. 10: Lee decl. ¶ 9.)
Response: Defendant objects to a comparison with other states’ requirements as irrelevant and not material. Defendant further objects to the admissibility of the Lee Declaration because it contains improper opinion testimony from a lay witness who has not been designated as an expert.
144. The Secretary’s signature-verification process leads to signaturevalidation rates that are well below industry norms and those of other states. (Ex. 10: Lee decl. ¶ 11.) A validation rate of 65 to 75 percent is the standard for candidacy petitions. (Ex. 10: Lee decl. ¶ 12.)
68

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 69 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 69 of 111
Response: Defendant objects to a comparison with other states without specification of those states’ requirements as irrelevant and not material. Defendant further objects to the admissibility of the Lee Declaration because it contains improper opinion testimony from a lay witness who has not been designated as an expert.
145. In 2016, for example, Rocky De La Fuente submitted approximately 15,000 signatures on a nomination petition in an attempt to qualify for the generalelection ballot as an independent candidate for President. He used professional, experienced petition circulators to gather his signatures. (Ex. 10: Lee decl. ¶¶ 517.) The Secretary verified only 2,964 signatures—a validation rate of approximately 20 percent. (Ex. 33: Answer ¶ 68.)
Response: Defendant objects to the admissibility of the Lee Declaration because it is improper opinion testimony from a lay witness who has not been designated by Plaintiffs as an expert. Subject to this objection, Defendant admits that De La Fuente submitted 15,000 signatures; that the Secretary of State verified 2,964 of those signatures; and that De La Fuente employed at least one paid professional petition circulator.
146. De La Fuente’s petition contains numerous signatures that were improperly rejected. (Ex. 23: Harvey dep. 110:19-158:11; Ex. 41: De La Fuente
69

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 70 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 70 of 111
petition sheets and ENET printouts.) After reviewing only a small number of signatures from De La Fuente’s petition that were rejected by county election officials, the Secretary of State’s office admitted that there were “more than a handful of errors from Cobb, Dekalb, Fulton, and Clayton counties.” (Ex. 23: Harvey dep. 158:5-11.)
Response: Defendant admits that some signatures from De La Fuente’s petition were improperly rejected.
147. Since 2014, the Secretary of State’s office has validated only one petition for an independent or political-body candidate for U.S. Representative. In 2016, Hien Dai Nguyen submitted a nomination petition containing approximately 25,000 raw signatures. (Ex. 15: Nguyen decl. ¶ 8.) Election officials in Dekalb, Gwinnett, Newton and Rockdale counties validated only 556 of them—a validation rate of approximately two percent. (Ex. 23: Harvey dep. 100:6-18.)
Response: Defendant objects to the first sentence of this paragraph as lacking any citation to the record. Defendant admits that Nguyen submitted a nomination petition and that approximately 2% of those signatures were validated. See Harvey dep. 100:6-18.
148. The Secretary of State’s office has validated only one other nomination petition for an independent or political-body candidate for U.S.
70

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 71 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 71 of 111
Representative since 2000. In 2002, Wayne Parker submitted almost 20,000 raw signatures, and the Secretary of State’s office validated only 8,346 of them—a validation rate of approximately 40 percent. (Ex. 10: Lee decl. ¶ 20; Ex. 16: Parker decl. ¶¶ 13-14.)
Response: Defendant objects to the first sentence of this paragraph as lacking any citation to the record. Defendant admits that Parker submitted a nomination petition and that approximately 40% of those signatures were validated.
149. Because of the Secretary’s error-prone signature-verification process, independent and political-body candidates for U.S. Representative must gather signatures far in excess of the number of valid signatures required to obtain ballot access under Georgia law. (Ex. 1: Anderson decl. ¶ 6; Ex. 2: Armendariz decl. ¶ 8; Ex. 6: Esco decl. ¶ 7; Ex. 7: Fisher decl. ¶ 7; Ex. 10: Lee decl. ¶ 21.) For one candidate for U.S. Representative, that might mean somewhere between 40,000 and 75,000 signatures. For a full slate of 14 candidates for U.S. Representative, that might be somewhere between 600,000 and 1,000,000 signatures. (Ex. 10: Lee decl. ¶21.)
Response: Defendant objects to this statement as argumentative and disputes the statement as not supported by the record citations. None of the cited
71

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 72 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 72 of 111
testimony provides evidence that the Secretary of State’s verification process is “error-prone.” Defendant also objects to the testimony in the cited declarations as mere conclusory allegations not supported by specific facts. See Defendant’s Objections to Plaintiffs’ Evidence. XIV. The Difficulty and Pace of Petitioning
150. Gathering signatures is difficult, labor-intensive work. (Ex. 5: Cowen decl. ¶ 12; Ex. 7: Fisher decl. ¶ 8; Ex. 20: Webb decl. ¶ 7.)
Response: Defendant objects to this statement as a conclusory allegation not supported by specific facts. Subject to this objection, Defendant does not dispute that gathering voter signatures is difficult.
151. Don Webb, an experienced paid petition circulator, is only able to gather 30 to 40 raw signatures in an eight- or nine-hour day on a Saturday. He is able to collect 15 to 25 raw signatures on other days. That averages out to less than five signatures per hour over the course of a week. (Ex. 20: Webb decl. ¶ 7.)
Response: Defendant does not dispute Webb’s testimony regarding the specifics of his personal experience but does not concede that his limited experience is generally applicable.
152. Even if he spent eight hours per day, seven days per week, going door to door over the course of the 180-day petitioning window (a total of 1,440 hours),
72

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 73 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 73 of 111
he would be able to gather fewer than 4,800 raw signatures, which is well short of the number required for a single political-body candidate for U.S. Representative. (Ex. 20: Webb decl. ¶ 11.)
Response: Defendant objects to this statement as a conclusory allegation not supported by specific facts.
153. It is hard to convince people to volunteer to gather signatures for ballot access. (Ex. 12: Metz decl. ¶ 12; Ex. 20: Webb decl. ¶ 10.)
Response: Defendant objects to this statement as a conclusory allegation not supported by specific facts. Defendant further objects to the cited testimony in the Metz and Webb declarations as based upon inadmissible hearsay. See Defendant’s Objections to Plaintiffs’ Evidence.
154. Volunteer signature-gatherers tend to be slower and less effective than paid signature-gatherers, and they are rarely willing or able to work for more than a few hours at a time. (Ex. 6: Esco decl. ¶ 9; Ex. 20: Webb decl. ¶ 9.)
Response: Defendant objects to this statement as a conclusory allegation not supported by specific facts.
155. Luanne Taylor, who attempted to qualify for the ballot as an independent candidate in 2018, was only able to gather about one signature per hour. (Ex. 19: Taylor decl. ¶ 9.)
73

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 74 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 74 of 111
Response: Admitted. 156. Aaron Gilmer, who attempted to qualify for the ballot as a Libertarian candidate for U.S. Representative in 2018, was only able to gather about two signatures per hour using a mixture of professional and volunteer circulators. (Ex. 8: Gilmer decl. ¶¶16-17.) Response: Admitted. 157. Martin Cowen, who attempted to qualify for the ballot as a Libertarian candidate for U.S. Representative in 2018, was able to gather less than three signatures per hour circulating his own petition. (Ex. 5: Cowen decl. ¶¶ 10, 14.) Response: Defendant objects to this statement of fact as not supported by the cited testimony in the Cowen Declaration. XV. The Cost of Petitioning in Georgia 158. As a practical matter, it would be impossible for the Libertarian Party to qualify a full slate of candidates for the office of U.S. Representative in 2020 without making extensive use of paid, professional petition circulators. (Ex. 1: Anderson decl. ¶ 4; Ex. 6: Esco decl. ¶ 10; Ex. 7: Fisher decl. ¶ 11; Ex. 10: Lee decl. ¶ 22; Ex. 13: Monds decl. ¶ 8; Ex. 20: Webb decl. ¶ 12.) Response: Defendant objects to this statement as a conclusory allegation not supported by admissible evidence. Defendant objects to the testimony in the
74

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 75 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 75 of 111
cited declarations as inadmissible opinion testimony from lay witnesses not designated as experts. Furthermore, this statement is inconsistent with the testimony of the 30(b)(6) representative of the Libertarian Party, who testified that the party prefers to use volunteer circulators, rather than professional, because they collect signatures with a higher validity rate. See Wilson Dep. at 59:24 to 61:10.
159. Professional petition circulators typically charge $2-$5 per signature collected, plus expenses for travel, lodging and incidentals. (Ex. 10: Lee decl. ¶ 23.)
Response: Defendant objects to this statement of fact as not supported by admissible evidence and based upon inadmissible hearsay and improper opinion testimony from a lay witness.
160. In order to be assured of gathering a sufficient number of valid signatures to qualify a full slate of candidates for the office of U.S. Representative, the Libertarian Party would need to gather somewhere between 600,000 and $1,000,000 signatures. (Ex. 10: Lee decl. ¶ 21.)
Response: Defendant objects to this statement of fact as not supported by admissible evidence and based upon inadmissible hearsay and improper opinion testimony from a lay witness.
75

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 76 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 76 of 111
161. The cost of gathering the signatures necessary to qualify a full slate of candidates for the office of U.S. Representative would likely exceed $1,000,000 and could exceed $2,500,000. (Ex. 1: Anderson decl. ¶ 7; Ex. 10: Lee decl. ¶ 24; Ex. 16: Parker decl. ¶ 17; Ex. 20: Webb decl. ¶ 12; Ex. 21: Wilson decl. ¶¶ 6-8.)
Response: Defendant objects to this statement of fact as not supported by admissible evidence and based upon inadmissible hearsay and improper opinion testimony from a lay witness. XVI. The Impact of Federal Campaign-Finance Law
162. Federal campaign-finance laws set certain limits on campaign contributions to candidates for federal offices, including political-body candidates for U.S. Representative. Federal Elections Campaign Act of 1971, Pub L. 92-225, 86 Stat. 3, 52 U.S.C. § 30101 et seq. (Ex. 29: Second Admissions ¶ 36.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
163. Under these laws, the maximum amount that a state or national party may contribute to one candidate for U.S. Representative is $5,000 per election. 52 U.S.C. § 30116(a)(2)(A); 11 C.F.R. § 110.2(b)(1). See https://www.fec.gov/help-
76

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 77 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 77 of 111
candidates-and-committees/candidate-takingreceipts/contribution-limits/. (Ex. 29: Second Admissions ¶ 37.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
164. The limits on contributions to candidates apply separately to each federal election in which the candidate participates. A primary election, general election, runoff election and special election are each considered a separate election with a separate limit. (Ex. 29: Second Admissions ¶ 38.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
165. Even when candidates are not involved in an actual primary, they are entitled to a primary limit. They may choose one of the following dates to be their “primary” date, and, until that date, they may collect contributions that count towards the contributor’s primary limits: (1) the last day on which, under state law, a candidate may qualify for a position on the general election ballot; or (2) the date of the last major primary election, caucus or convention in that state. Political-body
77

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 78 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 78 of 111
candidates may also choose the date of the nomination by their party as their primary date. (Ex. 29: Second Admissions ¶ 39.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits statement.
166. As a result, the maximum amount that a state or national party may contribute to one candidate for U.S. Representative (except in the event of a runoff election) is $10,000 per election cycle. (Ex. 9: Graham decl. ¶17; Ex. 18: Sarwark decl. ¶ 32; Ex. 21: Wilson decl. ¶¶ 5, 17; Ex. 29: Second Admissions ¶ 40.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
167. The maximum that an individual donor can give to a candidate is $5,600 per election cycle. (Ex. 21: Wilson decl. ¶ 5.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
78

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 79 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 79 of 111
168. The value of an in-kind contribution counts against the contribution limits just as a contribution of money does. 11 C.F.R. § 100.51. (Ex. 29: Second Admissions ¶ 41.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
169. Any amount paid by a state or national party for petition circulators or other petitioning efforts in support of a candidate for U.S. Representative must be reported to federal authorities as an in-kind contribution and is subject to campaign contribution limits. 11 C.F.R. §§ 100.52(d)(1), 100.54. (Ex. 29: Second Admissions ¶ 42.)
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
170. Any amount paid by a state or national party for qualifying fees in support of a candidate for U.S. Representative must be reported to federal authorities as an in-kind contribution and is subject to campaign contribution limits. 11 C.F.R. § 100.52. (Ex. 29: Second Admissions ¶ 43.)
79

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 80 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 80 of 111
Response: Defendant objects to this statement as irrelevant and not material. Federal campaign finance laws are not at issue in this action. Subject to this objection, Defendant admits this statement.
171. Federal law thus prohibits the Libertarian Party or any other large donor from contributing enough money to cover a substantial number of signatures. (Ex. 9: Graham decl. ¶ 17; Ex. 18: Sarwark decl. ¶ 32; Ex. 21: Wilson decl. ¶¶ 5, 17.)
Response: Defendant objects to this statement as argumentative and a conclusory allegation not supported by specific facts. There is nothing in federal law that specifically prohibits a candidate from raising sufficient funds to cover a signature gathering campaign.
172. Donors, moreover, generally do not want to give money for signaturegathering on a ballot-access petition when success is far from assured. (Ex. 6: Esco decl. ¶ 10; Ex. 9: Graham decl. ¶ 18; Ex. 11: McKinney decl. ¶¶ 10-12; Ex. 12: Metz decl. ¶ 11; Ex. 21: Wilson decl. ¶ 4.). They want to promote ideas and policies, and they recognize that candidates who are not on the ballot are not taken seriously by the media or by the voters. (Ex. 21: Wilson decl. ¶ 4.)
80

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 81 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 81 of 111

Response: Defendant objects to this statement as argumentative. Defendant

further objects to the testimony in the cited declarations as containing conclusory

allegations not supported by specific facts and inadmissible hearsay statements.

XVII.

Lack of Access to Voters

173. Petition-circulators in Georgia may not lawfully solicit signatures on

private property without the permission of the property owner. See Cahill v. Cobb

Place Associates, 271 Ga. 322 (1999); Citizens for Ethical Gov’t v. Gwinnett Place

Associates, 260 Ga. 245 (1990). That includes places of public accommodation,

such as shopping malls, as well as property owned by common-interest community

associations, such as homeowners’ associations. (Ex. 29: Second Admissions ¶

46.)

Response: Defendant does not dispute this statement as an accurate

statement of law. However, the Libertarian Party’s 30(b)(6) representative

conceded that he has known of circulators who have asked permission from

property owners and the owners have said yes. See Craig Dep. at 58:2-11.

174. Virtually all of the places where large numbers of people congregate,

like grocery stores and shopping malls, are on private property. Petition-circulators

are consequently relegated to gathering signatures on public sidewalks, which are

81

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 82 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 82 of 111
often far away from where voters park to enter the stores. (Ex. 4: Coffield decl. ¶ 13; Ex. 6: Esco decl. ¶ 8; Ex. 19: Taylor decl. ¶ 11.)
Response: Defendant objects to the statement as argumentative. The allegations that “virtually all” places where there are large numbers of people are on private property or that sidewalks are “often far away from” stores are not supported by admissible evidence. Defendant further objects to the testimony in the cited declarations to the extent that it is based upon inadmissible hearsay statements.
175. Entire subdivisions are often off-limits to petition-circulators because private homeowners’ associations own the streets and sidewalks and have signs that bar all forms of soliciting. (Ex. 1: Anderson decl. ¶ 13; Ex. 5: Cowen decl. ¶ 15.)
Response: Defendant objects to this statement as an incorrect statement of law. No-solicitation signs do not render these environments off limits. See Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002). Second, the statement is not supported by the cited testimony.
176. Even when canvassing legally on public property, petition circulators are often confronted by police officers or business owners unaware of their right to do so. (Ex. 6: Esco decl. ¶ 8; Ex. 16: Parker decl. ¶ 8; Ex. 19: Taylor decl. ¶ 12.)
82

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 83 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 83 of 111
Response: Defendants objects to this statement as not supported by admissible evidence. The testimony in the cited declarations is not based upon the witnesses’ personal knowledge and contains inadmissible hearsay statements.
177. Primary elections are generally not a good time to gather signatures. (Ex. 21: Wilson decl. ¶ 13.)
Response: Defendant objects to this statement as argumentative and disputes that the statement is supported by the cited testimony in the Wilson Declaration.
178. Many counties consolidate polling places in primary elections, with voters from more than one congressional district voting at the same location. This makes it difficult to figure out whether the voter lives in the right district to sign a petition. (Ex. 21: Wilson decl. ¶ 14).
Response: Defendant objects to this statement as argumentative and disputes that the statement is supported by the cited testimony in the Wilson Declaration.
179. Turnout in primaries tends to be lower than in general elections, and many of those who do turn out are ardent partisans who refuse to sign petitions for candidates who do not belong to their favored party. (Ex. 21: Wilson decl. ¶ 16.)
83

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 84 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 84 of 111
Response: Defendant objects to this statement of fact as not supported by admissible evidence. The cited testimony in the Wilson Declaration offers no support for the claim that primary elections have lower turnout and the voters present on primary day are “ardent partisans.” Furthermore, Wilson was not designated an expert witness by Plaintiffs, and his opinions on voter turnout trends and the political demographics of primary electorates are not admissible.
180. Georgia law prohibits petition-circulators from canvassing for signatures within 150 feet of a polling place. O.C.G.A. § 21-2-414(a). This often means that signature-gatherers never have the chance to interact with voters at a polling place. In many areas, the parking lot for a polling place is within the 150foot radius. In others, the polling place is so close to the street that -petition circulators can only stand across the street. In rural areas, the 150-foot radius sometimes puts signature gatherers in the middle of the woods because there is no sidewalk or other place to stand. (Ex. 21: Wilson decl. ¶ 15.)
Response: Defendant objects to this statement as argumentative, irrelevant, and not material. Subject to these objections, Defendant admits that Georgia law prohibits petition-circulators from canvassing for signatures within 150 feet of a polling place.
84

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 85 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 85 of 111
XVIII. Public Concern about Disclosing Confidential Information 181. The form of a nomination petition calls for a voter to provide a name,
signature, date of birth, residential address, county of residence, and date of signing. (Ex. 41: De La Fuente petition sheets and ENET printouts.)
Response: Admitted. 182. Georgia law considers a voter’s date of birth and address to be confidential information. O.C.G.A. § 21-2-225(b). Response: Defendant objects to this statement as an incorrect statement of law. The statute prevents the Secretary of State from disclosing this information; it does not prevent individuals from revealing this information to anyone. 183. In order to decrease the risk of identity theft, the Consumer Protection Division of the Georgia Department of Law advises individuals not to disclose their date of birth or residential address to members of the public. See, e.g., http://www.consumer.ga.gov/consumer-topics/identity-theft-socialnetworking; http://www.consumer.ga.gov/consumer-topics/identity-theftchild-identity-theft. Response: Defendant objects to this statement of fact as not material and not supported by the cited evidence. The referenced websites include information on not sharing personal information, such as date of birth and address, on social media or on the internet.
85

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 86 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 86 of 111
184. “A lot of people are terribly concerned about addresses being public.” (Ex. 23: Harvey dep. 109:14-24.) This was a significant issue in 2015 when the Secretary of State’s office inadvertently distributed copies of the state’s voter list with dates of birth and residential addresses exposed. The Secretary of State issued a statement warning affected voters to be vigilant for the possibility of identity theft as a result of the disclosure.
Response: Defendant disputes this statement as not supported by the cited transcript. The correct quote from Harvey says, “I don’t know that a lot of people are terribly concerned about addresses being public.” (Ex. 23: Harvey dep. 109:1424).
185. The designee of the Secretary of State’s office admits that he would not disclose his date of birth to a stranger knocking on his door “without a very compelling reason.” (Ex. 23: Harvey dep. 107:20-24.) The designee concedes that requiring candidates to ask strangers for legally-protected confidential information in order to appear on the ballot is “a concern.” (Ex. 23: Harvey dep. 108-17-24.)
Response: Defendant disputes this statement as not supported by the cited transcript. There is nothing in the Harvey testimony that supports the claim that requiring candidates to ask for protected confidential information in order on the ballot is “a concern.”
86

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 87 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 87 of 111
186. Although a voter’s date of birth and residential address are not required on a nomination petition, providing that information increases the chance that county election officials will be able to identify the signature. (Ex. 23: Harvey dep. 107:25-108:9.)
Response: Admitted. 187. In many cases, petition-signers do not supply their full date of birth or residential address. (Ex. 23: Harvey dep. 108:25-109:13.) Response: Admitted. 188. Many potential petition-signers express reluctance to sign, or refuse to sign altogether, because of the confidential information called-for by the form and the possibility that it could be used for identity theft or other nefarious purposes. (Ex. 4: Coffield decl. ¶ 11-12; Ex. 6: Esco decl. ¶ 8; Ex. 7: Fisher decl. ¶ 8; Ex. 8: Gilmer decl. ¶ 13; Ex. 9: Graham decl. ¶ 13.) Response: Defendant objects to this statement of fact as not supported by admissible evidence. The testimony in the cited witness declarations includes inadmissible hearsay statements. XIX. Support for the Libertarian Party Nationwide and in Georgia 189. The Libertarian Party was founded in 1971 and is organized in all 50 states plus the District of Columbia. (Ex. 18: Sarwark decl. ¶¶ 5-6.)
87

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 88 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 88 of 111
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
190. The Libertarian Party is currently the third largest political party in the United States by voter registration. Among the 50 states plus the District of Columbia, there are 31 jurisdictions where a voter can register as a Libertarian. (Georgia does not register voters by party.) According to the most recent data collected by the party, there were 567,157 active voters registered as Libertarians in the fall of 2018—a 92 percent increase over the last 10 years. (Ex. 18: Sarwark decl. ¶ 14.)
Response: Defendant objects to this statement of fact as not material and irrelevant.
191. A 2010 study by David Boaz and David Kirby found that at least 14 percent of American voters have libertarian-leaning views. (Ex. 18: Sarwark decl. ¶ 15.)
Response: Defendant objects to this statement of fact as not material and irrelevant.
192. The Gallup Poll found in its 2015 Governance survey that 27 percent of respondents could be characterized as libertarians—the highest number that poll has ever found. And, in 2018, the same Gallup poll found that 57 percent of
88

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 89 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 89 of 111
Americans say that a third major political party is needed, marking the fifth straight year in which the poll found a majority support for a new third party. (Ex. 18: Sarwark decl. ¶ 16.)
Response: Defendant objects to this statement of fact as based upon inadmissible hearsay in the Sarwark Declaration. See Defendant’s Objections to Plaintiffs’ Evidence. A copy of the poll was not submitted or authenticated.
193. The Libertarian Party currently has automatic ballot access in 33 states plus the District of Columbia. Georgia is the only state in the nation that considers the Libertarian Party ballot-qualified for statewide offices but not for district offices. (Ex. 18: Sarwark decl. ¶ 17.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
194. The Libertarian Party runs hundreds of candidates in every election cycle. These candidates seek positions ranging from city council to President of the United States. The Libertarian Party had 833 candidates on ballots in 2018. (Ex. 18: Sarwark decl. ¶ 18.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
89

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 90 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 90 of 111
195. The Libertarian Party has placed a presidential candidate on the ballot in all 50 states and the District of Columbia on five separate occasions, most recently in 2016. (Ex. 18: Sarwark decl. ¶ 19.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
196. Nationwide, the Libertarian Party runs numerous candidates for U.S. Representative. It is only the third political party since 1916 to have had a candidate for U.S. Representative on the ballot in a majority of congressional districts across the country. (Ex. 18: Sarwark decl. ¶ 20.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
197. The Libertarian Party has had candidates for U.S. Representative appear on the ballot in every state in the nation except Georgia. (Ex. 18: Sarwark decl. ¶ 21.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
198. There are currently more than 180 elected officials affiliated with the Libertarian Party nationwide. There has been one statewide elected official and
90

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 91 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 91 of 111
members of five state legislatures affiliated with the Libertarian Party. (Ex. 18: Sarwark decl. ¶ 22.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
199. Fifty-four Libertarians were elected to office in 2018—a 59 percent increase over 2016. This includes the election of Jeff Hewitt as county supervisor in Riverside County, California. Hewitt’s district has a population larger than 15 different states and an annual budget of more than $5 billion. (Ex. 18: Sarwark decl. ¶ 23.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
200. In the last ten years, Libertarian Party candidates have received tens of millions of votes. (Ex. 18: Sarwark decl. ¶ 24.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
201. The Libertarian Party’s nominee for President of the United States in the 2016 election, Gary Johnson, received 4,489,341 votes—the highest-ever vote total for a Libertarian candidate—which represented 3.28 percent of the popular
91

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 92 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 92 of 111
vote and the third highest vote total among the candidates in the race. (Ex. 18: Sarwark decl. ¶ 25.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
202. Nine different Libertarian candidates have received more than one million votes in statewide races since 2008. The first to do so was John Monds, the Libertarian Party’s 2008 candidate of the Public Service Commission District 1 in Georgia. Three of the nine million-vote candidates were in Georgia. (Ex. 18: Sarwark decl. ¶ 26.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to these objections, Defendant does not dispute this statement.
203. The Libertarian Party has demonstrated that it has substantial support among Georgia’s electorate. (Ex. 33: Answer ¶ 127; Ex. 37: election results.)
Response: Defendant objects to the statement that the Libertarian Party has “substantial support” as argumentative and not supported by admissible evidence. Subject to this objection, Defendant does not dispute the election results shown in Exhibit 37.
204. In 1988, the Libertarian Party of Georgia qualified to nominate candidates for statewide public office by convention when it submitted a party-
92

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 93 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 93 of 111
qualifying petition signed by at least one percent of the number of total number of registered voters at the preceding general election. See O.C.G.A. § 21-2-180(1). The party has retained that qualification under Georgia law in each election cycle since 1988 by nominating at least one candidate for statewide public office who received votes totaling at least one percent of the total number of registered voters who were registered and eligible to vote in that election. See O.C.G.A. § 21-2180(2). (Ex. 33: Answer ¶ 128.)
Response: Admitted. 205. In the last ten years, Libertarian Party candidates for statewide public offices in Georgia have received more than five million votes. (Ex. 33: Answer ¶ 131; Ex. 37: election results.) Response: Admitted. 206. In 2016, the Libertarian Party of Georgia’s nominee for the Public Service Commission, Eric Hoskins, received 1,200,076 votes, which represents 33.4 percent of all votes cast in that contest and 22.0 percent of the total number of registered voters who were registered and eligible to vote in that election. Hoskins carried Clayton and DeKalb counties in that election. (Ex. 33: Answer ¶ 132.) Response: Admitted.
93

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 94 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 94 of 111
207. In 2014, one of the Libertarian Party of Georgia’s nominees for the Public Service Commission, John H. Monds, received 710,408 votes, which represents 31.7 percent of all votes cast in that contest and 11.7 percent of the total number of registered voters who were registered and eligible to vote in that election. Monds carried Clayton, DeKalb, and Hancock counties. (Ex. 33: Answer ¶ 133.)
Response: Admitted. 208. In 2012, one of the Libertarian Party of Georgia’s nominees for the Public Service Commission, David Staples, received 1,095,115 votes, which represents 34.2 percent of all votes cast in that contest and 18.0 percent of the total number of registered voters who were registered and eligible to vote in that election. Staples carried Clayton, DeKalb, and Hancock counties. (Ex. 33: Answer ¶ 134.) Response: Admitted. 209. In Green Party of Georgia v. Kemp, the Secretary of State repeatedly described the Libertarian Party as a political body “with significant support” in Georgia. (Ex. 33: Answer ¶ 135; Ex. 42: excerpts from appellant’s briefs.)
94

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 95 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 95 of 111
Response: Defendant admits that with respect to statewide elections, as was the case in Green Party of Georgia v. Kemp, candidates in the Libertarian Party of Georgia have at times received support from voters. XX. The Libertarian Party’s Platform and Policy Positions
210. The Libertarian Party’s platform and position on contemporary issues reflect policy preferences that are distinct from those of the Democratic and Republican parties. (Ex. 18: Sarwark decl. ¶ 11.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
211. The Libertarian Party has adopted a national platform emphasizing personal liberty, economic liberty, balanced budgets, and national defense. The party has also taken policy positions on a number of contemporary issues. (Ex. 18: Sarwark decl. ¶¶9-10.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
212. On some contemporary issues, the Libertarian Party takes policy positions that are different from those offered by either the Democratic or the Republican party. For example, the Libertarian Party platform favors the repeal of laws creating victimless crimes, such as gambling, the use of drugs for medicinal
95

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 96 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 96 of 111
or recreational purposes, and consensual transactions for sexual services. The Party supports abolishing the Internal Revenue Service and phasing out the Social Security system. (Ex. 18: Sarwark decl. ¶ 12.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
213. On other contemporary issues, the Libertarian Party takes policy positions that align with those offered by the Democratic or Republican parties. For example, the Libertarian Party supports abolishing the death penalty, a position that the Democratic Party shares. The Libertarian Party also supports the individual right to keep and bear arms under the Second Amendment, a position that the Republican Party shares. (Ex. 18: Sarwark decl. ¶ 13.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
214. Candidates nominated by the Libertarian Party of Georgia have run on the party’s national platform in addition to emphasizing unique or local campaign issues. (Ex. 3: Buckley decl. ¶ 11; Ex. 5: Cowen decl. ¶ 9; Ex. 8: Gilmer decl. ¶¶ 19-20.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
96

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 97 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 97 of 111
XXI. The National Impact of Georgia’s Ballot-Access Restrictions 215. The national Libertarian Party has identified a set of Libertarian
policy issues that a plurality of Americans supports, which the Republican and Democratic parties are not addressing. The national Libertarian Party would like to run a coordinated nationwide electoral campaign, pursuant to which Libertarian candidates for U.S. House in all 50 states and the District of Columbia will focus on promoting those policy issues. (Ex. 18: Sarwark decl. ¶ 27.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
216. In 1994, the Republican Party ran a coordinated nationwide campaign based on the “Contract with America.” Rather than campaign independently within each district, Republican candidates rallied behind the national message crafted by then-congressman Newt Gingrich. As part of that campaign strategy, the Republican Party attempted to run candidates in every congressional district in America, including districts in which they were almost certain to lose. The party succeeded in fielding candidates for more than 90 percent of the available seats and went on to win control of both houses of Congress in the 1994 election. (Ex. 18: Sarwark decl. ¶ 28; Ex. 33: Answer ¶ 137.)
97

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 98 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 98 of 111
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
217. Leading up to the 1994 campaign, the Georgia Republican Party waged a similar party-building campaign in Georgia. It ran a full slate of candidates for U.S. Representative in Georgia in 1990, 1992, and 1994. (Ex. 33: Answer ¶ 138.)
Response: Admitted. 218. Similarly, with coordination and support from the national Libertarian Party, Libertarian candidates for the U.S. House can run in all 50 states and the District of Columbia on a unified platform that presents the Libertarian Party as a viable alternative to the Republican and Democratic parties. That coordinated strategy and messaging will support Libertarian candidates for U.S. Representative and promote the party as a whole. (Ex. 9: Graham decl. ¶ 22; Ex. 18: Sarwark decl. ¶ 29.) Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement. 219. The exclusion of Libertarian candidates for U.S. Representative from the ballot in Georgia harms our coordinated national electoral strategy and prevents
98

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 99 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 99 of 111

us from presenting the Libertarian Party as a viable alternative for all voters

nationwide. (Ex. 9: Graham decl. ¶ 23; Ex. 18: Sarwark decl. ¶ 30.)

Response: Defendant objects to this statement as argumentative and not

supported by admissible evidence. Defendant further objects to the cited testimony

as inadmissible opinion testimony by lay witnesses.

220. Georgia’s ballot-access restrictions thereby have a ripple-effect across

the nation. (Ex. 18: Sarwark decl. ¶ 31.)

Response: Defendant objects to this statement as argumentative and not

supported by admissible evidence. Defendant further objects to the cited testimony

as inadmissible opinion testimony by a lay witness.

XXII.

Uncontested Congressional Elections in Georgia

221. Georgia’s elections for U.S. Representative are among the most

uncompetitive in the nation. (Ex. 22: Winger decl. ¶¶ 21-22.)

Response: Defendant objects to this statement as argumentative and a

conclusory allegation not supported by admissible evidence. Defendant admits

only that the evidence shows Georgia often has several uncontested general

elections.

222. In the three election cycles from 2012 through 2016, Georgia has had

15 unopposed races for U.S. Representative—more than any other state in the

99

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 100 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 100 of 111
nation. That number represents almost 36 percent of its races for U.S. Representative over that period, which is a greater share than any other state in the nation except Massachusetts. (Ex. 22: Winger decl. ¶ 23; Ex. 33: Answer ¶ 118) See Federal Election Commission, Federal Elections 2016 at 89-184 (2017); Federal Election Commission, Federal Elections 2014 at 33-125 (2015); Federal Election Commission, Federal Elections 2012 at 77-177(2013).
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute the cited reports from the Federal Election Commission.
223. In 2016, the winning candidate ran unopposed in the general election in five (35.7%) of Georgia’s 14 congressional districts: the First, Ninth, Tenth, Thirteenth, and Fourteenth. No other state had more than four unopposed races for U.S. Representative in 2016, and only two states, Alabama (42.8%) and Massachusetts (44.4%), had a greater share of their races for U.S. Representative unopposed. (Ex. 22: Winger decl. ¶ 24; Ex. 33: Answer ¶ 119.) See Federal Election Commission, Federal Elections 2016 at 89-184 (2017).
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
100

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 101 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 101 of 111
224. In 2014, the winning candidate ran unopposed in the general election in seven (50.0%) of Georgia’s 14 congressional districts: the Third, Fourth, Fifth, Eighth, Eleventh, Thirteenth, and Fourteenth. No other state had more than six unopposed races for U.S. Representative in 2014, and only one state, Massachusetts (66.7%), had a greater share of its races for U.S. Representative unopposed. (Ex. 22: Winger decl. ¶ 25; Ex. 33: Answer ¶ 120.) See Federal Election Commission, Federal Elections 2014 at 33-125 (2015).
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
225. In 2012, the winning candidate ran unopposed in the general election in three (21.4%) of Georgia’s 14 congressional districts: the Third, Eighth, and Tenth. No other state had more than two unopposed races for U.S. Representative in 2012, and only two states, Kansas (25%) and Massachusetts (22.2%), had a greater share of their races for U.S. Representative unopposed. (Ex. 22: Winger decl. ¶ 26; Ex. 33: Answer ¶ 121.) See Federal Election Commission, Federal Elections 2012 at 77-177 (2013).
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
101

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 102 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 102 of 111
XXIII. Special Elections for U.S. Representative in Georgia 226. Georgia uses a different set of ballot-access rules in special elections
to fill vacancies in the office of U.S. Representative. (Ex. 27: First Admissions ¶ 20.)
Response: Admitted. 227. Those rules do not distinguish between candidates affiliated with a political party, candidates affiliated with a political body, and independent candidates. (Ex. 27: First Admissions ¶ 21.) Response: Admitted. 228. In order to appear on the ballot in a special election for U.S. Representative, each candidate must submit a notice of candidacy and the qualifying fee by the date specified for that election. No nomination petition is required. Every candidate who submits a notice of candidacy and qualifying fee, and who otherwise meets the qualifications for the office, appears automatically on the special-election ballot. (Ex. 27: First Admissions ¶ 22.) Response: Admitted. 229. In the last 50 years, Georgia has held six special elections to fill a vacancy in the office of U.S. Representative. In 2017, Georgia held a special election in the Sixth Congressional District. In 2010, Georgia held a special
102

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 103 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 103 of 111
election in the Ninth Congressional District. In 2007, Georgia held a special election in the Tenth Congressional District. In 1999, Georgia held a special election in the Sixth Congressional District. In 1983, Georgia held a special election in the Seventh Congressional District. And, in 1977, Georgia held a special election in the Fifth Congressional District. (Ex. 27: First Admissions ¶ 23.)
Response: Admitted. 230. In each special election for U.S. Representative in Georgia in the last 50 years, at least one independent candidate or candidate affiliated with a political body appeared on the special-election ballot. (Ex. 27: First Admissions ¶ 24.) Response: Admitted. 231. There were two independent candidates on the ballot in the special congressional election held in 2017. (Ex. 37 at 11: election results.) Response: Admitted. 232. There was one independent candidate on the ballot in the special congressional election held in 2010. (Ex. 37 at 30: election results.) Response: Admitted. 233. There was one political-body candidate on the ballot in the special congressional election held in 2007. (Ex. 37 at 35: election results.) Response: Admitted.
103

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 104 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 104 of 111
234. There were “a lot of candidates on the ballot” in the most recent special congressional election, held in 2017, and the Secretary of State’s office is not aware of any widespread reports of voter confusion in that race. (Ex. 23: Harvey dep. 182:13-183:15.)
Response: Admitted. 235. The Secretary of State’s office is not aware of any elections where voters have reported significant amounts of confusion based on the number of candidates on the ballot. (Ex. 23: Harvey dep. 183:16-19.) Response: Admitted. XXIV. Runoff Elections in Georgia 236. Georgia’s ballot-access restrictions are not necessary to reduce the number of run-off elections, especially runoffs in a general election for federal offices. (Ex. 22: Winger decl. ¶ 38.) Response: Disputed. Dr. Stein testified that addition of third party and Independent candidates on the ballot increases the likelihood of a runoff election. Doc. 73-15 at 7 ¶ 23. 237. Run-off elections in contests for U.S. Representative are not required by federal law: Georgia could simply eliminate them. (Ex. 25: Winger dep. 38:10.)
104

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 105 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 105 of 111
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant admits that the United States Constitution allocates the power of state election regulation to the states and not the federal government.
238. Georgia is one of only two states to use runoffs in any general elections. Louisiana is the other. (Ex. 22: Winger decl. ¶ 39.)
Response: Admitted. 239. Runoff elections can be avoided altogether by using ranked-choice voting. (Ex. 22: Winger decl. ¶ 41.) Response: Defendant objects to this statement of fact as not material. Defendant objects further to Winger’s testimony on this subject as he is not qualified to testify as a political scientist. 240. The State of Maine uses ranked-choice voting in general elections to elect U.S. Senators and U.S. Representatives. In 2018, a federal district court upheld the state’s ranked-choice system against a constitutional challenge brought by a losing congressional candidate. The court of appeals denied the candidate’s motion for an emergency injunction against the system, and the candidate later dropped his appeal. (Ex. 29: Second Admissions ¶ 44.)
105

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 106 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 106 of 111
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
241. Five states (Arkansas, Alabama, Louisiana, Mississippi and South Carolina) use ranked-choice voting for overseas voters in runoff elections for federal offices. (Ex. 29: Second Admissions ¶ 45.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
242. The Secretary of State’s office is not aware of any voter confusion in the states where instant runoff voting has been used. (Ex. 23: Harvey dep. 182:47.)
Response: Defendant objects to this statement of fact as it misstates the cited testimony. Harvey testified that instant runoff voting “can be very confusing to voters and that it could cause voters to spoil their ballot or mis-vote their ballot or not get their choices in a run-off done properly.” See Ex. 23: Harvey Dep. at 181:15-24.
243. Runoffs in general elections for federal office are rare. Georgia has had only two general runoffs for the United States Senate since 1988, when the Libertarian Party became qualified to nominate candidates for U.S. Senator without a petition. (Ex. 22: Winger decl. ¶ 40.)
106

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 107 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 107 of 111
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
244. The Secretary of State’s office has not quantified the expense to the State of holding a runoff election. (Ex. 23: Harvey dep. 178:12-15.)
Response: Defendant objects to this statement of fact as it misstates the cited testimony. Defendant admits only that the Secretary of State’s office has not quantified the expense of run-off elections that have occurred in statewide races featuring a Libertarian Party candidate.
245. There is no significant marginal cost for having a congressional runoff in addition to a runoff for a statewide race. (Ex. 23: Harvey dep. 179:7-12.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement so long as both run-off elections were held on the same day. Georgia law provides for separate run-offs. See O.C.G.A. § 21-2-501(a)(3) (general election run-off for federal office) and § 21-2-501(a)(4) (general election run-off for state office).
246. In the 2016 election cycle across the country, there were only nine general elections for U.S. Representative out of 435 (2.1 percent) where the winner received less than 50 percent of the vote. (Ex. 25: Winger dep. 38:13- 22.) Among the 370 contests for U.S. Representative where there were more than two
107

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 108 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 108 of 111
candidates on the ballot, there were only eight general elections (2.2 percent) where the winner received less than 50 percent of the vote. (Ex. 25: Winger dep. 40:15-41:7.)
Response: Defendant objects to this statement of fact as not material and irrelevant. Subject to this objection, Defendant does not dispute this statement.
247. The Secretary of State’s office has done no analysis to determine how many additional runoffs would result if the Libertarian Party had ballot access and has no factual support for its claim that allowing the Libertarian Party to have ballot access could conceivably result in more runoffs. (Ex. 23: Harvey dep. 176:21-177:10.)
Response: Defendant objects to this statement of fact as it misstates the cited testimony. Harvey testified that the Secretary of State’s office had not done an analysis to determine whether it would increase the number of run-offs if the Libertarian Party were included in non-statewide races.
248. Georgia has runoff elections in virtually every election cycle because of contested primary elections for political-party candidates. (Ex. 23: Harvey dep. 175:24-175:13, 180:1-4.) Primary runoffs are slightly more expensive than general runoffs. (Ex. 23: Harvey dep. 179:13-25.)
Response: Admitted. 108

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 109 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 109 of 111

40 Capitol Square SW Atlanta, GA 30334 ccorreia@law.ga.gov 404-656-7063 Fax: 404-651-9325

Respectfully submitted,
Christopher M. Carr 112505 Attorney General
Annette M. Cowart 191199 Deputy Attorney General
Russell D. Willard 760280 Senior Assistant Attorney General
/s/Cristina M. Correia Cristina M. Correia 188620 Senior Assistant Attorney General
/s/ Charlene S. McGowan Charlene S. McGowan 697316 Assistant Attorney General
Attorneys for Defendant

109

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 110 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 110 of 111
CERTIFICATE OF COMPLIANCE I hereby certify that the forgoing Defendant’s Response to Plaintiffs’ Statement of Facts was prepared in 14-point Times New Roman in compliance with Local Rules 5.1(C) and 7.1(D).
110

Case 1:20-cv-01312-ELR Document 11-19 Filed 05/08/20 Page 111 of 111
Case 1:17-cv-04660-LMM Document 97 Filed 08/07/19 Page 111 of 111

Certificate of Service I hereby certify that I have electronically filed Defendant Brad Raffensperger’s Response to Plaintiffs’ Statement of Material Facts using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: NONE

This 7th day of August, 2019.

/s/Cristina Correia

Cristina Correia

188620

Senior Assistant Attorney General

111

Case 1:20-cv-01312-ELR Document 11-20 Filed 05/08/20 Page 1 of 4

Case 1:20-cv-01312-ELR Document 11-20 Filed 05/08/20 Page 2 of 4

Case 1:20-cv-01312-ELR Document 11-20 Filed 05/08/20 Page 3 of 4

Case 1:20-cv-01312-ELR Document 11-20 Filed 05/08/20 Page 4 of 4

Case 1:20-cv-01312-ELR Document 11-21 Filed 05/08/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Declaration of Jimmy Cooper

1. My name is James L. Cooper, III. I go by “Jimmy.” 2. I am a registered voter in the State of Georgia, and I meet all of the qualifications for the office of U.S. Representative in Georgia’s Eighth Congressional District. 3. I am 51 years old. 4. I am a member of the Georgia Green Party. 5. I was nominated on February 22, 2020, to be the Georgia Green Party’s candidate for U.S. Representative in Georgia’s Eighth Congressional District.

Case 1:20-cv-01312-ELR Document 11-21 Filed 05/08/20 Page 2 of 5
6. I want to appear on the general-election ballot in 2020 as the nominee of the Georgia Green Party.
7. I have developed an extensive platform, which is available on my website: https://jimmycooperforcongress.com/.
8. Once I earned the Green Party’s nomination, I focused my efforts on raising the money necessary to pay the qualifying fee.
9. I filed my notice of candidacy with the Secretary of State on March 3, 2020, and I paid the qualifying fee on the same day.
10. According to the Secretary of State, I am required to file a nomination petition containing at least 20,719 valid signatures in order to appear on the general-election ballot.
11. I had planned to gather the signatures required for ballot access by coordinating with the Green Party’s presidential candidates. I had been in discussions with the two leading candidates to fund as many as three fulltime petition-circulators in the Eighth District. Those circulators would then gather signatures for the presidential campaigns and for my campaign at the same time. The circulators would also recruit and organize volunteers to assist in the petitioning efforts. Those plans fell though, however, when the public health crises caused by the coronavirus emerged in the middle of March.
2

Case 1:20-cv-01312-ELR Document 11-21 Filed 05/08/20 Page 3 of 5
12. Even now that the governor has partially lifted the shelter-inplace order, I am hesitant to resume petitioning out of concern for my own health and safety and the health and safety of others. Public health officials have expressed concern that Georgia has reopened too soon, and they continue to recommend social-distancing measures. Although I am reasonably young and healthy, I take care of my elderly mother who has a variety of health problems. I also work closely with an individual who has a compromised immune system. I would not want to catch the virus through petitioning efforts and then expose people who are more at risk than I am.
13. This is not my first experience with petitioning. I gathered signatures for the Green Party’s presidential nominee, Jill Stein, in 2016, and I gathered signatures for my own campaign as the Green Party’s nominee for U.S. Representative in 2018.
14. Based on my experience over three election cycles, I don’t think it’s reasonable to expect petitioning to return to normal any time soon. There are basically two ways to petition: go door-to-door or find large crowds of likeminded people. People are not going to open their doors to masked strangers or be willing to share pens and clipboards with them until after the threat of the coronavirus has passed. And there are no crowds anymore even under the governor’s current orders.
3

Case 1:20-cv-01312-ELR Document 11-21 Filed 05/08/20 Page 4 of 5 15. I am hesitant to petition myself under these circumstances, and I don’t think I could get volunteers to petition, either. 16. Under normal circumstances, a single petitioner might gather six to eight signatures per hour, but that is likely to be much less now. And I would need an army of petitioners to have a chance to meet the signature requirement. 17. I believe that, in light of the coronavirus pandemic, it would be impossible for me to gather the required number of signatures to appear on the general-election ballot. As a result, I do not have any reasonable way to obtain ballot access in 2020. 18. I believe that the requirement to pay $5,220 to the Secretary of State of Georgia as a condition to appear on the ballot is a sufficient barrier to ballot access for the purpose of excluding frivolous candidates.
4

Case 1:20-cv-01312-ELR Document 11-21 Filed 05/08/20 Page 5 of 5

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 1 of 6

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 2 of 6

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 3 of 6

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 4 of 6

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 5 of 6

Case 1:20-cv-01312-ELR Document 11-22 Filed 05/08/20 Page 6 of 6

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Declaration of Hugh Esco

1. My name is Hugh Esco. I am a registered voter in Georgia’s Sixth Congressional District.
2. I am a founding member, longtime officer, and current secretary of the Georgia Green Party.
3. The Georgia Green Party filed with the Secretary of State, its governing documents in 1996 and is an accredited members of the Green National Committee, recognized by the Federal Elections Commission as the Green Party of the United States.

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 2 of 7
4. The Georgia Green Party is a political body within the meaning of O.C.G.A. § 21-2-170. The party is registered under O.C.G.A. § 21-2-110(a) and (b).
5. The Georgia Green Party has participated in every presidential election since 1996 and expects to do so again this year. The party is prepared to submit its slate of presidential electors before the June deadline, to pay the qualifying fees, and to meet all of the other qualifications to have its presidential candidate appear on the ballot in the 2020 general election.
6. The Georgia Green Party held a nominating convention in Bonaire Georgia nominating two candidates for Congressional offices on February 22, 2020. At that time, we also provided for 16 individuals to serve as presidential electors for the Green Party’s presidential slate to be nominated by the national party’s Quadrennial Presidential Nominating Convention, July 10th through 12th, 2020, originally planned for Detroit, but now expected to be an online event.
7. The party had planned to begin gathering signatures for its slate of presidential electors shortly thereafter, but the petition form available on the Secretary of State’s website was out of date—it only had space for 15 electors. (Georgia had 15 electors in 2004 and 2008.) I contacted the
2

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 3 of 7
Secretary of State’s office multiple times about the issue, but the office did not post an updated form until March 24, 2020. At that point, the state was already in the throes of the pandemic, and we could not begin petitioning.
8. Over the course of my involvement with the Georgia Green Party, I have coordinated or otherwise been involved with numerous petition drives. I have coordinated or been involved with petition drives for Green Party candidates for President, other statewide offices, U.S. Representative, members of the Georgia General Assembly and candidates for county offices. I have also coordinated or been involved with the Georgia Green Party’s petitions attempting to qualify to nominate candidates for statewide office by convention under O.C.G.A. § 21-2-180. As a result of those petition drives, I have over the years filed tens of thousands of signatures with the Georgia Secretary of State, having personally collected perhaps seven or ten thousand of those signatures, myself.
9. In my experience, without cash to hire full time petition circulators, Georgia’s signature requirements for independent and politicalbody candidates for U.S. Representative are not realistically achievable, even without the challenges of pandemic conditions.
10. The number of signatures required is simply too high to collect in
3

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 4 of 7
the time available, and the time afforded for this activity extends across vast swaths of the calendar when the average voter is not thinking about elections. This is particularly true because the Secretary of State’s office routinely rejects a high proportion of signatures as invalid. In 2016, for example, the Secretary of State rejected nearly half of the signatures collected for the Green Party’s nominee for President, Dr. Jill Stein. Also in 2016, I have been told that the Secretary of State rejected more than half of the signatures collected by independent candidate Rocky De La Fuente. Our efforts to pre-validate signatures against the list of registered voters show that inexperienced circulators rarely do better than a 50% validation rate and that even our most experienced petition circulators rarely top a 70% validation rate. As a result of the low validation rates, in my experience, a party or candidate needs to collect at least double the number of raw signatures as are required.
11. In my view, the sheer burden of collecting tens of thousands of signatures is compounded by at least four additional factors. First is that ‘traditional public fora’ where petitioning has long been Constitutionally protected and used to take place, such as public streets and town squares, have become increasingly privatized into shopping malls and the like.
4

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 5 of 7
Second is that the automobile has insulated voters from circulators. Potential signers drive right past our circulators as they go to park at privatized strip malls and shopping centers, generally inaccessible to our petitioning activities. Third is that concerns about identity theft have made many potential signers wary about sharing their personally identifying information like birth dates and home addresses. And fourth is that petition circulators, even when canvassing legally on public property, are often harassed by police officers and others unaware or unconcerned about the Constitutional right to petition necessary to comply with the law. Green Party petitioners have been harassed repeatedly, given ‘move-along’ orders and ‘criminal tresspass warnings’ by uniformed law enforcement, threatened with arrest and on at least one occasion, arrested, while gathering signatures in public parks, and this makes it very difficult to attract and maintain volunteers willing to serve as circulators.
12. It might be possible for a candidate to meet the requirement with paid petition circulators, but that would take a huge sum of money. Professional petition circulators typically charge $2-$5 per signature collected (with costs escalating as deadlines approach), plus expenses for travel, lodging and incidentals. Based on my experience with paid petition
5

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 6 of 7
circulators, I would estimate that an independent or political-body candidate for U.S. Representative would need more than $75,000, and that number is also not a realistic fundraising goal for the ballot access efforts of a candidate for an emerging political party not beholden to monied corporate interests. Either a candidate would have to have immense personal wealth or the ability to raise that money within the limits of federal campaign finance laws. But I have found that raising money for signature-gathering is very difficult. Donors generally do not want to give money for that purpose. A few election cycles ago, our work to run Cynthia McKinney, who had served six terms in Congress for a come-back bid as a Green were aborted due to her campaign’s inability to raise the cash necessary to overcome the ballot access barriers.
13. At least three Green Party candidates for U.S. Representative have made a genuine effort to satisfy Georgia’s ballot-access requirement but were unsuccessful.
14. I do believe, however, that Georgia’s new signature requirement might be achievable in a normal year. The presidential petitions of Jill Stein and perhaps as well that for Rocky De La Fuente would have been successful but (a) for the Secretary of State’s petition-checking process that invalidates so many signatures, (b) for the resolution of our 2012 ballot access challenge
6

Case 1:20-cv-01312-ELR Document 11-23 Filed 05/08/20 Page 7 of 7

Case 1:20-cv-01312-ELR Document 11-24 Filed 05/08/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Declaration of Joe Reed

1. My name is Joe Reed. I am 62 years old. I am a registered voter in Georgia’s House District 129, and I meet all of the qualifications for the office of State Representative.
2. I am a semi-retired educator. I still teach approximately 15 to 20 hours per week.
3. I am running as an independent candidate for State Representative in Georgia’s House District 129, which includes parts of Butts, Monroe, Jasper, and Jones counties.
4. I am running because I am disgusted with both of the major parties. I have voted for Republicans, Democrats, and Libertarians in the past.

Case 1:20-cv-01312-ELR Document 11-24 Filed 05/08/20 Page 2 of 5
5. I have developed an extensive platform, which is available on my website: https://www.joereed4gastatehouse.com/.
6. I filed my notice of candidacy with the Secretary of State on March 3, 2020, and I paid the qualifying fee on the same day.
7. According to the Secretary of State, I am required to file a nomination petition containing at least 1,710 valid signatures in order to appear on the general-election ballot.
8. Having decided last year that I wanted to run as an independent, I started collecting signatures very early in the 180-day period.
9. I went door-to-door gathering signatures in communities in my district, walking between four and eight miles on each outing. Because I am semi-retired, I spent 15-20 hours per week collecting signatures from January until the first week of March. In total, I was able to gather approximately 1,000 signatures at the rate of 8-10 signatures per hour.
10. After the first week of March, however, the wheels fell off my petitioning campaign. Even before the governor declared a public health emergency, people I solicited would not come to their door at a much greater rate than before the coronavirus pandemic emerged.
11. That led me to try a different strategy. I took out some targeted Facebook ads to publicize planned campaign events in town squares in my district at which I would set up a table and solicit signatures in a central location. Those ads yielded a strong negative reaction, accusing me of endangering public 2

Case 1:20-cv-01312-ELR Document 11-24 Filed 05/08/20 Page 3 of 5
health, on my campaign’s Facebook page. I decided that I would have to cancel those events rather than risk further enflaming my would-be constituents. Since then, I have been unable to gather a single signature.
12. Because of the negative reaction to my Facebook ad, I have not yet resumed petitioning even though it may now be technically legal for me to do so in a limited way as long as I maintain six feet between myself and prospective signers. I am concerned that resuming my petitioning efforts now would upset people in my district who remain anxious about the virus and its effects.
13. In addition, many of the signatures I obtained before the pandemic hit were from the elderly and other people who stay at home during the day. Based on my understanding of the governor’s shelter-in-place orders, it may be unlawful for these kinds of people to open their doors to petitioners like me until at least June 12.
14. If and when I do decide to resume petitioning, I don’t think I’ll be able to gather signatures at the same rate as I was before the pandemic hit. Based on the reactions I’ve received since then, I don’t think petitioning will be back to normal at all this summer.
15. I will certainly try, but, under the circumstances of this pandemic, I don’t think I have a realistic means of obtaining the signatures I need for ballot access.
3

Case 1:20-cv-01312-ELR Document 11-24 Filed 05/08/20 Page 4 of 5

Case 1:20-cv-01312-ELR Document 11-24 Filed 05/08/20 Page 5 of 5
Joe Reed
Running to Represent You in Georgia House District 129 P.O. Box 302. Jackson, GA 30233 770-441-1683 JoeReed4GAStateHouse@gmail.com https://www.facebook.com/joereed4gastatehouse https://www.joereed4gastatehouse.com

The Office of Secretary of State 2 Martin Luther King Jr., Drive 802 West Tower Atlanta, GA 30334

May 2, 2020

Dear Secretary of State Raffensperger,

I can barely imagine the challenges you are facing as an elected official during this pandemic. Preparing for a major election would be a monumental task without the implementation of new equipment and the tremendous health crisis. My request as an Independent candidate for House District 129 is that you work with Governor Kemp to remove the signature requirement for this election for all independent and small party candidates.
I began my efforts to secure more than 1700 signatures in January. Being in rural Georgia I could not sit outside a Walmart asking for signatures. Instead I walked 15-25 miles a week and collected about 1000 signatures over a ten-week span. Then COVID-19 began to have an impact. In the month of March, I collected fewer than 50 signatures. In April, I didn’t collect any. I decided it was too unsettling to knock on someone’s door and ask for a signature. There’s no way to guarantee a safe situation for the resident or for me.
During that time, I know you pushed back the deadline by at least a month. But I have lost two months, and with the elderly and infirm residents being asked to shelter in place until at least mid-June, I will never be certain which door to knock on and which would be a disconcerting intrusion. In addition, no one is predicting that political campaigning will be back to normal during this election cycle and soliciting signatures is much more challenging than just spreading a message.
If you don’t believe that the signature requirement should be removed or, at the very least, severely reduced, I ask that you spend a day walking with me as I attempt to get the signatures required of me by state law. While I believe you’re too busy to do that, I do want you to fully understand the requirement imposed on me and many other candidates.
I wish you the best in these challenging times and I look forward to a prompt response to my request.

Sincerely,

Joe P. Reed Candidate for Georgia House District 129

Case 1:20-cv-01312-ELR Document 11-25 Filed 05/08/20 Page 1 of 2

EXHIBIT INDEX

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17

Executive Order 03.14.20.01 Executive Order 03.16.20.01 Executive Order 03.23.20.01 Executive Order 03.26.20.02 Executive Order 04.01.20.01 Executive Order 04.02.20.01 Executive Order 04.08.20.02 Executive Order 04.23.20.02 Executive Order 04.30.20.01 Raffensperger announcement of March 14, 2020 Raffensperger announcement of March 24, 2020 Raffensperger announcement of April 9, 2020 letter from Harvey to Cowen WHO statement WHO director’s remarks Azar determination Presidential Proclamation

1

Case 1:20-cv-01312-ELR Document 11-25 Filed 05/08/20 Page 2 of 2

Exhibit 18
Exhibit 19
Exhibit 20 Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24

Order, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660LMM (N.D. Ga. Sept 23, 2019) (ECF 113)
Def’s Resp. to Pls. Statement of Undisputed Material Facts, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660-LMM (N.D. Ga. Aug. 07, 2019) (ECF 97)
Declaration of Scott Cambers
Declaration of Jimmy Cooper
Declaration of Martin Cowen
Declaration of Hugh Esco
Declaration of Joe Reed

2

 
 Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JAMES L. COOPER, III, an individual, MARTIN COWEN, an individual, and the GEORGIA GREEN PARTY, an unincorporated political body,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State,
Defendant.

* * * Civil Action No. * 1:20-cv-1312-ELR * * * * * * * * * * *

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Defendant Brad Raffensperger, Georgia Secretary of State (“the Secretary”),

responds to Plaintiffs’ Motion for Preliminary Injunction as follows.

INTRODUCTION

Plaintiffs’ lawsuit is the most recent in a series of attempts to overturn

Georgia’s ballot access requirements for political body candidates, this time under

the pretext of the public health emergency due to COVID-19.1 Despite numerous

1 The related case of Cowen, et al. v. Raffensperger, No. 1:17-cv-04660-LMM (N.D. Ga. Sep. 23, 2019) (See Doc. 11-18), also involving Plaintiff Martin Cowen,
1

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 2 of 32
attempts to have Georgia’s petition requirements enjoined, however, courts repeatedly have upheld the requirements as constitutional. See, e.g., Jenness v. Fortson, 403 U.S. 431 (1971); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002); Coffield v. Handel, 599 F.3d 1276 (11th Cir. 2010).
Based on this controlling precedent, the Court’s determination of Plaintiffs’ request for injunctive relief must start with the assumption that Georgia’s petition requirements are facially constitutional. The only issue to be determined, then, is whether the intervening public health emergency caused by COVID-19 requires the Court to enjoin the state’s otherwise constitutional petition requirements in their entirety. Plaintiffs have not demonstrated that such extraordinary relief is warranted.
To be sure, the COVID-19 outbreak has presented a challenge for election officials, candidates, and voters alike. However, to alleviate these burdens, the Secretary extended the deadline an extra 31 days for political bodies and their candidates to submit nomination petitions. This extension gives aspiring candidates a total of 7 months to conduct a signature campaign. With this amount of time, Plaintiffs cannot show that Georgia’s petition requirements, even in the context of the current public health emergency, impose a severe burden on their constitutional
is currently on appeal to the Eleventh Circuit Court of Appeals following a grant of summary judgment in favor of the Secretary of State.
2

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 3 of 32
rights that outweighs the State’s recognized interest in requiring that candidates show a “significant modicum of support” as a pre-condition for ballot access. See Jenness, 403 U.S. at 442.
For these reasons, and those discussed further below, the Secretary respectfully requests that the Court deny Plaintiffs’ motion to enjoin Georgia’s petition requirements for political body candidates in their entirety. Alternatively, the Secretary asks that the Court fashion a remedy that reduces the petition signature requirement, for the November 2020 general election only, in proportion with the added burdens associated with COVID-19, taking into account the 31-day extension already granted by the Secretary. Such a remedy would be proportionate with the alleged harm, equitable to all candidates who will be on the ballot in the general election, and consistent with remedies fashioned by courts in similar cases in other states.
FACTUAL BACKGROUND I. Georgia’s Ballot Access Laws
Georgia’s election code provides for ballot access based primarily on a showing of support within the electorate.2 A “political party,” for example, is defined
2 Candidates must also file a notice of candidacy and qualifying fee. O.C.G.A. § 21-2-132(d). The qualifying fee must be paid by all candidates—whether political party, third party, or independent.
3

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 4 of 32
under Georgia law as a political organization whose nominee received at least 20% of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). Based on that substantial showing of support, political parties may obtain ballot access by nominating a candidate via primary election. O.C.G.A. § 21-2-130(1). Currently, only the Republican and Democratic parties meet this definition.
The Green Party and the Libertarian Party are “political bodies” under Georgia law, which is defined as any political organization that does not meet the definition of a “political party.” O.C.G.A. § 21-2-2(23). Political body candidates do not have to win a majority of votes in a primary election or expend resources running a primary campaign to be nominated for the general election ballot. Rather, political body candidates may be nominated at their organization’s convention, and included on the general election ballot by demonstrating voter support in other ways.
For statewide offices, a political body can qualify to have its nominees appear on the general election ballot by submitting a qualifying petition signed by at least 1% of the total number of registered voters at the last general election; or (b) nominating a candidate for statewide office who received votes totaling at least 1%
4

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 5 of 32
of the total number of registered voters at the last general election. O.C.G.A. §§ 212-170(b); 21-2-180.3
For non-statewide offices, including Georgia’s Congressional districts, political body candidates may appear on the general election ballot if they submit a nominating petition signed by 5% of the number of registered voters eligible to vote for that office in the last election. O.C.G.A. § 21-2-170(b).
Finally, O.C.G.A. § 21-2-170(b) provides that political-body candidates for president must submit a nominating petition signed by at least 1% of the total number of registered voters at the last general election. However, that statutory requirement was reduced to 7,500 signatures by court order in 2016, as the result of a prior challenge by the Green Party. See Green Party v. Kemp, 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016) aff’d 674 Fed. Appx. 974 (11th Cir. 2017).
Georgia law places very few restrictions on the signature-gathering process. Candidates have 180 days (six months) to collect signatures. O.C.G.A. § 21-2-
3 In 1988, the Libertarian Party qualified under O.C.G.A. § 21-2-180 to nominate candidates for statewide offices when it submitted a qualifying petition signed by more than 1% of the total number of registered voters in the preceding general election. Since then, the party has retained that qualification in each election cycle by nominating at least one candidate for statewide public office who received votes totaling at least 1% of the total number of registered voters in that election. However, the Libertarian Party is still required to meet the petition requirements for ballot access for non-statewide offices under O.C.G.A. § 21-2-170.
5

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 6 of 32
170(e). Since the nomination petition is due by the second Tuesday in July (this year, July 14), aspiring candidates in 2020 or their political body organizations could have begun gathering signatures as early as mid-January. O.C.G.A. § 21-2-132(e). Candidates are not required to wait until after they receive their party’s nomination to begin gathering signatures. And unlike most states’ more burdensome rules, which often restrict voters from signing more than one petition, the only restriction on signing is that no person may sign the same petition more than once. O.C.G.A. § 21-2-170(c). II. Plaintiffs’ Prior Attempts to Seek Ballot Access.
Plaintiffs are no strangers to Georgia’s ballot access requirements—both individual plaintiffs and the Georgia Green Party have attempted to qualify for the general election ballot in Georgia in the past and have been involved in prior litigation challenging Georgia’s petition requirements.
Mr. Cooper previously attempted to qualify for the general election ballot in 2018 as the Green Party candidate for Georgia’s Eighth Congressional District. (See Doc. 11-19, at 37 ¶ 96.) He attempted a petition drive but only “gathered 171 signatures in January and February 2018 before abandoning his efforts.” (Id.)
Mr. Cowen previously attempted to qualify for the general election ballot in 2018 as the Libertarian Party candidate for Georgia’s Thirteenth Congressional
6

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 7 of 32
District. (See Doc. 11-19, at 35 ¶ 93.) By his own account, he attempted a petition drive over a period of 40 days (out of the permissible 180), but only collected 620 signatures. (Id.)
Mr. Cowen is also the named plaintiff in prior litigation against the Secretary seeking to enjoin Georgia’s petition requirements for political body candidates for U.S. House of Representatives. (See Doc. 11-18 [summary judgment order in Cowen, et al. v. Raffensperger, 1:17-cv-04660].) In that action, Mr. Cowen advanced many of the same arguments made here—namely, that Georgia’s petition requirements present a severe burden on candidates’ voting and associational rights in violation of the First and Fourteenth Amendment. This Court, however, granted summary judgment in favor of the Secretary based upon controlling Supreme Court and Eleventh Circuit precedent upholding the constitutionality of Georgia’s petition requirements. (See id. at 15.) As discussed further below, that precedent is also controlling here.
The Green Party has also sought reduction of Georgia’s petition requirements for presidential candidates in prior litigation. See Green Party, 171 F. Supp. 3d at 1344. In that action, the court reduced the signature requirements to 7,500 for presidential candidates “until the legislature imposes a permanent requirement.” Id. at 1373. However, the legislature has not enacted any such changes to the election
7

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 8 of 32
code since the Green Party decision in 2016. Despite the reduction in the signature requirement, the Green Party still did not qualify a candidate for the ballot in Georgia in the 2016 presidential election. III. The Secretary’s Response to COVID-19 in the 2020 Election Cycle.
On March 14, 2020, following the outbreak of COVID-19, Governor Kemp declared a public health state of emergency in the State of Georgia. (See Doc. 11-6.) On April 2, Governor Kemp issued a temporary “shelter in place order,” which eventually concluded (except as to the most at-risk individuals) by April 23. (See Doc 11-8.) The Governor’s public health state of emergency is currently scheduled to expire on June 12, 2020. (See Doc. 11-9.)
On the same date as the Governor’s declaration of a public health state of emergency, the Secretary began taking significant steps to alleviate the impact of COVID-19 on Georgia’s election process for the 2020 election cycle. First, he postponed Georgia’s presidential preference primary and general primary to June 9. (Harvey Dec. ¶ 8, attached as Exhibit 1). Next, the Secretary mailed absentee ballot request forms to Georgia voters statewide, and implemented social distancing measures in polling places for the primary election. (See Doc. 11-11.)
Finally, and most relevant here, the Secretary sent notice to all third-party and independent candidates who filed a declaration of candidacy and qualifying fee that
8

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 9 of 32
the deadline for submitting nominating petitions would be extended to August 14, 2020. (Harvey Dec. ¶ 12.) This extension increased the signature-gathering period from 180 to 211 days, in order to account for the difficulties candidates would face in gathering signatures due to COVID-19. (Id.)
The August 14 deadline is the longest period of time the deadline can be extended and still allow time for signatures to be verified before the November ballots need to be finalized. (Harvey Dec. ¶ 13.) Georgia’s elections are governed by strict timelines to ensure that military and overseas voters receive ballots in time to vote in each election. (Id. ¶ 9.) Federal law requires absentee ballots to be sent to overseas and military voters no later than 45 days prior to any election. See 52 U.S.C. § 20302(a)(8). Ballots have to be built, proofed, and printed, and then mailed starting at 49 days prior the November 3, 2020 general election in order to meet the 45-day deadline (by September 19, 2020) under federal law to send ballots to military and overseas voters. (Harvey Dec. ¶ 9.)
Once the Secretary of State’s office receives the nomination petitions, the signature pages are sent to the appropriate counties to verify the voters’ identities and signatures. (Harvey Dec. ¶ 13.) This is a time-consuming process, and the August 14 deadline only gives counties approximately two weeks to complete it before they need to begin building the ballots. (Id.) After the signatures on
9

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 10 of 32
nominating petitions are verified, any political body or independent candidates that qualify for the general election will be placed on the general election ballot. (Id. ¶ 14.)
Accordingly, elections officials must have the final candidate names for the general election ballot by August 28, 2020, in order to build and proof ballot databases so that absentee ballots can be printed and sent to overseas and military voters by the federal deadline. (Harvey Dec. ¶ 10.) This is an aggressive schedule for these activities, but achievable. However, any further delay endangers Georgia’s compliance with federal law and the opportunity for military and overseas voters to participate in the November general election. (Id.)
STANDARD OF REVIEW A preliminary injunction in advance of trial is an extraordinary measure. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983); Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). For that reason, plaintiffs have the burden of establishing their entitlement to a preliminary injunction. Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1217 (11th Cir. 2009). In order to prevail on a motion for preliminary injunction, the movant must show: [1] a substantial likelihood of prevailing on the merits; [2] that the plaintiff will suffer irreparable injury unless the injunction issues; [3] that the threatened
10

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 11 of 32
injury to the movant outweighs whatever damages the proposed injunction may cause the opposing party; and [4] the injunction would not be adverse to the public interest. Duke v. Cleland, 954 F.2d 1526, 1529 (11th Cir. 1992); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988).
A preliminary injunction is a drastic remedy “which should not be granted unless the movant clearly carries the burden of persuasion.” Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (11th Cir. 1974). Moreover, in election cases, the burden imposed on plaintiffs is higher still and increases as an election approaches. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). Because Plaintiffs cannot meet any of the preliminary injunction factors here, their motion should be denied.
ARGUMENT I. Plaintiffs are Not Likely to Prevail on the Merits.
Plaintiffs cannot show a substantial likelihood of success on the merits of their claim because long-standing precedent has upheld the constitutionality of Georgia’s nomination petition requirements under similar challenges. See Jenness v. Fortson, 403 U.S. 431 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002); Coffield v. Handel, 599 F.3d 1276 (11th Cir. 2010). Therefore, the Court’s analysis of the Plaintiffs’ claims must
11

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 12 of 32
start with the premise that Georgia’s petition requirements are facially constitutional. To the extent that the intervening public health emergency has impeded Plaintiffs’ petition efforts, those burdens have not been caused by any actions attributable to the Secretary, who has acted within the scope of his authority to alleviate any such burdens. Moreover, any added burdens due to COVID-19 are not outweighed by the State’s important interest in requiring candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot.
A. Georgia’s petition requirements are constitutional under Supreme Court and Eleventh Circuit precedent.
The Supreme Court first upheld Georgia’s 5% signature requirement for nomination petitions for Georgia’s Congressional districts, which are challenged by the individual plaintiffs here, in the Jenness decision. In that case, the Court held that nothing in Georgia’s requirements “abridges the rights of free speech and association secured by the First and Fourteenth Amendments.” 403 U.S. at 440. The Court looked at the burden imposed by the 5% petition requirement and reasoned that, although it is “somewhat higher” than other states, Georgia imposes few restrictions on the signature collection process. Id. at 442. Specifically, voters may sign a petition for more than one candidate; voters are not required to state that they intend to vote for that candidate in the election; and voters who previously voted in a party primary are still eligible to sign a petition. Id. at 438-39. Additionally,
12

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 13 of 32
Georgia law does not fix an unreasonably early filing deadline for candidates and allows them 6 months to conduct a signature-gathering campaign. Id. at 438.
The Court next looked at the state’s interest, acknowledging that there is an “important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, even frustration of the democratic process at the general election.” Id. at 442. Weighing this important interest against the burden imposed by the 5% petition requirement, the Court concluded that any resulting burden was “balanced by the fact that Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes.” Id.
Since Jenness, the Eleventh Circuit also has upheld Georgia’s 5% petition requirement in three separate decisions. See Coffield v. Kemp, 599 F.3d 1276, 1277 (11th Cir. 2010) (upholding dismissal of a challenge to the 5% petition requirement by an independent candidate for Congress because “[t]he pertinent laws of Georgia have not changed materially since the decisions in Jenness and Cartwright”); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002) (finding that the Supreme Court’s reasoning in Jenness “still equally pertains today”); See also McCrary v. Poythress, 638 F.2d 1309, 1312-13 (5th Cir. 1981) (holding based on Jenness that
13

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 14 of 32
Georgia’s 5% petition signature requirement does not violate the First and Fourteenth Amendment). And, as noted above, this Court recently rejected a challenge seeking to enjoin the 5% petition requirement for Congressional candidates in the related action of Cowen, et al. v. Raffensperger, 1:17-cv-04660. (See Doc. 11-18, at 15) (“The Court is bound by the clear rulings of both the Eleventh Circuit and the Supreme Court”).
With respect to the petition requirement for presidential candidates, while the 1% signature requirement required under O.C.G.A. § 21-2-170(b) has been reduced by judicial decision, the Eleventh Circuit reviewed and affirmed that order setting the petition requirement for presidential candidates at 7,500 “until the legislature imposes a permanent requirement.” See Green Party of Georgia v. Kemp, 171 F. Supp. 3d 1340, 1373 (N.D. Ga. 2016), aff’d 674 Fed. App’x 974 (11th Cir. 2017). This judgment necessarily holds that such a requirement is not unconstitutionally burdensome, and balances the rights of political body candidates against the state’s interests. Id. Thus, while this order was based on a judgement that the previous requirement was unduly burdensome, that does not and cannot mean that the imposed remedy (still presently in effect) is constitutionally infirm.
14

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 15 of 32
B. Even under the Anderson-Burdick framework, Georgia’s petition requirements are not unconstitutionally burdensome.
Plaintiffs’ motion completely ignores the Jenness decision, the Eleventh Circuit precedent cited above, and this Court’s recent order in the Cowen case rejecting a related challenge. Instead, Plaintiffs urge this Court to analyze their claim anew under the Anderson-Burdick balancing test. (See Doc. 11, at 23.) Under this test, courts are to employ a flexible standard that weighs the “character and magnitude of the asserted injury” against the state’s asserted interests. Anderson v. Celebreeze, 460 U.S. 780, 789 (1982). Heightened scrutiny should be applied where the injury is greater. See id. But where only “reasonable, nondiscriminatory restrictions” are involved, a state’s regulatory interests are generally sufficient. Id. at 788. See also Burdick v. Takushi, 504 U.S. 428, 434 (1992).
Controlling precedent notwithstanding, even under the Anderson/Burdick framework, Plaintiffs still cannot show that the State has imposed any new burdens on their voting and associational rights under the First and Fourteenth Amendment. As an initial matter, Plaintiffs have not identified any actual “state action” required to assert a claim under Section 1983. Rather, Plaintiff’s alleged burdens have been caused by the COVID-19 virus, which is wholly outside of the state’s control. Furthermore, Plaintiffs cannot show that any burden on their ability to conduct a signature gathering campaign is severe enough to outweigh the state’s significant
15

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 16 of 32
regulatory interests in managing its elections and keeping frivolous candidates off of the ballot.
1. The asserted burden on Plaintiffs’ petition efforts is due to COVID-19 and not the result of restrictions imposed by State election laws or policy.
In order to state a claim under 42 U.S.C. § 1983, Plaintiffs must show “the violation of a right secured by the Constitution and laws of the United States,” and “that the alleged deprivation was committed by a person acting under color of state law.” Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). Accordingly, Plaintiffs are required to point to some statute, regulation, or policy enforced by the Secretary that has interfered with their recognized rights. Plaintiffs have not identified any offensive statutes or regulations other than the existing petition requirements already upheld as constitutional. Instead, Plaintiffs point to the public health risks associated with conducting a signature-gathering campaign as the source of their increased burden. (See Doc. 11, at 26-27).
However, this type of argument was recently rejected in an elections case seeking to require the Secretary to implement a number of changes to Georgia’s election procedures due to COVID-19. This Court dismissed the action based in part on the lack of any state action that burdened the plaintiffs’ voting rights:
The real problem here is COVID-19, which all but the craziest conspiracy theorists would concede is not the result of any act or failure by the government. And that fact is important when weighing the
16

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 17 of 32
Defendants’ management of the election. Specifically, this is not a case in which the state applied its own policy, adopted a rule, or enacted a statute that burdened the right to vote. In other words, this is not Burdick or Takushi, 504 U.S. 428 (1992), or Anderson v. Celebrezze, 460 U.S. 780 (1983). The former involved an Ohio statute that imposed an early filing deadline for independent candidates; the latter involved Hawaii’s state-imposed policy against write-in voting. Here, the underlying burden on the right to vote emanates from a virus, which obviously was not created or imposed by Defendants. While Plaintiffs contend the Defendants have done a poor job of responding to that virus, the fact that the virus’s provenance was not through Defendants further increases, in this Court’s opinion, the impropriety of judicial intervention. All of the election cases cited by Plaintiffs in which injunctive relief was granted involved a burden on the right to vote that was created by the Government. Not so here.
Coalition for Good Governance, et al. v. Raffensperger, et al., Civil Action No. 1:20-
cv-01677-TCB, slip op. at * 10 n. 2 (N.D. Ga. May 14, 2020) (emphasis added).4
As correctly noted in that decision, the Anderson-Burdick analysis has not
been applied outside the context of specific state action, and Plaintiffs have not cited
to any cases holding otherwise. This is fatal to Plaintiffs’ Section 1983 claim, and
warrants denial of Plaintiffs’ motion.
2. Georgia’s petition requirements do not impose a severe burden on candidates, and the Secretary has taken steps to mitigate any additional burdens imposed on Plaintiffs due to COVID-19.
Even if Plaintiffs could point to some state action that has imposed new
burdens on their First and Fourteenth Amendment rights, Plaintiffs still must
4 The Coalition slip opinion is attached as Exhibit 2. 17

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 18 of 32
demonstrate under Anderson-Burdick that the petition requirements impose a burden that is outweighed by the State’s interests. Plaintiffs cannot make this showing.
In assessing the severity of the burden imposed by Georgia’s petition requirements under the Anderson-Burdick framework, the Court’s analysis must start with the recognition that the Supreme Court and the Eleventh Circuit have held that Georgia’s petition requirements do not present a severe burden and are not subject to heightened scrutiny. See, e.g., Jenness, 403 U.S. at 442; Anderson, 460 U.S. at 788 (citing Georgia’s petition requirements as an example of “reasonable, nondiscriminatory restrictions” that are justified by the “state’s important regulatory interests”); McCrary, 638 F.2d at 1312-13.
Indeed, the Supreme Court has expressly rejected Plaintiffs’ argument that petition requirements such as Georgia’s are subject to strict scrutiny. Noting that “[e]lection laws will invariably impose some burden upon individual voters,” the Court in Burdick rejected the argument that “a law that imposes any burden on the right to vote must be subject to strict scrutiny.” 504 U.S. at 433. Such a result “would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Id.
Accordingly, relying on Jenness, Anderson, and Burdick, the Eleventh Circuit and other courts consistently have held that state petition requirements for ballot
18

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 19 of 32
access are reasonable, non-discriminatory restrictions that impose minimal burdens on the rights of candidates, and are justified by a state’s regulatory interests. See, e.g., Libertarian Party of Fla. v. Florida, 710 F.2d 790, 793 (11th Cir. 1983) (upholding Florida’s 3% petition requirement and declining to apply a heightened level of scrutiny); Swanson v Worley, 490 F.3d 894, 903-904 (11th Cir. 2007) (upholding Alabama’s 3% petition requirement); Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085, 1093 (9th Cir. 2019) (holding that a state can allow signature requirements of up to 5% without imposing a “severe burden” triggering heightened scrutiny); Libertarian Party of N.H. v. Gardner, 843 F.3d 20, 26 (1st Cir. 2016) (“Neither the Supreme Court nor any circuit court has struck down a statewide ballot-access regime on the grounds that a signature requirement of 5% (or less) is too much, or that 6 months (or more) is too little time within which to gather the signatures from a pool of substantially all voters.”); Rainbow Coalition of Okla. v. Okla. State Election Bd., 844 F.2d 740, 743 (10th Cir. 1988) (rejecting the argument that strict scrutiny should be applied in upholding Oklahoma’s 5% petition requirement for party status).
Plaintiffs cite a number of recent decisions in which other courts have found that, due to COVID-19, state petition requirements should be analyzed with a heightened level of scrutiny. However, in all of those cases, the petition deadlines
19

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 20 of 32
fell during or shortly after state-imposed shelter-in-place orders, where the signature-gathering process would have been more severely burdened. See, e.g, Faulkner v. Virginia Dep’t of Elections et al., No.: CL 20-1456, slip op. at 2 (Va. Cir. Mar. 27, 2020) (deadline fell less than two weeks after state of emergency was declared); Warren v. Griswold, No. 20CV31077, slip op. at 1 (Colo. Dist. Ct. Apr. 21, 2020) (deadline fell 7 days after state of emergency declared);5 Garbett v. Herbert, No. 2:20-cv-245, 2020 U.S. Dist. LEXIS 75853 at *5-7 (D. Utah Apr. 29, 2020) (deadline fell during “stay at home” order which had been in place for two weeks, and a state of emergency in place for a month); Esshaki v. Whitmer, No. 2:20CV-10831-TGB, 2020 U.S. Dist. LEXIS 68254 at *2 (E.D. Mich. Apr. 20, 2020) (deadline fell during stay-at-home order that had been in place for a month); see also Goldstein v. Secretary of the Commonwealth, 142 N.E.3d 560, 568 (Mass. 2020) (deadline would fall during the “stay-at-home advisory” that had been in place for more than a month, and state of emergency in place for roughly two months); Libertarian Part of Ill v. Pritzker, No. 20-CV-2112, 2020 U.S. Dist. LEXIS 71563 at *4 (N.D. Ill. Apr. 23, 2020) (although the petition deadline fell in June, the
5 The Faulkner slip opinion is attached as Exhibit 3. The Warren slip opinion is attached as Exhibit 4.
20

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 21 of 32
window for gathering signatures opened at nearly the same time as the state’s “stay at home” order took effect and duration of order was unclear).
This is not the case here in Georgia. At most, Plaintiffs can point to the Governor’s shelter-in-place order that was effective during the month of April as a time in which the government imposed additional burdens on Plaintiffs’ ability to conduct a signature-gathering campaign. However, the Secretary has already increased the deadline for submitting nomination petitions by 31 days to account for this—more than the time the shelter-in-place order was in effect.
To be sure, the Secretary is not claiming that Plaintiffs should have jeopardized their health or the health and safety of others by conducting a public signature-gathering campaign between mid-March and April. However, the state has been in the process of reopening throughout the month of May, and there is still significant time remaining to gather the required signatures. Georgia designed a ballot access system permitting one of the longest signature gathering periods (if not the longest) in the nation. In this way, Georgia’s system builds in ample time for political bodies to gather signatures, providing a cushion in case andidates lose days or weeks to unforeseen circumstances. While COVID-19 is certainly unprecedented, Georgia’s signature-gathering period (even before the Secretary extended the
21

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 22 of 32
deadline and added days) is long enough to account for at least some days, or even weeks, lost.
Additional facts ameliorate the burden here or cast doubt on its severity going forward:
 Nearly two months of the original 180-day period (mid-January through midMarch) were unaffected by COVID-19 or any state related action.
 The Secretary’s decision to extend the deadline to August 14 increased the total number of days from 180 to 211 during which candidates may gather signatures.
 As of the beginning of May, the Governor’s shelter-in-place order is no longer in effect for most voters.
 Early voting for the primary is underway and voters will be voting at polling locations for the June 9th primary, where candidates can collect signatures as they previously intended (see Doc. 11-22, at 3), within legally permissible limits.
Thus, while the petition requirements may be more burdensome under the present circumstances than in the usual case, the somewhat condensed time period to meet the required numbers does not present the “severe” burden requiring a heightened level of scrutiny as Plaintiffs contend.
22

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 23 of 32
3. The State still has an overriding interest in requiring candidates to make a preliminary showing of a significant modicum of support before placing their names on the ballot.
Even acknowledging that there are some additional burdens placed on Plaintiffs’ ability here to meet the petition signature requirements (due to a virus entirely outside of the State’s control), those burdens must be weighed against the State’s “undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with frivolous candidates.” Anderson, 460 U.S. at 788 n. 9. See also Jenness, 403 U.S. at 442 (“There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”); Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000) ( “in order to avoid burdening the general election ballot with frivolous candidacies, a State may require parties to demonstrate ‘a significant modicum of support’ before allowing their candidates a place on that ballot.”).
The State furthermore has a generalized interest in the orderly administration of elections. See Storer v. Brown, 415 U.S. 724, 730 (1974) (“as a practical matter,
23

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 24 of 32
there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process”).
These legitimate state interests have not become any less compelling due to COVID-19. The Secretary has already extended both the deadline for Plaintiffs to submit their nomination petitions and the total petitioning days allowed to account for any time lost during the Governor’s shelter-in-place order. However, the state has strong interests in maintaining the previously-upheld petition requirements “in order to avoid burdening the general election ballot with frivolous candidates.” Jones, 530 U.S. at 572. To permit Plaintiffs to be placed on the ballot without making any showing of a “modicum of support” among the electorate would severely undermine the state’s interests and introduce confusion and chaos into the general election process.
In sum, based on controlling precedent upholding the constitutionality of Georgia’s petition requirements, and assessing any new burdens associated with COVID-19 under the Anderson-Burdick framework, Plaintiffs cannot show a likelihood of success on the merits.
24

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 25 of 32
II. Plaintiffs Have Not Shown Irreparable Harm. To succeed under the second preliminary injunction factor, Plaintiffs must
show “a substantial likelihood of irreparable injury” absent a preliminary injunction. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). As the Eleventh Circuit has emphasized, the asserted irreparable injury “must be neither remote nor speculative, but actual and imminent.” NE Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990). Here, Plaintiffs have not shown how their asserted rights will be irreparably harmed absent injunctive relief, other than a vague assertion that they will lose the opportunity to be candidates and voters will not have the opportunity to vote for them. (Doc. 11, at 30-31.)
However, it remains entirely speculative the Plaintiffs will not be able to meet the petition requirements with the extended deadline of August 14. Plaintiffs still have over two months (11 weeks) to gather signatures. In past efforts to gain ballot access, the individual plaintiffs admit that their signature-gathering campaigns were conducted over a much shorter period of time. (See Doc. 11-19, at 37 ¶ 96; Doc. 1119, at 35 ¶ 93.) And although they fell far short of meeting the petition requirement in the prior election cycle, this is likely a reflection of the level of support they have among voters in their respective districts.
25

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 26 of 32
But even knowing that the petition requirements would require significant time and effort based on past experience, Plaintiffs failed to gather any signatures during the first two months of the 180-day period, from mid-January until the public health state of emergency declaration on March 14. Any resulting harm is therefore, at least in part, caused by Plaintiffs’ own lack of reasonable diligence. See Libertarian Party of Florida v. Florida, 710 F.2d 790, 793 (11th Cir. 1983) (stating that the “focal point of this inquiry is whether a reasonably diligent candidate can be expected to satisfy the signature requirements”) (citation omitted). Accordingly, Plaintiffs cannot establish that they will suffer irreparable harm, and this factor weighs against granting injunctive relief. III. The Balance of Equities and Public Interest Favors the Enforcement of
Georgia’s Ballot Access Requirements. Courts in this district have considered the remaining two factors, balancing the equities and public interest, together in election cases. See Curling v. Kemp, 334 F. Supp. 3d 1303, 1326 (N.D. Ga. 2018). Both of these factors clearly weigh in favor of the Secretary. Because States are “primarily responsible for regulating federal, state, and local elections,” they have a “strong interest in their ability to enforce state election law requirements.” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 244 (6th Cir. 2011). See also Esshaki, 2020 U.S. Dist. LEXIS 68254 at *26 (“The Supreme
26

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 27 of 32
Court has consistently recognized that states have a strong interest in seeing their laws effectuated.”) For this reason, the Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S.Ct. 1205, 1207 (April 6, 2020) (per curiam) (citations omitted).
As this Court has recently noted, there is “a public interest in the Court promoting certainty with elections and not entering orders that create ‘voter confusion and consequent incentive to remain away from the polls.’” Gwinnett Cty. NAACP v. Gwinnett Cty. Bd. of Registration & Elections, No. 1-20-cv-00912-SDG, 2020 U.S. Dist. LEXIS 36702 at *28-29 (N.D. Ga. Mar. 3, 2020). Here, ballot access requirements serve the state’s recognized interests in “in avoiding confusion, deception, and even frustration of the democratic process.” Jenness, 403 U.S. at 442. Accordingly, the public interest weighs against enjoining the State’s petition requirements. IV. Plaintiffs’ Proposed Remedy Seeks to Eliminate All Requirements for
Ballot Access for Political Body Candidates. As shown above, Plaintiffs’ motion for a preliminary injunction should be denied because Plaintiffs failed to meet the requisite showing that the requested relief is warranted.
27

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 28 of 32
Alternatively, the Secretary requests that the Court partially grant Plaintiffs’ motion and fashion a remedy that reduces the petition signature requirements of O.C.G.A. § 21-2-170(b), for the November 2020 general election only, by 30%. Such a remedy is appropriate for several reasons. First, it is proportionate to the asserted harm, and a 30% reduction would account for the approximately 60 days under which the State was under a declaration of a public health emergency (as currently set by the Governor’s executive orders). That Plaintiffs ask the Court to eliminate the petition requirements entirely suggests that their motion is less about the health risks associated with COVID-19 and more about eliminating any and all restrictions to ballot access by third-party candidates.
Second, the proposed 30% reduction would be equitable to all candidates who will be on the ballot in the general election, while still respecting the State’s interest in regulating ballot access. Plaintiffs seek to run candidates in contested Congressional districts, where members of both political parties will be nominated through a primary process. The political party candidates have faced the same burdens associated with campaigning during the current public health emergency, and still must undergo the statutory process of nomination through a primary election. It would be fundamentally inequitable for the State to maintain statutory
28

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 29 of 32
requirements for ballot access for one set of candidates, while waiving the statutory requirements entirely for Plaintiffs.
Third, the proposed reduction is consistent with remedies fashioned by courts in similar cases in other states, which have reduced—rather than eliminated—the challenged petition requirements. See, e.g., Faulkner, slip op. at 4 (reducing petition requirement for Republican candidate for U.S. Senate from 10,000 to 3,500 signatures); Warren, slip op. at 25 (reducing signature requirement by 50%); Garbett, 2020 U.S. Dist. LEXIS 75853 at *5-7 (reducing signature requirement by 32% to account for 33 lost days of petitioning); Goldstein, 142 N.E.3d at 575 (reducing signature requirement by 50%). This alternative remedy appropriately balances the burdens associated with COVID-19 and the State’s interest in conditioning ballot access upon a showing of a significant modicum of voter support, unlike the Plaintiffs’ proposed injunction, which would effectively eliminate all requirements for ballot access.
CONCLUSION For the foregoing reasons, the Secretary respectfully requests that the Plaintiffs’ motion for preliminary injunction be denied, or granted in part with a 30% reduction of the petition requirements set forth in O.C.G.A. § 21-2-170, as outlined above.
29

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 30 of 32

Respectfully submitted, this 29th day of May, 2020.

CHRISTOPHER M. CARR

Attorney General

112505

BRYAN K. WEBB Deputy Attorney General

743580

RUSSELL D. WILLARD 760280 Senior Assistant Attorney General
/s/ Charlene S. McGowan CHARLENE S. MCGOWAN 697316 Assistant Attorney General

Office of the Georgia Attorney General 40 Capitol Square SW Atlanta, GA 30334 cmcgowan@law.ga.gov Tel: 404-656-3389

Counsel for Defendant

30

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 31 of 32
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing has been formatted using Times New Roman font in 14-point type in compliance with Local Rule 7.1(D).
/s/Charlene S. McGowan Charlene S. McGowan Assistant Attorney General
31

Case 1:20-cv-01312-ELR Document 17 Filed 05/29/20 Page 32 of 32
CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing DEFENDANT’S RESPONSE IN OPPOSTION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel for Plaintiffs via electronic notification:
Bryan L. Sells bryan@bryansellslaw.com Dated: May 29, 2020.
/s/ Charlene S. McGowan Charlene S. McGowan Assistant Attorney General
32

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 1 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 2 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 3 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 4 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 5 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 6 of 7

Case 1:20-cv-01312-ELR Document 17-1 Filed 05/29/20 Page 7 of 7

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 1 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 2 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 3 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 4 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 5 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 6 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 7 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 8 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 9 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 10 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 11 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 12 of 13

Case 1:20-cv-01312-ELR Document 17-2 Filed 05/29/20 Page 13 of 13

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 1 of 6

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 2 of 6

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 3 of 6

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 4 of 6

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 5 of 6

Case 1:20-cv-01312-ELR Document 17-3 Filed 05/29/20 Page 6 of 6

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 1 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 2 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 3 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 4 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 5 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 6 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 7 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 8 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 9 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 10 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 11 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 12 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 13 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 14 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 15 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 16 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 17 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 18 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 19 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 20 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 21 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 22 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 23 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 24 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 25 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 26 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 27 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 28 of 29

Case 1:20-cv-01312-ELR Document 17-4 Filed 05/29/20 Page 29 of 29

 
 Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Plaintiffs’ Reply in Support of their Motion for a Preliminary Injunction

On May 28, 2020—one day before the Secretary of State filed his opposition to this motion—Georgia’s Governor Brian Kemp extended the public health emergency due to COVID-19 through Sunday, July 12. (Ex. 25: Exec. Order 05.28.20.01 at 2.)1 Gatherings of more than 25 people are prohibited. (Ex. 26: Exec. Order 05.28.20.02 at 2.) Social distancing is required by law, and face masks are “strongly encouraged.” (Id.) The
1 The Secretary’s brief erroneously asserts that the public health emergency will expire on June 12. (Def’s Resp. Opp. Pls.’ Mot. Prelim. Inj., ECF 17, at 8 (hereinafter “Def’s Br.”).)

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 2 of 25
shelter-in-place and no-visitors requirements for high-risk individuals and those over 65 remain in place. (Id. at 5-7.)
The Secretary, however, mentions none of this in his brief. Instead, he accuses the plaintiffs of using the pandemic as a pretext for challenging Georgia’s ballot-access restrictions, and he dismisses the plaintiffs’ concerns about the virus as a lack of diligence. (Def’s Br. at 26.) His response puts partisan politics above the public health.
The Secretary’s response also puts politics above the Constitution. The First Amendment requires the Secretary to ensure that the plaintiffs have a reasonable opportunity to qualify for the ballot without endangering their own lives and the lives of others. The Secretary’s arguments to the contrary rest on several misstatements of fact and have no legal merit.
I. The Secretary of State’s response relies on allegations of fact that are not true. The Secretary’s response brief does not dispute any of the facts
laid out in the plaintiffs’ motion. He does not dispute, for example, that it has been and remains unlawful for plaintiff Martin Cowen to petition for signatures due to Governor Kemp’s shelter-in-place orders. He does
2

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 3 of 25
not dispute that it has been and remains unlawful for many potential signers to open their doors to petitioners because of those same orders. He does not dispute that the form needed by plaintiff Georgia Green Party was not available until March 24, well after Governor Kemp declared a public health emergency. He does not dispute that COVID-19 is likely to have an impact on signature-gathering even after the public health emergency subsides. And so on.
The Secretary’s brief does, however, make several new allegations of fact that are not accurate. Most importantly, the brief alleges that the Secretary’s extension of the qualifying deadline by 31 days extended the petition period from 180 to 211 days. (Def’s Br. at 2, 9, 22.) It did not. The Secretary’s only support for that proposition is paragraph 12 of Elections Director Chris Harvey’s declaration (ECF 17-1), but that paragraph does not say anything about the petition period. Harvey’s letter to plaintiff Cowen informing him of the extended deadline (ECF 11-13) also says nothing about the petition period. The 180-day petition period is a statutory requirement, see O.C.G.A. § 21-2-170(e), and the Secretary’s limited authority under O.C.G.A. § 21-2-50.1 to extend the qualifying period for certain offices does not give him authority to extend
3

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 4 of 25
the statutory petition window. (See also Answer ¶33, ECF 14.) The Secretary’s order extending the qualifying deadline thus had the effect of invalidating signatures gathered during the first 31 days of the petitioning period, and that is why the complaint asks this Court to extend the petitioning period as part of the relief requested. (Compl. at 19, ECF 1.)
Second, the Secretary’s brief alleges that most other states have more burdensome petitioning rules which “often restrict voters from signing more than one petition.” (Def’s Br. at 6.) The Secretary cites no support for this allegation, and it is simply not true. The vast majority of states do not restrict voters from signing more than one petition, and only 12 states do. (Ex. 27: Winger decl. ¶10.) And, while it is not entirely clear whether the Secretary has other rules in mind when he says “most states’ more burdensome rules” (Def’s Br. at 6), there are only two states other than the 12 states that restrict voters from signing more than one petition that have petitioning rules that are even arguably more burdensome than Georgia’s. (Ex. 27: Winger decl. ¶11.) Fourteen states with petitioning rules that are arguably more burdensome than Georgia’s does not equal “most states.”
4

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 5 of 25
Third, the Secretary’s brief alleges that Georgia has “one of the longest signature gathering periods (if not the longest) in the nation.” (Def’s Br. at 21.) Again, the Secretary cites no support for the allegation, and it is simply not true. Most states give candidates an unlimited amount of time to gather signatures. (Ex. 27: Winger decl. ¶15.) A few states have longer petition periods, and fewer than 10 states have shorter petition periods. (Id.) But among those states with shorter petition periods, no state requires a candidate to gather nearly as many signatures as Georgia does. (Id.)
Why are these factual inaccuracies important? Because they are the main facts the Secretary relies on to support his argument that the burdens imposed by Georgia’s ballot-access scheme are not severe and therefore do not warrant strict scrutiny. And they are all wrong.
II. The Secretary of State’s reliance on the district court’s order in Cowen v. Raffensperger is misplaced. The Secretary first argues that previous cases which have upheld
Georgia’s petition requirements, including Jenness v. Fortson, 403 U.S. 431 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002); and Coffield v.
5

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 6 of 25
Handel, 599 F.3d 1276 (11th Cir. 2010), mean that Georgia’s petition requirements are necessarily constitutional now. (Def’s Br. at 12-14.) The argument relies on the district court’s ruling in Cowen v. Raffensperger, No. 1:17-cv-04660-LMM (N.D. Ga. Sept. 23, 2019) (ECF 11-18), which held that those cases were binding and controlled the outcome of the case challenging Georgia’s petition requirements for political-body candidates for U.S. Representative. But the Secretary’s reliance on those cases is misplaced for at least two reasons.
First, none of those cases took place in the context of a global pandemic caused by a highly communicable infectious disease. The fact of COVID-19 constitutes a material difference between this case and all of those, and it means that those cases are not binding in this context. See United States v. Johnson, 921 F.3d 991, 1003 (11th Cir. 2019) (en banc) (“As binding authority, a judicial decision is inherently limited to the facts of the case then before the court and the questions presented to the court in the light of those facts.”) (cleaned up).
Second, the Eleventh Circuit has reversed the Cowen decision in a unanimous, published opinion issued just seven workdays after oral argument. See Cowen v. Ga. Sec’y of State, ___ F.3d ___, 2020 WL
6

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 7 of 25
2896354 (11th Cir. June 3, 2020). The opinion makes clear that those cases did not control the outcome of that case and that the district court committed reversible error when it determined that they did. Id. at *4. The opinion also holds that district courts facing ballot-access challenges like this one must apply the multi-factorial balancing test set out in Anderson v. Celebrezze, 460 U.S. 780 (1983), based on the full record. Id. at *5.
So the Secretary’s search for a shortcut around the Anderson test based on Cowen and the earlier cases must fail.
III. The Secretary of State’s reliance on the district court’s order in Coalition for Good Governance is also misplaced. The Secretary next argues, based on the district court’s recent
order in Coalition for Good Governance v. Raffensperger, No. 1:20-cv01677-TCB (N.D. Ga. May 14, 2020) (ECF 17-2), that the plaintiffs in this case have not identified any state action necessary to sustain a claim under 42 U.S.C. § 1983. (Def’s Br. at 16-17.) But this argument is easily dismissed.
The plaintiffs’ complaint alleges that “Georgia’s ballot-access restrictions unconstitutionally burden their rights under the First and
7

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 8 of 25
Fourteenth Amendments.” (Compl. ¶2, ECF 1.) The plaintiffs specifically identify the signature requirements of O.C.G.A. § 21-2-170(b) and the petition period set forth in O.C.G.A. § 21-2-170(d)(3) as the laws they seek to enjoin. (Id. at 19.) They allege that the Secretary of State enforces those laws and that he does so under the color of state law. (Id. ¶10.)2 Section 1983 requires nothing more.
In addition, the Coalition for Good Governance opinion on which the Secretary relies does not hold that the plaintiffs there failed to allege state action, as the Secretary suggests. The order holds that the plaintiffs’ complaint presented a nonjusticiable political question, and the footnote quoted in the Secretary’s brief adds justification for that conclusion. But there is no serious argument here that ballot-access challenges like this one present non-justiciable political questions. That issue was addressed and resolved by the Supreme Court in Williams v. Rhodes, 393 U.S. 23, 28 (1968).
2 See O.C.G.A. §§ 21-2-132 (d) & (e) (political body candidates for federal offices must file nomination petitions with the Secretary of State); O.C.G.A. §§ 21-2-171 (the Secretary of State is responsible for validating nomination petitions filed with his office). The Secretary denies the allegation that he enforces Georgia’s ballot-access laws (Answer ¶10, ECF 14), but that denial is at odds with his admission of an identical paragraph in the Cowen complaint. The denial here is probably a mistake by the Secretary’s attorney, but it would otherwise plainly violate Rule 11.
8

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 9 of 25
So the Secretary’s search for a shortcut around the Anderson test based on Coalition for Good Governance must also fail.
IV. The Secretary of State’s analysis of the burdens is lacking. Turning to the Anderson test, the Secretary first argues that the
burdens imposed by Georgia’s ballot-access requirements under current circumstances are not severe and therefore do not warrant strict scrutiny. (Def’s Br. at 17-22.) His analysis of the burdens relies primarily on Jenness, which is discussed in Part II above, and on other cases that have upheld petition requirements in other contexts. He also relies on assertions of fact about Georgia’s ballot-access laws which, as discussed in Part I above, simply are not true. Although he concedes that the signature requirements as applied in a pandemic “may be more burdensome” than usual (Def’s Br. at 22), his contention that they are nonetheless not severe does not square with the record.
The Secretary’s reliance on Jenness and other cases to measure the burdens here is at odds with the Eleventh Circuit’s recent decision in Cowen, which explained that “the Anderson test emphasizes the relevance of context and specific circumstances to each challenge to ballot access requirements.” 2020 WL 2896354 at *6, “In other words, a
9

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 10 of 25
determination that a 1 percent petition requirement by one state’s election law in one context is constitutional, vel non, does not guarantee the same determination of a similar law in a different context.” Id. at *3. Thus, the Secretary’s suggestion that the burdens here are not severe simply because other courts, in other contexts, have upheld five-percent requirements turns that requirement into the kind of “litmus-paper” test that both the Supreme Court and the Eleventh Circuit have rejected.
The Secretary also points to a number of factors which, he contends, cast doubt on the severity of the burdens here. For example, he notes that two months of the original petitioning window passed before Governor Kemp took any action related to COVID-19. (Def’s Br. at 22.) That much is true, but one month of the 180-day window was extinguished when the Secretary extended the deadline. Neither plaintiff Cowen nor plaintiff Cooper won his nomination until after the petition window had opened, and the form necessary for the Green Party to petition was unavailable until March 24.3 Candidates also should not be penalized for failing to foresee a global pandemic or for reasonably
3 See Ex. 21: Cooper decl. ¶5, ECF 11-21; Ex.22: Cowen decl. ¶7, ECF 11-22; Ex. 23: Esco decl. ¶7, ECF 11-23. Even after he won his party’s nomination in late February, Cooper focused his early campaign on raising the money necessary to pay the qualifying fee in March. Ex. 21: Cooper decl. ¶7, ECF 11-21.
10

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 11 of 25
planning to focus their petition drives on later points in the petitioning window.4 See, e.g., Garbett v. Herbert, Civ. No. 2:20-cv-245-RJS, 2020 WL 2064101 at *24 n. 101 (D. Utah May 1, 2020); Esshaki v. Whitmer, Civ. No. 2:20-cv-10831, 2020 WL 1910154 at *4 (E.D. Mich. April 20, 2020), aff’d in part and reversed in part, No. 20-136, 2020 WL 2185553 at *1 (6th Cir. May 5, 2020); Jones v. McGuffage, 921 F. Supp. 2d 888, 897 (N.D. Ill. 2013).
The Secretary also points to the fact that the Governor lifted the shelter-in-place order for some people in May. (Def’s Br. at 22.) Again, that much is true, but it’s also true that plaintiff Cowen and more than a million other Georgians remain subject to a shelter-in-place and novisitors order, thus substantially reducing the pool of potential petition circulators and signers.5 Social-distancing is still the law. Gatherings of any substantial size, including public events like festivals and fairs where petitioning traditionally takes places, remain prohibited.
4 See Ex. 21: Cooper decl. ¶11, ECF 11-21; Ex. 22: Cowen decl. ¶12, ECF 11-22; Ex. 23: Esco decl. ¶7, ECF 11-23. 5 Mark Niesse, Rise of Young and Diverse Georgia Voters May Influence 2020 Elections, Atlanta Journal-Constitution, Feb. 11, 2020, available at https://www.ajc.com/news/state-regional-govt--politics/rise-young-and-diverse-georgia-voters-may-influence-2020elections/eyscOYUMRnDZgG2xKYAmNM/ (last visited June 11, 2020) (showing that voters over 65 represent 19.3 percent of Georgia’s 7.2 million registered voters).
11

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 12 of 25
Petitioning—not to mention life, in general—has yet to return to normal notwithstanding the Governor’s order. The burdens on the plaintiffs’ associational rights are not simply due to the shelter-in-place order, as the Secretary claims, but they also result from the extra-difficulty of petitioning once the pandemic subsides. And we aren’t even there yet.
The Secretary also asserts that plaintiff Cowen can still collect signatures at the polls during the primary election as he previously intended, even though the Secretary postponed the primary from its originally-scheduled date of March 24 to June 9. (Def’s Br. at 22.) But no, he can’t. Cowen is above the age of 65, and it would be unlawful under Governor Kemp’s orders for him to do so. This “fact” therefore does not cast doubt on the severity of the burden in any way. But even if Cowen were not subject to the shelter-in-place order, collecting signatures at the polls during the primary and runoff elections in 2020 is likely to be much less effective because of on-going shelter-in-place and socialdistancing requirements, long lines to vote (during which a petitioner may not solicit signatures, see O.C.G.A. § 21-2-414(a)(3)), and significantly greater use of voting by mail.
12

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 13 of 25
Finally, the Secretary asserts that Georgia’s 180-day petitioning window is “long enough” to allow candidates to meet the requirements even if days or weeks are lost to the pandemic. (Def’s Br. at 22.) This assertion, however, is supported by no evidence, and it is at odds with the plaintiffs’ evidence that no third-party candidate for U.S. Representative or President has ever satisfied current signature requirements even with a 180-day petition window. It would thus appear that the petition window is not nearly “long enough.”
The Secretary acknowledges that every court to have considered candidate-petitioning requirements during the pandemic has found the burdens to be severe. (Def’s Br. at 19-21.) He tries to distinguish those cases, however, on the ground that the petition deadlines fell “during or shortly after” shelter-in-place orders were in effect. (Id. at 20.) But this distinction fails for at least two reasons. First, a large number of voters in Georgia, including plaintiff Cowen, remain under a shelter-in-place order of uncertain duration. This case is thus no different from the others on that point. Second, none of the cases cited by the Secretary actually relied on the petition deadlines as the basis for finding a severe burden. Those cases that applied the Anderson test found a severe
13

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 14 of 25
burden because gathering signatures during a pandemic is exceedingly difficult. And so it is here.
The burdens of Georgia’s signature requirements would be heavy even in the best of times. No third-party candidate has ever satisfied them. But we are in the midst of a global pandemic, and the “additional burdens” that the Secretary acknowledges warrant strict scrutiny under these circumstances. (Def’s Br. at 23.)
V. The justifications offered by the Secretary of State do not withstand scrutiny. The second and third steps in the Anderson test require the Court
to “identify the interests advanced by the State as justifications for the burdens” and then to “evaluate the legitimacy and strength of each asserted state interest and determine the extent to which those interests necessitate the burdening of the plaintiffs’ rights.” Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir. 1985). Here, the Secretary advances only two such interests: (1) the State’s interest in not burdening the general-election ballot with frivolous candidacies; and (2) the State’s generalized interest in the orderly administration of elections. (Def’s Br. at 23-24.)
14

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 15 of 25
Neither of the asserted interests is compelling. The Supreme Court described the former as merely “important.” Jenness, 403 U.S. at 442; accord Lubin, 415 U.S. at 715-18. The latter is not even that strong. Neither one, therefore, is strong enough to justify a severe burden.
The Secretary also hasn’t shown that enforcing the current petition requirements in a time of pandemic is remotely necessary to satisfy those interests. Indeed, he has admitted just the opposite. (Answer ¶¶ 55-56, 62, ECF 14.) So few independent and third-party candidates have qualified for the ballot (other than the petition requirements) by filing a notice of candidacy and paying the qualifying fee that there is no chance of an overcrowded ballot for any office. There is also no chance that the total number of such candidates is likely to cause any kind of disorder in the administration of elections. The Secretary has the burden of proving otherwise, and there is nothing in the record to support such a finding.
VI. The harm to the plaintiffs is neither speculative nor the plaintiffs’ own fault. The Secretary argues that the plaintiffs have not shown a
substantial likelihood of irreparable harm because “it remains entirely
15

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 16 of 25
speculative that the Plaintiffs will not be able to meet the petition requirements with the extended deadline of August 14.” (Def’s Br. at 25.) Not so. The record is full of undisputed and uncontroverted evidence that the plaintiffs are not likely to meet the current petition requirements and are therefore almost certain to lose their opportunity to participate in the 2020 general election. For example, plaintiff Cooper has explained how the pandemic completely derailed his signaturegathering strategy and that, based on his experience with petitioning in the past, the virus makes it “impossible for [him] to gather the required number of signatures to appear on the general-election ballot.” (ECF 1121 ¶17.) This testimony is not mere speculation, and the Secretary simply ignores this and other evidence in the record.
The Secretary further argues that any difficulty in satisfying the petition requirements is not due to the pandemic but rather due to the plaintiffs’ own lack of diligence. (Def’s Br. at 26.) But, as already discussed in Part IV above, neither plaintiff Cowen nor plaintiff Cooper won his nomination until after the petition window had opened, and the form necessary for the Green Party to petition was unavailable— through no fault of the party—until March 24. And candidates should
16

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 17 of 25
not be penalized for failing to foresee a global pandemic or for reasonably planning to focus their petition drives on later points in the petition window. To conclude otherwise would impose an unprecedented and unreasonably high standard on third-party candidates.
VII. The balance of equities and the public interest clearly favor the plaintiffs. The Secretary identifies no administrative or financial burdens
associated with the requested injunction. (Def’s Br. at 26-27.) Instead, he asserts generalized state interests in avoiding voter confusion and maintaining law and order. But he fails to explain how the requested injunction would undermine those interests.
More importantly, perhaps, the Secretary confuses the State’s interest with the public interest, and it is hard to see any downside for the public that could result from the requested injunction. There is only upside: greater choice in those few elections where independent or thirdparty candidates have timely filed a notice of candidacy and paid the qualifying fee but where the coronavirus pandemic has made it impossible for them to satisfy the petition requirement.
17

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 18 of 25
VIII. The limited injunction requested by the plaintiffs is the most appropriate remedy. This appears to be the rare case where a government defendant
wants a more expansive remedy—re-writing the rules of the State’s election—than the plaintiffs do. The Secretary asks the Court to reduce the signature requirement by only 30 percent. (Def’s Br. at 28-29.) But the Court should decline the Secretary’s invitation to do so for at least two reasons.
First, as explained in the plaintiffs’ opening brief, the court’s authority to re-write the state’s election laws—at least without first giving the General Assembly an opportunity to do so—is questionable here at best. (ECF 11 at 33-34.) This is particularly true where, as here, it is possible for the plaintiffs to obtain complete relief without a mandatory injunction. Only a prohibitory injunction is necessary because of the unique circumstances of this case: the plaintiffs have met, or will have met, all of the qualification requirements except the petition.
Second, the math by which the Secretary arrives at his 30 percent figure simply does not compute. He asserts that a 30 percent reduction “would account for the approximately 60 days under which the State was under a declaration of a public health emergency” due to COVID-19.
18

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 19 of 25
(Def’s Br. at 28.) But the Governor has extended the public health emergency to July 12 (Ex. 25: Exec. Order 05.28.20.01 at 2), which will represent a total duration of 120 days from March 14 unless, as is entirely possible, the emergency is further extended at that point. The Secretary’s calculation also ignores the fact that the entire United States has been under a public health emergency since January 31. It penalizes the plaintiffs for failing to foresee the pandemic and for planning to focus on gathering signatures at later points in the petition window. And it relies on the dubious assumption that the days after the public health emergency has ended will be 100 percent back-to-normal. The evidence in this case and common sense suggest otherwise.6
The Secretary also argues that anything more than a 30 percent discount on the signature requirement would be unfair to Democratic and Republican candidates “who have faced the same burdens associated with campaigning during the current public health emergency.” (Def’s Br. at 28.) The Secretary has failed, however, to offer any evidence of those burdens or even to describe those burdens with any detail. And it
6 See, e.g., Domenico Montanaro, Poll: Two Thirds Expect Return to Normal Will Take 6 Months or More, National Public Radio, May 20, 2020, available at https://www.npr.org/2020/05/20/859483975/poll-two-thirds-expect-return-to-normal-will-take6-months-or-more (last visited June 10, 2020).
19

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 20 of 25
is hard to see how Democratic and Republican candidates have suffered the same burdens when they have been assured of ballot access without having to collect a single signature. They need only to file a notice of candidacy and pay the qualifying fee. Any claim that Democrats and Republicans would be at a disadvantage in Georgia compared to independent and third-party candidates rings hollow.
Finally, the Secretary argues that a 30 percent reduction is in line with remedies ordered in other cases. (Def’s Br. at 29.) His argument, however, overlooks key distinctions between those cases and this one, and it simply ignores the case in which the court ordered a 90 percent reduction. For example, in the Virginia case, the court reduced a 10,000signature requirement for a Republican Senate candidate to 3,500 signatures. But the candidate had already collected more than 3,600 signatures before the pandemic struck, so the order meant that he would be placed on the ballot without collecting any more signatures. (Ex. 28: Compl. ¶31, Faulkner v. Virginia Dep’t of Elections, No.: CL 20-1456 (Va. Cir. Mar. 23, 2020).) So it was also in the Colorado and Utah cases. The court-ordered discount meant that the plaintiffs would not have to collect any post-pandemic signatures. See Garbett v. Herbert, ____ F.
20

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 21 of 25
Supp. 3d ___, 2020 WL 2064101 at *4 (D. Utah Apr. 29, 2020); Ferrigno Warren v. Griswold, No. 20CV31077, slip op. at 1 (Colo. Dist. Ct. Apr. 21, 2020).7 All three cases dealt with March or April deadlines to appear on a primary ballot, so it made sense that the plaintiffs had already collected a great many of them before the pandemic shut things down.
In the Massachusetts case, the court ordered a 50% reduction. This meant a reduction from 2,000 signatures to 1,000 signatures for major-party candidates for U.S. Representative to appear on a September primary ballot. Goldstein v. Sec’y of the Commonwealth, 142 N.E.3d 560, 565 (Mass. 2020). But the Court also extended the deadline to June 2, giving the candidates more than a month to collect those signatures. Id. at 572. And, most importantly, the court ordered state election officials to accept a broad range of electronic signatures, allowing candidates to collect them online and by email. Id. at 574-75. That makes it a very different remedy than either the plaintiffs or the Secretary are proposing here.
7 The Colorado decision upon which the Secretary relies was also reversed on state-law grounds not applicable here by the Colorado Supreme Court on May 1. See Griswold v. Ferrigno Warren, 462 P.3d 1081 (Co. 2020).
21

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 22 of 25
Surprisingly, the Secretary does not even mention the case that is most similar to this one. In the Illinois case, the district court ordered a 90 percent discount in signatures for independent and third-party candidates to appear on the general-election ballot. Libertarian Party of Ill. v. Pritzker, ___ F. Supp. 3d. ___, 2020 WL 1951687 at *4, notice of appeal docketed sub nom Libertarian Party of Ill. v. Cadigan, No. 201961 (7th Cir. June 8, 2020). For a candidate for U.S. Representative, this meant a reduction from approximately 1,500 signatures to 150 signatures. The court also extended the deadline to August 7, giving candidates more than three months to collect them. And the court ordered election officials to accept electronic signatures. Id. If the court has an interest in re-writing the state’s election rules without first giving the General Assembly an opportunity to do so, the plaintiffs submit that the Illinois case provides the best guide to an appropriate remedy here.
22

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 23 of 25
Respectfully submitted this 11th day of June, 2020. /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
23

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 24 of 25
CERTIFICATE OF COMPLIANCE I hereby certify that the forgoing PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION was prepared in 13-point Century Schoolbook in compliance with Local Rules 5.1(C) and 7.1(D).
/s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
24

Case 1:20-cv-01312-ELR Document 22 Filed 06/11/20 Page 25 of 25
CERTIFICATE OF SERVICE I hereby certify that on June 11, 2020, I electronically filed the foregoing PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Charlene McGowan: cmcgowan@law.ga.gov /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
25

Case 1:20-cv-01312-ELR Document 22-1 Filed 06/11/20 Page 1 of 3

PLAINTIFFS' EXHIBIT
25

Case 1:20-cv-01312-ELR Document 22-1 Filed 06/11/20 Page 2 of 3

Case 1:20-cv-01312-ELR Document 22-1 Filed 06/11/20 Page 3 of 3

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 1 of 36

PLAINTIFFS' EXHIBIT
26

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 2 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 3 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 4 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 5 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 6 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 7 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 8 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 9 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 10 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 11 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 12 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 13 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 14 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 15 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 16 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 17 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 18 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 19 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 20 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 21 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 22 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 23 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 24 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 25 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 26 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 27 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 28 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 29 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 30 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 31 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 32 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 33 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 34 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 35 of 36

Case 1:20-cv-01312-ELR Document 22-2 Filed 06/11/20 Page 36 of 36

Case 1:20-cv-01312-ELR Document 22-3 Filed 06/11/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

PLAINTIFFS' EXHIBIT
27

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Declaration of Richard Winger

1. My name is Richard Winger. I am over the age of 18 and competent to testify to the matters in this declaration.
2. I have been asked by the plaintiffs to check certain assertions of fact contained in the defendant’s response in opposition to the plaintiffs’ motion for a preliminary injunction. (ECF 17.)
3. I am a recognized expert in ballot-access laws for independent and third-party candidates.

Case 1:20-cv-01312-ELR Document 22-3 Filed 06/11/20 Page 2 of 4
4. Since 1985 I have published a newsletter, Ballot Access News (12 issues per year), which covers legal, legislative and political developments of interest to third parties and independent candidates.
5. For 53 years I have researched the ballot-access laws of all states, for the period 1888 to the present (there were no ballot access laws in the U.S. before 1888 because there were no government-printed ballots until that year).
6. Appendix A to this declaration contains a copy of my current Curriculum Vitae which includes a complete list of all publications that I have authored in the past 10 years and all other cases in which I have testified as an expert in the last four years.
7. I am receiving no compensation for my work in this case. 8. The Secretary’s brief claims that most other states have more burdensome petitioning rules which “often restrict voters from signing more than one petition.” (ECF 17 at 6.) This is not accurate. 9. I track petitioning rules for purposes of my newsletter. To check the accuracy of the Secretary’s claim, I examined candidate petitions from all 50 states that I maintain in my possession. 10. Based on my review of those petitions, only 12 states restrict voters from signing more than one candidate petition. Those states are:
2

Case 1:20-cv-01312-ELR Document 22-3 Filed 06/11/20 Page 3 of 4
Arizona, California, Idaho, Illinois, Kansas, Michigan, New Jersey, New Mexico, Oregon, Texas, Washington, and Wisconsin.
11. Other than those 12, there are only two states with rules for candidate petitions that are, in my view, arguably more burdensome than Georgia’s. Texas does not allow voters who voted in a primary election to sign independent or third-party candidate petitions, and Minnesota has only a two-week petitioning window for independent non-presidential candidates.
12. As a result, I do not think it is accurate to say that most states have more burdensome petitioning rules than Georgia does.
13. The Secretary’s brief also claims that Georgia has “one of the longest signature gathering periods (if not the longest) in the nation.” (ECF 17 at 21.) This is also not accurate.
14. I track petitioning periods for purposes of my newsletter. 15. More than half of the states give candidates an unlimited amount of time to gather signatures. A few states have petition periods that are longer than Georgia’s 180-day period. Fewer than 10 states have petition periods that are shorter than Georgia’s 180-day period. Among those states with shorter petition periods, no state requires candidates for President or U.S. Representative to gather nearly as many signatures as Georgia does. 16. As a result, I do not think it is accurate to say that Georgia has one of the longest signature-gathering periods in the nation.
3

Case 1:20-cv-01312-ELR Document 22-3 Filed 06/11/20 Page 4 of 4

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 1 of 21

V I R G I N I A :

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

OMARI FAULKNER FOR VIRGINIA,

)

)

-and-

)

)

OMARI FAULKNER

)

)

Plaintiffs,

)

)

v.

)

)

)

VIRGINIA DEPARTMENT OF ELECTIONS )

)

-and-

)

)

VIRGINIA STATE BOARD OF ELECTIONS )

ROBERT H. BRINK, Chairman of

)

The State Board of Elections, in his

)

official capacity, JOHN O’BANNON,

)

Vice-Chairman of the State Board of Elections, )

in his official capacity,

)

JAMILAH D. LECRUISE,

)

Secretary of the State Board of Elections,

)

In her official capacity,

)

CHRISTOPHER E. "CHRIS" PIPER,

)

Commissioner Of the State Board of Elections, )

in his official capacity

)

JESSICA BOWMAN, Deputy Commissioner )

Of the State Board of Elections, in her

)

official capacity.

)

)

- and -

)

)

THE REPUBLICAN PARTY OF VIRGINIA )

)

-and-

)

)

Chairman Jack R. Wilson, in his capacity

)

As Chairman of the Republican Party of

)

Virginia

)

)

Defendants.

)

Civil Action No.:

PLAINTIFFS' EXHIBIT
28

1

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 2 of 21
VERIFIED COMPLAINT Plaintiffs, Omari Faulkner and his United States Senate campaign committee, Omari Faulkner For Virginia, a political committee registered with the Federal Election Commission, by counsel and pursuant to the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, Section 8.01-620 of the Code of Virginia (the “Code”), and Rule 3:2 of the Rules of Supreme Court of Virginia, state the following verified complaint for declaratory judgment and permanent, preliminary, and emergency injunctive relief against the Virginia Department of Elections, the Virginia State Board of Elections, its Chairman, Vice-Chairman, Secretary, Commissioner, and Deputy Commissioner, the Republican Party of Virginia, and Chairman of the Republican Party of Virginia, Jack R. Wilson, in his official capacity, (together, “Defendants”) to restrain defendants, in this election only, from enforcing in full the candidate signature requirement for U.S. Senate candidates codified at Va. Code § 24.2-521(1).
PARTIES 1. Plaintiff Omari Faulkner resides in Bluemont, Virginia and is a member of the United States Navy Reserve. Mr. Faulkner is also a candidate for the Republican nomination for U.S. Senate. Mr. Faulkner filed his Statement of Candidacy with the Federal Election Commission on November 11, 2019. (Ex. A, Statement of Candidacy). 2. Plaintiff Omari Faulkner For Virginia is the official candidate committee for Mr. Faulkner’s bid for United States Senate. The campaign committee filed its Statement of Organization with the Federal Election Commission on November 11, 2019 and has the campaign ID number as C00726570. (Ex. B, Statement of Organization).
2

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 3 of 21
3. Defendant State Board of Elections, through the Virginia Department of Elections oversees “voter registration, absentee voting, ballot access for candidates, campaign finance disclosure and voting equipment certification in coordination with Virginia’s 133 local election offices.”1 See also Va. Code § 24.2-103(A) (vesting the State Board of Elections, through the Department of Elections, with supervisory authority to obtain uniformity in election laws).
4. The State Board has the duty to receive both Declarations of Candidacy from candidates for United States Senate, as well as a Petition containing at least 10,000 signatures statewide, with at least 400 signatures from each congressional district. Va. Code §§ 24.2-522(C) 24.2-521(1). The State Board is then required to “transmit the material so filed to the state chairman of the party of the candidate.” Va. Code § 24.2522.
5. The State Board of Elections also has the duty to prescribe various forms for the registration of voters and the conduct of elections. See Va. Code § 24.2-105. The State Board of Elections has prescribed Form SBE 506/521, the form that contains the signatures of voters to get a candidate’s name on the ballot.
6. Defendant Robert H. Brink is the Chairman of the State Board of Elections. He is sued in his official capacity.
7. Defendant John O’Bannon is the Vice-Chairman of the State Board of Elections. He is sued in his official capacity.
1 See Department of Elections, About the Agency available at https://www.virginia.gov/agencies/department-of-elections/ (last visited March 19, 2020) (emphasis added).
3

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 4 of 21
8. Defendant Jamilah D. LeCruise is the Secretary of the State Board of Elections. She is sued in her official capacity.
9. Defendant Christopher E. "Chris" Piper is the Commissioner of the State Board of Elections. He is sued in his official capacity.
10. Defendant Jessica Bowman is the Deputy Commissioner of the State Board of Elections. She is sued in her official capacity.
11. Defendant Republican Party of Virginia (“RPV”) is the State Party affiliate of the Republican National Committee.2
12. Defendant Jack Wilson is the Chairman of the Republican Party of Virginia and he is sued in that capacity only. As Chairman, Mr. Wilson is responsible for verifying the number of signatures and certifying to the State Board that the candidate had a sufficient number of signatures to obtain a position on the ballot. See Va. Code § 24.2-527(A).
JURISDICTION 13. This Court has jurisdiction over the subject matter of this Complaint pursuant to Sections 8.01-184 and 8.01-186 of the Code. This statute permits this Court to issue both declaratory judgments as well as grant injunctive relief to effectuate its declaratory judgment.
2 See, e.g., RPV Party Plan at 6, §A ¶ 5 (membership on the Republican Party of Virginia’s State Central Committee includes the two Virginia representatives to the Republican National Committee. See also id. at 7, §C ¶ 3 (stating that the Republican Party of Virginia’s State Central Committee has the authority to fill vacancies for Virginia’s National Committee representative in the event a vacancy occurs before the next Republican National Convention) available at https://virginia.gop/wpcontent/uploads/2020/01/Party-Plan-Amended-December-2019.pdf (last visited March 19, 2020).
4

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 5 of 21
14. Venue is appropriate in the City of Richmond Circuit Court because several officers of the Commonwealth are sued in their official capacity and those officers have offices within the City of Richmond. Va. Code § 8.01-261(2).
FACTS 15. Mr. Faulkner began his bid for the Republican nomination to represent Virginia in the United States Senate back in November of 2019. 16. Within weeks, Omari Faulkner for Virginia, contracted with an individual to run the campaign’s signature gathering operation to obtain the necessary signatures pursuant to Va. Code § 24.2-521(1). 17. Beginning in approximately early January of 2020, the campaign committee assiduously and diligently began circulating petitions to obtain these signatures. These efforts were done so that Mr. Faulkner’s name would appear on the Virginia’s Republican Primary Ballot. 18. Just as the sun was rising on 2020 and heating the campaign trails, the menace that is COVID-19, also known as the Coronavirus, landed on the shores of the Commonwealth. Within the past week alone, there has been a steady and persistent cascade of emergency actions taken to combat COVID-19. 19. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. (attached as Ex. H). 20. In response to the conflagration of cases and to combat COVID-19, on March 12, 2020 Governor Northam declared a State of Emergency. In his “Declaration Of A State Of Emergency Due To Novel Coronavirus (Covid-19)” (attached as Exhibit
5

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 6 of 21

C), Governor Northam declared that COVID-19 is public health threat because it is a

communicable disease. (Ex. C at 1).

21. The following day, President Trump declared a national emergency.

22. Three days later on Monday, March 16, 2020, Governor Northam issued a

directive stating that restaurants, fitness centers, and theatres either had to reduce capacity

to 10 people or close. (attached as Ex. E). Governor Northam also banned all events with

100 or more persons.

23. Later, on Monday March 16, 2020, the Supreme Court of Virginia

declared a judicial emergency. (attached as Ex. F). This order declared that a judicial

emergency exists from March 16 to Monday April 6, 2020. (Ex. F at 1). The order further

ordered that all non-emergency and non-essential court proceedings be suspended and

that all deadlines are tolled for 21 days. Ex. F. at 2.

24. Then, on March 17, President Trump declared that for a period of 15 days,

there should be no gatherings of 10 or more people.3

25. The White House in collaboration with the Center for Disease Control

published guidelines for how people should conduct themselves through these next 15

days. Included within these guidelines is the recommendation that in areas where

community spread of COVID-19 is present, “bars, restaurants, food courts, gyms, and

other indoor and outdoor venues where groups of people congregate should be closed.”

(attached as Ex. D). Additionally, people should avoid discretionary travel, including

shopping trips and social visits. Id.

3 See The President’s Coronavirus Guidelines for America: 15 Days To Slow The Spread

available

at

https://www.whitehouse.gov/wp-

content/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf (last visited

March 19, 2020).

6

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 7 of 21

26. Finally, of specific importance, the Center for Disease Control has recommended that people maintain a safe social distance of at least six feet. (attached as Exhibit G). This is because contact with a person within six feet can cause transmission of COVID-19. Ex. G.
27. States have addressed COVID-19 and its impact on elections in various ways.
28. The State Defendants themselves have in fact started taking measures to limit human interaction in relation to the upcoming election. In recognizing the danger of coming into close contact with others, the Virginia Department of Elections “to protect [Voters’] health during COVID-19 outbreak” is strongly encouraging voters to vote absentee in the upcoming May elections. The Department is advising voters to choose reason "2A My disability or illness" for Absentee voting in the June 2020 elections due to COVID-19.”4
29. Seven states, Georgia, Louisiana, Alabama, Kentucky, Ohio, Maryland, and Connecticut, have all moved their election dates to later in the calendar. For example, Alabama’s primary runoff election was moved from March 31, 2020 to July 14, 2020.5 Additionally, Louisiana has moved their primary election from April 4, 2020 to June 20, 2020,6 while Georgia has moved its primary election from March 24, to May 19, 2020.7

4 See Va. Department of Elections, Absentee Voting available at

https://www.elections.virginia.gov/casting-a-ballot/absentee-voting/ last visited (March

19, 2020).

5 See Supplemental State of Emergency: Coronavirus COVID-19 available at

https://governor.alabama.gov/newsroom/2020/03/supplemental-state-of-emergency-

coronavirus-covid-19/ (last visited March 19, 2020).

6

See

Covid-19

And

Elections

Update

available

at

https://www.sos.la.gov/Pages/NewsAndEvents.aspx#faq258 (last visited March 16,

2020).

7

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 8 of 21

Kentucky has moved its primary election from May 19 to June 23, 2020, 8 while Maryland moved its primary election from April 28, 2020 to June 2, 2020.9 Connecticut moved its election from April 28 to June 2, 2020.10 Finally, the Ohio Department of Health canceled its March 17, 2020 primary election.11
30. Then, prior to President Trump’s declaration of a national emergency, and before Governor Northam’s declaration of a state emergency, Governor Cuomo of New York took emergency action. On March 7, 2020, Governor Cuomo of New York issued Executive Order 202.2 which modified New York’s petition signature requirement. New York reduced the number of signatures a candidate is required to obtain by 70%. See Ex. I at 1. Furthermore, Governor Cuomo suspended all signature gathering activity on March 17, 2020. See id.
31. Despite the steady drumbeat of warnings to maintain a safe social distance by the Governor, the President, the State Board of Elections, and the CDC, Mr. Faulkner

7 See Secretary Of State Raffensperger Postpones The Presidential Preference Primary

available

at

https://sos.ga.gov/index.php/elections/secretary_of_state_raffensperger_postpones_the_p

residential_preference_primary (last visited March 16, 2020).

8 See Secretary Of State Moves To Delay May 19 Elections available at

https://kentucky.gov/Pages/Activity-stream.aspx?n=SOS&prId=300 (last visited March

19, 2020).

9 See Renewal Declaration of State Of Emergency and Existence of Catastrophic Health

Emergency –COVID-19, available at

https://governor.maryland.gov/wp-

content/uploads/2020/03/Renewal-of-State-of-Emergency.pdf (last visited March 19,

2020).

10 See Executive Order No. 7G available at https://portal.ct.gov/-/media/Office-of-the-

Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7G.pdf (last

visited March 19, 2020).

11 See In re: Closure of Poling Locations in the State of Ohio on Tuesday March 17, 2020

available

at

https://content.govdelivery.com/attachments/OHOOD/2020/03/17/file_attachments/1402

754/Director%27s%20Order%20Closure%20of%20the%20Polling%20Locations.pdf

(last visited March 19, 2020).

8

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 9 of 21
has obtained 3,769 signatures statewide. Mr. Faulkner’s campaign has also obtained the following amounts of signatures in each congressional district:
a. CD 1: 242 b. CD 2: 319 c. CD 3: 690 d. CD 4: 109 e. CD 5: 262 f. CD 6: 391 g. CD 7: 374 h. CD 8: 201 i. CD 9: 168 j. CD 10: 747 k. CD 11: 267 32. Despite their diligence, Mr. Faulkner and his campaign are still 6,231 signatures shy of the statewide requirement and have at least 200 signatures in 9 congressional districts. 33. Because of the current health crisis in Virginia, particularly because COVID-19 is a communicable disease, Mr. Faulkner and his campaign are unlikely to be able to obtain the necessary signatures prior to the deadline absent relief sought in this lawsuit. 34. At best, continued attempts to obtain signatures is challenging, and at worst is in direct conflict with directives from everyone in the public health community,
9

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 10 of 21
which only risks making a very serious situation worse and specifically exposes campaign staff to additional dangers.
35. Mr. Faulkner and his campaign must submit the requisite signatures by Thursday, March 26, 2020. Va. Code § 24.2-522(A). This is because Virginia’s primary is scheduled for June 9, 2020 and the statute requires candidates to file their declaration of candidacies and petition signatures 75 days prior to the election. Va. Code § 24.2522(A).12
36. When the State Board receives Mr. Faulkner’s petition papers, the State Board is then required to “transmit the material so filed to the state chairman of the party of the candidate” within 72 hours of receipt. Va. Code § 24.2-522. In this case, the State Board must transmit this material to Jack Wilson, chairman of the Republican Party of Virginia.
37. Only the State Chairman is permitted to open the sealed containers containing the signed petitions. Va. Code § 24.2-522.
38. Then, the State Chairman of the Republican Party of Virginia must certify to the State Board that the Party reviewed the petitions and found that the requisite number of petitions was satisfied. Va. Code § 24.2-527. The State Chairman must provide the State Board with this certification by March 31, 2020, or seventy days before June 9, 2020. Va. Code § 24.2-527.
39. Mr. Faulkner would have been able to satisfy the signature requirement but for the unanticipated and unprecedented pandemic of COVID-19.
12 See Upcoming Elections, Virginia Department of Elections available at https://www.elections.virginia.gov/casting-a-ballot/calendars-schedules/upcomingelections.html (last visited March 19, 2020).
10

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 11 of 21
40. Absent an injunction, Mr. Faulkner’s name will not appear on the ballot. This will violate his constitutional right to free speech and free association.
41. Defendants at all times are acting under the color of state law. U.S. CONSTITUTIONAL LAW
42. The First Amendment declares in no uncertain terms that Congress shall make no law abridging the freedom of speech. U.S. Const. amend. I. See also Citizens United v. FEC, 558 U.S. 310, 336 (2010). This restriction against governmental power is applied to the states through the Fourteenth Amendment. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).
43. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama, 357 U.S. 449, 460 (1958).
44. The Supreme Court has made clear, “whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters … state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny” Id. at 460-61.
45. The right to “voluntary political association … is an important aspect of the First Amendment freedom” that the Supreme Court “has consistently found entitled to constitutional protection.” Lefkowitz v. Cunningham, 431 U.S. 801, 808 (1977).
46. A person’s ability to exercise their rights guaranteed under the First Amendment is “[u]ndeniably enhanced by group association.” Buckley v. Valeo 424 U.S. 1, 15 (1976) (quoting NAACP v. Alabama, 357 U.S. at 460).
11

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 12 of 21
47. Both the First and the Fourteenth Amendments therefore, guarantee the “freedom to associate with others for the common advancement of political beliefs and ideas...” Id.; see also Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (“[T]he right of individuals to associate for the advancement of political beliefs . . . rank[s] among our most precious freedoms.”).
48. Further, because the freedom of association enhances the effectiveness of the freedom of speech, the government cannot limit or dictate who an association chooses to associate with for the common advancement of the association’s beliefs. Tashjian v. Republican Party, 479 U.S. 208, 224 (1986) (emphasis added).
49. Although states are entrusted with administering their elections and imposing reasonable restrictions “in exercising their powers of supervision over elections … the States may not infringe upon basic constitutional protections.” Kusper v. Pontikes, 414 U.S. 51, 57 (1973).
50. “[Ballot] Access restrictions also implicate the right to vote because, absent recourse to referendums, voters can assert their preferences only through candidates or parties or both.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).
51. In constitutional analysis, the primary concern of courts is “with the tendency of ballot access restrictions to limit the field of candidates from which voters might choose.” Anderson v. Celebrezze, 460 U.S. 780, 786 (1983).
52. “By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).
12

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 13 of 21
VIRGINIA LAW 53. Under Virginia law, Mr. Faulkner and his campaign are required to obtain 10,000 signatures statewide. Included within that 10,000 signatures is a requirement to obtain 400 signatures within each congressional district. Va. Code § 24.2-521(1). 54. Mr. Faulkner and his campaign are required to submit these signatures to the State Board of Elections on March 26, 2020. Va. Code § 24.2-522(A). 55. Then, within 72 hours of receipt, the State Board is required to “transmit the material so filed to the state chairman of the party of the candidate” who is Jack Wilson of the RPV. Va. Code § 24.2-522. 56. Only the State Chairman, Mr. Wilson, is permitted to open the sealed containers containing the signed petitions. Va. Code § 24.2-522. 57. Then, by March 31, 2020, the State Chairman of the Republican Party of Virginia must certify to the State Board that the Party reviewed the petitions and found that the requisite number of petitions was satisfied. Va. Code § 24.2-527.
CLAIMS COUNT I Violation of The First Amendment’s Free Speech And Association Clauses 1983 Action 58. Plaintiffs incorporate by reference paragraphs 1-57 as if fully restated herein. 59. It is impracticable for Mr. Faulkner and his campaign to complete their task of obtaining 10,000 signatures statewide and 400 signatures in each of Virginia’s eleven congressional districts given recent events. Given the impracticability of Mr.
13

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 14 of 21
Faulkner and his campaign to obtain signatures since the declaration of a State emergency, Mr. Faulkner seeks redress.
60. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964).
61. Ballot restrictions that severely burden the right to vote and associate violate the First Amendment to the U.S. Constitution. See Storer v. Brown, 415 U.S. 724, 728-29 (1974).
62. Accordingly, “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.” Kusper v. Pontikes, 414 U.S. 51, 59 (1973) (internal quotation marks and citations omitted).
63. Therefore, in recognizing that States must enact election codes for orderly, fair, and honest elections, courts reviewing challenges to ballot access cases impose a flexible standard. Burdick v. Takushi, 504 U.S. 428, 433-34 (1992). If the election regulation imposes a severe burden, then the regulation must survive strict scrutiny. Id. at 434. By contrast, if the election regulation imposes a light burden, rational basis or intermediate scrutiny applies. Id.
64. Under the current conditions created by COVID-19, including a declared state of emergency in our Commonwealth as well as a declared National emergency, Virginia’s signature requirement imposes a severe burden on Plaintiffs.
14

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 15 of 21
65. This burden is compounded because of the various government recommendations that individuals maintain at least six feet distance between them.
66. Virginia does not have a compelling justification to require Plaintiffs to continue circulating large numbers of petitions between now and March 26 when there are guidelines from the U.S. Government, Virginia government, and the Center for Disease Control recommending people to maintain a safe distance of six fee or more.
67. Furthermore, Virginia cannot claim a compelling justification when Virginia, recognizing the danger imposed by the communicable disease COVID-19, is encouraging voters to cast absentee ballots rather than go to the polls and vote. The fact that State Defendants are encouraging voters to vote absentee and not travel to the polls insinuates that it is contrary to the health of Virginians to come into close contact with others. Virginia cannot say that for the health of voters, do not vote in person but still demand that Plaintiffs still send volunteers out to neighborhoods and business and collect signatures in person.
68. In analogous situations, courts have extended voter registration deadlines in light of natural disasters, like hurricanes. See Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016). In that court’s analysis of the burden, the court noted that in the final week before voter registration closed, an estimated 100,000 people were expected to register. Id. at 1257. But because of Hurricane Matthew, these potential voters were forced to flee the State. Id. Thus, these potential voters could not vote because they were unregistered. Id. Florida’s voter registration statute imposed a severe burden that it could not justify. Id.
15

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 16 of 21
69. Because the inability to register to vote meant these 100,000 people could not vote, the court ruled that was a severe burden. Id.
70. Florida could not justify its severe burden because, similar to here, several other states impacted by Hurricane Matthew either extended their voter registration deadlines or permitted voter registration on Election Day. Id. Accordingly, under the flexible approach explained in Burdick, the court ruled that under any standard, Florida could not justify its decision not to extend voter registration in light of Hurricane Matthew. Id. at 1257-58; see also Ga. Coalition for the Peoples' Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016) (ordering an extension of voter registration deadline due to Hurricane Matthew because the loss of the right to vote would be an irreparable harm and when balanced to administrative burden of extending registration deadline, the harm to voting rights outweighed the administrative burden).
71. Accordingly, Virginia does not have a compelling or even sufficiently important interest to justify maintaining its 10,000-signature requirement and 400signature per congressional district requirement in light of the current public health emergency.
72. Absent an injunction, Mr. Faulkner will not appear on the ballot, a severe burden to his First Amendment rights. See Fla. Democratic Party, 215 F. Supp. 3d at 1257.
73. Additionally, because Mr. Faulkner and his campaign have obtained 3,769 signatures, he has demonstrated a sufficient modicum of support in the context of this election. See Bowe v. Board of Election Comm'rs, 614 F.2d 1147, 1152 (7th Cir. 1980) (“The ultimate question was said to be whether in the context of California politics, a
16

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 17 of 21
reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.”) (citing Storer, 415 U.S. at 742). Given the global pandemic that has seized our Commonwealth and our Nation, Mr. Faulkner and his campaign have demonstrated a modicum of support to merit a place on the ballot.
74. At all times, State Defendants were acting under the color of state law. PRAYER FOR RELIEF
A. Declare Va. Code § 24.2-521(1) unconstitutional as applied to Senate candidates in this particular pending election.
B. Enjoin all Defendants from enforcing Va. Code § 24.2-521(1) in full against United States Senate candidates in this primary election.
C. Order that, to obtain a position on the partisan primary election ballot for U.S. Senate, candidates for the U.S. Senate must obtain 3,500 signatures statewide and 100 signatures in each of Virginia’s eleven congressional districts.
D. DEMAND FOR ATTORNEYS’ FEES: Pursuant to Rule 3:25 of the Rules of the Supreme Court of Virginia, Plaintiffs seek reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988.
E. Award all other relief that this Court deems just and necessary. Respectfully submitted, March 23, 2020
Jason Torchinsky (VA Bar# 47481) Jonathan P. Lienhard (VA Bar# 41648) Shawn Sheehy (VA Bar# 82630)
17

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 18 of 21 Holtzman Vogel Josefiak Torchinsky 45 N. Hill Drive Suite 100 Warrenton, VA 20186 (W) 540-341-8808 (F) 540-341-8809 jtorchinsky@hvjt.law jlienhard@hvjt.law ssheehy@hvjt.law Counsel to Plaintiffs
18

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 19 of 21 19

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 20 of 21 20

Case 1:20-cv-01312-ELR Document 22-4 Filed 06/11/20 Page 21 of 21

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was this 23rd day of March

2020 served, by email and FedEx, postage pre-paid, upon the following:

Carol Lewis & Heather Hays Lockerman Assistant Attorneys General 202 North 9th Street Richmond, VA 23219 (804) 692-0558 CLewis@oag.state.va.us HLockerman@oag.state.va.us

Chris Marston 110 Shooters Ct. Alexandria, VA 22314 (571) 482-7690 chris@electioncfo.com

On behalf of:

Counsel to:

VIRGINIA DEPARTMENT OF

THE REPUBLICAN PARTY OF

ELECTIONS

VIRGINIA )

)

-and-

-and-

)

)

VIRGINIA STATE BOARD OF

Chairman Jack R. Wilson, in his capacity

)

ELECTIONS

As Chairman of the Republican Party of

)

ROBERT H. BRINK, Chairman of

Virginia.

The State Board of Elections, in his

official capacity, JOHN O’BANNON,

Vice-Chairman of the State Board of

Elections,

in his official capacity,

JAMILAH D. LECRUISE,

Secretary of the State Board of Elections,

In her official capacity,

CHRISTOPHER E. "CHRIS" PIPER,

Commissioner Of the State Board of

Elections, in his official capacity

JESSICA BOWMAN, Deputy

Commissioner

Of the State Board of Elections, in her

official capacity.

By: Jason B. Torchinsky
21

Case 1:20-cv-01312-ELR Document 22-5 Filed 06/11/20 Page 1 of 2

EXHIBIT INDEX

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17

Executive Order 03.14.20.01 Executive Order 03.16.20.01 Executive Order 03.23.20.01 Executive Order 03.26.20.02 Executive Order 04.01.20.01 Executive Order 04.02.20.01 Executive Order 04.08.20.02 Executive Order 04.23.20.02 Executive Order 04.30.20.01 Raffensperger announcement of March 14, 2020 Raffensperger announcement of March 24, 2020 Raffensperger announcement of April 9, 2020 letter from Harvey to Cowen WHO statement WHO director’s remarks Azar determination Presidential Proclamation

1

Case 1:20-cv-01312-ELR Document 22-5 Filed 06/11/20 Page 2 of 2

Exhibit 18
Exhibit 19
Exhibit 20 Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24 Exhibit 25 Exhibit 26 Exhibit 27 Exhibit 28

Order, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660LMM (N.D. Ga. Sept 23, 2019) (ECF 113)
Def’s Resp. to Pls. Statement of Undisputed Material Facts, Cowen v. Raffensperger, Civ. No. 1:17-CV-4660-LMM (N.D. Ga. Aug. 07, 2019) (ECF 97)
Declaration of Scott Cambers
Declaration of Jimmy Cooper
Declaration of Martin Cowen
Declaration of Hugh Esco
Declaration of Joe Reed
Executive Order 05.28.20.01
Executive Order 05.28.20.02
Declaration of Richard Winger
Complaint, Faulkner v. Virginia Dep’t of Elections, No.: CL 20-1456 (Va. Cir. Mar. 23, 2020)

2

 
 Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DmSION
JAMES L. (JIMMY) COOPER III, * MARTIN COWEN, and GEORGIA * GREEN PARTY, *
*
Plaintiffs, *
*
v. * 1:20-CV-01312-ELR
*
BRAD RAFFENSPERGER, in his *
official capacity as Secretary of State * of the State of Georgia, *
*
Defendant. *
ORDER
Presently before the Court is Plaintiffs' Motion for Preliminary Injunction.
[Doc. 11]. For the reasons below, the Court grants in part and denies in part
Plaintiffs' motion.
I. Background
This action arises from Plaintiffs' desire to be included on ballots for the
upcoming general election as third-party candidates. See generally Compl. fDoc. 1].
Plaintiffs James L. "Jimmy" Cooper III and Martin Cowen each seek to mn as
candidates for United States Representative to serve Georgia's Eighth and Thirteenth
Congressional Districts, respectively. [Doc. 11 at 11]. Plaintiff Georgia Green Party

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 2 of 24
seeks to have a nominee for President of the United States appear on the ballot in November. [Id. at 21]. Defendant Brad Raffensperger is the Secretary of State for the State of Georgia ("Defendant" or "the Secretary") and oversees the state's election process. Compl. ^10.
The crux of Plaintiffs' case is that Georgia's ballot access requirements for third-party candidates—specifically the requirements concerning the collection of signatures—combined with the circumstances presented by CO VID-19, violate the First and Fourteenth Amendments to the Constitution. [Doc. 11 at 2]. As such, Plaintiffs seek a preliminary injunction from this Court prohibiting the Secretary "from enforcing Georgia's signature requirements for mdependent and third-party candidates in light of the current public health emergency caused by the novel coronavims." [Id. at 1]. The Court first provides an overview of Georgia's ballot access laws and other relevant background information before addressing Plaintiffs'
motion.
A. Georgia's Ballot Access Laws In Georgia, the law distinguishes between three (3) kinds of candidates for partisan public offices: (1) candidates nominated by a political party; (2) candidates nominated by a political body; and (3) independent candidates. A "political party" is any political organization whose nominee received at least 20% of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). Based on that

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 3 of 24
showing of support, political parties may obtain ballot access by nominating a candidate via primary election. O.C.G.A. § 21-2-130(1). Currently, only the Republican and Democratic parties meet this definition. [Docs. 11 at 9 n.7; 17 at 4].
A "political body" is any political organization other than a political party. O.C.G.A. § 21-2-2(23). Political bodies must nominate candidates for partisan offices by convention. O.C.G.A. § 21-2-170(g). However, this process does not guarantee ballot access. Instead, political body candidates for non-statewide offices—such as the office of U.S. Representative (as is relevant here)—must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d), and (2) a nomination petition signed by 5% of the number of registered voters eligible to vote for that office in the last election. O.C.G.A. § 21-2-170(b). The notice of candidacy and qualifying fee for non-statewide candidates is due during the thirty-fifth week before the election (which in 2020, fell on March 6). O.C.G.A. § 21-2-132(d). The nomination petition for non-statewide candidates is due no later than noon on the second Tuesday in July (which in 2020, falls on July 14). O.C.G.A.
21-2-132(e). Political body candidates for President undergo a similar process. Pursuant to
O.C.G.A. § 21-2-170(b), political-body candidates for President must submit: (1) a notice of candidacy and qualifying fee, and (2) a nominating petition signed by at least 1% of the total number of registered voters at the last general election.

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 4 of 24
However, the statutory 1% requirement was reduced to 7,500 signatures by court order in 2016, as the result of a prior challenge by the Green Party. See Green Party v. Kemp. 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016), affd, 674 F. App'x 974 (llthCir. 2017). The notice of candidacy and qualifying fee for presidential candidates are due in late June (which in 2020, fell on June 26). O.C.G.A. §21-2132(d). The nomination petition for presidential candidates is due no later than noon on the second Tuesday in July (which in 2020, as mentioned previously, is July 14). O.C.G.A. §21-2-132(e).
B. The COVID-19 Pandemic As no doubt all are aware, COVID-19 has dismpted life as Americans have previously known it. In Georgia alone, there have been over 100,000 confirmed
cases of the vims with nearly 3,000 deaths.' In response to the pandemic, and for
good reason, Governor Brian Kemp issued several executive orders out of concern for public safety. Specifically, Governor Kemp has:
• declared a public health state of emergency for the State of Georgia due to the spread ofCOVID-19, effective March 14, 2020, and subsequently extended it through and until August 11, 2020;
• ordered, on March 23, 2020, that all bars and nightclubs close and banned gatherings of more than ten (10) people;
• issued a Shelter-in-Place Order effective April 3-30, 2020; and • ordered "all residents and visitors in the State of Georgia" to practice social
distancing and sanitation in accordance with the guidelines published by the
' COVID-19 Daily Status Report, GA. DEP'T OF PUB. HEALTH, https://dph.georgia.gov/COVID19-daily-stafus-report. (last visited July 7, 2020).
4

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 5 of 24
Centers for Disease Control and Prevention and encouraged residents and visitors to wear masks in public to prevent the spread ofCOVID-19. [See Docs. 11-1, 11-3, 11-6, 11-7, 11-8, 11-9]; see also 2020 Executive Orders, OFFICE OF THE GOVERNOR, https://gov.georgia.gov/executive-action/executiveorders/2020-executive-orders. (last visited July 1, 2020). These restrictions were imposed in an effort to mitigate the spread of the vims, which easily transfers from person-to person, spreading at an alarming rate. Similarly, Defendant Raffensperger—in accordance with his duty to oversee Georgia's voting activities—has taken several measures to adjust the election process in light of COVID-19. Such measures include the postponement of the Georgia primary, encouraging voting by mail, and, as relevant here, extending the deadline for independent and third-party candidates to submit nomination petitions until August 14, 2020. pocs. 11-10, 11-12, 11-13]. This extension increased the signature gathering period from 180 to 211 days. 2d. Decl. of Chris Harvey ^J4 [Doc. 26-1]. C. The Parties The individual Plaintiffs in this case are third-party candidates for U.S. Representative in their respective districts. Compl. ^ 2,7-8. Both timely submitted a notice of candidacy and paid the $5,220 qualifying fee before the March 6 deadline. Id. At the time Plaintiffs filed their Complaint, Plaintiff Georgia Green Party had not yet paid the filing fee or filed a notice of candidacy for its presidential electors
5

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 6 of 24
because the applicable qualifying period did not begin until June 22. Id. ^ 9. However, in the Complaint, Plaintiff Georgia Green Party represented that it was poised to do so at the appropriate time. Id. Defendant Raffensperger, as Georgia's Secretary of State, is charged by statute with enforcing Georgia's ballot-access
restrictions. Id. ^10. After filing the requisite notices of candidacy and paying the qualifying fees,
the only remaining requirement for Plaintiffs to appear on the general ballot is to meet Georgia's signature requirements. See O.C.G.A. § 21-2-170(b). As noted above, the individual Plaintiffs must submit a nomination petition signed by 5% of the number of registered voters eligible to vote in the last election for the office that they are seeking. O.C.G.A. § 21-2-170(b). Political body candidates for President must submit a nominating petition containing at least 7,500 signatures. See Green Party v. Kemp, 171 F. Supp. 3d at 1372. According to Plaintiffs, Georgia's response to CO VID-19 has made it virtually impossible to gather signatures because "[gathering signatures during the COVID-19 outbreak endangers public health and the lives ofpetition-circulators and potential signers." [Doc. 11 at 16].
D. Procedural History On March 26, 2020, Plaintiffs filed the Complamt in this action. Compl. Plaintiffs bring a single claim pursuant to 42 U.S.C. § 1983, contending that "[u]nder the present circumstances, Georgia's ballot-access laws for independent

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 7 of 24
political-body candidates for President of the United States and U.S. Representative violate rights guaranteed to these [P]laintiffs by the First and Fourteenth Amendments to the U.S. Constitution." Id, TT 63. On May 8, 2020, Plaintiffs filed the instant Motion for Preliminary Injunction, seeking to enjoin the signature requirements for this election. [Doc. 11 at 33-34]. This motion has been fully briefed and, with the benefit of oral argument,2 is ripe for the Court's review. II. Discussion
A temporary restraining order or preliminary injunction is an "extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four" elements. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal marks and citations omitted). A plaintiff seeking a preliminary injunction must demonstrate that: (1) there is a substantial likelihood of success on the merits; (2) it will suffer irreparable injury if relief is not granted; (3) the threatened injury outweighs any harm the requested relief would inflict on the non-moving party; and (4) entry of relief would serve the public interest. See, e.g., KH Outdoor, LLC v. City ofTmssville, 458 F.3d 1261, 1268 (llth Cir. 2006). The decision as to whether a plaintiff carries this burden "is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion." Int'l Cosmetics Exch., Inc. v. Gapardis Health & Beauty, Inc., 303 F.3d
2 The undersigned held oral argument regarding Plaintiffs' motion on June 30, 2020. [Doc. 27].
7

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 8 of 24
1242, 1246 (llth Cir. 2002) (quoting Palmer v. Braun, 287 F.3d 1325, 1329 (llth Cir. 2002)) (internal quotation marks omitted).
Before addressing the merits of this case, the Court finds it necessary to define the nature of Plaintiffs' challenge. A litigant may challenge the constitutionality of a statute by asserting a facial challenge, an as-applied challenge, or both. See Harris v. Mexican Specialty Foods, Inc, 564 F.3d 1301, 1308 (llth Cir. 2009). While a facial challenge asserts that the challenged statute "always operates unconstitutionally," an "as-applied challenge, by contrast, addresses whether 'a statute is unconstitutional on the facts of a particular case or to a particular party.'" Id. (citations omitted). In this case. Plaintiffs do not assert that the ballot access laws "always operate unconstitutionally"; instead. Plaintiffs contest the constitutionality of the laws as they are applied during this election cycle in light ofCOVID-19. As such, they bring an as-applied challenge.3 With this context in mind, the Court turns to the four (4) preliminary injunction factors.
A. Substantial Likelihood of Success on the Merits To meet the first element for an injunction. Plaintiffs must demonstrate that they are likely to succeed on the merits of their § 1983 claim. Section 1983 provides
3 A facial challenge to these laws is currently pending in this Court before a fellow district judge. See Cowen v. Ga. Sec'v of State, No. 1:17-CV-4660-LMM (N.D. Ga. filed Nov. 21, 2017).
8

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 9 of 24
a cause of action for constitutional violations committed under color of state law.4 To prevail. Plaintiffs must show (1) that Defendant deprived them of a right secured under the Constitution or federal law and (2) that the deprivation occurred under color of state law. Amngton v. Cobb County, 139 F.3d 865, 872 (llth Cir.1998). The Court discusses the requirements in reverse.
i. Color of State Law "To satisfy section 1983's 'under color of [state law]' requirement, a plaintiff must demonstrate that 'the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State."' Gene Thompson Lumber Co. v. Davis Farmer Lumber Co., 984 F.2d 401,403 (11th Clr. 1993) (citine Lusar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). For a defendant's actions to be fairly attributable to the State, "[fjirst, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar, 457
U.S. at 937.
4 Section 1983 provides, in relevant part, that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42U.S.C. § 1983.

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 10 of 24
Here, Plaintiffs contend that the ballot access laws, and the Secretary's
enforcement of those laws, sufficiently satisfy the state action requirement. [Doc. 22
at 7-8]. The Court agrees. The ballot-access laws are a "rule of conduct" imposed
by the State of Georgia and enforced by the Secretary. See Lugar, 457 U.S. at 937.
Indeed, an analogous case found state action under the same circumstances.
SeeEsshaki v. Whitmer, No. 2:20-CV-10831-TGB, 2020 WL 1910154, at *1
(E.D.Mich. Apr. 20, 2020) (noting that "the State's actions in the form of
enforcing... the statutory ballot-access requirements" combined with
circumstances presented by COVID-19 to violate the plaintiffs First and Fourteenth
Amendment rights).5 Thus, the Court finds sufficient state action here.
ii. Constitutional Deprivation
The Court turns next to an assessment of the alleged constitutional
deprivation. The Supreme Court has long recognized that ballot access laws "place
burdens on two different, although overlapping, kinds of rights—the right of
5 The Secretary's argument on this issue is unavailing. In his brief, the Secretary argues that COVID-19 is the real source of Plaintiffs' woes, not a "statute, regulation, or policy" that the Secretary enforces. To support this position, the Secretary cites a footnote in a recent Order by this Court. See Coalition for Good Governance, et al. v. Raffensperger, et al.. No. 1 :20-CV-01677TCB, slip op. at * 10 n. 2 (N.D. Ga. May 14, 2020). However, the context of this footnote did not concern state action, but instead was used as separate justification for the Judge in that case to apply the political question doctrine. Id. But it is well-settled that this sort of case—one involving ballot access laws—is not precluded by the political question doctrine. See Williams v. Rhodes, 393 U.S. 23, 28 (1968) ("Ohio's claim that the political-question doctrine precludes judicial consideration of [ballot access] cases requires very little discussion. That claim has been rejected in cases of this kind numerous times."). Thus, the Court finds the Secretary's reliance on the aforementioned case to be misplaced.
10

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 11 of 24
individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). Ballot access restrictions affect candidates and individual voters alike because usually "voters can assert their preferences only through candidates or parties or both." Lubin v. Panish, 415 U.S. 709, 716 (1974). "By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences." Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). As the Supreme Court explained in Anderson v. Celebrezze, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical correlative effect on voters." 460 U.S. 780, 786 (1983) (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
When considering the constitutionality of ballot access laws, the Court applies the framework set out in Anderson. 460 U.S. at 780, as later refined in Burdick v. Takushi, 504 U.S. 428 (1992). Pursuant to the Anderson-Burdick test,
[w]hen deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (internal quotation marks omitted).
11

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 12 of 24
Stated differently, the Court:
must first "consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendment." [Andersonv. Celebrezze,] 460 U.S. 780, 789, 103 S. Ct. 1564 (1983). Then the court must "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. Finally, the court must "determine the legitimacy and strength of each of those interests," while also considering "the extent to which those interests make it necessary to burden the Plaintiffs rights." Id,
[I]f the state election scheme imposes "severe burdens" on the plaintiffs' constitutional rights, it may sundve only if it is "narrowly tailored and advance [s] a compelling state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). But when a state's election law imposes only "reasonable, nondiscriminatory restrictions" upon a plaintiffs First and Fourteenth Amendment rights, "a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Id. (quotations omitted). In short, the level of the scrutiny to which election laws are subject varies with the burden they impose on constitutionally protected rights—"Lesser burdens trigger less exacting review." Id.
Stein v. Alabama Sec'v of'State, 774 F.3d 689, 694 (1 1th Cir. 2014).
"For [the] intermediate cases, where the burden on the right to vote is
moderate," a court must "weigh that burden against the precise interests put forward
by the State as justifications for the burden imposed by its rule, taking into
consideration the extent to which those interests make it necessary to burden the
12

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 13 of 24
plaintiffs rights."6 Mays v. LaRose, 951 F.3d 775, 784 (6th Cir. 2020) (citing Burdick, 504 U.S. at 434) fintemal quotation marks omitted): see also People First of Alabama v. Sec'v of State for Alabama, No. 20-12184, 2020 WL 3478093,at *6 (11th Cir. June 25, 2020) (Rosenbaum & Pryor, JJ., concurring) ("But whatever the burden, no matter how slight, 'it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.'" (internal citations omitted)).
In sum, the "Supreme Court has rejected a litmus-paper test for constitutional challenges to specific provisions of a State's election laws and instead has applied a flexible standard." Common Cause/Georeia v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009) (quotation omitted). The Court turns now to the analysis of the test.
a. Severity of the Burden During normal circumstances, Georgia's signature collection requirements for an individual to gain a place on the ballot as a third-party candidate constitute reasonable, nondiscriminatory burdens. See Anderson, 460 U.S. at 788 (citing Jenness v. Fortson, 403 U.S. 431 (1971), which examined the laws at issue here, as an example where the state's important regulatory interests were sufficient to justify reasonable, nondiscriminatory burdens imposed by the laws); see also Coffield v.
6 Put another way, "[regulations falling somewhere in betvyeen—i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a flexible analysis, weighing the burden on the plaintiffs against the [s]tate's asserted interest and chosen means of pursuing it.'" Esshaki, 2020 WL 1910154, at *4 (citing Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016) (internal marks omitted)).
13

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 14 of 24
Handel, 599 F.3d 1276, 1277 (llth Cir. 2010) (upholding Georgia's 5% rule and noting that the state's pertinent laws had not changed materially since Jenness). As such, courts apply the rational basis test, which would be met in normal
circumstances because the State has an important interest in ensuring that a candidate makes a "preliminary showing of substantial support in order to qualify for a place on the ballot." Anderson, 460 U.S. at 788 n. 9.
However, no one can debate that conditions throughout the state, country, and world are anything but normal. As briefly detailed above, in response to the spread and threat of COVID-19, Governor Kemp declared a public health state of emergency for Georgia (which is still ongoing), mandated social distancing, recommended mask wearing, and, at one point, issued shelter-in-place orders for all Georgians. Other measures to mitigate the spread ofCOVID-19 include the closing of schools, bars, and nightclubs as well as prohibiting non-essential gatherings of more than ten (10) people in any one location at any time. Because of the ongoing pandemic and the subsequent restrictions on social interactions. Plaintiffs could not, and in many ways still cannot, gather signatures in the same safe and reasonable manner as they could during more typical times. For example, where Plaintiffs may have once been able to visit locations, such as a mall, where large numbers of registered voters were likely gathered, the combined effect of the Governor's Orders and the pandemic virtually eliminated such possibilities.
14

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 15 of 24
Under these circumstances, and as applied to Plaintiffs, the signature constraints certainly place an increased burden on Plaintiffs' constitutional rights. Indeed, Defendant concedes that Georgia's petition requirements "may be more burdensome under the present circumstances." [Doc. 17 at 22]. Nevertheless, the Secretary argues that the increased burden is not severe, as Plaintiffs contend.
To support this position, the Secretary highlights several facts. First, it is undisputed that the petitioning period for these candidates opened nearly two (2) months prior to the onset of any of the Governor's Orders stemming from COVID-19. Second, while the entirety of the State of Georgia was under a shelterin-place Order during the month of April, the Order was lifted for most Georgians by May. Third, the State of Georgia has been reopening in stages during the recent months. Fourth, the Secretary has already extended the petitioning period by thirty-one (31) days to ameliorate the increased burden he concedes the public health emergency has imposed on Plaintiffs. [See generally Doc. 17].
In response, Plaintiffs argue that many of these facts bear no consequence on the burden imposed on their constitutional rights. For example. Plaintiffs maintain that many Georgians, including Plaintiff Cowen, remain under a shelter-in-place order of unlimited duration. [Doc. 22 at 13]. Plaintiffs also contend that social distancing remains the law even as the state reopens, and voters may remain wary of
15

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 16 of 24
close physical contact for some time. Thus, Plaintiffs argue that the burden remains
severe.
Upon consideration of the Parties' arguments and circumstances as they exist in Georgia, the Court finds that the burden as applied here is not severe, but moderate. "The hallmark of a severe burden is exclusion or virtual exclusion from the ballot." Libertarian Party of Kentucky v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016) (comparing Lubin, 415 U.S. at 719 (striking $701.60 filing fee for ballot-access petition because it excluded indigent candidates from running for office with no reasonable alternative means of access), and Rhodes, 393 U.S. at 24 (striking election laws that "made it virtually impossible" for independent parties to gain ballot access), with Jenness, 403 U.S. at 438 (upholding petition signature requirement of 5% of all registered Georgia voters and noting that such a requirement does not "freeze the political status quo")). Here, Plaintiffs are not "virtually excluded from the ballot." Plaintiffs had nearly two (2) months prior to the onset of the COVID-19 pandemic to collect signatures and are afforded the benefit of an extended deadline of thirty-one (31) days. Moreover, while the combined effect ofCOVID-19 with the Governor's Orders certainly brought the state to a halt for a significant period of time, it is undisputed that the state is
reopening m many ways.
16

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 17 of 24
"In the end, 'there is no hard-and-fast mle as to when a restriction on ballot
eligibility becomes an unconstitutional burden.'" Garbett v. Herbert, No. 2:20-CV-
245-RJS, 2020 WL 2064101, at *12 (D. Utah Apr. 29, 2020).
Rather, the court must consider the "character and magnitude" of the injury in view of the statutory framework as a whole, the practical effect of the election laws, and the available avenues to the ballot. And because [Plaintiffs] bring[] an as-applied challenge, the court must consider [their] injury under the unique circumstances related to the COVID-19pandemic.
Id. In sum, after considering the hardships of the COVID-19 pandemic, the
Governor's responses thereto, Georgia's current ballot access laws, the Secretary's
responsive measures thus far, and recent conditions in Georgia, the Court finds that
the State's signature requirements pose a moderate burden on Plaintiffs.7
b. Identification and Evaluation of the State's Interest
The second and third steps in the Anderson-Burdick test require the Court to
"identify the interests advanced by the State as justifications for the burdens" and
"evaluate the legitimacy and strength of each asserted state interest and determine
the extent to which those interests necessitate the burdening of the plaintiffs' rights."
7 Plaintiffs point to several cases where other courts, facing similar challenges, characterized the increased burden as severe. See. e.s., Garbett, 2020 WL 2064101, at *6-12; Esshaki, 2020 WL 1910154,at *6,affd in part and reversed in part, No. 20-136, 2020 WL 2185553, at *1 (6th Cir. May 5,2020) ("The district court correctly determined that the [ballot-access restrictions] imposed a severe burden on the plaintiffs' ballot access, so strict scrutiny applied."). The Court need not distinguish these cases because requests for preliminary injunctions, by their very nature, necessitate a fact-intensive, individual analysis. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 394 (2006) (requiring case-by-case assessment of preliminary injunction factors).
17

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 18 of 24
Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir. 1985). Defendant identifies two (2) interests for Georgia's ballot access laws: (1) the State's mterest in not burdening the general election ballot with frivolous candidacies (or stated differently, the State's interest in ensuring a candidate demonstrates significant support before appearing on the ballot); and (2) the State's generalized interest in the orderly administration of elections. [Doc. 17 at 23]. Because the Court categorizes Plaintiffs' burden as moderate, the undersigned must weigh Plaintiffs' "burden . . . against the State's asserted interest and chosen means of pursuing it." Esshaki, 2020 WL 1910154, at :1;4.
The Supreme Court has recognized that states have "an important interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election." Jenness, 403 U.S. at 442. Additionally, in Storer v. Brown, the Supreme Court held that a state has a "compelling" interest in "the stability of its political system," which certainly speaks to the State's interest in the orderly administration of elections. 415 U.S. 724, 736 (1974). To achieve these interests, the State has chosen to adhere to its ballot access laws with one amendment—an increase in the petitioning period of thirty-one (31) days.
18

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 19 of 24
During this present exigency, the Court finds that the State's interests do not comport with its chosen means of pursuing them. In other words, while the Court recognizes the important state interest of ensuring a candidate has a significant modicum of support before appearing on the ballot, and its interest in administering orderly elections, the Secretary's thirty-one-day accommodation does not go far enough to alleviate Plaintiffs' mcreased burden in light of the constraints presented by the COVED-19 pandemic. There is no doubt that Plaintiffs have been deprived of significant time and typical means of collecting signatures. Despite this, the Secretary only increased the deadline by thirty-one (31) days. The Secretary could have, for example, reduced the number of signatures required while satisfymg the State's asserted interests. In short, while the Governor's responses to CO VID-19 were undoubtedly necessary, the Secretary failed to institute sufficient complementary measures to account for the increased burden on Plaintiffs' constitutionally protected ballot access rights.
For these reasons, as applied to Plamtiffs during the 2020 election cycle, the Court concludes that the moderate burden on Plaintiffs is not justified by the State's asserted interests and its chosen means of preserving them. As such, Plaintiffs have shown a substantial likelihood of success on their § 1983 claim for Defendant's alleged violation of the First and Fourteenth Amendments of the United States
19

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 20 of 24
Constitution, satisfying the first of the preliminary injunction factors. See KH Outdoor, 458 F.3d at 1268.
B. Irreparable Injury The Court turns next to its assessment of irreparable harm, the second element of a preliminary injunction. Id. It is well-settled that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Bums, 427 U.S. 347, 373 (1976) (plurality opinion). Thus, when a plaintiff alleges her First Amendment rights have been infringed, irreparable injury is generally presumed. See id. Further, the Supreme Court has confirmed that the possibility that being unjustifiably shut out from an election constitutes irreparable injury. See Brown v. Chote, 411 U.S. 452, 456, (1973) (affirming district court's finding of irreparable injury where "appellee's opportunity to be a candidate would have been foreclosed, absent some relief); see also League of Women Voters v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) ("Courts routinely deem restrictions on fundamental voting rights irreparable injury" because "once the
election occurs, there can be no do-over and .no redress.").
Accordingly, due to the rights at stake and the Court's determination regarding Plaintiffs' likelihood of success on the merits, the undersigned finds that Plaintiffs will suffer irreparable harm absent an injunction. Thus, the Court finds
20

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 21 of 24
Plaintiffs demonstrate the second element necessary to obtain a preliminary
injunction.
C. Balance of the Harms and Public Interest The remaining two (2) factors of the four-part preliminary injunction test, "harm to the opposing party and weighing the public interest ... merge when the Government is the opposing party." Nken v. Holder, 556 U.S. 418, 435 (2009). Usually, the Court would consider each factor in view of Plaintiffs' proposed relief. Here, however, acting in equity, the Court grants Plaintiffs a remedy narrower than the one they seek.8 Specifically, for the reasons outlined below, the Court will order the Secretary, in addition to his self-imposed extension, to reduce the signature requirements by 30%. The Court therefore reviews these remaining two (2) injunction factors in light of the specific relief to be granted. The Court finds both factors to be satisfied. First, the balance of the harms tips in favor of Plaintiffs. Plaintiffs will be forever harmed if they are unconstitutionally forbidden from the ballot. The Secretary, on the other hand, will not be harmed by a 30% reduction in the number of necessary signatures. Not only does the reduction require little action on the part of the Secretary, but also, as
8 "[A] court need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case." See Trump v. Int'l Refugee Assistance Protect, 137 S. Ct. 2080, 2087 (2017) (per curiam) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2947 (3d ed. 2013)) (internal quotation marks omitted).
21

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 22 of 24
discussed above, it satisfies the State's interest of ensuring that the candidate has a significant modicum of support before appearing on the ballot.9
Second, the public will be served by this injunction. Voters have an interest in choosing the candidate of their choice and should not be unconstitutionally prevented from doing so. See Purcell v. Gonzalez, 549 U.S. 1,4 (2006) (recognizing the public has a "strong interest in exercising the fundamental political right to vote"); Illinois State Bd. of Elections, 440 U.S. at 184 ("By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences."). Additionally, "it is always in the public interest to prevent the violation of a party's constitutional rights." Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc).
Accordingly, Plaintiffs have carried their burden as to each of the four (4) preliminary injunction factors. See KH Outdoor, 458 F.3d at 1283. Thus, the Court turns now to its remedy.10
9 The Court also notes that Defendant does not oppose this reduction. [Doc. 17 at 28]. 10 Federal Rule of Civil Procedure 65(c) provides that a "court may issue a prelimmary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." FED. R. Civ. P. 65(c). While Plaintiffs do mention the bond requirement, the Court, in its discretion, waives it. See BellSouth Telecoms., Inc. v. MCIMetro Access Transmission Serv.. LLC, 425 F.3d 964,971 (11th Cir. 2005) ("[I]t is well-established that the amount of security required by [Rule 65(c)] is a matter within the discretion of the trial court, and the court may elect to require no security at all." (internal citation and punctuation omitted)).
22

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 23 of 24
III. Remedy "Grafting a preliminary injunction is an exercise of discretion and judgment,
often dependent as much on the equities of a given case as the substance of the legal issues it presents." Tmmp v. Int'l Refugee Assistance Project, 137 S. Ct. 2080,2087 (2017) (per curiam). In formulating the appropriate remedy, "a court need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case." Id. (citation omitted). Here, Plamtiffs request that the Court suspend, in totality, the signature requirements for this election. However, the Court declines Plaintiffs' request and instead directs the Secretary to reduce the signature requirements for third-party candidates by 30%.
In craftmg this remedy, the Court by no means discounts the challenges Plaintiffs have faced in their signature collection efforts amid the COVID-19 pandemic. However, the Court must balance these difficulties with the need to honor the State's legitimate interest in ensuring that only candidates with a measurable modicum of public support will gain access to the 2020 general election ballot. SeeJenness, 403 U.S. at 442. Suspending the signature requirement entirely, without requiring candidates to othenvise demonstrate support, would wrongfully disregard the State's interest. See Munro v. Socialist Workers Party, 479 U.S. 189, 197 (1986) (noting that states need not provide automatic ballot access). Accordingly, the Court finds a 30% reduction in the signature collection
23

Case 1:20-cv-01312-ELR Document 29 Filed 07/09/20 Page 24 of 24
requirement, combined with the State's previous extension of the signature collection deadline, balances the interests of all Parties. The Court emphasizes that the equitable relief it provides is limited to the 2020 election in these extraordinary times, which is the sole subject of the case before us.u IV. Conclusion
Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Preliminary Injunction. [Doc. 11]. Specifically, the Court grants Plaintiffs' request for preliminary injunctive relief but declines to impose their invited remedy. The Court ORDERS the Secretary to reduce the relevant signature requirements by 30% for the 2020 general election.
SO ORDERED, this 7 day of July, 2020.
Eleanor L. Ross
United States District Judge Northern District of Georgia
n Although not requested by Plaintiffs, the Court declines to further extend the petitioning deadline. For any election in which a federal office is at issue, federal law mandates that ballots must be transmitted to military and overseas voters no later than forty-five (45) days in advance of the election. See 52 U.S.C. § 20302(a)(8)(A). Defendant represents that the current deadline of August 14, 2020, is the furthest date it may set to ensure validation of signatures and transmission to military and overseas voters. [Doc. 17 at 9-10].
24

 
 Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

James L. “Jimmy” Cooper, III, et al.,
Plaintiffs,
vs.
Brad Raffensperger, in his official capacity as Secretary of State of the State of Georgia,
Defendant.

Case No. 1:20-cv-01312-ELR
Plaintiffs’ Motion for Summary Judgment

The plaintiffs respectfully move the Court for summary judgment based on this Court’s ruling on the plaintiffs’ motion for a preliminary injunction. (ECF 29.)
Background This is an action challenging Georgia’s ballot-access requirements for independent and third-party candidates in light of the public health emergency caused by the novel coronavirus. The plaintiffs are two third-

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 2 of 8
party candidates for United States Representative and the Georgia Green Party. They allege that, under these circumstances, Georgia’s ballot-access restrictions unconstitutionally burden their rights under the First and Fourteenth Amendments to the U.S. Constitution, and they seek declaratory and injunctive relief pro-rating the number of petition signatures required for the 2020 general election.
The plaintiffs filed a motion for a preliminary injunction in early May. After a hearing, the Court granted the motion in part after determining, among other things, that the plaintiffs “have shown a substantial likelihood of success” on their claim. (ECF 29 at 19.) As a remedy, the Court issued a preliminary injunction reducing Georgia’s petition-signature requirements for the 2020 election by 30 percent. (ECF 29.) The preliminary injunction effectively gave the plaintiffs all of the injunctive relief they sought. (ECF 1 ¶2.) Neither party has appealed that ruling, and the time for an appeal has now expired.
Although the election has not yet taken place, all that remains of the plaintiffs’ claims is their request for a declaratory judgment “that, in light of the current public health emergency caused by the novel coronavirus, Georgia’s ballot-access laws for independent and politicalbody candidates for President of the United States and U.S.
2

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 3 of 8
Representatives violate rights guaranteed by the First and Fourteenth Amendments to the U.S. Constitution, as enforced by 42 U.S.C. § 1983.” (ECF 1 at 18.)
The preliminary-injunction order sets out the Court’s findings of facts and conclusions of law in some detail. None of the materials facts upon which the Court relied were at all disputed. Rather than repeat those facts here, the plaintiffs incorporate the facts as set out by the Court. A statement of undisputed material facts is also attached to this motion.
Legal Standard Under Rule 56 of the Federal Rules of Civil Procedure, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is “a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). A dispute about a material fact is genuine if the evidence would allow a reasonable
3

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 4 of 8
jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether to grant or deny summary judgment, the court’s role is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Id. at 249. In doing so, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Discussion The Court should grant summary judgment for the reasons set out in part II.A. of its order on the plaintiffs’ motion for a preliminary injunction. (ECF 29 at 8-20.) There, the Court applied the wellestablished balancing test set forth in Anderson v. Celebrezze: First, a court must evaluate the character and magnitude of the asserted injury to rights protected by the First and Fourteenth Amendments. Second, it must identify the interests advanced by the State as justifications for the burdens imposed by the rules. Third, it must evaluate the legitimacy and strength of each asserted state interest and determine the extent to which those interests necessitate the burdening of the plaintiffs’ rights.
4

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 5 of 8
Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir. 1985) (paraphrasing Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)); accord Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1342 (11th Cir. 2020). Applying that test to the facts of this case—none of which are disputed— the Court concluded that the burden on the plaintiffs’ constitutional rights under these circumstances “is not justified by the State’s asserted interests and its chosen means of preserving them.” (ECF 29 at 19). Accordingly, the Court ruled that the plaintiffs were likely to succeed on their constitutional claim. (Id.)
The same analysis applies now. The facts remain undisputed. The legal framework has not changed. The Court should once again conclude that Georgia’s ballot-access laws impose an unjustified and therefore unconstitutional burden on the plaintiffs’ rights under present circumstances.
Conclusion For the foregoing reasons, the Court should grant the plaintiffs’ motion for summary judgment.
5

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 6 of 8 Respectfully submitted this 21st day of August, 2020. /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
6

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 7 of 8
CERTIFICATE OF COMPLIANCE I hereby certify that the forgoing PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT was prepared in 13-point Century Schoolbook in compliance with Local Rules 5.1(C) and 7.1(D). /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
7

Case 1:20-cv-01312-ELR Document 34 Filed 08/21/20 Page 8 of 8
CERTIFICATE OF SERVICE I hereby certify that on August 21, 2020, I electronically filed the foregoing PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: Charlene McGowan: cmcgowan@law.ga.gov /s/ Bryan L. Sells Attorney Bar No. 635562 Attorney for the Plaintiffs The Law Office of Bryan L. Sells, LLC PO Box 5493 Atlanta, Georgia 31107-0493 Telephone: (404) 480-4212 Email: bryan@bryansellslaw.com
8