4months,CLASS,EXH,SUBMDJ
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:20−cv−01489−AT

Black Voters Matter Fund et al v. Raffensperger et al Assigned to: Judge Amy Totenberg Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/08/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Black Voters Matter Fund

represented by Dale E. Ho American Civil Liberties Union Foundation−NY 18th Floor 125 Broad St. New York, NY 10004 212−549−2693 Email: dho@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 P.O. Box 77208 Atlanta, GA 30309 770−303−8111 Fax: 770−303−0060 Email: syoung@acluga.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sophia Lin Lakin American Civil Liberties Union Foundation−NY 18th Floor 125 Broad St. New York, NY 10004 212−284−7332 Email: slakin@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Megan Gordon

represented by Dale E. Ho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 Atlanta, GA 30309 770−303−8111 Fax: 770−303−0060 Email: syoung@acluga.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Penelope Reid
Plaintiff Andy Kim on behalf of themselves and all others similarly situated TERMINATED: 05/27/2020
V. Defendant Brad Raffensperger in his official capacity as Secretary of State of Georgia

Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dale E. Ho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dale E. Ho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: adenton@robbinsfirm.com ATTORNEY TO BE NOTICED
Brian Edward Lake Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: blake@robbinsfirm.com ATTORNEY TO BE NOTICED

Defendant DeKalb County Board of Registration & Elections
Defendant Anthony Lewis

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
Joshua Barrett Belinfante Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: jbelinfante@robbinsfirm.com ATTORNEY TO BE NOTICED
Melanie Leigh Johnson Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: mjohnson@robbinsfirm.com ATTORNEY TO BE NOTICED
Vincent Robert Russo , Jr. Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: vrusso@robbinsfirm.com ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els DeKalb County Law Department 5th Floor 1300 Commerce Dr. Decatur, GA 30030 404−371−3618 Email: ivanderels@dekalbcountyga.gov ATTORNEY TO BE NOTICED
Shelley Driskell Momo DeKalb County Law Department 5th Floor 1300 Commerce Dr. Decatur, GA 30030 404−371−3011 Fax: 404−371−3024 Email: sdmomo@dekalbcountyga.gov ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED

Defendant Susan Motter
Defendant Dele Lowman Smith
Defendant Samuel E. Tillman
Defendant Baoky N. Vu in their official capacities as Members of the DeKalb County Board of Registration & Elections
Defendant Erica Hamilton in her official capacity as Director of Voter Registration and Elections, and all others similarly situated

Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/08/2020
04/08/2020

# Docket Text
1 COMPLAINT filed by Black Voters Matter Fund, Megan Gordon. (Filing fee $400, receipt number AGANDC−9573337) (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: 04/08/2020)
2 MOTION for Preliminary Injunction with Brief In Support by Black Voters Matter Fund, Megan Gordon. (Attachments: # 1 Brief in Support, # 2 Exhibit A (Albright Decl.), # 3 Exhibit B (absentee ballot application), # 4 Exhibit C (absentee voting guide), # 5 Exhibit D (Gordon Decl.), # 6 Exhibit E (news article re poll worker

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shortage), # 7 Exhibit F (Governor's emergency order), # 8 Exhibit G (news article re President's death toll estimate), # 9 Exhibit H (Ga. Dept. of Health stats), # 10 Exhibit I (NDGa Order), # 11 Exhibit J (news article re prior death toll), # 12 Exhibit K (Mich. Gov. emergency order))(bnp) (Entered: 04/08/2020)
3 Electronic Summons Issued as to Dekalb County Board of Registration & Elections and Brad Raffensperger. (Attachments: # 1 Summons DeKalb County Board of Registration & Elections)(bnp) (Entered: 04/08/2020)
Submission of 2 MOTION for Preliminary Injunction to District Judge Amy Totenberg. (bnp) (Entered: 04/08/2020)
4 Amended 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 3/30/2020. (bnp) (Entered: 04/08/2020)
5 Certificate of Interested Persons by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/08/2020)
6 STANDING ORDER: GUIDELINES TO PARTIES AND COUNSEL PROCEEDING BEFORE THE HONORABLE AMY TOTENBERG. You are required to sign and file a Certificate of Compliance in a format consistent with the Certificate of Compliance attached hereto. To request to file material under seal, the Parties should follow the mechanism described in Section II(J) of Appendix H to the Court's Local Civil Rules. Signed by Judge Amy Totenberg on 4/8/2020. (bnp) (Entered: 04/08/2020)
7 CERTIFICATE of Compliance for all Plaintiffs' attorneys (Young, Sean) (Entered: 04/08/2020)
8 Supplemental Brief re: new election dates re 2 MOTION for Preliminary Injunction by Black Voters Matter Fund, Megan Gordon (Young, Sean) Modified on 4/9/2020 to edit event text(bnp). (Entered: 04/09/2020)
9 ORDER re 2 Plaintiffs' MOTION for Preliminary Injunction filed by Megan Gordon, Black Voters Matter Fund. Defendants are DIRECTED to file a Response to the Motion NO LATER THAN Friday, April 17, 2020 at 2:00 PM. Plaintiffs are DIRECTED to file a Reply NO LATER THAN April 22, 2020 at 2:00 PM. The Court will conduct an audio or video remote hearing on the Motion on Friday, April 24, 2020 at 10:30 AM. SEE ORDER FOR FURTHER DETAILS. Signed by Judge Amy Totenberg on 4/10/2020. (hpc) (Entered: 04/10/2020)
10 CERTIFICATE OF SERVICE re 9 Order, filed by Black Voters Matter Fund, Megan Gordon re: service status for Complaint, Summons, Motion, and April 10 Order (Young, Sean) (Entered: 04/10/2020)
11 Return of Service Executed by Black Voters Matter Fund, Megan Gordon. DeKalb County Board of Registration & Elections served on 4/9/2020, answer due 4/30/2020. (Young, Sean) (Entered: 04/13/2020)
12 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Marilynn Winn by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/13/2020)
13 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Marc Mooney by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/13/2020)
14 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Dohyun Ahn by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/13/2020)
15 CERTIFICATE OF SERVICE filed by Black Voters Matter Fund, Megan Gordon confirming perfection of service on Defendant Secretary of State (Young, Sean) (Entered: 04/13/2020)
16 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Britt Farbo by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)
17 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Daniel Kirslis by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)

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18 Return of Service Unexecuted by Black Voters Matter Fund, Megan Gordon as to Brad Raffensperger. (Young, Sean) (Entered: 04/14/2020)
19 NOTICE of Appearance by Charlene S McGowan on behalf of Brad Raffensperger (McGowan, Charlene) (Entered: 04/14/2020)
20 CERTIFICATE of Compliance (McGowan, Charlene) (Entered: 04/14/2020)
21 NOTICE of Appearance by Shelley Driskell Momo on behalf of DeKalb County Board of Registration & Elections (Momo, Shelley) (Entered: 04/14/2020)
22 CERTIFICATE of Compliance re 6 Court's standing order by DeKalb County Board of Registration & Elections (Momo, Shelley) Modified on 4/15/2020 to edit event text(bnp). (Entered: 04/14/2020)
23 NOTICE of Appearance by Irene B. Vander Els on behalf of DeKalb County Board of Registration & Elections (Vander Els, Irene) (Entered: 04/14/2020)
24 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Delinda Bryant by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)
25 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Savanah Kite by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)
26 AFFIDAVIT re 2 MOTION for Preliminary Injunction − David Walbert by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)
27 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Janice Walker by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/14/2020)
28 APPLICATION for Admission of Sophia Lin Lakin Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9592651).by Black Voters Matter Fund. (Young, Sean) Documents for this entry are not available for viewing outside the courthouse. (Entered: 04/14/2020)
29 APPLICATION for Admission of Dale E. Ho Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9592785).by Black Voters Matter Fund. (Young, Sean) Documents for this entry are not available for viewing outside the courthouse. (Entered: 04/14/2020)
86 Minute Entry for proceedings held before Judge Amy Totenberg: Telephone Conference held on 4/14/2020. The deadline for Defendants to respond to the 2 Motion for Preliminary Injunction is extended to Monday, April 20, 2020 at noon. (Court Reporter Shannon Welch)(bnp) (Entered: 05/05/2020)
30 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Sarah Burke by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/15/2020)
31 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Jay Solomon by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/15/2020)
32 NOTICE of Appearance by Vincent Robert Russo, Jr on behalf of Brad Raffensperger (Russo, Vincent) (Entered: 04/16/2020)
33 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Ahmed Mahmood by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/16/2020)
34 NOTICE of Appearance by Melanie Leigh Johnson on behalf of Brad Raffensperger (Johnson, Melanie) (Entered: 04/16/2020)
35 NOTICE of Appearance by Joshua Barrett Belinfante on behalf of Brad Raffensperger (Belinfante, Joshua) (Entered: 04/16/2020)
36 NOTICE of Appearance by Brian Edward Lake on behalf of Brad Raffensperger (Lake, Brian) (Entered: 04/16/2020)
37 NOTICE of Appearance by Alexander Fraser Denton on behalf of Brad Raffensperger (Denton, Alexander) (Entered: 04/16/2020)
38 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Penelope Frazer Reid by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/16/2020)

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39 TRANSCRIPT of Telephone Conference Proceedings held on 4/14/2020, before Judge Amy Totenberg. Court Reporter/Transcriber Shannon R. Welch, RMR, CRR. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory−court−reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/8/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/16/2020. (Attachments: # 1 Notice of Filing) (srw) (Entered: 04/17/2020)
40 NOTICE: Letter received 4/17/20 by Brad Raffensperger (hfm) (Entered: 04/17/2020)
ORDER by docket entry only re 40 Notice filed by Brad Raffensperger. The Court received a letter dated April 17, 2020 from Counsel for the Secretary of State indicating that ballots will begin mailing out on Tuesday, April 21, 2020. The Court intends to have a phone conference at 2:30 PM today. All counsel are directed to reach out to the Courts Deputy Clerk Harry Martin immediately to confirm their availability. By Judge Amy Totenberg on 4/17/20. (hfm) (Entered: 04/17/2020)
ORDER, by docket entry only. Counsel for Defendants should be prepared to address the following during todays conference call: The online voter Absentee Ballot Application form available on the Georgia Secretary of States website is different from the version of the form available on the DeKalb County Board of Registration and Elections website. The version of the form on the SOS website is FORM #ABS−APP−18. The version of the form on the DeKalb Co. website is FORM #ABS−APP−14. Are voters required to use only the form provided on the Secretary of States website or are forms provided by the county board of elections an acceptable method for requesting absentee ballots? By Judge Amy Totenberg on 4/17/20. (hfm) (Entered: 04/17/2020)
RETURN of 28 APPLICATION for Admission of Sophia Lin Lakin Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9592651). to attorney for correction re: Local counsel's address. Please refile with a physical address. (cdg) (Entered: 04/17/2020)
RETURN of 29 APPLICATION for Admission of Dale E. Ho Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9592785). to attorney for correction re:Local counsel's address. Please refile application with a physical address. (cdg) (Entered: 04/17/2020)
41 APPLICATION for Admission of Sophia Lin Lakin Pro Hac Vice.by Black Voters Matter Fund. (Young, Sean) Documents for this entry are not available for viewing outside the courthouse. (Entered: 04/17/2020)
42 APPLICATION for Admission of Dale E. Ho Pro Hac Vice.by Black Voters Matter Fund. (Young, Sean) Documents for this entry are not available for viewing outside the courthouse. (Entered: 04/17/2020)
43 Minute Entry for proceedings held before Judge Amy Totenberg: Telephone Conference held on 4/17/2020. The Parties are directed to advise the Court's deputy clerk of their availability for a Thursday, April 23, 2020 hearing date by no later than Monday at noon. (Court Reporter Shannon Welch)(bnp) (Entered: 04/17/2020)
44 Plaintiffs' Second Supplemental Brief in Support re 2 MOTION for Preliminary Injunction by Black Voters Matter Fund, Megan Gordon − modifying requested injunctive relief for June elections (Young, Sean) Modified on 4/20/2020 to edit event text (bnp). (Entered: 04/17/2020)
45 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Cynthia Robinson by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/17/2020)
46 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Preston Robinson by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/17/2020)
47 Consent MOTION for Leave to File Excess Pages by Brad Raffensperger. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Consent Motion To File Excess Pages)(Russo, Vincent) (Entered: 04/18/2020)

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Submission of 47 Consent MOTION for Leave to File Excess Pages to District Judge Amy Totenberg. (bnp) (Entered: 04/20/2020)
48 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Supplemental Declaration of Daniel Kirslis by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/20/2020)
49 ORDER granting 47 Consent Motion for Leave to File a Brief in Excess of 25 Pages. Signed by Judge Amy Totenberg on 4/20/2020. (bnp) (Entered: 04/20/2020)
50 RESPONSE re 2 MOTION for Preliminary Injunction filed by DeKalb County Board of Registration & Elections. (Attachments: # 1 Exhibit DEFENDANT DEKALB COUNTY BOARD OF REGISTRATION AND ELECTIONS RESPONSE TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION)(Momo, Shelley) Modified on 4/21/2020 to edit text(bnp). (Entered: 04/20/2020)
51 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by Brad Raffensperger. (Attachments: # 1 Exhibit A − Affidavit of Kevin Rayburn, # 2 Exhibit B − State Election Board Rule, # 3 Exhibit C − First Executive Order, # 4 Exhibit D − Second Executive Order, # 5 Exhibit E − OPB Declaration of Stephanie Beck, # 6 Exhibit F − 2016 Election Information, # 7 Exhibit G − Fair Fight Action, Inc. Decision, # 8 Exhibit H − LaRose Order)(Russo, Vincent) (Entered: 04/20/2020)
ORDER, by docket entry only: In light of Plaintiffs' 44 Second Supplemental Brief and State Defendant's 51 Response, the Court concludes that it would be preferable to retain the original plan of holding a hearing on Plaintiff's 2 Motion for Preliminary Injunction on Friday at 10:30 am. Defendants have indicated that they can provide a list of potential witness by close of business today. Plaintiffs are directed to submit a list of potential witnesses by no later than Wednesday at noon. The Parties are further directed to exchange exhibits by Thursday at noon. By Judge Amy Totenberg on 4/20/20. (hfm) (Entered: 04/20/2020)
52 TRANSCRIPT of Telephone Conference Proceedings held on 4/17/2020, before Judge Amy Totenberg. Court Reporter/Transcriber Shannon R. Welch, RMR, CRR. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory−court−reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/12/2020. Redacted Transcript Deadline set for 5/22/2020. Release of Transcript Restriction set for 7/20/2020. (Attachments: # 1 Notice of Filing) (srw) (Entered: 04/21/2020)
ORDER by docket entry only: Defendants are DIRECTED to file with the Court and deliver to chambers physical copies of (a) five different sample absentee ballots for DeKalb County (Democratic and Republican, each with and without prior early voting in the Presidential Preference Primary, and Independent); and (b) the two envelopes to be included in the package sent to a voter who has registered to vote by absentee ballot. Defendants shall file images of the above by no later than today, and shall deliver physical copies by hand delivery or express mail to chambers care of Harry Martin by no later than 1pm tomorrow. By Judge Amy Totenberg on 4/21/20. (hfm) (Entered: 04/21/2020)
53 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Anna Wille by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/21/2020)
APPROVAL by Clerks Office re: 41 APPLICATION for Admission of Sophia Lin Lakin Pro Hac Vice.. Attorney Sophia Lin Lakin added appearing on behalf of Black Voters Matter Fund (cdg) (Entered: 04/21/2020)
APPROVAL by Clerks Office re: 42 APPLICATION for Admission of Dale E. Ho Pro Hac Vice.. Attorney Dale E. Ho added appearing on behalf of Black Voters Matter Fund (cdg) (Entered: 04/21/2020)
54 RESPONSE re Order,, Of Secretary Of State Brad Raffensperger filed by Brad Raffensperger. (Attachments: # 1 Exhibit 1 − Minute entry Order, # 2 Exhibit 2 − responsive ballots, # 3 Exhibit 3 − responsive ballot envelopes)(Belinfante, Joshua) (Entered: 04/21/2020)

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55 RESPONSE re Order,, Response to Order Dated April 21, 2020 Regarding Sample DeKalb County Absentee Ballots filed by DeKalb County Board of Registration & Elections. (Vander Els, Irene) (Entered: 04/21/2020)
56 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Kattie Vinson Kendrick by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/22/2020)
ORDER, by docket entry only, granting 41 and 42 Applications for Admission Pro Hac Vice. By Judge Amy Totenberg on 4/22/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(hfm) (Entered: 04/22/2020)
57 REPLY BRIEF re 2 MOTION for Preliminary Injunction filed by Black Voters Matter Fund, Megan Gordon. (Attachments: # 1 Exhibit L − Reingold Decl, # 2 Exhibit M − Voter Registration Form)(Young, Sean) (Entered: 04/22/2020)
58 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Genia Billingsley by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/22/2020)
59 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Shantrice Jones by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/22/2020)
60 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Jerald Luster by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/22/2020)
61 NOTICE Of Filing Sample DeKalb County Absentee Ballots by DeKalb County Board of Registration & Elections re Order,, (Attachments: # 1 Exhibit Exhibit A (sample ballots), # 2 Exhibit Exhibit B (sample envelopes), # 3 Exhibit Exhibit C (cover letter))(Vander Els, Irene) (Entered: 04/22/2020)
62 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Luanne Taylor by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/22/2020)
NOTICE OF VIDEO PROCEEDING re: 2 MOTION for Preliminary Injunction. Hearing set for 4/24/2020 at 10:30 AM before Judge Amy Totenberg. Connection Instructions: https://ganduscourts.zoomgov.com/j/1618393491, Meeting ID: 161 839 3491, Password: 637523, Dial by your location: +1 669 254 5252 US (San Jose), +1 646 828 7666 US (New York). You must follow the instructions of the Court for remote proceedings available here. Photographing, recording, or broadcasting of any judicial proceedings, including proceedings held by video teleconferencing or telephone conferencing, is strictly and absolutely prohibited. (hfm) (Entered: 04/23/2020)
63 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Jo Williams by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/23/2020)
64 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Wayman Stewart by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/23/2020)
65 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Richard Evans by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/23/2020)
66 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Rita Bacot by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/23/2020)
67 MOTION to Dismiss Plaintiffs' Complaint with Brief In Support by Brad Raffensperger. (Attachments: # 1 Brief Secretary of State Brad Raffensperger's Brief in Support of His Motion to Dismiss)(Belinfante, Joshua) (Entered: 04/23/2020)
68 AFFIDAVIT re 2 MOTION for Preliminary Injunction − Michael Rethinger by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 04/23/2020)
ORDER, by docket text only: Plaintiffs shall file their Response to Defendant's 67 MOTION to Dismiss NO LATER THAN Friday, May 1, 2020. Defendant Raffensperger shall file his Reply NO LATER THAN Wednesday, May 6, 2020. Signed by Judge Amy Totenberg on 04/24/2020. (hpc) (Entered: 04/24/2020)

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69 Minute Entry for proceedings held before Judge Amy Totenberg: Motion Hearing held on 4/24/2020 re 2 MOTION for Preliminary Injunction. Opening statements. Plaintiff witness Cliff Albright sworn and testified. Defendant witness Kevin Rayburn sworn and testified. Defendant exhibits 1 through 7 admitted. Defendants are to provide redacted copies of exhibits. Exhibits retained to be forwarded to the Clerks Office. (Court Reporter Shannon Welch)(bnp) (Entered: 04/27/2020)
72 DUPLICATE ENTRY. FILED IN ERROR. Minute Entry for proceedings held before Judge Amy Totenberg: Motion Hearing held on 4/24/2020 re 2 MOTION for Preliminary Injunction. Opening statements. Plaintiff witness Cliff Albright sworn and testified. Defendant witness Kevin Rayburn sworn and testified. Defendant exhibits 1 through 7 admitted. Defendants are to provide redacted copies of exhibits. Exhibits retained to be forwarded to the Clerks Office. (Court Reporter Shannon Welch)(jpa) Modified on 4/27/2020 to add red text (bnp). (Entered: 04/27/2020)
70 DEFENDANT EXHIBITS 1−7 admitted and retained at the 69 Motion Hearing have been received from Courtroom Deputy and placed in the custody of the Records Clerks. (bnp) (Additional attachment(s) added on 4/27/2020: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit Black Voters Matter Fund − 2018 990, # 9 Exhibit MARTA Transit Fares, # 10 Exhibit Savannah Transit Fares) (bnp). (Entered: 04/27/2020)
71 NOTICE TO COUNSEL OF RECORD for Defendant regarding RECLAMATION AND DISPOSITION OF UNCLAIMED Documentary EXHIBITS pursuant to Local Rule 79.1D. Re: 70 Defendant Exhibits 1−7. (bnp) (Entered: 04/27/2020)
73 REDACTED DEFENDANT EXHIBITS 1−7 admitted and retained at the 69 Motion Hearing have been received from Courtroom Deputy and placed in the custody of the Records Clerks.(bnp) (Additional attachment(s) added on 4/29/2020: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (bnp). Modified on 4/29/2020 to attach corrected documents (bnp). (Entered: 04/27/2020)
74 NOTICE by Black Voters Matter Fund, Megan Gordon re 2 MOTION for Preliminary Injunction re: New Supplemental Authority (Attachments: # 1 Exhibit N − David Dreyer)(Young, Sean) (Entered: 04/27/2020)
75 TRANSCRIPT of Hearing on Motion of Preliminary Injunction Proceedings held on 4/24/2020, before Judge Amy Totenberg. Court Reporter/Transcriber Shannon R. Welch, RMR, CRR. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory−court−reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/19/2020. Redacted Transcript Deadline set for 5/29/2020. Release of Transcript Restriction set for 7/27/2020. (Attachments: # 1 Notice of Filing) (srw) (Entered: 04/28/2020)
76 RESPONSE re 69 Motion Hearing, Response of Secretary of State to Court's Inquiry filed by Brad Raffensperger. (Belinfante, Joshua) (Entered: 04/28/2020)
77 RESPONSE re 69 Motion Hearing, Response of Plaintiff Black Voters Matter Fund to Court's Inquiry filed by Black Voters Matter Fund. (Attachments: # 1 Exhibit O − Supp. Decl. of Cliff Albright)(Young, Sean) (Entered: 04/28/2020)
78 RESPONSE re 74 Notice (Other) to Plaintiffs' Supplemental Letter filed by Brad Raffensperger. (Belinfante, Joshua) (Entered: 04/29/2020)
79 RESPONSE re 77 Response (Non−Motion) to Plaintiffs' Supplemental Declaration of Cliff Albright filed by Brad Raffensperger. (Attachments: # 1 Exhibit 1 − Jacobson Opinion)(Belinfante, Joshua) (Entered: 04/29/2020)
80 MOTION to Dismiss with Brief In Support by DeKalb County Board of Registration & Elections. (Vander Els, Irene) (Entered: 04/30/2020)
81 Unopposed MOTION for Leave to File Excess Pages in Pls.' Opp'n Br. to Def. Secretary's Motion to Dismiss by Black Voters Matter Fund, Megan Gordon. (Attachments: # 1 Text of Proposed Order (Exhibit A))(Young, Sean) (Entered: 04/30/2020)

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82 ORDER − Upon consideration of Plaintiffs Black Voters Matter Fund and Megan Gordon's Unopposed Motion for Leave to File a Brief in Excess of 25 Pages which seeks leave to file a brief in response to Defendant Raffensperger's Motion to Dismiss, not to exceed 35 pages, and for good cause shown, Plaintiffs' motion is GRANTED. Signed by Judge Amy Totenberg on 4/30/2020. (tcc) (Entered: 04/30/2020)
83 ORDER denying in part Plaintiffs' 2 Motion for Preliminary Injunction as to the June 2020 Primary Election only and reserving ruling on Plaintiffs' Motion as to the August 2020 Runoff and November 2020 General Elections. Signed by Judge Amy Totenberg on 4/30/2020. (hpc) (Entered: 04/30/2020)
84 RESPONSE in Opposition re 67 MOTION to Dismiss Plaintiffs' Complaint filed by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 05/01/2020)
85 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)
87 REPLY BRIEF re 67 MOTION to Dismiss Plaintiffs' Complaint filed by Brad Raffensperger. (Russo, Vincent) (Entered: 05/06/2020)
Submission of 67 MOTION to Dismiss Plaintiffs' Complaint to District Judge Amy Totenberg. (bnp) (Entered: 05/11/2020)
88 AMENDED COMPLAINT against All Defendants filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid, Andy Kim.(Young, Sean) 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. Modified on 5/12/2020 to add filers (bnp). (Entered: 05/11/2020)
89 ORDER, by docket text only: This matter is before the Court on Defendants' Motions to Dismiss 67 80 . In response to Defendants' motions, Plaintiffs filed an Amended Complaint on May 11, 2020 [Doc. 88]. Plaintiffs' Amended Complaint supersedes the original Complaint and is now the operative pleading. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) ("An amended complaint supersedes an original complaint."); Fountain v. Hyundai Motor Co., Civ. Action No. 1:15−CV−00446−ELR, 2016 WL 4361528, at *2 (N.D. Ga. Mar. 4, 2016) (Ross, J.) ("The filing of the amended complaint has rendered the arguments contained in the first motion to dismiss moot.") Accordingly, the Court DENIES AS MOOT Defendants' Motions to Dismiss. To the extent Defendants intend to file another round of motions to dismiss, the Court sets the following expedited briefing schedule: Defendants shall file their motions to dismiss the Amended Complaint NO LATER THAN MAY 18, Plaintiffs shall file their response to the motions to dismiss NO LATER THAN MAY 26, and Defendants shall file their replies NO LATER THAN JUNE 1. While the Court is proceeding as rapidly as possible, in light of Plaintiffs having today filed an Amended Complaint, the Court will not be able to rule on Plaintiffs' request for injunctive relief until after the State's deadline to present ballot design changes to its vendor for the August 2020 Runoff election. If either party seeks a conference to address the timing of such a ruling, they should contact the Courtroom Deputy Clerk to arrange for a conference with the Court tomorrow. Signed by Judge Amy Totenberg on 05/11/2020. (hpc) (Entered: 05/11/2020)
90 MOTION to Dismiss Plainitffs' Amended Complaint by Brad Raffensperger. (Belinfante, Joshua) (Entered: 05/12/2020)
91 RESPONSE in Opposition re 90 MOTION to Dismiss Plainitffs' Amended Complaint filed by Black Voters Matter Fund, Megan Gordon, Andy Kim, Penelope Reid. (Young, Sean) (Entered: 05/12/2020)
92 Minute Entry for proceedings held before Judge Amy Totenberg: Telephone Conference held on 5/12/2020. The Court held a conference with the parties to discuss the status of the briefing schedule on Plaintiffs' Amended Complaint. Counsel for the Secretary of State indicated they anticipated filing a renewed motion to dismiss today. Counsel for Plaintiffs indicated they would file their Response Wednesday, May 13. The Court directed the Secretary of State to file its Reply by Noon on Thursday, May 14. Counsel for DeKalb County will comply with the briefing schedule set forth in the Court's Order at 89 . Counsel for DeKalb County will notify the Court on the status of

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accepting service for the individual defendants by tomorrow, May 13. (Court Reporter Shannon Welch)(bnp) (Entered: 05/12/2020)
93 Emergency MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction , MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon by Black Voters Matter Fund, Megan Gordon. (Attachments: # 1 Redline)(Young, Sean) (Entered: 05/12/2020)
Submission of 93 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon to District Judge Amy Totenberg. (bnp) (Entered: 05/13/2020)
94 CERTIFICATE OF SERVICE re 88 Amended Complaint, filed by Black Voters Matter Fund, Megan Gordon, Andy Kim, Penelope Reid for new Defendants Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton (Young, Sean) (Entered: 05/13/2020)
95 TRANSCRIPT of Telephone Conference Proceedings held on 5/12/2020, before Judge Amy Totenberg. Court Reporter/Transcriber Shannon R. Welch, RMR, CRR. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory−court−reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/3/2020. Redacted Transcript Deadline set for 6/15/2020. Release of Transcript Restriction set for 8/11/2020. (Attachments: # 1 Notice of Filing) (srw) (Entered: 05/13/2020)
96 RESPONSE re 93 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon filed by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu. (Vander Els, Irene) (Entered: 05/14/2020)
97 RESPONSE in Opposition re 93 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon filed by Brad Raffensperger. (Attachments: # 1 Exhibit "1" Declaration of Gabriel Sterling)(Belinfante, Joshua) (Entered: 05/14/2020)
98 REPLY BRIEF re 93 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon filed by Black Voters Matter Fund, Megan Gordon. (Young, Sean) (Entered: 05/14/2020)
99 RESPONSE Exhibit A − intended to be attached to Doc. 98 to Reply Brief filed by Black Voters Matter Fund, Megan Gordon. (Young, Sean) Modified on 5/14/2020 to link to 93 motion(bnp). (Entered: 05/14/2020)
100 Supplemental REPLY BRIEF re 93 Emergency MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION to Expedite Briefing to be completed no later than 5/14/20 at noon − attaching Exhibit A that was inadvertently not attached to the Reply Brief Doc. 98 filed by Black Voters Matter Fund, Megan Gordon. (Attachments: # 1 Exhibit A − docket sheet)(Young, Sean) Modified on 5/15/2020 to edit event text (bnp). (Entered: 05/14/2020)
101 ORDER denying 93 Motion for TRO; denying 93 Motion for Preliminary Injunction; finding as moot 93 Motion to Expedite Briefing. Signed by Judge Amy Totenberg on 5/15/2020. (hpc) (Entered: 05/15/2020)
102 NOTICE of Appearance by Shelley Driskell Momo on behalf of DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu (Momo, Shelley) (Entered: 05/15/2020)
103 NOTICE of Appearance by Irene B. Vander Els on behalf of Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu (Vander Els, Irene) (Entered: 05/15/2020)

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104 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended Complaint with Brief In Support by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu. (Vander Els, Irene) Modified on 5/18/2020 to edit event type (bnp). (Entered: 05/18/2020)
105 Unopposed MOTION for Leave to File Excess Pages re: Pls.' Opp'n Br. to DeKalb Defs.' Motion to Dismiss by Black Voters Matter Fund, Megan Gordon, Andy Kim, Penelope Reid. (Attachments: # 1 Text of Proposed Order)(Young, Sean) (Entered: 05/21/2020)
Submission of 105 Unopposed MOTION for Leave to File Excess Pages to District Judge Amy Totenberg. (bnp) (Entered: 05/22/2020)
ORDER, by docket entry only, granting 105 Motion for Leave to File Excess Pages. By Judge Amy Totenberg on 5/22/20. (hfm) (Entered: 05/22/2020)
106 Petition for Leave of Absence for the following date(s): 7/1/20, 7/2/20, 7/3/20, 7/6/20, 7/7/20, 7/8/20, 7/9/20, 7/10/20, by Sean Young. (Attachments: # 1 Exhibit A − proposed order)(Young, Sean) (Entered: 05/26/2020)
107 RESPONSE in Opposition re 104 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Young, Sean) (Entered: 05/26/2020)
108 STIPULATION of Dismissal pursuant to Rule 41(a)(1)(A)(ii) by Andy Kim. (Young, Sean) (Entered: 05/26/2020)
109 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)
Clerk's Entry of Dismissal APPROVING 108 Stipulation of Dismissal of Plaintiff Andy Kim pursuant to Fed.R.Civ.P.41(a)(1)(A)(ii) (bnp) (Entered: 05/27/2020)
110 MOTION to Certify Class with Brief In Support by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Attachments: # 1 Brief in Support of Motion for Class Certification, # 2 Exhibit A − number of registered voters, # 3 Exhibit B − Young Decl., # 4 Exhibit C − Lakin Decl., # 5 Exhibit D − Ho Decl., # 6 Exhibit E − CDC high−risk factors)(Young, Sean) (Entered: 05/31/2020)
111 REPLY BRIEF re 104 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu. (Vander Els, Irene) (Entered: 06/01/2020)
112 (unopposed in part) MOTION for Leave to File Sur−reply re 104 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Attachments: # 1 Exhibit A − proposed sur−reply brief)(Young, Sean) Modified on 6/4/2020 to edit relief requested and text (tmf). (Entered: 06/03/2020)
Submission of the 90 MOTION to Dismiss Plainitffs' Amended Complaint to District Judge Amy Totenberg. (aaq) (Entered: 06/04/2020)
Submission of the 104 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM to District Judge Amy Totenberg. (aaq) (Entered: 06/05/2020)
113 RESPONSE in Opposition re 112 MOTION for Leave to File filed by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu. (Vander Els, Irene) (Entered: 06/15/2020)
114 RESPONSE in Opposition re 110 MOTION to Certify Class filed by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu. (Vander Els, Irene) (Entered: 06/15/2020)

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115 RESPONSE in Opposition re 110 MOTION to Certify Class filed by Brad Raffensperger. (Attachments: # 1 Exhibit 1 − CDC's Recommendations for Election Polling Locations − March 27, 2020)(Belinfante, Joshua) (Entered: 06/15/2020)
116 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Young, Sean) (Entered: 06/17/2020)
117 Initial Disclosures by Black Voters Matter Fund, Megan Gordon, Penelope Reid.(Young, Sean) (Entered: 06/17/2020)
118 Initial Disclosures by Brad Raffensperger.(Belinfante, Joshua) (Entered: 06/17/2020)
Submission of 116 Joint Preliminary Report and Discovery Plan to District Judge Amy Totenberg. (bnp) (Entered: 06/18/2020)
119 CERTIFICATE OF SERVICE filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid of Pls.' First Set of Document Requests and Pls.' First Set of Interrogatories to Defendants (Young, Sean) (Entered: 06/18/2020)
120 MOTION for Leave to File Excess Pages re: Pls' Reply Br. in Support of Motion for Class Certification by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Attachments: # 1 Text of Proposed Order)(Young, Sean) (Entered: 06/25/2020)
121 ORDER granting 120 Unopposed Motion for Leave to File Excess Pages. Signed by Judge Amy Totenberg on 6/25/2020. (bnp) (Entered: 06/25/2020)
122 NOTICE of Supplemental 11th Cir. Authority in support of Pls.' motion for preliminary injunction by Black Voters Matter Fund, Megan Gordon, Penelope Reid (Attachments: # 1 Exhibit A − Eleventh Circuit Order in People First, # 2 Exhibit B − District Court Order in People First, # 3 Exhibit C − Georgia Absentee Ballot Request Form)(Young, Sean) Modified on 6/29/2020 to edit text (bnp). (Entered: 06/26/2020)
123 REPLY BRIEF re 110 MOTION to Certify Class filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Young, Sean) (Entered: 06/29/2020)
Submission of 110 MOTION to Certify Class , 112 MOTION for Leave to File to District Judge Amy Totenberg. (bnp) (Entered: 06/30/2020)
124 Plaintiffs' Supplemental Brief re: Evidence from June 2020 Primary in Support of their Motion for Preliminary Injunction by Black Voters Matter Fund, Megan Gordon, Penelope Reid (Attachments: # 1 Ex. A − Bryant Supp. Decl., # 2 Ex. B − Legnon Decl., # 3 Ex. C − Junior Decl., # 4 Ex. D − Warren Decl., # 5 Ex. E − Kendrick Supp. Decl., # 6 Ex. F − Smith Decl., # 7 Ex. G − Plaintiff Reid Supp. Decl., # 8 Ex. H − Bassols Decl., # 9 Ex. I − Kuttig Decl., # 10 Ex. J − Moore Decl., # 11 Ex. K − Burke Supp. Decl., # 12 Ex. L − Wise Decl., # 13 Ex. M − Waddoups Decl., # 14 Ex. N − Jackson Decl., # 15 Ex. O − Hudson Decl., # 16 Ex. P − Enriquez Decl., # 17 Ex. Q − Parikh Decl., # 18 Ex. R − Pruitt Decl., # 19 Ex. S − Aguillard Decl., # 20 Ex. T − Hudson Decl., # 21 Ex. U − Kennedy Decl., # 22 Ex. V − Kite Supp. Decl., # 23 Ex. W − Kirslis Second Supp. Decl., # 24 Ex. X − Arkin Decl., # 25 Ex. Y − Simmons Decl., # 26 Ex. Z − Robinson Supp. Decl., # 27 Ex. AA − Wright Decl., # 28 Ex. AB − Lewis Decl., # 29 Ex. AC − Thomas Decl., # 30 Ex. AD − Email, # 31 Ex. AE − Email, # 32 Ex. AF − Email, # 33 Ex. AG − Email, # 34 Ex. AH − Email, # 35 Ex. AI − Dr. Barreto Expert Report, # 36 Ex. AJ − Revised CDC High−Risk Guidelines)(Young, Sean) Modified on 7/1/2020 to edit event text(bnp). (Entered: 06/30/2020)
125 NOTICE Of Filing First Supplement to Plaintiffs' Initial Disclosures by Black Voters Matter Fund, Megan Gordon, Penelope Reid (Young, Sean) (Entered: 07/01/2020)
126 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. (ddm) (ADI) (Entered: 07/02/2020)
127 NOTICE of Supplemental Authority in Supp. of Pls.' Mot. for PI by Black Voters Matter Fund, Megan Gordon, Penelope Reid (Attachments: # 1 Exhibit)(Young, Sean) (Entered: 07/09/2020)

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ORDER, by docket entry only: The Secretary is directed to file a list of counties which established one or more outdoor absentee ballot drop boxes for the June 2020 elections as well as a list of which counties did not establish any absentee ballot drop boxes. The list shall be filed no later than July 17, 2020. By Judge Amy Totenberg on 7/10/20. (hfm) (Entered: 07/10/2020)
128 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)
129 RESPONSE in Opposition to Plaintiffs' 124 Supplemental Brief re 2 MOTION for Preliminary Injunction filed by Brad Raffensperger. (Russo, Vincent) Modified on 7/15/2020 to edit event text (bnp). (Entered: 07/14/2020)
130 RESPONSE re Order, of July 10, 2020 Regarding Absentee Ballot Drop Boxes filed by Brad Raffensperger. (Attachments: # 1 Exhibit Docket Entry of July 10, 2020 Court Order, # 2 Exhibit Emergency Rule 183−1−14−0.8−.14, # 3 Exhibit Drop Box List, # 4 Exhibit Drop Box List)(Russo, Vincent) (Entered: 07/17/2020)
131 Initial Disclosures by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu.(Vander Els, Irene) (Entered: 07/17/2020)
132 CERTIFICATE OF SERVICE of Objections to Plaintiffs' First Set of Interrogatories by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu.(Vander Els, Irene) (Entered: 07/17/2020)
133 CERTIFICATE OF SERVICE Objections to Plaintiffs' First Set of Document Requests by DeKalb County Board of Registration & Elections, Erica Hamilton, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu.(Vander Els, Irene) (Entered: 07/17/2020)
134 CERTIFICATE OF SERVICE of Defendants Objections To Plaintiffs First Sets Of Document Requests And Interrogatories To Defendant by Brad Raffensperger.(Belinfante, Joshua) (Entered: 07/17/2020)
135 REPLY BRIEF re 2 MOTION for Preliminary Injunction Reply to the Secretary's Response Regarding Pls.' June 30 Supplemental Submission filed by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Young, Sean) (Entered: 07/22/2020)
136 MOTION to Supplement 2 MOTION for Preliminary Injunction − request to submit attached chart calculating # of drop boxes per DHS formula by Black Voters Matter Fund, Megan Gordon, Penelope Reid. (Attachments: # 1 Exhibit A − Chart calculating # of drop boxes per DHS formula)(Young, Sean) (Entered: 07/22/2020)
137 NOTICE by Black Voters Matter Fund, Megan Gordon, Penelope Reid Joint Statement re: Class Communications per N.D.Ga. L.R. 23.1(C)(2) (Young, Sean) (Entered: 07/27/2020)
138 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)
Submission of 136 MOTION to Supplement 2 MOTION for Preliminary Injunction − request to submit attached chart calculating # of drop boxes per DHS formula to District Judge Amy Totenberg. (bnp) (Entered: 08/10/2020)
139 ORDER AND OPINION. Plaintiffs' 136 Motion to Supplement is GRANTED. The 2 Motion for a Preliminary Injunction is DENIED. The Secretary's 90 Motion to Dismiss Plaintiffs' Amended Complaint is GRANTED as to Count I, and DENIED as to Count II. Any amendments to the Parties' 116 Joint Preliminary Report and Discovery Plan must be filed no later than 14 days from the date of entry of this Order. Signed by Judge Amy Totenberg on 8/11/2020. (bnp) (Entered: 08/11/2020)

 
 Case 1:20-cv-01489-AT Document 1 Filed 04/08/20 Page 1 of 21

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

BLACK VOTERS MATTER FUND and MEGAN GORDON, on behalf of

) ) )

herself

and

all

others

similarly

situated,

) )

)

Plaintiffs,

) Civil Action No.: ____________

)

)

vs.

) Complaint-Class Action

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia;

DEKALB

COUNTY

BOARD

) )

OF REGISTRATION & ELECTIONS )

and all others similarly situated,

) )

)

Defendants.

) )

)

)

COMPLAINT

Nature of the Case 1. This case is about protecting American democracy at a time when we

are facing a worldwide pandemic. The Governor has declared a state of emergency

and ordered everyone to stay at home unless absolutely necessary to go outside.

The infection and death count is ticking upwards each day.

2. Under these circumstances, voting in-person is no longer a realistic

option for most if not all voters. Voting in-person unnecessarily endangers the

1

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health and safety of voters and anyone they come into contact with well after voting. If this weren’t enough, voting in-person has become even harder as poll workers across Georgia (many who are elderly) are quitting in droves to limit the risk of potentially deadly exposure.
3. Under these circumstances, many voters have reasonably decided to vote from the safety of home by casting mail-in absentee ballots. With the ongoing pandemic, the number of mail-in votes is expected to skyrocket this year at recordbreaking levels. Voting by mail may become the new normal as more and more people vote by mail for the first time. Given the surge of voters who will be casting mail-in absentee ballots this year, it is all the more critical that all unconstitutional barriers to mail-in voting be removed as soon as possible.
4. Though the stakes are high, the legal claim is simple. The United States Constitution (through the Twenty-Fourth and Fourteenth Amendments) bans poll taxes. Georgia election officials require voters to use their own postage when submitting mail-in absentee ballots and applications. Postage costs money. Thus, Defendants have imposed a poll tax in violation of the Constitution.
5. A poll tax remains unconstitutional even if there are free alternatives to voting, such as voting in-person. But the “option” of voting in-person does not
2

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really exist because of the pandemic. And voting in-person is already nearly impossible for certain voters that are elderly, disabled, or out of town.
6. Voters are thus trapped into paying an unconstitutional poll tax just to cast a ballot by mail. To be sure, many wealthy and middle-class voters see little problem paying 55 cents to avoid voting in person. While unconstitutional, the postage requirement barely fazes them.
7. But this case is not really about middle-class or wealthy people. This case is about marginalized voters who come from communities who have historically faced over a century of racist voter suppression, including the use poll taxes to disenfranchise voters, and who rightfully refuse to pay another cent for the right to vote. This case is about voters who have always voted in-person to honor their Black ancestors who have fought and died for the right to vote, but now cannot. This case is about voters who live on shoestring budgets and lack access to all the resources such as time, money, and transportation that wealthier people take for granted. This case is about voters who don’t have Internet access, smartphones, email addresses, printers, or scanners in a home office where they can download, print, scan, and e-mail absentee ballot applications to avoid paying postage. This case is about lower-income voters who have overlapping work and childcare
3

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responsibilities and cannot just skip work or family obligations to buy stamps at a post office just to vote.
8. For these vulnerable voters, the postage stamp requirement imposes a serious burden that is unfathomable to wealthier people. Many lower-income voters do not have postage stamps. They no longer need to use them or have never needed to use them. They cannot be expected to needlessly expose themselves to the pandemic just to get stamps in order to vote. That assumes they can even get there, when many do not have cars, and ride-sharing and public transportation is non-existent in rural parts of the state. Voters without Internet access or a credit card cannot buy stamps online, and if they do, they must unnecessarily purchase an unaffordable book of stamps (about $10) because they aren’t allowed to buy just one. Making matters worse, voters are left guessing about how much postage to use because ballots vary in size and weight. So they must add potentially unnecessary extra postage just to be safe from the risk of being disenfranchised. It hardly bears mention that few people actually own stamp scales.
9. For these reasons, Plaintiffs seek declaratory relief and a permanent injunction requiring Defendants to provide postage prepaid returnable envelopes for absentee ballots, as well as absentee ballot applications. Defendants know how to do this, because the law already requires them to provide postage prepaid
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returnable envelopes for other purposes. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 21-2-234(c).
10. Plaintiffs also seek a preliminary injunction that would protect voters from paying poll taxes in this year’s elections, particularly the November general election.
JURISDICTION AND VENUE 11. This is a civil and constitutional rights action arising under 42 U.S.C. § 1983 and the Twenty-Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. 12. Venue in this Court is proper under 28 U.S.C. § 1391 because the events giving rise to Plaintiffs’ claims arose in this district and division. The Defendant Secretary of State, and the proposed Defendant class representative DeKalb County Board of Voter Registration and Elections are both located within this district and division.
PARTIES 13. Plaintiff Black Voters Matter Fund is a non-partisan civic organization whose goal is to increase power in communities of color. Effective voting allows a community to determine its own destiny. Communities of color often face barriers to voting that other communities do not, so Plaintiff focuses on
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removing those barriers. Black Voters Matter works on increasing voter registration and turnout, advocating for policies to expand voting rights and access. Black Voters Matter is particularly active in the rural Black Belt of Georgia, which includes several counties in southwest Georgia. Plaintiff focuses on those communities because they tend to be the most neglected, and have higher rates of poverty than other places. Black Voters Matter must divert scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it especially for those with less resources.
14. Individual Plaintiff Megan Gordon is a registered voter of DeKalb County. She, like other voters who would be similarly situated, cannot vote inperson because of the COVID pandemic. Even absent the pandemic, she and other voters must still choose between paying a poll tax or voting in-person, which is nearly impossible for many who are elderly, disabled, or out of town, while being materially burdensome for others. She does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.
15. Defendant Brad Raffensperger, who is the Secretary of State and the chief elections official of the State, is responsible for enacting elections statutes
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Case 1:20-cv-01489-AT Document 1 Filed 04/08/20 Page 7 of 21
and routinely issues guidance to the county election officials of all 159 counties on various elections procedures and requirements. County election officials follow the Secretary of State’s guidance.
16. The Defendant DeKalb County Board of Voter Registration & Elections, and the similarly situated 159 county boards of registrars or absentee ballot clerks,1 require voters to affix postage on absentee ballots and applications, consistent with the Secretary of State’s guidance.
FACTUAL ALLEGATIONS The COVID Pandemic
17. At stake is the sacred, constitutional right to vote. “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.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
18. As discussed above, there is an ongoing pandemic that has made it unacceptable for most voters to cast a ballot in person this year. Voting in-person is
1 Many counties combine their board of registrars and board of elections, which technically have separate responsibilities, into one entity called the “Board of Registration & Elections” (or some combination of the terms), responsible for both entities’ duties. For the sake of simplicity, Plaintiffs use the statutory phrase “board of registrars” or “county registrars.” This term will also be used to include “absentee ballot clerk.” O.C.G.A. § 21-2-380.1.
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simply not an option. Instead, people can only realistically vote if they do so by mail. But doing so requires the payment of an unconstitutional poll tax.
19. COVID-19 is a highly contagious virus that spreads mainly from person-to-person through close contact with one another and through respiratory droplets when an infected person coughs or sneezes. Medical experts are learning more every day about the ease with which the COVID-19 spreads, including even just through breathing or talking. Studies on the pattern of illness indicate that people infected with the virus may be contagious even if they do not have any symptoms. COVID-19 can result in severe disease, including hospitalization, admission to an intensive care unit, and death. Top scientists in the Trump Administration recently estimated that COVID-19 could kill between 100,000 and 240,000 Americans and that this number would be much higher if Americans do not follow the strict social distancing guidelines.
20. Although certain individuals may be more vulnerable to the effects of COVID-19, all evidence indicates COVID-19 is a highly virulent pathogen that threatens to infect any member of the public. Between February 1 and March 16, 2020, there were reported cases of COVID-19 in all age ranges in the United States. Georgia, too, has reported cases in all age ranges, with 60% under the age of 60. The World Health Organization has warned that they “are seeing more and
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more younger individuals who are experiencing severe disease” due to COVID-19. Similarly, the CDC has noted that “clinicians who care for adults should be aware that COVID-19 can result in severe disease among persons of all ages.” As of March 16, 20 percent of those hospitalized due to COVID-19 in the United States were between the ages of 20 and 44.
21. The CDC has issued national guidance telling the public to avoid public gatherings until at least May 15, 2020. Guidance from the Trump Administration, which was recently extended until April 30, 2020, advises against unnecessary travel and gatherings of over 10 people.
22. In Georgia, Governor Kemp declared a public health State of emergency on March 16, 2020, and issued a statewide shelter in place order on April 2, 2020. This Court has recently extended its order that no jurors or grand jurors be summoned and all jury trials and grand jury proceedings be continued for an additional 30 days until May 15, 2020.
23. The number of confirmed COVID-19 cases in Georgia is growing exponentially. Over the last week, the number of reported COVID-19 cases has nearly doubled. As of the date of filing, there are at least 9,156 confirmed cases of COVID-19 in Georgia; just six days ago, on April 1, there were only 4,638 reported cases. This number is expected to continue to grow.
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Postage Stamp Requirement 24. Georgia allows a voter to cast an absentee ballot through the mail. O.C.G.A. § 21-2-385. Notwithstanding the “absentee” moniker, any registered voter may vote absentee regardless of whether they have an excuse for not being present on Election Day. O.C.G.A. § 21-2-380. 25. To vote by absentee ballot, a voter must first submit an absentee ballot application via mail, fax, e-mail, or in-person. See O.C.G.A. § 21-2-381. 26. If the application is sent by mail, the voter is responsible for affixing postage. There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballot applications. 27. After the absentee ballot application is received by election officials and approved, voters are mailed the absentee ballot itself. Absentee ballots are mailed on or after 49 days before Election Day. O.C.G.A. § 21-2-384(a). The absentee ballot also comes with two envelopes: one for the absentee ballot itself, and the larger one which requires voters to sign an oath on the outside of that envelope. O.C.G.A. § 21-2-384(b)-(c). The smaller envelope containing the absentee ballot goes into the larger one, and the larger one is what voters mail in to cast an absentee ballot by mail. Id.
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28. Voters are required to affix their own postage when mailing in the absentee ballot, according to guidance issued by the Secretary of State.2 There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballots.
29. There is nothing especially mysterious or difficult about providing a postage prepaid envelopes or mailings to voters. Defendants have already done it because they are already required to do so for list maintenance purposes. See, e.g., O.C.G.A. § 21-2-233(b) (requiring officials to send certain voters a “postage prepaid, preaddressed return form” allowing voters to update their address); O.C.G.A. § 21-2-234(c) (“The confirmation notice shall be a postage prepaid, preaddressed return card”). And other states including Kansas, Iowa, and West Virginia, have been able to provide postage prepaid envelopes for mail-in absentee voters. See K.S.A. § 25-433; I.C.A. § 53.8; W. Va. Code § 3-3-5.
Burdens on Marginalized Voters 30. Requiring voters to pay money to vote is unconstitutional in and of itself regardless of whether or not a voter can afford it.
2
https://sos.ga.gov/admin/files/Absentee_Voting_A_Guide_for_Registered_Voters_ 2020.pdf
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31. But the postage requirement is still a significant problem for voters living on the margins.
32. Many voters, especially lower-income voters, do not have postage stamps because they do not use them, or cannot afford to buy a book of stamps just for elections.
33. Many voters do not have Internet access or credit cards to purchase stamps online, and they do not want to needlessly expose themselves to the COVID-19 virus to buy stamps at a post office.
34. Many cannot even travel to a post office or other public place because they do not have cars, and there are no ride-sharing programs or public transportation in large parts of rural Georgia.
35. Making matters worse, voters do not even know how much postage is needed. 55 cents may not be enough because ballots can sometimes be long and therefore heavy, and hardly anyone has stamp scales. Voters must therefore use extra and potentially unnecessary postage just to make sure their vote is counted.
36. Furthermore, many voters like the elderly, those with physical disabilities, and out-of-town voters can only vote by mail, so it is extraordinarily difficult if not impossible for them to vote in person if they want to avoid paying
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for a postage stamp. Even for those who are able to vote in-person, taking time off work or childcare to travel to a polling place can still be challenging.
Plaintiff Class Action Allegations 37. Certifying a plaintiff class action is unnecessary because Defendants’ unconstitutional practices can be enjoined without it. 38. Nonetheless, to the extent the Court deems it necessary to join all voters as parties to this suit, Plaintiffs seek certification of a class of all registered voters, with Plaintiff Megan Gordon as the class representative, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) or (b)(2). 39. Joinder is impracticable because there are millions of registered voters. Gordon is an adequate and typical representative because she is a registered voter like everyone else in the class, and that is the only salient fact that is necessary to resolve Plaintiffs’ claim. All registered voters are subject to the same poll tax requirement that they spend money on postage to vote absentee by mail and can only avoid if they vote in person, which is at least materially burdensome for all voters. The class encompasses all registered voters because poll taxes are unconstitutional regardless of their amount, whether or not a voter can afford it, or whether a voter ends up paying for it. The class includes all voters regardless of how easy or difficult it is for them to vote in-person, because voting in-person is a
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material burden on any voter, and poll taxes remains an unconstitutional abridgment of the right to vote if alternative methods of voting are materially burdensome.
40. Thus, the common question of law is whether requiring registered voters to buy postage to vote by mail is unconstitutional. Because the putative plaintiff class shares the common fact that all are registered voters, answering that single legal question resolves this case in one stroke.
41. The plaintiff class should be certified (if necessary) because “prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Filing millions of separate, identical lawsuits could result in incompatible standards of conduct throughout of Georgia, where a person’s voting rights differs depending on where they live and who they are. Such an outcome unacceptable in our democracy.
42. The plaintiff class may also be certified (if necessary) because Defendants have imposed the same postage requirement for mail-in voting on all registered voters, so “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). It would be
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improper to exempt some voters but not others from paying the poll tax since poll taxes are unconstitutional in all circumstances. Plaintiffs have not found any case striking down a poll tax only with respect to certain voters.
Defendant Class Action Allegations 43. Certifying a defendant class action is unnecessary because an order enjoining the Secretary of State will have the effect of enjoining all 159 county boards. The Secretary of State’s Office routinely issues guidance to county registrars statewide, who follow the Office’s guidelines. 44. Nonetheless, to the extent the Court deems it necessary to join all the county boards of registrars as parties to this suit, Plaintiffs seek certification of a defendant class of all 159 Georgia county boards of registrars, with the DeKalb County Board of Voter Registration & Elections as the defendant class representative, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) or (b)(3). 45. Joinder would be impracticable because there are 159 county boards of registrars. All county boards of registrars will share a common set of defenses available in this challenge to the constitutionality of requiring voters to pay postage when voting by mail. Because the county boards of registrars are simply following the Secretary of State’s guidance, and because poll taxes are never justified on the
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basis of cost savings or administrative burdens, their defenses will not vary based on individual facts. For the same reasons, the claims of proposed class representative DeKalb County Board of Voter Registration & Elections will be typical of those of the other county boards of registrars. The DeKalb County Board of Voter Registration & Elections will also be an adequate representative of the class. There is no conflict between DeKalb County’s board of registrars and other counties’ boards, all of which operate independently. As the board of registrars in charge of one of the largest counties in Georgia, they will also have greater resources and experience necessary to litigate this matter.
46. The defendant class should be certified because “prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Filing 159 separate, identical lawsuits for each county could result in incompatible standards of conduct throughout of Georgia, where a person’s voting rights differs depending on where they live. Such an outcome is unacceptable in our democracy.
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CAUSES OF ACTION COUNT ONE
Requiring voters to pay for their own postage is an unconstitutional poll tax in violation of the Twenty-Fourth and Fourteenth Amendments
47. Plaintiffs reallege and incorporate by reference the allegations contained in the preceding paragraphs.
48. The Twenty-Fourth Amendment provides: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
49. The Equal Protection Clause of the Fourteenth Amendment provides: “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
50. Both amendments prohibit the government from imposing a poll tax. See Harman v. Forssenius, 380 U.S. 528 (1965); Harper v. Va. State Bd. of Elect., 383 U.S. 663 (1966).
51. Requiring voters to spend money on their own postage to submit an absentee ballot by mail imposes an unconstitutional poll tax in violation of these Amendments. This poll tax constitutes an “abridgment” of the right to vote because
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while voters can avoid the poll tax by voting in-person, voting in-person is still at least “material requirement” for all voters. Harman, 380 U.S. at 541.
52. For the same reasons, requiring voters to spend money on postage to mail in absentee ballot applications is also an unconstitutional poll tax.
COUNT TWO Requiring voters to pay for their own postage imposes an unjustifiable burden on
the right to vote in violation of the First and Fourteenth Amendments 53. Plaintiffs reallege and incorporate by reference the allegations contained in the preceding paragraphs. 54. The First and Fourteenth Amendments protect the fundamental right to vote. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). Pursuant to the Anderson-Burdick line of cases, the government cannot infringe on the right to vote without adequate justification, and the greater the character and magnitude of the infringement, the stronger the justification must be. Even a slight burden must be adequately justified. 55. Here, requiring voters to spend money in order to vote by mail is at least a “slight” burden on all voters (and a severe one for some voters). Even if the burden is “slight,” the government has no legitimate interest in forcing voters to pay for postage because wealth has nothing to do with a voter’s qualifications.
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56. To the extent that any administrative burden on the State ever justifies making voters to pay to vote, the burden is minimal because the State already knows how to provide prepaid postage returnable envelopes as it is required in other contexts. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 21-2-234(c).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand the following: a) That this Court issue a judgment declaring that the requirement that voters affix their own postage to mail-in absentee ballots and mail-in absentee ballot applications is unconstitutional; b) That this Court issue a preliminary injunction and permanent injunction enjoining Defendants from telling voters that they must affix their own postage for absentee ballots and absentee ballot applications and requiring Defendants to provide prepaid postage returnable envelopes for absentee ballots; c) That Plaintiffs be awarded attorneys’ fees under 42 U.S.C. § 1988; d) That all costs of this action be taxed against Defendants; and e) That the Court award any additional or alternative relief as may be deemed appropriate under the circumstances.
Respectfully submitted,
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this April 8, 2020

Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin* Dale E. Ho* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org
Attorneys for Plaintiffs
*Pro hac vice application forthcoming

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CERTIFICATE OF SERVICE I hereby certify that on April 8, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. The Complaint will be served on the above-named Defendants. Date: April 8, 2020 Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
21

 
 Case 1:20-cv-01489-AT Document 2 Filed 04/08/20 Page 1 of 4

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

BLACK VOTERS MATTER FUND, and MEGAN GORDON, on behalf of

) ) )

herself

and

all

others

similarly

situated,

) )

)

Plaintiffs,

) Civil Action No.

)

)

vs.

)

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia;

DEKALB

COUNTY

BOARD

) )

OF REGISTRATION & ELECTIONS )

and all others similarly situated,

) )

)

Defendants.

) )

)

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs urgently seek relief from an unconstitutional barrier to mail-in

voting, which will likely skyrocket this year because of the pandemic. Georgia

elections officials require voters to buy their own postage when mailing in

absentee ballots or absentee ballot applications. For the reasons set forth in the

accompanying memorandum, this is an unconstitutional poll tax.

Plaintiffs thereby move for a preliminary injunction: 1) requiring Defendant

Secretary of State to issue guidance to all counties that they must provide postage

Case 1:20-cv-01489-AT Document 2 Filed 04/08/20 Page 2 of 4
prepaid envelopes with absentee ballots (i.e., make the larger envelope already provided for purposes of mailing in the absentee ballot be postage prepaid); and 2) requiring Defendant Secretary of State to revise the absentee ballot application form such that they can be mailed in with postage prepaid and require county election officials to use the revised form. While no further injunction is necessary because county election officials follow the Secretary of State’s guidance, Plaintiffs reserve the right to seek any injunction specific to Defendant DeKalb County Board of Registration & Elections or other county officials who do not follow the Secretary’s guidance on this issue.
As far as timing, Plaintiffs ask that the above injunction is entered as soon as practicable, and that briefing on this motion be expedited, so that no one has to pay a poll tax in the upcoming May 19 primary or any July 21 primary runoff.
If the above timing is not possible, Plaintiffs alternatively request that any injunction take effect as early as possible (Plaintiffs suggest no later than June 1) to allow Defendants to eliminate the poll tax with ample time before the November general election. Respectfully submitted this 8th day of April, 2020.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs
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AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin* Dale E. Ho* American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs *Pro hac vice application forthcoming
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CERTIFICATE OF COMPLIANCE
Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE
I hereby certify that on April 8, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. I have asked a process server to formally serve Defendants these motion papers. As a courtesy, I have emailed these papers, including the complaint, to the General Counsel of the Secretary of State’s Office, as well as the county attorneys for DeKalb County.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
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Case 1:20-cv-01489-AT Document 2-1 Filed 04/08/20 Page 1 of 22

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

BLACK VOTERS MATTER FUND, and MEGAN GORDON, on behalf of

) ) )

herself

and

all

others

similarly

situated,

) )

Plaintiffs,

)) Civil Action No.

)

vs.

) )

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS

) ) ) )

and all others similarly situated,

) )

)

Defendants.

) )

)

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-01489-AT Document 2-1 Filed 04/08/20 Page 2 of 22
SUMMARY American democracy is facing an unprecedented public health crisis. The government and the public, especially healthcare workers, are doing their best to fight the dangerous COVID-19 pandemic. And just as Americans bravely cast ballots in 1918 when the deadly Spanish flu was raging, patriotic voters will keep our democracy moving forward by casting ballots during this election year. However, because of the pandemic, it is widely expected that a recordbreaking number of Georgia voters will be voting by mail this year. The Governor’s shelter-in-place orders and the attendant need for social distancing caused by the highly contagious virus has made it unrealistic for most, if not all, voters to cast ballots in-person. In light of this surge, it is critical that all unconstitutional barriers to the mail-in voting procedure be removed as soon as possible. The stakes are high but this case is simple. This case is about whether election officials can constitutionally require voters to pay for their own postage when casting mail-in absentee ballots (and mailing in absentee ballot applications), especially when voting by mail is the only real option during the ongoing public health crisis caused by COVID-19.
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The answer is no. The United States Constitution (through the TwentyFourth and Fourteenth Amendments) prohibits the government from imposing a poll tax. See Harman v. Forssenius, 380 U.S. 528 (1965); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966). Requiring mail-in absentee voters to pay for their own postage is a poll tax because it forces voters to spend money in order to mail in absentee ballots. See Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262, 274-79 (Wis. 2014) (“payments to government agencies to obtain documents necessary to voting [is] a de facto poll tax”). This requirement is thus unconstitutional.
This is sufficient for Plaintiffs to prevail as a matter of law and obtain relief for all voters, even if wealthy or middle-class voters can easily afford a 55-cent postage stamp. See Harper, 383 U.S. at 668 ($1.50 poll tax unconstitutional even if voters can afford it). But this case is not really about wealthy and middle-class voters. This case is about lower-income and vulnerable voters for whom the postage requirement imposes a serious burden due to the difficulty of obtaining or affording stamps especially during this COVID-19 pandemic. See Exhibit A. Court action is necessary to ensure that the most marginalized among us are able to participate in our democracy this year in the face of this public health crisis.
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Accordingly, this Court should grant Plaintiffs’ motion for a preliminary injunction, which would require Defendant Secretary of State to issue guidance to all counties requiring them to provide postage prepaid envelopes for absentee ballots and absentee ballot applications. Defendants need not learn how to do this from scratch, because state law already requires them to provide postage prepaid envelopes to voters in other contexts. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 212-234(c).
In addition, Plaintiffs ask that relief be provided in advance of the upcoming May 19 primary and any primary runoff, currently scheduled for July 21, and an expedited briefing schedule that could make that possible. Nonetheless, Plaintiffs are mindful of the current crisis and its impact on voters, election officials, and the judiciary. If such injunctive relief is not granted in time for the May or July elections, Plaintiffs ask that it at least be granted well in advance of the November general election (perhaps no later than June), leaving ample time for election officials to ensure that absentee ballots and applications come with pre-postage paid envelopes for the November general election.
FACTUAL BACKGROUND As discussed above, the COVID-19 pandemic will likely result in recordbreaking numbers of mail-in absentee ballots being cast. Exhibit A (Albright Decl.)
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¶ 4. This lawsuit seeks to ensure that mail-in voters are constitutionally protected during this time with minimal effort needed on the part of the State.
A. Voting By Mail is the Only Meaningful Way to Vote for Many Georgia Voters During the COVID-19 Pandemic
Due to the ongoing COVID-19 pandemic, many Georgia voters needlessly risk harm to their health, the health of vulnerable loved ones, and the health of other voters and election workers if they appear in-person at a polling place in Georgia. All levels of government have recognized this danger. For instance, in Georgia, the Governor declared a public health state of emergency on March 16, 2020 and issued a statewide shelter in place order on April 2, 2020. See Exhibit F. As the Governor recognized, COVID-19 is a highly contagious virus requiring people to stay at home as much as possible, avoid large crowds, and actively engage in social distancing. See id. The order notes that those who are elderly and suffer from chronic illness are at an especially higher risk of death. See id. Top scientists in the President’s Administration recently estimated that COVID-19 could kill between 100,000 and 240,000 Americans and that this number would be much higher if Americans do not follow strict social distancing guidelines. See Exhibit G. The Georgia Department of Public Health has reported cases in all age ranges, with many victims under the age of 60. See Exhibit H. This Court has recently extended its order that no jurors or grand jurors be summoned and all jury
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trials and grand jury proceedings be continued for an additional 30 days until May 15, 2020. See Exhibit I.
The number of confirmed COVID-19 cases in Georgia is growing rapidly. Over the last week, the number of reported COVID-19 cases has nearly doubled. As of the date of filing, there are at least 9,156 confirmed cases of COVID-19 in Georgia. See Exhibit H. Just six days ago, on April 1, there were only 4,638 reported cases. See Exhibit J.
Under these circumstances, most voters likely will not be voting in person, needlessly exposing themselves to the virus and potentially bringing the virus home to vulnerable loved ones. Even if voters want or need to vote in person during the pandemic, the availability of in-person voting options will likely be curtailed, as poll workers, the vast majority of whom are elderly and thus more vulnerable to COVID-19, are reportedly quitting and precincts are closing across the state. See Exhibit E.
For many Georgia voters, therefore, mail-in absentee voting will be the only meaningful way to vote in upcoming elections.
B. Voting By Mail in Georgia Georgia allows a voter to cast an absentee ballot through the mail. O.C.G.A. § 21-2-385. Notwithstanding the “absentee” moniker, any registered voter may
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vote absentee regardless of whether they have an excuse for not being present on Election Day. O.C.G.A. § 21-2-380.
To vote by absentee ballot, a voter must first submit an absentee ballot application via mail, fax, e-mail, or in-person. See O.C.G.A. § 21-2-381. If the application is sent by mail, the voter is responsible for affixing postage. See Exhibit B. There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballot applications.
After the absentee ballot application is received by election officials and approved, voters are mailed the absentee ballot itself. Absentee ballots are mailed on or after 49 days before Election Day. O.C.G.A. § 21-2-384(a). The absentee ballot also comes with two envelopes: one for the absentee ballot itself, and a larger one that requires voters to sign an oath printed on the outside of that envelope. O.C.G.A. § 21-2-384(b)-(c). The smaller envelope containing the absentee ballot goes into the larger one, and the larger one is what voters mail in to cast an absentee ballot by mail. Id.1
1 Strictly speaking, voting early in-person is also considered “absentee” voting, and voters can drop off absentee ballots in-person as well. For the sake of simplicity, references here to “in-person voting” includes voting early in-person and dropping absentee ballots off in-person.
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Voters are required to affix their own postage when mailing in the absentee ballot. See Exhibit C (2020 Secretary of State Absentee Voting Guide) at 5 (“Delivery can be either U.S. first class mail or hand delivered by the voter. If mailing, you must affix postage to the ballot envelope.” (emphasis in original)). There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballots.
Defendants know how to provide postage prepaid envelopes to voters. That is because state law already requires them do so for voter list maintenance purposes. See, e.g., O.C.G.A. § 21-2-233(b) (requiring officials to send certain voters a “postage prepaid, preaddressed return form” allowing voters to update their address); O.C.G.A. § 21-2-234(c) (“The confirmation notice shall be a postage prepaid, preaddressed return card”). And other states including Kansas, Iowa, and West Virginia, have been able to provide postage prepaid envelopes for mail-in absentee voters without incident. See K.S.A. § 25-433; I.C.A. § 53.8; W. Va. Code § 3-3-5.
A poll tax is unconstitutional as a matter of law even if many people can afford it, see infra Part I.A., but as Cliff Albright, the Executive Director of Plaintiff Black Voters Matter Fund, explains, the postage requirement is a significant problem for a wide array of vulnerable voters.
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Many voters, especially lower-income voters, do not have postage stamps because they do not use them, or cannot afford to buy a book of stamps just for elections. Exhibit A. (Albright Decl.) ¶ 7. Many voters do not have Internet access or credit cards to purchase stamps online (to the extent they know about it), and they do not want to needlessly expose themselves to the COVID-19 virus to buy stamps at a post office. Id. ¶ 8. Many cannot even travel to a post office or other public place because they do not have cars. Ride-sharing programs or public transportation are especially dangerous in terms of virus transmission, and they do not exist anyway in large parts of rural Georgia. Id.
Making matters worse, voters do not even know how much postage is needed. Id. ¶ 9. Fifty-five cents may not be enough because ballots can sometimes be long and therefore heavier, and almost no voters Plaintiff works with have stamp scales. So Plaintiff has to encourage the use of extra and potentially unnecessary postage just to make sure their vote is counted. Id. Furthermore, many voters like the elderly, those with physical disabilities, and out-of-town voters can only vote by mail, so it is extraordinarily difficult if not impossible for them to vote in person. See Exhibit D (Gordon Decl.) ¶ 13. Even for those who are able to vote in-person, taking time off work or childcare to travel to a polling place can still be challenging. See id. And of course the COVID-19 public health crisis only
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extends these barriers to many more Georgia voters for whom in-person voting is now no longer a meaningful voting option.
Individual Plaintiff Megan Gordon is a registered voter in DeKalb County. She, like other voters, cannot vote in-person because of the COVID pandemic. But she does not want to use her own postage stamps to mail-in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote. See Exhibit D (Gordon Decl.) ¶¶ 4-8.
ARGUMENT A preliminary injunction is warranted if the movant demonstrates: (1) a substantial likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that an injunction would not disserve the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Each of these factors weighs in favor of the requested injunction. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR POLL TAX CLAIM (Count One) Here, Plaintiffs are substantially likely to succeed on their poll tax claim (Count One). Requiring voters to buy postage in order to vote absentee by-mail
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imposes a de facto poll tax that unconstitutionally abridges the right to vote, especially when absentee by-mail voting is the only realistic means of voting for many Georgia voters while the COVID-19 public health crisis is ongoing.
A. Legal Standard: the United States Constitution bans poll taxes as well as de facto poll taxes
The Twenty-Fourth Amendment plainly and unambiguously bans poll taxes. It provides: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV. See Harman v. Forssenius, 380 U.S. 528 (1965) (applying amendment). Courts have also construed the Equal Protection Clause of the Fourteenth Amendment as including this prohibition on poll taxes, with respect to all elections. See Harper v. Va. State Bd. of Elect., 383 U.S. 663, 666 (1966) (“We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”). Poll taxes are anathema to our democracy because “[v]oter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” Id.
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Under this legal standard, 1) the government imposes an unconstitutional poll tax when it directly requires voters to spend money to vote; 2) the government also cannot impose de facto poll taxes that require voters to obtain a documentary prerequisite to voting if the prerequisite document itself costs money; and 3) a poll tax is an unconstitutional abridgment of the right to vote even if there are alternative ways to vote that are technically “free” but still materially burdensome.
First, the government imposes an unconstitutional poll tax when it directly requires voters to spend money to vote. See Harper, 383 U.S. at 666 (government violates prohibition on poll taxes “whenever it makes the affluence of the voter or payment of any fee an electoral standard”). This is unconstitutional regardless of how small the amount, regardless of whether voters can afford it, and regardless of whether voters end up paying the amount. See id. at 668 (poll taxes are unconstitutional “whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it.”). And obviously, saving the government money is never a legitimate reason to impose a poll tax. See Harman, 380 U.S. at 544 (“the poll tax, regardless of the services it performs, was abolished by the Twenty-fourth Amendment” (emphasis added)). Otherwise, all poll taxes would be constitutional.
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Second, the government violates the Constitution when it imposes a de facto poll tax indirectly, such as imposing a documentary prerequisite to voting, which in turn requires voters to spend money to buy the document. See Harman, 380 U.S. at 540-41 (“the Twenty-fourth [amendment] ‘nullifies sophisticated as well as simple-minded modes’ of impairing the rights guaranteed.’” (citation omitted)). The most common example of a de facto poll tax is a “Voter ID” law which requires voters to show photo identification when voting, which then requires voters to purchase photo identification. See, e.g., Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262, 274-79 (Wis. 2014) (explaining that courts “have characterized payments to government agencies to obtain documents necessary to voting as a de facto poll tax”). Thus, for example, Georgia’s Voter ID law was found to impose an impermissible poll tax because photo identification cost money at the time. See Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1366-67 (N.D. Ga. 2005). But after Georgia made photo identification free, the same court concluded there was no poll tax. See Common Cause/Georgia v. Billups, 439 F. Supp. 2d 1294, 1355-56 (N.D. Ga. 2006).
Third, a poll tax is an unconstitutional abridgment of the right to vote even if there are alternative ways to vote that are free but are still materially burdensome. See Harman, 380 U.S. at 538, 541 (poll tax is an unconstitutional “abridgment of
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the right to vote” even when there exists an alternative option, when the alternative still “imposes a material requirement” on those “who refuse to surrender their constitutional right to vote . . . without paying a poll tax.”). The alternative method of voting is considered “material” even if it is not “onerous” and even if the alternative is easier to do than paying a poll tax. Id. at 542 (poll tax remains unconstitutional even if alternative method is “somewhat less onerous[] than the poll tax. . . . [T]he poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.”). Thus, for example, the Supreme Court held that a $1.50 poll tax was unconstitutional even if a voter could avoid paying the tax by obtaining or creating a certificate of residence for free and delivering it in person to local election officials. See id. at 541-43. Because obtaining a free certificate of residence was still a material burden, and had to be done on an annual basis, the poll tax unconstitutionally abridged the right to vote. See id.
In sum, the government imposes an unconstitutional poll tax not only when it does so directly, but also when it does so indirectly by requiring voters to spend money to satisfy a prerequisite to voting. The poll tax is an unconstitutional abridgment of the right to vote even if alternative methods are available to vote, when such alternative methods are still materially burdensome.
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B. Application: Defendants violate the Constitution by requiring mail-in absentee voters to buy postage to vote
Here, the violation is plain. Georgia voters are required to purchase their own postage in order to cast a mail-in absentee ballot. Because voters must purchase a prerequisite to voting (i.e., postage), Defendants have imposed an unconstitutional de facto poll tax. The same holds true for absentee ballot applications, which also require postage when mailed.
Georgia’s de facto poll tax is an unconstitutional abridgment of the right to vote even though there are alternative ways to vote for free. That is because such alternatives are still burdensome for those who do not want to pay the poll tax. See Harman, 380 U.S. at 542. Here, of course, voting in person is not just materially burdensome but completely off the table for nearly all Georgia voters because of the ongoing pandemic. Voting by mail is currently the only meaningful option for almost all Georgia voters—but they are, quite literally, being asked to pay to cast their ballots.
Moreover, requiring voters to pay postage to mail in ballots is still unconstitutional as a matter of law even if there were no pandemic. As noted above, many voters like the elderly, disabled, or those out-of-town can only vote by mail, so requiring them to vote in-person not only imposes a “material” burden, but an impossible one. Even for those who are able to vote in-person, taking time
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off work or childcare to travel to a polling place still imposes at least a “material” burden, even if voting in-person is not “onerous” for them. Harman, 380 U.S. at 541 (poll tax unconstitutional where free alternative method required travel to local election officials on an annual basis). That is why many people vote by mail.
For these reasons, Plaintiffs are likely to succeed on their poll tax claim (Count One). II. PLAINTIFFS ARE ALSO LIKELY TO SUCCEED ON THEIR
ANDERSON-BURDICK CLAIM (Count Two) Because Plaintiffs are likely to prevail on the poll tax claim (Count One), it is unnecessary for this Court to assess Plaintiffs’ Anderson-Burdick claim (Count Two). In any event, Plaintiffs are likely to succeed on that claim as well. Briefly, an Anderson-Burdick claim challenges a voting requirement under the First and Fourteenth Amendments. A voting requirement is unconstitutional if its burdens on voting, even if “slight,” are not justified by the government’s interests. See generally Common Cause/Georgia v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). Due to the pandemic, voting by mail is now the only meaningful option for the vast majority of Georgia voters for exercising their right to vote. Under these circumstances, the state’s imposition of a postage requirement effectively imposes
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an unavoidable monetary burden on the franchise. Even if that burden is “slight” (which it is not, see Exhibit D), the government’s interest in saving money does not justify it, regardless of how small the amount. See Harman, 380 U.S. at 544 (“the poll tax, regardless of the services it performs, was abolished by the Twentyfourth Amendment”). And the burdens on Defendants are minimal because they already know how to prepare prepaid postage, as state law already requires Defendants to do so for voter list maintenance purposes. See O.C.G.A. § 21-2233(b); O.C.G.A. § 21-2-234(c); see Martin v. Kemp, 341 F. Supp. 3d 1326, 133940 (N.D. Ga. 2018) (“minimal burden” on Defendants where other statutes already require similar procedure (citing Zinermon v. Burch, 494 U.S. 113, 137 (1990)). Other states like Kansas, Iowa, and West Virginia have all been able to provide prepaid postage for mail-in voters apparently without incident. See K.S.A. § 25433; I.C.A. § 53.8; W. Va. Code § 3-3-5. Plaintiffs are thus likely to succeed on their Anderson-Burdick claim as well. III. THE REMAINING PRELIMINARY INJUNCTION FACTORS TILT
DECIDEDLY IN PLAINTIFFS’ FAVOR Requiring voters to needlessly expose themselves to the deadly COVID-19 pandemic to avoid paying a poll tax is both unconstitutional and unconscionable.
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The remaining preliminary injunction factors thus weigh strongly in favor of granting Plaintiffs’ requested relief this year.
When there is “an abridgment to the voters’ constitutional right to vote, irreparable harm is presumed.” Touchston v. McDermott, 234 F.3d 1133, 1158-59 (11th Cir. 2000). The balance of hardships also weighs in Plaintiffs’ favor. This pandemic is forcing unprecedented numbers of Georgia voters to a mail-in voting process that essentially charges all of them money to vote. More pressing, many marginalized voters do not have postage stamps and cannot afford buying a book of stamps online or are unable to because they do not have Internet access or a credit card. Voters also cannot be expected to go to a post office or grocery store to buy stamps in-person in the middle of a pandemic. Making matters worse, the amount of postage is also unclear because 55 cents may be insufficient if the ballot is too long and heavy, and only the few voters that actually own stamp scales can know with any certainty. And emailing absentee ballot applications is not an option for the many lower-income Georgians (not to mention many others) who lack Internet access, a smartphone, a computer, a printer, and/or a scanner. See supra Factual Background.
Defendants’ potential burden pales in comparison to these circumstances. Defendants already know how to provide pre-paid postage envelopes because they
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are legally required to do so in other circumstances. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 21-2-234(c); Martin v. Kemp, 341 F. Supp. 3d 1326, 1339-40 (N.D. Ga. 2018) (“minimal burden” on Defendants where other statutes already require similar procedure (citing Zinermon v. Burch, 494 U.S. 113, 137 (1990)). Other states like Kansas, Iowa, and West Virginia already do this. See K.S.A. § 25-433; I.C.A. § 53.8; W. Va. Code § 3-3-5. And “there is no contest between denial of access to the ballot and a state’s administrative burden.” Jones v. Gov. of Fla., 950 F.3d 795, 829-30 (11th Cir. 2020) (citation omitted).
Should briefing on this motion be expedited, this Court can potentially grant relief that would prevent any voter from being subjected to an unconstitutional poll taxes as early as the May primary and/or the July primary runoff.2 At a minimum, this motion has been filed to allow plenty of time for Defendants to take needed action impelled by an injunction well before the November elections. Though the government often argues that its interest in enforcing statutes weighs strongly against a preliminary injunction, here Plaintiffs have not found a single statute or
2 By way of reference, on March 27, 2020, the Governor of Michigan signed an emergency order requiring election officials to provide prepaid postage for all mail-in ballots with respect to the May 5, 2020 elections. See Exhibit K (press release and executive order).
. . . footnote continues on next page
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even regulation that would need to be enjoined.3 Lastly, the public interest weighs in favor of an injunction because “cautious protection of . . . franchise-related rights is without question in the public interest.” Id. (quoting Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1355 (11th Cir. 2005)). This is especially important in an election year taking place during a pandemic, in which mail in absentee voting will be the only realistic means for many, if not most, Georgia voters to participate in our democracy.
CONCLUSION Voters should not have to choose between needlessly exposing themselves to a deadly pandemic and spending money for the right to vote. Plaintiffs’ motion for a preliminary injunction should be granted.
Respectfully submitted this 8th day of April, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208
3 Even if an injunction required a statute or regulation to be enjoined, it would still be warranted. See Jones, 950 F.3d at 829 (“The State’s broad interest in enforcing its statutes, standing alone, would be applicable any time a statute’s constitutionality is challenged and a preliminary injunction issued against its enforcement. The State’s argument in this case, if it carried the day, would prove too much—hardly any preliminary injunction could ever issue.”).
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Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin* Dale E. Ho* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs *Pro hac vice application forthcoming
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CERTIFICATE OF COMPLIANCE
Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE
I hereby certify that on April 8, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. I have asked a process server to formally serve Defendants these motion papers. As a courtesy, I have emailed these papers, including the complaint, to the General Counsel of the Secretary of State’s Office, as well as the county attorneys for DeKalb County.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
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DECLARATION OF CLIFF ALBRIGHT My name is Cliff Albright and I am over the age of 18 and fully competent to make this declaration. Under penalty of perjury, I declare the following: 1. I am the Executive Director of Black Voters Matter Fund (“Black Voters Matter”). 2. Black Voters Matter is a non-partisan civic organization whose goal is to increase power in communities of color. Effective voting allows a community to determine its own destiny. Communities of color often face barriers to voting that other communities do not, so we focus on removing those barriers. Black Voters Matter works on increasing voter registration and turnout, advocating for policies to expand voting rights and access, such as expanded early voting, resisting voter ID, re-entry restoration of rights and Strengthening the Voting Rights Act. We also advocate for policies that intersect with race, gender, economic and other aspects of equity. 3. Black Voters Matter is particularly active in the rural Black Belt of Georgia, which includes several counties in southwest Georgia. We focus on those communities because they tend to be the most neglected, and have higher rates of poverty than other places.
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4. Due to the COVID-19 pandemic, we expect that the use of mail-in absentee voting will skyrocket this year. This means that our efforts will now focus almost exclusively on educating voters about the mail-in absentee ballot and application process, and helping voters cast mail-in absentee ballots this year. 5. We intend to start a texting and phone banking initiative to reach out to registered voters who are wrongfully considered “inactive” by the State of Georgia, among other voters. Although the Secretary of State recently sent absentee ballot applications to registered “active” voters, they did not send them to “inactive” voters. 6. We are using texting and phone banking to educate voters about the mail-in absentee voting process, including how to obtain an absentee ballot application, how to fill it out, how to fill out the absentee ballot, and how to get postage stamps. 7. Many voters, especially lower-income voters, do not have postage stamps because they do not use them, or cannot afford to buy a book of stamps just for elections. 8. Helping voters obtain postage stamps can be complicated and timeconsuming because some voters do not have Internet access or credit cards to purchase them online, and they do not want to needlessly expose themselves to the COVID-19 virus to buy stamps at a post office. Many cannot even travel to a post
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office or other public place because they do not have cars, there are no ride-sharing programs or public transportation in large parts of rural Georgia. 9. Making matters worse, voters do not even know how much postage is needed. 55 cents may not be enough because ballots can sometimes be long and therefore heavy. Almost no voters we work with have stamp scales. So we have to encourage the use of extra and potentially unnecessary postage just to make sure their vote is counted. 10. Dealing with the postage stamp issue takes up a lot of our time and resources, impeding our mission to increase voter participation in rural Black communities. Because effective voter education requires that instructions be clear and straightforward, the postage stamp barrier makes it harder for to effectively communicate to voters. 11. We are diverting resources towards the postage stamp issue when they could be used for our other activities. Such other activities include helping people obtain absentee ballot applications, when many do not have printers to print the application from online. Though voters are supposed to be allowed to ask for applications by calling election offices, we have already heard reports of several southwest Georgia elections offices not answering the phone. They also include helping voters submit those applications, and while it is possible to submit
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applications by e-mail, many voters do not have Internet access. We must also educate voters about submitting the applications as soon as possible, because while technically any voter can ask for an application as late as the Friday before Election Day, it is impossible for such voters to send in an absentee ballot so that it arrives on Election Day. 12. Efforts also include helping people navigate the absentee ballot process itself. Lengthy absentee ballot instructions make it difficult for many voters, especially those with minimal schooling, to follow those instructions. 13. All of this work is time consuming and is being limited by the time we have to devote to dealing with postage stamp problems. We could help so many more voters if we were not sidelined by this issue. 14. Based on my experience, I also anticipate that we will receive many calls and questions about the absentee ballot process. This call volume will likely be higher because of the postage stamp issue. I declare under penalty of perjury that the forgoing is true and correct.
_________________ Cliff Albright
_4_/7_/_2_0_2_0__________ Date
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Absentee Voting
A Guide for Registered Voters
2020

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TABLE OF CONTENTS

THE WAYS TO VOTE IN GEORGIA

Election Day Voting

3

Absentee Voting By Mail

3

Absentee Voting in Person

3

ABSENTEE VOTING BY MAIL

Applying For Your Absentee Ballot

4

Ballot Application Submittal Dates

5

Voting Your Absentee Ballot

5

Submitting a Voted Absentee Ballot

5

Processing Your Voted Absentee Ballot

5

ABSENTEE VOTING IN PERSON (ADVANCE VOTING)

Applying For Your Absentee Ballot and Voting

6

Advance Voting Will Be Available:

6

Voting Your Ballot

6

ADDITIONAL QUESTIONS ABOUT ABSENTEE VOTING

6

PENALTIES FOR FRAUDULENT ABSENTEE VOTING ACTIVITY

9

ABSENTEE BALLOT-SAMPLE WITH INSTRUCTIONS

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Case 1:20-cv-01489-AT Document 2-4 Filed 04/08/20 Page 3 of 12 This guide is an overview of Georgia’s absentee voting process. Additional information is available on the Secretary of State’s web site at www.sos.ga.gov. Please use this guide along with the Georgia Election Code and the Georgia State Election Board Rules. Citations in this guide refer to the United States Code (U.S.C.), Georgia Election Code (O.C.G.A.) or Georgia State Election Board Rules.
In all matters, the law and rule are the final authority.
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THE WAYS TO VOTE IN GEORGIA
Election Day Voting On Election Day, you must vote at your assigned precinct and present a photo ID. To check your precinct location online go to: www.mvp.sos.ga.gov. Absentee Voting By Mail Any voter registered in Georgia can vote absentee by mail. Just complete the application found in the back of this guide. Then, mail, fax, email (as an attachment), or drop the application off at your county registrar’s office. We urge you to request your mail-in ballot and get it back to your county registrar’s office as soon as possible. Mail-in ballots can be requested no earlier than 180 days prior to the election and must be received by your county registrar no later than close of the polls on Election Day. There are special provisions for Georgia Military and Overseas Voters that can be found at: http://sos.ga.gov/index.php/elections/military_and_overseas_voting2. Absentee Voting in Person Any voter registered in Georgia may vote absentee in person. This allows you to vote on a day and time that is convenient for you. Beginning on the 4th Monday prior to Election Day, simply visit your county or municipality early voting site, fill out the application, and present one of the permitted forms of photo ID. As Election Day approaches, your county may have multiple early voting sites and even extended hours. Voting times and locations for your precinct can be found at: www.mvp.sos.ga.gov/. Some counties offer ballot delivery for registered voters who are hospitalized. Contact your county registrar at least 5 days prior to the election for information regarding this option.
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ABSENTEE VOTING BY MAIL
Applying For Your Absentee Ballot Paper absentee ballots will be mailed to voters only upon request. All written requests must be submitted (by mail, fax, email) or personally delivered to the registrar office in the county where you are registered to vote. Addresses and contact information can be found at: http://sos.ga.gov/cgi-bin/countyregistrarsindex.asp. Written requests for absentee ballots can be made in the following ways:
1. Absentee applications can be downloaded from the Secretary of State’s website at www.sos.ga.gov/elections.
2. You can submit a written request for an absentee ballot by providing the following information to your county registrar or absentee ballot clerk: Your name, Date of birth, Registration address, Temporary out of county address to which the ballot should be sent, Type of election (presidential preference primary, general primary, primary runoff, municipal, municipal runoff, special, general, general runoff), Name of party ballot being requested (for primaries), Date of election, and, Your signature including the date of the request (or the dated signature and noted relationship of the person requesting the ballot on your behalf.
Except in the case of a physically disabled voter residing in the county or municipality or a voter in custody in a jail or other detention facility, no absentee ballot shall be mailed to an address other than the permanent mailing address of the elector as recorded on the elector’s voter registration record or a temporary out-of-county or out- of-municipality address. There are no restrictions on who may assist an elector in completing an absentee ballot application when the elector is personally submitting the application. There are restrictions on who can apply for an absentee ballot on behalf of an elector and what must be contained within the application. See page 6 of this guide for more information.
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Ballot Application Submittal Dates

Absentee ballots may be requested any time between 180 days prior to the election and the end of the business day on the Friday before Election Day. Under State law, ballots cannot be mailed to you on the day prior to Election Day. Please note that you should make your request early to allow enough time for the ballot to be mailed to you, voted, and be received back at the county registrar office before the close of polls on Election Day.

Receiving Your Absentee Ballot

Absentee ballots will be mailed:

Presidential Preference Primary 45 days prior to the election through the Friday before Election Day

General Primary

45 days prior to the election through the Friday before Election Day

General Election

45 days prior to the election through the Friday before Election Day

Special Election - Federal office 45 days prior to the election through the Friday before Election Day

Municipal General Primary

21 days prior to the election through the Friday before Election Day

Municipal General Election

21 days prior to the election through the Friday before Election Day

Special Election - Other

21 days prior to the election through the Friday before Election Day

Runoffs

As soon as possible

Voting Your Absentee Ballot

Follow the instructions that your county elections official provides with your ballot. You will receive all the forms and envelopes necessary for marking and return of the ballot. Failure to complete your ballot correctly could cause your ballot not to be counted.

If you registered by mail and did not submit a copy of one of the required forms of registration identification, you will receive notification with your ballot package. Copies of any ID's must be placed in the outer envelope. If you have any questions, please contact your county registrar.

Submitting a Voted Absentee Ballot

A ballot must be received by the county registrar no later than the close of polls on Election Day. Delivery can be either U.S. first class mail or hand delivered by the voter. If mailing, you must affix postage to the ballot envelope. Ballots received after the polls close cannot be counted.

Processing Your Voted Absentee Ballot
Once the absentee ballot is received by the county office, the registrar will compare your signature on your absentee ballot oath envelope to your signature on your voter registration card and your application for absentee ballots to verify your signature. If the signature on the absentee ballot oath envelope is missing or does not match the previous signatures, your county will contact you and provide a document whereby you can provide a signature and ID to verify your ballot.

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ABSENTEE VOTING IN PERSON (ADVANCE VOTING)

Applying For Your Absentee Ballot and Voting

Voting any time prior to Election Day, even at a precinct, is absentee voting. You will complete an absentee ballot application in person at the early voting location immediately prior to casting your vote.

Photo Identification Required

You will need to provide proper photo identification anytime you vote in person. If you do not have photo identification when you go to vote, you will be allowed to vote a provisional ballot. You will be required to provide proper photo identification to the registrar within three days after Election Day for your ballot to count. For more information on Georgia’s photo identification requirements, please visit http://sos.ga.gov/index.php/elections/georgia_voter_identification_requirements2 or call the Secretary of State’s Election Division at (404) 656-2871.

Advance Voting Will Be Available:

Presidential Preference Primary General Primary General Election Special Election - Federal office Municipal General Primary Municipal General Election Special Election - Other Runoffs

4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day 4th Monday prior to election through the Friday before Election Day As soon as possible

Early voting times and locations can be found for all elections on your personal voter information page at: www.mvp.sos.ga.gov.

Voting Your Ballot
After returning your paper absentee ballot or voting in-person during advance voting, you will be marked in the voter registration system as “voted” and your vote(s) will be tabulated on Election Day

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Case 1:20-cv-01489-AT Document 2-4 Filed 04/08/20 Page 8 of 12
ADDITIONAL QUESTIONS ABOUT ABSENTEE VOTING
If I lose the absentee ballot that was sent to me, can I get another one?
Yes; however, you must sign an affidavit affirming that you lost, destroyed, or did not receive the first absentee ballot. In this instance, another ballot will be issued. A new request is not required.
If I request an absentee ballot, can I change my mind and still vote at my regular polling place?
If the ballot has been voted and returned to and received by the board of registrars, then the absentee ballot shall be deemed to have been voted. No other ballot shall be issued. If you still have the absentee ballot and give it to the poll manager of the precinct in which your name appears on the electors list, then the elector may vote a regular ballot. If you have not received an absentee ballot, or if you have returned the absentee ballot, but the registrars have not received the ballot, you may cancel the absentee ballot by making a written request to have the ballot marked “cancelled.” The managers of your precinct shall permit you to vote in person at that precinct. Canceled absentee ballots are handled in the same manner as those returned too late to be cast.
Can a third-party request an absentee ballot on my behalf?
A family member may request an absentee ballot on your behalf if you are residing temporarily out of the county or municipality or if you are a physically disabled voter residing within the county or municipality. The application for your absentee ballot may, upon satisfactory proof of relationship, be made by your mother, father, grandparent, aunt, uncle, sister, brother, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-inlaw, brother-in-law, or sister-in-law of the age of 18 or over. Relatives applying for absentee ballots for you must also sign an oath stating that facts in the application are true.
The absentee ballot will be mailed directly to you at the permanent mailing address on record at the registrar’s office or to a temporary out-of-county or out-of-municipality address. A voter with a physical disability or a voter that is in custody in a jail or a detention facility may have the ballot mailed to a different address within the county.
The application must be in writing and must contain the name and relationship of the person requesting the ballot, if other than yourself.
Can I give my voted absentee ballot to someone else to return for me?
It depends on how the ballot is returned.
A voted absentee ballot can be returned, by mail or in-person, by a family member as designated on O.C.G.A. 21-2-385(a) or by a person living in the same house as the absentee voter.
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Case 1:20-cv-01489-AT Document 2-4 Filed 04/08/20 Page 9 of 12
If the absentee voter is physically disabled, their voted absentee ballot may be returned by a family member or housemate (as described above) OR by the voter’s caregiver, regardless of whether the caregiver resides with the voter.
Can I vote by absentee ballot if I am confined to the hospital?
In some counties, a voter who is confined to a hospital on a primary or election day can vote an absentee ballot that is delivered by a registrar or deputy registrar. The ballot must be voted, sealed properly, and returned to the deliverer. If the voter registered to vote for the first time in Georgia by mail and has not previously provided proper identification, the voter will be allowed to vote by provisional ballot if he or she fails to provide proper identification. Once the identification and registration of the voter have been verified, the vote will be officially recorded. Please contact your county elections official to inquire about absentee ballot delivery, if you are in the hospital.
Do I have to apply for an absentee ballot for each election if I have a physical disability or I am 65 or over?
If a physically disabled voter or voters 65 years or older makes a written request to receive an absentee ballot for the primary, primary runoff, election, and election runoff he or she will receive ballots without having to ask again by specifically stating such on the written request or absentee application. Physically disabled voters 65 years or older must submit separate absentee applications for all Special Elections.
Can I receive assistance with my absentee ballot application?
Yes, but the person providing the assistance must sign the application for the absentee ballot.
May an absentee application that is pre-printed or filled out in advance by a third party be accepted if signed by the elector?
There is no prohibition against a third party assisting in the completion of the application provided that the voter personally signs the application, affirming that the information is true and correct.
May absentee applications be accepted in bundle?
Yes. They can be returned by fax, by mail, or in person. There are no restrictions on who may take possession of and transmit or deliver an application for an absentee ballot, or how those applications are transmitted or delivered.
Some of the important points of which you need to be aware, if you distribute applications for absentee ballots include:
The voter must personally affix his or her signature to the application.
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Case 1:20-cv-01489-AT Document 2-4 Filed 04/08/20 Page 10 of 12
Voters who use an absentee ballot application provided by an individual or organization must attest to the truth and correctness of the content of the application and sign the application.
May any organization provide campaign materials along with an absentee application? There are no restrictions against campaign materials being distributed along with the absentee applications. May I create my own absentee ballot application for others to use? Any person or entity, except an election superintendent or registrar, that creates an application for an absentee ballot form for an elector, other than the elector themselves, shall ensure that the absentee ballot form is substantially in the same form as the application for the absentee ballot form made available by the Secretary of State. Such person or entity shall also clearly disclose on the face of the application for an absentee ballot form that they created the application for an absentee ballot form. Any nonconforming application for an absentee ballot shall still be processed if it meets the legal requirements of O.C.G.A. 21-2-381(a).
PENALTIES FOR FRAUDULENT ABSENTEE VOTING ACTIVITY
An individual who votes more than once in an election is guilty of a felony. It is a crime to do any electioneering, or otherwise attempt to influence a voter, at the time he or she is voting an absentee ballot. It is a crime to intimidate or use or threaten to use violence to interfere with anyone’s lawful right to vote. It is a crime to pay or offer to pay a person any amount of money or to give a person anything of value in exchange for voting for a particular person or issue. Similarly, it is against the law to pay someone not to vote. It is a crime to violate the secrecy of the ballot, or otherwise tamper with ballots or the voting system.
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RESOURCES
County and city election officials can be a valuable source for absentee voting materials and information. They can assist you in answering specific questions about the absentee ballot process and can provide information to ensure the application and ballot is correct. County contact information can be found at: http://sos.ga.gov/cgi-bin/countyregistrarsindex.asp Georgia Election Code can be found at: http://www.lexisnexis.com/hottopics/gacode/default.asp State Election Board Rules can be found at: http://sos.ga.gov/index.php/elections/state_election_board Absentee Ballot Applications can be found at: http://sos.ga.gov/index.php/Elections/absentee_voting_in_georgia
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Case 1:20-cv-01489-AT Document 2-4 Filed 04/08/20 Page 12 of 12
COMPLETING AN ABSENTEE BALLOT APPLICATION
Prior to submitting an absentee ballot application, a voter must be registered in the county in which the voter resides. Voter registration status and county registrar information can be found at: mvp.sos.ga.gov
 Enter the name of the county or municipality
 Election dates can be found at: www.sos.ga.gov/elections
 Military or overseas voters, who are requesting Electronic Ballot Delivery, must provide an email address
 The following individuals may request multiple ballots with this single application: o 65 years of age or older o Physically Disabled o Military (including a spouse or dependent residing with member) o Overseas Citizens Please check the appropriate qualification box when requesting multiple ballots.
 Military and overseas voters must also check this box when requesting Electronic Ballot Delivery.
 The application must be signed or marked by a voter.
 Anyone assisting a disabled or illiterate applicant must also sign in the appropriate section
 Family member must check the appropriate box and sign when completing an application on behalf of a relative who is either residing temporarily out of the county or who is physically disabled
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Case 1:20-cv-01489-AT Document 2-5 Filed 04/08/20 Page 1 of 3
DECLARATION OF MEGAN GORDON My name is Megan Gordon and I am over the age of 18 and fully competent to make this declaration. Under penalty of perjury, I declare the following: 1. I am a registered Georgia voter and resident in DeKalb county. 2. I am a United States citizen and am over 18 years old. I have not been declared mentally incompetent by a judge, and I am not currently serving a sentence for a felony conviction. 3. Elections officials require voters to put postage stamps on mail-in absentee ballots and absentee ballot applications. 4. I am unwilling to put postage on mail-in absentee ballots and applications, because I do not feel like I should have to spend money to vote. 5. I also do not know how much postage to put on absentee ballots, because I do not have a stamp scale. Ballots change in size and weight depending on the election at issue. 6. As of this date, I only have two postage stamps. But even if I had plenty of postage stamps, I do not want to use postage that I have paid for out of my own pocket just to vote. 7. I do not want to vote in-person during the COVID-19 pandemic. If I have the virus, I do not want to endanger the lives of those around me, especially the elderly and those with chronic illness or compromised immunity. If I do not have
1

Case 1:20-cv-01489-AT Document 2-5 Filed 04/08/20 Page 2 of 3
the virus, I do not want to catch it, increasing the risk of harm to others and to my own health as well. 8. While voters must use the mail to cast a mail-in absentee ballot, I understand that absentee ballot applications can be e-mailed (or faxed) if they are printed, signed, and scanned. The Secretary of State recently sent me (and other registered voters) a paper absentee ballot application. But if the Secretary of State does not send me an absentee voter application for the next election, I cannot e-mail it in because I do not have a printer or fax machine, so I can only mail it in and use a postage stamp. 9. I am experienced in voter engagement work and do that work currently, especially among lower-income populations. 10. Requiring voters to pay postage is a serious concern this year because many more Georgia voters are expected to vote absentee by mail this year in light of the pandemic. 11. I have learned the following from my experience in civic engagement. Many voters, especially lower-income voters, do not have postage stamps because people are increasingly relying on online transactions. Many people in rural areas and lower-income people do not have Internet access nor credit cards, making it impossible for them to purchase stamps online. Even if they could, they would be forced to spend around $10 to buy a whole book of stamps because you cannot just
2

Case 1:20-cv-01489-AT Document 2-5 Filed 04/08/20 Page 3 of 3
buy a single stamp. Many cannot afford this cost, especially since COVID-19 has so many people out of work. Voters can also buy stamps in-person at a post office or grocery store, but that needlessly exposes them to the deadly COVID-19 virus. Many voters do not have stamp scales (including myself). Only the few voters with stamp scales can know with any certainty how many stamps to put on their ballot. 12. Forcing voters to purchase their own postage complicates a procedure that is already confusing to many voters. Voter education becomes more difficult the more steps are required of voters. 13. Many voters like the elderly, those with physical disabilities, and out-oftown voters can only vote by mail, so it is extraordinarily difficult if not impossible for them to vote in person. Even for those who are able to vote in-person, taking time off work or child care to travel to a polling place can still be challenging. 14. I am willing to serve as a class representative for all mail-in absentee voters if need be. This issue is too important.
I declare under penalty of perjury that the forgoing is true and correct.
_________________ Megan Gordon
04/07/2020
_________________ Date
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

Loss of poll workers threatens in-person voting in Georgia primary

POLITICS | 8 hours ago
By Mark Niesse, The Atlanta Journal-Constitution

Poll workers are quitting and precincts are closing across Georgia because of the coronavirus pandemic, dimming the outlook for in-person voting in the state’s primary election.

The primary is still scheduled for May 19, but the situation is deteriorating, say several county election managers contacted by The Atlanta Journal-Constitution.

If the election moves ahead as planned, Georgia voters could be faced with long lines

and limited options, similar to the situation that unfolded Tuesday in Wisconsin’s

primary.

https://www.ajc.com/news/state--regional-govt--politics/loss-poll-workers-threatens-person-voting-georgia-primary/HxtIBEQ62cAkXDiraDlhUI/

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©“20W20eT’rhee Agtloanitna gJoutronahl-Caovnestitcuhtioanl.lAellnRgigehtss Rtehsaertvewd.eB’yvuesinngethvisewrefbasictee, ydoubefore,” said RicharNdeBeadrrHoenlp, ?
accept the terms of our Visitor Agreement and Privacy Policy, and understand your
   optthioenserelgeacrdtiniog nAdsCdhioriececs.tLoerarfnoabroFutuclatroeenrsCat oCouxnEtnyte.rp“rIisfeps. eople decide they’re going to go to the

polling place and we’re putting the minimum number of poll workers out there, it’s

going to be diﬃcult for voters.”

Election oﬃcials are encouraging voting by mail, and Secretary of State Brad Raﬀensperger sent absentee ballot request forms to the state’s 6.9 million active voters.

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That will present a health and safety dilemma for poll workers, who on average are over 70 years old and more at-risk of falling ill to the coronavirus. In addition, voters would have to keep 6 feet apart from each other, and fewer than 10 people would be allowed in a room at once.

In Fulton, fewer than 500 people have committed to working the election, Barron said. Normally, the state’s most populous county has more than 1,600 poll workers at 199 polling places.

Raﬀensperger said he’s hearing concerns from county election oﬃcials, but he said he lacks the power under Georgia law to postpone the primary unless Gov. Brian Kemp declares another public health emergency that includes the election period. Kemp’s current state of emergency expires Monday, and early voting is set to begin April 27.

A decision on whether to change the primary date may be growing near.

“Looking at the situation on the ground, then we’ll be able to make a determination at that time” if Kemp extends the public health emergency, Raﬀensperger said Monday. “We’re very mindful of what is happening throughout Georgia right now and the ability to have in-person voting.”

Deidre Holden, the elections supervisor for Paulding County west of Atlanta, said she has lost about one-third of her 325 poll workers.

“We’re in the planning of the war stage right now,” Holden said. “We’re so in need for people to ﬁll these spots. We’ll pretty much pay anybody who’s willing to be a poll

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Poll workers are often paid a ﬂat rate for election day that varies in each county, with

pay generally starting at $120 for more than 12 hours of work. Senior poll workers

make more money.

Election managers say they’ll try to recruit new hires in the coming weeks, possibly from people who have been laid oﬀ. The state processed nearly 134,000 applications for unemployment insurance last week, more than 10 times the average.

But hiring poll workers will likely be diﬃcult, election oﬃcials said. Many are unwilling to risk exposure to the coronavirus.

In Cobb County, few poll workers have quit so far, but that could quickly change, Elections Director Janine Eveler said.

“Most people are saying they are willing to work, but they need to know what it looks like closer to the election. Everything can change day to day,” Eveler said. “As the coronavirus progresses in April and if we don’t see that curve start to ﬂatten, I am sure many of the at-risk poll workers will end up dropping as we get closer to the election.”

Besides the loss of poll workers, churches and assisted living centers that usually serve as voting locations have shut their doors. Voters who usually cast their ballot at those precincts will be reassigned.

In Fulton, ﬁve assisted living centers and two churches are unwilling to serve as precincts. The county will also likely reduce its planned 21 early-voting sites.

DeKalb County election oﬃcials said they hope to keep their 11 early-voting locations, and the county is asking whether those locations are still available to host in-person

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Each voting location is required to have at least three poll workers. With nearly 2,700

precincts in Georgia, that’s about 8,000 poll workers needed.

In Lowndes County, Elections Supervisory Deb Cox said she’s lost about 40% of her poll workers but still has enough to staﬀ the county’s 11 precincts.

She has about 90 poll workers willing to work. Still, some of those precincts might be unavailable for the May election.

“Our commission chair just walked in and I asked if he wanted a job. He politely declined,” Cox said. “At this point, I’m not overly concerned. It’s something to consider.”

Some areas haven’t lost poll workers yet, including places like Chatham, Macon and Muscogee counties. Their elections directors said they haven’t been hit as hard by the coronavirus.

“It would be nice if everything is business as usual. We’d be fools to say it is,” said Russell Bridges, the elections supervisor for Chatham County, where just three of 700 poll workers have expressed concerns. “You plan the best you can for what you know you’ve got to do and hope for the best when you get there.”

Support real journalism. Support local journalism. Subscribe to The Atlanta Journal-Constitution today. See oﬀers.

National World News | 5 days ago

Georgia judge dies of COVID-19 complications

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Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 1 of 9

THE STATE OF GEORGIA
EXECUTIVE ORDER

BY THE GOVERNOR:

EXECUTIVE ORDER TO ENSURE A SAFE & HEALTHY GEORGIA

WHEREAS:

On March 14, 2020, due to the impact of COVID-19 on the State of Georgia, I issued Executive Order No. 03.14.20.01, declaring a Public Health State of Emergency in Georgia; and

WHEREAS:

The Georgia General Assembly concurred with Executive Order 03.14.20.01 by joint resolution on March 16, 2020; and

WHEREAS:

The number of COVID-19 cases in Georgia continues to rise; and

WHEREAS:

The Georgia Department of Public Health has determined that COVID-19 is spreading throughout communities, requiring the implementation of ce1tain restrictions to limit the spread; and

WHEREAS:

The Centers for Disease Control and Prevention has determined that older adults, people of any age who have serious underlying medical conditions, and certain other people groups may be at higher risk for more serious complications from COVID-19; and

WHEREAS:

Code Section 38-3-51(c)(4) vests the Governor with the power to perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population; and

WHEREAS:

Code Section 38-3-51(d)(1) vests the Governor with the power to suspend any regulatmy statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance ,vith any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster; and

WHEREAS:

Code Sections 31-2A-4 and 31-12-4 vests the Department of Public Health with the power to segregate and isolate certain individuals with ce1tain communicable diseases or conditions when said

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 2 of 9

WHEREAS: ORDERED: ORDERED: ORDERED: ORDERED:

individuals' exposure to the general population is likely to endanger the health of others; and
In consultation with the Governor's Coronavirus Task Force and health and emergency preparedness officials, I have determined that the following temporary actions are necessary and appropriate to protect the health, safety, and welfare of Georgia's residents and visitors.
Now, THEREFORE, PURSUANT TO AFOREMENTIONED GEORGIA
LAW AND THE AUTHORITY VESTED IN ME AS GOVERNOR OF THE STATE OF GEORGIA, IT IS HEREBY
All residents and visitors of the State of Georgia shall practice social distancing and sanitation in accordance with this Order and guidelines published by the Centers for Disease Control and Prevention.
IT IS FURTHER
No business, establishment, corporation, non-profit corporation, organization, or county or municipal government shall allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand orto be seated within six (6) feet of any other person. This provision shall not apply to cohabitating persons outside of their homes, family units or roommates residing together in private homes, or entities defined as "Critical Infrastructure" by this Order.
IT IS FURTHER
That as used in this Order, the term "single location" shall be interpreted to mean a space where all persons gathered cannot maintain at least six (6) feet of distance between themselves and any other person. The term "single location" shall not include private residences.
IT IS FURTHER
That all residents and visitors of the State of Georgia are required to shelter in place ,-vithin their homes or places of residence, meaning remaining in their place of residence and taking every possible precaution to limit social interaction to prevent the spread or infection of COVID-19 to themselves or any other person, unless they are:
1. Conducting or pmticipating in Essential Services;

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 3 of 9

ORDERED:
ORDERED: ORDERED:

2. Performing Necessary Travel; 3. Are engaged in the performance of, or travel to and from, the
performance of Minimum Basic Operations for a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure; or 4. Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from, their respective employment.
IT IS FURTHER
That Essential Services permitted pursuant to the provisions of this Order are limited to the following:
1. Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
2. Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services.
3. Engaging in outdoor exercise activities so long as a minimum distance of six (6) feet is maintained during such activities between all persons who are not occupants of the same household or residence.
IT IS FURTHER
That Necessary Travel permitted under this Order is limited to such travel as is required to conduct or paiticipate in Essential Services, Minimum Basic Operations, or Critical Infrastructure as defined by this Order.
IT IS FURTHER
That Minimum Basic Operations are limited to:
1. The minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization, provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions. Such minimum necessary activities include remaining open to the public subject to the restrictions of this Order.

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 4 of 9

ORDERED:

2. The minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences or members or patrons being able to participate remotely from their residences.
3. Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.
IT IS FURTHER
That all businesses, establishments, corporations, non-profit corporations, or organizations that are not Critical Infrastructure shall only engage in Minimum Basic Operations as defined in this Order during the effective dates of this Order. Such entities shall also implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures shall include the following:
1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100-4 degrees Fahrenheit, cough, or sh01tness of breath;
2. Requiring workers who exhibit signs of illness to not repo1t to work or to seek medical attention;
3. Enhancing sanitation of the workplace as appropriate; 4. Requiring hand washing or sanitation by workers at
appropriate places within the business location; 5. Providing personal protective equipment as available and
appropriate to the function and location of the worker within the business location; 6. Prohibiting gatherings of workers during working hours; 7. Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable; 8. Implementing teleworking for all possible workers; 9. Implementing staggered shifts for all possible workers; 10. Holding all meetings and conferences virtually, wherever possible; 11. Delivering intangible services remotely wherever possible; 12. Discouraging workers from using other workers' phones, desks, offices, or other work tools and equipment; 13. Prohibiting handshaking and other unnecessary person-toperson contact in the workplace; 14. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; 15. Suspending the use of Personal Identification Number ("PIN") pads, PIN entry devices, electronic signature capture,

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 5 of 9

ORDERED:

and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements v1,ith credit card companies and credit agencies; 16. Enforcing social distancing of non-cohabitating persons while present on such entity's leased or owned property; 17. For retailers and sen,ice prm,iders, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law; 18. Increasing physical space between workers and customers; 19. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; 20.Increasing physical space between workers' worksites to at least six (6) feet.
IT IS FURTHER
The term "Critical Infrastructure" shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the U.S. Depaitment of Homeland Security as "essential critical infrastructure workforce," in guidance dated March 19, 2020, and revised on March 28, 2020, and those suppliers which provide essential goods and services to the critical infrastructure workforce as well as entities that provide legal services, home hospice, and non-profit corporations or non-profit organizations that offer food distribution or other health or mental health services. The operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance.
Critical Infrastructure that continues in-person operation during the effective dates of this Order shall implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures may include, but shall not be limited to:
1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100-4 degrees Fahrenheit, cough, or shortness of breath;
2. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
3. Enhancing sanitation of the workplace as appropriate; 4. Requiring hand washing or sanitation by workers at
appropriate places Yl>ithin the business location; 5. Providing personal protective equipment as available and
appropriate to the function and location of the worker ,\,ithin the business location; 6. Prohibiting gatherings of workers during working hours;

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 6 of 9

ORDERED: ORDERED: ORDERED:

7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
8. Implementing teleworking for all possible workers; 9. Implementing staggered shifts for all possible workers; 10. Holding all meetings and conferences viitually, wherever
possible; 11. Delivering intangible services remotely wherever possible; 12. Discouraging workers from using other workers' phones,
desks, offices, or other work tools and equipment; 13. Providing disinfectant and sanitation products for workers to
clean their workspace, equipment, and tools; 14. Prohibiting handshaking and other unnecessa1y person-to-
person contact in the workplace; and 15. Placing notices that encourage hand hygiene at the entrance
to the workplace and in other workplace areas where they are likely to be seen; and 16. Suspending the use of Personal Identification Number ("PIN") pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.
IT JS FURTHER
That the Georgia Depaitment of Economic Development is authorized to issue guidance to any business, corporation, organization, or industry trade group regarding its status as Critical Infrastructure. This guidance shall not require a finding of fact but shall be in writing and shall be considered a final agency action for the purpose of proceedings under Code Section 50-13-19.
IT JS FURTHER
All restaurants and private social clubs shall cease providing dine-in services. Takeout, curbside pick-up, and delive1y are permitted in accordance with the provisions of this Order.
This provision shall not limit the operation of dine-in services in hospitals, healthcare facilities, nursing homes, or other long-term care facilities; however, to the extent possible, such facilities should offer in-room dining.
IT IS FURTHER
That all gyms, fitness centers, bowling alleys, theaters, live performance venues, operators of amusement rides as defined by

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 7 of 9

ORDERED:
ORDERED: ORDERED:

Code Section 25-15-51, body art studios permitted pursuant to Code Section 31-40-2, businesses registered pursuant to Code Sections 4310-11 and 43-10-18, estheticians as defined by Code Section 43-101(8), hair designers as defined by Code Section 43-10-1(9), persons licensed to practice massage therapy pursuant to Code Section 4324A-8, and businesses which possess a license to operate as or otherwise meet the definition of "bar" as defined by Code Section 31-2(2.1), shall cease in-person operations and shall close to the public while this Order is in effect.
IT IS FURTHER
That persons required to shelter in place under any provision of this Order shall not receive visitors, except as follows:
1. Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
2. Visitors providing supp01t for the person to conduct activities of daily living or instrumental activities of daily living;
3. Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence; or
4. Visitors received during end-of-life circumstances.
To the extent practicable under the circumstances, visitors shall maintain a minimum distance of six (6) feet between themselves and all other occupants of the person's home or residence. Any visitors visiting for the sole purpose of delivering medication, supplies, or other tangible goods shall, to the extent practicable, deliver such items in a manner that does not require in-person contact or require the deliverer to enter the person's home or residence.
IT IS FURTHER
That the provisions of this Order related to visitors listed in the immediately preceding paragraph shall be strictly enforced against nursing homes or other long-term care facilities, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.
IT IS FURTHER
That an exception to any shelter-in-place requirement set fo1th hereunder applies in the event of an emergency. In such cases,

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 8 of 9

ORDERED: ORDERED: ORDERED:
ORDERED:

persons are encouraged to leave their homes or residences and shelter in place in accordance with the rules included in this Order at a safe alternate location. Persons experiencing homelessness are urged to obtain shelter and to contact governmental and other entities for assistance.
IT IS FURTHER
That the Department of Public Health, the Depa1tment of Public Safety, or any other state department or state officer deputized by the Governor or the Georgia Emergency Management and Homeland Security Agency are, after providing reasonable notice, authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance vvith this Order for a period not to extend beyond the term of this Order.
IT IS FURTHER
That the Adjutant General of the Georgia National Guard and the Commissioner of the Department of Public Safety shall provide resources as requested to assist in the enforcement of this Order.
IT IS FURTHER
That pursuant to Code Section 38-3-51, the powers of counties and cities conveyed in Titles 36 and 38, including those specific powers enumerated in Code Sections 36-5-22.1 and 36-35-3 are hereby suspended to the extent of suspending enforcement of any local ordinance or order adopted or issued since March 1, 2020, with the stated purpose or effect of responding to a public health state of emergency, ordering residents to shelter-in-place, ordering a quarantine, or combatting the spread of coronavirus or COVID-19 that in any way conflicts, varies, or differs from the terms of this Order. Enforcement of all such ordinances and orders is hereby suspended and no county or municipality shall adopt any similar ordinance or order while this Order is in effect, except for such ordinances or orders as are designed to enforce compliance with this Order.
IT IS FURTHER
That if one or more of the provisions contained in this Order shall conflict with the provisions of any previous Executive Order or Agency Administrative Order, the provisions of this Order shall control. Fmther, in the event of any conflict, the provisions of any quarantine or isolation Order issued to a specific person by the Department of Public Health shall control.

Case 1:20-cv-01489-AT Document 2-7 Filed 04/08/20 Page 9 of 9

IT IS FURTHER

ORDERED:

That nothing in this Order shall be construed to suspend or limit the sale, dispensing, or transportation of firearms or ammunition, or any component thereof.

IT IS FURTHER

ORDERED:

That pursuant to Code Section 38-3-7, any person who violates this Order shall be guilty of a misdemeanor. Officials enforcing this Order should take reasonable steps to provide notice prior to issuing a citation or making an arrest.

IT IS FURTHER

ORDERED:

This Order rescinds and replaces Executive Order 03.23.20.01.

IT IS FURTHER

ORDERED:

That if one or more of the provisions contained in this Order shall be held to be invalid, in violation of the Georgia Constitution, in violation of Georgia law, or unenforceable in any respect, such invalidity, violation, or unenforceability shall not affect any other provisions of this Order, but, in such case, this Order shall be construed as if such invalid, illegal, or unenforceable provision had never been contained within the Order.

IT IS FURTHER

ORDERED:

All provisions of the Order shall become effective for a period beginning at 6:oo P.M. on Friday, April 3, 2020, and expiring at 11:59 P.M. on Monday, April 13, 2020.

Ji, This 2nd day of April 2020, at '~

P.M.

GOVERNOR

4/8/2020

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

NEW DETAILS: President Trump extends guidelines through April 30

CONTINUING COVERAGE: CORONAVIRUS | March 29, 2020
By The Associated Press
Earlier Sunday, Fauci predicted 100,000 to 200,000 deaths in US

https://www.ajc.com/news/breaking-fauci-predicts-100-000-200-000-deaths-united-states/j55YsMZqwaQJH1qWCAXIGL/

1/19

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accept the terms of our Visitor Agreement and Privacy Policy, and understand your
   opttwionos rwegearedikngs,A”daCnhdoichese. Liesaren xabtoeunt cdairneegrs atthCeoxsEtnatyer-pariste-sh. ome guidelines through April 30.

Olivier Knox
@OKnox
Trump announces that the federal social-distancing and mitigation guidelines, which faced a renew/end date tomorrow, will be extended to April 30th.
68 6:11 PM - Mar 29, 2020 48 people are talking about this
The initial 15-day period of social distancing urged by the federal government expires Monday, and Trump had expressed interest in relaxing the national guidelines at least in parts of the country less aﬄicted by the pandemic. But instead he decided to extend them through April 30, a tacit acknowledgment he’d been too optimistic. Many states and local governments have stiﬀer controls in place on mobility and gatherings.
»COMPLETE COVERAGE: Everything you need to know about coronavirus
At the coronavirus task force news brieﬁng Sunday night at the White House, the president said more details about the federal social distancing and mitigation guidelines will be released Tuesday night.
Trump also said Abbott Labs will begin providing 50,000 tests each day for the coronavirus. The president said the tests, which he said have been approved by the FDA, will provide results in about ﬁve minutes.

Credible reporting in incredible times. Support local journalism.

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2/19

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Trump also thanked the Army Corps of Engineers and FEMA for constructing 2,900

hospital beds at the Javits Center in New York. The president said the project was

completed in fewer than four days. He said other hospitals are planned in Louisiana,

New Jersey and other states.

The president also said he is “working on” getting FDA approval for a system that sterilizes masks up to 20 times because health care workers say they have reused masks amid the pandemic, according to reporter Yamiche Alcindor.

Yamiche Alcindor
@Yamiche
President Trump says he is working on getting a system that sterilizes masks up to 20 times approved by the FDA.
Healthcare workers have said they have had to reuse masks while treating coronavirus patients and have said that’s dangerous.
1,306 5:51 PM - Mar 29, 2020
481 people are talking about this
Trump also said reporters should “look into” where hospital masks in New York are going. He suggested some might be “going out the back door” during the crisis, according to reporter Steve Herman.

Steve Herman @W7VOA · Mar 29, 2020 Replying to @W7VOA Some masks can be sterilized "up to 20 times," says @POTUS.

Steve Herman
@W7VOA

"Something's going on and you ought to look into it as reporters," says @POTUS about the surge in demand by NYC

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3/19

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61 5:57 PM - Mar 29, 2020 76 people are talking about this
Earlier Sunday, the government’s foremost infectious disease expert said the country could experience more than 100,000 deaths and millions of infections from the coronavirus pandemic.
Dr. Anthony Fauci, speaking on CNN’s “State of the Union,” oﬀered his prognosis as the federal government weighs rolling back guidelines on social distancing in areas that have not been as hard-hit by the outbreak at the conclusion of the nationwide 15-day eﬀort to slow the spread of the virus.
“I would say between 100,000 and 200,000 cases,” he said, correcting himself to say he meant deaths. “We're going to have millions of cases.” But he added , “I don’t want to be held to that” because the pandemic is “such a moving target.”
Trump, who has largely avoided talk of potential death and infection rates, cited projection models that said potentially 2.2 million or more could have died had the country not put social distancing measures in place. And he said the country would be doing well if it “can hold” the number of deaths “down to 100,000.”

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4/19

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Flattening the coronavirus curve ©2020 The Atlanta Journal-Constitution. All Rights Reserved. By using this website, you
accept the terms of our Visitor Agreement and Privacy Policy, and understand your
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Cumulative coronavirus cases

Need Help?

China Germany Spain France Iran Italy South Korea U.S.

350,000

300,000

250,000

200,000

150,000

100,000 50,000

China has attened its curve

0 Jan. 22

Feb. 1

Mar. 1

Chart updates at 8 p.m. Figures are as reported by governments and health authorities. Source: Johns Hopkins / Graphic: Phil Holm & Nicky Forster

Apr. 1

“It's a horrible number,” Trump said, but added: “We all together have done a very good job.”

Brought forward by Trump at the outdoor brieﬁng Sunday evening, Fauci said his projection of a potential 100,000 to 200,000 deaths is “entirely conceivable” if not enough is done to mitigate the crisis. He said that helped shape the extension of the guidelines, “a wise and prudent decision.”

About 125,000 cases of COVID-19 in the U.S. had been recorded as of Sunday morning, with about 2,200 dead. It is certain that many more have the disease but their cases have not been reported.

One in three Americans remain under state or local government orders to stay at home to slow the spread of the virus, with schools and businesses closed and public life upended.

https://www.ajc.com/news/breaking-fauci-predicts-100-000-200-000-deaths-united-states/j55YsMZqwaQJH1qWCAXIGL/

5/19

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area, will be spared,” she said on NBC’s “Meet the Press.”

Coronavirus deaths in the U.S.

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Fauci said he would only support the rollback in lesser-impacted areas if more testing is in place to monitor those areas. He said “it’s a little iﬀy there” now.
Most people who contract COVID-19 have mild or moderate symptoms, which can include fever and cough but also milder cases of pneumonia, sometimes requiring hospitalization. The risk of death is greater for older adults and people with other health problems. Hospitals in the most aﬄicted areas are straining to handle patients, and some are short of critical supplies.

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6/19

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   opdtiaonyssremgaredidngicAadlCphoroicefse. sLesaironnabaolust chaareveers awt CaorxnEentderptrhisaest. would be far too soon for the nation’s

heavily aﬀected urban areas.

On Saturday, Trump was discussing tightening restrictions, suggesting then backing away from an “enforceable” quarantine of hard-hit New York, Connecticut and New Jersey. Instead, the White House task force recommended a travel advisory for residents of those states to limit non-essential travel to slow the spread of the virus to other parts of the U.S.

House Speaker Nancy Pelosi suggested that Trump shouldn’t be so quick to reverse the social distancing guidelines, saying more testing needs to be in place to determine whether areas currently showing fewer infections are truly at lower risk.

Trump’s “denial” in the crisis was “deadly,” she told CNN.

“As the president ﬁddles, people are dying, and we have to take every precaution,” she said. She promised a congressional investigation once the pandemic is over to determine whether Trump heeded advice from scientiﬁc experts and to answer the question that resonates through U.S. political scandals: “What did he know and when did he know it?”

Trump played down the severity of the pandemic for weeks. Asked whether she is saying that attitude cost American lives, Pelosi said: “Yes, I am. I’m saying that.”

It put Pelosi out of lockstep with former Vice President Joe Biden, the likely Democratic presidential nominee, who said he wouldn’t go so far as to lay the blame for deaths on the president. “I think that’s a little too harsh,” he told NBC.

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7/19

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   opintiovnos rkeegadrdiDngeAfdeCnhsoeicePs.rLoedarnuacbtoiuotncarAeecrstattoCosxpEnuterrptrhisees.manufacture of the full range of needed

medical supplies — and for making erratic statements about the pandemic.

“He should stop thinking out loud and start thinking deeply,” Biden said.

Meanwhile, governors in other hotspots across the country were raising alarm that the spread of the virus was threatening their health care systems.

“We remain on a trajectory, really, to overwhelm our capacity to deliver health care,” Louisiana Gov. John Bel Edwards said on ABC’s “This Week.” “By the end of the ﬁrst week in April, we think the ﬁrst real issue is going to be ventilators. And we think it’s about the fourth or ﬁfth of April before, down in the New Orleans area, we’re unable to put people on ventilators who need them. And then several days later, we will be out of beds.”

He said oﬃcials have orders out for more than 12,000 ventilators through the national stockpile and private vendors, but so far have only been able to get 192.

Around the world, doctors were forced to make tough choices about which patients to save with their limited breathing machines, and Spain and Italy demanded more European help as they ﬁght still-surging coronavirus infections in the continent’s worst crisis since World War II.

The conﬁrmed global death toll surpassed 31,000, and new virus epicenters emerged in U.S. cities including Detroit, New Orleans and Chicago. Even rural America has not been immune, as virus hotspots erupt in Midwestern towns and Rocky Mountain ski havens.

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8/19

4/8/2020

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Experts say, however, that virus toll numbers across the world are being seriously underrepresented because of limited testing and political decisions about which bodies to count. Unlike the U.S., France and Italy do not count deaths that take place at home or in nursing homes, even though nursing homes are known coronavirus incubators around the world.

“Europe must demonstrate that it is able to respond to this historic call,” Italian Premier Giuseppe Conte said late Saturday. “I will ﬁght until the last drop of sweat, until the last gram of energy, to obtain a strong, vigorous, cohesive European response.”

Photo: Eugene Hoshiko/Associated Press

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9/19

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   opctirointsicreigsamrdinagnAdd Cqhuoiecesst. iLoeanrnsaabobuot cuatretehrseat lCeogx Eanlitetyrproisefs.such a move. But the Centers for Disease

Control and Prevention issued a travel advisory urging all residents of New York City

and others in New York state, New Jersey and Connecticut to avoid all nonessential

travel for 14 days.

Shocking as that is for Americans, that stopped short of the restrictions imposed in Europe or elsewhere. Parisians are ﬁned if they try to leave the city, South Africans can't even buy liquor, and Serbians are upset about a ban on walking their dog. In Italy, burials are being held with only one family member.

»MORE: City under siege: Coronavirus exacts heavy toll in Albany

Spain moved to tighten its lockdown and ban all nonessential work Sunday as it hit another daily record of 838 dead. The country's overall oﬃcial toll was more than 6,500.

Spain’s health emergencies chief, Fernando Simón, said the country’s infection rate fell Sunday to 9%, down from 18% three days before. But he said the number of people in intensive care units keeps rising and hospitals are at their limits in several regions.

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Photo: Olmo Calvo/Associated Press
“That is why we have to strictly apply the control measures,” he said.
The crisis is pummeling world economies and putting huge strains on national health care systems. Spanish Prime Minister Pedro Sanchez called for a more vigorous response from the 27-nation European Union.

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11/19

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COVID-19: worldwide cases ©2020 The Atlanta Journal-Constitution. All Rights Reserved. By using this website, you
accept the terms of our Visitor Agreement and Privacy Policy, and understand your
   opTthioisncshraergtairsduinpgdaAtdedCohnocieceasd. aLye.arn about careers at Cox Enterprises.
Active cases Deaths Recovered

Need Help?

1,400,000

1,200,000

1,000,000

800,000

600,000

400,000

200,000

0

Feb

Mar

Apr

Source: Johns Hopkins & Datawrapper / Graphic: Phil Holm

“It is the most diﬃcult moment for the EU since its foundation, and it has to be ready to rise to the challenge,” he said.
Spain, Italy, France and six other EU members have asked the union to share the burden by issuing European debt, dubbed coronabonds, to help ﬁght the virus. But the idea has met resistance from Germany and the Netherlands.
European countries have also resisted sharing masks with their neighbors for fear that they, too, will need them in mass quantities soon. Many countries have turned to China, where the outbreak is easing, ﬂying in cargo planes to get protective medical equipment.

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12/19

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Photo: Olmo Calvo/Associated Press
These tensions have raised new fears about whether the EU will survive this crisis.
“It’s really, really important that we achieve better coordination,” German Finance Minister Olaf Scholz said.
Worldwide infections surpassed 680,000, according to a tally by Johns Hopkins University. The United States leads the world with about 125,000 reported cases, but ﬁve other countries have higher death tolls: Italy, Spain, China, Iran and France.
Italy has more than 10,000 deaths, the most of any country.
Egypt shut its beaches as cases in the Mideast surpassed 50,000. Police in the Philippines stepped up arrests of quarantine violators, and more tourists were evacuated from Mount Everest and the Indonesian island of Bali.

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13/19

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The coronavirus spread around the world ©2020 The Atlanta Journal-Constitution. All Rights Reserved. By using this website, you
accept the terms of our Visitor Agreement and Privacy Policy, and understand your
   opCtoinofnirsmreedggalrodbianlgcaAseds,Cdheaotihcseasn. dLereacronvearbieosuftrocmarCeOeVrsIDa-1t9Cox Enterprises.

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+

–

Con rmed cases
1 to 1,000 1,001 to 10,000 10,001 to 25,000 25,001 to 75000 More than 75,000 Map updates hourly. Figures are as reported by governments and health authorities. Source: Esri; Johns Hopkins / Graphic: Phil Holm & Nicky Forster
Poland is considering delaying its May 10 presidential election, and Russia ordered borders to close Monday. A prominent French politician with the virus died, France’s ﬁrst death of a senior oﬃcial.
British Prime Minister Boris Johnson, who has the virus himself, warned: “Things will get worse before they get better.”
For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. But for others, especially older adults and people with existing health problems, the virus can cause more severe illness, including pneumonia, and lead to death.
More than 145,000 people have recovered, according to Johns Hopkins.

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14/19

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©P20o2p0 eTheFAratlannctaiJsocuranalll-eCdonSstiutuntiodna. Ayll fRoigrhtas Rceesearvseed.-Bﬁyruesining tahilslwceobsniteﬂ,iycotus around the globeN“teoedfoHcuelsp?
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   opttoiognseretghaerdrinognAdtChheoictreus. eLeaﬁrngahbtouot fcaoreuerrs alitvCeosx .E”nHterepriaselss.o urged authorities to take special care

of those in nursing homes, military barracks and jails.

In Detroit, which has a large low-income population, the death toll rose to 31 with about 1,400 infections in a rate that shocked health oﬃcials.

“This is oﬀ the charts,” said Dr. Teena Chopra, medical director of infection prevention and hospital epidemiology at the Detroit Medical Center. “We are seeing a lot of patients that are presenting to us with severe disease, rather than minor disease.”

Some U.S. states began to try to limit exposure from visitors from harder-hit areas. Rhode Island National Guard troops were going door to door in coastal communities to ﬁnd New Yorkers. Florida is setting up checkpoints to screen visitors from Louisiana.

»Sign up for our new coronavirus newsletter

As others tightened controls, China eased more restrictions, following the ruling Communist Party’s declaration of victory against the coronavirus. Airline ﬂights from Hubei province at the center of the coronavirus outbreak resumed Sunday. Subway and bus service resumed Saturday in the province’s hard-hit capital of Wuhan.

Rich Barak of The Atlanta Journal-Constitution contributed to this report.

National World News | 7 days ago

Tyler Perry says his longtime girlfriend will ‘get her share’ of his wealth
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19/19

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19 DDaiolycSutamtuseRnetpo2r-t 9| GeoFrgiliaeDdep0a4rt/m0e8nt/2of0PubPlicaHgeaelth1 of 14

Georgia Department of Public Health COVID-19 Daily Status Report

Georgia Department of Public Health COVID-19 Daily
Status Report For: 04/07/2020
These data represent confirmed cases of COVID19 reported to the Georgia Department of Public Health as of 04/07/2020 18:28:13. A confirmed case is defined as a person who has tested
positive for 2019 novel coronavirus.
COVID-19 Confirmed Cases by County

https://dph.georgia.gov/covid-19-daily-status-report

1/14

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Count of COVID-19 Confirmed Cases *Based on patient county of residence when known
0 1 - 237 238 - 474 475 - 711 712 - 948

949 - 1185

COVID-19 Confirmed Cases: Total Hospitalized Deaths

No. Cases (%) 9156 (100%) 1899(20.74%) 348 (3.8%)

COVID-19 Confirmed Cases By County: Fulton Dougherty Dekalb Cobb Gwinnett Clayton Hall Henry Lee Bartow Carroll Sumter Cherokee Chatham Douglas Mitchell Forsyth Early Floyd Terrell Rockdale Houston Randolph Fayette Coweta Clarke Richmond Colquitt Newton

No. Cases 1185 973 673 566 540 278 215 208 204 191 183 162 147 120 117 100 99 96 92 92 86 85 83 81 80 78 75 70 67

No. Deaths 39 56 11 29 13 10 0 3 15 12 4 6 6 4 5 11 1 5 3 9 2 6 4 4 2 9 3 5 3

https://dph.georgia.gov/covid-19-daily-status-report

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Paulding Worth Muscogee Spalding Troup Bibb Columbia Crisp Lowndes Tift Barrow Thomas Coffee Ware Oconee Pierce Calhoun Glynn Upson Baldwin Dooly Bryan Gordon Walton Laurens Greene Jackson Decatur Whitfield Dawson Meriwether Peach Polk Turner Butts Effingham Camden Haralson Mcduffie Burke Lamar Liberty Monroe Seminole Stephens Washington Clay Hi

62

1

60

3

54

1

54

4

47

3

46

1

46

0

46

0

45

1

45

1

42

3

42

2

41

2

37

3

33

1

32

1

31

1

30

0

29

0

27

1

27

1

26

2

25

3

25

2

24

0

23

1

23

0

21

0

21

2

20

1

20

0

20

2

20

0

19

0

18

0

18

1

17

0

17

0

16

2

15

0

15

0

13

0

13

1

13

0

13

0

13

0

12

1

12

0

https://dph.georgia.gov/covid-19-daily-status-report

3/14

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Case 1:20-cv-0148C9O-VAIDT-19 DDaiolycSutamtuseRnetpo2r-t 9| GeoFrgiliaeDdep0a4rt/m0e8nt/2of0PubPlicaHgeaelth4 of 14

Harris Bacon Miller Murray Baker Bulloch Fannin Macon Morgan Pickens Pike Schley White Irwin Lumpkin Madison Dodge Pulaski Talbot Toombs Catoosa Habersham Jenkins Jones Appling Ben Hill Brooks Grady Jasper Johnson Lincoln Warren Brantley Lanier Putnam Rabun Wilkes Atkinson Banks Berrien Candler Chattooga Cook Jefferson Marion Quitman Screven Stewart

12

0

11

0

11

0

11

0

10

2

10

0

10

0

10

0

10

0

10

2

10

0

10

1

10

0

9

0

9

0

9

1

8

0

8

0

8

1

8

1

7

0

7

0

7

0

7

0

6

0

6

0

6

0

6

0

6

0

6

0

6

0

6

0

5

1

5

0

5

0

5

0

5

0

4

0

4

0

4

0

4

0

4

1

4

0

4

0

4

0

4

0

4

0

4

0

https://dph.georgia.gov/covid-19-daily-status-report

4/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19 DDaiolycSutamtuseRnetpo2r-t 9| GeoFrgiliaeDdep0a4rt/m0e8nt/2of0PubPlicaHgeaelth5 of 14

Taylor

4

1

Telfair

4

0

Union

4

0

Walker

4

0

Webster

4

0

Charlton

3

0

Clinch

3

0

Emanuel

3

0

Franklin

3

0

Gilmer

3

0

Hart

3

0

Heard

3

1

Mcintosh

3

0

Tattnall

3

0

Wayne

3

0

Wilkinson

3

0

Chattahoochee

2

0

Elbert

2

0

Oglethorpe

2

1

Towns

2

0

Twiggs

2

0

Wilcox

2

0

Bleckley

1

0

Crawford

1

0

Dade

1

1

Echols

1

0

Hancock

1

0

Jeff Davis

1

0

Long

1

0

Treutlen

1

0

Wheeler

1

0

Unknown

441

6

*Based on patient county of residence when known

COVID-19 Testing By Lab Type:
Commercial Lab
Gphl

No. Pos. Tests
8674
482

Total Tests
31065
2720

https://dph.georgia.gov/covid-19-daily-status-report

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COVID-19 Deaths in Georgia

Age Gender 65 FEMALE 95 MALE 53 MALE 66 MALE 64 MALE 91 FEMALE 90 FEMALE 90 MALE 88 MALE 87 FEMALE 78 MALE 72 MALE 90 MALE 56 MALE 69 MALE 93 MALE 71 FEMALE

County BAKER BAKER BALDWIN BARROW BARROW BARROW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW BARTOW

Underlying Unk Unk Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Unk Unk

https://dph.georgia.gov/covid-19-daily-status-report

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85 MALE

BARTOW

Yes

96 FEMALE BIBB

Yes

79 FEMALE BRANTLEY

Yes

63 MALE

BRYAN

Yes

65 MALE

BRYAN

Unk

59 FEMALE CALHOUN

Unk

80 MALE

CARROLL

Unk

64 MALE

CARROLL

Unk

71 FEMALE CARROLL

Unk

86 MALE

CARROLL

Unk

37 MALE

CHATHAM

Unk

83 MALE

CHATHAM

Yes

84 FEMALE CHATHAM

Yes

80 FEMALE CHATHAM

Yes

82 MALE

CHATTOOGA

Yes

78 FEMALE CHEROKEE

Yes

67 FEMALE CHEROKEE

Yes

94 FEMALE CHEROKEE

Yes

81 MALE

CHEROKEE

Yes

90 MALE

CHEROKEE

Yes

78 FEMALE CHEROKEE

Yes

65 FEMALE CLARKE

Unk

89 FEMALE CLARKE

No

79 MALE

CLARKE

Yes

78 FEMALE CLARKE

Yes

78 FEMALE CLARKE

Unk

79 MALE

CLARKE

Yes

60 MALE

CLARKE

Yes

68 MALE

CLARKE

Unk

98 MALE

CLARKE

Yes

65 MALE

CLAY

Unk

49 FEMALE CLAYTON

Unk

64 MALE

CLAYTON

Unk

83 FEMALE CLAYTON

Yes

67 MALE

CLAYTON

Unk

47 MALE

CLAYTON

Yes

69 MALE

CLAYTON

Yes

50 MALE

CLAYTON

Yes

89 MALE

CLAYTON

Unk

56 MALE

CLAYTON

Unk

82 MALE

CLAYTON

Yes

65 MALE

COBB

Yes

71 MALE

COBB

Yes

75 FEMALE COBB

Yes

67 MALE

COBB

No

75 MALE

COBB

Yes

67 FEMALE COBB

Yes

67 MALE

COBB

Yes

https://dph.georgia.gov/covid-19-daily-status-report

7/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19 DDaiolycSutamtuseRnetpo2r-t 9| GeoFrgiliaeDdep0a4rt/m0e8nt/2of0PubPlicaHgeaelth8 of 14

77 MALE

COBB

Yes

85 FEMALE COBB

Yes

87 FEMALE COBB

Yes

56 MALE

COBB

No

82 MALE

COBB

Yes

76 MALE

COBB

Yes

66 MALE

COBB

Yes

86 MALE

COBB

Unk

87 MALE

COBB

Yes

97 MALE

COBB

No

68 MALE

COBB

Yes

82 MALE

COBB

Unk

36 MALE

COBB

Yes

82 FEMALE COBB

No

63 FEMALE COBB

Yes

71 MALE

COBB

Yes

95 FEMALE COBB

Yes

93 MALE

COBB

Yes

33 MALE

COBB

Yes

81 FEMALE COBB

Unk

75 MALE

COBB

Unk

51 MALE

COBB

Yes

66 MALE

COFFEE

Unk

64 MALE

COFFEE

Yes

51 MALE

COLQUITT

Unk

76 FEMALE COLQUITT

Unk

83 FEMALE COLQUITT

Unk

53 MALE

COLQUITT

Yes

81 MALE

COLQUITT

Unk

42 FEMALE COWETA

Yes

77 MALE

COWETA

Yes

79 FEMALE DADE

Yes

80 MALE

DAWSON

Unk

91 FEMALE DEKALB

Yes

69 MALE

DEKALB

Yes

65 FEMALE DEKALB

Yes

81 MALE

DEKALB

Yes

31 MALE

DEKALB

Yes

70 MALE

DEKALB

Unk

89 FEMALE DEKALB

Yes

84 FEMALE DEKALB

Unk

88 FEMALE DEKALB

Yes

75 MALE

DEKALB

Yes

91 MALE

DEKALB

Yes

67 MALE

DOOLY

No

62 MALE

DOUGHERTY

Yes

48 MALE

DOUGHERTY

Unk

64 FEMALE DOUGHERTY

Uk

https://dph.georgia.gov/covid-19-daily-status-report

8/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19 DDaiolycSutamtuseRnetpo2r-t 9| GeoFrgiliaeDdep0a4rt/m0e8nt/2of0PubPlicaHgeaelth9 of 14

64 FEMALE DOUGHERTY

Unk

86 FEMALE DOUGHERTY

Unk

65 MALE

DOUGHERTY

Yes

45 FEMALE DOUGHERTY

Yes

82 FEMALE DOUGHERTY

Unk

69 MALE

DOUGHERTY

Unk

63 MALE

DOUGHERTY

Yes

84 MALE

DOUGHERTY

Unk

66 MALE

DOUGHERTY

Yes

66 FEMALE DOUGHERTY

Yes

68 FEMALE DOUGHERTY

Unk

68 MALE

DOUGHERTY

Unk

65 FEMALE DOUGHERTY

Yes

71 MALE

DOUGHERTY

Yes

92 FEMALE DOUGHERTY

Yes

92 FEMALE DOUGHERTY

Unk

61 FEMALE DOUGHERTY

Yes

69 FEMALE DOUGHERTY

Yes

43 FEMALE DOUGHERTY

Yes

79 MALE

DOUGHERTY

Yes

34 MALE

DOUGHERTY

Yes

42 FEMALE DOUGHERTY

Yes

66 FEMALE DOUGHERTY

Yes

78 MALE

DOUGHERTY

Unk

67 FEMALE DOUGHERTY

Unk

60 FEMALE DOUGHERTY

Unk

53 FEMALE DOUGHERTY

Yes

87 FEMALE DOUGHERTY

Unk

85 FEMALE DOUGHERTY

Unk

98 FEMALE DOUGHERTY

Unk

77 MALE

DOUGHERTY

Unk

91 MALE

DOUGHERTY

Unk

78 MALE

DOUGHERTY

Unk

81 FEMALE DOUGHERTY

Unk

75 MALE

DOUGHERTY

Unk

81 FEMALE DOUGHERTY

Unk

97 FEMALE DOUGHERTY

Unk

76 FEMALE DOUGHERTY

Unk

85 FEMALE DOUGHERTY

Unk

87 FEMALE DOUGHERTY

Unk

79 FEMALE DOUGHERTY

Unk

63 FEMALE DOUGHERTY

Unk

63 FEMALE DOUGHERTY

Yes

61 MALE

DOUGHERTY

Unk

75 MALE

DOUGHERTY

Unk

48 FEMALE DOUGHERTY

Unk

70 MALE

DOUGHERTY

Unk

90 FEMALE DOUGHERTY

Unk

https://dph.georgia.gov/covid-19-daily-status-report

9/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19DDaoilycuStmatuesnRtep2o-rt9| GeForigleiadDe0p4ar/t0m8en/t2o0f PubPlicaHgeealt1h 0 of 14

65 MALE

DOUGHERTY

Unk

46 MALE

DOUGHERTY

Unk

66 FEMALE DOUGHERTY

Unk

86 MALE

DOUGHERTY

Unk

84 MALE

DOUGHERTY

Unk

81 FEMALE DOUGHERTY

Unk

78 MALE

DOUGLAS

Yes

84 MALE

DOUGLAS

Yes

58 FEMALE DOUGLAS

Unk

56 MALE

DOUGLAS

Unk

66 MALE

DOUGLAS

No

48 FEMALE EARLY

Yes

54 MALE

EARLY

Unk

63 FEMALE EARLY

Unk

58 MALE

EARLY

Unk

65 MALE

EARLY

Unk

56 MALE

EFFINGHAM

Yes

51 FEMALE FAYETTE

No

77 FEMALE FAYETTE

Yes

79 MALE

FAYETTE

Yes

83 MALE

FAYETTE

Yes

80 MALE

FLOYD

Yes

65 FEMALE FLOYD

Yes

75 MALE

FLOYD

Yes

87 MALE

FORSYTH

Unk

68 FEMALE FULTON

Yes

70 FEMALE FULTON

Yes

66 FEMALE FULTON

Unk

33 MALE

FULTON

Unk

70 FEMALE FULTON

Yes

90 FEMALE FULTON

Unk

50 FEMALE FULTON

No

59 MALE

FULTON

Yes

63 MALE

FULTON

Yes

81 MALE

FULTON

Yes

89 MALE

FULTON

Yes

MALE

FULTON

Unk

75 FEMALE FULTON

Yes

85 MALE

FULTON

Yes

84 FEMALE FULTON

No

53 MALE

FULTON

Unk

31 MALE

FULTON

No

93 FEMALE FULTON

Unk

88 MALE

FULTON

Yes

36 FEMALE FULTON

Unk

66 MALE

FULTON

Unk

73 MALE

FULTON

Unk

90 FEMALE FULTON

Unk

https://dph.georgia.gov/covid-19-daily-status-report

10/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19DDaoilycuStmatuesnRtep2o-rt9| GeForigleiadDe0p4ar/t0m8en/t2o0f PubPlicaHgeealt1h 1 of 14

90 FEMALE FULTON

Unk

91 MALE

FULTON

Yes

77 MALE

FULTON

Yes

94 FEMALE FULTON

Unk

86 FEMALE FULTON

Yes

73 FEMALE FULTON

Yes

75 MALE

FULTON

Unk

85 MALE

FULTON

Unk

58 MALE

FULTON

Yes

62 MALE

FULTON

Yes

68 MALE

FULTON

Yes

82 MALE

FULTON

Yes

78 MALE

FULTON

Yes

77 FEMALE FULTON

Unk

62 MALE

FULTON

Yes

78 MALE

FULTON

Yes

89 FEMALE FULTON

Unk

69 MALE

GORDON

Yes

78 MALE

GORDON

Yes

70 FEMALE GORDON

Yes

100 FEMALE GREENE

Unk

81 MALE

GWINNETT

Unk

74 FEMALE GWINNETT

Yes

80 MALE

GWINNETT

Unk

81 FEMALE GWINNETT

Unk

94 MALE

GWINNETT

Yes

81 FEMALE GWINNETT

Yes

90 MALE

GWINNETT

Unk

63 MALE

GWINNETT

Yes

85 FEMALE GWINNETT

Yes

81 MALE

GWINNETT

No

85 MALE

GWINNETT

Yes

66 MALE

GWINNETT

Yes

69 FEMALE GWINNETT

Yes

76 FEMALE HEARD

Yes

63 FEMALE HENRY

Unk

73 MALE

HENRY

Unk

80 MALE

HENRY

Yes

84 MALE

HOUSTON

Yes

64 MALE

HOUSTON

Unk

90 MALE

HOUSTON

Yes

75 MALE

HOUSTON

Yes

85 MALE

HOUSTON

Unk

64 MALE

HOUSTON

Yes

64 FEMALE LEE

Yes

58 MALE

LEE

Yes

55 FEMALE LEE

Yes

63 MALE

LEE

Yes

https://dph.georgia.gov/covid-19-daily-status-report

11/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19DDaoilycuStmatuesnRtep2o-rt9| GeForigleiadDe0p4ar/t0m8en/t2o0f PubPlicaHgeealt1h 2 of 14

70 FEMALE LEE

No

49 MALE

LEE

Yes

68 FEMALE LEE

Yes

54 MALE

LEE

Yes

67 MALE

LEE

Unk

63 MALE

LEE

Unk

57 MALE

LEE

Unk

34 FEMALE LEE

Unk

49 FEMALE LEE

Unk

81 FEMALE LEE

Unk

81 FEMALE LEE

Unk

66 MALE

LOWNDES

Yes

71 MALE

MADISON

Yes

45 MALE

MCDUFFIE

Unk

46 FEMALE MCDUFFIE

Yes

81 MALE

MITCHELL

Yes

54 MALE

MITCHELL

Unk

68 MALE

MITCHELL

Unk

61 FEMALE MITCHELL

Unk

55 FEMALE MITCHELL

Unk

71 FEMALE MITCHELL

Unk

97 FEMALE MITCHELL

Unk

89 FEMALE MITCHELL

Yes

85 FEMALE MITCHELL

Yes

73 MALE

MITCHELL

Unk

MALE

MITCHELL

Unk

77 MALE

MONROE

Yes

85 MALE

MUSCOGEE

Unk

61 MALE

NEWTON

Yes

85 MALE

NEWTON

Yes

77 MALE

NEWTON

Unk

85 MALE

OCONEE

Unk

83 MALE

OGLETHORPE Unk

74 MALE

PAULDING

Yes

29 FEMALE PEACH

Unk

57 FEMALE PEACH

Yes

70 MALE

PICKENS

Yes

76 FEMALE PICKENS

Yes

67 FEMALE PIERCE

Unk

78 FEMALE RANDOLPH

Unk

66 MALE

RANDOLPH

Unk

69 MALE

RANDOLPH

Yes

69 MALE

RANDOLPH

Unk

62 MALE

RICHMOND

Yes

83 MALE

RICHMOND

Yes

81 FEMALE RICHMOND

Unk

44 FEMALE ROCKDALE

Yes

57 FEMALE ROCKDALE

Yes

https://dph.georgia.gov/covid-19-daily-status-report

12/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19DDaoilycuStmatuesnRtep2o-rt9| GeForigleiadDe0p4ar/t0m8en/t2o0f PubPlicaHgeealt1h 3 of 14

57 FEMALE ROCKDALE

Yes

61 MALE

SCHLEY

Yes

50 MALE

SPALDING

Unk

81 FEMALE SPALDING

Unk

84 MALE

SPALDING

Yes

73 MALE

SPALDING

Yes

73 MALE

SUMTER

Yes

63 MALE

SUMTER

Yes

65 MALE

SUMTER

Unk

73 MALE

SUMTER

Yes

68 FEMALE SUMTER

Unk

88 MALE

SUMTER

Yes

74 MALE

TALBOT

Yes

83 FEMALE TAYLOR

Yes

58 MALE

TERRELL

Unk

81 MALE

TERRELL

Unk

77 MALE

TERRELL

Unk

88 FEMALE TERRELL

Unk

78 MALE

TERRELL

Unk

79 MALE

TERRELL

Unk

77 MALE

TERRELL

Unk

75 MALE

TERRELL

Yes

73 FEMALE TERRELL

Unk

59 MALE

THOMAS

Yes

87 FEMALE THOMAS

Yes

62 FEMALE TIFT

Yes

77 MALE

TOOMBS

Yes

61 FEMALE TROUP

Yes

37 FEMALE TROUP

Yes

66 FEMALE TROUP

Yes

92 FEMALE UNKNOWN

Yes

82 MALE

UNKNOWN

Yes

53 MALE

UNKNOWN

Unk

68 FEMALE UNKNOWN

Unk

84 FEMALE UNKNOWN

Unk

66 MALE

UNKNOWN

Unk

75 MALE

WALTON

Unk

74 MALE

WALTON

Unk

82 FEMALE WARE

Unk

75 MALE

WARE

Yes

44 MALE

WARE

Yes

78 MALE

WHITFIELD

Yes

93 MALE

WHITFIELD

Yes

75 MALE

WORTH

Yes

48 MALE

WORTH

Unk

60 MALE

WORTH

Unk

Report Generated On : 04/07/2020 18:28:13

https://dph.georgia.gov/covid-19-daily-status-report

13/14

4/8/2020

Case 1:20-cv-0148C9O-VAIDT-19DDaoilycuStmatuesnRtep2o-rt9| GeForigleiadDe0p4ar/t0m8en/t2o0f PubPlicaHgeealt1h 4 of 14

https://dph.georgia.gov/covid-19-daily-status-report

14/14

Case 1:20-cv-01489-AT Document 2-10 Filed 04/08/20 Page 1 of 2
FILED IN CLERKS OFFICE U.5 D.C. -Atlanta

UNITED STATES DISTRICT COURT MAR 302020
NORTHERN DISTRICT OF GEORGIA JAM ‘- . HAlT C’erk
By;

IN RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COV]D-19 AND RELATED CORONA VIRUS

GENERAL ORDER 20-01 AMENDED

ORDER

In its General Order 20-0 1. dated March 16, 2020, this Court addressed Court operations under the exigent circumstances created b the spread of COVED-19 and the related Coronavirus. General Ordet 20-01 directed that no jurors be summoned in any Division of the Northern District of Georgia for 30 days from the date of the Order and continued all jury trials, including any trial specific deadlines, for 30 days pending further Order of the Court. The Order similarly directed that no grand jurors be summoned and all grand jury proceedings in the District be continued for 30 days pending further Order of the Court.
the exigent circumstances identified in General Order 20-0 1 having worsened with many citizens within the Northern I)isirict ot Georgia now being under state and local government shelter in place instructions; and additional operations ot’the court needing to change in recognition ofthese circumstances, and
[I IS TI ll,RlFORF ORI)lR1D that General Order 20-01 is amended to extend the specified 30-day time periods contained therein through and including the date of May 15.2020.

Case 1:20-cv-01489-AT Document 2-10 Filed 04/08/20 Page 2 of 2
IT IS FURThER ORDEREI) that the time period of any continuance entered as a result of this Order (whether that continuance causes a pre-indictment delay or a pre-trial
delay) shall be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), as the
Court finds that the ends of justice served by taking that action outweigh the interests of the parties and the public in a speedy trial. Absent further Order of the Court or any individual judge. the period of exclusion shall be from March 23, 2020, through and including May 15, 2020. The Court may extend the period of exclusion as circumstances may warrant. This Order and period of exclusion are incorporated by reference as a
specific finding under 1 8 U.S.C. § 3161 (h)(7)(A) in the record of each pending case
where the Speedy Trial Act applies. See Zedner v. United States, 547 [1.5. 489, 506-07 (2006). The period of exclusion in this Court’s prior General Order 20-0 1 on this subject
is likewise incorporated by reference as a specific finding under 1 8 U.S.C. §
3l61(h)(7)(A) in the record of each pending case where the Speedy i’rial Act applies. IT IS ThEREFORE ORI)ERED that General Order 20-01 is amended to extend
the specified 30-day time periods contained therein through and including the date of May 15. 2020.
1)ated this . day ot March 2t)20.
THOIVIAS W. THRASH, JR. CHIEF UNITED STATES DISTRICT JUDGE

4/8/2020

Case 1:20-cvC-O0V1ID4-1899U-PADTATE:D1o39cDuemathesnint G2e-o1rg1ia, CFonilfeirmde0d 4Ca/0se8s/a2t 04,638P–aCgBeS 1Atlaonfta6

WUPA Live
 MENU NEWS VIDEOS SPORTS BEST OF CONTESTS CWO69N AIR



COVID-19 UPDATE: 139 Deaths in Georgia, Con rmed Cases at 4,638
April 1, 2020 at 12:22 pm Filed Under: atlanta, con rmed cases, coronavirus, COVID-19, Daily Status Report, deaths, Georgia Department of Public Health

Coronavirus. Symptoms, spreading, transmitting and restrictions concept. Chart with keywords and icons. Hand with pencil

FOLLOW US

ATLANTA, Ga. (CW69 News at 10) — As of noon on April 1, 2020, Georgia’s COVID-19 death toll reached at least 139, the number of con rmed cases was at 4,638. This was the latest data posted online by the Georgia Department of Public Health.
DPH records also show 952 people are currently hospitalized as a result of the virus. The website indicates the data is “based on the patient’s county of residence when known.”

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Here is a breakdown: COVID-19 Con rmed Cases: Total Hospitalized Deaths COVID-19 Con rmed Cases By County: Fulton Dougherty Dekalb Cobb Gwinnett Bartow

No. Cases (%) 4638 (100%) 952(20.53%) 139 (3%) No. No. Cases Deaths 624 19 480 27 365 4 293 15 250 4 144 4

Surveillance Video: Atlanta Police Asking For Help In Identifying Restaurant Burglary Suspects
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UPDATED: Store Hours In The Atlanta Area, Senior Shopping In Response To The Coronavirus

https://atlanta.cbslocal.com/2020/04/01/covid-19-update-139-deaths-in-georgia-confirmed-cases-at-4638/

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4/8/2020

Case 1:20-cvC-O0V1ID4-1899U-PADTATE:D1o39cDuemathesnint G2e-o1rg1ia, CFonilfeirmde0d 4Ca/0se8s/a2t 04,638P–aCgBeS 2Atlaonfta6

Carroll Clayton Lee

131 1 122 3 94 7

COVID-19: CVS Health Opens DriveThru Rapid Testing Site at Georgia Tech

Henry Cherokee

90 2 83 4

Resources For Local Businesses Needing Help During Coronavirus

Hall

69 0

Floyd

60 2

Douglas

55 2

Clarke

51 5

Fayette

48 4

Forsyth

48 1

Terrell

46 2

Rockdale

45 2

Coweta

42 2

Richmond

41 0

Mitchell

38 1

Sumter

37 2

Chatham

36 2

Houston

35 4

Early

34 1

Newton

32 0

Paulding

32 0

Worth

28 1

Columbia

24 0

Lowndes

24 1

Tift

24 0

Bibb

22 0

Muscogee

21 0

Barrow

20 2

Colquitt

20 1

Troup

19 1

Glynn

18 0

Gordon

18 1

Crisp

17 0

Oconee

17 0

Polk

16 0

Spalding

16 0

Laurens

14 0

Walton

12 0

Dawson

11 0

Thomas

11 0

Calhoun

10 1

Dooly

10 0

Ware

10 1

Whit eld

10 1

Coffee

90

Jackson

90

Bryan

81

Burke

80

Butts

80

Decatur

80

Greene

80

Lumpkin

70

Meriwether

70

Peach

71

https://atlanta.cbslocal.com/2020/04/01/covid-19-update-139-deaths-in-georgia-confirmed-cases-at-4638/

2/6

4/8/2020

Case 1:20-cvC-O0V1ID4-1899U-PADTATE:D1o39cDuemathesnint G2e-o1rg1ia, CFonilfeirmde0d 4Ca/0se8s/a2t 04,638P–aCgBeS 3Atlaonfta6

Pickens

71

Bacon

60

Baldwin

61

Monroe

60

Seminole

60

Clay

50

Ef ngham

50

Fannin

50

Franklin

50

Haralson

50

Liberty

50

Murray

50

Pierce

50

Randolph

50

Stephens

50

Upson

50

Baker

41

Camden

40

Catoosa

40

Hart

40

Jones

40

Lamar

40

Lincoln

40

Miller

40

Pulaski

40

Schley

40

Turner

40

Warren

40

Washington

40

Banks

30

Ben Hill

30

Chattooga

30

Dodge

30

Harris

30

Heard

31

Irwin

30

Madison

31

Mcduf e

30

White

30

Berrien

20

Brooks

20

Bulloch

20

Chattahoochee

20

Habersham

20

Jasper

20

Jefferson

20

Macon

20

Morgan

20

Pike

20

Rabun

20

Screven

20

Tattnall

20

Taylor

20

Toombs

20

Twiggs

20

https://atlanta.cbslocal.com/2020/04/01/covid-19-update-139-deaths-in-georgia-confirmed-cases-at-4638/

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4/8/2020

Case 1:20-cvC-O0V1ID4-1899U-PADTATE:D1o39cDuemathesnint G2e-o1rg1ia, CFonilfeirmde0d 4Ca/0se8s/a2t 04,638P–aCgBeS 4Atlaonfta6

Walker

20

Wilkes

20

Wilkinson

20

Appling

10

Bleckley

10

Candler

10

Charlton

10

Clinch

10

Cook

10

Dade

10

Emanuel

10

Gilmer

10

Grady

10

Jenkins

10

Johnson

10

Long

10

Mcintosh

10

Oglethorpe

10

Stewart

10

Talbot

10

Webster

10

Wheeler

10

Wilcox

10

Unknown

516 2

*Based on patient county of residence

when known

COVID-19 Testing By No. Pos. Total

Lab Type:

Tests Tests

Commercial Lab

4281 18226

Gphl

357

2100

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4/8/2020

Case 1:20-cvC-O0V1ID4-1899U-PADTATE:D1o39cDuemathesnint G2e-o1rg1ia, CFonilfeirmde0d 4Ca/0se8s/a2t 04,638P–aCgBeS 5Atlaonfta6

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OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / PRESS RELEASES

Governor Whitmer Signs Executive Order Expanding Absentee Voting in May 5 Elections

FOR IMMEDIATE RELEASE
March 27, 2020
Media Contact: BrownT56@michigan.gov
Governor Whitmer Signs Executive Order Expanding Absentee Voting in May 5 Elections
LANSING, Mich. — Governor Gretchen Whitmer today signed Executive Order 2020-27, encouraging Michiganders to vote absentee by allowing the Department of State to assist local jurisdictions in mailing absentee ballot applications to every registered voter, and to provide absentee ballots directly to new registrants. Local jurisdictions will still need to keep at least one polling place open for those who wish to vote in-person or are unable to vote by mail.
“While we work to slow the spread of COVID-19, we must do everything we can to encourage Michiganders to stay home and stay safe,” Governor Whitmer said. “The fewer people we have lining up at polling places the better, ensuring Michiganders safely practice social distancing while allowing them to safely exercise their right to vote in local elections.”
Michiganders who want to register to vote in the May 5 election are strongly encouraged to do so by April 20. They can register online at mvic.sos.state.mi.us/registervoter or by mail using the form available at michigan.gov/documents/MIVoterRegistration_97046_7.pdf.
 Those who miss the deadline are still able to register to vote and can do so at their township or
city clerk’s o ce, but should call ahead rst. Clerks will also accept applications and proof of residency by mail, email or fax.
“I am grateful to Governor Whitmer for recognizing the critical need to protect public health while ensuring Michigan citizens are able to exercise their fundamental right as voters in our democracy,” said Secretary of State Jocelyn Benson. “Our sharpest tool to ensure citizens do not have to choose between casting a ballot and risking their health is the constitutional right they have to vote by mail, which voters themselves enshrined in our state constitution in 2018.”

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-523402--,00.html

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"Canceling elections sets a dangerous precedent for our democracy. It signals that, in a time of

great challenge and uncertainty, we would opt to give up on the fundamental building block of

our republic - the ability to elect and hold our elected o cials accountable,” Benson said. “My

administration will ensure that all voters eligible to participate in a local election on May 5

receive applications to vote by mail, and we will work with our local clerks to recruit sta and set

guidelines to help ensure their health, safety - and our elections - are secure."

Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.

To view executive order 2020-27, click the link below:

EO 2020-27

###

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES
COPYRIGHT 2020 STATE OF MICHIGAN

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-523402--,00.html

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THE OFFICE OF GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-27 (COVID-19)

EXECUTIVE ORDER

No. 2020-27

Conducting elections on May 5, 2020 using absent voter ballots
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi ed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.

On March 10, 2020, the Michigan Department of Health and Human Services identi ed the rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.

The Emergency Management Act vests the governor with broad powers and duties to “cop[e]
 with dangers to this state or the people of this state presented by a disaster or emergency,”
which the governor may implement through “executive orders, proclamations, and directives having the force and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a ected area under control.” MCL 10.31(1).

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523400--,00.html

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To mitigate the spread of COVID-19, protect the public health, and provide essential protections

to vulnerable Michiganders, it is crucial that all Michiganders take steps to limit in-person

contact. These critical mitigation measures include social distancing and limiting the number of

people interacting at public gatherings. To that end, it is reasonable and necessary to

temporarily suspend rules and procedures relating to the May 5, 2020 elections so that these

elections may be conducted by absent voter ballot to the greatest extent possible. It also

reasonable and necessary to suspend rules and procedures relating to the withdrawal of ballot

proposals from the May 5, 2020 elections to better enable jurisdictions to move those elections

to the August 4, 2020 election date.

From history and experience, when elections are held at polling locations, a large number of people often gather, increasing the risk of transmission of COVID-19. Section 641 of the Michigan Election Law, 1954 PA 116, as amended, MCL 168.641, provides for the May regular election to be held on May 5, 2020. Numerous school districts, counties, and other local governments have scheduled elections on May 5, 2020 with in-person voting at polling locations. At this time, conducting an in-person election would force voters and poll workers to be exposed to an unacceptably high risk of contracting or spreading COVID-19.

Because all registered electors in Michigan have the right to vote by absent voter ballot under section 4 of article 2 of the Michigan Constitution of 1963, conducting the May 5, 2020 elections by absent voter ballot provides a viable alternative to in-person voting at polling locations. Doing so permits Michigan voters to exercise their democratic rights while minimizing their exposure to the imminent and severe threat posed by COVID-19. And enabling jurisdictions to delay elections currently scheduled for May 5, 2020 where possible will further limit the disruption and harm caused by this pandemic.





Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. To protect the public health, safety, and welfare of this state and its residents, strict compliance with rules and procedures under chapter 28 of the Michigan Election Law (“Election Law”), 1954 PA 116, as amended, MCL 168.641 to 168.799a (conducting an election at a polling place) and under chapter 29 of the Election Law, MCL 168.801 to 168.813 (canvassing of the vote by inspectors of an election at a polling place) is
temporarily suspended for elections on May 5, 2020, so that those elections may be 
conducted as speci ed in this order.

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2. Elections on May 5, 2020 must be conducted to the greatest extent possible by absent voter ballots issued and submitted without in-person interaction. Each jurisdiction must maintain at least one (1) location on election day where any voter can appear in-person to receive and submit a ballot, including an individual with a disability that inhibits the individual from voting an absent voter ballot remotely. A local clerk, county clerk, or election administrator with an election on May 5, 2020 must immediately begin preparations to conduct that election primarily by mail, including the preparation of postage-prepaid absent voter ballot return envelopes for the return of voted ballots.

3. An individual possessing the quali cations of an elector under section 492 of the Election Law, MCL 168.492, who is not registered to vote but wants to register and vote in the May 5, 2020 election, is strongly encouraged to register online or by mail not later than Monday, April 20, 2020, and is strongly discouraged from going in-person to the o ce of the clerk of the township or city in which the individual resides to apply to register to vote. An individual can register to vote either online (by visiting mvic.sos.state.mi.us/registervoter) or by mail (using the form available at michigan.gov/documents/MIVoterRegistration_97046_7.pdf).

4. Notwithstanding section 3 of this order, an individual possessing the quali cations of an elector under section 492 of the Election Law, MCL 168.492, who is not registered to vote but wants to register and vote in the May 5, 2020 election after

April 20, 2020, may apply to register to vote at the o ce of the clerk of the city or

township in which the individual resides during any hours in which the clerk’s o ce is

open, as provided in chapter 23 of the Election Law, MCL 168.491 to 168.530, and as

provided in sections 5 and 6 of this order.





5. An individual seeking to register to vote in-person at the o ce of the clerk of the city or township in which the individual resides is strongly encouraged to contact the clerk’s o ce before doing so. To facilitate the timely processing of applications to register to vote and to minimize social interaction, beginning on April 21, 2020 and continuing through May 5, 2020, a township or city clerk may accept copies of applications to register to vote and residency veri cations by mail, email, or facsimile for purposes of registration and veri cation by the clerk.



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6. A clerk processing an in-person application to register to vote, any in-person voting in the

clerk’s o ce, and any individuals in the clerk’s o ce must use best practices to mitigate

the spread of COVID-19 and must comply with any applicable restrictions or requirements

to that e ect.

7. Any application to register to vote that is properly submitted beginning on the e ective date of this order and continuing through May 5, 2020 by a voter residing in a jurisdiction holding an election on May 5, 2020 must also be considered a request for an absent voter ballot for the May 5, 2020 election.

8. Strict compliance with rules and procedures under section 646a of the Election Law, MCL 168.646a, is temporarily suspended for the limited purpose of permitting a political subdivision of this state that has certi ed a ballot question for placement on the ballot on May 5, 2020 to withdraw the ballot question. Removal of the question must be by the same method used by the local legislative body to certify the question to the ballot (such as by the adoption or rescission of a resolution or ordinance). If the county clerk is noti ed of the withdrawal by March 27, 2020, the ballot question must not be canvassed for the May 5, 2020 election. Ballot questions removed from a May 5, 2020 election may be submitted to voters at the August 4, 2020 or a later election date.

9. The Department of State may assist local clerks, county clerks, and election administrators with: the mailing of absent voter ballot applications with a postage-prepaid, pre-addressed return envelope to each registered voter within any jurisdiction conducting a May 5, 2020 election; the preparation of postage-prepaid absent voter ballot return envelopes; the coordination of county and state assistance in processing ballots; changes to election dates; and other local clerk functions to the extent local jurisdictions are unable to perform them.





10. This order is e ective immediately.

Given under my hand and the Great Seal of the State of Michigan.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523400--,00.html

MICHIGAN.GOV HOME

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ADA MICHIGAN NEWS POLICIES
COPYRIGHT 2020 STATE OF MICHIGAN

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 Case 1:20-cv-01489-AT Document 8 Filed 04/09/20 Page 1 of 4

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No. 1:20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.;

)

)

)

Defendants.

)

)

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION
In Plaintiffs’ Motion for a Preliminary Injunction and supporting memorandum, Plaintiffs stated that the upcoming primary is on May 19, 2020 and that any primary runoff would take place on July 21, 2020.
Today, the upcoming primary was delayed by three weeks, so the upcoming primary is now on June 9, 2020, and any primary runoff will be on August 11, 2020.
In light of this change, Plaintiffs’ position is as follows. Plaintiffs maintain that relief may be entered in time for the upcoming primary or any primary runoff.

Case 1:20-cv-01489-AT Document 8 Filed 04/09/20 Page 2 of 4
Specifically, Plaintiffs suggest that relief be entered at least by April 28 but no later
than May 19 for the upcoming primary and any primary runoff, and that an
expedited briefing schedule be put in place if necessary to meet these deadlines.
However, Plaintiffs reiterate that if doing so is impracticable in light of the
COVID pandemic, there is plenty of time for any relief to be entered sufficiently in
advance of the November general election. Under the November general election
timetable, Plaintiffs suggest that any relief be entered no later than June 1.
Respectfully submitted this 9th day of April, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin* Dale E. Ho* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org
Attorneys for Plaintiffs
*Pro hac vice application forthcoming
1

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2

Case 1:20-cv-01489-AT Document 8 Filed 04/09/20 Page 4 of 4
CERTIFICATE OF COMPLIANCE
Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE
I hereby certify that on April 9, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. I have asked a process server to formally serve Defendants these motion papers. As a courtesy, I have emailed these papers, including the complaint, to the General Counsel of the Secretary of State’s Office, as well as the county attorneys for DeKalb County.
Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
3

 
 Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 1 of 39

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

BLACK VOTERS MATTER FUND, and MEGAN GORDON, on behalf of herself and all others similarly situated,

Plaintiffs,

CIVIL ACTION

v.

FILE NO. 1:20-cv-01489-AT

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS,

Defendants.

RESPONSE OF SECRETARY OF STATE BRAD RAFFENSPERGER IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Secretary of State Brad Raffensperger (the “Secretary”) submits this response to Plaintiffs’ Motion for Preliminary Injunction (“Motion”) [Doc. 2] in accordance with this Court’s Order [Doc. 9] and direction during the April 14, 2020 status conference.
INTRODUCTION To mitigate the risk of harm to Georgia primary voters during the COVID-19 outbreak, the Secretary approved an unprecedented plan to mail

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 2 of 39
(1) absentee ballot request forms to Georgia’s active voter roll; and (2) absentee ballot packets to all voters who request one. He also postponed the general primary date to June 9th, the last possible date it could be held in compliance with state and federal law. These extraordinary measures, taken to protect the safety of voters, have already cost the State over $3 million at time when the State is facing overwhelming emergency medical costs and record budget shortfalls.
After these extraordinary measures were put into place, Plaintiffs alleged that a decades old and uncontroversial practice—not providing prepaid postage to voters who mail absentee ballot requests or mail absentee ballots—is suddenly unconstitutional. No court in the country has reached that conclusion, and this Court should not be the first. Incidental costs to voting, such as postage, gas, time, or bus or rideshare fares, are neither poll taxes nor material burdens for voters who want to vote. As importantly, Georgia voters have numerous options to avoid paying postage, including (1) voting in person; (2) dropping off an absentee ballot at any county election office (or other places where secure drop boxes may be placed); (3) having third parties pay the cost of postage; and (4) utilizing the United States Post Office’s (“USPS’s”) policy of delivering election mail that does not contain sufficient postage.
2

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 3 of 39
To be sure, this lawsuit does not turn on the pandemic. This lawsuit is about a new desire to change an old policy and have the State pay postage for voters who choose to mail an absentee ballot instead of voting in person or personally delivering their absentee ballot to county elections officials. The Complaint makes this clear: it raises a per se challenge that applies with or without the existence of a public health emergency. See [Doc. 1 at ¶¶ 30, 39, 42, 45.] That Plaintiffs seek permanent declaratory and injunctive relief further proves the point. [Doc. 1 at 19.] Therefore, the public health emergency should be considered by this Court, but there should be no illusion that Plaintiffs request temporary relief that will conclude with the end of shelter-in-place.1
This Court has previously been unwilling to “dictate how the [government] should properly administer elections … the ‘constitution leaves to states broad power to regulate the conduct of federal and state elections.’” Ga. Shift v. Gwinnett Cty., No. 1:19-cv-01135-AT, 2020 WL 864938 *5 (N.D.Ga. Feb. 12, 2020) (citation omitted). See also Powell v. Power, 436 F.2d
1 This remains true even after the Second Supplemental Brief in Support of Plaintiffs’ Motion. [Doc. 44.] While Plaintiffs withdrew the request that the State provide postage for absentee ballot request and absentee return envelopes, Plaintiffs appear to still seek a mandatory injunction for the June primary and certainly do for any potential runoff elections in August and the general election in November. [Id.]
3

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84, 86 (2d Cir. 1970) (“Absent a constitutional or other unlawful infraction of that authority, the states are charged with making reasonable policy decisions to effectuate orderly elections.”). Respectfully, this Court should apply the same deference again so that elected State policymakers can engage in the type of balancing of interests—which now necessitate responding to a pandemic and pending economic recession—that are best handled at the State level.
STATEMENT OF FACTS 1. The Law Governing Absentee Ballots Under “normal circumstances, absentee ballot request forms are handled by county elections officials.” (SOS Aff. ¶ 7.)2 Not more than 180 days before the date of an election, a voter may make a request for an absentee ballot “by mail, by facsimile transmission, by electronic transmission, or in person in the registrar’s or absentee ballot clerk’s office.” O.C.G.A. § 21-2-381(a)(1)(A). While a voter may return a completed absentee ballot request form by email or facsimile without cost, if the voter chooses to mail the absentee ballot request, it is the voter’s responsibility to insure that the absentee ballot request has sufficient postage to be delivered. (SOS Aff.
2 The Declaration of Kevin Rayburn is attached hereto as Exhibit A. Defendants refer to the Affidavit of Kevin Rayburn as “SOS Aff.”
4

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¶ 7(a).) Third parties may provide the postage if it is not in exchange for a particular vote. Ga. Comp. R. & Regs. 183-1-19-.01.
After confirming the person requesting the absentee ballot is an eligible Georgia voter and verifying the voter’s signature, the county elections office mails an absentee voter packet to the voter, which includes an absentee ballot, a security envelope, and a pre-addressed envelope to return the absentee ballot to the county election office (an “Absentee Ballot Packet”). (SOS Aff. ¶ 7(b)); see also O.C.G.A. § 21-2-381(b)(2). The county elections office has historically paid the cost of mailing the Absentee Ballot Packet to the voter. (SOS Aff. ¶ 7(b).)
After voting using the absentee ballot, a voter must seal it in the security envelope, place the security envelope in the pre-addressed return envelope, and sign the oath on the back of the return envelope. O.C.G.A. § 21-2-385; SOS Aff. ¶ 7(b). The voter then mails the absentee ballot to the county election office using postage provided either by the voter or a third party. Id.; see also Ga. Comp. R. & Regs. 183-1-19-.01. The voter may also deliver the voted-absentee ballot—either personally or in some limited circumstances through specified third parties—to the county elections office
5

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or, as recently approved by the State Election Board, to a secured absentee ballot drop box.3 Id.
2. Adapting To A Pandemic. On March 14, 2020, Governor Brian Kemp issued Executive Order 03.14.20.01, which declared a Public Health State of Emergency in Georgia due to COVID-19.4 That same day, Secretary Raffensperger announced that he was postponing the presidential preference primary from March 24 to May 19 to coincide with the then-scheduled general primary election (the “General Primary”). (SOS Aff. ¶ 8.) On March 23, 2020, Governor Kemp issued another executive order imposing a limited shelter-in-place requirement for populations that were particularly susceptible to the COVID-19 virus.5 The following day, the Secretary announced the unprecedented step of mailing every voter on Georgia’s active voter roll a personalized absentee ballot request form. (SOS Aff. ¶ 8(a).) The decision alleviated the need for all of Georgia’s active 6.9 million voters to request an absentee ballot request form,
3 The State Election Board voted on Wednesday, April 15, 2020, to allow the secured boxes. A true and accurate copy of the rule is attached as “Exhibit B.” 4 A true and accurate copy of the Executive Order is attached as “Exhibit C.” 5 A true and accurate copy of Executive Order 03.23.20.01 is attached as “Exhibit D.”
6

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and preparing and mailing the document cost the State over $3 million in direct costs. (Id.)
Also in response to the COVID-19 virus, the Secretary procured a vendor to handle the preparing, packaging, and mailing of Absentee Ballot Packets to voters that request an absentee ballot. (SOS Aff. ¶ 8(d).) This decision saved Georgia counties millions of dollars and “took a great deal of work off their hands so that they can focus on preparing for and holding their own elections amidst the current challenges.” (SOS Aff. ¶ 8(d).)
Voters who choose to vote by absentee ballot in the General Primary need only to sign and complete the absentee ballot request form the Secretary mailed them. (SOS Aff. ¶ 8(b).) Voters can either mail the completed form to his or her county election office utilizing the pre-addressed document, physically return the form to their county elections office, or electronically return the completed form to their county elections office via email or fax.6 (Id.) Voters who chose to mail their absentee ballot request forms would continue to be responsible for obtaining postage directly or through third party groups. (Id.) Eligible voters who request an absentee ballot will receive them by mail at the Secretary’s cost. (SOS Aff. ¶ __.)
6 The form sent by the Secretary includes an email address for each individual voter’s county election office. (SOS Aff. ¶ 8(b).)
7

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As of April 16, 2020, over 75 counties’ absentee ballot return envelopes have been printed and delivered to the Secretary’s mail vendor, and the process continues. (SOS Aff. ¶ 8(d).) The mail vendor is expected to begin mailing the Absentee Ballot Packets on April 21, 2020. (Id.)
3. The Cost of the Pandemic. The Secretary’s decision to mail all active voters an absentee ballot application cost the Secretary over $3 million. (SOS Aff. ¶ 8(a).) The total projected cost of the mailing efforts this year—is projected to exceed $5.4 million, but additional printing and insertion costs of $0.78 per ballot mail will apply. (SOS Aff. ¶ 9.) One-time federal funding was critical to achieving this policy goal. For context, the Secretary’s annual election budget for Fiscal Year 2020 was $6,118,907.7 (SOS Aff. ¶ 5.) The General Assembly has not yet passed a Fiscal Year 2021 budget (the 2021 Budget), which will fund state government from July 1, 2020, through June 30, 2021. (Id. ¶ 4.) However, there is no reason to believe that the Secretary will have additional funds in the 2021 Budget to cover the cost of Plaintiffs’ proposed relief. In fact, as with all of state government, cuts are far more likely. Georgia is a balanced budget
7 This does not include the cost of new voting equipment, which is funded by a bond authorized by the General Assembly in 2019.
8

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 9 of 39
state, which means that it is constitutionally prohibited from engaging in deficit spending. (OPB Aff. ¶ 6.)8 One of the anticipated impacts of the pandemic is a tremendous drop-off in state revenues: people are buying less, which means sales tax revenue will likely fall dramatically. See OPB Aff. ¶ 8. At the same time, job losses will cause a sharp fall in income tax revenue; they will also strain public assistance programs, as many more Georgians will qualify for Medicaid and other social programs due to their economic plight. (Id.) “Put simply, the State will be required to provide much more with far less.” (Id.)
The State is also spending more to fight the pandemic by purchasing, among other things, pandemic-related equipment like masks and gloves to temporary hospital beds. For example, the State is spending $21.5 million to add 200 hospital beds at the Georgia World Congress Center.9 Similar efforts (albeit at a smaller scale) are underway in Albany, Rome, Macon, and
8 The affidavit of Office of Planning and Budget Deputy Director Stephanie Beck is referred to as the “OPB Aff.” The affidavit is attached as “Exhibit E.” 9 WABE News, Coronavirus Updates: 200-Bed Surge Hospital Nears Opening At World Congress Center, (Apr. 17, 2020), https://www.wabe.org/coronavirusupdates-200-bed-surge-hospital-nears-opening-in-atlanta-exhibit-hall/.
9

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Gainesville. (Id.) States are also competing to replenish their supply of personal protective equipment (“PPE”), the price of which has skyrocketed.10
For context, media reports the following costs for critical personal protective equipment necessitated by the pandemic:
 Vinyl Gloves: $0.06 per pair  Latex Gloves: $0.08 per pair  Nitryl Gloves: $0.10 per pair  KN95 Masks: $4.00 each  Hand Sanitizer: $4.48 for an eight ounce bottle  Isolation gowns: $5.00 each11 Because Georgia is a balanced budget state, “budget priorities frequently compete in a zero-sum environment: every dollar spent on healthcare, for example, is a dollar that cannot be spent on education, elections, or other priorities.” (OPB Aff. ¶ 6.) The same is true in reverse. Every stamp that the Secretary is required to pay for will likely have to utilize some newly appropriated funds, because the Secretary’s current budget does not have funds for such anticipated costs. Any new or additional state appropriation
10 Daniella Diaz, Geneva Sands and Cristina Alesci, Protective equipment costs increase over 1,000% amid competition and surge in demand, CNN (Apr. 16, 2020), https://www.cnn.com/2020/04/16/politics/ppe-price-costs-risingeconomy-personal-protective-equipment/index.html. 11 James M. Berklin, Analysis: PPE Costs Increase over 1,000% during COVID-19 Crisis, McKnight’s Long Term Care news, https://www.mcknights.com/news/analysis-ppe-costs-increase-over-1000during-covid-19-crisis/.
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will necessarily mean that fewer funds will be put toward fighting the pandemic and dealing with the resultant after-effects. Plaintiffs have numerous options to deliver their ballots, those on the frontline of this pandemic need protective equipment and have few available alternatives.
The Cost of Plaintiffs’ Requested Relief. For the June (potential August) and November elections, it is difficult to estimate the cost of Plaintiffs’ requested relief for several reasons: (1) the State does not yet know how many voters will request and/or return an absentee ballot; (2) the State cannot predict the number of runoffs that may result from the General Primary; and (3) the State does not yet have voter turnout estimates for the 2020 General Election. However, it is logical that voter turnout will be at least as high as the 2016 presidential election. There, Georgians cast 4,165,405 ballots for President, with 207,716 of those voting in the presidential election doing so by mail.12 Plaintiffs, who bear the burden of persuasion and of proof, have not provided any evidence or estimates to quantify the cost of their proposed initial or supplemental relief. The Secretary’s preliminary estimates of cost are as follows:
12 A true and accurate copy of the 2016 election information is attached as “Exhibit F,” and it is available online through the Secretary’s website.
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a. Stamps Plaintiffs’ first proposal, that the Secretary include stamps with every outgoing June primary Absentee Ballot Packet, [Doc. 44 at 4], is simply not possible because of how far along the printer and mail vendor are in getting the Absentee Ballot Packets to Georgia voters. (SOS Aff.) The Secretary also lacks the personnel to manually mail voters requesting (and mailing) absentee ballots a stamp. (SOS Aff.) As this Court is aware, the Secretary’s resources are devoted to implementing new voting equipment, new election security methods, and fulfilling ongoing constitutional, statutory, and judicial obligations. Pulling state employees from these critical tasks to mail postage is simply not feasible.13 In addition to the logistical impossibility of Plaintiffs’ request, the cost of mail will be at least $1.10 in postage (a stamp and the cost of the stamp to mail the stamp) plus the cost of the mailing envelope.
b. Sticker Labels Plaintiffs’ second revised proposal is for the Secretary to provide “sticker labels” using business reply mail services. To the Secretary’s knowledge, utilizing business reply mail services will cost between $1.40 and
13 Given the timing of the Plaintiffs’ supplemental brief, the Secretary has not been able to determine the cost of hiring temporary workers to put a stamp in envelopes.
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$0.643 per piece of mail, depending on how the Secretary utilizes business reply mail. (SOS Aff. ¶ 13.) Any of these types of costs, however, will certainly be in addition to the cost of envelopes, a one-sheet instruction, cost to insert the stamp and instruction, ink jet address for the voter, data work, postal sort, handling, and delivery for insertion at the post office. (SOS Aff.) Because it requires communication with third party vendors, the Secretary has not had time to determine the additional costs associated with Plaintiffs’ April 17, 2020 filing.
The Secretary’s rough estimate is that the cost of providing mail for absentee ballot request forms and absentee ballot return envelopes can range from $450,00 to $4.2 million depending on turnout and the cost of mail. See SOS Aff. ¶ 17.
c. Online Absentee Ballot Envelopes Plaintiffs’ next proposal, making prepaid envelopes available online, will still cost $1.40 to $0.643 per mailing unit, as the process requires the use of business reply mail. (SOS Aff. ¶ 13.) It is unknown what additional costs, such as web design and potential hosting fees, may also apply. Substantively, Plaintiffs acknowledge that such relief would exacerbate the very harm that provides the basis of their complaint; namely, that
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“[m]any voters do not have Internet access.” [Doc. 1 at 12 (¶ 33).]14 In addition to the lack of authority requiring the Secretary to expend limited state resources in the manner proffered by Plaintiffs, the Secretary is also at a loss to understand how Plaintiffs arrive at a point where the alleged injury can be remedied by a solution that utilizes the process giving rise to the alleged harm. [Doc. 1 at 12 (¶ 33).]15
d. Increase Opportunities for Drop Off Absentee Ballots Next, Plaintiffs ask this Court to order the Defendants to place a secured absentee drop box at “any Post Office location in Georgia.” This is equally unworkable. First, there appear to be at least 602 post offices in Georgia.16 It is unknown how many post office drop off locations are scattered across the State, or whether Plaintiffs intend the Defendants to place drop boxes at each of these locations as well. Either way, the cost of procuring and placing boxes that comply with the State Election Board rule is unknown, but certainly significant. (SOS Aff.)
14 As discussed more fully below, if an individual has the means to pay for Internet access, they surely have the means to purchase stamps (even online). This demonstrates the purported burden on the voter is, at best, minimal. 16 United States Postal Service, information available at https://webpmt.usps.gov/pmt011.cfm
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Moreover, it is unclear whether the Plaintiffs expect counties or the State to place the additional drop boxes. If the State, then the State will have additional costs of collecting and mailing the absentee ballots to county election officials for tabulation. The same mail rates will apply as discussed above. Also, the State does not know if it or Georgia’s counties can simply enter federal property, place a drop off box and secured video cameras, and collect absentee ballots from the box.
This proposal shares some of the same problems with previous ones, because Plaintiffs’ claim that many voters “cannot even travel to a post office or other public place because they do not have cars, and there is no ridesharing programs or public transportation.” [Doc. 1 at 12 (¶ 34).] Presumably, however, if voters can drive to a post office (or just get to a mailbox), they can drop the election mail into the post office box. The USPS has previously issued specific guidance that normal procedures for short-paid and unpaid mail should not be followed when processing absentee ballot materials: absentee ballots are delivered to the election office and not
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returned to the voter even if there is insufficient or no postage.17 Postage will be collected from the election office at a later date. Id.
STANDARD OF REVIEW Plaintiffs seeking a preliminary injunction must satisfy a stout burden that exceeds the normal, preponderance of evidence standard. “In this Circuit, ‘[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion.’” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (brackets in original) (emphasis added). If a plaintiff seeks a mandatory injunction, e.g., one that seeks to “to force another party to act, rather than simply to maintain the status quo … the burden on the moving party increases.” Exhibitors Poster Exch. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir.1971).18 Mandatory injunctions are “particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). Last, in election cases, the burden imposed on plaintiffs is higher still.
17 Postal Bulletin 22391 2014 Election and Political Mail Update, United States Postal Service (June 12, 2014), https://about.usps.com/postalbulletin/2014/pb22391/html/front_cvr.htm. 18 In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1210 (11th Cir. 1981), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit adopted prior to October 1, 1981.
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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).
Plaintiffs must at least “clearly” convince this Court of that (1) there is a substantial likelihood of success on the merits of the complaint; (2) absent the preliminary injunction, the plaintiffs will suffer an irreparable injury; (3) the threatened injury outweighs the harm to the Defendants; and (4) granting the injunction would not be adverse to the public interest. Fair Fight Action, Inc. v. Raffensperger, No. 1:18-cv-4391-SCJ (N.D.Ga. Dec. 27, 2019) (Slip Op. at 10) (denying plaintiffs’ motion for preliminary injunction).19 Plaintiffs fail to satisfy these burdens.
ARGUMENT AND CITATION TO AUTHORITY Before consideration of the merits of Plaintiffs’ Motion, the Court must consider threshold jurisdictional issues and affirmative defenses that warrant dismissal of at least Count II of the Complaint. These defenses— standing, failure to state a claim, federalism, and ripeness—will be fully briefed in the Secretary’s Motion to Dismiss, which the Secretary intends to file before this Court’s hearing on Plaintiffs’ Motion. With respect to the
19 The Fair Fight Action, Inc. decision is attached as “Exhibit G.” 17

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merits of Plaintiffs’ Motion, it does not satisfy Plaintiffs’ immense burden to obtain a mandatory injunction for elections that are months away.
I. Plaintiffs Failed To Establish That They Are Likely To Succeed On The Merits. A. Plaintiffs fail to state a claim for a violation of the TwentyFourth Amendment in Count I. No court has ever held that the purchase of postage is a poll tax, under
either the Twenty-Fourth Amendment or Equal Protection clause of the Fourteenth Amendment.20 The few courts to consider the issue have rejected the same arguments Plaintiffs raise here and held that postage is an indirect cost associated with voting that does not deprive the voter of the right to vote. This just makes sense: a stamp is no different (and likely cheaper) than the cost of gasoline, ride-share fare, public transportation, taxi fare, or most other
20 Plaintiffs’ Motion does not address Equal Protection as alleged in Count I of the Complaint. Nonetheless, Plaintiffs’ Equal Protection claim in Count I also fails because Plaintiffs have not pleaded the necessary elements of such a claim. Plaintiffs must show Defendants acted with a discriminatory intent or purpose and prove an actual discriminatory impact. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Palmer v. Thompson, 403 U.S. 217, 224 (1971). The Complaint lacks any factual allegations showing intentionally discriminatory conduct by Defendants. Moreover, evidence of non-discriminatory intent is found where there is a strong state policy in favor of the challenged practice for non-discriminatory reasons, which exists here given the fiscal impact of prepaid postage. See United States v. Marengo Cty. Comm'n, 731 F.2d 1546, 1571 (11th Cir. 1984).
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means of casting a ballot. Accordingly, Plaintiffs are not likely to succeed on the merits of their per se poll tax claim.
The Twenty-Fourth Amendment prohibits a state from denying the right of citizen to vote in a federal election “by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV. A “poll tax” is defined as “a fixed tax levied on each person within a jurisdiction.” Black’s Law Dictionary 1498 (8th ed. 2004). Poll taxes “are laid upon persons…to raise money for the support of government or some more specific end.” Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987, at *5 (D. Ariz. Jan. 22, 2008).21
The Twenty-Fourth Amendment has been utilized sparingly in challenges to state poll taxes since the Supreme Court relied on the newly ratified amendment to strike down Virginia’s poll tax in Harman v. Forssenius, 380 U.S. 528 (1965). Although Virginia removed its poll tax as an absolute prerequisite for voting in federal elections following ratification of the amendment, it substituted a provision whereby voters could qualify either by paying the customary poll tax or by filing a certificate of residence.
21 As will be addressed in the Secretary’s Motion to Dismiss, the Secretary does not impose any postage fee, the USPS does. Any revenue generated by postage goes to the USPS. By definition, therefore, stamps are not poll taxes. Moreover, any costs associated with a voter’s choice to utilize the mail service are not mandated by the Secretary, meaning any alleged harm is not caused by the Secretary.
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Id. at 540. The Supreme Court noted that although the strict poll tax requirement had been removed, the alternative option of obtaining a certificate of residence was still a “cumbersome procedure” that had to be filed six months before the election. Id. at 541-42. Accordingly, the Supreme Court held that the option for voters to either pay a poll tax or go through an onerous process for every federal election violated the Twenty-Fourth Amendment’s ban on poll taxes. Id. at 538. Virginia’s scheme, therefore, “unquestionably erects a real obstacle to voting in federal elections for those who assert their constitutional exemption from the poll tax.” Id. at 541-42 (emphasis added). A year later, the Supreme Court addressed a challenge to Virginia’s poll tax remaining as a precondition to voting in state elections in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), although on Equal Protection grounds.
Here, Plaintiffs do not allege that the State of Georgia has imposed an actual tax on voters as a condition of voting like in Harman and Harper. Nor can they; no reasonable argument can be made that the Secretary’s failure to affix pre-paid postage on absentee ballot return envelopes is a tax that must be paid to vote.
Recognizing this, Plaintiffs argue that postage is a “de facto poll tax” because voters must purchase a stamp as “a prerequisite to voting.” [Doc. 2-1,
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at 14.] Plaintiffs’ “de facto poll tax” argument, however, fails because voters are not required to purchase a stamp as a “condition to obtaining a ballot.” See Harper, 383 U.S. at 668. Instead, a stamp is only necessary if a voter rejects one of the numerous other methods of voting in person or delivering absentee ballots. Plaintiffs have put forth no evidence that a single voter will be unable to vote in 2020 because of lack of access to postage. This is for good reason: the Secretary imposes no requirement to vote absentee and sets no preconditions on how voters choose to return their absentee ballots. Put simply, voters have plenty of options that do not require postage.
Plaintiffs fail to cite a single case that supports their argument that postage is a “de facto poll tax.” Indeed, the few courts that have addressed this issue have rejected the claim outright. In a recent decision, the first federal court to hear a similar challenge held that the Ohio Secretary of State did not impose a poll tax by failing to provide postage pre-paid envelopes for voters to return mail-in ballots. See League of Women Voters of Ohio v. LaRose, No. 2:20-cv-01638-MHW-EPD (S.D. Ohio Apr. 3, 2020) (Slip Op. at 25).22 Like Plaintiffs, the LaRose plaintiffs challenged the state’s decision to implement a vote-by-mail campaign due to COVID-19, and similarly argued
22 This order, which has not yet been published, is attached as Exhibit H. 21

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that requiring voters to supply their own postage was an unconstitutional poll tax. The court rejected that argument, finding that “to the extent obtaining a stamp is a ‘restriction on the right to vote,’ it is “the type of ‘evenhanded restriction[] that protect[s] the integrity and reliability of the electoral process itself’ that satisfies Harper.” Id. (citations omitted). See also Bruce v. City of Colorado Springs, 971 P.2d 679, 685 (Colo. App. 1998) (deciding a requirement that voters “affix a stamp to their ballots” is reasonable and not an unconstitutional poll tax).
Other courts have similarly held that indirect costs associated with voting are not unconstitutional poll taxes, such as in the Voter ID context. See Veasey v. Abbott, 796 F.3d 487, 268 (5th Cir. 2015) (holding that “indirect costs on voters” having to obtain the required identification “does not constitute a poll tax” because it does not “impose a material requirement solely upon those who refused to pay a poll tax”); Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012) (“Although obtaining the identification required under [state law] may have a cost, it is neither a poll tax itself (that is, it is not a fee imposed on voters as a prerequisite for voting), nor is it a burden imposed on voters who refuse to pay a poll tax.”); Common Cause/Georgia v. Billups, 439 F. Supp. 2d 1294, 1335 (N.D. Ga. 2006) (denying preliminary injunction against Georgia’s Voter ID law because the costs associated with
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obtaining an ID did not constitute an unconstitutional poll tax); Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827 (“the imposition of tangential burdens does not transform a regulation into a poll tax”).
Thus, Plaintiffs are simply wrong in stating that Voter ID laws are a “common example of a de facto poll tax” [Doc. 2-1 at 12], and neither of the cases they cite support this argument. In Billups, the district court initially enjoined Georgia’s Voter ID law because it required voters without the required identification to pay a fee to the State (from $20 to $30) to obtain an ID. See Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1369-70 (N.D. Ga. 2005). But the court ultimately upheld the constitutionality of Georgia’s Voter ID law when it was amended to remove the fee, even though the plaintiffs still argued that there were other costs voters would incur in obtaining the ID. Common Cause, 439 F. Supp. 2d at 1335. The Wisconsin Supreme Court reached a similar conclusion in in Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014).
Here, there is no requirement that a stamp be purchased as a condition of voting. Rather, postage is the kind of “tangential burden” associated with voting that does not rise to the level of a poll tax. See Ind. Democratic Party, 458 F. Supp. 2d at 827. There are other available options for voting, all of which have associated incidental costs (such as transportation costs, time
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away from work, child care, and parking) that do not rise to the level of the kind of invidiously discriminatory poll tax struck down in Harman.23 For these reasons, Plaintiffs are not likely to succeed on the merits of their poll tax claim.
B. Count II: Anderson/Burdick Analysis of Plaintiffs’ fundamental right to vote claim.
Plaintiffs also fail to show a likelihood of the merits on Count II, which alleges an impermissible burden on the right to vote under the First and Fourteenth Amendments to the United States Constitution. [Doc. 1 at 18.] Unlike Count I, Count II is not a per se claim. Nevertheless, Plaintiffs frame the issue in near absolutist terms: “requiring voters to spend money in order to vote by mail is at least a ‘slight’ burden to all voters (and a severe one for some others) … the government has no legitimate interest in forcing voters to pay for postage.” (Id.) Rhetoric aside, Plaintiffs acknowledge Count II requires this Court to conduct an Anderson/Burdick analysis, which weighs
23 Further, even if the Court finds that buying a stamp is a poll tax, which it is not, Harman’s discussion of burdensome alternative is inapplicable here. In Harman, the alternative to paying the poll tax was a burdensome process to prove residence. See generally Harman, 380 U.S. 528. Here, there are many alternatives to buying a stamp, including placing an absentee ballot envelope in a mailbox without a stamp or going to vote in person – the alternatives here are not a burdensome procedure to undertake before the voter can vote.
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the burden on voting against the cost to the State to implement Plaintiffs’ requested relief. [Doc. 2-1 at 16.] Here, the burdens on the State are truly significant, even more so during this public health emergency. They far outweigh any minimal harm articulated by Plaintiffs’ evidence.
This Court has recently articulated the Anderson/Burdick analysis: When deciding whether a state election law violates the Fourteenth Amendment, the Court must 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, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). A law that severely burdens the right to vote must be narrowly drawn to serve a compelling state interest. Burdick, 504 U.S. at 434, 112 S.Ct. 2059; Democratic Executive Committee of Florida v. Lee, 915 F.3d at 1318. ‘And even when a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden.’ Democratic Executive Committee of Florida v. Lee, 915 F.3d at 1318-19; Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). The more a challenged law burdens the right to vote, the stricter the scrutiny is to be applied. Democratic Executive Committee of Florida v. Lee, 915 F.3d at 1319; Stein v. Ala. Sec. of State, 774 F.3d 689, 694 (11th Cir. 2014).
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Curling v. Raffensperger, 403 F. Supp. 3d 1311, 1336 (N.D. Ga. 2019) (parenthetical quotations omitted).
Another court in this district recently denied a different electionrelated preliminary injunction using Anderson/Burdick analysis. Fair Fight Action, No. 1:18-CV-5391-SCJ (N.D. Ga. Dec. 27, 2019) (Slip Op.). There, Judge Jones wrote that if an “election law imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.’” Id. (citing Norman v. Reed, 502 U.S. 279, 289 (1992)).
Importantly, the Anderson/Burdick analysis does not impose on states any burden of proof or evidentiary showing; the burden remains with the Plaintiffs. Billups, 554 F.3d at 1353; see also Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1123 (9th Cir. 2016).
1. Plaintiffs Have Not Demonstrated Any Burden To Voting. As to the first question under Anderson/Burdick, Plaintiffs have failed to show an unconstitutional burden on their right to vote for two reasons. First, the affidavits provided by the Plaintiffs do not show that anyone will actually be unable to vote in the June primary (or any other election), nor do they show any meaningful burden. To the contrary, most of Plaintiffs’
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witnesses concede that they already have stamps at home and will have no trouble mailing a return absentee ballot envelope, even amid the shelter-inplace order. For example:
“I always have postage stamps.” [Doc. 16 ¶ 12.] “I’ve already mailed in my absentee ballot application and will vote by absentee ballot by mail….I have postage stamps.” [Doc. 12 ¶¶ 9, 11, 15.] “My sister and I recently mailed in our absentee ballot applications using our own stamps.” [Doc. 14 ¶¶ 12, 13.] “We have stamps to use for the upcoming elections.” [Doc. 25 ¶ 9.] “I purchased a book of postage stamps last month from the post office.” [Doc. 27 ¶ 8.] “Usually I get my stamps at the post office…Fortunately I got some before quarantine…” [Doc. 38 ¶ 9.] “There is no financial hardship to me to vote by mail as opposed to alternatives.” [Doc. 31 at 2.] Moreover, witnesses without stamps at home were able to purchase them other ways without visiting a post office. [Doc. 17 ¶ 10 (“I ordered the stamps online”)]; [Doc. 30 ¶ 8 (“I think my grocery store sells stamps, so I might purchase them there.”]. This reflects the numerous ways to purchase stamps over the internet and through retail delivery. As social distancing restrictions are lifted, it will be even easier to obtain postage at the post office and other retail locations.
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Of the 15 affidavits filed by Plaintiffs, only one witness claimed to lack the means to obtain postage because she is disabled. [Doc. 24]) However, voters who are physically disabled may receive assistance with absentee voting from a family member or caregiver. See O.C.G.A. 21-2-385. Further, State Election Board rules also permit third parties to provide postage to voters for the purpose of mailing a ballot, regardless of whether the voter is disabled. Ga. Comp. R. & Regs. 183-1-19-.01. In fact, two of Plaintiffs’ witnesses testified that they have distributed postage stamps to assist voters in prior elections. [Doc. 12 ¶¶ 15, 16; Doc. 16 ¶ 4.]
Under these circumstances, Billups is on point. There, the plaintiffs could not “locate a single voter who would bear a significant burden[, which] ‘provides significant support for a conclusion that [the challenged law] does not unduly burden the right to vote.” 554 F.3d at 1354 (addressing photo identification law).
2. Alternatively, Any Burden On Voting Is Slight. The State has found no authority—and Plaintiffs have cited none— holding that allowing the use of mail without pre-paid postage is a material burden on voting. This should end the inquiry, as the burden of persuasion remains on the Plaintiffs. Billups, 554 F.3d at 1353. The LaRose court recently concluded that any burden imposed by requiring voters to pay for the
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cost of mailing an absentee ballot is, at worst, “minimal.” LaRose, Case No. 2:20-1638 (S.D.Ohio Apr. 3, 2020) (Slip Op. at 17). The “requirement that voters affix a stamp to their ballot application is no more than a minimal burden as stamps are available at multiple locations that remain open during the Governor’s stay-at-home order, including grocery stores. Those who do not wish to leave their homes to purchase stamps can purchase them online.” Id. The same analysis applies here, especially given that the class representative actually possesses stamps (as do virtually all of the 15 declarants), and the other declarants all have a means to obtain stamps. Thus, if there is any burden at all, it is quite minimal and, indeed, no different that it has been for decades.
3. The State’s Interests Are Important. Only if this Court finds that Plaintiffs have provided competent evidence of an actual burden does it consider the next question under the Anderson/Burdick test: the government’s interest. Here, because the requirement that voters find their own postage applies to all voters in a nondiscriminatory manner, the policy must be upheld so long as it satisfies an “important” goal: “the State need not establish a compelling interest to tip the constitutional scales in its direction.” Burdick, 504 U.S. at 434, 439. This is also true because of the “minimal” nature of the Plaintiffs’ alleged burden.
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See Timmons, 520 U.S. at 358; De La Fuente v. Padilla, 930 F.3d 1101, 1105 (9th Cir. 2019) (citing Timmons), cert. denied, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019).
As demonstrated above, a purpose of the State’s longstanding decision not to pay the cost of return mail is financial. Courts have recognized that fiscal concerns are legitimate state interests when applying the Anderson/Burdick analysis: “Fiscal responsibility, even if only incrementally served, is undeniably a legitimate and reasonable legislative purpose.” Ohio Democratic Party v. Husted, 834 F.3d 620, 635 (6th Cir. 2016); see also Wilson v. Birnberg, 667 F.3d 591, 601 (5th Cir. 2012). These concerns are heightened now. As shown above, the State’s realistic budget projections are dire.24 The dual pinch of declining revenue and growing expenditures has removed any room for error, much less new funding for unanticipated costs associated with decades old statutes. This is uniquely felt in the Secretary’s Office, which has already increased expenditures to assist with the
24 Even today, the Atlanta Journal and Constitution warned that “the state could face at least a $4 billion shortfall over the next 15 months without more federal aid, likely meaning layoffs and furloughs across the government in the coming year.” James Salzer, Report: Georgia Budget Shortfall May Top $4 Billion Over The Next 15 Months, Atlanta J. & Const. (Apr. 20, 2020), https://www.ajc.com/news/state--regional-govt--politics/report-budgetshortfall-may-top-billion-over-next-months/bCh9sdsuYVJupfCivsTDbJ/.
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deployment of new voting equipment and training, as well as the cost ($36,000 per month) of storing voting equipment it cannot use again due to court-imposed obligations in other litigation. Plaintiffs have introduced no evidence to the contrary.
Beyond the fiscal impact, overloading the voter with alternative means and information could likely lead to voter confusion. Some voters may think a stamp is necessary for their ballot to be delivered; others will look for some form of postage on the Internet; more still may call their county election officials. The best way to avoid voter confusion is to conduct this election like all prior elections. Voters can return absentee ballot request forms directly, in the mail, by electronic means, or by fax. They can return absentee ballots in person or by mail. The pandemic is causing enough confusion; dramatic changes to election law should not be another. II. Plaintiffs Will Not Suffer Irreparable Injury Absent A
Preliminary Injunction. To succeed under the second 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). Even if Plaintiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief
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improper. See Snook v. Trust Co. of G. Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990). 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’ fundamental right to vote will not be irreparably harmed absent injunctive relief. The State of Georgia has a no-excuse absentee voting system, and voters are welcome to deliver their absentee ballot to the elections officials if they do not want to mail their absentee ballot. O.C.G.A. §§ 21-2-380, 21-2-385. Additionally, to provide additional options to voters delivering their absentee ballot to their county elections office, the State Election Board has promulgated a new rule that authorizes counties to use secure drop-boxes. See Ex. B. Third parties may provide postage to any voter and assist disabled voters in returning their absentee ballots. Ga. Comp. R. & Regs. 183-1-19-.01. Finally, voters can vote in person on the voting machines on election day or during early voting. Plaintiffs’ subjective fears about the duration of the pandemic fail to establish that their right to vote will be irreparably injured. III. Balancing the Equities and Public Interest.
32

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 33 of 39
This Court has previously 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). It makes sense to do so again. In the light of the ongoing pandemic and the State’s other election obligations, the balancing of the equities and the public interests involved clearly favor Defendants. Plaintiffs claim that the State is forcing individuals to choose between exposure to COVID-19 and paying a poll tax. [Doc. 2-1 at 17-19.] This is a false choice.
First, as shown above, the longstanding policy of requiring voters to obtain postage—directly or indirectly through third parties—is not a poll tax. See, e.g., LaRose, Slip Op. at 25. Second, as also discussed above, any purported burden on Plaintiffs is minimal, particularly given the numerous means Plaintiffs have to deliver their absentee ballots without coming within six feet of other persons.
These minimal burdens pale in comparison to the burdens Plaintiffs seek to impose on the State. From a financial perspective, it costs more for the State to provide postage to a voter than it does for a voter to mail in the ballot. Also, a multitude of factors compel the conclusion that now is not the time to add additional burden to state coffers. This is to say nothing about
33

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 34 of 39
the likely increased voter confusion and disparities that Plaintiffs’ proffered relief will cause.
The temporal nearness of the June (potential August runoff) and November elections is also an important consideration, particularly given how long Georgia has required voters to pay their own postage (or secure it through third parties). Binding precedent requires this Court to “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures” including, in particular, the “imminence of the election.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). Federal courts have long admonished “that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour.” Perry v. Judd, 471 F. App’x 219, 220–21 (4th Cir. 2012); see also Reynolds v. Sims, 377 U.S. 533, 585 (1964) (deciding that imminent elections “might justify a court in withholding the granting of immediately effective relief . . . .”); Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012); Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016); Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014). And 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
34

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 35 of 39
v. Gwinnett Cty. Bd. of Registration & Elections, No. 1:20-CV-00912-SDG, 2020 WL 1031897, at *9 (N.D. Ga. Mar. 3, 2020) (quoting Purcell, 549 U.S. at 5).
Similarly, the fact that Plaintiffs waited decades to challenge the requirement that voters be responsible for returning their absentee ballot request forms and absentee ballots weighs strongly against them. See, e.g., Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir.1990); Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) (applying laches where candidate waited to file suit until two weeks after he knew he would not be listed on ballot); Liddy v. Lamone, 398 Md. 233, 919 A.2d 1276 (2007) (concluding that trial court erred in failing to apply equitable doctrine of laches to bar plaintiff's challenge to candidate's qualifications, filed too close to election). In short, “[t]here is no constitutional right to procrastinate.” Dobson v. Dunlap, 576 F. Supp. 2d 181, 183 (D. Me. 2008). As shown, the public health emergency does not change this analysis.
CONCLUSION For these reasons, the Secretary requests that this Court DENY Plaintiffs’ Motion.
35

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 36 of 39
Respectfully submitted this 20th day of April, 2020.
/s/ Vincent R. Russo Vincent R. Russo Georgia Bar No. 242628 vrusso@robbinsfirm.com Josh Belinfante Georgia Bar No. 047399 jbelinfante@robbinsfirm.com Alexander Denton Georgia Bar No. 660632 adenton@robbinsfirm.com Brian E. Lake Georgia Bar No. 575966 blake@robbinsfirm.com Melanie Johnson Georgia Bar No. 466756 mjohnson@robbinsfirm.com Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, Georgia 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250
Christopher M. Carr Attorney General Ga. Bar No. 112505 Annette Cowart Deputy Attorney General Ga. Bar No. 191199 Russell Willard Sr. Asst. Attorney General Ga. Bar No. 760280 Charlene McGowan Asst. Attorney General Ga. Bar No. 697316
Georgia Department of Law 40 Capitol Square SW
36

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 37 of 39
Atlanta, GA 30334 cmcgowan@law.ga.gov Tel: 404-656-3389 Fax: 404-651-9325 Counsel for State Defendant
37

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 38 of 39
CERTIFICATE OF COMPLIANCE Pursuant to L.R. 7.1(D), the undersigned hereby certifies that the foregoing RESPONSE OF SECRETARY OF STATE BRAD RAFFENSPERGER IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION has been prepared in Century Schoolbook 13, a font and type selection approved by the Court in L.R. 5.1(B).
/s/ Vincent R. Russo Vincent R. Russo

Case 1:20-cv-01489-AT Document 51 Filed 04/20/20 Page 39 of 39
CERTIFICATE OF SERVICE I hereby certify that on this day, I electronically filed the foregoing RESPONSE OF SECRETARY OF STATE BRAD RAFFENSPERGER IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will automatically send counsel of record e-mail notification of such filing. This 20th day of January, 2020.
/s/ Vincent Russo Vincent R. Russo
39

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 1 of 88
Exhibit A

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 2 of 88

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

BLACK VOTERS MATTER FUND, )

and MEGAN GORDON, on behalf of )

herself and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRAD RAFFENSPERGER, in his )

official capacity as Secretary of State )

of the State of Georgia, and DEKALB )

BOARD OF REGISTRATION & )

ELECTIONS, and all others similarly )

Situated,

)

)

Defendant.

)

CIVIL ACTION FILE NO. 1:20-CV-1489-AT

DECLARATION UNDER PENALTY OF PERJURY OF KEVIN RAYBURN
1. I am over the age of majority, of sound mind, and otherwise qualified to make this Declaration based upon my own personal knowledge. This Declaration is offered pursuant to 28 U.S.C. § 1746 in support of Georgia Secretary of State Brad Raffensperger’s (“Defendant” or “Secretary”) Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction in the above-captioned matter.

2. I am employed by the Georgia Office of Secretary of State as the Deputy Elections Director and Deputy General Counsel. My work includes assisting the Secretary with election administration.

The Secretary’s Budget

3. The State operates on a fiscal year that commences on July 1 of each year.

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 3 of 88 - 2 -
4. During the 2020 legislative session, the General Assembly revised the 2020 budget, which the General Assembly first passed last year. The revised budget, which funds State government through June 30, 2020, is known as the “Amended Budget.” The General Assembly has not yet passed the Fiscal Year 2021 budget (the “2021 Budget”).
5. The Amended Budget provides the Secretary’s Elections Division with an overall annual budget of $6,118,907. The General Assembly did not appropriate funds in the Amended Budget to cover the cost of providing postage for the return mail of absentee ballots from voters.
Absentee Voting in the 2020 General Primary
6. As in prior elections since 2005, voters in Georgia are not required to provide a reason in order to cast an absentee ballot in the 2020 General Primary, or any runoff, general election, or special election.
7. Under normal circumstances, absentee ballot request forms are handled by county election officials.
a. No more than 180 days prior to the date of the primary, any voter may make an application for an official absentee ballot of the voter’s precinct by mail, by facsimile transmission, by electronic transmission, or in person in the registrar's or absentee ballot clerk's office. It is the voter’s responsibility to complete and sign the application unless the voter is physically disabled or temporarily residing out of the voter’s county, in which case the application can be made by the voter’s mother, father, grandparent, aunt, uncle, sister, brother, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, or sister-in-law of the age of 18 or over. If the voter mails an absentee ballot request, the voter pays the cost of postage. However, a voter may also return the

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 4 of 88 - 3 -
completed and signed form electronically to their county election office by fax or electronic mail.
b. After a completed and signed absentee ballot request form is submitted to the proper county elections office, county election officials would ensure that the voter requesting the ballot is a registered voter and verify that the voter’s signature on the application matches the signature on file, and if so, the county would mail the requesting voter an absentee ballot packet, which includes the absentee ballot, a secrecy envelope, and a pre-addressed envelope to return the absentee ballot to the county election office. The voter would vote the ballot, seal it in a secrecy envelope, and place the secrecy envelope in a pre-addressed envelope. The voter would pay the cost of postage to return the absentee ballot or a third party could pay the cost of postage. The voter must personally mail or personally deliver the voted absentee ballot packet to the board of registrars or absentee ballot clerk, except in limited circumstances provided by law.
8. In the light of the COVID-19 pandemic, the Secretary undertook extraordinary measures to make sure that eligible Georgia voters would be able to utilize Georgia’s long standing law that allows any voter to request an absentee ballot without excuse in the 2020 general primary (the “General Primary”). These efforts included moving the date of the Presidential Preference Primary, first from March 24 to May 19 to coincide with the General Primary, and then moving the combined General Primary/Presidential Preference Primary from May 19 to June 9. The Secretary, recognizing that there would be increased interest in absentee voting due to the COVID-19 pandemic, took specific action to make it easier for counties to handle this increased volume. Specifically:

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 5 of 88 - 4 -
a. On March 24, 2020, the Secretary announced that the State, working through third party vendors, would mail every voter on Georgia’s active voter roll a personalized absentee ballot request form. This first step has cost the State over $3 million.
b. When a voter received their absentee ballot request form, he or she would compete the information, sign the form, fold, and tape the document so the pre-printed address of the county election office became visible to postal workers. Consistent with every prior election year, the absentee ballot request forms do not contain prepaid postage. Consequently, the voter or a third party must pay postage to return the absentee ballot request form to the appropriate county election office. Alternatively, the voter could return the completed form electronically to the county email address supplied on the absentee ballot request form that was mailed out.
c. Upon receipt of absentee ballot request forms, county election officials input the absentee ballot request into the voter registration system and verify that the signature on the form matches the voter’s signature on file.
d. The Secretary also procured a mail vendor to take the time and expense of preparing and labeling envelopes, preparing and packing the Absentee Ballot Packet (a ballot, return envelope, and inner secrecy envelope), and mailing out the Absentee Ballot Packet. Each of the absentee ballots and absentee ballot return envelopes necessarily varied depending on where the voter lived and what elections were on the ballot. In light of the anticipated increased use of absentee ballots, the Secretary chose to cover the mail vendor cost, which saved counties millions of dollars and took a great deal of work off their hands so that they can focus on preparing for holding their elections amidst the

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 6 of 88 - 5 -
current challenges. The absentee ballot return envelopes were approved by the Secretary of State and ordered for printing by the Secretary’s vendor on March 30. As of April 16, 2020, over 75 county’s absentee ballot return envelopes have been printed and delivered to the State mail vendor, and additional county return envelopes continue to be delivered to the mail vendor. The vendor’s process to package and mail Absentee Ballots Packets remains ongoing, and the packets will start to be mailed to voters on April 21, 2020. A sample of absentee ballot envelopes is attached hereto as Exhibit A.
e. When voters receive their Absentee Ballot Packet, they will treat them like any typical election: the voter will complete the absentee ballot, slide it into the secrecy envelope, and place the secrecy envelope into the absentee ballot return envelope. As in every prior election, the voter is responsible for obtaining postage directly or through a third party or the voter can return the sealed and signed envelope directly to their county elections office. On Wednesday, April 15, the State Election Board passed an emergency rule that authorizes counties to establish secured absentee ballot drop boxes where voters may drop off completed absentee ballots to a secured location without using a stamp. A true and accurate copy of the rule is attached as “Exhibit 1.”
9. The total cost for printing, personalizing, and mailing the absentee ballot applications was approximately $3.1 million. The total cost for printing, design, and insertion of the Absentee Ballot Packets is approximately $1.9 million, but additional printing and insertion costs of $0.78 per ballot mail will apply. Postage cost to mail out the Absentee Ballot Packets is estimated to be approximately $480,000, but could increase depending on the number of requests received. These costs do not include the costs that the state is incurring to purchase additional equipment to tabulate the

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 7 of 88 - 6 -
increased number of absentee ballots. The funds were taken from a grant given by the federal government pursuant to HAVA/CARE one-time funds. The federal funds are not provided on an ongoing basis.
Prepaid Postage
10. The United States Postal Service (“USPS”) allows entities, including government entities, to use a business reply mail account (a “Business Reply Account”). Business Reply Accounts allow certain mailings (those that are designated with the business reply permit information) to be returned at no cost to the recipient. A Business Reply Account must be prefunded, meaning it draws down from existing funds on the account as opposed to relying on invoices that are paid at a later date.
11. The Secretary maintains a Business Reply Account for specific types of election mail: (a) state mail voter registration forms; (b) confirmation notice (a/k/a list maintenance letter); and (c) final notice to inactive voters (a/k/a NGE list maintenance letter). Many state mail voter registration forms, however, are returned to the Secretary’s office by hand-delivery, rather than through the mail, due to third-party organizations bundling state mail voter registration forms received at voter registration drives.
12. The Secretary’s current Business Reply Account requires prepaid postage envelopes be addressed to the Business Reply Account holder. Consequently, the Secretary cannot utilize its Business Reply Account to have voters send absentee ballot requests or absentee ballots anywhere but to the Secretary’s office. Put differently, without manually placing postage on each and every response to an absentee ballot request and absentee ballot return envelope, the Secretary cannot currently preprint selfaddressed, postage-paid envelopes to be delivered by the Secretary that will be returned to county election officials with the current Secretary’s Business Reply Account. For the election mail be returned to county

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 8 of 88 - 7 -
election offices, all 159 county election offices would have to set up their own Business Reply Account, requiring significant time and an additional cost expected to exceed $150,000.
13. Under the Secretary’s current Business Reply Account, mail that is one ounce in weight or less (which, includes secured absentee ballots and absentee ballot envelopes), costs the Secretary $1.40 for every piece of mail that is returned: $0.55 cents is for the price of postage, and $0.85 is for a handling fee. There is also an annual $240 fee to maintain a Business Reply Account. The Secretary may be able to upgrade the Business Reply Account for an additional setup fee of $725, for a total fee of $965. The upgrade would allow the Secretary to reduce the cost of each mail to $0.643 for the higher annual fee, but prepaid postage envelopes would still be addressed to the Secretary as the Business Reply Account holder, as the Business Reply Account has to be tied to the return address on the mailer.
14. Thus, in the immediate short term, voters will pay $0.55 to return their absentee ballots, but the Secretary would be required to either pay $1.40 per absentee ballot or even more if personnel were required to (or even could) affix postage to absentee ballot return envelopes. At best, and for elections after the General Primary, the Secretary would still be required to pay more than the voter: $0.643 versus a $0.55 stamp.
The Cost of Plaintiffs’ Proposed Relief
15. Georgia voters are utilizing the absentee ballot method at a rate that is the highest in the State’s history. Last week, the number of absentee ballot requests eclipsed that of the 2018 November General Election.
16. In addition to the logistical challenge of providing postage to voters who are in the process of receiving absentee ballots now, it is difficult to estimate the financial impact of having to provide postage for the General

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 9 of 88 - 8 -
Primary or any potential runoffs, because it is impossible to know how many voters (a) will request an absentee ballot; (b) will return the absentee ballot; and (c) will follow historical practice and use their own postage or that of a third party instead of relying on state taxpayers for postage.
17. It is impossible to precisely estimate the cost to the State for Plaintiffs’ proposed relief, notwithstanding whether the requested relief could even be implemented without significant administrative costs since Business Reply mail is returned to the account holder. Assuming turnout is similar to the 2016 Presidential Preference Primary and a third of the ballots are returned by mail (approximately 700,000 ballots), which is a conservative estimate, the cost of only return postage for the absentee ballots would be $450,100 at the cost of $0.643 per ballot or $980,000 at the current rate of $1.40 per ballot. Similarly, assuming a General Election turnout at 4,500,000 total votes cast and the cost of $0.643 per ballot, the cost to the State for return postage only would be estimated at: $723,375 at a 25% vote-by-mail rate, $1,446,750 at a 50% vote-by-mail rate, and $2,170,125 at a 75% vote-by-mail rate. Of course, at the current $1.40 per ballot rate, each of these estimates is more than doubled.
18. During November’s General Election, one that includes a presidential campaign, it is only logical to presume that voter turnout will be higher. For example, in 2018 election, 3,949,905 ballots were cast. In the 2016 presidential election, 4,165,405 Georgians cast ballots.
19. In the General Primary, there are numerous statewide elections: a United States Senate primary (Democratic ballots only); two seats on the Supreme Court of Georgia are up for election (both are contested); five seats on the Georgia Court of Appeals (none are contested); two Public Service Commissioners (both contested). There are also numerous local elections, including contested legislative primaries. All 56 State Senate seats, and all

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 10 of 88

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 11 of 88
Exhibit A

From/De

A Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 12 of 88

APPLY FIRST-CLASS MAIL POSTAGE HERE
APLICA EL FRANQUEO DE CORREO DE
PRIMERA CLASE AQUÍ

OFFICIAL ABSENTEE BALLOT BOLETA OFICIAL DE VOTO AUSENTE

BOARD OF REGISTRARS

JUNTA DE REGISTRADORES

DFFFDFADDDTFTDTADTFFTTDFAAAFFAAFFTFADAFDFFATFTFDATADATFDTFFATTDFF
GWINNETT COUNTY 455 GRAYSON HWY STE 200 LAWRENCEVILLE GA 30046-6388

[GCZf/ uUUuU5U
067

OCAaTsHeO1F:2E0LE-cCvT-O0R1489-AT Document 51-1 Filed 04/20JU/2R0AMPENaTgOeD1E3L VoOf T8A8NTE

I the undersigned, do swear (or affirm)

Yo, el abajo firmante, juro (o afirmo) que

• I am a citizen of the United States and of the State of Georgia.

• Soy ciudadano de los Estados Unidos y del estado de Georgia

• I possess the qualifications of an elector required by the laws of the State of Georgia.

• Que poseo los requisitos de un votante exigidos por las leyes del estado de Georgia;

• I am entitled to vote in the precinct containing my residence in the primary or election in which this ballot

• Que tengo derecho a votar en el distrito electoral que contiene mi residencia en las primarias o en las

is to be cast.

elecciones en que se usará este voto

• I am eligible to vote by absentee ballot.

• Que soy elegible para realizar un voto en boleta de voto ausente

• I have not marked or mailed any other absentee ballot, nor will I mark or mail another absentee ballot for

• Que no he marcado ni enviado por correo ninguna otra boleta de voto ausente, ni marcaré o enviaré

voting in such primary or election; nor shall I vote therein in person. • I have read and understand the instructions accompanying this ballot. • I have carefully complied with such instructions in completing this ballot. I understand that the offer or acceptance of money or any other object of value to vote for any particular candidate, list of candidates, issue, or list of issues included in this election constitutes an act of voter fraud and is a felony under Georgia law.

por correo otra boleta de voto ausente para votar en dichas primarias o elecciones, ni votaré en ellas personalmente. • Y que he leído y entendido las instrucciones que acompañan este voto • Y que he seguido cuidadosamente esas instrucciones al completar esta votación. Entiendo que la oferta o aceptación de dinero o cualquier otro objeto de valor para votar por un candidato en particular, una lista de candidatos, una cuestión o una lista de cuestiones incluidas en esta elección constituye un acto de fraude electoral y es un delito grave conforme a la ley de Georgia.

SIGN HERE

SIGNATURE OR MARK OF ELECTOR

FIRMAR AQUÍ

FIRMA O MARCA DEL VOTANTE

PRINTED NAME OF ELECTOR		 DATE

NOMBRE IMPRESO DEL VOTANTE		

FECHA

Oath of Person Assisting Elector (if any): I, the undersigned, do swear (or affirm) that I assisted the above-named elector in marking such elector’s absentee ballot as such elector personally communicated such elector’s preference to me; and that such elector is entitled to receive assistance in voting under provisions of subsection (a) of Code Section 21-2-409.
This, the ______ day of _________________________, 20______
Reason for Assistance (Check appropriate square):  Elector is unable to read the English Language  Elector requires assistance due to physical disability.

SIGNATURE OF PERSON ASSISTING ELECTOR

PRINTED NAME OF PERSON ASSISTING ELECTOR DATE THIS BOX IS FOR OFFICE USE ONLY.

DATE RECEIVED		

TIME RECEIVED

CERTIFIED AND APPROVED (SIGNATURE OF REGISTRAR)

Juramento de la persona que asiste al votante (si corresponde): Yo, el abajo firmante, juro (o afirmo) que ayudé al votante antes mencionado a marcar la boleta de voto ausente, ya que dicho votante me comunicó personalmente su preferencia; y que ese votante tiene derecho a recibir asistencia en la votación de conformidad con lo dispuesto en el inciso (a) del artículo 21-2-409 del Código.
A los _______día de _______________________________, de 20 ______
Motivo de la asistencia (marcar la casilla correspondiente):  El votante no puede leer el idioma inglés  El votante requiere asistencia debido a una discapacidad física.

FIRMA DE LA PERSONA QUE ASISTE AL VOTANTE

NOMBRE IMPRESO DE LA PERSONA QUE ASISTE AL VOTANTE

FECHA

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 14 of 88

STOP BEFORE YOU SEAL THIS ENVELOPE, YOU MUST DO THE FOLLOWING:  Place your ballot in white envelope and seal.  Sign the oath.  Have you affixed sufficient postage?

DETÉNGASE ANTES DE SELLAR ESTE SOBRE, DEBE HACER LO SIGUIENTE:  Coloque su boleta en el sobre blanco y selle.  Firma el jurmanto.  ¿Ha colocado franqueo suficiente?

Georgia law provides that any person who knowingly falsifies information so as to vote illegally by absentee ballot or who illegally gives or receives assistance in voting, as specified in Code Section 21-2-568 or 21-2-573, shall be guilty of a felony.

La legislación de Georgia dispone que toda persona que a sabiendas falsifique información para votar ilegalmente por boleta de voto ausente o que preste o reciba asistencia para votar ilegalmente, según se especifica en los artículos 21-2-568 o 21-2-573 del Código, será culpable de un delito grave.

FROM

CDaEse 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 15 of 88

BOARD OF REGISTRARS JUNTA DE REGISTRADORES

455 GRAYSON HWY SUITE 200 LAWRENCEVILLE GA 30046 USA

RETURN SERVICE REQUESTED

PRESORTED FIRST-CLASS MAIL
U.S. POSTAGE PAID
GEORGIA SECRETARY OF STATE

OFFICIAL ABSENTEE BALLOT / BOLETA OFICIAL DE VOTO AUSENTE

TO: PARA:

Window: 1-1/2” x 5” 1” left, 2-15/16” bottom

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 16 of 88
Window: 2-5/16” x 1-3/4” 3/4” left, 3-3/4” bottom

Georgia Secretary of StateCase 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 17 of 88 Elections Division 2 Martin Luther King Jr. Dr. SE 802 West Tower Atlanta, GA 30334
RETURN SERVICE REQUESTED
Official Absentee Ballot
Window: 1-1/2” x 5” 1” left, 2-15/16” bottom

PRESORTED FIRST-CLASS MAIL
U.S. POSTAGE PAID
GEORGIA SECRETARY OF STATE

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 18 of 88
Window: 2-5/16” x 1-3/4” 3/4” left, 3-3/4” bottom

From

A Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 19 of 88

APPLY FIRST-CLASS MAIL POSTAGE
HERE

OFFICIAL ABSENTEE BALLOT
BOARD OF REGISTRARS

APPLING COUNTY 69 TIPPINS ST STE 205 BAXLEY GA 31513-0494

aS<mH/ u55U55U
001

Case 1:20-cv-01489-AOTADTHocuOmFenEtL5E1-C1 TOFilRed 04/20/20 Page 20 of 88
I, the undersigned, do swear (or aﬃrm) that I am a citizen of the United States and of the State of Georgia; that I possess the qualiﬁcations of an elector required by the laws of the State of Georgia; that I am entitled to vote in the precinct containing
my residence in the primary or election in which this ballot is to be cast; that I am eligible to vote by absentee ballot; that
I have not marked or mailed any other absentee ballot, nor will I mark or mail another absentee ballot for voting in such
primary or election; nor shall I vote therein in person; and that I have read and understand the instructions accompanying this ballot; and that I have carefully complied with such instructions in completing this ballot. I understand that the oﬀer or acceptance of money or any other object of value to vote for any particular candidate, list of candidates, issue, or list of
issues included in this election constitutes an act of voter fraud and is a felony under Georgia law.

SIGN HERE:

Signature or Mark of Elector

Printed Name of Elector

Oath of Person Assisting Elector (if any): I, the undersigned, do swear (or aﬃrm) that I assisted the above-named elector in marking such elector’s absentee ballot as such elector personally communicated such elector’s preference to me; and that such elector is entitled to receive assistance in voting
under provisions of subsection (a) of Code Section 21-2-409.

This, the

day of

, 20

.

Signature of Person Assisting Elector
Printed Name of Person Assisting Elector Reason for assistance (Check appropriate square):
 Elector is unable to read the English language.  Elector requires assistance due to physical disability.

Georgia law provides that any person who knowingly falsiﬁes information so as to vote illegally by absentee ballot or who illegally gives or receives assistance in voting, as speciﬁed in Code Section 21-2-568 or 21-2-573, shall be guilty of a felony.

(This box for oﬃce use only.)

Date and Time Received:

Certiﬁed and Approved:

(Signature of Registrar)

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 21 of 88
STOP
Have you signed the oath? Have you placed your ballot in the white envelope and sealed it? Have you aﬃxed suﬃcient postage?

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 22 of 88
Exhibit B

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 23 of 88

A

1

OFFICE LEVEL

2 STATE/FEDERAL

3 STATE/FEDERAL

4 STATE/FEDERAL

5 STATE/FEDERAL

6 STATE/FEDERAL

7 STATE/FEDERAL

8 STATE/FEDERAL

9 STATE/FEDERAL

10 STATE/FEDERAL

11 STATE/FEDERAL

12 STATE/FEDERAL

13 STATE/FEDERAL

14 STATE/FEDERAL

15 STATE/FEDERAL

16 STATE/FEDERAL

17 STATE/FEDERAL

18 STATE/FEDERAL

19 STATE/FEDERAL

20 STATE/FEDERAL

21 STATE/FEDERAL

22 STATE/FEDERAL

23 STATE/FEDERAL

24 STATE/FEDERAL

25 STATE/FEDERAL

26 STATE/FEDERAL

27 STATE/FEDERAL

28 STATE/FEDERAL

29 STATE/FEDERAL

30 STATE/FEDERAL

31 STATE/FEDERAL

32 STATE/FEDERAL

33 STATE/FEDERAL

34 STATE/FEDERAL

35 STATE/FEDERAL

36 STATE/FEDERAL

37 STATE/FEDERAL

38 STATE/FEDERAL

39 STATE/FEDERAL 40 STATE/FEDERAL

41 STATE/FEDERAL

42 STATE/FEDERAL

43 STATE/FEDERAL

B
OFFICE SOUGHT DISTRICT ATTORNEY, ALAPAHA DISTRICT ATTORNEY, ALCOVY DISTRICT ATTORNEY, APPALACHIAN DISTRICT ATTORNEY, ATLANTA DISTRICT ATTORNEY, AUGUSTA DISTRICT ATTORNEY, BELL-FORSYTH DISTRICT ATTORNEY, BLUE RIDGE DISTRICT ATTORNEY, BRUNSWICK DISTRICT ATTORNEY, CHATTAHOOCHEE DISTRICT ATTORNEY, CHEROKEE DISTRICT ATTORNEY, CONASAUGA DISTRICT ATTORNEY, COWETA DISTRICT ATTORNEY, DOUGHERTY DISTRICT ATTORNEY, DUBLIN DISTRICT ATTORNEY, EASTERN
DISTRICT ATTORNEY, FLINT DISTRICT ATTORNEY, GWINNETT DISTRICT ATTORNEY, HOUSTON DISTRICT ATTORNEY, LOOKOUT MOUNTAIN
DISTRICT ATTORNEY, MACON DISTRICT ATTORNEY, MIDDLE DISTRICT ATTORNEY, MOUNTAIN DISTRICT ATTORNEY, NORTHERN DISTRICT ATTORNEY, OCMULGEE DISTRICT ATTORNEY, OCONEE DISTRICT ATTORNEY, OGEECHEE DISTRICT ATTORNEY, PIEDMONT DISTRICT ATTORNEY, ROME DISTRICT ATTORNEY, SOUTH GEORGIA DISTRICT ATTORNEY, SOUTHERN DISTRICT ATTORNEY, STONE MOUNTAIN DISTRICT ATTORNEY, TALLAPOOSA DISTRICT ATTORNEY, TIFTON DISTRICT ATTORNEY, TOOMBS DISTRICT ATTORNEY, TOWALIGA JUDGE OF SUPERIOR COURT, ALAPAHA%,
TOMLINSON JUDGE OF SUPERIOR COURT,
ALCOVY%,BENTON JUDGE OF SUPERIOR COURT,
ALCOVY%,JOHNSON JUDGE OF SUPERIOR COURT, ALCOVY%,OTT
JUDGE OF SUPERIOR COURT, ALCOVY%,WYNNE
JUDGE OF SUPERIOR COURT, APPALACHIAN%,WEAVER
JUDGE OF SUPERIOR COURT, ATLANTA%,ADAMS

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 24 of 88

A
44 STATE/FEDERAL 45 STATE/FEDERAL 46 STATE/FEDERAL 47 STATE/FEDERAL 48 STATE/FEDERAL 49 STATE/FEDERAL 50 STATE/FEDERAL 51 STATE/FEDERAL 52 STATE/FEDERAL 53 STATE/FEDERAL 54 STATE/FEDERAL 55 STATE/FEDERAL 56 STATE/FEDERAL 57 STATE/FEDERAL 58 STATE/FEDERAL 59 STATE/FEDERAL 60 STATE/FEDERAL 61 STATE/FEDERAL 62 STATE/FEDERAL 63 STATE/FEDERAL 64 STATE/FEDERAL 65 STATE/FEDERAL 66 STATE/FEDERAL 67 STATE/FEDERAL 68 STATE/FEDERAL 69 STATE/FEDERAL 70 STATE/FEDERAL 71 STATE/FEDERAL 72 STATE/FEDERAL 73 STATE/FEDERAL 74 STATE/FEDERAL 75 STATE/FEDERAL

B
JUDGE OF SUPERIOR COURT, ATLANTA%,CARNESALE
JUDGE OF SUPERIOR COURT, ATLANTA%,COX
JUDGE OF SUPERIOR COURT, ATLANTA%,DUNAWAY
JUDGE OF SUPERIOR COURT, ATLANTA%,EDWARDS
JUDGE OF SUPERIOR COURT, ATLANTA%,GLANVILLE
JUDGE OF SUPERIOR COURT, ATLANTA%,KRAUSE
JUDGE OF SUPERIOR COURT, ATLANTA%,LAGRUA
JUDGE OF SUPERIOR COURT, ATLANTA%,MILLENDER
JUDGE OF SUPERIOR COURT, ATLANTA%,NEWKIRK
JUDGE OF SUPERIOR COURT, ATLANTA%,RICHARDSON
JUDGE OF SUPERIOR COURT, ATLANTA%,RIEDER
JUDGE OF SUPERIOR COURT, ATLANTA%,RUSSELL
JUDGE OF SUPERIOR COURT, ATLANTIC%,ROSE
JUDGE OF SUPERIOR COURT, ATLANTIC%,RUSSELL
JUDGE OF SUPERIOR COURT, AUGUSTA%,BROWN
JUDGE OF SUPERIOR COURT, AUGUSTA%,CRAIG
JUDGE OF SUPERIOR COURT, AUGUSTA%,FLYTHE
JUDGE OF SUPERIOR COURT, AUGUSTA%,JOLLY
JUDGE OF SUPERIOR COURT, BELLFORSYTH%,DICKINSON
JUDGE OF SUPERIOR COURT, BLUE RIDGE%,CANNON
JUDGE OF SUPERIOR COURT, BLUE RIDGE%,MCELYEA
JUDGE OF SUPERIOR COURT, BRUNSWICK%,GUY
JUDGE OF SUPERIOR COURT, BRUNSWICK%,HARRISON
JUDGE OF SUPERIOR COURT, BRUNSWICK%,KELLEY
JUDGE OF SUPERIOR COURT, BRUNSWICK%,SCARLETT
JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,GOTTFRIED
JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,LAND
JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,MCBRIDE JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,MULLINS JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,PETERS JUDGE OF SUPERIOR COURT, CHATTAHOOCHEE%,RUMER JUDGE OF SUPERIOR COURT,
CHATTAHOOCHEE%,SMITH

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 25 of 88

A
76 STATE/FEDERAL 77 STATE/FEDERAL 78 STATE/FEDERAL 79 STATE/FEDERAL 80 STATE/FEDERAL 81 STATE/FEDERAL 82 STATE/FEDERAL 83 STATE/FEDERAL 84 STATE/FEDERAL 85 STATE/FEDERAL 86 STATE/FEDERAL 87 STATE/FEDERAL 88 STATE/FEDERAL 89 STATE/FEDERAL 90 STATE/FEDERAL 91 STATE/FEDERAL 92 STATE/FEDERAL 93 STATE/FEDERAL 94 STATE/FEDERAL 95 STATE/FEDERAL 96 STATE/FEDERAL 97 STATE/FEDERAL 98 STATE/FEDERAL 99 STATE/FEDERAL 100 STATE/FEDERAL 101 STATE/FEDERAL 102 STATE/FEDERAL 103 STATE/FEDERAL 104 STATE/FEDERAL 105 STATE/FEDERAL 106 STATE/FEDERAL 107 STATE/FEDERAL 108 STATE/FEDERAL

B
JUDGE OF SUPERIOR COURT, CHEROKEE%,SSMITH
JUDGE OF SUPERIOR COURT, CHEROKEE%,WATKINS
JUDGE OF SUPERIOR COURT, CLAYTON%,MACK
JUDGE OF SUPERIOR COURT, CLAYTON%,POWERS
JUDGE OF SUPERIOR COURT, CLAYTON%,ROOKS
JUDGE OF SUPERIOR COURT, COBB%,CHILDS
JUDGE OF SUPERIOR COURT, COBB%,GREEN
JUDGE OF SUPERIOR COURT, COBB%,INGRAM
JUDGE OF SUPERIOR COURT, COBB%,KELL
JUDGE OF SUPERIOR COURT, COBB%,POOLE
JUDGE OF SUPERIOR COURT, COBB%,SCHUSTER
JUDGE OF SUPERIOR COURT, COBB%,STALEY
JUDGE OF SUPERIOR COURT, CONASAUGA%,MINTER
JUDGE OF SUPERIOR COURT, CORDELE%,CHASTEEN
JUDGE OF SUPERIOR COURT, CORDELE%,FACHINI
JUDGE OF SUPERIOR COURT, CORDELE%,HUGHES
JUDGE OF SUPERIOR COURT, COWETA%,BAKER
JUDGE OF SUPERIOR COURT, COWETA%,BLACKMON
JUDGE OF SUPERIOR COURT, COWETA%,PALMER
JUDGE OF SUPERIOR COURT, COWETA%,SAKRISON
JUDGE OF SUPERIOR COURT, COWETA%,SIMPSON
JUDGE OF SUPERIOR COURT, DOUGHERTY%,DARRISAW
JUDGE OF SUPERIOR COURT, DOUGHERTY%,LOCKETTE
JUDGE OF SUPERIOR COURT, DOUGHERTY%,MARSHALL
JUDGE OF SUPERIOR COURT, DOUGLAS%,MCCLAIN
JUDGE OF SUPERIOR COURT, DUBLIN%,GILLIS
JUDGE OF SUPERIOR COURT, DUBLIN%,GREEN
JUDGE OF SUPERIOR COURT, DUBLIN%,HELTON
JUDGE OF SUPERIOR COURT, EASTERN%,BASS
JUDGE OF SUPERIOR COURT, EASTERN%,FREESEMAN
JUDGE OF SUPERIOR COURT, EASTERN%,MORSE
JUDGE OF SUPERIOR COURT, ENOTAH%,PARKS
JUDGE OF SUPERIOR COURT, FLINT%,PIPKIN

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 26 of 88

A
109 STATE/FEDERAL 110 STATE/FEDERAL 111 STATE/FEDERAL 112 STATE/FEDERAL 113 STATE/FEDERAL 114 STATE/FEDERAL 115 STATE/FEDERAL 116 STATE/FEDERAL 117 STATE/FEDERAL 118 STATE/FEDERAL 119 STATE/FEDERAL 120 STATE/FEDERAL 121 STATE/FEDERAL 122 STATE/FEDERAL 123 STATE/FEDERAL 124 STATE/FEDERAL 125 STATE/FEDERAL 126 STATE/FEDERAL 127 STATE/FEDERAL 128 STATE/FEDERAL 129 STATE/FEDERAL 130 STATE/FEDERAL 131 STATE/FEDERAL 132 STATE/FEDERAL 133 STATE/FEDERAL 134 STATE/FEDERAL 135 STATE/FEDERAL 136 STATE/FEDERAL 137 STATE/FEDERAL 138 STATE/FEDERAL 139 STATE/FEDERAL 140 STATE/FEDERAL

B
JUDGE OF SUPERIOR COURT, FLINT%,VEAL
JUDGE OF SUPERIOR COURT, GRIFFIN%,BALLARD
JUDGE OF SUPERIOR COURT, GRIFFIN%,SAMS
JUDGE OF SUPERIOR COURT, GWINNETT%, W. DAVIS
JUDGE OF SUPERIOR COURT, GWINNETT%,BATCHELOR
JUDGE OF SUPERIOR COURT, GWINNETT%,BEYERS
JUDGE OF SUPERIOR COURT, GWINNETT%,RICH
JUDGE OF SUPERIOR COURT, GWINNETT%,SCHRADER
JUDGE OF SUPERIOR COURT, GWINNETT%,WHITNER
JUDGE OF SUPERIOR COURT, HOUSTON%,ADAMS
JUDGE OF SUPERIOR COURT, HOUSTON%,LUKEMIRE
JUDGE OF SUPERIOR COURT, HOUSTON%,LUMSDEN
JUDGE OF SUPERIOR COURT, LOOKOUT MOUNTAIN%,GRAHAM
JUDGE OF SUPERIOR COURT, LOOKOUT MOUNTAIN%,HOUSE
JUDGE OF SUPERIOR COURT, MACON%,COLVIN
JUDGE OF SUPERIOR COURT, MACON%,MONROE
JUDGE OF SUPERIOR COURT, MIDDLE%,PALMER
JUDGE OF SUPERIOR COURT, MOUNTAIN%,CAUDELL
JUDGE OF SUPERIOR COURT, NORTHEASTERN%,BEARDEN JUDGE OF SUPERIOR COURT, NORTHEASTERN%,GOSSELIN JUDGE OF SUPERIOR COURT,
NORTHEASTERN%,OLIVER JUDGE OF SUPERIOR COURT,
NORTHERN%,MALCOM JUDGE OF SUPERIOR COURT,
NORTHERN%,PHELPS JUDGE OF SUPERIOR COURT,
NORTHERN%,WATSON JUDGE OF SUPERIOR COURT,
OCMULGEE%,BURLESON JUDGE OF SUPERIOR COURT,
OCMULGEE%,MASSEY JUDGE OF SUPERIOR COURT,
OCMULGEE%,PETTY JUDGE OF SUPERIOR COURT,
OCMULGEE%,PRIOR JUDGE OF SUPERIOR COURT,
OCMULGEE%,TRAMMELL JUDGE OF SUPERIOR COURT,
OCONEE%,JOHNSON JUDGE OF SUPERIOR COURT,
OCONEE%,KAUFOLD JUDGE OF SUPERIOR COURT,
OCONEE%,WALL

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 27 of 88

A
141 STATE/FEDERAL 142 STATE/FEDERAL 143 STATE/FEDERAL 144 STATE/FEDERAL 145 STATE/FEDERAL 146 STATE/FEDERAL 147 STATE/FEDERAL 148 STATE/FEDERAL 149 STATE/FEDERAL 150 STATE/FEDERAL 151 STATE/FEDERAL 152 STATE/FEDERAL 153 STATE/FEDERAL 154 STATE/FEDERAL 155 STATE/FEDERAL 156 STATE/FEDERAL 157 STATE/FEDERAL 158 STATE/FEDERAL 159 STATE/FEDERAL 160 STATE/FEDERAL 161 STATE/FEDERAL 162 STATE/FEDERAL 163 STATE/FEDERAL 164 STATE/FEDERAL 165 STATE/FEDERAL 166 STATE/FEDERAL 167 STATE/FEDERAL 168 STATE/FEDERAL 169 STATE/FEDERAL 170 STATE/FEDERAL 171 STATE/FEDERAL 172 STATE/FEDERAL

B
JUDGE OF SUPERIOR COURT, OGEECHEE%,BENNETT
JUDGE OF SUPERIOR COURT, OGEECHEE%,MULDREW
JUDGE OF SUPERIOR COURT, OGEECHEE%,PEED
JUDGE OF SUPERIOR COURT, PATAULA%,EARNEST
JUDGE OF SUPERIOR COURT, PAULDING%,BEAVERS
JUDGE OF SUPERIOR COURT, PAULDING%,BUCCI
JUDGE OF SUPERIOR COURT, PAULDING%,LYLES
JUDGE OF SUPERIOR COURT, PIEDMONT%,BOOTH
JUDGE OF SUPERIOR COURT, PIEDMONT%,MINGLEDORFF JUDGE OF SUPERIOR COURT,
PIEDMONT%,PRIMM JUDGE OF SUPERIOR COURT,
ROCKDALE%,MUMFORD JUDGE OF SUPERIOR COURT,
ROME%,DURHAM JUDGE OF SUPERIOR COURT,
ROME%,NIEDRACH JUDGE OF SUPERIOR COURT, SOUTH
GEORGIA%,CHASON JUDGE OF SUPERIOR COURT, SOUTH
GEORGIA%,LANIER JUDGE OF SUPERIOR COURT,
SOUTHERN%,COWART JUDGE OF SUPERIOR COURT,
SOUTHWESTERN%,BROWN JUDGE OF SUPERIOR COURT,
SOUTHWESTERN%,SMITH JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,ADAMS JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,BARRIE JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,HUNTER JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,HYDRICK JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,MORRIS JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,SCOTT JUDGE OF SUPERIOR COURT, STONE
MOUNTAIN%,SEEILGER JUDGE OF SUPERIOR COURT,
TALLAPOOSA%,MURPHY JUDGE OF SUPERIOR COURT,
TIFTON%,CROSS JUDGE OF SUPERIOR COURT,
TOOMBS%,HAMMOND JUDGE OF SUPERIOR COURT,
TOOMBS%,HINESLEY JUDGE OF SUPERIOR COURT,
TOWALIGA%,FEARS JUDGE OF SUPERIOR COURT,
WAYCROSS%,BROOKS JUDGE OF SUPERIOR COURT,
WAYCROSS%,SPIVEY

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 28 of 88

A
173 STATE/FEDERAL
174 STATE/FEDERAL
175 STATE/FEDERAL
176 STATE/FEDERAL
177 STATE/FEDERAL
178 STATE/FEDERAL
179 STATE/FEDERAL 180 STATE/FEDERAL
181 STATE/FEDERAL 182 STATE/FEDERAL
183 STATE/FEDERAL
184 STATE/FEDERAL 185 STATE/FEDERAL 186 STATE/FEDERAL 187 STATE/FEDERAL 188 STATE/FEDERAL 189 STATE/FEDERAL 190 STATE/FEDERAL 191 STATE/FEDERAL 192 STATE/FEDERAL 193 STATE/FEDERAL 194 STATE/FEDERAL 195 STATE/FEDERAL 196 STATE/FEDERAL 197 STATE/FEDERAL 198 STATE/FEDERAL 199 STATE/FEDERAL 200 STATE/FEDERAL 201 STATE/FEDERAL 202 STATE/FEDERAL 203 STATE/FEDERAL 204 STATE/FEDERAL 205 STATE/FEDERAL 206 STATE/FEDERAL 207 STATE/FEDERAL 208 STATE/FEDERAL 209 STATE/FEDERAL 210 STATE/FEDERAL 211 STATE/FEDERAL 212 STATE/FEDERAL 213 STATE/FEDERAL

B
JUDGE OF SUPERIOR COURT, WESTERN%,HAGGARD
JUDGE OF SUPERIOR COURT, WESTERN%,STEPHENS
JUDGE OF THE COURT OF APPEALS%,BROWN JUDGE OF THE COURT OF APPEALS%,COOMER
JUDGE OF THE COURT OF APPEALS%,DOYLE
JUDGE OF THE COURT OF APPEALS%,GOBEIL
JUDGE OF THE COURT OF APPEALS%,MARKLE
JUSTICE OF THE SUPREME COURT%,BETHEL
JUSTICE OF THE SUPREME COURT%,WARREN
PRESIDENTIAL ELECTOR PUBLIC SERVICE COMMISSION, DISTRICT 1 -
SOUTHERN, DISTRICT1 PUBLIC SERVICE COMMISSION, DISTRICT 4 -
NORTHERN, DISTRICT 4 STATE REPRESENTATIVE, DISTRICT 1 STATE REPRESENTATIVE, DISTRICT 10 STATE REPRESENTATIVE, DISTRICT 100 STATE REPRESENTATIVE, DISTRICT 101 STATE REPRESENTATIVE, DISTRICT 102 STATE REPRESENTATIVE, DISTRICT 103 STATE REPRESENTATIVE, DISTRICT 104 STATE REPRESENTATIVE, DISTRICT 105 STATE REPRESENTATIVE, DISTRICT 106 STATE REPRESENTATIVE, DISTRICT 107 STATE REPRESENTATIVE, DISTRICT 108 STATE REPRESENTATIVE, DISTRICT 109 STATE REPRESENTATIVE, DISTRICT 11 STATE REPRESENTATIVE, DISTRICT 110 STATE REPRESENTATIVE, DISTRICT 111 STATE REPRESENTATIVE, DISTRICT 112 STATE REPRESENTATIVE, DISTRICT 113 STATE REPRESENTATIVE, DISTRICT 114 STATE REPRESENTATIVE, DISTRICT 115 STATE REPRESENTATIVE, DISTRICT 116 STATE REPRESENTATIVE, DISTRICT 117 STATE REPRESENTATIVE, DISTRICT 118 STATE REPRESENTATIVE, DISTRICT 119 STATE REPRESENTATIVE, DISTRICT 12 STATE REPRESENTATIVE, DISTRICT 120 STATE REPRESENTATIVE, DISTRICT 121 STATE REPRESENTATIVE, DISTRICT 122 STATE REPRESENTATIVE, DISTRICT 123 STATE REPRESENTATIVE, DISTRICT 124

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 29 of 88

A
214 STATE/FEDERAL 215 STATE/FEDERAL 216 STATE/FEDERAL 217 STATE/FEDERAL 218 STATE/FEDERAL 219 STATE/FEDERAL 220 STATE/FEDERAL 221 STATE/FEDERAL 222 STATE/FEDERAL 223 STATE/FEDERAL 224 STATE/FEDERAL 225 STATE/FEDERAL 226 STATE/FEDERAL 227 STATE/FEDERAL 228 STATE/FEDERAL 229 STATE/FEDERAL 230 STATE/FEDERAL 231 STATE/FEDERAL 232 STATE/FEDERAL 233 STATE/FEDERAL 234 STATE/FEDERAL 235 STATE/FEDERAL 236 STATE/FEDERAL 237 STATE/FEDERAL 238 STATE/FEDERAL 239 STATE/FEDERAL 240 STATE/FEDERAL 241 STATE/FEDERAL 242 STATE/FEDERAL 243 STATE/FEDERAL 244 STATE/FEDERAL 245 STATE/FEDERAL 246 STATE/FEDERAL 247 STATE/FEDERAL 248 STATE/FEDERAL 249 STATE/FEDERAL 250 STATE/FEDERAL 251 STATE/FEDERAL 252 STATE/FEDERAL 253 STATE/FEDERAL 254 STATE/FEDERAL 255 STATE/FEDERAL 256 STATE/FEDERAL 257 STATE/FEDERAL 258 STATE/FEDERAL 259 STATE/FEDERAL

B
STATE REPRESENTATIVE, DISTRICT 125 STATE REPRESENTATIVE, DISTRICT 126 STATE REPRESENTATIVE, DISTRICT 127 STATE REPRESENTATIVE, DISTRICT 128 STATE REPRESENTATIVE, DISTRICT 129 STATE REPRESENTATIVE, DISTRICT 13 STATE REPRESENTATIVE, DISTRICT 130 STATE REPRESENTATIVE, DISTRICT 131 STATE REPRESENTATIVE, DISTRICT 132 STATE REPRESENTATIVE, DISTRICT 133 STATE REPRESENTATIVE, DISTRICT 134 STATE REPRESENTATIVE, DISTRICT 135 STATE REPRESENTATIVE, DISTRICT 136 STATE REPRESENTATIVE, DISTRICT 137 STATE REPRESENTATIVE, DISTRICT 138 STATE REPRESENTATIVE, DISTRICT 139 STATE REPRESENTATIVE, DISTRICT 14 STATE REPRESENTATIVE, DISTRICT 140 STATE REPRESENTATIVE, DISTRICT 141 STATE REPRESENTATIVE, DISTRICT 142 STATE REPRESENTATIVE, DISTRICT 143 STATE REPRESENTATIVE, DISTRICT 144 STATE REPRESENTATIVE, DISTRICT 145 STATE REPRESENTATIVE, DISTRICT 146 STATE REPRESENTATIVE, DISTRICT 147 STATE REPRESENTATIVE, DISTRICT 148 STATE REPRESENTATIVE, DISTRICT 149 STATE REPRESENTATIVE, DISTRICT 15 STATE REPRESENTATIVE, DISTRICT 150 STATE REPRESENTATIVE, DISTRICT 151 STATE REPRESENTATIVE, DISTRICT 152 STATE REPRESENTATIVE, DISTRICT 153 STATE REPRESENTATIVE, DISTRICT 154 STATE REPRESENTATIVE, DISTRICT 155 STATE REPRESENTATIVE, DISTRICT 156 STATE REPRESENTATIVE, DISTRICT 157 STATE REPRESENTATIVE, DISTRICT 158 STATE REPRESENTATIVE, DISTRICT 159 STATE REPRESENTATIVE, DISTRICT 16 STATE REPRESENTATIVE, DISTRICT 160 STATE REPRESENTATIVE, DISTRICT 161 STATE REPRESENTATIVE, DISTRICT 162 STATE REPRESENTATIVE, DISTRICT 163 STATE REPRESENTATIVE, DISTRICT 164 STATE REPRESENTATIVE, DISTRICT 165 STATE REPRESENTATIVE, DISTRICT 166

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 30 of 88

A
260 STATE/FEDERAL 261 STATE/FEDERAL 262 STATE/FEDERAL 263 STATE/FEDERAL 264 STATE/FEDERAL 265 STATE/FEDERAL 266 STATE/FEDERAL 267 STATE/FEDERAL 268 STATE/FEDERAL 269 STATE/FEDERAL 270 STATE/FEDERAL 271 STATE/FEDERAL 272 STATE/FEDERAL 273 STATE/FEDERAL 274 STATE/FEDERAL 275 STATE/FEDERAL 276 STATE/FEDERAL 277 STATE/FEDERAL 278 STATE/FEDERAL 279 STATE/FEDERAL 280 STATE/FEDERAL 281 STATE/FEDERAL 282 STATE/FEDERAL 283 STATE/FEDERAL 284 STATE/FEDERAL 285 STATE/FEDERAL 286 STATE/FEDERAL 287 STATE/FEDERAL 288 STATE/FEDERAL 289 STATE/FEDERAL 290 STATE/FEDERAL 291 STATE/FEDERAL 292 STATE/FEDERAL 293 STATE/FEDERAL 294 STATE/FEDERAL 295 STATE/FEDERAL 296 STATE/FEDERAL 297 STATE/FEDERAL 298 STATE/FEDERAL 299 STATE/FEDERAL 300 STATE/FEDERAL 301 STATE/FEDERAL 302 STATE/FEDERAL 303 STATE/FEDERAL 304 STATE/FEDERAL 305 STATE/FEDERAL

B
STATE REPRESENTATIVE, DISTRICT 167 STATE REPRESENTATIVE, DISTRICT 168 STATE REPRESENTATIVE, DISTRICT 169 STATE REPRESENTATIVE, DISTRICT 17 STATE REPRESENTATIVE, DISTRICT 170 STATE REPRESENTATIVE, DISTRICT 171 STATE REPRESENTATIVE, DISTRICT 172 STATE REPRESENTATIVE, DISTRICT 173 STATE REPRESENTATIVE, DISTRICT 174 STATE REPRESENTATIVE, DISTRICT 175 STATE REPRESENTATIVE, DISTRICT 176 STATE REPRESENTATIVE, DISTRICT 177 STATE REPRESENTATIVE, DISTRICT 178 STATE REPRESENTATIVE, DISTRICT 179 STATE REPRESENTATIVE, DISTRICT 18 STATE REPRESENTATIVE, DISTRICT 180 STATE REPRESENTATIVE, DISTRICT 19
STATE REPRESENTATIVE, DISTRICT 2 STATE REPRESENTATIVE, DISTRICT 20 STATE REPRESENTATIVE, DISTRICT 21 STATE REPRESENTATIVE, DISTRICT 22 STATE REPRESENTATIVE, DISTRICT 23 STATE REPRESENTATIVE, DISTRICT 24 STATE REPRESENTATIVE, DISTRICT 25 STATE REPRESENTATIVE, DISTRICT 26 STATE REPRESENTATIVE, DISTRICT 27 STATE REPRESENTATIVE, DISTRICT 28 STATE REPRESENTATIVE, DISTRICT 29 STATE REPRESENTATIVE, DISTRICT 3 STATE REPRESENTATIVE, DISTRICT 30 STATE REPRESENTATIVE, DISTRICT 31 STATE REPRESENTATIVE, DISTRICT 32 STATE REPRESENTATIVE, DISTRICT 33 STATE REPRESENTATIVE, DISTRICT 34 STATE REPRESENTATIVE, DISTRICT 35 STATE REPRESENTATIVE, DISTRICT 36 STATE REPRESENTATIVE, DISTRICT 37 STATE REPRESENTATIVE, DISTRICT 38 STATE REPRESENTATIVE, DISTRICT 39 STATE REPRESENTATIVE, DISTRICT 4 STATE REPRESENTATIVE, DISTRICT 40 STATE REPRESENTATIVE, DISTRICT 41 STATE REPRESENTATIVE, DISTRICT 42 STATE REPRESENTATIVE, DISTRICT 43 STATE REPRESENTATIVE, DISTRICT 44 STATE REPRESENTATIVE, DISTRICT 45

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 31 of 88

A
306 STATE/FEDERAL 307 STATE/FEDERAL 308 STATE/FEDERAL 309 STATE/FEDERAL 310 STATE/FEDERAL 311 STATE/FEDERAL 312 STATE/FEDERAL 313 STATE/FEDERAL 314 STATE/FEDERAL 315 STATE/FEDERAL 316 STATE/FEDERAL 317 STATE/FEDERAL 318 STATE/FEDERAL 319 STATE/FEDERAL 320 STATE/FEDERAL 321 STATE/FEDERAL 322 STATE/FEDERAL 323 STATE/FEDERAL 324 STATE/FEDERAL 325 STATE/FEDERAL 326 STATE/FEDERAL 327 STATE/FEDERAL 328 STATE/FEDERAL 329 STATE/FEDERAL 330 STATE/FEDERAL 331 STATE/FEDERAL 332 STATE/FEDERAL 333 STATE/FEDERAL 334 STATE/FEDERAL 335 STATE/FEDERAL 336 STATE/FEDERAL 337 STATE/FEDERAL 338 STATE/FEDERAL 339 STATE/FEDERAL 340 STATE/FEDERAL 341 STATE/FEDERAL 342 STATE/FEDERAL 343 STATE/FEDERAL 344 STATE/FEDERAL 345 STATE/FEDERAL 346 STATE/FEDERAL 347 STATE/FEDERAL 348 STATE/FEDERAL 349 STATE/FEDERAL 350 STATE/FEDERAL 351 STATE/FEDERAL

B
STATE REPRESENTATIVE, DISTRICT 46 STATE REPRESENTATIVE, DISTRICT 47 STATE REPRESENTATIVE, DISTRICT 48 STATE REPRESENTATIVE, DISTRICT 49 STATE REPRESENTATIVE, DISTRICT 5 STATE REPRESENTATIVE, DISTRICT 50 STATE REPRESENTATIVE, DISTRICT 51 STATE REPRESENTATIVE, DISTRICT 52 STATE REPRESENTATIVE, DISTRICT 53 STATE REPRESENTATIVE, DISTRICT 54 STATE REPRESENTATIVE, DISTRICT 55 STATE REPRESENTATIVE, DISTRICT 56 STATE REPRESENTATIVE, DISTRICT 57 STATE REPRESENTATIVE, DISTRICT 58 STATE REPRESENTATIVE, DISTRICT 59 STATE REPRESENTATIVE, DISTRICT 6 STATE REPRESENTATIVE, DISTRICT 60 STATE REPRESENTATIVE, DISTRICT 61 STATE REPRESENTATIVE, DISTRICT 62 STATE REPRESENTATIVE, DISTRICT 63 STATE REPRESENTATIVE, DISTRICT 64 STATE REPRESENTATIVE, DISTRICT 65 STATE REPRESENTATIVE, DISTRICT 66 STATE REPRESENTATIVE, DISTRICT 67 STATE REPRESENTATIVE, DISTRICT 68 STATE REPRESENTATIVE, DISTRICT 69 STATE REPRESENTATIVE, DISTRICT 7 STATE REPRESENTATIVE, DISTRICT 70 STATE REPRESENTATIVE, DISTRICT 71 STATE REPRESENTATIVE, DISTRICT 72 STATE REPRESENTATIVE, DISTRICT 73 STATE REPRESENTATIVE, DISTRICT 74 STATE REPRESENTATIVE, DISTRICT 75 STATE REPRESENTATIVE, DISTRICT 76 STATE REPRESENTATIVE, DISTRICT 77 STATE REPRESENTATIVE, DISTRICT 78 STATE REPRESENTATIVE, DISTRICT 79 STATE REPRESENTATIVE, DISTRICT 8 STATE REPRESENTATIVE, DISTRICT 80 STATE REPRESENTATIVE, DISTRICT 81 STATE REPRESENTATIVE, DISTRICT 82 STATE REPRESENTATIVE, DISTRICT 83 STATE REPRESENTATIVE, DISTRICT 84 STATE REPRESENTATIVE, DISTRICT 85 STATE REPRESENTATIVE, DISTRICT 86 STATE REPRESENTATIVE, DISTRICT 87

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 32 of 88

A
352 STATE/FEDERAL 353 STATE/FEDERAL 354 STATE/FEDERAL 355 STATE/FEDERAL 356 STATE/FEDERAL 357 STATE/FEDERAL 358 STATE/FEDERAL 359 STATE/FEDERAL 360 STATE/FEDERAL 361 STATE/FEDERAL 362 STATE/FEDERAL 363 STATE/FEDERAL 364 STATE/FEDERAL 365 STATE/FEDERAL 366 STATE/FEDERAL 367 STATE/FEDERAL 368 STATE/FEDERAL 369 STATE/FEDERAL 370 STATE/FEDERAL 371 STATE/FEDERAL 372 STATE/FEDERAL 373 STATE/FEDERAL 374 STATE/FEDERAL 375 STATE/FEDERAL 376 STATE/FEDERAL 377 STATE/FEDERAL 378 STATE/FEDERAL 379 STATE/FEDERAL 380 STATE/FEDERAL 381 STATE/FEDERAL 382 STATE/FEDERAL 383 STATE/FEDERAL 384 STATE/FEDERAL 385 STATE/FEDERAL 386 STATE/FEDERAL 387 STATE/FEDERAL 388 STATE/FEDERAL 389 STATE/FEDERAL 390 STATE/FEDERAL 391 STATE/FEDERAL 392 STATE/FEDERAL 393 STATE/FEDERAL 394 STATE/FEDERAL 395 STATE/FEDERAL 396 STATE/FEDERAL 397 STATE/FEDERAL

B
STATE REPRESENTATIVE, DISTRICT 88 STATE REPRESENTATIVE, DISTRICT 89 STATE REPRESENTATIVE, DISTRICT 9 STATE REPRESENTATIVE, DISTRICT 90 STATE REPRESENTATIVE, DISTRICT 91 STATE REPRESENTATIVE, DISTRICT 92 STATE REPRESENTATIVE, DISTRICT 93 STATE REPRESENTATIVE, DISTRICT 94 STATE REPRESENTATIVE, DISTRICT 95 STATE REPRESENTATIVE, DISTRICT 96 STATE REPRESENTATIVE, DISTRICT 97 STATE REPRESENTATIVE, DISTRICT 98 STATE REPRESENTATIVE, DISTRICT 99
STATE SENATOR, DISTRICT 1 STATE SENATOR, DISTRICT 10 STATE SENATOR, DISTRICT 11 STATE SENATOR, DISTRICT 12 STATE SENATOR, DISTRICT 13 STATE SENATOR, DISTRICT 14 STATE SENATOR, DISTRICT 15 STATE SENATOR, DISTRICT 16 STATE SENATOR, DISTRICT 17 STATE SENATOR, DISTRICT 18 STATE SENATOR, DISTRICT 19 STATE SENATOR, DISTRICT 2 STATE SENATOR, DISTRICT 20 STATE SENATOR, DISTRICT 21 STATE SENATOR, DISTRICT 22 STATE SENATOR, DISTRICT 23 STATE SENATOR, DISTRICT 24 STATE SENATOR, DISTRICT 25 STATE SENATOR, DISTRICT 26 STATE SENATOR, DISTRICT 27 STATE SENATOR, DISTRICT 28 STATE SENATOR, DISTRICT 29 STATE SENATOR, DISTRICT 3 STATE SENATOR, DISTRICT 30 STATE SENATOR, DISTRICT 31 STATE SENATOR, DISTRICT 32 STATE SENATOR, DISTRICT 33 STATE SENATOR, DISTRICT 34 STATE SENATOR, DISTRICT 35 STATE SENATOR, DISTRICT 36 STATE SENATOR, DISTRICT 37 STATE SENATOR, DISTRICT 38 STATE SENATOR, DISTRICT 39

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 33 of 88

A
398 STATE/FEDERAL
399 STATE/FEDERAL 400 STATE/FEDERAL 401 STATE/FEDERAL 402 STATE/FEDERAL 403 STATE/FEDERAL 404 STATE/FEDERAL 405 STATE/FEDERAL 406 STATE/FEDERAL 407 STATE/FEDERAL 408 STATE/FEDERAL 409 STATE/FEDERAL 410 STATE/FEDERAL 411 STATE/FEDERAL 412 STATE/FEDERAL 413 STATE/FEDERAL 414 STATE/FEDERAL 415 STATE/FEDERAL 416 STATE/FEDERAL 417 STATE/FEDERAL 418 STATE/FEDERAL 419 STATE/FEDERAL 420 STATE/FEDERAL 421 STATE/FEDERAL
422 STATE/FEDERAL
423 STATE/FEDERAL
424 STATE/FEDERAL
425 STATE/FEDERAL
426 STATE/FEDERAL
427 STATE/FEDERAL
428 STATE/FEDERAL
429 STATE/FEDERAL
430 STATE/FEDERAL
431 STATE/FEDERAL
432 STATE/FEDERAL
433 STATE/FEDERAL
434 STATE/FEDERAL
435 STATE/FEDERAL 436 STATE/FEDERAL

B
STATE SENATOR, DISTRICT 4 STATE SENATOR, DISTRICT 4 (TO FILL THE
UNEXPIRED TERM) STATE SENATOR, DISTRICT 40
STATE SENATOR, DISTRICT 41
STATE SENATOR, DISTRICT 42
STATE SENATOR, DISTRICT 43
STATE SENATOR, DISTRICT 44
STATE SENATOR, DISTRICT 45
STATE SENATOR, DISTRICT 46
STATE SENATOR, DISTRICT 47
STATE SENATOR, DISTRICT 48
STATE SENATOR, DISTRICT 49
STATE SENATOR, DISTRICT 5
STATE SENATOR, DISTRICT 50
STATE SENATOR, DISTRICT 51
STATE SENATOR, DISTRICT 52
STATE SENATOR, DISTRICT 53
STATE SENATOR, DISTRICT 54
STATE SENATOR, DISTRICT 55
STATE SENATOR, DISTRICT 56
STATE SENATOR, DISTRICT 6
STATE SENATOR, DISTRICT 7
STATE SENATOR, DISTRICT 8
STATE SENATOR, DISTRICT 9 UNITED STATES REPRESENTATIVE, DISTRICT
1 UNITED STATES REPRESENTATIVE, DISTRICT
10 UNITED STATES REPRESENTATIVE, DISTRICT
11 UNITED STATES REPRESENTATIVE, DISTRICT
12 UNITED STATES REPRESENTATIVE, DISTRICT
13 UNITED STATES REPRESENTATIVE, DISTRICT
14 UNITED STATES REPRESENTATIVE, DISTRICT
2 UNITED STATES REPRESENTATIVE, DISTRICT
3 UNITED STATES REPRESENTATIVE, DISTRICT
4 UNITED STATES REPRESENTATIVE, DISTRICT
5 UNITED STATES REPRESENTATIVE, DISTRICT
6 UNITED STATES REPRESENTATIVE, DISTRICT
7 UNITED STATES REPRESENTATIVE, DISTRICT
8 UNITED STATES REPRESENTATIVE, DISTRICT
9 UNITED STATES SENATOR%, PERDUE

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 34 of 88

A
437 APPLING 438 APPLING 439 APPLING 440 APPLING 441 APPLING 442 APPLING 443 APPLING 444 APPLING 445 APPLING 446 APPLING 447 APPLING 448 APPLING 449 ATKINSON 450 ATKINSON 451 ATKINSON 452 ATKINSON 453 ATKINSON 454 ATKINSON 455 ATKINSON 456 ATKINSON 457 ATKINSON 458 ATKINSON 459 ATKINSON 460 ATKINSON 461 BACON 462 BACON 463 BACON 464 BACON 465 BACON 466 BACON 467 BACON 468 BACON 469 BACON 470 BACON 471 BACON 472 BACON 473 BACON
474 BAKER
475 BAKER
476 BAKER
477 BAKER
478 BAKER
479 BAKER

B
BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 4 BOARD OF COMMISSIONERS, DISTRICT 5
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5
CLERK OF SUPERIOR COURT CORONER
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION MEMBER, DISTRICT 2 BOARD OF EDUCATION MEMBER, DISTRICT 4 BOARD OF EDUCATION MEMBER, DISTRICT 5 COUNTY COMMISSION, DISTRICT 1 COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 5 COUNTY CORONER COUNTY SURVEYOR
PROBATE JUDGE SHERIFF
SUPERIOR COURT CLERK TAX COMMISSIONER
BOARD OF EDUCATION DISTRICT 4 BOARD OF EDUCATION, CHAIRMAN BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BAKER COUNTY BOARD OF COMMISSIONERS,
ANNA DISTRICT BAKER COUNTY BOARD OF COMMISSIONERS,
ELMODEL BAKER COUNTY BOARD OF COMMISSIONERS,
HOGGARDS MILL BAKER COUNTY BOARD OF COMMISSIONERS,
MILFORD BAKER COUNTY BOARD OF COMMISSIONERS,
NEWTON BAKER COUNTY BOARD OF EDUCATION, ANNA
DISTRICT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 35 of 88

A
480 BAKER
481 BAKER
482 BAKER
483 BAKER 484 BAKER 485 BAKER 486 BAKER 487 BAKER 488 BAKER 489 BALDWIN 490 BALDWIN 491 BALDWIN 492 BALDWIN 493 BALDWIN 494 BALDWIN 495 BALDWIN 496 BALDWIN 497 BALDWIN 498 BALDWIN 499 BALDWIN 500 BALDWIN 501 BALDWIN 502 BALDWIN 503 BANKS 504 BANKS 505 BANKS 506 BANKS 507 BANKS 508 BANKS 509 BANKS 510 BANKS 511 BANKS 512 BANKS 513 BANKS 514 BANKS 515 BANKS 516 BARROW 517 BARROW 518 BARROW
519 BARROW 520 BARROW 521 BARROW 522 BARROW

B
BAKER COUNTY BOARD OF EDUCATION, ELMODEL
BAKER COUNTY BOARD OF EDUCATION, HOGGARDS MILL
BAKER COUNTY BOARD OF EDUCATION, MILFORD
BAKER COUNTY BOARD OF EDUCATION, NEWTON
CLERK OF SUPERIOR COURT CORONER
PROBATE/MAGISTRATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SOLICITOR GENERAL SURVEYOR
BOARD OF EDUCATION, POST 1 BOARD OF EDUCATION, POST 2 BOARD OF EDUCATION, POST 4
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER CHAIR COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, DISTRICT 6
BOARD OF EDUCATION, DISTRICT 8 AT LARGE
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 36 of 88

A
523 BARROW 524 BARROW 525 BARROW 526 BARROW 527 BARROW 528 BARROW 529 BARROW 530 BARTOW 531 BARTOW 532 BARTOW 533 BARTOW 534 BARTOW 535 BARTOW 536 BARTOW 537 BARTOW 538 BARTOW 539 BARTOW 540 BEN HILL 541 BEN HILL 542 BEN HILL 543 BEN HILL 544 BEN HILL 545 BEN HILL 546 BEN HILL 547 BEN HILL 548 BEN HILL 549 BEN HILL 550 BEN HILL 551 BEN HILL 552 BERRIEN 553 BERRIEN 554 BERRIEN 555 BERRIEN 556 BERRIEN 557 BERRIEN 558 BERRIEN 559 BERRIEN 560 BERRIEN 561 BERRIEN 562 BERRIEN 563 BERRIEN 564 BIBB 565 BIBB 566 BIBB 567 BIBB 568 BIBB

B
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 4 COUNTY BOARD OF EDUCATION, DISTRICT 5
PROBATE JUDGE SHERIFF
SOLE COUNTY COMMISSIONER SURVEYOR
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER AT LARGE COUNTY COMMISSIONER, DISTRICT 2 POST 1 COUNTY COMMISSIONER, DISTRICT 3 POST 2
MAGISTRATE JUDGE PROBATE JUDGE
SCHOOL BOARD, DISTRICT 4 SCHOOL BOARD, DISTRICT 5 SCHOOL BOARD, DISTRICT 6
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 6 BOARD OF EDUCATION, DISTRICT 7 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 4 LRG COUNTY COMMISSIONER, DISTRICT 5 LRG
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 37 of 88

A
569 BIBB 570 BIBB 571 BIBB 572 BIBB 573 BIBB 574 BIBB 575 BIBB 576 BIBB 577 BIBB 578 BIBB 579 BIBB 580 BIBB 581 BIBB 582 BIBB 583 BIBB 584 BIBB 585 BIBB 586 BIBB 587 BIBB 588 BLECKLEY 589 BLECKLEY 590 BLECKLEY 591 BLECKLEY 592 BLECKLEY 593 BLECKLEY 594 BLECKLEY 595 BLECKLEY 596 BLECKLEY 597 BLECKLEY 598 BLECKLEY 599 BRANTLEY 600 BRANTLEY 601 BRANTLEY 602 BRANTLEY 603 BRANTLEY 604 BRANTLEY 605 BRANTLEY 606 BRANTLEY 607 BRANTLEY 608 BRANTLEY 609 BRANTLEY 610 BRANTLEY 611 BRANTLEY 612 BROOKS 613 BROOKS 614 BROOKS

B
BOARD OF EDUCATION, DISTRICT 6 CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5 COUNTY COMMISSIONER, DISTRICT 6 COUNTY COMMISSIONER, DISTRICT 7 COUNTY COMMISSIONER, DISTRICT 8 COUNTY COMMISSIONER, DISTRICT 9
JUDGE OF PROBATE COURT MAYOR SHERIFF
SOLICITOR OF STATE COURT TAX COMMISSIONER
WATER AUTHORITY, DISTRICT 2 WATER AUTHORITY, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF SOLE COMMISSIONER
SURVEYOR TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION POST 3 COUNTY BOARD OF EDUCATION, POST 1 COUNTY BOARD OF EDUCATION, POST 5
COUNTY COMMISSIONER CHAIRMAN COUNTY COMMISSIONER POST 2 COUNTY COMMISSIONER POST 3 PROBATE SHERIFF SURVEYOR TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 38 of 88

A
615 BROOKS 616 BROOKS 617 BROOKS 618 BROOKS 619 BROOKS 620 BROOKS 621 BROOKS 622 BROOKS 623 BROOKS 624 BROOKS 625 BROOKS
626 BRYAN 627 BRYAN 628 BRYAN
629 BRYAN
630 BRYAN 631 BRYAN 632 BRYAN 633 BRYAN 634 BRYAN 635 BRYAN 636 BRYAN 637 BRYAN 638 BRYAN 639 BULLOCH 640 BULLOCH 641 BULLOCH 642 BULLOCH 643 BULLOCH 644 BULLOCH 645 BULLOCH
646 BULLOCH
647 BULLOCH
648 BULLOCH 649 BULLOCH 650 BULLOCH 651 BULLOCH 652 BULLOCH 653 BULLOCH 654 BULLOCH 655 BURKE 656 BURKE 657 BURKE

B
BOARD OF EDUCATION, LRG CHIEF MAGISTRATE
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR JUDGE OF PROBATE COURT
JUDGE OF STATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3, POST 5
SPECIAL CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 2,
POST 4 COUNTY BOARD OF EDUCATION, VICE
CHAIRMAN POST 2 COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3
PROBATE JUDGE SHERIFF
SOLICITOR - GENERAL STATE COURT JUDGE TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 7 BOARD OF EDUCATION, DISTRICT 8 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, CHAIRMAN
COUNTY COMMISSIONER, DISTRICT 1, SEAT A
COUNTY COMMISSIONER, DISTRICT 2, SEAT A
COUNTY COMMISSIONER, DISTRICT 2, SEAT C
COUNTY SURVEYOR MAGISTRATE COURT CHIEF JUDGE
PROBATE JUDGE SHERIFF
SOLICITOR-GENERAL TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF THE SUPERIOR COURT
CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 39 of 88

A
658 BURKE 659 BURKE 660 BURKE 661 BURKE 662 BURKE 663 BURKE 664 BURKE 665 BURKE 666 BURKE 667 BUTTS 668 BUTTS 669 BUTTS 670 BUTTS 671 BUTTS 672 BUTTS 673 BUTTS 674 BUTTS 675 BUTTS 676 BUTTS 677 BUTTS 678 BUTTS 679 CALHOUN 680 CALHOUN 681 CALHOUN 682 CALHOUN 683 CALHOUN 684 CALHOUN 685 CALHOUN 686 CALHOUN 687 CALHOUN 688 CALHOUN 689 CALHOUN 690 CALHOUN 691 CALHOUN 692 CAMDEN 693 CAMDEN 694 CAMDEN 695 CAMDEN 696 CAMDEN 697 CAMDEN 698 CAMDEN 699 CAMDEN 700 CAMDEN 701 CAMDEN 702 CAMDEN 703 CAMDEN

B
COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 4
COUNTY COMMISSIONER - DISTRICT 1 COUNTY COMMISSIONER - DISTRICT 3 COUNTY COMMISSIONER - DISTRICT 5 JUDGE OF STATE COURT OF BURKE COUNTY
JUDGE OF THE PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, LRG CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 4 COUNYT COMMISSIONER, DISTRICT 2 JUDGE OF PROBATE/MAGISTRATE COURT
SHERIFF TAX COMMISSIONER BOARD OF COMMISSION, DISTRICT 5 BOARD OF COMMISSIONER DISTRICT 3 BOARD OF COMMISSIONERS, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER PROBATE JUDGE
SHERIFF TAX COMMISSIONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 40 of 88

A
704 CANDLER 705 CANDLER 706 CANDLER 707 CANDLER 708 CANDLER 709 CANDLER 710 CANDLER 711 CANDLER 712 CANDLER 713 CANDLER 714 CANDLER 715 CANDLER 716 CANDLER 717 CANDLER 718 CARROLL 719 CARROLL 720 CARROLL 721 CARROLL 722 CARROLL 723 CARROLL 724 CARROLL 725 CARROLL 726 CARROLL 727 CARROLL 728 CARROLL 729 CARROLL 730 CARROLL 731 CARROLL 732 CARROLL 733 CARROLL 734 CARROLL 735 CATOOSA 736 CATOOSA 737 CATOOSA
738 CATOOSA
739 CATOOSA 740 CATOOSA 741 CATOOSA 742 CATOOSA 743 CATOOSA 744 CATOOSA 745 CATOOSA 746 CATOOSA 747 CHARLTON 748 CHARLTON

B
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSION, DISTRICT 1 COUNTY COMMISSION, DISTRICT 3
COUNTY SURVEYOR JUDGE OF PROBATE COURT
JUDGE OF STATE COURT SCHOOL BOARD MEMBER, DISTRICT 1 SCHOOL BOARD MEMBER, DISTRICT 3 SCHOOL BOARD MEMBER, DISTRICT 5
SHERIFF SOLICITOR GENERAL TAX COMMISSIONER CHAIRMAN, COUNTY COMMISSION CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 4 COUNTY BOARD OF EDUCATION, DISTRICT 6
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR PROBATE JUDGE SHERIFF SOLICITOR
STATE COURT JUDGE TAX COMMISSIONER BOARD EDUCATION AT LARGE BOARD OF EDUCATION DISTRICT 1 BOARD OF EDUCATION DISTRICT 3 CHAIRMAN OF THE BOARD OF
COMMISSIONERS CHIEF MAGISTRATE OF THE MAGISTRATE
COURT CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 3
PROBATE JUDGE SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 41 of 88

A
749 CHARLTON 750 CHARLTON 751 CHARLTON 752 CHARLTON 753 CHARLTON 754 CHARLTON 755 CHARLTON 756 CHARLTON 757 CHATHAM 758 CHATHAM 759 CHATHAM 760 CHATHAM 761 CHATHAM 762 CHATHAM 763 CHATHAM 764 CHATHAM 765 CHATHAM 766 CHATHAM 767 CHATHAM 768 CHATHAM 769 CHATHAM 770 CHATHAM 771 CHATHAM 772 CHATHAM 773 CHATHAM 774 CHATHAM 775 CHATHAM 776 CHATHAM 777 CHATHAM 778 CHATHAM 779 CHATHAM 780 CHATHAM 781 CHATTAHOOCHEE 782 CHATTAHOOCHEE 783 CHATTAHOOCHEE 784 CHATTAHOOCHEE 785 CHATTAHOOCHEE 786 CHATTAHOOCHEE 787 CHATTAHOOCHEE 788 CHATTAHOOCHEE 789 CHATTAHOOCHEE 790 CHATTAHOOCHEE 791 CHATTAHOOCHEE 792 CHATTAHOOCHEE 793 CHATTAHOOCHEE 794 CHATTOOGA

B
COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 3
PROBATE/MAGISTRATE JUDGE SCHOOL BOARD DISTRICT 2 SCHOOL BOARD DISTRICT 4 SHERIFF STATE COURT JUDGE TAX COMMISSIONER CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSION, DISTRICT 1 COUNTY COMMISSION, DISTRICT 2 COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 4 COUNTY COMMISSION, DISTRICT 5 COUNTY COMMISSION, DISTRICT 6 COUNTY COMMISSION, DISTRICT 7 COUNTY COMMISSION, DISTRICT 8 JUDGE OF STATE COURT (COOLIDGE) JUDGE OF STATE COURT (FOWLER)
JUDGE OF STATE COURT (SAPP) MAGISTRATE JUDGE
PROBATE COURT JUDGE RECORDERS COURT JUDGE (ODELL)
SCHOOL BOARD, DISTRICT 1 SCHOOL BOARD, DISTRICT 2 SCHOOL BOARD, DISTRICT 3 SCHOOL BOARD, DISTRICT 7
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION - POST 1 BOARD OF EDUCATION - POST 3 BOARD OF EDUCATION - POST 5 BOARD OF EDUCATION, POST 2 BOARD OF EDUCATION, POST 4 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER - POST 1 COUNTY COMMISSIONER - POST 2
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 42 of 88

A
795 CHATTOOGA 796 CHATTOOGA 797 CHATTOOGA 798 CHATTOOGA 799 CHATTOOGA 800 CHATTOOGA 801 CHATTOOGA 802 CHATTOOGA 803 CHATTOOGA 804 CHEROKEE 805 CHEROKEE 806 CHEROKEE 807 CHEROKEE 808 CHEROKEE 809 CHEROKEE 810 CHEROKEE 811 CHEROKEE 812 CHEROKEE 813 CHEROKEE
814 CHEROKEE
815 CHEROKEE 816 CHEROKEE 817 CHEROKEE 818 CLARKE 819 CLARKE 820 CLARKE 821 CLARKE 822 CLARKE 823 CLARKE 824 CLARKE 825 CLARKE 826 CLARKE 827 CLARKE 828 CLARKE 829 CLARKE 830 CLARKE 831 CLARKE 832 CLARKE 833 CLARKE 834 CLARKE 835 CLAY 836 CLAY 837 CLAY 838 CLAY 839 CLAY

B
BOARD OF EDUCATION, DISTRICT 5 CHAIRMAN, COUNTY COMMISSION
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF SOLICITOR GENERAL TAX COMMISSIONER BOARD OF EDUCATION CHAIRPERSON BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT SHERIFF
STATE COURT JUDGE (TO SUCCEED ALLEN DEE MORRIS)
STATE COURT JUDGE (TO SUCCEED MICHELLE HOLBROOK HOMIER) SURVEYOR TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6 BOARD OF EDUCATION, DISTRICT 8
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 10 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 6 COUNTY COMMISSIONER, DISTRICT 8
JUDGE OF PROBATE COURT JUDGE OF STATE COURT JUDGE OF STATE COURT 2 SHERIFF TAX COMMISSIONER
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 43 of 88

A
840 CLAY 841 CLAY 842 CLAY 843 CLAY 844 CLAY 845 CLAYTON 846 CLAYTON
847 CLAYTON
848 CLAYTON
849 CLAYTON
850 CLAYTON
851 CLAYTON 852 CLAYTON 853 CLAYTON 854 CLAYTON 855 CLAYTON
856 CLAYTON
857 CLAYTON
858 CLAYTON 859 CLAYTON 860 CLAYTON
861 CLINCH
862 CLINCH
863 CLINCH
864 CLINCH
865 CLINCH
866 CLINCH 867 CLINCH 868 CLINCH 869 CLINCH 870 CLINCH 871 CLINCH 872 COBB 873 COBB 874 COBB 875 COBB 876 COBB 877 COBB 878 COBB 879 COBB

B
MEMBER, BOARD OF EDUCATION, DISTRICT 3
MEMBER, BOARD OF EDUCATION, DISTRICT 4
MEMBER, BOARD OF EDUCATION, DISTRICT 5
PROBATE JUDGE
TAX COMMISSIONER
FOR CHIEF MAGISTRATE
FOR CLERK OF SUPERIOR COURT FOR COUNTY BOARD OF EDUCATION
DISTRICT 2 FOR COUNTY BOARD OF EDUCATION
DISTRICT 3 FOR COUNTY BOARD OF EDUCATION
DISTRICT 5 FOR COUNTY BOARD OF EDUCATION
DISTRICT 6 FOR COUNTY BOARD OF EDUCATION
DISTRICT 7 FOR COUNTY COMMISSION CHAIRMAN
FOR COUNTY COMMISSIONER DISTRICT 2
FOR COUNTY COMMISSIONER DISTRICT 3
FOR JUDGE OF PROBATE COURT FOR JUDGE OF STATE COURT OF CLAYTON COUNTY (TO SUCCEED SHALONDA PARKER) FOR JUDGE OF STATE COURT OF CLAYTON
COUNTY(TO SUCCEED LINDA S. COWEN) FOR SOLICITOR-GENERAL OF CLAYTON
COUNTY FOR TAX COMMISSIONER
SHERIFF CLINCH COUNTY BOARD OF COMMISSIONERS
POST 3 CLINCH COUNTY BOARD OF COMMISSIONERS,
POST 2 CLINCH COUNTY BOARD OF COMMISSIONERS,
POST 5 CLINCH COUNTY BOARD OF EDUCATION,
POST 2 CLINCH COUNTY BOARD OF EDUCATION,
POST 3 CLINCH COUNTY BOARD OF EDUCATION,
POST 5 CLINCH COUNTY CLERK OF COURT
CLINCH COUNTY CORONER
CLINCH COUNTY PROBATE JUDGE
CLINCH COUNTY SHERIFF
CLINCH COUNTY TAX COMMISSIONER
CHAIRMAN BOARD OF COMMISSIONERS
CHIEF MAGISTRATE
CLERK OF STATE COURT OF COBB COUNTY
CLERK OF SUPERIOR COURT
COBB COUNTY COMMISSIONER, DISTRICT 2
COBB COUNTY COMMISSIONER, DISTRICT 4
COBB COUNTY SCHOOL BOARD, DISTRICT 1
COBB COUNTY SCHOOL BOARD, DISTRICT 3

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 44 of 88

A
880 COBB 881 COBB 882 COBB 883 COBB
884 COBB
885 COBB
886 COBB
887 COBB
888 COBB
889 COBB
890 COBB
891 COBB 892 COBB 893 COBB 894 COBB 895 COFFEE 896 COFFEE 897 COFFEE 898 COFFEE 899 COFFEE 900 COFFEE 901 COFFEE 902 COFFEE 903 COFFEE 904 COFFEE 905 COFFEE 906 COFFEE 907 COFFEE 908 COLQUITT 909 COLQUITT 910 COLQUITT 911 COLQUITT 912 COLQUITT 913 COLQUITT 914 COLQUITT 915 COLQUITT 916 COLQUITT 917 COLQUITT 918 COLQUITT 919 COLQUITT 920 COLQUITT 921 COLUMBIA

B
COBB COUNTY SCHOOL BOARD, DISTRICT 5 COBB COUNTY SCHOOL BOARD, DISTRICT 7
COUNTY COMMISSIONER, DISTRICT 2 JUDGE OF PROBATE COURT
JUDGE OF STATE COURT OF COBB COUNTY, DIV II POST 2
JUDGE OF STATE COURT OF COBB COUNTY, DIV II POST 5
JUDGE OF STATE COURT OF COBB COUNTY, POST 1
JUDGE OF STATE COURT OF COBB COUNTY, POST 2
JUDGE OF STATE COURT OF COBB COUNTY, POST 3
JUDGE OF STATE COURT OF COBB COUNTY, POST 4
JUDGE OF STATE COURT OF COBB COUNTY, POST 6
JUDGE OF STATE COURT OF COBB COUNTY, POST 7 SHERIFF
SURVEYOR TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
STATE COURT JUDGE SURVEYOR
TAX COMMISSIONER BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 4
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 6
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 6 JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR GENERAL TAX COMMISSIONER
BOARD OF EDUCATION, CHAIRPERSON

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 45 of 88

A
922 COLUMBIA 923 COLUMBIA 924 COLUMBIA 925 COLUMBIA 926 COLUMBIA 927 COLUMBIA 928 COLUMBIA 929 COLUMBIA 930 COLUMBIA 931 COLUMBIA 932 COOK 933 COOK 934 COOK 935 COOK 936 COOK 937 COOK 938 COOK 939 COOK 940 COOK 941 COWETA 942 COWETA 943 COWETA 944 COWETA
945 COWETA 946 COWETA 947 COWETA 948 COWETA 949 COWETA 950 COWETA 951 COWETA 952 COWETA 953 COWETA 954 COWETA 955 COWETA 956 CRAWFORD 957 CRAWFORD 958 CRAWFORD 959 CRAWFORD 960 CRAWFORD 961 CRAWFORD 962 CRAWFORD 963 CRAWFORD 964 CRAWFORD 965 CRAWFORD 966 CRAWFORD

B
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 4
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 4
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4
CLERK OF SUPERIOR COURT CORONER
JUDGE OF PROBATE COURT TAX COMMISSIONER CHIEF MAGISTRATE
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION DISTRICT 2 COUNTY BOARD OF EDUCATION DISTRICT 2
AT LARGE COUNTY BOARD OF EDUCATION DISTRICT 5
COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 4 COUNTY COMMISSIONER DISTRICT 5
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR GENERAL SURVEYOR TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
JUDGE, PROBATE COURT SHERIFF

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 46 of 88

A
967 CRAWFORD
968 CRISP
969 CRISP
970 CRISP
971 CRISP 972 CRISP 973 CRISP 974 CRISP 975 CRISP 976 CRISP 977 CRISP 978 DADE 979 DADE 980 DADE 981 DADE 982 DADE 983 DADE
984 DADE 985 DADE 986 DADE 987 DADE 988 DADE 989 DADE 990 DAWSON 991 DAWSON 992 DAWSON 993 DAWSON 994 DAWSON 995 DAWSON 996 DAWSON 997 DAWSON 998 DAWSON 999 DAWSON 1000 DAWSON 1001 DAWSON 1002 DECATUR 1003 DECATUR 1004 DECATUR 1005 DECATUR 1006 DECATUR 1007 DECATUR 1008 DECATUR 1009 DECATUR

B
TAX COMMISSIONER BOARD OF COMMISSIONER - DISTRICT 1,
POST 2 BOARD OF COMMISSIONER - DISTRICT 2,
POST 1 BOARD OF EDUCATION, CITY OF CORDELE
DISTRICT BOARD OF EDUCATION, WEST CRISP
DISTRICT CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER CHAIRPERSON / COUNTY EXECUTIVE CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION DISTRICT 3 COUNTY BOARD OF EDUCATION DISTRICT 4 COUNTY BOARD OF EDUCATION DISTRICT 5,
AT LARGE COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 4
PROBATE COURT JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT COUNTY COMMISSION, CHAIRPERSON COUNTY COMMISSION, DISTRICT 2 COUNTY COMMISSION, DISTRICT 4 JUDGE OF THE PROBATE COURT
SHERIFF SURVEYOR TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CHIEF MAGISTRATE CLERK OF COURT CORONER COUNTY COMMISSION, DISTRICT 5 COUNTY COMMISSIONER, DISTRICT 2

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 47 of 88

A
1010 DECATUR 1011 DECATUR 1012 DECATUR 1013 DECATUR 1014 DECATUR
1015 DEKALB
1016 DEKALB
1017 DEKALB 1018 DEKALB 1019 DEKALB 1020 DEKALB 1021 DEKALB 1022 DEKALB 1023 DEKALB 1024 DEKALB 1025 DEKALB 1026 DEKALB 1027 DEKALB 1028 DEKALB
1029 DEKALB
1030 DEKALB
1031 DEKALB
1032 DEKALB 1033 DEKALB 1034 DEKALB 1035 DEKALB 1036 DEKALB 1037 DODGE 1038 DODGE 1039 DODGE 1040 DODGE 1041 DODGE 1042 DODGE 1043 DODGE 1044 DODGE 1045 DODGE 1046 DODGE 1047 DODGE 1048 DODGE 1049 DOOLY 1050 DOOLY 1051 DOOLY 1052 DOOLY

B
COUNTY COMMISSIONER, DISTRICT 3 PROBATE JUDGE SHERIFF
STATE COURT JUDGE TAX COMMISSIONER ASSOCIATE JUDGE OF STATE COURT (TO SUCCEED BRIAN ROSS) ASSOCIATE JUDGE OF STATE COURT (TO SUCCEED KIESHA R. STOREY) ASSOCIATE JUDGE OF STATE COURT (TO SUCCEED RONALD B. RAMSEY, SR.) BOARD OF COMMISSIONERS DISTRICT 1 BOARD OF COMMISSIONERS DISTRICT 4 BOARD OF COMMISSIONERS DISTRICT 5 BOARD OF COMMISSIONERS DISTRICT 6 BOARD OF EDUCATION DISTRICT 1 BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 5 BOARD OF EDUCATION DISTRICT 7 CHIEF EXECUTIVE OFFICER (CEO) CHIEF MAGISTRATE CLERK OF SUPERIOR COURT JUDGE OF STATE COURT (TO SUCCEED DAX
E. LOPEZ) JUDGE OF STATE COURT (TO SUCCEED JANIS
C. GORDON) JUDGE OF STATE COURT (TO SUCCEED MIKE
JACOBS) JUDGE OF STATE COURT (TO SUCCEED
WAYNE M. PURDOM) PROBATE JUDGE SHERIFF SOLICITOR
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSION DISTRICT 1 COUNTY COMMISSION DISTRICT 4
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 2 BOARD OF EDUCATION DISTRICT 4
CLERK OF SUPERIOR COURT CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 48 of 88

A
1053 DOOLY 1054 DOOLY 1055 DOOLY 1056 DOOLY 1057 DOOLY 1058 DOUGHERTY 1059 DOUGHERTY 1060 DOUGHERTY 1061 DOUGHERTY 1062 DOUGHERTY 1063 DOUGHERTY 1064 DOUGHERTY 1065 DOUGHERTY 1066 DOUGHERTY 1067 DOUGHERTY 1068 DOUGHERTY 1069 DOUGHERTY 1070 DOUGLAS 1071 DOUGLAS 1072 DOUGLAS 1073 DOUGLAS 1074 DOUGLAS 1075 DOUGLAS 1076 DOUGLAS 1077 DOUGLAS 1078 DOUGLAS 1079 DOUGLAS 1080 DOUGLAS 1081 EARLY 1082 EARLY 1083 EARLY 1084 EARLY 1085 EARLY 1086 EARLY 1087 EARLY 1088 EARLY 1089 EARLY 1090 EARLY 1091 EARLY 1092 EARLY 1093 EARLY 1094 ECHOLS 1095 ECHOLS 1096 ECHOLS 1097 ECHOLS 1098 ECHOLS

B
COUNTY COMMISSION DISTRICT 2 COUNTY COMMISSION DISTRICT 4
PROBATE JUDGE SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION, DISTRICT 1 COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 5
PROBATE COURT JUDGE SCHOOL BOARD MEMBER AT LARGE
SCHOOL BOARD, DISTRICT 1 SCHOOL BOARD, DISTRICT 5 SCHOOL BOARD. DISTRICT 3
SHERIFF STATE COURT JUDGE CLERK OF SUPERIOR COURT COMMISSION CHAIR COMMISSIONER, DISTRICT 2
CORONER JUDGE OF STATE COURT
PROBATE JUDGE SCHOOL BOARD MEMBER DISTRICT 1 SCHOOL BOARD MEMBER DISTRICT 5
SHERIFF STATE COURT JUDGE TAX COMMISSIONER BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 5 LRG CHAIRMAN, COUNTY COMMISSION CLERK OF SUPERIOR COURT
CORONER COUNTY SURVEYOR JUDGE OF STATE COURT MEMBER, BOARD OF EDUCATION, DISTRICT 1
PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, POST 4 BOARD OF EDUCATION, POST 5
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, POST 1

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 49 of 88

A
1099 ECHOLS
1100 ECHOLS 1101 ECHOLS 1102 ECHOLS 1103 ECHOLS 1104 EFFINGHAM 1105 EFFINGHAM 1106 EFFINGHAM 1107 EFFINGHAM 1108 EFFINGHAM 1109 EFFINGHAM 1110 EFFINGHAM 1111 EFFINGHAM 1112 EFFINGHAM 1113 EFFINGHAM 1114 EFFINGHAM 1115 EFFINGHAM 1116 ELBERT 1117 ELBERT 1118 ELBERT 1119 ELBERT 1120 ELBERT 1121 ELBERT 1122 ELBERT 1123 ELBERT 1124 ELBERT 1125 ELBERT 1126 ELBERT 1127 EMANUEL 1128 EMANUEL 1129 EMANUEL 1130 EMANUEL 1131 EMANUEL 1132 EMANUEL 1133 EMANUEL 1134 EMANUEL 1135 EMANUEL
1136 EMANUEL 1137 EMANUEL 1138 EMANUEL 1139 EVANS 1140 EVANS 1141 EVANS 1142 EVANS 1143 EVANS

B
COUNTY COMMISSIONER, POST 2 ECHOLS COUNTY BOARD OF EDUCATION,
POST 3 PROBATE JUDGE
SHERIFF TAX COMMISSIONER BOARD OF COMMISSIONERS, CHAIRMAN BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 4
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR GENERAL TAX COMMISSIONER
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION DISTRICT 1 COUNTY BOARD OF EDUCATION DISTRICT 3 COUNTY BOARD OF EDUCATION DISTRICT 7
COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 3
JUDGE OF MAGISTRATE COURT JUDGE OF THE PROBATE COURT JUDGE OF THE STATE COURT OF EMANUEL
COUNTY SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6 CLERK OF SUPERIOR COURT CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 50 of 88

A
1144 EVANS 1145 EVANS 1146 EVANS 1147 EVANS 1148 EVANS 1149 EVANS 1150 EVANS 1151 EVANS 1152 FANNIN 1153 FANNIN 1154 FANNIN
1155 FANNIN
1156 FANNIN
1157 FANNIN 1158 FANNIN 1159 FANNIN 1160 FANNIN 1161 FANNIN 1162 FANNIN 1163 FANNIN 1164 FAYETTE 1165 FAYETTE 1166 FAYETTE 1167 FAYETTE 1168 FAYETTE 1169 FAYETTE 1170 FAYETTE 1171 FAYETTE 1172 FAYETTE 1173 FAYETTE 1174 FAYETTE 1175 FAYETTE 1176 FAYETTE 1177 FAYETTE 1178 FAYETTE 1179 FAYETTE
1180 FLOYD
1181 FLOYD
1182 FLOYD
1183 FLOYD
1184 FLOYD 1185 FLOYD

B
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 6
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF SOLICITOR-GENERAL OF STATE COURT
TAX COMMISSIONER CHIEF JUDGE OF MAGISTRATE COURT
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION (SUCCEED CHAD GALLOWAY)
COUNTY BOARD OF EDUCATION (SUCCEED LEWIS DEWEESE)
COUNTY BOARD OF EDUCATION (SUCCEED TERRY D BRAMLETT)
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER POST 1
JUDGE OF PROBATE COURT SHERIFF
SURVEYOR TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 1 BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 5
JUDGE OF PROBATE COURT MAGISTRATE JUDGE - DISTRICT 1 MAGISTRATE JUDGE - DISTRICT 2 MAGISTRATE JUDGE - DISTRICT 3 MAGISTRATE JUDGE - DISTRICT 4
SHERIFF SOLICITOR GENERAL OF STATE COURT
TAX COMMISSIONER FLOYD COUNTY BOARD OF COMMISSIONERS,
POST 2 FLOYD COUNTY BOARD OF COMMISSIONERS,
POST 3 FLOYD COUNTY BOARD OF EDUCATION,
DISTRICT 2 FLOYD COUNTY BOARD OF EDUCATION,
DISTRICT 3 FLOYD COUNTY BOARD OF EDUCATION,
DISTRICT 5 FLOYD COUNTY CHIEF MAGISTRATE

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 51 of 88

A
1186 FLOYD 1187 FLOYD 1188 FLOYD 1189 FLOYD 1190 FLOYD 1191 FORSYTH 1192 FORSYTH 1193 FORSYTH 1194 FORSYTH 1195 FORSYTH 1196 FORSYTH 1197 FORSYTH 1198 FORSYTH 1199 FORSYTH 1200 FORSYTH
1201 FORSYTH 1202 FORSYTH 1203 FORSYTH 1204 FRANKLIN 1205 FRANKLIN 1206 FRANKLIN 1207 FRANKLIN 1208 FRANKLIN 1209 FRANKLIN 1210 FRANKLIN 1211 FRANKLIN 1212 FRANKLIN 1213 FRANKLIN 1214 FRANKLIN 1215 FULTON 1216 FULTON 1217 FULTON 1218 FULTON
1219 FULTON
1220 FULTON
1221 FULTON 1222 FULTON 1223 FULTON 1224 FULTON
1225 FULTON
1226 FULTON
1227 FULTON

B
FLOYD COUNTY CLERK OF SUPERIOR COURT FLOYD COUNTY CORONER
FLOYD COUNTY PROBATE JUDGE FLOYD COUNTY SHERIFF
FLOYD COUNTY TAX COMMISSIONER CHIEF MAGISTRATE OF FORSYTH COUNTY
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 4 COUNTY BOARD OF EDUCATION, DISTRICT 5
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT JUDGE OF STATE COURT OF FORSYTH
COUNTY SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, POST 1 BOARD OF EDUCATION, POST 2 CHAIRMAN, COUNTY COMMISSION CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 JUDGE OF PROBATE COURT SHERIFF TAX COMMISSIONER CLERK OF SUPERIOR COURT COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 6
FULTON COUNTY SCHOOL BOARD, DISTRICT 1
FULTON COUNTY SCHOOL BOARD, DISTRICT 3
FULTON COUNTY SCHOOL BOARD, DISTRICT 4
JUDGE OF THE PROBATE COURT SHERIFF
SOLICITOR GENERAL STATE COURT JUDGE (TO SUCCEED DIANE E.
BESSEN) STATE COURT JUDGE (TO SUCCEED JANE
MORRISON) STATE COURT JUDGE (TO SUCCEED JOHN R.
MATHER)

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 52 of 88

A
1228 FULTON
1229 FULTON
1230 FULTON
1231 FULTON 1232 FULTON 1233 GILMER 1234 GILMER 1235 GILMER 1236 GILMER 1237 GILMER 1238 GILMER 1239 GILMER 1240 GILMER 1241 GILMER 1242 GILMER 1243 GILMER 1244 GLASCOCK 1245 GLASCOCK 1246 GLASCOCK 1247 GLASCOCK 1248 GLASCOCK 1249 GLASCOCK 1250 GLASCOCK
1251 GLASCOCK 1252 GLASCOCK 1253 GLASCOCK 1254 GLASCOCK 1255 GLYNN 1256 GLYNN 1257 GLYNN 1258 GLYNN
1259 GLYNN 1260 GLYNN 1261 GLYNN 1262 GLYNN 1263 GLYNN 1264 GLYNN 1265 GLYNN 1266 GLYNN 1267 GLYNN 1268 GLYNN 1269 GLYNN 1270 GLYNN

B
STATE COURT JUDGE (TO SUCCEED MYRA H. DIXON)
STATE COURT JUDGE (TO SUCCEED PATSY Y. PORTER
STATE COURT JUDGE (TO SUCCEED SUSAN EDLEIN)
STATE COURT JUDGE (TO SUCCEED WESLEY B. TAILOR)
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION POST 1 COUNTY BOARD OF EDUCATION POST 2 COUNTY BOARD OF EDUCATION POST 3
COUNTY COMMISSIONER POST 1 PROBATE JUDGE SHERIFF SURVEYOR
TAX COMMISSIONER BOARD OF EDUCATION AT LARGE BOARD OF EDUCATION, GIBSON DISTRICT BOARD OF EDUCATION, MILL DISTRICT
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, GIBSON DISTRICT COUNTY COMMISSIONER, MILL DISTRICT COUNTY COMMISSIONER, MITCHELL/EDGEHILL JUDGE OF PROBATE COURT SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, AT LARGE POST 2 BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5
BRUNSWICK-GLYNN COUNTY JOINT WATER AND SEWER COMMISSION POST 1
COUNTY COMMISSIONER, AT LARGE POST 2 COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 5 COUNTY CORONER COUNTY SURVEYOR MAGISTRATE JUDGE PROBATE JUDGE SHERIFF SOLICITOR OF STATE COURT STATE COURT CLERK

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 53 of 88

A
1271 GLYNN 1272 GLYNN 1273 GLYNN 1274 GORDON 1275 GORDON 1276 GORDON 1277 GORDON 1278 GORDON 1279 GORDON 1280 GORDON 1281 GORDON 1282 GORDON 1283 GORDON 1284 GORDON 1285 GORDON 1286 GRADY 1287 GRADY 1288 GRADY 1289 GRADY 1290 GRADY
1291 GRADY 1292 GRADY 1293 GRADY 1294 GRADY 1295 GRADY 1296 GRADY 1297 GRADY 1298 GREENE 1299 GREENE 1300 GREENE 1301 GREENE 1302 GREENE 1303 GREENE 1304 GREENE 1305 GREENE 1306 GREENE 1307 GREENE 1308 GREENE 1309 GWINNETT 1310 GWINNETT 1311 GWINNETT 1312 GWINNETT 1313 GWINNETT 1314 GWINNETT 1315 GWINNETT

B
STATE COURT JUDGE SUPERIOR COURT CLERK
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, POST 2 COUNTY BOARD OF EDUCATION, POST 4 COUNTY BOARD OF EDUCATION, POST 6
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4
CLERK OF COURT CORONER
COUNTY BOARD OF COMMISSIONERS DISTRICT 1
COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 4
MAGISTRATE PROBATE JUDGE
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 CHAIRMAN, BOARD OF EDUCATION CHAIRMAN, COUNTY COMMISSION CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION. DISTRICT 5 COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 54 of 88

A
1316 GWINNETT
1317 GWINNETT
1318 GWINNETT
1319 GWINNETT
1320 GWINNETT 1321 GWINNETT 1322 GWINNETT 1323 GWINNETT 1324 HABERSHAM 1325 HABERSHAM 1326 HABERSHAM 1327 HABERSHAM 1328 HABERSHAM 1329 HABERSHAM 1330 HABERSHAM 1331 HABERSHAM 1332 HABERSHAM 1333 HABERSHAM 1334 HABERSHAM 1335 HABERSHAM 1336 HABERSHAM 1337 HALL 1338 HALL 1339 HALL 1340 HALL 1341 HALL 1342 HALL 1343 HALL 1344 HALL 1345 HALL
1346 HALL
1347 HALL 1348 HALL 1349 HALL 1350 HALL 1351 HANCOCK 1352 HANCOCK 1353 HANCOCK 1354 HANCOCK 1355 HANCOCK 1356 HANCOCK 1357 HANCOCK 1358 HANCOCK

B
COUNTY COMMISSIONER, DISTRICT 3 FOR JUDGE, STATE COURT OF GWINNET COUNTY (TO SUCCEED EMILY BRANTLEY) FOR JUDGE, STATE COURT OF GWINNETT COUNTY (TO SUCCEED CARLA E. BROWN) FOR JUDGE, STATE COURT OF GWINNETT COUNTY (TO SUCCEED JOHN F. DORAN) FOR JUDGE, STATE COURT OF GWINNETT COUNTY (TO SUCCEED SHAWN F. BRATTON)
JUDGE OF THE PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
SOLICITOR OF STATE COURT STATE COURT JUDGE TAX COMMISSIONER
BOARD OF EDUCATION, POST 3 BOARD OF EDUCATION, POST 4
CHIEF MAGISTRATE CORONER
COUNTY COMMISSIONER, AT LARGE COUNTY COMMISSIONER, POST 2 COUNTY COMMISSIONER, POST 4 HALL COUNTY CLERK OF COURT JUDGE OF PROBATE COURT
JUDGE OF STATE COURT TO SUCCEED BREAKFIELD
JUDGE OF STATE COURT TO SUCCEED ROBERTS SHERIFF SURVEYOR
TAX COMMISSIONER CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 55 of 88

A
1359 HANCOCK 1360 HANCOCK 1361 HARALSON 1362 HARALSON 1363 HARALSON 1364 HARALSON 1365 HARALSON 1366 HARALSON 1367 HARALSON 1368 HARALSON 1369 HARALSON 1370 HARALSON 1371 HARALSON 1372 HARALSON 1373 HARRIS 1374 HARRIS 1375 HARRIS 1376 HARRIS 1377 HARRIS 1378 HARRIS 1379 HARRIS 1380 HARRIS 1381 HARRIS 1382 HARRIS 1383 HARRIS 1384 HARRIS 1385 HART 1386 HART 1387 HART 1388 HART 1389 HART 1390 HART 1391 HART 1392 HART 1393 HART 1394 HART 1395 HART 1396 HART 1397 HART 1398 HEARD 1399 HEARD 1400 HEARD 1401 HEARD 1402 HEARD 1403 HEARD 1404 HEARD

B
SHERIFF TAX COMMISSIONER CLERK, SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 4
COUNTY COMMISSIONER, CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3
JUDGE, PROBATE COURT MAGISTRATE JUDGE, CHIEF
SHERIFF SURVEYOR TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 4 COUNTY BOARD OF EDUCATION, DISTRICT 6 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5 JUDGE OF THE PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION CHAIR COUNTY COMMISSIONER, DISTRICT 1

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 56 of 88

A
1405 HEARD 1406 HEARD 1407 HEARD 1408 HEARD 1409 HEARD 1410 HENRY 1411 HENRY 1412 HENRY 1413 HENRY 1414 HENRY 1415 HENRY 1416 HENRY 1417 HENRY 1418 HENRY 1419 HENRY 1420 HENRY 1421 HENRY 1422 HENRY 1423 HOUSTON 1424 HOUSTON 1425 HOUSTON
1426 HOUSTON 1427 HOUSTON 1428 HOUSTON 1429 HOUSTON 1430 HOUSTON 1431 HOUSTON 1432 HOUSTON 1433 HOUSTON 1434 HOUSTON 1435 HOUSTON 1436 HOUSTON 1437 IRWIN 1438 IRWIN 1439 IRWIN 1440 IRWIN 1441 IRWIN 1442 IRWIN 1443 IRWIN 1444 IRWIN 1445 IRWIN 1446 IRWIN 1447 IRWIN 1448 JACKSON 1449 JACKSON

B
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
JUDGE OF PROBATE COURT SHERIFF
SOLICITOR GENERAL STATE COURT JUDGE 1
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5
BOARD OF EDUCATION, DISTRICT 7 AT LARGE
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, POST 3 COUNTY COMMISSIONER, POST 4 COUNTY COMMISSIONER, POST 5
JUDGE OF PROBATE COURT SHERIFF
SOLICITOR-GENERAL TAX COMMISSIONER CHAIRMAN, COUNTY COMMISSION CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3
JUDGE OF PROBATE COURT MAGISTRATE JUDGE
SCHOOL BOARD, DISTRICT 2 SCHOOL BOARD, DISTRICT 4
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, POST 1 BOARD OF EDUCATION, POST 4

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 57 of 88

A
1450 JACKSON 1451 JACKSON 1452 JACKSON 1453 JACKSON 1454 JACKSON 1455 JACKSON 1456 JACKSON 1457 JACKSON 1458 JACKSON 1459 JACKSON 1460 JACKSON 1461 JACKSON 1462 JASPER 1463 JASPER 1464 JASPER 1465 JASPER 1466 JASPER 1467 JASPER 1468 JASPER 1469 JASPER 1470 JASPER 1471 JASPER 1472 JASPER 1473 JASPER 1474 JEFF DAVIS 1475 JEFF DAVIS 1476 JEFF DAVIS 1477 JEFF DAVIS 1478 JEFF DAVIS 1479 JEFF DAVIS 1480 JEFF DAVIS
1481 JEFF DAVIS
1482 JEFF DAVIS
1483 JEFF DAVIS 1484 JEFF DAVIS 1485 JEFF DAVIS 1486 JEFFERSON 1487 JEFFERSON 1488 JEFFERSON 1489 JEFFERSON 1490 JEFFERSON 1491 JEFFERSON 1492 JEFFERSON 1493 JEFFERSON

B
CHAIRMAN OF BOARD OF COMMISSIONERS CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
JUDGE OF MAGISTRATE COURT JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR OF STATE COURT SURVEYOR TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION AT LARGE CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT MEMBER, BOARD OF EDUCATION, DISTRICT 1 MEMBER, BOARD OF EDUCATION, DISTRICT 2 MEMBER, COUNTY COMMISSIONER, DISTRICT
1 MEMBER, COUNTY COMMISSIONER, DISTRICT
2 MEMBER, COUNTY COMMISSIONER, DISTRICT
3 SHERIFF TAX COMMISSIONER BOARD OF COMMISSION, CHAIRMAN BOARD OF EDUCATION - DISTRICT 2 BOARD OF EDUCATION - DISTRICT 4 CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT CORONER COUNTY COMMISSION, DISTRICT 2 COUNTY COMMISSION, DISTRICT 4

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 58 of 88

A
1494 JEFFERSON 1495 JEFFERSON 1496 JEFFERSON 1497 JEFFERSON 1498 JEFFERSON 1499 JENKINS 1500 JENKINS 1501 JENKINS 1502 JENKINS 1503 JENKINS 1504 JENKINS 1505 JENKINS 1506 JENKINS 1507 JENKINS 1508 JENKINS 1509 JENKINS 1510 JOHNSON 1511 JOHNSON 1512 JOHNSON 1513 JOHNSON 1514 JOHNSON 1515 JOHNSON 1516 JOHNSON 1517 JOHNSON 1518 JOHNSON 1519 JOHNSON 1520 JOHNSON 1521 JOHNSON 1522 JONES 1523 JONES 1524 JONES 1525 JONES 1526 JONES 1527 JONES 1528 JONES 1529 JONES 1530 JONES 1531 JONES 1532 JONES 1533 JONES 1534 LAMAR 1535 LAMAR 1536 LAMAR 1537 LAMAR 1538 LAMAR 1539 LAMAR

B
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR-GENERAL TAX COMMISSIONER
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 4
JUDGE OF PROBATE COURT SCHOOL BOARD MEMBER DISTRICT 1 SCHOOL BOARD MEMBER DISTRICT 3 SCHOOL BOARD MEMBER DISTRICT 4
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
COUNTY SURVEYOR PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 3

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A
1540 LAMAR 1541 LAMAR 1542 LAMAR 1543 LAMAR 1544 LANIER 1545 LANIER 1546 LANIER 1547 LANIER 1548 LANIER 1549 LANIER 1550 LANIER 1551 LANIER 1552 LANIER 1553 LANIER 1554 LAURENS 1555 LAURENS 1556 LAURENS 1557 LAURENS 1558 LAURENS 1559 LAURENS 1560 LAURENS 1561 LAURENS 1562 LAURENS 1563 LAURENS 1564 LAURENS 1565 LEE 1566 LEE 1567 LEE 1568 LEE 1569 LEE 1570 LEE 1571 LEE 1572 LEE 1573 LEE 1574 LEE 1575 LEE 1576 LEE 1577 LIBERTY 1578 LIBERTY 1579 LIBERTY 1580 LIBERTY 1581 LIBERTY 1582 LIBERTY 1583 LIBERTY 1584 LIBERTY 1585 LIBERTY

B
COUNTY COMMISSIONER, DISTRICT 4 JUDGE OF PROBATE COURT SHERIFF TAX COMMISSIONER
BOARD OF EDUCATION, CHAIRMAN BOARD OF EDUCATION, DISTRICT 2 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 2 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 5
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3
PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 2 COUNTY BOARD OF EDUCATION, DISTRICT 3
COUNTY COMMISSIONER CHAIRMAN COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 60 of 88

A
1586 LIBERTY 1587 LIBERTY 1588 LIBERTY 1589 LIBERTY 1590 LIBERTY 1591 LIBERTY 1592 LINCOLN 1593 LINCOLN 1594 LINCOLN 1595 LINCOLN 1596 LINCOLN 1597 LINCOLN 1598 LINCOLN 1599 LINCOLN 1600 LINCOLN 1601 LINCOLN 1602 LONG 1603 LONG 1604 LONG 1605 LONG 1606 LONG 1607 LONG 1608 LONG 1609 LONG 1610 LONG 1611 LONG 1612 LONG 1613 LONG 1614 LONG 1615 LONG 1616 LONG 1617 LONG 1618 LOWNDES 1619 LOWNDES 1620 LOWNDES 1621 LOWNDES 1622 LOWNDES 1623 LOWNDES 1624 LOWNDES 1625 LOWNDES 1626 LOWNDES 1627 LOWNDES 1628 LOWNDES 1629 LOWNDES 1630 LOWNDES

B
COUNTY COMMISSIONER, DISTRICT 6 JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR OF STATE COURT TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF COMMISSIONERS, DISTRICT 1 BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 3 BOARD OF COMMISSIONERS, DISTRICT 4 BOARD OF COMMISSIONERS, DISTRICT 5
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5
CLERK OF SUPERIOR COURT CORONER
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF TAX COMMISSIONER
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 4 COUNTY BOARD OF EDUCATION, DISTRICT 5 COUNTY BOARD OF EDUCATION, DISTRICT 6 COUNTY BOARD OF EDUCATION, DISTRICT 7
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
SOLICITOR GENERAL

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A
1631 LOWNDES
1632 LOWNDES 1633 LOWNDES 1634 LUMPKIN 1635 LUMPKIN 1636 LUMPKIN 1637 LUMPKIN 1638 LUMPKIN 1639 LUMPKIN 1640 LUMPKIN 1641 LUMPKIN 1642 LUMPKIN 1643 LUMPKIN 1644 LUMPKIN 1645 LUMPKIN 1646 MACON 1647 MACON 1648 MACON 1649 MACON 1650 MACON 1651 MACON 1652 MACON 1653 MACON 1654 MACON 1655 MADISON 1656 MADISON 1657 MADISON 1658 MADISON 1659 MADISON 1660 MADISON 1661 MADISON 1662 MADISON 1663 MADISON 1664 MADISON 1665 MADISON 1666 MADISON 1667 MARION 1668 MARION 1669 MARION 1670 MARION 1671 MARION 1672 MARION 1673 MARION 1674 MARION 1675 MARION

B
STATE COURT JUDGE (TO SUCCEED ELLEN GOLDEN)
STATE COURT JUDGE (TO SUCCEED JOHN KENT EDWARDS, JR.) TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 4
PROBATE/MAGISTRATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 CHAIRMAN, BOARD OF COMMISSIONERS
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 2 BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 4 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER AT LARGE COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 4
COUNTY SURVEYOR

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 62 of 88

A
1676 MARION 1677 MARION 1678 MARION 1679 MCDUFFIE 1680 MCDUFFIE 1681 MCDUFFIE 1682 MCDUFFIE 1683 MCDUFFIE 1684 MCDUFFIE 1685 MCDUFFIE
1686 MCDUFFIE
1687 MCDUFFIE 1688 MCDUFFIE 1689 MCDUFFIE 1690 MCDUFFIE 1691 MCINTOSH 1692 MCINTOSH 1693 MCINTOSH 1694 MCINTOSH 1695 MCINTOSH 1696 MCINTOSH 1697 MCINTOSH
1698 MCINTOSH 1699 MCINTOSH 1700 MCINTOSH 1701 MERIWETHER 1702 MERIWETHER 1703 MERIWETHER 1704 MERIWETHER 1705 MERIWETHER 1706 MERIWETHER 1707 MERIWETHER 1708 MERIWETHER 1709 MILLER 1710 MILLER 1711 MILLER 1712 MILLER 1713 MILLER 1714 MILLER 1715 MILLER 1716 MILLER 1717 MILLER 1718 MILLER 1719 MILLER

B
JUDGE OF PROBATE/MAGISTRATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, DISTRICT 6 BOARD OF EDUCATION, SUPER DISTRICT 2 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 2, SEAT A
COUNTY COMMISSIONER, DISTRICT 2, SEAT B
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 LRG
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 JUDGE OF PROBATE AND MAGISTRATE
COURT SHERIFF TAX COMMISSIONER CORONER COUNTY BOARD OF EDUCATION DISTRICT 2 COUNTY BOARD OF EDUCATION DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 PROBATE JUDGE SHERIFF TAX COMMISSIONER CLERK OF SUPERIOR COURT CORONER COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 5 COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5 JUDGE STATE COURT PROBATE JUDGE SHERIFF

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 63 of 88

A
1720 MILLER 1721 MILLER 1722 MITCHELL 1723 MITCHELL 1724 MITCHELL 1725 MITCHELL 1726 MITCHELL 1727 MITCHELL 1728 MITCHELL 1729 MITCHELL 1730 MITCHELL 1731 MITCHELL 1732 MITCHELL 1733 MITCHELL 1734 MITCHELL 1735 MITCHELL 1736 MITCHELL 1737 MONROE 1738 MONROE 1739 MONROE 1740 MONROE 1741 MONROE 1742 MONROE 1743 MONROE 1744 MONROE 1745 MONROE 1746 MONROE 1747 MONROE 1748 MONROE 1749 MONTGOMERY 1750 MONTGOMERY 1751 MONTGOMERY 1752 MONTGOMERY 1753 MONTGOMERY 1754 MONTGOMERY 1755 MONTGOMERY 1756 MONTGOMERY 1757 MONTGOMERY 1758 MONTGOMERY 1759 MONTGOMERY 1760 MORGAN 1761 MORGAN 1762 MORGAN 1763 MORGAN 1764 MORGAN 1765 MORGAN

B
SOLICITOR GENERAL TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT JUDGE OF STATE COURT
MEMBER, BOARD OF EDUCATION, DISTRICT 1 MEMBER, BOARD OF EDUCATION, DISTRICT 3 MEMBER, BOARD OF EDUCATION, DISTRICT 5
MEMBER, BOARD OF EDUCATION, LRG SHERIFF
SOLICITOR OF STATE COURT TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION - DISTRICT 1 BOARD OF EDUCATION - DISTRICT 2 BOARD OF EDUCATION - DISTRICT 3, POST 1
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER - DISTRICT 1 COUNTY COMMISSIONER - DISTRICT 2 COUNTY COMMISSIONER-DISTRICT 3, POST 1
PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3
CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER

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A
1766 MORGAN 1767 MORGAN 1768 MORGAN 1769 MORGAN 1770 MORGAN 1771 MORGAN 1772 MURRAY 1773 MURRAY 1774 MURRAY 1775 MURRAY 1776 MURRAY 1777 MURRAY 1778 MURRAY 1779 MURRAY 1780 MURRAY 1781 MURRAY 1782 MURRAY 1783 MURRAY 1784 MUSCOGEE 1785 MUSCOGEE 1786 MUSCOGEE 1787 MUSCOGEE 1788 MUSCOGEE 1789 MUSCOGEE 1790 MUSCOGEE 1791 MUSCOGEE 1792 MUSCOGEE 1793 MUSCOGEE 1794 MUSCOGEE 1795 MUSCOGEE 1796 MUSCOGEE 1797 MUSCOGEE 1798 MUSCOGEE 1799 MUSCOGEE 1800 MUSCOGEE 1801 MUSCOGEE 1802 MUSCOGEE 1803 NEWTON 1804 NEWTON 1805 NEWTON 1806 NEWTON 1807 NEWTON 1808 NEWTON 1809 NEWTON 1810 NEWTON 1811 NEWTON

B
COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION DISTRICT 1 COUNTY BOARD OF EDUCATION DISTRICT 2 COUNTY BOARD OF EDUCATION DISTRICT 3 COUNTY BOARD OF EDUCATION DISTRICT 4
JUDGE OF PROBATE COURT JUDGE OF THE MAGISTRATE COURT POST 1 JUDGE OF THE MAGISTRATE COURT POST 2
SHERIFF SOLE COUNTY COMMISSIONER
TAX COMMISSIONER CORONER
COUNCIL AT-LARGE COUNCIL DISTRICT 2 COUNCIL DISTRICT 4 COUNCIL DISTRICT 6 COUNCIL DISTRICT 8 JUDGE OF PROBATE COURT MAGISTRATE JUDGE MUNICIPAL COURT CLERK MUNICIPAL COURT JUDGE SCHOOL BOARD MEMBER DISTRICT 1 SCHOOL BOARD MEMBER DISTRICT 3 SCHOOL BOARD MEMBER DISTRICT 5 SCHOOL BOARD MEMBER DISTRICT 7
SHERIFF SOLICITOR-GENERAL STATE COURT JUDGE SUPERIOR COURT CLERK TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 2 COUNTY BOARD OF EDUCATION, DISTRICT 4
COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 65 of 88

A
1812 NEWTON 1813 NEWTON 1814 OCONEE 1815 OCONEE 1816 OCONEE 1817 OCONEE 1818 OCONEE 1819 OCONEE 1820 OCONEE 1821 OCONEE 1822 OCONEE 1823 OCONEE 1824 OCONEE 1825 OGLETHORPE 1826 OGLETHORPE 1827 OGLETHORPE 1828 OGLETHORPE 1829 OGLETHORPE 1830 OGLETHORPE 1831 OGLETHORPE 1832 OGLETHORPE 1833 OGLETHORPE 1834 OGLETHORPE 1835 OGLETHORPE 1836 OGLETHORPE 1837 PAULDING 1838 PAULDING 1839 PAULDING 1840 PAULDING 1841 PAULDING 1842 PAULDING 1843 PAULDING 1844 PAULDING 1845 PAULDING 1846 PAULDING 1847 PAULDING 1848 PAULDING 1849 PAULDING 1850 PEACH 1851 PEACH 1852 PEACH 1853 PEACH 1854 PEACH 1855 PEACH 1856 PEACH 1857 PEACH

B
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION CHAIR, POST 1 BOARD OF EDUCATION, POST 4 BOARD OF EDUCATION, POST 5 CHAIRMAN, COUNTY COMMISSION CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, POST 1 COUNTY COMMISSIONER, POST 4
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4
CLERK OF SUPERIOR COURT COMMISSION CHAIRMAN CORONER
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT MAGISTRATE JUDGE SHERIFF TAX COMMISSIONER
CHIEF MAGISTRATE JUDGE COMMISSION CHAIRMAN CORONER
COUNTY COMISSIONER, POST 1 COUNTY SURVEYOR PROBATE JUDGE
SCHOOL BOARD MEMBER, DISTRICT 1 SCHOOL BOARD MEMBER, DISTRICT 3 SCHOOL BOARD MEMBER, DISTRICT 4 SCHOOL MEMBER BOARD AT LARGE
SHERIFF SUPERIOR COURT CLERK
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER - AT LARGE
COUNTY COMMISSIONER POST 1 COUNTY COMMISSIONER POST 3
PROBATE JUDGE SCHOOL BOARD POST 1

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A
1858 PEACH 1859 PEACH 1860 PEACH 1861 PICKENS 1862 PICKENS 1863 PICKENS 1864 PICKENS 1865 PICKENS 1866 PICKENS 1867 PICKENS 1868 PICKENS 1869 PICKENS 1870 PICKENS 1871 PIERCE 1872 PIERCE 1873 PIERCE 1874 PIERCE 1875 PIERCE 1876 PIERCE 1877 PIERCE 1878 PIERCE 1879 PIERCE 1880 PIERCE 1881 PIERCE 1882 PIKE 1883 PIKE 1884 PIKE 1885 PIKE 1886 PIKE 1887 PIKE 1888 PIKE 1889 PIKE 1890 PIKE 1891 PIKE 1892 PIKE 1893 PIKE 1894 POLK 1895 POLK 1896 POLK 1897 POLK 1898 POLK 1899 POLK 1900 POLK 1901 POLK 1902 POLK 1903 POLK

B
SCHOOL BOARD POST 3 SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, POST 1 BOARD OF EDUCATION, POST 4
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION, CHAIRMAN COUNTY COMMISSIONER, DISTRICT 2
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION, DISTRICT 1 COUNTY COMMISSION, DISTRICT 3
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF SURVEYOR
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT MAGISTRATE JUDGE
SCHOOL BOARD MEMBER, DISTRICT 3 SCHOOL BOARD MEMBER, DISTRICT 4 SCHOOL BOARD MEMBER, DISTRICT 5
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 5 BOARD OF EDUCATION DISTRICT 6 CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 3
JUDGE OF PROBATE COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 67 of 88

A
1904 POLK 1905 POLK 1906 PULASKI 1907 PULASKI 1908 PULASKI 1909 PULASKI 1910 PULASKI 1911 PULASKI 1912 PULASKI 1913 PULASKI 1914 PULASKI 1915 PULASKI 1916 PULASKI 1917 PUTNAM 1918 PUTNAM 1919 PUTNAM 1920 PUTNAM 1921 PUTNAM 1922 PUTNAM 1923 PUTNAM 1924 PUTNAM 1925 PUTNAM 1926 PUTNAM 1927 QUITMAN 1928 QUITMAN 1929 QUITMAN 1930 QUITMAN 1931 QUITMAN 1932 QUITMAN 1933 QUITMAN 1934 QUITMAN 1935 QUITMAN 1936 QUITMAN 1937 RABUN 1938 RABUN 1939 RABUN 1940 RABUN 1941 RABUN 1942 RABUN 1943 RABUN 1944 RABUN 1945 RABUN 1946 RABUN 1947 RABUN 1948 RABUN 1949 RANDOLPH

B
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 4 BOARD OF EDUCATION DISTRICT 7 CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF SOLE COMMISSIONER TAX COMMISSIONER BOARD OF COMMISSIONER, DISTRICT 1 BOARD OF COMMISSIONER, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, CHAIRPERSON BOARD OF EDUCATION, DISTRICT 1, POST 2 BOARD OF EDUCATION, DISTRICT 2, POST 1 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, POST 1 COUNTY COMMISSIONER, POST 2
PROBATE JUDGE SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF COMMISSIONER, POST 1 COUNTY BOARD OF COMMISSIONER, POST 2 COUNTY BOARD OF COMMISSIONER, POST 3
COUNTY BOARD OF EDUCATION, POST 2 COUNTY BOARD OF EDUCATION, POST 4 COUNTY BOARD OF EDUCATION, POST 5
COUNTY SURVEYOR PROBATE JUDGE SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2

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A
1950 RANDOLPH 1951 RANDOLPH 1952 RANDOLPH 1953 RANDOLPH 1954 RANDOLPH 1955 RANDOLPH 1956 RANDOLPH 1957 RANDOLPH 1958 RANDOLPH 1959 RANDOLPH 1960 RANDOLPH 1961 RICHMOND 1962 RICHMOND 1963 RICHMOND 1964 RICHMOND 1965 RICHMOND
1966 RICHMOND 1967 RICHMOND 1968 RICHMOND 1969 RICHMOND
1970 RICHMOND
1971 RICHMOND
1972 RICHMOND
1973 RICHMOND 1974 RICHMOND 1975 RICHMOND 1976 RICHMOND 1977 ROCKDALE 1978 ROCKDALE 1979 ROCKDALE 1980 ROCKDALE 1981 ROCKDALE 1982 ROCKDALE 1983 ROCKDALE 1984 ROCKDALE 1985 ROCKDALE 1986 ROCKDALE
1987 ROCKDALE 1988 ROCKDALE 1989 ROCKDALE 1990 ROCKDALE 1991 SCHLEY 1992 SCHLEY

B
BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
TAX COMMISSIONER AUGUSTA COMMISSIONER, DISTRICT 1 AUGUSTA COMMISSIONER, DISTRICT 3 AUGUSTA COMMISSIONER, DISTRICT 5 AUGUSTA COMMISSIONER, DISTRICT 7 AUGUSTA COMMISSIONER, DISTRICT 9
CHIEF JUDGE, CIVIL AND MAGISTRATE COURT
CLERK OF SUPERIOR COURT CORONER
JUDGE OF PROBATE COURT JUDGE OF THE STATE COURT OF RICHMOND
COUNTY (TO SUCCEED KELLIE MCINTYRE) JUDGE OF THE STATE COURT OF RICHMOND COUNTY (TO SUCCEED PATRICIA BOOKER) MARSHAL OF CIVIL AND MAGISTRATE COURT
OF RICHMOND COUNTY PRESIDING JUDGE, CIVIL AND MAGISTRATE
COURT SHERIFF SOLICITOR-GENERAL TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT CORONER COUNTY BOARD OF EDUCATION, POST 1 COUNTY BOARD OF EDUCATION, POST 2 COUNTY BOARD OF EDUCATION, POST 3 COUNTY BOARD OF EDUCATION, POST 4 COUNTY BOARD OF EDUCATION, POST 5 COUNTY COMMISSION CHAIR COUNTY COMMISSIONER, POST 1 JUDGE OF STATE COURT OF ROCKDALE COUNTY JUDGE OF THE PROBATE COURT SHERIFF TAX COMMISSIONER BOARD OF COMMISSIONERS - AT LARGE BOARD OF COMMISSIONERS DISTRICT 2

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 69 of 88

A
1993 SCHLEY 1994 SCHLEY 1995 SCHLEY 1996 SCHLEY 1997 SCHLEY 1998 SCHLEY 1999 SCHLEY 2000 SCHLEY 2001 SCHLEY
2002 SCREVEN 2003 SCREVEN
2004 SCREVEN
2005 SCREVEN
2006 SCREVEN
2007 SCREVEN
2008 SCREVEN
2009 SCREVEN
2010 SCREVEN
2011 SCREVEN
2012 SCREVEN
2013 SCREVEN
2014 SCREVEN 2015 SCREVEN 2016 SCREVEN 2017 SCREVEN 2018 SEMINOLE 2019 SEMINOLE 2020 SEMINOLE 2021 SEMINOLE 2022 SEMINOLE 2023 SEMINOLE 2024 SEMINOLE 2025 SEMINOLE 2026 SEMINOLE 2027 SEMINOLE 2028 SPALDING 2029 SPALDING 2030 SPALDING 2031 SPALDING 2032 SPALDING 2033 SPALDING

B
BOARD OF COMMISSIONERS DISTRICT 3
BOARD OF EDUCATION AT LARGE
BOARD OF EDUCATION DISTRICT 2
BOARD OF EDUCATION DISTRICT 3
CLERK OF SUPERIOR COURT
CORONER
JUDGE OF PROBATE COURT
SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT OF SCREVEN
COUNTY CORONER OF SCREVEN COUNTY JUDGE OF MAGISTRATE COURT OF SCREVEN
COUNTY JUDGE OF PROBATE COURT OF SCREVEN
COUNTY JUDGE OF STATE COURT OF SCREVEN
COUNTY MEMBER OF THE BOARD OF COMMISSIONERS
DISTRICT 2 MEMBER OF THE BOARD OF COMMISSIONERS
DISTRICT 3 MEMBER OF THE BOARD OF COMMISSIONERS
DISTRICT 5 MEMBER OF THE BOARD OF COMMISSIONERS
DISTRICT 6 MEMBER OF THE BOARD OF EDUCATION
DISTRICT 2 MEMBER OF THE BOARD OF EDUCATION
DISTRICT 3 MEMBER OF THE BOARD OF EDUCATION
DISTRICT 5 MEMBER OF THE BOARD OF EDUCATION
DISTRICT 6 SHERIFF OF SCREVEN COUNTY
STATE COURT SOLICITOR
TAX COMMISSIONER OF SCREVEN COUNTY
BOARD OF EDUCATION, DISTRICT 2
BOARD OF EDUCATION, DISTRICT 4
CLERK OF SUPERIOR COURT
CORONER
COUNTY COMMISSIONER, DISTRICT 3
COUNTY COMMISSIONER, DISTRICT 5
COUNTY COMMISSIONERS, DISTRICT 1
PROBATE JUDGE
SHERIFF
TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2
BOARD OF EDUCATION, DISTRICT 4
CHIEF MAGISTRATE
CLERK OF SUPERIOR COURT
CORONER
COUNTY COMMISSIONER, DISTRICT 1

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A
2034 SPALDING 2035 SPALDING 2036 SPALDING 2037 SPALDING 2038 SPALDING 2039 SPALDING
2040 2041 2042 2043 2044 2045 2046 2047 2048 2049 2050 2051 2052 2053 2054 2055 2056 2057 2058 2059 2060 2061 2062 2063 2064 2065 2066 2067 2068 2069 2070 2071 2072 2073 2074 2075 2076 2077 2078 2079

B
COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4
PROBATE JUDGE SHERIFF
STATE COURT JUDGE TAX COMMISSIONER

2080 2081 2082 2083 2084 2085 2086 2087 2088 2089 2090 2091 2092 2093 2094 2095 2096 2097 2098 2099 2100 2101 2102 2103 2104 2105 2106 2107 2108 2109 2110 2111 2112 2113 2114 2115 2116 2117 2118 2119 2120 2121 2122 2123 2124 2125

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 71 of 88

A

B

2126 2127 2128 2129 2130 2131 2132 2133 2134 2135 2136 2137 2138 2139 2140 2141 2142 2143 2144 2145 2146 2147 2148 2149 2150 2151 2152 2153 2154 2155 2156 2157 2158 2159 2160 2161 2162 2163 2164 2165 2166 2167 2168 2169 2170 2171

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 72 of 88

A

B

2172 2173 2174 2175 2176 2177 2178 2179 2180 2181 2182 2183 2184 2185 2186 2187 2188 2189 2190 2191 2192 2193 2194 2195 2196 2197 2198 2199 2200 2201 2202 2203 2204 2205 2206 2207 2208 2209 2210 2211 2212 2213 2214 2215 2216 2217

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 73 of 88

A

B

2218 2219 2220 2221 2222 2223 2224 2225 2226 2227 2228 2229 2230 2231 2232 2233 2234 2235 2236 2237 2238 2239 2240 2241 2242 2243 2244 2245 2246 2247 2248 2249 2250 2251 2252 2253 2254 2255 2256 2257 2258 2259 2260 2261 2262 2263

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 74 of 88

A

B

2264 2265 2266 2267 2268 2269 2270 2271 2272 2273 2274 2275 2276 2277 2278 2279 2280 2281 2282 2283 2284 2285 2286 2287 2288 2289 2290 2291 2292 2293 2294 2295 2296 2297 2298 2299 2300 2301 2302 2303 2304 2305 2306 2307 2308 2309

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 75 of 88

A

B

2310 2311 2312 2313 2314 2315 2316 2317 2318 2319 2320 2321 2322 2323 2324 2325 2326 2327 2328 2329 2330 2331 2332 2333 2334 2335 2336 2337 2338 2339 2340 2341 2342 2343 2344 2345 2346 2347 2348 2349 2350 2351 2352 2353 2354 2355

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 76 of 88

A

B

2356 2357 2358 2359 2360 2361 2362 2363 2364 2365 2366 2367 2368 2369 2370 2371 2372 2373 2374 2375 2376 2377 2378 2379 2380 2381 2382 2383 2384 2385 2386 2387 2388 2389 2390 2391 2392 2393 2394 2395 2396 2397 2398 2399 2400 2401

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 77 of 88

A

B

2402 2403 2404 2405 2406 2407 2408 2409 2410 2411 2412 2413 2414 2415 2416 2417 2418 2419 2420 2421 2422 2423 2424 2425 2426 2427 2428 2429 2430 2431 2432 2433 2434 2435 2436 2437 2438 2439 2440 2441 2442 2443 2444 2445 2446 2447

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 78 of 88

A

B

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 79 of 88

A 2448 2449 2450 2451 2452 2453 2454 2455 2456 2457 2458 2459 2460 2461 2462 2463 2464 2465 2466 2467 2468 2469 2470 2471 2472 2473 2474 2475
2476 STEPHENS 2477 STEPHENS 2478 STEPHENS 2479 STEPHENS 2480 STEPHENS 2481 STEPHENS 2482 STEPHENS 2483 STEPHENS 2484 STEPHENS 2485 STEPHENS 2486 STEPHENS 2487 STEPHENS 2488 STEPHENS 2489 STEWART 2490 STEWART 2491 STEWART 2492 STEWART 2493 STEWART

B
BOARD OF EDUCATION AT LARGE BOARD OF EDUCATION, DISTRICT 1, POST 1 BOARD OF EDUCATION, DISTRICT 3, POST 2
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, POST 2 COUNTY COMMISSIONER, POST 3
JUDGE OF PROBATE COURT SHERIFF
STATE COURT JUDGE STATE COURT SOLICITOR
TAX COMMISSIONER BOARD OF EDUCATION - DISTRICT 4 BOARD OF EDUCATION DISTRICT 1 BOARD OF EDUCATION DISTRICT 5
CLERK OF SUPERIOR COURT CORONER

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 80 of 88

A
2494 STEWART 2495 STEWART 2496 STEWART 2497 STEWART 2498 STEWART 2499 STEWART 2500 STEWART 2501 SUMTER 2502 SUMTER 2503 SUMTER 2504 SUMTER 2505 SUMTER 2506 SUMTER 2507 SUMTER 2508 SUMTER 2509 SUMTER 2510 TALBOT 2511 TALBOT 2512 TALBOT 2513 TALBOT 2514 TALBOT 2515 TALBOT 2516 TALBOT 2517 TALBOT 2518 TALBOT 2519 TALBOT 2520 TALIAFERRO 2521 TALIAFERRO 2522 TALIAFERRO 2523 TALIAFERRO 2524 TALIAFERRO 2525 TALIAFERRO 2526 TALIAFERRO 2527 TALIAFERRO 2528 TATTNALL 2529 TATTNALL 2530 TATTNALL 2531 TATTNALL 2532 TATTNALL 2533 TATTNALL 2534 TATTNALL 2535 TATTNALL 2536 TATTNALL 2537 TATTNALL 2538 TATTNALL 2539 TATTNALL

B
COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 5
JUDGE OF PROBATE COURT MAGISTRATE JUDGE SHERIFF TAX COMMISSIONER
CHIEF MAGISTRATE COURT JUDGE CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSION DISTRICT 1 COUNTY COMMISSION DISTRICT 3 COUNTY COMMISSION DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5
JUDGE OF PROBATE COURT SCHOOL BOARD MEMBER, DISTRICT 1 SCHOOL BOARD MEMBER, DISTRICT 4 SCHOOL BOARD MEMBER, DISTRICT 5
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION CHAIRMAN BOARD OF EDUCATION MEMBER DISTRICT 2 BOARD OF EDUCATION MEMBER, DISTRICT 4 CHAIRMAN, COUNTY COMMISSION CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 5

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 81 of 88

A
2540 TATTNALL 2541 TATTNALL 2542 TATTNALL 2543 TAYLOR 2544 TAYLOR 2545 TAYLOR 2546 TAYLOR 2547 TAYLOR 2548 TAYLOR 2549 TAYLOR 2550 TAYLOR 2551 TAYLOR 2552 TAYLOR 2553 TAYLOR 2554 TAYLOR 2555 TAYLOR 2556 TAYLOR 2557 TAYLOR 2558 TELFAIR 2559 TELFAIR 2560 TELFAIR 2561 TELFAIR 2562 TELFAIR 2563 TELFAIR 2564 TELFAIR 2565 TELFAIR 2566 TELFAIR 2567 TELFAIR 2568 TELFAIR 2569 TELFAIR 2570 TELFAIR 2571 TERRELL 2572 TERRELL 2573 TERRELL 2574 TERRELL 2575 TERRELL 2576 TERRELL 2577 TERRELL 2578 TERRELL 2579 TERRELL 2580 TERRELL 2581 TERRELL 2582 THOMAS 2583 THOMAS 2584 THOMAS 2585 THOMAS

B
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION DISTRICT 1 COUNTY BOARD OF EDUCATION DISTRICT 2 COUNTY BOARD OF EDUCATION DISTRICT 3 COUNTY BOARD OF EDUCATION DISTRICT 4 COUNTY BOARD OF EDUCATION DISTRICT 5
COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 4 COUNTY COMMISSIONER DISTRICT 5
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, DISTRICT 6
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 2
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6 CLERK OF SUPERIOR COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 82 of 88

A
2586 THOMAS 2587 THOMAS 2588 THOMAS 2589 THOMAS 2590 THOMAS 2591 THOMAS 2592 THOMAS 2593 THOMAS 2594 THOMAS 2595 THOMAS 2596 THOMAS 2597 TIFT 2598 TIFT 2599 TIFT 2600 TIFT 2601 TIFT 2602 TIFT 2603 TIFT 2604 TIFT 2605 TIFT 2606 TIFT 2607 TIFT 2608 TIFT 2609 TIFT 2610 TIFT 2611 TOOMBS 2612 TOOMBS 2613 TOOMBS 2614 TOOMBS 2615 TOOMBS 2616 TOOMBS 2617 TOOMBS 2618 TOOMBS 2619 TOOMBS 2620 TOOMBS 2621 TOOMBS 2622 TOOMBS 2623 TOOMBS 2624 TOWNS 2625 TOWNS 2626 TOWNS 2627 TOWNS 2628 TOWNS 2629 TOWNS 2630 TOWNS 2631 TOWNS

B
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4 COUNTY COMMISSIONER, DISTRICT 6 COUNTY COMMISSIONER, DISTRICT 8
JUDGE OF STATE COURT MAGISTRATE JUDGE PROBATE JUDGE SHERIFF SOLICITOR GENERAL TAX COMMISSIONER CHIEF MAGISTRATE
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION, DISTRICT 1 COUNTY BOARD OF EDUCATION, DISTRICT 3 COUNTY BOARD OF EDUCATION, DISTRICT 7
COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 5 COUNTY COMMISSIONER, DISTRICT 7
PROBATE JUDGE SHERIFF
SOLICITOR GENERAL TAX COMMISSIONER BOARD OF EDUCATION DISTRICT 2 BOARD OF EDUCATION DISTRICT 4 BOARD OF EDUCATION DISTRICT 6 CHAIRMAN, BOARD OF COMMISSIONERS CLERK OF SUPERIOR COURT COMMISSION DISTRICT 2 COMMISSION DISTRICT 3
CORONER JUDGE OF PROBATE COURT
JUDGE OF STATE COURT SHERIFF
STATE COURT SOLICITOR TAX COMMISSIONER
BOARD OF EDUCATION, POST 1 BOARD OF EDUCATION, POST 4 BOARD OF EDUCATION, POST 5
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER AT LARGE JUDGE OF PROBATE COURT SHERIFF

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 83 of 88

A
2632 TOWNS 2633 TREUTLEN 2634 TREUTLEN 2635 TREUTLEN 2636 TREUTLEN 2637 TREUTLEN 2638 TREUTLEN 2639 TREUTLEN 2640 TREUTLEN 2641 TREUTLEN 2642 TREUTLEN 2643 TREUTLEN 2644 TREUTLEN 2645 TREUTLEN 2646 TROUP 2647 TROUP 2648 TROUP 2649 TROUP 2650 TROUP 2651 TROUP 2652 TROUP 2653 TROUP 2654 TROUP 2655 TROUP 2656 TROUP 2657 TROUP 2658 TROUP 2659 TROUP 2660 TURNER 2661 TURNER 2662 TURNER 2663 TURNER 2664 TURNER 2665 TURNER 2666 TURNER 2667 TURNER 2668 TURNER 2669 TURNER 2670 TURNER 2671 TURNER 2672 TURNER 2673 TURNER 2674 TWIGGS 2675 TWIGGS 2676 TWIGGS 2677 TWIGGS

B
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 4
JUDGE OF PROBATE COURT MEMBER, BOARD OF EDUCATION, DISTRICT 1 MEMBER, BOARD OF EDUCATION, DISTRICT 2 MEMBER, BOARD OF EDUCATION, DISTRICT 4
SHERIFF SOLICITOR-GENERAL STATE COURT JUDGE TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, DISTRICT 6 CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION, DISTRICT 2 COUNTY COMMISSION, DISTRICT 3 COUNTY COMMISSION, DISTRICT 4
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR GENERAL TAX COMMISSIONER
BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 3 BOARD OF COMMISSIONERS, DISTRICT 4
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER JUDGE OF PROBATE COURT
JUDGE OF STATE COURT SHERIFF
SOLICITOR OF STATE COURT TAX COMMISSIONER
BOARD OF EDUCATION DISTRICT 2 BOARD OF EDUCATION DISTRICT 4 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 84 of 88

A
2678 TWIGGS 2679 TWIGGS 2680 TWIGGS 2681 TWIGGS 2682 TWIGGS 2683 TWIGGS 2684 TWIGGS 2685 TWIGGS 2686 TWIGGS 2687 UNION 2688 UNION 2689 UNION 2690 UNION 2691 UNION 2692 UNION 2693 UNION 2694 UNION 2695 UNION 2696 UNION 2697 UPSON 2698 UPSON 2699 UPSON 2700 UPSON 2701 UPSON 2702 UPSON 2703 UPSON 2704 UPSON 2705 UPSON 2706 UPSON 2707 UPSON 2708 UPSON 2709 UPSON 2710 WALKER 2711 WALKER 2712 WALKER 2713 WALKER 2714 WALKER 2715 WALKER 2716 WALKER 2717 WALKER 2718 WALKER 2719 WALKER 2720 WALKER 2721 WALKER 2722 WALKER 2723 WALKER

B
CORONER COUNTY COMMISSIONER DISTRICT 1 COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 3 COUNTY COMMISSIONER DISTRICT 4
MAGISTRATE COURT JUDGE PROBATE COURT JUDGE SHERIFF TAX COMMISSIONER
BOARD OF EDUCATION DISTRICT 1 BOARD OF EDUCATION DISTRICT 3
CLERK OF SUPERIOR COURT COUNTY CORONER
JUDGE OF PROBATE COURT MAGISTRATE JUDGE SHERIFF SOLE COMMISSIONER SURVEYOR TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 5 BOARD OF EDUCATION, DISTRICT 7 CHAIRMAN, COUNTY COMMISSION
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER BOARD OF COMMISSIONERS, CHAIRPERSON
BOARD OF COMMISSIONERS, DISTRICT 1 BOARD OF COMMISSIONERS, DISTRICT 2 BOARD OF COMMISSIONERS, DISTRICT 3 BOARD OF COMMISSIONERS, DISTRICT 4
CLERK OF SUPERIOR COURT CORONER
COUNTY BOARD OF EDUCATION, POST 1 COUNTY BOARD OF EDUCATION, POST 4 COUNTY BOARD OF EDUCATION, POST 5
MAGISTRATE COURT JUDGE PROBATE COURT JUDGE SHERIFF STATE COURT JUDGE

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 85 of 88

A
2724 WALKER 2725 WALKER 2726 WALKER 2727 WALTON 2728 WALTON 2729 WALTON 2730 WALTON 2731 WALTON 2732 WALTON 2733 WALTON 2734 WALTON 2735 WALTON 2736 WALTON 2737 WALTON 2738 WALTON 2739 WALTON 2740 WALTON 2741 WALTON 2742 WARE 2743 WARE 2744 WARE 2745 WARE 2746 WARE 2747 WARE 2748 WARE 2749 WARE 2750 WARE 2751 WARE 2752 WARE 2753 WARE 2754 WARE 2755 WARE 2756 WARREN 2757 WARREN 2758 WARREN 2759 WARREN 2760 WARREN 2761 WARREN 2762 WARREN 2763 WARREN 2764 WARREN 2765 WARREN 2766 WARREN 2767 WARREN 2768 WASHINGTON 2769 WASHINGTON

B
STATE COURT SOLICITOR SURVEYOR
TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 6 BOARD OF EDUCATION, DISTRICT 7 CHAIRMAN, BOARD OF COMMISSION
CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 3 COUNTY COMMISSIONER, DISTRICT 6
COUNTY SURVEYOR JUDGE OF PROBATE COURT
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 7 CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSION CHAIRMAN COUNTY COMMISSIONER, DISTRICT 2 COUNTY COMMISSIONER, DISTRICT 4
JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF TAX COMMISSIONER
BOARD OF EDUCATION, DISTRICT 2 BOARD OF EDUCATION, DISTRICT 3 BOARD OF EDUCATION, DISTRICT 4 BOARD OF EDUCATION, DISTRICT 5 CHAIRMAN, COUNTY COMMISSION
CLERK OF SUPERIOR COURT CORONER
COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 2
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 86 of 88

A
2770 WASHINGTON 2771 WASHINGTON 2772 WASHINGTON 2773 WASHINGTON 2774 WASHINGTON 2775 WASHINGTON 2776 WAYNE 2777 WAYNE 2778 WAYNE 2779 WAYNE 2780 WAYNE 2781 WAYNE 2782 WAYNE 2783 WAYNE 2784 WEBSTER 2785 WEBSTER 2786 WEBSTER 2787 WEBSTER 2788 WEBSTER 2789 WEBSTER 2790 WEBSTER 2791 WEBSTER 2792 WEBSTER 2793 WEBSTER 2794 WEBSTER 2795 WHEELER 2796 WHEELER 2797 WHEELER 2798 WHEELER 2799 WHEELER 2800 WHEELER 2801 WHEELER 2802 WHEELER 2803 WHEELER 2804 WHEELER 2805 WHEELER 2806 WHITE 2807 WHITE 2808 WHITE 2809 WHITE 2810 WHITE 2811 WHITE 2812 WHITE 2813 WHITE 2814 WHITE 2815 WHITE

B
CORONER JUDGE OF PROBATE COURT
JUDGE OF STATE COURT SHERIFF
SOLICITOR GENERAL OF STATE COURT TAX COMMISSIONER
CLERK OF SUPERIOR COURT CORONER
MAGISTRATE JUDGE PROBATE JUDGE SHERIFF
STATE COURT JUDGE STATE SOLICITOR
TAX COMMISSIONER CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER - DISTRICT 1 COUNTY COMMISSIONER - DISTRICT 4
COUNTY COMMISSIONER CHAIR PROBATE/MAGISTRATE JUDGE SCHOOL BOARD AT LARGE CHAIR
SCHOOL BOARD, DISTRICT 1 SCHOOL BOARD, DISTRICT 4
SHERIFF TAX COMMISSIONER BOARD OF COMMISSIONERS (DISTRICT 1) BOARD OF COMMISSIONERS (DISTRICT 2) BOARD OF COMMISSIONERS (DISTRICT 3) BOARD OF EDUCATION (DISTRICT 2) BOARD OF EDUCATION (DISTRICT 6) BOARD OF EDUCATION AT LARGE CLERK OF SUPERIOR COURT
CORONER PROBATE/MAGISTRATE JUDGE
SHERIFF TAX COMMISSIONER BOARD OF EDUCATION, DISTRICT 1 BOARD OF EDUCATION, DISTRICT 3 CHAIRMAN, BOARD OF EDUCATION CHAIRMAN, COUNTY COMMISSION CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT
CORONER COUNTY COMMISSIONER, DISTRICT 1 COUNTY COMMISSIONER, DISTRICT 4
COUNTY SURVEYOR

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 87 of 88

A
2816 WHITE 2817 WHITE 2818 WHITE 2819 WHITFIELD 2820 WHITFIELD 2821 WHITFIELD 2822 WHITFIELD 2823 WHITFIELD 2824 WHITFIELD 2825 WHITFIELD 2826 WHITFIELD 2827 WHITFIELD
2828 WHITFIELD 2829 WHITFIELD
2830 WHITFIELD 2831 WHITFIELD 2832 WHITFIELD 2833 WILCOX 2834 WILCOX 2835 WILCOX 2836 WILCOX 2837 WILCOX 2838 WILCOX 2839 WILCOX 2840 WILCOX 2841 WILCOX 2842 WILKES 2843 WILKES 2844 WILKES 2845 WILKES 2846 WILKES 2847 WILKES
2848 WILKES
2849 WILKES 2850 WILKES 2851 WILKES 2852 WILKES 2853 WILKINSON 2854 WILKINSON 2855 WILKINSON 2856 WILKINSON 2857 WILKINSON 2858 WILKINSON 2859 WILKINSON

B
JUDGE OF PROBATE COURT SHERIFF
TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION DISTRICT 1 COUNTY BOARD OF EDUCATION DISTRICT 3 COUNTY COMMISSION CHAIRMAN AT LARGE
COUNTY COMMISSIONER DISTRICT 2 COUNTY COMMISSIONER DISTRICT 4
JUDGE OF PROBATE COURT
MAGISTRATE (TO SUCCEED GAYLE GAZAWAY)
MAGISTRATE (TO SUCCEED ROD WEAVER) MAGISTRATE (TO SUCCEED THOMAS "TOM"
PHILLIPS) SHERIFF TAX COMMISSIONER CLERK OF SUPERIOR COURT CORONER COUNTY COMMISSION, DISTRICT 2 COUNTY COMMISSION, DISTRICT 4 PROBATE / MAGISTRATE SCHOOL BOARD, DISTRICT 2 SCHOOL BOARD, DISTRICT 4 SHERIFF TAX COMMISSIONER BOARD OF EDUCATION - CHAIRMAN BOARD OF EDUCATION, DISTRICT 3 MEMBER BOARD OF EDUCATION, DISTRICT 4 MEMBER CHIEF MAGISTRATE JUDGE CLERK OF SUPERIOR COURT CORONER COUNTY COMMISSIONER, DISTRICT 1 MEMBER COUNTY COMMISSIONER, DISTRICT 2 MEMBER JUDGE OF PROBATE COURT SHERIFF TAX COMMISSIONER BOARD OF EDUCATION CHAIRMAN BOARD OF EDUCATION DISTRICT 3 BOARD OF EDUCATION DISTRICT 4 CLERK OF SUPERIOR COURT CORONER COUNTY SURVEYOR PROBATE/MAGISTRATE JUDGE

Case 1:20-cv-01489-AT Document 51-1 Filed 04/20/20 Page 88 of 88

A
2860 WILKINSON 2861 WILKINSON 2862 WORTH 2863 WORTH 2864 WORTH 2865 WORTH 2866 WORTH 2867 WORTH 2868 WORTH 2869 WORTH 2870 WORTH 2871 WORTH 2872 WORTH 2873 WORTH

B
SHERIFF TAX COMMISSIONER CHIEF MAGISTRATE CLERK OF SUPERIOR COURT
CORONER COUNTY BOARD OF EDUCATION, DISTRICT 2 COUNTY BOARD OF EDUCATION, DISTRICT 3
COUNTY COMMISSION CHAIRPERSON COUNTY COMMISSION, DISTRICT 1 JUDGE OF PROBATE COURT JUDGE OF STATE COURT SHERIFF SOLICITOR GENERAL TAX COMMISSIONER

Case 1:20-cv-01489-AT Document 51-2 Filed 04/20/20 Page 1 of 3
Exhibit B

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RULES OF
STATE ELECTION BOARD
CHAPTER 183-1 GEORGIA ELECTION CODE
SUBJECT 183-1-14 ABSENTEE VOTING
TABLE OF CONTENTS
183-1-14-0.6-.14 Secure Absentee Ballot Drop Boxes
RULE 183-1-14-0.6-.14 Secure Absentee Ballot Drop Boxes
(1) For the Elections held on June 9, 2020, County registrars are authorized to establish one or more drop box locations as a means for absentee by mail electors to deliver their ballots to the county registrars. Placing a voted absentee ballot into the drop box shall be deemed delivery pursuant to O.C.G.A. § 21-2-385 and is subject to the limitations on who may deliver a ballot on behalf of an elector.
(2) A drop box shall only be located on county or municipal government property generally accessible to the public.
(3) Drop box locations may open beginning 49 days before Election Day and shall close at 7:00 p.m. on Election Day. On Election Day, every drop box shall be closed and ballots collected at 7:00 p.m. Counties shall provide notice of the location of each drop box by posting such information on the home page of the county election website no later than the day the drop boxes are placed in a location.
(4) Drop box locations must have adequate lighting and use a video recording device to monitor each drop box location. The video recording device must either continuously record the drop box location or use motion detection that records one frame, or more, per minute until detection of motion triggers continuous recording.
(5) Video recordings of the drop box locations must be retained by the county registrars for 30 days after the final certification of the election, or until conclusion of any contest involving an election on the ballot in the county jurisdiction, whichever is later, and shall be made available to Secretary of State investigators upon request.
(6) A drop box shall be constructed of durable material able to withstand vandalism and inclement weather. The opening slot of a drop box shall not allow ballots to be tampered with or removed and shall be designed to minimize the ability for liquid to be poured into the drop box or rain water to seep in.
(7) A drop box shall be securely fastened to the ground or an immovable fixture.
Page 1 of 2

Case 1:20-cv-01489-AT Document 51-2 Filed 04/20/20 Page 3 of 3
(8) If the drop box utilizes a drop-slot into a building, the ballots must drop into a locked container, and both the drop-slot and the container must be monitored by video recording devices. (9) A drop box shall be clearly labeled “OFFICIAL ABSENTEE BALLOT DROP BOX”. Each drop box location shall clearly display signage developed by the Secretary of State regarding Georgia law related to absentee ballot harvesting and destroying, defacing, or delaying delivery of ballots. (10) The county registrars must arrange for collection of the ballots from each drop box location at least once every 24 hours. On Election Day, every drop box shall be closed and ballots collected at 7:00 p.m. Collection of ballots from a drop box must be made by a team of at least two people. Any person collecting ballots from a drop box must have sworn an oath in the same form as the oath for poll officers set forth in O.C.G.A. § 21-2-95. The collection team shall complete and sign a ballot transfer form upon removing the ballots from the drop box, which shall include the date, time, location and number of ballots. The ballots from the drop box shall be immediately transported to the county registrar and processed and stored in the same manner as absentee ballots returned by mail are processed and stored. The county registrar or a designee thereof shall sign the ballot transfer form upon receipt of the ballots from the collection team.
Authority: O.C.G.A. § 21-2-31
Page 2 of 2

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Exhibit C

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Exhibit D

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Exhibit E

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

BLACK VOTERS MATTER FUND, )

and MEGAN GORDON, on behalf of )

herself and all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRAD RAFFENSPERGER, in his )

official capacity as Secretary of State )

of the State of Georgia, and DEKALB )

BOARD OF REGISTRATION & )

ELECTIONS, and all others similarly )

Situated,

)

)

Defendant.

)

CIVIL ACTION FILE NO. 1:20-CV-1489-AT

DECLARATION UNDER PENALTY OF PERJURY OF STEPHANIE BECK

1. I am over the age of majority, of sound mind, and otherwise qualified to make this Declaration based upon my own personal knowledge. This Declaration is offered pursuant to 28 U.S.C. § 1746 in support of Georgia Secretary of State Brad Raffensperger’s (“Defendant” or “Secretary”) Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction in the above-captioned matter.
2. I am employed by the State of Georgia, and I am a Deputy Director at the Governor’s Office of Planning and Budget (“OPB”). The duties of OPB include: preparing the State budget, revenue and expenditure forecasting, providing budget analysis, and working with other constitutional officers and executive branch agencies, including the Office of Secretary of State,

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Exhibit F

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Statewide Results General Election November 8, 2016 Website last updated 12/1/2016 2:06:22 PM EST
Summary > Vote type summary

Results by County

Registered Voters: 5,443,046

Ballots Cast:

4,165,405

Voter Turnout:

76.53 %

OFFICIAL RESULTS Provisional ballots are included

Counties Partially Reported: 0 of 159 Counties Completely Reported: 159 of 159

President of the United States

Choice

Election Day Absentee by Mail

Advance in Person

Provisional Total

Percent

DONALD J. TRUMP (REP) HILLARY CLINTON (DEM) GARY JOHNSON (LIB)

863,089 753,766
69,198

102,766 98,417 6,533
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1,120,743 1,020,966
49,249

2,506 4,814
326

2,089,104 1,877,963
125,306

51.05% 45.89%
3.06%

Case 1:20-cv-01489-AT Document 51-7 Filed 04/20/20 Page 1 of 33
Exhibit G

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

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

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

ORDER This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction concerning the State of Georgia’s recent voter list maintenance activities in which the status of a large number of Georgia voters on the State’s inactive elector list was changed to cancelled status. Doc. No. [159].1

1 The Court recognizes that Plaintiffs use the words “removed” and “purged” throughout their arguments. However, Defendants have presented evidence and assert that the use of these words to describe the present circumstances is not correct, because no voter is ever removed from the voter rolls. In the process of voter list maintenance (which is permitted under applicable federal law, specifically the National Voter Registration Act, “NVRA,” 52 U.S.C. § 20501, et al.), the affected voter’s

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According to a press release from the Secretary of State’s Office, the list was comprised of 313,243 inactive voters.2 Of these 313,243, there were 108,306, who had filed a change of address request with the United States Postal Service showing they have moved to a different county or state and 84,376, who had election mail returned as undeliverable, totaling 192,682. For purposes of the pending motion, Plaintiffs are not contesting the cancellation of the registrations of these 192,682 voters. It is the remaining 120,561 voters (defined as having had no contact with their county election officials since January 1, 2012 and did not respond to two notices), which are at issue. Subsequent to the filing of Plaintiffs’ motion, the Secretary of State returned 22,000 of the 120,561 voters to the voting roll (after review of Plaintiffs’ briefing
status is changed from inactive to cancelled, which means that the voter is no longer eligible to vote. Doc. No. [172], p. 10, n.6 (citing Harvey Dec. ¶ 5). Notwithstanding Defendants’ argument, the Court recognizes that the applicable Georgia statute utilizes the word “removed.” See O.C.G.A. § 21-2-235(b) (“the elector shall be removed from the inactive list of electors.”) (emphasis added). 2 https://sos.ga.gov/index.php/elections/georgia_secretary_of_states_office_cleans _voter_file_by_4_as_required_by_law (last visited Dec. 23, 2019); see also Defs. Hearing Ex. 1 (Dec. 19, 2019).
2

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and based upon the definition of a calendar year). Thus, it is now approximately 98,000 voters that are at issue.3 I. BACKGROUND4
In 2018, Plaintiffs Fair Fight Action, Inc. (“Fair Fight Action”), Care in Action, Inc. (“Care in Action”), Ebenezer Baptist Church of Atlanta, Georgia, Inc. (“Ebenezer”), Baconton Missionary Baptist Church, Inc. (“Baconton”), Virginia-Highland Church, Inc. (“Virginia-Highland”), and The Sixth Episcopal District, Inc. (“Sixth Episcopal District”) (collectively, the “Plaintiffs”) sued Defendants Brad Raffensperger (in his official capacity as Secretary of State of the State of Georgia and as Chair of the State Election Board of Georgia), Members of the State Election Board in their official capacities (Rebecca N. Sullivan, David J. Worley, and Seth Harp), and the State Election
3 At the December 16, 2019 hearing, Defense Counsel indicated that there were about 50,000 of these individuals who would have been canceled under Plaintiffs’ interpretation of the law. However, Plaintiffs state that this number is incorrect and was probably based on the misunderstanding as to the calendar year for purposes of counting inactivity. Plaintiffs expert also explained that other corrections were also made by the Secretary of State based on a data transfer issue. See Dec. 19, 2019 Hearing Transcript at 27:7–10. 4 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court’s docketing software.
3

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Board (collectively, the “Defendants”), alleging that there are “serious and unconstitutional flaws in Georgia’s elections process” and that Defendants’ actions have “deprived Georgia citizens . . . particularly citizens of color, of their fundamental right to vote.” Doc. No. [41], ¶ 2. More specifically, Plaintiffs allege that Defendants enforced unconstitutional and otherwise unlawful legislation, such as O.C.G.A. § 21-2-234, which Plaintiffs refer to as “Use it or Lose it” and Defendants characterize as voter list maintenance.5
At the time of the filing of Plaintiffs’ lawsuit, Georgia’s statutory voter list maintenance authority was found in O.C.G.A. §§ 21-2-234 and 235 and required the Secretary of State to send a postcard to voters with whom there had been “no contact” for three calendar years. If the voter failed to return the postcard, the voter’s status was changed to “inactive.” If the voter still did not vote in the next two general elections, he or she was removed from the registration rolls (or as Defendants’ assert, the registration status was changed to cancelled).
5 Plaintiffs also refer to the statute as “voter list purge,” which as stated above, Defendants have presented evidence showing that this is an inaccurate description. See n.1, supra.
4

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During the 2019 Legislative Session, the Georgia General Assembly passed House Bill 316 (“HB 316”). HB 316, which was signed into law by the Governor on April 2, 2019, amends the Georgia Election Code to, among other things, provide for more notice under Georgia’s voter-list-maintenance process. HB 316 amended O.C.G.A. § 21-2-234 to mandate that the Secretary of State cannot remove voters from registrations rolls unless there has been “no contact” with them for five calendar years—as opposed to the previous three calendar years. See O.C.G.A. § 21-2-234(a)(2). HB 316 also amended O.C.G.A. § 21-2-234 to require notice to the voter not less than thirty days but no more than sixty days prior to the cancellation of the voter’s registration. Id. § 235(b).
The approximately 98,000 voters presently at issue are the voters who were placed on the inactive list (for no contact) under the prior statutory provision of three years “no contact” and prior to the enactment of HB 316’s five year “no contact” provisions. Defendants do not see HB 316 as retroactive or “backward” looking and have subjected the voters at issue to voter registration cancellation, even though they had less than five calendar years of no contact prior to being placed on the inactive elector list. Doc. No. [159-2], p. 11.
5

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In Count IV of their Complaint, as amended, Plaintiffs allege that Georgia’s voter-list-maintenance process violates Georgia voters’ rights to procedural Due Process under the First and Fourteenth Amendments of the United States Constitution. Doc. No. [41], ¶¶ 69–81, 205. The Complaint further states: “[t]he “use it or lose it” statute, as well as its enforcement by Defendants, unlawfully disenfranchise voters or severely burden their right to vote by penalizing voters based on their voting choices, providing voters inadequate notice, and failing to ameliorate the [registration cancellations] by offering same-day registration.” Id. ¶ 77.
On December 16, 2019, Plaintiffs filed an emergency Motion for Temporary Restraining Order and Preliminary Injunction in which they seek to enjoin Defendants from canceling the voter registrations of 98,561 “inactive” voters. Doc. No. [159].6 The Court held a hearing on the same date. During this hearing, Defense Counsel indicated that the “nuclear silo start process” began
6 Plaintiffs indicated at the hearing that a supplemental pleading was unnecessary to address the recent circumstances presented in their motion. However, the Court finds that because the events at issue happened after the filing of the complaint, the better practice is to supplement the complaint. See Fed. R. Civ. P. 15(d) (“On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”).
6

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on September 24, 2019 and the system completes the program on December 16, 2019, without anyone taking an action to “push the button,” to complete the process. Counsel also indicated that undoing the coding to stop the process, was challenging because there were other categories of cancellation in the program (besides the active voter cancellation). Counsel further indicated that if the already-running automated list maintenance process were stopped, the process becomes manual, which introduces the possibility for human error. Counsel also indicated that the State of Georgia was already within the ninety-day federal statutory timeline in which it could perform list maintenance and stopping the process would render the State of Georgia not being able to perform list maintenance again until the year 2021. Counsel further indicated that it is easier to reinstate the voters rather than stop the ongoing automated process, because the voter registrations could be restored in an overnight, twenty-four to forty-eight-hour process.
The Court declined to grant an emergency restraining order, finding the absence of imminent irreparable injury, based in large part on Defense Counsel’s representation as to the ease of ability to restore the registrations of the voters at issue within twenty-four to forty-eight hours. Doc. No. [164].
7

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The parties thereafter briefed the preliminary injunction portion of the motion (Doc. Nos. [172] and [177]) and the Court held a second hearing on December 19, 2019. Doc. No. [180]. As stated above, in the interim time period between the emergency December 16, 2019 hearing and the December 19, 2019 preliminary injunction hearing, Defendants returned approximately 22,000 Georgia voters to the voter roll by changing their status from cancelled to inactive status. During the December 19, 2019 hearing, the parties presented testimony (from expert witness, Dr. Michael McDonald and Georgia Elections Director, Chris Harvey) and exhibits. Doc. Nos. [180], [181].
Post-hearing, the Court posed two additional questions to the parties, concerning the asserted injury and state interests.7 The parties submitted their responses on December 23, 2019. Doc. Nos. [184], [185].
7 The Court’s exact questions are as follows: The Court notes the parties’ different statutory interpretations of HB 316. Pursuant to Anderson v. Celebrezze, 460 U.S. 779 (1983), the Court must consider “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendment that the plaintiff[s] seek[] to vindicate.” Id. at 789. The Court asks Plaintiffs to address the following question: What is the precise injury that will be suffered by the
8

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This matter is now ripe for review.
II. LEGAL STANDARD
The Court considers four factors when deciding whether to issue a
preliminary injunction pursuant to Federal Rule of Civil Procedure 65:
(1) whether there is a substantial likelihood of success on the merits of the
complaint; 8 (2) whether the preliminary injunction is necessary to prevent
approximately 120,000 people at issue here if this preliminary injunction is denied?
Additionally, pursuant to Anderson, the State must put forward “precise interests” as “justifications for the burden imposed by its rule.” Id. at 789. “[T]he Court must not only determine the legitimacy and strength of those interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. The Court asks Defendants to address the following question: Notwithstanding its Eleventh Amendment argument, what interest does the State have in applying its interpretation of H.B. 316 to the approximately 120,000 people at issue here?
8 It appears to the Court that Plaintiffs are arguing the likelihood of success on the merits of their motion for preliminary injunction; however, the Court’s review of applicable authority indicates that the standard involves likelihood of success on the
merits of the complaint. See Forsyth Cty. v. U.S. Army Corps of Engineers, 633 F.3d
1032, 1042 (11th Cir. 2011) (noting that “[t]he County failed to establish a substantial likelihood of success on the merits of its complaint.”); Mann v. Palmer, 713 F.3d 1306, 1310 (11th Cir. 2013) (indicating that the petitioner had to establish “a substantial likelihood of success on the merits of his complaint.”); Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1299 (11th Cir. 2013) (noting that the district court did not
9

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irreparable injury; (3) whether the threatened injury outweighs the harm that the preliminary injunction would cause to the non-movant; and (4) whether the preliminary injunction would be adverse to the public interest.9 Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). Injunctive relief is an extraordinary and drastic remedy and should not be granted unless the movant clearly establishes the burden of persuasion as to each of these four factors. Siegel v. LePore, 234 F. 3d 1163, 1176 (11th Cir. 2000).10 In addition, “[a]t the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the character and objectives of
abuse its discretion in denying injunction motion because it properly concluded that movants failed to show a substantial likelihood of success on the merits of two counts of their complaint); and Common Cause/Georgia v. Billups, 554 F.3d 1340, 1348 (11th Cir. 2009) (noting that the district court ruled that the organizations and voters had proved a substantial likelihood of success on the merits of their complaint). 9 Factors three and four also involve consideration of whether the movant has shown reasonable diligence. See Benisek v. Lamone, --- U.S. ----, 138 S. Ct. 1942, 1944, 201 L. Ed. 2d 398 (2018) (“a party requesting a preliminary injunction must generally show reasonable diligence.”). 10 However, if a movant is unable to show a substantial likelihood of success on the merits, the court need not consider the other preliminary injunction requirements. See Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
10

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the injunctive proceeding.’” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). The decision to grant preliminary injunctive relief is within the broad discretion of the district court. Majd–Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901 (11th Cir. 1984). III. ANALYSIS
The crux of Plaintiffs’ preliminary injunction motion involves the question of what should happen to the approximately 98,000 voters that were placed on the State of Georgia’s inactive list (for no contact) prior to the enactment of HB 316. Plaintiffs assert that a constitutional question is presented by the circumstances and this Court should apply the Supreme Court’s Anderson-Burdick balancing test (involving consideration of the asserted injury and the state’s interest) to evaluate whether the voting restriction at issue violates Due Process or the First Amendment. Plaintiffs also assert that the State of Georgia has no interest in removing voters from the rolls in violation of its own laws. Doc. No. [176], p. 2. In contrast, Defendants assert the Eleventh Amendment and the Pullman Doctrine inter alia to challenge the propriety of Plaintiffs’ motion. As the Defendants’ arguments are
11

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jurisdictionally based, the Court will consider those arguments first. 11 The Court will thereafter consider Plaintiffs’ constitutional claim.
A. Eleventh Amendment In opposition to Plaintiffs’ motion, Defendants argue that Plaintiffs’ motion and legal theory are barred by the Eleventh Amendment, because Plaintiffs are essentially asking this Court to adjudicate state law for the first time (and otherwise address state-law claims in federal court). Doc. No. [172], pp. 2, 8, 16. More specifically, Defendants’ argument recognizes that Plaintiffs and Defendants have different interpretations of the effect of HB 316 on the approximately 98,000 voters at issue. Defendants argue that Plaintiffs’ requested injunctive relief requires this Court to endorse Plaintiffs’ interpretation of state law, which is barred by the Eleventh Amendment and State sovereign immunity. Id. at p. 16. Defendants assert that the reality of
11 “Because the Eleventh Amendment represents a constitutional limitation on the federal judicial power established in Article III, federal courts lack jurisdiction to entertain claims that are barred by the Eleventh Amendment.” McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001) (citations omitted); see also Edelman v. Jordan, 415 U.S. 651, 678 (1974) (“the Eleventh Amendment defense . . . partakes of the nature of a jurisdictional bar”) and Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983) (discussing the Pullman abstention (from the exercise of federal jurisdiction) doctrine).
12

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Plaintiffs’ motion is that “it is a declaratory judgment claim regarding compliance with HB 316 masquerading as a constitutional argument.” Id. at p. 17. Defendants further argue that “Plaintiffs cannot succeed in suggesting their relief is based in federal law when it requires this Court to determine a novel issue of state law.” Id. at p. 18.
In opposition, Plaintiffs state that their claims arise from the First and Fourteenth Amendments of the United States Constitution, not state law—and that their arguments do not require the Court to analyze novel issues of state law. Doc. No. [177], p. 3.
The Eleventh Amendment states in relevant part: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” U.S. Const. amend. XI. The United States Supreme Court has held that “a suit against state officials on the basis of state law contravenes the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984).12 The Court also indicated that when injunctive relief is
12 “The Supreme Court [in Pennhurst] has explained that the rationale for the
13

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sought, “an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it.” Id. at 113 (citations omitted). The Court further stated: “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Id. at 106.
The Eleventh Circuit Court of Appeals has addressed the Pennhurst decision on numerous occasions. In their briefing, Plaintiffs primarily rely upon the Eleventh Circuit’s 1989 decision in Brown v. Georgia Department of Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). In Brown, the Eleventh Circuit held that the Supreme Court’s decision in Pennhurst does not apply when a plaintiff alleges a violation of the federal Constitution. Id. at 1023. The Eleventh Circuit stated that under Pennhurst, “the determinative question is not the relief ordered, but whether the relief was ordered pursuant to state or federal
[exception to the Eleventh Amendment that allows state officials to be sued for prospective relief, i.e., Ex parte Young doctrine] ‘rests on the need to promote the vindication of federal rights,’ but in a case alleging that a state official has violated state law, this federal interest ‘disappears.’” Ala. v. PCI Gaming Auth., 801 F.3d 1278, 1290 (11th Cir. 2015) (citations omitted).
14

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law.” Id. In the case sub judice, no relief has been ordered, so the Court cannot necessarily answer this determinative question.13
Additional Eleventh Circuit authority indicates that when the gravamen of the complaint appears to be that the State improperly interpreted and failed to adhere to a state statute, there is a Pennhurst problem—as despite references to the United States Constitution in the pleadings, the claims necessarily rely on a determination that a state official has not complied with state law,14 a determination that is barred by sovereign immunity. See S&M Brands, Inc. v. Georgia ex rel. Carr, 925 F.3d 1198, 1205 (11th Cir. 2019) and DeKalb Cty. Sch. Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir. 1997); see also Hand v. Scott, 888 F.3d 1206, 1213–14 (11th Cir. 2018) (holding that “the district court cannot
13 Phrased a different way, in Pennhurst, the Supreme Court indicated that “the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought.” Pennhurst, 465 U.S. at 107 (emphasis added). In the case sub judice, the Court finds that the effect of the relief sought by Plaintiffs is a determination by this Court that Defendants have not complied with state law. 14 For example, Plaintiffs use the phrase “violation of state law” at numerous times in their briefing and hearing exhibit/PowerPoint. See e.g., Doc. Nos. [159-1], p. 23; [176], pp. 2, 7 n.1.
15

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enjoin [a state] to follow the district court’s interpretation of [the state’s] own constitution.”).15
While the Court recognizes Plaintiffs’ arguments and citation of authority to the contrary, as well as its ability to review state statutes,16 the gravamen of the Plaintiffs’ pending motion appears to be that the Secretary of State (and therefore the State of Georgia) has improperly interpreted and failed to adhere to Georgia’s new voter list maintenance statute (HB 316).17 This is evidenced by the motion’s numerous references to violation of state law and the fact that Plaintiffs are not seeking an injunction as to the entirety of the
15 This Court’s independent research only found one case to the contrary, Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981); however, the applicability and precedential weight of that case is doubtful, considering that it was decided pre-Pennhurst and involved a substantive due process claim, as opposed to the procedural due process claim at issue here. 16 As stated by Judge Gerald Tjoflat, the Supremacy Clause of the United States Constitution “allows federal courts to review state statutes, but federal courts are limited to refusing to apply the provisions they find unconstitutional.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1348 (11th Cir. 2019) (Tjoflat, J., dissenting). Here, the Court is not being asked to find a statute unconstitutional. Plaintiffs are asking the Court to find a state official’s interpretation of a statute unconstitutional. 17 More specifically, the case of Democratic Executive Committee v. Lee, 915 F.3d 1312 (11th Cir. 2019) cited by Plaintiffs is distinguishable in that the arguments in that case did not center upon a violation of state law.
16

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approximately 300,000 voter registrations that were subject to cancellation. Accordingly, in light of the above-stated authority, the Eleventh Amendment bars Plaintiffs’ motion to the extent that it requires a conclusion by this Court that Plaintiffs’ interpretation of HB 316 is correct.18
B. Pullman Doctrine While the Court considers the Eleventh Amendment analysis determinative, in the interest of caution, the Court will consider Defendants’ Pullman abstention doctrine argument. Defendants assert the Pullman abstention doctrine, on the ground that “Plaintiffs’ Motion is predicated upon only one discrete subset of list-maintenance activities that has not been adjudicated by state courts [and further argue that] this Court should refrain from adopting Plaintiffs’ arguments on an unsettled issue of state law.” Doc. No. [172], p. 20. “Under the Pullman abstention doctrine, a federal court will defer to ‘state court resolution of underlying issues of state law,’” before a substantial
18 The Court recognizes that Plaintiffs also present an alternative argument in the event that the Court declines to engage in statutory interpretation or otherwise finds that HB 316 is ambiguous as to the voters at issue. To this regard, the Court will continue with its analysis and consider the constitutional question, infra.
17

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federal constitutional question can be decided. Siegel, 234 F.3d at 1174; see also Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). In considering abstention, the court “must take into account the nature of the controversy and the importance of the right allegedly impaired.” Id. In light of said consideration, the Eleventh Circuit has held that “voting rights cases are particularly inappropriate for abstention.” Id. In lieu of abstention, the Eleventh Circuit has indicated that “the preferable way to obtain state court resolution of those state law issues is through the certification process established by” the state supreme court. Pittman v. Cole, 267 F.3d 1269, 1288 (11th Cir. 2001); cf. Roe v. State of Ala., 43 F.3d 574, 582 (11th Cir. 1995) (“We agree that federal courts should refrain from holding a state election law unconstitutional when a reasonable alternative course of action exists. We are, therefore, reluctant to reach a final decision in this case while the proper application of the [State] Election Code remains muddled. There are two ways to show deference to the state decisionmakers in this matter: we can leave the plaintiffs to their state remedies; or we can certify a question to the Supreme Court of [the state], retain jurisdiction, and await that court’s answer.”) (citations omitted). In light of this authority, the Court finds that it would not
18

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be appropriate to apply the Pullman abstention doctrine to this voting rights case. Nevertheless, the Court still does not proceed to interpreting the statute, because from this Court’s brief review, the answer as to how HB 316 applies to the voters who were already on the State of Georgia’s inactive elector list (prior to enactment of HB 316) is not clear cut and both Plaintiffs and Defendants have offered reasonable interpretations for how HB 316 affects the voters at issue. Cf. Duncan, 657 F.2d at 699 (providing an overview of authority concerning clear and vague statutes in the context of the Pullman abstention doctrine). In essence, HB 316 is open to interpretation and could reasonably be interpreted as either party contends. In addition, an interpretation of HB 316 by this Court at this stage of the case creates a possibility for conflicting interpretations in the event that a state court later decides the issue—there would be an interpretation by the federal court and an interpretation by the state court. Cf. Pennhurst, 465 U.S. at 122 n.32 (“when a federal decision on state law is obtained, the federal court’s construction often is uncertain and ephemeral”).
As stated above, the preferable way to obtain resolution of the state law issue is through the certification process by the state supreme court. However,
19

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neither party has asked to certify a question to the Georgia Supreme Court.19
Plaintiffs also have an additional remedy in the form of seeking a mandamus
in the state courts. Nevertheless, as stated above, the Court considers the
Eleventh Amendment analysis, supra, determinative to the extent that the
issues involve proper interpretation (and violation) of state law.20
19 The Court recognizes that it may sua sponte certify a question the Georgia Supreme Court; however, as indicated at the December 19, 2019 hearing, the Court is concerned as to timing in that the date that the Georgia Supreme Court will return an answer is unknown and Plaintiffs have continuously expressed a desire to resolve this case in March of 2020. 20 The interplay between the Pennhurst/Eleventh Amendment ruling and the Pullman abstention doctrine has been described as follows.
The configuration of the Pennhurst litigation was identical to the litigation in Pullman. Both cases involved lawsuits filed in federal court, which raised both state claims and federal constitutional claims against state officials, but which could have been resolved on the state law claims alone. The Supreme Court, however, did not consider Pullman abstention as a potential resolution of the Pennhurst litigation. Instead, the Court replaced the methodology of a discretionary stay envisioned in Pullman with a rule of mandatory dismissal. As a result, the role of Pullman abstention in allocating decisionmaking responsibility in suits against state officials was transmuted substantially without a word of explanation by the Court. Keith Werhan, Pullman Abstention After Pennhurst: A Comment on Judicial Federalism, 27 Wm. & Mary L. Rev. 449, 454 (1986).
20

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C. Constitutional Claim Assuming, arguendo, that Plaintiffs’ motion does not seek a ruling by the Court regarding the correct statutory interpretation of HB 316 and whether the three-year or five-year “no contact” provision applies to the approximately 98,000 voters at issue, the Court proceeds with the following constitutional analysis of HB 316 and, in particular, the “no contact” scheme therein. The Supreme Court “has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). This equal right to vote, however, “is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways.” Id.; see also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.”). “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/Georgia v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009) (internal quotation marks omitted). Consequently, a
21

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reviewing court must first “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). A court must then “identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule.” Id. “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.” Id.; see also Burdick, 504 U.S. at 434. If a State’s election law imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at 788). But if a State’s election law imposes a “severe” burden, it must be “narrowly drawn to advance a state interest of compelling importance.” Id. (citing Norman v. Reed, 502 U.S. 279, 289 (1992)). In other words, “lesser burdens . . . trigger less exacting review.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Accordingly, the Court begins by evaluating the burden of this “no contact” scheme on Plaintiffs’ First and Fourteenth Amendment rights.
22

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“Ordinary and widespread burdens, such as those requiring nominal effort of everyone, are not severe.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring) (quotation omitted). However, burdens “are severe if they go beyond the merely inconvenient.” Id. Plaintiffs argue that the burden imposed on voters by the “no contact” scheme is “severe” and that, should their motion for preliminary injunction be denied, the “precise injury” the approximately 98,000 voters at issue will suffer is “complete disenfranchisement.” See generally Doc. Nos. [159-1]; [184]. Plaintiffs contend that removing voters solely due to inactivity—without any other evidence that said voters have moved—raises a substantial risk that individuals will be erroneously deprived of their constitutional right to vote. See Doc. No. [169-1], p. 19. They specifically cite to a 2018 Election Assistance Commission Report, in which statistics show that the State of Georgia mailed 478,295 voter confirmation notices in advance of the 2018 election to individuals it suspected of having moved. See Doc. No. [184-2]. Of those confirmation notices, more than 75% of the notices were neither responded to nor returned as
23

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undeliverable, suggesting that a substantial number of the notices were never read.21 Id.
Additionally, Plaintiffs argue that once a voter is removed from the voter roll under the “no contact” scheme, the likelihood of complete disenfranchisement is high for two reasons. See Doc. No. [184], pp. 3–5. First, the State of Georgia does not notify individuals that their voter registration has been cancelled. Thus, Plaintiffs argue that the first moment that many voters learn that they have been removed from the voter rolls is when they arrive at the polls on Election Day. Because the State of Georgia does not offer same-day registration, said individuals are therefore ineligible to vote. Second, for the individuals who have learned that they have been removed from the voter rolls, there is only a narrow window of time for said individuals to re-register before the next election, as Georgia law requires voters to register weeks before any election. See O.C.G.A. § 21-2-224.
21 Plaintiffs also point to Mr. Harvey’s testimony at the preliminary injunction hearing, in which he acknowledged that “[t]here are a lot of people that don’t check their mail” and that, upon receiving confirmation notices, voters may think it’s a “mailer,” “an advertisement,” or “marketing things that look like . . . official documents.” See Dec. 19, 2019 Hearing Transcript at 79:1–79:18.
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Defendants, in response, argue that Plaintiffs have provided no evidence of any burden that the “no contact” scheme imposes on the right to vote, let alone a “severe” burden. See generally Doc. Nos. [172]; [185]. In support of this contention, Defendants rely on the Eleventh Circuit’s ruling in Billups. Therein, the Eleventh Circuit upheld the constitutionality of a state law requiring voters to produce photo identification prior to casting a ballot. See 554 F.3d at 1355. Employing the Anderson-Burdick balancing test, the Eleventh Circuit found that the plaintiffs “failed to prove that any individual would bear a significant burden” because they could not “identify a single individual who would be unable to vote because of the Georgia statute or would face an undue burden to obtain a free voter identification card.” Id. at 1354. Accordingly, the Eleventh Circuit found that “the burden on Georgia voters is ‘slight’” and, thus, that the state interest need not be “compelling.” Id. (citing Burdick, 504 U.S. at 439).
Defendants argue that, like the plaintiffs in Billups, Plaintiffs have failed to prove that any individual would bear a significant or “severe” burden due to the “no contact” scheme. Namely, in support of their motion, Plaintiffs include eight declarations from Georgia voters. See Doc. Nos. [159-3]; [159-4]; [159-5]; [159-6]; [159-7]; [159-8]; [159-9]; [159-12]. Plaintiffs initially stated that
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all eight of these voters were due to be removed from the voter rolls under the “no contact” scheme despite that fact that none of these voters had ever moved. Doc. No. [159-1], p. 15. In response, however, Defendants contend that four of the voters (Linda Bradshaw, Keme Hawkins, Tommie Jordan, and Deepak Eidnani) remain on the official list of voters as “active” voters. See Doc. No. [172], pp. 13–14. Thus, these four voters are eligible and able to vote.
Moreover, Defendants contend that the other four voters (Clifford Thomas, David Hopkins, Charlesetta Young, and Kilton Smith) were removed from the voter rolls after failing to respond to the two confirmation notices sent pursuant to the “no contact’ scheme under HB 316.22 At this time, there is no evidence that any of these four voters were burdened or precluded from returning the two confirmation notices, which are prepaid and preaddressed.
22 The Court notes that these four voters dispute that they ever actually received confirmation notices. However, Defendants contend that Secretary of State records show that confirmation notices were in fact sent to these four voters. See Doc. No. [172-1]. “The common law has long recognized a rebuttable presumption than an item properly mailed was received by the addressee.” Chung v. JPMorgan Case Bank, N.A., 975 F. Supp. 2d 1333, 1348 (N.D. Ga. 2013) (quoting In re Farris, 365 F. App’x 198, 199 (11th Cir. 2010)). Plaintiffs’ conclusory allegation that these four voters never actually received confirmation notices “is insufficient to rebut the presumption.” In re Farris, 365 F. App’x at 200 (“The mere denial of receipt, without more, is insufficient to rebut the presumption.”).
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Additionally, there is no evidence at this time that any of the four voters are precluded or burdened by registering to vote again. In fact, at the preliminary injunction hearing, Mr. Harvey testified that re-registering to vote after being removed from the voter rolls for “no contact” is no different from registering to vote in the first instance. See Dec. 19, 2019 Hearing Transcript at 47:23–48:4. A voter can re-register to vote by going online to use the Online Voter Registration system or renewing one’s driver’s license or identification card with the Department of Driver Services. Id.
Based on the limited factual record before the Court, the Court finds that Plaintiffs have not shown a substantial likelihood of success that the burden imposed by the “no contact” scheme (i.e., returning a prepaid, preaddressed confirmation notice and/or re-registering to voter) is severe.
The Court now turns to the State’s purported interests in enforcing the “no contact” provision under its interpretation of HB 316. Because the burden of said provision is “slight,” the state interest need not be “compelling . . . to tip the constitutional scales in its direction.” Burdick, 504 U.S. at 439. Rather, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. Id. at 434.
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Defendants have identified three State interests in enforcing the “no contact” provision under its interpretation of HB 316. First, Defendants state that State of Georgia has an interest—both generally and as compelled by federal law—in maintaining reliable lists of electors. See Doc. No. [185], p. 4. Under the NVRA, states are required to make “a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters.”23 52 U.S.C. § 21083(a)(4)(a). Congress mandates this, in part, “to protect the integrity of the electoral process; and . . . [to] ensure that accurate and current voter registration rolls are maintained.” 52 U.S.C. §§ 20501(b)(3) and (b)(4). Second, Defendants state that the State of Georgia and the Secretary of State have an interest in applying election laws as written specifically. See Doc. No. [185], p. 5. Finally, Defendants maintain that the “no contact” scheme eliminates voter confusion and improves election-day operations. Doc. No. [185], p. 5. For example, Defendants argue that inaccurate voter lists that
23 The method employed by the State of Georgia—both prior to and after the enactment of HB 316—is contemplated by the NVRA and has been upheld by the Supreme Court in Husted v. A. Philip Randolph Inst., ---U.S.----, 138 S. Ct. 1833, 1842 (2018). As Plaintiffs correctly note, however, the Supreme Court in Husted only addressed whether the challenged voter-list-maintenance process complied with the NVRA and did not address the constitutionality of said process.
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incorporate individuals who have moved and are no longer eligible may cause local election officials to improperly assess where equipment and personnel should be deployed on election day in 2020. Id. at pp. 5–6.
Plaintiffs, in response, argue that the State has waived or disclaimed any such interest in applying a three-year “no contact” provision to the approximately 98,000 individuals at issue since HB 316 amended the “no contact” provision to require five years of inactivity. In doing so, Plaintiffs overstate the burden on the State under the Anderson-Burdick test. As discussed supra, Plaintiffs failed to show a substantial likelihood of success that the burden imposed by the “no contact” scheme is “severe.” Accordingly, under the Anderson-Burdick, the State is only required to articulate an important regulatory interest in enforcing their interpretation of said provision. See Burdick, 504 U.S. at 439. The Court finds that all three of the above-stated regulatory interests are sufficient to satisfy that obligation under the AndersonBurdick test.
The Court therefore concludes that, at this time, Plaintiffs have not met their burden of showing a substantial likelihood of success that the “no contact” scheme set forth in HB 316 violates the First and Fourteenth Amendments.
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Because Plaintiffs have failed to establish a substantial likelihood of success on the merits, the Court need not examine whether Plaintiffs have will irreparable harm, or whether a balance of hardships weighs in Plaintiffs’ favor, or, finally, whether the public interest would support the issuance of a preliminary injunction. See Bloedorn, 631 F.3d at 1242. IV. CONCLUSION
Plaintiffs’ Motion for Preliminary Injunction (Doc. No. [159]) is DENIED on the ground that the Eleventh Amendment of the United States Constitution and the principles of sovereign immunity do not permit a federal court to enjoin a state (or its officers) to follow a federal court’s interpretation of the State of Georgia’s laws. Such interpretation is within the province of the state court. As to the remainder of Plaintiffs’ constitutional claim, the motion is also DENIED on the ground that Plaintiffs have failed to show a substantial likelihood of success on the merits of their claim that the “no contact” provision violates the First and Fourteenth Amendments. It is important to note that the Court has not conclusively determined the rights of the parties, but in accordance with
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applicable authority, only balanced the equities in the interim as this litigation proceeds.24
While the denial of this motion is based upon the Eleventh Amendment and respect for state sovereignty, the Court has not ignored the fundamental significance of voting under our constitutional structure.25 In recognition of this important right, the Court would be remiss not to express its serious concern that there needs to be an immediate and accurate interpretation by the state court of HB 316 as to its effect on the voters who were already on the State’s inactive list prior to the effective date of HB 316. To this regard, the Court will allow Plaintiffs, upon request, to stay the pending litigation to seek emergency relief at the state court level (or otherwise certify a question the Georgia Supreme Court). In light of the immediacy of the situation in District 171, it is within the authority of the Secretary of State to return any cancelled voters to inactive status to allow Plaintiffs reasonable time to seek a decision from the state court.
24 See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019) (noting that “the purpose of the injunction is not to conclusively determine the rights of parties, but only to balance the equities in the interim as the litigation proceeds.”). 25 Burdick, 504 U.S. at 432.
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The Court also, pursuant to its inherent authority to control the conduct of the parties, ORDERS Defendants to make additional diligent and reasonable efforts (through notices on the Secretary of State’s website and press releases) to inform the general public (especially those in House District 171, who face a December 30, 2019 deadline to re-register) of this Court’s order in regard to the voter list maintenance process and the need for the canceled voters to reregister to vote during the applicable registration time period. 26
IT IS SO ORDERED this 27th day of December, 2019. s/Steve C. Jones HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
26 See generally Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir. 2002) (discussing inherent authority).
32

Case 1:20-cv-01489-AT Document 51-8 Filed 04/20/20 Page 1 of 28
Exhibit H

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

League of Women Voters of Ohio, et al.,

Plaintiffs,

Case No. 2:20-cv-1638

v.

Judge Michael H. Watson

Frank LaRose,

Magistrate Judge Deavers

Defendant.

OPINION AND ORDER

Plaintiffs sue Ohio Secretary of State Frank LaRose (“Secretary LaRose”)

and seek an emergency temporary restraining order (“TRO”) to prevent Ohio’s

primary election from taking place in the time and manner prescribed by House

Bill 197 (“H.B. 197”). Mot., ECF No. 4. The State of Ohio, the Ohio Democratic

Party (“ODP”), and the Ohio Republican Party (“ORP”) moved for, and were

granted, leave to intervene as Defendants. Order, ECF No. 38. Likewise, the

Libertarian Party of Ohio (“LPO”) moved for, and was granted, leave to intervene

as a Plaintiff. Id. LPO moves for a TRO or preliminary injunction as well.1 ECF

No. 31. The Court granted Honest Elections Project’s motion to file an amicus

1 The Court has reviewed LPO’s reply brief, ECF No. 53, but does not consider the arguments (not to mention new claims) raised for the first time in that brief.

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brief, ECF No. 25, and the Court now grants Disability Rights Ohio’s (“DRO”) motion to file an amicus brief, ECF No. 54-1.2
I. FACTS3 A. Background Ohio’s primary election was scheduled for March 17, 2020. On March 9, 2020, Governor Mike DeWine declared a state of emergency in response to the spread of COVID-19. Within a matter of days, the World Health Organization declared COVID-19 a pandemic, President Donald Trump declared the COVID19 outbreak a national emergency, and, in Ohio, all schools were closed, gatherings limited, and restaurants and bars closed for dining-in. Confusion ensued on March 16, 2020, the day before the election, after Governor DeWine announced that it was unsafe to hold in-person voting for the primary election. A lawsuit was filed in the Franklin County Court of Common Pleas seeking an emergency delay of the election, but the request was denied later that same day. Ultimately, Ohio’s Department of Health Director Dr. Amy Acton issued an order prohibiting polling locations from operating on March 17, 2020, due to the COVID-19 pandemic. Thereafter, Secretary LaRose issued

2 To the extent DRO seeks to argue a new claim, such as a claim that H.B. 197 violates the ADA, that is not included in Plaintiffs’ Amended Complaint, the Court does not consider it. 3 All relevant facts are taken from Plaintiffs’ Amended Complaint, ECF No. 4, unless stated otherwise.

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Directive 2020-06, which suspended in-person voting in the primary election until June 2, 2020. See LaRose Ex 3, ECF No. 44-3.
On March 17, 2020, two lawsuits were filed in the Ohio Supreme Court and Franklin County Court of Common Pleas challenging Secretary LaRose’s authority to issue that Directive. See State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Sup. Ct. Mar. 17, 2020); Reardon v. LaRose, No. 20-cv-2105 (Franklin Cty. Ct. Com. Pl. Mar. 17, 2020)4. The case filed in the Supreme Court requested that the date of the primary be re-set for an earlier time and that voting be only through the mail.5
The Ohio General Assembly became involved and on March 25, 2020, unanimously passed H.B. 197, a comprehensive COVID-19 bill, which also established April 28, 2020, as the deadline by which absentee ballots must be received. Secretary LaRose rescinded his prior directive, and on March 27, 2020, Governor DeWine signed the bill into law. It is that bill that is challenged in this lawsuit.
Specifically, H.B. 197, Section 32, part of an overarching COVID-19 relief bill, implements, as relevant, the following for completing voting in Ohio’s primary election:

4 Appeal voluntarily dismissed on March 31, 2020. See Reardon, et al. v. LaRose, No. 20AP-160 (10th Dist. Ohio Mar. 31, 2020). 5 ODP voluntarily dismissed its lawsuit in the Ohio Supreme Court after H.B. 197 was passed. ODP Resp. 4 n.1, ECF No. 48; see also State ex rel. Ohio Democratic Party v. LaRose, 202 Ohio LEXIS 762, (Sup. Ct. Ohio Mar. 27, 2020) (Order granting ODP’s application for dismissal).

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• Voids Secretary LaRose’s Directive 2020-06, § 32(A); • Prohibits the processing of voter registration applications
submitted after February 18, 2020, § 32(B)(3); • Permits eligible voters to apply for an absentee ballot up
through noon on April 25, 2020 (with exceptions for voters under O.R.C. § 3509.08) and votes cast by absentee mail ballot6 postmarked by April 27, 2020, and received by May 8, 20207, to be counted, § 32(C), (E)
o Defines eligible electors as those individuals who have not already cast a ballot in the March 17, 2020 primary election or other special election, and who were registered to vote as of February 18, 2020, § 32(C)(1)(a); and
• Requires Secretary LaRose to send out postcards to registered voters notifying them how to apply for and submit an absentee ballot and the deadlines for doing so. § 32(C)(2).8
H.B. 197, Section 32.
Plaintiffs allege that, by prohibiting the processing of voter registration
applications after February 18, 2020, H.B. 197 violates the National Voter
Registration Act of 1993 (“NVRA”), which requires registration be made available

6 With very limited exceptions for in-person voting. § 32(D)(1). 7 With limited exceptions. § 32(E)(2)–(3). 8 Currently Ohio Revised Code § 3509.03 requires applicants to “make a written application” for absentee ballots. Plaintiffs allege that this requirement will disproportionately burden voters who do not have means for or access to printers, envelopes, or stamps. However, the Court takes judicial notice of the FAQ section of the Secretary of State’s website which does not require a pre-printed form, as long as a written submission of a request for an absentee ballot includes the required information. It also permits calling your county board of elections and requesting that an absentee ballot application be sent to you. See Ohio Secretary of State Website, “I don’t have a printer. Can I request a vote-by-mail ballot?;” https://www.sos.state.oh.us/elections/voters/2020-primary-frequently-asked-questions/, last visited April 1, 2020. It still appears, however, that the voter is responsible for postage required to mail-in the absentee ballot application.

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thirty days before any election for federal office. Plaintiffs also argue that H.B.
197 creates an unconstitutional burden on the right to vote, in violation of the
First and Fourteenth Amendments.
Plaintiffs seek a temporary restraining order that mandates the following:
(1)Any qualified Ohio elector who submitted a voter registration application or updated their registration information between February 19, 2020, and 30 days prior to the day on which the 2020 primary election is set to conclude shall have their registration information processed and be permitted to vote in the 2020 Primary Election;
(2)At least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope;
(3)Any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election may submit a request for such a ballot to their local board of election by phone;
(4)Any elector who qualifies for in-person voting pursuant to H.B. 197, § 32(D)(1), and who received a mail absentee ballot, can vote a regular in-person ballot if they bring their absentee ballots to their local board of election;
(5)Any elector who does not receive their mail absentee ballot prior to the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of election;
(6)Any elector will be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin;
(7)The conclusion of the 2020 primary election be set at such a time as will allow election officials to provide orderly notice to electors and administer the election in the manner provided for herein;

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(8)Defendant LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections of the aforementioned requirements; and
(9)Defendant LaRose to educate and inform electors about: the timeline and process for voting in the upcoming election; and that if they did not receive an absentee ballot in the mail they may contact their boards of elections and (a) confirm whether they have been sent a ballot, and (2) if they have not received a ballot, request a ballot by phone. TRO Mot. 1–2, ECF No. 4.
Furthermore, as noted above, the Court has granted permission for the
State of Ohio, the ODP, the LPO, and the RPO to intervene in this action. The
Court also granted Honest Elections Project’s and DRO’s motions to file amicus
briefs. While the Court does not set forth each of their arguments herein, it has
considered everything submitted by these parties in coming to this Opinion and
Order. The Court will discuss certain of their arguments, where appropriate,
infra.
II. STANDARD OF REVIEW
Plaintiffs seek injunctive relief pursuant to Federal Rule of Civil Procedure
65. In determining whether to grant such relief, the Court considers four factors:
(1) whether the movant has established a substantial probability of success on
the merits; (2) whether the movant would suffer irreparable harm in the absence
of an injunction; (3) whether an injunction would substantially harm third parties;
and (4) whether an injunction would serve the public interest. Winnett v.
Caterpillar, Inc., 609 F.3d 404, 408 (6th Cir. 2010). The factors are not

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prerequisites; rather, they must be balanced in weighing the equities involved. Capobianco, D.C. v. Summers, 377 F.3d 559, 561 (6th Cir. 2004).
III. ANALYSIS As a preliminary matter, no party has disputed Plaintiffs’ standing in this case, but the Court has an independent duty to ascertain whether the plaintiffs in a case have standing. The Court has reviewed Plaintiffs’ standing argument and is satisfied that standing exists to assert these claims. Accordingly, the Court turns to an analysis of the TRO factors. A. Likelihood of Success on the Merits 1. The National Voter Registration Act of 1993 Plaintiffs first allege that H.B. 197 violates the NVRA’s thirty-day registration requirement by prohibiting boards of elections from processing any voter registration applications received after February 18, 2020. Pls.’ Mot. 13, ECF No. 4 (citing 52 U.S.C. § 20507(a)(1))9. ODP agrees with Plaintiffs and argues that by establishing April 28, 2020, as the last day for voting, the Ohio legislature effectively set a new date for Ohio’s primary election. ODP Resp. 10, ECF No. 48. ODP advances their argument under both the NVRA and Article V, Section 1 of the Ohio Constitution, which largely mirrors the NVRA’s requirements and establishes that all citizens

9 Formerly codified at 42 U.S.C. §§ 1973–1973gg-10. Case No. 2:20-cv-1638

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over eighteen years old, who have “been registered to vote for thirty days, ha[ve] the qualifications of an elector, and [are] entitled to vote at all elections.”
LPO echoes Plaintiffs’ and ODP’s arguments and adds that H.B. 197 violates Article I, § 4 of the United States Constitution by interfering with Congress’s authority to regulate the time and manner of federal elections. LPO Mot. 10–11, ECF No. 31.
The State of Ohio contends that Plaintiffs are operating under the faulty premise that the Ohio 2020 primary election was moved to April 28, 2020.10 State of Ohio Resp. 8, ECF No. 52. Instead, the State of Ohio argues that the primary election was not cancelled on March 16, 2020, only the polling locations for in-person voting the next day were closed due to a public health crisis. Id. at 9. Likewise, the State of Ohio argues that H.B. 197 did not cancel or reset the 2020 primary election to April 28, 2020, it just extended the deadline by which already registered voters could cast an absentee ballot. Id. In support, they argue that H.B. 197 does not establish a new election date because all votes already cast in the 2020 primary election up and through March 16, 2020, are being held and will be counted. Id. (citing H.B. 197 § 32(B)). Thus, the State of Ohio argues, this is not “a ‘re-do’ of the primary election” that requires a reopening of voter registration. Id. at 10. Rather, this is an “election modification” in that Secretary LaRose is “accept[ing] as valid everything that transpired before

10 Secretary LaRose advances similar arguments. See Secretary LaRose Memo in Opp. 14–18, ECF No. 44.

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an election emergency arose and simply authoriz[ing] additional methods of, or time for, voting.” Id. at 11 (quoting Morley, Michael T., Symposium: Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 Emory L.J. 545, 548–50 (2018)) (comparing an election modification, such as here, with an election cancellation, which entirely nullifies the originally scheduled election with the expectation that a new one will be held at a later date).
“In 1993, Congress passed the NVRA as a measure meant to reinforce the right of qualified citizens to vote.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (citation omitted). “The NVRA reflects the view of Congress that the right to vote ‘is a fundamental right,’ that government has a duty to ‘promote the exercise of that right,’ and that discriminatory and unfair registration laws can have a ‘damaging effect on voter participation’ and ‘disproportionately harm voter participation by various groups, including racial minorities.’” Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir. 2012) (citations to former code provision omitted). Section 8(a)(1) of the NVRA provides that “each State shall . . . insure that any eligible applicant is registered to vote in an election . . . not later than . . . 30 days . . . before the date of the election.” 52 U.S.C. § 20507(a)(1).11 Under the NVRA, “election” means “a

11 “A person is registered to vote for purposes of Section 8 when ‘the valid voter registration form of the applicant is: (1) ‘submitted to the appropriate State motor vehicle authority’ in accordance with 52 U.S.C. § 20504 (registration by application simultaneous with an application for a motor vehicle driver’s license); (2) submitted by postmarked mail in accordance with 52 U.S.C. § 20505; (3) ‘accepted at the voter

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general, special, primary, or runoff election.” See 52 U.S.C. § 20502 (terms synonymous with meanings set forth in 52 U.S.C. § 30101).
Here, Plaintiffs’ arguments under the NVRA are unlikely to succeed on the merits because the cases upon which Plaintiffs rely are distinguishable, and Ohio has complied with the NVRA’s requirements.
Ohio’s extension of its absentee ballot deadline is not comparable to the cases upon which Plaintiffs rely. For example, in Kemp, there was a special runoff election scheduled more than thirty days after the original voter registration deadline established for the general election. See Georgia St. Conf. of the NAACP v. Kemp, No. 1:17-cv-1397, Order on Preliminary Injunction, Doc. 29 (N.D. Ga. May 4, 2017). The court in that case found that the failure to permit voters to register up until thirty days before the runoff election violated the NVRA. But the runoff election in that case was a new election, with new candidates and different ballots, thereby triggering the NVRA’s registration provision.
In Arizona Democratic Party v. Reagan, the district court found that the Arizona Secretary of State’s failure to account for a federal holiday (Columbus Day) in establishing its voter registration deadline for the general election violated the NVRA’s thirty-day requirement because otherwise eligible voters were unable

registration agency’ in accordance with 52 U.S.C. § 20506 (in-person registration at registration sites or government offices designated by each state); or (4) otherwise ‘received by the appropriate State election official.’ 52 U.S.C. § 20507(a)(1)(A) — (D).” Ariz. Democratic Party v. Reagan, No. CV-16-03618, 2016 U.S. Dist. LEXIS 153431, at *41 (D. Az. Nov. 3, 2016) (citation omitted).

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to submit their applications when the post office was closed for the holiday. 2016

U.S. Dist. LEXIS 153431, at **40–47.

The State of Ohio and Secretary LaRose correctly distinguish between an

election modification, which we have here, and an election cancellation. COVID-

19 presented Defendants with an unprecedented situation where in-person

voting was no longer safe because of a global-health crisis. But unlike in Kemp

or Reagan, there is not a new election scheduled for April 28, 2020. Rather, this

is just a modification and extension of the date by which voters—who were

otherwise eligible and prepared to cast their votes in-person on March 17,

2020—can submit their votes, primarily by absentee ballot. Under Ohio law,

eligible persons interested in voting in Ohio’s March 17, 2020 primary were

required to register by February 18, 2020. That February deadline came and

went before any change was made to the March 17, 2020 in-person voting. In

other words, had in-person voting taken place on March 17, 2020, people who

had not registered to vote by February 18, 2020, would not have been able to

show up that day and cast a vote. As such, the State complied with the NVRA in

granting registration up to thirty days before “the election.”

House Bill 197 does not change the date of “the election”; it merely

extends the deadline for submitting absentee ballots for the March 17, 2020

election until April 28, 2020, and established that only certain people could

submit their votes in person on April 28, 2020. By its own terms, it refers to the

election as the “March 17, 2020 primary election.” E.g., H.B. 197 § 32(B)(1), (2),

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(C)(1). It provides methods for voters “who ha[d] not already cast a ballot in the March 17, 2020, primary election” to vote “in that election.” Id. at (C)(1). Because H.B. 197 does not establish a new election or new election date, Ohio did not violate the NVRA by leaving the cut-off for voter registration as February 18, 2020. Cf. Morley, 67 Emory L.J. at 554 (discussing how New York employed a similar election modification process after the September 11, 2001 terrorist attack in that it did not extend the voter registration deadline but did extend the deadline by which already registered voters could request an absentee ballot, although this action appears not to have been challenged under the NVRA).
Finally, although the Court does not rely on the intent of the statute, the Court finds that this decision is not contrary to the purpose of the NVRA. Granting Plaintiffs’ requested relief would not protect the ability of individuals to register, but, instead, would confer an extra benefit to a group of people who had missed their window of opportunity to register by February 18, 2020, before any change was made by the Ohio legislature.
For these reasons, the Court finds that Plaintiffs are unlikely to succeed on the merits of their NVRA claim. For the same reasons, the Court finds LPO is unlikely to succeed on its argument that the Ohio Legislature has exceeded its authority and violated Article I, § 4 of the United States Constitution by keeping the registration date February 18, 2020.

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2. First and Fourteenth Amendments

Plaintiffs also contend that the Ohio Legislature’s changes to the voting

procedures for the March 17, 2020 primary election amount to an

unconstitutional burden on the right to vote in violation of the First and Fourteenth

Amendments.

Voting is a fundamental and precious right, and “[o]ther rights, even the

most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders,

376 U.S. 1, 17 (1964). However, “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 processes.” Anderson v. Celebrezze,

460 U.S. 780, 788 (1983) (internal quotation marks and citation omitted). “To

achieve these necessary objectives, States have enacted comprehensive and

sometimes complex election codes. Each provision of these schemes . . .

affects—at least to some degree—the individual’s right to vote . . . .” Id.

“Nevertheless, the state’s important regulatory interests are generally sufficient to

justify reasonable, nondiscriminatory restrictions.” Id. Indeed, voting regulations

do not automatically trigger strict scrutiny even when they impact the right to vote

because, as the Supreme Court has instructed, “states ‘may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots to reduce election-

and campaign-related disorder.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d

579, 585 (6th Cir. 2006) (quoting Timmons v. Twin Cities Area New Party, 520

U.S. 351, 358 (1997); citing Storer v. Brown, 415 U.S. 724, 730 (1974)).

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The Court must determine the nature of the burden the regulation places
on voters when setting the standard of review to apply. “While a rational basis
standard applies to state regulations that do not burden the fundamental right to
vote, strict scrutiny applies when a state’s restriction imposes ‘severe’ burdens.”
NE Ohio Coalition for Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012)
(citing Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012)). If, however,
the Court finds that Plaintiffs’ right to vote is burdened, but not “severely”
burdened, the Court analyzes Plaintiffs’ claim under the flexible Anderson-
Burdick standard.
Under the Anderson-Burdick test,
A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” 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 plaintiff’s rights.”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at
789). “There is no ‘litmus test’ to separate valid from invalid voting regulations;
courts must weigh the burden on voters against the state’s asserted justifications
and ‘make the ‘hard judgment’ that our adversary system demands.’” Obama for
Am., 697 F.3d at 429 (quoting Crawford v. Marion Cty. Election Bd., 553 U.S.
181, 190 (2008) (Stevens, J., announcing the judgment of the Court)). “However
slight that burden may appear . . . it must be justified by relevant and legitimate

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state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 533 U.S. at 191 (citation omitted).
a. Burden on the Right to Vote Under the Anderson-Burdick test, the Court must first “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. Plaintiffs allege that H.B. 197 provides insufficient time to effectively conduct voting in Ohio. In support, they point to Secretary LaRose’s own statements to the Ohio General Assembly, which advocated for a June 2, 2020 deadline. See Secretary LaRose Letter to Legislatures, dated March 21, 2020, Am. Compl. ¶ 44, ECF No. 5. Plaintiffs also allege that the process for extending voting primarily through absentee ballots is unnecessarily complicated and cumbersome, thereby disenfranchising or discouraging voters from participating. For example, H.B. 197 requires eligible voters to correctly fill out an absentee ballot application (either by printing it out or writing it down on some sort of paper); mail it to their local board of elections using their own stamps and envelopes; wait for their application to be processed; receive their ballot in the mail; fill the ballot out correctly; and mail the ballot back so that it is postmarked by April 27, 2020. All of this must take place for millions of Ohio voters.

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Plaintiffs contend that this process in this tight timeframe “leaves no room for delay” because there may not be time to correct any errors in the applications in time to postmark absentee ballots by April 27, 2020, if the initial absentee ballot application requests are denied. Further, they argue, the length of this process could be compounded by delays at the post office or restrictions in place because of the COVID-19 pandemic, resulting in some voters being unable to postmark their ballots in time to be counted. Plaintiffs also argue that the mail-in only option burdens voters’ rights to vote, especially those who are economically disadvantaged, by requiring voters to access a printer to print off the official ballot request form12 and to obtain postage for the absentee ballot request. Additionally, Plaintiffs allege that the in-person voting options provided for in H.B. 197 are insufficient and too narrowly drawn, thereby disenfranchising voters who are unable to complete the absentee ballot process or who would otherwise prefer to vote in person. Plaintiffs argue that all of the above-described aspects of H.B. 197 make it a severe burden on the right to vote.
The Court finds H.B. 197 does not impose a severe burden on the right to vote. First, voters had various opportunities to vote, both by mail and in person, prior to late March 16, 2020, when the polls were closed.
Second, under H.B. 197, certain voters can still vote in person on April 28, 2020.

12 As noted just above and again, infra, voters need not possess a printer to request an absentee ballot.

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Third, all voters who have not yet voted and who cannot vote in person on

April 28, 2020, can still vote by requesting and submitting a mail-in ballot.

Plaintiffs contend that the deadline for doing so, and the requirements of printing

out the ballot request form and obtaining proper postage to submit the ballot

request, unduly burden the right to vote.

The Court recognizes that due to the current COVID-19 pandemic, which

has required many places of business (including libraries and other places where

Plaintiffs may wish to print a ballot request form) to close, voters may face a

difficulty submitting the ballot request form. But, Secretary LaRose has already

taken steps to make submission as easy as possible by, for example, permitting

voters to submit a ballot request on any piece of paper containing the required

information instead of requiring voters to submit the official ballot request form.

Further, voters can request the absentee ballot application by calling their county

board of elections.

The requirement that voters affix a stamp to their ballot application is no

more than a minimal burden as stamps are available at multiple locations that

remain open during the Governor’s stay-at-home order, including grocery stores.

Those who do not wish to leave their homes to purchase stamps can purchase

them online. And, contrary to Plaintiffs’ assertion, Secretary LaRose’s mailing of

informative postcards does not cause any delay—voters need not wait to receive

the postcard; they are free to begin requesting their absentee ballots prior to

receiving that postcard.

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Still, given that H.B. 197 sets the voting deadline at April 28, 2020, the bill creates a tight deadline to accomplish the proper request and submission of a ballot. The Court therefore concludes that H.B. 197 creates, at most, a modest burden on the right to vote and will be analyzed under the Anderson-Burdick framework. It is not a severe burden subject to strict scrutiny.
b. The State’s Interests The Court agrees with Defendant and Intervenor Defendants that the State’s interests outweigh the burdens caused by the generally applicable, nondiscriminatory procedures laid out in H.B. 197. Certainly, the State has an interest in curbing the global COVID-19 pandemic. The prohibition of gatherings of large amounts of people is central to the President’s guidelines on social distancing that are effective until April 30, 2020, and the Governor’s stay-at-home order for the State of Ohio, which has been extended to May 1, 2020. Accordingly, the State has a strong interest in limiting in-person voting during this period of crisis. Limiting in-person voting to only those who are disabled or unable to receive mail is a justifiable burden on the rights of those who would otherwise prefer to vote in person13 but can vote by mail when weighed against the State’s interest in preventing its hospitals from

13 The Court also notes the inconsistency between Plaintiffs arguing, on the one hand, that the inability to vote in person is an unconstitutional burden on their right to vote and, on the other, that some voters will be unconstitutionally burdened by having to potentially expose themselves or their family members to the virus at a post office in order to obtain postage to mail an absentee ballot application.

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exceeding critical capacity and preventing as many illnesses and deaths from COVID-19 as possible. It also prohibits the disenfranchisement of persons who are categorically unable to vote by mail due to disability or the inability to receive mail.
Further, Secretary LaRose, the State of Ohio, and ODP have adequately explained the justifications for requiring voters to submit an application for an absentee ballot rather than mailing out ballots directly to voters. As Secretary LaRose explained, he is required by law to properly verify a voter’s identity and a voter’s signature—whether submitted absentee by mail, early in-person, or at the polls on election day—as part of that verification process. LaRose Resp. 22, ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5)). Thus, allowing a person to request an absentee ballot over the phone or online without an accompanying signature undermines that important voter verification safeguard. Id.
Moreover, this is a primary election, and voters in Ohio can only vote in one primary. If voters did not request a particular ballot, they would not be able to register with one of the political parties. Moreover, Secretary LaRose would have to mail up to four separate ballots to every voter.14 It would require a massive undertaking to print and mail so many ballots to voters, not to mention the confusion it would cause given that voters are only allowed to submit one of

14 The Court agrees with the State of Ohio’s footnote 10—Ohio’s primary requires different mechanics than the states Plaintiffs seek to emulate.

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the ballots.15 Mailing up to four ballots to each voter would inevitably result in the disenfranchisement of some voters who would erroneously return more than one ballot and not have their vote counted at all. Given how easy Secretary LaRose is making it to request an absentee ballot (the ability to request it online or via phone, the ability to send multiple ballot requests within the same envelope, and not requiring the request to be on the official form), the State’s interest in sending only one ballot to each voter outweighs any burden that requesting the ballot16 imposes on voters.
Furthermore, the State of Ohio argues that H.B. 197’s postcard process is more efficient and streamlined than the process outlined in Secretary LaRose’s Letter to the Legislature and, thus, is manageable. See State of Ohio Resp. 19– 20, ECF No. 52; see also Secretary LaRose Resp. 26–27, ECF No. 44 and Grandjean Dec., ECF No. 44-2 (explaining why mailing an absentee ballot application to each registered voter in time for the April 28, 2020 deadline is unworkable). Indeed, Secretary LaRose’s response indicates that he will be able to carry out the process established by H.B. 197 and, conversely, contends that

15 Plaintiffs’ arguments are inconsistent. They argue both that sending four separate ballots will not confuse voters, while arguing elsewhere that having to fill out an absentee ballot request as a well as a ballot will confuse voters. 16 ODP argues the Court should require Secretary LaRose to include a ballot request form at the bottom of the postcard that H.B. 197 requires him to mail out. ODP’s suggestion was filed on April 1, 2020, after the Court was informed on the March 31, 2020, teleconference that the postcards were already being printed. It is simply not feasible to grant ODP’s requested relief as the postcards have already been printed and requiring a reprint would, among other difficulties, cause additional delay on an already tight timeline.

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all of Plaintiffs’ requested relief is unworkable.17 See Secretary LaRose Resp. 10, 19–25, ECF No. 44; Grandjean Dec., ECF No. 44-2.
The compressed timeframe for the completion of absentee voting does pose a burden on voters. Those who request the ballot by mail will have to wait for their request to reach the county board of elections, then wait for the ballot to be mailed back to and reach the voter, and then, the voter must fill out the ballot and have it postmarked in time to be counted. Any delay on the part of the voter, county board of elections, or the postal service could result in the voter’s ballot not being counted.
Nonetheless, at the time the State enacted H.B. 197, this timeframe was justified, and it remains so. Secretary LaRose had advocated for a June 2, 2020 voting deadline, but ODP requested April 28, 2020, specifically to permit it to send delegates to the Democratic National Convention (“DNC”). ODP made the same argument in favor of the April 28, 2020 deadline in this litigation before the DNC delayed its convention on April 2, 2020. Similarly, LPO argued that voting must conclude by May 12, 2020, in order for LPO to send delegates to its national convention. RPO likewise argued against extending the voting deadline. And, ODP has informed the Court that the delay of the DNC does not change

17 Further, the Court notes that in Secretary LaRose’s letter to the Ohio General Assembly, in which he advocated for a June 2, 2020 voting deadline, he explained that he could not complete his proposed plan earlier than June 2, 2020. But his proposed plan was different than H.B. 197.

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ODP’s position on this matter because the delay does not impact the rules or

deadlines for certifying state party delegations.

The State of Ohio certainly has an interest in concluding voting early

enough to permit the major political parties to send delegates to their national

conventions, and this interest outweighs the burden that the tight timeframe

imposes on Ohio voters. ODP has explained that, notwithstanding the fact that

the DNC has been rescheduled, there remains a deadline of June 20, 2020, for

state parties to certify to the DNC’s Secretary the state party’s delegation to the

convention. ODP requires that the election be at least eight weeks prior to that

June 20, 2020 deadline in order to meet the same.

The fact that other states have afforded more voting opportunities to their

voters, in this case by extending their primaries until June 2020 in response to

the COVID-19 pandemic, is not persuasive evidence undermining Ohio’s interest

in concluding voting by April 28, 2020. There is no evidence regarding whether

the political parties in those other states have adopted delegate selection plans

like ODP’s that require approximately eight weeks of post-primary actions, nor is

it at all clear whether ODP could have a different delegate selection plan

approved in order to accommodate a later deadline for submitting absentee

ballots while still meeting the June 20, 2020 DNC certification deadline.

LPO and RPO offer similar arguments in support of concluding voting

quickly, and the Court finds them equally applicable to the State of Ohio’s interest

in having the deadline on April 28, 2020, notwithstanding the DNC’s change in

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date. In particular, the Court rejects LPO’s supplemental argument that the Court

no longer needs to keep the April 28, 2020, deadline but should establish a

deadline by May 12, 2020. LPO did not address DPO’s argument that the

certification deadline has not changed for the DNC.

Finally, given the upheaval that the change to the voting process has

already created, the Court agrees that the State has a strong interest in

minimizing disorder and easing the burdens on county boards of elections. By

permitting the boards of elections to continue to use the absentee-balloting

system already in place and changing only the deadline for accepting those

ballots, H.B. 197 furthers that interest. State of Ohio Resp. 15, ECF No. 52

(citing Mays v. LaRose, No. 19-4112, 2020 U.S. App. LEXIS, at ** 18–21 (6th Cir.

Mar. 3, 2020).

Plaintiffs cite to Fla. Dem. Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla.

2016) and Ga. Coal. for the People’s Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344

(S.D. Ga. 2016) to support their argument that “federal courts have moved similar

election deadlines that were rendered burdensome by emergencies.” Mot. 18,

ECF No. 4. Those cases do not persuade the Court that Plaintiffs in this case

are entitled to relief.

In Scott, the timing of a hurricane created an emergency that resulted in

over a hundred thousand people who were likely to register in the final week of

voter registration being evacuated. 215 F. Supp. 3d at 1257. This left those

voters “foreclosed from the only methods of registering to vote.” Id. The court in

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Scott found that this created a severe burden on the right to vote because some people were unable to register, and, therefore, “categorically” denied the right to vote. Id. There is no such categorical denial of the right to vote here. Plaintiffs have alleged that there could be timing or logistical issues that make voting more challenging than it might otherwise be, but there is not even an allegation of a broad, categorical denial of the right to vote.
Deal provides very little in the way of persuasive authority.18 That case also dealt with a mandatory evacuation caused by a hurricane. 214 F. Supp. 3d at 1345. This resulted in the local board of elections office being closed for the last few days of the registration window. Id. Despite this, the state declined to extend the registration deadline. Id. The court noted that it “harbor[ed] significant reservations concerning the ultimate merits of Plaintiffs’ claims” but nevertheless concluded that they had established a sufficient likelihood of success on the merits to warrant injunctive relief. Id. The court did not reference Anderson-Burdick, opine on the level of the burden on the plaintiffs’ voting rights, or engage in a detailed analysis of why the state’s interest was insufficient to outweigh that burden.
In sum, the Court finds that the State of Ohio’s interests outweigh the burden on voting rights caused by H.B. 197’s various relevant provisions such

18 This is perfectly understandable considering the court there was facing an emergency situation and issued an opinion the same day oral argument was held.

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that H.B. 197 is not an unconstitutional burden on the right to vote in violation of the Fourth and Fourteenth Amendments to the United States Constitution.
3. Poll Tax LPO, in one sentence of its motion, suggests that H.B. 197 is an “impermissible poll tax in violation of the Twenty-Fourth Amendment and the Fourteenth Amendment Equal Protection Clause.”19 LPO Mot. for TRO 10, ECF No. 31 (citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)). LPO did not attempt to develop this argument, and neither Defendant responded to it. Nevertheless, the Court has considered the issue and finds that, to the extent obtaining a stamp is a “restriction on the right to vote,” it is not “unrelated to voter qualifications.” See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008). Instead, it is the type of “evenhanded restriction[] that protect[s] the integrity and reliability of the electoral process itself” that satisfies Harper. See id. at 189–90 (quoting Anderson, 460 U.S. at 788, n.9); see LaRose Resp. 22, ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5) (explaining that a signature is needed to protect against voter fraud). B. Irreparable Harm If Plaintiffs are correct that some people will be unable to have their votes counted because of the voting procedures laid out in H.B. 197, the harm they would suffer would be irreparable. However, this alleged harm is speculative and

19 LPO’s lack of development of its poll tax argument is not rescued by its more detailed reply (after Defendants did not even address LPO’s motion).

Case No. 2:20-cv-1638

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Case: 2:2C0a-scev-10:12603-c8v-M-0H14W8-9E-PADT DDoocc#u:m5e7nFt i5le1d-:804F/0ile3d/2004P/2a0g/e2:026Poafg2e727PAoGf 2E8ID #: 726

is outweighed by the other three factors the Court considers when ruling on the

motion for a temporary restraining order.

C. Harm to Third Parties

As shown by Intervenors’ motions, Plaintiffs’ request to postpone the

deadline for voting in the March 17, 2020 primary yet again could cause harm to

both LPO and ODP. LPO contends that it will be prevented from participating at

its convention if voting does not conclude by, at the latest, May 12, 2020. ODP

argues that it could be prevented from participating in the DNC if voting is

extended beyond the currently scheduled date of April 28, 2020. Accordingly,

the Court finds that at least some of Plaintiffs’ requested relief would cause harm

to third parties.

D. Public Interest

The public has an interest in a free and fair election. The public also has

an interest in avoiding further voter confusion. Because Plaintiffs are unlikely to

succeed on the merits of their claims and because further changes to the election

procedure could cause significant additional voter confusion, the Court finds that

the public interest factor weighs against granting Plaintiffs their requested relief.

The Supreme Court has cautioned that “[c]ourt orders affecting elections,

especially conflicting orders, can themselves result in voter confusion and

consequent incentive to remain away from the polls. As an election draws

closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per

curiam). The Sixth Circuit has previously found that “the difficulty in altering the

Case No. 2:20-cv-1638

Page 26 of 27

Case: 2:2C0a-scev-10:12603-c8v-M-0H14W8-9E-PADT DDoocc#u:m5e7nFt i5le1d-:804F/0ile3d/2004P/2a0g/e2:027Poafg2e728PAoGf 2E8ID #: 727
ballot printing and distribution at this late date . . . weighs heavily against an injunction.” Estill v. Cool, 295 F. App’x 25, 27 (6th Cir. 2008) (ballot printing and distribution was scheduled to begin the day after the Sixth Circuit issued its opinion, nineteen days after this Court denied the motion for a preliminary injunction); see also SEIU Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute injunctions changing election procedures are strongly disfavored.” citing Purcell, supra). Accordingly, the Court finds that the public interest in the election proceeding as determined by the Ohio Legislature in H.B. 197 weighs against granting Plaintiffs’ requested relief.
IV. CONCLUSION The Constitution does not require the best plan, just a lawful one. As is apparent from the briefing in this lawsuit, every group has a different idea of what the best plan would be. But the Court will not declare the Ohio Legislature’s unanimous bill to be unconstitutional simply because other options may have been better. For the above reasons, Plaintiffs’ motion for a TRO, ECF No. 4, is DENIED. LPO’s motion for a TRO or preliminary injunction, ECF No. 31, is likewise DENIED. IT IS SO ORDERED.
/s/ Michael H. Watson________________ MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

Case No. 2:20-cv-1638

Page 27 of 27

 
 Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 1 of 17

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

BLACK VOTERS MATTER FUND and MEGAN GORDON, on behalf of herself and all others similarly situated,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia; DEKALB COUNTY BOARD OF REGISTRATION AND ELECTIONS and all others similarly situated,

Defendants. _______________________________

DEFENDANT DEKALB COUNTY BOARD OF REGISTRATION AND ELECTIONS’ MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF

COMES NOW, appearing specially, Defendant DeKalb County Board of

Registration and Elections (the “DeKalb BRE”) and, pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), hereby moves the Court to dismiss with

prejudice the claims against the DeKalb BRE in Plaintiffs’ Complaint [DOC 1],

showing the Court as follows:

1

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 2 of 17
I. INTRODUCTION On April 8, 2020, Plaintiffs Black Voters Matter Fund (“BVMF”) and Megan Gordon (“Gordon” and together with BVMF, “Plaintiffs”) filed this lawsuit against the DeKalb BRE1 and Brad Raffensperger, in his official capacity as the Secretary of State of Georgia (the “Secretary of State” and together with the DeKalb BRE, “Defendants”) alleging that requiring electors to pay postage on absentee ballot applications (“absentee applications”) and absentee ballots constitutes an unconstitutional poll tax and an undue burden on the fundamental right to vote, especially in light of the current health crisis caused by COVID-19 and the resulting increase in absentee voting. See Complaint [DOC 1]. To address these alleged infringements, Plaintiffs seek various equitable relief, including requiring Defendants to provide prepaid postage for absentee applications and ballots going forward. Id. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff BVMF is “a non-partisan civic organization . . . . [which] works on increasing voter registration and turnout, advocating for policies to expand voting rights and access.” Complaint [DOC 1], ¶ 13. Plaintiff Gordon is “a registered 1 Plaintiffs seek class certification for all 159 county board of registrars and absentee ballot clerks in Georgia, with the DeKalb BRE as the class representative. Id., ¶¶ 43-46. The Court has not yet considered or certified a defendant class in this action. This motion to dismiss and memorandum in support thereof is filed only on behalf of the DeKalb BRE.
2

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 3 of 17
voter of DeKalb County [who] does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.” Id., ¶ 14. Defendant Secretary of State is “responsible for enacting elections statutes and routinely issues guidance to the county election officials of all 159 counties on various election procedures and requirements.” Id., ¶ 15. Plaintiffs allege that Defendant DeKalb BRE “requires voters to affix postage on absentee ballots and applications, consistent with the SOS’s guidance.” Id., ¶ 16.
To vote by absentee ballot, a voter must first submit an absentee application via mail, fax, e-mail, or in-person. Id., ¶ 25. After the absentee application is received by election officials and approved, the voter is mailed the absentee ballot itself. Id., ¶ 27. The absentee applications and absentee ballot packages sent to voters do not include postage prepaid return envelopes. Id., ¶¶ 26, 28.
Plaintiffs argue that the absence of prepaid postage return envelopes with absentee applications and absentee ballots constitutes a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments, and an undue burden on the right to vote in violation of the First and Fourteenth Amendments. Id., ¶¶ 51, 55. For these reasons, Plaintiffs seek declaratory relief and a permanent injunction requiring Defendants to provide postage prepaid returnable envelopes for absentee ballots, as well as absentee applications. Id., ¶ 9.
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III. ARGUMENT AND CITATION TO AUTHORITY A district court must dismiss a complaint under Federal Rule of Civil Procedure 12(b)(1) if it lacks subject matter jurisdiction. Eleventh Amendment immunity and standing are jurisdictional issues that should be addressed prior to considering the merits of a case. Curling v. Kemp, 334 F.Supp.3d 1303, 1314 (N.D. Ga. 2018), aff'd in part, Curling v. Sec’y of State of Georgia, 761 Fed. Appx. 927 (11th Cir. 2019). As demonstrated below, Eleventh Amendment immunity and principles of standing divest this Court of subject matter jurisdiction over Plaintiffs’ claims against the DeKalb BRE in this case. A. Plaintiffs’ Claims are Barred by Eleventh Amendment Immunity. The Eleventh Amendment bars claims against the state and against counties when acting as an “arm of the state.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). “Whether a defendant is an ‘arm of the State’ must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise.” Id. The Eleventh Circuit considers four factors to determine whether an entity acts as an “arm of the State” in executing a particular function: “(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Id. at 1309 (citations omitted).
4

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A county board of elections acts as an arm of the state for the purposes of conducting elections in general, and as a result, Eleventh Amendment immunity attaches. See Casey v. Clayton County, No. 04-CV-00871, 2007 WL 788943 (N.D. Ga. Mar. 14, 2007). In Casey, the plaintiff brought an action against the Clayton County Board of Elections (“Board”) alleging that she was not selected for the director of elections position because of her race and age. Id. at *1. Though the Court determined that the Board was not an arm of the state when hiring an elections director, the Court applied the Manders factors and explained why Eleventh Amendment immunity would attach to the Board in the management of elections: (1) the General Assembly created the Board, established minimum qualifications and certification requirements for its members, and disciplines its members, (2) the State fixes the duties of the Board, and (3) the county’s control over the Board is attenuated. Id. at *8 (“for purposes of conducting elections in general, there can be little doubt that Eleventh Amendment immunity would attach”).
The same analysis set forth in Casey applies to the DeKalb BRE. First, the General Assembly—not the County—created the DeKalb BRE and gave it “jurisdiction over the conduct of primaries and elections and the registration of electors in such county…,” 2003 Ga. Laws p. 4200, § 1, codified in the Code of DeKalb County Georgia, Appendix B, §170, including powers and responsibilities
5

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concerning: (1) the preparation for and conduct of elections, (2) the preparation for and conduct of primaries, (3) the registration of electors, and (4) the selection, appointment, and training of poll workers in elections. 2003 Ga Laws p. 4200 at §§ 9, 17; Code of DeKalb County Georgia, Appendix B, §§ 178, 186. The General Assembly—not the County—even sets forth the number of members on the DeKalb BRE, member requirements, guidelines on how members are appointed or elected, and terms of service. 2003 Ga. Laws p. 4200 at §§ 2-4, 6-8; Code of DeKalb County Georgia, Appendix B, §§ 171-173, 175-177.
Second, the State maintains a high degree of control over the DeKalb BRE. The DeKalb BRE acts as the election superintendent and board of registrar for the County and must exercise the State powers granted to it and duties imposed on it. 2003 Ga. Laws p. 4200 at § 1; see O.C.G.A. §§ 21-2-70, 21-2-212. The State requires training and certification of certain DeKalb BRE members and may discipline those who do not meet the State’s requirements. See O.C.G.A. §§ 21-2100, 21-2-101 (designee of the board must complete training and certification programs or the board may be fined). In contrast, the County’s control over the DeKalb BRE is attenuated. The DeKalb BRE is authorized and empowered to organize itself, determine procedural rules, and take action as is appropriate to the management of elections and registrations, as long as it does not conflict with State law. 2003 Ga. Laws p. 4200, § 13; Code of DeKalb County Georgia, Appendix B,
6

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 7 of 17
§ 182. Moreover, any rule promulgated by a DeKalb executive committee regarding primary conduct shall be null and void if in conflict with the DeKalb BRE’s rules and regulations. 2003 Ga. Laws p. 4200 at § 10; Code of DeKalb County Georgia, Appendix B, § 179. Accordingly, State law heavily controls the DeKalb BRE’s conduct and management of elections, while the County itself has little to no control over the DeKalb BRE’s actions.
The third prong considers what entity funds the DeKalb BRE. State law guides this analysis as well. Under O.C.G.A. § 21-2-71, the governing authority must appropriate funds that the BRE “shall deem necessary for the conduct of primaries and elections in such county,” including for poll officers, polling places, ballot supplies, maintenance of voting equipment, and other expenses. O.C.G.A. § 21-2-71. Likewise, local law requires the governing authority to pay for the salaries of election officials and other election-related expenses. See 2003 Georgia Laws p. 4200, §§ 12-18; Code of DeKalb County Georgia, Appendix B, §§181187. However, the County’s authority to approve funds for the DeKalb BRE does not mean that the County has any control over the DeKalb BRE. In fact, the Northern District of Georgia has questioned the extent of a county’s budgetary authority in light of State laws regarding the conduct of elections. Casey, 2007 WL 788943, *8.
7

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 8 of 17
The final prong concerns who is liable for adverse judgments against the DeKalb BRE. Assuming arguendo that the County is liable for a judgment against the DeKalb BRE, this does not change the analysis. An entity may still act as an arm of the State for the purpose of Eleventh Amendment immunity even if the State is not liable for that entity’s adverse judgment. See Pellitteri v. Prine, 776 F.3d 777, 783 (11th Cir. 2015) (“As to the fourth factor, our precedent holds that liability by the state treasury is not determinative of whether a governmental entity should enjoy Eleventh Amendment immunity.”) (quoting Ross v. Jefferson Cty. Dept. of Health, 701 F.3d 655, 660 (11th Cir. 2012)).
In sum, the County’s connection to the DeKalb BRE is limited to the appropriation of funds, which is still guided mostly by State law requirements. The County has no control over the DeKalb BRE. Instead, the DeKalb BRE promulgates its own organizational and procedural rules and must follow the guidelines as provided by State law. It is clear here, and per the Northern District of Georgia, that the DeKalb BRE is an “arm of the State” while managing elections. Because this litigation stems from allegations concerning the DeKalb BRE’s management of absentee voting, Eleventh Amendment immunity applies to Plaintiffs’ claims against the DeKalb BRE.2
2 The Ex Parte Young exception to Eleventh Amendment immunity does not apply because Plaintiffs sued an "arm of the state" rather than the appropriate officials.
8

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 9 of 17
B. Plaintiffs Lack Standing to Bring this Action.3
Under Article III of the United States Constitution, federal courts have
jurisdiction to adjudicate only actual, ongoing cases or controversies between the
parties which can be remedied by the court. See Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990). An actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed. Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997). Plaintiffs have the burden to establish
standing sufficient to institute the court’s jurisdiction to hear the case. Spokeo, Inc.
v. Robins, 136 S.Ct. 1540 (2016); Arcia v. Fla. Sec’y of State, 772 F.3d 1335 (11th
Cir. 2014). To determine whether a plaintiff has standing, the Court applies a
three-prong analysis:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will
Udick v. Florida, 705 Fed.Appx. 901, 905 (11th Cir. 2017) ("Nor can Udick sue Florida under the Ex parte Young doctrine, as he argues, because that doctrine permits only suits against state officials, not the State itself.”); Wayne v. Fla. Dep’t of Corrections, 157 F.Supp.3d 1202, 1205 (S.D. Fla. 2016) (granting motion to dismiss based on Eleventh Amendment immunity where plaintiff sued only agency and did not sue official in an official capacity). 3 In addition to the arguments set forth in this Section III.B, the DeKalb BRE incorporates by reference as if fully stated herein the arguments asserted in Section I (Standing) of Defendant Secretary of State Brad Raffensperger’s Brief in Support of His Motion to Dismiss (the “SOS Brief”) [DOC 67-1].
9

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be redressed by a favorable decision. Curling, 334 F. Supp. 3d at 1314 (quoting United States v. Hays, 515 U.S. 737, 742–43 (1995)).
1. Plaintiffs Have Failed to Allege a Sufficient Injury In Fact. Plaintiffs must show “an invasion of a legally protected interest that is sufficiently concrete and particularized rather than abstract and indefinite.” Kawa Orthodontics, LLP v. Sec’y, U.S. Dept. of the Treasury, 773 F.3d 243, 246 (11th Cir. 2014) (citations omitted). As an organization, Plaintiffs must each show “more than simply a setback to the organization’s abstract social interests….” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Instead, standing necessitates that a defendant’s actions impair an organization’s ability to engage in its own projects by forcing the organization to divert its resources elsewhere. Arcia, 772 F.3d at 1341. Plaintiff BVMF’s only allegation of harm is a conclusory allegation that Defendants’ conduct causes them to “divert scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it especially for those with less resources.” Complaint [DOC 1], ¶ 13. This allegation, which fails to specify how such activities are different from BVMF’s regular activities, is vague and conclusory and is not entitled to the presumption of truth. See Iqbal, 556
10

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U.S. at 681. Moreover, Plaintiffs fail to allege facts sufficient to show that the alleged
harm is actual or imminent, rather than conjectural or hypothetical. To constitute injury-in-fact for purposes of standing, a plaintiff must establish that the threatened injury is “certainly impending,” and “proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Georgia Shift, et al. v. Gwinnett Co., et al., No. 19-cv-1135, 2020 WL 864938, at *3 (N.D. Ga. Feb. 12, 2020) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), and Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992)). A plaintiff cannot rely on “a highly attenuated chain of possibilities” to satisfy the requirement that future injury is “certainly impending.” Clapper v. Amnesty Intern’l USA, 568 U.S. 398, 407 (2013).
Here, Plaintiffs fail to point to (1) any specific diversion of resources away from DeKalb County voters, or (2) any individual voter in DeKalb County, including Plaintiff Gordon, who will be unable to vote as a result of the absence of a prepaid postage return envelope for absentee ballot applications or absentee ballots. Instead, it appears that Plaintiff BMVF focuses its efforts on rural Georgia, and that Plaintiff Gordon has stamps, should she elect to vote by submitting an absentee ballot by mail. See Complaint [DOC 1], ¶ 13 (“Black Voters Matter is particularly active in the rural Black Belt of Georgia, which
11

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 12 of 17
includes several counties in southwest Georgia.”); id., ¶ 14 (“Plaintiff Megan Gordon . . . . does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.”) “A generalized fear that injurious activity might occur is not sufficiently concrete to confer standing.” Georgia Shift, 2020 WL 864938, at *4; see also Clapper, 568 U.S. at 416 (holding that incurring costs as a reasonable reaction to a risk of harm is unavailing where the harm is not certainly impending).
Plaintiff BVMF also lacks associational standing. Under an associationalstanding theory, “[a]n organization has standing to enforce the rights of its members ‘when its member would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1160 (11th Cir. 2008). “An organization must show that its members ‘face a probability of harm in the near and definite future’ to establish injury that is sufficient to confer standing to seek prospective relief.’” Crittenden, 347 F. Supp. 3d at 1336 (quoting Browning, 522 F.3d at 1160-61).
Plaintiff BVMF does not allege that is has members, let alone that any such members face a probability of harm sufficient to establish associational standing.
12

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Accordingly, Plaintiff BVMF cannot establish associational standing. See Jacobson v. Fla. Sec’y of State, No. 19014552 (11th Cir. Apr. 29, 2020) (slip op. at 18). As a result, Plaintiffs have failed to allege facts sufficient to establish an injury in fact, and therefore lack standing to bring this action.
2. Plaintiffs Cannot Show that Defendants Caused Their Alleged Injury.
Plaintiffs must also show “a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not a result of the independent actions of some third party not before the court.” Lujan, 504 U.S. at 560 (quotations and alterations omitted). Moreover, Plaintiffs’ injuries cannot be self-inflicted. Clapper, 568 U.S. at 416.
Plaintiffs’ alleged injuries are not fairly traceable to any act of the DeKalb BRE. Georgia law permits, but does not require, that absentee applications and absentee ballots can be submitted by mail. The United States Postal Service, rather than the DeKalb BRE, imposes any requirement (and has created an exception4) for postage to use the United States mail service to send absentee applications and
4 The USPS has an explicit policy to deliver election mail that contains insufficient postage. Postal Bulletin 22391 2014 Election and Political Mail Update, United States Postal Service (June 12, 2014), https://about.usps.com/postal-bulletin/2014 /pb22391/html/front_cvr.htm.
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absentee ballots. Because Plaintiff BVMF’s alleged injury cannot be traced to the DeKalb BRE, Plaintiff BVMF lacks standing to assert the present claims against the DeKalb BRE.
C. Plaintiffs’ Complaint Should Be Dismissed as their Claims Are Not Ripe and They Fail To State a Claim Upon Which Relief May Be Granted.
Finally, the DeKalb BRE incorporates by reference as if fully stated herein the arguments asserted Sections II (Ripeness) and III.A (Federalism) of the SOS Brief [DOC 67-1].
IV. CONCLUSION The Complaint against the DeKalb BRE should be dismissed with prejudice, because this Court lacks subject matter jurisdiction over Plaintiffs’ claim and Plaintiffs have failed to plausibly state a claim against the DeKalb BRE upon which relief may be granted. Respectfully submitted this 30th day of April, 2020.
LAURA K. JOHNSON DEPUTY COUNTY ATTORNEY Georgia Bar No. 392090 /s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663 SHELLEY D. MOMO ASSISTANT COUNTY ATTORNEY
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Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 15 of 17
Georgia Bar No. 239608 Attorneys for the DeKalb County Board of Registration and Elections PLEASE ADDRESS ALL COMMUNICATIONS TO: Irene B. Vander Els Shelley D. Momo DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011
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Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 16 of 17
CERTIFICATE OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1
I hereby certify that I electronically filed the foregoing document with the
Clerk of the Court using the CM/ECF system (which document was prepared in
Times New Roman font, 14-point type, one of the font and point selections
approved by the Court in N.D. Ga. L.R. 5.1(C)), which will automatically send e-
mail notification of such filing to the following opposing counsel of record:
PERSONS SERVED:
Dale E. Ho Sophia Lin Lakin American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 P.O. Box 77208 Atlanta, GA 30309
Charlene S. McGowan Kaufman & Forman, P.C. Building 800 8215 Roswell Rd. Atlanta, GA 30350
Alexander Fraser Denton Brian Edward Lake Joshua Barrett Belinfante Melanie Leigh Johnson
16

Case 1:20-cv-01489-AT Document 80 Filed 04/30/20 Page 17 of 17

Vincent Robert Russo, Jr. Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318

This 30th day of April, 2020.

/s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663

17

 
 Case 1:20-cv-01489-AT Document 83 Filed 04/30/20 Page 1 of 14

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

BLACK VOTERS MATTER FUND, and :

MEGAN GORDON, on behalf of

:

herself and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

v.

:

:

BRAD RAFFENSPERGER, in his

:

official capacity as Secretary of State of :

Georgia, and DEKALB COUNTY

:

BOARD OF REGISTRATION &

:

ELECTIONS, and all others similarly :

situated,

:

:

Defendants.

:

CIVIL ACTION NO. 1:20-cv-01489-AT

ORDER Plaintiffs Black Voters Matter Fund and Megan Gordon filed this putative class action against the Georgia Secretary of State and the DeKalb County Board of Registration & Elections (on behalf of all similarly situated county boards of elections) alleging that Defendants have unconstitutionally infringed the rights of Georgians to vote by requiring voters to pay for their own postage to submit absentee ballot applications and absentee ballots. Plaintiffs contend that the postage requirement is a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments and an unjustifiable burden on the right to vote in violation of the First and Fourteenth Amendments. Plaintiffs

Case 1:20-cv-01489-AT Document 83 Filed 04/30/20 Page 2 of 14
seek emergency relief, in the form of (a) a declaratory judgment that the requirement that voters affix their own postage to mail-in absentee ballots and mail-in absentee ballot applications is unconstitutional; and (b) a preliminary and permanent injunction mandating that Defendants provide prepaid postage returnable envelopes for absentee ballots and applications. Currently pending before the Court is Plaintiffs’ Motion for Preliminary Injunction [Doc. 2]. I. Procedural History
Plaintiffs filed their Motion along with the Complaint on April 8, 2020. The Court initially ordered Defendants to file a response to the Motion by Friday, April 17, 2020 at 2:00 PM, but later extended that deadline at Defendant Raffensperger’s request until Monday, April 20, 2020 at noon. The Court also scheduled a hearing on the Motion for Preliminary Injunction for Friday, April 24, 2020.
On April 17, 2020, the Court received a letter from counsel for the Secretary of State indicating that the State’s vendor would begin mailing out absentee ballots on Tuesday, April 21, 2020. (Doc. 40.) The Court held an emergency telephone conference with counsel that afternoon. Later that day, in light of the completed status of ballot printing and the State’s imminent mailing of ballots to absentee ballot applicants, Plaintiffs filed a Second Supplemental Brief withdrawing in part their request for an order mandating that Defendants send all absentee ballots applications and absentee ballots with return postage
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prepaid for the June 2020 Election but instead proposing alternative remedies for that election. (Doc. 44.)
The Court held a hearing on the Motion by video conference on April 24, 2020. (Doc. 72.) The Court heard testimony from Cliff Albright, the Executive Director of Plaintiff Black Voters Matter Fund, and Kevin Rayburn, the Deputy Elections Director and Deputy General Counsel for the Georgia Secretary of State’s office. The Court took the matter under advisement after the hearing. II. Discussion
The Court has carefully considered all of the evidence of record, including the live testimony and affidavits, in light of Plaintiffs’ request for relief for the June 2020 election.1 The Court finds for the reasons that follow that the remedies proposed for the June 2020 election are not realistic or implementable, especially in the current time frame, and therefore DENIES injunctive relief as requested for the June 2020 election only. The Court reserves judgment on whether injunctive relief is appropriate as to future elections, including the August 2020 runoff and the November general election, but issues this Order now so the parties may proceed to handle their election activities in the immediate time frame ahead accordingly.
A. Legal Standard To support a preliminary injunction, a district court must determine whether the evidence establishes: (1) a substantial likelihood of success on the
1 The Court has also read and considered all of the Parties’ post-hearing filings. (Docs. 76–78.)
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merits; (2) a substantial threat of irreparable injury if the injunction were not granted; (3) that the threatened injury to the plaintiff outweighs the harm an injunction may cause the defendant; and (4) that granting the injunction would not be adverse to the public interest. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). “A request for equitable relief invokes the district court’s inherent equitable powers to order preliminary relief . . . in order to assure the availability of permanent relief.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987 (11th Cir. 1995); Federal Trade Commission v. United States Oil and Gas Corp., 748 F.2d 1431, 1433–34 (11th Cir. 1984) (holding that a district court may exercise its full range of equitable powers, including a preliminary asset freeze, to ensure that permanent equitable relief will be possible). However, a preliminary injunction “is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four prerequisites.” McDonald’s Corp., 147 F.3d at 1306 (internal citations omitted).
B. Plaintiffs’ Proposed Alternative Remedies for June 2020 Primary
In their April 17, 2020 Second Supplemental Brief, Plaintiffs withdrew their request for preliminary injunctive relief in the form of an order mandating that Defendants send all absentee ballots applications and absentee ballots with return postage prepaid for the June 2020 Election. (Doc. 44.) They instead proposed alternative remedies. Plaintiffs have maintained their original request
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for complete injunctive relief for the August 2020 Runoff and November 2020 General Elections.
As a baseline request for the June 2020 Primary Election, Plaintiffs request an injunction or written confirmation from Defendants allowing organizations to distribute stamps to voters without running afoul of election regulations. (Doc. 44 at 2.) In addition to this request, Plaintiffs propose three alternative remedies to address the alleged poll tax which include the following: (1) including free postage stamps or business reply mail postage sticker labels with absentee ballots and separately sending stamps or stickers to those voters who have already received their absentee ballots; (2) creating an online link to facilitate voters’ obtaining postage prepaid envelopes; and (3) mandating that each county set up a secure drop box at each post office location in the county. (Doc. 44 at 4–8.)
The Court believes that Plaintiffs’ original request for injunctive relief, requiring prepaid return envelopes for all absentee ballot applications and mailin absentee ballots, presents an important question necessitating prompt review. However, as the Court explained above, the Court will confine this Order to the June 2020 Primary Election. The Court therefore focuses on the claims and proposed alternative relief set forth by the Plaintiffs in their Second Supplemental Brief. (Doc. 44.) As discussed below, the Court finds that Plaintiffs have not met their heavy burden of showing an entitlement to their proposed alternative preliminary injunctive relief for the June 2020 election.
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Normally, a court must consider four factors in determining whether to grant a request for injunctive relief. Typically, the first and foremost issue considered is Plaintiffs’ likelihood of success on their claims. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005) (citing Gonzalez v. Reno, No. 00–11424–D, 2000 WL 381901 at *1 (11th Cir. April 19, 2000). However, in the interest of efficiently addressing issues relating to the June 2020 Election right now, given the complexity of the legal claims at issue, the Court begins by discussing the last two legal factors that must be considered in determining the appropriateness of granting Plaintiffs’ request for injunctive relief. These latter two factors guide denial of relief at this time, given the status of printing and postal transmission of the absentee ballots by the State’s vendor and the Secretary of State’s Office. The Court considers these last two factors “in tandem . . . as the real question posed in this context is how injunctive relief at this eleventh-hour would impact the public interest in an orderly and fair election, with the fullest voter participation possible. . . .” Curling v. Kemp, 334 F. Supp. 3d 1303, 1326 (N.D. Ga. 2018), aff’d in part, appeal dismissed in part, 761 F. App’x 927 (11th Cir. 2019); see also Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)).
As the Court noted above, Plaintiffs requested an injunction or written confirmation from Defendants allowing organizations to distribute stamps to voters without running afoul of election regulations. (Doc. 44 at 2.) Defendants were unwilling to make such a stipulation at the hearing, insisting that Plaintiffs were “just asking for the state to follow the law.” (Transcript of Apr. 24, 2020
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Hearing (“Tr.”) at 112, Doc. 75.) The “law” in question is the State Election
Board’s official interpretation of O.C.G.A. § 21-2-570’s ban on gifts for registering
as a voter. The official State Board interpretation in its Rules and Regulations
expressly permits a third party to furnish postage to a voter for submitting an
absentee ballot application and the mail-in absentee ballot. Ga. R. & Reg. 183-1-
19-.01.2 The Court therefore views the Plaintiffs’ underlying concern and request
as adequately addressed by the Secretary of State and State Board of Elections,
and no further Order by the Court is necessary on Plaintiffs’ request.
The Court now considers Plaintiffs’ three proposed alternative remedies for
the June 2020 Election, outlined above.
First, the Court heard evidence at the hearing that the number of absentee
ballot applications received by the state as of April 24, 2020 was over “760,000
and still coming in strong,” that the state has already “started mailing out
absentee ballots on April 21st,” and that as of April 24th, “approximately 220,000
have gone out.”3 (Tr. at 87, 90.) The alleged “per se” claim of irreparable injury
2 The rule provides in full: In the interpretation of O.C.G.A. Section 21-2-570, the State Election Board has determined that the prohibition contained therein against the giving or receiving, offering to give or receive, or participating in the giving or receiving of money or gifts for the purpose of registering as a voter or voting does not include the provision of postage to a person solely for the purpose of (1) mailing a voter registration application in order for such person to register to vote or (2) mailing an absentee ballot application or an absentee ballot that was voted and sealed by such person in order for such person to vote.
3 Today, the Atlanta Journal Constitution reports that over one million Georgia voters have requested absentee ballots as of April 30th. See Mark Niesse, Over 1 million Georgia voters request absentee ballots, Atlanta J.–Const. (Apr. 30, 2020), https://www.ajc.com/news/state-regional-govt--politics/over-million-georgia-voters-request-absenteeballots/gfEtMitQBrE34Gj7zEmtFO/.
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for payment of a poll tax has already been visited upon such voters. Therefore, any injunction requiring providing postage would necessarily benefit only some portion of the electorate. If the Court were to grant Plaintiffs’ requested relief, some voters would receive the benefit of State or County funded postage while those who had already mailed in their applications and/or ballots would not.
The State has argued that providing postage to some voters would run afoul of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98, 104-05 (2000). In that case, the Court held that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. . . .” Id. at 104-05 (internal citations omitted). While the Court does not agree that the relief requested to address the current circumstances actually “value[s] one person’s vote over that of another,” the relief could yield a measure of disparity in postage relief as a practical matter, that would touch on the Court’s weighing of the public interest factor for the June 2020 Election. Cf. id. at 105. To address this disparity, Plaintiffs suggest that the Court mandate adding prepaid postage to unsent ballots and sending stamps to those who have already received ballots. But this makes no practical sense in the context of the concrete circumstances here. It would effectively double the cost to the State, as the State would have to pay for the postage on the envelopes containing postage and print some form of an explanation regarding the
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provision of these stamps. The Secretary of State’s Office estimated the cost for prepaying postage would “range between $450,000 and $4.2 million” for this election at a time of other significant state fiscal concerns. (Rayburn Decl. ¶ 17.)
Equally and perhaps more important, this strategy runs the risk that at least some voters will delay prompt casting of their absentee ballots while awaiting delivery of postage. As noted, the arrival of a new envelope transmitted by the Secretary of State’s Office containing postage would also require further instruction and explanation — and cause some manner of voter confusion. (For instance, a voter may wonder, “Will my ballot be valid and counted if I already delivered or plan to deliver the ballot and won’t use the stamps provided?”) As shown by the infamous Florida 2000 election “hanging chads” and Georgia’s own mishaps4 in failing to transmit the inner white envelopes required by state law5 for confidential transmission of ballots (a white envelope requirement explicitly referenced in the envelope instructions), shifting or defective voting communications provide a host of opportunities for producing voter confusion.
Likewise, the proposed solution of establishing a website to obtain free postage is undercut by Plaintiffs’ own argument that many economically vulnerable voters do not have Internet access, putting aside the administrative cost of developing such a system or timely effectuation of stamp requests of an
4 Mark Niesse, Georgia absentee voting instructions to be corrected, Atlanta J.–Const. (Apr. 28, 2020), https://www.ajc.com/news/state--regional-govt--politics/georgia-absentee-votinginstructions-corrected/kzkuKmLufxIRcwIW0oEzCN/. 5 O.C.G.A. § 21-2-384(b).
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unknown volume at this moment. The proposed remedy of mandating drop boxes at all post offices, absent provisions for funding security cameras for this large volume of boxes and regular daily pick-up of ballots from the boxes, additionally carries the risk of virus exposure if the boxes are located inside the post offices. Plaintiffs argue that the perfect cannot be the enemy of the good. The Court concurs in principle. But a remedy which calls for quick implementation of a systemic remedy requiring coordination with 159 counties and approximately 600 post offices,6 electronic security, employee follow-up and funding in the immediate context where public election offices and volunteers are stretched to the limit in this pandemic crisis, may well not be reasonably effected in the five weeks ahead.7
A mandate for the immediate implementation of the proposed remedy targeted at the June 9th Election thus may consume significant human and financial resources but not effectively prevent the alleged threatened irreparable injury. This makes the Court’s weighing of the balance of hardships and rights asserted more difficult. The Court does not hold that the purported costs to the state necessarily outweigh the burden to Plaintiffs in the abstract, but instead merely observes that under the circumstances, entering Plaintiffs’ proposed half
6 See USPS website, https://webpmt.usps.gov/pmt011.cfm (last visited April 30, 2020), identifying, 605 open post offices in Georgia (with postal offices discontinued subtracted). 7 On the other hand, a more tailored version of the proposed remedies conceivably could be appropriately implemented in the future to bolster voters’ effective exercise of the absentee ballot right during a period when a swath of voters are still impacted and limited by the COVID19 public health crisis.
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measures which pose a variety of challenges and administrative constraints so
close to the election date would not be justified in light of the costs and the
associated issues of voter confusion and election personnel resources the Court
has discussed.
Indeed, the Supreme Court has recognized that there are special
considerations involved with impending elections and the critical issues at stake.
In Reynolds v. Sims, the Court stated:
[O]nce a State’s [election-related] scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles.
377 U.S. 533, 585 (1964). Reynolds is not an inviolable commandment against
pre-election injunctions. In their Second Supplemental Brief, Plaintiffs
acknowledge “that the public interest would not be served by maintaining their
request for injunctive relief as originally stated with respect to the June election.”
(Doc. 44.) This is plainly correct. The Court appreciates Plaintiffs’ candor but
cannot agree that the proposed alternative remedies go significantly further in
serving the public interest at the moment. Entering an order requiring the State
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to alter the absentee ballot envelopes regarding postage instructions8 or sending out postage now, when ballots have already been mailed to hundreds of thousands of voters, runs the risk that voters awaiting new instructions do not timely submit their ballots.
Finally, while this by no means cures the alleged irreparable injury, all parties agree that Plaintiffs and similar voting rights groups are permitted to distribute stamps to voters. And the Court has expressly recognized that Ga. R. & Reg. 183-1-19-.01 allows third parties, such as the Plaintiff organization, to assist voters by the provision of stamps solely for the purpose of transmission of their absentee ballot applications and ballots.
For the above reasons, the Court need not reach the remaining factors for injunctive relief at this time, including the question of whether Plaintiffs have shown a substantial likelihood of success on the merits. But just as the virus itself does not appear to be going away in the immediate future, neither may this issue. III. Conclusion
The Court has denied relief as to the June 2020 Primary Election, but it would benefit the public for the Parties to immediately discuss means to reach the goal of eliminating barriers to voting posed by the COVID-19 pandemic. It appears that the instructions to absentee voters are undergoing changes as a result of the fact that voters have been provided with folded pieces of paper in
8 However, the Court notes that the State has now indicated that the white envelope voting instructions will have to be changed going forward in any case. Niesse, supra. note 4.
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lieu of the standard inner secrecy envelope required by state law that the Secretary of State and DeKalb County previously represented to the Court would be provided to all voters. O.C.G.A. § 21-2-384(b); (Doc. 51 at 5; see also Docs. 54, 61); Niesse, supra. note 4. It would be appropriate under the circumstances for Defendants’ counsel to discuss with Plaintiffs’ counsel whether adding an instruction regarding postage to the revised instructions would be a workable solution. For example, such an instruction might state that if a voter is unable to obtain postage, he or she should contact his or her local board of elections regarding other alternatives for delivery of the ballot. Furthermore, Defendants should consider whether O.C.G.A. § 21-2-385(a)’s provision for allowing inperson delivery of ballots by family or household members in the COVID-19 pandemic circumstances could be construed to permit delivery of ballots by family members of persons particularly susceptible to COVID-19 because of underlying conditions or age (60 plus).9
For the foregoing reasons, the Motion for Preliminary Injunction [Doc. 2], as modified by Plaintiff’ supplemental submissions, is DENIED IN PART as to the June 2020 Election only.
8 The State Board of Elections is authorized to issue such emergency rules or policies. See, e.g., SEB Emergency Rule 183-1-14-0.6-.14 (citing O.C.G.A. § 21-2-31).
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Case 1:20-cv-01489-AT Document 83 Filed 04/30/20 Page 14 of 14 IT IS SO ORDERED this 30th day of April, 2020.
____________________________ Honorable Amy Totenberg United States District Judge
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 Case 1:20-cv-01489-AT Document 84 Filed 05/01/20 Page 1 of 36

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

BLACK VOTERS MATTER FUND, and MEGAN GORDON, on behalf of

) ) )

herself

and

all

others

similarly

situated,

) )

)

Plaintiffs,

) Civil Action No. 1:20-cv-1489-AT

)

)

vs.

)

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia;

DEKALB

COUNTY

BOARD

) )

OF REGISTRATION & ELECTIONS, )

and all others similarly situated,

) )

)

Defendants.

) )

)

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT RAFFENSPERGER’S MOTION TO DISMISS

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Defendant Secretary of State’s Office (“the Defendant”) moves to dismiss this case for two overarching reasons: 1) on the merits, that the complaint purportedly fails to state a claim upon which relief may be granted; 2) that Plaintiffs lack standing. COVID-19 is ravaging the state and voters should not have to choose between risking deadly infection to vote in-person and risking deadly infection to buy stamps at a Post Office. For these reasons and more, Defendant’s motion should be denied.
ARGUMENT I. PLAINTIFFS HAVE STATED A CLAIM UPON WHICH RELIEF
MAY BE GRANTED Defendant argues that Plaintiffs have not stated a claim for which relief can be granted, adopting his arguments from his brief in opposition to plaintiffs’ motion for preliminary injunction (“MPI”). Doc. 67-1 at 23. Plaintiffs do the same with respect to their moving brief and reply, as well as arguments raised during the hearing on April 24, 2020. Doc. 75. Plaintiffs will strive not to repeat prior arguments. Part A addresses Plaintiffs’ poll tax claim. Here, Plaintiffs will explain the difference between the (1) facial and (2) as-applied versions of the claim; (3) demonstrate in detail how voter ID cases support Plaintiffs’ poll tax claim; and
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(4) respond to Defendant’s “poll tax definition” argument, Doc. 51 at 22-24. These arguments together demonstrate that Plaintiffs have stated poll tax claims upon which relief can be granted.
Part B will explain how Plaintiffs have stated an Anderson-Burdick claim upon which relief can be granted, and also break down the facial and as-applied distinction.
Part C will address Defendant’s federalism arguments, which he appears to argue requires the dismissal of both claims. Doc. 67-1 at 22-23.
A. Poll tax claim (Count I) Right now, this case is about the COVID-19 pandemic, which imperils practically all Georgia voters who cannot vote in-person or buy stamps without exposing themselves to a deadly virus. This case is also about the burdens ordinarily faced by marginalized voters who cannot easily get stamps or vote inperson. Plaintiffs’ facial claim does not depend upon the pandemic or changing circumstances as a strict doctrinal matter. Plaintiffs’ as-applied poll tax claim, however, focuses directly on the plight of vulnerable voters, which currently includes nearly all voters during the COVID-19 pandemic. Both claims achieve the same ends.
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1. Facial poll tax claim Plaintiffs’ facial poll tax claim is premised on the proposition that the poll tax workarounds—here, voting in person—impose at least a “material requirement” on voters generally. This facial attack is patterned after Harman v. Forssenius, 380 U.S. 528, 542 (1965). While courts were not using the formal “facial” versus “as-applied” framework in 1965, Harman was essentially a facial challenge. It was brought on behalf of “a broad class of citizens,” id. at 537, and it resulted in the poll tax being struck down in all circumstances, id. at 533; 554. Harman did not examine whether the certificate of residence workaround was “cumbersome” for one voter versus another. Instead, the Court found the certificate of residence workaround to be “cumbersome” generally, and “constitutes an abridgment of [the] right to vote by reason of failure to pay the poll tax.” Id. at 541-42. The standard, of course, is “materiality.” A requirement is “material” even if it “no more onerous, or even somewhat less onerous,” than paying $1.50. Id. at 542. This standard is low, because the Twenty-Fourth Amendment is an inexorable command. Id. at 542 (“For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.” (emphasis added)). In addition, poll taxes were considered so odious and racist, id.
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at 539-40, that they needed to be pulled out, root and branch. That is why the Twenty-Fourth Amendment prohibits the “abridgment”—not just the denial—of the right to vote. Id. at 540-41. The amendment says voting “shall not be abridged,” it does not say voting “shall not be substantially abridged,” as Defendant’s arguments imply.
This historical background and the text of the amendment demonstrates why Harman used language emphasizing how low the material burden requirement is. Id. at 541 (after tracing history of poll tax, noting that “it need only be shown that it imposes a material requirement upon those who refuse . . . [to] pay[] a poll tax.”) (emphasis added); id. at 542 (poll tax “would not be saved even if it could be said that it is no more onerous, or even somewhat less onerous, than the poll tax” (emphases added)). Any abridgment on the basis of failure to pay a poll tax is too much abridgment.
For these reasons, efforts to vote in person—which Defendant boils down to “[g]as, time, or bus or rideshare fares”, Doc. 51 at 21—are still “material” because
1 Conflating different legal concepts together, the Secretary also argues that “postage” is not a “material burden,” Doc. 51 at 2, but the affordability of the poll tax itself is irrelevant. In addition, the Secretary argues that “allowing the use of mail without pre-paid postage is [not] a material burden on voting.” Id. at 28. Plaintiffs’ will not repeat arguments related to the alleged U.S. Postal Service policy. Doc. 57 at 10-11.
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they are “no more onerous, or even somewhat less onerous, than the poll tax” of $0.55 to $1.60. Harman, 380 U.S. at 542.
2. As-applied poll tax claim Plaintiffs’ poll tax claim also includes an alternative as-applied challenge, made on behalf of all voters for whom evading the poll tax, i.e., voting in-person, is a material burden. During this pandemic, this practically includes all voters.2 The only realistic option to vote for many if not most voters right now is to vote by mail, but the state cannot condition access to the franchise on payment of a fee. Plaintiffs’ as-applied poll tax challenge survives even after the pandemic is over. The vulnerable voters covered by the claim’s umbrella includes particular groups of voters, like the elderly and disabled, for whom voting in person is difficult or impossible (and most certainly “material”). The only real way for these vulnerable voters to vote is to pay for postage.
2 The Secretary will probably argue that Plaintiffs did not spell out these as-applied legal theories with precision in their Complaint. That is irrelevant even if true. See Frank v. Walker, 19 F.3d 384, 386-87 (7th Cir. 2016) (legal theory challenging voter ID law as applied to certain voters was not foreclosed by the fact that the complaint did not reference it, even where as-applied challenges were raised years after the complaint). Plaintiffs’ counsel also described this as-applied challenge at the April 24 hearing. See Doc. 75 at 119:16-22; 150:21-23; 151:25-152:6; 16:3-11; 17:7-10.
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3. Voter ID cases support Plaintiffs’ poll tax claims Defendant relies on a string cite of Voter ID cases to argue that paying for postage is “indirect” and thus not a poll tax. Doc. 51 at 22. These cases demonstrate the opposite. U.S. Supreme Court. Defendant notably omits Crawford v. Marion Cnty. Elect. Bd., 553 U.S. 181 (2008) from his string cite. In Crawford, the Supreme Court all but said that “requir[ing] voters to pay a tax or a fee to obtain a new photo identification” to satisfy a voter ID law would be an unconstitutional poll tax. Id. at 198 (citing Harper v. Va. Bd. of Elec., 383 U.S. 663 (1966)). Thus, Indiana’s voter ID law was not unconstitutional in this respect because “the photo identification cards issued by Indiana’s BMV are . . . free.” Id. Here, postage is required and postage costs money, so postage is an unconstitutional poll tax under the reasoning of Crawford. In addition, it makes no difference whether a voter already has stamps, because Crawford explained that a poll tax is a poll tax even if “most voters already possess a valid driver’s license.” Id. Of course, Crawford held that, in the Anderson-Burdick context, “the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”
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Id. See infra Part I.B. (discussing this argument as it relates to Anderson-Burdick). But given the Constitution’s strict prohibition on poll taxes, the similar burdens of voting in-person do constitute a “material requirement” that voters should not have to choose to evade the poll tax.
Fifth Circuit. Defendant cites Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc),3 but that decision also affirms Plaintiffs’ proposition that requiring a document to vote is a poll tax when that document costs money precisely because of what Crawford said. See id. at 266-67 (voter ID “statute would be invalid under Harper’s Fourteenth-Amendment poll tax analysis ‘if the State required voters to pay a tax or a fee to obtain a new photo identification’” (quoting Crawford, 553 U.S. at 198)). Because Texas’s voter ID law allowed voters to present an “Election Identification Certificate” (“EIC”), which in turn was free, id. at 225, the EIC was not a poll tax. Here, however, Georgia requires a postage stamp which is not free.
Defendant seems to be relying on the part of Veasey which provides that there is no poll tax claim when an “underlying document” like a birth certificate costs money, which the court characterized as an “indirect cost.” Id. at 266-67. The
3 The Veasey case cited by the Secretary, 796 F.3d 487 (5th Cir. 2015), was the panel decision vacated by the en banc decision cited here.
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law did not require voters to show birth certificates, but birth certificates were required to obtain the photo ID that the law did require of voters. The court’s reasoning seemed based on the fact that birth certificates are two steps removed from voting in this respect. Id. at 266. But postage stamps, like photo identification, are explicitly required (i.e., one step removed from voting), and stamps cost money.4
Furthermore, Veasey’s holding was premised in part on the notion that photo identification is connected to voter qualifications, i.e., identity. See Veasey, 830 F.3d at 266 (photo ID helps assess “the eligibility and qualifications of voters”). Here, a postage stamp has nothing to do with a voter’s qualifications. Harper, 383 U.S. at 666. Nor does it have anything to with protecting the integrity or reliability of the electoral process. See Doc. 75 at 108:15-109:10. And even if the postage requirement did serve some kind of “evidentiary function” towards establishing qualifications, it would still be unconstitutional. Harman, 380 U.S. at 544.
Lastly, Veasey concluded by saying that the state “does not offer Texas voters a choice between paying a fee and undergoing an onerous procedural
4 For the record, Plaintiffs as well as the Wisconsin and Missouri Supreme Courts, see infra, disagree with Veasey’s proposition that there is no poll tax when an underlying document costs money. But this disagreement is irrelevant to this case.
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process,” because “[a]ll voters must make a trip to the DPS, local registrar, county clerk, or other government agency at some point to receive qualifying photo identification.” Veasey, 830 F.3d at 267. This analysis was in response to an inchoate argument made by the plaintiffs and is not entirely clear. Veasey appeared to say that the process of obtaining a paid photo ID (a poll tax), which involved a trip to the driver’s license agency and handing over money, was as burdensome as the workaround process of obtaining a free photo ID (the EIC), which also involved the same trip to the driver’s license agency. Id. Thus, the voter who is at the driver’s license agency can generally evade the poll tax just by asking for an EIC instead of a driver’s license on the spot.
If this interpretation is true, then that would only support Plaintiffs’ claim. When a Georgia voter receives their absentee ballot packet, the packet does not come with two large absentee ballot envelopes—one with prepaid postage, and one without—and then all a voter has to do is pick the prepaid one if they refuse to pay the poll tax. Instead, evading the poll tax currently requires voters to expose themselves to the COVID-19 virus by voting in person or buying a stamp.
Ninth Circuit. Defendant’s reliance on Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012), is also misplaced. The Ninth Circuit held that Arizona’s Voter ID
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law did not impose a poll tax,5 but, similar to Veasey, rooted its holding in the principle that photo identification helps establish a voter’s qualifications. Id. at 409 (“any payment associated with obtaining the documents required under [the Voter ID law] is related to the state’s legitimate interest in assessing the eligibility and qualifications of voters”). Here, however, stamps do not prove identity and are unconnected to any voter qualifications. Harper, 383 U.S. at 666.
Multiple State Supreme Court decisions involving Voter ID also confirm that the monetary cost of a documentary prerequisite constitutes a poll tax.
Wisconsin Supreme Court. In Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262, 274-77 (Wis. 2014), which was cited by Plaintiffs and unaddressed by Defendant, the Wisconsin Supreme Court noted with approval that “courts have characterized payments to government agencies to obtain documents necessary to voting [is] a de facto poll tax.” Id. at 275. For that reason, requiring voters to spend money to purchase ID, or an underlying document needed to obtain ID (i.e., a birth certificate), was unconstitutional.
5 Notably, Arizona’s Voter ID law also allowed voters to present documents that did not cost money. See id. at 404. Here, stamps and only stamps are required to vote by mail.
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Michigan Supreme Court. The Michigan Supreme Court issued an advisory opinion, In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. 2007), that was premised on the very proposition Plaintiffs make in this case: that requiring voters to pay for a document required for voting is an impermissible poll tax. Id. at 464-65. The court ultimately concluded that Michigan’s voter ID law was not a poll tax, but only because voters could effortlessly work around the requirement by signing an affidavit at the very moment that the voter is required to present photo identification. Id. at 451, 465. Signing an affidavit did not require the voter to go someplace else or gather additional documents. Here, the voter cannot sign anything on the absentee ballot envelope to get out of paying for postage (to the extent the U.S. Postal Service (“USPS”) would ever allow such a strange mechanism to exist), and must take on the material (or, right now, deadly) burden of voting in person.
Tennessee Supreme Court. Similarly, in City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013), the Tennessee Supreme Court addressed the poll tax issue on the premise that paying for photo identification would make the voter ID law a poll tax. Id. at 106. As in Michigan, the Tennessee voter ID law was ultimately found not to be a poll tax because voters could sign an affidavit at the very moment and location where photo ID was required to be presented. Id. Georgia voters,
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however, cannot sign anything like this on the absentee ballot envelope to be exempt from postage.6
Missouri Supreme Court. In Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006), the Missouri Supreme Court also drew on poll tax principles to conclude that requiring voters to pay for “birth certificates and other documentation to acquire a photo ID and vote” was unconstitutional under the Missouri Constitution. Id. at 214.
District court cases. Defendant’s remaining citations to district court decisions are unavailing. Common Cause / Georgia v. Billups, 439 F. Supp. 2d 1294, 1355-56 (N.D. Ga. 2006) only confirms that the monetary cost of a documentary prerequisite makes requiring that document a poll tax. Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827 (S.D. Ind. 2006) is a red herring because Plaintiffs agree that “tangential burdens” do not constitute a poll tax. Direct monetary costs are not tangential, and Rokita doesn’t say otherwise.
6 Unlike the affidavit in Michigan, Tennessee law requires voters to swear under penalty of perjury that they are “indigent and unable to obtain proof of identification without payment of a fee.” T.C.A. § 2-7-112. Plaintiffs do not waive the argument that this type of humiliating affidavit is inappropriate, especially when “indigent” has no clear meaning and non-lawyers hardly ever use it, barriers other than “indigency” prevent obtaining postage, and “indigency” fails to sufficiently capture vulnerable voters. See Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1334, 1340 (N.D. Ga. 2005).
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In sum, Voter ID decisions from the United States Supreme Court, the Fifth Circuit, and four State Supreme Courts support Plaintiffs’ proposition that requiring a document to vote is a poll tax when that document costs money. And the Ninth Circuit’s decision in Gonzalez provides yet another reason why postage costs are a poll tax: stamps have nothing to do with a voter’s qualifications.
4. Defendant’s “poll tax definition” argument fails Defendant argues that the definition of “poll tax” precludes Plaintiffs’ claim (hereinafter “the definitional argument”), because poll taxes technically must raise revenue for the entity that imposes it7 according to the technical dictionary definition of “poll tax,” and that the United States Postal Service is technically the one imposing the poll tax, not the Secretary. Doc. 75 at 140:9-22.8 The Supreme Court has rejected these kinds of hyper-technical shell games in poll tax claims. Harman recognized that “[c]onstitutional rights would be of
7 Plaintiffs will not repeat arguments about whether the money ends up going to the State (it does). Doc. 75 at 122:19-126:1. 8 During the April 24 hearing, Counsel for the Secretary faulted Plaintiffs for failing to address the definitional argument. Doc. 75 at 140:9-10. But Defendant’s MPI opposition brief admitted that its definitional argument was inchoate and would be fleshed out on a motion to dismiss. Doc. 51 at 19 n.21. The Secretary ended up not developing this argument in his motion to dismiss but instead developed that argument for the first time during the April 24 hearing. Doc. 75 at 140:9-22. So Plaintiffs respond here.
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little value if they could be indirectly denied or manipulated out of existence.” Harman, 380 U.S. at 540 (internal citations and quotations omitted). The TwentyFourth Amendment “‘nullifies sophisticated as well as simple-minded modes’ of impairing the right guaranteed.” Id. at 541 (citation omitted). For example, under Defendant’s proposed fiction, elections officials could require voters to show vehicle deeds in order to vote, then blame car dealerships for not giving voters free cars. Harman does not countenance this kind of manipulation, and Defendant’s gymnastic arguments should be rejected on that basis alone.
In any event, the suggestion that Post Offices are the cause of the poll tax is wrong. None of the Voter ID cases suggest that a state’s driver’s license agency is responsible for the poll tax when IDs cost money, that they are the proper defendants, or that the election officials sued in those cases cannot be defendants. That is unsurprising, because Defendants are the ones with the power to impose requirements on voters and the power to condition the right to vote on paying a poll tax. USPS has no specific duty of care to voters while the Secretary does.9
9 To the extent Defendant’s motion is a shadow Rule 12(b)(7) motion, Plaintiffs reserve the right to respond more fully to such an argument if a 12(b)(7) motion is formally filed.
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Lastly, Defendant is relying on the wrong “poll tax” definition from Black Law’s Dictionary. The “poll tax” term defined in Black Law’s Dictionary refers to an old usage of the term which meant something different, and it had nothing to do with voting. Specifically, the term was used to describe direct taxes imposed on each person in a jurisdiction, also known as a “capitation,” based solely on the citizen’s presence in the jurisdiction and without regard to income or transactions. See Nat’l Federation of Indep. Bus. v. Sebelius, 567 U.S. 519, 570 (2012) (“Even when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a ‘head tax’ or a ‘poll tax’); Hylton v. United States, 3 U.S. 171, 175 (1796) (the “direct taxes contemplated by the Constitution [include] “a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance”); Home Ins. Co. of N.Y. v. City Council of Augusta, 1874 WL 3131, *8 (Ga. 1874) (equating “poll tax” with “capitation”). That is why Black’s Law Dictionary defines a “poll tax” as a “fixed tax levied on each person within a jurisdiction,” and why it makes no mention of voting at all.10 If anything, the more relevant term is “tax” itself, which Black’s Law Dictionary defines broadly as
10 “Capitation,” used as a synonym in the cases above, is similarly defined as “tax or payment of the same amount for each person.” Black’s Law Dictionary (11th ed. 2019).
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including any “charge” or “burden,” including non-monetary burdens, and that “yield[s] public revenue.” The postage requirement fits all those criteria.
Defendant lastly relies on Coronado v. Napolitano, No. CV-07-1089-PHXSMM, 2008 WL 191987, at *5 (D. Ariz. Jan. 22, 2008). It is distinguishable. Napolitano ruled that criminal restitution or fines are not poll taxes because they satisfy voter qualifications. Id. Here, postage money has nothing to do with a voter’s qualifications. See Harper, 383 U.S. at 666.
B. Anderson-Burdick claim (Count II) Unlike Plaintiffs’ poll tax claim, the burdens of obtaining postage are relevant to Plaintiffs’ Anderson-Burdick claims—both facial and as-applied. Plaintiffs’ facial attack on the postage requirement argues that the widespread and significant burdens imposed by this requirement—making all voters spend money—are not justified by the State’s interest in saving money. See Crawford, 553 U.S. at 191 (Anderson-Burdick claim requires courts to “weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule” (citations omitted)). Plaintiffs’ as-applied Anderson-Burdick challenge focuses on vulnerable voters who cannot get postage with “reasonable effort,” and currently that includes
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almost everyone during this deadly pandemic.11 See, e.g., Frank v. Walker, 19 F.3d 384, 385-87 (7th Cir. 2016) (contrasting facial and as-applied challenges to voter ID law).
The State characterizes the postage requirement as a “minimal” burden, Doc. 51 at 26-29, but the Complaint’s allegations have plausibly pled that this characterization is untrue, Compl. ¶¶ 8, 29-36. Nor do the State’s interests automatically justify the burdens of buying and obtaining postage. While Defendant argued in the poll tax section that stamps “protect the integrity and reliability of the electoral process itself,” Doc. 51 at 22, Defendant wisely abandons that argument when it comes to the Anderson-Burdick argument. In any event, Plaintiffs do not see how stamps helps with electoral integrity, and Defendant does not know either. See Doc. 75 at 108:15-109:10.
Instead Defendant admits upfront that the “purpose of the state’s longstanding decision not to pay the cost of return mail is financial.” Doc. 51 at 30. But Crawford all but says, relying on Harper, that asking voters to spend money on a prerequisite document is unjustified by any government interest under Anderson-Burdick. See Crawford, 553 U.S. at 198. If an interest as heavy as
11 Plaintiffs will not repeat arguments about the burdens of buying stamps online. Doc. 57 at 6; Doc. 75 at 39:21-40:7.
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preventing voter fraud does not justify charging voters money, surely raw financial
considerations should not either.
Indeed, courts have generally been skeptical in a variety of contexts about
just how much raw financial considerations can justify impinging on the right to
vote. See Stewart v. Blackwell, 444 F.3d 843, 872 (6th Cir. 2006), superseded on
other grounds, 473 F.3d 692 (6th Cir. 2007) (“Governments almost always attempt
to justify their conduct based on cost and administrative convenience, but the
state’s reliance on these factors is not necessarily rational.”). The cases are
legion.12 At a minimum, this Court should let discovery play out to test just how
12 See also, e.g., See also League of Women Voters of N.C. v. N.C., 769 F.3d 224, 244 (4th Cir. 2014) (reversing district court for “sacrificing voter enfranchisement at the altar of bureaucratic (in)efficiency and (under-)resourcing.”); Tashjian v. Republican Party of Conn., 470 U.S. 208, 217-18 (1986) (“the possibility of future increases in the cost of administering the election system is not a sufficient basis here for infringing [the Republican Party’s] First Amendment rights”); League of Women Voters of Missouri v. Ashcroft, 336 F.Supp.3d 998, 1006 (W.D. Mo. 2018) (“These significant burdens on Plaintiffs in the absence of injunctive relief outweigh any financial burden on Defendants, even assuming Defendants' cost estimate relating for the full scope of relief is accurate.”); Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *9 (N.D. Ill. Mar. 13, 2006) (while due process “would pose some additional administrative and fiscal burdens” on the government, the burdens were not “so great as to overwhelm plaintiff’s interest in protecting his vote”); Cotham v. Garza, 905 F. Supp. 389, 399 (S.D. Tex. 1995) (rejecting justification that “the cost of administering elections might increase” if the challenged law was struck down); Fla. Dem. Party v. Detzner, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 16, 2016) (“administrative inconvenience” “cannot justify stripping Florida voters of their fundamental right to vote and to have their
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strong these interests are, to the extent they are not already illegitimate as a matter of law.
Even putting aside this heavy backdrop of cases, which Defendant cannot overcome at this early stage, the State’s financial interests still would not justify charging voters money whenever they vote by mail. The government’s financial interests do not justify specifically using a poll tax to save money, because there are other ways to raise money. And it is easier for the government to raise money than it is for voters to do so, Compl. ¶ 8, even during the COVID-19 pandemic, which has already economically ruined voters’ lives.
Defendant cites two cases which do not help him. In Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016), cost savings barely factored into the analysis, and Defendant does not invoke the other, far weightier interests in that case, like preventing voter fraud. Id. at 632-34. Wilson v. Birnberg, 667 F.3d 591, 601 (5th Cir. 2012) was a procedural due process case that involved candidates who seek the privilege of elected office, which is a far cry from the fundamental right to vote.
votes counted”); Fla. Dem. Party v. Scott, 215 F. Supp. 3d 1250, 1258 (N.D. Fla. 2016) (noting that the “case pits the fundamental right to vote against administrative convenience,” and ruling in favor of the right to vote).
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For the above reasons, Plaintiffs have plausibly stated an Anderson-Burdick claim.
C. Federalism concerns do not preclude Plaintiffs’ claims Lastly, with respect to Counts I and II, Defendant invokes federalism. Doc. 67-1 at 22. It hardly bears mention that states must comply with the United States Constitution. See Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (“It has long been a settled principle that federal courts may enjoin unconstitutional action by state officials.”). But Defendant’s federalism arguments fail on their own terms as well. Defendant argues that the Constitution reserves “most authority regarding the integrity and efficiency of elections to states,” citing U.S. Const. Art. I, § 4, cl. 1, and that the “framers of the Constitution intended the States to keep for themselves, as provided by the Tenth Amendment, the power to regulate elections.” Gregory v. Ashcroft, 501 U.S. 452, 461-62 (1991). But the TwentyFourth Amendment is also in the Constitution. The text of that amendment bans poll taxes and specifically applies to the “State[s].” U.S. Const. amend. XXIV. All these provisions can live in harmony, and Defendant cites no cases where Article I or the Tenth Amendment were read to erase the Twenty-Fourth Amendment.
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To the extent that the Secretary suggests that Article I and the Tenth Amendment do overrule the Twenty-Fourth Amendment, that interpretation would violate the basic textualist canon that specific provisions take precedence over general ones. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts at 183 (2012) (General/Specific Canon). Thus, even if Article I and the Tenth Amendment gave absolute powers to the States over elections, the Twenty Fourth Amendment has carved out an exception.
Defendant relies on language from several cases (Storer, Wexler, and Powell), Doc. 67-1 at 22, stating that courts should carefully consider the State’s interest in running their own elections. Courts should. That is why such language planted the seeds for the eventual development of the Anderson-Burdick framework. See Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983) (citing Storer); Burdick v. Takushi, 504 U.S. 428, 432 (1992) (citing Storer); Crawford v. Marion Cnty. Elec. Bd., 553 U.S. 181, 202 (2006) (citing Storer). Powell v. Power, 436 F.2d 84, 86 (2d Cir. 1970) echoes Storer’s language. As does Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986), though that case is further afield because it involved a “substantive due process claim,” id., which Plaintiffs are not touching with a ten-foot pole.
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In sum, the important concerns Defendant raises about elections operations is already baked into the Anderson-Burdick doctrine, and there is no additional, free-floating federalism argument that the test does not already account for. Defendant is free to make these arguments in the context of Anderson-Burdick on the merits (or in the context of an MPI with respect to equities), but federalism doesn’t justify 12(b)(6) dismissal.
Federalism concerns are also diminished given that the postage requirement is not required—or even addressed—under state law. An injunction would not amend anything in the law, nor would it second-guess the General Assembly, who has never passed any laws on the topic (that Plaintiffs are aware of). Compare, e.g., Georgia Muslim Voter Project v. Kemp, 918 F.3d 1262, 1286-88 (11th Cir. 2019) (Tjoflat, J., dissenting) (raising federalism concerns because injunction effectively rewrote Georgia statutes).
And of course, none of these concerns about election administration apply to the poll tax claim. The Twenty-Fourth Amendment is not a balancing test. The text reveals an absolute prohibition that is never justified by the purported need to raise money. Harman, 380 U.S. at 544 (“For federal elections the poll tax, regardless of the services it performs, was abolished by the Twenty-fourth Amendment.”). Contrary to Defendant’s suggestion, this Court need not assess whether Plaintiffs’
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poll tax claim has demonstrated “patent and fundamental unfairness” or have called into doubt the “very integrity of the electoral process.” Doc. 67-1 at 23. Those words aren’t in the Twenty-Fourth Amendment.
II. PLAINTIFFS HAVE ESTABLISHED ARTICLE III STANDING Because Defendant’s attack is based solely on the allegations in the
complaint, this is considered a “facial attack” where courts do not look outside the pleadings. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).13
A. Plaintiffs have established injury in fact and traceability Defendant argues that Plaintiffs have failed to establish “injury in fact,” essentially for two reasons: 1) no one knows how long the COVID-19 pandemic will last, so voters may be able to vote in-person any day now, Doc. 67 at 7-8; and,
13 “Factual attacks,” on the other hand, challenge standing based on “‘matters outside the pleadings, such as testimony and affidavits.’” Id. at 1251 (citation omitted). Defendant’s motion is not a “factual attack,” as Defendant all but confirms, Doc. 67-1 at 5-6, and Defendant did not incorporate its latest filing, Doc. 79, as part of its motion to dismiss. Thus, the caselaw prohibits Plaintiffs from pointing to extrinsic evidence in response to Defendant’s motion. Plaintiffs also will not respond to new standing arguments made in the recent filing (Doc. 79). Should this Court wish to base its standing ruling on extrinsic evidence, Plaintiffs request a fair opportunity to respond, including a response to Defendant’s latest filing (Doc. 79), and including relying on Mr. Albright’s testimony and affidavits, Doc. 77, which more than answer the standing questions raised by this Court during the hearing. Doc. 75 at 113:24-115:10.
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contradictorily, 2) voters can “choose” to vote in-person now anyway, id. at 10-11. But Plaintiffs have standing right now precisely because, according to the Complaint, voters actually cannot “choose” between voting by mail and voting in person during this crisis. Compl. ¶ 2.
Plaintiffs also have standing beyond this crisis. Plaintiffs will not repeat standing arguments that demonstrate how Defendant’s misunderstanding of Plaintiffs’ claims makes Defendant’s arguments ultimately irrelevant. Doc. 75 at 14:21-15:17; 16:3-18:20. Plaintiffs simply point to the allegations in the Complaint that, if accepted as true, establish standing on all claims as Plaintiffs have argued. The Complaint alleges that all voters are vulnerable due to COVID-19, Compl. ¶¶ 1-4; that there will always be voters who cannot easily vote in-person, id. ¶¶ 5, 14, 36; and that all voters who vote by mail must use postage, id. ¶ 4. That is enough.
Defendant repeats his argument that voters have a “choice.” See Doc. 67-1 at 10-12 (“choice” demonstrates no injury in fact or traceability). Plaintiffs will not repeat arguments on this point, and the substance of those arguments address the standing issue. See Doc. 57 at 7-8; Doc. 75 at 151:25-152:15; see also Harman, 380 U.S. at 538 (“the issue here is whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence.
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We conclude that this requirement [to choose between these options] constitutes an abridgment of the right to vote in federal elections in contravention of the Twentyfourth Amendment.” (emphasis added)). Defendant’s remaining traceability arguments about the USPS are substantively addressed supra Part I.A.4.
B. Black Voters Matter Fund has established organizational standing
Defendant next argues that BVM has not established organizational standing on the basis of the Complaint’s allegations.
“An organization has standing to sue on its own behalf if the defendant’s illegal acts impair [the organization’s] ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts.” Common Cause/Georgia v. Billups, 554 F.3d. 1340, 1350 (11th Cir. 2009). Standing is established if the organizations “‘reasonably anticipate[d] that they [would] have to divert personnel and time to educating volunteers and voters on compliance’ with the new voting requirements.” Id. (citation omitted).
Plaintiffs have satisfied this standard because the Complaint demonstrates that BVM will have to divert its resources to deal with the postage issue: “[BVM] must divert scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it.” Compl. ¶ 13. Nothing in this allegation
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suggests that the need to divert resources is only because of the pandemic; this allegation plausibly establishes that even more resources must be diverted in specific response to the postage requirement, on top of those already diverted because of COVID-19.
Defendant’s only argument is that shifting voter education resources from one topic to another “is not a diversion” because “educating voters about how to vote is voter education.” Doc. 67 at 15. Neither of the cases Defendant points to holds that all forms of “voter education” are considered the same activity for standing purposes, no matter the topic, volume, or format of the education. In fact, both cases involved a shift of resources from one type of voter education to another. See Common Cause/Georgia, 554 F.3d at 1350 (NAACP diverted resources “from its regular activities,” which the court noted included voter education, “to educate voters about the requirement of a photo identification and assist voters in obtaining free identification cards.”); Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1260 (11th Cir. 2012) (shift from citizenship classes, which is education, to fielding inquiries, which is also education).
Defendant slides n an argument that an organization must show that its “purpose” has “ceased” because of the postage requirement, Doc. 67-1 at 15,
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another proposition that finds no support in the two cases Defendant cites. Indeed, standing cases largely presume that the organization’s resources all go towards the same “purpose,” which is obvious because organizations are created for the “purpose” of achieving an unwavering goal. See Fla. NAACP v. Browning, 522 F.3d 1153, 1159 (11th Cir. 2008) (standing found because the challenged law “will hinder the organizations’ ability to carry out their mission” (emphases added). Resources, whether diverted or not, all serve the organization’s mission.
Lastly, Defendant relies on Jacobson v. Fla. Sec’y of State, No. 19-14552 (11th Cir. Apr. 29, 2020), Doc. 79 at ¶ 4, Doc. 79-1, in a recent filing, which Plaintiffs construe as a citation of additional authority connected to Defendant’s motion to dismiss. Defendant’s reliance is inapposite because Plaintiffs are not currently asserting associational standing. See Common Cause, 554 F.3d at 1351 (“Because we conclude that the NAACP has standing on its own behalf, we need not address whether it has associational standing”).
C. Plaintiff Megan Gordon and the putative class have standing to assert an Anderson-Burdick claim
Defendant argues that Plaintiff Gordon and the putative class lack standing to assert an Anderson-Burdick claim. Doc. 67-1 at 15-17. Defendant says that Ms. Gordon has “no burden” because she “has stamps.” Id. at 16. But she still has to pay for them—just like everyone else in the putative class. See also Crawford, 553
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U.S. at 198 (poll tax is a poll tax even if “most voters already possess a valid driver’s license.”). Defendant then says it is not impossible for Ms. Gordon to vote. Doc. 67-1 at 16. But Anderson-Burdick is a balancing test that doesn’t require voters to demonstrate impossibility.
D. Plaintiffs Anderson-Burdick claim is ripe Plaintiffs’ Anderson-Burdick claim is ripe. Defendant emphasizes that an action is ripe only “if, or when, the County elections officials (or the State for that matter) fail to constitutionally carry out their duties.” Doc. 67-1 (quoting Georgia Shift v. Gwinnett Cnty., No. 1:19-cv-01135, 2020 WL 864938, at *3 (N.D. Ga. 2020)). But here, “when” is now. Plaintiffs’ allege that Defendants are currently failing to fulfill their constitutional duties, because they are currently requiring voters to spend money when voting by mail. It is thus unsurprising that the three ripeness factors set out in Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998) tilt decidedly in Plaintiffs’ favor.
1. Delayed review would cause “hardship” to Plaintiffs First, “delayed review would cause hardship to the plaintiffs.” Ohio Forestry, 523 U.S. at 733. Plaintiffs will not belabor the argument about COVID-19’s current impact on voters. BVM as an organization has also demonstrated current injuries, Doc. 77-1 at ¶¶ 21-30, and reasonably anticipates
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even more, id. at ¶ 1. BVM and voters will not “have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain.” Ohio Forestry, 523 U.S. at 734. Harm is happening now.
2. There is no “administrative action” outside court that will eliminate the poll tax
Second, “judicial intervention” would not “inappropriately interfere with further administrative action.” Ohio Forestry, 523 U.S. at 733. The purpose of this rule is to ensure that a preestablished administrative procedure is allowed to move forward which might more quickly resolve whatever issue the lawsuit seeks to raise. Id. at 735-36; see Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) (ripeness doctrine’s “basic rationale is to . . . protect the agencies from judicial interference until an administrative decision has been formalized”), abrogated on other grounds, 430 U.S. 99. Thus, for example, in Ohio Forestry, there was an elaborate administrative procedure that gave environmental groups opportunities to ask for certain relief, and gave officials the opportunity to grant it, which could obviate the need for litigation. Ohio Forestry, 523 U.S. at 735-36.
But here, Defendant points to no preestablished administrative procedure whereby Defendant, on a regular basis, listens to the public’s constitutional concerns, then decides whether or not his actions (the ones not pursuant to state law, like the postage requirement) are constitutional. Nor are we in the middle of
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an incomplete administrative procedure where Defendant is now carefully assessing the constitutionality of poll taxes and has not yet reached a decision. Contrast, e.g., Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 1300, 1310-11 (11th Cir. 2002) (case challenging “tentative” policy not ripe (citing Nat’l Assoc. of Regulatory Utility Comm’rs v. Dep’t of Energy, 851 F.2d 1424 (D.C. Cir. 1988)); Pittman v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) (case likely unripe if there is “concern over interference with an agency’s decisionmaking process before it has the opportunity to finalize its policies”). In other words, there is no “further administrative action” with which to “interfere.”
Instead, Defendant says that he “is in the best position to issue new rules, policies and regulations when and where needed to address the challenges COVID19 may pose to Georgia’s elections between now and November.” Doc. 67-1 at 1920. This vague “trust me” system in no way resembles the kind of neutral, open, and regular administrative processes in the above ripeness cases. Moreover, Defendant does not indicate that this process includes an examination of whether his policies are constitutional; rather, it is a cost-benefit analysis. Nor does Defendant talk about the timing of any such decisions. Plaintiffs cannot wait indefinitely for an administrative procedure that does not exist. See Abbott, 387
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U.S. at 149 (claim was ripe where “no claim is made here that further administrative proceedings are contemplated”).
In any event, Defendant has already shut the door on Plaintiffs (and perhaps everyone else as well). As noted above, Defendant has declared that he, and only he, “is in the best position” to decide how to balance COVID-19 with voting issues. And most certainly “not the Plaintiffs.” Doc. 67-1 at 19. Thus, Plaintiffs have no other recourse at this point. See, e.g., Ala. Power Co., 307 F.3d at 1310-11 (“It is clear that judicial intervention will be required to save the petitioners from injury in this case.”).
3. This is no administrative mechanism to wait for that would efficiently develop or sharpen any facts to aid this Court
Third, the court looks at “whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry, 325 U.S. at 733. Here, Defendant argues that this case should not be filed because it is unclear when COVID-19 will end. Doc. 67-1 at 19. This argument was addressed supra Part II.A.
Defendant adds that “[t]he need for additional factual development in this matter is obvious.” Doc. 67-1 at 19. Defendant appears to misunderstand how the third factor works. Almost every lawsuit could use “additional factual development.” Instead this factor, like the second factor, is asking whether the
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facts are going to be developed or sharpened by some kind of scheduled administrative process and, if so, whether that fact-finding or fact-sharpening process should be completed first before the parties go to court. See Abbott Labs., 387 U.S. at148-49 (ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies”). If so, then it makes sense to let that process play out so that a more accurate picture is presented to the court. See Ohio Forestry, 523 U.S. at 736 (claim was not ripe because the lawsuit would have required “timeconsuming judicial consideration of the details of an elaborate, technically based plan,” “without benefit of the focus that a particular logging proposal could provide”).
Here, however, there is no mechanism that develops Anderson-Burdick facts in a way that makes adjudication easier. For instance, there is no pre-established administrative procedure that mathematically quantifies the burdens on voters as well as the government’s interests and puts it on a spreadsheet in order to help this Court adjudicate an Anderson-Burdick claim more easily. Defendant argues that
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“[w]aiting for additional facts to develop” is “prudent,” but fails to identify who or what will be developing these facts. Or when.14 Plaintiffs will not wait for Godot.
In sum, this case is beyond ripe to bursting. Every single day, the postage requirement forces voters without stamps to expose themselves to COVID-19 if they want to vote, and this lawsuit appears to be the only way to obtain relief. Defendant points to no administrative procedures that would allow Plaintiffs to ask Defendant to review the constitutionality of his policies outside of court, Defendant points to nothing suggesting he is engaging in some formal administrative process of examining the constitutionality of his own actions, and Defendant doesn’t want to hear from Plaintiffs anyway. Nor are there any other mechanisms that can more easily develop the facts in a way that would be helpful to this Court. Thus, this case is ripe.
CONCLUSION Right now, Defendants are unnecessarily putting Georgia voters at risk of contracting the COVID-19 virus. Thus, Plaintiffs have a claim, and they have a
14 The Secretary might argue that this case is not “purely legal” and so is not ripe. Ala. Power Co., 307 F.3d at 1310. However, being “purely legal” is only one way for a case to be ripe (obviously, because then no case involving discovery would ever be ripe). Id. “Significant present injuries” is another. Id. This case falls in the latter category.
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claim right now. For the above stated reasons, Defendant’s motion to dismiss should be denied.
Respectfully submitted this 1st day of May, 2020. Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
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CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on April 22, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
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 Case 1:20-cv-01489-AT Document 88 Filed 05/11/20 Page 1 of 27

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

BLACK VOTERS MATTER FUND, MEGAN GORDON, PENELOPE

) ) )

REID, and ANDY KIM, on behalf of themselves and all others similarly

) ) )

situated,

) Civil Action No.: 20-cv-1489-AT

)

)

Plaintiffs,

) Complaint-Class Action

)

vs.

) )

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS;

) ) )

ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH,

) ) )

SAMUEL E. TILLMAN, and BAOKY )

N. VU, in their official capacities as

) )

Members of the DeKalb County Board )

of Registration & Elections; HAMILTON, in her official

acnapdaEciRtyICaAs )))

Director of Voter Registration and )

Elections, and all others similarly

) )

situated,

)

)

Defendants.

) )

)

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AMENDED COMPLAINT Nature of the Case
1. This case is about protecting American democracy at a time when we are facing a worldwide pandemic. The Governor has declared a state of emergency and ordered everyone to stay at home unless absolutely necessary to go outside. The infection and death count is ticking upwards each day.
2. Under these circumstances, voting in-person is no longer a realistic option for most if not all voters. Voting in-person unnecessarily endangers the health and safety of voters and anyone they come into contact with well after voting. If this weren’t enough, voting in-person has become even harder as poll workers across Georgia (many who are elderly) are quitting in droves to limit the risk of potentially deadly exposure.
3. Under these circumstances, many voters have reasonably decided to vote from the safety of home by casting mail-in absentee ballots. With the ongoing pandemic, the number of mail-in votes is expected to skyrocket this year at recordbreaking levels. Voting by mail may become the new normal as more and more people vote by mail for the first time. Given the surge of voters who will be casting mail-in absentee ballots this year, it is all the more critical that all unconstitutional barriers to mail-in voting be removed as soon as possible.
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4. Though the stakes are high, the legal claim is simple. The United States Constitution (through the Twenty-Fourth and Fourteenth Amendments) bans poll taxes. Georgia election officials require voters to use their own postage when submitting mail-in absentee ballots and applications. Postage costs money. Thus, Defendants have imposed a poll tax in violation of the Constitution.
5. A poll tax remains unconstitutional even if there are free alternatives to voting, such as voting in-person. But the “option” of voting in-person does not really exist because of the pandemic. And voting in-person is already nearly impossible for certain voters that are elderly, disabled, or out of town.
6. Voters are thus trapped into paying an unconstitutional poll tax just to cast a ballot by mail. To be sure, many wealthy and middle-class voters see little problem paying 55 cents to avoid voting in person. While unconstitutional, the postage requirement barely fazes them.
7. But this case is not really about middle-class or wealthy people. This case is about marginalized voters who come from communities who have historically faced over a century of racist voter suppression, including the use poll taxes to disenfranchise voters, and who rightfully refuse to pay another cent for the right to vote. This case is about voters who have always voted in-person to honor their Black ancestors who have fought and died for the right to vote, but now
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cannot. This case is about voters who live on shoestring budgets and lack access to all the resources such as time, money, and transportation that wealthier people take for granted. This case is about voters who don’t have Internet access, smartphones, email addresses, printers, or scanners in a home office where they can download, print, scan, and e-mail absentee ballot applications to avoid paying postage. This case is about lower-income voters who have overlapping work and childcare responsibilities and cannot just skip work or family obligations to buy stamps at a post office just to vote.
8. For these vulnerable voters, the postage stamp requirement imposes a serious burden that is unfathomable to wealthier people. Many lower-income voters do not have postage stamps. They no longer need to use them or have never needed to use them. They cannot be expected to needlessly expose themselves to the pandemic just to get stamps in order to vote. That assumes they can even get there, when many do not have cars, and ride-sharing and public transportation is non-existent in rural parts of the state. Voters without Internet access or a credit card cannot buy stamps online, and if they do, they must unnecessarily purchase an unaffordable book of stamps (about $10) because they aren’t allowed to buy just one. Making matters worse, voters are left guessing about how much postage to use because ballots vary in size and weight. So they must add potentially
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unnecessary extra postage just to be safe from the risk of being disenfranchised. It hardly bears mention that few people actually own stamp scales.
9. For these reasons, Plaintiffs seek declaratory relief and a permanent injunction requiring Defendants to provide postage prepaid returnable envelopes for absentee ballots, as well as absentee ballot applications. Defendants know how to do this, because the law already requires them to provide postage prepaid returnable envelopes for other purposes. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 21-2-234(c).
10. Plaintiffs also seek a preliminary injunction that would protect voters from paying poll taxes in this year’s elections, particularly the November general election.
JURISDICTION AND VENUE 11. This is a civil and constitutional rights action arising under 42 U.S.C. § 1983 and the Twenty-Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. 12. Venue in this Court is proper under 28 U.S.C. § 1391 because the events giving rise to Plaintiffs’ claims arose in this district and division. The Defendant Secretary of State, and the proposed Defendant class representative
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DeKalb County Board of Voter Registration and Elections are both located within this district and division.
PARTIES 13. Plaintiff Black Voters Matter Fund is a non-partisan civic organization whose goal is to increase power in communities of color. Effective voting allows a community to determine its own destiny. Communities of color often face barriers to voting that other communities do not, so Plaintiff focuses on removing those barriers. Black Voters Matter works on increasing voter registration and turnout, advocating for policies to expand voting rights and access. Black Voters Matter is particularly active in the rural Black Belt of Georgia, which includes several counties in southwest Georgia. Plaintiff focuses on those communities because they tend to be the most neglected, and have higher rates of poverty than other places. Black Voters Matter must divert scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it especially for those with less resources. 14. Individual Plaintiff Megan Gordon is a registered voter of DeKalb County. She, like other voters who would be similarly situated, cannot vote inperson because of the COVID pandemic. Even absent the pandemic, she and other
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voters must still choose between paying a poll tax or voting in-person, which is nearly impossible for many who are elderly, disabled, or out of town, while being materially burdensome for others. She does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.
15. Individual Plaintiff Penelope Reid is a registered voter of Gwinnett County. She, like other voters who would be similarly situated, cannot vote inperson because of the COVID pandemic. Even absent the pandemic, she and other voters must still choose between paying a poll tax or voting in-person, which is nearly impossible for many who are elderly, disabled, or out of town, while being materially burdensome for others. She does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.
16. In addition, Plaintiff Reid currently has to vote by mail even if there were no pandemic. She is 80 years old, has knee problems and swelling in her ankles, which makes it hard to stand up. She cannot stand for long periods of time, so she is not able to wait in line at the polling place anymore.
17. Individual Plaintiff Andy Kim is a registered voter of DeKalb County. On or about May 24, 2020, he will leave Georgia and reside temporarily in Nevada
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through the November 2020 elections for a term-limited job opportunity. He considers DeKalb County, where his parents live, his home and will continue to do so while temporarily residing in Nevada. During this time, he cannot vote inperson without flying in from Nevada, so he intends to vote by mail and will be forced to use postage. He does not want to use his own postage stamps to mail in absentee ballots or applications because he believes that no one should have to pay money to exercise their right to vote.
18. Plaintiffs Gordon, Reid, and Kim will hereinafter be referred to as the “Individual Plaintiffs.”
19. Defendant Brad Raffensperger, who is the Secretary of State and the chief elections official of the State, is responsible for enacting elections statutes and routinely issues guidance to the county election officials of all 159 counties on various elections procedures and requirements. County election officials follow the Secretary of State’s guidance.
20. The Defendant DeKalb County Board of Voter Registration & Elections, and the similarly situated 159 county boards of registrars or absentee
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ballot clerks,1 require voters to affix postage on absentee ballots and applications, consistent with the Secretary of State’s guidance.
21. Defendants Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, and Baoky N. Vu are Members of the DeKalb Board of Registration & Elections, reside in DeKalb County, and are being sued in their official capacities.
22. Defendant Erica Hamilton is the Director of Voter Registration and Elections in DeKalb County, and is being sued in her official capacity. Defendant Hamilton is in charge of the day-to-day operations of running elections in DeKalb County, to the extent such power does not conflict with the Secretary of State’s powers.
1 Many counties combine their board of registrars and board of elections, which technically have separate responsibilities, into one entity called the “Board of Registration & Elections” (or some combination of the terms), responsible for both entities’ duties. For the sake of simplicity, Plaintiffs use the statutory phrase “board of registrars” or “county registrars.” This term will also be used to include “absentee ballot clerk.” O.C.G.A. § 21-2-380.1. Also for the sake of simplicity, these terms include the members of such board and the top employee in charge of the day-to-day operations of running elections in that county.
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FACTUAL ALLEGATIONS The COVID Pandemic
23. At stake is the sacred, constitutional right to vote. “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.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
24. As discussed above, there is an ongoing pandemic that has made it unacceptable for most voters to cast a ballot in person this year. Voting in-person is simply not an option. Instead, people can only realistically vote if they do so by mail. But doing so requires the payment of an unconstitutional poll tax.
25. COVID-19 is a highly contagious virus that spreads mainly from person-to-person through close contact with one another and through respiratory droplets when an infected person coughs or sneezes. Medical experts are learning more every day about the ease with which the COVID-19 spreads, including even just through breathing or talking. Studies on the pattern of illness indicate that people infected with the virus may be contagious even if they do not have any symptoms. COVID-19 can result in severe disease, including hospitalization, admission to an intensive care unit, and death. Top scientists in the Trump Administration recently estimated that COVID-19 could kill between 100,000 and
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240,000 Americans and that this number would be much higher if Americans do not follow the strict social distancing guidelines.
26. Although certain individuals may be more vulnerable to the effects of COVID-19, all evidence indicates COVID-19 is a highly virulent pathogen that threatens to infect any member of the public. Between February 1 and March 16, 2020, there were reported cases of COVID-19 in all age ranges in the United States. Georgia, too, has reported cases in all age ranges, with 60% under the age of 60. The World Health Organization has warned that they “are seeing more and more younger individuals who are experiencing severe disease” due to COVID-19. Similarly, the CDC has noted that “clinicians who care for adults should be aware that COVID-19 can result in severe disease among persons of all ages.” As of March 16, 20 percent of those hospitalized due to COVID-19 in the United States were between the ages of 20 and 44.
27. The CDC has issued national guidance telling the public to avoid public gatherings until at least May 15, 2020. Guidance from the Trump Administration, which was recently extended until April 30, 2020, advises against unnecessary travel and gatherings of over 10 people.
28. In Georgia, Governor Kemp declared a public health State of emergency on March 16, 2020, and issued a statewide shelter in place order on
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April 2, 2020. This Court has recently extended its order that no jurors or grand jurors be summoned and all jury trials and grand jury proceedings be continued for an additional 30 days until May 15, 2020.
29. The number of confirmed COVID-19 cases in Georgia is growing exponentially. Over the last week, the number of reported COVID-19 cases has nearly doubled. As of the date of filing, there are at least 9,156 confirmed cases of COVID-19 in Georgia; just six days ago, on April 1, there were only 4,638 reported cases. This number is expected to continue to grow.
Postage Stamp Requirement 30. Georgia allows a voter to cast an absentee ballot through the mail. O.C.G.A. § 21-2-385. Notwithstanding the “absentee” moniker, any registered voter may vote absentee regardless of whether they have an excuse for not being present on Election Day. O.C.G.A. § 21-2-380. 31. To vote by absentee ballot, a voter must first submit an absentee ballot application via mail, fax, e-mail, or in-person. See O.C.G.A. § 21-2-381. 32. If the application is sent by mail, the voter is responsible for affixing postage. There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballot applications.
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33. After the absentee ballot application is received by election officials and approved, voters are mailed the absentee ballot itself. Absentee ballots are mailed on or after 49 days before Election Day. O.C.G.A. § 21-2-384(a). The absentee ballot also comes with two envelopes: one for the absentee ballot itself, and the larger one which requires voters to sign an oath on the outside of that envelope. O.C.G.A. § 21-2-384(b)-(c). The smaller envelope containing the absentee ballot goes into the larger one, and the larger one is what voters mail in to cast an absentee ballot by mail. Id.
34. Voters are required to affix their own postage when mailing in the absentee ballot, according to guidance issued by the Secretary of State.2 There do not appear to be any statutes or regulations that require government officials to charge voters postage on absentee ballots.
35. There is nothing especially mysterious or difficult about providing a postage prepaid envelopes or mailings to voters. Defendants have already done it because they are already required to do so for list maintenance purposes. See, e.g., O.C.G.A. § 21-2-233(b) (requiring officials to send certain voters a “postage prepaid, preaddressed return form” allowing voters to update their address);
2
https://sos.ga.gov/admin/files/Absentee_Voting_A_Guide_for_Registered_Voters_ 2020.pdf
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O.C.G.A. § 21-2-234(c) (“The confirmation notice shall be a postage prepaid, preaddressed return card”). And other states including Kansas, Iowa, and West Virginia, have been able to provide postage prepaid envelopes for mail-in absentee voters. See K.S.A. § 25-433; I.C.A. § 53.8; W. Va. Code § 3-3-5.
Burdens on Marginalized Voters 36. Requiring voters to pay money to vote is unconstitutional in and of itself regardless of whether or not a voter can afford it. 37. But the postage requirement is still a significant problem for voters living on the margins. 38. Many voters, especially lower-income voters, do not have postage stamps because they do not use them, or cannot afford to buy a book of stamps just for elections. 39. Many voters do not have Internet access or credit cards to purchase stamps online, and they do not want to needlessly expose themselves to the COVID-19 virus to buy stamps at a post office. 40. Many cannot even travel to a post office or other public place because they do not have cars, and there are no ride-sharing programs or public transportation in large parts of rural Georgia.
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41. Making matters worse, voters do not even know how much postage is needed. 55 cents may not be enough because ballots can sometimes be long and therefore heavy, and hardly anyone has stamp scales. Voters must therefore use extra and potentially unnecessary postage just to make sure their vote is counted.
42. Furthermore, many voters like the elderly, those with physical disabilities, and out-of-town voters can only vote by mail, so it is extraordinarily difficult if not impossible for them to vote in person if they want to avoid paying for a postage stamp. Even for those who are able to vote in-person, taking time off work or childcare to travel to a polling place can still be challenging.
Plaintiff Class Action Allegations 43. Certifying a plaintiff class action is unnecessary because Defendants’ unconstitutional practices can be enjoined without it. 44. Nonetheless, to the extent the Court deems it necessary to join all voters as parties to this suit, Plaintiffs seek certification of a class of all registered voters, with the Individual Plaintiffs as class representatives, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) or (b)(2). 45. Joinder is impracticable because there are millions of registered voters. The Individual Plaintiffs are adequate and typical representatives because they are registered voters like everyone else in the class, and that is the only salient
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fact that is necessary to resolve Plaintiffs’ claim. All registered voters are subject to the same poll tax requirement that they spend money on postage to vote absentee by mail and can only avoid if they vote in person, which is at least materially burdensome for all voters. The class encompasses all registered voters because poll taxes are unconstitutional regardless of their amount, whether or not a voter can afford it, or whether a voter ends up paying for it. The class includes all voters regardless of how easy or difficult it is for them to vote in-person, because voting in-person is a material burden on any voter, and poll taxes remains an unconstitutional abridgment of the right to vote if alternative methods of voting are materially burdensome.
46. Thus, the common question of law is whether requiring registered voters to buy postage to vote by mail is unconstitutional. Because the putative plaintiff class shares the common fact that all are registered voters, answering that single legal question resolves this case in one stroke.
47. The plaintiff class should be certified (if necessary) because “prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Filing millions of separate,
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identical lawsuits could result in incompatible standards of conduct throughout of Georgia, where a person’s voting rights differs depending on where they live and who they are. Such an outcome is unacceptable in our democracy.
48. The plaintiff class may be certified as a Rule 23(b)(1) class for the independent reason that separate actions create a risk that “adjudications with respect to individual class members [would], as a practical matter, [] be dispositive of the interests of other [class] members.” Fed. R. Civ. P. 23(b)(1)(B). Even within the same county, adjudication of one DeKalb voter’s claim would practically be dispositive of other DeKalb voters’, since the DeKalb Defendants will be unlikely to tolerate treating one DeKalb voter differently from another in terms of postage. Indeed, providing prepaid postage envelopes for one group of voters but not for others in the same county is likely to be more bureaucratically cumbersome than providing all DeKalb voters prepaid postage envelopes.
49. The plaintiff class may also be certified (if necessary) because Defendants have imposed the same postage requirement for mail-in voting on all registered voters, so “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). It would be improper to exempt some voters but not others from paying the poll tax since poll
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taxes are unconstitutional in all circumstances. Plaintiffs have not found any case striking down a poll tax only with respect to certain voters.
Plaintiff Subclass Action Allegations 50. To the extent necessary, Plaintiffs also seek certification of a subclass of voters, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) or (b)(2), with the Individual Plaintiffs as the subclass representatives, of those for whom voting in-person is at least materially burdensome or requires unreasonable effort. 51. The definition of this subclass currently includes all registered Georgia voters because of the pandemic, which generally makes it unreasonable for anyone, especially those that satisfy COVID risk factors like Plaintiff Reid,3 to vote inperson right now. Plaintiffs reserve the right to seek definitional changes to any proposed or certified subclass based on changing circumstances. 52. The Rule 23 requirements are satisfied by this subclass for the same reasons set forth in the Plaintiff Class Action Allegations supra.
Defendant Class Action Allegations 53. Certifying a defendant class action is unnecessary because an order enjoining the Secretary of State will have the effect of enjoining all 159 county
3 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peopleat-higher-risk.html.
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boards of registration.4 The Secretary of State’s Office routinely issues guidance to county registrars statewide, who follow the Office’s guidelines.
54. Nonetheless, to the extent the Court deems it necessary to join all the county boards of registrars as parties to this suit, Plaintiffs seek certification of a defendant class of all 159 Georgia county boards of registrars. Such a class would be represented by the DeKalb County Board of Voter Registration & Elections and the DeKalb individuals identified above, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) or (b)(3).
55. Joinder would be impracticable because there are 159 county boards of registrars. All county boards of registrars will share a common set of defenses available in this challenge to the constitutionality of requiring voters to pay postage when voting by mail. Because the county boards of registrars are simply following the Secretary of State’s guidance, and because poll taxes are never justified on the basis of cost savings or administrative burdens, their defenses will not vary based on individual facts. For the same reasons, the claims of proposed class representative DeKalb County Board of Voter Registration & Elections and the individual DeKalb defendants will be typical of those of the other county boards of
4 As noted above, the term “board of registration” includes the members of the board and the top employee in charge of running day-to-day operations in that particular county.
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registrars. The DeKalb County Board of Voter Registration & Elections and the individual DeKalb defendants will also be an adequate representative of the class. There is no conflict between DeKalb County’s board of registrars, their members, or their top elections director and other counties’ boards, board members, or top elections directors, all of which operate independently. As the county board of registrars in charge of one of the largest counties in Georgia, they will also have greater resources and experience necessary to litigate this matter.
56. The defendant class should be certified because “prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Filing 159 separate, identical lawsuits for each county could result in incompatible standards of conduct throughout of Georgia, where a person’s voting rights differs depending on where they live. Such an outcome is unacceptable in our democracy.
57. The defendant class may be certified as a Rule 23(b)(1) class for the independent reason that separate actions create a risk that “adjudications with respect to individual class members [would], as a practical matter, [] be dispositive of the interests of other [class] members.” Fed. R. Civ. P. 23(b)(1)(B). County
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elections officials do not lightly ignore court rulings applicable to other counties, including declaratory and injunctive relief granted with respect to other counties, even if they are not technically parties to the case. To the extent the Secretary would play a role in effectuating such relief with respect to DeKalb, the Secretary would likely issue guidance to all other counties to prevent confusing elections officials.
58. The class also qualifies as a Rule 23(b)(3) class, because “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The question of liability is central to this case, if not the entirety of the case itself.
59. Other counties are unlikely to insist on individually controlling the defense of separate actions, since county elections officials often want clarity more than anything, and they may perceive separate lawsuits as adding to confusion. Id. at 23(b)(3)(A).
60. Plaintiffs are aware of only one lawsuit challenging the postage requirement that has already begun, id. at 23(b)(3)(B), named New Georgia Project et al. v. Raffensperger, No. 1:20-cv-1986 (N.D. Ga.), which was filed
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recently on May 8, 2020. In addition to challenging the postage requirement, the lawsuit also challenges Georgia’s absentee applicant notification process, election day receipt deadline, and voter assistance prohibitions. That lawsuit also sues the DeKalb board of registration, but it also sues those of Fulton, Cobb, Gwinnett, Chatham, Fayette, Clayton, Columbus-Muscogee, Douglas, Albany-Dougherty, Rockdale, Newton, Richmond, Macon-Bibb, Athens-Clarke, and Forsyth. The lawsuit does not bring claims on behalf of a proposed plaintiff class or a proposed defendant class.
61. Concentrating the litigation of voting rights claims in the Northern District of Georgia is desirable because DeKalb has greater resources to manage any discovery issues and the Secretary of State is based in this district. Id. at 23(b)(3)(C). Lastly, managing a class action is unlikely to be difficult, because discovery of how the other 158 counties operate is unlikely to be relevant, at least based on what Plaintiffs know so far. Id. at 23(b)(3)(D). While some counties benefit financially more than others from a postage requirement, Plaintiffs’ claims currently do not depend on how much money is saved from a postage requirement.
CAUSES OF ACTION COUNT ONE
Requiring voters to pay for their own postage is an unconstitutional poll tax in violation of the Twenty-Fourth and Fourteenth Amendments 22

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62. Plaintiffs reallege and incorporate by reference the allegations contained in the preceding paragraphs.
63. The Twenty-Fourth Amendment provides: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
64. The Equal Protection Clause of the Fourteenth Amendment provides: “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
65. Both amendments prohibit the government from imposing a poll tax. See Harman v. Forssenius, 380 U.S. 528 (1965); Harper v. Va. State Bd. of Elect., 383 U.S. 663 (1966).
66. Requiring voters to spend money on their own postage to submit an absentee ballot by mail imposes an unconstitutional poll tax in violation of these Amendments. This poll tax constitutes an “abridgment” of the right to vote because while voters can avoid the poll tax by voting in-person, voting in-person is still at least “material requirement” for all voters. Harman, 380 U.S. at 541.
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67. For the same reasons, requiring voters to spend money on postage to mail in absentee ballot applications is also an unconstitutional poll tax.
COUNT TWO Requiring voters to pay for their own postage imposes an unjustifiable burden on
the right to vote in violation of the First and Fourteenth Amendments 68. Plaintiffs reallege and incorporate by reference the allegations contained in the preceding paragraphs. 69. The First and Fourteenth Amendments protect the fundamental right to vote. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). Pursuant to the Anderson-Burdick line of cases, the government cannot infringe on the right to vote without adequate justification, and the greater the character and magnitude of the infringement, the stronger the justification must be. Even a slight burden must be adequately justified. 70. Here, requiring voters to spend money in order to vote by mail is at least a “slight” burden on all voters (and a severe one for some voters). Even if the burden is “slight,” the government has no legitimate interest in forcing voters to pay for postage because wealth has nothing to do with a voter’s qualifications. 71. To the extent that any administrative burden on the State ever justifies making voters to pay to vote, the burden is minimal because the State already
24

Case 1:20-cv-01489-AT Document 88 Filed 05/11/20 Page 25 of 27

knows how to provide prepaid postage returnable envelopes as it is required in other contexts. See O.C.G.A. § 21-2-233(b); O.C.G.A. § 21-2-234(c).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs demand the following: a) That this Court issue a judgment declaring that the requirement that voters affix their own postage to mail-in absentee ballots and mail-in absentee ballot applications is unconstitutional; b) That this Court issue a preliminary injunction and permanent injunction enjoining Defendants from telling and requiring voters to affix their own postage for absentee ballots and absentee ballot applications and requiring Defendants to provide prepaid postage returnable envelopes for absentee ballots; c) That Plaintiffs be awarded attorneys’ fees under 42 U.S.C. § 1988; d) That all costs of this action be taxed against Defendants; and e) That the Court award any additional or alternative relief as may be deemed appropriate under the circumstances.

this May 11, 2020

Respectfully submitted,
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC.
25

Case 1:20-cv-01489-AT Document 88 Filed 05/11/20 Page 26 of 27
P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin* Dale E. Ho* AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs *Pro hac vice application forthcoming
26

Case 1:20-cv-01489-AT Document 88 Filed 05/11/20 Page 27 of 27
CERTIFICATE OF SERVICE I hereby certify that on May 11, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. The Complaint will be served on the above-named Defendants. Date: May 11, 2020 Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
27

 
 Case 1:20-cv-01489-AT Document 90 Filed 05/12/20 Page 1 of 5

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

BLACK VOTERS MATTER FUND, MEGAN GORDON, PENELOPE REID, and ANDY KIM, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS; ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, SAMUEL E. TILLMAN, and BAOKY N. VU, in their official capacities as Members of the DeKalb County Board of Registration & Elections; and ERICA HAMILTON, in her official capacity as Director of Voter Registration and Elections, and all others similarly situated,

CIVIL ACTION FILE NO. 1:20-cv-01489-AT

Defendants.

SECRETARY OF STATE BRAD RAFFENSPERGER’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT
Defendant Secretary of State Brad Raffensperger (the “Secretary”), pursuant to Federal Rule of Civil Procedure 12, respectfully moves this Court

Case 1:20-cv-01489-AT Document 90 Filed 05/12/20 Page 2 of 5
for an order dismissing the claims asserted against the Secretary as stated in Plaintiffs’ Amended Complaint [Doc. 88].
The Secretary files this Motion to Dismiss based on a conference with the Court and opposing counsel. Plaintiffs’ counsel has represented that the Amended Complaint advances no new legal theories and raises no new substantive arguments. The Secretary further notes that the new individual plaintiffs are similarly situated to the existing individual Plaintiff, Ms. Gordon. Each has postage stamps; they simply choose not to use them.
In support of this Motion, the Secretary incorporates his prior Brief in Support of his Motion to Dismiss (Doc. 67-1), and his Reply Brief in Support of his Motion to Dismiss (Doc. 87). The Secretary expressly reserves the right to respond to Plaintiffs’ potential response to the Motion to Dismiss and shall file any response in a time that is consistent with the Court’s instructions at the May 12, 2020 conference.
WHEREFORE, the Secretary respectfully requests that this Court enter an order dismissing Plaintiffs’ Complaint with prejudice. This 12th day of May, 2020.
/s/ Josh Belinfante Vincent R. Russo Georgia Bar No. 242628 vrusso@robbinsfirm.com Josh Belinfante

Case 1:20-cv-01489-AT Document 90 Filed 05/12/20 Page 3 of 5
Georgia Bar No. 047399 jbelinfante@robbinsfirm.com Alexander Denton Georgia Bar No. 660632 adenton@robbinsfirm.com Brian E. Lake Georgia Bar No. 575966 blake@robbinsfirm.com Melanie Johnson Georgia Bar No. 466756 mjohnson@robbinsfirm.com Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, Georgia 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250
Christopher M. Carr Attorney General Ga. Bar No. 112505 Bryan K. Webb Deputy Attorney General Ga. Bar No. 743580 Russell Willard Sr. Asst. Attorney General Ga. Bar No. 760280 Charlene McGowan Asst. Attorney General Ga. Bar No. 697316
Georgia Department of Law 40 Capitol Square SW Atlanta, GA 30334 cmcgowan@law.ga.gov Tel: 404-656-3389 Fax: 404-651-9325 Counsel for Secretary of State Brad Raffensperger

Case 1:20-cv-01489-AT Document 90 Filed 05/12/20 Page 4 of 5
L.R. 7.1(D) CERTIFICATION I certify that this Brief has been prepared with one of the font and point selections approved by the Court in Local Rule 5.1(C). Specifically, this Brief has been prepared using 13-pt Century Schoolbook font.
/s/ Josh Belinfante Josh Belinfante Georgia Bar No. 047399

Case 1:20-cv-01489-AT Document 90 Filed 05/12/20 Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the within and foregoing SECRETARY OF STATE BRAD RAFFENSPERGER’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system, which automatically sent counsel of record e-mail notification of such filing.
This 12th day of May, 2020.
/s/ Josh Belinfante Josh Belinfante Georgia Bar No. 047399

 
 Case 1:20-cv-01489-AT Document 91 Filed 05/12/20 Page 1 of 4

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

BLACK VOTERS MATTER FUND, MEGAN GORDON, PENELOPE

) ) )

REID, and ANDY KIM, on behalf of themselves and all others similarly

) ) )

situated,

) Civil Action No.: 20-cv-1489-AT

)

)

Plaintiffs,

) Class Action

)

vs.

) )

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS;

) ) )

ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH,

) ) )

SAMUEL E. TILLMAN, and BAOKY )

N. VU, in their official capacities as

) )

Members of the DeKalb County Board )

of Registration & Elections; HAMILTON, in her official

acnapdaEcRityICaAs )))

Director of Voter Registration and )

Elections, and all others similarly

) )

situated,

)

)

Defendants.

) )

)

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT RAFFENSPERGER’S MOTION TO DISMISS THE
AMENDED COMPLAINT

1

Case 1:20-cv-01489-AT Document 91 Filed 05/12/20 Page 2 of 4
The Secretary has filed a motion to dismiss the amended complaint, incorporating his prior briefs in connection with the Secretary’s Motion to Dismiss the Complaint. Doc. 90. Plaintiffs oppose the Secretary’s motion also by incorporating their prior Brief in Opposition to the Secretary’s Motion to Dismiss. Doc. 84. Because Plaintiffs agree with the Secretary that “the new individual plaintiffs are similarly situated to the existing individual Plaintiff, Ms. Gordon,” Doc. 90 at 2, the prior arguments about Ms. Gordon’s standing also apply to the new individual plaintiffs. Doc. 84 at 28-29.
Thus, the Secretary’s Motion to Dismiss the Amended Complaint should be denied. If the Secretary chooses to file a reply, Plaintiffs respectfully request that any reply be filed within 24 hours.
Respectfully submitted this 12th day of May, 2020. Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor
2

Case 1:20-cv-01489-AT Document 91 Filed 05/12/20 Page 3 of 4
New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
3

Case 1:20-cv-01489-AT Document 91 Filed 05/12/20 Page 4 of 4
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
4

 
 Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 1 of 6

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

PLAINTIFFS BLACK VOTERS MATTER FUND AND MEGAN GORDON’S MOTION FOR A TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION AND FOR EXPEDITED BRIEFING
Plaintiffs Black Voters Matter Fund and Megan Gordon (hereinafter
“Original Plaintiffs”) move for a temporary restraining order and/or preliminary
injunction and for expedited briefing to be completed no later than noon this
Thursday, May 14, 2020. The Original Plaintiffs’ instant motion incorporates by
reference all prior filings and evidence submitted in connection with the Original
Plaintiffs’ prior motion for preliminary injunction. See Docs. 2 (and attached
Exhibits), 8, 12-14, 16-17, 24-39, 44-46, 48, 52-53, 57 (and attached Exhibits), 58-

1

Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 2 of 6
60, 62-66, 74 (and attached Exhibit), 75, 77 (and attached Exhibit). Original Plaintiffs also incorporate by reference their opposition brief to the Secretary’s motion to dismiss the complaint to the extent it is relevant. See Doc. 84.1 The motion does not rest on any filing or any evidence submissions not listed above.
This motion is not materially different from Original Plaintiffs’ prior motion for a preliminary injunction, which has been fully briefed. This motion for a preliminary injunction is filed solely on behalf of the Original Plaintiffs, Plaintiffs Black Voters Matter Fund and Megan Gordon. It is not being filed on behalf of new plaintiffs Penelope Reid or Andy Kim. It is not being filed on behalf of any plaintiff class or subclass of voters, putative or otherwise. The motion does not ask for class certification as a prerequisite to a preliminary injunction.
Original Plaintiffs further confirm that their motion for a preliminary injunction only seeks relief with respect to the Secretary. See Doc. 2 (requesting injunction solely with respect to the Secretary “because county election officials follow the Secretary of State’s guidance.”). Original Plaintiffs’ motion does not seek relief from Defendant DeKalb County Board of Registration & Elections. The
1 Original Plaintiffs do not incorporate by reference Plaintiffs’ response to the Secretary’s Motion to Dismiss the Amended Complaint, Doc. 91, since that only addresses the new plaintiffs.
2

Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 3 of 6
motion also does not seek relief against any defendant class of counties, putative or otherwise, nor any member of that putative class.2
Lastly, Original Plaintiffs request that this Court require expedited briefing on this motion; specifically, that this motion be fully briefed by noon on Thursday, May 14, 2020, so as to permit for timely resolution of Original Plaintiffs’ request for relief. Original Plaintiffs respectfully submit that this motion causes little prejudice, if any, to Defendants. The motion is not being brought on behalf of new plaintiffs nor against new defendants, is not relying on new evidence, is not dependent on any anticipated motion for class certification, and re-raises the same arguments that have already been fully briefed. The motion is also not based on any of the new allegations in the Amended Complaint.3 Original Plaintiffs waive their right to reply if Defendants’ responses reincorporate arguments already made. If not, Original Plaintiffs ask only for 3 hours to submit a reply.
The main difference between this motion and the prior one is that Original Plaintiffs’ instant motion only seeks relief for August and November, since relief
2 To be sure, Original Plaintiffs “reserve the right to seek any injunction specific to Defendant DeKalb County Board of Registration & Elections or other county officials who do not follow the Secretary’s guidance on this issue.” Doc. 2. But those conditions have not been met, and they could not be met unless this Court granted injunctive relief as to the Secretary first. 3 Attached to this motion is a redline of the Amended Complaint.
3

Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 4 of 6
for the June elections has been denied. Doc. 83. In addition, this motion formally
asks for a temporary restraining order only because of the imminently impending
Friday deadline to enter relief for August elections. “The standard for obtaining a
temporary restraining order is identical to that of obtaining a preliminary
injunction.” Martin v. Kemp, 341 F. Supp. 3d 1326, 1332 (N.D. Ga. 2018). Thus,
Original Plaintiffs’ incorporated arguments remain the same.
Counsel for Plaintiffs affirm that they have spoken by telephone with
Counsel for Defendants about this motion and their request for expedited briefing.
In addition, Counsel for Plaintiffs regret the significant inconvenience that this has
caused.
Respectfully submitted this 12th day of May, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836
4

Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 5 of 6
Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
5

Case 1:20-cv-01489-AT Document 93 Filed 05/12/20 Page 6 of 6
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
6

 
 Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 1 of 7

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

BLACK VOTERS MATTER FUND, et al.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, et al.,

Defendants. _______________________________
DEFENDANTS ANTHONY LEWIS, SUSAN MOTTER, DELE LOMAN SMITH, SAMUEL E. TILLMAN, BAOKY N. VU, ERICA HAMILTON
AND THE DEKALB COUNTY BOARD OF REGISTRATION AND ELECTIONS’ RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

COME NOW Defendants Anthony Lewis, Susan Motter, Dele Lowman

Smith, Samuel E. Tillman, Baoky N. Vu, in their official capacities as members of

the DeKalb County Board of Registration and Elections, Erica Hamilton, in her

official capacity as Director of the DeKalb County Department of Voter Registration

and Elections (collectively, the “Individual DeKalb Defendants”), and the DeKalb

County Board of Registration and Elections (the “DeKalb BRE” and together with

1

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 2 of 7
the Individual DeKalb Defendants, the “DeKalb Defendants”), specially appearing1 to submit this response to Plaintiffs Black Voters Matter Fund and Megan Gordon’s Motion for Temporary Restraining Order and/or Preliminary Injunction and for Expedited Briefing (“Plaintiffs’ Motion”), showing this Court as follows:
On April 8, 2020, plaintiffs Black Voters Matter Fund and Megan Gordon (together, “Plaintiffs”) filed this lawsuit against DeKalb BRE and Brad Raffensperger, in his official capacity as the Secretary of State of Georgia (the “Secretary of State” and together with DeKalb BRE, “Defendants”), alleging that requiring electors to pay postage on absentee ballot applications (“absentee applications”) and absentee ballots constitutes an unconstitutional poll tax and an undue burden on the fundamental right to vote, particularly in light of the current health crisis caused by COVID-19 and the resulting increase in absentee voting. See [DOC 1]. To address these alleged infringements, Plaintiffs seek various equitable relief, including requiring Defendants to provide prepaid postage for absentee applications and ballots going forward. Id.
1 On May 11, 2020, the complaint was amended to add two additional plaintiffs and the Individual DeKalb Defendants (“Amended Complaint”). See [DOC 88]. Due to Plaintiffs’ request for an expedited briefing schedule on Plaintiffs’ Motion, this response is being filed prior to the Individual Dekalb Defendants’ response to the Amended Complaint. As a result, the Individual DeKalb Defendants specially appear and reserve their right to file any motion pursuant to Fed. R. Civ. P. R. 12.
2

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 3 of 7
Simultaneous with their Complaint, Plaintiffs filed a Motion for Preliminary Injunction [DOC 2], seeking a preliminary injunction requiring the Secretary of State to: (1) issue guidance to all counties that they must provide postage prepaid envelopes with absentee ballots, and (2) revise the absentee application so that it can be mailed with prepaid postage and require county election officials to use the revised application.2 See [DOC 2]. The Court denied Plaintiffs’ Motion for Preliminary Injunction with respect to the election scheduled for June 9, 2020, but reserved ruling with respect to the relief requested for any August runoff and the November general election. See Order dated April 30, 2020 [DOC 83].
Plaintiffs then filed the present Motion3 on May 12, 2020. See [DOC 93]. In their Motion, Plaintiffs restate and incorporate by reference the arguments asserted in their Motion for Preliminary Injunction. Plaintiffs acknowledge that in their present Motion that they do not currently seek injunctive relief against the DeKalb BRE or the Individual DeKalb Defendants. See [DOC 93], pp. 2-3 (expressly acknowledging that Plaintiffs currently do not seek injunctive relief specific to the
2 In a teleconference with the Court on April 14, 2020, Plaintiffs’ counsel clarified that with respect to the absentee application, Plaintiffs’ request was that the Secretary of State revise the absentee application available for download on the Secretary of State’s website to include prepaid postage on the application return card, and require the counties to provide preaddressed, postage prepaid envelopes with any absentee applications provided directly by the counties. 3 Although the Amended Complaint added two additional plaintiffs, those plaintiffs are not movants in the pending Motion. See [DOC 93], p. 2.
3

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 4 of 7
DeKalb BRE because the Secretary of State is the controlling authority, but reserve their right to seek injunctive relief against the DeKalb BRE or county board of registrations and elections if they fail to follow the Secretary of State’s guidance, and stating that “[t]he motion is not being brought…against new defendants”).
The DeKalb Defendants hereby restate and incorporate by reference as if fully stated herein, on behalf of all of the DeKalb Defendants, the arguments set forth in DeKalb BRE’s Response to Plaintiffs’ Motion for Preliminary Injunction [DOC 50] and the Dekalb BRE’s Motion to Dismiss and Memorandum of Law in Support Thereof [DOC 80]. If Plaintiffs’ claims for temporary restraining order and/or preliminary injunctive relief change such that Plaintiffs seek the entry of a temporary restraining order or preliminary injunction directly against the DeKalb Defendants, the DeKalb Defendants request a fair opportunity to respond to any such amended motion before the Court issues a ruling thereon.
The DeKalb Defendants further note that in their Amended Complaint, Plaintiffs seek certification of a defendant class of all 159 County boards of registrars or absentee ballot clerks, with the DeKalb Defendants as Defendant class representatives. [DOC 88], ¶¶ 53-61. This Court has not considered class certification as of the date of this filing. Accordingly, this response is filed only on behalf of the DeKalb Defendants.
Respectfully submitted this 14th day of May, 2020. 4

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 5 of 7
LAURA K. JOHNSON DEPUTY COUNTY ATTORNEY Georgia Bar No. 392090 /s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663 SHELLEY D. MOMO ASSISTANT COUNTY ATTORNEY Georgia Bar No. 239608 Attorneys for the DeKalb Defendants
PLEASE ADDRESS ALL COMMUNICATIONS TO: Irene B. Vander Els Shelley D. Momo DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011
5

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 6 of 7

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

BLACK VOTERS MATTER FUND and MEGAN GORDON, on behalf of herself and all others similarly situated,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia; DEKALB COUNTY BOARD OF REGISTRATION AND ELETIONS and all others similarly situated,

Defendants. _______________________________

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the

Clerk of the Court using the CM/ECF system (which document was prepared in

Times New Roman font, 14-point type, one of the font and point selections approved

by the Court in N.D. Ga. L.R. 5.1(C)), which will automatically send e-mail

notification of such filing to counsel of record.

This 14th day of May, 2020.

/s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663

6

Case 1:20-cv-01489-AT Document 96 Filed 05/14/20 Page 7 of 7
PERSONS SERVED:
Dale E. Ho Sophia Lin Lakin American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 P.O. Box 77208 Atlanta, GA 30309
Charlene S. McGowan Kaufman & Forman, P.C. Building 800 8215 Roswell Rd. Atlanta, GA 30350
Alexander Fraser Denton Brian Edward Lake Joshua Barrett Belinfante Melanie Leigh Johnson Vincent Robert Russo, Jr. Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318
7

 
 Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 1 of 17

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

PLAINTIFFS BVM AND GORDON’S REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION AND FOR EXPEDITED BRIEFING
The Secretary’s opposition brief essentially boils down to two overarching
propositions: (1) that Jacobson v. Fla. Sec’y of State, --- F.3d ---, 2020 WL
2049076 (11th Cir. 2020) means that Plaintiffs Black Voters Matter Fund and
Megan Gordon (hereinafter “Original Plaintiffs”) lack standing (with respect to
injury and traceability), Doc. 97 at 4-11; and (2) that the remaining preliminary
injunction factors (“equities”) weigh in the Secretary’s favor, id. at 5, 12-15.

1

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 2 of 17
Although the Secretary’s brief resurrects some old arguments, Plaintiffs will strive not to repeat prior arguments and will only address new arguments. I. THE COVID-19 PANDEMIC IS LIKELY TO PERSIST THIS YEAR
Because the Secretary’s arguments about COVID-19 underlie both his arguments, Plaintiffs address it first.
Defendants argue that Plaintiffs “offered no evidence that the virus will remain prevalent six months from now,” and that plaintiffs have not “provide[d] any epidemiological evidence.” Doc. 97 at 7-8. This is untrue.
Plaintiffs previously submitted the Declaration of Dr. Arthur L. Reingold in support of their reply brief. Doc. 57-1 (hereinafter “Reingold Decl.”). Dr. Reingold is a medical doctor, a public health expert in the area of infectious diseases and epidemiology, and the Division Head of Epidemiology and Biostatistics at the University of California, Berkeley, School of Public Health. Reingold Decl. ¶¶ 1, 3. He spent eight years at the Centers for Disease Control and Prevention (“CDC”), has directed or co-directed the CDC-funded California Emerging Infections Program for more than 25 years, and served as President of both the Society for Epidemiologic Research and the American Epidemiological Society. Id.
As Dr. Reingold explains, social distancing measures including self isolation and maintaining at least six feet of space between people (as well as consistent
2

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 3 of 17
hygiene practices) are the only known effective measures for protecting against transmission of COVID-19. Id. ¶ 10. Dr. Reingold further explains that “transmission of the virus will continue through the population until the development and widespread use of a vaccine and/or her immunity.” Id. ¶ 12. No vaccine currently exists and will likely not for at least another year, at least for the public at large. Reingold Decl. ¶¶ 10-13. In addition, effective herd immunity requires “[a]pproximately 80-95% of a population [to] be immune,” a scenario that requires either a vaccine or immunity from previous infection, and we do not yet know whether previous infection results in immunity and if so for how long. Id. ¶¶ 14-15.
“As a result, even if transmission slows due to behavioral interventions such as social distancing and stay-at-home orders, we can expect resurgences of COVID-19, including significant community transmission, throughout 2020 and into 2021 across the United States, until the development and widespread use of a vaccine. Such resurgence is particularly likely if/when these behavioral modifications are lifted when community transmission is still continuing,” id. ¶ 15, as is the case in Georgia. “Polling locations are a prime area for increased transmission” of the COVID-19 virus “and are highly likely to cause increased infection.” Id. ¶ 17. There is, accordingly, ample basis to conclude that COVID-19
3

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 4 of 17
will continue to circulate in our communities throughout the rest of this year at least, and continue to make voting by mail the only meaningful way for many voters to participate in the August and November elections without severe risk to their health. See id. ¶ 17 (“Widespread vote-by-mail or absentee balloting would be a much safer option for public health, in light of COVID-19[.]”).
Plaintiffs’ arguments are not wholly dependent upon this declaration, but Plaintiffs dispute the Secretary’s assertion that they provided “no evidence.” II. JACOBSON DOES NOT WARRANT DISMISSAL OF THIS ACTION
AGAINST THE SECRETARY The Secretary argues that Jacobson v. Fla. Sec’y of State, --- F.3d ---, 2020 WL 2049076 (11th Cir. 2020) means that Plaintiffs Black Voters Matter Fund and Megan Gordon (hereinafter “Original Plaintiffs”) lack standing. This brief will not repeat prior arguments about standing, Doc. 84 at 24-29, and will solely be limited to explaining why Jacobson is distinguishable. As stated below: (A) Plaintiff Black Voters Matter Fund (“BVM”) has standing under Jacobson; (B) Plaintiff Megan Gordon has standing under Jacobson; and (C) the injury is traceable to the Secretary under Jacobson. Indeed, Jacobson helps illustrate why Plaintiffs have standing.
4

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 5 of 17
It is worth emphasizing Jacobson’s caution that every element of standing “‘must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.’” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). In Jacobson, the case had reached a bench trial and the evidence did not demonstrate standing. Id. Here, we only have allegations and preliminary evidence so far. And it based on those that Plaintiffs have established standing at this stage of litigation.
The Secretary argues with respect to both Original Plaintiffs that they allegedly lack standing because there is no guarantee that the COVID-19 pandemic may be over in a matter of months. This is addressed supra Part I. In addition, these arguments appear to repackage the arguments about ripeness that the Secretary appears to have abandoned. Doc. 84 at 29-34; Doc. 87. The Secretary also argues that there is no guarantee of an August runoff, but the equities warrant relief tomorrow given the Secretary’s alleged deadline, as explained infra Part III.
A. Plaintiff Black Voters Matter Fund Has Standing Under Jacobson BVM has presented facts demonstrating injury that the plaintiffs in Jacobson failed to do. In Jacobson, the court ruled that the organizational plaintiff lacked organizational standing because they did not “explain[] what activities the [organizations] would divert resources away from in order to spend additional
5

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 6 of 17
resources on combatting [the challenged policy].” Jacobson, 2020 WL 2049076, at *9. BVM has. As explained in prior briefs, Plaintiff Black Voters Matter Fund has diverted, and anticipates that it will divert, funds away from educating voters about all other aspects of voting by mail, towards helping voters overcome the postage requirement. See Doc. 84 at 26-28.
The Secretary also sporadically argues that BVM has not established injury arising from the August and November elections right now. But BVM has provided sworn statements that logistically, all preparations must start now even for November, and that they are struggling to remain in a “holding pattern” while waiting to see how this Court rules. Doc. 77-1 at ¶¶ 27-30.
B. Plaintiff Gordon Has Standing under Jacobson Plaintiff Gordon also has standing under the principles of Jacobson, in that she has satisfied the injury requirements that the plaintiff voters in Jacobson failed to do. First, Jacobson ruled that the individual voter plaintiffs lacked standing because there was “no evidence about any injuries those two individuals suffered in the past or may suffer in the future.” Jacobson, 2020 WL 2049076 at *5. It is unclear whether the Secretary’s current attack on standing is facial or factual. Under either posture, Plaintiffs have established standing so far. For the reasons set
6

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 7 of 17
forth in Plaintiffs’ prior brief, Doc. 84 at 24-29, Plaintiffs’ allegations, unlike in Jacobson, do explain the “injuries that [Original Plaintiffs] suffered in the past or may suffer in the future.” Original Plaintiffs’ sworn statements also establish this injury, namely, the burdens of obtaining postage for voters during the COVID-19 pandemic. See Docs. 2-2; 2-5; 75 at 32-65; 77-1.
For standing purposes, the Eleventh Circuit has suggested that voting burdens such as the burdens asserted here establish standing even where there is no outright vote denial. See Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th Cir. 2019) (injury need only be an “identifiable trifle,” such as “a fraction of a vote” “and a $1.50 poll tax” (citation omitted)). And of course, outright vote denial is not required for either the poll tax or Anderson-Burdick claims.1 Any suggestion by the Secretary that there is no standing because getting postage is easy is a question for the merits (which this brief need not rehash), not standing. See Warth v. Seldin, 422 U.S. 490, 500 (1975) (standing “in no way depends on the merits” of the claim).
1 Plaintiffs will not repeat arguments in response to the Secretary’s repeated suggestion—made again here—that voting impossibility must be proven, including for Anderson-Burdick claims. See, e.g., Frank v. Walker, 819 F.3d 384, 386-87 (7th Cir. 2016) (government violates Anderson-Burdick by imposing unreasonable burdens on voters even when the governmental interests are as weighty as preventing voter fraud).
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Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 8 of 17
Second, Jacobson found a lack of standing for the individual voters because the voters failed to “offer any evidence at trial showing disadvantage to themselves as individuals.” Jacobson, 2020 WL 2049076, at *5 (emphasis added). Jacobson was a case challenging Florida’s ballot rule that the candidate of the political party who last won the election gets to be listed first. But the voter’s “injury” was that the political party she preferred would have their votes diluted, which was “insufficient to prove that her individual vote will be diluted.” Id. at *7 (emphasis added); see also id. (no voter standing where lawsuit “presents a dispute ‘about group political interests, not individual legal rights’”) (citation omitted).
Here, Ms. Gordon has alleged a specific “individual legal right.” Id. Under the poll tax theory, Ms. Gordon asserts her right not to have to choose between using a postage stamp, which she does not want to pay for, and voting in-person during the COVID-19 pandemic. Under Anderson-Burdick, Ms. Gordon asserts her right not to have to overcome the burdens of voting by mail during this pandemic when the state’s interests in raising money are illegitimate. Unlike in Jacobson, the merits of this case have nothing to do with electoral outcomes or the interests of one political party over another.
8

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 9 of 17
C. The Postage Requirement is Traceable to the Secretary Based on the Evidence So Far
Jacobson further ruled that even if the plaintiffs had a concrete injury, they still lacked standing because “any injury would be neither traceable to the Secretary not redressable by relief against her.” Jacobson, 2020 WL 2049076 at *5. Both the pleadings and the evidence so far establish that the postage requirement is traceable to the Secretary.
Unlike in Jacobson, the statutes here do not clearly place responsibility for any postage requirement onto the counties—all parties agree the statutes are silent. See Jacobson, 2020 WL 2049076 at *13 (Secretary wrong party where statute clearly placed responsibility for the allegedly unconstitutional act on the counties); but see Martin v. Kemp, 341 F. Supp. 3d 1326, 1329-32, 1341 (N.D. Ga. 2018) (entering preliminary injunction solely against the Secretary even where the statutes explicitly made counties responsible for the signature matching procedure being challenged as unconstitutional).
Thus, at least in this case, traceability is a factual matter, and the allegations of the Amended Complaint (Doc. 88)2 satisfy this bar. The pleading alleges that
2 The Amended Complaint is now the operative complaint but as noted previously, Plaintiffs do not rely on any of the new allegations of the Amended Complaint. The allegations relied upon here are identical to those in the original Complaint.
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Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 10 of 17
the Secretary of State’s Office explicitly requires voters to affix postage on envelopes, Doc. 88 at ¶ 34, and that—as a de facto matter—the counties follow the Secretary’s guidance, id. at ¶¶ 19-20, even if the counties are the ones generally responsible for physically handling absentee ballots, id. at ¶ 19. These same allegations plausibly establish that providing injunctive relief solely with respect to the Secretary can redress Plaintiffs’ injuries. Id.
The evidence so far also establishes traceability to the Secretary. The sworn statements of the Secretary of State’s Office, its explicit online instructions to affix postage, and the absentee ballot envelope template they created, all point to the Secretary as the responsible party. Docs. 2-4; 40; 51 at ¶¶ 8-9; 54 at 3; 75:23-25. The Secretary of State’s Office has also testified that the Secretary would be bureaucratically burdened even if all counties lifted the postage requirement. See Doc. 75 at 93:3-14; 99:18-21; Support Working Animals, Inc. v. DeSantis, --- F. Supp. 3d ----, 2020 WL 1991479, at *7 n.8 (N.D. Fla. Apr. 27, 2020) (applying Jacobson, ruling that the Secretary of State is a proper defendant even where the Secretary involvement in the process was merely “clerical”). As for redressability, the entire premise of the Secretary’s opposition to a preliminary injunction is their refusal to cure Plaintiffs’ injuries, and the Secretary has never disputed that the counties follow their guidance.
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Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 11 of 17
The Secretary argues that, like in Jacobson, Plaintiffs’ traceability arguments cling solely to a statute that generically names the Secretary as the “chief election officer.” Doc. 97 at 10. But Plaintiffs do not do so here, nor do Plaintiffs rely solely on the fact that the Secretary issues guidance to the counties. As shown above, the Secretary not only issues guidance to counties, the Secretary has issued guidance to counties specifically with respect to the postage requirement and other absentee ballot issues. But Plaintiffs rely on facts, not statutes. Indeed, in Martin v. Kemp, 341 F. Supp. 3d 1326, 1329-32, 1341 (N.D. Ga. 2018), even where the statutes were clear that counties were responsible for a signature matching procedure that the plaintiffs challenged as unconstitutional, the court still entered an injunction solely against the Secretary, ordering him to issue guidance to all counties. The Eleventh Circuit subsequently denied the Secretary’s request for a stay. See Georgia Muslim Voter Project v. Kemp, 918 F.3d 1262 (11th Cir. 2019).
In sum, whether the Secretary or the counties are responsible for the postage requirement is a factual question suitable for discovery, especially where, as here, the statute is silent. Discovery will help demonstrate (hopefully) once and for all who is responsible, though the likely answer is both. For now, the allegations are sufficient to show that the injury is traceable to the Secretary.
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III. THE EQUITIES HAVE NOT CHANGED AND TILT IN PLAINTIFFS’ FAVOR Timing. The Secretary’s equities arguments about August boil down to a
“heads I win tails you lose” approach about timing—the kind of well-worn timing trap that elections officials routinely raise in voting cases. This Court is well aware of that strategy. See Doc. 75 at 130:6-12 (“It is giving me great pause about waiting very long relative to August . . . wait and wait and then be too late, which is a constant issue on election cases.”).
Under the Secretary’s belief, if it is not clear if the August runoffs are happening, then it is too early to grant relief. But if the August runoffs do end up happening, then it will be too late to grant relief. The implications of this Catch-22 argument are remarkable. In essence, the Secretary argues that all motions for a preliminary injunction—indeed, even permanent relief—challenging the constitutionality of any aspect of the absentee balloting process for runoffs are always void.
The equities do not countenance such an absurd result. If the Secretary must prepare as early as May 15 to order absentee ballot materials for the August runoff, then the equities warrant an injunction on or before May 15 to give organizations like Plaintiff Black Lives Matter Fund (“BVM”) and voters equal advance notice to overcome the postage requirement for an August runoff. Indeed, BVM has
12

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 13 of 17
sworn that preparations must be made as soon as possible, even for the November elections. Doc. 77-1 at ¶¶ 27-30. The Secretary’s logistical concerns are not more important that BVM’s logistical concerns.
Nor does the public interest warrant such delay. Plaintiffs will not belabor the point that voters highly susceptible to COVID-19 (as well as all voters) have substantial difficulties obtaining postage during this epidemic. Such voters need as much advance notice as possible so they can figure how to obtain postage without contracting COVID-19. See, e.g., Doc. 24 (Declaration of Delinda Bryant). The interests of these voters well outweigh the Secretary’s logistical concerns.
Indeed, the Secretary’s logistical concerns are relatively minimal. If the Secretary orders prepaid postage envelopes tomorrow, and the August runoff does not happen, the Secretary does not lose much money, if any, on prepaid postage because postage is charged only when the envelope is returned by mail.
The Secretary gestures at an argument that Plaintiffs’ second motion for a preliminary injunction allegedly came too late. Doc. 97 at 5. Counsel for Plaintiffs acknowledge that the timing of the Amended Complaint, originally intended to advance an alternative argument to DeKalb’s motion to dismiss, have unexpectedly (to Plaintiffs’ Counsel, not the Court) caused significant procedural problems with respect to the pending motion for a preliminary injunction. But the Defendants do
13

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not dispute that this second motion has not caused any prejudice to them (with respect to the original parties). Doc. 93. Nor have Defendants argued that the Amended Complaint has materially impacted the pending motion for preliminary injunction.3
Finances. The Secretary raises concerns about finances, including a “new” argument that an injunction would hurt the counties. It is not clear why financial concerns are more urgent for the counties “now,” then they were when the Secretary initially raised financial concerns several weeks prior. It is also worth noting that the Secretary’s finances arguments on behalf of DeKalb seems markedly more strident than the finances arguments by DeKalb. See Doc. 75 at 128. In any event, Plaintiffs will not repeat prior arguments about the government’s financial interests.
Injunction. The Secretary then argues that it is inappropriate to issue an injunction against the counties. But Plaintiffs are not seeking a preliminary
3 Plaintiffs’ acknowledge that this second motion still may not have addressed the Court’s procedural concerns. To protect Plaintiffs’ interests, Plaintiffs respectfully note that they do not waive the argument that an amended pleading does not necessarily have a material impact on any pending motion for a preliminary injunction when the pending motion is not reliant on any changes in the amended pleading, particularly where the defendants have not so argued. Cf. e.g., Exhibit A (docket sheet of voting litigation where Amended Complaint was filed in the middle of motion for preliminary injunction briefing).
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Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 15 of 17
injunction against the counties, and Plaintiffs have said so from day one. Doc. 2. Further, Plaintiffs’ motion sought relief solely from the Secretary out of respect for federalism. Guidance from the Secretary to the counties is more respectful to the counties than a court injunction against the counties. As Plaintiffs have stated, they may seek relief from particular counties that do not follow the Secretary’s guidance, but that is an issue for another day, and might not even involve the Secretary at all if or when that happens.
CONCLUSION For these reasons and those set forth in the opening brief, Original Plaintiffs’ motion for a temporary restraining order and/or preliminary injunction should be granted.
Respectfully submitted this 14th day of May, 2020. Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor
15

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 16 of 17
New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
16

Case 1:20-cv-01489-AT Document 98 Filed 05/14/20 Page 17 of 17
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on May 14, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
17

 
 Case 1:20-cv-01489-AT Document 100 Filed 05/14/20 Page 1 of 3

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

PLAINTIFFS BVM AND GORDON’S SUPPLEMENTAL REPLY BRIEF
Counsel for Plaintiffs inadvertently failed to include the Exhibit A that is
referenced in their reply brief, Doc. 98 at 14 n.3. Attached is that Exhibit A.
Respectfully submitted this 14th day of May, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin

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Case 1:20-cv-01489-AT Document 100 Filed 05/14/20 Page 2 of 3
Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
2

Case 1:20-cv-01489-AT Document 100 Filed 05/14/20 Page 3 of 3
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on May 14, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
3

 
 Case 1:20-cv-01489-AT Document 101 Filed 05/15/20 Page 1 of 4

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

BLACK VOTERS MATTER FUND, and :

MEGAN GORDON, on behalf of

:

herself and all others similarly

:

situated,

:

:

Plaintiffs,

:

:

v.

:

:

BRAD RAFFENSPERGER, in his

:

official capacity as Secretary of State of :

Georgia, and DEKALB COUNTY

:

BOARD OF REGISTRATION &

:

ELECTIONS, and all others similarly :

situated,

:

:

Defendants.

:

CIVIL ACTION NO. 1:20-cv-01489-AT

ORDER Before the Court is Plaintiffs Black Voters Matter Fund and Megan Gordon’s (“Original Plaintiffs”) Motion for a Temporary Restraining Order and/or Preliminary Injunction and for Expedited Briefing. [Doc. 93] (“Emergency Motion”). The Emergency Motion does not raise any new facts or arguments, but instead “incorporates by reference all prior filings and evidence submitted in connection with the Original Plaintiffs’ prior motion for preliminary injunction” and seeks relief for the August runoff and November general elections.

Case 1:20-cv-01489-AT Document 101 Filed 05/15/20 Page 2 of 4
I. Background On April 30, 2020, this Court entered an Order denying Plaintiffs’ request
for an injunction requiring the Secretary of State to provide prepaid postage for absentee ballots in time for the June 9, 2020 primary election, in part because the Secretary of State had already begun mailing ballots out to tens of thousands of voters. After carefully considering the record evidence of both parties, the Court found that Plaintiffs’ proposed remedies were not realistic or implementable under the circumstances. The Court, however, reserved judgment on whether injunctive relief is appropriate as to future elections, including the August 2020 runoff and the November general election, and indicated it would make a determination about relief in connection with those elections in a separate subsequent order.
Late in the evening on May 12th, Plaintiffs filed this Emergency Motion for TRO. The emergency apparently necessitating Plaintiffs’ request for expedited relief is the Secretary of State’s mid-May deadline for making changes to the absentee ballot envelopes if ordered to provide prepaid postage in time for the August runoff, which includes a period of two weeks to consult with the United States Postal Service. (Doc. 76).
But Plaintiffs have known about this deadline since April 28, 2020. (Id.) As such, the Emergency Motion was ostensibly precipitated by this Court’s May 11, 2020 Order indicating that in light of Plaintiffs’ filing an Amended Complaint which added new Plaintiffs and Defendants to this case and effectively mooted
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Case 1:20-cv-01489-AT Document 101 Filed 05/15/20 Page 3 of 4
the pending Motions to Dismiss, the Court would not likely be able to rule on Plaintiffs’ request for injunctive relief before the aforementioned mid-May deadline. At Plaintiffs’ request, the Court held a teleconference the next day to address Plaintiffs’ concerns about a potential delay in light of their filing of the Amended Complaint. (Doc. 92.) At the conference, the Court expressed concern about ruling on the important questions presented by Plaintiffs’ Motion for Preliminary Injunction before the June 2020 Primary plays out. Plaintiffs nonetheless pressed forward, filing the instant Emergency Motion seeking an expedited ruling on their request. II. Discussion
The Secretary’s Reply in Support of his first Motion to Dismiss (Doc. 87) first raised important questions about the justiciability of Plaintiffs’ claims under the Eleventh Circuit’s recent decision in Jacobson v. Fla. Sec’y of State, No. 1914552 at 21-22 (11th Cir. April 29, 2020). Plaintiffs did not seek permission to file a sur-reply, and instead the first time that the Court received substantive briefing from Plaintiffs on the Jacobson issue was yesterday. (Doc. 98.) The Court will not barrel into ruling on such serious legal issues confronting it under these circumstances.
Furthermore, it makes no sense for the Court to address these difficult standing issues as to only the parties named in the Original Complaint rather than those included in the Amended Complaint. To do otherwise would be to rule
3

Case 1:20-cv-01489-AT Document 101 Filed 05/15/20 Page 4 of 4 with one hand tied behind its back. For the forgoing reasons, the Emergency Motion [Doc. 93] is DENIED.
IT IS SO ORDERED this 15th day of May, 2020. ____________________________ Amy Totenberg United States District Judge
4

 
 Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 1 of 36

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

) )

Defendants.

) )

)

)

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEKALB DEFENDANTS’ MOTION TO DISMISS Defendants DeKalb County Board of Registration & Elections (the “Board”)1 and Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton, in their official capacities (the “Individual Defendants”) (together, “DeKalb”) have filed a motion to dismiss the Amended Complaint. Doc. 104. Specifically, DeKalb argues that: (1) the Board is

1 References to “County Boards” in this brief refers to a county’s analogous Board of Registration & Elections.
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purportedly protected by Eleventh Amendment immunity when it performs the function at issue in this case; (2) the Individual Defendants are purportedly protected by legislative immunity; and (3) Plaintiffs allegedly lack standing. These arguments are meritless.2
ARGUMENT Below, Plaintiffs establish that (1) the Board is not entitled to Eleventh Amendment immunity because it has failed to show, at this early stage of the case, that it acts as an “arm of the state” when implementing the postage requirement; (2) the Individual Defendants have failed to establish their affirmative defense of legislative immunity largely because they fail to specify which act by which defendant is entitled to immunity; and (3) Plaintiffs have standing because the postage requirement is harming both Plaintiffs now. I. PLAINTIFFS’ CLAIMS AGAINST THE BOARD ARE NOT BARRED BY ELEVENTH AMENDMENT IMMUNITY The Board has failed to carry its burden in demonstrating its entitlement to Eleventh Amendment immunity at this early stage of litigation.
2 Because DeKalb’s motion to dismiss the amended complaint incorporates the Board’s prior motion to dismiss the complaint, Doc. 104 at 3 (incorporating Doc. 80), Plaintiffs will cite to both briefs here when referring to DeKalb’s arguments.
2

Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 3 of 36
The Eleventh Circuit considers “four factors to determine whether an entity is an ‘arm of the State’ in carrying out a particular function: (1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003). “Under the traditional Eleventh Amendment paradigm, states are extended immunity, counties and similar municipal corporations are not, and entities that share characteristics of both require a case-by-case analysis.” U.S. ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598, 601 (11th Cir. 2014).
Importantly, the inquiry does not examine whether the sued entity “wear[s] a ‘state hat’” at all times. Manders, 338 F.3d at 1319. Instead, a court “must focus on the nature of the particular function at issue” in the suit. Id. Thus the question is whether an entity acts for the state “in a particular area, or on a particular issue.” Stanley v. Israel, 843 F.3d 920, 924 (11th Cir. 2016).
As with any affirmative defense, the defendant entity invoking Eleventh Amendment immunity “bears the burden of demonstrating that it qualifies as an arm of the state.” Miller v. Adv. Behavioral Health Sys., 677 Fed. Appx. 556, 559 (11th Cir. Jan. 26, 2017) (citations tracing to decisions by the Second, Third, Sixth,
3

Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 4 of 36
Seventh, and Ninth Circuits all establishing that the burden is on the government to establish Eleventh Amendment immunity).
A. First Factor: State Law “Defines” the Board as a County Entity The first factor looks at how “state law defines” the Board. Here, state law (O.C.G.A. § 21-2-40) defines the Board as a “county” entity, which militates against “arm of the state” status. See Abusaid v. Hillsborough Cnty. Bd. of Cnty. Com’rs, 405 F.3d 1298, 1305 (11th Cir. 2005) (sheriffs not “arm of the state” under first factor because state constitution labelled them “county officers”); Stanley, 843 F.3d at 926 (“state law defines sheriffs as county officers[,]” which is “indicative of county status”). The Board argues that the General Assembly “created” the Board, gave it “powers and responsibilities” over elections, and has dictated the number of members on the Board and how they are selected. Doc. 80 at 5-6. For support, the Board relies exclusively on dictum from Casey v. Clayton Cty. No. 04-CV-00871, 2007 WL 788943, at *8 (N.D. Ga. Mar. 14, 2007), which observed that the “Board of Elections was created by the Georgia General Assembly” and that “for purposes of conducting elections in general, there can be little doubt that Eleventh Amendment immunity would attach.” Id. The Board also appears to rely on
4

Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 5 of 36
Casey’s observation that the “state fixes the duties of the Board.” Id. The Board’s arguments fail.
1. Casey’s dictum is inapplicable because the case did not concern an election function
As a preliminary matter, the Board’s reliance on Casey’s dictum is misplaced for three independent reasons.
First, Casey’s dictum is inapplicable because it says nothing about the postage requirement (and neither does this section of DeKalb’s brief), and so cannot be used to support the kind of specific argument the Eleventh Circuit required in Manders. Thus, for instance, the Eleventh Circuit has refused to apply prior Eleventh Circuit “arm of the state” decisions even when the prior decision concerned the same entity, precisely because the prior decision “did not address the function at issue in this case.” Stanley, 843 F.3d at 925-26. This Court should similarly disregard Casey.
Second, Casey’s discussion of various election responsibilities was dictum, since the function at issue in the case involved employment, not election functions. Casey’s discussion was only meant to illustrate generally that it was relatively unclear whether employment decisions by the County Board were state or county functions. Casey, 2007 WL 788943, at *8. After taking this detour, Casey immediately pivoted back to the function at hand. See id. at *9 (“But, it is not the
5

Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 6 of 36
Board’s management of elections which is at issue here.”). Thus, Casey’s reasoning with respect to election functions generally did not need to match the rigor required when deciding Eleventh Amendment immunity with respect to a particular election function.
Third, if Casey involved a specific election function, then its wide-ranging analysis about “conducting elections in general” would be at odds with Manders. There, the Eleventh Circuit specifically rejected using a generalized, flyover analysis of a swath of functions when only a specific function is at issue. See Manders, 338 F.3d at 1319 (“We need not, and do not, decide today whether Georgia sheriffs wear a ‘state hat’ for Eleventh Amendment purposes for all of the many specific duties assigned directly by the State.”). Most importantly, Casey said nothing about the postage requirement.
2. The Board’s creation by state law carries little, if any, weight As noted above, the Board’s primary argument under the first factor is that the Board was created by state law and that state law assigns responsibilities to the Board. Doc. 80 at 5-6. But these features alone are not sufficient to point the first factor in the Board’s favor, especially since state law defines the Board as a “county” entity. O.C.G.A. § 21-2-40.
6

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In addition, while the Board is “created” by the General Assembly, it is created and empowered exclusively with respect to a single county, DeKalb County. O.C.G.A. § 21-2-40(b). Such board may perform duties only within a particular county. See, e.g., Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 76970 (11th Cir. 2014) (observing that “Georgia’s Constitution often groups school districts together with counties and municipalities… distinct from the State”).
The Board lists various election functions assigned to the Board by state law, e.g., “the preparation for and conduct of elections,” etc., Doc. 80 at 6, but this also fails to significantly help the Board. The Eleventh Circuit has made clear (after Casey was decided) that the mere fact that a county entity was created by state law, or that the county entity’s duties were fixed by state law, is insufficient to establish “arm of the state” status. See Lightfoot, 771 F.3d at 771 (whether an entity’s “powers and duties are derived from state law” “is not sufficient” to establish arm of the state status for purposes of the first factor); see also McAdams v. Jefferson Cnty. 911 Emerg. Commc’ns Dist. Inc., THE, 931 F.3d 1132, 1135 (11th Cir. 2019) (county entity was not an “arm of the state” under the first factor even if state law “authorized” that entity to perform the function at issue, because the entity was still “operated by local authorities.”).
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Instead, even if state law assigns certain functions to county entities, the inquiry is whether those functions are state functions. The Board fails to point to any statute suggesting that these functions are state functions, such as a delegation statute that allows the Secretary to delegate its duties to the Board. See, e.g., Lesinski, 739 F.3d at 602 (Florida water management district was an “arm of the state” where state law “vest[ed]” in a state agency certain powers, who in turn had “discretion to accomplish these ends through delegation of appropriate powers to the . . . districts” (citing FL ST § 373.016(5)); Manders, 338 F.3d at 1319 (first factor weighed in favor of arm of the state status because “the State uses the county jail to incarcerate” people indicted by, or convicted under, state law). Nor does the Board point to a supervision statute that makes the Secretary the supervisor of the Board. See, e.g., Ross v. Jefferson Cnty. Dept. of Health, 701 F.3d 655, 660 (11th Cir. 2012) (first factor in government’s favor because the functions assigned to county boards of health were subject to “the supervision and control of the State Board of Health”). (The Board’s training and certification argument is addressed infra Part I.B.)
The Board also fails to point to any Georgia state court case characterizing the Board as a state agency or an extension of the state. See McAdams, 931 F.3d at 1135 (“most important factor” is “how the entity has been treated by the state
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courts.” (citation omitted)).3 Nor does DeKalb point to the Georgia Constitution, which is unsurprising since the Georgia Constitution is silent on this issue. See, e.g., Manders, 338 F.3d at 1309-12 (extensive discussion of Georgia Constitution’s treatment of sheriffs).
DeKalb’s assertion that the “General Assembly—not the County—[] sets forth the number of members . . . , member requirements, guidelines on how members are appointed or elected, and terms of service,” Doc. 80 at 6, also has minimal if any relevancy. The more important question is which entity decides who the members of the Board are. See, e.g., Stanley, 843 F.3d at 926-27 (first factor weighed in plaintiffs’ favor where county chooses the sheriff); McAdams, 931 F.3d at 1135 (first factor can look at whether entity is “operated by local authorities”).
Here, it is the county or county-based entities that control who is put on the Board and who will carry out the Board’s obligations. Specifically, the local act authorizes the “county executive committee of the political party” who garnered
3 Plaintiffs could not find a Georgia decision on point, and it is not Plaintiffs’ burden to do so. But this factor still tilts in Plaintiffs’ favor because there are Georgia Supreme Court elections decisions where a County Board was sued over absentee ballot procedures and there was no mention of the Secretary of State or any characterization of the board as a state agency. Cf., e.g., Spalding Cnty. Bd. of Elec. v. McCord, 287 Ga. 835 (2010) (involving absentee voting); McIntosh Cnty. Bd. of Elec. v. Deverger, 282 Ga. 566 (2007) (similar).
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the first- and second-most votes in the last election to appoint four members, who in turn appoint the fifth.4 Code of DeKalb County Georgia (hereinafter “DeKalb Code”) § 171.5 If an appointment is not made in time, then the “governing authority of said county” picks the member. DeKalb Code § 174. The Board, in turn, hires the elections supervisor (Defendant Hamilton). DeKalb Code § 184.
In sum, the Board appears to rely solely on the fact that it is created by state law and has functions assigned by state law. This alone does not tilt the first factor in the Board’s favor. State law “defines” the Board as a county entity, state law assigns functions to the Board but nowhere characterizes the Board’s responsibilities as a delegation of state functions, and the Board is selected by county-based entities, if not the county itself. Thus, the first factor does not help the Board demonstrate that it is an “arm of the state” for purposes of the postage requirement.
4 The local act entrusts the initial selection to private entities, i.e., the county political parties, not to a governmental entity. Cf., e.g., Delay v. Sutton, 304 Ga. 338 (2018) (DeKalb County Board of Ethics appointment system unconstitutional because local law allowed private entities to appoint some of its members). But the fact that these private entities are county-based tilts the first factor further in Plaintiffs’ favor. 5 See https://library.municode.com/ga/dekalb_county/codes/code_of_ordinances.
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B. Second Factor: The State Does Not Have Total Control Over the Board With Respect to the Postage Requirement
The second factor—the degree of control the State maintains of the Board with respect to the postage requirement—is admittedly a closer question. The evidence so far has pointed to both the Board and the Secretary as the parties responsible for imposing and implementing the postage requirement. On the one hand, the Secretary alleges that “[c]ounty elections officials are responsible for the absentee balloting process, and their decision to not pay for voters’ postage cannot be imputed to the Secretary.” Doc. 87 at 14; see also Doc. 97 at 9-10. On the other hand, DeKalb argues that “the State maintains a high degree of control over [the Board],” Doc. 80 at 6, and in a prior brief appeared to suggest that state law requires the Board to impose a postage requirement, Doc. 50 at 4 (noting “Dekalb VRE’s procedures for prepaid postage required under O.C.G.A. §§ 21-2-233(b) and 21-2-234(c)).
Both Defendants appear to agree, however, that either the county or the state can lift the postage requirement. See Doc. 50 at 4-5; Doc. 51 at 33-35; Doc. 87 at 14. These same brief excerpts also agree that the county plays at least a significant role in implementing the postage requirement currently. These features demonstrate, at this early stage of the case, that the county has at least some control over the postage requirement process for purposes of the second factor.
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The Board relies solely on statutes in arguing that the State has substantial control over the postage requirement. Specifically, the Board argues that: (1) the Board exercises the powers granted by State law; (2) the State trains and certifies certain Board members and may discipline them; (3) the Board’s actions are limited by State law; and (4) any rule promulgated by a county “executive committee” regarding primary conduct cannot conflict with the Board’s rules and regulations. Doc. 80 at 6-7. DeKalb cites no cases in support of any of these arguments. As explained below, these arguments fail largely because no state statute says who is responsible for any postage requirement.
Points (1) and (3) argue that the State has control simply because the Board’s creation and duties are provided and circumscribed under state law. But that has limited relevance where, as here, the Board points to no law saying that the Secretary or the State Election Board has authority to limit the Board’s discretion with respect to the postage requirement. See Stanley, 843 F.3d at 928 (while state statute codified the defendant’s responsibilities generally, it did not expressly restrict the defendant’s ability to carry out the function at issue in the case); McAdams, 931 F.3d at 1135 (the defendant “has pointed to no authority indicating that the [state entity] or any other state agency has control over” the function at issue in that case); Lightfoot, 771 F.3d at 773-74 (state lacked control over the
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school district’s functions even where “Georgia has enacted many laws pertaining to the operation of school districts”).
Point (4) argues that any rule promulgated by a county “executive committee” regarding primary conduct cannot conflict with the Board’s rules and regulations. Doc. 80 at 7. This unelaborated argument appears to suggest that because the Board is allegedly a state entity, and the county’s primary activities cannot conflict with the Board’s rules and regulations, thus the State has control. But again, this local act says nothing about the postage requirement, and as established above, the Board is not purely a state entity because it is the county or county-based entities that select the members of the Board.
Finally, the Board’s Point (2) about state training and certification has limited relevance, again because no statute specifically says who is or is not in charge of imposing or lifting a postage requirement. Thus, for example, in Stanley, even where the governor had the power to fire the defendant sheriff (the Board does not contend that the Secretary has such power over the Board),6 id. at 928, the
6 Instead, the law pointed to by DeKalb only allows the State Election Board to fine a Board, not fire any of its members. And the fining authority is limited, as the statute pointed to by DeKalb only allows a fine if the Board fails to send someone to fulfill the training requirement. O.C.G.A. § 21-2-100(e). DeKalb points to no laws allowing the State Election Board to impose a fine if a County Board does or does not impose a postage requirement.
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Eleventh Circuit still found that State control was limited for purposes of that case. That is because state law provided “little [state] involvement in the removal of deputies”—the function at issue in that case—with only minimal boundaries on that power. Id. Here, state law is completely silent on who has control over the postage requirement and does not set any parameters on postage requirements at all.
To be sure, the Eleventh Circuit did find that, where the function at issue is the hiring of deputies, the “strongest indicia of state control over personnel decisions is found in state law,” which required “deputies to meet certain statutory qualifications . . . before they may be hired.” Stanley, 843 F.3d at 928.7 But unlike in Stanley, where the state laws at least mentioned the function at issue (hiring deputies), here the two statutes DeKalb points to when mentioning the state’s training and certification standards say nothing about a postage requirement, or anything close to one. O.C.G.A. § 21-2-100 refers to “training” without mentioning the subjects of such training. O.C.G.A. § 21-2-101 discusses certification with respect to operating the state’s direct recording electronic voting equipment, but it doesn’t mention any other subjects that the certification covers.
7 Though even then, the Eleventh Circuit found the second factor to tilt away from “arm of the state” status because ultimately the county chooses who performs this function. Id. at 929.
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The Board also fails to point to any relevant regulations. There is thus no comparably “strong[] indicia of state control” here. Stanley, 843 F.3d at 928.
Furthermore, any suggestion of State control over the postage requirement that can be wrung from the training and certification statutes is greatly limited, because only one person is required to go through training and certification (not all five Board members), and it does not even have to be a Board member. See O.C.G.A. §§ 21-2-100(a) (“one member of the board or a designee of the board”); 21-2-101(a) (“the designee of [the] board charged with the daily operations of that board”).
Lastly, the Eleventh Circuit has repeatedly emphasized that State control is limited for purposes of this second factor when it is the county that largely controls who performs the function at issue. See, e.g., Stanley, 843 F.3d at 928 (“Of primary importance is the fact that in Florida, the county controls” who performs the functions at issue in that case, i.e., whether it is the sheriff or someone else); Lightfoot, 771 F.3d at 771-72 (second factor weighed in plaintiffs’ favor where “[c]ounty school board members are locally elected county residents,” and thus, “Georgia school districts are largely under local control.”); McAdams, 931 F.3d at 1135 (second factor weighed in plaintiffs’ favor where entity performing the
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function at issue are “appointed by counties and municipalities”). As discussed supra Part I.A.2., the Board is selected by the county or county-based entities.
Lastly, the Board is located in a county office within the county, not a state office in the capital, further limiting state control. See Abusaid, 405 F.3d at 130607 (less state control where “sheriff is required to maintain his office at the place of the county seat,” “illustrating the essentially local nature of the office”).
For these reasons, the Board has failed to meet its burden in demonstrating a substantial degree of State control over the postage requirement. Even if this factor is a “closer question,” it ultimately tilts in Plaintiffs’ favor at this early stage of the case. See, e.g., Stanley, 843 F.3d at 925 (at summary judgment stage, second factor presents a “closer call” but “ultimately weighs toward county status”); Abusaid, 405 F.3d at 1306 (at motion to dismiss stage, the “degree of state control over the sheriff[] is arguably mixed, but still weighs against arm of the state status”).8
8 Although both the state and the counties appear responsible for the postage requirement based on the evidence so far, Plaintiffs have only sought a preliminary injunction against the Secretary out of respect for federalism and the current timetable as described in a prior brief, Doc. 98 at 14-15, incorporated by reference. Plaintiffs do not waive the right to seek a different form of injunctive relief in a later stage of this case when the facts are more developed.
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C. Third Factor: the Board Derives Its Funds from the County The third factor tilts in Plaintiffs’ favor because the Board all but concedes that it derives its funds from the county, not the state. Doc. 80 at 7 (citing O.C.G.A. § 21-2-71 (“governing authority of each county . . . shall appropriate . . . the funds it shall deem necessary for the conduct of primaries and elections in such county”). The Board similarly concedes that the county pays the salaries of county elections officials. Id. (citing DeKalb Code §§ 181-187 (“governing authority of the county” required to “expend public funds” when paying county elections officials)). Furthermore, it is the county that must pay for training and certification. See O.C.G.A. §§ 21-2-100(d); 21-2-101(a). Application of the third factor here is thus straightforward. But the Eleventh Circuit has found the third factor to be in the plaintiffs’ favor even where county funding was more attenuated than it is here. In McAdams, the third factor tilted in plaintiffs’ favor because the defendant’s revenues were not “monies or property of the state,” even though state law required initial distribution from a state fund. See McAdams, 931 F.3d at 1135-1136. Here, the Board does not allege that any significant part of its funding comes from the state. Nor does the Board suggest that the state has placed limits on how much money the Board can raise from the county. See Lightfoot, 771 F.3d at 775-77 (third factor in plaintiffs’ favor even
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where state funds constituted “sixty-five percent of the School District’s budget,” because the state did not prevent school districts from raising more revenues); id. at 774 (school districts “exercise considerable autonomy over local fundraising”). The fact that salaries are paid by the county further establish this factor in favor of Plaintiffs even if state law were to fix a certain salary, which is not the case here. Stanley, 843 F.3d at 930 (third factor in plaintiffs’ favor where county paid the salary even if salary amount was fixed by state law).
The Board’s sole argument appears to be that the county’s “budgetary authority” is limited because state law essentially forces the county to provide a sufficient budget that will allow the Board to perform those functions. Doc. 80 at 7 (citing Casey, 2007 WL 788943, at *8). This overbroad proposition would essentially provide the Board immunity for all election functions assigned to it by state law—and indeed, any duty assigned to any local entity by state law—because many responsibilities assigned by state law impact the county budget in some way. Nowhere does DeKalb suggest that the state has any kind of direct control over the county’s budgetary process, and they do not cite any case suggesting that a state law’s mere assignment of responsibilities to counties is tantamount to controlling a county’s budget.
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In any event, the Eleventh Circuit has rejected the Board’s suggestion that budgetary authority is significantly relevant to the third factor, even in cases where the state’s control over the county budget far exceeds the control here. In Abusaid, the county drafted the initial budget for the sheriff but did not “have final control over the sheriff’s budget” because the county’s budgetary decisions could be appealed directly to a state agency, who in turn had the final authority to change the budget at will. 405 F.3d at 1311. Yet even then, the third factor weighed in plaintiffs’ favor because it “leaves unaltered the fundamental fact that the sheriffs’ funds are derived entirely from their respective counties.” Id. The Eleventh Circuit emphasized that “our inquiry on this third prong of our arm of the state test asks what is the source of a sheriff’s funds, not (as the second prong asks) what degree of control the state retains over the budgeting process.” Id. Similarly here, budgetary authority does not dictate the third factor. See also Stanley, 843 F.3d at 929 (“The fact that a sheriff’s budget is funded entirely by the county . . . is a strong indicator of county control that is not outweighed by the fact that the state maintains some control over the budget review process.”).
But “even if state control over the budgeting process were the proper inquiry, this third factor would still weigh against arm of the state status,” Abusaid, 405 F.3d at 1312, because the state law requires that the budget must still be
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submitted to the county. See O.C.G.A. § 21-2-70(12); Abusaid, 405 F.3d at 1312 (state control was limited because, among other reasons, the initial budget must still be submitted to the county for approval and the sheriff was accountable to the county). Here, any initial budget is submitted to the county, and the Board is primarily accountable to the county because as noted above, it is the county or county-based entities that select the Board’s members.
D. Fourth Factor: the County is Responsible for Judgments Against the Entity
The final factor also weighs in favor of Plaintiffs. As the party with the burden of establishing immunity, the Board fails to point to any statute suggesting that the state is responsible for judgments against the Board and all but concedes that the state is not. Doc. 80 at 8. Indeed, the Board has specifically asserted that it would have to spend money if this Court no longer allowed it to have voters cover the government’s costs on postage. See Doc. 50. The fourth factor thus tilts in Plaintiffs’ favor. See McAdams, 931 F.3d at 1136 (observing “it does not appear that Alabama would be financially responsible for a judgment against Jefferson County”).
The Board’s only argument is that the fourth factor is not dispositive. Doc. 80 at 8 (citing Pellitteri v. Prine, 776 F.3d 777, 783 (11th Cir. 2015) (citing Ross v. Jefferson Cnty. Dept. of Health, 701 F.3d 655, 660 (11th Cir. 2012)). Without
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discussing these cases, the Board seems to argue that even if the fourth factor tilted in favor of Plaintiffs, it is outweighed by the other three factors. However, as established above, the first three factors lean in favor of Plaintiffs.
For the above reasons, the Board is not entitled to Eleventh Amendment immunity when it comes to the postage requirement, at least not at this early stage of the case. Its motion to dismiss on Eleventh Immunity grounds should thus be denied. See, e.g., Curling v. Kemp, 334 F. Supp. 3d 1303, 1321 (N.D. Ga. 2018) (denying Eleventh Amendment immunity “at this juncture for purposes of considering Plaintiffs’ motions for preliminary injunction”); Tuveson v. Fla. Gov. Council on Indian Affairs, Inc., 734 F.2d 730, 732-34 (11th Cir. 1984) (after jury trial, where the “exact status” of the sued entity “under Florida law is uncertain,” examining various facts of how the entity operated in practice, with some facts pointing towards, and some against, “arm of the state” status); Casey v. Clayton Cty. No. 04-CV-00871, 2007 WL 788943, at *9 (N.D. Ga. Mar. 14, 2007) (denying Eleventh Amendment immunity at summary judgment stage to allow facts related to immunity to develop at trial).
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II. THE INDIVIDUAL DEFENDANTS ARE NOT ENTITLED TO LEGISLATIVE IMMUNITY The Individual Defendants, on the other hand, make the blanket assertion
that they are entitled to legislative immunity “when approving budgetary and policy items.” Doc. 104 at 3. Again, each Individual Defendant carries the burden of demonstrating that she or he is entitled to legislative immunity as to this case. See Bryant v. Jones, 575 F.3d 1281, 1304 (11th Cir. 2009) (“Officials claiming protection ‘must show that such immunity is justified for the governmental function at issue.’” (citation omitted)); Scott v. Taylor, 405 F.3d 1251, 1258 (11th Cir. 2005) (“Legislative immunity is an affirmative defense”). As explained below, the Individual Defendants have failed to satisfy their burden because it is not clear from DeKalb’s argument what actions by which Individual Defendant are entitled to legislative immunity, and Plaintiffs cannot guess which ones they are talking about. Thus, legislative immunity should be denied at this stage, without prejudice to DeKalb asserting the defense later after discovery has completed. See Crymes v. DeKalb Cnty., Ga., 923 F.2d 1482, 1486 (11th Cir. 1991) (allegations in pleading were sufficient to defeat legislative immunity at motion to dismiss stage).
DeKalb’s argument rests solely on an alleged blanket rule that anything considered “budgetary” or “policymaking” is automatically protected by legislative immunity. Doc. 104 at 3. But the Eleventh Circuit has expressly rejected these
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kinds of per se rules. See Bryant, 575 F.3d at 1305 (“We decline to adopt” a “per se rule that would provide . . . immunity any time he drafts a proposal that is later submitted to a legislative body.”). “Instead, [courts] examine the facts of each case to determine whether the official in the instant case was engaging in legislative activity.” Id. (internal alterations omitted, emphasis added).
Furthermore, the Individual Defendants do not identify “the facts of [this] case” or which allegations or evidence implicate legislative immunity, which dooms their argument at this early stage. See, e.g., Parker v. Laurel Cnty. Det. Ctr., No. 6:05-113-DCR, 2005 U.S. Dist. LEXIS 50006, at *9-10 (E.D. Ky. Aug. 9, 2005) (denying legislative immunity on motion to dismiss posture, where defendants failed to specify what acts by whom was protected).9
Specifically, the Individual Defendants do not identify which specific action by which Individual Defendant is entitled to legislative immunity, whether such act is “budgetary” or “policymaking” and why, and how that matters to the immunity analysis. See, e.g., Bryant, 575 F.3d at 1304 (conducting fact-specific analysis,
9 “Because Parker has not specifically pled exactly the actions taken by each individual Defendant that violated a specified constitutional right, it is impossible for the Court to determine at this time whether legislative immunity is applicable. Also, because the Defendants have not set out the capacity in which they seek legislative immunity, the Court cannot grant the broad scope of legislative immunity that is being sought.” Id.
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noting “we are careful to limit our decision to this narrow issue and decide ‘only what is necessary to the disposition of the immediate case’” (citation omitted)). Nor do they identify which Individual Defendant plays what role in any “budgetary” or “policymaking” process generally. For instance, they do not say whether any Individual Defendant “prepares committee reports,” “participates in committee investigations and proceedings,” “votes, debates,” or “reacts to public opinion,” or whether any of those actions are relevant to the postage requirement. Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185, 1191 (11th Cir. 1993) (internal alterations and citations omitted). They say nothing with respect to the Board’s relationship with the DeKalb County Commissioners, a legislative body who are the ones who receives and approves their budget proposals. They do not distinguish between the Board members and Defendant Hamilton, who have different roles and responsibilities. Most importantly, they say nothing about the postage requirement or any of their roles with respect to that function. The need for detail is especially great in light of DeKalb’s contradictory arguments made elsewhere, that DeKalb have limited “budgetary authority” for purposes of
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postage, Doc. 80 at 7, and that the state is the one in control of the postage
requirement, id. at 6.10
Plaintiffs cannot respond adequately when the Individual Defendants do not
identify which actions by whom are entitled to immunity, but Plaintiffs make some
initial observations. With respect to the Individual Defendants’ “budgetary”
argument, Plaintiffs’ claims do not challenge any budget-making process or any
failure to approve a budget that Plaintiffs prefer. Plaintiffs challenge the Individual
Defendants’ implementation of a postage requirement. The budget may be
DeKalb’s excuse, but it is not the specific action being challenged, and whether
10 This Court should also reject any potential argument by DeKalb that the Amended Complaint lacks the specificity the Individual Defendants need to establish legislative immunity. That is because “Plaintiffs are not required to negate an affirmative defense in their complaint.” La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal alterations omitted). The proper thing to do in that scenario is to deny the motion to dismiss and let discovery play out. See, e.g., Brison v. Tester, No. 94-2256, 1994 U.S. Dist. LEXIS 18193, at *8586 (E.D. Pa. 1994) (denying legislative immunity on motion to dismiss posture where “there are, at present, no allegations as to the procedures used by the Board of Commissioners to enact the funding in question. . . . Because there are insufficient facts contained in the amended complaint to ascertain whether the acts complained of were procedurally as well as substantively legislative, . . . the court will not grant the individual Commissioners’ motion to dismiss at this time.”). Moreover, there is no heightened pleading standard, e.g., Fed. R. Civ. P. 9(b), DeKalb has not filed any motion for a more definite statement, Fed. R. Civ. P. 12(e), and DeKalb has not alleged a failure to state a claim under Fed. R. Civ. P. 12(b)(6) on grounds other than federalism. Doc. 80 at 14.
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budgetary needs can sometimes justify charging voters money is a separate question on the merits. Thus, this case is unlike Bryant, upon which the Individual Defendants rely. In Bryant, the plaintiff directly challenged a defendant’s “crafting [of] the 2004 budget,” because it was allegedly an “artifice for what was in fact a retaliatory personnel decision.” Bryant, 575 F.3d at 1281. The Eleventh Circuit found that irrelevant, because at the end of the day, the plaintiff was directly challenging the formation of the budget, which was legislative in nature. Id. at 1306.
The reverse is true here. The Amended Complaint does not challenge any Individual Defendant’s budgetary decision as a cover for challenging an unconstitutional act. Nor do Plaintiffs allege that it was any Individual Defendant’s budgetary decision that caused the postage requirement in the first place. Instead, Plaintiffs are directly challenging the Individual Defendants’ implementation of the unconstitutional act itself.
As far as “policymaking,” the Individual Defendants’ unelaborated argument fails to demonstrate that the postage requirement is purely a result of their own “policymaking.” Indeed, in a prior brief, it was unequivocally asserted that DeKalb’s imposition of a postage requirement is required by state law. Doc. 50 at 4 (referencing “DeKalb VRE’s procedures for prepaid postage required under
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O.C.G.A. §§ 21-2-233(b) and 21-2-234(c).”); Doc. 50-1 at ¶ 23. They also argue the state has a “high degree of control” over this process. Doc. 80 at 6. Under their own theory then, the postage requirement is more akin to a “mere administrative application of existing policies,” here the state’s policies, rather than the creation of new policy. Crymes, 923 F.2d at 1485; see also Curling v. Kemp, 761 Fed.Appx. 927, 934 (11th Cir. Feb. 7, 2019) (no legislative immunity in voting case where plaintiffs challenged defendants’ “implementation and execution of a state law and policy”). Even putting aside DeKalb’s contradictory arguments, the evidence so far generally points to both the state and the county in terms of responsibility, see supra Part I.B., so discovery should play out to sharpen just who is responsible for what before assessing legislative immunity. DeKalb’s conclusory argument fails to satisfy their burden of demonstrating an entitlement to legislative immunity against this evidentiary backdrop and their own arguments made elsewhere.
For these reasons, legislative immunity should be denied at this stage. III. PLAINTIFFS HAVE STANDING11
DeKalb argues that Plaintiffs Black Voters Matter Fund (“BVM”) and Megan Gordon allegedly lack standing because there is no injury-in-fact or
11 DeKalb’s arguments incorporate the standing and federalism arguments made by the Secretary. Doc. 80 at 9 n.3; at 14 (citing to Doc. 67-1). Plaintiffs also
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traceability to DeKalb. DeKalb’s motion appears to be a “facial” attack. “Facial attacks” require the court “‘merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for purposes of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citations omitted).
A. Plaintiffs Have Suffered an Injury-in-Fact First, DeKalb argues that that the allegation about BVM’s injury (Doc. 88 at ¶ 13) is a “conclusory allegation” that “fails to specify how such activities are different from BVMF’s regular activities,” citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). But Iqbal faulted the plaintiffs for providing a “formulaic recitation of the elements” and a conclusory allegation that the defendant’s actions satisfied those elements. Id. Here, Plaintiffs specifically allege that BVM must divert resources from one thing, “efforts to facilitate voting by mail,” such as helping voters understand how to vote by mail—and towards another thing, “making sure that voters know about the postage requirement and how to obtain it especially for
incorporate their responses to the Secretary’s standing and federalism arguments, Doc. 84 at 21-34; Doc. 91, including the standing arguments made in the reply brief filed in connection with the now-denied emergency motion for a preliminary injunction, Doc. 98 at 1-11.
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those with less resources.” See also Doc. 84 at 26-27. If Plaintiffs had merely alleged that “Defendants’ actions cause BVM to divert its resources,” that might be the kind of conclusory pleading rejected by Iqbal. Here, Plaintiffs explains how BVM would divert its resources.12
DeKalb fails to point to a single case that has demanded more detail. Indeed, in Arcia v. Florida Secretary of State, 772 F.3d 1335, 1341-42 (11th Cir. 2014), on which DeKalb relies, the Eleventh Circuit found organizational standing based solely on “affidavits showing [the organizations] have missions that include voter registration and education . . . , and that they had diverted resources to address the Secretary’s programs,” and followed up with potentially disenfranchised voters. Similarly, in Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009), the Eleventh Circuit found that NAACP had standing simply because the NAACP testified: that it “is involved in voter registration, mobilization, and education”; that it “uses [its] resources to maximize the ability to mobilize voters and educate
12 To be sure, “efforts to facilitate voting by mail” might be read technically to include “making sure that voters know about the postage requirement and how to obtain it.” But the pleading plausibly establishes that BVM would divert resources from efforts to facilitate voting by mail that do not have to do with postage, towards efforts that do. Should this Court dismiss BVM’s claims on this basis, Plaintiffs respectfully request leave to amend to make this clearer by, for instance, incorporating BVM’s later testimony which fleshes this out. See, e.g., Doc. 75 at 113:24-115:10; Doc. 77.
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voters and register voters”; and that the challenged statute would require the NAACP to “divert volunteers and resources from ‘getting [voters] to the polls.’” Id. at 1350. And this was after a trial. BVM’s allegations match this level of specificity, and that is sufficient at this early stage of litigation.
Second, DeKalb conclusorily argues that any alleged harm is not “actual or imminent.” But the pleading alleges that BVM is diverting resources now, which is particularly plausible with the June elections coming around the corner. The allegations are all in present tense. DeKalb’s argument largely echoes the Secretary’s ripeness arguments, which relies on Georgia Shift v. Gwinnett Cty., No. 1:19-cv-01135-AT, 2020 WL 864938 at *2 (N.D. Ga. Feb. 12, 2020). Doc. 671 at 17-21. Plaintiffs thus incorporate their response by reference, which also distinguishes Georgia Shift. Doc. 84 at 29-34.
In addition, DeKalb cites a trio of Supreme Court cases: Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992); Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); and Clapper v. Amnesty Int’l USA, 568 U.S. 398, 407 (2013). Doc. 80 at 11-12. But DeKalb’s mere citations do not explain how Plaintiffs’ allegations resemble the ones found wanting in those cases. In any event, each of those cases is distinguishable because BVM has pled that they are being injured right now because the postage requirement is being imposed right now.
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In Lujan, a member of the organizational plaintiff said that she may go to Sri Lanka “I don’t know when,” “not next year,” but sometime “[i]n the future.” Lujan, 504 U.S. at 564. But here, BVM is in Georgia right now, the postage requirement is in effect right now in Georgia, and so BVM is being injured right now.
In Whitmore, the third party asserting standing relied on a chain of if-then statements to reach injury. Whitmore, 495 U.S. at 158. But here, BVM does not allege that it will suffer injury “if” the government imposes a postage requirement; there are no “ifs” because the postage requirement has already been imposed.
The plaintiffs in Clapper v. Amnesty Int’l USA, 568 U.S. 398, 407 (2013) asserted that they have standing because their present injuries are in response to a “fear” of governmental harm in the indefinite future. Id. at 407-10. Here, BVM is not relying on “fear,” whether “highly speculative” or “objectively reasonable,” that a “highly attenuated chain of possibilities” will result in the government imposing a postage requirement in the indefinite future. Id. at 410. Instead, we are at the end of the chain. According to the pleadings, the postage requirement exists now and is causing BVM injury now.
Third, DeKalb argues that BVM lacks standing as to DeKalb because BVM is “particularly active in the rural Black Belt of Georgia.” Doc. 80 at 11-12. But
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just because BVM is active in the Black Belt does not mean BVM’s diversion of resources is not impacted by DeKalb’s implementation of a postage requirement, or that BVM operates only in the Black Belt. Because this is a facial attack on standing, this Court should “‘merely [] look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction,’” and the “‘allegations in his complaint are taken as true.’” McElmurray, 501 F.3d at 1251 (citation omitted). Here, Plaintiffs allege that BVM focuses on “communities of color” and that BVM “focuses on removing” “barriers to voting that other communities do not [face].” Doc. 88 at ¶ 13. Because DeKalb is enacting a postage requirement and “communities of color” obviously exist in DeKalb, BVM’s allegations suffice to establish standing at this stage. These allegations are not inconsistent with the possibility, for instance, that BVM is an integrated part of a statewide network whose activities shape BVM’s allocation of resources, or that BVM’s voter education efforts are sometimes tailored to reach statewide, which is more expensive than local advertising, given that the postage requirement is widespread.
Lastly, DeKalb argues that Defendant Gordon lacks standing essentially because the postage requirement has not made it impossible for her to vote. Doc. 80 at 11. But it is well established that neither Anderson-Burdick nor the TwentyFourth Amendment require a showing of impossibility. See Frank v. Walker, 819
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F.3d 384, 386-87 (7th Cir. 2016) (Anderson-Burdick claim viable when voter cannot vote “with reasonable effort”); Harman v. Forssenius, 380 U.S. 528, 538, 541 (1965) (unconstitutional not just to deny, but also to “abridge” the right to vote for failure to pay a poll tax).
Though DeKalb does not explicitly rely on Jacobson v. Fla. Sec’y of State, 957 F.3d 1193 (11th Cir. 2020) to argue that BVM’s standing is allegedly lacking (other than associational standing, which BVM does not claim), Jacobson does not prohibit a finding that Plaintiffs have standing for the reasons set forth in a prior brief, Doc. 98 at 1-11, which Plaintiffs incorporate by reference.
B. Plaintiffs Have Established Traceability Finally, DeKalb argues that Plaintiffs’ alleged injuries are supposedly not traceable to DeKalb’s conduct. But for the reasons set forth supra Part III.A. and Part I.B., the allegations establish that Plaintiffs’ injuries are current and are traceable at least in part to DeKalb. DeKalb argues, without any elaboration, that Plaintiffs’ injuries are “self-inflicted.” Doc. 80 at 13 (citing Clapper, 568 U.S. at 416). But Clapper’s characterization of the plaintiffs’ alleged harms as “selfinflicted” was a summary encapsulation of its holding that present injuries resulting from speculative fears do not establish standing. And for the reasons set forth supra Part III.A., Plaintiffs are not like the plaintiffs in Clapper.
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DeKalb then argues that the U.S. Postal Service is the real party imposing the postage requirement. The Secretary made the same argument, Doc. 51 at 16, 19; Doc. 67-1 at 13, and Plaintiffs incorporate their response by reference, Doc. 57 at 10-11; Doc. 84 at 14-15. At the risk of wearing out a tired analogy, DeKalb’s argument is like the government requiring vehicle deeds to vote, then blaming car dealerships for not giving out free cars.
CONCLUSION For the above reasons, DeKalb’s motion to dismiss the amended complaint should be denied. The tension within DeKalb’s own arguments about who is responsible for the postage requirement only illustrates why discovery is needed. Should this Court grant any part of DeKalb’s motion to dismiss, Plaintiffs respectfully request leave to file a second amended complaint.
Respectfully submitted this 26th day of May, 2020. Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin
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Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
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Case 1:20-cv-01489-AT Document 107 Filed 05/26/20 Page 36 of 36
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on the aforementioned date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
36

 
 Case 1:20-cv-01489-AT Document 108 Filed 05/26/20 Page 1 of 4

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

BLACK VOTERS MATTER FUND, MEGAN GORDON, PENELOPE

) ) )

REID, and ANDY KIM, on behalf of themselves and all others similarly

) ) )

situated,

) Civil Action No.: 20-cv-1489-AT

)

)

Plaintiffs,

)

)

vs.

) )

)

BRAD RAFFENSPERGER, in his

) )

official capacity as Secretary of State of )

Georgia; DEKALB COUNTY BOARD OF REGISTRATION & ELECTIONS;

) ) )

ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH,

) ) )

SAMUEL E. TILLMAN, and BAOKY )

N. VU, in their official capacities as

) )

Members of the DeKalb County Board )

of Registration & Elections; HAMILTON, in her official

acnapdaEciRtyICaAs )))

Director of Voter Registration and )

Elections, and all others similarly

) )

situated,

)

)

)

Defendants.

)

)

STIPULATION OF VOLUNTARY DISMISSAL OF PLAINTIFF ANDY KIM

1

Case 1:20-cv-01489-AT Document 108 Filed 05/26/20 Page 2 of 4
Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure,
undersigned counsel for Plaintiffs and Defendants hereby stipulate to the voluntary
dismissal without prejudice of Plaintiff Andy Kim as a party in the above-
captioned action.
Respectfully submitted this 26th day of May, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org
Attorneys for Plaintiffs
Consented to by:
/s/ Vincent R. Russo Vincent R. Russo Georgia Bar No. 242628 vrusso@robbinsfirm.com
2

Case 1:20-cv-01489-AT Document 108 Filed 05/26/20 Page 3 of 4
Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, Georgia 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250 Counsel for Secretary of State Brad Raffensperger /s/ Irene B. Vander Els Irene B. Vander Els Assistant County Attorney Georgia Bar No. 033663 DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011 Counsel for DeKalb County Board of Registration and Elections, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton
3

Case 1:20-cv-01489-AT Document 108 Filed 05/26/20 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on the aforementioned date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
4

 
 Case 1:20-cv-01489-AT Document 110 Filed 05/31/20 Page 1 of 4

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

BLACK VOTERS MATTER FUND, MEGAN GORDON and PENELOPE

) ) )

REID, on behalf of themselves and all )

others similarly situated,

) )

) Civil Action No.: 20-cv-1489-AT

Plaintiffs,

) )

)

vs.

) )

)

BRAD RAFFENSPERGER, in his )

official

capacity

as

Secretary

of

State

of

) )

Georgia; DEKALB COUNTY BOARD )

OF REGISTRATION & ELECTIONS; ANTHONY LEWIS, SUSAN

) ) )

MOTTER, DELE LOWMAN SMITH, SAMUEL E. TILLMAN, and BAOKY

) ) )

N. VU, in their official capacities as )

Members of the DeKalb County Board

) )

of Registration & Elections; and ERICA)

HAMILTON, in her official capacity Director of Voter Registration and

as

) ) )

Elections, and all others similarly

)

situated,

) )

)

Defendants.

) )

)

)

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

1

Case 1:20-cv-01489-AT Document 110 Filed 05/31/20 Page 2 of 4
Plaintiffs move for certification of the proposed classes listed below:
(1) A defendant class, pursuant to Rule 23(b)(1)(A) or (b)(1)(B), of “all Georgia boards of registrars, their members, their election directors, county registrars, and municipal absentee ballot clerks,” represented by Defendants DeKalb Board of Registration & Elections, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton,1 and their counsel, with respect to all of Plaintiffs’ claims (both facial and as-applied);
(2) A plaintiff class, pursuant to Rule 23(b)(2), (b)(1)(A), or (b)(1)(B), of “all registered Georgia voters,” represented by Plaintiffs Megan Gordon and Penelope Reid and Plaintiffs’ counsel, with respect to Plaintiffs’ facial claims, and with respect to Plaintiffs’ as-applied claims during the pandemic;
(3) A plaintiff subclass, pursuant to Rule 23(b)(2), (b)(1)(A), or (b)(1)(B), of “all registered Georgia voters who satisfy one of the COVID-19 risk factors identified by the Center for Disease Control (“CDC”),” see
1 The law permits for each county to designate a person or entity, which handles, among other things, registration and absentee voting, O.C.G.A. §§ 21-2-212, 21-2384. This designee can be a “board of registrars” or “county registrar.” See id. This brief uses the term “board of registrars” and their “members” to include each of these analogous entities and persons. In addition, the law requires municipalities to appoint an “absentee ballot clerk” with the same responsibilities as county registrars. O.C.G.A. § 21-2-380.1. The law provides separately for an “election superintendent” or “board of elections” which handles, among other things, Election Day voting and not absentee voting. See O.C.G.A. §§ 21-2-70; 21-240(a). For efficiency, many counties like DeKalb merge these entities into a “Board of Registration & Elections” or some other variant of that name, as state law allows, see O.C.G.A. § 21-2-40(b), so the term “board of registrars” used here includes such combined entities. In addition, counties have a top employee in charge of these operations which also go by various titles, and in DeKalb, that is Defendant Erica Hamilton, the Director of Voter Registration and Elections. The term “election director” used here refers to the analogous employee in other counties.
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Case 1:20-cv-01489-AT Document 110 Filed 05/31/20 Page 3 of 4
Exhibit E, represented by Plaintiff Reid and Plaintiffs’ counsel, with respect to both of Plaintiffs’ as-applied claims during the pandemic.
These classes should be certified for the reasons set forth in the
accompanying brief. In short, class certification could help prevent hundreds if not
thousands of separate lawsuits against 159 different counties, all raising identical
legal issues that can otherwise be resolved in one stroke. It would also help ensure
that separate conflicting adjudications on the same issue do not result in conflicting
standards throughout Georgia.
Respectfully submitted this 31st day of May, 2020.
Sean J. Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org
Attorneys for Plaintiffs
3

Case 1:20-cv-01489-AT Document 110 Filed 05/31/20 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on the above mentioned date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
4

Case 1:20-cv-01489-AT Document 110-1 Filed 05/31/20 Page 1 of 27

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

BLACK VOTERS MATTER FUND, MEGAN GORDON and PENELOPE

) ) )

REID, on behalf of themselves and all )

others similarly situated,

) )

) Civil Action No.: 20-cv-1489-AT

Plaintiffs,

) )

)

vs.

) )

)

BRAD RAFFENSPERGER, in his )

official

capacity

as

Secretary

of

State

of

) )

Georgia; DEKALB COUNTY BOARD )

OF REGISTRATION & ELECTIONS; ANTHONY LEWIS, SUSAN

) ) )

MOTTER, DELE LOWMAN SMITH, SAMUEL E. TILLMAN, and BAOKY

) ) )

N. VU, in their official capacities as )

Members of the DeKalb County Board

) )

of Registration & Elections; and ERICA)

HAMILTON, in her official capacity Director of Voter Registration and

as

) ) )

Elections, and all others similarly

)

situated,

) )

)

Defendants.

) )

)

)

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

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Case 1:20-cv-01489-AT Document 110-1 Filed 05/31/20 Page 2 of 27
SUMMARY Plaintiffs’ move for certification of a defendant class of county elections officials, a plaintiff class of all Georgia registered voters, and a plaintiff subclass of registered voters who are particularly susceptible to COVID-19, as defined below. Plaintiffs seek certification of a defendant class of county elections officials because the Defendant Secretary of State argues, erroneously and contrary to evidence, that the Secretary has nothing to do with the postage requirement so this lawsuit should only be brought against the counties. Doc. 97 at 9-11. If this Court were to agree with the Secretary’s argument, and it should not, Doc. 98 at 9-11, then the only remaining defendant would be the DeKalb Defendants. Under those circumstances, Plaintiffs would potentially have to bring 158 identical lawsuits against 158 other counties to completely ensure that relief is provided statewide. A defendant class would prevent that scenario. As for Plaintiffs’ request for certification of a plaintiff class and subclass, this Court is well aware that Plaintiffs have maintained that certifying voter classes is not necessary to obtain effective relief. Doc. 1 ¶ 37. That is because broad relief can be granted even if the only basis for standing were the organizational standing of a nonprofit like Plaintiff Black Voters Matter Fund (“BVM”). See, e.g., Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1259-60
2

Case 1:20-cv-01489-AT Document 110-1 Filed 05/31/20 Page 3 of 27
(11th Cir. 2012); Martin v. Kemp, 341 F. Supp. 2d 1326 (N.D. Ga. 2018). Notably, Defendants have never disputed this. Nonetheless, some voting rights cases have sought broad relief solely on the basis of voter classes. See, e.g., Harman v. Forssenius, 380 U.S. 528, 532-33 (1965); Roe v. State of Ala., 68 F.3d 404 (11th Cir. 1995); Frank v. Walker, 819 F.3d 384, 385-87 (7th Cir. 2016). An appeals court might later rule, incorrectly, that only voter classes have standing to seek broad relief and that Plaintiffs should have sought certification. Plaintiffs prefer not to take that chance. Plaintiffs make their class certification request now in light of the 90-day deadline. N.D. Ga. Local Civil Rule 23.1(B).
First, Plaintiffs move to certify, under Rule 23(b)(1)(A) or (b)(1)(B), a defendant class represented by Defendants DeKalb Board of Registration & Elections, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton (hereinafter “DeKalb”). The proposed defendant class is defined as “all Georgia boards of registrars, their members, their election directors, county registrars, and municipal absentee ballot clerks” (together, “BOR” or “county election officials”).1 DeKalb’s counsel would be appointed as
1 The law permits for each county to designate a person or entity, which handles, among other things, registration and absentee voting, O.C.G.A. §§ 21-2-212, 21-2384. This designee can be a “board of registrars” or “county registrar.” See id. In addition, the law requires municipalities to appoint an “absentee ballot clerk” with
3

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defendant class counsel, and the class would pertain to all of Plaintiffs’ claims (both facial and as-applied poll tax and Anderson-Burdick claims). See Part I.
Second, Plaintiffs move to certify, under Rule 23(b)(2), (b)(1)(A), or (b)(1)(B), a plaintiff class represented by Plaintiffs Megan Gordon and Penelope Reid (together, “Individual Plaintiffs”) of all registered Georgia voters (“Voter Class”), all of whom are required to affix postage to vote by mail. Certifying this class would allow Plaintiffs’ facial claims to be resolved in one stroke. Certifying this class would also allow Plaintiffs’ as-applied claims during the COVID-19 crisis to be resolved in one stroke since everyone is at material risk of contracting (or spreading) the virus if they go outside. Plaintiffs’ counsel would be appointed as plaintiff class counsel, and the class would pertain to both of Plaintiffs’ facial claims, and both of Plaintiffs’ as-applied claims during the pandemic. See Part II.
the same responsibilities. O.C.G.A. § 21-2-380.1. The law provides separately for an “election superintendent” or “board of elections” which handles, among other things, Election Day voting. See O.C.G.A. §§ 21-2-70; 21-2-40(a). Many counties like DeKalb merge these entities into a “Board of Registration & Elections” or some other variant of that name, as state law allows, see O.C.G.A. § 21-2-40(b), so the term “board of registrars” used here includes such combined entities. The term “election director” refers to the top employee in charge of these operations which also go by various titles, and in DeKalb, that is Defendant Erica Hamilton, the Director of Voter Registration and Elections.
4

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Third, Plaintiffs move to certify, under Rule 23(b)(2), (b)(1)(A), or (b)(1)(B), a plaintiff subclass (“Voter Subclass”), represented by Plaintiff Reid, of all registered Georgia voters who are particularly susceptible to COVID-19. Specifically, the proposed subclass is defined as “Georgia registered voters who satisfy one of the COVID-19 risk factors identified by the Center for Disease Control (“CDC”).” See Exhibit E. As noted above, Plaintiffs’ as-applied claims cover everyone in the Voter Class during the COVID-19 pandemic, but Plaintiffs propose this subclass should this Court believe that only some but not all voters are entitled to injunctive relief during the pandemic. Plaintiffs do not waive the right to seek modification of any subclass if the pandemic lifts during this litigation. See, e.g., Local 703, I.B. v. Regions Financial Corp., 762 F.3d 1248, 1260 n.8 (11th Cir. 2014) (classes can change with new circumstances). Plaintiffs’ counsel would be appointed as counsel for the plaintiff subclass, and the subclass would pertain solely to Plaintiffs’ as-applied poll tax and Anderson-Burdick claims during the pandemic. See Part III.
For the reasons below, each of these proposed classes satisfy the standards for class certification outlined in Rule 23 of the Federal Rules of Civil Procedure. Should this Court deem class certification necessary to grant any preliminary injunctive relief, this Court can grant class certification solely for preliminary
5

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injunction purposes. See, e.g., Clean-Up ’84 v. Heinrich, 582 F. Supp. 125, 127 (M.D. Fla. 1984) (certifying class in voting case “for the narrow purpose of effectuating the preliminary injunction”).2 Classes certified now can also be decertified later if changed circumstances so warrant. Fed. R. Civ. P. 23(c)(1)(C).
ARGUMENT I. THE BOR DEFENDANT CLASS QUALIFIES FOR CLASS
CERTIFICATION The proposed BOR Class consists of all Georgia county elections officials. Defendant classes of county election officials have been certified in election cases before, and the same is warranted here. See e.g., Nat’l Broadcasting Co., Inc. v. Cleland, 697 F. Supp. 1204, 1216 (N.D. Ga. 1988) (certifying defendant class of 159 election superintendents throughout Georgia in polling place case); Kane v. Fortson, 369 F. Supp. 1342, 1343 (N.D. Ga. 1973) (certifying defendant class of “all members of Boards of Registrars throughout Georgia” in voter registration case for settlement purposes); CBS Inc. v. Smith, 681 F. Supp. 794, 801-02 (S.D. Fla. 1988) (certifying a “Defendant class of Supervisors of Elections for each of the 67 counties in Florida” in polling place case); Harris v. Graddick, 593 F. Supp.
2 If that is the case, Plaintiffs request an expedited briefing schedule that would give Defendants at most 14 days to respond and Plaintiffs 7 days to file a reply.
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128, 132, 137 (M.D. Ala. 1984) (certifying defendant class of election officials from each county responsible for appointment of poll workers in that county).
A. The BOR Class satisfies Rule 23(a)’s requirements Rule 23(a) of the Federal Rules of Civil Procedure provides that the proposed class must satisfy the following criteria: (1) numerosity, in that the “class is so numerous that joinder of all members is impracticable”; (2) commonality, that “there are questions of law or fact common to the class”; (3) typicality, whether the proposed class representative’s claims or defenses “are typical of the claims or defenses of the [proposed] class”; and (4) adequacy, that the “representative parties will fairly and adequately protect the interests of the [proposed] class.” Numerosity. The BOR Class is so numerous that joinder is impracticable. Here, it is impracticable to join county elections officials from 158 other counties dispersed throughout the state. See, e.g., Nat’l Broadcasting Co., Inc., 697 F. Supp. at 1216 (certifying class of 159 election superintendents partly on this basis). Commonality. Plaintiffs’ claims against all county elections officials raise the same legal question: Is the postage requirement an unconstitutional poll tax, or an unconstitutional burden on the right to vote under Anderson-Burdick? See, e.g., Nat’l Broadcasting Co., 697 F. Supp. at 1216 (certifying defendant class of elections officials because plaintiffs raise “one significant question of law” that “is
7

Case 1:20-cv-01489-AT Document 110-1 Filed 05/31/20 Page 8 of 27
common to the entire defendant class”). Adjudicating this legal question in this case would resolve the constitutionality of the postage requirement in all 159 counties “in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); see, e.g., Strawser v. Strange, 307 F.R.D. 604, 612 (S.D. Ala. 2015) (“The question common to the entire Defendant Class is whether their enforcement of Alabama’s laws barring same-sex couples from marriage violates [the Constitution]. The resolution of this question will resolve the claims against all [] members of the class in one stroke.”). As discussed further infra Part II.A., the claims by different voters against different counties are identical for Plaintiffs’ facial claims, as well as for Plaintiffs’ as-applied claims during the pandemic.
Typicality. For similar reasons, the defenses of DeKalb will be typical of the defenses of the other county elections officials. The county elections officials “all operate under the same statutory framework.” Strawser, 307 F.R.D. at 613. Their common defenses “arise from the same course of events,” which is the postage requirement. Id.; see also Wells v. HBO & Co., No. 1:87-CV-657-JTC, 1991 WL 131177, at *4 (N.D. Ga. Apr. 24, 1991) (typicality satisfied when claims “arise[] from the same events or course of conduct . . . and is based on the same legal theory”). Thus, the core defense raised by DeKalb would be the same as for any county’s BOR, namely that a postage requirement is not unconstitutional. See
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Strawser, 307 F.R.D. at 613 (defendant class satisfied typicality where “each class member may make the same legal arguments” advanced by defendant representatives “to defend against the Plaintiffs’ allegations.”); Harris, 593 F. Supp. at 137 (“the claim of diminished black voter access to the polls due to underrepresentation of black poll officials is based on state-wide circumstances. Thus, any defenses to the claim would be state-wide, and would be common and typical for all members of the [defendant] class” of elections officials).
Adequacy. DeKalb will fairly and adequately protect the interests of the BOR Class. Adequacy boils down to two inquiries: “(1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted). There is no substantial conflict between DeKalb and the elections officials of other counties, because all have “the same duties and responsibilities as all other county [registrars]” under state law. Nat’l Broadcasting Co., 697 F. Supp. at 1217.
DeKalb’s counsel is also more than “adequate.” The office has extensive experience defending the county in voting rights cases brought in federal court, including before the Eleventh Circuit. See, e.g., Swann v. Secretary, Georgia, 668 F.3d 1285 (11th Cir. 2012); Scott v. Taylor, 405 F.3d 1251 (11th Cir. 2005).
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Indeed, they successfully defended the county in a voting rights suit earlier this year. See Georgia Shift v. Gwinnett Cnty., No. 1:19-cv-01135, 2020 WL 864938 (N.D. Ga. Feb. 12, 2020). They also have greater resources than most other counties because they represent one of the most populous counties in Georgia.
For the above reasons, the BOR Class satisfies the Rule 23(a) requirements. B. The BOR Class qualifies as a Rule 23(b)(1)(A) or (b)(1)(B) class After satisfying Rule 23(a)’s requirements, the class must also fall into one of the following types of class actions set out in Rule 23(b). As discussed below, the defendant class qualifies as a Rule 23(b)(1)(A) or (b)(1)(B) class. Rule 23(b)(1)(A) class. A Rule 23(b)(1)(A) defendant class is certifiable when “prosecuting separate actions . . . against individual class members would create a risk of” “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” As the Supreme Court has explained, (b)(1)(A) certification is generally suitable “in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). In addition, such a class only applies to cases, like this one, that seeks declaratory and injunctive relief and not
10

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compensatory damages. See In re Dennis Greenman Secs. Litig., 829 F.2d 1539, 1545 (11th Cir. 1987). Here, separate adjudications as to different counties creates a risk of incompatible standards that would apply to different voters (i.e., members of the Voter Class or Voter Subclass) across the state, as well as to BVM.
First, separate adjudications against different counties create a risk that conflicting court orders would require the Secretary to take conflicting actions that impact all 159 counties, including those not parties to any litigation. For instance, here Plaintiffs are requesting an injunction that would require the Secretary to issue guidance to all counties informing them that the Constitution prohibits postage requirements.3 The counties, in turn, generally follow the Secretary’s guidance, Doc. 2 at 2; Doc. 88 ¶¶ 19, 53, a proposition no Defendant has disputed. Because the Secretary is a likely party in any lawsuit challenging the postage requirement, multiple separate lawsuits against different counties could require the Secretary to issue conflicting guidance which all counties will struggle to follow.
Second, even if courts do not require the Secretary to do anything and only the county defendant is enjoined from imposing a postage requirement, the Secretary is still likely to issue uniform guidance to all counties in response to an
3 Plaintiffs do not waive the right to seek different or additional relief from the Secretary should the evidence revealed in discovery compel Plaintiffs to do so.
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adjudication against one county. The State Election Board, of which the Secretary is the Chair, has a general legal obligation to ensure uniformity in election practices throughout the state. See Ga. Op. Att’y Gen. No. 05-3, 2005 WL 897337, at *4-6 (Apr. 15, 2005); O.C.G.A. § 21-2-31(1). Issuing uniform guidance also serves the Secretary’s interest in minimizing confusion for both voters and elections officials. See Green Party of Ga. v. Kemp, 171 F. Supp. 3d 1340, 1365 (N.D. Ga. 2016) (the “Supreme Court and the Eleventh Circuit have consistently recognized that limiting voter confusion is an important state interest”); cf., e.g., Kane, 369 F. Supp. at 1343 (Secretary and Dougherty County election officials agreeing to defendant class certification and statewide relief after a temporary restraining order was entered only as to a single voter). If a lawsuit against one county succeeds while a different lawsuit against another county fails, the need for uniformity would trap the Secretary into a bind, potentially resulting in incompatible standards throughout the state.
Furthermore, the Secretary has already issued guidance for postage and other absentee ballot issues, see Docs. 2-4; 54-3,4 so “as a matter of practical necessity,” Amchem, 521 U.S. at 614, the Secretary will have to say something about whether
4 “[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Wal-Mart, 564 U.S. at 350.
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a ruling striking down the postage requirement in one county means that prior guidance to all counties is wrong. Adding to the pressure, many non-party counties would likely seek guidance from the Secretary on whether their postage requirement comports with the Constitution when they hear about a court ruling against another county. Such counties do not want to be sued and they want a ready answer when their voters ask them the same question.
For these reasons, this Court should certify the BOR Class pursuant to Rule 23(b)(1)(A). See, e.g., Nat’l Broadcasting Co., 697 F. Supp. at 1217 (certifying (b)(1)(A) class, concluding, “There are 159 county [boards of registrars] in Georgia and prosecution of separate actions against individual members of the defendant class would create a serious risk of inconsistent or varied adjudications with respect to individual members of the class and would establish incompatible standards of conduct for plaintiffs.”); CBS Inc., 681 F. Supp. at 802 (certifying class of 67 county elections officials under (b)(1)(A)).
Rule 23(b)(1)(B) class. A Rule 23(b)(1)(B) defendant class is certifiable when “prosecuting separate actions . . . against individual class members would create a risk of” “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of [non-party class members] or substantially impair or impede their ability to protect their interests.”
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There is a risk that separate adjudications against different counties would, “as a practical matter, . . . be dispositive” of the non-party counties’ interests because, as noted above, the Secretary is generally obliged, at least “as a practical matter,” to issue uniform guidance to all counties. See Eslava v. Gulf Telephone Co., No. 04-00297-KD-B, 2007 WL 2298222, at *6 (S.D. Ala. Aug. 7, 2007) (even if relief as to one member does not “technically conclud[e] the other members” of the class, it “might do so as a practical matter” under Rule 23(b)(1)(B) (citing decisions quoting Rule 23 advisory note)). Thus, “were this Court to find that the [Constitution] requires [DeKalb] to act in a certain fashion,” there is a risk that other counties would be obligated “to act in a similar fashion towards all [voters]— the quintessential (b)(1)(B) scenario.” Z.D. ex rel. J.D. v. Group Health Co-op, No. C11-1119RSL, 2012 WL 1977962, at *7 (W.D. Wash. June 1, 2012).
The BOR Class may also be certified as a Rule 23(b)(1)(B) class for the independent reason that “adjudications with respect to individual class members [would], as a practical matter . . . substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). If evidence or statements from the Secretary are used in this litigation resulting in a judgment against DeKalb, there is a “risk” that the same evidence or statements from the Secretary could be used to prejudice the counties in any separate postage-related litigation,
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substantially impairing or impeding their ability to protect their interests. See Resolution Trust Corp. v. KMPG Peat Marwick, Civ. A. No. 92-1373, 1992 WL 245705, at *2 (E.D. Pa. Sept. 23, 1992) (certifying (b)(1)(B) class because harmful statements made in litigation for one defendant could be used against other class members in separate litigation). An injunction against one county may also presumptively tilt the public interest factor in favor of enjoining the postage requirement in other counties in separate litigation. Cf. Doc. 83 at 8 (need to avoid “a measure of disparity in postage relief as a practical matter, [which] would touch on the Court’s weighing of the public interest factor”).
* * * For these reasons, this Court should certify the BOR Class under Rule 23(b)(1)(A) or (b)(1)(B), appointing DeKalb as class representatives and their counsel as class counsel with respect to all of Plaintiffs’ claims. Doing so would allow for a single definitive ruling to resolve, in one stroke, the postage requirement issue for all counties. II. THE VOTER CLASS, CONSISTING OF ALL VOTERS, QUALIFIES FOR CLASS CERTIFICATION The “Voter Class,” defined as “all registered Georgia voters” and represented by the Individual Plaintiffs, satisfies the requirements of Rule 23(a)
15

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and qualifies for Rule 23(b)(2), (b)(1)(A), or (b)(1)(B) class certification. In sum, certifying the Voter Class could resolve, in one stroke, the facial poll tax and Anderson-Burdick claims of all Georgia registered voters without millions of separate lawsuits. The Voter Class could also resolve Plaintiffs’ as-applied claims in one stroke during the COVID-19 pandemic, since all voters are currently subject to the same risks of contracting COVID-19 when leaving their home to vote or buy postage. See Doc. 84 at 3, 6, 17-18.
A. The Voter Class satisfies Rule 23(a)’s requirements The Voter Class satisfies each of the Rule 23(a) requirements. Numerosity. The Voter Class is so numerous that joinder is impracticable. It is impracticable to join nearly 7 million registered Georgia voters. See Exhibit A. See Cox v. Amer. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (more than 40 members generally sufficient to establish numerosity). Commonality. The Voter Class raises common legal and factual questions that, if answered, would resolve this claim on behalf of every class member “in one stroke.” Wal-Mart, 564 U.S. at 350. Plaintiffs’ claims do not “rise and fall on the specific factual and legal circumstances of . . . individual [voters].” Cox v. Stone Ridge at Vinings, LLC, 1:12-CV-2633-AT, 2014 WL 12663763, at *4 (N.D. Ga. Sept. 30, 2014). Instead, Plaintiffs’ claims rely on the following common facts.
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Everyone in the Voter Class must fulfill Defendants’ requirement for voters to affix postage when voting-by-mail. Everyone must spend money when purchasing postage. Everyone in the Voter Class must have ballots dropped off in person, or vote in person, to avoid using postage. And everyone is subject to a material risk of contracting the COVID-19 virus if they go outside, in contravention of prevailing public health guidance that people confine themselves and practice social distancing.
Given these common facts, the legal questions are also the same. First, certifying a Voter Class allows this court to resolve both of Plaintiffs’ facial claims in one stroke. Plaintiffs’ facial Anderson-Burdick claim argues that requiring everyone in the Voter Class to use postage when voting by mail is never justified by the government’s naked desire to save money, regardless of an individual voter’s circumstances. Doc. 84 at 17. Plaintiffs’ facial poll tax claim asserts that forcing anyone in the Voter Class to choose between buying postage and voting inperson is unconstitutional, regardless of the wealth of any one voter. Id. at 4-6.
Second, certifying the Voter Class also allows this court to resolve Plaintiffs’ as-applied claims in one stroke during the COVID-19 pandemic. Plaintiffs’ as-applied Anderson-Burdick claim focuses on voters who cannot leave their home with reasonable effort, either to vote or get postage. During the
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pandemic, that currently includes everyone in the Voter Class because everyone is at material risk of contracting COVID-19 when they leave their home. Doc. 84 at 17. All members raise the same argument that raw financial interests do not justify exposing voters to COVID-19. Id. at 19-20; see Frank v. Walker, 819 F.3d 384, 385-87 (7th Cir. 2016). Similarly, everyone in the Voter Class raises the same asapplied poll tax abridgment claim, arguing that forcing any voter to expose themselves to COVID-19 if they want to avoid the poll tax imposes a requirement that is at least “material.” Harman v. Forssenius, 380 U.S. 528, 542 (1965).
Typicality. For similar reasons, the Individual Plaintiffs’ claims are typical of the Voter Class, including their facial claims as well as their as-applied claims during this pandemic. See Hudson v. Delta Air lines, Inc., 90 F.3d 451, 456 (11th Cir. 1996) (“Although the issues of commonality and typicality are separate inquiries, proof of each also ‘tend[s] to merge.’” (citation omitted)). Like every other Georgia registered voter, the Individual Plaintiffs are required to affix postage to vote-by-mail, and they expose themselves to the COVID-19 virus if they go outside. Thus, the Individual Plaintiffs’ claims are “typical” because “the claims . . . of the class and the class representative[s] arise from the same event or pattern or practice and are based on the same legal theory.” Williams v. Mohawk Indus., Inc., 568 f.3d 1350, 1357 (11th Cir. 2009).
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Adequacy. The Individual Plaintiffs will fairly and adequately protect the interests of the Voter Class.5 There is no substantial conflict of interest because the Individual Plaintiffs are pursuing the same remedies for themselves that they are seeking for the class. In other words, this is not a damages situation where class representatives may be incentivized to ask for a bigger slice of the pie. See Drayton v. W. Auto Supply Co., No. 01-10415, 2002 WL 32508918, at *6 (11th Cir. Mar. 11, 2002). And as the attached Exhibits B to D demonstrate, Plaintiffs’ counsel are experienced voting rights attorneys.
For the above reasons, the Voter Class satisfies the Rule 23(a) requirements. B. The Voter Class qualifies as a Rule 23(b)(2), (b)(1)(A), or (b)(1)(B)
class Rule 23(b)(2) class. A class is certified under Rule 23(b)(2) when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” As the Supreme Court has recognized, “‘[c]ivil rights cases against parties charged with unlawful, class-based
5 Adequacy also examines whether the named Plaintiffs’ have similar claims to other class members, but that aspect of adequacy overlaps with commonality and typicality, see Wal-Mart, 564 U.S. at 349 n.5, which have been established here.
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discrimination are prime examples’ of what (b)(2) is meant to capture.” Wal-Mart, 564 U.S. at 361 (quoting Amchem, 521 U.S. at 614). This is one of those cases.
Specifically, the Voter Class may be certified as a Rule 23(b)(2) class action because Defendants have “acted . . . on grounds that apply generally to the class” by imposing the postage requirement on all voters. Alternatively, Defendants have “refused to act on grounds that apply generally to the class” by refusing to provide prepaid postage envelopes for all voters.6 Thus, all registered Georgia voters are unconstitutionally forced to choose between voting in-person or buying postage to vote by mail.
Because everyone in the Voter Class is subject to the postage requirement, “final injunctive relief” or “corresponding declaratory relief is appropriate respecting the class as a whole. See, e.g., Strawser, 307 F.R.D. at 614 (“[a]ll Plaintiff Class members have been harmed” in the same way, and “their injury can be properly addressed by class-wide injunctive relief”). A “single injunction or
6 DeKalb, of course, has not imposed a postage requirement on voters outside DeKalb. But the defendant class members have acted or refused to act with all the Voter Class members in their respective counties. See generally, e.g., Strawser, 307 F.R.D. at 614-15 (simultaneously certifying plaintiff class and defendant class across the state where statewide practice was enacted by all counties).
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declaratory judgment” enjoining the imposition of a postage requirement “would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 361.
For all these reasons, (b)(2) certification of all registered voters is warranted, just as it has been done in other voting rights cases. See, e.g., Dillard v. Crewnshaw Cnty., 640 F. Supp. 1347, 1373 (M.D. Ala. 1986) (certifying (b)(2) class of black voters in vote dilution case because county election officials “have acted on grounds generally applicable to all black voters”); Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 426 (5th Cir. 1997) (affirming certification of (b)(2) class of disabled voters because the Secretary of State “acted or refused to act” “on grounds generally applicable to the class” in failing to accommodate them); Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1978) (affirming certification of (b)(2) class of absentee voters because all of their ballots were invalidated).
Rule 23(b)(1)(A) class. The Voter Class may also be certified as a Rule 23(b)(1)(A) class because “prosecuting separate actions by . . . individual class members would create a risk of[] inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). If one DeKalb voter brought a successful lawsuit while another DeKalb voter’s lawsuit fails, DeKalb would face incompatible standards of conduct with respect to its
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voters. Similarly, if one voter brought a successful lawsuit against the Secretary while another’s lawsuit fails, the Secretary would face incompatible standards of conduct as to different voters. In addition, for the reasons set forth supra Part I.B., the Secretary’s conflicting treatment towards different voters will likely spill over into conflicting standards across 159 different counties who look to the Secretary for cues and guidance on what to do. In sum, a “class-wide ruling by this Court would definitively determine the issues as to all of the Plaintiffs’ claims” statewide. See Strawser, 307 F.R.D. at 614 (certifying (b)(1)(A) plaintiff class).
Rule 23(b)(1)(B) class. The Voter Class may also be certified as a Rule 23(b)(1)(B) class because, for the same reasons set forth supra Part I.B., separate actions create a “risk” that “adjudications with respect to” one voter would, “as a practical matter, [] be dispositive of the interests” of other voters.
* * * For these reasons, this Court should certify the Voter Class, appointing the Individual Plaintiffs as class representatives and Plaintiffs’ counsel as class counsel with respect to all of Plaintiffs’ claims. This would allow for a single ruling to resolve, in one stroke, Plaintiffs’ facial claims, as well as Plaintiffs’ as-applied claims during the pandemic.
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III. THE VOTER SUBCLASS, CONSISTING CURRENTLY OF HIGHRISK VOTERS, QUALIFIES FOR CLASS CERTIFICATION As discussed above, certifying the Voter Class should be sufficient to
resolve not only Plaintiffs’ facial claims, but also Plaintiffs’ as-applied claims during the pandemic since all voters are at material risk of contracting COVID-19 if they go outside. However, if this Court were to rule that only voters who are particularly susceptible to COVID-19 should obtain injunctive relief during the pandemic under a narrowed version of Plaintiffs’ as-applied claims, Plaintiffs propose a Voter Subclass of all “Georgia registered voters who satisfy at least one of the COVID-19 risk factors identified by the Center for Disease Control (“CDC”).” See Exhibit E (including anyone 65 years and older, living in a nursing home, or with one of the underlying medical conditions listed on the website).
Certification would be proper pursuant to Rule 23(b)(2), (b)(1)(A), or (b)(1)(B), with Plaintiff Reid as the subclass representative and Plaintiffs’ counsel as class counsel, with respect to Plaintiffs’ as-applied claims.7
7 If the pandemic lifts while this lawsuit is pending, Plaintiffs’ as-applied claims would likely change, and this subclass definition would likely change to capture the as-applied population. See Local 703, I.B. v. Regions Financial Corp., 762 F.3d 1248, 1260 n.8 (11th Cir. 2014) (“if the circumstances have changed since the District Court’s [prior] certification order . . . , the District Court may revisit its initial certification decision”); Fed. R. Civ. P. 23(c)(1)(C); Doc. 88 ¶ 51. For
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A. The Voter Subclass satisfies Rule 23(a)’s requirements Numerosity. Numerosity is satisfied because over tens of thousands of registered Georgia voters are high-risk. In DeKalb County alone, there are 87,914 registered voters age 65 or older.8 Commonality. Commonality is satisfied, because if Plaintiffs’ as-applied claims were narrowed to encompass only those particularly susceptible to COVID19, then each member of the Voter Subclass would have identical as-applied claims that can be resolved in one stroke during the pandemic. Their common asapplied Anderson-Burdick claim would be that any voter at high-risk carries a potentially lethal burden when they leave their home to vote or buy postage during the pandemic, and that such deadly burdens are not justified by the government’s mere budgetary preferences. The as-applied poll tax claim would be similar, arguing that forcing high-risk voters to expose themselves to COVID-19 if they
instance, the subclass could be modified to encompass those like Plaintiff Reid who have difficulty leaving their home even absent the pandemic. 8 This is based on a public Excel file on the Secretary’s website, called “Active Voters by Race and Gender by Age Group (By County with Statewide Totals).” See https://sos.ga.gov/index.php/Elections/voter_registration_statistics. This number is based on the file downloaded on May 30, 2020.
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want to avoid the poll tax imposes a requirement that is “material” (which is an understatement). Harman v. Forssenius, 380 U.S. 528, 542 (1965).
Typicality and Adequacy. Plaintiff Reid’s claims are typical of the subclass. She is 80 years old, Doc. 38, which satisfies at least one of the risk factors identified by the CDC (65 years or older). She and Plaintiffs’ counsel are adequate for the reasons discussed supra Part II.A.
B. The Voter Subclass qualifies as a Rule 23(b)(2), (b)(1)(A), or (b)(1)(B) class
The Voter Subclass can be certified under Rule 23(b)(2), (b)(1)(A), or (b)(1)(B) for largely the same reasons set forth supra Part II.B. The Voter Subclass can be certified as a (b)(2) class because Defendants have acted or refused to act on grounds generally applicable to the Voter Subclass. Namely, they are not making exceptions to the postage requirement for some subclass voters but not other subclass voters, and so any injunctive and declaratory relief should include all members of the Voter Subclass under a narrowed as-applied claim. Certification of the Voter Subclass under (b)(1)(A) and (b)(1)(B) is appropriate, because for the reasons set forth supra Part I.B. and II.B., Defendants must treat all voters alike as a legal or practical matter. Different rulings resulting from separate lawsuits by different Voter Subclass members would create a “risk” that different Voter Subclass members, whether or not they file their own suit, would invariably be
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subject to different standards applied by the Secretary and county elections officials across the state.
CONCLUSION For the above reasons, Plaintiffs’ motion for class certification should be granted. Doing so will help foreclose the possibility of hundreds if not thousands of lawsuits raising identical claims against 159 different counties. Respectfully submitted this 31st day of May, 2020.
Sean J. Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
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CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on the above mentioned date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
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Case 1:20-cv-01489-AT Document 110-2 Filed 05/31/20 Page 1 of 3

HISTORICAL VOTER REGISTRATION STATISTICS STATE OF GEORIGA 1998 TO PRESENT

1998 Primary Election – July 21

Active Inactive TOTAL REGISTERED

3,817,393 295,830
4,113,223

1998 General Election – November 3

Active Inactive TOTAL REGISTERED

3,910,740 281,967
4,192,707

2000 Presidential Preference Primary Election – March 7

Active Inactive TOTAL REGISTERED

3,442,455 940,859
4,383,314

2000 General Primary Election – July 18

Active Inactive TOTAL REGISTERED

3,592,778 881,908
4,474,686

2000 General Election – November 7

Active Inactive TOTAL REGISTERED

3,856,676 791,534
4,648,210

2002 General Primary Election – August 20

Active Inactive TOTAL REGISTERED

3,650,590 791,534
4,442,124

2002 General Primary Election Runoff – September 10

Active Inactive TOTAL REGISTERED

3,650,590 1,016,965 4,667,555

2002 General Election – November 7

Active Inactive TOTAL REGISTERED

3,758,718 967,365
4,726,083

2004 Presidential Preference Primary Election – March 2

Active Inactive TOTAL REGISTERED

3,943,161 642,261
4,585,422

2004 General Primary Election – July 30

Active Inactive TOTAL REGISTERED

3,881,716 816,291
4,698,007

2004 General Election – November 2

Active Inactive TOTAL REGISTERED

4,248,802 703,153
4,951,955

Case 1:20-cv-01489-AT Document 110-2 Filed 05/31/20 Page 2 of 3

2006 General Primary Election – July 18 2006 General Election – November 7 2008 Presidential Preference Primary Election – February 5 2008 General Primary Election – July 15 2008 General Election – November 4 2010 General Primary Election – July 20 2010 General Election – November 2 2012 General Primary Election – July 31 2012 General Election – November 6 2014 General Primary Election – May 20 2014 General Election – November 4

Active Inactive TOTAL REGISTERED

4,265,481 725,784
4,991,265

Active Inactive TOTAL REGISTERED

4,407,118 724,914
5,132,032

Active Inactive TOTAL REGISTERED

4,482,551 754,930
5,237,481

Active Inactive TOTAL REGISTERED

4,741,498 669,469
5,410,967

Active Inactive TOTAL REGISTERED

5,184,912 570,838
5,755,750

Active Inactive TOTAL REGISTERED

4,932,914 792,970
5,725,884

Active Inactive TOTAL REGISTERED

5,033,307 762,229
5,795,536

Active Inactive TOTAL REGISTERED

5,153,758 752,067
5,905,825

Active Inactive TOTAL REGISTERED

5,353,013 713,948
6,066,961

Active Inactive TOTAL REGISTERED

5,047,420 898,235
5,945,655

Active Inactive TOTAL REGISTERED

5,168,664 867,827
6,036,491

Case 1:20-cv-01489-AT Document 110-2 Filed 05/31/20 Page 3 of 3

2016 Presidential Preference Primary Election – March 1 2016 General Primary Election – May 24 2016 General Election – November 8 2018 General Primary Election – May 22 2018 General Election – November 6

Active Inactive TOTAL REGISTERED

4,707,512 1,558,611 6,266,123

Active Inactive TOTAL REGISTERED

4,914,726 1,434,877 6,349,603

Active Inactive TOTAL REGISTERED

5,443,046 1,194,893 6,637,939

Active Inactive TOTAL REGISTERED

6,143,229 551,212
6,694,441

Active Inactive TOTAL REGISTERED

6,428,581 507,235
6,935,816

Case 1:20-cv-01489-AT Document 110-3 Filed 05/31/20 Page 1 of 6

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

)

DECLARATION OF SEAN J. YOUNG I, Sean J. Young, make the following declaration under 28 U.S.C. § 1746. 1. I am the Legal Director of the ACLU of Georgia, where I have worked since 2017, and focus predominantly on voting rights. I was previously a Staff Attorney with the ACLU Voting Rights Project, in New York, from 2013 to 2017, where I focused exclusively on voting rights. 2. I obtained a Bachelor of Science (economics) and Bachelor of Arts (computer science) degree from Duke University in 2002, and a Juris Doctor from Yale Law School in 2006.

1

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3. I have been admitted to the Georgia bar (Georgia Superior Courts and all other lower courts) (2017); the Georgia Court of Appeals (2017); and the Supreme Court of Georgia (2017). I was first admitted to the practice of law in the State of New York in 2007. I have been continuously engaged in the practice of law on a full-time basis since 2007.
4. I am admitted to the following federal courts: U.S. District Courts for the Middle District of Georgia (2017); Southern District of Georgia (2018); and Northern District of Georgia (2017); U.S. Courts of Appeals for the Eleventh Circuit (2017), and the United States Supreme Court (2014). In addition, I am admitted to the First (2016), Sixth (2014), and Seventh (2013) Circuits, as well as the Southern District of New York (2009); Eastern District of New York (2009); and Eastern District of Wisconsin (2013).
5. My work history is as follows: From 2006 to 2007, I was a litigation associate with Hughes, Hubbard & Reed LLP. From 2007 to 2009, I worked as the law clerk for the Honorable Laura Taylor Swain in the U.S. District Court for the Southern District of New York. From 2009 to 2012, I was a litigation associate with Skadden, Arps, Meagher & Flom LLP. For five months from February to July 2012, I worked as a volunteer attorney for the American Civil Liberties Union (“ACLU”). From August 2012 to 2013, I worked as a law clerk for the Honorable Ann Claire Williams in the U.S. Court of Appeals for the Seventh Circuit.
2

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6. From 2013 to 2017, I was a staff attorney (then senior staff attorney) for the ACLU Voting Rights Project. At the ACLU, I litigated exclusively voting rights cases. My work includes being lead counsel and arguing in the second and third appeals before the Seventh Circuit in a challenge to Wisconsin’s voter ID law. The second appeal was successful and resulted in Frank v. Walker, 819 F.3d 384 (7th Cir. 2016), which established for the first time that voters with difficulty obtaining ID may be exempt from a voter ID law notwithstanding the state’s compelling interest in preventing voter fraud; see also 835 F.3d 649 (7th Cir. 2016) (en banc) (reaffirming this principle).
7. I was also lead counsel in Ohio NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014) (holding that Ohio’s early voting cutbacks violated Section 2 of the Voting Rights Act and the Fourteenth Amendment), vacated on other grounds, setting forth a two-part Section 2 vote denial test later adopted by the Fourth Circuit in League of Women Voters of N.C. v. N.C., 769 F.3d 224, 240 (4th Cir. 2014) (citing Husted, striking down early voting cutbacks among other restrictions), and Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016) (en banc) (citing League of Women Voters of N.C. and Husted, striking down Texas’s voter ID law).
8. In addition, on behalf of the Campaign Legal Center, the ACLU, and other organizations, I was a lead drafter of the first half of an amicus brief
3

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submitted to the U.S. Supreme Court in Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015). On behalf of the ACLU and ACLU of Texas, I was the lead drafter of a U.S. Supreme Court amicus brief in Evenwel v. Abbott, 136 S. Ct. 1120 (2016). I was also the lead drafter of a portion of an opposition to certiorari brief submitted to the U.S. Supreme Court, in Husted v. A. Phillip Randolph Institute, 138 S. Ct. 1833 (2018).
7. From 2017 to the present, I have been the legal director of the ACLU of Georgia, where I have predominantly focused on voting rights. I was lead counsel in the following Georgia voting rights cases: ACLU of Georgia v. Fulton County Board of Registration & Elections, 2017CV292939 (Fulton Cnty. Super. Ct.) (mandamus action blocking illegal polling place closures due to failure to comply with notice laws); Hopkins v. Kemp, 2017CV293325 (Fulton Cnty. Super. Ct.) (prevented illegal removal of up to 160,000 voters from active voter rolls); Palacios v. Kemp, 2018CV305433 (Fulton Cnty. Super. Ct.) (case on behalf of newly-naturalized U.S. citizen barred from seeking state office), which included a request for leave to appeal filed with the Georgia Supreme Court; Georgia Muslim Voter Project v. Kemp, 918 F.3d 1262 (11th Cir. 2019) (denying stay of preliminary injunction enjoining operation of unconstitutional signature-match law by requiring Secretary to issue guidance to counties). I was local counsel and cocounsel in Georgia Shift v. Gwinnett Cnty, 19-cv-1135 (N.D.Ga.) (lawsuit against
4

Case 1:20-cv-01489-AT Document 110-3 Filed 05/31/20 Page 5 of 6
four metro counties for failure to run proper election), and I am co-counsel in Whitest v. Crisp Cnty. Bd. of Educ., 17-cv-109 (M.D.Ga.) (challenging board of education redistricting plan as violation of Voting Rights Act); Wright v. Sumter Cnty. Bd. of Educ., 14-cv-42 (M.D.Ga.) (same).
8. In addition, during my time with the ACLU of Georgia, I was lead counsel in three First Amendment lawsuits. See Rubin v. Young, 2019 WL 1418289, No. 1:19-cv-1158-SCJ (N.D. Ga. Mar. 14, 2019) (temporary restraining order, later converted into final judgment, prohibiting the Capitol Police from banning profanity in the State Capitol Building); Rasman v. Stancil, 1:18-cv-1321WSD (N.D. Ga. Mar. 29, 2018) (temporary restraining order prohibiting the Capitol Police from banning hand-held signs in the State Capitol Building); Solomon v. City of Savannah (S.D. Ga. 2018) (challenging Savannah’s ban on signs during parade featuring the Vice President; Savannah lifted ban as soon as lawsuit was filed). I am lead counsel in a Fourth Amendment lawsuit challenging police practices concerning drivers arrested for being allegedly under the influence of marijuana. Ebner v. Cobb County, 17-cv-3722 (N.D. Ga.).
8. In 2019, I was awarded Attorney of the Year by the Daily Report and received the Best LGBTQ+ Lawyers Under 40 Award – Class of 2019 by the National LGBT Bar Association & Foundation.
5

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Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on May 26, 2020, at Atlanta, Georgia. /s/ Sean J. Young Sean J. Young Legal Director ACLU of Georgia 1100 Spring St. NW Atlanta, GA 30309 (707) 303-8111 syoung@acluga.org
6

Case 1:20-cv-01489-AT Document 110-4 Filed 05/31/20 Page 1 of 5

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

)

DECLARATION OF SOPHIA LIN LAKIN I, Sophia Lin Lakin, make the following declaration under 28 U.S.C. § 1746. 1. I am, and have been since February 2020, the deputy director of the Voting Rights Project of the national office of the American Civil Liberties Union Foundation (ACLU). From 2015 until I became the deputy director, I was a staff attorney with the Voting Rights Project. I practice exclusively in the area of voting rights. 2. The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization with over 1,600,000 members dedicated to defending the principles embodied in the Constitution and our nation’s civil rights

1

Case 1:20-cv-01489-AT Document 110-4 Filed 05/31/20 Page 2 of 5
laws. The ACLU Foundation is a national nonprofit organization under section 501(c)(3) of the Internal Revenue Code and educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. The ACLU Voting Rights Project was established in 1965 – the same year that the historic Voting Rights Act (VRA) was enacted – and has litigated more than 300 cases since that time, including numerous voting rights cases in the U.S. Supreme Court, including: Department of Commerce v. State of New York, 139 S. Ct. 2551 (2019); Ohio A Philip Randolph Institute v. Husted, 138 S. Ct. 1833 (2018); Shelby County v. Holder, 570 U.S. 529 (2013); Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008); and Abrams v. Johnson, 521 U.S. 74 (1997).
3. I obtained a Bachelors of Arts degree (Political Science) and a Masters of Science degree (Management Science and Engineering) and from Stanford University in 2004, and a Juris Doctor from Stanford Law School in 2012.
4. I was admitted to the practice of law in the State of New York in 2013. I have been continuously engaged in the practice of law on a full-time basis since 2013. I am admitted to the following federal courts: Eastern District of Wisconsin (2015), Fourth Circuit (2016), Fifth Circuit (2017), Sixth Circuit
2

Case 1:20-cv-01489-AT Document 110-4 Filed 05/31/20 Page 3 of 5
(2017), Seventh Circuit (2018), Eighth Circuit (2016), Tenth Circuit (2016), Eleventh Circuit (2017), and the United States Supreme Court (2017).
5. My work history is as follows: From 2012 to 2013, I worked as a law clerk for the Honorable Carol Bagley Amon of the U.S. District Court for the Eastern District of New York. From 2014-2015, I worked as a law clerk for the Honorable Raymond J. Lohier, Jr., of the U.S. Court of Appeals for the Second Circuit.
6. From February 2015 to February 2020, I was first a Legal Fellow and subsequently a Staff Attorney in the ACLU’s Voting Rights Project. In this capacity, I litigated numerous voting rights cases across the country, including: League of Women Voters of Tennessee v. Hargett, 400 F. Supp. 3d 706 (M.D. Tenn. 2019) (lead counsel in case successfully obtaining preliminary injunction in case challenging Tennessee law imposing strict requirements and criminal and civil penalties for noncompliance on community-based organizations that conduct voter registration drives); Common Cause v. Lawson, 937 F.3d 944 (7th Cir. 2019) (case challenging unlawful voter roll purge program in Indiana); Ohio A Philip Randolph Institute v. Husted, 138 S. Ct. 1833 (2018); Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020) (successfully challenging citizenship documentation requirements for voter registration in Kansas); North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) (successfully challenging, inter
3

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alia, voter ID requirement, cutbacks to early voting and the elimination of sameday registration in North Carolina); Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (challenging Wisconsin's voter ID law).
7. From February 2020 to present, I have been the Deputy Director of the ACLU’s Voting Rights Project. In this capacity, I supervise and directly participate in the ACLU’s docket of voting rights litigation throughout the country, including: Mo. NAACP v. Missouri, No. SC98536 (Mo. Supreme Ct.) (lead counsel in case challenging state’s absentee ballot restrictions during COVID-19 pandemic); League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20CV-00024, 2020 WL 1158249 (W.D. Va. May 5, 2020) (case challenging Virginia’s witness requirement for absentee ballots during COVID-19 pandemic); Thomas v. Andino, No. 3:20-cv-01552, 2020 WL 2306615 (D.S.C. May 8, 2020) (case challenging South Carolina’s absentee ballot restrictions and witness requirement during COVID-19).
8. I have conducting voting rights trainings and continuing legal education courses for numerous audiences and bar associations, including the National Asian Pacific American Bar Association, National Association for the Advancement of Colored People, South Asian Bar Association of North American, and the Kansas City Metropolitan Bar Association. I have also spoken on voting
4

Case 1:20-cv-01489-AT Document 110-4 Filed 05/31/20 Page 5 of 5
rights issues at various law schools, including Stanford Law School, Yale Law School, Harvard Law School, Columbia Law School, and New York Law School.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 31, 2020, at New York City, New York. /s/ Sophia Lin Lakin Sophia Lin Lakin ACLU Voting Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2693 (212) 549-2651 (fax) slakin@aclu.org
5

Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 1 of 6

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No.: 20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

)

)

)

Defendants.

)

)

)

DECLARATION OF DALE E. HO I, Dale E. Ho, make the following declaration under 28 U.S.C. § 1746. 1. I am, and have been since May 2013, the director of the Voting Rights Project of the national office of the American Civil Liberties Union Foundation (ACLU). I practice exclusively in the area of voting rights. 2. The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization with over 1,600,000 members dedicated to defending the principles embodied in the Constitution and our nation’s civil rights laws. The ACLU Foundation is a national nonprofit organization under section 501(c)(3) of the Internal Revenue Code and educates the public about civil liberties

1

Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 2 of 6
and employs lawyers who provide legal representation free of charge in cases involving civil liberties. The ACLU Voting Rights Project was established in 1965 – the same year that the historic Voting Rights Act (VRA) was enacted – and has litigated more than 300 cases since that time, including numerous voting rights cases in the U.S. Supreme Court, including: Department of Commerce v. State of New York, 139 S.Ct. 2551 (2019); Ohio A Philip Randolph Institute v. Husted, 138 S.Ct. 1833 (2018); Shelby County v. Holder, 570 U.S. 529 (2013); Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008); and Abrams v. Johnson, 521 U.S. 74 (1997).
3. I obtained a Bachelors of Arts degree from Princeton University in 1999, and a Juris Doctor from Yale Law School in 2005.
4. I was admitted to the practice of law in the State of New York in 2006. I have been continuously engaged in the practice of law on a full-time basis since 2006. I am admitted to the following federal courts: U.S. District Courts for the Southern District of New York (2008), Eastern District of New York (2008); Eastern District of Wisconsin (2013), U.S. Court of Appeals for the First Circuit (2016), Second Circuit (2008), Fourth Circuit (2014), Fifth Circuit (2013), Sixth Circuit (2014), Seventh Circuit (2014), Eighth Circuit (2016), Ninth Circuit
2

Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 3 of 6
(2010), Tenth Circuit (2016), District of Columbia Circuit (2010), and the United States Supreme Court (2010).
5. My work history is as follows: From 2005 to 2006, I worked as a law clerk for the Honorable Barbara S. Jones in the U.S. District Court for the Southern District of New York. From 2006 to 2007, I worked as a law clerk for the Honorable Robert S. Smith in the New York Court of Appeals. From 2007 to 2009, I was an associate at the law firm, Fried, Frank, Harris, Shriver, & Jacobson LLP (“Fried Frank”) in New York. At Fried Frank, I litigated complex commercial matters and federal civil rights cases, including work under the federal Voting Rights Act (“VRA”). In particular, I assisted in drafting an amicus brief in Bartlett v. Strickland, 556 U.S. 1 (2009), a voting rights case before the United States Supreme Court. That brief was cited in the dissenting opinion of Justice Breyer, 556 U.S. at 45.
6. From 2009 to April 2013, I worked as Assistant Counsel in the Political Participation Group at the NAACP Legal Defense and Education Fund, Inc. (“LDF”). At LDF, my practice was devoted almost exclusively to voting rights litigation in federal court. Among my VRA matters at LDF were: Shelby County v. Holder, 133 S.Ct. 2612 (2013) (representing intervenors defending the constitutionality of Sections 4(b) and 5 of the VRA before the U.S. Supreme Court); Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010) (challenging
3

Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 4 of 6
Washington State’s felon disfranchisement law under Section 2 of the VRA); and Florida v. Holder, 820 F. Supp. 2d 85 (D.D.C. 2011) (challenging various changes to Florida’s voting laws under Section 5 of the VRA).
7. From May 2013 to present, I have been the Director of the Voting Rights Project at the American Civil Liberties Union (“ACLU”). In this capacity, I supervise and directly participate in the ACLU’s docket of voting rights litigation throughout the country, including: Department of Commerce v. State of New York, 139 S.Ct. 2551 (2019), which I argued successfully in the United States Supreme Court; Ohio A Philip Randolph Institute v. Husted, 138 S.Ct. 1833 (2018); Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (lead counsel in case challenging citizenship documentation requirements for voter registration in Kansas), which I argued successfully in the Tenth Circuit; North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) (successfully challenging, inter alia, voter ID requirement, cutbacks to early voting and the elimination of sameday registration in North Carolina); Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) (challenging Wisconsin's voter ID law under the VRA), which I argued in the Seventh Circuit; and Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 533 (6th Cir. 2014) (challenging early voting cutbacks in Ohio under the VRA), vacated sub nom., 2014 WL 10384647 (6th Cir. Oct. 1, 2014).
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Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 5 of 6
7. I have lectured and written extensively on issues of voting rights and election law. From 2013 to 2017, I served adjunct professor of law at Brooklyn Law School, where I taught a course on Election Law. Since 2014, I have served as an adjunct professor of clinical law at NYU Law School. I have published articles on election law topics in several law reviews, including the Yale Law Journal Forum; Harvard Civil Rights-Civil Liberties Law Review; the Stanford Law & Policy Review; and the NYU Journal of Law and Public Policy. I have spoken on voting rights issues at various law schools, including Yale Law School, Harvard Law School, Stanford Law School, Columbia Law School, and NYU School of Law. I have also served on the faculty for redistricting seminars for state legislators in Louisiana and Texas.
8. I have testified on voting rights issues in the U.S. House of Representatives, as well as state legislatures around the country on election law issues, including in Kentucky, California, Connecticut, and New York. I. I am also a member of the Election Law Committee of the American Bar Association; and for three years, from 2009 through 2012, I served as a member of the Election Law Committee of the New York City Bar Association. J. In 2019, I received the President’s Award from the National Asian Pacific Bar Association (NAPABA). In 2018, I was named to the New York City Charter Revision Commission by New
5

Case 1:20-cv-01489-AT Document 110-5 Filed 05/31/20 Page 6 of 6
York City Mayor Bill de Blasio. In 2017, I was named one of the Best Asian Pacific American lawyers Under the Age of 40 by NAPABA.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 29, 2020, at New York City, New York. /s/ Dale E. Ho Dale E. Ho ACLU Voting Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2693 (212) 549-2651 (fax) dale.ho@aclu.org
6

5/11/2020

Case 1:20-cv-01489-ATPeoDpleoWcuhomAerenatt H1ig1h0er-6RiskFfoirleSedve0re5I/ll3ne1s/s2| 0CDCPage 1 of 2

Coronavirus Disease 2019 (COVID-19)
People Who Are at Higher Risk for Severe Illness
COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.
Based on what we know now, those at high-risk for severe illness from COVID-19 are:
People 65 years and older People who live in a nursing home or long-term care facility
People of all ages with underlying medical conditions, particularly if not well controlled, including:
People with chronic lung disease or moderate to severe asthma People who have serious heart conditions People who are immunocompromised
Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune de ciencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications People with severe obesity (body mass index [BMI] of 40 or higher) People with diabetes People with chronic kidney disease undergoing dialysis People with liver disease

 Older Adults

 People with Asthma

 At Risk For Severe Illness

 People with HIV

 People with Liver Disease

COVID-19: Are You at Higher Risk for Severe Illness?

Resources
ASL Video Series: COVID-19: Are You at Higher Risk for Severe Illness? Learn how you can help protect yourself if you are at higher risk of severe illness from COVID-19 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

Page last reviewed: April 15 2020
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 Case 1:20-cv-01489-AT Document 111 Filed 06/01/20 Page 1 of 10

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

BLACK VOTERS MATTER FUND, et al.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, et al.,

Defendants. _______________________________
THE DEKALB DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS AMENDED COMPLAINT

The DeKalb Defendants1 respectfully submit this reply in support of their

Motion to Dismiss the Amended Complaint (Doc. 104) as follows:

I. Defendants are Protected from Suit by Eleventh Amendment Immunity.

Plaintiffs cannot distinguish Casey v. Clayton County, GA, which supports

Eleventh Amendment immunity for the DeKalb Defendants in this action. Id.,

2007 WL 788943 (N.D. Ga. 2007). As the DeKalb Defendants showed in their

opening brief, this Court’s order in Casey states that a county board of registration

1 Plaintiffs seek certification of a defendant class of all 159 county boards of registrars or absentee ballot clerks. (DOC 88), ¶¶ 53-61. No class has been certified, and thus this reply is not being filed on behalf of a putative class.
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Case 1:20-cv-01489-AT Document 111 Filed 06/01/20 Page 2 of 10
and elections, when conducting elections activity (as is alleged of the DeKalb Defendants here), acts as an arm of the state for purposes of Eleventh Amendment immunity. 2007 WL 788943, * 8. In their attempt to unsuccessfully distinguish Casey, Plaintiffs wrongfully exaggerate the BRE’s autonomy while conducting elections and over-emphasize the source of funds and responsibility-for-judgment factors of the Manders analysis. See Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).
The first two prongs of the Manders’ Eleventh Amendment analysis require the Court to review: (1) how State law defines the entity, and (2) what degree of control the State maintains over the entity. Id., 338 F.3d at 1309. While Plaintiffs concede that the State creates the boards of elections, Plaintiffs characterize the governmental function at issue as “the postage requirement,” rather than the conduct of elections, in an unsuccessful attempt to diminish the State’s control over the DeKalb BRE and distinguish Casey. See Plaintiffs’ Brief in Opposition to DeKalb Defendants’ Motion to Dismiss (Doc. 107) (“Plaintiffs’ Brief”), pp. 5-6, 11. To the extent Plaintiffs argue that the DeKalb Defendants have made a decision with respect to providing prepaid postage for absentee ballot mailings, such a decision falls squarely within the DeKalb Defendants’ conduct of elections function. Plaintiffs’ attempt to differentiate a postage requirement from the act of conducting elections contradicts their own allegations that “mail-in votes [are]
2

Case 1:20-cv-01489-AT Document 111 Filed 06/01/20 Page 3 of 10
expected to skyrocket this year…[and] may become the new normal” for voting. See Amended Complaint (Doc. 88), ⁋ 3. As set forth in the DeKalb Defendants’ Motion to Dismiss (Doc. 104), this Court has stated that with respect to the conduct of elections, a county board of registration is acting as an arm of the state.
Plaintiffs nevertheless maintain that DeKalb Defendants’ responsibility to conduct elections means that the State has no control over these processes. However, this position fails to consider the overarching power of the State. In fact, the State Election Board was created to “promulgate rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials, as well as the legality and purity in all primaries and elections.” O.C.G.A. §§ 21-2-30, 21-2-31. The BRE, on the other hand, was created to carry out the State election laws. O.C.G.A. § 21-2-70. As set forth in detail in the DeKalb Defendants’ Motion to Dismiss (Doc. 104), the ultimate control over the conduct of elections lies with the State General Assembly, Election Board, and Secretary of State. O.C.G.A. § 21-2-1 et seq. This ultimate control is further evidenced by the Secretary of State’s unilateral decision to mail absentee ballot request forms and absentee ballots to voters in Georgia for the upcoming primary, a task normally performed by the County. See Secretary of State Brad Raffensperger’s Brief in Support of His Motion to Dismiss, (Doc. 67-1), p. 2; Declaration of Erica Hamilton filed in support of Defendant DeKalb BRE’s
3

Case 1:20-cv-01489-AT Document 111 Filed 06/01/20 Page 4 of 10
Response to Plaintiffs’ Motion for Preliminary Injunction, (Doc. 50-1), ⁋⁋ 15-19. Moreover, Plaintiffs’ own allegation that the Secretary of State can issue guidance to the counties to direct them to provide postage for absentee ballot mailings indicates that even Plaintiffs recognize the State’s control over Defendants.
Plaintiffs’ focus on the third and fourth prongs of the Manders analysis, the source-of-funds and responsibility-for-judgment elements, is contrary to the Court’s unequivocal statement in Casey that the board of elections acts as an arm of the state while conducting elections, although the county has budgetary authority. Id., 2007 WL 788943, *8. Moreover, this Court has casted doubt on whether the County actually has budgetary control in light of State law protections for the elections process. Id. Consequently, case law strongly supports the application of Eleventh Amendment immunity to the DeKalb Defendants in this case. To the extent that DeKalb Defendants are comparable to another entity, they are more akin to entities such as the sheriff’s department in Manders v. Lee, 338 F.3d at 1308, or a county board of tax assessors in Ballard v. Chattooga Co. Bd. of Tax Assessors, 615 Fed. Appx. 621, 628 (11th Cir. 2015), which were both held to have Eleventh Amendment immunity, rather than a school board, which was the subject of the analysis in Lightfoot v. Henry Cty. Sch. Dist., 771 F.3d 764, 770-72 (11th Cir. 2014).
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II. To the Extent that Plaintiffs’ Claim is Based on an Alleged Policy to Not Provide Prepaid Postage on Absentee Ballot Mailings, That Claim is Barred by Legislative Immunity. Plaintiffs contend that the Individual Defendants2 are not entitled to
legislative immunity, because the Individual Defendants have not identified the specific conduct that is subject to the immunity. See Plaintiffs’ Brief (Doc. 107), at p. 22. As set forth above, although Plaintiffs attempt to frame their claims as arising out of a “postage requirement,” the DeKalb Defendants do not impose any such requirement on absentee ballot mailings.3 However, to the extent Plaintiffs’ claims arise out of an alleged policy or decision not to request budgetary funds for or provide prepaid postage for such mailings, the Individual Defendants are entitled to legislative immunity and the claims against them must be dismissed. See Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009) (holding that an executive assistant to the CEO was entitled to legislative immunity against any claims arising from his preparation and drafting of a budget proposal); Ellis v. Coffee Co. Bd. of Registrars, 981 F.2d 1185, 1190-91 (11th Cir. 1993) (holding that the “Coffee
2 Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, and Erica Hamilton. 3 Plaintiffs refer to “DeKalb’s imposition of a postage requirement” and cite to state statutes which require the provision of prepaid postage for certain elections mailings. See Plaintiffs’ Brief (Doc. 107), p. 26-27. The cited statutes do not reflect the DeKalb Defendants’ imposition of a postage requirement, but instead are the General Assembly’s requirements to provide prepaid postage with certain elections mailings not in question here.
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County Commissioners clearly were performing their legislative function when they investigated the voting eligibility of the listed electors on the county precinct list in order to provide the Board of Registrars with the names of those persons no longer qualified to vote in Coffee County”). III. Plaintiffs Lack Standing to Bring this Action.4
Plaintiffs have failed to demonstrate that they have alleged a sufficient injury-in-fact to establish standing. First, Plaintiffs fail to demonstrate how their Amended Complaint contains sufficient allegations to establish a diversion of resources injury on behalf of Plaintiff Black Voters Matter Fund. In the Amended Complaint, Plaintiffs simply allege that “Black Voters Matter must direct scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it especially for those with less resources.” Amended Complaint (Doc. 80), ¶ 13. However, this allegation does not detail how “making sure that voters know about the postage requirement and how to obtain it especially for those with less resources” is different from “voter education” and “efforts to facilitate voting by mail.” As such, Plaintiff Black Voters Matter Fund 4 The DeKalb Defendants incorporate by reference as if fully stated herein the arguments contained in Sections III.A, III.B, IV, and V of Secretary of State Brad Raffensperger’s Reply in Support of His Motion to Dismiss (Doc. 87) and Section I.A. of the Response of Secretary of State Brad Raffensperger in Opposition to Plaintiffs’ Second Motion for Preliminary Injunction (Doc. 97).
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fails to sufficiently allege an injury-in fact. See Jacobson v. Florida Secretary of State, 957 F.3d 1193, 1206 (11th Cir. 2020) (finding that plaintiff organizations failed to establish with sufficient specificity what activities resources were diverted from, and thus failed to establish injury-in-fact). Similarly, Plaintiff Megan Gordon, who admits that she has stamps, but simply does not want to use them, has failed to establish an injury cognizable by law.
IV. CONCLUSION The Amended Complaint against the DeKalb Defendants should be dismissed with prejudice, because as demonstrated in the DeKalb BRE’s Motion to Dismiss the Amended Complaint, this Court lacks subject matter jurisdiction over Plaintiffs’ claim and Plaintiffs have failed to plausibly state a claim against the DeKalb Defendants upon which relief may be granted. Respectfully submitted this 1st day of June, 2020.
LAURA K. JOHNSON DEPUTY COUNTY ATTORNEY Georgia Bar No. 392090 /s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663 SHELLEY D. MOMO ASSISTANT COUNTY ATTORNEY Georgia Bar No. 239608 Attorneys for the DeKalb Defendants
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PLEASE ADDRESS ALL COMMUNICATIONS TO: Irene B. Vander Els Shelley D. Momo DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

BLACK VOTERS MATTER FUND and MEGAN GORDON, et al.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, et al.,

Defendants. _______________________________

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the

Clerk of the Court using the CM/ECF system (which document was prepared in

Times New Roman font, 14-point type, one of the font and point selections

approved by the Court in N.D. Ga. L.R. 5.1(C)), which will automatically send e-

mail notification of such filing to counsel of record.

This 1st day of June, 2020.

/s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663

PERSONS SERVED:

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Case 1:20-cv-01489-AT Document 111 Filed 06/01/20 Page 10 of 10
Dale E. Ho Sophia Lin Lakin American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 P.O. Box 77208 Atlanta, GA 30309
Charlene S. McGowan Kaufman & Forman, P.C. Building 800 8215 Roswell Rd. Atlanta, GA 30350
Alexander Fraser Denton Brian Edward Lake Joshua Barrett Belinfante Melanie Leigh Johnson Vincent Robert Russo, Jr. Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318
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 Case 1:20-cv-01489-AT Document 114 Filed 06/15/20 Page 1 of 23

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

BLACK VOTERS MATTER FUND, et al.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, et al.,

Defendants. _______________________________

THE DEKALB DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Defendants Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E.

Tillman, Baoky N. Vu, in their official capacities as members of the DeKalb County

Board of Registration and Elections, Erica Hamilton, in her official capacity as

Director of the DeKalb County Department of Voter Registration and Elections

(collectively, the “Individual DeKalb Defendants”), and the DeKalb County Board

of Registration and Elections (the “DeKalb BRE” and together with the Individual

DeKalb Defendants, the “DeKalb Defendants”), respectfully submit this response in

opposition to Plaintiffs’ Motion for Class Certification (“Plaintiffs’ Motion”) (Doc.

110) as follows:

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Plaintiffs Black Voters Matter Fund (“BVMF”), Megan Gordon (“Gordon”), and Penelope Reid (“Reid” and together with BVMF and Gordon, “Plaintiffs”) seek certification of a “a defendant class of county elections officials, a plaintiff class of all Georgia registered voters, and a plaintiff subclass of registered voters who are particularly susceptible to COVID-19.” Plaintiffs’ Motion (Doc. 110), p.2. As demonstrated below, Plaintiffs have failed to establish that the proposed defendant class meets the requirements of typicality and adequacy, or that it can be properly certified under Federal Rule of Civil Procedure 23(b). Similarly, Plaintiffs have failed to establish that the proposed plaintiff class of all registered voters and proposed subclass of registered voters who are particularly susceptible to COVID19 meet the requirement of adequacy, or that they can be properly certified under Rule 23(b). Accordingly, Plaintiffs’ Motion must be denied.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff BVMF is “a non-partisan civic organization . . . . [which] works on increasing voter registration and turnout, advocating for policies to expand voting rights and access.” Amended Complaint (Doc. 88), ¶ 13. Plaintiff Gordon is “a registered voter of DeKalb County [who] does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.” Id., ¶ 14. Plaintiff Reid is “a registered voter of Gwinnett County” who “is 80 years old [and] cannot stand for
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long periods of time, so she is not able to wait in line at the polling place anymore.” Id., ¶¶ 15-16. Like Gordon, Reid “does not want to use her own postage stamps to mail in absentee ballots or applications because she believes that no one should have to pay money to exercise their right to vote.” Id., ¶ 15.
Defendant Secretary of State is “responsible for enacting elections statutes and routinely issues guidance to the county election officials of all 159 counties on various election procedures and requirements.” Id., ¶ 19. Plaintiffs allege that Defendant DeKalb BRE “requires voters to affix postage on absentee ballots and applications, consistent with the SOS’s guidance.” Id., ¶ 20. Defendants Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, and Baoky N. Vu, are each sued in their official capacities as members of the DeKalb BRE. Id., ¶ 21. Defendant Erica Hamilton is sued in her official capacity as Director of the DeKalb County Department of Voter Registration and Elections. Id., ¶ 22.
To vote by absentee ballot, a voter must first submit an absentee application via mail, fax, e-mail, or in-person. Id., ¶ 31. After the absentee application is received by election officials and approved, the voter is mailed the absentee ballot itself. Id., ¶ 33. The absentee applications and absentee ballot packages sent to voters do not include postage prepaid return envelopes. Id., ¶¶ 32, 34.
Plaintiffs argue that the absence of prepaid postage return envelopes with absentee applications and absentee ballots constitutes a poll tax in violation of the
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Twenty-Fourth and Fourteenth Amendments, and an undue burden on the right to vote in violation of the First and Fourteenth Amendments. Id., ¶¶ 66, 70. For these reasons, Plaintiffs seek declaratory relief and a permanent injunction requiring Defendants to provide postage prepaid returnable envelopes for absentee ballots, as well as absentee applications. Id., ¶ 9.
Plaintiffs argue that class certification is not necessary, because the Court can enter an order directing the Secretary of State to issue guidance to the counties requiring the provision of prepaid postage with absentee ballot mailings. See id., ¶ 43 (“Certifying a plaintiff class action is unnecessary because Defendants’ unconstitutional practices can be enjoined without it.”), ¶ 53 (“Certifying a defendant class action is unnecessary because an order enjoining the Secretary of State will have the effect of enjoining all 159 county boards of registration. The Secretary of State’s Office routinely issues guidance to county registrars statewide, who follow the Office’s guidelines.”). In their Motion, Plaintiffs nevertheless seeks certification of the following classes:
• A proposed defendant class, represented by the DeKalb Defendants, defined as all Georgia boards of registrars, their members, their election directors, county registrars, and municipal absentee ballot clerks.
• A proposed plaintiff class, represented by Plaintiffs Gordon and Reid, defined as all registered Georgia voters. 4

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• A proposed plaintiff subclass, represented by Plaintiff Reid, defined as “Georgia registered voters who satisfy one of the COVID-19 risk factors identified by the Center for Disease Control (“CDC”)” with such risk factors identified in Exhibit E to Plaintiffs’ Motion.1
Plaintiffs’ Motion (Doc. 110), pp. 3-4. For the reasons set forth below, Plaintiffs have failed to meet their burden of establishing that each of the proposed classes meets the requirements of Rule 23.
II. ARGUMENT AND CITATION TO AUTHORITY A. Standard for Class Certification For a district court to certify a class action, the named plaintiffs must have standing,2 and the putative class must satisfy all four of the threshold requirements set forth in Federal Rule of Civil Procedure 23(a) and then show that the action is maintainable under at least one of the three provisions of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14, 117 S.Ct. 2231, 138 L.Ed.2d 689
1 Exhibit E identifies the following groups as high-risk for severe illness from COVID-19: people 65 years and older; people who live in a nursing home or longterm care facility; people of all ages with underlying medical conditions, particularly if not well controlled, including people with chronic lung disease or moderate to severe asthma, people who have serious heart conditions, people who are immunocompromised, people with severe obesity (body mass index [BMI] of 40 or higher), people with diabetes, people with chronic kidney disease undergoing dialysis, and people with liver disease. 2 As set forth in the DeKalb Defendants’ Motion to Dismiss the Amended Complaint (Doc. 104), the named plaintiffs lack standing to assert the claims in this action.
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(1997); Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th Cir. 2001) (en banc). The four threshold requirements are (1) numerosity: “the class is so numerous that joinder of all members is impractical;” (2) commonality: “there are questions of law or fact common to the class;” (3) typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class; and” (4) adequacy: “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. Pro. 23(a); Turner, 242 F.3d at 1025 n.3; Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000). Rule 23(b) requires a party to show that either (1) prosecution by separate actions would create a risk of inconsistent results; or (2) defendants have acted in ways generally applicable to the class, making declaratory or injunctive relief appropriate; or (3) common questions of law or fact predominate over individual issues. Moore v. Am. Fed'n of Television & Radio Artists, 216 F.3d 1236, 1241 (11th Cir.2000), cert. denied, 533 U.S. 950, 121 S.Ct. 2592, 150 L.Ed.2d 751 (2001).
Class certification is an evidentiary question. See Bussey v. Macon County Greyhound Park, Inc., 562 Fed. Appx. 782 (11th Cir. 2014). “The initial burden of proof to establish the propriety of class certification rests with the advocate of the class.” Rutstein v. Avis Rent–A–Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1354, 149 L.Ed.2d 285 (2001). Whether to certify a class is a matter within the discretion of the court. Moore, 216 F.3d at 1241.
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B. Plaintiffs Have Not Met Their Burden of Demonstrating That the Proposed Classes Satisfy All Requirements of Rule 23. 1. The Proposed Defendant Class a. The Proposed Defendant Class is Not Adequately Defined.
In order to obtain class certification, a plaintiff must demonstrate that the proposed class is "adequately defined and clearly ascertainable." Bussey, 562 Fed.Appx. at 787 (citing Little v. T-Mobile U.S.A., Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)). Plaintiffs’ proposed defendant class is defined as “all Georgia boards of registrars, their members, their election directors, county registrars, and municipal absentee ballot clerks.” Plaintiffs’ Motion (Doc. 110), p.4. As such, the proposed class does not include elections superintendents, who are charged by statute with the duty “to purchase, except voting machines, preserve, store, and maintain election equipment of all kinds, including voting booths and ballot boxes and to procure ballots and all other supplies for primaries and election” and “to make and issue such rules, regulations, and instructions, consistent with law, including the rules and regulations promulgated by the State Election Board, as he or she may deem necessary for the guidance of poll officers, custodians, and electors in primaries and elections.” O.C.G.A. § 21-2-70(5), (7). To the extent Plaintiffs’ requested relief would require the purchase of supplies for primaries and elections, or issuance of rules, by county elections officials, the proposed class does not include those
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officials vested with such authority in counties which maintain an independent election superintendent or board of elections rather than a combined board like the DeKalb BRE, which is vested with the duties and authority of the registrar and superintendent. See O.C.G.A. § 21-2-40(b).
b. The Proposed Defendant Class Does Not Satisfy the Typicality Requirement.
“The claim of a class representative is typical if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009). Plaintiffs cannot establish sufficient typicality of defenses exist with respect to Count II of the Amended Complaint because the Anderson/Burdick analysis requires consideration of the counties’ respective interests in not providing pre-paid postage for absentee ballot mailings. See Curling v. Raffensperger, 403 F. Supp. 3d. 1311, 1336 (N.D. Ga. 2019) (parenthetical quotations omitted) (noting that a court must determine whether relevant and legitimate interests of state are of sufficient weight to justify burden on right to vote); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (holding that when deciding whether a state election law violates the Fourteenth Amendment, the Court must weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State
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contends justify that burden and consider the extent to which the State’s concerns make the burden necessary).
Each county has different interests which justify the absence of prepaid postage for absentee ballot mailings, including but not limited to fiscal limitations, overburdening staff with new procedures for absentee ballot mailings, and the diversion of limited fiscal and administrative resources from in-person voting to absentee voting. The balance of these interests by the DeKalb BRE, which manages voter registration and elections for over 500,000 registered voters in Georgia, is likely considerably different than that of a rural county with a smaller population whose electorate may differ significantly in the desire to use absentee ballots. As such, it cannot be said that the DeKalb BRE’s interests are necessarily typical of those of every other county election official in Georgia. Accordingly, Plaintiffs have failed to demonstrate that the proposed class meets the typicality requirement of Rule 23(a)(3). See, e.g., Coleman v. McLaren, 98 F.R.D. 638 (N.D. Ill. 1983) (rejecting certification of defendant class of county officials where typicality and adequacy were not met as to plaintiffs’ claims that officials were improperly implementing statute/exercising delegated power).
The cases cited by Plaintiffs in support of their argument that typicality exists are distinguishable from the facts of the present case. See Wells v. HBO & Co., No. 87CV657JTC, 1991 WL 131177 (N.D. Ga. Apr. 24, 1991) (rejecting defendant’s
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argument that proposed plaintiff class representative’s lack of reliance on defendant’s alleged misrepresentations made her claim atypical of the proposed class and granting plaintiff’s motion to certify plaintiff class of stock purchasers); Strawser v. Strange, 307 F.R.D. 604, 612-13 (S.D. Ala. 2015) (granting motion to certify defendant class of all probate judges in state for plaintiffs’ claims challenging the constitutionality of same-sex marriage statute, where the proposed class representative and class members had same duties to enforce statute at issue and thus all class members had same defenses); Harris v. Graddick, 593 F.Supp. 128, 137 (M.D. Ala. 1984) (certifying defendant class of county authorities in action to require defendants to appoint black poll workers, but requiring notice to absent class members for opportunity to be joined as class representative).
c. The Proposed Defendant Class Does Not Satisfy the Adequacy Requirement.
Rule 23(a)(4) requires that the representative party in a class action “must adequately protect the interests of those he purports to represent.” Phillips v. Klassen, 502 F.2d 362, 365 (D.C. Cir. 1974). This “adequacy of representation” analysis “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” In re HealthSouth Corp. Securities Litigation, 213 F.R.D. 447, 460–61 (N.D. Ala.2003). If substantial
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conflicts of interest are determined to exist among a class, class certification is inappropriate. See 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Proc. § 1768, at 326 (2d ed. 1986) (“It is axiomatic that a putative representative cannot adequately protect the class if his interests are antagonistic to or in conflict with the objectives of those he purports to represent.”).
As set forth above, the interests of each county in providing or not prepaid postage for absentee ballot mailings likely varies significantly among counties. It is possible, if not probable, that such interests may conflict, and require the assertion of arguments that may not be available to or advantageous for the DeKalb BRE, or other members of the proposed class. Accordingly, Plaintiffs cannot establish that there is any representative defendant who could adequately represent the members of the class. See Brown v. Kelly, 609 F.3d 467, 479-80 (2d Cir. 2010) (reversing certification of defendant class of state and local government officials, finding that proposed class representatives did not meet adequacy requirement because they were subject to specific claims not asserted against remaining class members and to existing injunctions not in place against remaining class members); Vargas v. Calabrese, 634 F. Supp. 910, 920-21 (D.N.J. 1986) (denying certification of defendant class of elections officials where some members of proposed class denied wrongdoing, and thus had interests antagonistic to proposed class representatives, and where proposed representatives failed to obtain representation to defend action);
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Coleman, 98 F.R.D. at 650 (N.D. Ill. 1983) (finding that plaintiffs failed to establish adequacy of proposed defendant class representatives where “the two ’representative’ Counties simply have no incentive to marshal evidence necessary to prove the nonexistence of those challenged practices in the other counties—a factfinding mission that would divert scarce litigation resources from their own defense. Consequently, this Court cannot conclude that by pursuing their own interests vigorously the [Counties] will necessarily raise all claims or defenses common to the class.”)
As with the cases cited by Plaintiffs with regard to the typicality requirement, the cases cited with regard to the adequacy requirement are distinguishable from the present action. See Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181 (11th Cir. 2003) (reversing trial court order granting class certification where proposed class representatives benefited from defendants’ alleged conduct while absent class members did not, and thus could not adequately represent class due to interests antagonistic to the class); National Broadcasting Company, Inc. v. Cleland, 697 F.Supp. 1204, 1216-17 (N.D. Ga. 1988) (granting plaintiffs’ motion for certification of defendant class of elections officials in action seeking injunction prohibiting enforcement of law prohibiting exit polls, where proposed class representative was empowered with same duties and responsibilities to enforce statute as other members of proposed class).
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d. The Proposed Defendant Class Does Not Meet the Requirements of Rule 23(b).
In addition to the requirements of Rule 23(a), a plaintiff must also demonstrate
that the proposed class meets the requirements of Rule 23(b). Plaintiffs argue that
the proposed defendant class satisfies the requirements of both Rule 23(b)(1)(A) and
Rule 23(b)(1)(B). Rule 23(b)(1) provides as follows:
A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
The proposed defendant class does not meet the requirements of either subsection.
First, with respect to Rule 23(b)(1)(A), the inquiry is whether separate
adjudications against individual members of the defendant class would result in
compatible standards of conduct for the named plaintiffs:
Rule 23(b)(1)(A) focuses on the effect the prosecution of individual actions would have upon the party opposing the class, which is the plaintiff in this case. Thus, if “the prosecution of separate actions by (the plaintiff) against individual members of the (defendant) class would create a risk of ... inconsistent or varying adjudications with
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respect to individual (defendants) which would establish incompatible standards of conduct for the (plaintiff),” then the action may be maintained as a class action under Rule 23(b)(1)(A). In re Arthur Treacher’s Franchise Litigation, 93 F.R.D. 590, 592 (E.D. Pa. 1982) (rejecting plaintiffs’ argument for certification of a defendant class under Rule 23(b)(1)(A)). In this case, individual adjudications against members of the proposed defendant class — i.e., county elections officials across the state — would not create incompatible standards of conduct for Plaintiffs Gordon and Reid, who can only vote in DeKalb County and Gwinnett County, respectively. Moreover, that BMVF may determine to allocate resources differently in different counties depending on how its claim is adjudicated against a particular county does not constitute the imposition of incompatible standards of conduct. See id. (finding that simply because plaintiff would possibly recover against some defendants but not others in separate actions did not warrant certification of defendant class of franchisees under Rule 23(b)(1)(A))”). Similarly, Plaintiffs have not demonstrated that the proposed defendant class can be certified under Rule 23(b)(1)(B). Plaintiffs argue that class certification is appropriate under this subsection because the Secretary of State is generally obligated to issue uniform guidance to all counties, and because the evidence or statements of the Secretary of State in this case could be used to prejudice counties in separate litigation. See Plaintiffs’ Motion, pp.14-15. However,
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[n]either the stare decisis consequences of an individual action nor the possibility of false reliance upon the improper initiation of a class action can supply either the practical disposition of the rights of the class, or the substantial impairment of those rights, at least one of which is required by Rule 23(b)(1)(B). To permit them to do so would make the invocation of Rule 23(b)(1)(B) unchallengeable. There is no indication in the Advisory Committee’s Note that any such “boot strap” effect was intended.
In re Arthur Treacher’s, 93 F.R.D. at 594 (quoting La Mar v. H&B Novelty & Loan
Co., 489 F.2d 461 (9th Cir. 1973)). Because Plaintiffs have failed to demonstrate
that the requirements of Rule 23 are met with respect to the proposed defendant class, Plaintiffs’ Motion to certify the class must be denied.3
2. The Proposed Plaintiff Class
a. The Proposed Plaintiff Class Does Not Meet the Typicality or Adequacy Requirements of Rule 23(a).
The claims of Plaintiffs Gordon and Reid are not typical, nor are Gordon or
Reid adequate representatives of the proposed class, where Plaintiffs’ own evidence
suggests that there are class members who prefer in-person voting. In this case,
Plaintiffs seek certification of a class of all registered voters in Georgia, on whose
3 Plaintiff also cite Kane v. Fortson, 369 F.Supp. 1342 (N.D. Ga. 1973), generally in support of their request to certify a class of state elections officials. However, in Kane, the Dougherty County Board of Registrars was designated as the representative of a defendant class of boards of registrars in Georgia in action to enjoin enforcement of state laws which would prohibit married women from establishing domicile separate from husband, by consent.
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behalf they request injunctive relief requiring Defendants to provide prepaid postage for absentee ballot mailings. However, Plaintiffs have submitted evidence indicating that there are members of the putative class who prefer in-person voting, and do not trust the absentee voting process. See, e.g., Declaration of Marilynn Winn (Doc. 12), ¶¶ 4-5; Declaration of Dohyun Ahn (Doc. 14), ¶ 6; Declaration of Sarah Burke (Doc. 30), ¶ 4; Declaration of Cynthia Robinson (Doc. 45), ¶ 3; Declaration of Michael Rethinger (Doc. 68), ¶ 3. It is therefore likely that there are putative class members who would prefer for the state and county resources at issue to be directed to the improvement of the in-person voting process, rather than absentee voting. Accordingly, Plaintiffs, who seek an injunction directing resources to pre-paid postage for absentee ballot mailings, cannot adequately represent the proposed class. Alberghetti v. Corbis Corp., 263 F.R.D. 571 (C.D. Ca. 2010) (“It is well-established that class representatives are inadequate if they seek relief that putative class members do not wish to seek.”) (finding that plaintiffs failed to satisfy adequacy requirement where plaintiffs sought different types of injunctive relief related to defendant’s use of their images); Burka v. New York City Transit Authority, 110 F.R.D. 595 (S.D.N.Y. 1986) (rejecting proposed subclasses of plaintiffs where there were conflicts of interest between members of proposed subclasses); Dierks v. Thompson, 414 F.3d 453 (1st Cir. 1969) (“Unless the relief sought by the particular plaintiffs who bring the suit can be thought to be what would be desired by the other
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members of the class, it would be inequitable to recognize plaintiffs as representative, and a violation of due process to permit them to obtain a judgment binding absent plaintiffs.”) (internal citations omitted).
b. Certifying The Proposed Plaintiff Class Adds No Benefit for the Proposed Plaintiff Class.
Plaintiffs assert that class certification is unnecessary because the Court can grant complete relief through an order directed to the Secretary of State. Class certification would therefore add no benefit for the Plaintiffs or the putative class and subclasses, though it risks complicating the litigation. Under similar circumstances, courts have exercised discretion not to certify a class. See Thompson v. Merrill, 16-CV-783-ECM, 2020 WL 411985 (M.D. Ala. Jan. 24, 2020) (denying plaintiffs’ motion for class certification where plaintiffs failed to show necessity of class certification to obtain relief requested); M.R. v. Board of School Commissioners of Mobile County, 286 F.R.D. 510, 517-21 (S.D. Ala. 2012) (noting that many courts deny class certification where the injunctive relief requested would inure to the benefit of prospective class members whether a class was certified or not).
c. The Proposed Plaintiff Subclass is not Adequately Defined or Ascertainable.
As noted above, to obtain class certification, a plaintiff must demonstrate that the proposed class is "adequately defined and clearly ascertainable." Bussey, 562
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Fed.Appx. at 787 (citing Little v. T-Mobile U.S.A., Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)). The class is considered identifiable if its members can be ascertained by reference to objective criteria. Id. (citing Fogarazo v. Lehman Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)). The analysis of the criteria should be administratively feasible, meaning that “identifying class members is a manageable process that does not require much, if any, individual inquiry.” Id.
Plaintiffs propose a subclass of registered voters based on vague and illdefined descriptions of vulnerabilities to COVID-19. See Plaintiffs’ Motion (Doc. 11), p.23 and Exhibit E (identifying those at high risk of serious complications from COVID-19 to include “people of all ages with underlying medical conditions, particularly if not well controlled, including people with chronic lung disease or moderate to severe asthma, people who have serious heart conditions, people who are immunocompromised . . . .”). These parameters are insufficiently specific to allow the ascertainment of those voters who would fall within the proposed subclass. At a minimum, the process of identifying members of the proposed plaintiff subclass absolutely requires significant, individual inquiry. As such, the proposed subclass is not ascertainable. See Shuford v. Conway, 326 F.R.D. 321, 331 (N.D. Ga. 2018).
C. In the Alternative to an Immediate Denial of Plaintiffs’ Motion, the Court Should Allow Defendants to Conduct Class Discovery and Provide Notice to Putative Defendant Class Members Before Granting Plaintiffs’ Motion.
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At a minimum, if the Court is not inclined to deny Plaintiffs’ Motion immediately, the Court should permit Defendants to conduct discovery on the issue of the proposed class representatives’ typicality of claims and defenses and adequacy of representation issue. See, e.g., Vargas v. Calabrese, 634 F. Supp. 910 (D.N.J. 1986) (“Under appropriate circumstances discovery on the merits of class certification has been permitted by the courts. There can be no doubt that it is proper for a district court, prior to certification of a class, to allow discovery and to conduct hearings to determine whether the prerequisites of Rule 23 are satisfied.... Indeed a district court may be reversed for premature certification if it has failed to develop a sufficient evidentiary record from which to conclude that the requirements of numerosity, typicality, commonality of question, and adequacy of representation have been met.”) (quoting Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir.1982)).
Finally, if the Court is inclined to grant Plaintiffs’ Motion to certify the proposed defendant class, the DeKalb Defendants respectfully request that the Court issue an order under Rule 23(d)(1)(B)(iii) that requires – to protect class members and fairly conduct the action – giving appropriate notice to all defendant class members of the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action. See, e.g., Harris, 593 F.Supp. at 137 (M.D. Ala. 1984) (certifying defendant class of county appointing authorities in action seeking
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to require defendants to appoint black poll workers, but requiring notice to absent class members for opportunity to be joined as class representative).
III. CONCLUSION Plaintiffs’ Motion should be denied, because as demonstrated herein, Plaintiffs have failed to satisfy their burden of establishing that the proposed classes meet the requirements of Rule 23. In the alternative to an immediate denial of Plaintiffs’ Motion, the Court should allow Defendants to conduct class discovery. If, however, the Court is inclined to certify the proposed defendant class, the Court should provide the notice contemplated under Rule 23(d)(1)(B)(iii) to the defendant class members. Respectfully submitted this 15th day of June, 2020.
LAURA K. JOHNSON DEPUTY COUNTY ATTORNEY Georgia Bar No. 392090 /s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663 SHELLEY D. MOMO ASSISTANT COUNTY ATTORNEY Georgia Bar No. 239608 Attorneys for the DeKalb Defendants
PLEASE ADDRESS ALL COMMUNICATIONS TO:
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Case 1:20-cv-01489-AT Document 114 Filed 06/15/20 Page 21 of 23
Irene B. Vander Els Shelley D. Momo DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 (404) 371-3011
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Case 1:20-cv-01489-AT Document 114 Filed 06/15/20 Page 22 of 23

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

BLACK VOTERS MATTER FUND and MEGAN GORDON, et al.,
Plaintiffs,

CIVIL ACTION FILE NO. 1:20-CV-01489-AT

v.

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, et al.,

Defendants. _______________________________

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the

Clerk of the Court using the CM/ECF system (which document was prepared in

Times New Roman font, 14-point type, one of the font and point selections approved

by the Court in N.D. Ga. L.R. 5.1(C)), which will automatically send e-mail

notification of such filing to counsel of record.

This 15th day of June, 2020.

/s/ IRENE B. VANDER ELS IRENE B. VANDER ELS ASSISTANT COUNTY ATTORNEY Georgia Bar No. 033663

PERSONS SERVED: 22

Case 1:20-cv-01489-AT Document 114 Filed 06/15/20 Page 23 of 23
Dale E. Ho Sophia Lin Lakin American Civil Liberties Union Foundation-NY 18th Floor 125 Broad St. New York, NY 10004
Sean Young ACLU of Georgia Foundation 1100 Spring St. NW Suite 640 P.O. Box 77208 Atlanta, GA 30309
Charlene S. McGowan Kaufman & Forman, P.C. Building 800 8215 Roswell Rd. Atlanta, GA 30350
Alexander Fraser Denton Brian Edward Lake Joshua Barrett Belinfante Melanie Leigh Johnson Vincent Robert Russo, Jr. Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318
23

 
 Case 1:20-cv-01489-AT Document 135 Filed 07/22/20 Page 1 of 5

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

BLACK al.,

VOTERS

MATTER

FUND,

et

) ) )

)

Plaintiffs,

) )

) Civil Action No. 1:20-cv-1489-AT

vs.

) )

)

BRAD official

RAFFENSPERGER, capacity as Secretary

in of

his State

of

) ) )

Georgia, et al.,

) )

)

Defendants.

)

)

PLAINTIFFS’ REPLY TO THE SECRETARY’S RESPONSE REGARDING PLAINTIFFS’ JUNE 30 SUPPLEMENTAL SUBMISSION
Plaintiffs respectfully submit the following reply regarding Defendant Secretary of State’s response to Plaintiffs’ Supplemental Brief Regarding the June 2020 Primary in Support of Their Motion for Preliminary Injunction (“Supplemental Brief”), which was filed on June 30, 2020. Doc. No. 129.
Plaintiffs’ June 30 Supplemental Brief was appropriate because it was filed to comply with what Plaintiffs believed was a court order. At a May 12, 2020 telephone conference, the Court noted that in deciding whether to provide relief that, “I would rather also have some evidence in the June election myself.” Doc. 95 at 12. Later, this Court noted in a subsequent order that “the Court [had] expressed

1

Case 1:20-cv-01489-AT Document 135 Filed 07/22/20 Page 2 of 5
concern about ruling on the important questions presented by Plaintiffs’ Motion for Preliminary Injunction before the June 2020 Primary plays out.” Doc. 101 at 3. This Court had also previously “encourage[d] the Plaintiffs . . . to provide supplemental voter affidavits or declarations” “as soon as possible on a rolling basis.” Doc. 9 at 2 (internal alteration omitted). Based on these statements from the Court and as the party seeking injunctive relief, Plaintiffs believed they were under an obligation to present supplemental evidence to the Court following the June 2020 Primary.
Defendant’s remaining procedural arguments are meritless. Plaintiffs’ original preliminary injunction motion (“PI Motion”) is still pending before the Court at least with respect to the November elections. Doc. 2. The reason is simple. This Court has not granted or denied the motion with respect to the November elections. Plaintiffs filed a second motion for emergency relief, Doc. 93, which was denied, Doc. 101, but there is no such resolution with respect to the first motion as to the November elections. Defendant argues that Plaintiffs “should likely have” renewed their PI motion after filing the Amended Complaint, Doc. 129 at 6, but neither of the two cases relied upon by Defendant so holds.
Defendant’s substantive arguments fare no better. Defendant argues that some of the declarations “do[]not evidence a burden placed on voters due to the alleged postage requirement.” Doc. 129 at 9. But they do, because the declarations
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Case 1:20-cv-01489-AT Document 135 Filed 07/22/20 Page 3 of 5
illustrate the lack of reasonable alternatives to voting by mail during a global
pandemic (e.g., voting in person). This is relevant to both of Plaintiffs’ claims. See
Doc. 2 at 12 (“a poll tax is an unconstitutional abridgement of the right to vote
even if there are alternative ways to vote that are free but are still materially
burdensome.”); id. at 15 (with respect to Anderson-Burdick, “Due to the pandemic,
voting by mails is now the only meaningful option”). The remaining declarations
demonstrate the burdens directly imposed by the postage requirement. Doc. 124.1
For these reasons, the Court should consider the Supplemental Brief in
deciding whether to grant Plaintiffs’ pending PI Motion.
Respectfully submitted this 22nd day of July, 2020.
Sean Young Attorney Bar Number: 790399 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
Sophia Lin Lakin
1 Defendant continues to cling to an alleged U.S. Postal Service (“USPS”) policy, Doc. 129 at 11 (citing Defendant’s opposition to Plaintiffs’ motion for preliminary injunction, Doc. 51), which fails for the reasons Plaintiffs previously argued in their reply three months ago. See Doc. 57 at 10-11; see also Doc. 75 at 46-48. To date, Defendant’s repeated invocation of this alleged USPS policy fails to rebut or address any of these arguments raised in Plaintiffs’ reply. Nor have they once explained why, if this USPS policy exists, they continue to misrepresent to voters that postage is required and ask that voters completely ignore an explicit requirement at the risk of a voter fraud prosecution.
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Case 1:20-cv-01489-AT Document 135 Filed 07/22/20 Page 4 of 5
Dale E. Ho AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-519-7836 Email: slakin@aclu.org dho@aclu.org Attorneys for Plaintiffs
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Case 1:20-cv-01489-AT Document 135 Filed 07/22/20 Page 5 of 5
CERTIFICATE OF COMPLIANCE Pursuant to N.D. Ga. Local Civil Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with N.D. Ga. Local Civil Rule 5.1(C) in Times New Roman 14-point typeface. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
CERTIFICATE OF SERVICE I hereby certify that on the aforementioned date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Sean Young Attorney Bar Number: 790399 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF GEORGIA, INC. P.O. Box 77208 Atlanta, GA 30357 Telephone: (678) 981-5295 Email: syoung@acluga.org
5

 
 Case 1:20-cv-01489-AT Document 139 Filed 08/11/20 Page 1 of 91

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

BLACK VOTERS MATTER FUND,

:

MEGAN GORDON, and PENELOPE :

REID, on behalf of herself and all

:

others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

BRAD RAFFENSPERGER, in his

:

official capacity as Secretary of State of :

Georgia, and DEKALB COUNTY

:

BOARD OF REGISTRATION &

:

ELECTIONS, and all others similarly :

situated,

:

:

Defendants.

:

CIVIL ACTION NO. 1:20-cv-01489-AT

ORDER AND OPINION
Table of Contents I. Background .........................................................................................................5
A. Georgia’s Absentee Ballot Procedure ........................................................5 B. The COVID-19 Outbreak and Georgia’s Initial Response ....................... 9 C. Summary of Testimony............................................................................ 13
1. Cliff Albright ................................................................................... 13 2. Kevin Rayburn ................................................................................ 15 D. Evidence of Impacts on Voters ................................................................ 17 1. Plaintiffs.......................................................................................... 17

Case 1:20-cv-01489-AT Document 139 Filed 08/11/20 Page 2 of 91
2. Initial Voter Affidavits....................................................................19 3. Post-June 2020 Election Voter Affidavits .................................... 24 E. Plaintiffs’ Proffered Expert Evidence ......................................................27 1. Dr. Reingold .................................................................................. 28 2. Dr. Barreto ..................................................................................... 30 II. Standing.............................................................................................................32 III. Legal Standard for Preliminary Injunction ...................................................... 51 IV. Discussion: Poll Taxes.......................................................................................53 A. Twenty-Fourth Amendment — Poll Taxes for Federal Elections ...........53 B. Equal Protection Clause — Poll Taxes for State Elections ......................55 C. Postage Cases .......................................................................................... 56 D. “De Facto” Poll Taxes .............................................................................. 59 E. Application of the Law to the Facts ........................................................ 65 V. Discussion: Anderson–Burdick........................................................................70 A. COVID-19 Cases ....................................................................................... 71 1. Wisconsin .......................................................................................72 2. Alabama ..........................................................................................76 3. Texas ...............................................................................................79 4. Ohio ................................................................................................81 B. Natural Disaster Cases ............................................................................ 83 C. Application of the Law to the Facts ........................................................ 85 VI. Conclusion ........................................................................................................ 90
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Plaintiffs Black Voters Matter Fund Megan Gordon and Penelope Reid filed this putative class action against Brad Raffensperger, the Georgia Secretary of State (“Secretary”) and the DeKalb County Board of Registration & Elections (“DeKalb BOR”) (on behalf of all similarly situated county boards of elections) (collectively, including the proposed defendant class, “Defendants”) alleging that Defendants have unconstitutionally infringed the rights of Georgians to vote by requiring voters to pay for their own postage to submit absentee ballot applications and absentee ballots. Plaintiffs contend that the postage requirement is a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments and an unjustifiable burden on the right to vote in violation of the First and Fourteenth Amendments. Plaintiffs seek relief, in the form of (a) a declaratory judgment that the requirement that voters affix their own postage to mail-in absentee ballots and mail-in absentee ballot applications is unconstitutional; and (b) a preliminary and permanent injunction prohibiting Defendants from requiring that voters affix their own postage for absentee ballots and applications and mandating that Defendants provide prepaid postage returnable envelopes for absentee ballots or postage.
The Court previously held a hearing on Plaintiffs’ Motion on April 24, 2020. (Doc. 69.) The Court denied the Motion for Preliminary Injunction as to the June 2020 election only, and later as to the August 2020 election in response to Plaintiffs’ Motion for Temporary Restraining Order (Docs. 83, 93.) The Court has kept the issue of the November 2020 election under advisement, and the
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parties have filed a number of supplemental briefs and filings, which the Court has reviewed.
Currently pending before the Court are the following motions: • Plaintiffs’ Motion for a Preliminary Injunction as to the November 2020 General Election [Doc. 2]; 1 • The Secretary’s Motion to Dismiss Plaintiffs’ Amended Complaint [Doc. 90];
The DeKalb Defendants have also filed a Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 104). In addition to incorporating the Secretary’s arguments, the DeKalb Defendants also raise issues of immunity that the Court need not reach in connection with the instant Motion for Preliminary Injunction. Accordingly, the Court will address that motion to dismiss at a later time. For similar reasons, because the Court finds that Plaintiffs have alleged standing, the Court need not reach Plaintiffs’ Motion to Certify Plaintiff and Defendant Classes (Doc. 110) at this time.
This is one of many challenges to Georgia’s election procedures, both before and after the pandemic, pending in this district.2 This case addresses an extremely narrow question of whether the state may require voters to affix postage to absentee ballot applications and absentee ballots, or whether the state
1 Plaintiffs’ Motion to Supplement [Doc. 136] is GRANTED. 2 See, e.g., The New Georgia Project et al v. Raffensperger et al, Civil Action No. 1:20-cv-01986ELR (N.D. Ga. May 8, 2020); Anderson et al. v. Raffensperger et al., Civil Action No. 1:20-cv03263-MLB (N.D. Ga. Aug. 6, 2020); Fair Fight Action Inc. v. Raffensperger, Civil Action No. 1:18-cv-5391-SCJ (N.D. Ga. Nov. 27, 2018); Curling et al v. Raffensperger, Civil Action No. 1:17cv-2989-AT (N.D. Ga. Oct. 15, 2019) (Amended Complaints, Docs. 627, 628).
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must prepay for such postage. It is by no means the final word on Georgia’s absentee balloting procedures, election procedures or Georgia’s response in the electoral sphere to the challenges posed by the pandemic. There may be evidence that leads another court to different conclusions as to the overall legality of the absentee ballot process or specific features of that process — or their implementation within the state. But for the reasons that follow, the Motion for Preliminary Injunction is DENIED. I. Background
A. Georgia’s Absentee Ballot Procedure Georgia law permits voters to cast an absentee ballot by mail. See generally O.C.G.A. § 21-2-380 et seq.3 In order to vote by absentee ballot, a voter must first submit an application “either by mail, by facsimile transmission, by electronic transmission, or in person in the registrar’s or absentee ballot clerk’s office.” O.C.G.A. § 21-2-381(a)(1)(A). Upon receipt of a timely absentee ballot application, the relevant election official determines the voter’s eligibility. Id. § 381(b)(1). In the next step of the process, state law requires that local election officials “prepare, obtain, and deliver . . . an adequate supply of official absentee ballots to the board of registrars or absentee ballot clerk for use in the primary or election
3 Georgia law considers any voter who does not “cast[] a ballot in a primary, election, or runoff other than in person at the polls on the day of such primary, election, or runoff” to be an absentee voter, which includes early voters. O.C.G.A. § 21-2-380(a). Under Georgia law, a voter does not need to provide a reason to vote by absentee ballot. Id. § 380(b).
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Case 1:20-cv-01489-AT Document 139 Filed 08/11/20 Page 6 of 91
or as soon as possible prior to a runoff.” O.C.G.A. § 21-2-384(a)(1). Then, the relevant election official provides eligible voters with the absentee ballots. Specifically, Georgia law requires that such official “shall mail or issue official absentee ballots to all eligible applicants not more than 49 days but not less than 45 days prior to any presidential preference primary, general primary other than a municipal general primary, general election other than a municipal general election, or special primary or special election in which there is a candidate for a federal office on the ballot.” Id. § 384(a)(2).
Registered voters who submitted absentee ballot applications requesting to vote by mail are supposed to receive three things by mail prior to election day: (a) the ballot itself, (b) a small “secrecy” envelope for placing the ballot in, and (c) a larger envelope for mailing the envelope containing the ballot. O.C.G.A. § 21-2384(b), § 21-2-385(a). Prior to election day, the voter must “vote his or her absentee ballot, then fold the ballot and enclose and securely seal the same in the [smaller] envelope on which is printed ‘Official Absentee Ballot.’” O.C.G.A. § 212-385(a). Next, this smaller “envelope shall then be placed in the second [larger] one, on which is printed the form of the oath of the elector; the name and oath of the person assisting, if any; and other required identifying information.” Id. “The elector shall then fill out, subscribe, and swear to the oath printed on such envelope. Such envelope shall then be securely sealed and the elector shall then personally mail or personally deliver same to the board of registrars or absentee
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Case 1:20-cv-01489-AT Document 139 Filed 08/11/20 Page 7 of 91
ballot clerk.” Id. The backside of the mailing envelope filed by the Defendants
with the Court asks three questions in bold on the top sealing portion:
STOP
Have you signed the oath?
Have you placed your ballot in the white envelope and sealed it?
Have you affixed sufficient postage?
(Docs. 54, 55.)
The outer, larger absentee ballot return envelope has a large logo
indicating it is “Official Election Mail Authorized by the U.S. Postal Service.”
(Doc. 54-3 at 3.) The Secretary contends that the USPS has a policy of delivering
official election mail regardless of whether the mail has sufficient postage:
The USPS has previously issued specific guidance that normal procedures for short-paid and unpaid mail should not be followed when processing absentee ballot materials: absentee ballots are delivered to the election office and not returned to the voter even if there is insufficient or no postage. Postage will be collected from the election office at a later date.
(Sec’y Resp. Br. at 15–16, Doc. 51, citing Postal Bulletin 22391 2014 Election and
Political Mail Update, United States Postal Service (June 12, 2014),
https://about.usps.com/postal-bulletin/2014/pb22391/html/front_cvr.htm)
(footnotes omitted).4
4 The postal bulletin also states that “the balloting materials for all types of ballots, whether disseminated in hardcopy or electronically, must indicate in a prominent location the proper amount of First-Class Mail® postage that must be paid. . . . Alternatively, the marking ‘Apply First-Class Mail postage here’ could be printed in the upper right corner of the address side of the envelope used by the voter to return the ballot to election officials. . . . Additionally,
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As explained above, the statute requires that absentee ballot applications
may be submitted “by mail,” O.C.G.A. § 21-2-381(a)(1)(A), and that absentee ballot applications shall be “personally mail[ed] or personally deliver[ed]” by the
voter. O.C.G.A. § 21-2-385(a). However, no portion of the Georgia Code addresses who must pay for postage for absentee ballot applications and absentee ballots.5 Absentee ballot application forms do not contain prepaid postage, and
therefore the voter must pay postage to return the application. (Aff. Rayburn ¶ 8.b.) A “voter could return the completed form electronically to the county email address supplied on the absentee ballot request form that was mailed out.” (Aff.
Rayburn ¶ 8.b.) However, this option applies only to the absentee ballot application, not to the ballot itself.
Other Georgia voting statutes are more explicit about postage. For
example, O.C.G.A. § 21-2-233(b) provides that if the Secretary of State receives information from the United States Postal Service about a change of address
indicating a voter has moved to a different address in the same county she is registered in, the Secretary is required to change the list of voters to reflect the new address and send a form by forwardable mail to the voter’s old address (and
balloting materials must indicate, in a prominent location, the specific amount of First-Class Mail postage required for the return of the ballot to election officials. The marking requirements will not apply to balloting materials that meet one of the following exceptions: The balloting materials are qualified under the special exemption for military and overseas voting; the ballot is returned under Business Reply Mail® service; return postage is guaranteed through a postage due account; or postage on the ballot is prepaid by stamps, meter, or Permit Reply Mail. . . .” (emphasis added). 5 O.C.G.A. § 21-2-389 provides that the postage for sending the ballot itself to the voter “shall be paid by the county or municipality.” However, the Secretary of State apparently paid for postage on all outgoing absentee ballots issued to voters for the June 9, 2020 primary.
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optionally to the new address) containing “postage prepaid, preaddressed return form by which the elector may verify or correct the address information.” See also O.C.G.A. § 21-2-234(c) (requiring voter inactivity list confirmation notice to be a “postage prepaid, preaddressed return card.”). Plaintiffs also submitted evidence that postage appears to be provided by the Secretary in some instances not addressed by any specific statutory provision. (See Doc. 52-2 at 1-2) (voter registration application form along with prepaid envelope for such application).
Voters who do not have stamps may request and receive stamps from others for the purpose of voting. The State Election Board has interpreted O.C.G.A. § 21-2-570’s ban on gifts for registering as a voter to permit furnishing of postage by a third party for submitting an absentee ballot or absentee ballot application. Ga. R. & Reg. 183-1-19-.01.
B. The COVID-19 Outbreak and Georgia’s Initial Response The entire world is currently embroiled in a global pandemic unlike any seen in recent history. On or around February 17, 2020, the State of Georgia recorded its first confirmed case of the highly contagious viral disease known as COVID-19. COVID-19 Daily Status Report, Ga. Dep’t of Pub. Health, https://dph.georgia.gov/covid-19-daily-status-report (last accessed Aug. 7, 2020). Since then, the number of confirmed cases has surged to over 200,000, and that number continues to rise daily. Id. In recognition of this public health emergency, on March 14, 2020, Gov. Brian Kemp issued Executive Order No. 03.14.20.01, declaring a Public Health State of Emergency in Georgia. (Mot.
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Prelim. Inj. (“Motion”), Ex. F at 1.)6 Later, on April 2, 2020, Gov. Kemp issued a statewide, shelter-in-place order, entitled Executive Order to Ensure a Safe & Healthy Georgia (the “Order”). The Order required that “all residents and visitors of the State of Georgia are required to shelter in place within their homes or places of residence, meaning remaining in their place of residence and taking every possible precaution to limit social interaction to prevent the spread or infection of COVID-19” unless subject to an exception. Id. The Order noted that “[t]he Centers for Disease Control and Prevention has determined that older adults, people of any age who have serious underlying medical conditions, and certain other groups may be at higher risk for more serious complications from COVID-19.” Id.
In light of this public health emergency, Secretary of State Raffensperger announced on March 14, 2020 that he was delaying the Presidential Preference Primary Election, which was originally scheduled for March 24, 2020, and for which early voting had already begun, to coincide with the later Statewide General Primary on May 19, 2020. Secretary of State Raffensperger postpones the Presidential Preference Primary, Ga. Sec’y of State (Mar. 14, 2020), https://sos.ga.gov/index.php/elections/secretary_of_state_raffensperger_postp ones_the_presidential_preference_primary. Later, on Thursday, April 9, 2020,
6 On March 13, 2020, President Donald Trump issued a “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.” 85 Fed. Reg. 15337 (March 13, 2020), available at https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-diseasecovid-19-outbreak/.
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Secretary Raffensperger announced that, based on his authority under O.C.G.A. § 21-2-50.1, he was postponing the now-combined primary election until June 9, 2020. See Raffensperger Announces Postponement of Primary Election Until June 9, Ga. Sec’y of State (Apr. 9, 2020), https://sos.ga.gov/ index.php/elections/raffensperger_announces_postponement_of_primary_elec tion_until_june_9. Secretary Raffensperger further provided that “[a]bsentee ballot applications for the upcoming primary election will continue to be accepted and processed by counties even if the application said May 19.” Id.
The Secretary of State took the additional step of mailing absentee ballot applications to every registered, active voter. (Transcript of Telephone Conference Proceedings held on April 14, 2020 before Judge Totenberg (“Tr.”), at 18:2–15, 23:1–6, Doc. 39; Affidavit of Kevin Rayburn ¶ 8.a, Doc. 51-1.) Counsel for the Secretary indicated that absentee ballots would be sent out to eligible voters who submitted applications 49 days prior to the election and would continue to be sent out as received. (Tr. 6:3–11.)
The absentee ballot applications which were sent by the Secretary of State did not contain prepaid postage, and therefore voters were required to provide postage to return the application if mailed to their local board of elections office. (Aff. Rayburn ¶ 8.b.) “Alternatively, the voter could return the completed form electronically to the county email address supplied on the absentee ballot request form that was mailed out.” (Aff. Rayburn ¶ 8.b.) Defendants likewise do not intend to send out absentee ballots with prepaid postage. (Aff. Rayburn ¶ 8.e.)
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(“As in every prior election, the voter is responsible for obtaining postage directly or through a third party or the voter can return the sealed and signed envelope directly to their county elections office.”).
On April 15, 2020 “the State Election Board passed an emergency rule that authorizes counties to establish secured absentee ballot drop boxes where voters may drop off completed absentee ballots to a secured location without using a stamp.” Ga. St. Election Bd., Emer. R. 183-1-14-0.8-.14, (Doc. 130-2.) Most counties took advantage of this rule to set up at least one drop box, and many set up several. (Doc. 130-3.) However, at least 62 counties did not. (Doc. 130-4.)
Governor Kemp renewed the Public Health State of Emergency on April 30, and again on May 28, June 29, and July 31, 2020. Ga. Exec. Order No. 07.31.20.01, available at https://gov.georgia.gov/document/2020-executiveorder/07312001/download. However, Kemp did not extend the Statewide Shelter in Place Order, and therefore it expired on April 30, 2020 at 11:59 pm.7 Over 1.2 million Georgians voted in person in the June 2020 election. See Special Election Set for U.S. House of Representatives District 5, Ga. Sec’y of State, https://sos.ga.gov/index.php/elections/special_election_set_for_us_house_of_ representatives_district_5 (last visited Aug. 3, 2020). Over 1.1 million voted by absentee. Id.
7 See Bluestein, Kemp to lift statewide shelter-in-place for most Georgians on Friday, Atl. J.Const. (Apr. 30, 2020), https://www.ajc.com/blog/politics/breaking-kemp-lift-statewideshelter-place-for-most-georgians-friday/JdXpKK1srCbzlPZc2y3XuJ/.
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C. Summary of Testimony At the April 24, 2020 video hearing, the Court heard testimony from a total of two witnesses, one per side. The Court summarizes their testimony as follows.
1. Cliff Albright Plaintiffs’ witness was Cliff Albright, the Cofounder and Executive Director of Plaintiff Black Voters Matter Fund (“BVMF”). (Tr. of Apr. 28, 2020 hearing at 32:17-18, Doc. 75.) Mr. Albright testified that the organization was founded in 2016, but that it began operations in earnest in 2017. The organization’s “mission is to help build power primarily in predominantly black communities.” (Id. at 32:18-19.) BVMF does not have members in the ordinary sense, but rather works with a variety of “partner” organizations to provide voter support for the members of those organizations, phone banking, texting, social media, and inperson voter education and engagement, and provides grants to such organizations. (Id. at 40–41, 48–49.) These organizations range from individual churches to specific NAACP chapters. (Id. at 62:14-20.) Mr. Albright testified that BVMF has a geographic focus on the rural south. The organization assists with voter registration and advocates for increased voting opportunities such as more polling places. Additionally, the organization has assisted in arranging rides for voters who are unable to get to the polls on their own. Mr. Albright testified that in rural communities, some voters may have to travel as many as ten miles or more to get to a polling place. However, he testified that BVMF has ceased assisting with voter transportation during the
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COVID-19 pandemic, as community organizers “shouldn’t have to put themselves at risk.” (Id. at 35:10-15). Mr. Albright testified that postage is a real impediment for the population he advocates for. He explained that many families do not have postage at their home and have limited options for purchasing postage. (Id. at 39:21-24.) These families do not have internet or even credit cards to purchase postage remotely.
Mr. Albright testified that “if a group wanted to go out and buy 100 stamps, then . . . we provide many grants to our local partners so they can do things like that, in addition to other things that they usually do for voter mobilization.” (Id. at 42.) Mr. Albright does not intend to advise voters to submit their absentee ballots without postage, as he is concerned that advising voters to disregard the clear instructions on the ballot will confuse voters and undermine BVMF’s credibility within the community. (Id. at 47:13-21.) He also expressed concern that there could be no guarantee that the postal service’s policy will actually be carried out county by county. (Id.)
Mr. Albright submitted a supplemental declaration after the hearing. (Doc. 77-1.) In it, he expressed his expectation that 50% of BVMF’s Georgia-related budget ($400,000) would have to be diverted toward responding to the postage requirement. (Albright Supp. Decl. ¶ 1, 37.) Absent this requirement, he explained that those funds would be used for “voter education and helping voters overcome the other steps of voting by mail.” (Id. ¶ 2.)
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BVMF has “two principal operations” — voter education and grants. (Id. ¶ 6.) BVMF only has three staff members in Georgia, and Mr. Albright finds it more efficient and respectful to provide funding to local organizations than to “swoop[] in” and duplicate those organizations’ work. (Id. ¶ 15.) Before the pandemic, BVMF focused its operations on in person voting. (Id. ¶ 18.) Now, it has pivoted to voting by mail, and several grant recipients are exploring using grant money to directly purchase and distribute postage. (Id. ¶ 25.) However, Mr. Albright is still planning for the “not-unlikely possibility” that BVMF will have to distribute stamps itself. (Id. ¶ 39.) Additionally, he anticipates BVMF having to redirect time and money related to text messaging, phone banking, radio ads, and social media ads to focus on the postage requirement. (Id. ¶¶ 44, 49, 51, 54.)
2. Kevin Rayburn Defendants’ sole witness was Kevin Rayburn, the Deputy Elections Director and Deputy Elections Director for the Georgia Secretary of State. Mr. Rayburn explained the process for absentee voters to request and submit their ballots by mail and the steps that the Secretary of State has taken to secure voting during COVID-19 pandemic, including mailing absentee ballot applications to all active registered voters, which totaled 6.8 million, at a cost of over $3 million. (Id. at 68:22-24, 90:3-7.) Furthermore, the State is providing municipalities with sanitizing products for polling places and grants for some measure of funding for the purchase of secure drop boxes and associated electronic security if local election boards determine they wish to implement or
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acquire such. (Id. at 69.) Mr. Rayburn outlined the option for voters to drop completed ballots in secure drop boxes in counties purchasing this equipment. Each county board of elections has the option of establishing one or more drop boxes which must be on county or municipal property with video security of the box. (Id. at 67:7-11.) Boxes must be attached to a fixture or the ground with appropriate signage and labeling. Ballots must be removed each day, as well as simultaneously with the polls closing at 7 pm. (Id. at 67:12-15.) The county election boards must publicize the locations of the boxes on their websites. (116:15-19.)
Mr. Rayburn explained the procedures related to sending mail with return postage prepaid under the USPS’s Business Reply Mail program in the event the Court were to require prepaid postage on return envelopes for all mail-in ballots. Accounts must be pre-funded, and according to Mr. Rayburn, mail must be addressed to the return address associated with the BRM account. Mr. Rayburn testified that the Secretary of State’s office is capable of sorting and delivering voter registration applications it receives to the various counties over the course of the year, but does not have the staff to sort and deliver absentee ballots to the counties for elections.8 If absentee ballots and applications were to be sent with
8 Mr. Rayburn acknowledged that some election-related forms already contain prepaid postage. For example, the confirmation notice to move voters from active to inactive status must be sent by the secretary with return postage prepaid under the National Voter Registration Act, 52 U.S.C. §§ 20501 et seq. (formerly 42 U.S.C. §§ 1973gg et seq.). Furthermore, the recently passed Georgia HB 316 (2019―20) requires that the final notice of inactivity status also be sent with
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return postage prepaid, Mr. Rayburn testified that each county would potentially have to set up its own Business Reply Mail account at an initial cost of roughly $1,000 and pre-fund it. (Id. at 99:14-17.) He estimated the cost of providing prepaid postage for Plaintiffs’ requested relief at between $450,000 to $4.2 million, depending on voter participation. (Aff. Rayburn ¶ 17.)
Finally, Mr. Rayburn testified that the number of absentee ballot applications received as of the hearing was over “760,000 and still coming in strong,” that the state has already “started mailing out absentee ballots on April 21st,” and that as of the hearing date, “approximately 220,000 have gone out.” (Tr. at 84, 87.) As noted above, over 1.1 million people voted by mail in the June 2020 primary election.
D. Evidence of Impacts on Voters Plaintiffs offered declaration testimony in connection with the Motion for Preliminary Injunction and supplemented with additional declarations following the June 2020 primary.
1. Plaintiffs Plaintiff Megan Gordon, a resident of DeKalb County, is opposed to paying for postage associated with absentee mail-in voting. (Gordon Decl., Doc. 2-5.) Although Gordon currently has two postage stamps, she attests that she is unwilling to put postage on mail-in absentee ballots and applications because she
return postage prepaid. The Secretary of State has additionally provided for prepaid postage for “a small portion” of voter registration applications. (Tr. at 71:24-72:5, 73, Doc. 75.)
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believes Georgians should not have to spend money to vote. Gordon is also unsure how much postage is needed to mail an absentee because she does not have a postage scale.
Gordon does not want to vote in person because of the dangers stemming from the COVID-19 pandemic. If she has the virus, she does not want to endanger others’ lives, especially the elderly and those with chronic illness or compromised immunity. If she does not have the virus, she does not want to contract it, which would also increase the risk of harm to her own health and to others.
Gordon is experienced in voter engagement work, especially among lowerincome populations. From her experience in civic engagement, Gordon has learned that many voters, especially lower-income voters, do not have postage stamps because people are increasingly relying on online transactions. It is also her experience that many people in rural areas and lower-income people do not have Internet access or credit cards, making it impossible for them to purchase stamps online. In Gordon’s experience, many voters cannot afford $10 to buy a book of stamps. She believes this is especially true while many people are out of work as a result of the COVID-19 pandemic. According to Gordon, voter education becomes more difficult the more steps are required of voters – and requiring voters to provide their own postage further complicates an already confusing process.
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Plaintiff Penelope Reid lives in Gwinnett County. (Reid Decl., Doc. 38.) She grew up in a political family and preferred to vote in person, but since 2014 or 2016, she has had to vote absentee because of knee problems. She is also unsure how much postage to apply for a ballot and does not have a postage scale. She usually purchases stamps from the post office, but does not think she would be able to do that safely now because of the pandemic. She does have stamps left from before the pandemic, which she was able to use to vote, but she is starting to run out of stamps now and she is not sure how she will get more. (Reid Supp. Decl., Doc. 124-7.)
2. Initial Voter Affidavits On April 10, the Court entered an Order permitting Plaintiffs the opportunity to submit declarations from voters in connection with to the preliminary injunction hearing to substantiate Plaintiffs’ claims. Plaintiffs thereafter submitted declarations from 26 Georgia voters on a rolling basis from April 13 to April 23. Of these 26 declarations, 15 are from voters who are at a higher risk of developing severe symptoms from COVID-19 (or live with someone who is high risk) because of age or an underlying medical condition or compromised immunity. (See Reid Decl.; Solomon Decl.; Burke Decl.; Walker Decl.; Walbert Decl.; Kite Decl.; Bryant Decl.; Winn Decl.; Bacot Decl.; Taylor Decl.; Billingsley Decl.’ Kendrick Decl.; Kirslis Decl.; P. Robinson Decl.; C. Robinson.) Nine voters say they do not currently have stamps. (See Mahmood Decl.; Burke Decl.;
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Walbert Decl.; Stewart Decl.) Four voters attest that it would be a financial hardship for them to purchase postage stamps for the sole purpose of voting by mail. (See Kite Decl.; Bryant Decl.; Evans Decl.; Wille Decl.) But one of these voters, Savanah Kite, currently has stamps. (See Kite Decl., Doc. 25.) Twelve of the 26 declarants, already possess stamps or have purchased them online, and do not profess any financial burden in affording postage. Nearly every voter who offered a declaration indicated that they do not know how much postage to affix on an absentee ballot because they do not own a postage scale.
Three declarants, Delinda Bryant, Anna Wille, and Jerald Luster, state that they do not have a means of reliable transportation to go out to purchase postage stamps. (See Bryant Decl.; Wille Decl.; Luster Decl.) Luster, however, was able to purchase stamps online. (Luster Decl., Doc. 60.)
Delinda Bryant, a 63 year old Dougherty County voter, was unsure whether she will be able to vote because she did not have any stamps and the $10 cost for a book of stamps would be a hardship. (Bryant Decl., Doc. 24.) Bryant, who suffered a stroke in 2007, barely receives enough money in disability and retirement payments to afford to pay her mortgage, utilities, and food. She receives $16 in Supplemental Nutrition Assistance Program benefits. Although she owns a car, she cannot drive because she cannot afford to pay for a needed transmission repair. Bryant also attests that she does not think she can get stamps because everything seems to be closed because the coronavirus has severely impacted Dougherty County, an original hotspot of the virus in Georgia.
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Bryan also attests that based on her participation with civic engagement and a voter organization in 2018, she knows that members of her community have difficulty with voting by mail. Bryant attests that her community has a lot of poverty and illiteracy and further, that a number of elderly people she has worked with do not have Internet.9
Voting is important to Richard Evans, an African American DeKalb County resident, who has been homeless for over two years. (Evans Decl., Doc. 65.) Evans has always previously voted in person, never by mail. Although he is homeless, Evans is employed, has a phone with email access and a car. Evans is able to submit his ballot application by email, but he does not have stamps for mailing in his voted absentee ballot. For Evans, a $10 book of stamps is half a tank of gas, enough for two days, traveling to work and other places. Ten dollars is also the cost of two meals. While he would not go hungry, it would be a hardship to use this money for postage instead of necessities like gas and food.
Marilyn Winn, is an African American, soon to be 69 years old, who is at greater risk from COVID-19 because of her age. (Winn Decl., Doc. 12.) Winn attests that she would prefer to vote in person. She does not trust the mail system because it has historically been less reliable or non-functional in communities of color. Winn will, however, vote by mail in upcoming primary because of the pandemic, though she hopes to vote in person for future elections.
9 As will be discussed below, Ms. Bryant ended up having to vote in person in the June 2020 election.
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Having never voted by mail, Winn finds the process to be complicated. She has already mailed in her ballot application. She used 2 stamps because the application was printed on card stock and she had no idea how much postage was necessary and she does not own a postage scale. While Winn has postage stamps, she uses them to mail clemency letters on behalf of incarcerated women and every stamp she uses for voting is one less stamp she has for this work. She does not think any voter should have to buy their own postage – she will do it but should not have to. Winn attests that the pandemic could affect her economically. She is the executive director of a small nonprofit of five staff. Funding will likely go down as donors give less. Winn is very fearful of her staff losing their jobs. Winn currently has the money to spend $10 for a book of stamps, but it is not an insignificant amount of money where there is a real possibility she may lose her job this year.
Katie Vinson Kendrick is a 71 year old resident of Peach County. (Kendrick Decl., Doc. 56.) She usually votes in person but is at a higher risk of complications from the COVID-19 virus because of her underlying conditions, including prior cancer and diabetes. Kendrick runs a nonprofit with a focus on community engagement in Crawford, Macon, Peach, and Taylor counties. (Kendrick Decl., Doc. 56.) Her organization plans “get out the vote” efforts, “get out the census,” voter registration, and voter education activities. One focus of her nonprofit now is helping residents vote absentee during the pandemic. Kendrick attests that Peach is a rural county without many options for public
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transportation. During the pandemic, ride share would be dangerous for voting in person. Voting by mail is the only option that currently makes sense. According to Kendrick, there are a lot of people in Peach County who would have a hard time paying $10 for a book of stamps. She avers that it is even more difficult to obtain stamps in Peach County because of the pandemic. She is concerned about voters being able to return their ballots and her organization is struggling to figure out how to make stamps available to everyone. Kendrick herself has stamps at home, but not a scale, so she is not sure how many to use. She does not know anyone or any business that has a postage scale.
Two voters, Mahmood and Wayman Stewart, are currently out of town and voting by mail is their only option. (Stewart Decl., Doc. 64) (attesting that he is out of state caring for a sick relative, and will either have to buy postage online or at a post office with a self-serve kiosk to avoid or minimize COVID-19 exposure); (see also Mahmood Decl., Doc. 33.) Ahmed Mahmood is a third year medical student who maintains residency in Cobb County, but is currently doing clinical rotations in Broward County, Florida. (Mahmood Decl., Doc. 33.) As a result, he is unable to vote in person in the June 9 primary elections in Georgia unless he were to take the 10-hour road trip or risk exposure to COVID 19 on a flight to Atlanta. Mahmood attests that he does not have access to stamps, and that the process of obtaining postage for an absentee ballot is more difficult now because of the COVID-19 pandemic. He is isolating himself in compliance with the State of Florida and Broward County stay at home orders and only leaves the house for
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essentials. Mahmood has access to the Internet but does not address whether he can afford to purchase stamps online.
At the April 24 hearing, the Secretary presented evidence that several of the voters who submitted affidavits were able to successfully vote absentee. (Sec’y’s Hrg. Ex. 1-7, Doc. 70.)
3. Post-June 2020 Election Voter Affidavits The Court previously “expressed concern about ruling on the important questions presented by Plaintiffs’ Motion for Preliminary Injunction before the June 2020 Primary play[ed] out.” (Ord. of May 15, 2020 at 3, Doc. 101.) The Court is cognizant of Justice Stevens’s suggestion in his Purcell concurrence that, where feasible, courts may consider allowing “election[s] to proceed without enjoining the statutory provisions at issue” to provide “a better record on which to judge their constitutionality . . . on the basis of historical facts rather than speculation.” Purcell v. Gonzalez, 549 U.S. 1, 6 (2006) (Stevens, J., concurring). At the May 12, 2020 teleconference on Plaintiffs’ request for a temporary restraining order, the Court explained that before reaching Plaintiffs’ claims, it “would rather also have some evidence in the June election” before reaching the merits of Plaintiffs’ constitutional claims. (Tr. of May 12, 2020 Conf. at 12:4–5, Doc. 95). Plaintiffs heeded the Court’s advice and on June 30 submitted
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supplemental evidence from voters recounting their voting experience in the June 2020 primary election.10
Delinda Bryant had previously submitted testimony that she was concerned about her ability to obtain a stamp to vote by mail. See supra. Bryant was not able to vote absentee because “[g]etting that stamp was just too hard for [her] in terms of the cost of the stamp and being able to go out to the post office to get the stamp.” (Bryant Supp. Decl. ¶ 2, Doc. 124-1.) Instead, she voted in person, forcing her to be exposed to the virus. (Id. ¶ 8.)
Several other voters expressed concern about their ability to obtain stamps to vote. Christine Legnon wanted to vote absentee, but did not have stamps, so she voted in person. (E.g. Legnon Decl ¶ 4–5, Doc. 124-2.) She ended up waiting four hours and 20 minutes to vote, and during that time she was concerned that poll workers were not enforcing social distancing. (Id. ¶¶ 9, 11.) Pablo Bassols never received his absentee ballot, but even if he had, he did not have any stamps at home. (Bassols Decl. ¶¶ 4, 5, 10, Doc. 124-8.) Al Lewis is disabled and was able to vote absentee, but relies on a home health aide to purchase stamps and would have a difficult time obtaining them otherwise. (Lewis Decl. ¶¶ 3, 10, 11, Doc. 12428.)
10 The Secretary’s arguments that these affidavits are improperly before the Court because the Court has already ruled on Plaintiffs’ Motion for Preliminary Injunction as to the prior elections and that Plaintiffs should have renewed the motion or that the supplemental voter affidavits should have been attached to the original motion (filed long before the conduct described in the voter affidavits even occurred) are baseless and overruled. (See generally Doc. 129.)
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Fantasia Smith did not apply for an absentee ballot because she did not “have stamps at home.” (Smith Decl. ¶ 3, Doc 124-6.) She does not indicate in her declaration that she could not afford the postage or that obtaining postage would have been burdensome in light of the pandemic. When Smith attempted to vote in person during the June 9 primary, she was not permitted to vote due to an address discrepancy after waiting in line on election day for three hours. (Id. ¶ 8.)
Several voters who applied for absentee ballots did not receive them in time to vote. (Bassols Decl. ¶ 5, Doc. 124-8; Kuttig Decl. ¶ 7, Doc. 124-9; Moore Decl. ¶ 13-14, Doc. 124-10; Burke Supp. Decl. ¶ 4, Doc. 124-11; Waddoups Decl. ¶ 4, Doc. 124-13; Jackson Decl. ¶ 11, Doc. 124-14; I. Hudson Decl. ¶ 3, Doc. 124-15; Parikh Decl. ¶ 7, Doc. 124-17; Aguillard Decl. ¶ 9, Doc. 124-19; K. Hudson Decl. ¶ 15, Doc. 124-20; Kennedy Decl. ¶ 8, Doc. 124-21; Thomas Decl. ¶ 7, Doc. 124-29.) Other voters who voted in person faced unreasonable wait times, (Bryant Supp. Decl. ¶ 8, Doc. 124-1; Legnon Decl. ¶ 11, Doc. 124-2; Junior Decl. ¶ 7, Doc. 124-3; Smith Decl. ¶ 8, Doc. 124-6; Bassols Decl. ¶ 9, Doc. 124-8; Wise Decl. ¶ 6, Doc. 124-12; Jackson Decl. ¶ 18, Doc. 124-14; I. Hudson Decl. ¶ 6, Doc. 124-15; Enriquez Decl. ¶ 8, Doc. 124-16; Parikh Decl. ¶ 9, Doc. 124-17; Pruitt Decl. ¶ 7. Doc. 124-18), or felt unnecessarily exposed to the virus (Burke Supp. Decl. ¶ 11, Doc. 124-11; Bassols Decl. ¶ 4, Doc. 124-8.) One voter described the situation inside a polling location as a “nightmare,” noting that “there was no way they could fit so many people and maintain six feet apart.” (Jackson Decl. ¶ 15, Doc. 124-14.)
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The Secretary responds that “[f]ourteen of the declarations attached to the Supplemental brief do not even mention stamps or postage,” (Resp. to Supp. Br. at 10, Doc. 129, citing Docs. 124-3, 124-11, 124-12, 124-13, 124-14, 124-15, 124-17, 124-19, 124-20, 124-21, 124-24, 124-25, 124-26, 124-27), and that of the “remaining fifteen declarations . . . not a single one claimed that an inability to obtain or afford stamps prevented them from going to the polls or casting a ballot in the June 2020 Primary Election.” (Id., citing Docs. 124-1, 124-2, 124-4, 124-5, 124-6, 124-7, 124-8, 124-9, 124-10, 124-16, 124-18, 124-22, 124-23, 124-28, 12429.)
E. Plaintiffs’ Proffered Expert Evidence Plaintiffs have submitted, among other evidence, the declaration of Dr. Arthur L. Reingold (Doc. 57-1) and the Report of Dr. Matthew A. Barreto (Doc. 124-35). Mindful of the fact that this is the preliminary injunction stage and that Defendants have not had a full opportunity to conduct depositions, employ rebuttal experts, and potentially seek exclusion of the evidence under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court considers these materials only to the extent “appropriate given the character and objectives of the injunctive proceeding.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan American Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)).
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1. Dr. Reingold
Dr. Reingold is the “Division Head of Epidemiology and Biostatistics at the
University of California, Berkeley, School of Public Health “and has “worked on
the prevention and control of infectious diseases in both the United States,
including eight years at the US Centers for Disease Control and Prevention
(‘CDC’).” (Decl. Reingold ¶ 1, Doc. 57-1.) Dr. Reingold provided background on
the COVID-19 as follows:
SARS-CoV-2 is a novel coronavirus that causes Coronavirus Disease 2019 (COVID-19). The virus is a respiratory virus with patients typically presenting with acute respiratory signs and symptoms, which can escalate in some patients to respiratory failure and other serious, life-threatening complications.
. . .
Due to the respiratory impacts of the disease, individuals may need to be put on oxygen, and in severe cases, patients may need to be intubated and put on a ventilator. People of every age can and have contracted COVID-19, including severe cases, but geriatric patients are at the greatest risk of severe cases, long-term impairment, and death. Likewise, those with immunologic conditions and with other pre-existing conditions, such as hypertension, certain heart conditions, lung diseases (e.g., asthma, COPD), diabetes mellitus, obesity, and chronic kidney disease, are at high risk of a lifethreatening COVID-19 illness. Information available to date shows that, if infected with the SARS-CoV-2 virus, racial and ethnic minority populations, especially African-Americans, are at a substantially elevated risk of developing life-threatening COVID-19 illnesses and to die of COVID-19.
(Id. ¶ 7.) Dr. Reingold also described how COVID-19 spreads. He explained that
the virus “is readily spread through respiratory transmission” including “droplet
transmission; that is, when an infected individual speaks, coughs, sneezes, and
the like, they expel droplets which can transmit the virus to others in their
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proximity.” (Id. ¶ 8.) At the time of his declaration (April 21, 2020), he stated that
it “was not yet determined . . . whether the virus is aerosolized, such that tiny
droplets containing the virus remain in the air and can be inhaled by others who
come into contact with that air.” (Id.) He also noted that “[t]he virus is also
known to be spread through the touching of contaminated surfaces.” (Id.)
According to Dr. Reingold, “the only ways to limit [the virus’s] spread are
self-isolation, social distancing [i.e., maintaining six feet of distance], frequent
handwashing, and disinfecting surfaces.” (Id.)11 Dr. Reingold opined, therefore,
that voting in person at a polling location imposed a risk of virus transmission:
Polling locations are a prime area for increased transmission of SARS-CoV-2 due to the close proximity of a large number of individuals — voters, observers, poll workers — in a limited space. A polling location also has a large number of common surfaces that multiple people touch: the doors, the poll books to sign in, pens, voting booths, and voting machines. Due to the transmission of the virus via contaminated environmental surfaces, polling locations are highly likely to cause increased infection.
(Id. ¶ 17.)12 He thus concludes that widespread vote-by-mail or absentee balloting
would be a much safer option for public health in light of COVID-19.” (Id.)
11 The CDC has also recommended wearing masks to slow the spread of COVID-19. Use of Masks to Help Slow the Spread of COVID-19, CDC.gov (June 28, 2020), https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html. 12 The Court recognizes that scientific assessment of how COVID-19 spreads has developed over the last several months, and the current understanding focuses more on the dangers that dwell in the immediate area that an infected individual has occupied, due to potential aerosolization of respiratory droplets, as opposed to surface contact, though surface contact still remains an issue. In that context, polling booth areas, used serially by one voter after the next, as well as voting lines, would still pose serious potential infection risks for voters. See CDC Recommendations, Considerations for Election Polling Locations and Voters, (August 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html.
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2. Dr. Barreto Dr. Barreto earned a Ph.D. in Political Science in 2005 and since 2015 has been “a Professor of Political Science and Chicana/o Studies at the University of California, Los Angeles (‘UCLA’), and the faculty director of the UCLA Voting Rights Project, a joint program of the Division of Social Sciences, School of Public Affairs, and School of Law.” (Barreto Decl. ¶¶ 1, 2, 4, Doc. 124-35.) Dr. Barreto was retained by Plaintiffs “to evaluate whether there are burdens that voters in Georgia would possibly face if required to obtain and pay for postage on their absentee ballots (vote-by-mail).” (Id. ¶ 9.) He began his analysis by conducting a comprehensive literature review and demographic analysis of Georgia. (Id.) He then “conducted an analysis of the statewide voter file for Georgia, geocoding each voter’s address and matching it against the nearest postal facility or location that sells stamps.” (Id.) The purpose of this analysis was “to determine what share of voters reside in ‘postal deserts’ using similar methodology developed by the U.S. Department of Agriculture to identify ‘food deserts.’ (Id.) (footnote omitted). Dr. Barreto concluded that “the requirement that voters purchase their own postage stamps” (“Postage Requirement”) “presents a burden on voters . . . especially . . . low-income and minority voters and those in rural geographies.” (Id. ¶ 11.) He concluded “that millions of Georgia voters are in at-risk categories of being burdened” by the Postage Requirement based on several factors: a. the decline in mail familiarity and usage;
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b. high levels of poverty, low wages or inability to meet selfsufficiency; c. no or limited access to a personal vehicle or reliable transportation; d. language barriers for voters coupled with inadequate service at post office locations for non-English speakers; e. limited access to computer and internet to purchase stamps online; f. high rates of being unbanked; g. population with many high risk factors for COVID-19; (Id. ¶ 12.) He concluded that “40% of voters (2.78 million) in Georgia have lowaccess to postal services, and 15% of all voters (1.04 million), face severe isolation from a postal retailer,” which he describes as “living in a ‘postal desert,’” a condition “highest for Latino[] (17%) and Black[] (28%)” voters, as compared to White voters (8%), a difference that he found statistically significant in regression analysis. (Id. ¶¶ 13, 81.) These data were based on a definition of “postal desert” as follows: those voters who “1) live more than 0.5 miles away from a postal service in an urban area or 10 miles away from a postal service in a rural area and 2) live in a census tract with a poverty rate above 20%.” (Id. ¶ 74.) Even for those voters who are able to make it to stores that may sell postage, Dr. Barreto identified several issues facing those voters, such as disparities in price, payment method, and availability (id. ¶ 86, 89–90, 92), and most notably COVID-19 exposure (id. ¶ 94 et seq.).
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Dr. Barreto identified several burdens to purchasing stamps online as an alternative. First, to make any online purchase, a person needs an internet connection and a credit card or bank account. (Id. ¶ 42.) A person also needs literacy in English, Spanish, or Chinese, as well as computer literacy necessary to obtain an email address. (Id.) Next, a person needs $7.90, which is the minimum purchase price for the smallest book of stamps (12), taking into account added fees. (Id. ¶ 43.)
The Secretary contends that Dr. Barreto does not discuss the fact that the USPS will purportedly deliver election mail without postage, which the Secretary argues renders the report “entirely irrelevant and unpersuasive.” (Resp. to Supp. Br. at 11, Doc. 129.) II. Standing
Defendants challenge Plaintiffs’ standing to pursue the requested relief. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Plaintiffs must demonstrate three elements to establish standing under Article III. First, Plaintiffs must have suffered, or must face an imminent and not merely hypothetical prospect of suffering, an invasion of a legally protected interest resulting in a “concrete and particularized” injury. United States v. Hays, 515 U.S. 737, 742-43 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); Common Cause/Georgia v. Billups, 554 F.3d 1340,1349 (11th Cir. 2009) (quoting Fla. State Conference of NAACP v.
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Browning, 522 F.3d 1153, 1159 (11th Cir. 2008)). Second, the injury must have been caused by Defendant’s actions. Hays, 515 U.S. at 742-43; Billups, 554 F.3d at 1349. Third, Plaintiffs’ injury, or threat of injury, must likely be redressed by this Court decision. Hays, 515 U.S. at 743; Billups, 554 F.3d at 1349. A plaintiff must demonstrate standing “for each claim he seeks to press and for each form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 734 (2008)).
As the Supreme Court explained many decades ago, “the standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. at 498–99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The court’s jurisdiction therefore “can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action.’” Warth v. Seldin, 422 U.S. at 499 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). The question of whether the Plaintiffs ultimately will prevail on the merits of their asserted claims is not the question before the Court in assessing standing. Id. at 500-501 (“Although standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal, it often turns on the nature and source of the claim asserted.”) (internal citation omitted); Wooden v. Bd. of Regents of Univ. Sys. of Georgia, 247 F.3d 1262,
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1280 (11th Cir. 2001) (“A finding that plaintiff has standing simply means that the plaintiff is entitled to ‘walk through the courthouse door’ and raise his grievance before a federal court; it is a threshold determination that is conceptually distinct from whether the plaintiff is entitled to prevail on the merits . . . we cannot read the Court’s jurisprudence as conflating the standing inquiry with resolution of the merits of the plaintiff’s attack on race-conscious governmental decision-making.”).
The Supreme Court has “long recognized that a person’s right to vote is ‘individual and personal in nature.’” Gill, 138 S.Ct. at 1929 (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)). “Thus, ‘voters who allege facts showing disadvantage to themselves as individuals have standing to sue’ to remedy that disadvantage.” Id. (quoting Baker v. Carr, 369 U.S. 186, 206 (1962)). The Eleventh Circuit recently held in Jacobson v. Florida Sec’y of State that although “[v]oters have no judicially enforceable interest in the outcome of an election,” they do “have an interest in their ability to vote and in their vote being given the same weight as any other.” 957 F.3d 1193, 1202 (11th Cir. 2020) (emphasis in original). “A plaintiff need not have the franchise wholly denied to suffer injury. Any concrete, particularized, non-hypothetical injury to a legally protected interest is sufficient.” Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351– 52 (11th Cir. 2009). “Each provision of a[n election] code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some
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degree — the individual’s right to vote and his right to associate with others for political ends.’ ” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)); see also id. at 434 (“There is no doubt that the Hawaii election laws, like all election regulations, have an impact on the right to vote.” (emphasis added)).
At the pleading stage, the plaintiff is only required to provide “general factual allegations of injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “[H]owever, those allegations must nevertheless contain sufficient detail for the Court to determine that plaintiffs ‘have made factual averments sufficient, if true, to demonstrate injury in fact.’” Summers, 555 U.S. at 493 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) (“extreme generality” of allegations insufficient to demonstrate standing)). In ruling on a motion to dismiss for lack of standing, the court must accept as true all material allegations of the complaint and construe them in the Plaintiffs’ favor. Warth, 422 U.S. at 501-02 (citations omitted). At the same time, it is within the court’s power to consider by affidavits further particularized allegations of fact deemed supportive of plaintiff’s standing to determine whether the plaintiff’s standing adequately appears from all materials of record. Id. Here, the Court is able to refer both to the allegations of Plaintiffs’ Amended Complaint and the declarations submitted by Plaintiffs in connection with their Motion for Preliminary Injunction.
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A. Organizational Standing of Plaintiff Black Voters Matter Fund
Plaintiff BVMF asserts it has organizational standing. (Am. Compl., Doc. 88 ¶ 13; Resp. to Def. Raffensperger’s MTD, Doc. 84 at 28.) BVMF does not assert associational standing, as it has no members. (Resp. to Def. Raffensperger’s MTD, Doc. 84 at 28; Tr. of Apr. 28, 2020 Hg., Doc. 75 at 49:1-4.)
It is well established that an organization can establish standing to sue on its own behalf where it can show the defendant’s acts resulted in an impediment to the organization’s mission or diversion of its resources. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (holding that an organization has standing to sue on its own behalf if the defendant’s illegal acts impair its ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts); Billups, 554 F.3d at 1350 (holding that NAACP established an injury sufficient to confer standing to challenge voter ID statute where evidence showed that the NAACP “uses [its] resources to maximize the ability to mobilize voters and educate voters and register voters,” and that the statute would impact the NAACP’s voter registration efforts “because it would have to divert volunteers and resources from “getting [voters] to the polls” to helping them obtain acceptable photo identification”); Browning, 522 F.3d at 1158, 1164-66 (holding that organizations had standing to challenge a voting requirement in Florida because the organizations “reasonably anticipate[d] that they [would] have to divert personnel and time to educating volunteers and voters on compliance”
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with the new voting requirements “and to resolving the problem of voters left off the registration rolls on election day”).
Defendant Raffensperger asserts that Plaintiff BVMF cannot demonstrate organizational standing under a diversion of resources theory by claiming “it will have to divert resources from voter education and ‘other efforts to facilitate voting by mail,’ and towards making sure that voters know about postage when mailing an absentee ballot or absentee ballot application” because “[t]his is not diversion: educating voters about how to vote is voter education.” (Def.’s Br. Supp. MTD, Doc. 67-1 at 15, citing Pls.’ Am. Compl.) Defendant Raffensperger implies that to establish this type of organizational standing, BVMF would have to allege the cessation of an established purpose of the organization and a redirection of resources to address the challenged action. (Id.) The DeKalb Defendants similarly assert that BVMF’s allegation of harm is conclusory because it has failed to specify how it has diverted its resources and that it must show “more than simply a setback to the organization’s abstract social interests. . . .” (Doc. 80 at 10) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).
According the Plaintiffs’ Amended Complaint, BVMF is a non-partisan civic organization “whose goal is to increase power in communities of color [that] often face barriers to voting that other communities do not.” (Am. Compl., Doc. 88 ¶ 13.) BVMF’s work therefore focuses on “removing those barriers” and “increasing voter registration and turnout, advocating for policies to expand
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voting rights and access” in communities in the “rural Black Belt of Georgia” which “tend to be the most neglected, and have higher rates of poverty than other places.” (Id.) Plaintiff BVMF alleges that it “must divert scarce resources away from voter education and away from other efforts to facilitate voting by mail, towards making sure that voters know about the postage requirement and how to obtain it especially for those with less resources.” (Id.)
In addition to the complaint allegations, BVMF has offered two declarations from its Co-Founder and Executive Director, Cliff Albright in connection with its pending Motion for Preliminary Injunction. In the first declaration, Mr. Albright explains in further detail the work of BVMF as including efforts to increase voter registration and turnout; advocating for policies to expand voting rights and access, such as expanded early voting; resisting voter ID; re-entry restoration of rights and strengthening the Voting Rights Act; and advocating for policies that intersect with race, gender, economic and other aspects of equity. (Albright Decl. ¶ 2, Doc. 2-2.) Due to the COVID-19 pandemic and the expected increase in the use of mail-in absentee voting, Albright attests that BVMF’s “efforts will now focus almost exclusively on educating voters about the mail-in absentee ballot and application process, and helping voters cast mail-in absentee ballots this year.” (Id. ¶ 4.) BVMF intends to accomplish this new effort by “start[ing] a texting and phone banking initiative to reach out to registered voters who are wrongfully considered ‘inactive’ by the
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State of Georgia,”13 and to “educate voters about the mail-in absentee voting process, including how to obtain an absentee ballot application, how to fill it out, how to fill out the absentee ballot, and how to get postage stamps.” (Id. ¶¶ 5-6.) According to Albright, “[m]any voters, especially lower-income voters, do not have postage stamps because they do not use them, or cannot afford to buy a book of stamps just for elections” and the work of assisting voters to obtain postage stamps “can be complicated and time-consuming because some voters do not have Internet access or credit cards to purchase them online,” and many “cannot even travel to a post office or other public place because they do not have cars, there are no ride-sharing programs or public transportation in large parts of rural Georgia.” (Id. ¶¶ 7-8.) Thus, Albright attests that dealing with the postage stamp issue requires a lot of time and resources, “impeding BVMF’s mission to increase voter participation in rural Black communities.” (Id. ¶ 10.) As a result, BVMF is diverting resources to the postage stamp issue that could be used for the organization’s other activities including other issues related to helping voters navigate the absentee ballot process. (Id. ¶ 11.) Based on his experience, Albright expects the organization will receive an increase in the number of calls in connection with this election to deal with the postage requirement for submitting absentee ballots. (Id. ¶ 14.)
13 Albright explained that this first step was necessary because although the Secretary of State sent absentee ballot applications to registered “active” voters for the June primary, they did not send them to “inactive” voters. (Id. ¶ 5.)
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As noted above, following the hearing on their preliminary injunction motion, Plaintiffs submitted a supplemental declaration from Albright to more specifically address the organization’s expected diversion of resources to address Plaintiffs’ claims in this case. In his supplemental declaration, Albright attests that he anticipates that $200,000, or roughly 50% of its budget for activities in Georgia, will be diverted towards responding to the postage stamp requirement that would otherwise have been used for voter education and support for voting by mail in general, as opposed to addressing the postage requirement. (Albright Supp. Decl., Doc. 77 ¶ 1.)
According to Albright’s Supplemental Declaration, BVMF has two principal operations relevant to this lawsuit: first, it “focuses on voter education, encouraging voter turnout by providing voting instructions and getting Black voters excited about voting,” and second, it “provides grants to up to 40 partner organizations, who themselves engage in voter education and also on-the-ground efforts to increase voter participation.” (Id. ¶ 6.) BVMF only has three staff members focused on Georgia. (Id. ¶ 15.)
Albright explains that before the onset of the COVID-19 pandemic, BVMF’s primary focus was on in-person voting, including “voter education that informs voters about voter registration, election dates, how to find their polling place, how to get to a polling place if the voter has no realistic transportation options, instructions on how to vote in person (such as having photo identification, using the machine, etc.),” and providing grants to partner organizations that engage in
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work like “arranging rides to the polls, door by door canvassing (to educate voters on how to vote in-person and encourage them to vote), Election Day canvassing that helps bring people to the polls on Election Day.” (Id. ¶¶ 18-19.)
With an expected drop in the number of people willing to expose themselves to in-person voting during the pandemic, BVMF’s plans have changed to focus all of its resources on helping and encouraging people to vote by mail. (Id. ¶¶ 21-22.) According to Albright, the postage stamp requirement has “quickly emerged as a major roadblock” to BVMF’s efforts to increase voter participation through the vote by mail process. (Id. ¶ 24.) BVMF partner organizations are now using their grant funds from BVMF to engage in direct postage stamp distribution in Valdosta/Lowndes County, Macon-Bibb County, and Peach County. (Id. ¶¶ 25-26.) Albright attests that if the postage requirement is not enjoined, BVMF anticipates that resources that would be focused on assisting voters with obtaining an absentee ballot application, and properly completing absentee ballot applications, absentee ballots, and ballot return envelopes will be reduced and diverted toward assisting voters with submitting absentee ballot applications by email, or if by mail, with obtaining postage, and assisting voters with obtaining postage for mailing in their completed ballots in light of specific obstacles facing certain voters which include, COVID-19 exposure, physical disabilities, location related to post office, lack of transportation, lack of internet access to purchase stamps online, and economic hardships associated with cost of necessary postage for each ballot and each
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election. (Id. ¶¶ 33-35.) These efforts will include devoting $200,000 in resources to assist partner organizations with funding direct stamp distribution programs, text messaging, phone banks, and radio and social media ads to educate 400,000 black voters in rural Georgia specifically related to the postage issue. (Id. ¶¶ 37-54.)
The Court finds that Plaintiff BVMF’s allegations and evidence are sufficient to establish injury to the organization under a diversion of resources theory. Plaintiff BVMF has offered evidence that absent an injunction requiring the Secretary of State to provide pre-paid postage for mail in absentee ballots, BVMF’s efforts to increase voting by mail in low-income communities of color has likely been adversely affected and will continue to be adversely affected. Moreover, BVMF has made a sufficient showing of an imminent concrete injury based on the evidence that it has already and reasonably anticipates having to further divert resources to assisting socially and economically vulnerable voters obtain postage (or find transportation to deposit absentee ballots in available drop boxes) to avoid having to expose themselves to the potential health dangers associated with in-person voting. See Browning, 522 F.3d at 1161 (“Plaintiffs have averred that they intend to increase voter registration efforts and anticipate increased registration applications ahead of the upcoming presidential election. This is sufficient to meet the immediacy requirement.”) Even if Mr. Albright’s financial estimates are considered exaggerated by Defendant, the Eleventh Circuit has held that “an organization suffers an injury in fact when a statute
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compels it to divert more resources to accomplishing its goals. . . . [T]he fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury.” Id. at 1165 (internal citations and punctuation omitted).
It is not required that a plaintiff-organization be forced to completely cease an activity to establish standing, as Defendants argue, rather it is enough for the organization to demonstrate that such activities have been substantially curtailed or significantly impacted by the challenged action. See Havens Realty Corp. v. Coleman, 455 U.S. at 379 (“If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities – with the consequent drain on the organization’s resources – constitutes far more than simply a setback to the organization’s abstract social interests.”); Hispanic Interest Coal. of Alabama v. Governor of Alabama, 691 F.3d 1236, 1243–44 (11th Cir. 2012) (“Furthermore, the time and money expended on the planning and execution of these events has forced the organization to divert resources from other immigration policy work. According to Pickens, these endeavors ‘will continue to be detrimentally impacted’ as they will have to be ‘substantially curtail[ed] or stop[ped].’ These alleged injuries are sufficient under our precedent to confer standing on Alabama Appleseed.”); Browning, 522 F.3d at 1166 (finding that the plaintiff-organization
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made a sufficient showing that it would suffer a concrete injury based only on its “anticipat[ion] that it will expend many more hours than it otherwise would have conducting follow-up work with registration applicants because voters will have their applications denied due to matching failures”); Gwinnett Cty. NAACP v. Gwinnett Cty. Bd. of Registration & Elections, --- F. Supp. 3d ----, 1:20-CV00912-SDG, 2020 WL 1031897, at *3 (N.D. Ga. Mar. 3, 2020) (“Plaintiffs here – all of which are organizations dedicated to increasing voter participation through advocacy and educating voters on election procedures – allege they will be directly harmed by being forced to divert their resources to other projects and initiatives to ensure voters are able to participate in the election. In particular, the Court credits the testimony of Helen Butler, the Executive Direction of the GCPA, who testified that her organization will be required to divert additional resources to transport voters to and from BORE headquarters, the sole polling location in Gwinnett County for the first week of the early voting period. This will, in turn, hinder GCPA’s mission of promoting voter advocacy and turnout as a whole. This is sufficient for Plaintiffs to demonstrate an imminent and concrete injury.”); Martin v. Kemp, 341 F. Supp. 3d 1326, 1334 (“Defendants cite to no authority that an organizational plaintiff must explain exactly how its resources will be diverted from one endeavor to another before sufficient injury can be shown” at the pleading stage.)14
14 The Eleventh Circuit recently addressed the diversion of resources theory of standing in Jacobson, holding that several organizations challenging a Florida statute regarding ballot
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B. Standing of Individual Plaintiffs
Both Plaintiffs Meghan Gordon and Penelope Reid assert standing on their
own behalf and as class representatives on behalf of a class of Georgia registered
voters. (Am. Compl., Doc. 88 ¶¶ 14-16, 44-45.)
With respect to the individual Plaintiffs, Defendant Raffensperger
challenges only the first two elements of standing,15 asserting that: (1) Plaintiffs
have neither a concrete injury nor an imminent one because their complaint lacks
allegations that COVID-19 will be a legitimate concern in time for the upcoming
elections or that voters are being compelled or advised to avoid voting in person
due to the pandemic; and (2) Plaintiffs’ injury is not traceable to any action by the
Secretary of State because the Secretary does not mandate a particular method of
voting and it is not the Secretary’s requirement that a voter who chooses to vote
ordering failed to prove at trial that they suffered an injury in fact under a diversion of resources theory. 957 F.3d at 1206. The Jacobson Court concluded that the organizations’ proof was insufficient because they failed to offer any evidence about “what activities [they] would divert resources away from in order to spend additional resources on combatting” the effect of Florida’s ballot-order statute. Id. Unlike the organizations in Jacobson, Plaintiff BVMF here introduced evidence about how it is forced to divert resources and thus established an injury in fact. 15 Secretary Raffensperger asserts two new arguments for the first time in his Reply. First, Secretary Raffensperger asserts that “[c]ounty elections officials are responsible for the absentee balloting process, and their decision to not pay for voters’ postage cannot be imputed to the Secretary.” (Reply, Doc. 87 at 14.) And second, he now contends that “the relief Plaintiffs seek against the Secretary will not redress their injuries, because the Secretary does not control the mechanics of absentee ballots or postage.” (Id. at 15.) Generally, the Court will not consider new arguments raised for the first time in a Reply brief. E.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised for the first time in a reply brief are not properly before a reviewing court.’”); Boring v. Pattillo Indus. Real Estate, 426 F. Supp. 3d 1341, 1349 (N.D. Ga. 2019) (“[T]he Court will not consider new arguments made for the first time in the reply brief.”) However, the Court has addressed these points as rolled into the Secretary’s original arguments because the governing statutory provisions apply to both contentions.
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by mail must provide her own postage. In addition, Defendant Raffensperger argues that Plaintiff Meghan Gordon lacks standing to assert the AndersonBurdick claim in Count II because she is not compelled to vote by mail, does not claim it is a burden to purchase stamps, and her philosophical opposition to the postage requirement is an insufficient injury. Therefore, Plaintiff Gordon lacks standing to represent the interests of a subclass of voters for whom in-person voting is at least materially burdensome or requires unreasonable effort because of the pandemic. Defendant Raffensperger has not expressly addressed the standing of Plaintiff Penelope Reid who is in the high-risk category for COVID-19, having simply incorporated the arguments from his motion to dismiss the original complaint that did not include Reid.
The DeKalb Defendants similarly argue that “Plaintiffs’ alleged injuries are not fairly traceable to any act of the DeKalb BRE. Georgia law permits, but does not require, that absentee applications and absentee ballots can be submitted by mail. The United States Postal Service, rather than the DeKalb BRE, imposes any requirement for postage to use the United States mail service to send absentee applications and absentee ballots.” (Doc. 80 at 12-13.)
The Court will first address Defendants’ general standing challenges. First, the Court quickly disposes of Defendant Raffensperger’s argument that Plaintiffs’ alleged injuries are speculative, hypothetical, and that there is no imminent threat of harm associated with in-person voting because the pandemic might just go away in time for the elections. Plaintiffs’ Amended Complaint alleges that
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“[t]he number of confirmed COVID-19 cases in Georgia is growing exponentially.” (Am. Compl., Doc. 88 ¶ 29.) Since the filing of Plaintiffs’ complaints and the parties’ briefs on the pending motions, the effects of the pandemic have dramatically worsened across the nation and specifically in Georgia. The Court takes judicial notice that the White House Coronavirus Task Force recently placed Georgia in the COVID-19 red-zone, indicating Georgia has more than 100 new coronavirus cases per 100,000 people and a positive diagnostic test rate of more than 10%.
Moving on to the second standing element, “to satisfy the causation requirement of standing, a plaintiff’s injury must be ‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.’” Jacobson v. Florida Sec’y of State, 957 F.3d 1193, 1207 (11th Cir. 2020) (quoting Lujan, 504 U.S. at 560 (alterations adopted)). Defendant’s argument regarding traceability is two-fold. First, any alleged injury is not traceable to the Secretary of State but is the result of Plaintiffs’ choice to vote by mail – a method that carries a direct cost – rather than in person – a method that does not. And second, the postage requirement is imposed not by the Secretary of State, but by the United States Postal Service. These arguments, in essence, mimic Defendant’s arguments on the merits of the claims.
As an initial matter, the Court notes that the Secretary of State has both the authority and the power to oversee and implement the preparation and
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transmission of absentee ballots for a statewide election as Secretary Raffensperger chose to do in connection with the June 9, 2020 primary election. As discussed, Secretary Raffensperger sent absentee ballot applications to all “active” registered voters and contracted with a vendor to prepare and mail out absentee ballots to voters in a form prescribed by Secretary Raffensperger.
According to Plaintiffs, Defendants are the ones with the power to impose requirements on voters and the power to condition the right to vote on paying a poll tax16 such as postage for mail-in ballots. (See Am. Compl. ¶ 19) (alleging that “Defendant Brad Raffensperger, who is the Secretary of State and the chief elections official of the State, is responsible for enacting elections statutes and routinely issues guidance to the county election officials of all 159 counties on various elections procedures and requirements. County election officials follow the Secretary of State’s guidance.”) Plaintiffs allege that no state law requires government officials to charge voters postage on absentee ballot applications, but “voters are required to affix their own postage when mailing in the absentee ballot, according to guidance issued by the Secretary of State.” (Id. ¶¶ 32, 34.) See also Georgia Secretary of State, Elections Division, Absentee Voting, A Guide for Registered Voters at 5 (providing instructions for “Submitting a Voted Absentee Ballot and stating “[i]f mailing, you must affix postage to the ballot
16 The Secretary does not assert that the postage requirement itself is insufficient to establish an injury in fact as an unconstitutional poll tax.
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envelope”) (emphasis in original).17 Under Georgia law, the Secretary of State is the chief election official. O.C.G.A. § 21-2-50(b) (referring to the Secretary as “the state’s chief election official”). Georgia law confers primary authority on Georgia’s Secretary of State to manage Georgia’s electoral system. See id.; see also Ga. Op. Att’y Gen. No. 2005-3 (Apr. 15, 2005) (“[I]it is clear that under both the Constitution and the laws of the State the Secretary is the state official with the power, duty, and authority to manage the state’s electoral system. . . .”). The Secretary of State and State Election Board also have significant statutory oversight authority to train local elections officials, set election standards, and investigate failures of local elections officials. See O.C.G.A. § 21-2-31; O.C.G.A. § 21-2-50(a)(11)). Section 21-2-50(a) of the Georgia election code prescribes the powers and duties of the Secretary of State and requires the Secretary to prepare the forms of ballots and furnish applications for absentee ballots, and envelopes and instruction sheets for absentee ballots. O.C.G.A. § 21-2-50(a)(5); see also O.C.G.A. § 21-2-384(b)(providing that “in addition to the mailing envelope addressed to the elector, the superintendent, board of registrars, or absentee ballot clerk shall provide two envelopes for each official absentee ballot, of such size and shape as shall be determined by the Secretary of State, in order to permit the placing of one within the other and both within the mailing envelope” and “[t]he mailing envelope addressed to the elector shall contain the two envelopes, the official absentee ballot, the uniform instructions for the manner of preparing
17 Available at https://sos.ga.gov/admin/uploads/Absentee_Voting_Guide_20142.pdf.
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and returning the ballot, in form and substance as provided by the Secretary of State, provisional absentee ballot information, . . .”); O.C.G.A. § 21-2-379.4(d) (providing that “[t]he form and arrangement of ballots shall be prescribed by the Secretary of State and prepared by the election superintendent.”)
Thus, because Georgia’s election code delegates authority to the Secretary of State to oversee the elections and prepare the form of the absentee ballots and envelopes, the Court finds that Plaintiffs’ alleged injuries are fairly traceable to the Secretary of State’s alleged failure or refusal to provide pre-paid return postage on all absentee ballots.18 At the motion to dismiss stage, Plaintiffs have demonstrated a causal connection, even if arguably indirectly, between Defendants’ challenged conduct and the asserted injury to Plaintiffs’ constitutional rights. Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (“[E]ven harms that flow indirectly from the action in question can be said to be ‘fairly traceable’ to that action . . . .”); Lewis v. Governor of Alabama, 944 F.3d 1287, 1301 (11th Cir. 2019) (“it must be the effect of the court’s judgment on the defendant” – not an absent third party – “that redresses the plaintiff’s injury, whether directly or indirectly”).
18 The DeKalb Defendants are in charge of the day-to-day operations of running elections in DeKalb County. The Georgia election code tasks the local election superintendents, which would include the DeKalb Defendants, with the preparation and delivery of absentee ballots. Upon receipt of the form of the absentee ballot envelopes and instructions from the Secretary of State, the DeKalb Defendants also have the authority under Georgia law to prepare the envelopes with pre-paid return postage.
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Finally, the Court need not address the Secretary’s argument that Plaintiff Meghan Gordon, and the putative class, lack standing to assert the AndersonBurdick claim under Count II. The Court has already determined that Plaintiff BVMF has standing. Only one named Plaintiff needs to have standing for each claim asserted in the complaint. E.g., Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1124–25 (11th Cir. 2019) (“[I]f ‘we have at least one individual plaintiff who has demonstrated standing,’ we do not need to ‘consider whether the other ... plaintiffs have standing to maintain the suit.’”) (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (1977)).
Because the Court has determined that Plaintiffs have established standing to bring their claims for declaratory and injunctive relief without class certification, the Court need not take up Plaintiffs’ request for class certification at this time. III. Legal Standard for Preliminary Injunction
“To support a preliminary injunction, a district court need not find that the evidence positively guarantees a final verdict in plaintiff’s favor.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). Instead, it must determine whether the evidence establishes: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction were not granted; (3) that the threatened injury to the plaintiff outweighs the harm an injunction may cause the defendant; and (4) that granting the injunction would not be adverse to the public interest. McDonald’s Corp. v.
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Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is “appropriate given the character and objectives of the injunctive proceeding.” Levi Strauss & Co., 51 F.3d at 985 (quoting Asseo v. Pan American Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). “A request for equitable relief invokes the district court’s inherent equitable powers to order preliminary relief . . . in order to assure the availability of permanent relief.” Levi Strauss & Co., 51 F.3d at 987; Federal Trade Commission v. United States Oil and Gas Corp., 748 F.2d 1431, 1433–34 (11th Cir. 1984) (holding that a district court may exercise its full range of equitable powers, including a preliminary asset freeze, to ensure that permanent equitable relief will be possible). However, a preliminary injunction “is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four prerequisites.” McDonald’s Corp., 147 F.3d at 1306 (internal citations omitted).
“The first of the four prerequisites to temporary injunctive relief is generally the most important.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005). Indeed, if Plaintiffs are “unable to show a substantial likelihood of success on the merits, [the Court] need not consider the other requirements.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (citing Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001)).
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IV. Discussion: Poll Taxes19 Plaintiffs contend that requiring voters to buy postage in order to vote
absentee by mail is a de facto poll tax because it a cost that is a prerequisite to voting. The Court first considers whether the requirement that voters pay for their own postage to submit absentee ballot applications and absentee ballots is per se impermissible as an actual or “de facto” poll tax under Harman or Harper and their progeny. The Court next considers whether it is an impermissible burden on the right to vote under Anderson/Burdick.
A. Twenty-Fourth Amendment — Poll Taxes for Federal Elections
The Court begins by surveying the applicable law. The Twenty-Fourth Amendment banned states from requiring voters in federal elections to pay poll taxes. The operative clause of the Twenty-Fourth Amendment states as follows:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. U.S. Const. amend. XXIV. The amendment was ratified in 1964, and the Supreme Court construed the amendment for the first time in Harman v. Forssenius, 380 U.S. 528, 529 (1965).
19 For the purposes of this Order, the Court does not distinguish between Plaintiffs’ as applied and facial challenges to the postage requirement under both Counts of the Amended Complaint, as it is ultimately not outcome determinative.
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Harman involved a Virginia statute which provided that “in order to qualify to vote in federal elections one must either pay a poll tax or file a witnessed or notarized certificate of residence.” Id. at 529. The certificate of residence, which could be completed in lieu of the annual $1.50 poll tax, had to be filed “no earlier than October 1 of the year immediately preceding that in which the voter desires to vote and not later than six months prior to the election.” Id. at 530–31. The Supreme Court framed the issue as: “whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence.” Id. at 538.
The Supreme Court explained by analogy to the Fifteenth Amendment that the plain language of the Twenty-Fourth Amendment “‘nullifies sophisticated as well as simple-minded modes’ of impairing the right guaranteed.” Id. at 540–41 (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)). The Court elaborated that it “‘hits onerous procedural requirements which effectively handicap exercise of the franchise’ by those claiming the constitutional immunity.” Id. at 541. The Court found that “a real obstacle to voting in federal elections” was posed by Virginia’s pay or certify process, particularly because unlike the poll tax which could be submitted annually by mail, the certificate must be obtained from the county, notarized, and filed in person six months before the election, “plainly a cumbersome procedure.” Id. But crucially, the Court held that “[t]he requirement imposed upon those who reject the poll tax method of qualifying would not be
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saved even if it could be said that it is no more onerous, or even somewhat less onerous, than the poll tax.” Id. at 542 (emphasis added). Because the certificate of residence constituted a “material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity” against poll taxes guaranteed by the Twenty-Fourth Amendment, the Court held that the Virginia scheme “must fall under its ban.” Id.
B. Equal Protection Clause — Poll Taxes for State Elections The Twenty-Fourth Amendment only applies to federal elections. In 1966, however, the Supreme Court prohibited states from charging their citizens fees to exercise the right to vote in state elections in Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966). That case also dealt the same $1.50 poll tax at issue in Harman. Id. at 664 n.1, 666 n.3. While the Supreme Court noted that the Constitution does not expressly provide for a right to vote in state elections, “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Id. at 665. The Court struck down the $1.50 poll tax, holding that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id. at 666. Thus, charging a fee to vote violates the Equal Protection Clause whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay.
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Id. at 668. The Court in Harper rejected the argument that “that if [the State] can demand from all an equal fee for a driver’s license, it can demand from all an equal poll tax for voting.” Id. The Court explained that under the Constitution “the interest of the State, when it comes to voting, is limited to the power to fix qualifications.” Id. Because “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process,” a state may not limit the right to vote to those with the ability or willingness to pay a fee. Id. Thus, the Court essentially provided for strict scrutiny of any law that considered wealth or payment of a fee to the government as a voter qualification. Id. at 670 (“[W]here fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.”).
C. Postage Cases Defendant Raffensperger cites two cases which held that postage does not constitute a poll tax. First, Bruce v. City of Colorado Springs, 971 P.2d 679, 681 (Colo. App. 1998) involved an election for approval of a city ordinance that was carried out solely by mail.20 The plaintiff in that case argued that “requiring voters to affix a postage stamp to their ballots [was] an unconstitutional poll tax.” Id. at 684. The court assumed for the purposes of the opinion that by “requiring voters to use a postage stamp in order to return their ballots, the state has imposed a tax.” Id. The court stated that “[i]f a reasonable restraint on the right
20 As the election was local, the Twenty-Fourth Amendment did not apply.
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to vote is necessary to accomplish a permissible state policy, it will be upheld.” Id. (citing United States v. Texas, 252 F. Supp. 234, 251 (W.D. Tex.), aff'd 384 U.S. 155 (1966)). Confusingly, the court also cited a 1910 Colorado Supreme Court decision for the proposition that “if a qualified voter is prevented from voting through the actions of another, there is no unconstitutional deprivation of the right to vote in the absence of a willful intent to impose a requirement for such purpose.” Id. (citing Colorado Midland Ry. Co., 48 Colo. 147, 149, 109 P. 430, 430 (1910). The court then upheld the law, explaining that the “plaintiff ha[d] not asserted that the use of a stamp is a requirement imposed in order to prevent people from voting. Rather, requiring voters to affix a stamp to their ballots is a reasonable requirement imposed for the purpose of efficiently conducting a mail ballot election. Id. at 684–85. The court did not address whether the postage requirement was related to voter qualifications or undertake any analysis of less restrictive alternatives. This lack of analysis combined with the apparent consideration of willfulness, which plays no role in the analysis under Harman or Harper, renders Bruce of limited persuasive value.
More recently, the U.S. District Court for the Southern District of Ohio decided League of Women Voters of Ohio v. LaRose, No. 2:20-cv-01638-MHWEPD (S.D. Ohio Apr. 3, 2020) (courtesy copy Doc. 51-8).21 Like this case, LaRose involved a challenge to election regulations in light of the COVID-19 pandemic.
21 The Court discusses the facts of LaRose in further depth in the Anderson–Burdick section below.
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LaRose was a wide-ranging attack on a number of different aspects of the elections. The issue of whether requiring postage to vote was an unconstitutional poll tax constituted “one sentence” of the plaintiffs’ motion, was completely unaddressed by the defendants, and occupied less than a page of the 28 page slip opinion. Id. (Slip Op. at 25). The extent of the court’s analysis is set forth below:
Nevertheless, the Court has considered the issue and finds that, to the extent obtaining a stamp is a “restriction on the right to vote,” it is not “unrelated to voter qualifications.” See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008). Instead, it is the type of “evenhanded restriction[] that protect[s] the integrity and reliability of the electoral process itself” that satisfies Harper. See id. at 189– 90 (quoting Anderson, 460 U.S. at 788, n.9); see LaRose Resp. 22, ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5) (explaining that a signature is needed to protect against voter fraud). Id. While the court nominally invoked Harper, by citing to Anderson, the Court appeared to apply the Anderson–Burdick standard, which is a less strict standard than a claim under Harman or Harper. See Crawford, 553 U.S. at 189 (2008) (“[U]nder the standard applied in Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.”). The LaRose court does not offer any further explanation about why having a stamp has any relationship to voter qualifications. Because the Court does not find either of these cases persuasive, and neither party has pointed to any other cases squarely on point, the Court next surveys cases involving costs related to voting more generally.
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D. “De Facto” Poll Taxes Both Harman and Harper dealt with literal poll taxes, that is a payment specifically required by the government in exchange for exercising the right to vote. However, a line of authority has developed around so called “constructive” or “de facto” poll taxes, which do not necessarily involve a literal tax assessed on voting, but which entail monetary burdens to voter qualification or the voting process. These cases typically involve some form of voter identification requirement. For example, in Common Cause/Georgia v. Billups, Judge Murphy of this district considered whether a $20 to $35 fee for a photo ID necessary to vote in Georgia elections was a de facto poll tax in Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1367 (N.D. Ga. 2005) (Billups I). In that case, the plaintiffs argued that Georgia could not get around the Twenty-Fourth Amendment “by labeling something as a ‘fee’ when, in reality, it is a tax on the right to vote.” Id. at 1366. Although the fee was waivable in certain circumstances, the plaintiffs argued that the small number of persons eligible for the waiver made this option “illusory,” and “that the possibility that a small number of voters can avoid paying the cost for a Photo ID card does not make the Photo ID scheme constitutionally permissible” because “it still places a burden on the right to vote.” Id. at 1367. Judge Murphy first held that the fee for the driver’s license constituted a poll tax “[b]ecause, as a practical matter, most voters who do not possess other forms of Photo ID must obtain a Photo ID card to exercise their right to vote,
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[and] even though those voters have no other need for a Photo ID card, requiring those voters to purchase a Photo ID card effectively places a cost on the right to vote.” Id. at 1369. Next, he analogized the option of the fee waiver to the certificate of residency available in Harman, as obtaining the waiver also entailed appearing in person at a DDS office and carried the additional embarrassment of completing an affidavit of indigency. Id. at 1370 (citing Harman, 380 U.S. at 542).
Later, after Georgia made Voter IDs available without a fee for the cards themselves, the plaintiffs in Billups renewed their challenge to the law in Common Cause/Georgia League of Women Voters of Georgia, Inc. v. Billups, 439 F. Supp. 2d 1294, 1352 (N.D. Ga. 2006) (Billups II). The plaintiffs argued “that voters who do not have an approved Photo ID must bear the costs of traveling to a registrar’s office in order to [obtain] a Voter ID card, as well as the costs for obtaining any documents necessary to obtain a Voter ID card.” Id. Judge Murphy acknowledged that the Photo ID requirement placed a burden on the right to vote “[b]ecause, as a practical matter, most voters who do not possess other forms of Photo ID must obtain a Voter ID card to exercise their right to vote.” Id. at 1354. However, he noted that the burden was ameliorated by the fact that the “the Voter ID cards are available at no cost,” and the fact that Georgia “eliminated the affidavit requirement for a fee waiver that [the court] previously found objectionable with respect to the 2005 Photo ID Act.” Id. Judge Murphy also rejected the plaintiffs’ arguments that the burden associated with arranging
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for transportation to a registrar’s office and successfully navigating the process of obtaining a voter ID card did not amount to a poll tax. Id. (agreeing with and quoting Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D.Ind. 2006) that “the cost of time and transportation cannot plausibly qualify as a prohibited poll tax because those same ‘costs’ also result from voter registration and in person voting requirements, which one would not reasonably construe as a poll tax”). In finding these burdens did not constitute a poll tax, he explained that “[e]lection laws will invariably impose some burden upon individual voters” but that “the imposition of tangential burdens does not transform a regulation into a poll tax.” Id. at 1354–55 (quoting Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827 (S.D. Ind. 2006), aff’d sub nom. Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (citing Burdick v. Takushi, 504 U.S. 428, 433 (1992)) (alterations in original, internal quotations omitted)).
Finally, Judge Murphy considered the fee associated with obtaining a birth certificate, which voters could, in turn, use to obtain their voter ID card as “[t]he only incidental cost which might plausibly approach being a poll tax.” Id. at 1355 (quoting Rokita, 458 F. Supp. 2d 775). However, Judge Murphy found that the plaintiffs’ contention that some voters might be required to pay a fee to obtain a birth certificate in order to obtain a Voter ID card was “wholly speculative” and that they had failed to show that any particular voter would actually be required to incur that cost in order to vote. Id. In addition, because a birth certificate is
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only one of many documents that the registrar may accept to issue a Voter ID card under the statute and State Election Board rules and regulations, Judge Murphy held that the plaintiffs had failed to demonstrate that “the cost of obtaining a birth certificate” was “sufficiently tied to the requirements of voting so as to constitute a poll tax.” Id.; see also Rokita, 458 F. Supp. 2d at 827–28 (“Plaintiffs’ argument overlooks the fact that a valid birth certificate is only one of the primary documents acceptable to the BMV; individuals can present various documents for that purpose, some of which are again issued by the federal government whose requirements and incidental fees are beyond the control of the State.”)22
Two years later, a plurality of the Supreme Court essentially endorsed the Billups II rationale in Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 186 (2008) (sustaining Indiana’s Voter ID law and noting that “the State offers free photo identification to qualified voters able to establish their residence and identity”). The Supreme Court in Crawford did not explicitly consider whether the Voter ID requirement was a “de facto” poll tax, but the plurality did discuss financial burdens for voter identification briefly. The plurality noted that “if the
22 The Missouri Supreme Court distinguished Billups II in Weinschenk v. State, 203 S.W.3d 201, 214 (Mo. 2006). Weinschenk was decided under the Missouri Constitution, but the Court extensively relied on Harper for its decision. 203 S.W.3d at 213–14. In that case, the law at issue providing for free Voter ID required either “a birth certificate or passport,” which the court found that neither plaintiff possessed and which would cost the plaintiffs between $12 and $20 to obtain, depending on where the plaintiffs were born. Id. Without any other method of voting absent possessing a Voter ID, the Court struck down the Voter ID requirement as a poll tax “directly connected to Plaintiffs’ exercise of the right to vote,” even though it may involve payment of money to a state other than Missouri. Id.
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State required voters to pay a tax or a fee to obtain a new photo identification,” it would fall within Harper’s prohibition. Id. at 198. However, the Court did not reach the question of whether a cost associated with supporting documentation like birth certificates would constitute a poll tax, noting that “[w]hile it is true that obtaining a birth certificate carries with it a financial cost, the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates.” Id at 203 n.20. Additionally, the law at issue in that case also allowed for “reasonable alternate documents” to birth certificates for proving identity. Id. at 199 n.18.
Several state courts have also addressed similar issues, both under the federal and state constitutions. Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262, 277, 279 (Wis. 2014) (holding the Voter ID law at issue in that case was a prima facie de facto poll tax because it required a “payment to a government agency” for documentary evidence and adopting a saving construction of state law to avoid issue); In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444, 451 (Mich. 2007) (upholding a Voter ID law where voters who lacked identification could vote on election day if they “sign[ed] an affidavit” that they lacked identification at the election site, subject to a potential challenge procedure); City of Memphis v. Hargett, 414 S.W.3d 88, 106 (Tenn. 2013) (upholding its law based on an exemption for an in-person voter who “is indigent and unable to obtain proof of identification without payment of a fee,” which the court construed as “including
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any fee associated with the documentation necessary to obtain a ‘free’ photo ID card.”).
Two circuit court decisions rejected the notion that costs for documents necessary to obtain voter identification constitute poll taxes. First, the Ninth Circuit held that “[a]lthough obtaining the identification required under [Arizona law] may have a cost, it is neither a poll tax itself (that is, it is not a fee imposed on voters as a prerequisite for voting), nor is it a burden imposed on voters who refuse to pay a poll tax.” Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012) (en banc), aff’d on other grounds sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). Further, the Court held that Harper was inapplicable because “[r]equiring voters to provide documents proving their identity is not an invidious classification based on impermissible standards of wealth or affluence, even if some individuals have to pay to obtain the documents.” Id. at 409. The Court noted in a footnote that “[v]oters who use an early ballot to vote do not even have to show identification.” Id. at 408 n.37.
The Fifth Circuit reached a narrower issue in Veasey v. Abbott, 830 F.3d 216, 266 (5th Cir. 2016) (en banc). In that case, the State of Texas did not charge a fee for obtaining birth certificates, but the plaintiffs contended that out of state voters would be financially burdened with the cost of obtaining their birth certificate. Id. The Court noted that Crawford “implied that requiring voters to obtain photo identification and charging a fee for the required underlying documentation would not qualify as a poll tax” and the Fifth Circuit explicitly so
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held, following Gonzalez. Id. (citing Crawford, 553 U.S. at 198 & n.17; Gonzalez, 677 F.3d at 407–10). However, it appears that as in Gonzalez, the only plaintiff who “showed that he was unable to obtain an out-of-state birth certificate due to its cost . . . was able to vote by mail.” Id. at 266 n.64.
E. Application of the Law to the Facts These “de facto” poll tax cases appear to stand for the narrow proposition that payments to the government ‘in connection’ with voting can be considered poll taxes under Harper and Harman even if not designated as such. Cf. Crawford, 553 U.S. at 198 (“The fact that most voters already possess a valid driver’s license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification”). Further, incidental payments to a government agency may in some circumstances be sufficiently “connected” with voting if such payments are a necessary condition of accessing the polls generally applicable to all voters, such as payments for required documentation in order to establish eligibility to vote. Compare Weinschenk, 203 S.W.3d at 214 (holding that the requirement of obtaining a birth certificate or passport was “directly connected to Plaintiffs’ exercise of the right to vote” where there were apparently no other options for documentation), with Billups II, 439 F. Supp. 2d at 1352, 1355 (holding that “the cost of obtaining a birth certificate” was not “sufficiently tied to the requirements of voting” where there were other options for documentation).
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Plaintiffs contend that requiring voters to buy postage in order to vote absentee by mail is a de facto poll tax.23 (Pls.’ Br. at 9–10, Doc. 2-1.) Plaintiffs’ argument is relatively straightforward: “Because voters must purchase a prerequisite to voting (i.e., postage), Defendants have imposed an unconstitutional de facto poll tax. The same holds true for absentee ballot applications, which also require postage when mailed.” This is so regardless of the de minimis cost of one stamp, (Br. at 12, Doc. 2-1, citing Harper, 383 U.S. at 666), though Plaintiffs presented evidence that most people are unable to purchase just one stamp, and the cost of a stamp book can be burdensome. (Tr. at 39:21-40:10.)
Plaintiffs concede that Georgia voters can vote in person without purchasing a stamp, but Plaintiffs contend this means of voting presents a “material burden,” both in light of the COVID-19 pandemic and for the elderly, disabled, or those out-of-town, for which absentee voting is alleged to be the “only meaningful option.” (Pls.’ Br. at 15, Doc. 2-1.) In support of this argument, Plaintiffs rely on the reports of Drs. Reingold and Barreto, summarized in the background section above.
The Secretary, in response, argues that “Plaintiffs’ ‘de facto poll tax’ argument, however, fails because voters are not required to purchase a stamp as a ‘condition to obtaining a ballot.’” (Resp. at 21, Doc. 51) (citing Harper, 383 U.S. at 668.) The Secretary contends that voters have the choice to use other methods
23 Plaintiffs do not appear to contend that the postage requirement is a literal poll tax.
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of voting, including voting in person, or assuming voting in person is not a safe option, applying for a ballot by mail or email and dropping off the ballot in a secure drop box. The Secretary further asserts that voters have the option of putting the absentee ballot in the mail without postage and relying on the postal service to deliver the election mail to the local registrar’s office. Thus, stamps are more akin to other incidental costs for voting, “such as transportation costs, time away from work, child care, and parking” which do not constitute a de facto poll tax or invidious wealth discrimination. (Id. at 23–24.)
According to the evidence in the record, secure drop boxes were not, at least as of the June 2020 election, available in all counties, though they were available in most counties, including DeKalb and Gwinnett counties where the named individual plaintiffs live. (Doc. 130); see also Ex. AA Wright Declaration (closest drop box 20 mile roundtrip). As to the mail without postage option, the Court heard argument that the United States Postal Service has a policy that it will deliver absentee ballots without postage and bill the relevant municipality. (Sec’y Resp. Br. at 15-16, Doc. 51, citing Postal Bulletin 22391 2014 Election and Political Mail Update, United States Postal Service (June 12, 2014), https://about.usps.com/postal-bulletin/2014/pb22391/html/front_cvr.htm). The Court was not presented with a certified copy of this policy, the Court did not receive any evidence about the statewide compliance rate with this policy, and the Court heard credible testimony that Plaintiff Black Voters Matter Fund was concerned that presenting this option to voters would run the risk of confusion or
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otherwise harm its credibility. (Tr. at 47:13-21, Doc. 75.) At least one declarant testified that he was told that the Hancock County post office would not deliver absentee ballots without postage. (Warren Decl. ¶ 8, Doc. 124-4.)
However, even if the Court were to take the policy as a given, the potential existence of the “stamp free” option cuts both ways. On the one hand, it appears to undercut the ‘connection’ or ‘tie’ with voting recognized by cases like Billups II, as it is not a payment generally required for all voters in a literal sense. On the other hand, the fact that the municipality will ultimately bear the cost of each ballot with insufficient postage means that instructing voters to purchase stamps defrays costs to the municipality, rendering the cost of a stamp more akin to a tax than gas money or bus fare which is not similarly backstopped.
The Court ultimately need not determine the effect of these “stamp free” absentee ballot options (i.e., mailing a ballot without postage or utilizing a drop box), as Plaintiffs’ poll tax claim fails for a more basic reason. The fact that any registered voter may vote in Georgia on election day without purchasing a stamp, and without undertaking any “extra steps” besides showing up at the voting precinct and complying with generally applicable election regulations, necessitates a conclusion that stamps are not poll taxes under the Twenty-Fourth Amendment prism. In-person voting theoretically remains an option for voters in Georgia, though potentially a difficult one for many voters, particularly during a pandemic. The Court recognizes that voting in person is materially burdensome for a sizable segment of the population, both due to the COVID-19 pandemic and
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for the elderly, disabled, or those out-of-town. But these concerns — while completely justifiable and pragmatically solvable — are not the specific evils the Twenty-Fourth Amendment was meant to address.
Instead, Plaintiffs’ concerns about the current public health crisis and the potential dangers associated with in-person voting for a large portion of Georgia’s population are better addressed in connection with Plaintiffs’ claim in Count II under Anderson–Burdick. Otherwise, accepting Plaintiffs’ argument under Harman and Harper would necessitate ruling that the postage requirement on absentee ballots in Georgia is now and has always been a poll tax, even before the pandemic, because voting in person presents a material burden for some segment of the population. The Court is not prepared under these circumstances to make such a ruling under the Twenty-Fourth Amendment framework.24
For the foregoing reasons, Plaintiffs have not shown a substantial likelihood of success on the merits as to their poll tax claim, and Plaintiffs’ Motion for Preliminary Injunction is DENIED as to Count I of the Amended Complaint. Furthermore, for the same reasons, the Secretary’s Motion to Dismiss Amended Complaint (Doc. 90) is GRANTED as to Count I of the Amended Complaint.
24 This ruling is based on the current circumstances, as pled by the Amended Complaint. In the event circumstances surrounding methods of voting radically change, the ruling may be revisited. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment. . . .”).
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V. Discussion: Anderson–Burdick The Court next turns to Plaintiffs’ alternative claim, that the postage
requirement is an unconstitutional burden on the right to vote. The Constitution
gives states primary responsibility for establishing the “Times, Places and
Manner of holding Elections for Senators and Representatives,” subject to
congressional modification. U.S. Const. Art. I, § 4, Cl. 1; see also id. Art. II, § 1,
Cls. 2, 4. However, the Supreme Court has found that in certain circumstances,
state election regulations are constrained by the First and Fourteenth
Amendments. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v.
Takushi, 504 U.S. 428, (1992). The Court has described these constraints as
follows:
When deciding whether a state election law violates the Fourteenth Amendment, the Court must 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); Burdick v. Takushi, 504 U.S. 428, 434 (1992). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Voting is, indisputably, a right “‘of the most fundamental significance under our constitutional structure.’” Burdick, 504 U.S. at 433 (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). Common Cause Georgia v. Kemp, 347 F. Supp. 3d 1270, 1292 (N.D. Ga. 2018).
In the first step of the Anderson–Burdick framework, the Court must
“weigh the character and magnitude of the burden the State’s rule imposes.”
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Curling v. Raffensperger, 403 F. Supp. 3d 1311, 1336 (N.D. Ga. 2019) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) and Burdick v. Takushi, 504 U.S. 428, 434 (1992)); see also Democratic Executive Committee of Florida v. Lee, 915 F.3d at 1319; Stein v. Ala. Sec. of State, 774 F.3d 689, 694 (11th Cir. 2014) (“[T]he level of the scrutiny to which election laws are subject varies with the burden they impose on constitutionally protected rights — “[l]esser burdens trigger less exacting review.”).
A law that severely burdens the right to vote must be narrowly drawn to serve a compelling state interest. Burdick, 504 U.S. at 434; Lee, 915 F.3d at 1318. But “reasonable, nondiscriminatory restrictions” that impose a minimal burden may be warranted by “the State’s important regulatory interests.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009) (citing Anderson, 460 U.S. at 788). “And even when a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden.” Lee, 915 F.3d at 1318-19; Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009).
In the following section, the Court examines two lines of Anderson– Burdick cases that are particularly on point as to Plaintiff’s claims: (1) other COVID-19 voting rights cases, and (2) other natural disaster cases.
A. COVID-19 Cases The Court begins, most logically, with what other courts have done to address voting rights during the pandemic; this Court is not the first to address
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election regulations during the COVID-19 outbreak. As the following cases illustrate, district courts around the country have been quick to react to what they determine to be inadequate state pandemic-related voting accommodations, but have been stymied by appellate courts, including the Supreme Court.
1. Wisconsin The first notable case addressing pandemic-related voting concerns came with a challenge to Wisconsin’s absentee voting scheme in Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374, at *3 (W.D. Wis. Apr. 2, 2020). The uptick in demand for absentee ballots as a result of the pandemic overwhelmed election officials, leading one city clerk to admit that “[t]here [was] no practical way that a person submitting a request for an absentee ballot on the deadline for submitting the request . . . [would] have the time to receive, vote and return their ballot by Election Day,” and that the “8:00 p.m. election day deadline for receipt of absentee ballots [was] completely unworkable.” Id. at *5. The plaintiffs in that case sought an injunction postponing the election entirely as well as prohibiting enforcement of several aspects of Wisconsin election regulations, including: (1) the requirement that “absentee ballots must be received by 8:00 p.m. on election day to be counted”; (2) the requirement that that “absentee ballot requests must be received by April 2, 2020”; and (3) the requirement of providing photo ID for voter registration and in-person witness certification for ballots. Id. at *2. The plaintiffs sought extensions of the relevant deadlines and accommodations for the Photo ID and
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in-person witness requirements for those who could not safely comply because of the pandemic. Id.
The district court recognized that “the rapidly approaching election date in the midst of the COVID-19 pandemic means that citizens will face serious, and arguably unprecedented, burdens in exercising their right to vote in person.” Id. at *13. The court noted that in-person early voting and registration had been limited or even eliminated, poll workers had cancelled their shifts, and polling sites had been ordered to close. Id. And the extent of the burden was not limited to in-person voting, because of the aforementioned backlog of absentee requests. The result was that “voters who did not or could not vote absentee” were “forced on election day to choose between exercising their franchise and venturing into public spaces, contrary to the public message to ‘stay home’ delivered by countless public officials during the course of this pandemic.” Id. at *13.
The court conceded that the state’s interests in maintaining order in the election process, preventing ambiguity and confusion, and permitting states to enforce their own laws were “strong.” Id. at *13 (citations omitted). Nonetheless, the court held that they were not “so compelling as to overcome the severe burdens that voters [were] sure to face in the upcoming election.” Id.
Having found a likelihood of success, the district court turned to the remaining factors for injunctive relief for each of the requested injunctions. The court found that an injunction postponing the election was not justified, but that providing additional time for receipt of absentee ballots and absentee ballot
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requests would allow the election officials to catch up with the backlog. Id. at *16–18. The court did not impose a requirement of a postmarked-by date, explaining that it was “simply moving the statutory absentee receipt deadline” and that doing so would be “more generally in the public interest, which ‘favors permitting as many qualified voters to vote as possible.’” Id. at *18 (citing Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012)). The court permitted voters who could not comply with the witness requirement due to the pandemic to submit a statement so affirming, but did not modify the Photo ID requirement in light of a recent state supreme court decision adopting a limiting construction. Id. at *20 (citing Jefferson v. Dane County, No. 2020AP557-OA (Wisc. March 31, 2020). The Seventh Circuit stayed the ruling excusing the witness requirement, but otherwise left in place the injunction. No. 20-1538, 2020 WL 3619499, at *2 (7th Cir. Apr. 3, 2020)
On further application for a stay of the injunction, the Supreme Court granted a partial stay of the district court’s injunction a day before the election. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (April 6, 2020) (per curiam).25 The Court primarily took issue with the fact that the district court did not impose a requirement that ballots be postmarked by the election date, framing that decision as “[e]xtending the date by which ballots may be cast by voters . . fundamentally alter[ing] the nature of the election.” Id. at
25 No party challenged the additional time for the election officials to receive and process the absentee ballots. 140 S. Ct. at 1206.
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1207. The Court made much hay of the fact that “plaintiffs themselves did not even ask for that relief in their preliminary injunction motions,” a point with which the dissent took issue. Id. at 1207, 1210 (Ginsburg, J., dissenting). The Court dismissed concerns that the result of the postmarked-by date requirement would be that voters may not actually receive absentee ballots in time to vote them as a result of the backlog. Id. at 1207 (majority opinion). The Court noted pointedly that “even in an ordinary election, voters who request an absentee ballot at the deadline for requesting ballots . . . will usually receive their ballots on the day before or day of the election” and faulted the plaintiffs for “put[ting] forward no probative evidence in the District Court that these voters here would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots.” Id.
Justice Ginsburg dissented. In her opinion, joined by three colleagues, she expressed her concern that the majority’s order would “result in massive disenfranchisement,” and remarked that the “Court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.” Id. at Id. at 1209-10 (Ginsburg, J., dissenting). Justice Ginsburg had noted that as of that Sunday morning, “12,000 ballots reportedly had not yet been mailed out . . . [and that i]t is therefore likely that ballots mailed in recent days will not reach voters by tomorrow,” the election day. Id. These voters, she concluded, will either “have to brave the polls, endangering their own and others’
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safety,”26 id. at 1211, “[o]r they will lose their right to vote, through no fault of their own.” Id.
2. Alabama Several aspects of Alabama’s voting procedure were challenged as unconstitutional in light of the pandemic in People First of Alabama v. Merrill, No. 2:20-CV-00619-AKK, 2020 WL 3207824, at *1 (N.D. Ala. June 15, 2020).27 The challengers in that case argued “that Alabama’s election laws—specifically, the requirement that a notary or two witnesses must sign absentee ballots, the requirement that absentee voters must submit a copy of their photo ID, and the state’s de facto ban on curbside voting—run afoul of the fundamental right to vote and violate federal law in light of the COVID-19 pandemic.” Id. Turning first to the witness or notary requirement, the court held that the challenger’s concerns that complying with that requirement were justified, writing that “it is clear that the plaintiffs are rightly concerned about the risk of COVID-19 and minimizing their potential exposure to the virus.” Id. at *15 However, the Court did not find the challenged requirements to be a severe burden subject to strict scrutiny, but rather one subject to Anderson–Burdick balancing: “[S]atisfying the witness requirement presents some risk of COVID-19
26 According to an Associated Press report, more than 50 people who voted in person or worked the polls in the Wisconsin elections tested positive for COVID-19. Scott Bauer, 52 who worked or voted in Wisconsin election have COVID-19, AP News, April 29, 2020, https://apnews.com/6428674bc2668ebd2db3c482f7f703c1. 27 Of note, the challengers sought an injunction as to “all the coming 2020 elections,” but the court “consider[ed] only whether to grant the preliminary injunction for the [primary] election on July 14.” No. 2:20-CV-00619-AKK, 2020 WL 3207824, at 5.
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exposure to voters who do not regularly come into contact with at least two adults simultaneously, even if these voters follow social-distancing guidelines.” Id.
The court agreed that the state’s “interest in preventing voter fraud” was “legitimate,” but held that it did not outweigh the burden of potential COVID-19 exposure. Id. at *16. In so holding, the court discounted the role that the requirement played in furthering the state’s interest, noting that the “witness does not even attest that the voter is who she says she is” but just “that they watched this person—who may or may not be known to them, and who may or may not be the same person who completed the ballot—sign the affidavit.” Id.
The court likewise determined the requirement that applicants include a photocopy of their ID with an application to be likely unconstitutional under the circumstances, explaining that “there is no guarantee that each of those plaintiffs will be able to find a person to help make a copy for them, and requiring a vulnerable voter to find a person willing to help at the risk of potential exposure to COVID-19 is itself a burden.” Id. at *18. Finally, the court granted the challengers’ request for “an order preventing the state from prohibiting local election officials from providing curbside voting” in a manner consistent with state law. Id. at *19 (N.D. Ala. June 15, 2020).
On application by the state for stay to the Eleventh Circuit, the motion panel unanimously denied a stay. People First of Alabama v. Sec’y of State for Alabama, No. 20-12184, 2020 WL 3478093 (11th Cir. June 25, 2020). Judges Robin Rosenbaum and Jill Pryor filed a joint concurring opinion. The judges
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concluded that the district court “did not abuse its discretion by concluding that the ‘significant’ burdens imposed on high-risk Alabamian voters by the witness and photo ID requirements outweigh the considerations set forth by Appellants.” Id. at *7 (Rosenbaum and Jull Pryor, JJ., concurring). The judges explained that as to the COVID-19 risk, “[t]he science is clear and undisputed,” and that “[t]he photo ID and the witness requirements force at least some Alabamians, including the individual plaintiffs here, to increase their risk of contracting COVID-19 by foregoing nationwide and statewide social distancing and self-isolation rules and recommendations to apply for and successfully vote absentee.” Id. While agreeing that “combatting voter fraud” is “legitimate,” they determined that the state’s “interest for maintaining the photo ID and witness requirements do not outweigh the significant, if not severe, burdens faced by high-risk Alabamian voters.” Id. As to the curbside voting, the judges wrote that “[t]he injunction does not require anything. Instead, it just prohibits the Secretary from prohibiting counties from choosing to implement curbside voting procedures “that otherwise comply with state election law.” Id. at *6.
Lastly, the judges addressed the potential issues posed by the proximity of the district court’s order the pending election. Id. at 8 (citing Purcell, 549 U.S. at 5). The judges noted that “to the extent any Purcell problems exist, the district court’s injunction requires the defendants to accept absentee ballot applications and absentee ballots under relatively minor expanded circumstances,” and that “at most,” the state would have ‘to provide additional training to ballot workers—
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a feat hardly impossible in the allotted time.” Id. “Purcell,” the court noted, “is not a magic wand that defendants can wave to make any unconstitutional election restriction disappear so long as an impending election exists.” Id.
Judge Britt Grant, concurred “reluctantly,” largely on the grounds of “uncertain[ty] that the proper parties have appealed.” Id. at *9–10 (Grant, J., concurring). Judge Grant was more concerned than the other panel members by the potential Purcell issues, explaining that “[t]he Supreme Court has emphasized time and time again that federal courts should not jump in to change the rules on the eve of an election.” Id. at *9 (citing RNC v. DNC, 140 S. Ct. at 1205; Purcell, 549 U.S. at 4). “And a dangerous virus,” she wrote, “does not give the federal courts unbridled authority to second-guess and interfere with a State’s election rules.” Id.
On further application for stay to the Supreme Court, the Court voted 5–4 to grant a stay of the injunction pending appeal with no explanation. Merrill v. People First of Alabama, No. 19A1063, 2020 WL 3604049, at *1 (U.S. July 2, 2020)
3. Texas The Texas Democratic Party challenged Texas’s law limiting absentee ballots to “absentees (those who will be away from home for all of early voting and on election day), voters age sixty-five or older, and those with a ‘disability’ which prevents them from voting in person” in Texas Democratic Party v.
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Abbott, No. CV SA-20-CA-438-FB, 2020 WL 2541971, at *2 (W.D. Tex. May 19, 2020).
As in other states, Texas “raise[d] the specter of widespread voter fraud if mail ballots are employed,” which the court found did not justify the regulation, noting that “[b]etween 2005 to 2018, there were 73 prosecutions out of millions of votes cast.” Id. at *4. Instead, the court found “the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience.” Id. Thus, applying Anderson-Burdick, the district court held the age and disability restrictions to be likely unconstitutional and preliminarily enjoined their enforcement. The court characterized the burden as “severe,” explaining that “voters face the choice between casting their ballot and paying the price of criminal prosecution.” Id. at *29. Indeed, the court found that the state’s protection of “the health safety of mail ballots for those 65 years of age and older but not those 64 years, 364 days and younger” has “no rational basis,” and thus likely failed Anderson–Burdick under any standard. Id. at *5. The court also held that the age restriction was unconstitutional age discrimination and thus “also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.” Id.
On application for stay to the Fifth Circuit, the motions panel unanimously granted a stay of the injunction. The panel severely criticized the district court’s opinion, observing that the district court improperly “rejected Texas’s asserted interests in giving older citizens special protection and in guarding against
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election fraud.” Texas Democratic Party v. Abbott, 961 F.3d 389, 402 (5th Cir. 2020). The panel held that rational basis review would probably apply to an absentee ballot voter classification that does not ‘absolutely prohibit’ some group from voting, citing the Supreme Court’s decision in McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969). Id. at 403. It acknowledged that COVID-19, “to be sure, increases the risks of interacting in public,” but characterized McDonald as standing for the proposition that “a state’s refusal to provide a mail-in ballot does not violate equal protection unless—again—the state has ‘in fact absolutely prohibited’ the plaintiff from voting.” Id. at 404. The panel held that the restriction was thus likely to survive a rational basis review. Id. at 406. For similar reasons, it held that the TwentySixth Amendment did not apply.
The Texas Democratic Party’s application to vacate the stay to the Supreme Court was denied without any noted dissent, although Justice Sotomayor noted that the case raised “weighty but seemingly novel questions regarding the Twenty-Sixth Amendment” and expressed a hope that the Fifth Circuit would reach the merits “well in advance of the November election.” Texas Democratic Party v. Abbott, 140 S. Ct. 2015 (2020).
4. Ohio This Court briefly examined the decision in LaRose in the section on poll taxes above, but the case primarily involved an Anderson–Burdick claim. No. 2:20-cv-01638-MHW-EPD. LaRose involved a series of post-COVID election
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regulations passed by the Ohio General Assembly and signed by the governor on March 27, 2020 in response to state court litigation. Id. (Slip Op. at 3). The regulations set a voter registration deadline of February 18, 2020, extended the absentee ballot request deadline to April 25, permitted the counting of absentee ballots postmarked by April 27 and received by May 8, and required the Secretary of State to send out postcards to registered voters with instructions on how to apply for a ballot. Id. The plaintiffs in that case waged a wide-ranging challenge under both the National Voter Registration Act of 1993 and the First and Fourteenth Amendments. Id. (Slip Op. at 4–5).
The plaintiffs contended that the law constituted a burden on the right to vote because it provided insufficient time to effectively conduct voting, considering that voters needed to purchase postage, obtain an application, mail the application, receive back a ballot, and mail the ballot back within a month. Id. (Slip Op. at 15). The court characterized the burden as “at most modest,” noting that some voters were already able to early vote in person or absentee before the new law was passed, that there were still some limited options to vote in person, and that voters could submit an absentee ballot request on their own sheet of paper. Id. (Slip Op. at 16–18). Further, it noted that the requirement that voters affix a stamp to the ballot application was “no more than a minimal burden” where stamps were “available at multiple locations that remain[ed] open during the Governor’s stay-at-home order, including grocery stores,” and “[t]hose who
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[did] not wish to leave their homes to purchase stamps [could] purchase them online.” Id. (Slip Op. at 17).
The court held the minimal burden was justified by the state’s interest in curbing the pandemic and administrative efficiency. Id. (Slip Op. at 18–20). Additionally, it noted that extending the deadline further may have resulted in the state political parties being unable to send delegates to their national conventions. Id. (Slip Op. at 21). Finally, the court distinguished the Hurricane Matthew Cases (discussed next) on the grounds that the Ohio law did not involve a categorical denial of the right to vote. Id. (Slip Op. at 23–34).
B. Natural Disaster Cases The Court next considers cases involving Hurricane Matthew’s impact on the 2016 General Election. On October 6, 2016, Hurricane Matthew, “a Category 4 storm with winds of at least 140 miles per hour” menaced Central Florida after devastating Haiti. Hurricane Matthew Approaches Florida; Governor Urges 1.5 Million to Flee, New York Times (Oct. 6, 2016), https://www.nytimes.com/2016/10/06/us/hurricane-matthew-us.html. Florida Governor Rick Scott ordered 1.5 million people to evacuate. Id. Meanwhile, the nation was in the midst of a bitterly divisive presidential election. Florida’s voter registration deadline was set for Tuesday, October 11, 2016, less than a week after the evacuation order. Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1254 (N.D. Fla. 2016). The Plaintiffs in Scott sought an injunction against enforcement of the deadline in light of the evacuation. Id. The
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court recognized that “[l]iterally, in excess of a hundred thousand aspiring eligible Florida voters were likely to have registered to vote in the final week of voter registration,” and that “Hurricane Matthew not only forced many of those voters to evacuate the state, but also foreclosed the only methods of registering to vote: in person or by mail,” as many county offices had closed and the postal service had suspended operations. Id. at 1257. The court held that Florida’s statutory registration framework “completely disenfranchise[d] thousands of voters,” and characterized the burden as “severe,” and therefore subject to strict scrutiny. Id. (citing Burdick, 504 U.S. at 434).
On the other hand, the court found any prospective burden on the State of Florida for having to extend the voter registration deadline “at best de minimis.” Id. The court held that even if rational basis applied, the state’s interest would still fail to justify the burden because it was “wholly irrational . . . for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.” Id. (citing Fla. Stat. § 101.733). The court granted the injunction. Id. at 1258–59.
Likewise, in Chatham County, Georgia, as a result of the hurricane, the Board of Elections office “was closed from October 6 to October 12, 2016,” despite a voter registration deadline of October 11, 2016. Georgia Coal. for the Peoples' Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016). South Georgia also experienced “mandatory evacuations” and “post office closures and the suspension of mail service during this period.” Id. at 1344–35. Georgia contended
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that the hurricane did not prevent voters from registering electronically on the one hand, and that extending the deadline would cause early voting to overlap with registration, presenting “significant administrative burdens.” Id. at 1345. The court rejected this argument, noting that “those administrative hurdles pale in comparison to the physical, emotional, and financial strain Chatham County residents faced in the aftermath of Hurricane Matthew.” Id.
C. Application of the Law to the Facts The Court returns now to the present circumstances. Plaintiffs contend that “[d]ue to the pandemic, voting by mail is now the only meaningful option for the vast majority of Georgia voters for exercising their right to vote. Under these circumstances, the state’s imposition of a postage requirement effectively imposes an unavoidable monetary burden on the franchise.” (Br. at 15–16, Doc. 2-1.) Plaintiffs argue the burden, regardless of whether characterized as slight or severe, is not outweighed by the state’s interest in saving money. (Id. at 16.) The Secretary argues in response that he has taken action to protect Georgia voters from the pandemic, such as pushing back election dates, voluntarily sending out absentee ballot applications to all active voters in the June 2020 primary election,28 providing funding to polling sites for additional hygiene measures, and overseeing election regulations and grant allocations to
28 The Court takes judicial notice that the Secretary has publicly made clear that his office will not continue this practice of mass transmission of absentee ballot applications in connection with elections post-June 2020. See, e.g., https://www.ajc.com/ news/state--regional-govt--politics/absentee-voting-program-embraced-georgia-voters-thenabandoned/hkNttNsgXlaYZXjUatnvjK/.
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enable counties to establish secure drop boxes for absentee ballots and permit the distribution of stamps without fear of prosecution. And, while the Secretary cannot truly take credit for it, the Court heard evidence about the U.S. Postal Service’s purported policy of delivering absentee ballots with insufficient postage.29
Plaintiffs point out that for many voters, potential alternatives such as drop boxes simply do not present a viable option. It is also clear that many counties did not set up drop boxes for absentee ballots, and Plaintiffs argue that those counties that did provide boxes did not provide enough based on guidelines issued by the Department of Homeland Security. (Mot. to Supp., Doc. 136.) Plaintiff BVMF argues that advising voters to submit ballots by mail without postage risks loss of its credibility, and contends that it is harmed by having to divert funding to pay for and distribute postage. And the Court certainly credits, for present purposes, Plaintiffs arguments that purchasing stamps can be more burdensome for some groups than others, both based on cost and location. (Albright Testimony, Tr. at 39:21-24; Barreto Decl. ¶¶ 42–43, 74, 86, 89–90, 92.)
However, the Court notes that the restrictions upheld in Alabama (witness requirement) and Texas (prohibiting much of the population from voting absentee entirely) were arguably more onerous, and generated more risk of
29 The Court also heard evidence, though hearsay within hearsay, that the Hancock County post office would not deliver absentee ballots without postage. (Warren Decl. ¶ 8, Doc. 124-4.)
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COVID-19 exposure, than the postage requirement.30 In light of these appellate
decisions, and the potential alternatives to purchasing stamps available to many
(though not all) voters, the Court cannot say the burden of obtaining postage is
severe, and instead characterizes it as moderate for present purposes. Thus, the
next step is examining the State’s interest in the postage requirement.
The Parties agree that the state’s interest at issue is “financial.” (Sec’y Resp.
at 51.) Plaintiffs contend that that State’s interest is “minimal” because it “already
know[s] how to prepare prepaid postage,” and further that “the government’s
interest in saving money does not justify [Plaintiffs’ burden], regardless of how
small the amount.” (Pls.’ Br. at 2-1 (citing Harman, 380 U.S. at 544)). However,
the Secretary is correct that “[f]iscal responsibility, even if only incrementally
served, is undeniably a legitimate and reasonable legislative purpose.” Husted,
834 F.3d at 635. The State has a limited amount of resources (particularly during
a state of emergency), and has already allocated substantial funds to addressing
burdens on the right to vote, including $3 million to send absentee ballot
30 The Court is somewhat bewildered by the Supreme Court’s approach to COVID-19 cases. One possible explanation is a longstanding reluctance of courts to modify election rules close to the date of elections following the Supreme Court’s admonition in Purcell, 549 U. S. at 1. However, a hard-and-fast rule against modifying election regulations close to an election would seem inherently incompatible with emergencies, which by definition arise unexpectedly and may jeopardize fundamental voting processes. This leads the Court to the next observation. A second possible explanation for these outcomes is a general deference to states to deal with emergencies, including unexpected threats to the safety of voters. States theoretically have more expertise than courts in responding to crises. However, the unfortunate politicization of COVID19 responses across the nation may have led to voter disenfranchisement, which would not be brooked by a court outside of a pandemic scenario. And as the Hurricane Matthew cases demonstrate, a court may properly step in to clear obstacles to voting presented by emergencies where a state has completely failed to take any action, or where obstacles have been maintained that effectively preclude a significant swath of citizens from casting votes.
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applications to registered voters, (Tr. at 90:3-7), providing funding for polling site sanitization, and creating grants for secure drop boxes. Mr. Rayburn estimated the cost of providing prepaid postage for Plaintiffs’ requested relief at between $450,000 to $4.2 million per election, depending on voter participation, at a time where the budget is already strained as a result of the pandemic. (Aff. Rayburn ¶ 17.) The Supreme Court appears to have signaled that in light of the COVID-19 pandemic, where the state has taken concrete and constructive action to protect the right to vote, the Court must be cautious in second guessing this action.31 See e.g., Republican Nat’l Comm., 140 S. Ct. at 1207–08 (April 6, 2020) (“[T]he dissent’s rhetoric is entirely misplaced and completely overlooks the fact that the deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13.”); see also Little v. Reclaim Idaho, No. 20A18, 2020 WL 4360897, at *2 (U.S. July 30, 2020) (“The Governor and Secretary of State here, for example, have suspended some limits on absentee voting and processed requests for absentee ballots through online channels.”). What constitutes sufficient action to satisfy such a standard under the circumstances of a given case is a whole other question.
31 The Court leaves for another day the question of when a state’s interests, including financial interests, are outweighed by a moderate or even minimal burden on the right to vote where the state has completely failed to take any concrete and constructive action to protect the right to vote during an emergency such as a pandemic, or where the record evidence is greater than what was established by Plaintiffs in this specific case. Cf. Scott, 215 F. Supp. 3d at 1254; Deal, 214 F. Supp. 3d at 1345.
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Moreover, Plaintiffs have failed to present sufficient evidence at this time to show their burden outweighs the State’s interest. Plaintiffs presented: (1) only one declaration from a voter who could not afford a stamp and was forced to vote in person, though that voter is not a named plaintiff (Bryant Supp. Decl. ¶ 2, Doc. 124-1); and (2) not a single declaration from a voter who wanted to vote by drop box but was unable to. The Court finds that in light of the alternatives to purchasing a postage stamp discussed above, Plaintiffs have not, at least on the existing record in this specific case, demonstrated a substantial likelihood of success on their argument that the burden of the postage requirement outweighs the cost to the state of the requested relief. Because a showing of substantial likelihood of success on the merits “is generally the most important” factor, Schiavo, 403 F.3d at 1232, and because the Court has held that Plaintiff was “unable to show a substantial likelihood of success on the merits, [the Court] need not consider the other requirements” for injunctive relief. Bloedorn, 631 F.3d at 1229. The Court cautions once again though, that the evidentiary record and framing of claims related to the absentee ballot voting process may differ in other cases and therefore yield different results.
As to the Secretary’s Motion to Dismiss, the Court finds that Plaintiffs have at the very least stated a claim that a burden exists on the right to vote under the Anderson–Burdick line of cases. The Court’s denial of the preliminary injunction is based on the expedited record as it exists at this time, but discovery and factual
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development may potentially fortify Plaintiffs’ claims for permanent injunctive relief.
The Court has reviewed the Secretary’s other arguments for dismissal of Count II. The Secretary contends that the matter is not ripe as to future elections, noting that
the need for additional factual development in this matter is obvious. Hopefully, the public health emergency will be over by August or November, and Plaintiffs have not alleged anything specific to the contrary. But, if this Court decides that Plaintiffs have shown an imminent injury, deciding to require postage now and for all future elections places the cart before the horse. (Doc. 67-1 at 19.) The Court agrees that additional factual development is prudent, but does not agree that this renders the matter unripe, or that the public health emergency, most unfortunately, is likely over. Lastly, the Court has reviewed the Secretary’s two-page federalism argument. (Doc. 61-1 at 22–23.) The Court disagrees that a dispute over whether the postage requirement constitutes a burden on the right to vote is “directly contrary to the separation of powers between state and federal governments,” simply because the potential result could end up costing the State money or implicate the Secretary’s envelope design or where ballots are sent. (Id.) VI. Conclusion Plaintiffs presented compelling evidence that the state’s handling of the June 2020 election was plagued with difficulties, including many instances of voters not receiving their absentee ballots, and as a result being unnecessarily exposed to the virus. (See supra, Post-June 2020 Election Voter Affidavits.)
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However, the Court agrees with the Secretary that these important issues are beyond the scope of this litigation, which is focused on the postage requirement for absentee voting. Other courts in this district are considering more direct challenges to Georgia’s handling of the elections in general during the pandemic.32 Variations in the evidence and issues presented in cases may always lead to a different record, resulting in different outcomes. The narrow ruling in this case is certainly not likely the final word on absentee balloting issues or the implementation of the absentee ballot process in Georgia.
Plaintiffs’ Motion to Supplement [Doc. 136] is GRANTED. The Motion for a Preliminary Injunction [Doc. 2] is DENIED. The Secretary’s Motion to Dismiss Plaintiffs’ Amended Complaint [Doc. 90] is GRANTED as to Count I, and DENIED as to Count II. Any amendments to the Parties’ Joint Preliminary Report and Discovery Plan [Doc. 116] must be filed no later than 14 days from the date of entry of this Order.
IT IS SO ORDERED this 11th day of August, 2020.
____________________________ Amy Totenberg United States District Judge
32 See, e.g., cases cited supra in footnote 2.
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