Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 1 of 20
U.S. District Court Western District of Kentucky (Louisville) CIVIL DOCKET FOR CASE #: 3:20−cv−00375−CRS

Collins et al v. Adams et al Assigned to: Senior Judge Charles R. Simpson, III Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/27/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Michael Collins

represented by Adriel I. Cepeda Derieux American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2500 Email: acepedaderieux@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ajay Saini Lawyers' Committee for Civil Rights Under Law 1500 K Street NW, Suite 900 Washington, DC 20005 202−662−8304 Email: asaini@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ceridwen Cherry American Civil Liberties Union Foundation − DC 915 15th Street, NW Washington, DC 20005−2313 212−549−2500 Email: ccherry@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Corey M. Shapiro ACLU of Kentucky Foundation, Inc. 315 Guthrie Green Street, Suite 300 Louisville, KY 40202−3820 502−581−9746 Fax: 844−274−0570 Email: corey@aclu−ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale E. Ho ACLU Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2500 Email: dho@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ezra Rosenberg Lawyers' Committee for Civil Rights Under Law 1500 K Street NW, Suite 900

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 2 of 20
Washington, DC 20005 202−662−8345 Fax: 202−783−0857 Email: erosenberg@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek ACLU of Kentucky Foundation, Inc. 315 Guthrie Green Street, Suite 300 Louisville, KY 40202−3820 502−581−9746 Fax: 844−274−0570 Email: heather@aclu−ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder Covington & Burling LLP − DC 850 Tenth Street NW, One City Center Washington, DC 20001 423−741−1819 Email: jponder@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman Covington & Burling LLP − DC 850 Tenth Street NW, One City Center Washington, DC 20001 202−662−5049 Fax: 202−778−5683 Email: eholman@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan Covington & Burling LLP − DC 850 Tenth Street NW, One City Center Washington, DC 20001 202−662−5683 Fax: 202−778−5683 Email: mkeenan@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria Lawyers' Committee for Civil Rights Under Law 1500 K Street NW, Suite 900 Washington, DC 20005 202−662−8384 Email: nchabria@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram Covington & Burling LLP − San Francisco 415 Mission Street, Suite 5400 San Francisco, CA 94105 415−591−7025 Fax: 415−955−6525 Email: rfram@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 3 of 20

Plaintiff Jeffrey Cosby

Scott J. Garfing Covington & Burling LLP − DC 850 Tenth Street NW, One City Center Washington, DC 20001 202−662−5698 Email: sgarfing@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim Covington & Burling LLP − NY 620 Eighth Avenue New York, NY 10018−1405 212−841−1000 TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2500 Email: slakin@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays ACLU of Kentucky 325 W. Main Street, Suite 2210 Louisville, KY 40202 502−581−9746 Email: mrhays02@gmail.com ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address)

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 4 of 20

Plaintiff Thela Elliott

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 5 of 20
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 6 of 20

Plaintiff Gracie Lewis

(See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 7 of 20

Plaintiff Dejuan Nash

Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 8 of 20

Plaintiff Tiffany Price

Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 9 of 20

Plaintiff League of Women Voters of Kentucky

ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address)

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 10 of 20
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address)

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 11 of 20

Plaintiff Louisville Urban League

ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 12 of 20

Plaintiff
Kentucky Conference of NAACP Branches

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel I. Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay Saini (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ceridwen Cherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Corey M. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather L. Gatnarek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayne C. Ponder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elise Holman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 13 of 20
Megan C. Keenan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natasha Chabria (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fram (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Garfing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon Kim (See above for address) TERMINATED: 07/27/2020 LEAD ATTORNEY
Sophia Lin Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mashayla R. Hays (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael Adams in his official capacity as the Secretary of State of Kentucky

represented by Bridget M. Bush Landrum & Shouse, LLP 220 W. Main Street, Suite 1900 Louisville, KY 40202 502−589−7616 Fax: 502−589−2119 Email: bbush@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer S. Scutchfield Office of the Secretary of State 700 Capital Avenue State Capitol, Suite 152 Frankfort, KY 40601 502−782−7417 Email: jscutchfield@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael G. Adams Office of the Secretary of State 700 Capital Avenue State Capitol, Suite 152 Frankfort, KY 40601 502−782−742200 LEAD ATTORNEY

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 14 of 20

Defendant
Andrew Beshear in his official capacity as the Governor of Kentucky

ATTORNEY TO BE NOTICED
Michael R. Wilson Office of the Secretary of State 700 Capital Avenue State Capitol, Suite 152 Frankfort, KY 40601 502−782−7422 Fax: 502−564−5687 Email: Michael.Rollin.Wilson@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Kent Westberry Landrum & Shouse, LLP 220 W. Main Street, Suite 1900 Louisville, KY 40202 502−589−7616 Fax: 502−589−2119 Email: kwestberry@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by La Tasha Buckner Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Email: latasha.buckner@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura S. Tipton Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−6858 Email: laurac.tipton@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc G. Farris Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−2517 Email: marc.farris@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven T. Mayo Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−6858 Email: travis.mayo@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taylor A. Payne

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 15 of 20

Defendant Albert Benjamin Chandler, III in his official capacity as the Chairman of Kentucky Board of Elections
Intervenor − Pending Commonwealth of Kentucky ex rel. Attorney General Daniel Cameron TERMINATED: 07/23/2020

Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2644 Email: Taylor.Payne@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel L. Morgan McBrayer PLLC − Lexington 201 E. Main Street, Suite 900 Lexington, KY 40507 859−231−8780 Fax: 859−231−6518 Email: lmorgan@mcbrayerfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taylor A. Brown Kentucky State Board of Elections 140 Walnut Street Frankfort, KY 40601 502−573−7100 Fax: 502−573−4369 Email: taylora.brown@ky.gov ATTORNEY TO BE NOTICED
represented by Aaron J. Silletto Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5300 Fax: 502−564−2894 Email: aaron.silletto@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett R. Nolan Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 502−564−2611 Fax: 502−564−1275 Email: brett.nolan@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carmine G. Iaccarino Kentucky Attorney General 700 Capitol Avenue, Suite 120 Frankfort, KY 40601 502−696−5300 Email: carmine.iaccarino@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Manley Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5478 Email: marc.manley@ky.gov

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 16 of 20
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor B. Maddox Kentucky Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601−3449 502−696−5336 Email: Victor.Maddox@ky.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/27/2020 05/27/2020 05/27/2020 05/28/2020
05/28/2020
05/28/2020 05/29/2020
05/29/2020
06/02/2020

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400, receipt number 0644−3108840) filed by Gracie Lewis, Kentucky Conference of NAACP Branches, Dejuan Nash, League of Women Voters of Kentucky, Tiffany Price, Michael Collins, Jeffrey Cosby, Louisville Urban League, Thela Elliott. (Attachments: # 1 Cover Sheet) (ALS) (Entered: 05/27/2020)
2 Case Assignment (Random Selection): Case Assigned to Senior Judge Charles R. Simpson III. (ALS) (Entered: 05/27/2020)
3 Summons Issued as to All Defendants. Counsel for Plaintiff is responsible for printing and serving the attached issued summons(es). (Attachments: # 1 Summons Beshear, # 2 Summons Chandler) (ALS) (Entered: 05/27/2020)
4 MOTION for Ceridwen Bonnell Cherry to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3109643. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Shapiro, Corey) (Additional attachment(s) added on 5/28/2020: # 1 Proposed Order) (JM). (Additional attachment(s) added on 5/29/2020: # 2 Certificate of Good Standing) (JM). (Entered: 05/28/2020)
5 MOTION for Adriel I. Cepeda Derieux to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3109676. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Shapiro, Corey) (Additional attachment(s) added on 5/28/2020: # 1 Proposed Order) (JM). (Additional attachment(s) added on 5/29/2020: # 2 Certificate of Good Standing) (JM). (Entered: 05/28/2020)
6 NOTICE of Deficiency re 4 and 5 Motions to Appear Pro Hac Vice. Certificates of good standing have not been tendered. Failure to comply will be brought to the attention of the Court. Response due by 6/4/2020. (JM) (Entered: 05/28/2020)
7 NOTICE of Tendered Certificate of Good Standing for Ceridwen Bonnell Cherry by Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price re 4 MOTION for Ceridwen Bonnell Cherry to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3109643. (Shapiro, Corey) (Entered: 05/29/2020)
8 NOTICE of Tendered Certificate of Good Standing for Adriel I. Cepeda Derieux by Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price re 5 MOTION for Adriel I. Cepeda Derieux to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3109676. (Shapiro, Corey) (Entered: 05/29/2020)
9 MOTION for Dale Edwin Ho to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3112173. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 17 of 20

06/02/2020 06/02/2020 06/04/2020 06/11/2020 06/11/2020 06/11/2020 06/11/2020 06/11/2020 06/12/2020

6/3/2020: # 2 Proposed Order) (JM). (Entered: 06/02/2020)
10 MOTION for Sophia Lin Lakin to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3112187. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/3/2020: # 2 Proposed Order) (JM). (Entered: 06/02/2020)
11 TEXT ORDER by Senior Judge Charles R. Simpson, III on 6/2/2020, GRANTING 4 and 5 Motions for Ceridwen Bonnell Cherry and Adriel I. Cepeda Derieux to Appear Pro Hac Vice on behalf of the Plaintiffs.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel(RLK) (Entered: 06/02/2020)
12 TEXT ORDER by Senior Judge Charles R. Simpson, III on 6/4/2020, GRANTING 9 10 Motions for Dale Edwin Ho and Sophia Lin Lakin to Appear Pro Hac Vice on behalf of the Plaintiffs.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel(RLK) (Entered: 06/04/2020)
13 MOTION for Mary Elise Holman to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3118597. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/11/2020: # 2 Proposed Order) (JM). (Entered: 06/11/2020)
14 MOTION for Jayne Ponder to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3118607. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/11/2020: # 2 Proposed Order) (JM). (Entered: 06/11/2020)
15 MOTION for Megan C. Keenan to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3118610. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/11/2020: # 2 Proposed Order) (JM). (Entered: 06/11/2020)
16 MOTION for Robert D. Fram to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3118615. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/11/2020: # 2 Proposed Order) (JM). (Entered: 06/11/2020)
17 MOTION for Scott Garfing to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3118626. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing) (Shapiro, Corey) (Additional attachment(s) added on 6/11/2020: # 2 Proposed Order) (JM). (Entered: 06/11/2020)
18 TEXT ORDER by Senior Judge Charles R. Simpson, III on 6/12/2020, GRANTING 13 14 15 16 17 Motions for Mary Elise Holman, Jayne Ponder, Megan C. Keenan, Robert D. Fram, and Scott Garfing to Appear Pro Hac Vice on behalf of the Plaintiffs.

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 18 of 20

06/19/2020 06/22/2020 06/29/2020 06/30/2020
06/30/2020
07/06/2020 07/06/2020
07/07/2020 07/09/2020 07/10/2020 07/10/2020 07/10/2020 07/10/2020

This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel, QC(RLK) (Entered: 06/12/2020)
19 MOTION to Dismiss 1 Complaint. (Attachments: # 1 Proposed Order Proposed Order of Dismissal) by Albert Benjamin Chandler, III. (Morgan, Daniel) Modified on 6/22/2020: changed docket text from Memorandum to Motion to Dismiss (RLK). (Entered: 06/19/2020)
NOTICE OF DOCKET CORRECTION re 19 . ERROR: MOTION to Dismiss docketed in error by counsel as a Memorandum. CORRECTION: Docket text corrected by Clerk to reflect filing as a Motion, not as a Memorandum. (RLK) (Entered: 06/22/2020)
20 ANSWER to 1 Complaint, by Michael Adams. (Wilson, Michael) (Entered: 06/29/2020)
21 MOTION for Ajay P. Saini to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3131138. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Shapiro, Corey) (Entered: 06/30/2020)
22 MOTION for Ezra D. Rosenberg to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3131145. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Shapiro, Corey) (Entered: 06/30/2020)
23 NOTICE of Appearance by R. Kent Westberry on behalf of Michael Adams (Westberry, R.) (Entered: 07/06/2020)
24 TEXT ORDER by Senior Judge Charles R. Simpson, III on 7/6/2020, GRANTING 21 AND 22 Motions for Ajay P. Saini and Ezra D. Rosenberg to Appear Pro Hac Vice on behalf of the Plaintiffs.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel(RLK) (Entered: 07/06/2020)
25 NOTICE of Appearance by Bridget M. Bush on behalf of Michael Adams (Bush, Bridget) (Entered: 07/07/2020)
26 NOTICE of Appearance by Jennifer S. Scutchfield on behalf of Michael Adams (Scutchfield, Jennifer) (Entered: 07/09/2020)
27 NOTICE of Appearance by Mashayla R. Hays on behalf of Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Hays, Mashayla) (Entered: 07/10/2020)
28 MOTION to Intervene as a Defendant by Intervenor Defendant Commonwealth of Kentucky ex rel. Attorney General Daniel Cameron (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Answer of Intervenor) (Silletto, Aaron) (Entered: 07/10/2020)
29 MOTION for Leave to File Excess Pages in Support of Motion for Preliminary Injunction by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Proposed Order Granting Additional Pages) (Shapiro, Corey) (Entered: 07/10/2020)
30 MOTION for Preliminary Injunction by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 19 of 20

07/10/2020 07/10/2020
07/14/2020
07/14/2020 07/14/2020 07/14/2020 07/14/2020 07/16/2020
07/20/2020

Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Proposed Order Granting Motion for Preliminary Injunction, # 2 Exhibit A. Murray Decl., # 3 Exhibit B. Ponder Decl., # 4 Exhibit C. Nash Decl., # 5 Exhibit D. Cepeda Derieux Decl., # 6 Exhibit E. Collins Decl., # 7 Exhibit F. Cosby Decl., # 8 Exhibit G. Elliott Decl., # 9 Exhibit H. Lewis Decl., # 10 Exhibit I. Price Decl., # 11 Exhibit J. Burse Decl., # 12 Exhibit K. Reynolds Decl., # 13 Exhibit L. Wagner Decl., # 14 Exhibit M. Hanner Decl., # 15 Exhibit N. Pregliasco Decl., # 16 Exhibit O. Hersh Decl., # 17 Exhibit P. Mohammed Decl.) (Shapiro, Corey) (Entered: 07/10/2020)
31 RESPONSE to Motion re 19 MOTION to Dismiss for Lack of Jurisdiction filed by Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price. (Attachments: # 1 Proposed Order Denying Defendant Chandler's Motion to Dismiss) (Shapiro, Corey) (Entered: 07/10/2020)
32 APPENDIX of Exhibits to Plaintiffs' Opposition to Motion to Dismiss −− re 31 Response to Motion, (Attachments: # 1 Exhibit A. Collins Decl., # 2 Exhibit B. Cosby Decl., # 3 Exhibit C. Elliott Decl., # 4 Exhibit D. Lewis Decl., # 5 Exhibit E. Nash Decl., # 6 Exhibit F. Price Decl., # 7 Exhibit G. Murray Decl., # 8 Exhibit H. Wagner Decl., # 9 Exhibit I. Reynolds Decl., # 10 Exhibit J. Burse Decl., # 11 Exhibit K. Hersh Decl.) by Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price. (Shapiro, Corey) (Entered: 07/10/2020)
33 ORDER by Senior Judge Charles R. Simpson III on 7/14/2020; Status Conference set for 7/22/2020 at 2:00 PM in VideoConference before Senior Judge Charles R. Simpson III.Members of the public may request audio access to the virtual status conference through the following procedure: 1) Send an email requesting audio access to: Intake−kywecf@kywd.uscourts.gov 2) On the subject line of your email, please insert the following information: Remote Access to Wednesday, July 22, 2020 Status Conference in Collins, et al. v. Adams, et al. You will receive an email response with a dial−in phone number and Meeting ID which you may use to access the conference. cc: Counsel (ALS) (Entered: 07/14/2020)
34 NOTICE of Appearance by Taylor A. Brown on behalf of Albert Benjamin Chandler, III (Brown, Taylor) (Entered: 07/14/2020)
35 ATTORNEY NOTICE of Deficiency to Sharon Kim re 1 Complaint.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 7/31/2020. (KJA) (Entered: 07/14/2020)
36 ATTORNEY NOTICE of Deficiency to Natasha Chabria re 1 Complaint,.Reason for Deficiency: motion to appear pro hac vice not filed. Failure to comply will be brought to the attention of the Court. Response due by 7/31/2020. (KJA) (Entered: 07/14/2020)
37 MOTION for Natasha Chabria to Appear Pro Hac Vice Filing fee $ 125, receipt number 0644−3140445. by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Certificate of Good Standing, # 2 Proposed Order) (Shapiro, Corey) (Entered: 07/14/2020)
38 TEXT ORDER by Senior Judge Charles R. Simpson, III on 7/16/2020, GRANTING 37 Motion for Natasha Chabria to Appear Pro Hac Vice on behalf of the Plaintiffs.
This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.
cc: Counsel(RLK) (Entered: 07/16/2020)
39 MOTION to Withdraw as Attorney −−Sharon Kim. (Continue to receive notice:No) by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Proposed Order) (Fram, Robert) (Entered: 07/20/2020)

Case: 3:20-cv-375 As of: 08/10/2020 12:09 PM EDT 20 of 20

07/21/2020 07/23/2020 07/23/2020 07/24/2020
07/27/2020 07/30/2020
08/07/2020

40 NOTICE of Appearance by Steven T. Mayo on behalf of Andrew Beshear (Mayo, Steven) (Entered: 07/21/2020)
41 NOTICE of withdrawal of motion to intervene by Commonwealth of Kentucky ex rel. Attorney General Daniel Cameron re 28 MOTION to Intervene as a Defendant (Nolan, Brett) (Entered: 07/23/2020)
42 REPLY to Response to Motion re 19 MOTION to Dismiss for Lack of Jurisdiction filed by Albert Benjamin Chandler, III. (Morgan, Daniel) (Entered: 07/23/2020)
43 MEMORANDUM OF CONFERENCE AND ORDER for proceedings held before Senior Judge Charles R. Simpson III: Virtual Scheduling Conference held on 7/22/2020. Any motion for recusal in this case shall be filed no later than 5:00 p.m. EDT on July 24, 2020. Responses to the motion of the plaintiffs for preliminary injunction (DN 30 ) shall be filed no later than August 14, 2020. Replies are due no later than fourteen (14) days thereafter. An additional Status Conference will be scheduled, as appropriate. Counsel for Kentucky Secretary of State Michael Adams shall file a Status Report with the Court concerning the progress of the Working Group toward the establishment of a plan for conducting the November election no later than August 17, 2020. (Court Reporter: Dena Legg) cc: Counsel of Record (KD) (Entered: 07/24/2020)
44 ORDER Signed by Senior Judge Charles R. Simpson III on 7/27/2020; Granting 39 Motion to Withdraw Sharon Kim as Attorney for Plaintiffs. cc: Counsel(ALS) (Entered: 07/27/2020)
45 Unopposed MOTION for Leave to Amend Complaint by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Exhibit A− Stipulations for Amended Complaint, # 2 Exhibit B − Amended Complaint, # 3 Proposed Order Proposed Order) (Shapiro, Corey) (Entered: 07/30/2020)
46 MOTION for Hearing Regarding the August 17 Status Report by Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Kentucky Conference of NAACP Branches, League of Women Voters of Kentucky, Gracie Lewis, Louisville Urban League, Dejuan Nash, Tiffany Price (Attachments: # 1 Exhibit A − Plaintiffs' Letter, # 2 Exhibit B − Defendant's Response Letter, # 3 Proposed Order) (Shapiro, Corey) (Entered: 08/07/2020)

 
 Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 1 of 95 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MICHAEL COLLINS, JEFFREY COSBY, THELA ELLIOTT, GRACIE LEWIS, DEJUAN NASH, TIFFANY PRICE, LEAGUE OF WOMEN VOTERS OF KENTUCKY, LOUISVILLE URBAN LEAGUE, and KENTUCKY CONFERENCE OF NAACP BRANCHES,
Plaintiffs,
v.
MICHAEL ADAMS, in his official capacity as the Secretary of State of Kentucky; ANDREW BESHEAR, in his official capacity as the Governor of Kentucky; and ALBERT BENJAMIN CHANDLER, III, in his official capacity as the Chairman of the Kentucky Board of Elections,
Defendants.

Civil Case No. __3:2_0_-cv_-3_7_5-C_R_S____
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

COMPLAINT Plaintiffs—Michael Collins, Jeffrey Cosby, Thela Elliott, Gracie Lewis, DeJuan Nash, Tiffany Price, the League of Women Voters of Kentucky (“LWVKY”), the Louisville Urban League, and the Kentucky Conference of NAACP Branches (the “Kentucky NAACP”)—by and through their undersigned attorneys, bring this Complaint against the above-named Defendants; their respective agents, officers, employees, and successors; and all persons acting in concert with each or any of them. In support of this Complaint, Plaintiffs allege the following:

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 2 of 95 PageID #: 2
INTRODUCTION 1. The COVID-19 pandemic is an unprecedented public health emergency that poses an ongoing and very real threat to Kentuckians’ ability to participate safely in their electoral democracy. In the first wave of the virus, COVID-19 has spread throughout Kentucky at an exponential rate. In the month of April alone, Kentucky’s number of confirmed cases of COVID-19 increased by more than sixfold, and the number of associated deaths increased by twelvefold.1 As of the date of filing this Complaint, Kentucky has reported 8,951 positive cases and 390 deaths.2 2. Because the highly contagious COVID-19 spreads through close contact between individuals, public health experts recommend that individuals protect themselves from the virus by staying home and maintaining at least six-feet of distance from people outside of their household.3 3. Recognizing this threat, Kentucky officials used their power and took several steps to protect Kentuckians’ right to vote safely in the June 23 primary election. Acting in accordance with the legislature’s recent decision to give election officials the
1 Amber Rush, 680 Positive Cases of COVID-19, 20 Deaths Reported in Ky. on Wednesday, KFVS 12 (Apr. 1, 2020), https://www.kfvs12.com/2020/04/01/govbeshear-give-update-pm-planning-statewide-drive-thru-testing/; Ky. COVID-19 Numbers Now at 4,708 Cases, 240 Total Deaths, WKYT (Apr. 30, 2020), https://www.wkyt.com/content/news/WATCH-LIVE-Gov-Andy-Beshears-dailyCOVID-19-update-570089181.html. 2 Kentucky Dep’t of Pub. Health, Kentucky Coronavirus Monitoring (last updated May 26, 2020 at 5:00 P.M. E.T.), https://govstatus.egov.com/kycovid19. 3 CDC, Coronavirus Disease 2019: Protect Yourself (last updated Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/ prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F 2019-ncov%2Fprepare%2Fprevention.html.
2

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 3 of 95 PageID #: 3
flexibility to change Kentucky’s extremely restrictive voting laws, the Secretary of State,
the Governor, and the Board of Elections used that power to create a new set of rules to
conform to the unique circumstances of this pandemic. Unfortunately, they have
declined to take similar steps to safeguard the November 3, 2020 general election.
4. Public health officials project that the pandemic will continue to impact
our lives in the coming days, weeks, months, and even years.4 There is no doubt that
COVID-19 poses an ongoing threat. And even if the current outbreak subsides over the
summer, substantial health risks will remain.5 Although the curve is beginning to
flatten in some parts of the country, “going in the right direction . . . does not mean we
have, by any means, total control of this outbreak,” according to public health officials.6
4 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/; John Lauerman, Covid-19 Pandemic Likely to Last Two Years, Report Says, Bloomberg News (May 1, 2020), https://www.bloomberg.com/news/articles/2020-05-01/covid-19-pandemic-likely-tolast-two-years-report-says (citing report from the Center for Infectious Disease Research and Policy at the University of Minnesota). 5 Adrianna Rodriguez, The US is ‘Slightly’ Past Its First Peak, But Expert Says the Pandemic is Far from Over, USA Today (Apr. 28, 2020), https://www.usatoday.com/story/news/health/2020/04/28/coronavirus-johnshopkins-expert-says-covid-19-pandemic-far-over/3038429001/; Apoorva Mandavilli & Katie Thomas, Will an Antibody Test Allow Us to Go Back to School or Work?, N.Y. Times (Apr. 10, 2020), https://www.nytimes.com/2020/04/10/health/coronavirusantibodytest.html; Jason Silverstein, Fauci Says He “Can’t Guarantee” In-Person Voting in November Will Be Safe, CBS News (Apr. 13, 2020), https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-inpersonvoting-in-november-will-be-safe/?ftag=CNM-00-10aac3a. 6 Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 85, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-directorsenate-testimony-transcript-may-12.
3

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 4 of 95 PageID #: 4
The scientific community continues to learn new information about the risks of COVID19, and as Dr. Anthony Fauci, who has served as Director of the National Institute of Allergy and Infectious Diseases since 1984, testified before the United States Senate: “we should be humble about what we don’t know. . . .we don’t know everything about this virus, and we really better be very careful.”7
5. Moreover, public health experts have confirmed that the second wave is “inevitable” and on the way.8 As Dr. Fauci has stated, “[w]e will have coronavirus in the fall . . . . I am convinced of that because of the degree of transmissibility that it has, the global nature.”9
6. This second wave will almost certainly arrive before an effective vaccine is accessible to the public. Public health experts warn that the virus will continue to pose a serious threat to public health and safety until a vaccine becomes available,10 and have projected that it is unlikely that an FDA-approved vaccine will be mass produced and widely available in time for the November election.11
7 Id. at 62. 8 Christina Maxouris, US Could Be in for ‘a Bad Fall and a Bad Winter’ If It’s Unprepared for a Second Wave of Coronavirus, Fauci Warns, CNN (Apr. 29, 2020), https://www.cnn.com/2020/04/29/health/us-coronavirus-wednesday/index.html. 9 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/. 10 Devan Cole, Fauci Admits Earlier Covid-19 Mitigation Efforts Would Have Saved More American Lives, CNN (Apr. 12, 2020), https://www.cnn.com/2020/04/12/ politics/anthony-fauci-pushback-coronavirus-measures-cnntv/index.html. 11 TEGNA, FDA Approves Coronavirus Vaccine Candidate to Begin Phase 2 Trial, WUSA 9 (May 7, 2020), https://www.wusa9.com/article/news/health/coronavirus/fda-
4

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 5 of 95 PageID #: 5
7. Despite the near certainty that COVID-19 will continue to pose a severe health threat into the fall, Kentucky has not taken steps to alleviate the health risks of in-person voting for the November 3, 2020 general election. The Secretary of State and Governor, in conjunction with the Kentucky Board of Elections, have modified some of Kentucky’s election procedures for the upcoming primary election, including delaying the primary date from May 19 until June 23 and permitting all eligible Kentucky voters to apply to vote by mail-in absentee ballot.12 But even after recognizing the electionrelated risks inherent in the COVID-19 pandemic, Kentucky has failed to extend these modifications and provide all voters with an option to vote safely from home in the general election in November 2020.13 Kentucky voters hoping to abide by recommended social distancing practices and vote safely from home in the general election will still need to satisfy one of several narrowly-circumscribed “excuses”14; merely seeking to avoid exposure to the virus will not be sufficient. In other words, Kentucky is forcing voters to choose between their health and their right to vote.
8. Worse yet, Defendants’ failure to extend these modified rules throughout the COVID-19 crisis is compounded by the Kentucky General Assembly’s remarkable
approves-coronavirus-vaccine-candidate-to-begin-phase-2-trial/507-7119865c-3ffb42b0-8066-6df24aae2c5d; Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 32, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/ dr-anthony-fauci-cdc-director-senate-testimony-transcript-may-12. 12 Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020). 13 Id. 14 Ky. Rev. Stat. §§ 117.077, 117.085.
5

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 6 of 95 PageID #: 6
decision to make voting less accessible in the midst of the pandemic by adding a new onerous photo identification (“ID”) requirement. This new statute, in practice, will increase Kentuckians’ risk of exposure to the virus by forcing them to visit ID-issuing offices and/or copy centers to exercise their right to vote.15
9. Absent relief from this Court, which would only extend the rules governing the June primary while the risk of exposure to COVID-19 remains, Kentucky’s election laws will deprive thousands of the chance to participate in the general election in November 2020 by forcing voters to choose between risking the health and safety of themselves and their community or foregoing their constitutional right to vote. Accordingly, Plaintiffs challenge two components of Kentucky’s election laws and regulations (together, the “Challenged Requirements”).
10. First, Plaintiffs challenge Kentucky statutes regarding absentee voting— most significantly, the statutory provisions requiring that voters qualify for one of several narrow excuses to vote safely from home (the “Excuse Requirement”)—while the COVID-19 pandemic continues to threaten the health and safety of Kentucky voters. As noted, a voter who does not qualify under any of Kentucky’s statutorily-enumerated categories of persons permitted to vote by mail-in absentee ballot must vote in person in November or not at all. Defendants have interpreted Kentucky’s Excuse Requirement so that none of the listed absentee “excuses” apply to the thousands of voters faced with the risk that voting in person in the November 2020 election will expose them to COVID-19.
15 See S.B. 2, 2020 Gen. Assemb., Reg. Sess. (Ky. 2020). 6

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 7 of 95 PageID #: 7
11. Defendants have already acknowledged that the Excuse Requirement threatens the health and safety of voters during the COVID-19 pandemic, and have accordingly eliminated the Excuse Requirement for the primary election on June 23, 2020, by allowing all voters to submit applications to vote by mail-in absentee ballot by reason of “medical emergency.”16 And for the June primary, Defendants have also (a) eliminated the notarization requirement for medical emergency absentee ballot applications, (b) extended the absentee ballot deadline to include ballots postmarked by Election Day and received by the Saturday following the election, and (c) implemented new regulations to provide voters with notice and an opportunity to cure any absentee ballot that is rejected based on signature verification issues. But they have yet to extend these critical protections to the general election.
12. Just as Defendants have already acknowledged that upholding the Excuse Requirement will endanger voters in June, requiring the vast majority of eligible voters to be physically present at their traditional polling places will continue to threaten both public safety and the health of individual voters this November. In-person voters will have to wait in line with other individuals, sometimes for hours, before they can vote. At the polling place, they will have to use voting machines that may or may not be adequately sanitized between each use. And some polling places may be unable to accommodate necessary social distancing. Reinstating the Excuse Requirement for the general election in November 2020 unreasonably burdens the fundamental right to vote of Kentuckians who are practicing recommended social distancing to protect their and
16 Ky. Rev. Stat. § 117.077. 7

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 8 of 95 PageID #: 8
their community’s health from transmission of COVID-19, and it unnecessarily endangers poll workers and other election officials.
13. Second, Plaintiffs challenge the Kentucky statute requiring photo ID to vote in person and by mail-in absentee ballot. The newly-enacted Senate Bill 2 (the “Photo ID Law” or “S.B. 2”) requires voters to present photo ID to vote in person, and it requires voters applying for a mail-in absentee ballot to include a copy of the voter’s photo ID with the ballot application. If a voter does not yet have a photo ID, S.B. 2 requires that they execute a voter affirmation in the presence of an election officer confirming their identity and that the voter has a statutorily-enumerated reasonable impediment to procuring a photo ID.17
14. Complying with the Photo ID Law is presently impossible for many voters, who are unable to obtain and copy a photo ID or execute an affirmation in the presence of an election official, given the continued closure of many county clerks’ offices, IDissuing offices, and copy centers. And even when these offices reopen, obtaining licenses, copies, or affirmations will subject voters to unacceptable health risks that will remain life-threatening through the general election in November 2020, even if IDissuing offices, copy centers, and election offices reopen. Like the Excuse Requirement, the Photo ID Law unreasonably burdens the fundamental right to vote of Kentuckians who are practicing recommended social distancing to protect the health and safety of themselves and their communities.
17 S.B. 2 § 1(1)(c); S.B. 2 § 5(2). 8

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 9 of 95 PageID #: 9
15. Furthermore, Kentucky’s photo ID requirement for absentee ballot applications is unrelated to any valid state interest such as preventing voter fraud or safeguarding voter confidence. Any additional marginal benefit the Photo ID Law may offer is greatly outweighed by the risk of disenfranchisement.
16. Plaintiffs bring this action to vindicate their rights under the First and Fourteenth Amendments to the U.S. Constitution and prevent the needless deprivation of their fundamental right to vote. Kentucky’s failure to maintain the elimination of the Challenged Requirements to adapt to the realities of the COVID-19 crisis forces voters to make the untenable choice between their health and their vote.
17. Accordingly, the Challenged Requirements will each, separately and jointly, unduly burden Kentuckians’ right to vote in the general election in November 2020. Moreover, the Challenged Requirements’ impact will fall more heavily on certain categories of voters who have been disproportionately impacted by COVID-19, including Black voters, elderly voters, voters with underlying health conditions, and voters with disabilities.
18. Defendants have already acknowledged that the right to vote in the June primary would be compromised by the present public health crisis unless Defendants acted. They exercised the power granted to them by the legislature to allow voting in the upcoming election without any of the Challenged Requirements. However, the right to vote will be compromised in November unless Defendants eliminate those same Challenged Requirements throughout the 2020 election calendar, during which the COVID-19 pandemic will continue to impact Kentuckians’ health and safety. Plaintiffs
9

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 10 of 95 PageID #: 10
therefore ask that the Court enjoin the Challenged Requirements and declare them unconstitutional for the duration of the 2020 election calendar.
19. Plaintiffs’ need for relief from this Court is urgent for at least two reasons. First, the plaintiff organizations are already diverting their limited time and resources to respond to the Challenged Requirements, including by educating voters on the Photo ID Law instead of undertaking other voter registration and engagement efforts. Second, the changes required to make the November 2020 general election accessible are time sensitive.18
JURISDICTION AND VENUE 20. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the First and Fourteenth Amendments to the U.S. Constitution. 21. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States. Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the U.S. Constitution and federal law. 22. This Court has personal jurisdiction over Defendants, who are sued only in their official capacity as officers and officials of the Commonwealth of Kentucky. The violations complained of concern their conduct in such capacity.
18 Emily Bazelon, Will Americans Lose Their Right to Vote in the Pandemic?, N.Y. Times (May 5, 2020), https://www.nytimes.com/2020/05/05/magazine/voting-bymail-2020-covid.html.
10

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 11 of 95 PageID #: 11
23. Plaintiffs bring this action to secure equitable relief under federal law providing for the protection of voting rights, pursuant to 28 U.S.C. §§ 2201 and 2202.
24. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
25. Venue is proper in this Court under 28 U.S.C. § 1391(b). LWVKY, Louisville Urban League, and Kentucky NAACP have members in Louisville, and a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.
PARTIES I. Plaintiffs
A. Michael Collins 26. Plaintiff Michael Collins is a 59-year-old Black man who lives in Louisville, Kentucky. Mr. Collins is a U.S. citizen and a registered voter in the Commonwealth of Kentucky. 27. Mr. Collins suffers from Chronic Obstructive Pulmonary Disease (“COPD”), which puts him at high risk for severe illness from COVID-19. 28. Since the pandemic began, Mr. Collins has been staying at home and avoiding social interaction whenever possible. Mr. Collins lives alone and only leaves his home once every other week to go to the grocery store or Walgreens. When Mr. Collins does leave his home, he wears a mask and makes sure he has hand sanitizer available.
11

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 12 of 95 PageID #: 12
29. Mr. Collins intends to vote in the November 2020 election. Due to his high-risk status, he wants to vote by mail to avoid the health risks of voting in person during the pandemic. But under Kentucky’s Excuse Requirement, Mr. Collins is not permitted to vote by mail, so he will have to choose between his health and his right to vote in November.
B. Jeffrey Cosby 30. Plaintiff Jeffrey Cosby is a 64-year-old Black man living in Ashland, Kentucky. He is a U.S. citizen and lawfully registered Kentucky voter. 31. Mr. Cosby has suffered from COPD, asbestosis, diabetes, chronic kidney disease, thyroid issues, and gallbladder problems. He has undergone many serious medical procedures, including quadruple coronary artery bypass surgery, placement of multiple stents in his heart, and a hip replacement. He is very afraid to leave his home because of the risk of exposure to COVID-19, especially given his various underlying medical conditions. 32. Mr. Cosby has not left his property for any nonessential reason since the start of the pandemic—he has left his property only one time to go to the pharmacy, and even then, he stayed inside the car while his wife went inside. He and his wife do not allow any visitors into their house. Mr. Cosby relies on his wife to replenish essential items at home, and his wife takes careful precautions before leaving home, including by bringing hand sanitizer and wearing a mask. 33. While Mr. Cosby usually votes in person, he wants to use a mail-in absentee ballot in November to vote safely from home and avoid the health risks of voting in person during the pandemic. But under Kentucky’s Excuse Requirement, Mr.
12

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 13 of 95 PageID #: 13
Cosby is not permitted to use a mail-in absentee ballot to vote safely from home, so he will have to choose between his health and his right to vote in November.
34. Mr. Cosby does have a driver’s license, but he does not have a printer or copier at home. To comply with the Photo ID Law’s requirement to include a copy of his ID with his mail-in absentee ballot application, he would need to ask his wife, who would need to visit a public business. But because of Mr. Cosby’s health conditions, they want to avoid the health risks of such in-person interactions with the public during the pandemic.
C. Thela Elliott 35. Plaintiff Thela Elliott is a 58-year-old Black woman who lives in Louisville, Kentucky. She is a U.S. citizen and lawfully registered Kentucky voter. 36. Ms. Elliott has several underlying health conditions that compromise her immune system and increase her risk of serious illness from COVID-19, including Hepatitis C, high blood pressure, and bladder cancer. 37. Ms. Elliott has not left her home for any nonessential reason since the start of the pandemic—she has left her home only for essential activities such as grocery shopping, doctor appointments, and walking her dog, and she has taken safety precautions while outside her home, such as wearing a mask and gloves and practicing social distancing. 38. Ms. Elliott has been a committed voter since she turned 18 years old, and she has been voting in Kentucky elections since she moved to the Commonwealth 30 years ago. As a committed, lifelong voter, Ms. Elliott wants to use a mail-in absentee ballot to vote safely from home in the November 2020 election, because of the health
13

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 14 of 95 PageID #: 14
risks of voting in person during the pandemic. But under Kentucky’s Excuse Requirement, Ms. Elliott is not permitted to use a mail-in absentee ballot to vote safely from home, so she will have to choose between her health and her right to vote in November.
39. Ms. Elliott has a valid photo ID, but she does not have access to a photocopier or printer to comply with the Photo ID Law’s requirement to include a copy of her ID with her mail-in absentee ballot application. She does not want to go to a public place to print a copy of her photo ID during the pandemic because of her medical conditions.
D. Gracie Lewis 40. Plaintiff Gracie Lewis is a 72-year-old Black woman who lives in Louisville, Kentucky. She is a U.S. citizen and lawfully registered Kentucky voter, and she has served as a poll worker in many past Kentucky elections. 41. Ms. Lewis has several health conditions that increase her risk of serious illness from COVID-19, including COPD, congestive heart failure, lymphedema, and high blood pressure. 42. Ms. Lewis has not left her home for any nonessential reason since the start of the pandemic—she has left her home only for essential activities such as grocery shopping and doctor appointments, and she has worn a mask and gloves and practiced social distancing on those occasions. Ms. Lewis works at the Kentucky Commission for Human Rights, and although that office has reopened, her supervisors have permitted her to maintain her precautionary practices and continue to work from home because of her health conditions and the related risks during the COVID-19 pandemic.
14

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 15 of 95 PageID #: 15
43. Ms. Lewis wants to use a mail-in absentee ballot to vote safely from home in the November 2020 election, because of the health risks of voting in person during the pandemic. But under Kentucky’s Excuse Requirement, Ms. Lewis is not permitted to use a mail-in absentee ballot to vote safely from home, so she will have to choose between her health and her right to vote in November.
E. DeJuan Nash 44. Plaintiff DeJuan Nash is a 51-year-old Black man from Louisville, Kentucky. He is a U.S. citizen and lawfully registered Kentucky voter. 45. Mr. Nash suffers from several health conditions that increase his risk of serious illness from COVID-19, which include hypertension, kidney disease, and diabetes. 46. Since the pandemic began, Mr. Nash has been staying at home and has made occasional trips outside only for limited purposes and with the necessary precautions. Specifically, he has left his home to go shopping for essentials, such as groceries, takeout, or other household items, and to run essential errands, such as helping his adult daughter get her car fixed. He always wears gloves and masks when he leaves his home and tries to time his trips during the midday or evening. When Mr. Nash’s 17-year-old son visits him every couple of weeks, he and his son follow social distancing guidelines, even while inside Mr. Nash’s home. 47. Mr. Nash intends to vote in November and strongly prefers to vote by mail. He has serious concerns about safety if Kentuckians are forced to vote in person during the pandemic. But under Kentucky’s Excuse Requirement, Mr. Nash is not
15

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 16 of 95 PageID #: 16
permitted to use a mail-in absentee ballot to vote safely from home, so he will have to choose between his health and his right to vote in November.
F. Tiffany Price 48. Plaintiff Tiffany Price is a 39-year-old Black woman who lives in Louisville, Kentucky. She is a U.S. citizen and is lawfully registered to vote in Kentucky. 49. Ms. Price suffers from underlying health conditions that compromise her immune system and increase her risk of serious illness from COVID-19, including diabetes and hypertension. 50. Since the pandemic began, she has been sheltering in place. Ms. Price has only left her home for essential reasons, such as going to the grocery store or to pick up food. Because Ms. Price does not drive, she has relied on her mother, brother, and aunt to give her a ride to these places, but Ms. Price wears a mask and adheres to social distancing guidelines while doing so. Ms. Price lives with her school-aged daughter, who has been sheltering in place apart from occasional bike rides to her grandmother’s house. 51. Ms. Price strongly prefers to vote by mail in the general election in November 2020, because of the health risks of voting in person during the pandemic. But under Kentucky’s Excuse Requirement, Ms. Price is not permitted to use a mail-in absentee ballot to vote safely from home, so she will have to choose between her health and her right to vote in November. 52. Ms. Price has a valid photo ID, but she does not have access to a copier or printer to comply with the Photo ID Law’s requirement to include a copy of her ID with her mail-in absentee ballot application.
16

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 17 of 95 PageID #: 17
G. League of Women Voters of Kentucky 53. LWVKY is a “non-partisan organization that promotes the informed and active participation of citizens in government through study and action.”19 LWVKY is an affiliate of the League of Women Voters of the United States, which began as a “mighty political experiment” designed to help 20 million women carry out their new responsibilities as voters.20 54. One of LWVKY’s guiding principles is “that every citizen should be protected in the right to vote.”21 LWVKY is “committed to the protection of voting rights” in the Commonwealth of Kentucky, and it believes that “Kentucky’s election process should be reformed by eliminating barriers to citizens voting and making the registration and voting process more convenient for citizens while also making sure that elections are secure.”22 55. LWVKY has 375 members and five local league chapters throughout the Commonwealth. LWVKY has members that are eligible and planning to cast ballots in elections in November 2020 and have chronic or other underlying health conditions that put them at heightened risk of complications from COVID-19. Others live with family members or in communities with people who are in an at-risk population, and
19 League of Women Voters of Kentucky, Our Mission, https://www.lwvky.org/aboutus#mission (last visited Apr. 29, 2020). 20 League of Women Voters of the United States, 100 Years of LWV, https://www.lwv.org/about-us/history (last visited May 21, 2020). 21 League of Women Voters of Kentucky, Our Mission, https://www.lwvky.org/ aboutus#mission (last visited Apr. 29, 2020). 22 League of Women Voters of Kentucky, Issues of Focus, https://www.lwvky.org/issues (last visited Apr. 29, 2020).
17

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 18 of 95 PageID #: 18
who could be exposed to the dangers of COVID-19 if the member is required to vote in person in the general election in November 2020. Under such circumstances, many of LWVKY’s members would, if eligible, seek to vote absentee in the November 2020 elections. However, Kentucky’s restrictive Excuse Requirement places limitations on Kentuckians’ ability to vote safely from home in the November 2020 election, which will cause many of LWVKY’s members to risk their own health, and the health of their family and community, to cast ballots in person on Election Day.
56. LWVKY has members who are poll workers or work directly with poll workers and other election officials who will need to assist voters on Election Day regarding the new Photo ID Law. With such burdensome guidelines happening so soon after passage, the implementation of S.B. 2 will likely cause widespread confusion for poll workers and election officials, resulting in eligible voters being disenfranchised.
57. LWVKY also has members who are eligible and planning to vote in November 2020 and do not currently have a Kentucky driver’s license, a student ID, or a photo ID provided by the U.S. government. These voters will find it difficult to obtain a ballot under Kentucky’s new Photo ID Law given the constraints imposed by the pandemic.
58. A substantial part of LWVKY’s work includes registering voters and generally encouraging voter participation in elections. In preparation for the 2020 election, LWVKY had planned to devote resources to these voter registration and engagement efforts, including by explaining procedures for voting and voting registration to people with felony records whose voting rights were restored as a result of Governor Beshear’s executive order on December 12, 2019.
18

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 19 of 95 PageID #: 19
59. The new Photo ID Law has caused LWVKY to change its plans and divert resources away from its planned voter registration and get out the vote efforts. LWVKY is instead devoting time and resources to completely revamp its educational materials to include information about the new Photo ID Law, including details on the cumbersome process for how to obtain and copy an ID during the pandemic. LWVKY must reduce its other services to voters in order to spread information regarding the new Photo ID Law and assist those without photo IDs to get them. This diversion of resources to fund mailings and paid advertising to keep voters informed will produce a significant challenge to LWVKY’s volunteers and place a serious strain on its financial resources.
60. Kentucky’s failure to treat the COVID-19 pandemic as an excuse to vote safely from home in the upcoming general election harms LWVKY members’ ability to cast ballots and have them count in the 2020 election cycle, hinders the organization’s efforts to register Kentuckians to vote and increase voter participation, and causes the organization to divert resources intended for its voter registration and education efforts to ensure that registered Kentuckians can vote in the general election.
61. If the Excuse Requirement goes back into effect for the November 2020 election, LWVKY will have to divert even more resources from its voter registration and engagement activities, because during the pandemic, every voter will need to learn who does and does not qualify for an absentee ballot, when notaries will be needed, and other details of Kentucky’s burdensome system. What has usually mattered only to a limited part of the electorate suddenly will be key to the health and safety of every voter. To educate Kentucky citizens about these requirements and assist any of its members
19

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 20 of 95 PageID #: 20
who have difficulty complying, LWVKY must again reduce its other services and spend from its limited financial reserves.
H. Louisville Urban League 62. The Louisville Urban League is a “nonprofit, nonpartisan, community service organization dedicated to eliminating racism and its adverse impacts” on the community in Louisville, Kentucky. Its mission is to “assist African Americans and other marginalized populations in attaining social and economic equality through direct services and advocacy.”23 63. The Louisville Urban League has members and clients that are eligible and planning to cast ballots in elections in November 2020, and have chronic or other underlying health conditions that put them at heightened risk of complications from COVID-19. Others live with family members or in communities with people who are in an at-risk population, and who could be exposed to the dangers of COVID-19 if the member is required to vote in person in the general election in November 2020. Under such circumstances, many of the Louisville Urban League’s members and clients would, if eligible, seek to vote absentee in the November 2020 elections. However, Kentucky’s restrictive Excuse Requirement places limitations on Kentuckians’ ability to vote safely from home in the November 2020 election, which will cause many of the Louisville Urban League’s members and clients to risk their own health, and the health of their family and community to cast ballots in person on Election Day.
23 Louisville Urban League, About Us, https://lul.org/about/(last visited Apr. 25, 2020). 20

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 21 of 95 PageID #: 21
64. The Louisville Urban League has members and clients who are eligible and planning to vote in November 2020, and do not currently have a Kentucky driver’s license, a student ID, or a photo ID provided by the U.S. government. These voters will find it difficult to obtain a ballot under Kentucky’s new Photo ID Law, given the constraints imposed by the pandemic.
65. The Louisville Urban League has traditionally provided election assistance by educating Kentuckians about voter registration, facilitating voter registration, and advocating for restoration of voting rights to Kentuckians with felony convictions.24
66. In preparation for the 2020 election, the Louisville Urban League had planned to devote resources to voter registration efforts and to an outreach and educational campaign to assist individuals with felony records who had their voting rights restored by Governor Beshear’s executive order on December 12, 2019.
67. The new Photo ID Law has caused the Louisville Urban League to change its plans and divert resources away from its planned voter engagement and education efforts. The Louisville Urban League is instead devoting its time and resources toward educating the community about the new Photo ID Law. The Louisville Urban League will also now have to divert resources toward transportation and assistance for
24 See, e.g., Louisville Urban League, Register to Vote (Apr. 25, 2020), https://lul.org/ event/register-to-vote/2020-04-25/; Urban League, NAACP to Hold ‘Drive Up’ for Voter Registration Event, WHAS 11 (Oct. 6, 2018), https://www.whas11.com/article/ news/politics/elections/urban-league-naacp-to-hold-drive-up-for-voter-registrationevent/417-601669303; Philip M. Bailey, Being Black in Louisville is ‘AspirationCrushing,’ Urban League Leader Says, Louisville Courier Journal (Feb. 12, 2018), https://www.courier-journal.com/story/news/local/2018/02/09/louisville-urbanleague-state-black-louisville-2018-report/322869002/ (describing advocacy for automatic restoration of voting rights).
21

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 22 of 95 PageID #: 22
communities that have trouble accessing photo ID or compiling the requisite documentation to obtain photo ID, such as seniors, homeless Kentuckians, and disconnected youth.
68. Kentucky’s failure to treat the COVID-19 pandemic as an excuse to vote safely from home in the upcoming general election harms the Louisville Urban League members’ and clients’ ability to cast ballots and have them count in the 2020 election cycle, hinders the organization’s efforts to register Kentuckians to vote and increase voter participation, and causes the organization to divert resources intended for its voter registration and restoration efforts to ensure that registered Kentuckians can vote in the general election. In particular, the Louisville Urban League will need to investigate, respond to, mitigate, and address the concerns of its members and clients who face serious health risks if they are forced to leave their homes to obtain or copy photo ID, seek out a notary, or vote in the general election.
I. The Kentucky Conference of NAACP Branches 69. The Kentucky NAACP is a nonpartisan, multi-racial, non-profit membership organization headquartered in Louisville, Kentucky. The Kentucky NAACP serves as the Kentucky arm of the National Association for the Advancement of Colored People. Its mission is to eliminate race-based discrimination through securing political, educational, social, and economic equality rights and ensuring the health and well-being of all persons. 70. The Kentucky NAACP has local branch units and youth councils throughout the state, and its membership primarily consists of African Americans, other
22

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 23 of 95 PageID #: 23
people of color, and allies. The Kentucky NAACP and its local branch units are volunteer-run, and all officers are volunteers.
71. The Kentucky NAACP has members that are eligible and planning to cast ballots in November 2020 and have chronic or other underlying health conditions that put them at heightened risk of complications from COVID-19. Others live with family members or in communities with people who are in an at-risk population, and who could be exposed to the dangers of COVID-19 if the member is required to vote in person in the general election in November 2020. Under such circumstances, many of the Kentucky NAACP’s members would, if eligible, seek to vote absentee in the November 2020 election. However, Kentucky’s restrictive eligibility criteria for absentee ballots for the November 2020 election will cause many of the Kentucky NAACP’s members to risk their own health, and the health of their family and community, to cast ballots in person on Election Day.
72. The Kentucky NAACP has members who are eligible and planning to vote in November 2020 and do not currently have a Kentucky driver’s license, a student ID, or a photo ID provided by the U.S. government. These voters will find it difficult to obtain a ballot under Kentucky’s new Photo ID Law, given the constraints imposed by the pandemic.
73. In support of its advocacy agenda, the Kentucky NAACP engages in voter outreach efforts, including through voter registration, education, and mobilization work in communities that have had historically low voter registration and turnout.
74. For the November 2020 election, the Kentucky NAACP planned to engage in several efforts aimed at ensuring voters in key constituencies had access to the ballot
23

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 24 of 95 PageID #: 24
box. The Kentucky NAACP was planning to conduct targeted outreach to registered voters that Kentucky election officials previously identified as inactive,25 and to ensure that registration information for these voters was up-to-date and that these voters cast ballots during the election. Similarly, the Kentucky NAACP also planned registration efforts to assist individuals who had voting rights restored by the Governor. The Kentucky NAACP planned to obtain contact information for individuals in both groups and to devote staff to reaching out, providing important information and assistance relating to registration, and encouraging individuals to vote. In addition, the Kentucky NAACP planned to develop public service announcements designed to drive registration in these groups.
75. The new Photo ID Law has caused the Kentucky NAACP to change its plans and divert resources away from its planned voter registration and get out the vote efforts. The Kentucky NAACP is now engaging in efforts aimed at addressing confusion around the new Photo ID Law, including providing information to voters on what forms of identification are acceptable and how voters can obtain qualifying IDs. In addition, the organization expects that it will need to devote resources to assisting individuals obtain the necessary IDs. In the communities served by the Kentucky NAACP, this includes elderly voters, as well as voters who do not have a driver’s license or car.
76. Kentucky’s failure to treat the COVID-19 pandemic as an excuse to vote safely from home in the upcoming general election harms Kentucky NAACP members’
25 Sarah Ladd, Judge Orders 175,000 Kentucky Voters Reinstated After They Were Classified as ‘Inactive’, Louisville Courier Journal (Oct. 14, 2019), https://www.courierjournal.com/story/news/politics/2019/10/14/judge-175-000-inactive-kentucky-votersreinstated/3979277002/.
24

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 25 of 95 PageID #: 25
ability to cast ballots and have them count in the 2020 general election, hinders the organization’s efforts to register Kentuckians to vote and increase voter participation, and causes the organization to divert resources intended for its voter engagement and education efforts to ensure that registered Kentuckians can vote in the general election. In particular, the Kentucky NAACP will need to investigate, respond to, mitigate, and address the concerns of its members and constituents who face serious health risks if they are forced to leave their homes to obtain or copy photo ID, seek out a notary, or vote in the general election. II. Defendants
A. Secretary of State Michael Adams 77. Defendant Michael Adams is the Secretary of State of Kentucky and is sued in his official capacity. The Secretary is the Commonwealth’s Chief Election Official.26 78. The Secretary of State also serves as an ex officio, nonvoting member of the Kentucky Board of Elections, an independent agency that administers the Commonwealth’s election laws and promulgates administrative regulations necessary to properly carry out its duties.27
26 Ky. Sec’y of State, Office of Elections, https://www.sos.ky.gov/elections/Pages/ default.aspx (last visited Apr. 29, 2020). 27 Ky. Rev. Stat. § 117.015(3).
25

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 26 of 95 PageID #: 26
79. Pursuant to recently enacted H.B. 351, the Governor of Kentucky can only issue an executive order altering the time, place, or manner of an election during a state of emergency at the recommendation of the Secretary of State.28
80. Once the Governor issues such an executive order, the Kentucky Board of Elections has the power to establish emergency plans that would permit all Kentucky voters to use mail-in absentee ballots to vote safely from home during the pandemic.29
81. H.B. 351 then mandates that the Secretary of State and the Governor must approve any election procedures established by the Kentucky Board of Elections during a state of emergency before the procedures can take effect.30
B. Governor Andrew Beshear 82. Defendant Andrew Beshear is the Governor of the Commonwealth of Kentucky and is sued in his official capacity. 83. Pursuant to recently enacted H.B. 351, the Governor of Kentucky, upon the recommendation of the Secretary of State, can issue an executive order altering the time, place, or manner of an election during a state of emergency.31 84. Once the Governor issues such an executive order, the Kentucky Board of Elections has the power to establish emergency plans that would permit all Kentucky voters to use mail-in absentee ballots to vote safely from home during the pandemic.32
28 H.B. 351 § 74(1)(l), 2020 Gen. Assemb., Reg. Sess. (Ky. 2020). 29 Ky. Rev. Stat. § 14.318; H.B. 351 § 74(1)(l). 30 H.B. 351 § 74(1)(l). 31 Id. 32 Ky. Rev. Stat. § 14.318; H.B. 351 § 74(1)(l).
26

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 27 of 95 PageID #: 27
85. H.B. 351 then mandates that the Secretary of State and the Governor must approve any election procedures established by the Kentucky Board of Elections during a state of emergency before the procedures can take effect.33
C. Chairman Albert Benjamin Chandler, III 86. Defendant Albert Benjamin Chandler, III is the current Chairman of the Kentucky Board of Elections and is sued in his official capacity. 87. The Kentucky Board of Elections has the authority to “promulgate administrative regulations as necessary” to “administer the election laws of the state.”34 88. Pursuant to recently enacted H.B. 351, once the Governor declares a state of emergency and issues an executive order altering the time, place, or manner of an election, the Kentucky Board of Elections is responsible for establishing procedures for election officials to follow to accommodate the alteration.35 89. As such, the Kentucky Board of Elections has the power to establish emergency plans that would permit all Kentucky voters to use mail-in absentee ballots to vote safely from home during the pandemic.36
33 H.B. 351 § 74(1)(l). 34 Ky. Rev. Stat. § 117.015. 35 H.B. 351 § 74(1)(l). 36 Ky. Rev. Stat. § 14.318; H.B. 351 § 74(1)(l).
27

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 28 of 95 PageID #: 28
FACTUAL ALLEGATIONS I. The COVID-19 Pandemic Poses a Serious Threat to Public Health and
Safety in Kentucky. A. Public Health Impact of COVID-19 90. COVID-19 is an infectious disease caused by a novel coronavirus that has spread throughout the world at a rapid pace.37 The virus “can infect organs throughout the body, including lungs, throat, heart, liver, brain, kidneys and the intestines,” and contracting the virus can ultimately result in death, blood clots, and/or severe and lasting damage to various organs.38 91. The United States has a higher number of COVID-19 cases than any other country.39 As of the date of filing this Complaint, the confirmed number of infections in the United States has surpassed 1.6 million, and at least 98,938 people have lost their lives nationwide.40 And the confirmed number of cases and deaths may be significantly lower than the actual total. The FDA recently issued an alert about the accuracy of one of the widely used rapid tests for COVID-19 after researchers at New York University
37 CDC, What You Should Know about COVID-19 to Protect Yourself and Others (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncovfactsheet.pdf. 38 Maggie Fox, Covid-19 Infects Intestines, Kidneys and Other Organs, Studies Find, CNN Health (May 13, 2020), https://www.cnn.com/2020/05/13/health/wellnesscovid-attacks-organs-kidney/index.html. 39 Donald G. McNeil, Jr., The U.S. Now Leads the World in Confirmed Coronavirus Cases, N.Y. Times (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/health/usa-coronavirus-cases.html. 40 Coronavirus Map: Tracking the Global Outbreak, N.Y. Times (last updated May 27, 2020 at 8:18 A.M. E.T.), https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html.
28

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 29 of 95 PageID #: 29
found they could be “missing a third to almost half of the positive cases,”41 and a recent investigation by the Yale School of Public Health and the Washington Post suggests that the number of deaths caused by COVID-19 could be much higher than reported.42 Dr. Fauci testified before the Senate that the number of deaths caused by COVID-19 are “almost certainly” higher than the number of deaths that have been reported.43
92. The surge of cases around the world has caused incredible strains on healthcare systems, including critical shortages of medical personnel, lifesaving equipment, and personal protective equipment (“PPE”) for healthcare workers on the front lines.
93. Virtually all aspects of life in the United States have been affected by the global COVID-19 pandemic. According to the Centers for Disease Control and Prevention (“CDC”), COVID-19 spreads aggressively, and even asymptomatic and presymptomatic individuals can potentially infect others with whom they come into
41 Salvador Rodriguez, FDA Issues Warning on Accuracy of Abbott’s Rapid Coronavirus Test After Study Finds False Negatives, CNBC (May 14, 2020), https://www.cnbc.com/2020/05/14/fda-data-suggests-abbotts-rapid-coronavirusdiagnostic-test-is-delivering-inaccurate-results.html. 42 Emma Brown et al., U.S. Deaths Soared in Early Weeks of Pandemic, Far Exceeding Number Attributed to Covid-19, Wash. Post (Apr. 27, 2020), https://www.washingtonpost.com/investigations/2020/04/27/covid-19-death-tollundercounted/?arc404=true. 43 Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 45, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-directorsenate-testimony-transcript-may-12.
29

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 30 of 95 PageID #: 30
contact.44 Americans of all ages and from all walks of life have contracted the
virus.45
94. Although COVID-19 has affected Americans of every age, public health
experts have warned that it can be particularly dangerous for certain demographics.
The CDC has observed that current data on the COVID-19 pandemic “suggest a
disproportionate burden of illness and death among racial and ethnic minority
groups,”46 and it has concluded that older persons and individuals with underlying
medical conditions are at risk for severe illness or death if they contract COVID-19.47
Importantly, however, the threat of COVID-19 is not limited to these most impacted
demographics—for example, studies have shown that a majority of coronavirus patients,
and 22% of those admitted to a hospital’s intensive care unit, did not have any of the
underlying health conditions that result in increased susceptibility to the virus.48
44 CDC, Coronavirus Disease 2019 (COVID-19): How It Spreads (last updated May 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 45 Robert Verity, PhD. et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis at 6, Lancet Infectious Diseases (Mar. 30, 2020), https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(20)302437/fulltext. 46 CDC, Coronavirus Disease 2019 (COVID-19): Racial and Ethnic Minority Groups (last updated Apr. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/racial-ethnic-minorities.html. 47 CDC, Coronavirus Disease 2019 (COVID-19): Clinical Care Guidance(last visited Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html; CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/groups-at-higher-risk.html. 48 CDC, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February
30

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 31 of 95 PageID #: 31
95. Crucial “social distancing” measures and guidance imposed by federal, state, and local governments have been key to preventing even wider infection and death. One early model from Imperial College in London suggested that without any preventative measures, the United States could have seen as many as 2.2 million deaths.49
96. Public health experts have cautioned against prematurely ending social distancing measures, warning that reopening too soon creates a “real risk that you will trigger an outbreak that you might not be able to control,” and that the absence of adequate precautions “will have the deleterious consequence of more infections and more deaths.”50
97. It is unknown if those who have already been infected will develop an immune response sufficient to prevent reinfection.51 Consequently, this unprecedented public health emergency continues to wreak havoc on all aspects of life in the United States and around the world, and the crisis has no clear end in sight.
12–March 28, 2020 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/ mm6913e2.htm. 49 Neil M. Ferguson et al., Report 9: Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand, Imperial College COVID-19 Response Team (Mar. 16, 2020), https://www.imperial.ac.uk/media/ imperial-college/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPImodelling-16-03-2020.pdf. 50 Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 57, 87, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdcdirector-senate-testimony-transcript-may-12. 51 Apoorva Mandavilli & Katie Thomas, Will an Antibody Test Allow Us to Go Back to School or Work?, N.Y. Times (Apr. 10, 2020), https://www.nytimes.com/2020/ 04/10/health/coronavirus-antibodytest.html.
31

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 32 of 95 PageID #: 32
98. Nor will the virus soon disappear. Implementing social distancing is
designed to extend the duration of the virus in order to flatten the curve of new cases
and relieve pressure on health care resources.52 Consequently, Dr. Fauci has described
the presence of COVID-19 in the fall as “inevitable” in recent briefings,53 stating: “We
will have coronavirus in the fall. . . . I am convinced of that because of the degree of
transmissibility that it has, the global nature. What happens with that will depend on
how we’re able to contain it when it occurs.”54
99. Many experts, including CDC Director Dr. Robert Redfield, have warned
that this second surge of COVID-19 may become even more difficult to manage in the
fall, resulting in longer lockdowns, more severe economic disruption, and increased
risks to vulnerable populations.55 Accordingly, Dr. Redfield testified before the Senate
52 See generally Neil M. Ferguson et al., Report 9: Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand, Imperial College COVID-19 Response Team (Mar. 16, 2020), https://www.imperial.ac.uk/ media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-CollegeCOVID19-NPI-modelling-16-03-2020.pdf. 53 Christina Maxouris, US Could Be in for ‘a Bad Fall and a Bad Winter’ If It’s Unprepared for a Second Wave of Coronavirus, Fauci Warns, CNN (Apr. 29, 2020), https://www.cnn.com/2020/04/29/health/us-coronavirus-wednesday/index.html. 54 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/. 55 Denise Grady, The Fear of Coronavirus and Flu Colliding in the Fall, N.Y. Times (Apr. 22, 2020), https://www.nytimes.com/2020/04/22/health/coronavirus-fluseason-deaths.html; Olga Khazan, The Scariest Pandemic Timeline, The Atlantic (Apr. 24, 2020), https://www.theatlantic.com/health/archive/2020/04/could-there-beanother-coronavirus-quarantine/610630/; Lena H. Sun, CDC Director Warns Second Wave of Coronavirus is Likely to be Even More Devastating, Wash. Post (Apr. 21,
32

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 33 of 95 PageID #: 33
that “[i]t’s important to emphasize that we’re not out of the woods yet” as states begin to reopen, explaining: “We need to stay vigilant with social distancing. It remains an imperative.”56
100. Dr. David Nabarro, a WHO Special Envoy on COVID-19, has warned that the virus will continue to pose a serious threat to public health and safety until a vaccine is developed, stating: “We think it’s going to be a virus that stalks the human race for quite a long time to come until we can all have a vaccine that will protect us and that there will be small outbreaks that will emerge sporadically and they will break through our defenses.”57
101. And it is highly unlikely that an effective and accessible vaccine will be available by the fall.58 As Dr. Fauci testified before the Senate, “the idea of having treatments available, or a vaccine” by this this fall “would be something that would be a
2020), https://www.washingtonpost.com/health/2020/04/21/coronavirussecondwave-cdcdirector/. 56 Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 23, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-directorsenate-testimony-transcript-may-12. 57 Devan Cole, Fauci Admits Earlier Covid-19 Mitigation Efforts Would Have Saved More American Lives, CNN (Apr. 12, 2020), https://www.cnn.com/2020/04/12/politics/anthony-fauci-pushback-coronavirusmeasures-cnntv/index.html. 58 WUSA 9, FDA Approves Coronavirus Vaccine Candidate to Begin Phase 2 Trial (May 7, 2020), https://www.wusa9.com/article/news/health/coronavirus/fda-approvescoronavirus-vaccine-candidate-to-begin-phase-2-trial/507-7119865c-3ffb-42b0-80666df24aae2c5d; Hailey Waller et al., Bill Gates’ Coronavirus Vaccine Could be Manufacturing at Scale in a Year, Fortune (Apr. 26, 2020), https://fortune.com/2020/04/26/bill-gates-coronavirus-vaccine-covid-19/.
33

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 34 of 95 PageID #: 34
bit of a bridge too far.”59 Even if a vaccine could be developed by the fall, Dr. Fauci has explained that “there’s no guarantee that the vaccine is actually going to be effective.”60
B. COVID-19 in Kentucky 102. Kentucky is no exception to the pandemic facing the rest of the world. As of the date of filing this complaint, the virus has already infected 8,951 Kentuckians and resulted in 394 deaths in the Commonwealth.61 103. On March 22, 2020, Governor Beshear issued a state-wide “healthy-athome” order in response to the crisis and urged residents to maintain social distancing in order to combat the virus’s spread.62 Governor Beshear also ordered that all non-lifesustaining businesses must cease in-person services by March 23, 2020, and he advised that Kentucky’s schools should remain closed for the rest of the 2019–2020 school year.63 The Governor also deployed the National Guard and additional law enforcement personnel to assist at hospitals and medical facilities.64
59 Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 32, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-directorsenate-testimony-transcript-may-12. 60 Id. at 19, 92. 61 Ky. Dep’t of Pub. Health, Kentucky Coronavirus Monitoring (last updated May 26, 2020 at 5:00 P.M. E.T.), https://govstatus.egov.com/kycovid19. 62 Ky. Office of the Governor, State of Emergency, Exec. Order No. 2020-257 (Mar. 25, 2020), https://governor.ky.gov/attachments/20200325_Executive-Order_2020257_Healthy-at-Home.pdf. 63 Ky. Office of the Governor, Kentucky’s Response to COVID-19 (May 17, 2020), https://governor.ky.gov/covid19; Commonwealth of Kentucky, Gov. Beshear Advises Schools to Remain Closed to In-Person Instruction (Apr. 20, 2020), https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=135. 64 Id.
34

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 35 of 95 PageID #: 35
104. At the same time, Kentucky’s legislature passed emergency legislation granting new powers to the Governor, the Secretary of State, and the Board of Elections to modify Kentucky’s existing voting procedures during a state of emergency.65 The Governor vetoed portions of the legislation but the legislature overrode that line-item veto.
105. On April 4, 2020, Governor Beshear and the Kentucky Department of Public Health adopted guidance from the CDC recommending that people wear cloth masks and observe social distancing practices in public to slow the spread of the virus.66 The mask guidance was followed by Executive Order 2020-275 on April 8, 2020, which limited the number of people inside essential businesses that remain open by restricting shopping trips to one adult per household at a time.67 In a move to prevent crowds from congregating, Governor Beshear also announced the closure of several state parks.68
106. On April 21, the Governor announced the “Healthy at Work” initiative, which hopes to help Kentucky businesses reopen safely. The Healthy at Work plan establishes that the economy will not reopen until the Governor determines that
65 H.B. 351 § 74(1)(l). 66 Id. 67 Ky. Office of the Governor, State of Emergency, Exec. Order No. 2020-275 (Apr. 8, 2020), https://governor.ky.gov/attachments/20200408_Executive-Order_2020275_State-of-Emergency.pdf; Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020). 68 Kala Kachmar, Coronavirus Closures: Beshear to close Cumberland Falls, Natural Bridge State Parks, Louisville Courier Journal (Apr. 9, 2020), https://www.courier-journal.com/story/news/2020/04/09/beshear-closescumberland-falls-natural-bridge-state-parks-due-coronavirus/5126564002/.
35

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 36 of 95 PageID #: 36
Kentucky has met the following benchmarks: 14 days of decreasing cases, increased testing capacity and contact tracing, PPE availability, ability to protect at-risk populations, ability to social distance and follow the CDC’s guidelines on large gatherings, preparedness for possible future spike, and status of vaccine and treatment.69
107. On April 23, the Secretary of State issued recommendations for how elections held in June should be conducted due to the pandemic.70 On April 24, the Governor issued an Executive Order, pursuant to the Kentucky Constitution and KRS Chapter 39A, directing the Kentucky Board of Elections to promulgate regulations to change the procedures for the June elections to minimize the spread of COVID-19.71 The Board of Elections subsequently issued emergency regulations which lifted each of the then-existing Challenged Requirements, but only for the June 23 election.72
108. Governor Beshear announced that, on April 27, 2020, the state would begin a “gradual restart and reopening of our Phase 1 health care services and facilities,
69 Ky. Cabinet for Econ. Development, Healthy at Work: Reopening Kentucky (last updated May 26, 2020), https://govstatus.egov.com/ky-healthy-at-work. 70 Letter from Sec’y of State Adams to Governor Beshear (Apr. 23, 2020), https://governor.ky.gov/attachments/20200423_Ltr-from-Sec-of-State-Adams.pdf. 71 Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order 2020-296 (Apr. 24, 2020), https://elect.ky.gov/SiteAssets/Pages/default/EO%202020-296.pdf. 72 Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020), https://elect.ky.gov/SiteAssets/Pages/default/SBE%20Covid19%20Emergency%20Reg ulation.pdf.
36

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 37 of 95 PageID #: 37
although even then they will operate vastly differently than they did before the outbreak of the novel coronavirus 2019 (COVID-19).”73 The Commonwealth is still taking intense precautions in long-term care facilities and nursing homes, including “encouraging all residents to wear masks, cancelling communal dining and social activities, minimizing entry into resident rooms, restricting non-essential personnel from entering the building, daily temperature checks and adopting a low threshold to transfer ill residents to a higher level of care.”74 Phase 2 of the health care reopening process began on May 6, 2020, at which point outpatient and ambulatory surgery and invasive procedures resumed. And Phase 3 began on May 13, 2020, when the Governor announced that hospitals and care facilities could begin performing non-emergency surgeries and procedures at 50% of their patient volume before the pandemic.75
109. On May 4, 2020, Governor Beshear announced that certain businesses could reopen on May 11, 2020, including manufacturing, distribution, and supply chain businesses; construction; vehicle or vessel dealerships; office-based businesses (at 50% pre-pandemic capacity); horse racing (without fans in attendance); pet care, grooming, and boarding; and photography. On May 7, 2020, Governor Beshear announced a tentative schedule for reopening other Kentucky businesses, under which restaurants could reopen on May 22 (with limited 33% capacity and outdoor seating), movie theaters and fitness centers could reopen on June 1, public and private campgrounds
73 Ky. Office of the Governor, Kentucky’s Response to COVID-19 (May 17, 2020), https://governor.ky.gov/covid19. 74 Id. 75 Id.
37

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 38 of 95 PageID #: 38
could reopen on June 11, and child care could reopen on June 15 (with reduced capacity; and potentially low-touch and outdoor youth sports).76 And on May 15, Governor Beshear announced that state parks will reopen on June 1.
110. Although the Governor provided guidance permitting Kentucky government offices to begin reopening on May 18,77 several government offices— including ones that are critical to Kentucky elections—have declined to reopen for safety reasons.78 As Fayette County Clerk Don Blevins, Jr. has explained, “Most County Clerk offices will need to remain closed to the public until after the Primary election in late June,” because they “simply cannot risk a member of staff contracting the virus and forcing a quarantine of all or part of an office,” which would “jeopardize [their] ability to support and conduct the election.” Additionally, the Kentucky Supreme Court’s orders on reopening Kentucky’s judicial branch does not yet permit circuit court clerk offices to begin issuing driver’s licenses.79
76 Id. 77 Phil Pendleton, Kentucky Government Offices Allowed to Reopen Monday, WKYT (May 18, 2020), https://www.wkyt.com/content/news/Kentucky-government-offices-allowed-toreopen-Monday-570560991.html. 78 Steve Rogers, Fayette Circuit Clerk, Others to Remain Closed, WTVQ (May 18, 2020), https://www.wtvq.com/2020/05/18/fayette-circuit-clerk-others-remain-closed/. 79 Supreme Court of Ky., Order No. 2020-39 (May 15, 2020), https://kycourts.gov/courts/supreme/Rules_Procedures/202039.pdf; Supreme Court of Ky., Order No. 2020-40 (May 19, 2020), https://kycourts.gov/courts/supreme/Rules_Procedures/202040.pdf; Supreme Court of Ky., Order No. 2020-41 (May 20, 2020), https://kycourts.gov/courts/supreme/Rules_Procedures/202041.pdf.
38

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 39 of 95 PageID #: 39
111. Although the Governor suggested that Kentucky’s number of new cases
per day may have plateaued as of April 21, 2020, the total number of cases in the
Commonwealth is still on the rise.80 And even if the current outbreak subsides over the
summer, substantial evidence continues to develop about the risk of continued
infections into the fall as well as the danger of a second wave of the virus.81
C. Health Risks of In-Person Voting During a Pandemic
112. As Defendants have already conceded, forcing individuals to vote in
person during the COVID-19 pandemic creates a myriad of health and safety risks. The
prolonged exposure to numerous people that takes place during in-person voting can
lead to transmission of the virus, putting poll workers and voters at increased risk of
exposure, illness, and death.82
80 Daniel Desrochers, COVID-19 Has ‘Likely Plateaued’ in Kentucky. 17 New Deaths and 177 New Cases Tuesday., Lexington Herald Leader (Apr. 21, 2020), https://www.kentucky.com/news/coronavirus/article242179936.html; N.Y. Times, Kentucky Coronavirus Map and Case Count (May 20, 2020), https://www.nytimes.com/interactive/2020/us/kentucky-coronavirus-cases.html. 81 See, e.g., Matthew Impelli, What Experts Have Said About a Second Wave of Coronavirus in the U.S., Newsweek (Apr. 22, 2020), https://www.newsweek.com/what-experts-have-said-about-second-wave-coronavirusus-1499501; Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 62, 85, Rev (May 12, 2020), https://www.rev.com/blog/transcripts/dr-anthony-fauci-cdc-director-senatetestimony-transcript-may-12. 82 CDC, Coronavirus Disease 2019 (COVID-19): Recommendations for Election Polling Locations (Mar. 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/election-pollinglocations.html; see also Doug Chapin & Lawrence Jacobs, Conducting a Safe National Election During a Pandemic Will be Difficult, Minneapolis Star Tribune (Apr. 3, 2020), https://www.startribune.com/conducting-a-safe-national-election-during-a-pandemicwill-be-difficult/569364552/.
39

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 40 of 95 PageID #: 40
113. Proof of the health risks associated with in-person voting is unfortunately accumulating during this primary season. Multiple Florida poll workers tested positive for COVID-19 in the aftermath of the in-person primary election.83 Chicago officials have also reported that a poll worker for the city’s March 17 election died of COVID-19, prompting officials to send letters notifying voters, poll workers, field investigators, and cartage companies who were present at the same polling site.84
114. The recent primary election in Wisconsin particularly highlights the risks of voting in person during the pandemic. In the days leading up to the election, Wisconsin election officials faced a huge backlog of requests for absentee ballots and questions about voting absentee, including how to satisfy the state’s registration requirements, how to properly request an absentee ballot, and how to return it in time to be considered. Election officials also dealt with a reduced number of poll workers due to age, fears of illness, or actual illness. Under these circumstances, “the extent of the risk of holding [the] election ha[d] become increasingly clear” well before the day of the
83 Kent Justice & Steve Patrick, Duval County Poll Worker Tests Positive for Coronavirus, News 4 Jax (Mar. 30, 2020), https://www.news4jax.com/news/local/2020/03/30/duval-county-poll-worker-testspositive-for-coronavirus/; David Smiley & Bianca Padró Ocasio, Florida Held Its Primary Despite Coronavirus. Two Broward Poll Workers Tested Positive, Miami Herald (Mar. 27, 2020), https://www.miamiherald.com/news/politicsgovernment/article241539451.html. 84 Mary Ann Ahern, Poll Worker at Chicago Voting Site Dies of Coronavirus, Election Officials Say, 5 Chicago (Apr. 13, 2020), https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicagovoting-site-dies-of-coronavirus-election-officials-say/2255072/.
40

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 41 of 95 PageID #: 41
primary.85 Indeed, the likely consequences were readily apparent, including “a dramatic shortfall in the number of voters on election day as compared to recent primaries” and “a dramatic increase in the risk of cross-contamination of the coronavirus among inperson voters, poll workers and, ultimately, the general population in the State.”86
115. When Wisconsin proceeded to hold its election without sufficiently addressing these apparent issues, widespread disenfranchisement and electoral chaos predictably ensued.87 Cities in Wisconsin were forced to close polling locations, and these closures impacted voters unequally. The city of Madison had over 60 open polling sites, while in Milwaukee—a city more than twice Madison’s size, with a population of roughly 600,000—only 18,803 voters cast their ballots in person, because all but five of the city’s 180 polling locations had closed.88
116. The result in Milwaukee was large crowds, long lines, and excessive wait times—all in the middle of a global pandemic. As shown in the image below, these conditions made social distancing almost impossible:
85 Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374, at *1 (W.D. Wis. Apr. 2, 2020). 86 Id. 87 Astead W. Herndon and Jim Rutenberg, Wisconsin Election Fight Heralds a National Battle Over Virus-Era Voting, N.Y. Times (Apr. 6, 2020), https://www.nytimes.com/2020/04/06/us/politics/wisconsin-primary-votingcoronavirus.html. 88 Jason Calvi, ‘2Different Cities:’ Milwaukee Had 5 Polling Sites During COVID-19 Election; Madison Had 60+, Fox 6 Now (Apr. 8, 2020), https://fox6now.com/2020/04/08/2-different-cities-milwaukee-had-5-polling-sitesduring-covid-19-election-madison-had-60/.
41

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 42 of 95 PageID #: 42
89
117. Milwaukee was far from alone. For example, “[t]here were also long lines in Green Bay, where the usual 31 polling sites were consolidated to just two.”90 Some Green Bay voters waited in line for four hours, and some were unable to cast a vote until after midnight.91
118. A contact-tracing analysis conducted by the Wisconsin Department of Health found that 52 persons who voted under these conditions tested positive for COVID-19, and economists have found a “statistically and economically significant
89 David Bowen, Wisconsin’s Primary Subjected People of Color to Yet Another Covid19 Disadvantage, The Guardian (Apr. 8, 2020), https://www.theguardian.com/usnews/2020/apr/08/wisconsin-coronavirus-black-communities-inequality. 90 Jason Calvi, ‘2 Different Cities:’ Milwaukee Had 5 Polling Sites During COVID-19 Election; Madison Had 60+, Fox 6 Now (Apr. 8, 2020), https://fox6now.com/2020/04/08/2-different-cities-milwaukee-had-5-polling-sitesduring-covid-19-election-madison-had-60/. 91 Id.
42

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 43 of 95 PageID #: 43
association between in-person voting and the spread of COVID-19 two to three weeks after the election.”92 Importantly, these statistics and images may represent a mild version of the outcome for Kentucky voters, because the risks of COVID-19 in Wisconsin’s in-person primary were muted by Wisconsin’s no-excuse absentee ballot laws, which enabled more than one million Wisconsin residents to vote safely from home.93
119. By contrast, the risks of voting by mail are minimal. There is no evidence that COVID-19 can be spread through voting by mail, and the U.S. Postal Service has implemented safeguards to protect against the pandemic by “eliminat[ing] the requirement that customers sign [its] Mobile Delivery Devices for delivery” and requiring the customer “to step back a safe distance or close the screen door” when accepting delivery.94 Both Republican and Democratic governors have moved to expand
92 Chad D. Cotti et al., The Relationship Between In-Person Voting, Consolidated Polling Locations, and Absentee Voting on COVID-19: Evidence from the Wisconsin Primary at 1–2, National Bureau of Econ. Research (May 2020), https://www.nber.org/papers/w27187.pdf. 93 Wisconsin Elections Comm’n, I Want to Vote Absentee (last visited May 4, 2020), https://www.elections.wi.gov/voters/absentee; Laurel White, More Than 1M in Wisconsin Vote By Mail, But Full Election Turnout Still Unclear, Wisconsin Pub. Radio (Apr. 8, 2020), https://www.wpr.org/more-1m-wisconsin-vote-mail-full-electionturnout-still-unclear. 94 U.S. Postal Service, Media Statement - COVID-19 (Apr. 30, 2020), https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from World Health Organization, CDC, and Surgeon General).
43

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 44 of 95 PageID #: 44
their states’ vote-by-mail schemes to encourage social distancing and avoid dangers to public health.95
120. The risks posed by in-person voting will not subside by the time Kentucky holds its general election: because of the likely resurgence of COVID-19 in the fall, Dr. Fauci recently stated that he “can’t guarantee” that in-person voting will be safe in November 2020.96 Accordingly, more than 800 public health experts have called “on our leaders to prepare for a Presidential election by mail, in which ballots are sent to all registered voters, to allow them to vote from home and ensure their health and safety” in November 2020, because “Americans should never again be asked to choose between performing one of the most hallowed obligations and privileges of citizenship—voting for our representatives at the local, state and federal levels—and our health.”97
121. The health risks of in-person voting are especially severe for certain categories of voters: voters with underlying medical conditions, Black voters, older voters, and voters with disabilities.
95 Grace Segers, Calls for Increased Access to Vote-by-Mail Gain Traction Amid Coronavirus Pandemic, CBS News (Apr. 22, 2020), https://www.cbsnews.com/news/vote-by-mail-gains-traction-coronavirus-pandemic/. 96 Jason Silverstein, Fauci Says He “Can’t Guarantee” In-Person Voting in November Will Be Safe, CBS NEWS (Apr. 13, 2020), https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-in-personvoting-in-november-will-be-safe/. 97 Sam Hananel, RELEASE: More Than 800 Public Health Experts Urge Congress To Fund Vote by Mail in November, Center for American Progress (May 5, 2020), https://www.americanprogress.org/press/release/2020/05/05/484590/release-800public-health-experts-urge-congress-fund-vote-mail-november/.
44

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 45 of 95 PageID #: 45
i. Voters with Underlying Medical Conditions 122. Kentucky’s current Excuse Requirement will disproportionately burden voters with certain underlying medical conditions, who face heightened risks from contracting COVID-19. 123. “Based on currently available information and clinical expertise,” the CDC has warned that “people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.” The CDC has identified certain conditions that are likely to exacerbate the impact of COVID-19, including asthma, chronic lung disease, diabetes, serious heart conditions, chronic kidney disease being treated with dialysis, severe obesity, liver disease, immune deficiencies, and a myriad of other conditions that compromise an individual’s immune system.98 Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Gracie Lewis, DeJuan Nash, Tiffany Price, and members of the plaintiff organizations suffer from one or more of these underlying medical conditions that increase their risk of serious illness from COVID-19. 124. A study of COVID-19 patients in China discovered that “people infected with the coronavirus who were already coping with a chronic condition were 1.8 times more likely to have a ‘poor outcome,’ such as being put on a ventilator or dying, than
98 CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groupsat-higher-risk.html.
45

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 46 of 95 PageID #: 46
those with no underlying conditions,” and that “those with two chronic conditions were at 2.6 greater risk.”99
125. This data shows that COVID-19 poses a special threat to people with asthma, diabetes, or other common and treatable conditions who would not be normally considered homebound because of illness, many of whom would not qualify to vote by mail-in absentee ballot under the Excuse Requirement. As the President has stated, “This is a very advanced — this is a very horrible thing we’re fighting. . . . [I]f you have any problem — heart, diabetes, even a little weak heart, a little diabetes, a little — this thing is vicious, and it can take you out, and it can take you out very strongly.”100
126. “An estimated 60 percent of all Americans have at least one chronic health condition, and 40 percent have more than one.”101 And “Kentucky leads the nation in several indicators of the burden of chronic disease. Kentucky has the highest rate of new cases and deaths from lung cancer in the nation[,] the 3rd highest adult obesity rate, and Kentucky ranks 4th highest in current adult asthma prevalence.”102
99 Roni Caryn Rabin, Coronavirus Threatens Americans With Underlying Conditions, N.Y. Times (Mar. 14, 2020), https://www.nytimes.com/2020/03/12/health/coronavirus-midlife-conditions.html. 100 White House, Remarks by President Trump in a Fox News Virtual Town Hall (May 4, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trumpfox-news-virtual-town-hall/. 101 Roni Caryn Rabin, Coronavirus Threatens Americans With Underlying Conditions, N.Y. Times (Mar. 14, 2020), https://www.nytimes.com/2020/03/12/health/coronavirus-midlife-conditions.html. 102 Ky. Cabinet for Health & Family Services, Chronic Disease Prevention Branch, Unbridled Health: A Plan for Coordinated Chronic Disease Prevention and Health Promotion (Nov. 2013), https://chfs.ky.gov/agencies/dph/dpqi/cdpb/Documents/ UnbridledHealthPlanNovember2013.pdf (“With statistics such as these, it is likely that
46

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 47 of 95 PageID #: 47
127. Because of these increased risks to their health and safety, Kentucky voters with any of these conditions would face especially severe burdens if forced to choose between potential exposure to the virus and their constitutional right to vote.
ii. Black Voters 128. Kentucky’s current Excuse Requirement will disproportionately burden Black voters, who face heightened risks from contracting COVID-19 because of disparities in health and health care that raise the stakes for them at every step of the process. 129. First, Black voters face a greater risk of contracting the virus on their way to the polls. Black Americans are less likely to own cars than any other demographic of Americans,103 and they “represent about one-quarter of all public transit users.”104 Additionally, Black people with low income more often face “driver’s license suspensions because they cannot pay fines and fees charged for minor violations such as traffic and parking tickets,” which similarly leaves them “dependent on friends or public transportation, unable to practice the social distancing recommended by the CDC and
every Kentuckian has a family member, friend or coworker that has been affected by chronic disease.”). 103 Jamelle Bouie, Why Coronavirus Is Killing African-Americans More Than Others, N.Y. Times (Apr. 14, 2020), https://www.nytimes.com/2020/04/14/opinion/sunday/coronavirus-racism-africanamericans.html; National Equity Atlas, Car Equity (2015), https://nationalequityatlas.org/indicators/Car_access. 104 Rashawn Ray, Why Are Blacks Dying at Higher Rates from COVID-19?, Brookings (Apr. 9, 2020), https://www.brookings.edu/blog/fixgov/2020/04/09/why-are-blacksdying-at-higher-rates-from-covid-19/.
47

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 48 of 95 PageID #: 48
the World Health Organization.”105 Often, without access to private transportation, Black voters face additional risks of contact with exposed individuals in close quarters on public transportation when en route to their polling places. Plaintiffs Michael Collins, Thela Elliott, Gracie Lewis, Tiffany Price, and members and/or clients of the plaintiff organizations do not own cars, and they are therefore exposed to these additional risks of contracting COVID-19 on their way to the polls.
130. Second, Black voters are disproportionately burdened by long lines at the polls. Maintaining the Excuse Requirement will result in long lines, an inability to practice adequate social distancing, and decreases in polling places and poll workers.106 For Black voters, these problems are exacerbated by existing racial disparities in wait times: a recent study based on data from millions of smartphone users during the 2016 presidential election found that residents of entirely-Black neighborhoods waited 29% longer to vote and were 74% more likely to spend more than 30 minutes at their polling place than residents of all-white neighborhoods.107 And Black voters can least afford unnecessarily long wait times as the price to pay for voting, because Black people are
105 ReNika Moore, If COVID-19 Doesn’t Discriminate, Then Why Are Black People Dying at Higher Rates?, ACLU (Apr 8, 2020), https://www.aclu.org/news/racialjustice/if-covid-19-doesnt-discriminate-then-why-are-black-people-dying-at-higherrates/. 106 See supra ¶¶ 112–18. 107 M. Keith Chen et al., Racial Disparities in Voting Wait Times: Evidence from Smartphone Data (Nov. 14, 2019), https://www.kareemhaggag.com/f/Racial_Disparities_in_Voting_Wait_Times.pdf.
48

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 49 of 95 PageID #: 49
“more likely to be working in jobs without flexibility or paid sick leave,” which means
any delays at the polls disproportionately threaten their job security.108
131. Third, if Black voters contract the virus while voting in person, they are
more likely to suffer serious and even deadly consequences, because they
disproportionately suffer from the underlying medical conditions that exacerbate the
virus.109 Decades of research, statements from public health experts, and data from the
U.S. Department of Health and Human Services all reflect that Black Americans have
disproportionately high rates of asthma, diabetes, high blood pressure, and obesity.110
108 Laura Williamson, How to Build a Racially Inclusive Democracy During COVID-19 and Beyond, Demos (Apr. 28, 2020), https://www.demos.org/policy-briefs/how-buildracially-inclusive-democracy-during-covid-19-and-beyond; Lonnie Golden, Limited Access: Disparities in Flexible Work Schedules and Work-at-Home, 29 J. Family & Econ. Issues 86–109 (2008). 109 Linda Villarosa, ‘A Terrible Price’: The Deadly Racial Disparities of COVID-19 in America, N.Y. Times (Apr. 29, 2020), https://www.nytimes.com/2020/04/29/magazine/racial-disparities-covid-19.html (describing studies explaining how historic and present-day factors—such as “environmental inequality” and “the physiological ramifications of an atmosphere of bias and discrimination”—have led to higher rates of poor health outcomes for Black Americans). 110 Office of Minority Health, Profile: Black/African Americans, U.S. Dep’t of Health & Hum. Servs. (Aug. 22, 2019), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=3&lvlID=61; see also Joseph P. Williams, Rumor, Disparity and Distrust: Why Black Americans Face an Uphill Battle Against COVID-19, U.S. News & World Report (Mar. 25, 2020), https://www.usnews.com/news/healthiest-communities/articles/2020-03-25/whyblack-americans-face-an-uphill-battle-against-the-coronavirus; Lisa B. Signorello et al., Comparing Diabetes Prevalence Between African Americans and Whites of Similar Socioeconomic Status, 97(12) Am. J. Pub Health 2260–2267 (Dec. 2007) (“Prevailing statistics suggest that African American adults are 50% to 100% more likely to have diabetes than are Whites.”).
49

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 50 of 95 PageID #: 50
The CDC has cited racial disparities in these underlying medical conditions as a factor
that influences the disproportionate impact of COVID-19 on the Black community.111
132. Dr. Georges E. Benjamin, executive director of the American Public Health
Association and emergency medicine physician, has explained that these disparities
gave public health leaders concern about the impact on Black communities from the
time of the earliest reports of the virus: “You had early evidence from Asia that showed
that older folks, older than 60 or 65, with chronic disease would do worse when they got
the infection. So when you put that together with the understanding that in this country
you already have a [Black] population disproportionately affected by disparities in
things like diabetes, heart disease and asthma, we understood that if those populations
got infected they would be more at risk.”112
111 CDC, Coronavirus Disease 2019 (COVID-19): Racial and Ethnic Minority Groups (last updated Apr. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/racial-ethnic-minorities.html (citing A.P. Bartel et al., Racial and Ethnic Disparities in Access to and Use of Paid Family and Medical Leave: Evidence from Four Nationally Representative Datasets, U.S. Bureau of Labor Statistics (Jan. 2019); T.J. Cunningham et al., Vital Signs: Racial Disparities in Age-Specific Mortality Among Blacks or African Americans—United States, 1999–2015, 66(17) Morbidity and Mortality Weekly Report 444 (2017)); see also Ibram X. Kendi, Stop Blaming Black People for Dying of the Coronavirus, The Atlantic (Apr. 14, 2020), https://www.theatlantic.com/ideas/archive/2020/04/race-and-blame/609946/ (“Without question, African Americans suffer disproportionately from chronic diseases such as hypertension, cardiovascular disease, diabetes, lung disease, obesity, and asthma, which make it harder for them to survive COVID-19.”). 112 Elizabeth Thomas & Dr. Nancy A. Anoruo, Coronavirus is Disproportionately Killing the Black Community. Here’s What Experts Say Can Be Done About It, ABC News (Apr. 9, 2020), https://abcnews.go.com/Politics/coronavirus-disproportionately-killingblack-community-experts/story?id=70011986.
50

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 51 of 95 PageID #: 51
133. Dr. Fauci spoke about these health disparities during a White House
Coronavirus Task Force briefing,113 explaining that Black Americans’ increased
likelihood of underlying medical conditions “wind them up in the ICU and ultimately
give them a higher death rate.”114 This risk has already manifested in Kentucky, where
“Black patients in Fayette County have a higher rate of hospitalization than white
patients.”115
134. Fourth, if Black voters contract the virus while voting in person, they are
also more likely to suffer serious consequences because of inequalities in our health care
system. Numerous studies conducted by the American Journal of Public Health, the
Agency for Healthcare Research and Quality, and other organizations over the past few
decades indicate that Black people are less likely to have insurance and access to
affordable medical testing.116 The CDC has cited “barriers to getting health care,”
113 Rashawn Ray, Why Are Blacks Dying at Higher Rates from COVID-19?, Brookings (Apr. 9, 2020), https://www.brookings.edu/blog/fixgov/2020/04/09/why-are-blacksdying-at-higher-rates-from-covid-19/ (“Health disparities have always existed for the African American community,” Fauci stated, and COVID-19 is “shining a bright light on how unacceptable that is because, yet again, when you have a situation like the coronavirus, they are suffering disproportionately.”). 114 Elizabeth Thomas & Dr. Nancy A. Anoruo, Coronavirus is Disproportionately Killing the Black Community. Here’s What Experts Say Can Be Done About It, ABC News (Apr. 9, 2020), https://abcnews.go.com/Politics/coronavirus-disproportionately-killingblack-community-experts/story?id=70011986. 115 Beth Musgrave, Black Fayette County Patients More Likely to Be Hospitalized from Coronavirus, Lexington Herald Leader (Apr. 7, 2020), https://www.kentucky.com/news/coronavirus/article241833116.html (“Approximately 30 percent of all blacks testing positive have had to be hospitalized with only 12 percent of whites who have tested positive have needed inpatient treatment, the data shows. Of the 31 patients hospitalized, more than half are black.”). 116 Elizabeth Thomas & Dr. Nancy A. Anoruo, Coronavirus is Disproportionately Killing the Black Community. Here’s What Experts Say Can Be Done About It, ABC News (Apr.
51

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 52 of 95 PageID #: 52
including lack of health insurance coverage, as one factor that “might make members of
many racial and ethnic minority groups especially vulnerable in public health
emergencies like outbreaks of COVID-19.”117 Additionally, “[r]esearch indicates African
Americans are more likely than whites to rely on hospital emergency rooms for primary
care – departments that soon may be overwhelmed with anticipated surges of COVID-19
patients.”118 And some studies have shown that, even when Black people can obtain
health care, they receive unequal quality of care.119
9, 2020), https://abcnews.go.com/Politics/coronavirus-disproportionately-killingblack-community-experts/story?id=70011986; Kenya Evelyn, ‘It’s a Racial Justice Issue’: Black Americans Are Dying in Greater Numbers from Covid-19, The Guardian (Apr 8, 2020) https://www.theguardian.com/world/2020/apr/08/its-a-racial-justiceissue-black-americans-are-dying-in-greater-numbers-from-covid-19 (“African Americans are twice as likely to lack health insurance compared with their white counterparts, and more likely to live in medically underserved areas, where primary care is sparse or expensive.”). 117 CDC, Coronavirus Disease 2019 (COVID-19): Racial and Ethnic Minority Groups (last updated Apr. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/racial-ethnic-minorities.html. 118 Joseph P. Williams, Rumor, Disparity and Distrust: Why Black Americans Face an Uphill Battle Against COVID-19, U.S. News & World Report (Mar. 25, 2020), https://www.usnews.com/news/healthiest-communities/articles/2020-03-25/whyblack-americans-face-an-uphill-battle-against-the-coronavirus (citing Dr. Lisa Cooper, internist and social epidemiologist with Johns Hopkins Bloomberg School of Public Health). 119 Linda Villarosa, ‘A Terrible Price’: The Deadly Racial Disparities of COVID-19 in America, N.Y. Times (Apr. 29, 2020), https://www.nytimes.com/2020/04/29/ magazine/racial-disparities-covid-19.html (“In 2003, the National Academy of Sciences documented the effects of bias in the medical system in a report that laid out the facts in damning detail. “Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care” examined 480 previous studies and found that in every medical intervention, black people and other people of color received poorer-quality care than white people, even when income and insurance were equal. This unequal treatment in the health care system persists today in numerous studies . . .”); Elizabeth Thomas & Dr. Nancy A. Anoruo, Coronavirus is Disproportionately Killing the Black Community. Here’s What Experts Say Can Be Done About It, ABC News (Apr. 9, 2020),
52

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 53 of 95 PageID #: 53
135. Fifth, if Black voters contract the virus while voting in person, they also
face increased risks of spreading the virus to their loved ones and community. As
discussed above, Black voters are more likely to rely on public transportation,120 and
Black voters are more likely to live in “subpar neighborhoods [that] are rooted in the
historical legacy of redlining” and in “densely populated areas, further heightening their
potential contact with other people.”121 Dr. Sarah Moyer, Louisville’s public health
strategist, has echoed these concerns for Black Kentuckians, explaining that “[p]eople of
color are more likely than white counterparts to live in densely populated settings” and
“rely on public transportation,” which “makes it easier for COVID to spread.”122
https://abcnews.go.com/Politics/coronavirus-disproportionately-killing-blackcommunity-experts/story?id=70011986 (“Studies looking at manifestations of racial bias within the health care system have found black patients are sometimes treated differently than whites, leading to things such as undertreatment of pain and racial differences in what treatment is offered for a heart attack.”); Kenya Evelyn, ‘It’s a Racial Justice Issue’: Black Americans Are Dying in Greater Numbers from Covid-19, The Guardian (Apr 8, 2020) https://www.theguardian.com/world/2020/apr/08/its-aracial-justice-issue-black-americans-are-dying-in-greater-numbers-from-covid-19 (“Unconscious racial bias can also contribute to unequal health outcomes, especially when health professionals are inexperienced with the culture of the community they serve, according to the Journal of General Internal Medicine. The Century Foundation found that healthcare providers located within majority African American or Latinx neighborhoods tend to provide lower-quality care.”); Michael O. Schroeder, Racial Bias in Medicine Leads to Worse Care for Minorities, U.S. News & World Report (Feb. 11, 2016), https://health.usnews.com/health-news/patient-advice/articles/2016-0211/racial-bias-in-medicine-leads-to-worse-care-for-minorities. 120 See supra ¶ 129. 121 Rashawn Ray, Why Are Blacks Dying at Higher Rates from COVID-19?, Brookings (Apr. 9, 2020), https://www.brookings.edu/blog/fixgov/2020/04/09/why-are-blacksdying-at-higher-rates-from-covid-19/. 122 Jon Hale, Kentucky Forms Regional Partnership, African American COVID-19 Deaths Rise in Louisville, Louisville Courier Journal (Apr. 15, 2020),
53

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 54 of 95 PageID #: 54
136. These risks, both individually and collectively, demonstrate that in-person
voting imposes an especially severe burden on Black voters. As highlighted by the
preceding paragraphs, racial disparities in serious illness and death due to COVID-19
are inextricably linked to a long history and ongoing patterns of racial discrimination
against African Americans.123 “Essentially, inequality in all facets of American society
appears to have set up black Americans to bear the brunt of this crisis.”124
137. These systemic failures help to explain why COVID-19 is currently
ravaging Black communities in Kentucky and nationwide. As the CDC has noted,
“[h]istory shows that severe illness and death rates tend to be higher for racial and
ethnic minority groups during public health emergencies,” and COVID-19 data
demonstrates that the same is true of the current pandemic.125 Demographic data
https://www.courier-journal.com/story/news/2020/04/15/coronavirus-kentuckypolitics-heats-up-despite-beshears-stance/5136206002/. 123 Associated Press, Outcry Over Racial Data Grows as Virus Slams Black Americans, PBS (Apr. 8, 2020), https://www.pbs.org/newshour/health/outcry-over-racial-datagrows-as-virus-slams-black-americans. 124 Anna North, Every Aspect of the Coronavirus Pandemic Exposes America’s Devastating Inequalities, Vox (Apr. 10, 2020), https://www.vox.com/2020/4/10/21207520/coronavirus-deaths-economy-layoffsinequality-covid-pandemic. 125 CDC, Coronavirus Disease 2019 (COVID-19): Racial and Ethnic Minority Groups (last updated Apr. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/racial-ethnic-minorities.html (citing N. Dash, “Race and Ethnicity” in Social Vulnerability to Disasters at 113–28 (2d ed. 2013)); see also Ibram X. Kendi, Stop Blaming Black People for Dying of the Coronavirus, The Atlantic (Apr. 14, 2020), https://www.theatlantic.com/ideas/archive/2020/04/race-and-blame/609946/ (“A Washington Post analysis found that majority-black counties had infection rates three times the rate of majority-white counties. A Centers for Disease Control and Prevention analysis of nearly 1,500 hospitalizations across 14 states found that black people made up a third of the hospitalizations, despite accounting for 18 percent of the population in the areas studied. An Associated Press analysis of available death data found that black
54

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 55 of 95 PageID #: 55
reported by the CDC on the number of COVID-19 cases for which race was available
nationwide (49.2% of the 1,327,267 cases analyzed) shows that Black people make up
26.3% of the reported COVID-19 cases, although they only make up 13.4% of the total
U.S. population.126 And although only 8.3% of the Kentucky population is Black, 14.61%
of Kentuckians who have died from COVID-19 have been Black.127
138. These statistics are even more outsized in some counties—data from the
Lexington-Fayette County Health Department demonstrates that, as of early April,
Black people comprised roughly 30% of the county’s more than 188 coronavirus
patients, though only 15% of the county’s population is Black.128 Lexington and Fayette
County do not stand alone—data from cities within this District, including Louisville,
demonstrate a disproportionate impact on Black residents as well. “Black people made
up 23.5% of [Louisville]’s population in 2019, according to U.S. Census data,” but in
people constituted 42 percent of the victims, doubling their share of the populations of the states the analysis included.”). 126 CDC, Coronavirus Disease 2019 (COVID-19): Cases in the US (last updated May 26, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html; U.S. Census Bureau, Quick Facts, https://www.census.gov/quickfacts/fact/table/US/PST045218 (last visited May 20, 2020). 127 Beth Musgrave, COVID-19 Has Hit Kentucky, Lexington’s Black Population Especially Hard. Why?, Lexington Herald Leader (Apr 9, 2020), https://www.kentucky.com/news/local/counties/fayettecounty/article241884161.html; Ky. Dep’t of Pub. Health, Kentucky Coronavirus Monitoring (last updated May 26, 2020 at 5:00 P.M. E.T.), https://govstatus.egov.com/kycovid19. 128 Beth Musgrave, COVID-19 Has Hit Kentucky, Lexington’s Black Population Especially Hard. Why?, Lexington Herald Leader (Apr 9, 2020), https://www.kentucky.com/news/local/counties/fayettecounty/article241884161.html.
55

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 56 of 95 PageID #: 56
April, Black Louisville residents “ma[d]e up 31% of the city’s coronavirus patients and 34% of the deaths.”129
iii. Older Voters 139. Kentucky’s current Excuse Requirement will disproportionately burden older voters and poll workers, who face heightened risks from contracting COVID-19. 140. Kentucky does not provide a blanket excuse for residents to vote by mailin absentee ballot if they have reached a certain age. Rather, Kentucky’s current Excuse Requirement only permits older voters to vote by mail-in absentee ballot if they are “[n]ot able to appear at the polls on election day on the account of age.”130 Many older voters who want to stay home because they face health risks associated with COVID-19 would otherwise be able to appear at the polls on Election Day, so they are currently forbidden from voting safely from home. 141. If older voters contract the virus while voting in person, they are more likely to suffer serious and even deadly consequences. The CDC has warned that “[p]eople aged 65 years and older” are at higher risk for severe illness and death from COVID-19, because “[t]he immune systems of older adults weaken with age, making it harder to fight off infections,” and “older adults commonly have chronic diseases that
129 Jon Hale, Kentucky Forms Regional Partnership, African American COVID-19 Deaths Rise in Louisville, Louisville Courier Journal (Apr. 15, 2020), https://www.courier-journal.com/story/news/2020/04/15/coronavirus-kentuckypolitics-heats-up-despite-beshears-stance/5136206002/. 130 Ky. Rev. Stat. § 117.085(1)(a)(8).
56

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 57 of 95 PageID #: 57
can increase the risk of severe illness from COVID-19.” Thus, “the older you are, the higher your risk of serious disease.”131
142. Plaintiff Gracie Lewis and members and/or clients of the plaintiff organizations are over the age of 65 and therefore have an increased risk of serious illness from COVID-19.
143. Studies reveal that the death rate associated with the virus increases significantly with age: a large study of COVID-19 patients in China showed that the virus killed 1.3% of patients between the ages of 50 and 59, 3.6% of patients between the ages of 60 and 69, 8% of patients between the ages of 70 and 79, and 15% of patients ages 80 and older.132
144. The virus is already having a devastating impact on elderly individuals in Kentucky. More than 42% of Kentuckians who have contracted COVID-19 are ages 50 and older, and that same age group represents over 97% of Kentucky’s confirmed deaths.133
145. If older voters contract the virus while voting in person, they also face increased risks of spreading the virus to their loved ones and community, because they are more likely to require in-person care or assistance. The CDC has warned that the
131 CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groupsat-higher-risk.html. 132 Roni Caryn Rabin, Coronavirus Threatens Americans With Underlying Conditions, N.Y. Times (Mar. 14, 2020), https://www.nytimes.com/2020/03/12/health/coronavirus-midlife-conditions.html. 133 Ky. Dep’t of Pub. Health, Kentucky Coronavirus Monitoring (last updated May 26, 2020 at 5:00 P.M. E.T.), https://govstatus.egov.com/kycovid19.
57

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 58 of 95 PageID #: 58
“communal nature of nursing homes and long-term care facilities, and the population
served (generally older adults often with underlying medical conditions), put those
living in nursing homes at higher risk of infection and severe illness from COVID-19.”134
The impact of COVID-19 in Kentucky nursing homes serves as a stark example: to date,
more than 54% of the total confirmed COVID-19 deaths in Kentucky have been residents
of nursing homes.135
146. These same risks will also impact many older poll workers, who make up a
large proportion of election officials. “In the 2018 general election, around six-in-ten
U.S. poll workers (58%) were ages 61 and older, including roughly a quarter (27%) who
were over 70.”136
147. Maintaining the Excuse Requirement will also result in long lines, an
inability to practice adequate social distancing, and decreases in polling places and poll
workers.137 These conditions, taken together, will subject older voters and poll workers
to a serious risk of infection at their polling places—and, with it, a greater risk of illness.
Consequently, upholding the Excuse Requirement necessitates that older voters and poll
134 CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groupsat-higher-risk.html. 135 Ky. Cabinet for Health & Family Servs., Long-Term Care and Other Congregate Facilities Update (last updated May 23, 2020), https://chfs.ky.gov/agencies/dph/covid19/ LTCupdate.pdf; Ky. Dep’t of Pub. Health, Kentucky Coronavirus Monitoring (May 23, 2020), https://govstatus.egov.com/kycovid19. 136 Michael Barthel & Galen Stocking, Older People Account for Large Shares of Poll Workers and Voters in U.S. General Elections, Pew Research Center (Apr. 6, 2020), https://www.pewresearch.org/fact-tank/2020/04/06/older-people-account-for-largeshares-of-poll-workers-and-voters-in-u-s-general-elections/. 137 See supra ¶¶ 112–18.
58

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 59 of 95 PageID #: 59
workers either place themselves in harm’s way, or stay home and forego their right to vote.
iv. Voters with Disabilities 148. Kentucky’s current Excuse Requirement will disproportionately burden voters with certain disabilities, especially those who need to vote in person during the pandemic. 149. Voters with certain disabilities face an unreasonable risk of contracting COVID-19 at the polls or on their way to polling locations. Many voters with disabilities are unable to drive to the polls and will therefore need to share transportation to the polls with other drivers or passengers, which increases their risk of exposure to COVID19. “Many people with disabilities cannot mark paper ballots without assistance, so they rely on special voting machines” with features like touch screens, other manual input devices, and earphones to vote,138 any of which could carry the COVID-19 virus from previous users and poll workers.139 Additionally, social distancing practices are more difficult for voters with certain disabilities—for example, voters who are blind or have
138 Matt Vasilogambros, How Voters With Disabilities Are Blocked From the Ballot Box, Pew Research Center(Feb. 21, 2018), https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2018/02/01/how-voters-with-disabilities-are-blocked-fromthe-ballot-box. 139 CDC, Coronavirus Disease 2019 (COVID-19): How It Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html (noting that while the virus spreads most easily from person-to-person, it “may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes”) (last visited May 21, 2020).
59

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 60 of 95 PageID #: 60
limited vision cannot see visual markers on the ground instructing voters to line up six feet apart from each other.
150. These difficulties are compounded by the fact that an inability to use paper ballots without assistance forecloses many voters with disabilities from voting by mail.140 Because many voters with disabilities are unable to submit mail-in absentee ballots without assistance or accommodations, they will continue to need to vote in person during the pandemic, despite the risks posed by in-person voting.
151. Making polling places as safe as possible for voters who need to vote in person is vitally important. Eliminating the Excuse Requirement would make voting significantly less risky for people with certain disabilities who need to vote in person by reducing the total number of people at the polls—which, in turn, reduces the number of interactions with other voters, the number of people touching the voting equipment, and the overall chance of transmission.
152. Instead, Kentucky’s maintenance of the Excuse Requirement will unnecessarily bring thousands of people out to the polls, needlessly increasing the risk of transmission: larger crowds will result in exposure to more people, and longer lines will result in prolonged exposure, both of which place voters with certain disabilities at increased risk of contracting the virus.
153. In addition to unreasonably burdening voters with disabilities who need to vote in person in the general election in November 2020, Kentucky’s maintenance of the
140 Matt Vasilogambros, How Voters With Disabilities Are Blocked From the Ballot Box, Pew Research Center (Feb. 21, 2018), https://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2018/02/01/how-voters-with-disabilities-are-blocked-fromthe-ballot-box.
60

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 61 of 95 PageID #: 61
Excuse Requirement will likely dissuade some voters with disabilities from voting altogether, such as people whose disabilities serve as comorbidities for COVID-19, people whose disabilities make social distancing more difficult, and people whose physical disabilities make them unable to stand in long lines at the polls. II. Kentucky’s Current Election Laws Unduly and Unreasonably Burden
the Voting Rights of Kentuckians. A. Kentucky Election Law
i. Excuse Requirement to Vote by Mail-In Absentee Ballot 154. Kentucky is an excuse-required absentee voting state, which means that Kentucky law limits the availability of voting by mail to eight specific categories of voters with qualifying excuses. Those eight categories of voters with qualifying excuses are: • eligible uniformed-service voters or overseas voters registered to vote in
Kentucky; • students temporarily residing outside their county of residence; • incarcerated voters charged with a crime who have not yet been convicted; • voters who have changed their place of residence to a state other than
Kentucky after the deadline to register to vote in their new state of residence has passed; • Kentuckians temporarily outside the state but still eligible to vote; • voters whose employment requires the voter to be outside the county of residence on all hours and all days of in-person absentee voting; • participants in the Secretary of State’s crime victim address confidentiality protection program; and
61

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 62 of 95 PageID #: 62
• those who are “[n]ot able to appear at the polls on election day on the account of age, disability, or illness,” and have not been declared mentally disabled by a court of competent jurisdiction.141
155. Additionally, for voters experiencing a “medical emergency” within “fourteen (14) days or less of an election,” the affected registered voter and their spouse “may apply for an absentee ballot.” The application “shall be notarized” and “shall state that the emergency condition occurred within the fourteen (14) day period.”142
156. Defendants have already demonstrated that they have the power to construe the “medical emergency” excuse to include valid concerns regarding the risk of contracting COVID-19. For the purposes of other elections, including the general election in November 2020, however, Defendants have not agreed to allow such a basis to satisfy the Excuse Requirement, and none of the existing excuses have been construed to include voters who have valid concerns about the risk of contracting COVID-19 either when voting, satisfying the photo ID requirement, or executing a voter affirmation.143
157. In Kentucky, individuals may only vote by mail-in absentee ballot if (1) one of the above excuses applies to them, and (2) they submit a timely application for an absentee ballot to the county clerk that states the voter’s qualifying excuse. The county
141 Ky. Rev. Stat. § 117.085. 142 Ky. Rev. Stat. § 117.077. 143 Letter from Sec’y of State Adams to Governor Beshear (Apr. 23, 2020), https://governor.ky.gov/attachments/20200423_Ltr-from-Sec-of-State-Adams.pdf (defining “medical emergency” to include “a reasonable fear of infection or transmission during a state of public health emergency declared by the Governor,” but only for the June primary election); Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020).
62

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 63 of 95 PageID #: 63
clerk must receive the voter’s completed application no later than seven days before the election.144
158. A qualified voter may request an application for an absentee ballot by telephone, facsimile machine, mail, electronic mail, or in person. Once requested, the county clerk will then transmit applications back to the voter by mail, electronic mail, or in person if the voter so chooses. An absentee ballot may be requested by the voter or the voter’s spouse, parents, or children, but may only be used by the voter. The voter must sign and verify the application.145
ii. Photo ID Law 159. S.B. 2’s key provisions add a photo ID requirement, subject to certain exceptions, to those seeking to vote in person or applying to vote by mail-in absentee ballot.146 160. Valid identification, as defined by Section 23 of S.B. 2, means a document that was issued by: (a) The United States or the Commonwealth of Kentucky . . . [;] (b) The United States Department of Defense, a branch of the uniformed services, the Merchant Marines, or the Kentucky National Guard . . . [;] (c) A public or private college, university, or postgraduate technical or professional school located within the United States . . . [;] or
144 Ky. Rev. Stat. § 117.085(1)(a), 2. 145 Ky. Rev. Stat. § 117.085(1),(2). 146 See generally S.B. 2.
63

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 64 of 95 PageID #: 64
(d) Any city government, county government, or urban-county government, charter county government, consolidated local government, or unified local government, which is located within this state . . . [.]147 The ID must also contain the name and photograph of the individual to whom the document was issued.148 161. S.B. 2 states that if a voter is unable to provide a photo ID on Election Day or when voting absentee in person, the voter may still cast a ballot if the person: “(a) [i]s eligible to vote under KRS 116.025; (b) [i]s entitled to vote in that precinct; and (c) [i]n the presence of an election officer, executes a voter affirmation” on a form furnished by the Kentucky Board of Elections.149 Voters unable to provide a photo ID must also provide certain non-photo identification documents, such as the voter’s social security card or credit card with the voter’s name on it.150 162. To execute the voter affirmation required by S.B. 2, the voter must affirm, under penalty of perjury, various aspects of their identity and qualifications to vote, as well as confirm that one of eight possible “impediments” prevents them from procuring a photo ID (the “Impediment Requirement”).151 The eight impediments enumerated in S.B. 2 are: (a) lack of transportation; (b) inability to obtain their birth certificate or other documents needed to show proof of identification; (c) work schedule; (d) lost or stolen identification; (e) disability or illness; (f) family responsibilities; (g) the proof of
147 S.B. 2 § 23(12). 148 Id. 149 S.B. 2 § 1(1) (emphasis added). 150 S.B. 2 § 1(2). 151 S.B. 2 § 1(1)(c).
64

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 65 of 95 PageID #: 65
identification has been applied for, but not yet received; or (h) the voter has a religious objection to being photographed.152
163. The Impediment Requirement does not provide a basis for excusing the requirements of the Photo ID Law for in-person voting if the COVID-19 pandemic prevents a voter from procuring a copy of their photo ID.
164. S.B. 2’s identification requirements of either presenting photo ID or inperson execution of a voter affirmation also extend to those applying for a mail-in absentee ballot.153
165. S.B. 2 imposes a photo ID requirement for the absentee ballot application, stating that “the voter shall provide a copy of his or her proof of identification” or an “executed voter affirmation” in the voter’s mail-in absentee ballot application.154 The Kentucky Board of Elections must provide “an instructional statement prescribing the requirements for providing a copy of the voter’s proof of identification or voter affirmation when applicable” as part of the mail-in absentee ballot application form transmitted by the county clerk to the voter.155
166. If a voter is able to provide a photo ID, the voter must submit a copy of their photo ID with the ballot application.156
152 Id. 153 See S.B. 2 § 5(2). 154 Id. 155 Id. 156 Id.
65

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 66 of 95 PageID #: 66
167. If a voter is unable to provide a photo ID, the voter’s mail-in absentee ballot application must include an executed voter affirmation that (a) indicates which of the qualifying impediments is preventing them from procuring a photo ID, consistent with the Impediment Requirement,157 and (b) affirms the following:
• that “[t]he voter is a citizen of the United States”; • “[t]he voter’s date of birth”; • that “[t]he voter is qualified to vote in” the relevant precinct; • “[t]he voter’s name”; • that “[t]he voter has not voted and will not vote in any other precinct”; • “[t]he voter’s current residential address”; and • that “[t]he voter understands that making a false statement on the
affirmation is punishable under penalties of perjury.”158 168. The Impediment Requirement does not provide a basis for excusing the photo ID requirement for mail-in absentee ballot applications if the COVID-19 pandemic prevents the voter from procuring a copy of their photo ID.
iii. Modifications for Primary Election 169. In light of the danger posed by COVID-19, Kentucky officials recently enacted important modifications for the upcoming primary election.159 The emergency
157 See supra ¶ 162. 158 S.B. 2 § 1(1)(c); S.B. 2 § 5(2). 159 Ky. Sec’y of State, Approval of Procedures Established for Election During State of Emergency, Exec. Order 2020-01 (May 1, 2020), https://www.sos.ky.gov/elections/ Documents/5-1-2020%20EO.pdf; Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order No. 2020-311 (May 1, 2020),
66

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 67 of 95 PageID #: 67
regulations passed by the Kentucky Board of Elections—which are based on the recommendations of the Secretary of State and the Governor’s executive order—explain that these measures “will benefit the entirety of the Commonwealth,” because they “will allow for the conduction of elections that minimize the health-risk of all involved during the ongoing state of emergency related to the COVID-19 pandemic.”160
170. Kentucky election laws that “directly conflict” with the Secretary of State’s recommendation, the Governor’s executive order, or the Kentucky Board of Election’s emergency regulations are temporarily displaced by the emergency regulations for the primary election on June 23, 2020.161
171. The emergency regulations extend the option to vote absentee to all voters by defining the term “medical emergency” from Ky. Rev. Stat. § 117.077 as “a reasonable fear of infection or transmission during a state of public health emergency declared by the Governor.”162
172. Further, it states that the medical emergency absentee ballot application for the primary election “a) shall not require the applicant to state that the emergency condition occurred within 14 days of the election, b) need not be notarized, and c) shall
http://apps.sos.ky.gov/Executive/Journal/execjournalimages/2020-MISC-2020-0311267630.pdf. 160 Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020). 161 Id. 162 Id.
67

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 68 of 95 PageID #: 68
entitle the applicant, upon verification of the application, to vote by absentee, by mail or in person by appointment, as advised, if otherwise a lawful voter.”163
173. The emergency regulations also require the Kentucky Board of Elections to establish a secure online portal that allows voters to submit requests for absentee ballots to the county clerk in the county in which the requester is registered.164
174. In addition, the regulations require signature matching as an identity verification method for the primary election. The emergency regulations say: “No absentee ballot may be . . . counted unless and until the absentee ballot processing committee verifies the signature on the absentee ballot envelope to match the voter’s signature of record.”165
175. If the signatures are found not to match, Kentucky election officials “shall make a reasonable effort to contact the voter using the contact information provided by the voter’s absentee ballot application, and provide the voter with a timeframe and manner in which the voter may cure the discrepancy.” Cures for a signature discrepancy must be made by 4:30 p.m on the Monday following the election.166
176. The emergency regulations also allow the Kentucky Board of Elections to purchase secure drop-boxes and provide them to county clerks upon request for inperson drop off of ballots by voters, and directs county clerks to reduce the number of
163 Id. 164 Id. 165 Id. 166 Id.
68

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 69 of 95 PageID #: 69
in-person voting sites, which must be pre-approved by the Kentucky Board of Elections.167
177. The emergency regulations also extend Kentucky’s statutory absentee ballot receipt deadline, instructing election officials to count all absentee ballots that are postmarked by Election Day and received by close of business on the Saturday following the election.168
B. Unreasonable Burden Imposed by the Excuse Requirement 178. Historically, most voters in Kentucky have to vote in person and on Election Day,169 because Kentucky’s Excuse Requirement prevents most voters from pursuing either mail-in voting or early in-person voting.170 For most voters, that means physically appearing at a designated polling place where they must not only be in close contact with other voters, observers, and poll workers, but also repeatedly touch equipment and material such as voting machines, paper ballots, and shared writing instruments. At present, public health officials consider all of these activities as risking exposure to the transmission of COVID-19.171
167 Id. 168 Id.; cf. Ky. Rev. Stat. § 117.086(1). 169 See, e.g., U.S. Election Assistance Comm’n, Election Administration and Voting Survey 2018 Comprehensive Report 29 (2018) (only 29,244 of over 1.6 million ballots cast in Kentucky’s 2018 midterm elections were mail-in absentee ballots, and 64,407 ballots were cast by in-person early voting), https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf. 170 Ky. Rev. Stat. § 117.085. 171 CDC, Coronavirus Disease 2019 (COVID-19): How It Spreads, https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (noting that the virus “easily” between persons, and that it “may be possible that a person can get
69

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 70 of 95 PageID #: 70
179. Meaningful opportunities to vote in person are still necessary to many Kentucky voters, including those who lack access to reliable mail service or need the kinds of accommodations for persons with disabilities and personal assistance for people with limited literacy that are only available at in-person sites.
180. To reduce the risk that individuals who need to vote in person will be exposed to COVID-19, the CDC has issued specific guidelines for voting during the pandemic, which recommend that states “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations,” including “mail-in methods of voting.”172 These are essential recommendations, especially because the risks of voting by mail are minimal.173
181. Kentucky is an excuse-required absentee voting state, which means that the Commonwealth prohibits voting by mail for all but eight specific categories of voters with qualifying excuses.174
182. Relevant here, Kentucky voters who are “[n]ot able to appear at the polls on election day on the account of . . . illness” can apply to cast their votes by mail-in absentee ballot.175
COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes”) (last visited May 21, 2020). 172 CDC, Coronavirus Disease 2019 (COVID-19): Recommendations for Election Polling Locations (Mar. 27, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html. 173 See supra ¶ 119. 174 S.B. 2 § 5(1)(a) (codified at Ky. Rev. Stat. § 117.085(1)(a)). 175 S.B. 2 § 5(1)(a)(8) (emphasis added); see also supra ¶ 154.
70

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 71 of 95 PageID #: 71
183. In addition, Kentucky voters can apply for an absentee ballot if they suffer an unexpected “medical emergency” within 14 days of an election, but such a medical emergency absentee ballot application must be notarized.176
184. For the purposes of the general election on November 3, 2020, Defendants have not construed the “illness” excuse or the “medical emergency” excuse to include all voters facing health risks associated with COVID-19.177
185. Kentucky’s current Excuse Requirement is plainly unreasonable, because the refusal to allow all Kentuckians to vote safely from home in response to the pandemic cannot be justified by any legitimate state interest. The COVID-19 pandemic poses the same concerns underlying the “illness” excuse that the Kentucky General Assembly has already made available to Kentuckians for the June 23 primary: voters should not have to make the untenable decision between risking their health and giving up their right to vote.
186. Defendants have not adopted a construction of the “illness” excuse that provides all voters with the option of voting by mail in November. The existence of any legitimate state interest to support Defendants’ narrow construction of the “illness” excuse is undercut by the practice of other states. Most states have already entirely eliminated any excuse requirement to vote by mail-in absentee ballot, even when their voters are not threatened by a public health crisis.178
176 Ky. Rev. Stat. § 117.077; see also supra ¶ 155. 177 See supra ¶ 156. 178 National Conference of State Legislatures, Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Apr. 24, 2020),
71

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 72 of 95 PageID #: 72
187. Defendants themselves have already acknowledged that any state interest in a restrictive interpretation of the Excuse Requirement must give way in light of the COVID-19 pandemic. By taking steps to permit all Kentucky voters to use mail-in absentee ballots to vote safely from home in the June 23, 2020 primary, Defendants made clear that the pandemic necessitates such changes in Kentucky. But Defendants have failed to extend these modifications to the Excuse Requirement to the November 3, 2020 general election.
188. Defendants’ decision to permit all Kentucky voters to use mail-in absentee ballots for the primary election reflects the reality and gravity of the current environment. Over the past two months, COVID-19 has spread throughout the Commonwealth of Kentucky at a rapid pace.179 And public health officials are “convinced” that COVID-19 will continue to threaten voters’ health and safety this fall, both because of the looming second wave of the virus and the improbable availability of a vaccine by November 2020.180
189. Because of these continued risks, many Kentuckians who would otherwise vote in person on Election Day will reasonably opt and/or be required to stay home and continue practicing social distancing for the foreseeable future, even after the peak of
https://www.ncsl.org/research/elections-and-campaigns/absentee-and-earlyvoting.aspx (34 states and Washington, D.C., offer “no-excuse” absentee/mailed ballot voting). 179 See supra ¶¶ 1, 102–11. 180 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/; see supra ¶¶ 98–101.
72

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 73 of 95 PageID #: 73
the current outbreak of COVID-19 in Kentucky. The ongoing health risks posed by COVID-19 necessitate an excuse that would prevent thousands of individuals from lining up with other voters at polling places (sometimes for hours), touching the same equipment, having face-to-face interactions with poll workers, and threatening their own health and the health of others.
190. In light of public health officials’ assurances that the United States will have a second wave of the coronavirus in the fall, Kentucky’s current Excuse Requirement will severely burden the fundamental right of all eligible voters who are practicing self-quarantining and social distancing.
191. Kentucky’s failure to allow all eligible voters to vote safely from home in the general election will impose substantial burdens on a broad cross-section of the public, including but not limited to voters who have a heightened risk of contracting COVID-19; voters who live with, care for, or work with individuals who have a heightened risk of contracting COVID-19; and all poll workers. As the health data from states that have held in-person primaries indicate, requiring in-person voting during the pandemic is not a mere inconvenience: failing to treat the pandemic as an excuse, even after the complete shelter-in-place orders have lifted, can increase cases and cost lives.
192. While COVID-19 will pose a threat to all Kentuckians required to vote in person in the fall, Kentucky’s current Excuse Requirement will impose especially severe and disproportionate burdens on the rights of particularly vulnerable Kentuckians, as well as individuals who live with vulnerable Kentuckians. As described above, voters with underlying medical conditions, Black voters, older voters, and voters with certain disabilities have an increased risk of suffering severe illness or death if they contract the
73

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 74 of 95 PageID #: 74
virus.181 Many of these individuals would not have an excuse to vote safely from home under Kentucky’s current system, despite the increased risk that the pandemic poses for them.182 For example, immunocompromised voters, who commonly vote in person and are not considered “physically disabled,” would be placed at high risk of severe illness from COVID-19 if they were forced to vote in person, but Kentucky’s restrictive construction of the “illness” excuse would leave them no other choice.183 Other underlying conditions that can lead to severe illness from COVID-19 but would unlikely qualify as an excuse independent of the pandemic include, but are not limited to, moderate-to-severe asthma, bone marrow or organ transplantation, prolonged use of corticosteroids and other immune-weakening medications, severe obesity, and diabetes.184
193. The burdens imposed by the Excuse Requirement are exacerbated by various additional restrictions on mail voting that are still in effect for the November general election in Kentucky, including: (a) the requirement that any voter seeking to vote by mail due to a medical emergency must have their application notarized,185
181 See supra ¶¶ 121–53. 182 Id. 183 Savannah Eadens, Coronavirus Questions: Readers Have Asked, We’ve Got Answers on the COVID-19 Outbreak, Louisville Courier Journal (Mar. 24, 2020), https://www.courierjournal.com/story/life/wellness/health/2020/03/24/coronavirus-2020-everythingknow-covid-19-and-kentucky/2897603001/. 184 CDC, Coronavirus Disease 2019 (COVID-19): At Risk for Severe Illness (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groupsat-higher-risk.html. 185 Ky. Rev. Stat. § 117.077.
74

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 75 of 95 PageID #: 75
(b) the failure to provide voters with notice and an opportunity to cure their mail-in ballot application if it is rejected based on alleged signature mismatch,186 and (c) an onerous deadline for the receipt of mail ballots (i.e., that the ballot must be received by the end of Election Day).187 Defendants have modified all three of these requirements for the June primary election, and extending these modifications to the November general election is necessary to protect the right to vote.
C. Unreasonable Burden Imposed by Photo ID Law i. S.B. 2 Constructively Denies Many Kentuckians the Right to Vote
194. S.B. 2, enacted in the midst of a global pandemic, places a severe burden on Kentuckians’ fundamental voting rights by mandating dangerous or impossible actions to vote by mail-in absentee ballot.
195. Even under ordinary circumstances, the U.S. Supreme Court has recognized that photo ID requirements impose some burdens on voters.188 But the COVID-19 pandemic adds a layer of health and safety risks and practical impossibility to those existing complications.
196. S.B. 2 requires voters applying for a mail-in absentee ballot to either (1) include a copy of the voter’s photo ID with the ballot application, or (2) if the voter does not yet have a photo ID, execute a voter affirmation in the presence of an election officer confirming their identity and that the voter has a reasonable impediment to
186 Ky. Rev. Stat. § 117.085(6). 187 Ky. Rev. Stat. § 117.086(1). 188 Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197–99 (2008).
75

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 76 of 95 PageID #: 76
procuring a photo ID.189 Both options are presently impossible and will remain lifethreatening for many voters through the general election.
197. There is currently no method for most voters without a photo ID to vote absentee. To get the most common form of photo ID in Kentucky—a driver’s license— voters must visit their local circuit court clerk’s office or REAL ID Regional Driver’s Licensing Office in person.190 But “[f]ollowing the guidance from Governor Beshear to limit in person services[,] all statewide license issuance locations . . . will be closed to the public until further notice.”191
198. As of the date of filing this Complaint, only one driver licensing regional office in the entire Commonwealth had reopened—all of the remaining statewide license issuance locations, including REAL ID offices, are still “closed to the public until further notice.”192
199. Until all license issuance locations have reopened, many voters without a photo ID cannot obtain a state-issued photo ID and therefore cannot include a copy of the photo ID in their mail-in absentee ballot application as required.
200. Even when the circuit court clerk and licensing offices reopen, they will have reduced capacity to manage the increased demand associated with the Photo ID
189 S.B. 2 § 1(1)(c); S.B. 2 § 5(2). 190 Ky. Transp. Cabinet, Driver’s License & ID Cards, https://drive.ky.gov/driverlicensing/Pages/Drivers-License-and-ID-Card.aspx#identification-card-id (last visited Apr. 17, 2020). 191 Ky. Transp. Cabinet, Confident Kentucky, https://drive.ky.gov/ConfidentKY/Pages/default.aspx (last visited May 27, 2020). 192 Id.
76

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 77 of 95 PageID #: 77
Law by November 2020, because they are in the midst of implementing a separate,
demanding program. In 2005, Congress passed the REAL ID Act, which established
baseline security standards for state-issued driver’s licenses and ID cards.193 Kentucky
passed a law to implement REAL IDs in 2017, and the Commonwealth “has struggled to
roll out its REAL ID program” ever since.194 For example, in late 2019, Kentucky
Transportation Secretary Greg Thomas was forced to abruptly halt the REAL ID rollout
due to “significant unforeseen workload and staffing issues.”195 And in 2020, the federal
government recently extended the implementation date of the REAL ID program from
October 1, 2020, to October 1, 2021,196 citing concerns about “crowding at state motor-
vehicle department offices.”197 Because Kentucky circuit court clerk and licensing
offices are already overwhelmed with the conversion to REAL IDs, even if these offices
do reopen, Kentucky voters will encounter difficulty in obtaining photo IDs in advance
of the election.
193 U.S. Dep’t of Homeland Sec., REAL ID Frequently Asked Questions, https://www.dhs.gov/real-id-frequently-asked-questions (last visited May 5, 2020). 194 Ben Tobin & Sarah Ladd, Kentucky Halts Real ID Rollout as Federal Deadline for Travelers Looms, Louisville Courier Journal (Sept. 18, 2019), https://www.courierjournal.com/story/news/local/2019/09/18/kentucky-transportation-cabinet-halts-realid-county-by-county-rollout/2361914001/. 195 Id. 196 Chris Woodyard & Curtis Tate, Travelers Get a Break: REAL ID Deadline Extended to Oct. 1 2021, Due to Coronavirus, USA Today (Mar. 26, 2020), https://www.usatoday.com/story/travel/airline-news/2020/03/23/real-id-deadlinepushed-back-trump-says-coronavirus/2905323001/. 197 Chris Woodyard, Travelers Get a Break: REAL ID Deadline Being Pushed Back Due to the Coronavirus, Louisville Courier Journal (Mar. 24, 2020), https://www.courierjournal.com/story/news/2020/03/24/real-id-deadline-pushed-back-trump-sayscoronavirus/2905838001/.
77

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 78 of 95 PageID #: 78
201. Kentucky’s botched rollout of the REAL ID program also highlights the very real danger that the circuit court clerk and licensing offices will be unable to accommodate the increased demand associated with the new Photo ID Law in time for the general election in November 2020—because in this context, any delay could result in widespread disenfranchisement.
202. Even if a Kentuckian does have a photo ID, fulfilling S.B. 2’s photocopy requirement for mail-in absentee ballots brings its own life-threatening risks, particularly for those with underlying health conditions. Many voters will not have a photocopying machine in their home to make the statutorily required photocopy of their ID.198 Practically, this means that, in the middle of a pandemic, voters will be forced to choose between entering public businesses or libraries—many of which are not yet open—to use copying and printing equipment, a possible vector for contracting COVID19, or losing the “precious” and “fundamental” right to vote.199
203. Similar risks also inhere for Kentuckians who choose to vote in person during the pandemic. Having to physically hand over photo ID makes maintaining six feet of distance impossible. Transferring the photo ID between the voter and the poll worker exponentially increases the risk of contracting COVID-19 for both voters and election officials, especially because poll workers will have to repeatedly engage in such exchanges with many voters. And because checking photo IDs will lengthen the voting process for every voter, administration of the new Photo ID Law will also increase line
198 See S.B. 2 § 5(2). 199 Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966).
78

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 79 of 95 PageID #: 79
length and wait times at the polls, which further increases voters’ risk of exposure to the virus.
204. Regardless of whether government offices and businesses reopen soon, all Kentuckians will still face unacceptable risks to vote. The severe burden posed by S.B. 2 is evident when comparing the bill’s provisions with current CDC guidelines for elections. The CDC has recommended that election officials “[e]ncourage voters to use voting methods that minimize direct contact with other people” and “[e]ncourage mailin methods of voting.”200 S.B. 2 does the opposite. At present, S.B. 2 in effect necessitates hazardous direct contact with local government officials to obtain either a voter’s affirmation or a photo ID, as well as local businesses to make a photocopy of that ID.
205. The principal exception to S.B. 2—the Impediment Requirement—does not cure these injuries to Kentucky voters. The Impediment Requirement does not permit individuals to vote without a photo ID unless they execute a voter affirmation form that cites one of eight specifically enumerated impediments to justify their inability to obtain a photo ID.201 S.B. 2’s Impediment Requirement does not provide a basis for excusing the requirements of the Photo ID Law if the COVID-19 pandemic prevents the voter from obtaining a photo ID or procuring a copy of their photo ID. Moreover, S.B. 2’s
200 CDC, Coronavirus Disease 2019 (COVID-19): Recommendations for Election Polling Locations (Mar. 27, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html. 201 S.B. 2 §§ 1(1)(c), 5(2).
79

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 80 of 95 PageID #: 80
Impediment Requirement creates the same health risks as obtaining a license, because it requires the voter to execute a voter affirmation in the presence of an election officer.
206. Implementing the Photo ID Law in the general election in November 2020 will continue to unreasonably endanger Kentuckians’ health and safety, as health experts are “convinced” that the COVID-19 threat will persist in the fall.202
207. While all Kentuckians remain at risk for COVID-19 in the fall, this burden is even more pronounced for particularly vulnerable Kentuckians. As described above, COVID-19 imposes an especially severe burden on certain voters—including Black voters, older voters, and voters with underlying medical conditions203—who have an increased risk of suffering severe illness or death if they contract the virus. For these voters, interacting with government workers or print shop employees will remain a lifethreatening risk. Requiring these endangered Kentuckians to visit a county clerk’s office to vote in the general election in November 2020 would essentially eviscerate their ability to obtain the health benefits of voting by mail. Thus, S.B. 2’s absentee provisions will continue to put voters’ lives in danger through the general election in November 2020.
208. Kentucky’s first-time implementation of the Photo ID Law for the general election in November 2020 is an urgent problem that warrants this Court’s immediate intervention. Kentucky’s maintenance of the Excuse Requirement is already impacting
202 Christina Zhao, Fauci Says U.S. Will Have Coronavirus in the Fall After Trump Says It Might Not Come Back, Newsweek (Apr. 22, 2020), https://www.newsweek.com/fauci-says-us-will-have-coronavirus-fall-after-trump-saysit-might-not-come-back-1499639; see supra ¶¶ 98–101. 203 See supra ¶¶ 121–53.
80

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 81 of 95 PageID #: 81
the plaintiff organizations. LWVKY, Louisville Urban League, and Kentucky NAACP are diverting resources now to respond to the new Photo ID Law, including by using their limited time and resources to educate voters on how to obtain and copy photo ID in the midst of a pandemic.
ii. The Photo ID Requirement for Mail-In Absentee Ballot Applications is Unrelated to Any Valid State Interest
209. Even if the burdens on voting are found to be minimal, Kentucky’s photo ID requirement for absentee ballot applications is unrelated to any valid state interest.
210. Kentucky may claim this requirement prevents voter fraud or safeguards voter confidence, but there is no evidence of voter fraud in Kentucky. Defendant Secretary Adams recently stated that, because he ran on a platform of fighting voting fraud, he recognizes that concerns surrounding absentee voting are “partly on [him] because [he] talked about it in [his] campaign.”204 But since taking office, Adams’s views have shifted. After recommending that all voters have the option to vote safely from home in the Kentucky primary election, Adams stated that the “presumption that absentee voting is less secure is frustrating because Kentucky has safeguards in place to protect against fraud.”205 Adams has also acknowledged that there “is no evidence of
204 Pam Fessler, ‘It’s Partly On Me’: GOP Official Says Fraud Warnings Hamper VoteBy-Mail Push, NPR (May 15, 2020), https://www.npr.org/2020/05/15/856189149/it-spartly-on-me-gop-official-says-fraud-warnings-hamper-vote-by-mailpush?utm_medium=social&utm_term=nprnews&utm_source=facebook.com&utm_ca mpaign=npr. 205 Id.
81

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 82 of 95 PageID #: 82
extensive fraud in U.S. elections or of multiple voting,”206 and that he is “not aware of any instance over the past decade in which voter fraud was committed in Kentucky by someone impersonating another eligible voter.”207
211. To the extent that preventing voter fraud or safeguarding voter confidence is considered a valid state interest despite the lack of evidence of voter fraud in Kentucky, “the fact remains that nothing suggests that absentee ballot fraud would be limited by a photo-identification requirement that applied to absentee voting.”208
212. Under S.B. 2, a valid photo ID must possess: “1. The name of the individual to whom the document was issued; and 2. A photograph of the individual to whom the document was issued.”209
213. The main purpose of requiring a voter to present photo ID at the polls is so an election official can use the photo on the ID to verify the identity of the voter. Unlike in-person voting, when the voter applies for an absentee ballot by placing a photocopied picture of the voter’s ID in an envelope and mailing the ballot, there is “no way for the state election officials to determine whether the photo ID actually belonged to the
206 LRC Public Information, Voter ID Bill Receives Favorable Hearing, Richmond Register (Jan. 24, 2020), https://www.richmondregister.com/news/election/voter-idbill-receives-favorable-hearing/article_5a1129c3-9938-55b2-9443-e33bb16c1017.html. 207 Joe Sonka, Kentucky Republicans Say Voter ID Bill Will ‘Increase Confidence’ in Election Process, Louisville Courier Journal (Jan. 8, 2020), https://www.courierjournal.com/story/news/politics/2020/01/08/voter-id-requirements-kentuckysecretary-state-supports-bill/2846020001/. 208 Am. Civ. Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313, 1320 (10th Cir. 2008). 209 S.B. 2 § 23(12).
82

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 83 of 95 PageID #: 83
absentee voter,” because “he wouldn’t be presenting his face at the polling place for comparison with the photo.”210 Further, a photo ID is not necessary in the absentee voting context, because “the unique procedures for absentee voting allow for a separate process confirming the identification of a voter.”211
214. Ultimately, “the absence of a person standing before the election officials precludes linking the enclosed identification with the person actually casting the ballot.”212 Since the primary purpose of a photo ID is rendered irrelevant in the absentee ballot context, S.B. 2’s photo ID provisions for mail-in absentee ballot applications must be invalidated because “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.”213
CLAIMS FOR RELIEF Count 1: During the COVID-19 Crisis, Kentucky’s Absentee Requirements
Burden the Fundamental Right to Vote in Violation of the First and Fourteenth Amendments (42 U.S.C. § 1983)
215. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
216. Eligible individuals have a fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution. In cases where the fundamental right
210 Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008). 211 Santillanes, 546 F.3d at 1320. 212 Id. 213 Crawford, 553 U.S. at 189.
83

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 84 of 95 PageID #: 84
to vote is burdened, the court first determines the severity of the burden on the right to vote by evaluating the character and magnitude of the asserted injury.214 If the restriction on the right to vote is a severe burden, then it is subject to strict scrutiny.215 Strict scrutiny requires the restriction to be “narrowly drawn to advance a state interest of compelling importance.”216 “[R]egulations that impose a more-than-minimal but less-than-severe burden” are subject to a more “flexible” analysis.217 And “minimally burdensome and nondiscriminatory” regulations are subject to a “less-searching examination closer to rational basis.”218
217. If this Court does not grant the relief that Plaintiffs request, the combination of the Defendants' enforcement of the Excuse Requirement and the health risks posed by the COVID-19 pandemic will severely and unduly burden the right to vote—because for thousands of eligible voters, the inability to use mail-in absentee ballots to vote safely from home means they will not be able to vote at all. This burden is especially severe for voters who face increased risk of serious illness or death from voting during the COVID-19 pandemic, including voters with underlying medical conditions, Black voters, older voters, and voters with disabilities. Thus, Defendants’ enforcement of the Excuse Requirement during the pandemic will prevent or virtually prevent Kentuckians from exercising their right to vote.
214 Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). 215 See id. at 434. 216 Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). 217 Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016). 218 Id.
84

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 85 of 95 PageID #: 85
218. By enforcing Kentucky’s Excuse Requirement, Defendants, acting under color of state law, will deprive Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Gracie Lewis, DeJuan Nash, and Tiffany Price of rights secured to them by the First and Fourteenth Amendments to the U.S. Constitution—namely, the fundamental right to vote—and protected by 42 U.S.C. § 1983. Enforcement of the Excuse Requirement will also strip members and or/clients of the LWVKY, Louisville Urban League, and Kentucky NAACP of their right to vote.
219. In addition to endangering individual voters and their communities, Defendants’ enforcement of the Excuse Requirement will also require organizations like the LWVKY, Louisville Urban League, and Kentucky NAACP to funnel resources intended for voter registration and restoration efforts toward helping Kentuckians minimize the public health and safety risks of in-person elections.
220. Defendants cannot provide any colorable justification for their refusal to make changes to Kentucky’s voting system that accommodate the significant challenges voters will face in the general election in November 2020 as a result of the pandemic. Defendants’ maintenance of the Excuse Requirement is not supported by any state interest that is sufficient to justify the resulting burdens on the right to vote. This fact is underscored by Defendants’ decision to relax the Excuse Requirement for the June 23, 2020 primary, which seriously undermines any justification for refusing to do the same for the November 3, 2020 general election.
85

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 86 of 95 PageID #: 86

221. In light of public health officials’ assurances that the United States “will

have coronavirus in the fall,”219 Defendants’ failure to provide all Kentucky voters with

the ability to vote safely from home during the time of the COVID-19 pandemic cannot

pass constitutional muster. Unless Plaintiffs are granted the relief requested herein,

thousands of Kentuckians’ right to vote—including each of the individual plaintiffs and

many members and/or clients of the LWVKY, Louisville Urban League, and Kentucky

NAACP—will be severely burdened or eliminated entirely in the upcoming general

election on November 3, 2020.

222. Additionally, in order to implement relaxation of the Excuse Requirement

effectively under the circumstances of the COVID-19 pandemic, other modifications in

place for the June 23, 2020 primary must be in place for the November 3, 2020 election.

These are:

i.

Eliminating the notarization requirement for medical

emergency absentee ballot applications; 220

ii.

Counting all ballots postmarked by Election Day and

received by close of business on the Saturday following the election;221 and

219 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/. 220 Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E § 3 (2020). 221 Id. § 6.
86

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 87 of 95 PageID #: 87

iii.

Requiring Defendants to make a reasonable effort to contact

voters whose ballots are rejected during election officials’ signature

verification process and to provide the voter with a timeframe and manner

in which the voter may cure the discrepancy.222

223. Failure to impose these requirements for the November 3, 2020 election in

order to fully effectuate relaxation of the Excuse Requirement, under the circumstances

of the COVID-19 pandemic, will impose a severe and unreasonable burden on the voters

of Kentucky and is therefore invalid under the Anderson-Burdick framework.223 Thus,

the Defendants’ failure to continue implementing these modifications during the

pandemic will prevent or virtually prevent Kentuckians from exercising their right to

vote.

224. In light of public health officials’ assurances that the United States “will

have coronavirus in the fall,”224 Defendants’ failure to provide all Kentucky voters with

the ability to vote safely from home during the time of the COVID-19 pandemic cannot

pass constitutional muster. Unless Plaintiffs are granted the relief requested herein,

thousands of Kentuckians’ right to vote—including each of the individual plaintiffs and

many members of the LWVKY, Louisville Urban League, and Kentucky NAACP—will be

222 Id. § 9.
223 See Burdick, 504 U.S. 428; Anderson, 460 U.S. 780.
224 Savannah Behrmann, ‘Convinced’: Fauci Says There Will Be Coronavirus in the Fall After Trump Says ‘It May Not Come Back’, USA Today (Apr. 23, 2020), https://www.usatoday.com/story/news/politics/2020/04/22/coronavirus-dr-anthonyfauci-says-i-am-convinced-second-wave/3009131001/.
87

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 88 of 95 PageID #: 88
severely burdened or eliminated entirely in the upcoming general election on November 3, 2020.
Count 2: During the COVID-19 Crisis, Kentucky’s Photo ID Law Burdens the Fundamental Right to Vote in Violation of the First and Fourteenth
Amendments (42 U.S.C. § 1983) 225. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 226. In cases where the fundamental right to vote is burdened, the court first determines the severity of the burden on the right to vote and then applies the appropriate level of scrutiny, as detailed above.225 The heavier the burden, the more compelling the state’s interest must be.226 For severe burdens, strict scrutiny applies.227 227. The combination of the Defendants’ enforcement of S.B. 2 and the health risks posed by the COVID-19 pandemic imposes a severe burden on the right to vote. S.B. 2 mandates that voters provide a valid photo ID before casting a ballot in person. Similarly, voters applying for an absentee ballot must include a copy of valid photo ID with their application. For those voters without photo ID, obtaining one is currently impossible. All but one of the statewide license-issuance locations are currently closed. 228. Even if voters do have a photo ID, S.B. 2 requires a photocopy of that ID to be included in the absentee ballot application. For voters without a copy machine in their home, this requirement imposes a severe burden by forcing voters to enter
225 See supra ¶ 216. 226 See Ohio Democratic Party, 834 F.3d at 627. 227 See Burdick, 504 U.S. at 434.
88

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 89 of 95 PageID #: 89
businesses in public use to photocopy their ID, putting them in danger of contracting coronavirus. This burden is especially severe for voters who face increased risk of serious illness or death from contact with others during the COVID-19 pandemic, including voters with underlying medical conditions, Black voters, older voters, and voters with certain disabilities.
229. Even if government offices and printing/copying businesses reopen, Kentucky voters will continue to face these health risks through the general election in November 2020. As the CDC and the Kentucky Department of Public Health have recommended, the most effective way to prevent contracting COVID-19 is to “practice social distancing, meaning staying at home as much as possible and otherwise maintaining six feet of distance from other individuals.”228 Forcing Kentuckians to reject this advice and interact with others in places of public use in order to vote constitutes a severe and unnecessary danger to individual health and public safety.
230. S.B. 2’s only exception to the photo ID requirement does not obviate the unacceptable risks to voters’ health and safety that the statute inflicts. First, S.B. 2’s Impediment Requirement does not provide an exemption for those Kentucky voters who reasonably fear they will contract COVID-19 if forced to obtain a photo ID during the pandemic. And second, even for voters who can claim one of the narrowly prescribed, statutorily enumerated impediments, fulfilling the Impediment Requirement during the pandemic imposes the same unacceptable risks as the photo ID
228 Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order 2020-296 (Apr. 24, 2020); Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020).
89

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 90 of 95 PageID #: 90
requirement itself, as it requires voters to subject themselves to potential exposure to COVID-19 by executing a voter affirmation in front of an election official. Thus, the enforcement of S.B. 2 during the pandemic will prevent or virtually prevent Kentuckians from exercising their right to vote.
231. By enforcing Kentucky’s Photo ID Law, Defendants, acting under color of state law, will deprive Plaintiffs Jeffrey Cosby, Thela Elliott, and Tiffany Price of rights secured to them by the First and Fourteenth Amendments to the U.S. Constitution— namely, the fundamental right to vote—and protected by 42 U.S.C. § 1983. Enforcement of the Excuse Requirement will also strip members and/or clients of the LWVKY, Louisville Urban League, and Kentucky NAACP of their right to vote.
232. In addition to endangering individual voters and their communities, Defendants’ enforcement of the Photo ID Law will also require organizations like the LWVKY, Louisville Urban League, and Kentucky NAACP to funnel resources intended for voter registration and restoration efforts toward assisting Kentuckians with compliance with the Photo ID Law.
233. There is no valid state interest in requiring a photocopy of a photo ID with an absentee ballot application. The purpose of requiring a photo ID is to allow an election official to verify the identity of the voter by comparing the photo on the ID with the voter in front of them. This purpose is not fulfilled under S.B. 2. Election officials have no way of verifying who put the copy of the ID in the envelope with the absentee ballot application. Thus, traditional justifications for photo ID laws, such as preventing voter fraud and bolstering public confidence in election integrity, are irrelevant in this context.
90

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 91 of 95 PageID #: 91
234. Furthermore, given the clear life-threatening danger posed by COVID-19 to all voters, any interest Kentucky may have in preventing election fraud or safeguarding election integrity is outweighed by the need to simultaneously protect both human life and the franchise.
235. This Court should enjoin the Photo ID Law and provide appropriate relief to ensure all voters may safely access absentee voting for the general election.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Declare that Kentucky’s enforcement of the Excuse Requirement (as codified by Ky. Rev. Stat. §§ 117.077 and 117.085) violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters; B. Declare that Defendants’ failure to extend the modifications they have already provided to protect the right to vote and “reduce[] the amount of exposure voters, poll workers, and administrators have to possible infection” 229 in the June primary election to the November general election violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters. These measures include: (a) eliminating the notarization requirement for medical emergency absentee ballots, (b) counting all ballots that are postmarked by
229 See Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020).
91

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 92 of 95 PageID #: 92
Election Day and received by the Saturday following the election, and (c) making a reasonable effort to contact voters whose ballots are rejected during election officials’ signature verification process and to provide the voter with a timeframe and manner in which the voter may cure the discrepancy.
C. Declare that Kentucky’s enforcement of the Photo ID Law (as stated in S.B. 2 §§ 1(1) and 5(2)) violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters;
D. Issue a preliminary and permanent injunction that orders relief including: 1. Prohibiting Defendants and their respective agents, officers,
employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Excuse Requirement (as codified by Ky. Rev. Stat. §§ 117.077 and 117.085) to prevent any eligible voter, regardless of age and physical condition, to request, receive, and have counted, an absentee ballot while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters;
2. Ordering Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, to apply to the November 3, 2020 general election the same precautions that Defendants have already enacted to conduct the June 23, 2020 primary election “in a manner that reduces the amount of exposure
92

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 93 of 95 PageID #: 93
voters, poll workers, and administrators have to possible infection”230— including (a) eliminating the notarization requirement for medical emergency absentee ballots, (b) counting all ballots that are postmarked by Election Day and received by the Saturday following the election, and (c) making a reasonable effort to contact voters whose ballots are rejected during election officials’ signature verification process and to provide the voter with a timeframe and manner in which the voter may cure the discrepancy—while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters;
3. Prohibiting Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Photo ID Law (as stated in S.B. 2) for all voters while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters;
4. Ordering Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, to modify election materials, including absentee ballots, to reflect the elimination of the excuse and photo ID requirements, and conduct a public information campaign informing Kentucky voters about the elimination of the excuse and photo ID requirements, in coordination with city and county officials before and during the absentee balloting
230 Id. 93

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 94 of 95 PageID #: 94 period, and ordering Defendants to issue guidance instructing city and county election officials to issue absentee ballots to all eligible voters;
E. Award Plaintiffs attorneys’ fees in this action; F. Award Plaintiffs their costs of suit; and G. Grant such other and further relief as this Court deems just and proper in the circumstances.
94

Case 3:20-cv-00375-CRS Document 1 Filed 05/27/20 Page 95 of 95 PageID #: 95

Respectfully submitted,

/s Corey Shapiro____________

Adriel I. Cepeda Derieux* Sophia Lin Lakin* Dale E. Ho* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 acepedaderieux@aclu.org slakin@aclu.org dho@aclu.org
Ceridwen Cherry* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15TH STREET, NW Washington, DC 20005-2313 (202) 675-2326 ccherry@aclu.org
Ezra Rosenberg* Ajay Saini* Natasha Chabria* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW 1500 K Street NW, Suite 900 Washington, DC 20005 (202) 662-8600 erosenberg@lawyerscommittee.org asaini@lawyerscommittee.org natashachabria@lawyerscommittee.org

Corey Shapiro, Ky. Bar No. 96897 Counsel of Record
Heather Gatnarek, Ky. Bar No. 95113 ACLU OF KENTUCKY FOUNDATION 325 W. Main Street, #2210 Louisville, KY 40202 (502) 581-9746 corey@aclu-ky.org heather@aclu-ky.org
Megan C. Keenan* Mary Elise Holman* Scott J. Garfing* COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-6000 mkeenan@cov.com eholman@cov.com sgarfing@cov.com
Robert D. Fram* COVINGTON & BURLING LLP Salesforce Tower 415 Mission Street, Suite 5400 San Francisco, CA 94105-2533 (415) 591-6000 rfram@cov.com

Sharon Kim* COVINGTON & BURLING LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 841-1000 shkim@cov.com

Date: May 27, 2020

*Pro Hac Vice forthcoming 95

 
 Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 1 of 13 PageID #: 153

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Case No. 3:20-cv-00375-CRS

MICHAEL COLLINS, et al.

: MEMORANDUM IN SUPPORT

OF ALBERT BENJAMIN

v.

:

CHANDLER, III

MOTION TO DISMISS

MICHAEL ADAMS, et al.

:

PLAINTIFFS’ COMPLAINT

Comes the Defendant, Albert Benjamin Chandler, III, sued in his official capacity as

Chairman of the Kentucky State Board of Elections (the “Chair”), and submits the following

Memorandum in Support of his Motion to Dismiss Plaintiffs’ complaint [DN 1] pursuant to Rule

12(b)(1) and (6).

Plaintiffs’ complaint should be dismissed because (1) the Court lacks subject matter

jurisdiction over this action as Plaintiffs can demonstrate neither that they have standing nor that

this case is ripe for judicial review, and (2) they do not state a valid claim upon which relief can

be granted because of deficiencies in their pleadings and also because they have brought their

claim solely against the Chair who is only one vote on the bi-partisan State Board of Elections and

who cannot unilaterally act for the board.

This motion is not to discount the Plaintiffs’ concerns, nor is the Chair suggesting that a

miracle will occur and the pandemic will vanish. However, there are many flaws with Plaintiffs’

claims, and there are many epidemiologic lessons to be learned in the near future as well as lessons

to learn from Kentucky’s 2020 primary which has not yet been conducted. Plaintiffs’ requests may

be valid and can certainly be the topic of later discussion with state officials, but “[t]he federal

courts should not quickly ‘become entangled, as overseers and micromanagers in the minutiae of

state election processes.’” Ohio Dem. Party v. Husted, 834 F.2d 620, 622 (6th Cir. 2016).

Plaintiffs’ claims are not properly before this Court and should be dismissed. 1

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 2 of 13 PageID #: 154
BACKGROUND This Court is very familiar with the measures Kentucky employed to help voters safely cast their ballots in the 2020 primary election through the recent case of Nemes et al. v. Bensinger, et al., 20-cv-407-CRS The Court’s factual summary in Nemes is incorporated herein by reference. 20-cv-407-CRS [DN 49] Plaintiffs’ claims seek to force Kentucky to extend these measures to November’s election, with additional demands. Specifically, Plaintiffs’ requested relief is for the Court to: 1. Prohibit the Chair from using the existing statutory requirements for seeking an
absentee ballot. Page ID # 92; 2. Order the Chair to apply the same precautions to the November 2020 election that were
enacted to conduct the June 23, 2020 primary, with the additional demand that the Chair make a reasonable effort to contact voters whose ballots were rejected because their signatures did not match with what is on file, and then give the voter the opportunity in an unspecified period of time to “cure the discrepancy” of the signatures. Page ID # 9293; 3. Prohibit the Chair from enforcing S.B. 2, Kentucky’s newly enacted voter photoidentification law (referred to herein as the “Voter ID law”)1. Page ID # 93; and 4. Order the Chair to remove any reference of the Voter ID law from “election materials.” Page ID # 93. At its core, Plaintiffs’ complaint alleges that if the COVID-19 pandemic continues, the existing statutes (including the Voter ID law) will serve to disenfranchise voters in the 2020
1 S.B. 2 is scheduled to go into effect July 1, 2020.
2

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 3 of 13 PageID #: 155
general election in November. To address that, Plaintiffs demand emergency regulations akin to those at issue in Nemes be extended to the general election.
Due to the changing nature of the pandemic, state election officials cannot account in June for what measures will be needed in November. However, the first premise of any election procedure is to ensure the protection of Kentucky’s voters in an election, and public safety is what prompted a bi-partisan effort of state officials to enact emergency regulations for the primary election.
LEGAL STANDARD Plaintiffs seek to impose a mandatory injunction directing state officials to take a course of action, rather than maintaining the status quo, but mandatory injunctions are understandably disfavored. League of Women Voters of N.C. v. N.C., 769 F.3d 224, 236 (4th Cir. 2014). Colloquially speaking, the Chair’s response to Plaintiffs’ demands is, let’s get through the 2020 primary, learn what lessons we can, continue to monitor public health developments and then decide how to approach the 2020 regular election. Plaintiffs have apparently rejected this course. In addition to the pragmatic problems of the Plaintiffs’ complaint, it lacks the ability to invoke this Court’s subject matter jurisdiction. “Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir v. Greater Cleveland Reg. Auth., 895 F.2d 266, 269 (6th Cir.1990) (citing Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986)). “A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may attack the complaint on its face or may go beyond the complaint and challenge the factual existence of subject matter jurisdiction.” Conner v. U.S. Dept. of the Army, 6 F. Supp. 3d 717, 721 (W.D. Ky. 2014).
3

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 4 of 13 PageID #: 156
Also, under Rule 12(b)(6), this Court must dismiss a complaint unless well-plead facts or reasonable inferences from those well-pleaded facts provide grounds for relief. Wells Fargo Fin. Leasing, Inc. v. Griffin, 970 F. Supp. 2d 700, 704 (W.D. Ky. 2013). In assessing these questions, “[i]t is not . . . proper to assume that [the plaintiff] can prove facts that [he or she] has not alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (second alteration in original) (internal quotation marks and citation omitted). To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although this Court must assume the veracity of well-pleaded factual allegations, it is not required to accept legal conclusions when they are “couched as [] factual allegation[s].” Id. at 678-79. At the motion to dismiss stage, in addition to the complaint, this Court may consider any matters appropriate for judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
ARGUMENT I. PLAINTIFFS FAIL TO DEMONSTRATE THEIR CLAIMS ARE FIT FOR
JUDICIAL REVIEW BECAUSE THEY DO NOT HAVE STANDING AND BECAUSE ISSUES RELATING TO THE NOVEMBER ELECTION ARE NOT YET RIPE. A. Plaintiffs do not have standing to assert their claims because they have not
suffered an injury-in-fact. The doctrine of standing arises out of the requirement in Article III of the United States Constitution that federal courts may only address a case or controversy. As such, it is jurisdictional and must be addressed as a threshold matter. Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017). “Standing requires Plaintiffs to show 1) they have suffered an injury-in-fact that was 2) caused by Defendants’ conduct and that 3) this Court can likely redress the injury with a decision for the
4

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 5 of 13 PageID #: 157
Plaintiffs.” Id. at 315-16. The present Plaintiffs bear the burden of proving the three elements of standing as they are the ones who are attempting to avail themselves of this Court’s authority. Shearson v. Holder, 725 F.3d 588, 592 (6th Cir. 2013). “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
In order to satisfy the injury-in-fact requirement, a plaintiff must allege that they “have suffered an injury-in-fact, which is ‘concrete, particularized, and actual or imminent.’” Shearson, 725 F.3d at 592 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). In order to demonstrate that the threat of future harm satisfies the injury-in-fact requirement, the facts must demonstrate that there is a “substantial risk” that the constitutional harm will occur. Clapper, 568 U.S. at 414. With regard to such alleged future injuries, the Supreme Court has made clear that “allegations of possible future injury are not sufficient.” Id. at 409. The Supreme Court also noted that, “A highly attenuated chain of possibilities [ ] does not satisfy the requirement that threatened injury must be certainly impending.” Id. at 410.
Plaintiffs argue their fundamental right to vote will be substantially burdened in the November general election without substantial changes to Kentucky’s absentee ballot and abolishment of the Voter ID law in light of the COVID-19 pandemic. [DN 1, Page ID# 6-10]. Plaintiffs’ argument is that the two voting laws they are challenging are not per se unconstitutional on their own, only that there is a possibility they will become so in five months. [Id., Page ID# 84, 88]. In essence, the Plaintiffs say these laws might be unconstitutionally applied in the future. The basis for this argument is conjectural given the changing and evolving nature of the pandemic.
As Plaintiffs point out in their complaint, “the curve is beginning to flatten” but “‘going in the right direction . . . does not mean we have, by any means, total control over this outbreak[]’. .
5

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 6 of 13 PageID #: 158
. .” [Id. at Page ID# 3]. Plaintiffs are asking the Court to invalidate the current absentee ballot and Voter ID Law due to events that may or may not take place in five months. But “allegations of possible future injury are not sufficient.” Clapper, 568 U.S. at 409. The entirety of Plaintiffs’ constitutional claims hinge on whether the pandemic maintains the same or similar character that it has today, but this is by no means “‘concrete, particularized, and actual or imminent.’” Shearson, 725 F.3d at 592.
Finally, notwithstanding forecasting the pandemic’s growth or diminution over time, Plaintiffs, as well as every other eligible Kentucky voter, can still cast a ballot in the November election under the current laws. There is no abridgement of the right to vote, and as such, no injuryin-fact.
B. The issues are not yet ripe for judicial review. Not only is the future harm with which Plaintiffs are concerned speculative, but the fact that no injury has yet happened indicates that the voting issues described in their complaint are not yet ripe for adjudication. The basic rationale for the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbot Laboratories v. Gardner, 287 U.S. 136, 148-49 (1967). In order to determine whether an issue is ripe for review, courts evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” National Park Hospitality Ass’n v. Dept. of Interior, 538 U.S. 803, 808 (2003) citing Abbot Laboratories, supra.
6

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 7 of 13 PageID #: 159
First, the “fitness” of an issue is not ordinarily considered ripe for judicial review “until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him.” National Park Hospitality Ass’n, 538 U.S. at 808. In this case, regarding the November 2020 election, no action has yet been taken on the part of the state government. Indeed, when considering the actions taken toward the 2020 primary, the SBE and other state officials were and are still acutely aware of the potential dangers of in-person voting during a pandemic, and stand ready to take the same or similar steps to ensure voters have safe access to polling locations early and no-fault absentee ballot procedures.
However, this Court should not be asked to divine the future to redress a potential constitutional crisis. The procedures implemented through the emergency regulation (31 KAR 4:190E) were narrowly tailored to match the state’s needs when it was promulgated and there is every reason to think that will occur again if needed.
There is no hardship on the parties to wait and see not only how the pandemic develops over the coming months, but how the state responds. Plaintiffs should realize the state is fully prepared to take necessary steps in order to ensure the public is safe and the public’s constitutional right to vote in the 2020 general election is ensured by reasonable means.
It is clear that without more facts available as to what the future holds regarding the pandemic and without the state first creating a potential solution to combat any number of those outcomes, the Court cannot be expected to provide Plaintiffs with a satisfactory solution.
II. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE FIRST AND FOURTEENTH AMENDMENTS.
Generally, in a First and Fourteenth Amendment challenge to state voting laws, “[t]he level of scrutiny applied to a state election regulation depends on the burden imposed by the regulation
7

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 8 of 13 PageID #: 160
on the constitutional rights of voters and candidates.” Jolivette v. Husted, 694 F.3d 760, 767 (6th Cir. 2012) citing Burdick v. Takushi, 504 U.S. 428, 434 (1992). “Strict scrutiny is the standard for cases where ‘the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote.’” Mays v. LaRose, 951 F.3d 775, 786 (6th Cir. 2020). However, courts apply a lesser standard of review using the Anderson-Burdick analysis, which states, “[w]hen States impose reasonable nondiscriminatory restrictions on the right to vote, courts apply rational basis review and the State's important regulatory interests are generally sufficient to justify the restrictions.” Mays, 951 F.3d at 784 (internal quotation marks omitted) citing Burdick v. Takushi, 504 U.S. 428 (1992) and Anderson v. Celebrezze, 460 U.S. 780 (1983).
A. Plaintiffs’ challenge to Kentucky’s Voter ID Law fails because Plaintiff cannot show discriminatory intent.
“[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact…Proof of racially discriminatory intent or purpose is required to show a violation,” although that purpose need only be “a motivating factor in the decision.” Lee v. Virginia State Board of Elections, 843 F.3d 592, 603 (4th Cir. 2016) (emphasis preserved), see also Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 636 (6th Cir. 2016) (adopting the same standard). In Lee, the court was asked to rule on the constitutionality of Virginia’s voter ID law, which the plaintiffs alleged unduly burdened their right to vote and imposed “discriminatory burdens on African Americans and Latinos, and was enacted with the intent to discriminate against minorities, young voters, and Democrats.” Id. at 594. The court, however, found no discriminatory intent in the law, even though there was a substantial party split in enacting the legislation. Id. at 603. This is because the statute allowed a broad scope of acceptable identification. Id.
8

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 9 of 13 PageID #: 161
Here, Plaintiffs have also presented no such proof of discriminatory intent. As in Lee, Kentucky voters – under non-pandemic conditions – who do not have proof of identification will still vote if that person is eligible, entitled to vote in that precinct, and executes an oath of voter form. S.B. 2 § 1(1)(c).
The Voter ID Law is similar to other laws found throughout the country, as seen in Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018). There, the court found no discrimination on the basis of race in relation to a voter identification law because nearly the entire voting population already had an acceptable identification. Id. at 1274. Moreover, the law did not prevent anyone from voting because they could obtain a voter identification in every county free of charge without showing a birth certificate and by signing a voter registration form, under oath, in front of an election official. Id. at 1279.
While voter identification laws do impose some burden on the right to vote, they do not function as a complete bar to reaching the polls. See, Mays, 951 F.3d at 786 (on the criteria for applying strict scrutiny to voting laws under the First and Fourteenth Amendments). Thus, the lesser intermediate standard in Anderson-Burdick applies in this case. In Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), the Court upheld an Indiana voter identification law on the basis that the record failed to show the law imposed “’excessively burdensome requirements’ on any class of voters.” Id. at 202. Instead, the voter identification law applied to all Indiana voters and was shown to fulfill the important government interest of deterring and detecting voter fraud, participating in a nationwide effort to improve and modernize election procedures, and safeguarding voter confidence. Id. at 202-03.
The same holds true here. The Voter ID Law applies to all Kentucky voters, regardless of race, and Plaintiffs have only presented bare assertions that the law will function to disadvantage
9

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 10 of 13 PageID #: 162
one class of individual over another. Moreover, the new law functions to protect the important government interest of deterring voter fraud.
In light of the foregoing case law and analysis, Plaintiffs have failed in their burden of showing S.B. 2 is a violation of Kentucky voters’ First and Fourteenth Amendment Rights.
B. Plaintiffs’ assertion that they will have no means of voting in the 2020 general election without an immediate revision to the Kentucky absentee ballot statute is unfounded and speculative.
Plaintiffs argue that they will be disenfranchised from voting in the 2020 general election, without the same no-fault absentee ballot allowed in the 2020 primary. Without resorting to a complete reiteration of the arguments above, neither the Plaintiffs, nor the Court, nor the state officials named in this action know how the pandemic will progress by the time of the general election in November. The emergency voting procedures enacted under 31 KAR 4:190E were narrowly tailored to match the current, rapidly deteriorating state of the pandemic. The Plaintiffs’ request that this Court dictate to Kentucky about how it should conduct its elections and without any input from state officials in Kentucky.
The Plaintiffs and every eligible resident of Kentucky have the right to vote in person in the 2020 general election in November, and it is well-settled that “there is no constitutional right to an absentee ballot.” Mays, 951 F.3d at 792. The Sixth Circuit has found absentee ballot laws, similar to what is prescribed in Kentucky’s statutes,2 did not show discriminatory intent and, thus, did not contain constitutional violations. See Husted, 837 F.3d at 619, 636-37 (in which the court found that the Ohio General Assembly did not act with “racial animus” in enacting an Ohio law for absentee ballots requiring applicants to provide a name, signature, address, date of birth, and a form of identification in the application in order to receive an absentee ballot).
2 KRS 117.077 and 117.085.
10

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 11 of 13 PageID #: 163
Thus, without knowing the progression and spread of COVID-19, which may indeed necessitate a reevaluation of absentee voting in the November general election, the absentee ballot statute is constitutional.
III. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST THE CHAIR In an attempt to enjoin the SBE from implementing S.B. 2 and following KRS 117.077 and
117.085 in the November 2020 general election, Plaintiffs named Albert Benjamin Chandler, III in his official capacity as a Chairman of the Kentucky State Board of Elections. [DN 1, Page ID# 27] Plaintiffs did not name any of the remaining eight members that make up the Board of Elections, nor did it name the board. Plaintiffs’ claim against the Chair cannot survive because even if the Court did grant an injunction against the Chair, he alone cannot provide Plaintiffs with the relief requested because the Chair is but one vote of nine on the State Board of Elections. If the Court were to mandatorily enjoin the Chair and direct him not to comply with the provisions of the Voter ID Law, and KRS 117.077 and 117.085, he could still be out voted by his colleagues.
Accordingly, the claims against the Chair should be dismissed because he, alone, cannot accord Plaintiffs the relief they are requesting.
IV. COMPLAINT PRESENTS A NON-JUSTICIABLE POLITICAL QUESTION A case should be dismissed because it presents a non-justiciable political question if the
Court reviewing the action lacks “judicially discoverable and manageable standards for resolving [the issues in the complaint].” Rucho v. Common Cause, ___ U.S. ___, 139 S.Ct. 2484, 2493 (2019). This complaint tells the Court to dictate to Kentucky how it is to conduct its election in November 2020, not on the basis of what is occurring now, but what the Plaintiffs predict will occur in the future. The Plaintiffs’ efforts in this regard fail to provide the Court with judicially discoverable and manageable standards for resolving the complaint in that it demands the Court to
11

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 12 of 13 PageID #: 164

not only abridge the Election Clause of the Constitution3 but the Plaintiffs attempt to tell the Court

to do this based entirely upon guesswork – those are not discoverable or manageable standards.

The general premise is that a “State indisputably has a compelling interest in preserving the

integrity of its election process.” Eu v. San Francisco County Democratic Central Comm., 489

U.S. 214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). In furtherance of this principle, the federal

judiciary defers to the state’s rights under the Election Clause to “enact reasonable regulations of

parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 358 (1997); see also Storer v. Brown, 415 U.S. 724, 730

(1974).

The Chair requests the Court adhere to this maxim and let the state and local officials

exercise their knowledge and experience to develop a process for the 2020 general election, rather

than substituting a plan of its design, dictating how Kentucky should operate this election. Case

3:20-cv-00407-CRS Document 49 Filed 06/18/20 Page 15 of 33 Page ID #: 790

CONCLUSION

The foregoing analysis shows Plaintiffs have not met their burden in this case and the action

should be dismissed.

Respectfully submitted,

Taylor Austin Brown General Counsel State Board of Elections 140 Walnut Street Frankfort, Kentucky 40601 (502) 782-9499 TaylorA.Brown@ky.gov

Daniel Luke Morgan McBrayer PLLC 201 E. Main St., Suite 900 Lexington, KY 40507 859-231-8780 Lmorgan@mcbrayerfirm.com

By: /s/Daniel Luke Morgan Daniel Luke Morgan ATTORNEYS FOR ALBERT BENJAMIN CHANDLER, III

3 Article I §2.
12

Case 3:20-cv-00375-CRS Document 19 Filed 06/19/20 Page 13 of 13 PageID #: 165 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of this Opposition was served via the Court’s CMECF system this the 19th day of June, 2020.
4829-4084-8064, v. 2
13

Case 3:20-cv-00375-CRS Document 19-1 Filed 06/19/20 Page 1 of 1 PageID #: 166

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

Case No. 3:20-cv-00375-CRS

MICHAEL COLLINS, et al.

:

ORDER

v.

:

MICHAEL ADAMS, et al.

:

Upon motion by Albert Benjamin Chandler, III, and the Court being otherwise sufficiently advised, the present action is DISMISSED pursuant to CR 12.

4842-0144-8640, v. 1

1

 
 Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 1 of 35 PageID #: 167

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MICHAEL COLLINS, et al.,
Plaintiffs,
v.
MICHAEL ADAMS, in his official capacity as the Secretary of State of Kentucky; et al.,
Defendants.

Civil Action No. 3:20-cv-00375-CJS

ANSWER OF MICHAEL ADAMS, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF STATE OF KENTUCKY
INTRODUCTION
Defendant Michael Adams, in his official capacity as the Secretary of State of Kentucky (hereinafter “Secretary Adams”), by and through counsel, hereby files his Answer to the Complaint of Plaintiffs Michael Collins, Jeffrey Cosby, Thela Elliott, Gracie Lewis, DeJuan Nash, Tiffany Price, League of Women Voters of Kentucky (LWVKY), Louisville Urban League (LUL), and Kentucky Conference of NAACP Branches (collectively “Plaintiffs”). 1. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations contained in paragraph 1 of the Complaint, and he therefore denies the same.

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 2 of 35 PageID #: 168
2. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint, and he therefore denies the same.
3. With regard to the allegations set forth in paragraph 3 of the Complaint, Secretary Adams admits that Kentucky officials took steps to protect Kentuckians’ right to vote safely in the June 23 primary election. Secretary Adams denies that Kentucky’s voting laws are “extremely restrictive.”1 Secretary Adams also denies the allegation that Kentucky officials “declined to take similar steps to safeguard the November 3, 2020 election.”2
4. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 4 of the Complaint, and he therefore denies the same.
5. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 5 of the Complaint, and he therefore denies the same.
6. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 6 of the Complaint, and he therefore denies the same.
7. Secretary Adams denies the allegations set forth in the first sentence of paragraph 7 of the Complaint. Secretary Adams admits the allegations set forth in the second sentence of paragraph 7. Secretary Adams denies the allegation set forth in the third sentence of paragraph. The allegations set forth in the remainder of paragraph 7 call for legal
1 Compl. ¶ 3. 2 Ibid.
2

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 3 of 35 PageID #: 169
conclusions to which no response is required. To the extent a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 8. Secretary Adams denies the allegations set forth in the first sentence of paragraph 8 of the Complaint. The allegations set forth in the remainder of paragraph 8 call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 9. Secretary Adams denies the allegations set forth in paragraph 9 of the Complaint. 10. The allegations set forth in paragraph 10 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein. 11. Secretary Adams denies the allegations set forth in the first sentence of paragraph 11 of the Complaint. Secretary Adams admits the allegations set forth in the remainder in paragraph 11 of the Complaint. 12. Secretary Adams denies the allegations set forth in paragraph 12 of the Complaint. 13. The allegations set forth in paragraph 13 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it. . 14. Secretary Adams denies the allegations set forth in paragraph 14 of the Complaint. 15. Secretary Adams denies the allegations set forth in paragraph 15 of the Complaint. 16. Secretary Adams denies the allegations set forth in the second sentence of paragraph 16 of the Complaint. As to the allegations set forth in the remainder of paragraph 16, Secretary
3

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 4 of 35 PageID #: 170
Adams admits only that Plaintiffs bring this action under the First and Fourteenth Amendments of the U.S. Constitution. 17. Secretary Adams denies the allegations set forth in paragraph 17 of the Complaint. 18. Secretary Adams denies the allegations contained in the first three sentences of paragraph 18 of the Complaint. Secretary Adams admits the allegations set forth in the last sentence of paragraph 18. 19. Secretary Adams denies the allegations set forth in paragraph 19 of the Complaint.
JURISDICTION AND VENUE 20. With regard to the allegations set forth in paragraph 20 of the Complaint, Secretary Adams
admits only that Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 and denies anything further. 21. The allegations set forth in paragraph 21 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein. 22. The allegations set forth in paragraph 22 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein. 23. The allegations set forth in paragraph 23 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein. 24. The allegations set forth in paragraph 24 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein.
4

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 5 of 35 PageID #: 171
25. The allegations set forth in paragraph 25 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Secretary Adams denies the allegations therein. PARTIES
I. Plaintiffs A. Michael Collins
26. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 26 of the Complaint and therefore denies the same.
27. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 27 of the Complaint and therefore denies the same.
28. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 28 of the Complaint and therefore denies the same.
29. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 29 of the Complaint and therefore denies the same. B. Jeffrey Cosby
30. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 30 of the Complaint and therefore denies the same.
5

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 6 of 35 PageID #: 172
31. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 31 of the Complaint and therefore denies the same.
32. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 32 of the Complaint and therefore denies the same.
33. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 33 of the Complaint and therefore denies the same.
34. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 34 of the Complaint and therefore denies the same. C. Thela Elliott
35. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 35 of the Complaint and therefore denies the same.
36. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 36 of the Complaint and therefore denies the same.
37. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 37 of the Complaint and therefore denies the same.
6

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 7 of 35 PageID #: 173
38. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 38 of the Complaint and therefore denies the same.
39. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 39 of the Complaint and therefore denies the same. D. Gracie Lewis
40. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 40 of the Complaint and therefore denies the same.
41. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 41 of the Complaint and therefore denies the same.
42. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 42 of the Complaint and therefore denies the same.
43. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 43 of the Complaint and therefore denies the same. E. DeJuan Nash
44. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 44 of the Complaint and therefore denies the same.
7

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 8 of 35 PageID #: 174
45. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 45 of the Complaint and therefore denies the same.
46. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 46 of the Complaint and therefore denies the same.
47. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 47 of the Complaint and therefore denies the same. F. Tiffany Price
48. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 48 of the Complaint and therefore denies the same.
49. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 49 of the Complaint and therefore denies the same.
50. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 50 of the Complaint and therefore denies the same.
51. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 51 of the Complaint and therefore denies the same.
8

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 9 of 35 PageID #: 175
52. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 52 of the Complaint and therefore denies the same. G. League of Women Voters of Kentucky
53. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 53 of the Complaint and therefore denies the same.
54. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 54 of the Complaint and therefore denies the same.
55. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 55 of the Complaint and therefore denies the same.
56. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the first sentence of paragraph 56 of the Complaint and therefore denies the same. Secretary Adams denies the allegations set forth in the remainder of paragraph 56 of the Complaint.
57. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 57 of the Complaint and therefore denies the same.
58. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 58 of the Complaint and therefore denies the same.
9

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 10 of 35 PageID #: 176
59. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 59 of the Complaint and therefore denies the same.
60. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 60 of the Complaint and therefore denies the same.
61. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 61 of the Complaint and therefore denies the same. H. Louisville Urban League
62. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 62 of the Complaint and therefore denies the same.
63. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 63 of the Complaint and therefore denies the same.
64. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 64 of the Complaint and therefore denies the same.
65. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 65 of the Complaint and therefore denies the same.
10

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 11 of 35 PageID #: 177
66. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 66 of the Complaint and therefore denies the same.
67. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 67 of the Complaint and therefore denies the same.
68. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 68 of the Complaint and therefore denies the same.
I. The Kentucky Conference of NAACP Branches 69. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 69 of the Complaint and therefore denies the same. 70. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 70 of the Complaint and therefore denies the same. 71. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the first three sentences of paragraph 71 of the Complaint and therefore denies the same. 72. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 72 of the Complaint and therefore denies the same.
11

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 12 of 35 PageID #: 178
73. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 73 of the Complaint and therefore denies the same.
74. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 74 of the Complaint and therefore denies the same.
75. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 75 of the Complaint and therefore denies the same.
76. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 76 of the Complaint and therefore denies the same.
II. Defendants A. Secretary of State Michael Adams
77. Secretary Adams admits the allegations set forth in paragraph 77 of the Complaint. 78. Secretary Adams admits the allegations set forth in paragraph 78 of the Complaint. 79. The allegations set forth in paragraph 79 of the Complaint call for legal conclusions to
which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 80. The allegations set forth in paragraph 80 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
12

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 13 of 35 PageID #: 179
81. The allegations set forth in paragraph 81 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
B. Governor Andrew Beshear 82. Secretary Adams admits the allegations set forth in paragraph 82 of the Complaint. 83. The allegations set forth in paragraph 83 of the Complaint call for legal conclusions to
which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 84. The allegations set forth in paragraph 84 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 85. The allegations set forth in paragraph 85 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. C. Chairman Albert Benjamin Chandler, III 86. Secretary Adams admits the allegations set forth in paragraph 86 of the Complaint. 87. The allegations set forth in paragraph 87 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 88. The allegations set forth in paragraph 88 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
13

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 14 of 35 PageID #: 180
89. The allegations set forth in paragraph 89 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. FACTUAL ALLEGATIONS
A. Public Health Impact of COVID-19 90. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 90 of the Complaint and therefore denies the same. 91. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 91 of the Complaint and therefore denies the same. 92. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 92 of the Complaint and therefore denies the same. 93. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 93 of the Complaint and therefore denies the same. 94. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 94 of the Complaint and therefore denies the same. 95. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 95 of the Complaint and therefore denies the same.
14

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 15 of 35 PageID #: 181
96. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 96 of the Complaint and therefore denies the same.
97. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 97 of the Complaint and therefore denies the same.
98. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 98 of the Complaint and therefore denies the same.
99. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 99 of the Complaint and therefore denies the same.
100. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 100 of the Complaint and therefore denies the same.
101. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 101 of the Complaint and therefore denies the same.
B. COVID-19 in Kentucky 102. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 102 of the Complaint and therefore denies the same.
15

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 16 of 35 PageID #: 182
103. Any of Governor Beshear’s executive orders or statements speak for themselves and no response to the allegations of paragraph 103 of the Complaint is required. To the extent a response is required for the allegations in paragraph 103, Secretary Adams denies the same.
104. Secretary Adams denies the allegations set forth in the first sentence of paragraph 104 of the Complaint. Secretary Adams admits the allegations set forth in the remainder of paragraph 104.
105. Any of Governor Beshear’s executive orders or statements speak for themselves and no response is required to the allegations of paragraph 105 of the Complaint. To the extent a response is required for the allegations set forth in paragraph 105, Secretary Adams denies the same.
106. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 106 of the Complaint and therefore denies the same.
107. Secretary Adams admits the allegations set forth in the first and second sentences of paragraph 107 of the Complaint. Secretary Adams denies the allegations set forth in the last sentence of paragraph 107.
108. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 108 of the Complaint and therefore denies the same.
109. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 109 of the Complaint and therefore denies the same.
16

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 17 of 35 PageID #: 183
110. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 110 of the Complaint and therefore denies the same.
111. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 111 of the Complaint and therefore denies the same.
C. Health Risks of In-Person Voting During a Pandemic 112. Secretary Adams denies the allegations set forth in paragraph 112 of the Complaint. 113. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 113 of the Complaint and therefore denies the same. 114. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 114 of the Complaint and therefore denies the same. 115. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 115 of the Complaint and therefore denies the same. 116. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 116 of the Complaint and therefore denies the same. 117. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 117 of the Complaint and therefore denies the same.
17

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 18 of 35 PageID #: 184
118. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 118 of the Complaint and therefore denies the same.
119. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 119 of the Complaint and therefore denies the same.
120. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 120 of the Complaint and therefore denies the same.
121. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 121 of the Complaint and therefore denies the same. i. Voters with Underlying Medical Conditions
122. Secretary Adams denies the allegations set forth in paragraph 122 of the Complaint. 123. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 123 of the Complaint and therefore denies the same. 124. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 124 of the Complaint and therefore denies the same. 125. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 125 of the Complaint and therefore denies the same.
18

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 19 of 35 PageID #: 185
126. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 126 of the Complaint and therefore denies the same.
127. Secretary Adams denies the allegations set forth in paragraph 127 of the Complaint. ii. Black Voters
128. Secretary Adams denies the allegations set forth in paragraph 128 of the Complaint. 129. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 129 of the Complaint, and he therefore denies the same. 130. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 130 of the Complaint and therefore denies the same. 131. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 131 of the Complaint and therefore denies the same. 132. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 132 of the Complaint and therefore denies the same. 133. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 133 of the Complaint and therefore denies the same.
19

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 20 of 35 PageID #: 186
134. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 134 of the Complaint and therefore denies the same.
135. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 135 of the Complaint and therefore denies the same.
136. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 136 of the Complaint and therefore denies the same.
137. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 137 of the Complaint and therefore denies the same.
138. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 138 of the Complaint and therefore denies the same. iii. Older Voters
139. Secretary Adams denies the allegations set forth in paragraph 139 of the Complaint. 140. The allegations in the remainder of paragraph 140 of the Complaint call for legal
conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
20

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 21 of 35 PageID #: 187
141. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 141 of the Complaint and therefore denies the same.
142. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 142 of the Complaint and therefore denies the same.
143. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 143 of the Complaint and therefore denies the same.
144. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 144 of the Complaint and therefore denies the same.
145. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 145 of the Complaint and therefore denies the same.
146. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 146 of the Complaint and therefore denies the same.
147. Secretary Adams denies the allegations set forth in paragraph 147 of the Complaint. iv. Voters with Disabilities
148. Secretary Adams denies the allegations set forth in paragraph 148 of the Complaint.
21

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 22 of 35 PageID #: 188
149. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 149 of the Complaint and therefore denies the same.
150. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 150 of the Complaint and therefore denies the same.
151. Secretary Adams admits the allegations set forth in the first sentence of paragraph 151 of the Complaint. Secretary Adams denies the allegations set forth in the remainder of paragraph 151.
152. Secretary Adams denies the allegations set forth in paragraph 152 of the Complaint. 153. Secretary Adams denies the allegations set forth in paragraph 153 of the Complaint. II. Kentucky’s Current Election Laws Unduly and Unreasonably Burden the Voting Rights of Kentuckians.
A. Kentucky Election Law i. Excuse requirement to Vote by Mail-In Absentee Ballot
154. The allegations in paragraph 154 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
155. The allegations in paragraph 155 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
156. Secretary Adams denies the allegations set forth in paragraph 156 of the Complaint.
22

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 23 of 35 PageID #: 189
157. The allegations in paragraph 157 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
158. The allegations in paragraph 158 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. ii. Photo ID Law
159. The allegations in paragraph 159 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
160. The allegations in paragraph 160 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
161. The allegations in paragraph 161 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
162. The allegations in paragraph 162 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
163. The allegations in paragraph 163 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
23

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 24 of 35 PageID #: 190
164. The allegations in paragraph 164 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
165. The allegations in paragraph 165 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
166. The allegations in paragraph 166 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
167. The allegations in paragraph 167 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
168. The allegations in paragraph 168 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it. iii. Modification for Primary Election
169. Secretary Adams denies the allegation set forth in the first sentence of paragraph 169 of the Complaint that Kentucky officials “enacted” modifications for the June 23 primary election. The allegations set forth in the remainder of paragraph 169 call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
24

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 25 of 35 PageID #: 191
170. The allegations set forth in paragraph 170 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
171. The allegations set forth in paragraph 171 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required Kentucky law speaks for itself, and Secretary Adams denies any allegations inconsistent with it.
172. The allegations set forth in paragraph 172 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
173. The allegations set forth in paragraph 173 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
174. The allegations set forth in paragraph 174 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
175. The allegations set forth in paragraph 175 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
176. The allegations set forth in paragraph 176 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
25

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 26 of 35 PageID #: 192
177. The allegations set forth in paragraph 177 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. B. Unreasonable Burden Imposed by the Excuse Requirement
178. The allegations set forth in the first two sentences of paragraph 178 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the other allegations set forth in paragraph 178 and therefore denies the same.
179. Secretary Adams admits the allegations set forth in paragraph 179 of the Complaint. 180. Secretary Adams is without sufficient knowledge or information to form a belief as to the
truth of the allegations set forth in paragraph 180 of the Complaint and therefore denies the same. 181. The allegations in paragraph 181 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 182. The allegations in paragraph 182 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. 183. The allegations in paragraph 183 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
26

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 27 of 35 PageID #: 193
184. Secretary Adams denies the allegations set forth in paragraph 184 of the Complaint insofar as Defendants have not made any construction of “illness” or “medical emergency,” one way or the other for purposes of the November 3, 2020 election.
185. Secretary Adams denies the allegations set forth in paragraph 185 of the Complaint. 186. The allegations in paragraph 186 of the Complaint call for legal conclusions to which no
response is required. To the extent that a response is required, the laws of Kentucky and other states speak for themselves and Secretary Adams denies any allegations inconsistent with them. 187. Secretary Adams denies the allegations set forth in paragraph 187 of the Complaint. 188. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 188 of the Complaint and therefore denies the same. 189. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 189 of the Complaint and therefore denies the same. 190. Secretary Adams denies the allegations set forth in paragraph 190 of the Complaint. 191. Secretary Adams denies the allegations set forth in paragraph 191 of the Complaint. 192. Secretary Adams denies the allegations set forth in paragraph 192 of the Complaint. 193. The allegations in paragraph 193 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. C. Unreasonable Burden Imposed by Photo ID Law
i. S.B. 2 Constructively Denies Many Kentuckians the Right to Vote.
27

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 28 of 35 PageID #: 194
194. The allegations in paragraph 194 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
195. The allegations in the first sentence of paragraph 195 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Crawford v. Marion Cty. Election Board speaks for itself and Secretary Adams denies any allegations inconsistent with it. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the second sentence of paragraph 195 and therefore denies the same.
196. The allegations set forth in the first sentence of paragraph 196 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it. Secretary Adams denies the allegations set forth in the last sentence of paragraph 196 of the Complaint.
197. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 197 of the Complaint and therefore denies the same.
198. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 198 of the Complaint and therefore denies the same.
199. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 199 of the Complaint and therefore denies the same.
28

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 29 of 35 PageID #: 195
200. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 200 of the Complaint and therefore denies the same.
201. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 201 of the Complaint and therefore denies the same.
202. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 202 of the Complaint and therefore denies the same.
203. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 203 of the Complaint and therefore denies the same.
204. Secretary Adams denies the allegations set forth in the first sentence of paragraph 204 of the Complaint. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the third sentence of paragraph 203 and therefore denies the same. The allegations set forth in the remainder of paragraph 204 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself and Secretary Adams denies any allegations inconsistent with it.
205. The allegations in paragraph 205 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
206. Secretary Adams denies the allegations set forth in paragraph 206 of the Complaint.
29

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 30 of 35 PageID #: 196
207. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the first sentence of paragraph 207 of the Complaint. Secretary Adams denies any allegations set forth in the remainder of paragraph 207.
208. The allegations in the first sentence of paragraph 208 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the remainder of paragraph 208 of the Complaint and therefore denies the same.
209. The allegations in paragraph 209 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
210. Secretary Adams denies the allegations set forth in the first sentence of paragraph 210 of the Complaint. Secretary Adams denies the characterization of his remarks and views in the remaining allegations set forth in paragraph 210.
211. The allegations set forth in paragraph 211 of the Complaint call for legal conclusions, so Secretary Adams is not required to respond, but to the extent that a response is required, he denies the allegations contained therein.
212. The allegations in paragraph 212 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
30

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 31 of 35 PageID #: 197
213. The allegations in paragraph 213 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it.
214. The allegations in paragraph 214 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself and Secretary Adams denies any allegations inconsistent with it. CLAIMS FOR RELIEF Count 1
215. No response is required for the allegations set forth in paragraph 215 of the Complaint. 216. The allegations set forth in paragraph 216 of the Complaint call for legal conclusions to
which no response is required. To the extent that a response is required, Kentucky and federal law speak for themselves, and Secretary Adams denies any allegations inconsistent with them. 217. The allegations set forth in paragraph 217 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself, and Secretary Adams denies any allegations inconsistent with it. 218. The allegations set forth in paragraph 218 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky and federal law speak for themselves, and Secretary Adams denies any allegations inconsistent with them. 219. Secretary Adams is without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in paragraph 219 of the Complaint.
31

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 32 of 35 PageID #: 198
220. The allegations set forth in paragraph 220 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky law speaks for itself, and Secretary Adams denies any allegations inconsistent with it.
221. The allegations in paragraph 221 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, Kentucky and federal law speak for themselves and Secretary Adams denies any allegations inconsistent with them.
222. The allegations set forth in paragraph 222 of the Complaint call for legal conclusions to which no response is required.
223. The allegations set forth in paragraph 223 of the Complaint call for legal conclusions to which no response is required.
224. The allegations set forth in paragraph 224 of the Complaint call for legal conclusions to which no response is required. Count 2
225. No response is required for the allegations set forth in paragraph 225 of the Complaint. 226. The allegations set forth in paragraph 226 of the Complaint call for legal conclusions to
which no response is required. 227. The allegations set forth in paragraph 227 of the Complaint call for legal conclusions to
which no response is required. To the extent that a response is required, S.B. 2 speaks for itself, and Secretary Adams denies any allegations inconsistent with it. 228. The allegations set forth in paragraph 228 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself, and Secretary Adams denies any allegations inconsistent with it.
32

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 33 of 35 PageID #: 199
229. The allegations set forth in paragraph 229 of the Complaint call for legal conclusions to which no response is required.
230. The allegations set forth in paragraph 230 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself, and Secretary Adams denies any allegations inconsistent with it.
231. The allegations set forth in paragraph 231 of the Complaint call for legal conclusions to which no response is required.
232. The allegations set forth in paragraph 232 of the Complaint call for legal conclusions to which no response is required.
233. The allegations set forth in paragraph 233 of the Complaint call for legal conclusions to which no response is required. To the extent that a response is required, S.B. 2 speaks for itself, and Secretary Adams denies any allegations inconsistent with it.
234. Secretary Adams denies the allegations set forth in paragraph 234 of the Complaint. 235. Secretary Adams denies the allegations set forth in paragraph 235 of the Complaint.
AFFIRMATIVE DEFENSES 236. All allegations in the Complaint that are not expressly admitted are denied. 237. The Complaint fails to state a claim for which relief can be granted. 238. The issues brought forth by Plaintiffs constitute political questions and are therefore
nonjusticiable because the Judicial power of the United States does not extend to political questions. 239. Plaintiffs failed to join parties that are necessary and indispensable to the resolution of this suit, and are therefore in violation of Federal Rule of Civil Procedure 19. 240. Plaintiffs’ Complaint seeks relief that would violate federal and state law.
33

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 34 of 35 PageID #: 200
241. Plaintiffs lack standing to assert the claims contained in the Complaint and consequently the Court lacks jurisdiction to grant the relief they seek;
242. Secretary Adams reserves the right to amend his Answer and to assert additional affirmative defenses. PRAYER FOR RELIEF
WHEREFORE, by reason of the foregoing, Defendant Michael Adams hereby respectfully requests that the Court enter judgment in his favor and the following relief, that:
1. The court declare that the Kentucky Secretary of State may make recommendations regarding elections during a state of emergency at his sole discretion pursuant to his powers under the Kentucky Constitution and Kentucky Revised Statutes;
2. The Complaint be dismissed and held for naught; 3. Secretary Adams recover his costs, expenses, and reasonable attorney fees incurred herein;
and 4. Secretary Adams receive any and all other relief to which he may be entitled.
Respectfully Submitted,
/s/ Michael R. Wilson Michael G. Adams (sos.secretary@ky.gov) Michael R. Wilson (michael.wilson@ky.gov) Office of the Secretary of State 700 Capital Avenue State Capitol, Suite 152 Frankfort, KY 40601 (502) 782-7422 Counsel for Michael Adams, in his official capacity as the Secretary of State of Kentucky
34

Case 3:20-cv-00375-CRS Document 20 Filed 06/29/20 Page 35 of 35 PageID #: 201 CERTIFICATE OF SERVICE
It is hereby certified by undersigned counsel that the foregoing was filed on this 29th day of June, 2020 through the federal Case Management Electronic Case Filing (CM/ECF) system, which will generate a notice of electronic filing (NEF) to all users who have registered in this action; and a true and correct copy was hand-delivered to the following: Hon. Andrew Beshear In his official capacity as the Governor of Kentucky Office of the Governor 700 Capital Avenue, Suite 100 Frankfort, KY 40601
/s/ Michael R. Wilson
35

 
 Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 1 of 56 PageID #: 248

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MICHAEL COLLINS, JEFFREY COSBY, THELA ELLIOTT, GRACIE LEWIS, DEJUAN NASH, TIFFANY PRICE, LEAGUE OF WOMEN VOTERS OF KENTUCKY, LOUISVILLE URBAN LEAGUE, and KENTUCKY CONFERENCE OF NAACP BRANCHES,
Plaintiffs,
v.
MICHAEL ADAMS, in his official capacity as the Secretary of State of Kentucky; ANDREW BESHEAR, in his official capacity as the Governor of Kentucky; and ALBERT BENJAMIN CHANDLER, III, in his official capacity as the Chairman of the Kentucky Board of Elections,
Defendants.

Civil Case No. 3:20-CV-375-CRS

MOTION FOR PRELIMINARY INJUNCTION

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 2 of 56 PageID #: 249
TABLE OF CONTENTS Factual Background
I. The COVID-19 Pandemic................................................................................................... 3 A. Global/National Impact........................................................................................... 3 B. Kentucky Impact ..................................................................................................... 6 C. Risks for Especially Vulnerable Kentuckians......................................................... 8
II. The Challenged Requirements: Kentucky’s Election Law Regime ................................. 10 A. The Excuse Requirement ...................................................................................... 10 B. The Photo ID Law................................................................................................. 10 C. Modifications for the June Primary Election ........................................................ 12
III. Health Risks of Voting in Person During COVID-19: Lessons from the June Primary.............................................................................................................................. 13 A. The June Primary Demonstrates the Health Risks of In-Person Voting............... 14 B. The June Primary Demonstrates the Need for Expanded Mail-In Absentee Voting ................................................................................................................... 18 C. Primary Elections in Other States Reinforce the Same Lessons Regarding the Health Risks of In-Person Voting ................................................................... 20 ARGUMENT
I. Legal Standard .................................................................................................................. 21 A. The Four-Part Test for a Preliminary Injunction .................................................. 21 B. The Anderson-Burdick Test Governing Restraints on Voting Rights .................. 22
II. The First and Fourteenth Amendments Require Elimination of the Excuse Requirement During the Pendency of the COVID-19 Pandemic ..................................... 25 A. Plaintiffs Are Likely To Prevail on the Merits Because the Excuse Requirement Threatens Voters’ Health and Safety During the COVID-19 Pandemic............................................................................................................... 25 1. The Excuse Requirement Imposes an Extremely Heavy Burden on the Right to Vote During the Pandemic .................................................... 25

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 3 of 56 PageID #: 250
2. The State’s Interests Do Not Outweigh the Extremely Heavy Burden on Plaintiffs’ Right To Vote......................................................... 28
B. Plaintiffs Will Suffer Irreparable Injury If the Excuse Requirement Is Not Enjoined ................................................................................................................ 30
1. Individual Kentucky Voters Will Suffer Irreparable Injury By Being Forced To Choose Between their Health and their Right to Vote........................................................................................................... 30
2. Voting Rights Organizations Will Suffer Irreparable Injury Diverting Resources To Contend With the Challenged Restrictions........ 31
C. The Balance of Equities and Public Interest Favor an Injunction During the Pandemic ......................................................................................................... 33
III. The First and Fourteenth Amendments Prohibit Implementation of the Photo ID Law During the Pendency of the COVID-19 Pandemic................................................... 34
A. Plaintiffs Are Likely to Succeed on the Merits Because Implementation of the Photo ID Law Threatens Voters’ Health and Safety During the COVID-19 Pandemic............................................................................................ 34
1. Implementation of the Photo ID Requirement During the Pandemic Imposes a Substantial Burden on Voters .................................................. 34
1. The State’s Interests in Implementing the Photo ID Law During the Pandemic Do Not Outweigh the Substantial Burdens on Plaintiffs ......... 37
2. Plaintiffs Will Suffer Irreparable Injury During the Pandemic If the Photo ID Law Is Not Enjoined.................................................................. 39
B. The Balance of Equities and Public Interest Weigh in Favor of Plaintiffs During the Pandemic............................................................................................. 40
II. The First And Fourteenth Amendments Require Kentucky To Provide Voters in the November General Election with the Three Voting Protections Provided for the June Primary ............................................................................................................... 41
A. Plaintiffs Will Likely Succeed in Demonstrating that Failure to Implement the June Signature Match Protections Unduly Burdens the Right to Vote and Violates Voters’ Due Process Rights ............................................................. 41
1. Plaintiffs Will Likely Establish that the Failure to Extend the June Signature Match Protections to the November Election Cannot Survive Under Anderson-Burdick............................................................. 42

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 4 of 56 PageID #: 251
2. Failure to Implement Signature Match Notice and Cure Protections for the November Election Violates Voters’ Fourteenth Amendment Procedural Due Process Rights ............................................ 42
B. Failure to Waive the Notarization Requirement in November Unduly Burdens the Right to Vote..................................................................................... 44
C. Failure to Accept Mail-In Absentee Ballots Postmarked by Election Day Unduly Burdens the Right to Vote During the Pandemic..................................... 46
D. Plaintiffs Will Suffer Imminent Irreparable Injury During the Pandemic If the June Voting Protections Are Not Maintained for the November Election ................................................................................................................. 48
E. The Balance of Equities and Public Interest Favor Maintaining the Three June Voting Protections for the November General Election............................... 49

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 5 of 56 PageID #: 252
INTRODUCTION The recent increase in the number of reported cases of COVID-19 in the United States confirms a sobering fact: the virus is not going away anytime soon. There is no factual basis to think that it will vanish by November. Nor is there any realistic prospect of a vaccine or herd immunity by that date. The question here is straightforward: can Kentucky force voters to choose between their right to vote and their health? Without the relief sought by Plaintiffs expanding the ability of Kentuckians to vote by mail, it is highly unlikely that even many of those Kentuckians who choose to vote in person in November will be able to effectuate that choice. The “unrestricted opportunity to vote by absentee mail-in ballot” is an essential pillar of what this Court has called the “Triple Crown of voting options [that] wins against the pandemic’s risk of disenfranchising the Kentucky voter.” Nemes v. Bensinger, No. 3:20-cv-00407-CRS, 2020 WL 3402345, at *11 (W.D. Ky. June 18, 2020). Without broad access to mail-in absentee ballots, efforts to render in-person voting safe during the pandemic will be ineffectual. Large crowds at polling places, with long lines, will eviscerate any well-intentioned palliative measures. The experience of the statewide primary on June 23, 2020 (“June Primary”) confirms this point. Expanded access to mail-in absentee ballots resulted in record-high voter turnout in Kentucky, even though the state offered far fewer polling sites for voters on Election Day because of staffing shortages resulting from poll workers’ COVID-19 fears. Election officials were able to accommodate in-person voters on Election Day only because the vast majority of voters—over 80%1—cast mail-in absentee ballots. Even then, polling places in Lexington experienced long
1 WKYT, Secretary of State Michael Adams Speaks About Primary Election Results at 1:50 (June 30, 2020), https://rb.gy/bgat4q.

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 6 of 56 PageID #: 253
waiting lines and Louisville experienced large traffic jams. But for the broad availability of mail balloting, the crowds at the polling sites would have overwhelmed any efforts to provide for safe in-person voting even more. Against these facts, the essence of this case is whether Defendants can ensure that all Kentuckians can safely vote in November when it is expected that twice as many voters will vote than in June.
Broad access to mail-in absentee ballots requires the suspension of the requirement that Kentucky voters satisfy enumerated excuses (the “Excuse Requirement”) before they are entitled to vote safely from home. While Kentucky effectively did just that for the June Primary by expanding the definition of a “medical emergency,” it has declined to extend that measure to the November general election.
Curbing COVID-19’s “risk of disenfranchising the Kentucky voter”2 also requires suspension of the newly enacted photo ID requirement in S.B. 2 (the “Photo ID Law”), which threatens to scratch the winning solutions Kentucky implemented to defeat that very risk. The Photo ID Law burdens the right to vote by requiring voters, including those who are at high risk of severe illness due to COVID-19, to interact with third parties in order to obtain the newly required photo ID and to make copies of an existing photo ID if they are to vote by mail. And whatever the questionable justifications for the Photo ID law in general, the utility of the photo ID requirement is vanishingly small for voters using mail-in absentee ballots.
Finally, protecting voters’ health requires continuing the three critical voting rights measures that Kentucky put in place for the June Primary: (1) eliminating the notary requirement for the medical emergency exemption; (2) permitting the postmarking of mail-in absentee ballots by 5:00 p.m. on Election Day; and (3) providing that any voter whose mail-in absentee ballot is
2 Nemes, 2020 WL 3402345, at *11. 2

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 7 of 56 PageID #: 254
rejected due to an alleged signature defect will be notified of this fact and given an opportunity to cure the problem. The rationale for all of these measures was a reasoned response to the pandemic as it existed in June. COVID-19 will still be with us in November. In Governor Beshear’s words: “We just had the largest primary turnout in our state’s history. Let’s not move backwards.”3 I. The COVID-19 Pandemic
A. Global/National Impact COVID-19 is a novel disease that has spread across the globe at an unprecedented pace. Contracting COVID-19 can ultimately result in death, blood clots, and/or severe and lasting organ damage. Medical professionals continue to identify new effects of COVID-19, including lung, heart, and brain damage. Ex. A, Declaration of Dr. Megan Murray (Murray Decl.) ¶¶ 7, 27–33. The United States has had more COVID-19 cases than any other country in the world. As of July 9, 2020, the number of confirmed cases in the United States has surpassed three million, and at least 132,056 people have died as a result of contracting COVID-19.4 Due to testing shortages, false negatives, and asymptomatic individuals, the actual numbers of cases and deaths are likely much higher than reported.5 COVID-19 is highly contagious and spreads through close contact between individuals. The virus is primarily transmitted through respiratory droplets when an infected person coughs or sneezes, and it may also spread when individuals touch their mouth, nose, or eyes after touching a
3 Gov. Andy Beshear, Daily Media Briefing 06.30.2020 at 47:20–47:26 (June 30, 2020), https://youtu.be/DIEbxBB7fyw 4 CDC, Coronavirus Disease 2019 (COVID-19):Cases in the US (last updated July 9, 2020), https://rb.gy/bf6ojt. 5 Apoorva Mandavilli, Actual Coronavirus Infections Vastly Undercounted, C.D.C. Data Shows, N.Y. Times (June 27, 2020), https://perma.cc/SX7E-DMF2.
3

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 8 of 56 PageID #: 255
surface or object that has the virus on it.6 Murray Decl. ¶¶ 13, 34–35. As of July 9, 2020, the World Health Organization has also confirmed that “droplets carrying the coronavirus may be airborne indoors and that people who spend long periods in crowded settings with inadequate ventilation may be at risk of becoming infected.”7 The virus can be spread by symptomatic, asymptomatic, and pre-symptomatic individuals, which means that only isolating those who are symptomatic will not slow the spread of COVID-19. Murray Decl. ¶¶ 14, 39.
To reduce the spread of the virus, public health experts recommend several measures, including staying home and maintaining at least six feet of distance from people outside their household.8 Public health experts caution against prematurely ending social distancing measures, warning that the absence of adequate precautions “will have the deleterious consequence of more infections and more deaths.”9
The public health crisis caused by COVID-19 has no clear end in sight. Cases continue to mount, with 38 states and territories currently experiencing a rise in new cases.10 On June 30, 2020, Dr. Anthony Fauci testified that the United States adds more than 40,000 new cases of
6 CDC, Coronavirus Disease 2019 (COVID-19): Social Distancing (last updated July 6, 2020), https://rb.gy/wdwyqf. 7 N.Y. Times, Under Pressure from Scientists Globally, the W.H.O. Acknowledges That the Virus Can Linger in the Air Indoors (July 9, 2020), https://rb.gy/ba45tu. 8 CDC, Coronavirus Disease 2019 (COVID-19): Social Distancing (last updated July 6, 2020), https://rb.gy/wdwyqf; Murray Decl. ¶¶ 41–43 (social distancing is the most comprehensive means for reducing the spread of the virus). 9 Rev, Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 2:08:04 (May 12, 2020), https://perma.cc/8ARJ-YWNS; see also Murray Decl. ¶¶ 15, 45. 10 N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count (last updated July 9, 2020), https://nyti.ms/39jvJEY.
4

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 9 of 56 PageID #: 256
COVID-19 each day, and he “would not be surprised if we go up to 100,000 a day.”11 Moreover, this surge in cases has been linked to the attempted re-openings in several states. Murray Decl. ¶ 45.
It is fully apparent that the virus will not soon disappear. Murray Decl. ¶ 54. Many public health experts warn that a further resurgence of cases in the fall and/or winter is “inevitable.”12 In his recent testimony, lead member of the White House’s COVID-19 Task Force Dr. Fauci described this prediction, stating: “We will have coronavirus in the fall. . . . I am convinced of that because of the degree of transmissibility that it has, the global nature.”13 See also Murray Decl. ¶¶ 53–63 (setting forth bases, including three distinct models, for concluding that the virus will continue into the fall and winter).
Because there is no realistic prospect of “herd immunity” in the near future, COVID-19 will continue to impose an imminent and serious threat to Americans’ health and safety until a reliable and widely accessible vaccine is available. Murray Decl. ¶¶ 73–74. And as Dr. Fauci explained to the U.S. Senate and the House Energy and Commerce Committee, it is highly unlikely that an effective vaccine will be available by the fall.14
11 Rev, Dr. Fauci, CDC Director Redfield Testimony Transcript for Senate Committee on Health, Education, Labor, and Pensions at 2:03:58 (June 30, 2020), https://perma.cc/QJ75-PRX7. 12 Christina Maxouris, US Could Be in for ‘a Bad Fall and a Bad Winter’ If It’s Unprepared for a Second Wave of Coronavirus, Fauci Warns, CNN Health (Apr. 29, 2020), https://rb.gy/xol1oc. 13 Id. 14 See Dr. Anthony Fauci & CDC Director Senate Testimony Transcript May 12 at 52:25, 1:20:43, Rev (May 12, 2020), https://rb.gy/sgpffq; Rev, Dr. Fauci & CDC Chief Dr. Redfield Testimony Transcript June 23 at 26:56, 1:18:29 (June 23, 2020), https://perma.cc/B69G-KUGU.
5

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 10 of 56 PageID #: 257
B. Kentucky Impact COVID-19 has spread throughout Kentucky at an exponential rate. As of July 9, 2020, the Commonwealth has confirmed 17,491 positive cases and 608 deaths from COVID-19 in Kentucky.15 In response to the unprecedented COVID-19 pandemic, on March 22, 2020, Governor Beshear issued a statewide “healthy-at-home” order that encouraged Kentuckians to practice social distancing, and ordered a variety of strict limitations on public gatherings in Kentucky, including requiring all non-life sustaining businesses to cease in-person services and advising that schools close for the remainder of the term.16 Starting May 11, and again on June 29, Governor Beshear began allowing some businesses to reopen, subject to strict social distancing and capacity rules.17 But Governor Beshear acknowledged: “[the] reopening of our economy is tenuous, it’s fragile. . . . It can be upended by a spike in cases at any time.”18 Since reopening, new cases in Kentucky have continued to increase. In the same week this brief was filed, Kentucky “posted its second-highest number of cases” two days in a row and the Commonwealth’s number of new daily cases surpassed its previous peak in May:
15 Ky. Dep’t of Pub. Health, Kentucky Coronavirus Monitoring, https://rb.gy/gsav70 (last visited July 9, 2020); see also Murray Decl. ¶ 64 (setting forth data as of June 22, 2020). 16 Ky. Office of the Governor, State of Emergency, Exec. Order No. 2020-257 (Mar. 25, 2020), https://perma.cc/6SPR-R7V9; Ky. Office of the Governor, State of Emergency, Exec. Order No. 2020-246 (Mar. 22, 2020), https://perma.cc/7U33-CWNE; Ky. Office of the Governor, Kentucky’s Response to COVID-19 (last updated June 30, 2020), https://governor.ky.gov/covid19. 17 See, e.g., Ky. Office of the Governor, Healthy at Work: Requirements for Restaurants, (May 22, 2020), https://perma.cc/2FYM-JK9T; see also Bruce Schreiner, Kentucky Governor Urges Mask Wearing as Economy Reopens, Richmond Register (May 21, 2020), https://perma.cc/Z6DU-TQFZ (even as businesses reopen, Governor Beshear continues to urge Kentucky residents to take precautionary measures, such as wearing masks). 18 Bruce Schreiner & Dylan Lovan, Rallygoers Sue Beshear; Gov Says Rally Sent Message of Hate, AP (May 12, 2020), https://perma.cc/NCU2-QU45.
6

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 11 of 56 PageID #: 258
19
Moreover, these figures likely understate the actual number of cases in Kentucky given (a) the relative paucity of tests and (b) the number of false negatives associated with many of the common tests. Murray Decl. ¶ 64.
This re-opening effect is consistent with the national data. In a House Energy and Commerce Committee hearing on June 23, 2020, Dr. Fauci “told House lawmakers that the nation is experiencing a ‘disturbing surge’ of coronavirus infections as states reopen too quickly and without adequate plans for testing and tracing the contacts of those infected.”20 In the first week of June, Kentucky—along with 14 other states—reported its “highest daily average case increases since the pandemic started,” and the total number of confirmed cases in Lexington more than doubled between May 11 and June 11.21 This trend is expected to continue. Murray Decl. ¶56.
19 WKYT, State Reports 402 New COVID-19 Cases, 6 New Deaths on Wednesday (July 8, 2020), https://rb.gy/wpfy3t; Joe Sonka & Grace Schneider, Beshear Hints at New Requirements as Kentucky’s COVID-19 Numbers Show ‘Disturbing’ Trend, Louisville Courier Journal (July 8, 2020), https://rb.gy/0qwvii (“Kentucky’s seven-day rolling average of new cases is now just shy of 300 as of Wednesday, the state’s highest total since the onset of the pandemic in early March.”); N.Y. Times, Kentucky Coronavirus Map and Case Count (July 10, 2020), https://nyti.ms/3dJNcJa; cf. Murray Decl. ¶ 64 (including graphic of case trajectory from June 22, 2020). 20 N.Y. Times, Fauci Warns of a ‘Disturbing’ Uptick of Infections in Some States and Contradicts Trump on Testing (June 23, 2020), https://perma.cc/URH4-5U2R. 21 Jeremy Chisenhall, Lexington Tops 1,000 COVID-19 Cases. More Than Half Were in the Last Month, Lexington Herald Leader (June 11, 2020), https://rb.gy/tn4a5c.
7

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 12 of 56 PageID #: 259
Even Defendants have acknowledged that the situation in Kentucky is getting materially worse, and the virus is not going away anytime soon. Accordingly, on July 9, 2020, Governor Beshear announced a mandatory statewide mask requirement for at least the next 30 days.22 And the Supreme Court of Kentucky went as far as to cancel the in-person bar examinations for both the July 28–29 and September 30–October 1 sessions “due to ongoing concerns about the COVID19 pandemic.”23 Such measures further demonstrate the ongoing severity of the pandemic in Kentucky.
C. Risks for Especially Vulnerable Kentuckians Voters with co-morbidities face heightened risks from contracting COVID-19 while voting in person. Murray Decl. ¶¶ 7, 30–31. Data show that COVID-19 poses a more serious threat to people with certain chronic medical conditions that are especially commonplace in Kentucky, which leads the nation in rates of adult obesity, diabetes, and cancers. Murray Decl. ¶ 65. Indeed, in a nationwide assessment of state populations’ risk for COVID-19, Kentucky scores 76 out of 100, where a score of 100 reflects the most vulnerable popluation. Murray Decl. ¶ 71. Older voters also face heightened risks. According to the Center for Disease Control (“CDC”), individuals over 65 are at a higher risk for severe illness and death from COVID-19. Murray Decl. ¶¶ 7, 28–29. As of July 9, 2020, approximately 7,440 of the 17,895 Kentuckians that have contracted COVID-19 are over the age of 50, with people over 50 accounting for 594 of 612 deaths in the Commonwealth.24
22 Sentinel Echo, Gov. Andy Beshear July 9 Press Briefing at 39:24–39:39, 40:19–40:29 (July 9, 2020), https://rb.gy/vf3blg. 23 Supreme Court of Ky., Am. Order 2020-50 (July 9, 2020), https://rb.gy/xupizl. 24 Ky. Dep’t of Pub. Health, KY COVID-19 Daily Summary (July 9, 2020), https://rb.gy/omswdj.
8

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 13 of 56 PageID #: 260
Black voters are more likely to experience serious complications from COVID-19. Murray Decl. ¶ 31. They are more likely to rely on public transportation or ride sharing to get to their polling places, increasing their risk of exposure and infection.25 Racial disparities in election day wait times also subject Black voters to a higher risk of contracting COVID-19 while waiting in disproportionately longer lines.26 Black people disproportionately suffer from medical conditions that exacerbate COVID-19 complications, and inequities in the health care system, such as lack of health insurance, disproportionately impede their ability to access quality care.27 Consequently, the CDC has recognized that recent data suggest that members of racial and ethnic minority groups face an “increased risk of getting COVID-19 or experiencing severe illness.”28 Kentucky data on the impact of COVID-19 serves as evidence of this phenomenon: although only 8.3% of the Kentucky population is Black,29 15.3% of Kentuckians who have died from COVID-19 have been Black.30
Voters with disabilities also face heightened risks from voting in person during the pandemic. Like Black voters, many voters with disabilities also rely on public transportation to
25 National Equity Atlas, Car Access (2015), https://perma.cc/SN54-FX2H; ReNika Moore, If COVID-19 Doesn’t Discriminate, Then Why Are Black People Dying at Higher Rates?, ACLU (Apr. 8, 2020), https://perma.cc/MW5G-KYSJ. See also Murray Decl. ¶ 26. 26 M. Keith Chen et al., Racial Disparities in Voting Wait Times: Evidence from Smartphone Data (Nov. 14, 2019), https://perma.cc/7BFS-QJRQ. 27 Office of Minority Health, Profile: Black/African Americans, U.S. Dep’t of Health & Hum. Servs. (Aug. 22, 2019), https://perma.cc/GZJ2-6ZT4; Elizabeth Thomas & Dr. Nancy A. Anoruo, Coronavirus is Disproportionately Killing the Black Community. Here’s What Experts Say Can Be Done About It, ABC News (Apr. 9, 2020), https://perma.cc/T9QC-S496. 28 CDC, Coronavirus Disease 2019 (COVID-19): Racial and Ethnic Minority Groups (last updated June 25, 2020), https://rb.gy/yiqevc; Murray Decl. ¶¶ 26–27 & Ex. 31. 29 Ky. Dep’t of Pub. Health, 2017 Kentucky Racial and Ethnic Distribution (Sept. 21, 2017), https://perma.cc/XCY8-274M. 30 Ky. Dep’t of Pub. Health, KY COVID-19 Daily Summary (July 9, 2020), https://rb.gy/omswdj.
9

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 14 of 56 PageID #: 261
get to the polls, increasing their risk of exposure to COVID-19. Once there, voters who cannot
mark paper ballots without assistance need to rely on interactions with poll workers and/or special voting machines with features like ear phones and other modifications.31 And voters who are blind
or have limited vision cannot see visual markers on the ground instructing voters to line up six feet
apart from each other.
II. The Challenged Requirements: Kentucky’s Election Law Regime A. The Excuse Requirement Kentucky voters cannot receive an absentee ballot unless they satisfy one of eight specific
qualifying excuses. Ky. Rev. Stat. § 117.085(1)(a).32 Even if a voter does not meet one of these
listed excuses, they may vote absentee if they experience a “medical emergency” within “fourteen
(14) days or less of an election.” Id. § 117.077. The application “shall be notarized” and “shall
state that the emergency condition occurred within the fourteen (14) day period.” Id.
B. The Photo ID Law Senate Bill 2 (“S.B. 2”) requires a photo ID from any voter seeking to vote in person or
applying to vote by mail-in absentee ballot, subject to certain exceptions. S.B. 2 §§ 5(2), 15. Valid
identification is a document that contains the voter’s name and photograph and is issued by:
31 Matt Vasilogambros, How Voters With Disabilities Are Blocked From the Ballot Box, Pew Research Center (Feb. 1, 2018), https://perma.cc/W5G5-YVW5; CDC, Coronavirus Disease 2019 (COVID-19): How It Spreads, https://perma.cc/7GBF-WCSA (last visited July 9, 2020). 32 The eight categories of voters with qualifying excuses are: (1) eligible, registered uniformedservice voters or overseas voters, (2) students temporarily residing outside their county of residence, (3) incarcerated voters charged with a crime who have not been convicted, (4) voters who have changed their place of residence to another state after the deadline in their new state of residence has passed, (5) voters outside the state but still eligible to vote, (6) voters working outside their county of residence on all hours and all days of in-person absentee voting, (7) participants in the Secretary of State’s crime victim address confidentiality protection program, and (8) those “[n]ot able to appear at the polls on election day on the account of age, disability, or illness,” and have not been declared mentally disabled by a court of competent jurisdiction. See Ky. Rev. Stat. § 117.085(1)(a).
10

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 15 of 56 PageID #: 262
(a) The United States or the Commonwealth of Kentucky . . . [;] (b) The . . . Department of Defense, a branch of the uniformed services, the Merchant Marines, or the Kentucky National Guard . . . [;] (c) A public or private college, university, or postgraduate technical or professional school . . . [;] or (d) Any city government, county government, or urban-county government, charter county government, consolidated local government or unified local government, which is located within this state . . . [.] S.B. 2 § 23. If a voter is unable to present a photo ID on Election Day or when voting absentee in person, the voter may still cast a ballot if they are: “(a) . . . eligible to vote under KRS 116.025; (b) . . . entitled to vote in that precinct; and (c) [i]n the presence of an election officer, executes a voter affirmation” on a form furnished by the Board of Elections. S.B. 2 § 1(1). To execute the voter affirmation required by S.B. 2, the voter must affirm, under penalty of perjury, various aspects of their identity and qualifications to vote, as well as confirm that one of eight possible “impediments” prevents them from procuring a photo ID (the “Impediment Requirement”). S.B. 2 § 1(1)(c)(8).33 A voter who cannot provide photo ID must also show certain non-photo identification documents, such as their Social Security card or a credit card with the voter’s name on it. S.B. 2 § 1(2). S.B. 2 also imposes a photo ID requirement for the absentee ballot application, stating that “the voter shall provide a copy of his or her proof of identification” or an “executed voter affirmation” with the voter’s mail-in absentee ballot application. S.B. 2 § 5(2). If a voter has a valid photo ID, the voter must submit a copy of that photo ID with the ballot application. Id.
33 The eight impediments enumerated in S.B. 2 are: (a) lack of transportation; (b) inability to obtain a birth certificate or other documents needed to show proof of identification; (c) work schedule; (d) lost or stolen identification; (e) disability or illness; (f) family responsibilities; (g) proof of identification has been applied for, but not yet received; or (h) a religious objection to being photographed.
11

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 16 of 56 PageID #: 263
C. Modifications for the June Primary Election In response to the COVID-19 pandemic, Defendants enacted important safety modifications for the June Primary. On May 1, 2020, the Board of Elections passed emergency regulations—based on Secretary Adams’s initial recommendation and Governor Beshear’s executive order—displacing conflicting laws and “allow[ing] for the conduction of elections that minimize the health-risk of all involved during the ongoing state of emergency related to the COVID-19 pandemic.” Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020). The Secretary of State and Governor then formally approved these emergency measures.34 Acknowledging the danger voters would face while voting in person, Defendants made several substantial changes to election procedures for the June Primary. Most fundamentally, Defendants suspended the Excuse Requirement by defining the term “medical emergency” from Ky. Rev. Stat. § 117.077 as “a reasonable fear of infection or transmission during a state of public health emergency declared by the Governor.” 31 Ky. Admin. Regs. 4:190E § 2. In addition, the emergency regulations made three main changes to the June Primary (collectively, the “June Voting Protections”). First, Defendants waived the notarization requirement under Ky. Rev. Stat. § 117.077 for voters requesting a medical emergency absentee ballot, and instructed that ballot applications “need not be notarized” for the June Primary. 31 Ky. Admin. Regs. 4:190E § 3.
34 Ky. Sec’y of State, Approval of Procedures Established for Election During State of Emergency, Exec. Order 2020-01 (May 1, 2020), https://perma.cc/883F-WHJ7; Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order No. 2020-311 (May 1, 2020), https://perma.cc/6J8M-YDGG.
12

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 17 of 56 PageID #: 264
Second, Defendants modified the Election Day absentee ballot receipt deadline set forth in Ky. Rev. Stat. § 117.086(1), instructing instead that officials must count all ballots postmarked by Election Day and received by the close of business on the following Saturday. 31 Ky. Admin. Regs. 4:190E § 6.
Third, Defendants created a signature match protocol for county officials verifying returned absentee ballots as required by Ky. Rev. Stat. § 117.087(3) (“June Signature Match Protections”). 31 Ky. Admin. Regs. 4:190E § 9. This protocol requires election officials to give voters notice if their mail-in absentee ballot is rejected because of an alleged signature mismatch. The voter must also be given an opportunity to cure the discrepancy.
None of these protections have been extended to the November general election. Defendants have acknowledged that voters would not be able to safely vote in the June Primary without these modifications: in their words, the June Voting Protections “reduce[] the amount of exposure voters, poll workers, and administrators have to possible infection,” and the measures are “necessary” to conduct “free and fair elections” amidst the COVID-19 pandemic. Id. As Kentucky election officials tacitly recognize, failure to extend these modifications to the November general election will substantially burden Kentuckians’ fundamental right to vote. III. Health Risks of Voting in Person During COVID-19: Lessons from the June Primary
Voting in person during the COVID-19 pandemic presents numerous serious health and safety risks. Murray Decl. ¶ 16 (“There is a substantial risk that an infection with Covid-19 acquired during voting at a poll booth in Kentucky in the fall of 2020 could result in symptomatic disease, hospitalization or death.”). This risk is exacerbated if the polling places are crowded and the lines are long, as will be likely if the number of polling places is limited and mail-in absentee ballots are not made generally available to Kentucky voters. As Dr. Murray notes:
13

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 18 of 56 PageID #: 265
To the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, move people through the process slowly, are poorly ventilated and/or involve people touching objects like pens, paper, or surfaces with the voting booth, they constitute a risk to voters. Murray Decl. ¶ 16. Public health experts confirm that being in close quarters with others increases the risk of COVID-19 infection.35 And while it may be possible to instruct voters to maintain physical distance of at least six feet,36 such restrictions are difficult to enforce, as set forth in detail below. As the CDC has recently acknowledged, “[t]he more an individual interacts with others, and the longer that interaction, the higher the risk of COVID-19 spread.”37 States can lower this risk by providing “a wide variety of voting options,” “longer voting periods (more days and/or more hours),” and “any other feasible options for reducing the number of voters who congregate indoors in polling locations at the same time.”38 Voting by mail is precisely the sort of voting option that is required to protect the public health. Indeed, recent experience has demonstrated that only broad access to mail-in absentee ballots can avoid the imposition of severe health risks on Kentucky voters that burden the right to vote.
A. The June Primary Demonstrates the Health Risks of In-Person Voting The difficulties of enforcing safety measures at polling places were readily apparent in Kentucky’s June Primary. In advance of the election, Defendants promulgated regulations and
35 CDC, Coronavirus Disease 2019 (COVID-19): Social Distancing (last updated July 6, 2020), https://rb.gy/wdwyqf (recommending at least six feet between persons); Murray Decl. ¶¶ 41–43. 36 CDC, Coronavirus Disease 2019 (COVID-19): Considerations for Election Polling Locations and Voters (last updated June 22, 2020), https://perma.cc/97B4-EARU (encouraging voters to wear masks because social distancing at polling places is difficult). 37 Id. 38 Id.
14

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 19 of 56 PageID #: 266
policies in an attempt to try to keep in-person voters safe. On April 23, 2020, Secretary Adams issued a letter recommending that the State Board of Elections propose emergency regulations to instruct county clerks to implement in-person voting procedures to “limit direct contact between individuals, whether poll workers or voters.” On April 24, 2020, Governor Beshear adopted this recommendation in an Executive Order.39 On May 1, 2020, the Board of Elections enacted such an emergency regulation, which similarly stated that “every reasonable effort shall be undertaken by County Clerks to see that in-person absentee voting is implemented in a manner that limits direct contact between voters, other voters, and election officials.” 31 Ky. Admin. Regs. 4:190E § 10. Governor Beshear and Secretary Adams both approved the emergency regulation.40
Pursuant to these directives, the County Clerks issued various instructions. In Scott County, for example, the County Clerk instructed that “voters w[ould] be asked to keep a 6-foot distance while in line and voting.”41 In Jefferson County, the County Clerk issued instructions that voters were to wear masks.42 In some other counties, however, no such specific instructions appear to have been provided. See Ex. B, Declaration of Jayne Ponder (Ponder Decl.), ¶¶ 4–18 & Exs. 1–13 (various County Clerk instructions). Notably, many County Clerks affirmatively encouraged voters to vote by mail. See, e.g., id. at ¶¶ 6, 7, 12 & Exs. 3, 4, & 9.
39 Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order No. 2020-296 (Apr. 24, 2020), https://perma.cc/Q32R-549V. 40 Ky. Sec’y of State, Approval of Procedures Established for Election During State of Emergency, Exec. Order 2020-01 (May 1, 2020), https://perma.cc/883F-WHJ7; Ky. Office of the Governor, State of Emergency Relating to Kentucky Elections, Exec. Order No. 2020-311 (May 1, 2020), https://perma.cc/6J8M-YDGG. 41 Scott Cty. Clerk, What Every Scott County Voter Needs to Know for Primary Election June 23, 2020 (May 27, 2020), https://perma.cc/E7QD-643X; see also Warren Cty. Clerk, How You Can Vote in Warren County, https://perma.cc/CE73-NMDW (last visited July 9, 2020) (“We are required to social distance between voters and to sanitize after each voter.”). 42 Jefferson County Clerk’s Office, 2020 Primary Election, https://perma.cc/XFE9-WUS5 (last visited July 9, 2020).
15

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 20 of 56 PageID #: 267 Regardless of how things were supposed to work on paper, not all voters wore masks in
practice:
43
Nor did all voters stand six feet apart:
44
43 Daniel Desrochers & Jack Brammer, Lexington Voters Endured Waits of More Than an Hour at Kroger Field on Election Day, Lexington Herald-Leader (June 24, 2020), https://rb.gy/teji8a. 44 Christina A. Cassidy et al., 2 Republicans Opposed by Trump Win in Kentucky, N. Carolina, WFTV9 ABC (June 24, 2020), https://rb.gy/yqbfbh; see also Ponder Decl. ¶ 19 & Exs. 14–17.
16

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 21 of 56 PageID #: 268
The conditions pictured above reflect the lines and crowding that resulted from less than 4,000 in-person voters in Fayette County. The number of in-person voters was limited because the majority of voters in the county—i.e, 80,300 voters—chose to cast mail ballots.45 Yet, even with only 3,760 total in-person voters at the Kroger Field polling place, Fayette County voters reported standing in lines for up to two hours throughout the day.46 And as the photos make clear: that was two hours within six feet of other individuals not wearing masks. As this experience indicates, even the most cautious in-person voter will have little control over their exposure to the virus, because they cannot protect themselves from fellow voters who fail to wear masks or maintain an appropriate social distance.
These photographs are corroborated by numerous social media posts which confirm that voters were not practicing social distancing and/or wearing masks at the polls. See Ponder Decl. ¶ 19 & Exs. 14–17. They are further confirmed by the testimony of percipient witnesses. See Ex. C, Declaration of DeJuan Nash (Nash Decl.) ¶¶ 9–12.
To the extent that polling places are crowded, require people to wait in lines, involve interacting with polling staff or other voters at a close distance, or move people through the process slowly, they constitute a risk to voters. Murray Decl. ¶¶ 16, 41. Indeed, as recent experience in Wisconsin has demonstrated, even if various safety measures are attempted, in-person voting remains a very risky enterprise. Murray Decl. ¶¶ 17–18, 47–51.
45 Fayette Cty. Clerk, Primary 2020 (June 30, 2020), https://perma.cc/N9M5-H32B. 46 Daniel Desrochers & Jack Brammer, Lexington Voters Endured Waits of More Than an Hour at Kroger Field on Election Day, Lexington Herald-Leader (June 24, 2020), https://rb.gy/teji8a.
17

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 22 of 56 PageID #: 269
The overcrowded, unsafe conditions depicted above provide a chilling forecast for the November general election, where in-person turnout will be significantly higher, especially when Defendants reintroduce the Excuse Requirement.47
B. The June Primary Demonstrates the Need for Expanded Mail-In Absentee Voting
The June Primary demonstrated that expanded access to mail ballots is necessary to alleviate population pressure and crowding that results from consolidated poll sites. Secretary Adams has stated that over 80% of the more than one million voters in Kentucky’s June Primary voted by mail in absentee ballot,48 yet the overcrowding depicted above still took place. To put this in context: 1,913,287 Kentuckians voted in person in the last presidential election—nearly ten times the number of people who voted in person in June.49 Without the ability to vote by mail, these hundreds of thousands of voters will overcrowd polling locations and jeopardize Kentuckians’ safety in the November 2020 election.
Nor can Defendants reasonably expect to have the same number of polling locations available as in 2016. In the lead up to the June Primary, Kentucky officials reduced the number of in-person polling places from 3,700 to fewer than 200 locations because Kentucky does not have the resources necessary to conduct in-person voting at full capacity during the COVID-19 pandemic, as Secretary Adams has admitted: “We just don’t have enough locations that are capable
47 Fayette Cty. Clerk, General 2016, rb.gy/g21khh (last visited July 9, 2020). 48 WKYT, Secretary of State Michael Adams Speaks About Primary Election Results at 1:50 (June 30, 2020), https://rb.gy/bgat4q; Joe Sonka, Amid Voter Suppression Claims, Black Voter Turnout in Louisville Increased in June Primary, Louisville Courier Journal (July 7, 2020), https://rb.gy/y1txtt (1,003,678 Kentuckians voted statewide in June Primary). 49 U.S. Election Assistance Comm’n, Election Administration and Voting Survey 2016 Comprehensive Report at 23 (2016), https://perma.cc/SVT9-5KZE.
18

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 23 of 56 PageID #: 270
of social distancing. We don’t have enough poll workers.”50 The reduction in polling places was a manageable option in some Kentucky counties—both administratively and from a public health perspective—only because of the availability of ubiquitous mail voting.
For example, during the June Primary, Jefferson County, which has over 600,000 voters, had one open polling place. Without a widely available option to vote absentee by mail, the crowds at the polling site would have been overwhelming. But because 179,684 Jefferson County residents took advantage of the expanded access to mail-in absentee ballots, only 27,035 people voted in person in Jefferson County,51 which dramatically decreased lines and crowding at the polling site for most of the day. In contrast, 362,983 Jefferson County residents—over 13 times as many people—voted in person in the 2016 general election, when the Excuse Requirement was in place and mail-in absentee ballots were not widely available.52 And instead of the 88% of Jefferson County voters who were able to vote by mail-in absentee ballot in the June Primary, the percentage of absentee voters in Jefferson County is “usually closer to 1%.”53 Similarly, the total number of in-person Fayette County voters in the 2016 general election was 32 times higher than the number of people who voted in person in the June Primary in Fayette County.54
50 Jacqueline Pitts, Kentucky Secretary of State Adams Says Changes to Voting for Primary Elections Will Keep People Safe and Make Needed Improvements to System, Ky. Chamber of Commerce Bottom Line (May 12, 2020), https://rb.gy/nubnri; see also Nemes, 2020 WL 3402345, at *4; Michelle Ye Hee Lee, Kentucky Braces for Ppossible Voting Problems in Tuesday’s Primary Amid Signs of High Turnout, Wash. Post (June 19, 2020), https://perma.cc/5PYM-QP3V. 51 Jefferson Cty. Clerk, 2020 Unofficial Primary Election Results (June 30, 2020), http:// elections.jeffersoncountyclerk.org/2020/06/30/2020-unofficial-primary-election-official-results/. 52 Jefferson Cty. Clerk, General Election November 8, 2016 (Nov. 29, 2016), https://rb.gy/ecojvg. 53 Joe Sonka, Amid Voter Suppression Claims, Black Voter Turnout in Louisville Increased in June Primary, Louisville Courier Journal (July 7, 2020), https://rb.gy/y1txtt. 54 Daniel Desrochers & Jack Brammer, Lexington Voters Endured Waits of More Than an Hour at Kroger Field on Election Day, Lexington Herald-Leader (June 24, 2020), https://rb.gy/teji8a (3,851 in-person voters in Fayette County’s June Primary); Fayette Cty. Clerk, General 2016,
19

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 24 of 56 PageID #: 271
The June Primary was far from perfect, and was marred by several serious flaws. But one thing is clear: the problems would have been far worse but for the widespread use of mail balloting.
C. Primary Elections in Other States Reinforce the Same Lessons Regarding the Health Risks of In-Person Voting
Other states’ recent elections further confirm the substantial risks of in-person voting. During the Wisconsin primary election, for example, voters in Milwaukee and Green Bay faced excessive wait times, large crowds, and long lines, conditions that made social distancing nearly impossible.55 Despite local election officials’ efforts to ensure the safety of polling places, research has concluded that Wisconsin counties with higher than average in-person voting had twice the rate of COVID-19 postitive tests when taking into account the appropriate period of time to measure infection rates, even after accounting for population density and social distancing measures. Murray Decl. ¶¶ 47–51; Ex. D, Declaration of Adriel I. Cepeda Derieux (Cepeda Derieux Decl.), ¶ 4 & Ex. 1. The Wisconsin Department of Health found that 71 voters tested positive for COVID-19, and economists have concluded that there was “a strong preponderance of statistical evidence demonstrating that more in-person voting per location is associated with a greater spread of COVID-19 infections in Wisconsin.” Cepeda Derieux Decl., ¶ 4 & Ex. 1 at 15.
* * * The lessons are clear: regardless of any aspirational safety precautions that are instituted for in-person voting, broadly-available mail voting is critical to public health and voters’ safety.
https://perma.cc/5Z8M-K2EU (last visited July 9, 2020) (123,801 in-person voters in Fayette County’s November 2016 election). 55 Elise Viebeck, et al., Long Lines, Anger and Fear of Infection: Wisconsin Proceeds with Elections under Court Order, Washington Post (Apr. 7, 2020), https://perma.cc/ZX66-G8G5.
20

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 25 of 56 PageID #: 272
Only in that way can crowd size be limited and social distancing maintained.56 And only in that way can the right to vote be safeguarded.
ARGUMENT I. Legal Standard
A. The Four-Part Test for a Preliminary Injunction The Court must balance four factors: (1) whether plaintiffs are “likely to succeed on the merits,” (2) whether plaintiffs are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) whether “the balance of equities tips in [plaintiffs’] favor,” and (4) whether “an injunction is in the public interest.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The first factor traditionally carries the most weight and “‘often will be [] determinative.’” Id. at 436–37 (quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)). Under the second factor, injuries to individual and organizational Plaintiffs are irreparable “if [they are] not fully compensable by monetary damages.” Id. at 436 (internal quotations omitted). Consequently, “a restriction on the fundamental right to vote . . . constitutes irreparable injury.” Id. (citing Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986)). The third factor balances the equities by measuring the irreparable harm to plaintiffs absent relief against the harm to defendants if the injunction is granted. Id.; see also Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982) (describing “balance of hardships,” in which “irreparable harm to the plaintiff if there is no preliminary injunction is balanced against any injuries likely to be suffered by the defendant(s) if a preliminary injunction is granted”).
56 Cepeda Derieux Decl., ¶ __ & Ex. 1 at 4 (recommending that public officials increase the number of polling locations, voting times, early voting or absentee ballots, or mail-in voting to keep the density of people voting as low as possible).
21

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 26 of 56 PageID #: 273
Finally, the Court considers whether the “injunction is in the public interest.” Winter, 555 U.S. at 20. This factor often turns on whether Plaintiffs’ constitutional rights are violated, because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Monaghan v. Sebelius, 931 F. Supp 2d. 794, 808–09 (E.D. Mich. 2013) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)).
Movants bear the burden of demonstrating that preliminary injunctive relief is warranted, Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 441 (1974), but they are “not required to prove [their] case in full at a preliminary-injunction hearing.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 591 (6th Cir. 2012) (alteration in original).
B. The Anderson-Burdick Test Governing Restraints on Voting Rights “The right to vote is a precious and fundamental right, and it is clear that this right is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 662– 63 (6th Cir. 2016) (internal citations and quotation marks omitted). Accordingly, “[t]he Equal Protection Clause applies when a state either classifies voters in disparate ways . . . or places restrictions on the right to vote.” Obama for Am., 697 F.3d at 428–30. The Supreme Court has “creat[ed] a single standard for evaluating challenges to voting restrictions” under the First Amendment and the Equal Protection Clause: the Anderson-Burdick framework. Id. at 430 (citing Anderson v. Celebrezze, 460 U.S. 780, 786 n.7 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992); Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189–91 (2008)).
22

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 27 of 56 PageID #: 274
Under Anderson-Burdick, “[t]he precise character of the state’s action and the nature of the burden on voters will determine the appropriate equal protection standard.” Obama for Am., 697 F.3d at 428. “If a plaintiff alleges only that a state treated him or her differently than similarly situated voters, without a corresponding burden on the fundamental right to vote, a straightforward rational basis standard of review should be used.” Id. at 429. “On the other extreme, when a state’s classification ‘severely’ burdens the fundamental right to vote, as with poll taxes, strict scrutiny is the appropriate standard.” Id. Such restrictions must “be narrowly tailored and advance a compelling state interest.” Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015).
“Most cases fall in between these two extremes,” Obama for Am., 697 F.3d at 429, and require courts to “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 plaintiffs’ rights.’” Burdick, 504 U.S. at 434 (internal citations omitted). “This standard is sufficiently flexible to accommodate the complexities of state election regulations while also protecting the fundamental importance of the right to vote,” Obama for Am., 697 F.3d at 429, because it operates as a “sliding scale” test, “where the more severe the burden, the more compelling the state’s interest must be.” Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018); see also Fusaro v. Cogan, 930 F.3d 241, 257–58 (4th Cir. 2019); Utah Republican Party v. Cox, 892 F.3d 1066, 1077 (10th Cir. 2018). Even restrictions imposing “slight burdens” must be “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (internal citations omitted).
23

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 28 of 56 PageID #: 275
“In determining the magnitude of the burden imposed by a state’s election laws, the Supreme Court has looked to the associational rights at issue[;] the effect of the regulations on the voters, the parties and the candidates; evidence of the real impact the restriction has on the process; and the interests of the state relative to the scope of the election.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 587 (6th Cir. 2006). “In evaluating the burden imposed by an election law,” courts “must consider ‘the combined effect of the applicable election regulations,’ not simply each law in isolation.” Libertarian Party of Ohio v. Husted, 831 F.3d 382, 400 (6th Cir. 2016) (quoting Blackwell, 462 F.3d at 586).
After determining the severity of the burden imposed by the challenged restrictions, courts must “‘identify and evaluate’ the state’s interests and justifications for its restrictions” and “assess the ‘legitimacy and strength’ of those interests to determine whether the restrictions are constitutional burdens on ballot access.” Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574– 75 (6th Cir. 2016) (quoting Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014)).
A “law severely burdens voting rights if the burdened voters have few alternate means of access to the ballot,” because such a law “impermissibly restricts ‘the availability of political opportunity.’” Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (quoting Anderson, 460 U.S. at 793) (internal citations omitted). Accordingly, the Sixth Circuit has rejected the argument that “rational basis is the appropriate standard” where plaintiffs demonstrate that “‘burdened voters have few alternate means of access to the ballot.’” Obama for Am., 697 F.3d at 430–31 (quoting Citizens for Legislative Choice, 144 F.3d at 921).
As the Court applies these standards to the level of severity of the burdens on voters imposed by the Excuse Requirement and the implementation of the Photo ID Law in the context of the COVID-19 pandemic, it will be clear that the character and magnitude of the asserted injury
24

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 29 of 56 PageID #: 276
Plaintiffs seek to guard against are extraordinarily burdensome and grave: it is the right not to be forced to choose between voting and health. Further, any purported interests pressed by Defendants in support of their conduct will be shown to be woefully unnecessary and inadequate to justify those burdens. II. The First and Fourteenth Amendments Require Elimination of the Excuse Requirement
During the Pendency of the COVID-19 Pandemic A. Plaintiffs Are Likely To Prevail on the Merits Because the Excuse Requirement Threatens Voters’ Health and Safety During the COVID-19 Pandemic Requiring Kentuckians to vote in person while the risk of transmission of COVID-19
remains burdens their fundamental rights, because it “forces voters to make the untenable . . . choice between exercising their right to vote and placing themselves at risk of contracting a potentially terminal disease.” Thomas v. Andino, No. 3:20-cv-01552-JMC, 2020 WL 2617329, at *17 n.20 (D.S.C. May 25, 2020) (finding that absentee voting is constitutionally protected when it “impacts voters’ fundamental right to vote,” including “during [the COVID-19] pandemic”); see also League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV-00024, 2020 WL 2158249, at *8 (W.D. Va. May 5, 2020) (“LWVV”) (“In ordinary times, Virginia’s witness signature requirement may not be a significant burden on the right to vote. But these are not ordinary times.”).
1. The Excuse Requirement Imposes an Extremely Heavy Burden on the Right to Vote During the Pandemic
Even if it might ordinarily pose a tolerable burden, “in our current era of social distancing,” the Excuse Requirement’s burdens are “substantial” because they make it impractical for individuals to “maintain a minimum of six feet from those outside their household” when they vote at over-crowded polling sites. LWVV, 2020 WL 2158249, at *1 (approving consent decree, applying Anderson/Burdick flexible test to witness requirement for absentee ballots). During the
25

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 30 of 56 PageID #: 277
pandemic, the Excuse Requirement will force hundreds of thousands of voters, including Plaintiffs, to choose between putting themselves at intolerable risk of illness and forfeiting their right to vote. Thomas, 2020 WL 2617329, at *17 n.20; see also LWVV, 2020 WL 2158249, at *8.
Defendants themselves effectively already acknowledged this point when they determined that the “reasonable fear of infection or transmission” of COVID-19 was a “medical emergency” that qualified voters to vote by mail in the June Primary.57 And as public health experts have warned, COVID-19 is likely to pose no less a risk in the fall. See Murray Decl. ¶ 54.
Under these circumstances, other safe means of voting are not “not easily available.” Thomas, 2020 WL 2617329, at *17 n.20. Avoiding crowded polling places is an important factor in securing a safe election. Murray Decl. ¶¶ 14, 16, 46. During the pandemic, a shortage of poll workers will drive the need to limit the number of polling places (and given the persistence of the pandemic there is no reason to believe that this constraint will be eliminated by November). Excessive crowding at such polling places is a certainty if voters do not have broad access to mailin absentee ballots.
Plainly put, the Excuse Requirement will force Plaintiffs from their homes, into close proximity with persons unknown to them, and exacerbate crowding at polling places—all of which puts them at increased risk of an often-devastating illness. Otherwise, they must forgo their right to vote. See Thomas, 2020 WL 2617329, at *17 n.20 (“[D]uring this pandemic, absentee voting is the safest tool [for] voters . . . to effectuate their fundamental right to vote. To the extent access to that tool is unduly burdened, [it] effectively [denies] the franchise . . . .”). Indeed, as the events of the June Primary showed, expanded absentee voting was able to alleviate some, but not all, of
57 Letter of Michael G. Adams, Sec’y of State, to Andy Beshear, Governor (Apr. 23, 2020), https://governor.ky.gov/attachments/20200423_Ltr-from-Sec-of-State-Adams.pdf.
26

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 31 of 56 PageID #: 278
the problems in voting caused by the pandemic. With twice as many voters expected to vote in November than in June (per Secretary Adams’s own estimation58), without expanded eligibility for absentee voting, many of those voters who choose to try to vote are likely to be shut out or, at a minimum, burdened by lines and traffic of extraordinary proportion.
The individual Plaintiffs are also exceedingly likely to show that the Excuse Requirement excessively burdens their right to vote because they are Black and at high risk of complications from COVID-19 due to their age or medical history. Ex. E, Declaration of Michael Collins (Collins Decl.) ¶¶ 2–3; Ex. F, Declaration of Jeffrey Cosby (Cosby Decl.) ¶¶ 1–2; Ex. G, Declaration of Thela Elliott (Elliott Decl.) ¶¶ 2, 4; Ex. H, Declaration of Gracie Lewis (Lewis Decl.) ¶¶ 2, 4; Nash Decl. ¶¶ 2–3; Ex. I, Declaration of Tiffany Price (Price Decl.) ¶¶ 2, 4. So are many of the organizational Plaintiffs’ members. See Declaration of Ex. J, Raymond Burse (Burse Decl.) ¶¶ 17, 20; Ex. K, Declaration of Sadiqa Reynolds (Reynolds Decl.) ¶ 22; Ex. L, Declaration of Frances Wagner (Wagner Decl.) ¶¶ 15, 19. Because COVID-19 could prove fatal, disproportionately, to these voters, the stakes of having to leave home and be exposed to countless unknown persons are even greater.
Public health experts and officials—including Defendants—have not minced words: COVID-19 is a particularly dire risk to the elderly, people with certain underlying health conditions, and Black people.59 As of July 9, 2020, 90.79% of Kentuckians who have died from
58 WKYT, Secretary of State Michael Adams Speaks About Primary Election Results at 10:30, https://rb.gy/bgat4q (Secretary Adams noting that “[t]urnout in November is going to be twice as high as it was for June—or higher.”). 59 CDC, Coronavirus Disease 2019 (COVID-19): Who Is at Increased Risk for Severe Illness? (June 25, 2020), https://rb.gy/ktomif (explaining that older populations and individuals with comorbidities are at greater risk); CDC, Coronavirus Disease 2019 (COVID-19): Racial & Ethnic Minority Groups (last updated June 25, 2020), https://rb.gy/yiqevc.
27

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 32 of 56 PageID #: 279
COVID-19 were over the age of 60 and 15.3% were Black, despite Black people making up only approximately 8.3% of the state population.60
The gravity of the risks that COVID-19 poses to these categories of individuals is wellknown and has been highly publicized nationally and statewide. Nothing suggests that the risks specific to persons in these categories will abate by November. To the contrary, all plans to “reopen” Kentucky have stressed that singularly at-risk individuals, including the elderly, should take additional precautions to prevent severe illness.61 See LWVV, 2020 WL 2158249, at *8 (COVID19 mitigation practices like “wearing masks” or social distancing “come up far short” for “many” voters needing a witness for their absentee ballots, “especially the elderly, immunocompromised, and others at greatest risk of medical complications”).
In this context, the Excuse Requirement imposes gravely oppressive burdens on Plaintiffs, all of whom fall into one or multiple categories of persons considered at risk for serious illness from COVID-19. Murray Decl. ¶¶ 7, 30–31.
2. The State’s Interests Do Not Outweigh the Extremely Heavy Burden on Plaintiffs’ Right To Vote
By compelling voters either to leave home and risk exposure to grave illness or sit out the November election altogether, the Excuse Requirement all but fully deprives Plaintiffs the opporutnity to vote in that election. The extremely heavy burdens placed on voters due to restrictive enforcement of the Excuse Requirement outweigh any discernible state interest.
60 Ky. Dep’t of Pub. Health, KY COVID-19 Daily Summary (July 9, 2020), https://rb.gy/omswdj; Ky. Dep’t of Pub. Health, 2017 Kentucky Racial and Ethnic Distribution (Sept. 21, 2017), https://perma.cc/XCY8-274M. 61 See, e.g., Ky. Office of the Governor, Healthy at Work: Reopening Kentucky (last updated July 9, 2020), https://govstatus.egov.com/ky-healthy-at-work.
28

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 33 of 56 PageID #: 280
First, Defendants have effectively conceded that this pandemic requires the elimination of the Excuse Requirement. The Kentucky Board of Elections emergency regulation for the June Primary, among other measures, changed the definition of “medical emergency” in Ky. Rev. Stat. § 117.077 to allow those with a reasonable fear of contracting or transmitting COVID-19 during a state of public health emergency to apply for an absentee ballot. 31 Ky. Admin. Regs. 4:190E § 2. The rationale for this determination was plain. Defendants stated that these measures were “necessary given that the Kentucky Constitution requires free and fair elections, yet the COVID19 pandemic . . . poses a risk to the health and well-being of voters.” Id.
The same rationale applies to the November general election. Public health officials say it is “inevitable” and are “convinced” that COVID-19 will continue to threaten voters’ health and safety this fall due to a looming wave of the virus,62 and the Trump administration has consequently acknowledged that it is “preparing for the possibility that a second wave of Covid19 could hit the United States in the fall.”63 Experts warn that the virus will continue to pose a serious threat to public health and safety until a vaccine becomes available, and have also projected that it is unlikely that an FDA-approved vaccine will be mass produced and widely available in time for the November election. Murray Decl. ¶¶ 73–74.
Second, Defendants admit there is no relation between the Excuse Requirement and preventing voter fraud or protecting election integrity. Secretary Adams not only recommended that all voters have the option to vote safely from home in the June Primary, but noted that the “presumption that absentee voting is less secure is frustrating because Kentucky has safeguards in
62 Christina Maxouris, US Could Be in for ‘a Bad Fall and a Bad Winter’ If It’s Unprepared for a Second Wave of Coronavirus, Fauci Warns, CNN (Apr. 29, 2020), https://perma.cc/45U6-39LN. 63 Veronica Stracqualursi, White House Adviser: Trump Administration Preparing for Possible Second Wave of Coronavirus in the Fall, CNN (June 21, 2020), https://perma.cc/PZ2H-M6UP.
29

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 34 of 56 PageID #: 281
place to protect against fraud.”64 Adams is “not aware of any instance over the past decade in which voter fraud was committed in Kentucky by someone impersonating another eligible voter,” and he acknowledged there “is no evidence of extensive fraud in U.S. elections or of multiple voting.”65 Indeed, having campaigned on the issue of voter fraud, Adams now says that “it’s my job now to calm people’s fears” about mail-in absentee ballots. 66
B. Plaintiffs Will Suffer Irreparable Injury If the Excuse Requirement Is Not Enjoined 1. Individual Kentucky Voters Will Suffer Irreparable Injury By Being Forced To Choose Between their Health and their Right to Vote
The Excuse Requirement would force “unnecessary exposure to COVID-19” and therefore “provides a basis to find that [Plaintiffs] will suffer irreparable injury” by forcing voters to choose between the right to vote and their health. Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *8 (E.D. Mich. May 9, 2020). All individual Plaintiffs and Declarants are registered voters who need to vote by mail-in absentee ballot in November to avoid the health risks of inperson voting.67 Regardless of any safety measures implemented on Election Day, large crowds will exacerbate the health risks entailed by any in-person voting scheme.68 These conditions will force Plaintiffs to put themselves and their families at risk of potentially deadly infection to vote.
64 See Pam Fessler, ‘It’s Partly On Me’: GOP Official Says Fraud Warnings Hamper Vote-ByMail Push, NPR (May 15, 2020), https://perma.cc/5869-4YMU. 65 Joe Sonka, Kentucky Republicans Say Voter ID Bill Will ‘Increase Confidence’ in Election Process, Louisville Courier Journal (Jan. 8, 2020), https://perma.cc/24TY-KJX7; LRC Public Information, Voter ID Bill Receives Favorable Hearing, Richmond Register (Jan. 22, 2020), https://rb.gy/jxbuon. 66 See Pam Fessler, ‘It’s Partly On Me’: GOP Official Says Fraud Warnings Hamper Vote-ByMail Push, NPR (May 15, 2020), https://perma.cc/5869-4YMU. 67 Cepeda Derieux Decl., Ex. 1 at 15 (concluding that there are more positive cases of COVID-19 where more people voted in-person in Wisconsin). 68 Id., Ex. 1 at 4 (recommending measures to reduce the number in-person voter on Election Day).
30

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 35 of 56 PageID #: 282
Plaintiffs Collins, Cosby, Elliott, Lewis, Nash, and Price have voted in person in recent years, and do not qualify for any absentee excuses currently available under Kentucky law, but each of them is at heightened risk for contracting and suffering from severe complications from COVID-19. All individual Plaintiffs are Black. Plaintiffs Cosby and Lewis are over 65 years old. And each Plaintiff suffers from serious underlying conditions including COPD, hypertension, diabetes, chronic kidney disease, and cancer. Collins Decl. ¶ 2–3, 9–10; Cosby Decl. ¶ 1–2, 9; Elliott Decl. ¶¶ 2, 4, 10–11; Lewis Decl. ¶¶ 2, 4, 11–13; Nash Decl. ¶¶ 2–3, 8; Price Decl. ¶¶ 2, 4, 10, 11. Because of their risk of infection, they will be forced to make an unacceptable decision between protecting their health and exercising their right to vote if the Excuse Requirement is reinstated for the November election.
If the Excuse Requirement is not enjoined, even voters who are not themselves at heightened risk will be forced to choose between their right to vote and potentially spreading COVID-19 to family members who are at high risk. Declarants Hanner and Pregliasco are both the primary caregivers for family members with dangerous underlying health conditions. Ex. M, Declaration of Marlene Hanner (Hanner Decl.) ¶ 2; Ex. N, Declaration of Delores Pregliasco (Pregliasco Decl.) ¶ 2. Declarant Hanner would not vote in November if the Excuse Requirement remains in place because her exposure to the virus would threaten her husband’s health and safety. Hanner Decl. ¶ 10. Declarant Pregliasco similarly recognizes that the Excuse Requirement will force her to choose between unnecessarily increasing her husband’s likelihood of contracting COVID-19 and being unable to vote. Pregliasco Decl. ¶ 10–11.
2. Voting Rights Organizations Will Suffer Irreparable Injury Diverting Resources To Contend With the Challenged Restrictions
As an initial matter, if the Excuse Requirement is enforced in the November election, the members of Plaintiff organizations will also have to risk their health or the health of their
31

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 36 of 56 PageID #: 283
communities to cast a ballot on Election Day. The League of Women Voters of Kentucky (“LWVKY”), Louisville Urban League (“LUL”) and Kentucky NAACP (“KYNAACP”) all have members who are registered voters who plan to vote in November and have chronic or underlying health conditions that put them at heightened risk of complications from COVID-19. Wagner Decl. ¶¶ 15, 19; Reynolds Decl. ¶ 22; Burse Decl. ¶¶ 17, 20. Each organization also has members who live with family members or in communities with people who are in an at-risk population. Wagner Decl. ¶ 19; Reynolds Decl. ¶ 22; Burse Decl. ¶ 20. For instance, KYNAACP member Mary Johnson is the primary caregiver for her elderly father and two special needs children. Burse Decl. ¶ 20. Johnson needs to vote by absentee ballot in November because the risk of exposure to COVID-19 at the polls could lead her to infect her father or children, id., but the Excuse Requirement will force her to choose between disenfranchisement and exposure to COVID-19.
Organizational Plaintiffs will also have to divert resources from their 2020 priorities if Kentucky fails to waive the Excuse Requirement, which will irreparably impact their ability to register voters, assist in felon reinfranchisement, and/or assist voters adversely affected by the recent purge of the voter rolls. For the 2020 election cycle, each organization planned to continue its voter registration and engagement efforts: all three organizations planned to attempt to register the 150,000 people with criminal convictions who had their voting rights restored by the Governor on December 12, 2019, and KYNAACP planned to contact individuals among the 170,000 voters who state officials listed as “inactive” as part of a plan to conduct massive purges of registration records. Wagner Decl. ¶¶ 6, 12; Reynolds Decl. ¶¶ 12, 15; Burse Decl. ¶¶ 10–11.
Because of Defendants’ decision to reintroduce the Excuse Requirement for the November election despite the ongoing COVID-19 pandemic, the Plaintiff organizations are now ensuring that voters, especially those with underlying conditions, are educated about their options for voting
32

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 37 of 56 PageID #: 284
during the COVID-19 pandemic. See, e.g., Wagner Decl. ¶¶ 16, 20–21. Defendants’ decision to reintroduce the Excuse Requirement and abandon the safeguards they put in place for the June Primary will require the plaintiff organizations to educate voters about the rule changes from the June Primary to the November general election, especially for the hundreds of thousands of Kentucky voters who requested absentee ballots for the June Primary. In particular, voters will need to be educated as to the fact that a request for an absentee ballot that does not meet the Excuse Requirement will be rejected for the November election, even if it would have been accepted for the June Primary. Plaintiff organizations expect that these efforts to educate Kentucky voters about their ever-changing and limited options for voting during the pandemic will divert substantial resources from their originally planned activities. See, e.g., Wagner Decl. ¶¶ 20–21.
C. The Balance of Equities and Public Interest Favor an Injunction During the Pandemic
Defendants would incur little if any harm from enjoining enforcement of the Excuse Requirement. The administrative burden is clearly manageable, as reflected by Defendants’ decision to effectively eliminate the Excuse Requirement for the June Primary. And because Plaintiffs seek relief months in advance of November, Defendants have time to plan and implement modifications for the general election. Indeed, modifications for the June Primary offer a clear blueprint on how to prepare for November. And, in any event, “administrative convenience” cannot justify deprivation of a constitutional right. Taylor v. Louisiana, 419 U.S. 522, 535 (1975). Likewise, the insubstantiality of any impact on the public interest as regards the deterrence of alleged fraudulent voting, as addressed above, cannot justify maintaining the Excuse Requirement.
An injunction extending Kentucky’s Excuse Requirement modifications to the November election would favor the public interest by “permitting as many qualified voters to vote as possible” without contracting a deadly virus. Obama for Am., 697 F.3d at 437. The “public has a strong
33

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 38 of 56 PageID #: 285
interest in exercising the fundamental political right to vote” because voting in a “free and unimpaired manner is preservative of other basic civil and political rights.” Obama for Am., 697 F.3d at 436–37 (quoting Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)); Reynolds v. Sims, 377 U.S. 533, 562 (1964) (internal citations omitted).
The public interest also “lies with safeguarding public health.” Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013); see also Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498, at *4 (E.D. Va. Aug. 18, 2016) (“The public interest is clearly in remedying dangerous or unhealthy situations and preventing the further spread of disease.”). Defendants agree. As Defendants stated, their emergency regulations for the June Primary “allow[ed] for the conduction of elections that minimize the health-risk of all involved[.]” Ky. Bd. of Elections, Procedures for June 23, 2020 Election, 31 Ky. Admin. Regs. 4:190E (2020). The need to protect the health and safety of voters will still exist in November. III. The First and Fourteenth Amendments Prohibit Implementation of the Photo ID Law
During the Pendency of the COVID-19 Pandemic A. Plaintiffs Are Likely to Succeed on the Merits Because Implementation of the Photo ID Law Threatens Voters’ Health and Safety During the COVID-19 Pandemic 1. Implementation of the Photo ID Requirement During the Pandemic Imposes a Substantial Burden on Voters As applied during the COVID-19 pandemic, the Photo ID Law threatens to disenfranchise
Kentucky voters who do not currently have a qualifying photo ID, including Louisville Urban League members and clients without photo IDs. See, e.g., Reynolds Decl. ¶¶ 14, 16. A conservative analysis demonstrates that at least 100,000 Kentucky voters lack the requisite photo ID. Ex. O, Declaration of Dr. Eitan Hersh (Hersh Decl.) ¶¶ 15, 24, 26. Such voters will need to go to a public office to obtain a photo ID such as a driver's license, subjecting them to a substantial risk of infection. Murray Decl. ¶ 19.
34

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 39 of 56 PageID #: 286
With limited exceptions, Kentucky voters must visit their local circuit court clerk’s office or REAL ID Regional Driver’s Licensing Office in person to obtain a photo ID.69 But as of the date of filing this motion, many of these offices remain closed: half of the Commonwealth’s REAL ID offices remain closed, half of the circuit court clerk’s offices in Jefferson County remain closed, and “in-person services are no longer available” at Fayette County’s circuit court clerk’s offices.70 Until all license issuance locations have fully reopened, many voters will simply be unable to obtain the photo ID that is required under S.B. 2.
Even when licensing offices reopen, many Kentuckians will still struggle to fulfill S.B. 2’s requirements for at least three reasons.
First, traveling to and entering licensing offices to obtain a photo ID presents the same threats to voter health and safety as going to polling places, including use of public transportation, proximity to others, indoor crowding, officials interacting with multiple people throughout the day, and touching common items and surfaces. These burdens will be especially pronounced for Kentucky voters who face increased risk of suffering severe illness or death from COVID-19, including voters with underlying medical conditions, Black voters, older voters, and voters with disabilities. See supra at 8–10 (discussing heightened risks for especially vulnerable Kentuckians).
Second, the office that voters will need to visit will likely be more crowded given that Kentucky’s implementation of the Photo ID Law coincides with its rollout of the REAL ID Act. The REAL ID Act is a separate change to driver’s licensing that has created “significant unforeseen
69 The exceptions concern voters whose licenses expired between March 1 and June 30, 2020. Ky. Court of Justice, Driver’s Licensing Services Reopening Plan, https://perma.cc/MV68-2ATS (last visited July 9, 2020). 70 See id.; Ky. Transp. Cabinet, Schedule, https://rb.gy/5hsglt (last visited July 9, 2020); Ky. Court of Justice, Driver’s License Services, https://kycourts.gov/Pages/DLreopeningplan.aspx (last visited July 9, 2020).
35

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 40 of 56 PageID #: 287
workload and staffing issues” at Kentucky licensing offices.71 The combination of the reduced capacity of Kentucky licensing offices and increased demand for photo IDs associated will mean that voters will have to hazard visits to crowded offices in order to obtain the IDs they need for voting. Indeed, as some offices have reopened, long lines have become the norm, including a more than four hour wait to get a driver’s license in Jefferson County.72
Third, even for Kentuckians with qualifying photo IDs, S.B. 2 creates an additional set of life-threatening risks for voters attempting to comply with the Photo ID Law while voting by mailin absentee ballot. If a voter does not have a photocopy machine or printer at home, they will be forced to go into a public space to make the statutorily required photocopy of their ID to attach to their application for a mail-in absentee ballot. See S.B. 2 § 5(2). This means a voter must choose between either entering a business or library—many of which are not yet open—to use copying and printing equipment, a possible vector for contracting COVID-19, or losing their right to vote. Individual Plaintiffs, members of organizational Plaintiffs, and the hundreds of thousands of Kentucky voters without photo IDs will be forced to put their health at risk to comply with the Photo ID Law. For example, Plaintiffs Cosby, Elliott, and Price do not own a printer or copier, so they or their family members would need to leave their homes and break social distancing practices to obtain a photocopy of their photo ID. Cosby Decl. ¶ 10; Elliott Decl. ¶¶ 13–14.
71 Ben Tobin & Sarah Ladd, Kentucky Halts Real ID Rollout as Federal Deadline for Travelers Looms, Louisville Courier Journal (Mar. 3, 2020), https://perma.cc/XSE8-D5K7. 72 WLKY, Bowman Field Driver’s License Branch Leaves People Waiting for Hours (July 6, 2020), https://rb.gy/cdpfwb.
36

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 41 of 56 PageID #: 288
2. The State’s Interests in Implementing the Photo ID Law During the Pandemic Do Not Outweigh the Substantial Burdens on Plaintiffs
Even under the flexible standard used to evaluate more moderate burdens, see Green Party of Tenn., 767 F.3d at 546, enforcing the Photo ID Law during the pandemic is unconstitutional. Whatever interest Kentucky may have in deterring voter fraud by implementing the Photo ID law for the November election is outweighed by the substantial burdens on the right to vote. This is true for three reasons.
First, by Defendants’ own admission, the state’s interest in deterring voter fraud in Kentucky cannot be presumed to be significant. As noted above, Secretary Adams has conceded that he is “not aware of any instance over the past decade in which voter fraud was committed in Kentucky by someone impersonating another eligible voter,” and he has further acknowledged there “is no evidence of extensive fraud in U.S. elections or of multiple voting.”73 Regarding the June Primary—which was conducted without the Photo ID Law—Adams has said that Kentucky “had a clean election” with “no reported incidents of fraud.”74 Likewise, Governor Beshear has remarked that the June Primary demonstrated that Kentucky “can safely do voting by mail, and we proved that we can without fraud.”75
73 Joe Sonka, Kentucky Republicans Say Voter ID Bill Will ‘Increase Confidence’ in Election Process, Louisville Courier Journal (Feb. 20, 2020), https://perma.cc/24TY-KJX7; LRC Public Information, Voter ID Bill Receives Favorable Hearing, Richmond Register (Jan. 22, 2020), https://rb.gy/jxbuon. 74 WKYT, Secretary of State Michael Adams Speaks About Primary Election Results at 6:25, https://rb.gy/bgat4q; see id. at 13:10 (“I think I’ve shown that we can make absentee ballots work without fraud.”). 75 Gov. Andy Beshear, Daily Media Briefing 06.30.2020 at 46:09–47:02 (June 30, 2020), https://youtu.be/DIEbxBB7fyw.
37

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 42 of 56 PageID #: 289
Second, the narrow question presented is the degree to which the Photo ID Law incrementally deters voter fraud above and beyond existing safeguards. Such measures include the non-photo identification requirements that existed under the law as it stood before S.B.2 was enacted. See Ky. Rev. Stat. § 117.227 (requiring election officers to confirm voter identity with photo or non-photo ID, such as Social Security card or credit card). And to make an online request for an mail-in absentee ballot, prospective voters are already required to enter their Social Security number and date of birth.76 Further, voter fraud is already deterred by virtue of criminal penalties that attach to illegal voting. Ky. Rev. Stat. § 117.995(5) (criminalizing “vot[ing] an absentee ballot other than the one issued in his or her name” or “appl[ying] for the ballot for the use of anyone other than” themselves).
Third, in the context of mail-in absentee ballots, there is a complete disconnect between preventing voter fraud and requiring voters to include a photocopy of their photo ID with their mail-in absentee ballot application. Put simply, there is “no way for the state election officials to determine whether the photo ID actually belonged to the absentee voter,” because the voter “wouldn’t be presenting his face at the polling place for a comparison with the photo.” Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 954 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (dicta). Ultimately, because “the absence of a person standing before the election officials precludes linking the enclosed identification with the person actually casting the ballot,” “nothing suggests that absentee ballot fraud would be limited by a photo-identification requirement that applied to absentee voting.” Am. Civ. Liberties Union of N.M. v. Santillanes, 546 F.3d 1313, 1320 (10th Cir. 2008) (dicta).
76 N. Ky. Tribune, More Than 100,000 Kentucky Voters Successfully Apply Online for Absentee Ballot as of Tuesday (May 27, 2020), https://rb.gy/kmkq8v.
38

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 43 of 56 PageID #: 290
3. Plaintiffs Will Suffer Irreparable Injury During the Pandemic If the Photo ID Law Is Not Enjoined
The number of registered Kentucky voters who lack the required Photo ID is conservatively estimated to be at least 100,000. Hersh Decl. ¶¶ 15, 24, 26. Those voters will have to undergo the risk of visiting a public office (if and when they re-open) in order to exercise their right to vote. And those with a photo ID will need to visit a copy center if they are to vote by mail. This constitutes an irreparable burden on the right to vote.
Organizational Plaintiffs have members without photo IDs who will be impacted by the new law. See, e.g., Reynolds Decl. ¶¶ 14, 16. And the organizational Plaintiffs themselves have had to divert limited resources from their original 2020 priorities—namely, registering voters and assisting with restoration of voting rights to Kentuckians with felony records—to respond to the impact of the Photo ID Law. All three organizations have already begun working to educate their members and constituencies about the Photo ID Law, and when and how to obtain a qualifying photo ID. Burse Decl. ¶¶ 14–16; Wagner Decl. ¶ 10–11, 13; Reynolds Decl. ¶¶ 12, 16–18.
LWVKY is already revising its existing voter educational materials, and it anticipates that it will need to reduce resources on other voter services to conduct advertising to spread crucial information about the Photo ID Law to the public. Wagner Decl. ¶ 11. Responding to the Photo ID Law will strain LWVKY volunteers’ time and the organization’s tight financial resources. Wagner Decl. ¶¶ 10–11, 13.
KYNAACP is already is developing educational materials on the Photo ID Law for voters and training volunteers on the Photo ID Law’s new requirements so they can better educate voters. Burse Decl. ¶ 14. KYNAACP will also devote resources to assist voters to obtain qualifying photo ID, especially seniors and voters who rely on public transportation. Burse Decl. ¶¶ 14. KYNAACP anticipates that volunteer time devoted to clearing up the confusion caused by the
39

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 44 of 56 PageID #: 291
Photo ID Law will reduce time that volunteers would otherwise spend registering voters, including voters with felony records whom KYNAACP had prioritized for assistance. Burse Decl. ¶¶ 9–16.
LUL has already reevaluated its planned spending on civic engagement activities in light of the new Photo ID Law, and determined that it will need to spend tens of thousands of dollars in staff resources on outreach campaigns and logisitical assistance to mitigate the impacts of the Photo ID Law on disconnected youth. Reynolds Decl. ¶¶ 18. In addition, LUL anticipates that it will need to devote resources and staff time to providing guidance and transportation to seniors, homeless persons, and individuals who recently had their rights restored who need a qualifying photo ID. Reynolds Decl. ¶¶ 13–17. LUL anticipates that it will need to reduce staff time spent on critical activities like voter registration to adequately respond to the Photo ID Law. Reynolds Decl. ¶ 17.
B. The Balance of Equities and Public Interest Weigh in Favor of Plaintiffs During the Pandemic
The balance of equities and the public interest weigh in favor of granting an injunction and protecting Kentucky voters. There would be little to no harm in enjoining Defendants from enforcing the Photo ID Law during this unprecedented pandemic. And Kentucky officials have acknowledged that voter fraud is, at worst, a minimal problem in the state. The difficulties and dangers inherent in obtaining the newly required ID decisively outweigh the additional incremental protection against this minimal amount of fraud provided by S.B. 2. As to implementing the law for voters who cast absentee ballots, there is no connection between placing a photocopy of a photo ID in an absentee ballot application and verifying voter identity. By contrast, failing to enjoin the Photo ID Law would put at least 100,000 Kentucky voters at risk of either being excluded from exercising a fundamental right or contracting a deadly virus. Hersh Decl. ¶¶ 15, 24, 26.
40

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 45 of 56 PageID #: 292
The public interest also weighs in favor of granting an injunction, because “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, 23 F.3d at 1079. “Quite simply, allowing for easier and more accessible voting for all segments of society serves the public interest.” League of Women Voters of Fla., Inc., v. Detzner, 314 F. Supp. 3d 1205, 1224 (N.D. Fla. 2018). It cannot be in the public interest to force more voters to enter public spaces to vote and risk their lives. IV. The First And Fourteenth Amendments Require Kentucky To Provide Voters in the
November General Election with the Three Voting Protections Provided for the June Primary
The three June Voting Protections implemented to modify Kentucky election laws and rules for the June Primary—(1) notice and opportunity to cure signature discrepancies, (2) waiving the notarization requirement for medical emergencies, and (3) extending the absentee ballot deadline—were necessary to protect voters’ constitutional right to vote during the ongoing COVID-19 pandemic. Defendants have failed to extend these modifications to the November general election. The Kentucky election rules currently in effect for November—Ky. Rev. Stat. § 117.077 (the “Notarization Requirement”), Ky. Rev. Stat. § 117.086(1) (the “Mailing Deadline”), and the lack of June Signature Match Protections (collectively, the “Challenged Rules”)—impose unacceptable burdens on Kentucky voters attempting to cast ballots during the COVID-19 pandemic.
A. Plaintiffs Will Likely Succeed in Demonstrating that Failure to Implement the June Signature Match Protections Unduly Burdens the Right to Vote and Violates Voters’ Due Process Rights
If Defendants fail to implement the June Signature Match Protections during the November election, all absentee ballots cast will be verified through a largely arbitrary system dependent on the judgment of individual election officials. Ex. P, Declaration of Dr. Linton Mohammed (Mohammed Decl.) ¶¶ 23–26, 28, 52. Most important, without notice and an opportunity to cure,
41

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 46 of 56 PageID #: 293
voters will have no chance to correct an arbitrary denial of their right to vote. Thus, absent notice and cure safeguards, to be assured that their vote is counted, Kentuckians must choose between the risk of being disenfranchised and the risks associated with voting in person on Election Day.
1. Plaintiffs Will Likely Establish that the Failure to Extend the June Signature Match Protections to the November Election Cannot Survive Under Anderson-Burdick
The state’s interest in reverting to the pre-June signature match process is slight and cannot justify the burdens imposed on voters by that process. While the state has an interest in preventing voter fraud and upholding election integrity, there is scant support for the proposition that ballots with perceived signature mismatches are submitted fraudulently. See Fl. Democratic Party v. Detzner, No. 4:16-CV-607-MW/CAS, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 16, 2016) (“Detzner I”). In fact, various courts have found that a wide range of legitimate factors can affect the accuracy of an individual’s signature. Id.; Saucedo v. Gardner, 335 F. Supp. 3d 202, 217–18 (D.N.H. 2018); Indeed, ensuring that voters can cure errors would prevent—not increase—voter fraud, since election supervisors would be confirming the identity of voters before their ballots are counted. See Detzner I, 2016 WL 6090943, at *7.
Defendants recognize that the burden imposed by the pre-June signature match process outweighs any interest in reintroducing that process during the pandemic. By implementing the June Signature Match Protection, Defendants implicitly acknowledge that the pre-June signature match process would arbitrarily disenfranchise an unprecedented number of voters. See Democratic Exec. Comm. v. Detzner, 347 F. Supp. 3d 1017 (N.D. Fla. 2018) (“Detzner II”).
2. Failure to Implement Signature Match Notice and Cure Protections for the November Election Violates Voters’ Fourteenth Amendment Procedural Due Process Rights
Establishing a procedural due process violation requires showing “the deprivation of [a constitutionally protected interest] without due process of law.” Zinermon v. Burch, 494 U.S. 113,
42

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 47 of 56 PageID #: 294
125 (1990). Determining what process is due rests on the balancing of three factors: (i) the interest affected; (ii) the risk of erroneous deprivation under the current procedures, and the “probable value, if any, of additional or substitute procedural safeguards”; and (iii) the state’s interest, including the “fiscal and administrative burdens” additional procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
All three factors lean heavily in Plaintiffs’ favor. First, when a state provides absentee voting, courts have confirmed that Plaintiffs’ ability to vote by absentee ballot is a liberty interest “deserving of due process.” Saucedo, 335 F. Supp. 3d at 217 (quoting Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990)); Zessar v. Helander, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2016) (citing Paul v. Davis, 424 U.S. 693, 711 (1976)).
Second, the risk of erroneous deprivation is high. Experts generally agree that handwriting analysis by laypersons—which is what signature comparisons require—“is fraught with error.” Saucedo, 335 F. Supp. 3d at 217. Where the state employs no standards for signature comparisons, officials are likely to commit errors, and are more likely to disqualify authentic signatures than identify fraudulent ones. Mohammed Decl. ¶¶ 23–25, 52; Saucedo, 335 F. Supp. 3d at 217–18. In addition, errors increase when election officials—who do not receive any training in handwriting analysis—are not checked by meaningful review or oversight by state agencies or the public. Saucedo, 335 F. Supp. 3d at 218. And the risk of arbitrary disenfranchisement will be heightened in November, since the pandemic will prevent many voters from visiting polling places in person and Kentucky will have a much higher level of absentee voting compared to prior elections. Yet Kentucky’s pre-June signature match process fails to provide any remedy for these errors: it provides no notice to voters if their ballot is rejected due to a perceived signature mismatch and no opportunity to cure. Therefore, additional procedural safeguards that prevent, or
43

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 48 of 56 PageID #: 295
at least limit, such instances of arbitrary disenfranchisement are necessary to protect Kentuckians’ right to vote. See id. at 219.
Third, the state’s interest does not outweigh the value of notice and cure procedures that safeguard the right to vote. While the state has an interest in election integrity and preventing voter fraud, providing voters an opportunity to cure any perceived signature mismatch in no way diminishes that interest. In fact, such validation would advance the state’s goals and affirm public confidence in the election. See id. at 220; Detzner I, 2016 WL 6090943, at *7 (“[L]etting mismatched-signature voters cure their vote by proving their identity further prevents voter fraud—it allows supervisors of elections to confirm the identity of that voter before their vote is counted.”). Nor can any fiscal or administrative burdens that result from implementing notice and cure procedures for the November election outweigh the risk created by non-implementation—the heightened threat of widespread disenfranchisement. See Taylor, 419 U.S. at 535. Since the absentee ballot application requires voters to submit contact information (e.g., email address and phone number), moderators need only make a simple telephone call or send an email to provide notice. As Defendants recognized when they implemented notice and cure procedures for the June Primary, such burdens do not outweigh the benefits of these safeguards.
Defendants’ pre-June signature match process thereby violates procedural due process, and Plaintiffs should be afforded appropriate relief for the November election. See, e.g., Self Advocacy Solutions N.D. v. Jaeger, 2020 WL 2951012, at *9 (D.N.D. June 3, 2020); Saucedo, 335 F. Supp. 3d at 222.
B. Failure to Waive the Notarization Requirement in November Unduly Burdens the Right to Vote
As noted above, for the June Primary, Defendants broadly construed the “medical emergency” excuse, under Ky. Rev. Stat. § 117.077, to apply to all voters who have “a reasonable
44

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 49 of 56 PageID #: 296
fear of infection or transmission during a state of public health emergency declared by the Governor.” 31 Ky. Admin. Regs. 4:190E § 2. And Defendants waived the requirement that voters notarize applications for these ballots. Id. § 3. If the notarization requirement is not similarly waived for the November election, voters confined due to a medical emergency may be forced to leave their confinement to properly execute their absentee ballot application. In addition, where a voter’s medical emergency is COVID-19 itself, the notarization requirement would seemingly require that voter to violate quarantine and visit a notary public.
The state also fails to provide realistic alternatives for these voters that permit them to avoid social contact. In late March, the state enacted a bill that permits notarization by video teleconference, during the duration of the state of emergency declared on March 6, 2020. See S.B. 150 § 1(11), 2020 Gen. Assemb., Reg. Sess. (Ky. 2020). However, the bill does not lay out how remote notarizations would work for time-sensitive absentee ballot applications, and the Secretary of State provided no further guidance on the topic. It is also unclear whether commissioned notaries who perform these remote video notarizations must follow the state’s registration process for electronic notaries. This process involves a series of steps, which include posting a $1,000 surety bond.77 It therefore may be difficult or impossible for voters to locate and contact an electronic notary public. Many voters may be unfamiliar with the process or unsure where to access resources. Given the confusion around these issues, remote notarization is likely not a realistic alternative for most voters that qualify for emergency ballots.
Any state interest in reintroducing the notarization requirement for the November election does not justify the corresponding burdens on voters. Under Kentucky law, the only voters
77 Ky. Sec’y of State, Electronic and Remote (Online) Notary Public, https://perma.cc/LJC7ELT3.
45

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 50 of 56 PageID #: 297
required to notarize absentee ballot applications are those experiencing a medical emergency. Although notarization requirements typically serve to protect against voter fraud, there is no evidence that a notarization requirement applied only to this particular group of voters advances the state’s interest in protecting against fraud. See Thomas, 2020 WL 2617329, at *20 (“While states certainly have an interest in protecting against voter fraud and ensuring voter integrity, the interest will not suffice absent ‘evidence that such an interest made it necessary to burden voters’ rights.’”) (quoting Fish v. Schwab, 957 F.3d 1105, 1133 (10th Cir. 2020)). Defendants implicitly acknowledged that this notarization requirement was unnecessary when they waived it for the June Primary.
C. Failure to Accept Mail-In Absentee Ballots Postmarked by Election Day Unduly Burdens the Right to Vote During the Pandemic
Kentucky’s current absentee ballot receipt deadline, Ky. Rev. Stat. § 117.086(1), will impose a substantial burden on voters during the COVID-19 pandemic. State absentee ballot receipt deadlines impose heavy burdens when the state does not provide voters with sufficient time to receive, complete, and return absentee ballots prior to the deadline, and where voters have no meaningful alternatives for casting a ballot. See, e.g., Doe v. Walker, 746 F. Supp. 2d 667, 679– 80 (D. Md. 2010) (finding right to vote violation where deadlines made it virtually impossible for military personnel overseas to cast absentee ballots). During the early days of the COVID-19 pandemic, one federal court ruled that a state’s Election Day receipt deadline imposed a heavy burden, where voters did not have sufficient time to receive, complete and return their absentee ballots. Democratic Nat’l Comm. v. Bostelmann, 2020 WL 1638374, at *17–18 (W.D. Wisc. Apr. 2, 2020).78
78 While the Supreme Court reversed Bostelmann’s extension of the absentee ballot submission deadline to six days after Election Day, the Court ultimately maintained an extension of the
46

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 51 of 56 PageID #: 298
Here, anticipating an increased demand for mail balloting, Defendants modified the receipt deadline for the June Primary to accept ballots postmarked by Election Day. For the November general election, even the most diligent voter will likely have difficulty returning their absentee ballot by the Election Day deadline. The increased demand for absentee ballots will create pressure on county clerks to process unprecedented backlogs of absentee ballot applications, and on the U.S. Postal Service (“USPS”) to timely deliver ballots to and from voters. In light of these pressures, delays in processing applications and delivering ballots, sometimes lasting weeks, have occurred across the country, as well as in Kentucky in the lead up to the June Primary.79 USPS General Counsel and Executive Vice President, Thomas J. Marshall, recently noted that the Postal Service “cannot guarantee a specific delivery date or alter standards to comport with individual state election laws.”80 He then recommended that election officials allow for at least one week to deliver ballots to voters, and that voters, in turn, return ballots at least one week prior to the due date established by state law.
In light of these challenges, many voters who submit their application for an absentee ballot within two weeks of Election Day will likely receive their ballot with insufficient time to vote and return that ballot. Even voters who apply more than two weeks in advance may similarly receive
deadline for submitting absentee ballots to an Election Day postmark deadline. Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702 (Apr. 6, 2020) (per curiam) (finding that the Election Day postmark deadline “was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.”). 79 Ben Tobin, ‘Doing the Best We Can’: Local Election Officials Scramble to Meet Absentee Ballot Demand, Louisville Courier Journal (June 9, 2020), https://rb.gy/ojgzc9; Mark Niesse, Absentee Ballots Delayed and Polls Close as Georgia Primary Approaches, Atlanta Journal-Constitution (June 3, 2020), https://perma.cc/MSX5-6AF2. 80 Thomas J. Marshall, U.S. Postal Service, Election Mail (May 29, 2020), https://rb.gy/nubmb2.
47

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 52 of 56 PageID #: 299
ballots late, as backlogs of applications cause processing delays in county clerks’ offices.81 These diligent voters will not have sufficient time to receive, complete, and return their ballots in a manner that ensures that they are counted. Doe, 746 F. Supp. 2d at 679.
The state’s interest in the receipt deadline is not sufficiently weighty to justify the burden it imposes on voters. The deadline serves the state’s legitimate interest in “ensuring final, fair and orderly elections.” Id. However, that interest does not “overcome the burden faced by voters who, through no fault of their own, will be disenfranchised by the enforcement of the law.” Democratic Nat’l Comm., 2020 WL 1638374, at *17. More important, Defendants have already acknowledged that their interest in finality does not outweigh the burdens imposed by the deadline in the context of the pandemic, as Defendants modified the deadline for the June Primary.
D. Plaintiffs Will Suffer Imminent Irreparable Injury During the Pandemic If the June Voting Protections Are Not Maintained for the November Election
Individual Plaintiffs and organizational Plaintiffs’ members are likely to suffer irreparable harm to their constitutional rights if any of the Challenged Rules remain in place during the November election. As set forth above, Plaintiffs who personally suffer from underlying conditions—or live with someone who does—are at high risk of experiencing serious health consequences from contracting COVID-19 while voting in person, so they plan to vote by mail-in absentee ballot if this Court enjoins the Excuse Requirement. However, even if permitted to vote by mail, the Challenged Rules will impair the ability of these Plaintiffs and voters to exercise their right to vote and, as explained above, will result in disenfranchisement for many voters.
81 A recent South Carolina district court decision rejected a challenge to an election day receipt deadline based on the conclusion that voters had “ample time to request an absentee ballot and timely submit it to [election officials] well before Election Day.” Thomas, 2020 WL 2617329, at *26 n.26. Here, however, the evidence from the June Primary demonstrates that processing and delivery delays threaten to leave many voters without sufficient time to cast their ballots.
48

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 53 of 56 PageID #: 300
Accordingly, the Challenged Rules must also be enjoined to effectuate Plaintiffs’ right to vote during the pandemic.
The Challenged Rules will force voters to choose between exposing themselves to COVID19 by voting in person or accepting potential disenfranchisement without an opportunity to cure if their mail-in absentee ballot is rejected due to perceived signature mismatch or mailing delays. Courts have held that such threats to constitutional rights constitute irreparable harm. See Self Advocacy Solutions N.D., 2020 WL 2951012 (finding irreparable harm in case involving a signature match claim); Thomas, 2020 WL 2617329 (finding irreparable harm in case involving a witness signature verification requirement).
E. The Balance of Equities and Public Interest Favor Maintaining the Three June Voting Protections for the November General Election
The balance of the equities weighs heavily in favor of an injunction implementing the three June Voting Protections during the November general election. The administrative burden on Defendants to implement any of the three protections for the November election is slight. Defendants have already adopted and are currently implementing these changes for the June Primary. Moreover, Plaintiffs seek relief several months in advance of November, giving Defendants enough time to plan and implement the modifications for the general election. Harm to Plaintiffs’ constitutional rights easily outweighs these administrative concerns. See Taylor, 419 U.S. at 533. Defendants cannot claim that an injunction harms their interest in enforcing state election law requirements, given that their decision to adjust election laws for the June Primary to account for the COVID-19 pandemic reveals that any burden on that interest is also slight.
The public interest also favors the issuance of an injunction implementing the three June Voting Protections during the November election. The public “interest is best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful.
49

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 54 of 56 PageID #: 301
Obama for Am., 697 F.3d at 437. Consequently, “the public interest . . . favors permitting as many qualified voters to vote as possible.” Id. The extension of the three June Voting Protections to November fulfills this standard, as these protections will ensure that as many voters as possible can cast votes successfully during the general election. In addition, the protections are designed to ensure that voters can exercise their constitutional right, and “it is always in the public interest to prevent violation of a party’s constitutional rights.” Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 929 (6th Cir. 2020). Finally, the public interest is served by minimizing crowds during the COVID-19 pandemic, and the June Voting Protections, by inspiring increased confidence in Kentucky’s absentee ballot regime, will help alleviate crowds at poll sites on Election Day.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court enter a preliminary injunction: (1) enjoining the Excuse Requirement during the pendency of the COVID-19 pandemic, (2) enjoining the Photo ID Law during the pendency of the COVID-19 pandemic, and (3) enjoining Defendants’ elimination of the June Voter Protections during the pendency of the COVID-19 pandemic.
50

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 55 of 56 PageID #: 302

Respectfully submitted,

/s Corey Shapiro____________

Adriel I. Cepeda Derieux Sophia Lin Lakin Dale E. Ho AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 acepedaderieux@aclu.org slakin@aclu.org dho@aclu.org
Ceridwen Cherry AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15TH STREET, NW Washington, DC 20005-2313 (202) 675-2326 ccherry@aclu.org
Ezra Rosenberg Ajay Saini Natasha Chabria LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW 1500 K Street NW, Suite 900 Washington, DC 20005 (202) 662-8600 erosenberg@lawyerscommittee.org asaini@lawyerscommittee.org nchabria@lawyerscommittee.org

Corey Shapiro, Ky. Bar No. 96897 Counsel of Record
Heather Gatnarek, Ky. Bar No. 95113 ACLU OF KENTUCKY FOUNDATION 325 W. Main Street, #2210 Louisville, KY 40202 (502) 581-9746 corey@aclu-ky.org heather@aclu-ky.org
Megan C. Keenan Mary Elise Holman Scott J. Garfing Jayne Ponder COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-6000 mkeenan@cov.com eholman@cov.com sgarfing@cov.com jponder@cov.com
Robert D. Fram COVINGTON & BURLING LLP Salesforce Tower 415 Mission Street, Suite 5400 San Francisco, CA 94105-2533 (415) 591-6000 rfram@cov.com

Date: July 10, 2020

Case 3:20-cv-00375-CRS Document 30 Filed 07/10/20 Page 56 of 56 PageID #: 303
CERTIFICATE OF SERVICE I hereby certify that on the 10th day of July 2020, I electronically filed the foregoing Motion for Preliminary Injunction with the Clerk of the Court using the CM/ECF system, which will send notification to all counsel of record.
/s Corey Shapiro______________ Corey Shapiro

Case 3:20-cv-00375-CRS Document 30-1 Filed 07/10/20 Page 1 of 3 PageID #: 304

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

MICHAEL COLLINS, JEFFREY COSBY, THELA ELLIOTT, GRACIE LEWIS, DEJUAN NASH, TIFFANY PRICE, LEAGUE OF WOMEN VOTERS OF KENTUCKY, LOUISVILLE URBAN LEAGUE, and KENTUCKY CONFERENCE OF NAACP BRANCHES,
Plaintiffs,
v.
MICHAEL ADAMS, in his official capacity as the Secretary of State of Kentucky; ANDREW BESHEAR, in his official capacity as the Governor of Kentucky; and ALBERT BENJAMIN CHANDLER, III, in his official capacity as the Chairman of the Kentucky Board of Elections,
Defendants.

Civil Case No. 3:20-cv-0375-CRS

[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION Having considered the parties’ pleadings, the arguments of counsel, and the record in this case, the Court orders that Plaintiffs’ Motion for a Preliminary Injunction is hereby is GRANTED. This Court hereby orders the following relief: 1. For the November 3, 2020 election, and throughout the pendency of the COVID19 pandemic, Secretary Michael Adams, Governor Andrew Beshear, Chairman Albert Benjamin Chandler III, and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them (collectively, “Defendants”) are hereby ENJOINED from enforcing the Excuse Requirement (as codified by Ky. Rev. Stat. §§ 117.077 and 117.085)

Case 3:20-cv-00375-CRS Document 30-1 Filed 07/10/20 Page 2 of 3 PageID #: 305
to prevent any eligible voter, regardless of age and physical condition, to request, receive, and have counted, an absentee ballot while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters.
2. For the November 3, 2020 election, and throughout the pendency of the COVID19 pandemic, Defendants are hereby ENJOINED from enforcing the Photo ID Law (as stated in S.B. 2) for all voters while the risk of community transmission of COVID-19 continues to threaten the health and safety of Kentucky voters.
3. Defendants are hereby ORDERED to apply to the November 3, 2020 general election the same precautions that Defendants have already enacted to conduct the June 23, 2020 primary election safely during the pandemic, including (a) eliminating the notarization requirement for medical emergency absentee ballots, (b) counting all ballots that are postmarked by Election Day and received by the Saturday following the election, and (c) making a reasonable effort to contact voters whose ballots are rejected during election officials’ signature verification process and to provide the voter with a timeframe and manner in which the voter may cure the discrepancy;
4. Defendants are hereby ORDERED to modify election materials for the November 3, 2020 election, including absentee ballots, to reflect the elimination of the excuse and photo ID requirements, and conduct a public information campaign informing Kentucky voters about the elimination of the excuse and photo ID requirements, in coordination with city and county officials before and during the absentee balloting period, and ordering Defendants to issue guidance instructing city and county election officials to issue absentee ballots to all eligible voters.

Case 3:20-cv-00375-CRS Document 30-1 Filed 07/10/20 Page 3 of 3 PageID #: 306
IT IS SO ORDERED this ___ day of __________, 2020. __________________________ Hon. Charles Ralph Simpson III