4months,SUBMDJ
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:20−cv−01986−ELR

The New Georgia Project et al v. Raffensperger et al Assigned to: Judge Eleanor L. Ross Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/08/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

The New Georgia Project

represented by Adam Martin Sparks Krevolin & Horst, LLC One Atlantic Center, Ste 3250 1201 West Peachtree St., NW Atlanta, GA 30309 404−888−9700 Email: sparks@khlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda R. Callais Perkins Coie−DC Suite 600 700 Thirteenth St., N.W. Washington, DC 20005−2011 202−654−6396 Email: acallais@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Halsey G. Knapp , Jr Krevolin & Horst, LLC One Atlantic Center, Ste 3250 1201 West Peachtree St., NW Atlanta, GA 30309 404−888−9700 Fax: 404−888−9577 Email: hknapp@khlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joyce Gist Lewis Krevolin & Horst, LLC 1201 W. Peachtree Street, NW Suite 3250 Atlanta, GA 30309 404−888−9700 Email: jlewis@khlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

K'shaani Smith Perkins Coie LLP 700 13th St., NW Suite 600 20005 Washington, DC 20005 202−654−1785 Email: KshaaniSmith@perkinscoie.com LEAD ATTORNEY PRO HAC VICE

Plaintiff Reagan Jennings

ATTORNEY TO BE NOTICED
Kevin J. Hamilton Perkins Coie LLP 1201 Third Avenue Suite 4900 Seattle, WA 98101−3099 206−359−8741 Email: khamilton@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lilian Magarita Timmermann Perkins Coie LLP − CO 1900 16th Street Denver, CO 80202 303−291−2300 Fax: 303−291−2400 Email: ltimmermann@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc E. Elias Perkins Coie−DC Suite 600 700 Thirteenth St., N.W. Washington, DC 20005−2011 202−654−6200 Email: melias@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie R. Holstein Perkins Coie−WA 1201 Third Avenue 48th Floor Seattle, WA 98101−3099 206−359−3350 Fax: 206−359−4350 Email: sholstein@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam Martin Sparks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda R. Callais (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Halsey G. Knapp , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Candace Woodall

Joyce Gist Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K'shaani Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lilian Magarita Timmermann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc E. Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie R. Holstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adam Martin Sparks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda R. Callais (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Halsey G. Knapp , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joyce Gist Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K'shaani Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton

Plaintiff Beverly Pyne

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lilian Magarita Timmermann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc E. Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephanie R. Holstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda R. Callais (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Halsey G. Knapp , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joyce Gist Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
K'shaani Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Hamilton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lilian Magarita Timmermann (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc E. Elias (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Brad Raffensperger in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board

Stephanie R. Holstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam Martin Sparks (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: adenton@robbinsfirm.com ATTORNEY TO BE NOTICED
Brian Edward Lake Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: blake@robbinsfirm.com ATTORNEY TO BE NOTICED
Carey Allen Miller Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: cmiller@robbinsfirm.com ATTORNEY TO BE NOTICED
Charlene S McGowan Office of the Georgia Attorney General 40 Capitol Square SW Atlanta, GA 30334 404−656−3389 Email: cmcgowan@law.ga.gov ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante Robbins Ross Alloy Belinfante Littlefield LLC 500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: jbelinfante@robbinsfirm.com ATTORNEY TO BE NOTICED
Melanie Leigh Johnson Robbins Ross Alloy Belinfante Littlefield LLC

Defendant Rebecca N. Sullivan
Defendant David J. Worley

500 14th Street, N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: mjohnson@robbinsfirm.com ATTORNEY TO BE NOTICED
Vincent Robert Russo , Jr. Robbins Ross Alloy Belinfante Littlefield, LLC −Atl 500 Fourteenth St., N.W. Atlanta, GA 30318 678−701−9381 Fax: 404−856−3250 Email: vrusso@robbinsfirm.com ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton (See above for address) ATTORNEY TO BE NOTICED
Brian Edward Lake (See above for address) ATTORNEY TO BE NOTICED
Carey Allen Miller (See above for address) ATTORNEY TO BE NOTICED
Charlene S McGowan (See above for address) ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante (See above for address) ATTORNEY TO BE NOTICED
Melanie Leigh Johnson (See above for address) ATTORNEY TO BE NOTICED
Vincent Robert Russo , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton (See above for address) ATTORNEY TO BE NOTICED
Brian Edward Lake (See above for address) ATTORNEY TO BE NOTICED
Carey Allen Miller (See above for address) ATTORNEY TO BE NOTICED
Charlene S McGowan (See above for address) ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante

Defendant Matthew Mashburn
Defendant Anh Le in their official capacities as Members of the Georgia State Election Board

(See above for address) ATTORNEY TO BE NOTICED
Melanie Leigh Johnson (See above for address) ATTORNEY TO BE NOTICED
Vincent Robert Russo , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton (See above for address) ATTORNEY TO BE NOTICED
Brian Edward Lake (See above for address) ATTORNEY TO BE NOTICED
Carey Allen Miller (See above for address) ATTORNEY TO BE NOTICED
Charlene S McGowan (See above for address) ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante (See above for address) ATTORNEY TO BE NOTICED
Melanie Leigh Johnson (See above for address) ATTORNEY TO BE NOTICED
Vincent Robert Russo , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Fraser Denton (See above for address) ATTORNEY TO BE NOTICED
Brian Edward Lake (See above for address) ATTORNEY TO BE NOTICED
Carey Allen Miller (See above for address) ATTORNEY TO BE NOTICED
Charlene S McGowan (See above for address) ATTORNEY TO BE NOTICED
Joshua Barrett Belinfante (See above for address) ATTORNEY TO BE NOTICED
Melanie Leigh Johnson (See above for address) ATTORNEY TO BE NOTICED

Defendant Mary Carole Cooney Defendant Mark Wingate Defendant Vernetta Nuriddin Defendant Kathleen Ruth Defendant Aaron Johnson in their official capacities as Members of the FULTON County Board of Registration and Elections Defendant Samuel E. Tillman
Defendant Anthony Lewis
Defendant Susan Motter

Vincent Robert Russo , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els DeKalb County Law Department 5th Floor 1300 Commerce Dr. Decatur, GA 30030 404−371−3618 Email: ivanderels@dekalbcountyga.gov ATTORNEY TO BE NOTICED Shelley Driskell Momo DeKalb County Law Department 5th Floor 1300 Commerce Dr. Decatur, GA 30030 404−371−3011 Fax: 404−371−3024 Email: sdmomo@dekalbcountyga.gov ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED

Defendant Dele Lowman Smith
Defendant Baoky N. Vu in their official capacities as Members of the DEKALB County Board of Registration and Elections
Defendant Phil Daniell
Defendant Fred Aiken
Defendant Jessica M. Brooks
Defendant Neera Bahl
Defendant Darryl O. Wilson, Jr. in their official capacities as Members of the COBB County Board of Elections and Registration Defendant Beauty Baldwin

represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Irene B. Vander Els (See above for address) ATTORNEY TO BE NOTICED
Shelley Driskell Momo (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Walter White Haynie, Litchfield & White, PC 222 Washington Ave NE Marietta, GA 30060−1959 770−422−8901 Fax: 770−424−8900 Email: dwhite@hlw−law.com ATTORNEY TO BE NOTICED
represented by Daniel Walter White (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Walter White (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Walter White (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Walter White (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan Francis Jacoutot Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 770−434−6868 Fax: 770−434−7376 Email: bjacoutot@taylorenglish.com ATTORNEY TO BE NOTICED

Defendant Ben Satterfield
Defendant Stephen Day

Bryan P. Tyson Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 770−434−6868 Fax: 770−434−7376 Email: btyson@taylorenglish.com ATTORNEY TO BE NOTICED
Diane Festin LaRoss Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 678−336−7169 Email: dlaross@taylorenglish.com ATTORNEY TO BE NOTICED
Loree Anne Paradise Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 770−434−6868 Fax: 770−434−7376 Email: lparadise@taylorenglish.com ATTORNEY TO BE NOTICED
represented by Bryan Francis Jacoutot (See above for address) ATTORNEY TO BE NOTICED
Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED
Diane Festin LaRoss (See above for address) ATTORNEY TO BE NOTICED
Loree Anne Paradise (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan Francis Jacoutot (See above for address) ATTORNEY TO BE NOTICED
Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED
Diane Festin LaRoss (See above for address) ATTORNEY TO BE NOTICED
Loree Anne Paradise (See above for address) ATTORNEY TO BE NOTICED

Defendant Alice O'Lenick in their official capacities as Members of the GWINNETT County Board of Registrations and Elections
Defendant Colin Mcrae
Defendant Wanda Andrews Defendant William L. Norse Defendant Jon Pannell Defendant Randolph Slay in their official capacities as Members of the CHATHAM County Board of Registrars Defendant Darry Hicks
Defendant Addison Lester
Defendant Aaron Wright in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration Defendant

represented by Bryan Francis Jacoutot (See above for address) ATTORNEY TO BE NOTICED Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED Diane Festin LaRoss (See above for address) ATTORNEY TO BE NOTICED Loree Anne Paradise (See above for address) ATTORNEY TO BE NOTICED
represented by Ralph Jonathan Hart Chatham County Attorney P.O. Box 8161 Savannah, GA 31412 912−652−7881 Email: rjhart@chathamcounty.org ATTORNEY TO BE NOTICED
represented by Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan P. Tyson (See above for address) ATTORNEY TO BE NOTICED

Carol Wesley
Defendant Dorothy Foster Hall
Defendant Patricia Pullar
Defendant Darlene Johnson
Defendant Diane Givens in their official capacities as Members of the CLAYTON County Board of Elections and Registrations Defendant June Wood TERMINATED: 06/17/2020
Defendant Johnny Wilson TERMINATED: 06/17/2020
Defendant Dee Clemmons TERMINATED: 06/17/2020
Defendant Gary Barham TERMINATED: 06/17/2020

represented by Jack Reynolds Hancock Freeman Mathis & Gary, LLP −Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339−5948 770−818−0000 Fax: 770−937−9960 Email: jhancock@fmglaw.com ATTORNEY TO BE NOTICED
represented by Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
represented by Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
represented by Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
represented by Jack Reynolds Hancock (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin Jarrard & Davis, LLP 222 Webb St. Cumming, GA 30040 678−455−7150 Fax: 678−455−7149 Email: krobin@jarrard−davis.com TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED

Defendant Vivian Thomas in their official capacities as Members of the HENRY County Board of Elections and Registration TERMINATED: 06/17/2020 Defendant Margaret Jenkins
Defendant Uhland Roberts
Defendant Diane Scrimpshire
Defendant Linda Parker
Defendant Eleanor White in their official capacities as Members of the COLUMBUS−MUSCOGEE County

represented by Kenneth Paul Robin (See above for address) TERMINATED: 06/17/2020 ATTORNEY TO BE NOTICED
represented by Alan G. Snipes Page, Scrantom, Sprouse, Tucker & Ford, P.C. 111 Bay Avenue Suite 300 P.O. Box 1199 Ste 3rd Floor Columbus, GA 31902 706−324−0251 Email: ags@psstf.com ATTORNEY TO BE NOTICED
James Clinton Clark , Jr. Page, Scrantom, Sprouse, Tucker & Ford, P.C. 1111 Bay Avenue Suite 300 P.O. Box 1199 31902, Ste 3rd Floor Columbus, GA 31902 706−243−5619 Email: jcc@psstf.com ATTORNEY TO BE NOTICED
represented by Alan G. Snipes (See above for address) ATTORNEY TO BE NOTICED
James Clinton Clark , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alan G. Snipes (See above for address) ATTORNEY TO BE NOTICED
James Clinton Clark , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alan G. Snipes (See above for address) ATTORNEY TO BE NOTICED
James Clinton Clark , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Alan G. Snipes (See above for address) ATTORNEY TO BE NOTICED

Board of Elections
Defendant David C. Fedack in his official capacity as Member of the Douglas County Board of Elections and Registration
Defendant Talula Martin TERMINATED: 06/30/2020
Defendant Robert Proctor in his official capacity as Member of the Douglas County Board of Elections and Registration
Defendant Daniel Zimmermann in his official capacity as Member of the Douglas County Board of Elections and Registration
Defendant Myesha Good in her official capacity as Member of the DOUGLAS County Board of Elections and Registration
Defendant

James Clinton Clark , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by David Alan Cole Freeman Mathis & Gary, LLP −Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339−5948 770−818−0000 Email: dcole@fmglaw.com ATTORNEY TO BE NOTICED
Timothy M. Boughey Freeman Mathis & Gary, LLP −Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339−5948 678−996−9033 Fax: 770−937−9960 Email: tboughey@fmglaw.com ATTORNEY TO BE NOTICED
represented by David Alan Cole (See above for address) ATTORNEY TO BE NOTICED
Timothy M. Boughey (See above for address) ATTORNEY TO BE NOTICED
represented by David Alan Cole (See above for address) ATTORNEY TO BE NOTICED
Timothy M. Boughey (See above for address) ATTORNEY TO BE NOTICED
represented by David Alan Cole (See above for address) ATTORNEY TO BE NOTICED
Timothy M. Boughey (See above for address) ATTORNEY TO BE NOTICED
represented by David Alan Cole (See above for address) ATTORNEY TO BE NOTICED
Timothy M. Boughey (See above for address) ATTORNEY TO BE NOTICED

Pamela Middleton
Defendant Dontravious M. Simmons
Defendant Benny G. Hand
Defendant Annabelle T. Stubbs
Defendant Frederick Williams in their official capacities as Members of the ALBANY−DOUGHERTY County Joint Board of Registration and Elections Defendant Aldren Sadler, Sr.
Defendant Karen James
Defendant Gerald Barger in their official capacities as Members of the ROCKDALE County Board of Elections and Voter Registration Defendant Phil Johnson

represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by William J. Linkous , III Freeman Mathis & Gary, LLP −Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339−5948 678−996−9113 Fax: 404−450−3979 Email: wlinkous@fmglaw.com ATTORNEY TO BE NOTICED
represented by William J. Linkous , III (See above for address) ATTORNEY TO BE NOTICED
represented by William J. Linkous , III (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Megan Nicole Martin Jarrard & Davis, LLP 222 Webb St. Cumming, GA 30040 678−455−7150 Fax: 678−455−7149 Email: mmartin@jarrard−davis.com ATTORNEY TO BE NOTICED

Defendant Kelly Robinson
Defendant Dustin Thompson in their official capacities as Members of the NEWTON County Board of Elections and Registration
Defendant Tim McFalls
Defendant Sherry T. Barnes
Defendant Marcia Brown
Defendant Terence Dicks
Defendant Bob Finnegan in their official capacities as Members of the RICHMOND County Board of Elections Defendant Henry Ficklin

represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Megan Nicole Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Megan Nicole Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Rachel Nicole Mack Augusta Georgia Law Department 535 Telfair Street Building 3000 Augusta, GA 30901 706−842−5550 Email: rmack@augustaga.gov ATTORNEY TO BE NOTICED
represented by Rachel Nicole Mack (See above for address) ATTORNEY TO BE NOTICED
represented by Rachel Nicole Mack (See above for address) ATTORNEY TO BE NOTICED
represented by Rachel Nicole Mack (See above for address) ATTORNEY TO BE NOTICED
represented by Rachel Nicole Mack (See above for address) ATTORNEY TO BE NOTICED
represented by Virginia Candace Josey Noland Law Firm, LLC 5400 Riverside Drive, Ste 205 Macon, GA 31210 478−621−4980 Email: virginia@nolandlawfirmllc.com ATTORNEY TO BE NOTICED
William H. Noland

Defendant Mike Kaplan
Defendant Herbert Spangler
Defendant Cassandra Powell
Defendant Rinda Wilson in their official capacities as Members of the MACON−BIBB County Board of Elections
Defendant Jesse Evans

Noland Law Firm, LLC 5400 Riverside Drive, Ste 205 Macon, GA 31210 478−621−4980 Fax: 478−621−4982 Email: william@nolandlawfirmllc.com ATTORNEY TO BE NOTICED
represented by Virginia Candace Josey (See above for address) ATTORNEY TO BE NOTICED
William H. Noland (See above for address) ATTORNEY TO BE NOTICED
represented by Virginia Candace Josey (See above for address) ATTORNEY TO BE NOTICED
William H. Noland (See above for address) ATTORNEY TO BE NOTICED
represented by Virginia Candace Josey (See above for address) ATTORNEY TO BE NOTICED
William H. Noland (See above for address) ATTORNEY TO BE NOTICED
represented by Virginia Candace Josey (See above for address) ATTORNEY TO BE NOTICED
William H. Noland (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory C. Sowell Cook & Tolley, LLP 304 E. Washington St. Athens, GA 30601−2751 707−549−6111 Email: gregsowell@cooktolley.com ATTORNEY TO BE NOTICED
John Matthew Hawkins Athens−Clarke County Attorney's Office P.O. Box 427 155 East Washington Street Athens, GA 30603 706−613−3035 Fax: 706−613−3037 Email: john.hawkins@accgov.com ATTORNEY TO BE NOTICED

Defendant Charles Knapper
Defendant Willa Fambrough
Defendant Ann Till in their official capacities as Members of the ATHENS−CLARKE County Board of Elections and Voter Registration
Defendant Barbara Luth
Defendant Matthew Blender
Defendant Joel Natt
Defendant Carla Radzikinas
Defendant Randy Ingram in their official capacities as Members of the FORSYTH County Board of Registrations and Elections Defendant John Mangano in their official capacities as Members of the GWINNETT County Board of Registrations and Elections

represented by Gregory C. Sowell (See above for address) ATTORNEY TO BE NOTICED
John Matthew Hawkins (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory C. Sowell (See above for address) ATTORNEY TO BE NOTICED
John Matthew Hawkins (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory C. Sowell (See above for address) ATTORNEY TO BE NOTICED
John Matthew Hawkins (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan Francis Jacoutot (See above for address) ATTORNEY TO BE NOTICED
Bryan P. Tyson

Defendant Arch Brown in his official capacity as Member of the Henry County Board of Elections and Registration
Defendant Mildred Schmelz in her official capacity as Member of the Henry County Board of Elections and Registration
Defendant Dan Richardson in his official capacity as Member of the Henry County Board of Elections and Registration
Defendant Donna Morris−McBride in her official capacity as Member of the Henry County Board of Elections and Registration
Defendant Andy Callaway in his official capacity as Member of the Henry County Board of Elections and Registration
Defendant

(See above for address) ATTORNEY TO BE NOTICED
Diane Festin LaRoss (See above for address) ATTORNEY TO BE NOTICED
Loree Anne Paradise (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Patrick D. Jaugstetter Jarrard & Davis, LLP 222 Webb St. Cumming, GA 30040 678−455−7150 Fax: 678−455−7149 Email: patrickj@jarrard−davis.com ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Patrick D. Jaugstetter (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Patrick D. Jaugstetter (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Patrick D. Jaugstetter (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth Paul Robin (See above for address) ATTORNEY TO BE NOTICED
Patrick D. Jaugstetter (See above for address) ATTORNEY TO BE NOTICED

Maurice Hurry in his official capacity as Member of the Douglas County Board of Elections and Registration

represented by David Alan Cole (See above for address) ATTORNEY TO BE NOTICED
Timothy M. Boughey (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/08/2020
05/08/2020 05/08/2020
05/08/2020 05/08/2020
05/08/2020
05/08/2020
05/08/2020
05/08/2020

# Docket Text
1 COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF filed by Reagan Jennings, The New Georgia Project, Candace Woodall. (Filing fee $400, receipt number AGANDC−9679300) (Attachments: # 1 Civil Cover Sheet)(tmf) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. Modified on 5/8/2020 to edit text(tmf). (Entered: 05/08/2020)
Submission of 1 Complaint,, to District Judge Leigh Martin May. (tmf) (Entered: 05/08/2020)
2 Electronic Summons Issued as to Fred Aiken, Wanda Andrews, Neera Bahl, Beauty Baldwin, Gary Barham, Jessica M. Brooks, Dee Clemmons, Phil Daniell, Diane Givens, Darlene Johnson. (Attachments: # 1 Summons Andrews, # 2 Summons Bahl, # 3 Summons Baldwin, # 4 Summons Barham, # 5 Summons Brooks, # 6 Summons Clemmons, # 7 Summons D Johnson, # 8 Summons Daniell, # 9 Summons Givens)(tmf) (Entered: 05/08/2020)
3 Certificate of Interested Persons by Reagan Jennings, The New Georgia Project, Candace Woodall. (tmf) (Entered: 05/11/2020)
4 Electronic Summons Issued as to Sherry T. Barnes, Matthew Blender, Marcia Brown, Terence Dicks, Jesse Evans, Willa Fambrough, Henry Ficklin, Bob Finnegan, Myesha Good, Dorothy Foster Hall. (Attachments: # 1 Summons Blender, # 2 Summons Brown, # 3 Summons Dicks, # 4 Summons Evans, # 5 Summons Fambrough, # 6 Summons Ficklin, # 7 Summons Finnegan, # 8 Summons Good, # 9 Summons Hall)(tmf) Modified on 5/11/2020 to edit filing date(tmf). (Entered: 05/11/2020)
5 Electronic Summons Issued as to Benny G. Hand, Darry Hicks, Randy Ingram, Karen James, Margaret Jenkins, Aaron Johnson, Mike Kaplan, Charles Knapper, Anh Le, Johnny Wilson. (Attachments: # 1 Summons Hicks, # 2 Summons Ingram, # 3 Summons J Wilson, # 4 Summons James, # 5 Summons Jenkins, # 6 Summons Johnson, # 7 Summons Kaplan, # 8 Summons Knapper, # 9 Summons Le)(tmf) (Entered: 05/11/2020)
6 Electronic Summons Issued as to Addison Lester, Anthony Lewis, Barbara Luth, John Mangano, Talula Martin, Matthew Mashburn, Tim McFalls, Colin Mcrae, Pamela Middleton, Susan Motter. (Attachments: # 1 Summons Lewis, # 2 Summons Luth, # 3 Summons Mangano, # 4 Summons Martin, # 5 Summons Mashburn, # 6 Summons McFalls, # 7 Summons MaRae, # 8 Summons Middleton, # 9 Summons Motter)(tmf) (Entered: 05/11/2020)
7 Electronic Summons Issued as to Joel Natt, William L. Norse, Alice O'Lenick, Jon Pannell, Linda Parker, Cassandra Powell, Robert Proctor, Patricia Pullar, Carla Radzikinas, Brad Raffensperger. (Attachments: # 1 Summons Norse, # 2 Summons O'Lenick, # 3 Summons Pannell, # 4 Summons Parker, # 5 Summons Powell, # 6 Summons Proctor, # 7 Summons Pullar, # 8 Summons Radzikinas, # 9 Summons Raffensperger)(tmf) (Entered: 05/11/2020)
8 Electronic Summons Issued as to Uhland Roberts, Kelly Robinson, Aldren Sadler, Sr., Ben Satterfield, Diane Scrimpshire, Dontravious M. Simmons, Randolph Slay, Dele Lowman Smith, Herbert Spangler, Annabelle T. Stubbs. (Attachments: # 1 Summons Robinson, # 2 Summons Sadler, # 3 Summons Satterfield, # 4 Summons Scrimpshire, # 5 Summons Simmons, # 6 Summons Slay, # 7 Summons Smith, # 8 Summons Spangler, # 9 Summons Stubbs)(tmf) (Entered: 05/11/2020)

05/08/2020
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9 Electronic Summons Issued as to Rebecca N. Sullivan, Vivian Thomas, Dustin Thompson, Ann Till, Samuel E. Tillman, Baoky N. Vu, Carol Wesley, Eleanor White, Frederick Williams, Darryl O. Wilson, Jr.. (Attachments: # 1 Summons Thomas, # 2 Summons Thompson, # 3 Summons Till, # 4 Summons Tillman, # 5 Summons Vu, # 6 Summons Wesley, # 7 Summons White, # 8 Summons Williams, # 9 Summons Wilson Jr)(tmf) (Entered: 05/11/2020)
10 Electronic Summons Issued as to David J. Whorley, Rinda Wilson, June Wood, Aaron Wright, Daniel Zimmermann. (Attachments: # 1 Summons Wood, # 2 Summons Whorley, # 3 Summons Wright, # 4 Summons Zimmerman)(tmf) (Entered: 05/11/2020)
11 ORDER OF RECUSAL. Judge Leigh Martin May recused. Case reassigned to Judge Eleanor L. Ross for all further proceedings NOTICE TO ALL COUNSEL OF RECORD: The Judge designation in the civil action number assigned to this case has been changed to 1:20−cv−01986−ELR. Please make note of this change in order to facilitate the docketing of pleadings in this case. Signed by Judge Leigh Martin May on 5/8/2020. (tmf) (Entered: 05/11/2020)
12 Electronic Summons Issued as to Gerald Barger, Mary Carole Cooney, Stephen Day, Phil Johnson, Vernetta Nuriddin, Carla Radzikinas, Kathleen Ruth, and Mark Wingate. (Attachments: # 1 Summons Mary Carole Cooney, # 2 Summons Stephen Day, # 3 Summons Phil Johnson, # 4 Summons Vernetta Nuriddin, # 5 Summons Carla Radzikinas, # 6 Summons Kathleen Ruth, # 7 Summons Mark Wingate) (jap) (Entered: 05/11/2020)
Submission of 11 Order of Recusal, 1 Complaint for Injunctive and Declaratory Relief to District Judge Eleanor L. Ross. (tmf) (Entered: 05/11/2020)
13 Electronic Summons Issued as to David C. Fedack. (tmf) (Entered: 05/12/2020)
14 NOTICE FROM THE COURT: INSTRUCTIONS FOR CIVIL CASES ASSIGNED TO THE HONORABLE ELEANOR L. ROSS. (mlb) (Entered: 05/13/2020)
15 APPLICATION for Admission of Kevin J. Hamilton Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699075). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)
16 APPLICATION for Admission of K'Shanni O. Smith Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699099). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)
17 APPLICATION for Admission of Lilian Magarita Timmermann Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699117). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)
18 APPLICATION for Admission of Stephanie R. Holstein Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699122). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)
19 APPLICATION for Admission of Amanda Rebecca Callais Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699124). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)
20 APPLICATION for Admission of Mark Erik Elias Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699147). with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/14/2020)

05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020
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APPROVAL by Clerks Office re: 15 APPLICATION for Admission of Kevin J. Hamilton Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699075).. Attorney Kevin J. Hamilton added appearing on behalf of Reagan Jennings, The New Georgia Project, Candace Woodall (nmb) (Entered: 05/18/2020)
APPROVAL by Clerks Office re: 16 APPLICATION for Admission of K'Shanni O. Smith Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699099).. Attorney K'shaani Smith added appearing on behalf of Candace Woodall (nmb) (Entered: 05/18/2020)
APPROVAL by Clerks Office re: 16 APPLICATION for Admission of K'Shanni O. Smith Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699099).. Attorney K'shaani Smith added appearing on behalf of Reagan Jennings, The New Georgia Project, Candace Woodall (nmb) (Entered: 05/18/2020)
APPROVAL by Clerks Office re: 18 APPLICATION for Admission of Stephanie R. Holstein Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699122).. Attorney Stephanie R. Holstein added appearing on behalf of Reagan Jennings, The New Georgia Project, Candace Woodall (nmb) (Entered: 05/18/2020)
APPROVAL by Clerks Office re: 19 APPLICATION for Admission of Amanda Rebecca Callais Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699124).. Attorney Amanda R. Callais added appearing on behalf of Reagan Jennings, The New Georgia Project, Candace Woodall (nmb) (Entered: 05/18/2020)
APPROVAL by Clerks Office re: 20 APPLICATION for Admission of Mark Erik Elias Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699147).. Attorney Marc E. Elias added appearing on behalf of Candace Woodall (nmb) (Entered: 05/18/2020)
MINUTE ORDER (by docket entry only) GRANTING 15 Application for Admission Pro Hac Vice of Kevin J. Hamilton; GRANTING 16 Application for Admission Pro Hac Vice of K'Shanni O. Smith; and GRANTING 18 Application for Admission Pro Hac Vice of Stephanie R. Holstein. Approved by District Judge Eleanor L. Ross on 5/18/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 05/18/2020)
MINUTE ORDER (by docket entry only) GRANTING 20 Application for Admission Pro Hac Vice of Mark Erik Elias. Approved by District Judge Eleanor L. Ross on 5/19/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 05/19/2020)
Clerk's Certificate of Mailing to Attorneys Kevin Hamilton and Stepanie Holstein as to Reagan Jennings regarding Order on Application for Admission PHV. (mlb) (Entered: 05/19/2020)
RETURN of 17 APPLICATION for Admission of Lilian Magarita Timmermann Pro Hac Vice (Application fee $ 150, receipt number AGANDC−9699117). to attorney for correction regarding not sending PHV statement for New York Bar membership. (nmb) (Entered: 05/21/2020)
21 APPLICATION for Admission of Lilian Magarita Timmermann Pro Hac Vice. with Brief In Support by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) Documents for this entry are not available for viewing outside the courthouse. (Entered: 05/21/2020)
APPROVAL by Clerks Office re: 21 APPLICATION for Admission of Lilian Magarita Timmermann Pro Hac Vice.. Attorney Lilian Magarita Timmermann added appearing on behalf of Reagan Jennings, The New Georgia Project, Candace Woodall (nmb) (Entered: 05/22/2020)
MINUTE ORDER (by docket entry only) GRANTING 21 Application for Admission Pro Hac Vice of Lilian Margarita Timemrmann. Approved by District Judge Eleanor

05/22/2020 05/27/2020 06/02/2020 06/03/2020 06/03/2020 06/03/2020
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L. Ross on 5/22/20. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(mlb) (Entered: 05/22/2020)
Clerk's Certificate of Mailing (via email) to Attorney Lilian M. Timemrmann as to Candace Woodall regarding Order on Application for Admission PHV. (mlb) (Entered: 05/22/2020)
22 THIRD AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 05/26/2020. (adg) (ADI) (Entered: 05/27/2020)
23 Consent MOTION to Set Time For State Defendants to File A Responsive Pleading by Reagan Jennings, The New Georgia Project, Candace Woodall. (Attachments: # 1 Text of Proposed Order)(Sparks, Adam) Modified on 6/3/2020 to edit text (jpk). (Entered: 06/02/2020)
24 NOTICE of Appearance by James Clinton Clark, Jr on behalf of Margaret Jenkins, Linda Parker, Uhland Roberts, Diane Scrimpshire, Eleanor White (Clark, James) (Entered: 06/03/2020)
25 NOTICE of Appearance by Alan G. Snipes on behalf of Margaret Jenkins, Linda Parker, Uhland Roberts, Diane Scrimpshire, Eleanor White (Snipes, Alan) (Entered: 06/03/2020)
26 ORDER granting 23 Motion for Extension of Time to Answer. Defendants Brad Raffensperger, Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, and Anh Le shall file any responsive pleading responding to the Plaintiffs' Complaint on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/3/2020. (jpk) (Entered: 06/03/2020)
27 NOTICE of Appearance by Joshua Barrett Belinfante on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Belinfante, Joshua) (Entered: 06/03/2020)
28 NOTICE of Appearance by Vincent Robert Russo, Jr on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Russo, Vincent) (Entered: 06/03/2020)
29 NOTICE of Appearance by Carey Allen Miller on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Miller, Carey) (Entered: 06/03/2020)
30 NOTICE of Appearance by Alexander Fraser Denton on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Denton, Alexander) (Entered: 06/03/2020)
31 NOTICE of Appearance by Brian Edward Lake on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Lake, Brian) (Entered: 06/03/2020)
32 NOTICE of Appearance by Melanie Leigh Johnson on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (Johnson, Melanie) (Entered: 06/03/2020)
33 First AMENDED COMPLAINT for Injunctive and Declaratory Relief against All Defendants filed by Reagan Jennings, The New Georgia Project, Candace Woodall.(Sparks, Adam) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 06/03/2020)
34 MOTION for Leave to File Excess Pages in Support of Motion for Preliminary Injunction by Reagan Jennings, The New Georgia Project, Candace Woodall. (Sparks, Adam) (Entered: 06/03/2020)

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35 Notice for Leave of Absence for the following date(s): Friday July 17, 2020 − Wednesday, July 22, 2020, by Joshua Barrett Belinfante. (Belinfante, Joshua) (Entered: 06/04/2020)
36 NOTICE of Appearance by Kenneth Paul Robin on behalf of Matthew Blender, Randy Ingram, Barbara Luth, Joel Natt, Carla Radzikinas (Robin, Kenneth) (Entered: 06/04/2020)
37 NOTICE of Appearance by Kenneth Paul Robin on behalf of Phil Johnson, Kelly Robinson, Dustin Thompson (Robin, Kenneth) (Entered: 06/04/2020)
38 NOTICE of Appearance by Bryan P. Tyson on behalf of Beauty Baldwin, Stephen Day, John Mangano, Alice O'Lenick, Ben Satterfield (Tyson, Bryan) (Entered: 06/05/2020)
39 NOTICE of Appearance by Shelley Driskell Momo on behalf of Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu (Momo, Shelley) (Entered: 06/05/2020)
40 NOTICE of Appearance by William H. Noland on behalf of Henry Ficklin, Mike Kaplan, Cassandra Powell, Herbert Spangler, Rinda Wilson (Noland, William) (Entered: 06/05/2020)
41 NOTICE of Appearance by Irene B. Vander Els on behalf of Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu (Vander Els, Irene) (Entered: 06/05/2020)
42 Consent MOTION for Extension of Time to File Answer by Henry Ficklin, Mike Kaplan, Cassandra Powell, Herbert Spangler, Rinda Wilson. (Attachments: # 1 Text of Proposed Order Proposed Order)(Noland, William) (Entered: 06/07/2020)
43 Acknowledgment of Service and Consent MOTION for Extension of Time to File Answer with Brief In Support by Diane Givens, Dorothy Foster Hall, Darlene Johnson, Patricia Pullar, Carol Wesley. (Attachments: # 1 Text of Proposed Order)(Hancock, Jack) Modified on 6/9/2020 to edit event text (jpk). (Entered: 06/08/2020)
44 Acknowledgment of Service and Consent MOTION for Extension of Time to File Answer with Brief In Support by David C. Fedack, Myesha Good, Talula Martin, Robert Proctor, Daniel Zimmermann. (Attachments: # 1 Text of Proposed Order)(Cole, David) Modified on 6/9/2020 to edit event text (jpk). (Entered: 06/08/2020)
45 Consent MOTION for Extension of Time to File Answer with Brief In Support by Margaret Jenkins, Linda Parker, Uhland Roberts, Diane Scrimpshire, Eleanor White. (Attachments: # 1 Text of Proposed Order)(Snipes, Alan) (Entered: 06/08/2020)
46 ORDER granting in part and denying in part 34 Motion for Leave to File Excess Pages. The Court GRANTS Plaintiffs' request for permission to file excess pages but DENIES Plaintiffs' specific request for twenty (20) additional pages. Instead, Plaintiffs may file an additional ten (10) pages − for a total of thirty−five (35) pages − to their forthcoming Motion for Preliminary Injunction. Signed by Judge Eleanor L. Ross on 6/8/2020. (jpk) (Entered: 06/08/2020)
47 NOTICE of Appearance by Bryan Francis Jacoutot on behalf of Beauty Baldwin, Stephen Day, John Mangano, Alice O'Lenick, Ben Satterfield (Jacoutot, Bryan) (Entered: 06/08/2020)
48 NOTICE of Appearance by Kenneth Paul Robin on behalf of Benny G. Hand, Pamela Middleton, Dontravious M. Simmons, Annabelle T. Stubbs, Frederick Williams (Robin, Kenneth) (Entered: 06/08/2020)
49 NOTICE of Appearance by Loree Anne Paradise on behalf of Beauty Baldwin, Stephen Day, John Mangano, Alice O'Lenick, Ben Satterfield (Paradise, Loree Anne) (Entered: 06/08/2020)
50 NOTICE of Appearance by Diane Festin LaRoss on behalf of Beauty Baldwin, Stephen Day, John Mangano, Alice O'Lenick, Ben Satterfield (LaRoss, Diane) (Entered: 06/09/2020)

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51 NOTICE of Appearance by Timothy M. Boughey on behalf of David C. Fedack, Myesha Good, Talula Martin, Robert Proctor, Daniel Zimmermann (Boughey, Timothy) (Entered: 06/09/2020)
52 NOTICE of Appearance by Kenneth Paul Robin on behalf of Gary Barham, Dee Clemmons, Vivian Thomas, Johnny Wilson, June Wood (Robin, Kenneth) (Entered: 06/09/2020)
53 NOTICE of Appearance by Daniel Walter White on behalf of Fred Aiken, Neera Bahl, Jessica M. Brooks, Phil Daniell, Darryl O. Wilson, Jr (White, Daniel) (Entered: 06/09/2020)
54 Consent MOTION for Extension of Time to File Answer re 33 Amended Complaint, (on behalf of Forsyth County, Newton County, Cobb County, Fayette County, DeKalb County, Gwinnett County and Albany−Dougherty County Defendants with consent of Plaintiffs) with Brief In Support by Matthew Blender, Randy Ingram, Barbara Luth, Joel Natt, Carla Radzikinas. (Attachments: # 1 Text of Proposed Order)(Robin, Kenneth) (Entered: 06/09/2020)
55 ORDER: The Court GRANTS the 42 , 43 , 44 , 45 , and 54 motions. These Defendants shall file a responsive pleading to Plaintiff's Amended Complaint on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/10/2020. (jpk) (Entered: 06/10/2020)
56 Consent MOTION to Substitute Party Dan Richardson, Donna Morris−McBride, Andy Callaway, Arch Brown, Mildred Schmelz, Consent MOTION for Extension of Time to File Answer to the First Amended Complaint by Reagan Jennings, The New Georgia Project, Candace Woodall. (Attachments: # 1 Text of Proposed Order)(Sparks, Adam) (Entered: 06/10/2020)
57 MOTION for Preliminary Injunction by Reagan Jennings, The New Georgia Project, Candace Woodall, Beverly Pyne. (Attachments: # 1 Text of Proposed Order)(Sparks, Adam) (Entered: 06/10/2020)
58 Plaintiffs' Memorandum of Law in Support of 57 MOTION for Preliminary Injunction filed by Reagan Jennings, The New Georgia Project, Candace Woodall, Beverly Pyne. (Sparks, Adam) Modified on 6/11/2020 to edit text (jpk). (Entered: 06/10/2020)
59 AFFIDAVIT in Support re 57 MOTION for Preliminary Injunction filed by Reagan Jennings, The New Georgia Project, Candace Woodall, Beverly Pyne. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit, # 49 Exhibit, # 50 Exhibit, # 51 Exhibit, # 52 Exhibit, # 53 Exhibit, # 54 Exhibit, # 55 Exhibit, # 56 Exhibit, # 57 Exhibit, # 58 Exhibit, # 59 Exhibit, # 60 Exhibit, # 61 Exhibit, # 62 Exhibit, # 63 Exhibit, # 64 Exhibit, # 65 Exhibit, # 66 Exhibit, # 67 Exhibit, # 68 Exhibit, # 69 Exhibit, # 70 Exhibit, # 71 Exhibit, # 72 Exhibit, # 73 Exhibit, # 74 Exhibit, # 75 Exhibit, # 76 Exhibit, # 77 Exhibit, # 78 Exhibit, # 79 Exhibit, # 80 Exhibit, # 81 Exhibit, # 82 Exhibit, # 83 Exhibit, # 84 Exhibit, # 85 Exhibit, # 86 Exhibit, # 87 Exhibit, # 88 Exhibit, # 89 Exhibit, # 90 Exhibit, # 91 Exhibit)(Sparks, Adam) (Entered: 06/11/2020)
60 NOTICE of Appearance by Virginia Candace Josey on behalf of Henry Ficklin, Mike Kaplan, Cassandra Powell, Herbert Spangler, Rinda Wilson (Josey, Virginia) (Entered: 06/11/2020)
61 NOTICE of Appearance by John Matthew Hawkins on behalf of Jesse Evans, Willa Fambrough, Charles Knapper, Ann Till (Hawkins, John) (Entered: 06/15/2020)
62 Consent MOTION to set Briefing Schedule re: 57 MOTION for Preliminary Injunction by Beauty Baldwin, Stephen Day, John Mangano, Alice O'Lenick, Ben Satterfield. (Attachments: # 1 Text of Proposed Order)(Tyson, Bryan) Modified on 6/17/2020 to edit text (jpk). (Entered: 06/16/2020)

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63 Consent MOTION for Extension of Time to File Answer re 33 Amended Complaint, and Acknowledgment of Service by Gerald Barger, Karen James, Aldren Sadler, Sr. (Attachments: # 1 Text of Proposed Order)(Linkous, William) (Entered: 06/16/2020)
64 NOTICE of Appearance by Charlene S McGowan on behalf of Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley (McGowan, Charlene) (Entered: 06/16/2020)
65 ORDER granting 62 Motion for Extension of Time. The Court sets the following briefing schedule for the Parties' responses and replies to Plaintiffs' 57 Motion for Preliminary Injunction: Defendants' responses to Plaintiffs' motion for preliminary injunction are due by July 8, 2020. Plaintiffs' replies in support of motion for preliminary injunction are due by July 15, 2020. Signed by Judge Eleanor L. Ross on 6/16/2020. (jpk) (Entered: 06/17/2020)
66 NOTICE of Appearance by Megan Nicole Martin on behalf of Phil Johnson, Kelly Robinson, Dustin Thompson (Martin, Megan) (Entered: 06/17/2020)
67 ORDER granting 56 Motion to Substitute Party. Defendants JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS in their official capacities as Members of the Henry County Board of Elections and Registration, are dismissed from this action; The Clerk of Court is DIRECTED to reflect the proper identification of the Henry County Board of Elections and Registration Defendants in the style of this action as DAN RICHARDSON, DONNA MORRIS−MCBRIDE, ANDY CALLAWAY, ARCH BROWN, and MILDRED SCHMELZ, in their official capacities as Members of the Henry County Board of Elections and Registration; The deadline for the Henry County Board of Elections and Registration Defendants to file an Answer or otherwise respond to the First Amended Complaint shall be on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/16/2020. (Defendant Parties Dan Richardson, Donna Morris−McBride, Andy Callaway, Arch Brown and Mildred Schmelz (in their official capacities as Members of the Henry County Board of Elections and Registration) added). (Defendant Parties Vivian Thomas, Johnny Wilson, June Wood, Gary Barham and Dee Clemmons (in their official capacities as Members of the Henry County Board of Elections and Registration) terminated). (jpk) (Entered: 06/17/2020)
68 ORDER granting 63 Motion for Extension of Time to Answer. The Rockdale County Defendants and the Athens−Clarke County Defendants shall file their responsive pleadings to Plaintiffs' 33 First Amended Complaint on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/16/2020. (jpk) (Entered: 06/17/2020)
69 NOTICE of Appearance by Gregory C. Sowell on behalf of Jesse Evans, Willa Fambrough, Charles Knapper, Ann Till (Sowell, Gregory) (Entered: 06/17/2020)
70 NOTICE of Appearance by Rachel Nicole Mack on behalf of Sherry T. Barnes, Marcia Brown, Terence Dicks, Bob Finnegan, Tim McFalls (Mack, Rachel) (Entered: 06/18/2020)
71 NOTICE of Appearance by Patrick D. Jaugstetter on behalf of Arch Brown, Andy Callaway, Donna Morris−McBride, Dan Richardson, Mildred Schmelz (Jaugstetter, Patrick) (Entered: 06/18/2020)
72 Unopposed MOTION for Leave to File Excess Pages by Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley. (Belinfante, Joshua) (Entered: 06/18/2020)
73 NOTICE Of Filing by Reagan Jennings, Beverly Pyne, The New Georgia Project, Candace Woodall re 57 MOTION for Preliminary Injunction Revised Exhibit 91 to Declaration in Support of Motion (Attachments: # 1 Exhibit 91 − Revised)(Sparks, Adam) (Entered: 06/19/2020)
74 Joint MOTION for Extension of Time to File Answer by Sherry T. Barnes, Marcia Brown, Terence Dicks, Bob Finnegan, Tim McFalls. (Attachments: # 1 Text of Proposed Order)(Mack, Rachel) (Entered: 06/22/2020)
75 CERTIFICATE OF SERVICE re 74 Joint MOTION for Extension of Time to File Answer filed by Sherry T. Barnes, Marcia Brown, Terence Dicks, Bob Finnegan, Tim McFalls (Mack, Rachel) (Entered: 06/22/2020)

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76 ORDER granting 74 Motion for Extension of Time to Answer. Defendant Richmond County Board of Elections shall have through and including June 26, 2020, in which to file its Answer and Brief in Support. Signed by Judge Eleanor L. Ross on 6/23/2020. (jpk) (Entered: 06/23/2020)
77 ORDER granting 72 Motion for Leave to File Excess Pages. Defendants may file an additional ten (10) pages − for a total of thirty−five (35) pages − to their forthcoming Motion to Dismiss Plaintiffs' Amended Complaint. Signed by Judge Eleanor L. Ross on 6/23/2020. (jpk) (Entered: 06/23/2020)
78 Notice for Leave of Absence for the following date(s): July 25 − August 1, 2020, by Adam Martin Sparks. (Sparks, Adam) (Entered: 06/25/2020)
79 Consent MOTION to Substitute Party Official Capacity Defendant Maurice Hurry by Reagan Jennings, Beverly Pyne, The New Georgia Project, Candace Woodall. (Attachments: # 1 Text of Proposed Order)(Sparks, Adam) (Entered: 06/25/2020)
80 ORDER Setting Hearing on Motion 57 MOTION for Preliminary Injunction: (Motion Hearing set for 8/4/2020 at 09:30 AM in ATLA Courtroom 1708 before Judge Eleanor L. Ross.) The Court DIRECTS the Parties to jointly submit, within fourteen (14) days from the date of entry of this order, a joint proposed schedule of the hearing setting forth how much time is requested by each party for oral argument. Signed by Judge Eleanor L. Ross on 6/25/2020. (jpk) (Entered: 06/25/2020)
81 Consent MOTION for Extension of Time file responsive pleading re: 33 Amended Complaint, by Colin Mcrae. (Attachments: # 1 Text of Proposed Order proposed order)(Hart, Ralph) (Entered: 06/25/2020)
82 County Defendants' Consolidated MOTION to Dismiss with Brief In Support by Beauty Baldwin, Stephen Day, Darry Hicks, Addison Lester, John Mangano, Alice O'Lenick, Ben Satterfield, Aaron Wright. (Attachments: # 1 Brief in Support)(Tyson, Bryan) Modified on 6/29/2020 to edit text (jpk). (Entered: 06/26/2020)
83 MOTION to Dismiss Plaintiffs' Amended Complaint with Brief In Support by Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley. (Attachments: # 1 Brief Brief in Support of Motion to Dismiss, # 2 Exhibit Exhibit A to Brief in Support of Motion to Dismiss)(Belinfante, Joshua) (Entered: 06/26/2020)
84 Unopposed MOTION for Leave to File Excess Pages in Memorandum in Opposition to Motion for Preliminary Injunction by Anh Le, Matthew Mashburn, Brad Raffensperger, Rebecca N. Sullivan, David J. Worley. (Attachments: # 1 Text of Proposed Order [Proposed] Order Grantig Motion for Leave to File Excess Pages)(Belinfante, Joshua) (Entered: 06/29/2020)
85 ORDER granting 79 Motion to Substitute Party. TALULA MARTIN, in her official capacity as Member of the Douglas County Board of Elections and Registration, is DISMISSED from this action. MAURICE HURRY, in his official capacity as Member of the Douglas County Board of Elections and Registration, is substituted into this action as party defendant in place of Ms. Martin. The Clerk of Court is DIRECTED to reflect the proper identification of the Douglas County Board of Elections and Registration Defendants in the style of this action as DAVID C. FEDACK, MAURICE HURRY, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the Douglas County Board of Elections and Registration. The deadline for Mr. Hurry to file an Answer or otherwise respond to the First Amended Complaint shall be on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/30/2020. (Defendant Maurice Hurry added. Defendant Talula Martin terminated). (jpk) (Entered: 06/30/2020)
86 ORDER granting 84 Motion for Leave to File Excess Pages. Defendants may file an additional ten (10) pages − for a total of thirty−five (35) pages − to their forthcoming Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction. Signed by Judge Eleanor L. Ross on 6/30/2020. (jpk) (Entered: 06/30/2020)
87 ORDER granting 81 Motion for Extension of Time. Defendants Colin McRae, Wanda Andrews, William L. Norse, Jon Pannell, and Randolph Slay, in their official capacities as Members of the Chatham County Board of Registrars, shall file any responsive pleading responding to the Plaintiffs' Complaint on or before June 26, 2020. Signed by Judge Eleanor L. Ross on 6/30/2020. (jpk) (Entered: 06/30/2020)

07/02/2020 07/03/2020

88 FOURTH AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 07/01/2020. (ddm) (ADI) (Entered: 07/02/2020)
89 MOTION for Leave to File Excess Pages in Briefs Opposing Motions to Dismiss (Unopposed in Part and Consent in Part) by Reagan Jennings, Beverly Pyne, The New Georgia Project, Candace Woodall. (Attachments: # 1 Text of Proposed Order)(Sparks, Adam) (Entered: 07/03/2020)

 
 Case 1:20-cv-01986-LMM Document 1 Filed 05/08/20 Page 1 of 67

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, and CANDACE WOODALL,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board; REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE, in their official capacities as Members of the Georgia State Election Board; MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, and AARON JOHNSON, in their official capacities as Members of the FULTON County Board of Registration and Elections; SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, and BAOKY N. VU, in their official capacities as Members of the DEKALB County Board of Registration and Elections; PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, and DARRYL O. WILSON, JR., in their official capacities as Members of the COBB County Board of Elections and Registration; BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, and ALICE O’LENICK, in their official capacities as Members of the GWINNETT County Board of Registrations

Civil Action File No.

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and Elections; COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, and RANDOLPH SLAY, in their official capacities as Members of the CHATHAM County Board of Registrars; DARRY HICKS, ADDISON LESTER, and AARON WRIGHT, in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration; CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, and DIANE GIVENS, in their official capacities as Members of the CLAYTON County Board of Elections and Registrations; JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS, in their official capacities as Members of the HENRY County Board of Elections and Registration; MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, and ELEANOR WHITE, in their official capacities as Members of the COLUMBUS-MUSCOGEE County Board of Elections; DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the DOUGLAS County Board of Elections and Registration; PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, and FREDERICK WILLIAMS, in their official capacities as Members of the ALBANYDOUGHERTY County Joint Board of Registration and Elections; ALDREN SADLER, SR., KAREN JAMES, and
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GERALD BARGER, in their official capacities as Members of the ROCKDALE County Board of Elections and Voter Registration; PHIL JOHNSON, KELLY ROBINSON, and DUSTIN THOMPSON, in their official capacities as Members of the NEWTON County Board of Elections and Registration; TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, and BOB FINNEGAN, in their official capacities as Members of the RICHMOND County Board of Elections; HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, and RINDA WILSON, in their official capacities as Members of the MACON-BIBB County Board of Elections; JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, and ANN TILL, in their official capacities as Members of the ATHENS-CLARKE County Board of Elections and Voter Registration; and BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, in their official capacities as Members of the FORSYTH County Board of Registrations and Elections,
Defendants.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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Plaintiffs, THE NEW GEORGIA PROJECT, REAGAN JENNINGS, and CANDACE WOODALL, through the undersigned attorneys, file this COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against Defendants BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board; REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE, in their official capacities as Members of the Georgia State Election Board; MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, and AARON JOHNSON, in their official capacities as Members of the FULTON County Board of Registration and Elections; SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, and BAOKY N. VU, in their official capacities as Members of the DEKALB County Board of Registration and Elections; PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, and DARRYL O. WILSON, JR., in their official capacities as Members of the COBB County Board of Elections and Registration; BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, and ALICE O’LENICK, in their official capacities as Members of the GWINNETT County Board of Registrations and Elections; COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, and RANDOLPH SLAY, in their official capacities as
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Members of the CHATHAM County Board of Registrars; DARRY HICKS, ADDISON LESTER, and AARON WRIGHT, in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration; CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, and DIANE GIVENS, in their official capacities as Members of the CLAYTON County Board of Elections and Registrations; JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS, in their official capacities as Members of the HENRY County Board of Elections and Registration; MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, and ELEANOR WHITE, in their official capacities as Members of the COLUMBUS-MUSCOGEE County Board of Elections; DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the DOUGLAS County Board of Elections and Registration; PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, and FREDERICK WILLIAMS, in their official capacities as Members of the ALBANY-DOUGHERTY County Joint Board of Registration and Elections; ALDREN SADLER, SR., KAREN JAMES, and GERALD BARGER, in their official capacities as Members of the ROCKDALE
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County Board of Elections and Voter Registration; PHIL JOHNSON, KELLY ROBINSON, and DUSTIN THOMPSON, in their official capacities as Members of the NEWTON County Board of Elections and Registration; TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, and BOB FINNEGAN, in their official capacities as Members of the RICHMOND County Board of Elections; HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, and RINDA WILSON, in their official capacities as Members of the MACON-BIBB County Board of Elections; JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, and ANN TILL, in their official capacities as Members of the ATHENS-CLARKE County Board of Elections and Voter Registration; and BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, in their official capacities as Members of the FORSYTH County Board of Registrations and Elections. Based upon information and belief, Plaintiffs allege as follows:
NATURE OF THE CASE 1. Plaintiffs bring this case to ensure that all eligible Georgia voters have a fair and safe opportunity to exercise their right to vote in the November 3, 2020 general election (“November Election”), as required by the U.S. Constitution. A novel coronavirus pandemic is sweeping through the country, with known infections
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of over one million and fatalities exceeding the total deaths in the Vietnam War. No states are being spared. In Georgia, as of May 8, 2020, there are 31,605 confirmed cases, and 1,352 people have died; tragically—and notwithstanding Governor Kemp’s recent lifting of the stay-at-home order⸺there is no end in sight. Georgia continues to see a significant number of new positive cases daily, its death rate is estimated to quadruple by August, five of the ten counties with the highest death rate per capita in America are in southwest Georgia as of the date of this Complaint, and the Centers for Disease Control and Prevention (“CDC”) has reported that Georgia’s “burden continues to grow.” And while the country still has not reached its “peak” of infections, public health officials are already warning about a likely “second wave” of the virus in the fall, which because of its interaction with flu season, could be even worse than the first. The pandemic’s impact is not limited to Georgians’ health; it also poses a serious threat to their right to vote.
2. Secretary of State Raffensperger (the “Secretary”) has twice postponed the spring primary election due to the pandemic, and recognizing the strain it is placing on election resources—e.g., causing significant decreases in poll workers, polling locations, and reduced staff capacity—as well as its impact on public health, has taken the extraordinary step of sending absentee ballot applications to 6.9 million Georgia voters for that election. Georgia voters have responded in kind, by applying
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to vote absentee at unprecedented rates. While the Secretary’s actions are laudable first steps toward protecting the right to vote, they fall far short of what is needed to protect that right in the upcoming November Election, as social distancing measures continue and even more Georgians vote absentee.1 Without injunctive relief from this Court, multiple laws and practices governing mail voting that already threaten to burden and disenfranchise thousands of Georgia voters even in ordinary elections are certain to abridge and deny the right to vote of thousands more in the current crisis.
3. In 2018, over 219,700 voters voted absentee by mail in Georgia, marking the highest turnout for absentee mail voting since the inception of no excuse absentee voting in the state. Although the election was a high watermark for absentee turnout rate, it represented a mere 1% increase over absentee turnout in the 2016 general election. Even then, it was evident that Georgia’s absentee voting rules resulted in the disenfranchisement of a substantial number of lawful, registered voters: nearly 1,000 absentee ballot applications were rejected, over 3,500 voters—
1 It is also unclear what, if any, actions the Secretary will be able to take absent court order in the November Election given that his actions thus far have been premised on the Governor’s emergency orders and extension of the State stay-athome orders. The Secretary will not be able to move the November Election date, as it is mandated by federal statute.
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most of whom mailed their ballots before Election Day—were disenfranchised merely because their ballots arrived at county election offices after 7:00 p.m. on Election Day, and almost 4,000 voters were disenfranchised for failure to include immaterial information on their absentee ballot or because election officials mistakenly concluded that their signatures on their ballot envelopes did not “match” the signatures on file.
4. Georgia has spent the last two years mired in litigation over many of these issues, and courts across the state have repeatedly found aspects of Georgia’s absentee regime unconstitutional or in violation of the Civil Rights Act, 52 U.S.C. § 10101(a)(B). See, e.g., Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324, 1341 (N.D. Ga. 2018) (finding plaintiffs likely to succeed on Civil Rights Act claim regarding Georgia’s rejection of absentee ballots for missing birthdates); Martin v. Crittenden, 347 F. Supp. 3d 1302, 1308-09 (N.D. Ga. 2018) (same); Martin v. Kemp, 341 F. Supp. 3d 1326, 1339-40 (N.D. Ga. 2018) (finding plaintiffs likely to succeed on due process challenge to Georgia’s signature match procedures); Democratic Party of Ga. v. Burkes, No. 1:18-cv-00212-WLS (M.D. Ga. Nov. 9, 2018), Dkt. No. 5 (finding plaintiffs likely to succeed on challenge to Dougherty County’s rejection of ballots received after 7:00 p.m. on Election Day).
5. Nevertheless, four aspects of Georgia law continue to disenfranchise - 9 -

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lawful voters and, unless immediately rectified, guarantee that Georgia’s absentee regime will be ill-equipped to handle the anticipated increase in absentee voting in the November Election: (1) the lack of standards governing the process for notifying voters regarding incomplete absentee ballot applications (“Absentee Applicant Notification Process”), O.C.G.A. § 21-2-381(b)(4); (2) the failure to provide prepaid postage on absentee ballots (“Absentee Postage Tax”); (3) the rejection of absentee ballots be received by 7:00 p.m. on Election Day (“Election Day Receipt Deadline”), id. § 21-2-386(a)(1)(F); and (4) Georgia’s prohibition on third-party assistance for absentee ballots (“Voter Assistance Ban”), id. § 21-2-385(a).
6. Even under normal circumstances, Georgia’s Absentee Applicant Notification Process, which provides simply for “prompt” notification to the voter in instances where elections officials are unable to determine the identity of the voter who submitted the absentee application, would be constitutionally problematic. See id. § 21-2-381(b)(4). But under the current circumstances, where hundreds of thousands of absentee voters are expected to request absentee ballots for the first time, it is a recipe for unconstitutional differential treatment of voters across the state and, even within counties. As elections officials become increasingly inundated with absentee ballot requests, from voters who have not previously voted absentee and, as such, are more likely to make a mistake in filling out their form, thousands of
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lawful voters are at serious risk of not being notified that their application is faulty and cannot be processed. Voters who are notified too late or not at all, will be effectively denied their right to vote safely from their homes in the November Election, and forced to choose between their health or their right to vote, as voting in-person will be their only remaining option.
7. Georgia’s Absentee Postage Tax, which mandates that voters pay for postage to mail their absentee ballot, unconstitutionally increases the monetary and transaction costs associated with voting. Not only must an absentee voter pay for postage to vote, they also must acquire the postage. In this digital age when many people do not keep stamps at home this often requires a trip to the post office or other essential business. Voters with access to stamps must accurately determine the correct amount of postage, which varies by ballot size and weight. As a result, they, too, may have to leave their homes to travel to the post office, a trip that can impose significant temporal and monetary costs for those with limited access to transportation, even in ordinary times, but in the current public-health crisis, may also impose significant health risks. Moreover, as the U.S. Postal Service (“USPS” or “postal service”) continues to face massive budget shortfalls, there is no guarantee that local post offices will be open and available to answer questions, and it is all but certain that for many voters, the time used to determine the correct postage amount
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will delay the voting process and place voters at greater risk of disenfranchisement due to the Election Day Receipt Deadline.
8. Georgia’s Election Day Receipt Deadline disenfranchises thousands of voters who complete and mail their ballot prior to Election Day, but whose ballots⸺through no fault of their own—do not arrive in the mail by 7:00 p.m. on Election Day. O.C.G.A. § 21-2-386(a)(1)(F). In 2018 alone, nearly 45% of all absentee ballots rejected were rejected simply because they arrived after the Election Day Receipt Deadline. While this arbitrary and burdensome cut-off was constitutionally infirm before the pandemic, under the current circumstances— where the pandemic will lead to a significant increase in mail voting while at the same time severely burdening an already compromised postal service and thinlystretched local election officials—it cannot survive judicial scrutiny. If left in place, the Election Day Receipt Deadline is certain to disenfranchise countless more voters this fall and, as a result, necessitates the precise change that the U.S. Supreme Court accepted in Wisconsin for its recent primary election—a postmark deadline.2 See
2 The term “postmark” as used herein refers to any type of imprint applied by the postal service to indicate the location and date the postal service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark, it should be presumed to have been mailed
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Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at *2 (2020).
9. Finally, Georgia’s Voter Assistance Ban, codified at O.C.G.A. § 21-2385(a), also significantly raises the risk that lawful, eligible voters will be disenfranchised. The Voter Assistance Ban prohibits a voter from seeking assistance delivering their signed, sealed, voted ballot from anyone outside of a limited set of family members, a household member, a caregiver, or detention center employee. This hamstrings the ability of organizations like The New Georgia Project to assist voters in making the transition to absentee voting—a transition that many of their constituents will make this fall due to the pandemic—and to ensure that voters’ ballots arrive on time to be counted. It also eliminates critical assistance for voters who live alone and do not have family or household members available to deliver ballots.
10. As the Secretary has explained, “times of turbulence and upheaval require decisive actions if the liberties we hold dear are to be preserved.” This sentiment applies equally to federal courts, which have an ongoing duty, especially
on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day.
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in times such as these, to ensure that voters can exercise their fundamental right to vote. This Court should abide by that duty by ensuring that Georgia’s absentee voting regime complies with the Constitution and does not erect unconstitutional hurdles to unduly burden or deny the right to vote to Georgia’s electorate in the upcoming November Election.
JURISDICTION AND VENUE 11. 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 United States Constitution and under 52 U.S.C. §§ 10301 and 10302. 12. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 and 52 U.S.C. §§ 10301, 10302, 10308(f), and 10310(e). 13. This Court has personal jurisdiction over Defendants, who are sued in their official capacity only. 14. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district. Plaintiff New Georgia Project’s headquarters are located in Atlanta, Georgia, and a significant portion of the registration and voter education activities it conducts take place in Fulton County. Plaintiffs Reagan Jennings and Candace
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Woodall are registered voters in Fulton County as well. 15. 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.
PARTIES 16. Plaintiff THE NEW GEORGIA PROJECT (“NGP”) is a nonpartisan, community-based organization with its principal place of business in Fulton County. NGP is dedicated to registering Georgians to vote and to helping them become more civically engaged citizens. To achieve its mission, NGP engages in voter education and registration activities in churches, college campuses, and neighborhoods across the state to reach voters and help them to register and, eventually, vote. NGP’s goal is to register all eligible, unregistered citizens of color in Georgia, and as of September 2019, NGP had registered almost half a million Georgians in all 159 of Georgia’s counties, the majority of whom are people of color and/or members of other underrepresented and vulnerable populations, such as Georgians with disabilities and the elderly. NGP considers these half a million individuals to be a core part of its constituency, and NGP actively works to assist the voters whom it helps to register to ensure that they are then successfully able to exercise the franchise. Georgia’s Absentee Applicant Notification Process, Absentee Postage
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Tax, Election Day Receipt Deadline, and Voter Assistance Ban all frustrate NGP’s mission and cause NGP to divert resources from other programs and initiatives to assist Georgia voters generally, and NGP’s core constituency specifically, with overcoming the burdens imposed on them by these laws. In the context of COVID19, these burdens are even more severe, and the resources that NGP will need to divert from its other programs to combat the burdens imposed by these laws are even more substantial.
17. As new registrants and voters, the majority of NGP’s constituents have never voted absentee by mail and will require additional support from NGP to ensure that they obtain and properly return their absentee ballots. As new absentee voters, they are far more likely to have errors on their absentee ballot applications and to require follow-up with elections officials to complete the application process. Without a uniform notification requirement due to the Absentee Applicant Notification Process, NGP must divert additional time and resources to confer with its constituents, not only to make sure that they have mailed applications, but to ensure that they have confirmed its receipt and/or have checked with elections officials to confirm that they were accepted and do not require changes. Likewise, the Election Day Receipt Deadline also requires NGP to divert additional resources to significant outreach prior to Election Day to ensure that voters are able to mail or
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drop off their ballots in time and, where they have not been able to send it in time to be received on Election Day⸺including in cases where the ballot was not sent to or did not arrive at the voter’s address in a timely fashion⸺to assist voters in getting to the polls to vote. The time and resources diverted to these efforts are resources that NGP would otherwise spend on its core registration and civic engagement activities for the broader community⸺including, but not limited to, radio and television advertisements to engage the community in voting, parties at the polls to encourage broader community participation in voting, and college student organizing⸺ which are a critical component of achieving NGP’s mission.
18. The majority of NGP’s constituents are African American, lower income, and also at high risk for COVID-19 complications. As a result, they are less likely to have access to reliable, convenient transportation and it is far more costly and riskier for them to leave their homes to obtain stamps and potentially expose themselves to the virus. NGP must assist them in overcoming the Absentee Postage Tax by providing stamps for absentee ballots. This entails significant diversion of resources by NGP, resources that it would otherwise spend on its core registration and community civic engagement activities. Finally, as a trusted messenger among Georgia’s communities of color and particularly among its core constituency of registrants, NGP could better serve its constituency and effectuate its mission by
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collecting and delivering completed, signed, and sealed absentee ballots. These services would ensure that such ballots arrive on time to be counted and are particularly needed during the current pandemic as many of NGP’s constituents are already at high risk for contracting COVID-19 and experiencing complications from the disease, and are less likely to leave their homes to mail a ballot as a result. However, the Voter Assistance Ban prevents NGP from assisting voters in this way, burdening not only NGP’s constituents, but also preventing NGP from engaging in a core form of political speech.
19. Plaintiff REAGAN JENNINGS is a United States citizen and registered Georgia voter in Fairburn, Georgia. Ms. Jennings is in her seventies and does not regularly keep stamps in her home. When she has to use stamps, she must go to the post office to purchase them. Ms. Jennings is unsure how much postage to apply to her absentee ballot and does not have a postage scale at home, therefore, she believes it is important to go to the post office to confirm the amount of postage she needs to send her ballot. Since the COVID-19 crisis began, Ms. Jennings has attempted to purchase stamps to vote in the spring primary election at least two times at great risk and hardship to herself. On one occasion, due to social distancing, a long line wrapped around the post office, but Ms. Jennings, who suffers from knee and back problems and must use a cane, was unable to wait in the line. On another occasion,
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Ms. Jennings attempted to purchase stamps, but the majority of the people waiting in line inside the post office were not practicing social distancing, and Ms. Jennings, who also suffers from two other conditions that place her at high risk for complications from COVID-19, was unable to wait in the line for fear of exposing herself to the disease. Ms. Jennings fears that she will face similar challenges in the November Election and, as a result, will be unable to safely leave her home to purchase a stamp. She is also concerned that even if she is able to purchase a stamp, her ballot may not arrive in time to be counted. Ms. Jennings lives alone and does not have a housemate or relative nearby who could assist her with mailing or delivering her ballot, and she is unable to send mail from her house. Therefore, she must travel to the post office to send her ballot herself. Given her health conditions, Ms. Jennings would benefit from assistance with turning her ballot in to the election office. Ms. Jennings typically votes in person and does not like to vote by mail because she does not trust that her vote will be counted, but given the pandemic and her health, she does not feel that she has any other choice for the November Election. As an African American, Ms. Jennings believes it is important to be able to exercise her right to vote, as many others have died before her to gain that right.
20. Plaintiff CANDACE WOODALL is a United States citizen and registered Georgia voter in Atlanta, Georgia. Ms. Woodall is almost sixty and lives
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alone in a senior facility, and she is currently unemployed due to the pandemic. Ms. Woodall does not typically keep stamps in her home, and when she has to use stamps, she purchases them at her post office, which is not in walking distance of the facility where she lives. To reach the post office Ms. Woodall must take MARTA, which costs $5.00 round trip, and then she must walk to the post office from the MARTA station. Because she is unemployed and on a restricted budget, she does not have money to buy a book of stamps. As a result, she would have to spend at least $5.00 to use MARTA to buy just one or two stamps. Ms. Woodall is recovering from an operation related to cancer and at high risk for contracting COVID-19 and experiencing complications. As a result, she would be significantly exposing herself to potential health risks during the pandemic by leaving her home to travel to the going to the post office and also having to use public transportation to reach it. Ms. Woodall would also have significant difficulty voting in person. Her typical polling location is very far from her home, and there is no public transportation to it; therefore, she would have to walk to her location to vote. Because she is recuperating from surgery, walking long distances is challenging. This also makes traveling to get a stamp challenging. Voting is very important to Ms. Woodall. She has voted in every election since she became age-eligible to vote and believes it is her right and duty to vote as a citizen. Moreover, as an African
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American woman, she believes it is important to be able to exercise her right to vote, as many others have died before her to gain that right.
21. Defendant BRAD RAFFENSPERGER is sued for declaratory and injunctive relief in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board. The Secretary is a state official subject to suit in his official capacity because his office “imbues him with the responsibility to enforce the [election laws].” Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Specifically, the Secretary is the chief elections officer of the state and is therefore responsible for the administration of the state laws affecting voting, including the absentee voting system. See O.C.G.A. § 21-2-50(b). The Secretary is further responsible for “furnish[ing] . . . applications for absentee ballots, envelopes and instruction sheets for absentee ballots, and such other supplies as the Secretary of State shall deem necessary and advisable from time to time, for use in all elections and primaries” to the county election officials. Id. The Secretary also publishes instructions on absentee voting directly to voters, including instructions on the payment of postage. See Ga. Sec’y of State Elections Div., Absentee Voting: A Guide for Registered Voters, at 5 (2020), https://sos.ga.gov/admin/uploads/ Absentee_Voting_Guide_20142.pdf (“If mailing, you must affix postage to the ballot envelope.”). The Secretary serves as the Chair of the State Election Board,
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which is the body responsible for ensuring uniform election practice in Georgia. And most recently, the Secretary sent absentee ballot applications to all active, registered voters in Georgia.
22. Defendants REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE (hereinafter, “State Election Board” or “State Election Board Members”), are members of the State Election Board in Georgia, responsible for “promulgat[ing] rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials, as well as the legality and purity in all primaries and elections.” O.C.G.A. § 21-2-31(1). The State Election Board is responsible for “formulat[ing], adopt[ing], and promulgat[ing] such rules and regulations, consistent with law, as will be conducive to the fair, legal, and orderly conduct of primaries and elections; and, upon the adoption of each rule and regulation, the board shall promptly file certified copies thereof with the Secretary of State and each superintendent.” Id. at § 21-2-31(2). Likewise, the State Election Board “promulgate[s] rules and regulations to define uniform and nondiscriminatory standards concerning what constitutes a vote and what will be counted as a vote for each category of voting system” in Georgia. Id. § 21-2-31(7). The State Election Board Members, personally and through the conduct of the Board’s employees,
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officers, agents, and servants, acted under color of state law at all times relevant to this action and are sued for declaratory and injunctive relief in their official capacities.
23. Through their uniformity powers, the Secretary and the State Election Board have the authority to direct the officials in each county who administer elections on the local level to ensure that the counties are uniformly following state standards and law. See id. § 21-2-31.
24. Defendants MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, AARON JOHNSON, SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, BAOKY N. VU, PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, DARRYL O. WILSON, JR., BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, ALICE O’LENICK, COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, RANDOLPH SLAY, DARRY HICKS, ADDISON LESTER, AARON WRIGHT, CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, DIANE GIVENS, JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, VIVIAN THOMAS, MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER,
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ELEANOR WHITE, DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, MYESHA GOOD, PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, FREDERICK WILLIAMS, ALDREN SADLER, SR., KAREN JAMES, GERALD BARGER, PHIL JOHNSON, KELLY ROBINSON, DUSTIN THOMPSON, TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, BOB FINNEGAN, HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, RINDA WILSON, JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, ANN TILL, BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, are sued in their official capacities only, and are appointed officials in Georgia counties who are responsible for administering elections in their respective counties. They are generally appointed by the county governing authority, county executive committee, members of the General Assembly representing all or part of the county, or a combination thereof. See, e.g., H.B. 656, Ga. L. 2019 § 2 (describing process for appointing members of the Fulton County Board of Registration and Elections); Code of Dekalb County, GA. App. B 171 (describing process for appointing members of the Dekalb County Board of Registration and Elections); H.B. 1790, Ga. L. 1998 § 3 (describing the
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governing authority that must appoint each member of the county Board of Elections and Registrations in Newton County); H.B. 623, Ga. L. 1985 § 2(b) (describing process for appointing members of the Cobb County Board of Elections and Registration). Their responsibilities include, in pertinent part, processing absentee ballot applications, distributing absentee ballots to voters, evaluating the date and time absentee mail-in ballots arrive, and accepting or rejecting absentee ballots according to the laws set out by the State and the rules, regulations, and interpretations set forth by the Secretary and State Election Board. See O.C.G.A. § 21-2-40(a) (designating boards of elections and registration with powers and duties of election superintendent and assigning it powers related to absentee balloting procedures); id. § 21-2-381(b)(1) (processing absentee ballot applications); id. § 212-384 (preparing and delivering absentee mail-in ballots); id. § 21-2-386(a)(1)(B) (requiring county board to review day and hour each absentee mail-in ballot is returned); id. § 21-2-386(a)(1)(C) and Ga. Comp. R. and Regs. § 183-1-14-.13 (process for rejecting absentee mail-in ballots).
STATEMENT OF FACTS AND LAW A. Absentee Voting in Georgia 25. Georgia has conferred the right to cast an absentee ballot by mail without excuse in any primary, election, or runoff to any eligible voter since 2005.
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O.C.G.A. § 21-2-380(b). 26. Historically only about 5% of eligible Georgia voters have utilized
absentee voting by mail in each election. The highest rate of absentee voting to date was in the November 2018 general election, when absentee turnout rose to 6%.
27. Thus, in prior elections, the vast majority of Georgia voters have cast their ballots in person, either during early voting or at polling locations on Election Day.
28. As compared to in-person voting, absentee voting requires additional steps that must be taken deliberately and well in advance of Election Day to ensure that a voter’s ballot is counted.
29. To vote absentee, a voter must correctly complete the absentee ballot application and request an absentee ballot by the statutory deadline.
30. Next, the voter must receive the absentee ballot in the mail and complete the required information, signature fields, and, sometimes, provide a copy of an identification document.
31. Finally, a voter must mail the absentee ballot with sufficient time and postage for it to arrive at the local election office by the Election Day Receipt Deadline.
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absentee, are not insubstantial, often requiring voters to expend significant time and effort to complete. A misstep at any point—including by the elections officials, not the voter—often results in complete disenfranchisement.
(i) Absentee Applicant Notification Process 33. Georgia voters may submit an absentee application by mail, facsimile, email, or in person beginning 180 days before the election and until the Friday before Election Day. O.C.G.A. §§ 21-2-381(a)(1)(A); 21-2-384(a)(2). 34. An absentee application must include sufficient information to identify the voter—e.g., the voter’s name, date of birth, phone number, email address, registration address—as well as the address the voter would like the ballot mailed to, the election in which the voter wishes to participate, and the name and relationship of the person requesting the ballot if other than the voter. Id. at § 21-2381(a)(1)(A), (C). 35. If the election official reviewing the application verifies the voter’s eligibility to vote, the voter’s signature, and is able to identify the voter based on the information, the voter is mailed an absentee ballot within three business days of receiving the application. Id. at § 21-2-381(b)(1)-(2); Ga. Comp. R. and Regs. 1831-14-.11. 36. Absentee ballots may be mailed to voters from 49 days before Election
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Day up to the Friday before Election Day. See O.C.G.A. § 21-2-384(a)(2). 37. Where the election official reviewing the absentee ballot application
cannot determine the identity of the voter, Georgia law provides that the official must “promptly write to request the additional information.” Id. § 21-2-381(b)(4).
38. No other guidelines are provided to govern, for example, when or how a voter must be notified that their identity cannot be determined, and “promptly” is not defined.
39. As a result, counties are at liberty to notify voters that they are unable to process their absentee application at their leisure.
40. Upon information and belief, voters are not notified of such issues in their absentee ballot applications in a uniform manner between and across Georgia’s 159 counties.
41. When voters are not notified of such issues with their absentee ballot applications until later in the election cycle, they are more likely to be at risk of being disenfranchised. This is because, even if they are able to rectify the issues, the delay in notification consequently delays the issuance of their ballot, giving the voter less time to return their ballots in time to be counted.
42. The risk that there are substantial delays in notifying significant numbers of voters of issues with their absentee ballot applications is acutely
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heightened during the current pandemic, where county election officials are likely to be inundated with absentee ballot requests, many (indeed, likely the majority) of which will be submitted by voters who have no prior experience voting absentee, and thus are more likely to inadvertently err in filling out the application, necessitating notification and additional communication before their application can be processed.
43. For those voters with disabilities, limited access to transportation, or who are immunocompromised or have other high-risk factors for COVID-19, inperson voting may not be a realistic option, and they will be entirely disenfranchised.
(ii) Absentee Postage Tax 44. Georgia requires voters who return their ballots by mail to obtain and pay for their own postage. See Ga. Sec’y of State Elections Div., Absentee Voting: A Guide for Registered Voters, at 5 (2020), https://sos.ga.gov/admin/uploads /Absentee_ Voting_Guide_20142.pdf (“If mailing, you must affix postage to the ballot envelope.”). 45. The Absentee Postage Tax imposes both monetary and transaction costs that bear most heavily on individuals who are least likely to be able to overcome them.
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46. In this digital era, many voters do not regularly keep postage stamps in their homes, and therefore must visit a post office or other essential business to obtain the correct postage.
47. Purchasing a book of 20 stamps online will cost voters $11—an unnecessary expense that could be cost-prohibitive for individuals with lower incomes, posing a significant hurdle to returning the ballot and voting.
48. The amount of postage required for a mail ballot is also not readily apparent to voters. Absentee ballots are generally a non-standard size, include two envelopes,3 and have varying weight depending on the number of races on the ballot. O.C.G.A. § 21-2-384(b)-(c). As a result, even where a voter has stamps, mailing their ballot may still necessitate a trip to the post office to weigh the envelope and determine the proper amount of postage to affix.
3 Georgia state law requires the use of two envelopes, an inner envelope containing the elector’s ballot and an outer envelope used for mailing and to print the oath the elector must sign, ostensibly to protect the secrecy of the ballot. O.C.G.A. § 21-2-385(a). The Secretary of State’s office nevertheless has authorized mailing of the ballots from its vendor to the electors, and from absentee electors to county election offices, with only one envelope for the forthcoming June 9, 2020 primary election. Atlanta Journal-Constitution, Georgia absentee voting instructions to be corrected (Apr. 28, 2020) https://www.ajc.com/news/state--regional-govt-politics/georgia-absentee-voting-instructionscorrected/kzkuKmLufxIRcwIW0oEzCN/.
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49. For elderly voters, voters with disabilities, voters who live far from a post office, voters with limited access to transportation, or voters who are immunocompromised or have other high-risk factors for COVID-19, the Absentee Postage Tax may very well deter them from voting, because any trip outside the home poses additional burdens and costs, as well as grave health and safety risks.
50. Extra time spent acquiring postage or inquiring about the amount of postage needed also increases the transaction cost of voting, slowing down the voting process and making the voter more likely to mail the ballot later in the election cycle. In turn, this places these voters at heightened risk of their absentee ballot arriving after the Election Day Receipt Deadline.
51. Even where a voter is able to overcome the hurdles placed on them by Georgia’s Absentee Postage Tax, their risk of disenfranchisement remains high. Each year, Georgia rejects a significant number of ballots that arrive after the Election Day Receipt Deadline.
(iii) Election Day Receipt Deadline 52. Georgia law requires that, for an absentee ballot to be counted, it must be received by 7:00 p.m. on Election Day. See O.C.G.A. § 21-2-386(a)(1)(F). 53. Ballots that arrive after the Election Day Receipt Deadline—regardless of whether they were completed and mailed by the voter prior to or on Election
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Day—are not counted. 54. In 2018, over 3,500 ballots⸺45% of all absentee ballots
rejected⸺were rejected simply because they arrived after the Election Day Receipt Deadline.
55. In 2016, at least 42% of all absentee ballots rejected were rejected for arriving after the Election Day Receipt Deadline.
56. In Dougherty County ballots were rejected for failing to arrive by the Election Day Receipt Deadline in 2018 even when the late arrival was due to delayed mail delivery and failure of the county election officials to send ballots out to voters by the statutory deadline due to an impending hurricane. It was only after a lawsuit and intervention by a federal court that the county counted the late ballots. Democratic Party of Ga., No. 1:18-cv-00212-WLS (M.D. Ga. Nov. 9, 2018), Dkt. No. 5. As the court explained, “because external circumstances prevented certain voters from casting an absentee ballot, [the court’s] intervention [was] necessary to protect those voters’ rights,” as “external circumstances . . . subject[ed] vote-by-mail voters to an unreasonable risk that their ballot will be tossed.” Id. at 2 (quotation marks and citations omitted).
57. There is no reason to believe that voters will not experience similar delays in the November Election. If anything, such delays are likely to become more
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common, as the public health crisis exacerbates both the pressures on the postal service as well as election officials’ abilities to keep up with mailing absentee ballots at the volume and clip requested.
58. For the upcoming primary election, statewide mailing delays have already been reported due to high printing demands for ballots. Demand is likely to be far higher in the November Election, making it increasingly likely that Georgia voters—through no fault of their own—will be at increased risk of receiving their ballots late and, in turn, making it all the more likely that they are disenfranchised by the Election Day Receipt Deadline.
(iv) Voter Assistance Ban 59. Georgia’s Voter Assistance Ban prohibits assisting anyone who is not part of a limited category of family members, household members, caregivers, or employees of detention facilities from assisting voters with returning their signed, sealed absentee ballots. O.C.G.A. § 21-2-385(a). 60. As a result, a substantial number of voters, including those among the over 64,000 Georgians who live alone, are cut off from any assistance with delivering their ballot. 61. Moreover, organizations like NGP are unconstitutionally prohibited from exercising their First Amendment rights to assist voters, and particularly,
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vulnerable populations such as disabled voters, elderly voters, and voters with

limited access to the mail or transportation, and voters with inflexible schedules, as

well as voters who receive their absentee ballots with insufficient time to return them

by mail and have limited options for help delivering their ballots.

62. While these inadequacies in Georgia’s absentee system are

constitutionally problematic in their own right, they will only be exacerbated by the

current coronavirus crisis, burdening and disenfranchising significantly more voters

in the upcoming November Election.

B. The Exacerbating Effect of the COVID-19 Crisis on Georgia’s Absentee System

63. COVID-19, the severe and sometimes deadly disease caused by the

novel coronavirus, has been spreading through Georgia for several months.

64. To date, there are 31,605 confirmed cases of the novel coronavirus in

the state, and 1,352 Georgians’ deaths have been officially attributed to COVID-19,

a shockingly disproportionate number of individuals impacted⸺approximately 80%

of those hospitalized and 53% of people who have died from COVID-19⸺are

African Americans. Yet, African Americans comprise only 32.4% of Georgia’s total

population.

65. Current models predict that over 4,000 people could die in Georgia

from COVID-19 by August.

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66. Despite Governor Kemp’s recent lifting of a statewide stay-at-home order, Georgians across the state are engaging in social distancing to protect their health and to continue to slow the spread of the virus.
67. These social distancing actions have helped protect Georgians’ health, but they have also had a severe economic impact on the state, with estimates showing that up to 608,000 people will lose their jobs by the summer.
68. The federal government is preparing for the COVID-19 crisis to last 18 months and has warned that the pandemic could come in “multiple waves.”
69. The White House’s coronavirus advisor and the Director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, was asked at a White House press conference whether the United States was “prepared for [coronavirus] to strike again, say, in the fall?” Dr. Fauci responded, “[i]n fact I would anticipate that that would actually happen because of the degree of transmissibility.”4
70. Similarly, the Director of the National Center for Immunization and Respiratory Diseases at the CDC, Dr. Nancy Messionnier, has stated that she expects the virus to continue spreading in the United States until next year.
4 The White House, Remarks by President Trump and Members of the Coronavirus Task Force in a Press Briefing (Mar. 30, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trumpmembers-coronavirus-task-force-press-briefing/.
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71. These sentiments are also shared by scientists outside the United States government. The COVID-19 Response Team at the Imperial College of London has estimated that social distancing and other preventative measures will be required until a vaccine is developed and distributed widely, which they predict could take “18 months or more.”5
72. Even if the community spread of COVID-19 in Georgia has significantly decreased by this upcoming election season—which is unlikely given the strong possibility of a second wave and Georgia’s early re-opening—CDC guidelines recommend that individuals take meaningful social distancing measures even if there is a “minimal” threat of community transmission of COVID-19 in the area.
73. This guidance is necessitated by the reality that asymptomatic carriers appear to be contributing significantly to community spread, and until there is a vaccine or “herd immunity” (i.e., at least 60% of the population has been infected and recovered), Americans will remain at serious risk of contracting the virus.
5 Imperial College COVID-19 Response Team, Report 9: Impact of nonpharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (Mar. 16, 2020), https://www.imperial.ac.uk/media/imperialcollege/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPImodelling-16-03-2020.pdf.
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74. Recognizing that the COVID-19 crisis will also impact Georgia’s elections, the Secretary has made changes to the upcoming primary election, joining at least fourteen other states that have all postponed their primary election to avoid public health risks posed by the virus, and he is encouraging widespread absentee voting by sending absentee ballot applications to the 6.9 million voters coded as registered and active in the Secretary’s statewide voter registration database.
75. The Secretary is right to make changes. The CDC, anticipating difficulties in conducting elections during the COVID-19 crisis, has now recommended that jurisdictions encourage voting by mail and reduce methods of voting that lead to direct contact with other voters or poll workers.
76. Other federal, state, and local officials have increasingly come to the same realization. Congress, for example, recently authorized $400 million to help states transition to voting-by-mail.
77. States that have not postponed their elections and have attempted to conduct in-person voting have seen utter chaos result.
78. In Wisconsin, for example, which held a primary election in April, Milwaukee was forced to reduce its polling locations from 180 to just five locations because of a severe shortage of poll workers. Despite the fact that Wisconsin has noexcuse absentee voting, a substantial number of voters had no choice but to vote in
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person, including those who did not receive absentee ballots in time to cast and return them. Those voters were forced to decide whether to risk their health to cast their ballot and, ultimately, leading to thousands of Wisconsin citizens stood in long lines for hours to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in several hour-long lines at the polls. At least fifty individuals who participated in the election have been diagnosed with COVID19—a number that is anticipated to grow.
79. The inherent challenges to voting in-person during this pandemic led voters in Wisconsin to request absentee ballots at unprecedented rates, with more than one million voters requesting absentee ballots for the recent primary, four times the number who did so in the 2016 general election. This increased interest in voting by mail, combined with decreases in available elections staff and other social distancing efforts, placed a significant strain on local election boards, several of which were not able to send voters a ballot in time for it to be returned—or even delivered to them—by the normal Election Day deadline. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374, at *38-39 (W.D. Wis. Apr. 2, 2020). This crisis ultimately necessitated federal litigation that reached the U.S. Supreme Court and resulted in the implementation of a postmark rule, whereby ballots postmarked by Election Day could be counted as long as they are
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received within six days of Election Day. See Republican Nat’l Comm., 2020 WL 1672702, at *2. Over 100,000 ballots in Wisconsin were postmarked by, but arrived after, Election Day.
80. This chaos is not limited to Wisconsin. Florida experienced significant shortages in poll workers and polling locations, with 800 poll workers withdrawing from Palm Beach County alone in its primary election held on March 17, 2020.
81. Likewise, Arizona’s most populous county, Maricopa, was forced to close over 80 polling locations at the last minute as locations serving high risk communities backed out and poll workers cancelled in its March 17, 2020 primary election.
82. And as Georgia prepares for its postponed primary election, it is experiencing a number of these same challenges. Election officials continue to see massive poll worker cancellations, as well as shortages in in-person polling locations as assisted living centers and buildings with other high-risk populations that have historically served as polling locations are increasingly unwilling to do so under the current circumstances.
83. Fulton County, for example, typically has more than 1,600 poll workers; however, fewer than 500 people have committed to working this election. And at least five assisted living centers and two churches have already refused to
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serve as polling locations in the county on Election Day. Paulding County has lost at least one-third of its 325 poll workers. Lowndes County has lost 40% of its poll workers.
84. Record numbers of voters have also requested absentee ballots, with more than half a million absentee ballot applications being processed thus far. In Fulton County, Elections Director Rick Barron has reported that emailed absentee ballot applications are coming in “every 10 seconds.” And other county officials have stated that they have “never seen anything like this before,” are being “inundated” with requests, and that “applications . . . are coming in by the bucket loads.”
85. Multiple counties are already reporting being strained under the load of processing the ballots and have had to reach out to county staff and personnel outside of the elections departments for assistance.
86. These challenges will only grow worse in November as absentee requests increase—both as a result of the continuing public health crisis and the inevitable increase in overall turnout as voters seek to participate in the presidential election.
87. Thus, the changes the Secretary has sought, while laudable, are not enough to ensure that the right to vote is not unconstitutionally burdened or, in many
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cases, outright denied. More must be done to ensure that Georgians’ right to vote is preserved in the November Election.
88. Moreover, an increase in absentee voting in November also means that a significant number of voters who typically vote in person will be voting by mail, and many of those will be voting by mail for the first time. These voters differ from current absentee voters in important respects that make them even more likely to be burdened by the absentee application, having to pay for postage, and by being required to deliver their ballots by Election Day instead of postmarked on or before Election Day.
89. Compared to absentee voters, lower socio-economic status voters tend to vote in-person, meaning that as they transition to mail voting, they are far more likely to face challenges in paying for or obtaining postage and, as new absentee voters, are less likely to know how much postage is needed.
90. Moreover, given the devastating economic impacts of the coronavirus, many voters’ sources of income have been substantially negatively impacted, further increasing the number of individuals who likely will find the costs of stamps prohibitive in this increasingly desperate economic situation.
91. Many voters who switch to mail voting will also be doing so precisely because they are immunocompromised, have conditions placing them at high risk
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for COVID-19, or are generally concerned about their health or the health of their family and friends. This is particularly true in Georgia where African Americans have been both disproportionately likely to vote in person in the past and are also at a heightened risk of contracting COVID-19 and experiencing severe complications from the disease. As such, they will be far less likely to venture out to purchase stamps if they do not already have them in their home or to leave home to go to the post office to determine the proper amount.
92. Those voters transitioning to absentee voting from Election Day voting also tend to be “late deciders;” that is, they decide who they will vote for later in the process, typically at the end of the campaign. Because of that, they are more likely to cast an absentee ballot at the end of the voting process with only a few days to go until Election Day.
93. It is unremarkable that these voters would be more likely to cast their absentee ballots later given that they are also likely to be less familiar with the absentee voting process, including the Election Day Receipt Deadline. Nor would it be unreasonable for them to think that their ballots can be mailed later in the election cycle as long as they are postmarked by Election Day, as many other deadlines in Georgia voters’ lives—including voter registration deadlines—are postmark deadlines. See, e.g., O.C.G.A. § 21-2-224 (accepting voter registrations postmarked
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by the deadline); id. § 48-7-57 (applying a postmark deadline to tax returns); id. § 48-2-46 (applying a postmark deadline to tax assessment protests); id. § 40-3-42 (applying a postmark deadline to title applications).
94. For the same reasons, these voters are much more likely to need assistance with delivering their ballots so that they can avoid the pitfalls that too often lead to rejection. And, as new absentee voters, they are more likely to make mistakes in completing their absentee ballot applications, mistakes that would necessitate being notified by election officials so that they can still receive a ballot.
95. Finally, as mail balloting increases, USPS is facing a budget crisis that will likely lead to delays in mail delivery, raising particular concerns for Georgia, which has experienced slow and unreliable mail service in some counties. As a result, the postal service already asked voters to mail their ballots up to a week before Election Day even before COVID-19. Yet even when that advice is followed, there is simply no guarantee that ballots will arrive on time. Together, these circumstances guarantee that as the COVID-19 crisis continues, Georgia voters will find it increasingly difficult to ensure that their ballots arrive before the Election Day Receipt Deadline without assistance.
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C. The State Has No Adequate Interest in the Challenged Laws and Policy Generally, and Even Less Interest During the Pandemic
96. Even before the COVID-19 crisis, the State’s interest in the Absentee Applicant Notification Process, Absentee Postage Tax, Election Day Deadline, and Voter Assistance Ban were thin. In the context of COVID-19, they cannot possibly outweigh the serious burdens that they impose on impacted voters’ fundamental right to vote.
97. The State has no legitimate interest in failing to provide a uniform standard for notification to voters whose absentee application contains insufficient information. Indeed, in the context of other factors such as signature matching, the State provides clear rules for notification. See Ga. Comp. R. and Regs. 183-1-14-.13 (providing notification within three business days or, in some circumstances, the next business day for rejected absentee ballots). There is simply no reason that it cannot do the same here.
98. The State’s justification for imposing the Absentee Postage Tax is also lacking. Providing postage to allow citizens to complete voting, as well as other important government-related functions, is a common practice that has been adopted by federal, state, and county governments. For instance, at least sixteen states prepay postage on absentee ballots. See Ariz. Rev. Stat. § 16-542; Cal. Elec. Code § 3010; 15 Del. Code § 5504; Haw. Rev. Stat. § 11-102; Ind. Code § 3-11-4-20; Iowa Code
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Ann. § 53.8; Minn. Stat. Ann. § 203B.07; Mo. Rev. Stat. § 115.285; Mont. Code § 13-13-214; Nev. Rev. Stat. § 293.323; N. M. Stat. Ann. § 1-6-8; Ore. Rev. Stat. § 254.473; R.I. Gen. Laws § 17-20-10; Wash. Rev. Code § 29A.40.091; W. Va. Code Ann. § 3-3-5; Wis. Stat. Ann. § 6.87. Likewise, the United States Census Bureau sends census surveys with postage-prepaid return envelopes. Georgia provides, as the National Voter Registration Act requires, a postage-prepaid return envelope when it asks voters to verify their address for the purpose of voter registration. And in its coronavirus stimulus package, Congress allocated $400 million for elections, which can be used to cover the cost of prepaying postage, among other expenses.
99. Studies have shown that sending absentee ballots in postage-prepaid envelopes has a direct and dramatically significant impact on mail voting turnout, as well as turnout generally.
100. When King County, Washington launched prepaid postage pilot programs during the 2017 and 2018 primary elections, the county found that voters returned their absentee ballots via USPS at higher rates when they received return envelopes with postage prepaid. In the 2016 general election, before prepaid postage was implemented, 48% of the tested group of voters returned their absentee ballots via USPS. In 2017, after prepaid postage was implemented, 81% of those same voters did.
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101. Voters were not only more likely to return their ballots by mail, they were also more likely to vote. In King County’s 2017 primary, turnout rose 10%. In the 2018 primary, it rose 6%.
102. Following these pilot programs, King County sent all absentee ballots with postage-prepaid return envelopes. Shortly after that, the Governor and Secretary of State of Washington funded prepaid postage for every county in the state. This experience shows, not surprisingly, the enfranchising effects of prepaid postage and, conversely, the impediments to voting that result from voters having to pay for postage.
103. The justifications for the Election Day Receipt Deadline also cannot hold water. While Georgia may set a reasonable deadline for receiving ballots to ensure the finality of election results, the Election Day Receipt Deadline is not reasonable: voters do not reasonably expect that they must submit their ballots a week in advance of Election Day. This is particularly true where the vast majority of deadlines voters encounter in their daily lives, including the voter registration deadline, are postmark deadlines. See supra at ⁋ 93.
104. Moreover, history proves that the Deadline disenfranchises voters for reasons entirely outside their control, even under more normal circumstances. During the current pandemic, with its consequent pressures on elections officials and
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the post office, the numbers of voters disenfranchised is certain to grow exponentially.
105. The Election Day Receipt Deadline is also unnecessary to ensure that all ballots are received and counted within a reasonable time. In fact, ballots from overseas voters are not required to be received until three days after Election Day, Ga. Comp. R. and Regs. § 183-1-14-.10, and state law allows voters until the Friday after Election Day to perfect their provisional ballots and cure absentee ballots that have been flagged for rejection, O.C.G.A. §§ 21-2-386(a)(1)(C), 21-2-419(c). Thus, vote tallies are not final on Election Day, and the Secretary does not even certify results until at least seventeen days after Election Day. Id. § 21-2-499.
106. Finally, the State’s justifications for the Voter Assistance Ban are also weak. Indeed, voter fraud in Georgia is exceedingly rare. And where it does occur, Georgia has other protections in place that would better protect directly against such actions, such as prohibiting fraud in connection with casting a vote, O.C.G.A. § 212-573, destroying or delaying delivery of ballots, id. § 21-2-576, as well as “votebuying” and “vote-selling,” id. § 21-2-570. This is particularly true in the current crisis where new absentee voters are far more likely to need assistance and, as a result, will need more options for people to assist them with delivering their ballots.
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107. Absent relief from this Court, the individual and cumulative impacts of the Absentee Applicant Notification Process, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban will impose a severe burden on Georgia voters, deterring them from participating in the November Election and disenfranchising them. If these laws stand, many Georgia voters will find themselves faced with the same unconscionable choice that Wisconsin voters faced on April 7⸺their health and safety versus their right to vote. The Constitution not only empowers the Court to ensure that both are protected, and it requires it to do so.
CLAIMS FOR RELIEF COUNT I
First Amendment and Equal Protection U.S. Const. amends. I, XIV, 42 U.S.C. § 1983
Undue Burden on the Right to Vote 108. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 109. Under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, a state cannot utilize election practices that unduly burden the right to vote. A court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that a plaintiff seeks to vindicate against the justifications put
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forward by the state for the burdens imposed by the rule. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
110. This balancing test utilizes a flexible sliding scale, where the rigorousness of scrutiny depends upon the extent to which the challenged law burdens voting rights. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318-19 (11th Cir. 2019).
111. Courts need not accept a state’s justifications at face value, particularly where those justifications are “speculative,” otherwise it “would convert AndersonBurdick’s means-end fit framework into ordinary rational-basis review wherever the burden a challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448-49 (9th Cir. 2018) (citing Pub. Integrity All. Inc. v. City of Tucson, 836 F.3d 1019, 1024-25 (9th Cir. 2016)); see also Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion) (“However slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” (citation and quotation marks omitted) (emphasis added)); Democratic Exec. Comm. of Fla., 915 F.3d at 1318-19 (“And even when a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden. The more
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a challenged law burdens the right to vote, the stricter the scrutiny to which we subject that law.”).
112. Georgia’s Absentee Applicant Notification Process, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban impose a severe burden on all Georgia voters who vote by mail.
113. Voters who are notified of absentee application deficiencies late in the process, or not at all, due to the Absentee Applicant Notification Process may no longer be able to vote absentee and instead will have to vote in-person or not at all. Given the grave health risks that in-person voting poses during the pandemic, as well as the general difficulties of voters who have disabilities, a lack of transportation, or inflexible work schedules, these voters may have no choice at all and will be completely disenfranchised as a result. There is simply no justification for this.
114. Georgia’s Absentee Postage Tax imposes monetary costs on the only safe alternative to voting for individuals who would otherwise have to subject themselves to the health risks of waiting to vote at the few consolidated and potentially crowded polling locations available. These costs bear most heavily on low-income voters and those who are affected by the devastating economic impact of the ongoing public health emergency. Even for voters able to withstand the economic costs, the postage requirement imposes practical burdens—i.e., traveling
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to a post office to purchase stamps—that will dissuade voters with disabilities and limited access to transportation and voters concerned about the attendant health risks.
115. Even prior to the pandemic, studies showed that failing to provide postage for voters depressed voter turnout over all. In the current circumstances, the state lacks any adequate justification for its refusal to provide postage, where doing so is highly likely to result in the disenfranchisement of significant numbers of voters. And although the comparatively nominal costs of providing postage could not in any event justify the burdens that follow from refusing to do so, under the current circumstances this is all the more so, where there is a ready source of funding provided by the federal government. Thus, Georgia’s refusal to ensure that voters are not burdened or disenfranchised as a result of the Absentee Ballot Postage Tax violates the First and Fourteenth Amendments.
116. The Election Day Receipt Deadline also poses a severe burden on voters’ rights to vote. Voters must first learn about the Election Day Receipt Deadline and accurately guess when their ballot must be mailed for it to be counted, if they have even received their ballot in time to mail it. For those voters who, misjudge how long it will take for their ballot to arrive at the county, or for those whose ballots do not even reach them until a day or two before Election Day (even
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if the delay is entirely attributable to the overwhelming pressures currently being experienced by elections officials and the postal service and not the fault of the voter), the punishment is swift and severe: total disenfranchisement.
117. But Georgia’s Election Day Receipt Deadline also severely burdens all voters who vote by mail even if those voters’ ballots are successfully counted. By requiring voters to cast their absentee ballots a week before the election for those ballots to be counted, Georgia’s Election Day Receipt Deadline effectively moves election day forward for absentee voters⸺depending on postal delays, potentially by a week or more⸺foreclosing them from considering what could be critical, latebreaking information about the election or the candidates that may arise in the final week leading up to Election Day. Georgia’s Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust period of civic engagement, because it effectively requires them to have already cast their vote. Moreover, the number of voters substantially burdened⸺and potentially entirely disenfranchised⸺by the Election Day Receipt Deadline is certain to rise in the November Election in light of the current public-health emergency due to increased mail delays and processing times needed to mail absentee ballots out.
118. Similarly, the Voter Assistance Ban imposes a severe burden on the right to vote because it will effectively disenfranchise voters who require assistance
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turning in their absentee ballots, but lack access to a family or household member who is able to provide such assistance. The State’s interest in enforcing the Voter Assistance Ban cannot justify disenfranchising voters who require assistance but whose personal circumstances mean that they do not have individuals within their family or household willing and able to provide it. Other Georgia laws already criminalize any exercise of undue influence or voting fraud that might be captured by the Voter Assistance Ban.
119. In short, Georgia’s Absentee Applicant Notification Process, Election Day Receipt Deadline, Voter Assistance Ban, and Absentee Postage Tax are not supported by a state interest that is sufficient to justify the resulting burden on the right to vote, and thus unduly burden the right to vote of all Georgia voters in violation of the First and Fourteenth Amendments.
COUNT II Poll Tax
U.S. Const. Amends. XIV, XXIV, 42 U.S.C. § 1983 Imposition of Poll-Tax
120. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs below as though set forth fully herein.
121. The Twenty-Fourth Amendment to the United States Constitution provides that: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice
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President, or for Senator or Representative in Congress, shall not be denied or

abridged by the United States or any state by reason of failure to pay any poll tax or

other tax.” U.S. Const. Amend. XXIV, § 1.

122. But Georgia requires individuals who cast a mail ballot to pay for

postage to return their ballots by mail. Requiring voters to spend money to submit a

mail ballot imposes an unconstitutional poll tax in violation of the Twenty-Fourth

Amendment. Indeed, Georgia voters—and particularly voters who are low-income,

disabled, or homebound due to COVID-19⸺are being forced to pay “a price for the

privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539

(1965).

123. Based on the foregoing, the Secretary has deprived and will continue to

deprive Plaintiffs and their constituents of their right to vote in federal elections,

secured to them by the Twenty-Fourth Amendment to the United States Constitution

and protected by 42 U.S.C. § 1983.

COUNT III Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process

124. Plaintiffs incorporate by reference and reallege all prior paragraphs of

this Complaint and the paragraphs in the counts below as though set forth fully

herein.

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125. The Due Process Clause of the United States Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. Amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the government’s action, as well as the “degree of potential deprivation that may be created” by existing procedures. Nozzi, 806 F. 3d at 1192-93. Second, “courts must consider the ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally, courts must consider “the public interest, which ‘includes the administrative burden and other societal costs that would be associated with’ additional or substitute procedures.” Id. (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334 (quotation and citation omitted).
126. Georgia’s absentee procedures must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting
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by mail]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
127. “When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995)). A state’s election system, “the specifics of which are not explicitly made known to potential voters, that leaves potential voters in the dark as to its effect on a voter’s [ability to vote] and that fails to give voters a fair opportunity to [participate], is fundamentally unfair and violative of the Due Process Clause of the Fourteenth Amendment.” Id. at 1185.
128. The nature of the interest at stake in this case—the right to vote and to have that vote count—is the most precious liberty interest of all because it is preservative of all other basic civil and political rights.
129. Due process requires that all voters in Georgia be afforded meaningful notice that their absentee ballot application is deficient so that they can cure it before it is too late for the voter to receive an absentee ballot at all. The current “prompt
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notification” law set out in O.C.G.A. § 21-2-381(b)(4) fails to provide such process and, as a result, voters’ absentee applications are not fairly considered under the Absentee Applicant Notification Process, even where the voter is wholly eligible to vote and, with proper notice, could have cured his or her absentee ballot application.
130. Georgia’s law governing absentee ballots too often deprives voters of having their ballot counted because (1) many voters do not learn of the Election Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election Day Receipt Deadline may not have their ballots counted if those ballots do not arrive in the mail at the county supervisor’s office, through no fault of their own, by 7:00 p.m. on Election Day. Georgia’s Election Day Receipt Deadline further deprives all Georgia voters who vote by mail of the ability to cast a meaningful and informed vote by requiring voters to cast their ballots a full week before Election Day if they wish to ensure that their ballots will actually be counted.
131. Georgia’s Election Day Receipt Deadline is neither a reliable nor fair way to administer voting by mail. The Election Day Receipt Deadline and the corresponding cutoff for casting ballots is, in fact, devoid of reliability because many voters may not even be sent their absentee ballots until after the date by which they must put their ballots in the mail to ensure their timely return to the appropriate election officials. Nor is the Election Day Receipt Deadline fair because it forces
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those voters to cast their ballots with incomplete information and before candidates have delivered their final pitches to the voters.
132. The value of additional or substitute procedural safeguards to ensure that the votes of Georgia’s mail voters are both meaningfully cast and actually counted is readily apparent. A substitute procedure—which was recently approved by the U.S. Supreme Court in connection with the Wisconsin primary—that requires that absentee ballots be postmarked on or before Election Day and received by the county within, at a minimum, five business days after Election Day to be counted, solves the inequities inherent in Georgia’s Election Day Receipt Deadline. A postmark date not only offers a reliable date to Georgia voters by which they must cast their ballots, but also ensures that voters who receive their ballots late through no fault of their own are still able to engage in the franchise. A postmark date additionally ensures that all of Georgia’s voters can consider any information that may arise and influence voters’ choices in the last week of the election.
133. Because Georgia is not required to finalize its election results until seventeen days after the election, see O.C.G.A. § 21-2-499, requiring Georgia to accept ballots that are postmarked on or before Election Day and that arrive within five business days after Election Day would put no administrative burden on the State. And as the Supreme Court has explained, “administrative convenience”
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cannot justify the deprivation of a constitutional right. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
134. Having induced its voters to vote by mail, Georgia must establish adequate procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots. Because Georgia’s Election Day Receipt Deadline is inadequate in all of those respects, and Georgia is readily capable of instituting a substitute procedure that would protect those voters’ rights with minimal burden to the State, Georgia’s Election Day Receipt Deadline violates Georgia voters’ procedural due process rights.
COUNT IV Equal Protection U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Arbitrary and Disparate Treatment 135. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 136. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. This constitutional provision requires that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
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137. The Equal Protection Clause’s protections extend to voting. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Among other things, this requires “specific rules designed to ensure uniform treatment” in order to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in. Id. at 106-07.
138. Georgia’s Absentee Applicant Notification Process arbitrarily fails to provide a uniform standard for notifying voters that their absentee ballot is missing required identifying information, placing voters across the state at differing risks of disenfranchisement as counties are afforded the opportunity to interpret “promptly” in distinct ways, with some inevitably contacting voters sooner and others later. As a result, similarly-situated voters are placed on unequal terms, and their right to vote is burdened.
139. These burdens are likely to be substantially exacerbated for potentially hundreds of thousands of more voters in the context of the pandemic where counties will inevitably face a larger volume of absentee applications, making it all the more likely that counties with larger volumes of applications to process will contact voters
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later and at differing times than counties with significantly smaller numbers of applications to process.
COUNT V Freedom of Speech and Associational Rights U.S. Const. Amends. I, XIV, 42 U.S.C. § 1983 Infringement on Speech and Associational Rights 140. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 141. The First Amendment protects against the promulgation of laws “prohibiting the free exercise [of] or abridg[ment] [of] freedom of speech.” U.S. Const. Amend. I. The Supreme Court has applied “exacting scrutiny” to review laws governing election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345-46 (1995); see also League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 722 (M.D. Tenn. 2019) (“[L]aws that govern the political process surrounding elections—and, in particular, election-related speech and association— go beyond merely the intersection between voting rights and election administration, veering instead into the area where ‘the First Amendment has its fullest and most urgent application.’” (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989))). Restrictions on such speech are unconstitutional when they “significantly inhibit” election-related speech and association and are “not
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warranted by the state interests . . . alleged to justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999).
142. Voter turnout efforts, including assisting voters with the submission of absentee ballots, are a means by which Plaintiff NGP communicates its belief in the power and importance of participating in democratic elections. Such activity is “the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 421-22 (1988); see League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.” (quotation marks and alterations omitted)). The act of assisting voters to submit ballots by any individuals is inherently expressive, and an individual or organization that conducts such activities engages in speech by encouraging voting. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting argument that regulating an election “process” raises no First Amendment concerns).
143. Furthermore, under the United States Constitution, First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). “An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably
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central to the exercise of the right of association.’” Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15 (1986)).
144. The conversations and interactions between Plaintiff NGP, its organizers, and voters surrounding the submission of ballots are forms of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (describing “overlapping” rights “of individuals to associate for the advancement of political beliefs” and “of qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006) (explaining “participation in voter registration implicates a number of both expressive and associational rights which . . . belong to—and may be invoked by—not just the voters seeking to register, but by third parties who encourage participation in the political process”). Georgia’s Voter Assistance Ban violates that speech by “limit[ing] the number of voices who will convey [NGP’s] message,” and “the size of the audience they can reach.” Meyer, 486 U.S. at 422-23.
145. These burdens are severe, and the Voter Assistance Ban is not narrowly tailored to advance a compelling state interest. The Voter Assistance Ban thus represents an overbroad restriction on political speech and political organizing that infringes NGP’s and other Georgians’ rights under the Constitution.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Georgia’s Absentee Applicant Notification Process, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban violate the First and Fourteenth Amendments to the U.S. Constitution as undue burdens on the right to vote; B. Declaring that the Absentee Postage Tax violates the Fourteenth and Twenty-Fourth Amendments as an unconstitutional poll tax; C. Declaring that the Absentee Applicant Notification Process and Election Day Receipt Deadline violate the Due Process Clause; D. Declaring that the Absentee Applicant Notification Process violates the Equal Protection Clause; E. Declaring that the Voter Assistance Ban violates the First Amendment as an unreasonable restriction on speech; F. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from requiring that voters provide postage on their absentee
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ballots and further require that Georgia provide prepaid postage on all absentee ballots;
G. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked by Election Day and arrive at their respective county’s office within, at a minimum, five business days after Election Day;
H. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Voter Assistance Ban, allowing voters to designate any third party to assist in the collection and submission of their absentee ballots;
I. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from notifying voters of absentee application deficiencies under a non-uniform standard;
J. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
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K. proper.

Granting such other and further relief as the Court deems just and

Dated: May 8, 2020

Respectfully submitted,
Adam M. Sparks Halsey G. Knapp, Jr. Georgia Bar No. 425320 Joyce Gist Lewis Georgia Bar No. 296261 Adam M. Sparks Georgia Bar No. 341578 KREVOLIN AND HORST, LLC One Atlantic Center 1201 W. Peachtree Street, NW, Suite 3250 Atlanta, GA 30309 Telephone: (404) 888-9700 Facsimile: (404) 888-9577 hknapp@khlawfirm.com jlewis@khlawfirm.com sparks@khlawfirm.com
Marc E. Elias* Amanda R. Callais* K’Shaani Smith* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 MElias@perkinscoie.com ACallais@perkinscoie.com KShaaniSmith@perkinscoie.com
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Kevin Hamilton* Stephanie Holstein* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 KHamilton@perkinscoie.com SHolstein@perkinscoie.com Lilian Timmermann* PERKINS COIE LLP 1900 Sixteenth Street, Suite 1400 Denver, CO 80202-5222 Telephone: (303) 291-2354 Facsimile: (303) 291-2454 LTimmermann@perkinscoie.com Counsel for Plaintiffs *Pro Hac Vice Applications Forthcoming
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 Case 1:20-cv-01986-ELR Document 33 Filed 06/03/20 Page 1 of 87

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board; REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE, in their official capacities as Members of the Georgia State Election Board; MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, and AARON JOHNSON, in their official capacities as Members of the FULTON County Board of Registration and Elections; SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, and BAOKY N. VU, in their official capacities as Members of the DEKALB County Board of Registration and Elections; PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, and DARRYL O. WILSON, JR., in their official capacities as Members of the COBB County Board of Elections and Registration; BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, and ALICE O’LENICK, in their official capacities as Members of the GWINNETT County Board of Registrations

Civil Action File No. 1:20-CV-01986-ELR

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and Elections; COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, and RANDOLPH SLAY, in their official capacities as Members of the CHATHAM County Board of Registrars; DARRY HICKS, ADDISON LESTER, and AARON WRIGHT, in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration; CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, and DIANE GIVENS, in their official capacities as Members of the CLAYTON County Board of Elections and Registrations; JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS, in their official capacities as Members of the HENRY County Board of Elections and Registration; MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, and ELEANOR WHITE, in their official capacities as Members of the COLUMBUS-MUSCOGEE County Board of Elections; DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the DOUGLAS County Board of Elections and Registration; PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, and FREDERICK WILLIAMS, in their official capacities as Members of the ALBANYDOUGHERTY County Joint Board of Registration and Elections; ALDREN SADLER, SR., KAREN JAMES, and
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GERALD BARGER, in their official capacities as Members of the ROCKDALE County Board of Elections and Voter Registration; PHIL JOHNSON, KELLY ROBINSON, and DUSTIN THOMPSON, in their official capacities as Members of the NEWTON County Board of Elections and Registration; TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, and BOB FINNEGAN, in their official capacities as Members of the RICHMOND County Board of Elections; HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, and RINDA WILSON, in their official capacities as Members of the MACON-BIBB County Board of Elections; JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, and ANN TILL, in their official capacities as Members of the ATHENS-CLARKE County Board of Elections and Voter Registration; and BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, in their official capacities as Members of the FORSYTH County Board of Registrations and Elections,
Defendants.
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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Plaintiffs, THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE, through the undersigned attorneys, file this FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against Defendants BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board; REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE, in their official capacities as Members of the Georgia State Election Board; MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, and AARON JOHNSON, in their official capacities as Members of the FULTON County Board of Registration and Elections; SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, and BAOKY N. VU, in their official capacities as Members of the DEKALB County Board of Registration and Elections; PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, and DARRYL O. WILSON, JR., in their official capacities as Members of the COBB County Board of Elections and Registration; BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, and ALICE O’LENICK, in their official capacities as Members of the GWINNETT County Board of Registrations and Elections; COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL,
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and RANDOLPH SLAY, in their official capacities as Members of the CHATHAM County Board of Registrars; DARRY HICKS, ADDISON LESTER, and AARON WRIGHT, in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration; CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, and DIANE GIVENS, in their official capacities as Members of the CLAYTON County Board of Elections and Registrations; JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS, in their official capacities as Members of the HENRY County Board of Elections and Registration; MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, and ELEANOR WHITE, in their official capacities as Members of the COLUMBUSMUSCOGEE County Board of Elections; DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the DOUGLAS County Board of Elections and Registration; PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, and FREDERICK WILLIAMS, in their official capacities as Members of the ALBANYDOUGHERTY County Joint Board of Registration and Elections; ALDREN SADLER, SR., KAREN JAMES, and GERALD BARGER, in their official
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capacities as Members of the ROCKDALE County Board of Elections and Voter Registration; PHIL JOHNSON, KELLY ROBINSON, and DUSTIN THOMPSON, in their official capacities as Members of the NEWTON County Board of Elections and Registration; TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, and BOB FINNEGAN, in their official capacities as Members of the RICHMOND County Board of Elections; HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, and RINDA WILSON, in their official capacities as Members of the MACON-BIBB County Board of Elections; JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, and ANN TILL, in their official capacities as Members of the ATHENS-CLARKE County Board of Elections and Voter Registration; and BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, in their official capacities as Members of the FORSYTH County Board of Registrations and Elections. Based upon information and belief, Plaintiffs allege as follows:
NATURE OF THE CASE 1. Plaintiffs bring this case to ensure that all eligible Georgia voters have a fair and safe opportunity to exercise their right to vote in the November 3, 2020 general election (“November Election”), as required by the U.S. Constitution. A
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novel coronavirus pandemic is sweeping through the country, with known infections of over one million and fatalities exceeding the total deaths in the Vietnam War. No states are being spared. In Georgia, as of May 8, 2020, there are 31,605 confirmed cases, and 1,352 people have died; tragically—and notwithstanding Governor Kemp’s recent lifting of the stay-at-home order—there is no end in sight. Georgia continues to see a significant number of new positive cases daily, its death rate is estimated to quadruple by August, five of the ten counties with the highest death rate per capita in America were in southwest Georgia as of May 8, 2020, and the Centers for Disease Control and Prevention (“CDC”) has reported that Georgia’s “burden continues to grow.” And while the country still has not reached its “peak” of infections, public health officials are already warning about a likely “second wave” of the virus in the fall, which because of its interaction with flu season, could be even worse than the first. The pandemic’s impact is not limited to Georgians’ health; it also poses a serious threat to their right to vote.
2. Secretary of State Raffensperger (the “Secretary”) has twice postponed the spring primary election due to the pandemic, and recognizing the strain it is placing on election resources—e.g., causing significant decreases in poll workers, polling locations, and reduced staff capacity—as well as its impact on public health, has taken the extraordinary step of sending absentee ballot applications to 6.9 million
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Georgia voters for that election. Georgia voters have responded in kind, by applying to vote absentee at unprecedented rates. While the Secretary’s actions are laudable first steps toward protecting the right to vote, they fall far short of what is needed to protect that right in the upcoming November Election, as social distancing measures continue and even more Georgians vote absentee.1 Without injunctive relief from this Court, multiple laws and practices governing mail voting that already threaten to burden and disenfranchise thousands of Georgia voters even in ordinary elections are certain to abridge and deny the right to vote of thousands more in the current crisis.
3. In 2018, over 219,700 voters voted absentee by mail in Georgia, marking the highest turnout for absentee mail voting since the inception of no excuse absentee voting in the state. Although the election was a high watermark for absentee turnout rate, it represented a mere 1% increase over absentee turnout in the 2016 general election. Even then, it was evident that Georgia’s absentee voting rules resulted in the disenfranchisement of a substantial number of lawful, registered
1 It is also unclear what, if any, actions the Secretary will be able to take absent court order in the November Election given that his actions thus far have been premised on the Governor’s emergency orders and extension of the State stay-athome orders. The Secretary will not be able to move the November Election date, as it is mandated by federal statute.
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voters: nearly 1,000 absentee ballot applications were rejected, over 3,500 voters— most of whom mailed their ballots before Election Day—were disenfranchised merely because their ballots arrived at county election offices after 7:00 p.m. on Election Day, and almost 4,000 voters were disenfranchised for failure to include immaterial information on their absentee ballot or because election officials mistakenly concluded that their signatures on their ballot envelopes did not “match” the signatures on file.
4. Georgia has spent the last two years mired in litigation over many of these issues, and courts across the state have repeatedly found aspects of Georgia’s absentee regime unconstitutional or in violation of the Civil Rights Act, 52 U.S.C. § 10101(a)(B). See, e.g., Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324, 1341 (N.D. Ga. 2018) (finding plaintiffs likely to succeed on Civil Rights Act claim regarding Georgia’s rejection of absentee ballots for missing birthdates); Martin v. Crittenden, 347 F. Supp. 3d 1302, 1308-09 (N.D. Ga. 2018) (same); Martin v. Kemp, 341 F. Supp. 3d 1326, 1339-40 (N.D. Ga. 2018) (finding plaintiffs likely to succeed on due process challenge to Georgia’s signature match procedures); Democratic Party of Ga. v. Burkes, No. 1:18-cv-00212-WLS (M.D. Ga. Nov. 9, 2018), Dkt. No. 5 (finding plaintiffs likely to succeed on challenge to Dougherty County’s rejection of ballots received after 7:00 p.m. on Election Day).
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5. Nevertheless, five aspects of Georgia law continue to disenfranchise lawful voters and, unless immediately rectified, guarantee that Georgia’s absentee regime will be ill-equipped to handle the anticipated increase in absentee voting in the November Election: (1) the lack of standards governing the process for notifying voters regarding incomplete absentee ballot applications (“Absentee Applicant Notification Process”), O.C.G.A. § 21-2-381(b)(4); (2) the age restriction on those who are allowed to submit one application to vote by mail for an entire election cycle, (“Absentee Application Age Restriction”), id. § 21-2-381(a)(1)(G); (3) the failure to provide prepaid postage on absentee ballots (“Absentee Postage Tax”); (4) the rejection of absentee ballots be received by 7:00 p.m. on Election Day (“Election Day Receipt Deadline”), id. § 21-2-386(a)(1)(F); and (5) Georgia’s prohibition on third-party assistance for absentee ballots (“Voter Assistance Ban”), id. § 21-2385(a).
6. Even under normal circumstances, Georgia’s Absentee Applicant Notification Process, which provides simply for “prompt” notification to the voter in instances where elections officials are unable to determine the identity of the voter who submitted the absentee application, would be constitutionally problematic. See id. § 21-2-381(b)(4). But under the current circumstances, where hundreds of thousands of absentee voters are expected to request absentee ballots for the first
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time, it is a recipe for unconstitutional differential treatment of voters across the state and, even within counties. As elections officials become increasingly inundated with absentee ballot requests, from voters who have not previously voted absentee and, as such, are more likely to make a mistake in filling out their form, thousands of lawful voters are at serious risk of not being notified that their application is faulty and cannot be processed. Voters who are notified too late or not at all, will be effectively denied their right to vote safely from their homes in the November Election, and forced to choose between their health or their right to vote, as voting in-person will be their only remaining option.
7. Similarly, Georgia’s Absentee Application Age Restriction unconstitutionally discriminates against voters who are under the age of 65 by restricting them from submitting a single absentee ballot application to vote by mail for an entire election cycle based solely upon their age. O.C.G.A. § 21-2381(a)(1)(G); Ga. Comp. R. & Regs. 183-1-14-.01(1). While restrictions based “on account of age” are always prohibited by the Twenty-Sixth Amendment, the harms caused by this restriction are particularly stark in the current crisis where absentee voting is anticipated to skyrocket. Indeed, younger voters are required to repeatedly request absentee ballots for every election in which they wish to vote in 2020, increasing the chances that their applications will be rejected, their ballots to arrive
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late as a result of late application processing, or, as a consequence, they will be forced to vote in-person risking their health and safety. In contrast, older voters need only make one request, reducing their exposure to these burdens.
8. Georgia’s Absentee Postage Tax, which mandates that voters pay for postage to mail their absentee ballot, unconstitutionally increases the monetary and transaction costs associated with voting. Not only must an absentee voter pay for postage to vote, they also must acquire the postage. In this digital age when many people do not keep stamps at home this often requires a trip to the post office or other essential business. Voters with access to stamps must accurately determine the correct amount of postage, which varies by ballot size and weight. As a result, they, too, may have to leave their homes to travel to the post office, a trip that can impose significant temporal and monetary costs for those with limited access to transportation, even in ordinary times, but in the current public-health crisis, may also impose significant health risks. Moreover, as the U.S. Postal Service (“USPS” or “postal service”) continues to face massive budget shortfalls, there is no guarantee that local post offices will be open and available to answer questions, and it is all but certain that for many voters, the time used to determine the correct postage amount will delay the voting process and place voters at greater risk of disenfranchisement due to the Election Day Receipt Deadline.
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9. Georgia’s Election Day Receipt Deadline disenfranchises thousands of voters who complete and mail their ballot prior to Election Day, but whose ballots⸺through no fault of their own—do not arrive in the mail by 7:00 p.m. on Election Day. O.C.G.A. § 21-2-386(a)(1)(F). In 2018 alone, nearly 45% of all absentee ballots rejected were rejected simply because they arrived after the Election Day Receipt Deadline. While this arbitrary and burdensome cut-off was constitutionally infirm before the pandemic, under the current circumstances— where the pandemic will lead to a significant increase in mail voting while at the same time severely burdening an already compromised postal service and thinlystretched local election officials—it cannot survive judicial scrutiny. If left in place, the Election Day Receipt Deadline is certain to disenfranchise countless more voters this fall and, as a result, necessitates the precise change that the U.S. Supreme Court accepted in Wisconsin for its recent primary election—a postmark deadline.2 See
2 The term “postmark” as used herein refers to any type of imprint applied by the postal service to indicate the location and date the postal service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark, it should be presumed to have been mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day.
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Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at *2 (2020).
10. Finally, Georgia’s Voter Assistance Ban, codified at O.C.G.A. § 21-2385(a), also significantly raises the risk that lawful, eligible voters will be disenfranchised. The Voter Assistance Ban prohibits a voter from seeking assistance delivering their signed, sealed, voted ballot from anyone outside of a limited set of family members, a household member, a caregiver, or detention center employee. This Ban hamstrings the ability of organizations like The New Georgia Project to assist voters in making the transition to absentee voting—a transition that many of their constituents will make this fall due to the pandemic—and to ensure that voters’ ballots arrive on time to be counted. It also eliminates critical assistance for voters who live alone and do not have family or household members available to deliver ballots.
11. As the Secretary has explained, “times of turbulence and upheaval require decisive actions if the liberties we hold dear are to be preserved.” This sentiment applies equally to federal courts, which have an ongoing duty, especially in times such as these, to ensure that voters can exercise their fundamental right to vote. This Court should abide by that duty by ensuring that Georgia’s absentee voting regime complies with the Constitution and does not erect unconstitutional
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hurdles to unduly burden or deny the right to vote to Georgia’s electorate in the upcoming November Election.
JURISDICTION AND VENUE 12. 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 United States Constitution and under 52 U.S.C. §§ 10301 and 10302. 13. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 and 52 U.S.C. §§ 10301, 10302, 10308(f), and 10310(e). 14. This Court has personal jurisdiction over Defendants, who are sued in their official capacity only. 15. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district. Plaintiff New Georgia Project’s headquarters are located in Atlanta, Georgia, and a significant portion of the registration and voter education activities it conducts take place in Fulton County. Plaintiffs Reagan Jennings and Candace Woodall are registered voters in Fulton County as well, and Plaintiff Beverly Pyne is a registered voter in Gwinnett County. 16. This Court has the authority to enter a declaratory judgment and to
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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.
PARTIES 17. Plaintiff THE NEW GEORGIA PROJECT (“NGP”) is a nonpartisan, community-based organization with its principal place of business in Fulton County. NGP is dedicated to registering Georgians to vote and to helping them become more civically engaged citizens. To achieve its mission, NGP engages in voter education and registration activities in churches, college campuses, and neighborhoods across the state to reach voters and help them to register and, eventually, vote. NGP’s goal is to register all eligible, unregistered citizens of color in Georgia, and as of September 2019, NGP had registered almost half a million Georgians in all 159 of Georgia’s counties, the majority of whom are people of color and/or members of other underrepresented and vulnerable populations, such as Georgians with disabilities and the elderly. NGP considers these half a million individuals to be a core part of its constituency, and NGP actively works to assist the voters whom it helps register ensure that they are then successfully able to exercise the franchise. Georgia’s Absentee Applicant Notification Process, Absentee Application Age Restriction, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban all frustrate NGP’s mission and cause NGP to divert resources from
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other programs and initiatives to assist Georgia voters generally, and NGP’s core constituency specifically, with overcoming the burdens imposed on them by these laws. In the context of COVID-19, these burdens are even more severe, and the resources that NGP will need to divert from its other programs to combat the burdens imposed by these laws are even more substantial.
18. As new registrants and voters, the majority of NGP’s constituents have never voted absentee by mail and will require additional support from NGP to ensure that they obtain and properly return their absentee ballots. As new absentee voters, they are far more likely to have errors on their absentee ballot applications and to require follow-up with elections officials to complete the application process. Without a uniform notification requirement due to the Absentee Applicant Notification Process, NGP must divert additional time and resources to confer with its constituents, not only to make sure that they have mailed applications, but to ensure that they have confirmed its receipt and/or have checked with elections officials to confirm that they were accepted and do not require changes. The Absentee Application Age Restriction discriminates against these voters on its face, requiring them to apply for absentee ballots in every election in which they wish to vote by mail. As a consequence, NGP must divert resources to assist these voters with completing an absentee application in multiple elections simply because of the
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voters’ age. For this election year, this means that the work NGP has already done to help its constituents overcome hurdles associated with absentee voting for the June 9, 2020 primary election (“June Primary”)⸺e.g., assisting them with completing absentee applications, following up with local boards to verify application status, and helping constituents complete new applications if their initial ones have been rejected⸺will have to be repeated again for the August 2020 primary election and then again for the November General, diverting valuable resources that NGP could otherwise use on its registration efforts. Likewise, the Election Day Receipt Deadline also requires NGP to divert additional resources to significant outreach prior to Election Day to ensure that voters are able to mail or drop off their ballots in time and, where they have not been able to send it in time to be received on Election Day—including in cases where the ballot was not sent to or did not arrive at the voter’s address in a timely fashion—to assist voters in getting to the polls to vote. The time and resources diverted to these efforts are resources that NGP would otherwise spend on its core registration and civic engagement activities for the broader community—including, but not limited to, radio and television advertisements to engage the community in voting, parties at the polls to encourage broader community participation in voting, and college student organizing⸺ which are a critical component of achieving NGP’s mission.
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19. The majority of NGP’s constituents are African American, lower income, and also at high risk for COVID-19 complications. As a result, they are less likely to have access to reliable, convenient transportation and it is far more costly and riskier for them to leave their homes to obtain stamps and potentially expose themselves to the virus. NGP must assist them in overcoming the Absentee Postage Tax by providing stamps for absentee ballots. This entails significant diversion of resources by NGP, resources that it would otherwise spend on its core registration and community civic engagement activities. Finally, as a trusted messenger among Georgia’s communities of color and particularly among its core constituency of registrants, NGP could better serve its constituency and effectuate its mission by collecting and delivering completed, signed, and sealed absentee ballots. These services would ensure that such ballots arrive on time to be counted and are particularly needed during the current pandemic as many of NGP’s constituents are already at high risk for contracting COVID-19 and experiencing complications from the disease, and are less likely to leave their homes to mail a ballot as a result. However, the Voter Assistance Ban prevents NGP from assisting voters in this way, burdening not only NGP’s constituents, but also preventing NGP from engaging in a core form of political speech.
20. Plaintiff REAGAN JENNINGS is a United States citizen and registered - 19 -

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Georgia voter in Fairburn, Georgia. Ms. Jennings is in her seventies and does not regularly keep stamps in her home. When she has to use stamps, she must go to the post office to purchase them. Ms. Jennings is unsure how much postage to apply to her absentee ballot and does not have a postage scale at home, therefore, she believes it is important to go to the post office to confirm the amount of postage she needs to send her ballot. Since the COVID-19 crisis began, Ms. Jennings has attempted to purchase stamps to vote in the spring primary election at least two times at great risk and hardship to herself. On one occasion, due to social distancing, a long line wrapped around the post office, but Ms. Jennings, who suffers from knee and back problems and must use a cane, was unable to wait in the line. On another occasion, Ms. Jennings attempted to purchase stamps, but the majority of the people waiting in line inside the post office were not practicing social distancing, and Ms. Jennings, who also suffers from two other conditions that place her at high risk for complications from COVID-19, was unable to wait in the line for fear of exposing herself to the disease. Ms. Jennings fears that she will face similar challenges in the November Election and, as a result, will be unable to safely leave her home to purchase a stamp. She is also concerned that even if she is able to purchase a stamp, her ballot may not arrive in time to be counted. Ms. Jennings lives alone and does not have a housemate or relative nearby who could assist her with mailing or
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delivering her ballot, and she is unable to send mail from her house. Therefore, she must travel to the post office to send her ballot herself. Given her health conditions, Ms. Jennings would benefit from assistance with turning her ballot in to the election office. Ms. Jennings typically votes in person and does not like to vote by mail because she does not trust that her vote will be counted, but given the pandemic and her health, she does not feel that she has any other choice for the November Election. As an African American, Ms. Jennings believes it is important to be able to exercise her right to vote, as many others have died before her to gain that right.
21. Plaintiff CANDACE WOODALL is a United States citizen and registered Georgia voter in Atlanta, Georgia. Ms. Woodall is almost sixty and lives alone in a senior facility, and she is currently unemployed due to the pandemic. Ms. Woodall does not typically keep stamps in her home, and when she has to use stamps, she purchases them at her post office, which is not in walking distance of the facility where she lives. To reach the post office Ms. Woodall must take MARTA, which costs $5.00 round trip, and then she must walk to the post office from the MARTA station. Because she is unemployed and on a restricted budget, she does not have money to buy a book of stamps. As a result, she would have to spend at least $5.00 to use MARTA to buy just one or two stamps. Ms. Woodall is recovering from an operation related to cancer and at high risk for contracting
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COVID-19 and experiencing complications. As a result, she would be significantly exposing herself to potential health risks during the pandemic by leaving her home to travel to the post office and also having to use public transportation to reach it. Ms. Woodall would also have significant difficulty voting in person. Her typical polling location is very far from her home, and there is no public transportation to it; therefore, she would have to walk to her location to vote. Because she is recuperating from surgery, walking long distances is challenging. This also makes traveling to get a stamp challenging. If a third party like NGP were permitted to collect and return her ballot and assist her in ensuring that she had prepared the ballot and envelope correctly, it would greatly reduce the burdens Ms. Woodall faces in casting her absentee vote. Likewise, Ms. Woodall is prohibited from submitting just one absentee application each election cycle due to her age and, instead, must submit an application every election, placing her at greater risk of her application being processed and ballot being delivered later, burdens that would be reduced if she could submit one absentee application each election. Voting is very important to Ms. Woodall. She has voted in every election since she became age-eligible to vote and believes it is her right and duty to vote as a citizen. Moreover, as an African American woman, she believes it is important to be able to exercise her right to vote, as many others have died before her to gain that right.
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22. Plaintiff BEVERLY PYNE is a United States citizen and registered Georgia voter in Gwinnett County. Ms. Pyne is a sixty-year-old nurse, temporarily attending school in Fort Lauderdale, Florida, where she will still be living during the November Election, though she considers Georgia to be her home and votes in Georgia elections. In 2018, Ms. Pyne was disenfranchised by the Election Day Receipt Deadline. Despite requesting her ballot well in advance of the election and subsequently checking with election officials about the status of her ballot, Ms. Pyne’s ballot did not arrive at her home in Florida until the day before Election Day. Ms. Pyne’s Florida home is a 9.5-hour drive from Gwinnett County. Consequently, she could not turn the ballot in in person or otherwise cast her vote in-person. Therefore, Ms. Pyne was forced to place her ballot in the mail the day before Election Day in the hopes that it would somehow arrive on time. Ms. Pyne will also need to vote by absentee this year both because she is still temporarily living in Florida, and also because of concerns about exposing herself and others to COVID-19. As a medical professional working in a nursing home, she simply cannot risk exposing herself and, consequently, her patients to COVID-19 by standing in line at a polling location. Ms. Pyne is frustrated to have to rely on a process that disenfranchised her in 2018, and she worries that her ballot will again not be received by the Election Day Receipt Deadline, even if she requests her ballot well in advance of the election.
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Ms. Pyne, who is under 65 years of age, has already applied for an absentee ballot for the June Primary. Given the problems that she has encountered with the absentee application process before, she would like the opportunity to apply only one time an election cycle and does not think it is fair or appropriate that she must again apply for an absentee ballot for the November Election simply because of her age. Likewise, absentee voting is the only way that Ms. Pyne can cast her ballot. Therefore, as a result of the Absentee Postage Requirement, she is forced to pay to exercise her right to vote. She does not think it is fair or appropriate that she should have to do so, particularly when there is no other way that she can vote. As an African-American woman who has had to fight to protect her rights throughout her life, participating in elections is extremely important to Ms. Pyne, and she does not want to be disenfranchised again.
23. Defendant BRAD RAFFENSPERGER is sued for declaratory and injunctive relief in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board. The Secretary is a state official subject to suit in his official capacity because his office “imbues him with the responsibility to enforce the [election laws].” Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). Specifically, the Secretary is the chief elections officer of the state and is therefore responsible for the administration of the state laws affecting voting,
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including the absentee voting system. See O.C.G.A. § 21-2-50(b). The Secretary is further responsible for “furnish[ing] . . . applications for absentee ballots, envelopes and instruction sheets for absentee ballots, and such other supplies as the Secretary of State shall deem necessary and advisable from time to time, for use in all elections and primaries” to the county election officials. Id. The Secretary also publishes instructions on absentee voting directly to voters, including instructions on the payment of postage. See Ga. Sec’y of State Elections Div., Absentee Voting: A Guide for Registered Voters, at 5 (2020), https://sos.ga.gov/admin/uploads/ Absentee_Voting_Guide_20142.pdf (“If mailing, you must affix postage to the ballot envelope.”). The Secretary serves as the Chair of the State Election Board, which is the body responsible for ensuring uniform election practice in Georgia. And most recently, the Secretary sent absentee ballot applications to all active, registered voters in Georgia.
24. Defendants REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE (hereinafter, “State Election Board” or “State Election Board Members”), are members of the State Election Board in Georgia, responsible for “promulgat[ing] rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials, as well as the legality and purity in all
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primaries and elections.” O.C.G.A. § 21-2-31(1). The State Election Board is responsible for “formulat[ing], adopt[ing], and promulgat[ing] such rules and regulations, consistent with law, as will be conducive to the fair, legal, and orderly conduct of primaries and elections; and, upon the adoption of each rule and regulation, the board shall promptly file certified copies thereof with the Secretary of State and each superintendent.” Id. at § 21-2-31(2). Likewise, the State Election Board “promulgate[s] rules and regulations to define uniform and nondiscriminatory standards concerning what constitutes a vote and what will be counted as a vote for each category of voting system” in Georgia. Id. § 21-2-31(7). The State Election Board Members, personally and through the conduct of the Board’s employees, officers, agents, and servants, acted under color of state law at all times relevant to this action and are sued for declaratory and injunctive relief in their official capacities.
25. Through their uniformity powers, the Secretary and the State Election Board have the authority to direct the officials in each county who administer elections on the local level to ensure that the counties are uniformly following state standards and law. See id. § 21-2-31.
26. Defendants MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, AARON JOHNSON, SAMUEL
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E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, BAOKY N. VU, PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, DARRYL O. WILSON, JR., BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, ALICE O’LENICK, COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, RANDOLPH SLAY, DARRY HICKS, ADDISON LESTER, AARON WRIGHT, CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, DIANE GIVENS, JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, VIVIAN THOMAS, MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, ELEANOR WHITE, DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, MYESHA GOOD, PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, FREDERICK WILLIAMS, ALDREN SADLER, SR., KAREN JAMES, GERALD BARGER, PHIL JOHNSON, KELLY ROBINSON, DUSTIN THOMPSON, TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, BOB FINNEGAN, HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, RINDA WILSON, JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, ANN TILL,
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BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, are sued in their official capacities only, and are appointed officials in Georgia counties who are responsible for administering elections in their respective counties. They are generally appointed by the county governing authority, county executive committee, members of the General Assembly representing all or part of the county, or a combination thereof. See, e.g., H.B. 656, Ga. L. 2019 § 2 (describing process for appointing members of the Fulton County Board of Registration and Elections); Code of Dekalb County, GA. App. B 171 (describing process for appointing members of the Dekalb County Board of Registration and Elections); H.B. 1790, Ga. L. 1998 § 3 (describing the governing authority that must appoint each member of the county Board of Elections and Registrations in Newton County); H.B. 623, Ga. L. 1985 § 2(b) (describing process for appointing members of the Cobb County Board of Elections and Registration). Their responsibilities include, in pertinent part, processing absentee ballot applications, distributing absentee ballots to voters, evaluating the date and time absentee mail-in ballots arrive, and accepting or rejecting absentee ballots according to the laws set out by the State and the rules, regulations, and interpretations set forth by the Secretary and State Election Board. See O.C.G.A. § 21-2-40(a) (designating boards of elections and registration with powers and duties
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of election superintendent and assigning it powers related to absentee balloting procedures); id. § 21-2-381(b)(1) (processing absentee ballot applications); id. § 212-384 (preparing and delivering absentee mail-in ballots); id. § 21-2-386(a)(1)(B) (requiring county board to review day and hour each absentee mail-in ballot is returned); id. § 21-2-386(a)(1)(C) and Ga. Comp. R. and Regs. § 183-1-14-.13 (process for rejecting absentee mail-in ballots).
STATEMENT OF FACTS AND LAW A. Absentee Voting in Georgia 27. Georgia has conferred the right to cast an absentee ballot by mail without excuse in any primary, election, or runoff to any eligible voter since 2005. O.C.G.A. § 21-2-380(b). 28. Historically only about 5% of eligible Georgia voters have utilized absentee voting by mail in each election. The highest rate of absentee voting to date was in the November 2018 general election, when absentee turnout rose to 6%. 29. Thus, in prior elections, the vast majority of Georgia voters have cast their ballots in person, either during early voting or at polling locations on Election Day. 30. As compared to in-person voting, absentee voting requires additional steps that must be taken deliberately and well in advance of Election Day to ensure
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that a voter’s ballot is counted. 31. To vote absentee, a voter must correctly complete the absentee ballot
application and request an absentee ballot by the statutory deadline. 32. Next, the voter must receive the absentee ballot in the mail and
complete the required information, signature fields, and, sometimes, provide a copy of an identification document.
33. Finally, a voter must mail the absentee ballot with sufficient time and postage for it to arrive at the local election office by the Election Day Receipt Deadline.
34. The steps described above, which are required to successfully vote absentee, are not insubstantial, often requiring voters to expend significant time and effort to complete. A misstep at any point—including by the elections officials, not the voter—often results in complete disenfranchisement.
(i) Absentee Applicant Notification Process 35. Georgia voters may submit an absentee application by mail, facsimile, email, or in person beginning 180 days before the election and until the Friday before Election Day. O.C.G.A. §§ 21-2-381(a)(1)(A); 21-2-384(a)(2). 36. An absentee application must include sufficient information to identify the voter—e.g., the voter’s name, date of birth, phone number, email address,
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registration address—as well as the address the voter would like the ballot mailed to, the election in which the voter wishes to participate, and the name and relationship of the person requesting the ballot if other than the voter. Id. at § 21-2381(a)(1)(A), (C).
37. If the election official reviewing the application verifies the voter’s eligibility to vote, the voter’s signature, and is able to identify the voter based on the information, the voter is mailed an absentee ballot within three business days of receiving the application. Id. at § 21-2-381(b)(1)-(2); Ga. Comp. R. and Regs. 1831-14-.11.
38. Absentee ballots may be mailed to voters from 49 days before Election Day up to the Friday before Election Day. See O.C.G.A. § 21-2-384(a)(2).
39. Where the election official reviewing the absentee ballot application cannot determine the identity of the voter, Georgia law provides that the official must “promptly write to request the additional information.” Id. § 21-2-381(b)(4).
40. No other guidelines are provided to govern, for example, when or how a voter must be notified that their identity cannot be determined, and “promptly” is not defined.
41. As a result, counties are at liberty to notify voters that they are unable to process their absentee application at their leisure.
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42. Upon information and belief, voters are not notified of such issues in their absentee ballot applications in a uniform manner between and across Georgia’s 159 counties.
43. When voters are not notified of such issues with their absentee ballot applications until later in the election cycle, they are more likely to be at risk of being disenfranchised. This is because, even if they are able to rectify the issues, the delay in notification consequently delays the issuance of their ballot, giving the voter less time to return their ballots in time to be counted.
44. The risk that there are substantial delays in notifying significant numbers of voters of issues with their absentee ballot applications is acutely heightened during the current pandemic, where county election officials are likely to be inundated with absentee ballot requests, many (indeed, likely the majority) of which will be submitted by voters who have no prior experience voting absentee, and thus are more likely to inadvertently err in filling out the application, necessitating notification and additional communication before their application can be processed.
45. For those voters with disabilities, limited access to transportation, or who are immunocompromised or have other high-risk factors for COVID-19, inperson voting may not be a realistic option, and they will be entirely disenfranchised.
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(ii) Absentee Application Age Restriction

46. Georgia allows voters who are of “advanced age,” i.e., 65 years of age

or older at the time they request an absentee ballot, Ga. Comp. R. & Regs. 183-1-

14-.01(1), to submit one application for a presidential preference primary, a primary,

and any runoffs or general elections resulting therefrom. O.C.G.A. § 21-2-

381(a)(1)(G). These voters are not required to provide any justification for their

request.

See

Georgia

Absentee

Ballot

Application,

https://sos.ga.gov/admin/files/Absentee_Ballot_Application_2018.pdf.

47. In contrast, voters under the age of 65 are prohibited from submitting

such requests and, instead, must submit a separate application prior to each election

to receive an absentee ballot. See O.C.G.A. § 21-2-381(a)(1)(G).

48. This restriction makes it substantially more difficult for younger voters

to successfully vote by mail, and it does so for no reason.

49. In particular, election officials are required to send absentee ballots to

voters who have requested them at least 45 days before the election. O.C.G.A. § 21-

2-384(a)(2). Thus, voters who are age 65 or older who have requested an absentee

ballot for all elections in an election cycle are more likely to receive their ballot early

in the election cycle, providing them more time to complete and mail it in time to be

counted.

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50. Younger voters, however, must submit a new request before each election. As a result, they are far more susceptible to having their ballot mailed to them later in the election cycle and not at the 45-day mark, placing them at heightened risk of returning their ballot after the Election Day Receipt Deadline and, as a consequence, at risk of having to vote in-person if their ballot does not arrive with sufficient time to mail it⸺a prospect that in the current crisis places them at much higher risk of exposing themselves and their loved ones to COVID-19
51. Moreover, given that a younger voter must submit a new application every election, they face more opportunities for their absentee ballot application to be rejected and for the process to be delayed as errors are fixed.
52. While the Absentee Application Age Restriction unconstitutionally discriminates against younger voters based on age and is unjustifiable in any election cycle, it is particularly problematic during the current crisis as more voters are relying on mail voting to safely participate in the November Election as well as all other elections this cycle.
53. The need for these repeated requests only ensures that just as they have been inundated with requests for the June Primary⸺over 1.5 million absentee requests to date⸺election officials will be inundated with requests for the November Election causing the same types of delays in processing absentee applications and
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mailing ballots to voters that Georgia has already seen in the June Primary, and that crippled Wisconsin in its recent spring election.
54. Indeed, due to high demand, absentee ballots were mailed to voters at least eight days later than scheduled.
55. Just two weeks before the election, Fulton County had a backlog of over 25,000 absentee ballot applications that had yet to be processed.
56. Allowing younger voters to permanently request absentee ballots for all elections this election cycle could reduce these burdens and ensure that Georgia voters are treated equally no matter their age.
(iii) Absentee Postage Tax 57. Georgia requires voters who return their ballots by mail to obtain and pay for their own postage. See Ga. Sec’y of State Elections Div., Absentee Voting: A Guide for Registered Voters, at 5 (2020), https://sos.ga.gov/admin/uploads /Absentee_ Voting_Guide_20142.pdf (“If mailing, you must affix postage to the ballot envelope.”). 58. The Absentee Postage Tax imposes both monetary and transaction costs that bear most heavily on individuals who are least likely to be able to overcome them.
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59. In this digital era, many voters do not regularly keep postage stamps in their homes, and therefore must visit a post office or other essential business to obtain the correct postage.
60. Purchasing a book of 20 stamps online will cost voters $11—an unnecessary expense that could be cost-prohibitive for individuals with lower incomes, posing a significant hurdle to returning the ballot and voting.
61. The amount of postage required for a mail ballot is also not readily apparent to voters. Absentee ballots are generally a non-standard size, include two envelopes,3 and have varying weight depending on the number of races on the ballot. O.C.G.A. § 21-2-384(b)-(c). As a result, even where a voter has stamps, mailing their ballot may still necessitate a trip to the post office to weigh the envelope and determine the proper amount of postage to affix.
3 Georgia state law requires the use of two envelopes, an inner envelope containing the elector’s ballot and an outer envelope used for mailing and to print the oath the elector must sign, ostensibly to protect the secrecy of the ballot. O.C.G.A. § 21-2-385(a). The Secretary of State’s office nevertheless has authorized mailing of the ballots from its vendor to the electors, and from absentee electors to county election offices, with only one envelope for the forthcoming June Primary. Atlanta Journal-Constitution, Georgia absentee voting instructions to be corrected (Apr. 28, 2020) https://www.ajc.com/news/state--regional-govt--politics/georgiaabsentee-voting-instructions-corrected/kzkuKmLufxIRcwIW0oEzCN/.
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62. For elderly voters, voters with disabilities, voters who live far from a post office, voters with limited access to transportation, or voters who are immunocompromised or have other high-risk factors for COVID-19, the Absentee Postage Tax may very well deter them from voting, because any trip outside the home poses additional burdens and costs, as well as grave health and safety risks.
63. Extra time spent acquiring postage or inquiring about the amount of postage needed also increases the transaction cost of voting, slowing down the voting process and making the voter more likely to mail the ballot later in the election cycle. In turn, this places these voters at heightened risk of their absentee ballot arriving after the Election Day Receipt Deadline.
64. Even where a voter is able to overcome the hurdles placed on them by Georgia’s Absentee Postage Tax, their risk of disenfranchisement remains high. Each year, Georgia rejects a significant number of ballots that arrive after the Election Day Receipt Deadline.
(iv) Election Day Receipt Deadline 65. Georgia law requires that, for an absentee ballot to be counted, it must be received by 7:00 p.m. on Election Day. See O.C.G.A. § 21-2-386(a)(1)(F). 66. Ballots that arrive after the Election Day Receipt Deadline—regardless of whether they were completed and mailed by the voter prior to or on Election
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Day—are not counted. 67. In 2018, over 3,500 ballots⸺45% of all absentee ballots
rejected⸺were rejected simply because they arrived after the Election Day Receipt Deadline.
68. In 2016, at least 42% of all absentee ballots rejected were rejected for arriving after the Election Day Receipt Deadline.
69. In Dougherty County ballots were rejected for failing to arrive by the Election Day Receipt Deadline in 2018 even when the late arrival was due to delayed mail delivery and failure of the county election officials to send ballots out to voters by the statutory deadline due to an impending hurricane. It was only after a lawsuit and intervention by a federal court that the county counted the late ballots. Democratic Party of Ga., No. 1:18-cv-00212-WLS (M.D. Ga. Nov. 9, 2018), Dkt. No. 5. As the court explained, “because external circumstances prevented certain voters from casting an absentee ballot, [the court’s] intervention [was] necessary to protect those voters’ rights,” as “external circumstances . . . subject[ed] vote-by-mail voters to an unreasonable risk that their ballot will be tossed.” Id. at 2 (quotation marks and citations omitted).
70. There is no reason to believe that voters will not experience similar delays in the November Election. If anything, such delays are likely to become more
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common, as the public health crisis exacerbates both the pressures on the postal service as well as election officials’ abilities to keep up with mailing absentee ballots at the volume and clip requested.
71. For the upcoming primary election, statewide mailing delays have already been reported due to high printing demands for ballots. Demand is likely to be far higher in the November Election, making it increasingly likely that Georgia voters—through no fault of their own—will be at increased risk of receiving their ballots late and, in turn, making it all the more likely that they are disenfranchised by the Election Day Receipt Deadline.
(v) Voter Assistance Ban 72. Georgia’s Voter Assistance Ban prohibits assisting anyone who is not part of a limited category of family members, household members, caregivers, or employees of detention facilities from assisting voters with returning their signed, sealed absentee ballots. O.C.G.A. § 21-2-385(a). 73. As a result, a substantial number of voters, including those among the over 64,000 Georgians who live alone, are cut off from any assistance with delivering their ballot. 74. These restrictions also apply to the 27.2% of adults in Georgia who have a disability. CDC, Disability & Health U.S. State Profile Data for Georgia
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(Adults 18+ years of age), https://www.cdc.gov/ncbddd/disability andhealth/impacts/georgia.html.
75. In 2012, “close to one-tenth of people with disabilities who voted by mail reported having difficulties in doing so, saying they needed assistance filling out or sending the ballot.” Lisa Schur, et al., Accessible Democracy: Reducing Voting Obstacles for People with Disabilities, 14 Election Law J. 60, 63 (2015).
76. Nevertheless, Georgia law restricts them from receiving assistance from anyone of their choice, relegating them only to limited categories of individuals.
77. Moreover, organizations like NGP are unconstitutionally prohibited from exercising their First Amendment rights to assist voters, and particularly, vulnerable populations such as disabled voters, elderly voters, and voters with limited access to the mail or transportation, and voters with inflexible schedules, as well as voters who receive their absentee ballots with insufficient time to return them by mail and have limited options for help delivering their ballots.
78. While these inadequacies in Georgia’s absentee system are constitutionally problematic in their own right, they will only be exacerbated by the current coronavirus crisis, burdening and disenfranchising significantly more voters in the upcoming November Election.
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B. The Exacerbating Effect of the COVID-19 Crisis on Georgia’s Absentee System
79. COVID-19, the severe and sometimes deadly disease caused by the novel coronavirus, has been spreading through Georgia for several months.
80. To date, there are 48,207 confirmed cases of the novel coronavirus in the state, and 2,102 Georgians’ deaths have been officially attributed to COVID-19, a shockingly disproportionate number of individuals impacted⸺approximately 83% of those hospitalized and 48% of people who have died from COVID-19⸺are African Americans. Yet, African Americans comprise only 32.4% of Georgia’s total population.
81. Current models predict that at least 6,100 people could die in Georgia from COVID-19 by mid-August.
82. Despite Governor Kemp’s recent lifting of a statewide stay-at-home order, Georgians across the state are engaging in social distancing to protect their health and to continue to slow the spread of the virus.
83. These social distancing actions have helped protect Georgians’ health, but they have also had a severe economic impact on the state, with estimates showing that up to 608,000 people will lose their jobs by the summer.
84. The federal government is preparing for the COVID-19 crisis to last 18 months and has warned that the pandemic could come in “multiple waves.”
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85. The White House’s coronavirus advisor and the Director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, was asked at a White House press conference whether the United States was “prepared for [coronavirus] to strike again, say, in the fall?” Dr. Fauci responded, “[i]n fact I would anticipate that that would actually happen because of the degree of transmissibility.”4
86. Similarly, the Director of the National Center for Immunization and Respiratory Diseases at the CDC, Dr. Nancy Messionnier, has stated that she expects the virus to continue spreading in the United States until next year.
87. These sentiments are also shared by scientists outside the United States government. The COVID-19 Response Team at the Imperial College of London has estimated that social distancing and other preventative measures will be required until a vaccine is developed and distributed widely, which they predict could take “18 months or more.”5
4 The White House, Remarks by President Trump and Members of the Coronavirus Task Force in a Press Briefing (Mar. 30, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trumpmembers-coronavirus-task-force-press-briefing/.
5 Imperial College COVID-19 Response Team, Report 9: Impact of nonpharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand (Mar. 16, 2020), https://www.imperial.ac.uk/media/imperialcollege/medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPImodelling-16-03-2020.pdf.
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88. Even if the community spread of COVID-19 in Georgia has significantly decreased by this upcoming election season—which is unlikely given the strong possibility of a second wave and Georgia’s early re-opening—CDC guidelines recommend that individuals take meaningful social distancing measures even if there is a “minimal” threat of community transmission of COVID-19 in the area.
89. This guidance is necessitated by the reality that asymptomatic carriers appear to be contributing significantly to community spread, and until there is a vaccine or “herd immunity” (i.e., at least 60% of the population has been infected and recovered), Americans will remain at serious risk of contracting the virus.
90. Recognizing that the COVID-19 crisis will also impact Georgia’s elections, the Secretary has made changes to the upcoming primary election, joining at least fourteen other states that have all postponed their primary election to avoid public health risks posed by the virus, and he is encouraging widespread absentee voting by sending absentee ballot applications to the 6.9 million voters coded as registered and active in the Secretary’s statewide voter registration database.
91. The Secretary is right to make changes. The CDC, anticipating difficulties in conducting elections during the COVID-19 crisis, has now
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recommended that jurisdictions encourage voting by mail and reduce methods of voting that lead to direct contact with other voters or poll workers.
92. Other federal, state, and local officials have increasingly come to the same realization. Congress, for example, recently authorized $400 million to help states transition to voting-by-mail.
93. States that have not postponed their elections and have attempted to conduct in-person voting have seen utter chaos result.
94. In Wisconsin, for example, which held a primary election in April, Milwaukee was forced to reduce its polling locations from 180 to just five locations because of a severe shortage of poll workers. Despite the fact that Wisconsin has noexcuse absentee voting, a substantial number of voters had no choice but to vote in person, including those who did not receive absentee ballots in time to cast and return them. Those voters were forced to decide whether to risk their health to cast their ballot and, ultimately, leading to thousands of Wisconsin citizens stood in long lines for hours to cast their ballots, many wearing masks, gloves, and other protective gear as they congregated together to vote in several hour-long lines at the polls. At least fifty individuals who participated in the election have been diagnosed with COVID19—a number that is anticipated to grow.
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95. The inherent challenges to voting in-person during this pandemic led voters in Wisconsin to request absentee ballots at unprecedented rates, with more than one million voters requesting absentee ballots for the recent primary, four times the number who did so in the 2016 general election. This increased interest in voting by mail, combined with decreases in available elections staff and other social distancing efforts, placed a significant strain on local election boards, several of which were not able to send voters a ballot in time for it to be returned—or even delivered to them—by the normal Election Day deadline. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374, at *38-39 (W.D. Wis. Apr. 2, 2020). This crisis ultimately necessitated federal litigation that reached the U.S. Supreme Court and resulted in the implementation of a postmark rule, whereby ballots postmarked by Election Day could be counted as long as they are received within six days of Election Day. See Republican Nat’l Comm., 2020 WL 1672702, at *2. Over 100,000 ballots in Wisconsin were postmarked by, but arrived after, Election Day.
96. This chaos is not limited to Wisconsin. Florida experienced significant shortages in poll workers and polling locations, with 800 poll workers withdrawing from Palm Beach County alone in its primary election held on March 17, 2020.
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close over 80 polling locations at the last minute as locations serving high risk communities backed out and poll workers cancelled in its March 17, 2020 primary election.
98. And as Georgia prepares for its postponed primary election, it is experiencing a number of these same challenges. Election officials continue to see massive poll worker cancellations, as well as shortages in in-person polling locations as assisted living centers and buildings with other high-risk populations that have historically served as polling locations are increasingly unwilling to do so under the current circumstances.
99. Fulton County, for example, typically has more than 1,600 poll workers; however, fewer than 500 people have committed to working this election. And at least five assisted living centers and two churches have already refused to serve as polling locations in the county on Election Day. Paulding County has lost at least one-third of its 325 poll workers. Lowndes County has lost 40% of its poll workers.
100. Record numbers of voters have also requested absentee ballots, with more than 1.5 million absentee ballot applications being processed thus far. Fortythree counties saw at least a 50% jump in absentee ballot requests for the June Primary, out pacing the number of votes cast in the 2018 primary. In Fulton County,
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Elections Director Rick Barron has reported that emailed absentee ballot applications are coming in “every 10 seconds.” And other county officials have stated that they have “never seen anything like this before,” are being “inundated” with requests, and that “applications . . . are coming in by the bucket loads.”
101. Multiple counties are already reporting being strained under the load of processing the ballots and have had to reach out to county staff and personnel outside of the elections departments for assistance. Indeed, just two weeks before the June Primary Fulton County election officials scrambled to process a backlog of at least 25,000 absentee applications—particularly those submitted by email—causing significant delays in mailing out ballots to voters.
102. These challenges will only grow worse in November as absentee requests increase—both as a result of the continuing public health crisis and the inevitable increase in overall turnout as voters seek to participate in the presidential election.
103. Thus, the changes the Secretary has sought, while laudable, are not enough to ensure that voters under the age of 65 are not unlawfully discriminated against and that all voters’ right to vote is not unconstitutionally burdened or, in many cases, outright denied. More must be done to ensure that Georgians’ right to vote is preserved in the November Election.
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104. Moreover, an increase in absentee voting in November also means that a significant number of voters who typically vote in person will be voting by mail, and many of those will be voting by mail for the first time. These voters differ from current absentee voters in important respects that make them even more likely to be burdened by the absentee application, having to pay for postage, and by being required to deliver their ballots by Election Day instead of postmarked on or before Election Day.
105. Compared to absentee voters, lower socio-economic status voters tend to vote in-person, meaning that as they transition to mail voting, they are far more likely to face challenges in paying for or obtaining postage and, as new absentee voters, are less likely to know how much postage is needed.
106. Moreover, given the devastating economic impacts of the coronavirus, many voters’ sources of income have been substantially negatively impacted, further increasing the number of individuals who likely will find the costs of stamps prohibitive in this increasingly desperate economic situation.
107. Many voters who switch to mail voting will also be doing so precisely because they are immunocompromised, have conditions placing them at high risk for COVID-19, or are generally concerned about their health or the health of their family and friends. This is particularly true in Georgia where African Americans
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have been both disproportionately likely to vote in person in the past and are also at a heightened risk of contracting COVID-19 and experiencing severe complications from the disease. As such, they will be far less likely to venture out to purchase stamps if they do not already have them in their home or to leave home to go to the post office to determine the proper amount.
108. Those voters transitioning to absentee voting from Election Day voting also tend to be “late deciders;” that is, they decide who they will vote for later in the process, typically at the end of the campaign. Because of that, they are more likely to cast an absentee ballot at the end of the voting process with only a few days to go until Election Day.
109. It is unremarkable that these voters would be more likely to cast their absentee ballots later given that they are also likely to be less familiar with the absentee voting process, including the Election Day Receipt Deadline. Nor would it be unreasonable for them to think that their ballots can be mailed later in the election cycle as long as they are postmarked by Election Day, as many other deadlines in Georgia voters’ lives—including voter registration deadlines—are postmark deadlines. See, e.g., O.C.G.A. § 21-2-224 (accepting voter registrations postmarked by the deadline); id. § 48-7-57 (applying a postmark deadline to tax returns); id. §
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48-2-46 (applying a postmark deadline to tax assessment protests); id. § 40-3-42 (applying a postmark deadline to title applications).
110. For the same reasons, these voters are much more likely to need assistance with delivering their ballots so that they can avoid the pitfalls that too often lead to rejection. And, as new absentee voters, they are more likely to make mistakes in completing their absentee ballot applications, mistakes that would necessitate being notified by election officials so that they can still receive a ballot.
111. In particular, it is well-documented that younger voters who have had fewer opportunities to vote in general are far less likely to be familiar with the absentee voting process and, as a result, far more likely to make mistakes both in applying for absentee ballots and returning them. And, as consequence of Georgia law, have far more opportunities to have their applications and ballots rejected as they are forced to apply for an absentee ballot every time they wish to vote.
112. Finally, as mail balloting increases, USPS is facing a budget crisis that will likely lead to delays in mail delivery, raising particular concerns for Georgia, which has experienced slow and unreliable mail service in some counties. As a result, the postal service already asked voters to mail their ballots up to a week before Election Day even before COVID-19. Yet even when that advice is followed, there is simply no guarantee that ballots will arrive on time. Together, these circumstances
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guarantee that as the COVID-19 crisis continues, Georgia voters will find it increasingly difficult to ensure that their ballots arrive before the Election Day Receipt Deadline without assistance.
C. The State Has No Adequate Interest in the Challenged Laws and Policy Generally, and Even Less Interest During the Pandemic
113. Even before the COVID-19 crisis, the State’s interest in the Absentee Applicant Notification Process, Absentee Application Age Restriction, Absentee Postage Tax, Election Day Deadline, and Voter Assistance Ban were thin. In the context of COVID-19, they cannot possibly outweigh the serious burdens that they impose on impacted voters’ fundamental right to vote.
114. The State has no legitimate interest in failing to provide a uniform standard for notification to voters whose absentee application contains insufficient information. Indeed, in the context of other factors such as signature matching, the State provides clear rules for notification. See Ga. Comp. R. and Regs. 183-1-14-.13 (providing notification within three business days or, in some circumstances, the next business day for rejected absentee ballots). There is simply no reason that it cannot do the same here.
115. Similarly, granting voters aged 65 and older additional voting rights than those under age 65 is facially discriminatory. There is simply no reason to bar younger voters from submitting one absentee application per election cycle. Indeed,
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not only are younger voters more likely to have inflexible schedules, including fulltime jobs, class schedules, and childcare responsibilities, but permitting all voters to submit one application per election cycle, regardless of age, would make absentee voting easier for voters, and would also alleviate the burden on election officials who have to process the repeated applications, which are particularly numerous during the ongoing pandemic.
116. The State’s justification for imposing the Absentee Postage Tax is also lacking. Providing postage to allow citizens to complete voting, as well as other important government-related functions, is a common practice that has been adopted by federal, state, and county governments. For instance, at least sixteen states prepay postage on absentee ballots. See Ariz. Rev. Stat. § 16-542; Cal. Elec. Code § 3010; 15 Del. Code § 5504; Haw. Rev. Stat. § 11-102; Ind. Code § 3-11-4-20; Iowa Code Ann. § 53.8; Minn. Stat. Ann. § 203B.07; Mo. Rev. Stat. § 115.285; Mont. Code § 13-13-214; Nev. Rev. Stat. § 293.323; N. M. Stat. Ann. § 1-6-8; Ore. Rev. Stat. § 254.473; R.I. Gen. Laws § 17-20-10; Wash. Rev. Code § 29A.40.091; W. Va. Code Ann. § 3-3-5; Wis. Stat. Ann. § 6.87. Likewise, the United States Census Bureau sends census surveys with postage-prepaid return envelopes. Georgia provides, as the National Voter Registration Act requires, a postage-prepaid return envelope when it asks voters to verify their address for the purpose of voter registration. And
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in its coronavirus stimulus package, Congress allocated $400 million for elections, which can be used to cover the cost of prepaying postage, among other expenses.
117. Studies have shown that sending absentee ballots in postage-prepaid envelopes has a direct and dramatically significant impact on mail voting turnout, as well as turnout generally.
118. When King County, Washington launched prepaid postage pilot programs during the 2017 and 2018 primary elections, the county found that voters returned their absentee ballots via USPS at higher rates when they received return envelopes with postage prepaid. In the 2016 general election, before prepaid postage was implemented, 48% of the tested group of voters returned their absentee ballots via USPS. In 2017, after prepaid postage was implemented, 81% of those same voters did.
119. Voters were not only more likely to return their ballots by mail, they were also more likely to vote. In King County’s 2017 primary, turnout rose 10%. In the 2018 primary, it rose 6%.
120. Following these pilot programs, King County sent all absentee ballots with postage-prepaid return envelopes. Shortly after that, the Governor and Secretary of State of Washington funded prepaid postage for every county in the state. This experience shows, not surprisingly, the enfranchising effects of prepaid
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postage and, conversely, the impediments to voting that result from voters having to pay for postage.
121. The justifications for the Election Day Receipt Deadline also cannot hold water. While Georgia may set a reasonable deadline for receiving ballots to ensure the finality of election results, the Election Day Receipt Deadline is not reasonable: voters do not reasonably expect that they must submit their ballots a week in advance of Election Day. This is particularly true where the vast majority of deadlines voters encounter in their daily lives, including the voter registration deadline, are postmark deadlines. See supra at ⁋ 93.
122. Moreover, history proves that the Deadline disenfranchises voters for reasons entirely outside their control, even under more normal circumstances. During the current pandemic, with its consequent pressures on elections officials and the post office, the numbers of voters disenfranchised is certain to grow exponentially.
123. The Election Day Receipt Deadline is also unnecessary to ensure that all ballots are received and counted within a reasonable time. In fact, ballots from overseas voters are not required to be received until three days after Election Day, Ga. Comp. R. and Regs. § 183-1-14-.10, and state law allows voters until the Friday after Election Day to perfect their provisional ballots and cure absentee ballots that
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have been flagged for rejection, O.C.G.A. §§ 21-2-386(a)(1)(C), 21-2-419(c). Thus, vote tallies are not final on Election Day, and the Secretary does not even certify results until at least seventeen days after Election Day. Id. § 21-2-499.
124. Finally, the State’s justifications for the Voter Assistance Ban are also weak. Indeed, voter fraud in Georgia is exceedingly rare. And where it does occur, Georgia has other protections in place that would better protect directly against such actions, such as prohibiting fraud in connection with casting a vote, O.C.G.A. § 212-573, destroying or delaying delivery of ballots, id. § 21-2-576, as well as “votebuying” and “vote-selling,” id. § 21-2-570. This is particularly true in the current crisis where new absentee voters are far more likely to need assistance and, as a result, will need more options for people to assist them with delivering their ballots.
125. Absent relief from this Court, the individual and cumulative impacts of the Absentee Applicant Notification Process, Absentee Application Age Restriction, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban will impose a severe burden on Georgia voters, deterring them from participating in the November Election and disenfranchising them. If these laws stand, many Georgia voters will find themselves faced with the same unconscionable choice that Wisconsin voters faced on April 7⸺their health and safety versus their right to vote.
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The Constitution not only empowers the Court to ensure that both are protected, and

it requires it to do so.

CLAIMS FOR RELIEF

COUNT I First Amendment and Equal Protection U.S. Const. amends. I, XIV, 42 U.S.C. § 1983
Undue Burden on the Right to Vote

126. Plaintiffs incorporate by reference and reallege all prior paragraphs of

this First Amended Complaint and the paragraphs in the counts below as though set

forth fully herein.

127. Under the First Amendment and the Equal Protection Clause of the

Fourteenth Amendment, a state cannot utilize election practices that unduly burden

the right to vote. A court considering a challenge to a state election law must

carefully balance the character and magnitude of injury to the First and Fourteenth

Amendment rights that a plaintiff seeks to vindicate against the justifications put

forward by the state for the burdens imposed by the rule. See Burdick v. Takushi,

504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

128. This balancing test utilizes a flexible sliding scale, where the

rigorousness of scrutiny depends upon the extent to which the challenged law

burdens voting rights. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312,

1318-19 (11th Cir. 2019).

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129. Courts need not accept a state’s justifications at face value, particularly where those justifications are “speculative,” otherwise it “would convert AndersonBurdick’s means-end fit framework into ordinary rational-basis review wherever the burden a challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448-49 (9th Cir. 2018) (citing Pub. Integrity All. Inc. v. City of Tucson, 836 F.3d 1019, 1024-25 (9th Cir. 2016)); see also Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion) (“However slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” (citation and quotation marks omitted) (emphasis added)); Democratic Exec. Comm. of Fla., 915 F.3d at 1318-19 (“And even when a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden. The more a challenged law burdens the right to vote, the stricter the scrutiny to which we subject that law.”).
130. Georgia’s Absentee Applicant Notification Process, Absentee Application Age Restriction, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban impose a severe burden on all Georgia voters who vote by mail.
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131. Voters who are notified of absentee application deficiencies late in the process, or not at all, due to the Absentee Applicant Notification Process may no longer be able to vote absentee and instead will have to vote in-person or not at all. Given the grave health risks that in-person voting poses during the pandemic, as well as the general difficulties of voters who have disabilities, a lack of transportation, or inflexible work schedules, these voters may have no choice at all and will be completely disenfranchised as a result. There is simply no justification for this.
132. The Absentee Application Age Restriction burdens voters under the age of 65 by denying them the ability to submit one application to vote absentee in a given election year. These younger voters must therefore take additional steps to vote absentee (steps that their older counterparts do not have to take), and are at greater risk of having their applications rejected or processed slowly, ensuring that their ballots are mailed late and, in some instances, too close to Election Day to allow them time to mail their ballot in and have it counted. This burden is only amplified during the ongoing crisis, as more voters attempt to rely on absentee voting to avoid spreading and contracting COVID-19 and in-person voting is no longer the failsafe that it once was. In the current crisis, these voters are not only at heightened risk of losing their right to vote, but they are far more likely to have to face their
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unconscionable choice of risking their health or their right to vote given this disparity in Georgia law.
133. Georgia’s Absentee Postage Tax imposes monetary costs on the only safe alternative to voting for individuals who would otherwise have to subject themselves to the health risks of waiting to vote at the few consolidated and potentially crowded polling locations available. These costs bear most heavily on low-income voters and those who are affected by the devastating economic impact of the ongoing public health emergency. Even for voters able to withstand the economic costs, the postage requirement imposes practical burdens—i.e., traveling to a post office to purchase stamps—that will dissuade voters with disabilities and limited access to transportation and voters concerned about the attendant health risks.
134. Even prior to the pandemic, studies showed that failing to provide postage for voters depressed voter turnout over all. In the current circumstances, the state lacks any adequate justification for its refusal to provide postage, where doing so is highly likely to result in the disenfranchisement of significant numbers of voters. And although the comparatively nominal costs of providing postage could not in any event justify the burdens that follow from refusing to do so, under the current circumstances this is all the more so, where there is a ready source of funding
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provided by the federal government. Thus, Georgia’s refusal to ensure that voters are not burdened or disenfranchised as a result of the Absentee Ballot Postage Tax violates the First and Fourteenth Amendments.
135. The Election Day Receipt Deadline also poses a severe burden on voters’ rights to vote. Voters must first learn about the Election Day Receipt Deadline and accurately guess when their ballot must be mailed for it to be counted, if they have even received their ballot in time to mail it. For those voters who, misjudge how long it will take for their ballot to arrive at the county, or for those whose ballots do not even reach them until a day or two before Election Day (even if the delay is entirely attributable to the overwhelming pressures currently being experienced by elections officials and the postal service and not the fault of the voter), the punishment is swift and severe: total disenfranchisement.
136. But Georgia’s Election Day Receipt Deadline also severely burdens all voters who vote by mail even if those voters’ ballots are successfully counted. By requiring voters to cast their absentee ballots a week before the election for those ballots to be counted, Georgia’s Election Day Receipt Deadline effectively moves election day forward for absentee voters⸺depending on postal delays, potentially by a week or more⸺foreclosing them from considering what could be critical, latebreaking information about the election or the candidates that may arise in the final
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week leading up to Election Day. Georgia’s Election Day Receipt Deadline thus deprives voters of the ability to engage in this robust period of civic engagement, because it effectively requires them to have already cast their vote. Moreover, the number of voters substantially burdened⸺and potentially entirely disenfranchised⸺by the Election Day Receipt Deadline is certain to rise in the November Election in light of the current public-health emergency due to increased mail delays and processing times needed to mail absentee ballots out.
137. Similarly, the Voter Assistance Ban imposes a severe burden on the right to vote because it will effectively disenfranchise voters who require assistance turning in their absentee ballots, but lack access to a family or household member who is able to provide such assistance. The State’s interest in enforcing the Voter Assistance Ban cannot justify disenfranchising voters who require assistance but whose personal circumstances mean that they do not have individuals within their family or household willing and able to provide it. Other Georgia laws already criminalize any exercise of undue influence or voting fraud that might be captured by the Voter Assistance Ban.
138. In short, Georgia’s Absentee Applicant Notification Process, Absentee Application Age Restriction, Election Day Receipt Deadline, Voter Assistance Ban, and Absentee Postage Tax are not supported by a state interest that is sufficient to
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justify the resulting burden on the right to vote, and thus unduly burden the right to vote of all Georgia voters in violation of the First and Fourteenth Amendments.
COUNT II Violation of Twenty-Sixth Amendment U.S. Const. Amend. XXVI, 42 U.S.C. § 1983 Denial or Abridgement of the Right to Vote on Account of Age 139. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs below as though set forth fully herein. 140. The Twenty-Sixth Amendment to the U.S. Constitution provides: “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote, shall not be denied or abridged by . . . any state on account of age.” U.S. Const. amend. XXVI, § 1. 141. Thus, by its plain terms, the Twenty-Sixth Amendment prohibits restrictions on the right to vote “on account of age.” 142. The goal of the amendment is reflected by its textual breadth. Although most Americans understand the Amendment as lowering the voting age for federal elections from 21 to 18 years of age, the Amendment was intended, “not merely to empower voting by our youths but . . . affirmatively to encourage their voting, through the elimination of unnecessary burdens and barriers, so that their vigor and
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idealism could be brought within rather than remain outside lawfully constituted institutions.” Worden v. Mercer Cty. Bd. of Elections, 294 A.2d 233, 243 (N.J. 1972).
143. The Twenty-Sixth Amendment accordingly broadly protects against both blatant and subtle forms of discrimination in equal access to voting based on age. See, e.g., Colo. Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972) (holding based on “[h]istory and reason” that the Twenty-Sixth Amendment’s “prohibition against denying the right to vote to anyone eighteen years or older by reason of age applies to the entire process involving the exercise of the ballot and its concomitants”).
144. As a result, laws that on their face deny or abridge the right to vote on account of age unconstitutional. See Tex. Democratic Party v. Abbott, No. SA-20CA-438-FB, 2020 WL 2541971, at *27 (W.D. Tex. May 19, 2020), stay granted, appeal held in abeyance sub nom., No. 20-50407, 2020 WL 2616080 (5th Cir. May 20, 2020) (holding that law limiting no-excuse absentee voting to voters aged 65 and older is facially discriminatory because “the right of people below the age of 65 to vote is uniquely threatened and burdened solely based on their age”); League of Women Voters of Fla., Inc., v. Detzner, 314 F. Supp. 3d 1205, 1221-23 (N.D. Fla. 2018) (holding law prohibiting early voting on college campuses is “facially discriminatory” in violation of the Twenty-Sixth Amendment as “[i]t is
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unexplainable on grounds other than age because it bears so heavily on younger voters than all other voters”).
145. In direct contravention of the Twenty-Sixth Amendment, the Absentee Application Age Restriction facially discriminates on the basis of age by making the ability to submit a single absentee ballot application per election cycle available only to those aged 65 and older. The law restricts voters under the age of 65 from submitting one absentee ballot application per election cycle, meaning they must apply before each election and, as a result, face a greater risk of disenfranchisement due to application errors and delays in receiving their ballots in time to cast them before the Election Day Receipt Deadline. This discrimination, based solely on the voters age, is a violation of the Twenty-Sixth Amendment.
146. Absent relief, Georgia voters aged 18 to 64 will continue to suffer the effects of unconstitutional discrimination because of age due to the Absentee Application Age Restriction.
COUNT III Poll Tax
U.S. Const. Amends. XIV, XXIV, 42 U.S.C. § 1983 Imposition of Poll-Tax
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147. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs below as though set forth fully herein.
148. The Twenty-Fourth Amendment to the United States Constitution provides that: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” U.S. Const. Amend. XXIV, § 1.
149. But Georgia requires individuals who cast a mail ballot to pay for postage to return their ballots by mail. Requiring voters to spend money to submit a mail ballot imposes an unconstitutional poll tax in violation of the Twenty-Fourth Amendment. Indeed, Georgia voters—and particularly voters who are low-income, disabled, or homebound due to COVID-19⸺are being forced to pay “a price for the privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965).
150. Based on the foregoing, the Secretary has deprived and will continue to deprive Plaintiffs and their constituents of their right to vote in federal elections,
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secured to them by the Twenty-Fourth Amendment to the United States Constitution and protected by 42 U.S.C. § 1983.
COUNT IV Due Process U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Denial of Procedural Due Process 151. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though set forth fully herein. 152. The Due Process Clause of the United States Constitution prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. Amend. XIV, § 1. Which protections are due in a given case requires a careful analysis of the importance of the rights and the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1192 (9th Cir. 2015). Courts must first consider “the nature of the interest that will be affected” by the government’s action, as well as the “degree of potential deprivation that may be created” by existing procedures. Nozzi, 806 F. 3d at 1192-93. Second, “courts must consider the ‘fairness and reliability’ of the existing procedures and the ‘probable value, if any, of additional procedural safeguards.’” Id. at 1193 (quoting Mathews, 424 U.S. at 343). Finally, courts must consider “the public interest, which ‘includes the administrative burden and other
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societal costs that would be associated with’ additional or substitute procedures.” Id. (quoting Mathews, 424 U.S. at 347). Overall, “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334 (quotation and citation omitted).
153. Georgia’s absentee procedures must comport with due process. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due process is not provided when the election procedures [for voting by mail]” do not adequately protect the right to vote or ensure that an “individual is not continually and repeatedly denied so fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018) (“Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
154. “When an election process ‘reache[s] the point of patent and fundamental unfairness,’ there is a due process violation.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1183 (11th Cir. 2008) (quoting Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995)). A state’s election system, “the specifics of which are not explicitly made known to potential voters, that leaves potential voters in the dark as to its effect on a voter’s [ability to vote] and that fails
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to give voters a fair opportunity to [participate], is fundamentally unfair and violative of the Due Process Clause of the Fourteenth Amendment.” Id. at 1185.
155. The nature of the interest at stake in this case—the right to vote and to have that vote count—is the most precious liberty interest of all because it is preservative of all other basic civil and political rights.
156. Due process requires that all voters in Georgia be afforded meaningful notice that their absentee ballot application is deficient so that they can cure it before it is too late for the voter to receive an absentee ballot at all. The current “prompt notification” law set out in O.C.G.A. § 21-2-381(b)(4) fails to provide such process and, as a result, voters’ absentee applications are not fairly considered under the Absentee Applicant Notification Process, even where the voter is wholly eligible to vote and, with proper notice, could have cured his or her absentee ballot application.
157. Georgia’s law governing absentee ballots too often deprives voters of having their ballot counted because (1) many voters do not learn of the Election Day Receipt Deadline before Election Day, and (2) even voters who do learn of the Election Day Receipt Deadline may not have their ballots counted if those ballots do not arrive in the mail at the county supervisor’s office, through no fault of their own, by 7:00 p.m. on Election Day. Georgia’s Election Day Receipt Deadline further deprives all Georgia voters who vote by mail of the ability to cast a meaningful and
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informed vote by requiring voters to cast their ballots a full week before Election Day if they wish to ensure that their ballots will actually be counted.
158. Georgia’s Election Day Receipt Deadline is neither a reliable nor fair way to administer voting by mail. The Election Day Receipt Deadline and the corresponding cutoff for casting ballots is, in fact, devoid of reliability because many voters may not even be sent their absentee ballots until after the date by which they must put their ballots in the mail to ensure their timely return to the appropriate election officials. Nor is the Election Day Receipt Deadline fair because it forces those voters to cast their ballots with incomplete information and before candidates have delivered their final pitches to the voters.
159. The value of additional or substitute procedural safeguards to ensure that the votes of Georgia’s mail voters are both meaningfully cast and actually counted is readily apparent. A substitute procedure—which was recently approved by the U.S. Supreme Court in connection with the Wisconsin primary—that requires that absentee ballots be postmarked on or before Election Day and received by the county within, at a minimum, five business days after Election Day to be counted, solves the inequities inherent in Georgia’s Election Day Receipt Deadline. A postmark date not only offers a reliable date to Georgia voters by which they must cast their ballots, but also ensures that voters who receive their ballots late through
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no fault of their own are still able to engage in the franchise. A postmark date additionally ensures that all of Georgia’s voters can consider any information that may arise and influence voters’ choices in the last week of the election.
160. Because Georgia is not required to finalize its election results until seventeen days after the election, see O.C.G.A. § 21-2-499, requiring Georgia to accept ballots that are postmarked on or before Election Day and that arrive within five business days after Election Day would put no administrative burden on the State. And as the Supreme Court has explained, “administrative convenience” cannot justify the deprivation of a constitutional right. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
161. Having induced its voters to vote by mail, Georgia must establish adequate procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots. Because Georgia’s Election Day Receipt Deadline is inadequate in all of those respects, and Georgia is readily capable of instituting a substitute procedure that would protect those voters’ rights with minimal burden to the State, Georgia’s Election Day Receipt Deadline violates Georgia voters’ procedural due process rights.
COUNT V Equal Protection U.S. Const. Amend. XIV, 42 U.S.C. § 1983 Arbitrary and Disparate Treatment
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162. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though set forth fully herein.
163. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. This constitutional provision requires that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
164. The Equal Protection Clause’s protections extend to voting. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Among other things, this requires “specific rules designed to ensure uniform treatment” in order to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in. Id. at 106-07.
165. Georgia’s Absentee Applicant Notification Process arbitrarily fails to provide a uniform standard for notifying voters that their absentee ballot is missing required identifying information, placing voters across the state at differing risks of disenfranchisement as counties are afforded the opportunity to interpret “promptly”
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in distinct ways, with some inevitably contacting voters sooner and others later. As a result, similarly-situated voters are placed on unequal terms, and their right to vote is burdened.
166. These burdens are likely to be substantially exacerbated for potentially hundreds of thousands of more voters in the context of the pandemic where counties will inevitably face a larger volume of absentee applications, making it all the more likely that counties with larger volumes of applications to process will contact voters later and at differing times than counties with significantly smaller numbers of applications to process.
COUNT VI Freedom of Speech and Associational Rights U.S. Const. Amends. I, XIV, 42 U.S.C. § 1983 Infringement on Speech and Associational Rights 167. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though set forth fully herein. 168. The First Amendment protects against the promulgation of laws “prohibiting the free exercise [of] or abridg[ment] [of] freedom of speech.” U.S. Const. Amend. I. The Supreme Court has applied “exacting scrutiny” to review laws governing election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345-46 (1995); see also League of Women Voters v. Hargett, 400 F. Supp.
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3d 706, 722 (M.D. Tenn. 2019) (“[L]aws that govern the political process surrounding elections—and, in particular, election-related speech and association— go beyond merely the intersection between voting rights and election administration, veering instead into the area where ‘the First Amendment has its fullest and most urgent application.’” (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989))). Restrictions on such speech are unconstitutional when they “significantly inhibit” election-related speech and association and are “not warranted by the state interests . . . alleged to justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999).
169. Voter turnout efforts, including assisting voters with the submission of absentee ballots, are a means by which Plaintiff NGP communicates its belief in the power and importance of participating in democratic elections. Such activity is “the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 421-22 (1988); see League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.” (quotation marks and alterations omitted)). The act of assisting voters to submit ballots by any individuals is inherently expressive, and an individual or organization that conducts such activities engages in speech by
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encouraging voting. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting argument that regulating an election “process” raises no First Amendment concerns).
170. Furthermore, under the United States Constitution, First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). “An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably central to the exercise of the right of association.’” Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15 (1986)).
171. The conversations and interactions between Plaintiff NGP, its organizers, and voters surrounding the submission of ballots are forms of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (describing “overlapping” rights “of individuals to associate for the advancement of political beliefs” and “of qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006) (explaining “participation in voter registration implicates a number of both expressive and associational rights which . . . belong to—and may be invoked by—not just the voters seeking to register, but by third parties who encourage participation in the
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political process”). Georgia’s Voter Assistance Ban violates that speech by “limit[ing] the number of voices who will convey [NGP’s] message,” and “the size of the audience they can reach.” Meyer, 486 U.S. at 422-23.
172. These burdens are severe, and the Voter Assistance Ban is not narrowly tailored to advance a compelling state interest. The Voter Assistance Ban thus represents an overbroad restriction on political speech and political organizing that infringes NGP’s and other Georgians’ rights under the Constitution.
COUNT VII Violation of Section 208 of the Voting Rights Act of 1965,
52 U.S.C. § 10508 Preemption
173. Plaintiffs incorporate by reference and reallege all prior paragraphs of this First Amended Complaint and the paragraphs in the counts below as though set forth fully herein.
174. The Voter Assistance Ban conflicts with and violates Section 208 of the Voting Rights Act (“VRA”), 52 U.S.C. § 10508, and is thus preempted and invalid. Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (“[S]tate laws that conflict with federal law are without effect.”) (citations omitted); Gade v Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (conflict preemption occurs when (a) where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, or (b) “where state law stands as an obstacle
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to the accomplishment and execution of the full purposes and objectives of Congress”) (quotation marks omitted).
175. Section 208 of the VRA provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” 52 U.S.C. § 10508. Within the context of the VRA, the act of voting includes “all action necessary to make a vote effective in any primary, special, or general election.” 52 U.S.C. § 10310(c)(1). This includes casting an absentee ballot. OCA-Greater Hous. v. Texas, 867 F.3d 604, 615 (5th Cir. 2017) (“‘To vote,’ therefore, plainly contemplates more than the mechanical act of filling out the ballot sheet. It includes steps in the voting process before entering the ballot box, ‘registration,’ and it includes steps in the voting process after leaving the ballot box, ‘having such ballot counted properly.’ Indeed, the definition lists ‘casting a ballot’ as only one example in a nonexhaustive list of actions that qualify as voting.”). Section 208’s only limitation on this right is that the person providing assistance may not be connected to the voter’s employer or union.
176. Congress passed the VRA to correct entrenched “racial discrimination in voting” that was “an insidious and pervasive evil.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 309 (1966). In recommending that Section 208 be added to theVRA, the Senate Judiciary Committee recognized that voters with disabilities
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“run the risk that they will be discriminated against at the polls and that their right to vote in State and Federal elections will not be protected.” S. Rep. No. 97-417, at 62 (1982). To limit that risk, those voters “must be permitted to have the assistance of a person of their own choice.” Id.
177. Section 208 preempts the Voter Assistance Ban because state law prohibits conduct expressly allowed by Section 208. The Ban unlawfully limits the rights afforded to voters by Section 208 by prohibiting voters who need help returning their vote by mail ballots from receiving assistance from the person of their choice. Under Georgia law, a voter is not free to choose anyone they like to help return an absentee ballot, but rather is limited to a select set of individuals. See O.C.G.A. § 21-2-385(a). Section 208 cannot be interpreted to permit the Voter Assistance Ban to stand. See OCA-Greater Hous., 867 F.3d 604 (Section 208 preempted a Texas law restricting who may provide interpretation assistance to English-limited voters); United States v. Berks Cty., 277 F. Supp. 2d 570, 580 (E.D. Pa. 2003) (county election law restricting who may provide language assistance to Spanish-speaking voters violated Section 208).
178. In fact, in its report recommending that this protection be added to theVRA, the Senate Judiciary Committee noted that state restrictions that “deny the assistance at some stages of the voting process during which assistance was needed”
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would violate Section 208. S. Rep. No. 97-417, at 63 (1982). By prohibiting a voter who needs assistance turning in their absentee ballot⸺the most critical step in the voting process⸺from being helped by any person of their choosing, the Voter Assistance Ban violates Section 208.
179. The Ban’s impact is not trivial. As noted, 27.2% of adults in Georgia suffer from some disability. And “close to one-tenth of people with disabilities who voted by mail reported having difficulties in doing so, saying they needed assistance filling out or sending the ballot.”
180. These voters are guaranteed by Section 208 the right to seek that assistance from the person of their choosing, without limitation. Defendants’ enforcement of the Voter Assistance Ban prevents Georgia voters with disabilities from receiving that assistance, in violation of Section 208 of the VRA.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Georgia’s Absentee Applicant Notification Process, Absentee Application Age Restriction, Absentee Postage Tax, Election Day Receipt Deadline, and Voter Assistance Ban violate the First and Fourteenth Amendments to the U.S. Constitution as undue burdens on the right to vote;
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B. Declaring that the Absentee Application Age Restriction facially discriminatory in violation of the Twenty-Sixth Amendment;
C. Declaring that the Absentee Postage Tax violates the Fourteenth and Twenty-Fourth Amendments as an unconstitutional poll tax;
D. Declaring that the Absentee Applicant Notification Process and Election Day Receipt Deadline violate the Due Process Clause;
E. Declaring that the Absentee Applicant Notification Process violates the Equal Protection Clause;
F. Declaring that the Voter Assistance Ban violates the First Amendment as an unreasonable restriction on speech;
G. Declaring that the Voter Assistance Ban is preempted by Section 208 of the VRA;
H. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from requiring that voters provide postage on their absentee ballots and further require that Georgia provide prepaid postage on all absentee ballots;
I. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with
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each or any of them, from rejecting ballots that are postmarked by Election Day and arrive at their respective county’s office within, at a minimum, five business days after Election Day;
J. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Voter Assistance Ban, allowing voters to designate any third party to assist in the collection and submission of their absentee ballots;
K. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from notifying voters of absentee application deficiencies under a non-uniform standard;
L. Preliminarily and permanently enjoining Defendants, their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing the Absentee Application Age Restriction, allowing otherwise qualified Georgia voters to submit one application to vote by mail for the entire election cycle;
M. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
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N. proper.

Granting such other and further relief as the Court deems just and

Dated: June 3, 2020

Respectfully submitted,
Adam M. Sparks Halsey G. Knapp, Jr. Georgia Bar No. 425320 Joyce Gist Lewis Georgia Bar No. 296261 Adam M. Sparks Georgia Bar No. 341578 KREVOLIN AND HORST, LLC One Atlantic Center 1201 W. Peachtree Street, NW, Suite 3250 Atlanta, GA 30309 Telephone: (404) 888-9700 Facsimile: (404) 888-9577 hknapp@khlawfirm.com jlewis@khlawfirm.com sparks@khlawfirm.com
Marc E. Elias* Amanda R. Callais* K’Shaani Smith* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 MElias@perkinscoie.com ACallais@perkinscoie.com KShaaniSmith@perkinscoie.com
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Kevin Hamilton* Stephanie Holstein* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 KHamilton@perkinscoie.com SHolstein@perkinscoie.com Lilian Timmermann* PERKINS COIE LLP 1900 Sixteenth Street, Suite 1400 Denver, CO 80202-5222 Telephone: (303) 291-2354 Facsimile: (303) 291-2454 LTimmermann@perkinscoie.com Counsel for Plaintiffs *Admitted Pro Hac Vice
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CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing document has been prepared in accordance

with the font type and margin requirements of L.R. 5.1, using font type of Times

New Roman and a point size of 14.

Dated: June 3, 2020

Adam M. Sparks Counsel for Plaintiffs

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, and CANDACE WOODALL,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board; REBECCA N. SULLIVAN, DAVID J. WORLEY, MATTHEW MASHBURN, and ANH LE, in their official capacities as Members of the Georgia State Election Board; MARY CAROLE COONEY, MARK WINGATE, VERNETTA NURIDDIN, KATHLEEN RUTH, and AARON JOHNSON, in their official capacities as Members of the FULTON County Board of Registration and Elections; SAMUEL E. TILLMAN, ANTHONY LEWIS, SUSAN MOTTER, DELE LOWMAN SMITH, and BAOKY N. VU, in their official capacities as Members of the DEKALB County Board of Registration and Elections; PHIL DANIELL, FRED AIKEN, JESSICA M. BROOKS, NEERA BAHL, and DARRYL O. WILSON, JR., in their official capacities as Members of the COBB County Board of Elections and Registration; BEAUTY BALDWIN, BEN SATTERFIELD, JOHN MANGANO, STEPHEN DAY, and ALICE O’LENICK, in their official capacities as Members of the GWINNETT County Board of Registrations

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and Elections; COLIN MCRAE, WANDA ANDREWS, WILLIAM L. NORSE, JON PANNELL, and RANDOLPH SLAY, in their official capacities as Members of the CHATHAM County Board of Registrars; DARRY HICKS, ADDISON LESTER, and AARON WRIGHT, in their official capacities as Members of the FAYETTE County Board of Elections and Voter Registration; CAROL WESLEY, DOROTHY FOSTER HALL, PATRICIA PULLAR, DARLENE JOHNSON, and DIANE GIVENS, in their official capacities as Members of the CLAYTON County Board of Elections and Registrations; JUNE WOOD, JOHNNY WILSON, DEE CLEMMONS, GARY BARHAM, and VIVIAN THOMAS, in their official capacities as Members of the HENRY County Board of Elections and Registration; MARGARET JENKINS, UHLAND ROBERTS, DIANE SCRIMPSHIRE, LINDA PARKER, and ELEANOR WHITE, in their official capacities as Members of the COLUMBUS-MUSCOGEE County Board of Elections; DAVID C. FEDACK, TALULA MARTIN, ROBERT PROCTOR, DANIEL ZIMMERMANN, and MYESHA GOOD, in their official capacities as Members of the DOUGLAS County Board of Elections and Registration; PAMELA MIDDLETON, DONTRAVIOUS M. SIMMONS, BENNY G. HAND, ANNABELLE T. STUBBS, and FREDERICK WILLIAMS, in their official capacities as Members of the ALBANYDOUGHERTY County Joint Board of Registration and Elections; ALDREN
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SADLER, SR., KAREN JAMES, and GERALD BARGER, in their official capacities as Members of the ROCKDALE County Board of Elections and Voter Registration; PHIL JOHNSON, KELLY ROBINSON, and DUSTIN THOMPSON, in their official capacities as Members of the NEWTON County Board of Elections and Registration; TIM MCFALLS, SHERRY T. BARNES, MARCIA BROWN, TERENCE DICKS, and BOB FINNEGAN, in their official capacities as Members of the RICHMOND County Board of Elections; HENRY FICKLIN, MIKE KAPLAN, HERBERT SPANGLER, CASSANDRA POWELL, and RINDA WILSON, in their official capacities as Members of the MACON-BIBB County Board of Elections; JESSE EVANS, CHARLES KNAPPER, WILLA FAMBROUGH, and ANN TILL, in their official capacities as Members of the ATHENS-CLARKE County Board of Elections and Voter Registration; and BARBARA LUTH, MATTHEW BLENDER, JOEL NATT, CARLA RADZIKINAS, and RANDY INGRAM, in their official capacities as Members of the FORSYTH County Board of Registrations and Elections,
Defendants.
CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that on June 3, 2020, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send a notice of
electronic filing to all counsel of record, and by electronic mail to the following:
Josh Belinfante Josh.Belinfante@robbinsfirm.com
Vincent Russo Vincent.Russo@robbinsfirm.com Attorneys for Defendants Brad Raffensperger, Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, and Anh Le

Dated: June 3, 2020

Adam M. Sparks Counsel for Plaintiffs

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 Case 1:20-cv-01986-ELR Document 57 Filed 06/10/20 Page 1 of 7

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al.,

Civil Action File No. 1:20-CV-01986-ELR

Defendants.

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Federal Rule of Civil Procedure 65(a), Plaintiffs THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE (collectively, “Plaintiffs”), for the reasons set forth herein and in the memorandum of law filed concurrently with this motion, and as supported by the materials submitted therewith, respectfully move for an Order preliminarily enjoining Defendant Georgia Secretary of State BRAD RAFFENSPERGER (the “Secretary”) and all other Defendants from implementing or enforcing Georgia’s: (1) standardless process for notifying voters regarding incomplete absentee ballot applications (“Notification Process”), O.C.G.A. § 21-2-381(b)(4); (2) age restriction
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on those who are allowed to submit one application to vote by mail for an entire election cycle (“Absentee Age Restriction”), id. § 21-2-381(a)(1)(G); (3) requirement that voters pay for postage to submit an absentee ballot (“Absentee Postage Tax”); (4) rejection of absentee ballots received by 7:00 p.m. on Election Day (“Receipt Deadline”), id. § 21-2-386(a)(1)(F); and (5) prohibition on third-party assistance for absentee ballots (“Voter Assistance Ban”), id. § 21-2-385(a).
A preliminary injunction is warranted here because Plaintiffs are likely to succeed on the merits of their claims. All five challenged provisions severely burden the right to vote without justification in violation of the First and Fourteenth Amendments. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). The Absentee Age Restriction also facially discriminates on the basis of age in violation of the Twenty-Sixth Amendment. U.S. Const. amend. XXVI, § 1. Additionally, the Receipt Deadline and the Notification Process fail to provide due process of law. U.S. Const. amend. XIV, § 1. The Notification Process also results in similarly-situated voters being placed on unequal terms in violation of the Equal Protection Clause. Bush v. Gore, 531 U.S. 98, 104– 05 (2000). And the Absentee Postage Tax violates the Fourteenth and TwentyFourth Amendments, which prohibit the government from imposing a poll tax. Harper v. Va. State Bd. of Elect., 383 U.S. 663, 668 (1966); Harman v. Forssenius,

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380 U.S. 528, 539 (1965). Finally, the Voter Assistance Ban represents an overbroad restriction on political speech and political organizing in violation of the First Amendment, U.S. Const. amend. I, and is preempted by Section 208 of the Voting Rights Act as a restriction on voters’ freedom of choice, 52 U.S.C.A. § 10508.
Moreover, Plaintiffs will suffer irreparable injury without an injunction. Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012). And the balance of equities and the public interest favor an injunction. United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012); Democratic Exec. Comm. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019).
Plaintiffs request that any preliminary injunction issued require the Secretary and all other Defendants to take all necessary steps, including promulgating any rules and regulations consistent with this Court’s Order, to: (1) notify all voters of absentee application deficiencies within three days of receiving the application, or by the next business day for applications received during the eleven days before the election; (2) permit voters of all ages to submit a single absentee ballot application per election cycle to vote by mail ballot in any election during that cycle; (3) provide voters with prepaid postage on all absentee ballot return envelopes; (4) accept and count absentee ballots that are postmarked by Election Day and arrive at their

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respective county’s office within, at a minimum, five business days after Election Day;1 and (5) allow voters to designate any third party to assist in the collection and submission of their absentee ballots.

Dated: June 10, 2020

Respectfully submitted,
Adam M. Sparks Halsey G. Knapp, Jr. Georgia Bar No. 425320 Joyce Gist Lewis Georgia Bar No. 296261 Adam M. Sparks Georgia Bar No. 341578 KREVOLIN AND HORST, LLC One Atlantic Center 1201 W. Peachtree Street, NW, Suite 3250 Atlanta, GA 30309 Telephone: (404) 888-9700 Facsimile: (404) 888-9577 hknapp@khlawfirm.com jlewis@khlawfirm.com sparks@khlawfirm.com

1 The term “postmark” as used herein refers to any type of imprint applied by the postal service to indicate the location and date the postal service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark, it should be presumed to have been mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day

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Marc E. Elias* Amanda R. Callais* K’Shaani Smith* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 MElias@perkinscoie.com ACallais@perkinscoie.com KShaaniSmith@perkinscoie.com
Kevin J. Hamilton* Stephanie R. Holstein* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 KHamilton@perkinscoie.com SHolstein@perkinscoie.com
Lilian Timmermann* PERKINS COIE LLP 1900 Sixteenth Street, Suite 1400 Denver, CO 80202-5222 Telephone: (303) 291-2354 Facsimile: (303) 291-2454 LTimmermann@perkinscoie.com
Counsel for Plaintiffs *Admitted Pro Hac Vice

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CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing document has been prepared in accordance

with the font type and margin requirements of L.R. 5.1, using font type of Times

New Roman and a point size of 14.

Dated: June 10, 2020

Adam M. Sparks Counsel for Plaintiffs

148463244.2

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Case 1:20-cv-01986-ELR Document 57 Filed 06/10/20 Page 7 of 7

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al.
Defendants.

Civil Action File No. 1:20-CV-01986-ELR

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 10, 2020, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send a

notice of electronic filing to all counsel of record.

Dated: June 10, 2020

Adam M. Sparks Counsel for Plaintiffs

148463244.2

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Case 1:20-cv-01986-ELR Document 57-1 Filed 06/10/20 Page 1 of 4

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al.,

Civil Action File No. 1:20-CV-01986-ELR

Defendants.

PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION This Court has considered Plaintiffs’ motion for preliminary injunction, supporting authorities, the response from the Defendants, and the evidence and pleadings of record, and finds that that Plaintiffs are (1) likely to succeed the merits of their First, Fourteenth, Twenty-Fourth, and Twenty-Sixth Amendment claims as well as their Section 2018 claim; (2) will suffer irreparable injury unless the injunction is issued; (3) the threatened injury to Plaintiffs outweighs possible harm that the injunction may cause the opposing party; and (4) the injunction is in the public interest. GeorgiaCarry.org v. U.S. Army Corps of Eng’rs, 788 F.3d 1318,

Case 1:20-cv-01986-ELR Document 57-1 Filed 06/10/20 Page 2 of 4
1322 (11th Cir. 2015). Upon considering the motion and supporting authorities, the response from Defendants, and the evidence and pleadings of record, the Court finds that Plaintiffs have clearly established their burden of persuasion as to each of these four prerequisites, and accordingly Plaintiffs’ motion is GRANTED. IT IS ORDERED:
a. Defendants, their officers, employees, and agents, all persons acting in active concert or participation with Defendants, or under Defendants’ supervision, direction, or control are PRELIMINARILY ENJOINED from implementing or enforcing the Notification Process, O.C.G.A. § 212-381(b)(4); Absentee Age Restriction, id. § 21-2-381(a)(1)(G); Absentee Postage Tax; Receipt Deadline, id. § 21-2-386(a)(1)(F); and Voter Assistance Ban, id. § 21-2-385(a);
b. Defendants, their officers, employees, and agents, all persons acting in active concert or participation with Defendants, or under Defendants’ supervision, direction, or control shall notify all voters of absentee application deficiencies within three days of receiving the application, or by the next business day for applications received during the eleven days before the election;
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c. Defendants, their officers, employees, and agents, all persons acting in active concert or participation with Defendants, or under Defendants’ supervision, direction, or control shall permit voters of all ages to submit a single absentee ballot application per election cycle to vote by mail ballot in any election during that cycle;
d. Defendant Secretary of State Brad Raffensperger shall provide voters with prepaid postage on all absentee ballots;
e. Defendants, their officers, employees, and agents, all persons acting in active concert or participation with Defendants, or under Defendants’ supervision, direction, or control shall accept and count otherwise valid absentee ballots from qualified voters that are postmarked by Election Day and arrive at their respective county’s office within, at a minimum, five business days after Election Day;1 and
f. Defendants, their officers, employees, and agents, all persons acting in active concert or participation with Defendants, or under Defendants’
1 The term “postmark” as used herein refers to any type of imprint applied by the postal service to indicate the location and date the postal service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark, it should be presumed to have been mailed on or before Election Day unless the preponderance of the evidence demonstrates it was mailed after Election Day
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supervision, direction, or control shall allow voters to designate any third party to assist in the collection and submission of their absentee ballots. SO ORDERED this _____ day of ____________ 2020.
_________________________ Judge Eleanor Louise Ross United States District Court
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Case 1:20-cv-01986-ELR Document 58 Filed 06/10/20 Page 1 of 47

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al.,
Defendants.

Civil Action File No. 1:20-CV-01986-ELR

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-01986-ELR Document 58 Filed 06/10/20 Page 2 of 47
TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................... - 1 II. BACKGROUND ............................................................................................ - 2 -
A. The COVID-19 pandemic has upended daily life and Georgia elections. .. - 2 B. Georgia’s absentee system will disenfranchise thousands in November....- 5 -
1. Notification Process ................................................................................. - 6 2. Absentee Age Restriction ......................................................................... - 7 3. Absentee Postage Tax .............................................................................. - 7 4. Receipt Deadline ...................................................................................... - 9 5. Voter Assistance Ban ............................................................................. - 12 III. ARGUMENT................................................................................................- 14 A. Plaintiffs are likely to succeed on the merits.............................................- 14 1. Plaintiffs’ Right-to-Vote Claim..............................................................- 14 2. Plaintiffs’ Procedural Due Process Claim..............................................- 22 3. Plaintiffs’ Equal Protection Claim ......................................................... - 25 4. Plaintiffs’ Twenty-Sixth Amendment Claim .........................................- 27 5. Plaintiffs’ Poll Tax Claim....................................................................... - 28 6. Plaintiffs’ First Amendment Claim ........................................................ - 30 7. Plaintiffs’ Section 208 Preemption Claim..............................................- 32 B. Plaintiffs will suffer irreparable harm absent an injunction. ..................... - 33 C. The balance of the equities and the public interest favor an injunction....- 34 IV. CONCLUSION.............................................................................................- 35 -
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Cases

TABLE OF AUTHORITIES

Page(s)

Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183 (D.N.M. 2010).................................................................30
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999)............................................................................................30
Buckley v. Valeo, 424 U.S. 1 (1976)................................................................................................30
Burdick v. Takushi, 504 U.S. 428 (1992)............................................................................................15
Bush v. Gore, 531 U.S. 98 (2000)..............................................................................................26
Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005)...............................................................29
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)............................................................................................15
Curling v. Raffensperger, 403 F. Supp. 3d 1311 (N.D. Ga. 2019).........................................................24, 26
Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312 (11th Cir. 2019) ....................................................................15, 16
Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020) .................20
Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 20-1538 (7th Cir. Apr. 3, 2020), ECF No. 30..............................................20
Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324 (N.D. Ga. 2018)...............................................................33
Democratic Party of Ga. v. Burkes, No. 1:18-CV-00212-WLS (M.D. Ga. Nov. 9, 2018)..........................................10
Doe v. Walker, 746 F. Supp. 2d 667 (D. Md. 2010)....................................................................19
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Cases

TABLE OF AUTHORITIES

Page(s)

Driscoll, et al. v. Stapleton, No. DV 20-408 (Mont. D. Ct. May 22, 2020)..............................................19, 20
Elrod v. Burns, 427 U.S. 347 (1976)............................................................................................33
Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (M.D. Fla. 2016)..............................................................34
Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153 (11th Cir. 2008) (Barkett, J., concurring and dissenting in part)................................................................................................24
Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018)...................................................19, 34, 35
Ga. State Conference NAACP v. Georgia, No. 1:17-CV-1397-TCB, 2017 WL 9435558 (N.D. Ga. May 4, 2017) ...................................................................................................................34
Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88 (1992)..............................................................................................32
GeorgiaCarry.org v. U.S. Army Corps of Eng’rs, 788 F.3d 1318 (11th Cir. 2015) ..........................................................................14
Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) ..........................................................................23
Hadnott v. Amos, 394 U.S. 358 (1969)......................................................................................30, 31
Harman v. Forssenius, 380 U.S. 528 (1965)......................................................................................28, 30
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)............................................................................................29
Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) ..............................................................................23

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Cases

TABLE OF AUTHORITIES

Page(s)

Jones et al. v. DeSantis et al., No. 4:19-cv-00300, slip op. (N.D. Fla. May 24, 2020) ................................28, 29
League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205 (N.D. Fla. 2018) ............................................15, 27, 28, 33
League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D. 2012) ...............................................................31, 34
League of Women Voters of N.C. v. North Carolina (“LWV NC”), 769 F.3d 224 (4th Cir. 2014) ........................................................................21, 33
M.L.B. v. S.L.B., 519 U.S. 102 (1996)............................................................................................29
Martin v. Crittenden, 347 F. Supp. 3d 1302 (N.D. Ga. 2018)...............................................................35
Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018) .........................................................17, 23, 25
Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................................22
Meyer v. Grant, 486 U.S. 414 (1988)......................................................................................30, 31
Middleton v. Andino, No. 3:20-cv-01790, ECF No. 31 (D.S.C. May 25, 2020)...................................20
Minnesota v. Thao, No. 62-CR-18-827 (Minn. Dist. Ct. Oct. 23, 2018) .....................................32, 33
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)............................................................................................29
Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) ........................................................................19, 20

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Cases

TABLE OF AUTHORITIES

Page(s)

Norman v. Reed, 502 U.S. 279 (1992)......................................................................................15, 22
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ..............................................................................33
OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) ..............................................................................32
One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016) ........................................................19, 21
Ownby v. Dies, 337 F. Supp. 38 (E.D. Tex. 1971).......................................................................27
Priorities USA et al. v. Nessel, No. 4:19-cv-1334, ECF No. 59 (E.D. Mich. May 22, 2020)..............................32
Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320 (N.D. Ga. 2016)...............................................................34
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020)........................................................................................20
Reynolds v. Sims, 377 U.S. 533 (1964)............................................................................................23
Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018)..............................................................23, 25
Stamos v. Genesee Cty. Bd. of Canvassers, 46 Mich. App. 636 (1973) ..................................................................................19
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986)............................................................................................31
Taylor v. Louisiana, 419 U.S. 522 (1975)......................................................................................18, 34
Touchston v. McDermott, 234 F.3d 1133 (11th Cir. 2000) ..........................................................................33
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Cases

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Page(s)

United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979) ..................................................................27
Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975).............................................................................28
Williams v. Rhodes, 393 U.S. 23 (1968)..............................................................................................31
Worden v. Mercer Cty. Bd. of Elections, 294 A.2d 233 (N.J. 1972) ...................................................................................27
STATUTES OTHER AUTHORITIES 52 U.S.C.A. § 10508 ................................................................................................32 Ariz. Rev. Stat. § 16-542 .........................................................................................18 Cal. Elec. Code § 3010 ............................................................................................18 Del. Code § 5504 .....................................................................................................18 Ga. Comp. R. & Regs. 183-1-14-.01(1).....................................................................7 Haw. Rev. Stat. § 11-102 .........................................................................................18 Ind. Code § 3-11-4-20..............................................................................................18 Iowa Code Ann. § 53.8 ............................................................................................18 Minn. Stat. Ann. § 203B.07 .....................................................................................18 Mo. Rev. Stat. § 115.285 .........................................................................................18 Mont. Code § 13-13-214..........................................................................................18 N. M. Stat. Ann. § 1-6-8 ..........................................................................................18 Nev. Rev. Stat. § 293.323 ........................................................................................18 O.C.G.A. § 40-3-42..................................................................................................12
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Cases

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Page(s)

O.C.G.A. § 48-2-46..................................................................................................12 O.C.G.A. § 48-7-57..................................................................................................12 O.C.G.A. § 21-2-381(b)(4) ........................................................................................6 O.C.G.A. § 21-2-224................................................................................................12 O.C.G.A. § 21-2-234(c) ...........................................................................................18 O.C.G.A. § 21-2-380(b).............................................................................................5 O.C.G.A. § 21-2-381(a)(1)(A), (C)............................................................................6 O.C.G.A. § 21-2-381(a)(1)(G).............................................................................7, 17 O.C.G.A. § 21-2-384(a)(2) ......................................................................................10 O.C.G.A. § 21-2-384(b)-(c) .......................................................................................8 O.C.G.A. § 21-2-385................................................................................................32 O.C.G.A. § 21-2-385(a) ...........................................................................................13 O.C.G.A. § 21-2-386(a)(1)(F)....................................................................................9 O.C.G.A. § 21-2-499................................................................................................19 O.C.G.A. § 21-2-573................................................................................................21 O.C.G.A. § 2-21-570................................................................................................21 O.C.G.A. § 2-2-576..................................................................................................21 O.C.G.A. §§ 21-2-386(a)(1)(C), 21-2-419(c)..........................................................19 Ore. Rev. Stat. § 254.473 .........................................................................................18 R.I. Gen. Laws § 17-20-10.......................................................................................18 S. Rep. No. 97-417 (1982) .......................................................................................33 U.S. Const. amend. XIV, § 1 ...................................................................................22
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Page(s)

U.S. Const. Amend. XXIV, § 1 ...............................................................................28 W. Va. Code Ann. § 3-3-5 .......................................................................................18 Wash. Rev. Code § 29A.40.091...............................................................................18 Wis. Stat. Ann. § 6.87 ..............................................................................................18

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I. INTRODUCTION Yesterday, the nation watched Georgia’s election system completely meltdown. Voters clad in masks waited hour long lines that snaked around city blocks to cast their ballot in the June Primary Election. Many of these voters—in the interest of safety during the pandemic and to avoid the chaos that ensued due to machine malfunctions, shortages of experienced poll workers, and overly packed polling locations—had applied for absentee ballots. But Georgia failed them. The deluge of absentee requests led to delayed ballot processing and mailing, and voters either did not receive their absentee ballots, or received them too late to timely return them. With this motion, Plaintiffs seek to avoid this result in November by addressing several provisions of law that, separately and together, unless enjoined, will disenfranchise thousands of lawful, eligible Georgia voters. First, Georgia lacks uniform standards for notifying voters when their absentee ballot applications are incomplete (“Notification Process”). Second, it discriminates against voters under 65, requiring them to submit an absentee request for every election in an election cycle instead of one application per cycle like their older counterparts (“Absentee Age Restriction”). Third, Georgia requires voters to bear the burden and cost of postage to vote by mail (“Postage Tax”). Fourth, Georgia rejects mail ballots that
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arrive after 7 p.m. on Election Day, even if the ballot was mailed before Election Day (“Receipt Deadline”). Fifth, with limited exceptions, Georgia prohibits thirdparties from assisting voters with absentee ballots—a vital need given the influx of voters unfamiliar with absentee voting who will be voting for the first time in the pandemic (“Voter Assistance Ban”).
Even before the pandemic—and the resulting uptick in absentee voting— Georgia rejected thousands of absentee ballots cast by eligible, registered voters each election, including more than 11,449 in 2018 alone for arriving late, omitting immaterial information, or purported signature problems. This widespread disenfranchisement is all but certain to dramatically increase in the November 3 election as voters increasingly turn to absentee voting to ensure that they can cast their ballots safely in the pandemic and to avoid the very chaos that they witnessed yesterday. Ordinarily, the impacts of these provisions on the right to vote are deeply troubling. But in the ongoing pandemic, they are constitutionally indefensible.
II. BACKGROUND A. The COVID-19 pandemic has upended daily life and Georgia elections.
A novel coronavirus has killed nearly 115,000 Americans and continues to spread. Ex. 73. There are now more than 50,000 known infections in Georgia, and
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over 2,000 fatalities. Ex. 2 ¶20 (Ball Rpt.); Ex. 19.1 These numbers underrepresent the virus’s spread. See Exs. 19; 22; 23. Projections show the crisis persisting into the fall; social distancing will likely be required until a vaccine is developed and distributed in 2021. See Ex. 2 ¶¶27-28; Exs. 24; 25; 26; 27. This fall is likely to see another wave of infections “even more difficult than the one we just went through.” Ex. 24; see also Ex. 2 ¶¶27-29. Even as Georgia has reopened, many have stayed home to stay safe. See Exs. 28; 29; see also Exs. 3 ¶¶6-7; 4 ¶3; 5 ¶4; 9 ¶3; 11 ¶5; 12 ¶9; 17 ¶7; 67 ¶3; 69 ¶3; 71 ¶9; see also Exs. 2 ¶20; 30.
The pandemic is also upending elections. See Ex. 2 ¶¶24-26. The Secretary twice postponed Georgia’s primary as a result, Exs. 31; 32, and sent absentee ballot applications to 6.9 million active voters, encouraging them to vote by mail to protect their health, Ex. 33; see also Ex. 34. Georgia voters responded by requesting absentee ballots at record rates—over 1.9 million as of June 10. Ex. 1 at 3, 9 (Mayer Rpt.). Multiple counties were strained under the load of ballot processing, pulling in staff from other departments for assistance.2 Exs. 39; 40. And the high demands led
1 The exhibits are attached to the Declaration of Kevin J. Hamilton in support of this motion that is filed herewith. Notably, despite comprising only 32.4% of Georgia’s population, approximately 80% of those hospitalized and 35% of those who have died from COVID-19 are African Americans. Ex. 2 ¶21; see also Exs. 19; 20; 21. 2 As of May 26, just two weeks before the election, Fulton had over 25,000 ballots still waiting to be processed, leaving little to no time for those ballots to make it to the voter and back again using the mail. Ex. 41; see Exs. 42; 43; 44; 58.
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to mailing delays, with nearly 84,000 ballots still in the mail just one week before the election. Exs. 38; 45.
At the same time, election officials encountered significant challenges with in-person voting: polling locations were unavailable, many poll workers—most over 65 and at high risk for COVID-19⸺cancelled, and election officials contracted COVID-19 resulting in more location closures and, tragically, at least one death.3 Exs. 2 ¶24; 33; 34; 35; 36. Nevertheless, many would-be mail voters who did not receive their ballots in time, or who feared they could not return it in time to be counted, were forced to vote at those understaffed and over-run polling places. Exs. 3 ¶¶12-16; 11 ¶¶13-14; 13 ¶¶4-6; 14 ¶¶4-6; 16 ¶¶12-21; 17 ¶¶9-10; 18 ¶¶6-9; 67 ¶5; 68 ¶9; 69 ¶5-6; 71 ¶¶3-9; 91 ¶¶6-9; see also Ex. 74. The result was tragic: substantial numbers of voters had to wait in hours-long lines, clad in masks and gloves while risking their health to vote in person. Id.; see also Ex. 1 at 8-10; see also Exs. 45; 46; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84; 85; 86; 87; 88. In some instances, even after hours of waiting, they were sent to another area to continue waiting to cancel
3 In Fulton, at least 30 locations have refused to serve as polling locations and fewer than 500 of the county’s typical 1,600 poll workers committed to work the election. Exs. 35; 37; see also id. (Paulding lost one-third of 325 workers; Lowndes and Cobb lost 40%). And there will be nearly 80 fewer places to vote in the greater metroAtlanta, which is home to the bulk of the state’s voting population. Ex. 66. More than 10% of polling places have been relocated statewide. Id.
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their absentee ballot or cast a provisional ballot or turned away altogether because inexperienced poll workers thought they could not vote if they had an absentee request on file. Exs. 3 ¶15; 79; see also Ex. 1 at 8-10.
The primary election was not just a disaster, it was a dire warning of things to come. The challenges Georgia failed to overcome will be far worse in November as absentee ballot requests increase—both due to the pandemic, Ex. 2 ¶¶26-29, and the increase in turnout in a presidential general election, Ex. 1 at 3-4, 10-11, 32-33. Absentee ballot turnout in November could be twice that of the June Primary— reaching up to 4 million voters. Id. at 10-11. Many of these voters will be first-time or new mail voters, less familiar with absentee voting and more likely to make mistakes. Id. at 5-6, 9, 11, 23, 25-28. B. Georgia’s absentee system will disenfranchise thousands in November.
Georgia voters have the right to vote by mail. O.C.G.A. § 21-2-380(b). Normally, mail ballots are essential for voters whose temporary location, disabilities, work schedules, family care responsibilities, or lack of access to transportation or polling places make in-person voting difficult or impossible. See Ex. 1 at 6; see also Exs. 5 ¶7; 6 ¶3; 7 ¶¶2-3; 10 ¶3; 15 ¶3; 70 ¶4; 90 ¶2. During the pandemic, mail voting is essential to protect voters’ health. See Ex. 2 ¶26; see also Exs. 3 ¶¶ 6-7; 4
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¶3; 8 ¶9; 9 ¶3; 11 ¶¶3-5; 13 ¶3; 14 ¶3; 16 ¶¶20-22; 17 ¶7; 18 ¶3; 67 ¶3; 68 ¶4; 69 ¶¶9-10; 89 ¶13; 91 ¶¶4-5. But the challenged provisions impose significant burdens.
1. Notification Process To vote absentee, a voter must submit an application with sufficient identifying information—i.e., name, date of birth, phone number, email address, registration address. O.C.G.A. § 21-2-381(a)(1)(A), (C). If the official reviewing the application is unable to identify the voter, they must “promptly write [the voter] to request additional information.” Id. § 21-2-381(b)(4). “Promptly” is not defined. Even in ordinary times, the Notification Process risks disenfranchising voters. Voters notified of application issues late in the cycle may not be able to rectify them in time to cast an absentee ballot. See Exs. 3 ¶¶8-10; 7 ¶6; 89 ¶8. Out-of-state and disabled voters, or those without transportation access, cannot utilize in-person voting, and will be disenfranchised. Ex. 1 at 6; see also Exs. 5 ¶7; 6 ¶3; 7 ¶¶2-3; 10 ¶3; 15 ¶3; 70 ¶4; 89 ¶9; 90 ¶7; 91 ¶9. This risk is heightened during the pandemic as substantially more voters request absentee ballots. Ex. 1 at 3, 7-11, 33-34; see also Exs. 38; 39; 40; 41; 45; 72 (absentee processing delays due to “historically high volume of [] requests”). Many are new voters, or new absentee voters, who are less familiar with the application and, thus, more likely to make mistakes requiring “prompt” attention. See Ex. 1 at
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5-7, 26-29; see also Ex. 3 ¶¶6-8; 89 ¶¶4-5. Given that there is no uniform standard, voters in different counties (and even within counties) will be notified of errors at different times, with voters in some counties being notified later than others, creating a disparate risk of disenfranchisement across Georgia’s 159 counties. See Ex. 1 at 14-15.
2. Absentee Age Restriction Voters of “advanced age,” i.e., 65 or older at the time of the request, Ga. Comp. R. & Regs. 183-1-14-.01(1), may submit one application for a presidential preference primary, primary, and any resulting runoffs (commonplace in Georgia) or general elections, O.C.G.A. § 21-2-381(a)(1)(G). No justification is required. See Ex. 47. Younger voters, however, cannot make a single request and must submit a separate application for each election, see O.C.G.A. § 21-2-381(a)(1)(G), increasing the likelihood of application errors and the risk of receiving their ballot late. Ex. 1 at 15-16. As the pandemic ensues and requests rise, delays will grow, increasing the gap between younger and older voters as officials come under more strain. Id. 3. Absentee Postage Tax Georgia requires voters to pay for postage to return their mail ballot. Ex. 48 at 5. The Postage Tax imposes monetary and transaction costs on voting. The cost to vote a mail ballot starts at $0.55 for a USPS Forever Stamp but can increase if the
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ballot is several pages long, requiring more postage. See, e.g., Ex. 49 ($1.50 in
postage). In the 2017 Postal Omnibus Survey, a quarter of respondents considered the then $0.49 Forever Stamp to be “expensive.”4 Ex. 50; see also Ex. 1 at 12-13. As
unemployment skyrockets in the pandemic—to date, nearly 1.9 million Georgians
are unemployed, see Ex. 53⸺the Postage Tax creates obstacles for many more voters now in dire financial straits.5 See Ex. 5 ¶2; see also Ex. 1 at 12-13.
Even where a voter has stamps, absentee ballots are generally a non-standard
size, include two envelopes, and have varying weight. O.C.G.A. § 21-2-384(b)-(c).
Thus, the correct postage is far from apparent. Exs. 4 ¶7; 6 ¶11; 7 ¶8; 12 ¶5; 15 ¶7
(election official: put “however much [postage] you think” on ballot envelope); 70
¶11; 71 ¶11; see also Ex. 1 at 12. This ambiguity drives many voters to make one or
more costly—and now dangerous—trips to the post office. Exs. 4 ¶¶4-7; 5 ¶¶5-6; 6
4 Voters do not always have stamps. Exs. 3 ¶17; 4 ¶4; 5 ¶¶5-6; 9 ¶7; 10 ¶¶4-7; 12 ¶4; 15 ¶6; 16 ¶24; 67 ¶9; 89 ¶7. Unless a voter can order a sheet of stamps online for $11.00, pay for shipping, and wait 7-10 days for delivery, or has access to a stamps.com account and printer, see Exs. 1 at 12-14; 51; see also Exs. 15 ¶6 (paid $12.30 to vote in Primary); 69 ¶12 (purchased stamps online but never received them), obtaining postage requires an in-person purchase, see Ex. 1 at 1-14. 5 The crisis also exacerbates the ancillary burdens of obtaining postage: voters must break social-distancing protocol and have in-person interactions that risk spreading or contracting COVID-19. See Ex. 1 at 12-14; Ex. 2 ¶¶17; Exs. 24; 25. Given that many requesting mail ballots will do so precisely because of health concerns, purchasing stamps if they do not already have them will impose significant burdens. See Exs. 3 ¶17; 4 ¶¶4-7; 5 ¶¶5-6; 15 ¶6; 17 ¶13; 67 ¶9; 69 ¶12. Thus, such voters will be delayed in, or unable to, return their ballot by mail. Exs. 10 ¶¶ 4-7; 16 ¶24.
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¶11; 12 ¶5; 16 ¶24; 69 ¶12; 70 ¶11; see also Ex. 1 at 13-14. For voters who are elderly, disabled, live far from a post office, or have limited transportation, the Postage Tax imposes significant transaction costs on mail voting. See Ex. 1 at 13-14 (“pre-paid ballot postage . . . concretely and noticeably reduces direct and time costs of absentee voting.”); see also Exs. 4 ¶¶4-7; 5 ¶¶5-6; 10 ¶¶4-7; 15 ¶6; 89 ¶7; 91 ¶5.
4. Receipt Deadline Georgia rejects mail ballots received after 7:00 p.m. on Election Day. See O.C.G.A. § 21-2-386(a)(1)(F). This is true regardless of the date the voter mails the ballot, even if it is postmarked by Election Day, and even if late arrival is entirely beyond the voter’s control. In the 2018 general election, over 3,500 ballots were rejected because of the Receipt Deadline, a number which is certainly an undercount. Ex. 1 at 4, 20-23, 3334. In 2016, at least 47% of all rejected absentee ballots were rejected for arriving after the Deadline. Ex. 1 at 4. The Deadline is particularly likely to disenfranchise young voters: voters under 26 have rejection rates of between 4% and over 8% (for 18-year-olds). Ex. 1 at 3-7, 26-29. Voters temporarily living out-of-state who have no other way to vote in Georgia are also acutely impacted, with a rejection rate of 7.2%. Id. Nearly half of these voters (43.2%) are between 18 and 24. Ex. 1 at 26-29. The rate of disenfranchisement has increased over time. Ex. 1 at 22.
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The Receipt Deadline means that ballots are rejected even when voters have completed and mailed them by Election Day. Exs. 6 ¶¶4-7; 7 ¶5; 8 ¶¶4-7. Because election officials fail to “immediately” send absentee ballots to voters, see O.C.G.A. § 21-2-384(a)(2), or because of mail delays, many voters who timely request absentee ballots receive them when it is too late to return them by mail.6 Exs. 6 ¶¶47 (temporarily out of state, received ballot day before election); 70 ¶¶6-8 (same); 90 ¶¶4-6 (never received ballot out of state); see also Exs. 74; 78; 79; 81; 82; 84; 85; 87. USPS recommends that voters mail their ballots a week before Election Day. See Ex. 42 at 19; Ex. 1 at 18. But neither Georgia nor its counties advise voters of this. And, even if they did, even a week appears likely to be insufficient under the current circumstances, where USPS is under significant pressures as a result of the virus and substantial increases in absentee voting. See infra 12; Ex. 8 ¶¶4-7 (ballot mailed weeks before Election Day discarded due to Receipt Deadline). In some cases, the Receipt Deadline disenfranchises even voters who have dropped their ballot off at the election office on Election Day. Exs. 10 ¶5 (ballot dropped off on Election Day discarded due to Receipt Deadline); 12 ¶¶6-8. Worse yet, countless voters cannot
6 For example, after the 2018 General Election, it took a lawsuit to force Dougherty County to count ballots that arrived after the Receipt Deadline because officials had failed to timely mail them due to a hurricane and even though the ballots were further delayed due to the shutdown of a USPS distribution facility. Exs. 56; 57, Democratic Party of Ga. v. Burkes, No. 1:18-CV-00212-WLS (M.D. Ga. Nov. 9, 2018).
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meet the Deadline because they are not sent a ballot with adequate time to mail and return it. Exs. 3 ¶¶9-10, 18-20; 11 ¶¶13-14; 13 ¶6; 14 ¶¶14; 16 ¶¶4-12; 17 ¶¶10-11; 18 ¶¶6-8; 67 ¶¶4-7; 68 ¶9; 69 ¶¶4-6; 71 ¶5; 89 ¶8; 90 ¶5; 91 ¶¶6-10 see also Exs. 74; 78; 79; 81; 82; 84; 85; 87. These are not isolated incidents and will increase in November given the historic volume of absentee applications, and the increasingly late mailing of ballots.7 Exs. 34; 38; 39; 40; 43; 44; 45; 74; see also Ex. 1 at 2, 4, 710, 24, 33-34.
This year’s anticipated surge of mail ballots will not only put an unprecedented strain on election officials, but it also threatens to overwhelm USPS, which is suffering from severe budgetary shortfalls, staffing shortages, and reduced capacity. See Exs. 43; 44; 58. The consequences of which are already playing out in Georgia and nationwide in the form of delayed mail. Exs. 6 ¶10; 7 ¶9; 10 ¶8; 12 ¶¶ 11-12; see also, e.g., Ex. 59 (“numerous reports of absentee ballots not being delivered” in time); Ex. 60 (Ohio mail delays 7 to 9 days long).
7 A mere two weeks out, Georgia’s most populous county had a 25,000-application backlog—which, even if promptly cleared, left at most, seven days for ballots to be mailed to voters and returned. Ex. 41. Six days before Election Day, roughly 84,000 ballots were still on their way to voters. Ex. 45. This timeframe is well short of the one-week mailing time recommended by USPS, Ex. 42, and forced thousands to risk their health to ensure their right to vote, Exs. 9 ¶4 (waiting for ballot days before election); 11 ¶13 (same); 16 ¶¶3-22 (forced to vote in person due to late ballot); 17 ¶10 (same); 18 ¶8 (same); 67 ¶5; 68 ¶9 (same); 71 ¶5 (same); see also 45, 46, 60.
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Thus, it is nearly certain that the Receipt Deadline will disenfranchise substantial numbers of Georgians who vote by mail in November. Expert analysis conservatively estimates that if mail voting rejection rates occur at the same rates, they did in 2018 and 2016, over 60,000 voters could be disenfranchised. Ex. 1 at 2, 4, 7-10, 24, 33-34.
This is hardly surprising. In addition to the sheer increase in vote-by-mail turnout, many of these voters are typically in-person voters and are likely to be “late deciders” who make determinations closer to Election Day, will be less familiar with mail-voting requirements, e.g., the Receipt Deadline, and more likely to mail ballots later.8 Ex. 1 at 27-29 (2% rejection rate inexperienced voters; 0.2% experienced); Exs. 3 ¶¶6-7; 4 ¶¶8-9; 10 ¶9; 89 ¶4; 91 ¶4.
5. Voter Assistance Ban Georgia’s disenfranchisement of voters due to the Receipt Deadline shows that voters need assistance returning ballots. This assistance is crucial for voters for whom personally returning their ballot (particularly if received too late to mail) will
8 Nor would it be unreasonable for voters to think that their ballots would be counted if postmarked by Election Day, as many other deadlines in their lives—including voter registration deadlines—are postmark deadlines. See, e.g., O.C.G.A. § 21-2224 (accepting voter registrations postmarked by deadline); id. § 48-7-57 (applying postmark deadline to tax returns); id. § 48-2-46 (applying postmark deadline to tax protests); id. § 40-3-42 (applying postmark deadline to title applications).
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impose significant burdens—including those voters who are or who have close contact with someone vulnerable to COVID-19, voters with disabilities, low-income voters, and young voters, many of whom lack transportation access. See Ex. 1 at 57, 31-32. Georgia law, however, prohibits anyone who is not part of a limited category of family and household members, caregivers, or detention facility employees from assisting with returning signed, sealed absentee ballots. O.C.G.A § 21-2-385(a). A substantial number of voters—including those among the nearly 1 million Georgian single-member household residents, 338,193 of whom are 65 or older, Ex. 1 at 31-32—are cut off from assistance. Exs. 4 ¶10; 5 ¶8. The 27.2% of Georgians who are disabled are limited in their choice of assistance. Ex. 61.
Even under normal circumstances, the Ban makes it needlessly difficult for certain voters to receive help, especially those who live alone, have no family members to deliver ballots, and have disabilities but no caretakers. Ex. 1 at 5-7, 3133; Exs. 4 ¶10; 5 ¶8; 10 ¶10; 89 ¶6. But the Ban presents even greater obstacles in the ongoing pandemic. Family and household members who previously assisted with hand-delivering mail ballots may be reluctant to do so due to safety concerns. See Ex. 10 ¶10. With the expected surge in mail voters, particularly from voters who are most vulnerable to COVID-19, voters will need help from organizations that are able to deploy trained organizers to ensure voters’ ballots are returned in time to be
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counted. See Ex. 1 at 31-33; Exs. 3 ¶21; 4 ¶10; 5 ¶8; 8 ¶10; 9 ¶8; 10 ¶10; 11 ¶18; 12 ¶10; 89 ¶6; 91 ¶10. Third-parties who are trained can also remind voters to sign their ballots and include necessary identifying information—missteps that have resulted in the disenfranchisement of thousands before and are likely to do so again, and in greater numbers, in November. Ex. 1 at 31-33. The Ban prevents voters from accepting (and organizations from deploying) that help.
III. ARGUMENT Plaintiffs are entitled to a preliminary injunction because: (1) they have a substantial likelihood of success on the merits; (2) they will suffer irreparable injury absent such relief; (3) their injury outweighs possible harm Defendants will suffer; and (4) an injunction is in the public interest. GeorgiaCarry.org v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015). A. Plaintiffs are likely to succeed on the merits. 1. Plaintiffs’ Right-to-Vote Claim The challenged provisions severely burden the right to vote with unjustifiable barriers to casting an absentee ballot, particularly during a public health crisis. Under the Anderson/Burdick balancing test, the Supreme Court requires courts to “weigh ‘the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the
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State as justifications for the burden imposed by its rule,’” considering “‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983)). This inquiry is fact-specific and may not be undertaken by rote. The court applies a “flexible standard,” id.: the more a challenged law burdens the right to vote, the stricter the scrutiny to which we subject that law.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318, 1319 (11th Cir. 2019).
When voting rights are severely restricted, a law “must be narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 280 (1992). But even less severe burdens remain subject to balancing: “However slight” the burden may appear, “it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (controlling op.) (quoting Norman, 502 U.S. at 288–89).9 Complete disenfranchisement is—obviously—a “severe” burden. See Lee, 915 F.3d at 1321 (“it is a ‘basic truth that even one disenfranchised voter—let alone several thousand—is too many’”) (quoting League of Women Voters of N.C.
9 In evaluating burden, a court must focus not only on the burden on the general electorate, but also on the burden on the actual individuals impacted. Id. at 201. “Disparate impact matters under Anderson-Burdick.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1216-20 (N.D. Fla. 2018).
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v. North Carolina (“LWV NC”), 769 F.3d 224, 244 (4th Cir. 2014)). The challenged provisions separately and cumulatively inflict undue burdens
on Plaintiffs’ voting rights that cannot be justified by Georgia’s interests in them. First, Georgia’s Notification Process threatens voters with the severe burden
of disenfranchisement. Without uniform guidelines, notifying voters of application insufficiencies takes place solely at the discretion of local officials, treating voters differently depending on where they live, and the strain officials are under at the time.10 The consequences can be severe, as later notification reduces the time a voter has to receive, vote, and return their ballot. Supra II, B1. During the pandemic, with absentee ballot applications overwhelming officials, these burdens will only increase—as will the disparities between the counties. Supra II, B1.
There is no justification for the lack of uniform standards. In other contexts, such as signature matching, the State provides clear rules for prompt notification. See Ga. Comp. R. and Regs. 183-1-14-.13 (election officials must notify voters
10 Supra II, B1; see also Democratic Exec. Comm. of Fla., 915 F.3d at 1320 (finding severe burden because “Florida allows each county to apply its own standards and procedures [] virtually guaranteeing a crazy quilt of enforcement of the requirement from county to county”).
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within three business days of absentee receipt or by next business day, during eleven days before election). There is no reason the State cannot do so here.11
Second, the Absentee Age Restriction imposes substantial burdens on voters under 65, forcing them to apply for absentee ballots each election, increasing the risk of errors, substantial processing times, and late ballot returns. Supra II, B2. During the pandemic, these risks are even more severe as absentee ballot requests are skyrocketing, placing more pressure on election officials and corresponding delays in application processing and ballot mailing. Supra II, B2. There is no justification for these burdens. Not only is a streamlined request process by which a voter can submit one request for absentee ballots each cycle already available to voters 65 and over, see O.C.G.A. § 21-2-381(a)(1)(G); Martin, 341 F. Supp. 3d at 1339-40, but including younger voters would decrease administrative burdens, reducing the number of applications that need to be processed. See Ex. 1 at 15-16.
Third, the Postage Tax imposes monetary costs on voters, a burden that is particularly severe this year, when mail voting offers voters the safest method of voting. Supra II, B3. It forces voters to risk their health to obtain postage, deterring
11 See Martin v. Kemp, 341 F. Supp. 3d 1326, 1339-40 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of State of Ga., No. 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018) (“Because many of the procedures Plaintiffs request are already in place, the Court finds that additional procedures would involve minimal administrative burdens[.]”).
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voters with disabilities, limited access to transportation, and concerns about contracting COVID-19 from voting. Supra II, B3. The State has no adequate justification for failing to pre-pay postage for such ballots. Georgia provides prepaid postage in other voting contexts.12 See O.C.G.A. § 21-2-234(c) (confirmation notice of voter’s address “shall be a postage prepaid”). Its failure to do so here—at most— is purely a matter of administrative convenience, which cannot outweigh burdens on fundamental rights. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975). And Congress has allocated $10 million for Georgia to use for COVID-related election expenses, which can cover the cost of postage. See Ex. 62.
Fourth, even before the onset of the pandemic, the Receipt Deadline severely burdened the right to vote, disenfranchising thousands of lawful voters—more than 6,600 in statewide general elections since 2014, see Ex. 1 at 4⸺simply because their ballots were received after 7:00 p.m. on Election Day. Supra II, B4. For those voters who, through no fault of their own, do not receive a mail ballot until shortly before Election Day, or whose ballots take longer than expected to arrive in the mail, the
12 At least sixteen states prepay postage on absentee ballots. See Ariz. Rev. Stat. § 16-542; Cal. Elec. Code § 3010; 15 Del. Code § 5504; Haw. Rev. Stat. § 11-102; Ind. Code § 3-11-4-20; Iowa Code Ann. § 53.8; Minn. Stat. Ann. § 203B.07; Mo. Rev. Stat. § 115.285; Mont. Code § 13-13-214; Nev. Rev. Stat. § 293.323; N. M. Stat. Ann. § 1-6-8; Ore. Rev. Stat. § 254.473; R.I. Gen. Laws § 17-20-10; Wash. Rev. Code § 29A.40.091; W. Va. Code Ann. § 3-3-5; Wis. Stat. Ann. § 6.87.
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burden is severe: total disenfranchisement. The number of voters disenfranchised by the Deadline is all but certain to increase as election officials and USPS are crushed under a surge of requests for mail ballots. Supra II, B4; see also Ex. 1 at 7-10, 24, (60,000 disenfranchised due to Deadline). This is a severe and unjustifiable burden.13
The State has no adequate justification for discarding these mail ballots.14 Provisional and absentee ballots can be cured up to three days after Election Day, see O.C.G.A. §§ 21-2-386(a)(1)(C), 21-2-419(c), and Georgia does not even finalize results for 17 days after the election, see O.C.G.A. § 21-2-499. Thus, extending the Deadline would not jeopardize the State’s ability to finalize election results. See Ex. 55, Driscoll, at *11 (no adequate interest where no impact on election certification).
Wisconsin’s recent experience is instructive. In April, a Wisconsin federal court extended the deadline for receipt of absentee ballots because voters were at risk of being disenfranchised by Wisconsin’s election day receipt deadline. See
13 Courts have regularly found a severe burden where laws disenfranchised far fewer voters than the number of Georgians disenfranchised here. See, e.g., Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1264 (N.D. Ga. 2018) (severe burden where 3,141 individuals impacted); One Wis. Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 948–49 (W.D. Wis. 2016) (same; fewer than 100 voters). 14 See Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012) (“NEOCH”) (likely constitutional violation after state failed to identify “precise interests” justifying “substantial burden” when ballots were rejected due to no fault of the voter); see also Doe v. Walker, 746 F. Supp. 2d 667, 681–83 (D. Md. 2010) (extending deadline for overseas ballots where ballots sent too late for timely return); Stamos v. Genesee Cty. Bd. of Canvassers, 46 Mich. App. 636, 645–46 (1973).
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Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374, at *5, *12, n.14 (W.D. Wis. Apr. 2, 2020). The court concluded that “the state’s general interest in the . . . deadline is not so compelling as to overcome the burden faced by voters who, through no fault of their own, will be disenfranchised by” its enforcement.” Id. at *17. The Seventh Circuit affirmed. See Order, Democratic Nat’l Comm. v. Republican Nat’l Comm., No. 20-1538 (7th Cir. Apr. 3, 2020), ECF No. 30. The Supreme Court, evaluating the extension under Anderson-Burdick, agreed it was appropriate to require the state to count ballots mailed by Election Day. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1208 (2020); Ex. 54, at 7 (postmark deadline resulted in counting nearly 80,000 ballots); Ex. 55, Driscoll, et al. v. Stapleton, No. DV 20-408, at *17 (Mont. D. Ct. May 22, 2020) (preliminarily enjoining receipt deadline, instituting postmark deadline).15 Plaintiffs seek the same relief here.
Finally, the Voter Assistance Ban imposes undue burdens on Georgia voters, prohibiting voters from obtaining help in casting their mail ballot. Those without
15 Although one court recently declined to enjoined South Carolina’s Receipt Deadline, see Middleton v. Andino, No. 3:20-cv-01790, ECF No. 31 (D.S.C. May 25, 2020), the court did so after attributing late ballots to South Carolina voters’ failure to submit their ballots on time. Here, Plaintiffs have presented extensive evidence that Georgia voters are being disenfranchised by the Receipt Deadline for reasons outside their control, and the state cannot disenfranchise these voters in a manner consistent with the Constitution. See NEOCH, 696 F.3d at 597.
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access to postage, who lack easy access to reliable transportation, who are concerned about the risk in-person voting poses to their health or the health of their loved ones, and who do not have a family or household member or caretaker who can assist them—including, the nearly 1 million Georgians who live alone, Ex. 1 at 3132⸺will be unable to return their ballot. Supra II, B5. These burdens disproportionately fall on Georgia’s minority voters and vulnerable populations. See id. They are also exacerbated during the pandemic: voters who are at high risk for complications from COVID-19 cannot take trips outside of their home—even to deliver their ballot, or to deliver that of a family or household member—without risking their health. Supra II, B5. A generalized interest in promoting “election integrity” is insufficient to outweigh these burdens.16 This is particularly so where many other Georgia laws already criminalize undue influence or voting fraud and where ballot collection fraud is virtually nonexistent. 17
The challenged provisions compound each other, cumulatively burdening
16 One Wis. Inst., 198 F. Supp. 3d at 903 (“[A] preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections.”); LWV NC, 769 F.3d at 246 (“states cannot burden the right to vote [] to address dangers that are remote and only theoretically imaginable,” such as “election integrity and fraud protection,”) (quotation omitted). 17 See, e.g., O.C.G.A. § 21-2-573 (prohibiting fraud in connection with casting a vote); id. § 2-2-576 (prohibiting destruction or delay in delivery of ballots); id. § 221-570 (preventing vote-buying and vote-selling); Ex. 1 at 32-33.
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Georgia voters. The time spent obtaining postage, for example, makes it more likely that a voter will mail their ballot later and, therefore, that it will be rejected for arriving late. Likewise, voters unable to obtain postage are more likely to need assistance and are at risk of having their ballot arrive late without it. Delays in informing voters about application problems and resultant delays in sending ballots to voters all lead to ballots being returned late and voters disenfranchised.
Even if this Court determines that any of the challenged provisions impose minimal burdens on the right to vote, it must still consider whether Georgia’s interests are “sufficiently weighty” to impose those burdens. Norman, 502 U.S. at 288–89. There are no state interests sufficient to outweigh these increasing burdens on Georgian’s voting rights, particularly during the present pandemic.
2. Plaintiffs’ Procedural Due Process Claim The Notification Process and Receipt Deadline deprive voters of their liberty interest in voting without adequate procedural safeguards. The Due Process Clause prohibits the states from depriving “any person of . . . liberty . . . without due process of law.” U.S. Const. amend. XIV, § 1. Which protections are due requires a careful analysis of the importance of the rights and interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). Courts must consider (1) “the private interest” affected, (2) “the risk of an erroneous deprivation” of that interest due to
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current procedures, and (3) the “probable value . . . [of] additional or substitute procedures,” accounting for any “administrative burdens.” Grayden v. Rhodes, 345 F.3d 1225, 1233 (11th Cir. 2003) (quoting Mathews, 424 U.S. at 335).
These factors weigh in Plaintiffs’ favor. First, the nature of the private interest—voting and having one’s ballot counted—is extraordinarily important. See Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964). This interest extends to mail voting, which Georgia has conferred upon its citizens. See, e.g., Martin, 341 F. Supp. 3d at 1338; Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018).
Second, the risk of erroneous deprivation from these provisions are high. Public data from Georgia establishes that thousands of voters’ mail ballots have been rejected as late every election cycle. Supra II, B4. The “cutoff” to mail a ballot varies depending primarily on USPS’s state, supra at II, B4, making it patently unreliable and confusing. The problems in Georgia’s processing of applications leads directly to these delays as many voters are not even notified of issues until they affirmatively reach out, see Exs. 9 ¶4; 11 ¶¶10-13, and other ballots are mailed too late for voters to timely return them, see Ex. 6 ¶¶4-6; 14 ¶14; 16 ¶¶6-12; 67 ¶¶4-5; 68 ¶¶5-8; 71 ¶¶3-4. See, e.g., Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 243 (6th Cir. 2011) (“To disenfranchise citizens whose only error was relying on poll-worker instructions [is] fundamentally unfair.”). Not only can the Notification Process leave
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voters without meaningful notice that their applications have not been accepted due to missing information, but it permits election officials among Georgia’s 159 counties to interpret “promptly” in differing and arbitrary ways—which is neither fair nor reliable. See Curling v. Raffensperger, 403 F. Supp. 3d 1311, 1336 (N.D. Ga. 2019) (“[W]hen a state accords arbitrary and disparate treatment to voters, [they] are deprived of their constitutional rights to due process and equal protection.”). A state’s elections system, “the specifics of which are not explicitly made known to potential voters, that leaves potential voters in the dark as to its effect on a voter’s [ability to vote] and that fails to give voters a fair opportunity to [participate], is fundamentally unfair and violative of the Due Process Clause of the Fourteenth Amendment.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1185 (11th Cir. 2008) (Barkett, J., concurring and dissenting in part).
Third, the value of additional or substitute procedural safeguards to ensure that mail voters’ votes are counted is readily apparent. A substitute procedure— requiring Georgia to count mail ballots that are mailed on or before Election Day and received within five-business days after solves the inequities inherent in the Receipt Deadline. It not only offers Georgia voters a reliable date by which to cast their ballots, it also ensures that voters who receive their ballots shortly before Election Day are able to access the franchise and helps protect against postal service
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delays. See Ex. 1 at 17-18 (85% of late ballots arrived 5 business days after election). Counting these ballots also imposes little administrative burden on the State. Supra III, A1. Likewise, requiring election officials to uniformly notify voters about missing information by text message, email, and mail within three days of receiving the ballot or by the next day, during the eleven days prior to the Election—a procedure nearly identical to that used to notify voters of a rejected ballot for signature mismatch, see Ga. Comp. R. & Reg. 183-1-14-.13—would put little additional burden on the State.18
Having conferred the right to vote by mail, Georgia must establish adequate procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots. Cf. Saucedo, 335 F. Supp. 3d at 217. Because the Receipt Deadline and Notification Process are inadequate in all those respects, and Georgia can institute a substitute procedure to protect voters’ rights with minimal burden, these provisions violate Georgia voters’ procedural due process rights.
3. Plaintiffs’ Equal Protection Claim Georgia’s Notification Process, which allows different counties to apply different standards to notify voters of problems with their absentee application, is
18 See Martin, 341 F. Supp. 3d at 1339-40 (“Because [] the procedures Plaintiffs request are already in place, . . . additional procedures would involve minimal administrative burdens”).
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“[in]consistent with [the] obligation to avoid arbitrary and disparate treatment of the members of [the] electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). “[O]nce granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104–05; see also Curling, 403 F. Supp. 3d at 1336 (“Voters also enjoy a Fourteenth Amendment right ‘to participate equally in the electoral process.’”) (quoting Democratic Executive Comm. of Fla., 915 F.3d at 1319). But the Notification Process allows counties to do just that, inviting them to interpret “promptly” however they choose and to notify voters on their own timetable about issues with their absentee applications. The timing and method of notification is left to a county’s discretion and the result depends solely on where a voter lives, and the time election officials have to process the application. See Bush, 531 U.S. at 103, 105-107 (finding “standardless manual recounts” violated Equal Protection Clause where different counties used “varying standards to determine what was a legal vote”). Thus, similarly situated voters are placed on unequal terms, and their right to vote is burdened without justification. Supra II, B1. Without “specific rules designed to ensure uniform treatment” to prevent “arbitrary and disparate treatment to voters” based on which county or local jurisdiction they live in, Bush, 531 U.S. at 106-07, the Notification Process violates the Equal Protection Clause.
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4. Plaintiffs’ Twenty-Sixth Amendment Claim Georgia’s Absentee Age Restriction targets voters under 65 on its face, violating the Twenty-Sixth Amendment, which forbids abridging or denying voting rights on account of age.19 Although commonly known as the Amendment that lowered the voting age to 18, its text is more expansive and reflects that its goal “was [to] . . . affirmatively [] encourage [youth] voting, through the elimination of unnecessary burdens and barriers.” Worden, 294 A.2d at 243. A state cannot make it harder for younger voters (or anyone) to vote simply because of their age, but that is precisely what the Absentee Age Restriction does. Georgia’s requirement that voters under 65 submit an absentee application each election (versus one each cycle, as voters over 65 are permitted to do), serves no purpose other than to make it harder for younger voters to vote absentee. The repeated submission of absentee applications makes younger voters more susceptible to application rejections and concomitant delays in mailing and receipt of their ballots. Supra II, B2. These burdens are stark in the pandemic where absentee
19 See League of Women Voters of Fla., Inc., 314 F. Supp. 3d at 1222; see also Ownby v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971) (Twenty-Sixth Amendment violated by statute that required heightened standard for individuals under 21 to establish residency for voting); United States v. Texas, 445 F. Supp. 1245, 1257 (S.D. Tex. 1978), aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979) (same); Worden v. Mercer Cty. Bd. of Elections, 294 A.2d 233, 245 (N.J. 1972) (same).
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voting is the only form of voting that may be safe for many younger voters, particularly those with high risk health conditions. Supra II, 1; II, B2.
When a law is “unexplainable on grounds other than age because it bears so heavily on younger voters than all other voters,” the law is “facially discriminatory” in violation of the Twenty-Sixth Amendment.20 There is no reason that the same opportunity to submit one absentee application cannot be afforded to younger and older voters alike. Supra II, B2. The restriction discriminates against younger Georgia voters on the basis of age and in violation of the Twenty-Sixth Amendment.
5. Plaintiffs’ Poll Tax Claim Plaintiffs are likely to succeed on their claims that the Postage Tax violates the Fourteenth and Twenty-Fourth Amendments. The latter Amendment provides that the right to vote “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” U.S. Const. Amend. XXIV, § 1; see also Harman v. Forssenius, 380 U.S. 528, 540-41 (1965); Jones et
20 League of Women Voters of Fla., Inc., 314 F. Supp. 3d at 1222; see also Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975) (where a law is “imposed solely or with marked disproportion on the exercise of the franchise by the benefactors of [a particular] amendment,” it is likely unexplainable on other grounds and is discriminatory).
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al. v. DeSantis et al., No. 4:19-cv-00300, slip op. at 73 (N.D. Fla. May 24, 2020). The Fourteenth Amendment also prohibits imposing fees on the franchise.21
Georgia does what the Twenty-Fourth Amendment and the U.S. Supreme Court’s decision in Harper v. Virginia State Board of Elections, 383 U.S. 663, 666 (1966), prohibit: conditions casting a mail ballot on paying a fee. Unlike incidental voting costs, Georgia instructs that postage is required to cast a mail ballot. Supra II, B3. Fees imposed on voting violate the Twenty-Fourth Amendment if they function as taxes, see Jones, at *73, and courts must use a “functional approach” to determining whether a fee is a “tax.”22 The “essential feature of any tax” is that “i[t] produces at least some revenue for the Government.” Nat’l Fed’n of Indep. Bus., 567 U.S. at 564. USPS stamps are one of the primary streams of revenue for the Postal Service, raising billions of dollars for the agency. See Ex. 63; see also Ex. 64 (“The Postal Service relies on the sale of postal products . . . to fund our operations”). While such a fee is always unconstitutional, during the pandemic postage has
21 See M.L.B. v. S.L.B., 519 U.S. 102, 124 n.14 (1996) (“[V]oting cannot hinge on ability to pay . . . for it is a ‘fundamental political right . . . preservative of all rights.’” (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). This analysis is the same regardless of whether a voter is able to pay. See Harper, 383 U.S. at 668 (fee unconstitutional “whether the citizen . . . has $1.50 in his pocket or nothing at all”). 22 See Jones, at *73-74 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 564-66 (2012)); see also Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 136667 (N.D. Ga. 2005) (paying for ID was a “material requirement” to vote amounting to a poll tax).
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become a prerequisite for voting, period, for thousands of Georgia voters, including those who are uniquely susceptible to the virus. It forces them to pay “a price for the privilege of exercising the franchise,” Harman, 380 U.S. at 539, violating the Twenty-Fourth and Fourteenth Amendments.
6. Plaintiffs’ First Amendment Claim The Voter Assistance Ban prevents Plaintiffs from engaging in electionrelated speech and associational activities aimed at encouraging voters to participate in the political process—activity protected by the First Amendment. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999); Meyer v. Grant, 486 U.S. 414, 421 (1988). 23 Cases involving “limitation[s] on political expression [are] subject to exacting scrutiny.” Meyer, 486 U.S. at 420. Just as the Supreme Court struck down as an unconstitutional restriction of political expression Colorado’s criminalization of paying circulators to collect petition signatures, see id. at 428, Georgia cannot prohibit individuals from helping voters return their ballots. This
23 See Hadnott v. Amos, 394 U.S. 358, 364 (1969) (First Amendment rights “include the right to band together for the advancement of political beliefs.”); Am. Ass’n of People with Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15 (1986)) (“An organization’s attempt to broaden the base of public participation in and support for its activities is conduct ‘undeniably central to the exercise of the right of association.’”); see also Buckley v. Valeo, 424 U.S. 1, 15 (1976) (“[T]he First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas.”) (internal citations omitted)).
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burdens speech by “limit[ing] the number of voices who will convey [The New Georgia Project’s (“NGP”)] message,” and “the size of the audience [it] can reach.” Id. at 422-23. Given the current crisis, the form of speech that NGP seeks to engage in is “the most effective, fundamental, and [likely] economical avenue of political discourse,” yet it is foreclosed by the Ban. Id. at 424; see Ex. 3 ¶21.
The Ban is also an unconstitutional restriction on NGP’s right to associate. First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott, 394 U.S. at 364. An organization’s “attempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association.” Tashjian, 479 U.S. at 214; see also Williams v. Rhodes, 393 U.S. 23, 30 (1968). In Tashjian, the Supreme Court invalidated a prohibition that “limit[ed] the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.”24 479 U.S. at 216. So too here.
24 The Ban limits NGP’s associational opportunities by barring it from deploying professionals to assist their constituents in returning—and reminding voters to sign—their ballots during their get-out-the-vote efforts. NGP “wish[es] to speak and act collectively with others, implicating the First Amendment right of association. And [NGP wishes] to assist others with the process of [participating in the franchise] and thus, in due course, voting.” League of Women Voters of Fla. v. Browning, 863
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7. Plaintiffs’ Section 208 Preemption Claim The Voter Assistance Ban conflicts with Section 208 of the Voting Rights Act (“VRA”) by restricting voters’ abilities to select the person of their choice to help them vote. Conflict preemption occurs (1) when it is impossible to comply with state and federal law, or (2) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 109 (1992). Both are true here. Section 208 states “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” 52 U.S.C.A. § 10508. It imposes two limitations: voters cannot select (1) their employer or its agent or (2) an officer or agent of their union. Id. But the Ban adds limitations, restricting that choice to a family or household member or caretaker. See O.C.G.A. § 21-2-385. Because the VRA promises freedom of choice and the Ban restricts it, the laws cannot coexist.25 Section 208 thus
F. Supp. 2d 1155, 1158 (N.D. 2012). Assisting with voter registration applications is “core First Amendment activity.” Id. The First Amendment surely extends to the endpoint of those applications—helping voters cast their ballots. See Priorities USA et al. v. Nessel, No. 4:19-cv-1334, ECF No. 59 at *28-32 (E.D. Mich. May 22, 2020). 25 Similar restrictions have been held preempted by the VRA. See, e.g., OCA-Greater Houston v. Texas, 867 F.3d 604, 614-15 (5th Cir. 2017) (VRA preempted requirement that assistor be registered in voter’s county because it “impermissibly narrows the right guaranteed by Section 208”); Ex. 65, Minnesota v. Thao, No. 62-
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preempts the Ban, prohibiting voters from receiving assistance from the person of
their choice at a crucial stage in the voting process.26
B. Plaintiffs will suffer irreparable harm absent an injunction.
The challenged provisions put the voter Plaintiffs and others at risk of
disenfranchisement, which constitutes irreparable harm. If “constitutional rights are
threatened or impaired, irreparable injury is presumed.” Obama for Am. v. Husted,
697 F.3d 423, 436 (6th Cir. 2012).27 Once the election occurs, “there can be no do-
over and no redress.” LWOV NC, 769 F.3d at 247). They also restrict the
CR-18-827 (Minn. Dist. Ct. Oct. 23, 2018) (Section 208 preempts prohibition on candidates assisting voters). The legislative history also supports finding restrictions that “deny the assistance at some stages of the voting process during which assistance was needed” violate Section 208. S. Rep. No. 97-417, at 63 (1982). 26 The Ban also conflicts with Section 208 because it poses an obstacle to accomplishing Section 208’s purpose and objective. In Thao, the court explained that “the purpose of [the VRA] was to create as few barriers as possible to voting, with the understanding that [voters] are fully capable of determining who should serve as their trustworthy assistant.” Ex. 65 at 4. The court found “the [State’s] prohibition of a candidate as a possible trusted assistant acted as an obstacle to the accomplishment of the full purpose and objective of Congress.” Id. at 5. 27 See also Elrod v. Burns, 427 U.S. 347, 373 (1976); Touchston v. McDermott, 234 F.3d 1133, 1158-59 (11th Cir. 2000) (when an “abridgement to the voters’ constitutional right to vote” is imminent, “irreparable harm is presumed and no further showing of injury need be made.”); Democratic Party of Ga., Inc. v. Crittenden, 347 F. Supp. 3d 1324, 1346 (N.D. Ga. 2018) (“[T]the disenfranchisement of the right to vote is an irreparable injury and one that cannot easily be redressed.”); Detzner, 314 F. Supp. at 1223.
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organizational Plaintiffs from participating in election-related activities, which courts routinely recognize as irreparable harm.28 Further, they cause NGP to divert resources to help its constituency overcome the burdens imposed by them to effectuate its mission. See Ex. 3 ¶¶8-23. This, too, constitutes irreparable harm.29 C. The balance of the equities and the public interest favor an injunction.
The balance of the equities favors Plaintiffs, who face impingement on their core constitutional rights. Defendants, at most, face administrative inconveniences, which cannot justify restrictions on fundamental rights.30 “By definition, the public interest favors permitting as many qualified voters to vote as possible,” and “upholding constitutional rights serves the public interest.” Ga. State Conference NAACP v. Georgia, No. 1:17-CV-1397-TCB, 2017 WL 9435558, at *5 (N.D. Ga.
28 See Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1350 (N.D. Ga. 2016); Browning, 863 F. Supp. 2d at 1167. 29 See, e.g., Ga. Coal. for People’s Agenda, Inc., 347 F. Supp. 3d at 1268 (E. Ross) (irreparable harm where “[p]laintiffs’ organizational missions . . . will continue to be frustrated and . . . resources will be diverted to [address the challenged law]” . . . “mobilization opportunities cannot be remedied once lost”). 30 See Taylor, 419 U.S. at 535; see also Ga. Coal. for People’s Agenda, Inc., 347 F. Supp. 3d at 1268 (increased administrative burden “minimal compared to the potential loss of a right to vote”); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1258 (M.D. Fla. 2016) (“it would be nonsensical to prioritize [administrative] deadlines over the right to vote”).
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May 4, 2017) (quoting LWV NC, 769 F.3d at 247).31 The challenged provisions also

aggravate public health risks, requiring face-to-face interaction—despite warnings

from public health officials. That risk of danger to public health is substantial,

imminent, and ongoing.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request this Court grant their

motion for preliminary injunction.

Dated: June 10, 2020

Respectfully submitted,
Adam M. Sparks Halsey G. Knapp, Jr. Georgia Bar No. 425320 Joyce Gist Lewis Georgia Bar No. 296261 Adam M. Sparks Georgia Bar No. 341578 KREVOLIN AND HORST, LLC One Atlantic Center 1201 W. Peachtree Street, NW, Suite 3250 Atlanta, GA 30309 Telephone: (404) 888-9700 Facsimile: (404) 888-9577 hknapp@khlawfirm.com jlewis@khlawfirm.com

31See, e.g., Ga. Coal. for People’s Agenda, Inc., 347 F. Supp. 3d at 1268 (“[G]ranting Plaintiffs the relief they seek would be in the public’s interest to ensure that there is a procedure in place to allow every eligible Georgia citizen to register and vote.”); Martin v. Crittenden, 347 F. Supp. 3d 1302, 1310–11 (N.D. Ga. 2018) (“[T]he public interest is best served by allowing qualified absentee voters to vote and have their votes counted.”).

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sparks@khlawfirm.com
Marc E. Elias* Amanda R. Callais* K’Shaani Smith* PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 MElias@perkinscoie.com ACallais@perkinscoie.com KShaaniSmith@perkinscoie.com
Kevin J. Hamilton* Stephanie R. Holstein* PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 KHamilton@perkinscoie.com SHolstein@perkinscoie.com
Lilian Timmermann* PERKINS COIE LLP 1900 Sixteenth Street, Suite 1400 Denver, CO 80202-5222 Telephone: (303) 291-2354 Facsimile: (303) 291-2454 LTimmermann@perkinscoie.com
Counsel for Plaintiffs *Admitted Pro Hac Vice
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CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing document has been prepared in accordance

with the font type and margin requirements of L.R. 5.1, using font type of Times

New Roman and a point size of 14.

Dated: June 10, 2020

Adam M. Sparks Counsel for Plaintiffs

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Case 1:20-cv-01986-ELR Document 58 Filed 06/10/20 Page 47 of 47

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

THE NEW GEORGIA PROJECT, REAGAN JENNINGS, CANDACE WOODALL, and BEVERLY PYNE,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, et al.
Defendants.

Civil Action File No. 1:20-CV-01986-ELR

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 10, 2020, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send a

notice of electronic filing to all counsel of record.

Dated: June 10, 2020

Adam M. Sparks Counsel for Plaintiffs

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 Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 1 of 8

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

THE NEW GEORGIA PROJECT, et al.,

Plaintiffs, v.

CIVIL ACTION FILE NO. 1:20-cv-01986-ELR

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

Defendants.

COUNTY DEFENDANTS’1 CONSOLIDATED MOTION TO DISMISS County Defendants jointly move to dismiss Plaintiffs’ First Amended
Complaint for Injunctive and Declaratory Relief [Doc. 33] in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Further, Bibb, Chatham, AthensClarke, Albany-Dougherty, Muscogee, and Richmond County Defendants move to dismiss the Complaint against them pursuant to Fed. R. Civ. P. 12(b)(3). In support of this motion, County Defendants rely on their Brief in

1 County Defendants include a list of all party Defendants as an appendix to the attached brief.
1

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 2 of 8

Support of County Defendants’ Consolidated Motion to Dismiss, which is filed

with this motion.

Respectfully submitted this 26th day of June, 2020.

/s/ Bryan P. Tyson Bryan P. Tyson Georgia Bar No. 515411 btyson@taylorenglish.com Diane Festin LaRoss Georgia Bar No. 430830 dlaross@taylorenglish.com Bryan F. Jacoutot Georgia Bar No. 668272 bjacoutot@taylorenglish.com Loree Anne Paradise Georgia Bar No. 382202 lparadise@taylorenglish.com TAYLOR ENGLISH DUMA LLP 1600 Parkwood Circle, Suite 200 Atlanta, GA 30339 770.434.6868 (telephone)

/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile)
Attorneys for the Forsyth County Defendants and the AlbanyDougherty Defendants

Counsel for the Gwinnett County Defendants and the Fayette County Defendants

2

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 3 of 8

/s/ Daniel W. White Daniel W. White Georgia Bar No. 153033 dwhite@hlw-law.com HAYNIE, LITCHFIELD & WHITE, PC 222 Washington St. Marietta, Georgia 30064 770-422-8900 (telephone) 770-424-8900 (facsimile)
Attorney for Cobb County Defendants

/s/ Shelley D. Momo Shelley D. Momo Assistant County Attorney Georgia Bar No. 239608 Irene B. Vander Els Assistant County Attorney Georgia Bar No. 033663 DEKALB COUNTY LAW DEPARTMENT 1300 Commerce Drive, 5th Floor Decatur, Georgia 30030 Telephone: (404) 371-3011 Facsimile: (404) 371-3024 sdmomo@dekalbcountyga.gov ivanderels@dekalbcountyga.gov

Attorneys for the DeKalb County Defendants

/s/ William J. Linkous III William J. Linkous III Georgia Bar No. 453213 wlinkous@fmglaw.com FREEMAN MATHIS & GARY LLP 100 Galleria Parkway Suite 1600 Atlanta, Georgia 30339-5948 (770) 818-0000 (telephone) (770) 937-9960 (facsimile)

/s/ Alan G. Snipes James C. Clark, Jr. Ga. Bar No.: 127145 Alan G. Snipes Ga. Bar No.: 665781 PAGE, SCRANTOM, SPROUSE, TUCKER & FORD, P.C. 1111 Bay Avenue, Third Floor Columbus, Georgia 31901 (706) 324-0251

Attorney for Rockdale County Defendants

Attorneys for Columbus-Muscogee Defendants

3

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 4 of 8

/s/ William H. Noland WILLIAM H. NOLAND Georgia Bar No. 545605 william@nolandlawfirmllc.com Virginia C. Josey Georgia Bar No. 261459 virginia@nolandlawfirmllc.com Noland Law Firm, LLC 5400 Riverside Drive, Suite 205 Macon, Georgia 31210 (478)621-4980 telephone (478)621-4282 facsimile
Counsel for Macon-Bibb County Defendants

/s/ Rachel N. Mack Rachel N. Mack Staff Attorney Georgia Bar No. 104990 Wayne Brown General Counsel Georgia Bar No. 089655 AUGUSTA LAW DEPARTMENT 535 Telfair Street, Building 3000 Augusta, Georgia 30901 Telephone: (706) 842-5550 Facsimile: (706) 842-556 rmack@augustaga.gov wbrown@augustaga.gov
Attorneys for the Richmond County Defendants

4

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 5 of 8

s/Kaye Woodard Burwell Georgia Bar Number: 775060 kaye.burwell@fultoncountyga.gov s/Cheryl Ringer Georgia Bar Number: 557420 cheryl.ringer@fultoncountyga.gov s/David R. Lowman Georgia Bar Number: 460298 david.lowman@fultoncountyga.gov
OFFICE OF THE FULTON COUNTY ATTORNEY Office of the County Attorney 141 Pryor Street, S.W. Suite 4038 Atlanta, Georgia 30303 Telephone: (404) 612-0246
Attorneys for the Fulton County Defendants

/s/ Gregory C. Sowell Gregory C. Sowell Georgia Bar No. 668655 COOK & TOLLEY, LLP 304 East Washington Street Athens, Georgia 30601 Phone: (706) 549-6111 Fax: (706) 548-0956 Email: gregsowell@cooktolley.com
/s/ John Matthew Hawkins John Matthew Hawkins Georgia Bar No. 120839 ATHENS-CLARKE COUNTY ATTORNEY’S OFFICE P.O. Box 427 Athens, Georgia 30603 Phone: (706) 613-3035 Fax: (706) 613-3037 Email: john.hawkins@accgov.com
Attorneys for Athens-Clarke County Defendants

5

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 6 of 8

/s/ R. Jonathan Hart R. JONATHAN HART State Bar No. 333692 /s/ Jennifer R. Davenport JENNIFER R. DAVENPORT State Bar No. 330328 Chatham County Attorney’s Office P. O. Box 8161 Savannah, GA 31412 T: (912) 652 7881 F: (912) 652 7887 Email: rjhart@chathamcounty.org jdavenport@chathamcounty.org
Attorneys for the Chatham County Defendants

/s/ David A. Cole David A. Cole Georgia Bar No. 142383 Timothy M. Boughey Georgia Bar No. 832112 FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway Suite 1600 Atlanta, Georgia 30339 (T) 770.818.0000 (F) 770.937.9960 (E) dcole@fmglaw.com tboughey@fmglaw.com
Counsel for the Douglas County Defendants

/s/ Jack R. Hancock Jack R. Hancock Georgia Bar No. 322450 jhancock@fmglaw.com A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com Freeman Mathis & Gary, LLP 661 Forest Parkway, Suite E Forest Park, Georgia 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com Megan N. Martin Georgia Bar No. 140851 mmartin@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile)

Counsel for the Clayton County Defendants

Attorneys for the Newton County Defendants

6

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 7 of 8
/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com Patrick D. Jaugstetter Georgia Bar No. 389680 patrickj@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile) Attorneys for the Henry County Defendants
7

Case 1:20-cv-01986-ELR Document 82 Filed 06/26/20 Page 8 of 8
CERTIFICATE OF COMPLIANCE Pursuant to L.R. 7.1(D), the undersigned hereby certifies that the foregoing COUNTY DEFENDANTS’ CONSOLIDATED MOTION TO DISMISS has been prepared in Century Schoolbook 13, a font and type selection approved by the Court in L.R. 5.1(B).
/s/ Bryan P. Tyson Bryan P. Tyson

Case 1:20-cv-01986-ELR Document 82-1 Filed 06/26/20 Page 1 of 34

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

THE NEW GEORGIA PROJECT, et al.,

Plaintiffs, v.

CIVIL ACTION FILE NO. 1:20-cv-01986-ELR

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

Defendants.

BRIEF IN SUPPORT OF COUNTY DEFENDANTS’1 CONSOLIDATED MOTION TO DISMISS INTRODUCTION
This Court should dismiss Plaintiffs’ First Amended Complaint for Injunctive and Declaratory Relief [Doc. 33] because they have failed to allege standing adequately. The claims made by Reagan Jennings, Candace Woodall, and Beverly Pyne (the “Individual Plaintiffs”) fail to establish standing because their purported “injury” is no more than a fear that certain events may unfold at some ill-defined point in the future. Moreover, even if

1 County Defendants include a list of all party Defendants as an appendix to this filing.
1

Case 1:20-cv-01986-ELR Document 82-1 Filed 06/26/20 Page 2 of 34
Plaintiffs could rely on mere fears alone to establish injury in fact, they can neither trace the “injury” to nor seek redress from the County Defendants. Similarly, the New Georgia Project has not and cannot allege that any organizational injury it may have suffered is fairly traceable to or redressable by the County Defendants.
In addition, even if Plaintiffs could establish standing, they still fail to state a claim for age discrimination over absentee-ballot applications as a matter of law. Further, this Court should decline to consider Plaintiffs’ claims under the political-question doctrine and as a shotgun pleading. This Court also lacks jurisdiction over some County Defendants because of a lack of venue. Therefore, the Court should dismiss Plaintiffs’ First Amended Complaint and instead direct them to the Georgia General Assembly for the policy changes they seek.
PROCEDURAL BACKGROUND Plaintiffs filed their First Amended Complaint on June 3, 2020 [Doc. 33] (“Amended Complaint”). The Amended Complaint contains seven counts against all Defendants alleging that five Georgia election practices infringe on Plaintiffs’ constitutional rights in various ways. Plaintiffs seek attorneys’ fees and costs, preliminary and permanent injunctive relief, and declaratory judgments from this court that the following Georgia statutes violate the
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United States Constitution: (1) O.C.G.A. § 21-2-381(b)(4), which Plaintiffs claim creates a “lack of standards governing the process for notifying voters regarding incomplete absentee ballot applications,” [Doc. 33, p .10]; (2) O.C.G.A. § 21-2-381(a)(1)(G), which Plaintiffs claim is an unconstitutional “age restriction on those who are allowed to submit an application to vote by mail for an entire election cycle,” id.; (3) O.C.G.A. § 21-2-386(a)(1)(F), which provides for the “rejection of absentee ballots” received after 7:00 p.m. on Election Day, id.; and (4) O.C.G.A. § 21-2-385(a), which generally prohibits third-party assistance in mailing or delivering completed absentee ballots, subject to certain defined exceptions. Id. The Plaintiffs also claim that the State of Georgia’s failure to provide pre-paid postage for the return mailing of absentee ballots is an unconstitutional poll tax. Id.
ARGUMENT AND CITATION OF AUTHORITY A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if it has not alleged a sufficient basis for subject-matter jurisdiction. Stalley v. Orlando Reg’l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir. 2008). This Court must address threshold issues of jurisdiction and standing before considering dismissal on the merits. Georgia Shift v. Gwinnett Cty., No. 1:19cv-01135-AT, 2020 U.S. Dist. LEXIS 31407, at *7 (N.D. Ga. Feb. 12, 2020).
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Further, to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). While this Court must assume the veracity of well-pleaded factual allegations, it need not accept legal conclusions when they are “couched as [] factual allegation[s].” Id. at 678-79. Together with 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). I. This case should be dismissed because Plaintiffs lack standing.
Federal courts may decide only active “cases” and “controversies.” U.S. CONST. art. III, § 2. “One element of the case-or-controversy requirement is that plaintiffs must establish they have standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013), citing Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotations omitted). Importantly, for our purposes, “[t]he law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id.
To establish standing, a litigant must prove three elements: “(1) an injury in fact that (2) is fairly traceable to the challenged action of the
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defendant and (3) is likely to be redressed by a favorable decision.” Jacobson v. Fla Sec’y, 957 F.3d 1193, 1201 (11th Cir. 2020), citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). As the parties attempting to invoke federal jurisdiction, Plaintiffs bear the burden of establishing standing at the start of the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 570 n.5 (1992); Johnson v. Bd. of Regents, 263 F.3d 1234, 1267-68 (11th Cir. 2001). And “when plaintiffs seek prospective relief to prevent future injuries, they must prove that their threatened injuries are ‘certainly impending.’” Id., citing Clapper, 568 U.S. at 401.
A. The Individual Plaintiffs do not adequately allege an injury in fact.
At the pleading stage, the allegations must “contain sufficient detail for the Court to determine that plaintiffs ‘have made factual averments sufficient, if true, to demonstrate injury in fact.’” Georgia Shift, 2020 U.S. Dist. LEXIS 31407 at *8-9 quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). In cases involving injunctive relief, “the injury-in-fact requirement insists that a plaintiff allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.” Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014).
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Importantly, “the Supreme Court rejected a standing test that would replace the requirement of ‘imminent’ harm with the requirement of ‘a realistic threat’ that... the challenged activity would cause [the plaintiff] harm ‘in the reasonably near future.’” Georgia Shift, 2020 U.S. Dist. LEXIS 31407, at *9. See also Clapper, 568 U.S. at 410 (“[T]he Second Circuit’s ‘objectively reasonable likelihood’ standard is inconsistent with our requirement that ‘threatened injury must be certainly impending to constitute injury in fact.’”). Further, the “complainant must allege an injury to himself that is distinct and palpable, ‘as distinguished from merely abstract,’ and the alleged harm must be actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Georgia Shift, 2020 U.S. Dist. LEXIS 31407, at *9, citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). In order to meet the particularity requirement of an injury, a plaintiff must be more than just a “concerned bystander” who is interested in a problem—the plaintiff must show that the injury is distinct to that plaintiff. Gardner v. Mutz, No. 1910461, 2020 U.S. App. LEXIS 19329, at *22-23 (11th Cir. June 22, 2020) (no injury when only generalized interest in preserving history). The rationale behind these requirements is simple: to “ensure[] that courts do not entertain suits based on speculative or hypothetical harms.” Georgia Shift, 2020 U.S. Dist. LEXIS 31407, at *10, citing Whitmore, 495 U.S. at 155.
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Reagan Jennings, Candace Woodall, and Beverly Pyne are the only Individual Plaintiffs. [Doc. 33, ¶¶ 20-22]. Ms. Jennings’ alleged injury is based on only her general fear of COVID-19 and her apparent mistaken belief that she must mail an absentee ballot with stamps,2 along with speculation about potential difficulties of buying stamps, and her fear that her absentee ballot may not arrive in time to be counted. [Doc. 33, ¶ 20]. Ms. Woodall similarly tries to allege that she has an injury for standing purposes just because she must take MARTA to purchase stamps, is currently unemployed, would have trouble affording stamps, and it would be challenging for her to walk to her polling place and vote in person, claiming she would benefit if a third party could collect and return her ballot for her. [Doc. 33, ¶ 21]. Lastly, Ms. Pyne claims an “injury” only because she temporarily lives out of the state and “worries” that her absentee ballot may not arrive in time, does not want to apply for an absentee ballot for each election, and “does not think it is fair” that she has to pay for stamps. [Doc. 33, ¶ 22].
2 This belief is incorrect about the June 9 primary, because the State Election Board adopted an emergency rule allowing for the use of absentee-ballot drop boxes. Ga. Comp. R. & Regs. r. 183-1-14-0.6-.14. The State Election Board has not opined on whether it intends to extend this emergency rule for the November election, but this may create another option for Plaintiffs.
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Each of the Individual Plaintiffs thus identifies only hypothetical and conjectural future “injuries”—rooted in nothing more than their unfounded beliefs or fears about selective election practices. For example, none of the Individual Plaintiffs allege they do not currently have stamps or cannot purchase stamps at some point in the next five months; they only allege that it might be challenging to do so in the future.3 Ms. Jennings also ignores other methods allowed by current rules by which she can even deliver her absentee ballot, including the option to drop them (unadorned) into a box with no postage [Doc. 33, ¶ 20]. See Ga. Comp. R. & Regs. r. 183-1-14-0.6-.14. As for Ms. Pyne, she claims that her “worries” alone establish that her ballot will go undelivered or unreceived by Election Day and that she does not think it is “fair” that she has to buy stamps if she chooses to mail in her ballot. [Doc. 33, ¶ 22]. See Nat’l Treasury Employees Union v. U.S., 101 F.3d 1423, 1430 (D.C. Cir. 1996) (injuries “shared by a large class of citizens” are “insufficient”).
3 The Individual Plaintiffs ignore the USPS policy to deliver election mail that contains insufficient postage. See Mark Niesse, Mailed ballots in Georgia will be counted, even without a stamp, Atlanta Journal-Constitution (April 14, 2020) available at https://www.ajc.com/news/state--regional-govt-politics/mailed-ballots-georgia-will-counted-even-withoutstamp/4P04UcxpZuJ1jZVXgDbixO/
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Thus, the Individual Plaintiffs’ rest their allegations of “injuries” on generalized fear and speculation that these injuries could occur in the future because they may not be able to vote how they prefer or feel most comfortable—if they even decide to cast their ballot. But plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S. at 416. To hold otherwise would “transform the[] standing burden from one requiring a showing of actual or imminent . . . [harm] to one requiring a showing that their subjective fear of such [harm] is not fanciful, irrational, or clearly unreasonable.” Id. And the Individual Plaintiffs (and voters in general) cannot cite merely to preference in voting method to show injury. “Although the right to vote is fundamental, ‘[i]t does not follow, however, that the right to vote in any manner . . . [is] absolute.” Gwinnett Cty. NAACP v. Gwinnett Cty. Bd. of Registrations & Elections, 2020 U.S. Dist. LEXIS 36702 *14–15 (March 3, 2020) quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992).
For these reasons, the Individual Plaintiffs have not alleged there is a “substantial likelihood” they will suffer injury in the future or any cognizable injury. Strickland, 772 F.3d at 883. Instead, they have only alleged a possible future harm that is purely hypothetical and based on their own subjective
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fears. Whitmore, 495 U.S. at 155. Therefore, the Individual Plaintiffs’ claims must be dismissed for lack of standing due to their failure to allege an injury in fact.
B. Neither The New Georgia Project nor the Individual Plaintiffs have adequately alleged traceability and redressability because they have not sued all 159 counties.
As the Eleventh Circuit recently explained, “[t]o satisfy the causation requirement of standing, a plaintiff's injury must be ‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.’” Jacobson, 957 F.3d at 1207 quoting, Lujan, 504 U.S. at 560. Further, “it must be the effect of the court's judgment on the defendant—not an absent third party—that redresses the plaintiff's injury, whether directly or indirectly.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (internal quotations omitted).
Plaintiffs affirmatively plead—correctly—that county officials bear the responsibility of processing absentee ballots. [Doc. 33, ¶ 26]. But Plaintiffs have named members of only 17 county boards of election in this case, along with the Secretary of State and members of the State Election Board, even
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though the New Georgia Project purports to work in all 159 counties.4 [Doc. 33, ¶ 17] (alleging that the New Georgia Project has registered voters “in all 159 of Georgia’s counties”). Thus, even if Plaintiffs obtain all the relief they seek, this Court’s order cannot enjoin “absent nonparties.” Jacobson, 957 F.3d at 1208. Because the New Georgia Project seeks targeted relief from cherrypicked parties while leaving out other necessary parties, it fails to establish redressability for its claimed “injuries” from alleged diversions of resources will cease. [Doc. 33, ¶¶ 17-19].
Plaintiffs’ failure to sue the parties that can redress the alleged harm could also lead to “arbitrary and disparate treatment to voters in its different counties,” Bush v. Gore, 531 U.S. 98, 107, 121 S. Ct. 525, 531 (2000), with 17 counties bound by an order from this Court and the remaining 142 counties following existing law.5 See also Friedman v. Snipes, 345 F. Supp. 2d 1356, 1381 (S.D. Fla. 2004) (error not to join other county election officials). In
4 While the Secretary is designated as the “chief election officer of the state”, it does not follow that every alleged injury or prayer for relief in the election context is therefore traceable to the Secretary. Jacobson, 957 F.3d at 1208; Lewis, 944 F.3d at 1300. 5 While the Eleventh Circuit issued a decision pre-dating Jacobson, Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011), it only decided that case under a proper-party analysis and did not consider standing, making it a “drive-by jurisdictional ruling” that has no precedential effect. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91, 118 S. Ct. 1003, 1011 (1998).
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other words, granting Plaintiffs the relief they seek would lead to different rules for absentee voting in different parts of the state, based solely on Plaintiffs’ choice over which counties to sue in this particular case. Thus, Plaintiffs undermine their own claims of imminent “injury,” “redress,” or “equal protection” by leaving out the other counties which would necessarily prolong any uniform implementation or enforcement of any order issued by this Court.
Some District Courts have succumbed to the temptation to correct the deficient pleadings of plaintiffs that fail to join all necessary parties, but the Eleventh Circuit decision in Jacobson suggests this Court should refrain from embarking on such a course of action. A declaratory judgment or injunction against the 17 counties listed as defendants here does not apply to counties “who are not parties to this action.” Jacobson, 957 F.3d at 1208. And even if this Court tried to apply its ruling to counties not now before it, the 142 nonparty counties are not “obliged . . . in any binding sense . . . to honor an incidental legal determination [this] suit produce[s].” Lewis, 944 F.3d at 1301 (internal quotation marks omitted). The separation of powers and the inherent, limited authority under Article III prevent the judiciary from binding non-parties to its orders.
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“Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.” Id. at 1305, quoting Franklin v. Massachusetts, 505 U.S. 788, 825 (Scalia, J. concurring in part and concurring in the judgment). “Any persuasive effect a judicial order might have upon the [non-party counties] . . . cannot suffice to establish redressability.” Jacobson, 957 F.3d at 1208. Moreover, “[i]f a plaintiff sues the wrong defendant, an order enjoining the correct official who has not been joined as a defendant cannot suddenly make the plaintiff’s injury redressable.” Id. at 1209.
The “failure to join the [county officials] is an independent reason that [plaintiffs] lack standing,” id. at 1207, and accordingly, this Court should dismiss Plaintiffs’ Amended Complaint because they have not adequately alleged facts sufficient to support standing. II. Plaintiffs fail to state a claim on the age restriction for
absentee-ballot applications. Plaintiffs challenge O.C.G.A. § 21-2-381(a)(1)(G) and Ga. Comp. R. & Regs. 183-1-14-.01(1), which allow voters over 65 to submit a single absenteeballot application for the entire election cycle, as unconstitutional burdens on the right to vote and as violating the Twenty-Sixth Amendment. Plaintiffs’
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counsel has pursued similar claims in other states as well, but those claims failed because of binding precedent.
As to Plaintiffs’ right-to-vote claim on the age restriction, in McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807, 89 S. Ct. 1404, 1408 (1969), the U.S. Supreme Court determined that denying jailed inmates access to absentee ballots did not restrict their right to vote, but rather only their asserted right to an absentee ballot. As a result, the Court applied rationalbasis review to the refusal to provide absentee ballots and upheld the state’s approach. Id. at 808-11.
Although Plaintiffs allege there is some “burden” associated with sending in multiple absentee forms, they do not allege this minimal “burden” actually prevents them from voting. [Doc. 33, ¶ 48]. Age is not a suspect class, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631 (2000), and McDonald is still good law. As a result, the Court must apply rational-basis review, and Plaintiffs cannot state a claim unless they can show that “no grounds can be conceived of to justify them.” McDonald, 394 U.S. at 809. But as the Fifth Circuit found recently in a similar challenge, “[the state] has a proper interest in helping older citizens to vote, and its decision to permit them to do so by mail is a rational way to satisfy that ‘laudable state policy.’” Tex. Democratic Party v. Abbott, No. 20-50407, 2020 U.S. App. LEXIS 17564,
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at *27 (5th Cir. June 4, 2020) quoting McDonald, 394 U.S. at 811. Thus, even taking Plaintiffs’ allegations as true, Plaintiffs have failed to state a claim under a fundamental-right-to-vote theory.
Likewise, the same logic from McDonald bars Plaintiffs’ Twenty-SixthAmendment claims. Claims under the Twenty-Sixth Amendment are rare and focus on a denial or abridgement of the right to vote “on account of age.” Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J. 1168, 1170 (2012) (noting that the Amendment has only been applied in one Supreme-Court case). Plaintiffs have not alleged that younger individuals’ right to vote is denied or abridged—only that it is allegedly “restricted” by having to request an absentee ballot for each election instead of a single request covering all elections. [Doc. 33, ¶¶ 7, 145].
But there is no basis to conclude that anything besides rational-basis review applies to claims under the Twenty-Sixth Amendment. Tex. Democratic Party, 2020 U.S. App. LEXIS 17564, at *31. Again, the issue is not the right to vote, because younger voters are free to vote by absentee ballot, but instead a claimed right to a particular method of requesting an absentee ballot. As with Plaintiffs’ right-to-vote challenge, Plaintiffs fail to state a claim for relief on this particular voting practice under the TwentySixth Amendment, and their claim should be dismissed.
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III. This Court lacks jurisdiction under the political-question doctrine. “[F]ederal courts will not intervene to . . . supervise the administrative
details of a local election. Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). The judicial system is not a conduit to force election officials to adopt the method of administering elections preferred by a particular group. GALEO v. Gwinnett Cty. Bd. of Registrations and Elections, Case No. 1:20-cv1587-WMR, 2020 U.S. Dist. LEXIS 86998, at *3 (N.D. Ga. May 8, 2020).
While courts can “say what the law is,” there are some questions that are “in their nature[,] political” that are beyond the scope of Article III. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 177 (1803). The politicalquestion doctrine is thus rooted in the separation of powers and a court must dismiss a case for lack of jurisdiction that requires it to decide any one of the six indicia of a political question.6 McMahon v. Presidential Airways, Inc., 502
6 The six characteristics of a political question are “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious
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F.3d 1331, 1357-58 (11th Cir. 2007) quoting Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691 (1962).
Plaintiffs’ Amended Complaint asks the Court to dictate the administrative details of an election, including by requiring appropriations from the state (or possibly county) budgets, setting the number of days the state must accept an absentee ballot with a postmark, and requiring changes to systems to allow all voters to submit a single absentee-ballot application for each election cycle. [Doc. 33, pp. 79-80]. The sweeping relief and focus of this litigation thus implicate at least two of the six indicia of a nonjusticiable political question.
First, the Elections Clause commits the administration of elections to coordinate departments—Congress and state legislatures—not courts. Baker, 369 U.S. at 217; U.S. CONST. Art. I, §4, cl. 1. “Plaintiffs ask this Court to assume the roles of state and federal legislatures, urging us to exercise the discretion that has been explicitly reserved to those political bodies.” Agre v. Wolf, 284 F. Supp. 3d 591, 596 (E.D. Pa. 2018) (three-judge court).
pronouncements by various departments on one question.” McMahon, 502 F.3d at 1357-58.
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The Elections Clause and the history of its adoption shows that “the Framers did not envision such a primary role for the courts.” Agre, 284 F. Supp. 3d at 599. The “manner” of conducting elections includes “notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.” Smiley v. Holm, 285 U.S. 355, 366, 52 S. Ct. 397, 399 (1932). These are reserved expressly to the state legislatures—not the courts. Instead, courts should focus on enforcement of the First and Fourteenth Amendments because they are “generally unobtrusive to States in promulgating election regulations.” Agre, 284 F. Supp. 3d at 599.
Plaintiffs’ Amended Complaint presents nonjusticiable political questions because it ultimately requires this Court to replace significant policy decisions made by Georgia legislators in Georgia’s Election Code with this Court’s own judgment about the proper administration of elections, in violation of the “textually demonstrable constitutional commitment of the issue” to state legislatures and to Congress. Baker, 369 U.S. at 217; Agre, 284 F. Supp. 3d at 620.
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Second, there are no “judicially discoverable and manageable standards” that this Court can apply to Plaintiffs’ claims. McMahon, 502 F.3d at 1357-58. Nevertheless, Plaintiffs want this Court to serve as an election administrator to oversee and manage tasks delegated by the General Assembly to state and local election officials. Here, this Court must conduct an “inquiry [which] necessarily proceeds to . . . whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker, 369 U.S. at 198. As there is no right by which to “judicially mold” an alleged protection, there is no standard for this Court to follow.
Much like cases alleging partisan gerrymandering, where courts were called upon to decide the definition of “fairness” and then “how much is too much,” Rucho v. Common Cause, 139 S. Ct. 2484, 2500-01 (2019), Plaintiffs ask this Court to take on the task of election administration by deciding many questions related to the administration of elections. See also Jacobson, 957 F.3d at 1218 (Pryor, William, J., concurring) (applying Rucho to ballotorder challenge when “[t]here are no discernable and manageable standards ‘to answer the determinative question’”). The judiciary is ill-equipped to handle these questions that involve the “complex, subtle, and professional decisions” required to conduct elections. Gilligan v. Morgan, 413 U.S. 1, 10,
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93 S. Ct. 2440, 2446 (1973) (applied to military training). Ultimately, Plaintiffs’ Amended Complaint “poses basic questions that are political, not legal.” Rucho, 139 S. Ct. at 2489; Jacobson, 957 F.3d at 1215-16; see also Ctr. for Biological Diversity v. Trump, 2020 U.S. Dist. LEXIS 58160, *47, (D. D.C. April 2, 2020) (no judicially manageable standards available for second guessing military policy).
“[N]o justiciable ‘controversy’ exists when parties seek adjudication of a political question.” Massachusetts v. EPA, 549 U.S. 497, 516, 127 S. Ct. 1438, 1452 (2007). As another judge on this Court did in a case asking that Court to “micromanage the State’s election process,” this Court should dismiss Plaintiffs’ Amended Complaint as a nonjusticiable political question. Coal. for Good Governance v. Raffensperger, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996, at *9 (N.D. Ga. May 14, 2020). IV. Plaintiffs’ Amended Complaint is a forbidden shotgun pleading.
Plaintiffs Amended Complaint also fails as a quintessential shotgun pleading expressly forbidden by courts in the Eleventh Circuit. Beckwith v. Bellsouth Telecomms., Inc., 146 Fed. Appx. 368, 371 (11th Cir. 2005) (the defining characteristic of a shotgun complaint is that it fails “to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading.”); see also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg
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Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) (“[t]he typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions”); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (“Shotgun pleadings are those that incorporate every antecedent allegation by reference into each subsequent claim for relief or affirmative defense”). Plaintiffs’ five-count, 145-paragraph Complaint undoubtedly falls within this Circuit’s definition of a shotgun pleading.
As to Plaintiffs Jennings, Woodall, and Pyne, there is no allegation in the complaint of any ties to any County Defendant other than Fulton and Gwinnett. [Doc. 33, ¶ 15]. Plaintiff The New Georgia Project is a non-profit organization with its principal place of business in Fulton County. Id. at ¶¶ 15, 17. The New Georgia Project alleges it advocates in every county in the state but alleges no specific activities that occurred in particular counties except that its registration and education activities take place in Fulton County. Id.
It is virtually impossible to determine which specific allegations Plaintiffs intend to assert against most of the County Defendants. By grouping all defendants, including connecting the Secretary of State and the
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State Board of Election members to local boards of election when those entities are appointed by entirely different methods, Plaintiffs attempt to hold all County Defendants guilty by association when the Court assumes, for the purposes of this motion, that the allegations against some actors are true. For obvious reasons, this is troubling and dangerous, and plaintiffs are forbidden from making such allegations without specifying which facts and which claims apply to each particular defendant. For example, Plaintiffs allege generally that counties have “the opportunity to interpret ‘promptly’ in distinct ways,” [Doc. 33, ¶ 165], regarding the absentee-ballot-application notification process, but do not allege that any particular County Defendants fail to provide sufficient notice to voters.
After listing 80 members of some Boards of Elections at the county level in the jurisdiction and venue section of the Amended Complaint, [Doc. 33, ¶ 26], almost all of the County Defendants are not specifically listed again, with only a handful of counties even mentioned. By contrast, there are seven paragraphs referencing Wisconsin. [Doc. 33, ¶¶ 9, 53, 94, 95, 96, 125, 159]. This Amended Complaint constitutes an improper shotgun pleading. Doe v. Pierce Cty., No. 5:19-cv-0005, 2019 U.S. Dist. LEXIS 73436, at *10 (S.D. Ga. May 1, 2019) (holding that the plaintiffs’ complaint was a shotgun
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pleading where “in the body of each count, Plaintiff fails to describe to what extent or how that count is being alleged against certain Defendants”). V. This Court lacks jurisdiction over certain County Defendants
because of improper venue. Pursuant to Rule 12(b)(3), the Bibb, Chatham, Athens-Clarke, AlbanyDougherty, Muscogee, and Richmond County Defendants further request this Court dismiss this action as venue is improper in the Northern District of Georgia as to them. Plaintiffs, all residents of the Northern District of Georgia, have cast an incredibly wide net in an attempt to lump the actions of all Defendants with one another. Because of the shotgun nature of Plaintiffs’ Amended Complaint, it is not possible to identify the specific claims against the County Defendants that are not within the Northern District of Georgia. As a result, the Amended Complaint does not properly allege a basis for this Court to exercise venue over the County Defendants that are outside of the district. Gonsalves - Carvalhal v. Aurora Bank, FSB, No. 1:14-CV-00151-SCJLTW, 2015 U.S. Dist. LEXIS 181889, at *17 (N.D. Ga. Feb. 9, 2015).
CONCLUSION The Individual Plaintiffs have not adequately alleged an injury-in-fact, or a future injury that is “certainly impending.” Without this necessary precondition, they have failed to adequately plead standing and this Court
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must dismiss their claims. Moreover, neither the Individual Plaintiffs nor The New Georgia Project have established enough remaining elements of Article III standing: traceability and redressability. It was the decision of the Plaintiffs, who have already amended their complaint once, to include only 17 of Georgia’s 159 counties—even though the laws they complained about were statewide in their application. This is ultimately fatal to their Amended Complaint even if they can establish injury in fact. And considering the Eleventh Circuit’s recent decision in Jacobson, this Court may not cure the defects of Plaintiffs’ Amended Complaint sua sponte. Thus, the Plaintiffs Amended Complaint should be dismissed for lack of standing.
But even if this Court finds the Plaintiffs have standing to bring their claims, the Amended Complaint must still be dismissed because the Plaintiffs have failed to state a claim upon which relief may be granted, and because their claims represent quintessential political questions outside the purview of this Court to consider and are presented as a shotgun pleading.
[signature blocks on following pages]
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Respectfully submitted this 26th day of June, 2020.

/s/ Bryan P. Tyson Bryan P. Tyson Georgia Bar No. 515411 btyson@taylorenglish.com Diane Festin LaRoss Georgia Bar No. 430830 dlaross@taylorenglish.com Bryan F. Jacoutot Georgia Bar No. 668272 bjacoutot@taylorenglish.com Loree Anne Paradise Georgia Bar No. 382202 lparadise@taylorenglish.com TAYLOR ENGLISH DUMA LLP 1600 Parkwood Circle, Suite 200 Atlanta, GA 30339 770.434.6868 (telephone)

/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile)
Attorneys for the Forsyth County Defendants and the AlbanyDougherty Defendants

Counsel for the Gwinnett County Defendants and the Fayette County Defendants

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/s/ Daniel W. White Daniel W. White Georgia Bar No. 153033 dwhite@hlw-law.com HAYNIE, LITCHFIELD & WHITE, PC 222 Washington St. Marietta, Georgia 30064 770-422-8900 (telephone) 770-424-8900 (facsimile)
Attorney for Cobb County Defendants

/s/ Shelley D. Momo Shelley D. Momo Assistant County Attorney Georgia Bar No. 239608 Irene B. Vander Els Assistant County Attorney Georgia Bar No. 033663 DEKALB COUNTY LAW DEPARTMENT 1300 Commerce Drive, 5th Floor Decatur, Georgia 30030 Telephone: (404) 371-3011 Facsimile: (404) 371-3024 sdmomo@dekalbcountyga.gov ivanderels@dekalbcountyga.gov

Attorneys for the DeKalb County Defendants

/s/ William J. Linkous III William J. Linkous III Georgia Bar No. 453213 wlinkous@fmglaw.com FREEMAN MATHIS & GARY LLP 100 Galleria Parkway Suite 1600 Atlanta, Georgia 30339-5948 (770) 818-0000 (telephone) (770) 937-9960 (facsimile)

/s/ Alan G. Snipes James C. Clark, Jr. Ga. Bar No.: 127145 Alan G. Snipes Ga. Bar No.: 665781 PAGE, SCRANTOM, SPROUSE, TUCKER & FORD, P.C. 1111 Bay Avenue, Third Floor Columbus, Georgia 31901 (706) 324-0251

Attorney for Rockdale County Defendants

Attorneys for Columbus-Muscogee Defendants

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/s/ William H. Noland WILLIAM H. NOLAND Georgia Bar No. 545605 william@nolandlawfirmllc.com Virginia C. Josey Georgia Bar No. 261459 virginia@nolandlawfirmllc.com Noland Law Firm, LLC 5400 Riverside Drive, Suite 205 Macon, Georgia 31210 (478)621-4980 telephone (478)621-4282 facsimile
Counsel for Macon-Bibb County Defendants

/s/ Rachel N. Mack Rachel N. Mack Staff Attorney Georgia Bar No. 104990 Wayne Brown General Counsel Georgia Bar No. 089655 AUGUSTA LAW DEPARTMENT 535 Telfair Street, Building 3000 Augusta, Georgia 30901 Telephone: (706) 842-5550 Facsimile: (706) 842-556 rmack@augustaga.gov wbrown@augustaga.gov
Attorneys for the Richmond County Defendants

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s/Kaye Woodard Burwell Georgia Bar Number: 775060 kaye.burwell@fultoncountyga.gov s/Cheryl Ringer Georgia Bar Number: 557420 cheryl.ringer@fultoncountyga.gov s/David R. Lowman Georgia Bar Number: 460298 david.lowman@fultoncountyga.gov
OFFICE OF THE FULTON COUNTY ATTORNEY Office of the County Attorney 141 Pryor Street, S.W. Suite 4038 Atlanta, Georgia 30303 Telephone: (404) 612-0246
Attorneys for the Fulton County Defendants

/s/ Gregory C. Sowell Gregory C. Sowell Georgia Bar No. 668655 COOK & TOLLEY, LLP 304 East Washington Street Athens, Georgia 30601 Phone: (706) 549-6111 Fax: (706) 548-0956 Email: gregsowell@cooktolley.com
/s/ John Matthew Hawkins John Matthew Hawkins Georgia Bar No. 120839 ATHENS-CLARKE COUNTY ATTORNEY’S OFFICE P.O. Box 427 Athens, Georgia 30603 Phone: (706) 613-3035 Fax: (706) 613-3037 Email: john.hawkins@accgov.com
Attorneys for Athens-Clarke County Defendants

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/s/ R. Jonathan Hart R. JONATHAN HART State Bar No. 333692 /s/ Jennifer R. Davenport JENNIFER R. DAVENPORT State Bar No. 330328 Chatham County Attorney’s Office P. O. Box 8161 Savannah, GA 31412 T: (912) 652 7881 F: (912) 652 7887 Email: rjhart@chathamcounty.org jdavenport@chathamcounty.org
Attorneys for the Chatham County Defendants

/s/ David A. Cole David A. Cole Georgia Bar No. 142383 Timothy M. Boughey Georgia Bar No. 832112 FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway Suite 1600 Atlanta, Georgia 30339 (T) 770.818.0000 (F) 770.937.9960 (E) dcole@fmglaw.com tboughey@fmglaw.com
Counsel for the Douglas County Defendants

/s/ Jack R. Hancock Jack R. Hancock Georgia Bar No. 322450 jhancock@fmglaw.com A. Ali Sabzevari Georgia Bar No. 941527 asabzevari@fmglaw.com Freeman Mathis & Gary, LLP 661 Forest Parkway, Suite E Forest Park, Georgia 30297 (404) 366-1000 (telephone) (404) 361-3223 (facsimile)

/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com Megan N. Martin Georgia Bar No. 140851 mmartin@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile)

Counsel for the Clayton County Defendants

Attorneys for the Newton County Defendants

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/s/ Kenneth P. Robin Kenneth P. Robin Georgia Bar No. 609798 krobin@jarrard-davis.com Patrick D. Jaugstetter Georgia Bar No. 389680 patrickj@jarrard-davis.com JARRARD & DAVIS, LLP 222 Webb Street Cumming, Georgia 30040 678-455-7150 (telephone) 678-455-7149 (facsimile) Attorneys for the Henry County Defendants
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CERTIFICATE OF COMPLIANCE Pursuant to L.R. 7.1(D), the undersigned hereby certifies that the foregoing BRIEF IN SUPPORT OF COUNTY DEFENDANTS’ CONSOLIDATED MOTION TO DISMISS has been prepared in Century Schoolbook 13, a font and type selection approved by the Court in L.R. 5.1(B).
/s/ Bryan P. Tyson Bryan P. Tyson

Case 1:20-cv-01986-ELR Document 82-1 Filed 06/26/20 Page 32 of 34
APPENDIX “County Defendants” are Benny G. Hand, Pamela Middleton, Dontravious M. Simmons, Annabelle T. Stubbs, and Frederick Williams, in their official capacities as Members of the Albany-Dougherty County Joint Board of Registration and Elections (collectively, the “Albany-Dougherty Defendants”); Jesse Evans, Willa Fambrough, Charles Knapper, and Ann Till, in their official capacities as Members of the Athens-Clarke County Board of Elections and Voter Registration (collectively, the “Athens-Clarke Defendants”); Wanda Andrews, Colin McRae, William L. Norse, Jon Pannell, and Randolph Slay, in their official capacities as Members of the Chatham County Board of Registrars (collectively, the “Chatham Defendants”); Diane Givens, Dorothy Foster Hall, Darlene Johnson, Patricia Pullar, and Carol Wesley, in their official capacities as Members of the Clayton County Board of Elections and Registrations (collectively, the “Clayton Defendants”); Fred Aiken, Neera Bahl, Jessica M. Brooks, Phil Daniell, and Darryl O. Wilson, in their official capacities as Members of the Cobb County Board of Elections and Registration (collectively, the “Cobb Defendants”); Margaret Jenkins, Linda Parker, Uhland Roberts, Diane Scrimpshire, and Eleanor White, in their official capacities as Members of the Columbus-Muscogee County Board of Elections (collectively, the “Columbus-Muscogee Defendants); Anthony

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Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, and Baoky N. Vu, in their official capacities as Members of the DeKalb County Board of Registration and Elections (collectively, the “DeKalb Defendants”); David C. Fedak, Myesha Good, Talula Martin,7 Robert Proctor, and Daniel Zimmermann, in their official capacities as Members of the Douglas County Board of Elections and Registration (collectively, the “Douglas Defendants”); Darryl Hicks, Addison Lester, and Aaron Wright, in their official capacities as Members of the Fayette County Board of Elections and Voter Registration (collectively, the “Fayette Defendants”); Matthew Blender, Barbara Luth, Randy Ingram, Joel Natt, and Carla Radzikinas, in their official capacities as Members of the Forsyth County Board of Registrations and Elections (collectively, the “Forsyth Defendants”); Mary Carole Cooney, Aaron Johnson, Vernetta Nuriddin, Kathleen Ruth, and Mark Wingate, in their official
7 Plaintiffs and the Douglas County Defendants have filed a Consent Motion to Substitute Official Capacity Defendant in which they ask to substitute Talula Martin as a defendant in her official capacity with Maurice Hurry in his official capacity on the basis that Mr. Hurry has replaced Ms. Martin on the Douglas County Board of Elections and Registration. [See Doc. 79.] As of the date of filing this Motion to Dismiss, the Court has not yet entered an order substituting Mr. Hurry for Ms. Martin as an official capacity defendant. Therefore, Ms. Martin continues to be listed as a responding party at this time, but it is the Douglas County Defendants’ intention that this Motion to Dismiss be filed on behalf of both Ms. Martin and Mr. Hurry to the extent Mr. Hurry is later substituted for Ms. Martin.

Case 1:20-cv-01986-ELR Document 82-1 Filed 06/26/20 Page 34 of 34
capacities as Members of the Fulton County Board of Registration and Elections (collectively, the “Fulton Defendants”); Beauty Baldwin, Stephen Day, John Mangano, Alice O’Lenick, and Ben Satterfield, in their official capacities as Members of the Gwinnett County Board of Registrations and Elections (collectively, the “Gwinnett Defendants”); Dan Richardson, Donna Morris-McBride, Andy Callaway, Arch Brown, and Mildred Schmelz, in their official capacities as Members of the Henry County Board of Elections and Registration (collectively, the “Henry Defendants”); Henry Ficklin, Mike Kaplan, Cassandra Powell, Herbert Spangler, and Rinda Wilson, in their official capacities as Members of the Macon-Bibb County Board of Elections (collectively, the “Macon-Bibb Defendants”); Phil Johnson, Kelly Robinson, and Dustin Thompson, in their official capacities as Members of the Newton County Board of Elections and Registration (collectively, the “Newton Defendants”); Sherry T. Barnes, Marcia Brown, Terence Dicks, Bob Finnegan, and Tim McFalls, in their official capacities as Members of the Richmond County Board of Elections (collectively, the “Richmond Defendants”); and Gerald Barger, Karen James, and Aldren Sadler, Sr., in their official capacities as Members of the Rockdale County Board of Elections and Voter Registration (collectively, the “Rockdale Defendants”).

 
 Case 1:20-cv-01986-ELR Document 83 Filed 06/26/20 Page 1 of 18

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

THE NEW GEORGIA PROJECT, et al.,

Plaintiffs,

v.

Civil Action File No.

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

1:20-cv-01986-ELR

Defendants.

STATE DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants Brad Raffensperger, in his official capacity as Secretary of

State and the Chair of the Georgia State Election Board (the “Secretary”),

State Election Board Members Rebecca N. Sullivan, David J. Worley, Anh Le,

and Matthew Mashburn (collectively, the “State Defendants”), by and

through their undersigned counsel, file this Motion to Dismiss Plaintiffs’

Amended Complaint. The Amended Complaint must be dismissed because

Plaintiffs lack standing and their allegations fail to state any claim for relief.

1. Plaintiffs lack standing. Plaintiffs challenge five aspects of Georgia

election law: (1) the statute governing incomplete absentee ballot request

forms, O.C.G.A. § 21-2-384(b)(4) (the “Absentee Applicant Notification

Case 1:20-cv-01986-ELR Document 83 Filed 06/26/20 Page 2 of 18
Statute”); (2) the statute allowing elderly, disabled, and Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) voters to request absentee ballots for an entire election cycle, O.C.G.A. § 21-2-381(a)(1)(G); (3) the United States Postal Service’s (“USPS’s”) policy of requiring postage to deliver mail (but not official election mail); (4) the statutory requirement that absentee ballots be delivered to a county election official by 7:00 p.m. on Election Day, O.C.G.A. § 21-2-386(a)(1)(F); and (5) Georgia’s statutory prohibition on third party ballot harvesting (e.g., allowing third parties to collect and return absentee ballots from voters), O.C.G.A. § 21-2-385(a) (the “Absentee Ballot Security Statute”) (collectively, the “Challenged Policies”). [Doc. 33, ¶¶ 130-38.]
To satisfy constitutional standing requirements, each Plaintiff must clearly show that each of the Challenged Policies causes them a cognizable injury. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Each plaintiff must show that it is likely, not merely speculative, that a favorable judgment will redress her injury.” Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and punctuation omitted))
The Amended Complaint satisfies neither the injury nor redressability requirements. On injury, there is no allegation that the individual Plaintiffs:
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cannot vote without assistance; have had an absentee ballot request rejected; cannot obtain stamps; cannot access a mail box to take advantage of USPS policy to mail official election mail without sufficient postage; are precluded from requesting an absentee ballot, voting with the absentee ballot, or curing any deficiency in the absentee ballot process by voting in person. [See Doc. 33, ¶¶ 20-22.] No individual plaintiff alleges she is being deprived of the right to vote.
Plaintiff NGP’s claim of associational standing based on a diversion of resources from its missions of registering and encouraging voters to vote to its mission of registering and encouraging voters to vote falls short of establishing a cognizable injury. [Id. at ¶¶ 17-19.] Spokeo, Inc., 136 S. Ct. at 1547; Lujan, 504 U.S. at 561; Jacobson v. Fla. Sec’y of State, No. 19-14552 at 21-22 (11th Cir. April 29, 2020); Ga. Republican Party v. SEC, 888 F.3d 1198, 1203 (11th Cir. 2018) (citation omitted). NGP has neither identified a single member nor alleged any specific harm. For NGP, the 2020 election will be no different than any other for the organization: it will seek to register voters and encourage them to vote. [Doc. 33, ¶ 18.] 2. Count I of Plaintiffs’ Amended Complaint does not state a claim for relief. To survive a motion to dismiss, Plaintiffs must identify a burden that the challenged law imposes on voting. Crawford v. Marion Cty. Election Bd.,
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553 U.S. 181, 205 (2008) (Scalia, J., concurring in judgment). None of the Challenged Policies impose an unconstitutional burden on the Plaintiffs, and to the extent they impose any burdens, sufficient state interests foreclose Plaintiffs’ claims. 3. None of Plaintiffs’ claims attacking Georgia’s Absentee Applicant Notification Statute under the First and Fourteenth Amendments to the Constitution and procedural due process and equal protection grounds state a claim for relief. Plaintiffs have alleged no burden on themselves under O.C.G.A. § 21-2-381(b)(4), however, but merely hypothesize a potential one for unidentified third parties. Their claims can be dismissed on this point alone.
The lack of an as-applied injury renders Plaintiffs’ claim a facial challenge, which requires them to “‘establish that no set of circumstances exists under which the [law] would be valid.’” J.R. v. Hansen, 803 F. 3d 1315, 1320 (11th Cir. 2015) (Hansen II) (citation omitted); see also Wash. State Grange v. Wash. State Republican Party, 552, U.S. 442, 449 (2008).
The Absentee Applicant Notification Statute easily survives a facial challenge. First, the law can be implemented in a constitutional manner because a county election office could, conceivably, notify a voter of an issue
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in time for the voter to cure the problem. Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1250 (11th Cir. 2013).
Second, the statute provides sufficient protections. Counties are not “at liberty to notify voters they are unable to process their absentee applications at their leisure,” [Doc. 33, ¶41]; instead, they must do so “promptly.” O.C.G.A. § 21-2-384(b)(4).
Third, “there is no fundamental right to vote by absentee ballot,” Friedman v. Snipes, 345 F. Supp.2d 1356, 1370 (S.D. Fla. 2004) (citing McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807 (1969)), much less any fundamental right to request an absentee ballot. State Defendants cannot unlawfully burden an illusory right. Cf. McDonald, 394 U.S. at 807-808 (applying Equal Protection analysis).
Fourth, in the alternative, any purported burden caused by an absentee ballot request is minute.
Finally, any purported burden is “justified by relevant and legitimate state interests.” Common Cause/Georgia v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). The State has an interest in not only preventing fraud and verifying the eligibility of voters, but also in permitting flexibility to county election officials to do their jobs without unreasonable and unnecessary interference or arbitrary deadlines.
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Plaintiffs’ procedural due process claim also is a facial challenge to the Absentee Applicant Notification Statute, because Plaintiffs fail to identify a single voter to whom the challenged statute has been unconstitutionally applied. Count IV should be dismissed because Plaintiffs cannot show that the Absentee Applicant Notification Statute always deprives voters of a “constitutionally-protected liberty interest or property interest,” and always involves a “constitutionally inadequate process” to remedy that injury. Doe v. Fla. Bar, 630 F.3d 1336, 1342 (11th Cir. 2011); see also Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Again, Plaintiffs have no constitutional interest in voting absentee. Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006) (citing McDonald, 394 U.S. at 807). In addition, under the Mathews analysis, the risk of erroneous deprivation is not high, as Plaintiffs have not shown a single instance of erroneous deprivation let alone a high risk of it. Further, the statute provides procedures to minimize erroneous deprivation. As Plaintiffs acknowledge, [Doc. 33, ¶ 39], under O.C.G.A. § 21-2-381(b)(4), any individual whose identity is not confirmable from the application information is given both notice and opportunity to cure the problem. Finally, Plaintiffs fail to articulate any straightforward additional or substitute procedural safeguards, which is fatal to their facial challenge.
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Plaintiffs also assert that Georgia’s Absentee Applicant Notification Statute violates the Equal Protection Clause of the Fourteenth Amendment. [Doc. 33, ¶ 165]. Plaintiffs’ Equal Protection challenge is facial, and because O.C.G.A. § 21-2-381 (b)(4) is facially neutral, Plaintiffs must allege facts showing discriminatory intent. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1319 n.9 (11th Cir. 2019) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). Plaintiffs fail to do so, which warrants dismissal. Plaintiffs’ reliance on Bush v. Gore, 531 U.S. 98, 104–105, 109 (2000), which was expressly confined to its facts, is misplaced. The instant case is not about counting votes but the methods by which a voter may request an absentee ballot. 4. With Counts I and II, Plaintiffs ask the Court to strike a state law allowing some voters to make a single request for absentee ballots for each election cycle under Anderson-Burdick and 26th Amendment theories.
Plaintiffs assert that the State unconstitutionally burdens voters because only those who are age 65 or older, disabled, or subject to UOCAVA may submit a single request for an absentee ballot that covers all elections in a cycle. The purported burden is not on the vote itself but instead on the means of requesting an absentee ballot before Election Day. This is not actionable. McDonald, 394 U.S. at 807-08.
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The alleged harm of this policy is purely hypothetical. Plaintiffs identified no one who has been denied the right to vote because of this law, nor have they alleged that the two Individual Plaintiffs under age 65 are incapable of making multiple requests. [Id., ¶¶ 21-22.]
Even if the risks were a burden on voting, the challenged statute is based on an important or compelling state interest. First, there is a strong interest in helping the most vulnerable. Second, the risk of fraud is reduced when unused absentee ballots are not floating throughout the State. See Billups, 554 F.3d at 1352, (describing anti-fraud efforts as “relevant and legitimate.”).
Finally, a host of rational reasons support the law. For example, younger people tend to move more frequently than older Americans, meaning absentee ballots issued for an entire election cycle may be mailed to an address where the voter no longer resides or receives mail. This alone is sufficient to uphold the law.
Count II alleges a violation of the 26th Amendment to the United States Constitution. [Doc. 33, ¶¶ 139-46.] The only federal appellate court to have addressed this issue squarely rejected Plaintiffs’ theory. See Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 2982937 at *14 (5th Cir. June 4, 2020). This Court should as well. By its terms, the 26th Amendment
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prohibits only those state laws that “den[y] or abridge[]” the right to vote. The challenged statute does not “deny or abridge” anyone’s right or opportunity to vote. See id. As discussed above and in the accompanying brief, numerous rationales support the law. 5. Plaintiffs identify no Georgia statute or policy that requires voters to place a stamp on an absentee ballot request or absentee ballot envelope but nevertheless raise Anderson-Burdick (Count I) and 24th Amendment (Count III) claims to compel Georgia taxpayers to pay all postage associated with absentee ballot requests and absentee ballots. [Doc. 33, ¶¶ 133-34, 147-50.]
The clearest reason to dismiss Count III is that no state statute or regulation raises revenue through absentee voting. A tax is imposed by a government to raise money for itself. Postage is not a requirement imposed by the State, nor does it flow to State coffers. Georgia does not require payment of anything to request or return an absentee ballot, and nothing flows to the State’s treasury. See O.C.G.A. §§ 21-2-216(a), 21-2-381, and 21-2385.
Georgia’s policy does not burden Plaintiffs. The Individual Plaintiffs have not alleged that they cannot obtain stamps. Thus, any burden they face would be “incidental” and not actionable under federal law. See Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827 (S.D. Ind. 2006), aff’d
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sub nom. Crawford v. Marion Cty. Election Bd., 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)). Plaintiffs admit the “burden” of acquiring postage is a “practical” one. [Doc. 33, ¶ 133.] Plaintiffs’ reliance on COVID-19 does not save their facial claim. The Amended Complaint alleges that the virus may make it difficult for some to vote in November, but such concerns are speculative and do not show an injury. In addition, Plaintiffs have not alleged that they are unable to take basic precautions such as wearing a mask and washing their hands before and after voting.
Plaintiffs cannot show their alleged harm (purchasing a stamp) is caused by the State, which is fatal to their claims. The USPS, not the State of Georgia, imposes postal fees, and only the USPS benefits from those fees. 39 U.S.C. §§ 3622(c)(2); 101(d); 404(b). 6. Plaintiffs allege that requiring receipt of absentee ballots by the close of polls on Election Day violates procedural due process (Count IV) and imposes an unconstitutional burden (Count I). Both claims should be dismissed.
Plaintiffs fail to show the deprivation of a constitutionally protected interest because there is no federal constitutional right to vote by absentee ballot. Plaintiffs also fail to establish a constitutionally inadequate process. Here, the risk of erroneous deprivation is low, and Plaintiffs identify only
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speculative concerns. [Doc. 33, at ¶¶22, 50, 63, 70, 71, 109, 112.] Nor do Plaintiffs articulate any meaningful additional procedural safeguards.
Extending the deadline would impose a heavy burden on the State, however, and frustrate the State’s strong interests in conducting an efficient election. Green Party of Georgia v. Kemp, 106 F. Supp. 3d 1314, 1319 (N.D. Ga. 2015). Timely certification of election results also promotes the important state interest of certainty in elections. Broughton v. Douglas Cty. Bd. of Elections, 286 Ga. 528, 528–29 (2010). Finally, requiring absentee ballots to be delivered before unofficial results begin to be publicized cuts down on the potential of voter fraud, which is an important state interest and “eliminates the problem of missing, unclear, or even altered postmarks.” See Nielsen v. DeSantis, 4:20cv236-RH-MJF (N.D. Fla. June 24, 2020).
Just as there is not a fundamental right to vote by absentee ballot, making certain that an absentee ballot is returned by election day is not a burden on voting under Anderson-Burdick. Plaintiffs’ claim that they must “accurately guess” when to mail their ballot for the county to receive it by the close of the polls on Election Day is not actionable. [Doc. 33, ¶ 135.] “It is reasonable to expect a voter, who is voting by absentee ballot, no matter the reason, to familiarize themselves with the rules governing that procedure— especially when those procedures are provided.” Thomas v. Andino, No. 3:20-
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cv-1552, 2020 WL 2617329, at *25 n.25. (D.S.C. May 25, 2020). Plaintiffs’ alleged injury that voting early deprives them of late-breaking information is equally meritless. [Doc. 33, ¶ 136.] Voters choose to vote early and therefore choose to vote with the information they have at the time. Third, Plaintiffs claim that increases in mail absentee ballots coupled with “unreliable mail service” caused by a budget crisis at USPS and COVID-19 will lead to delays in mail delivery. [Id. at ¶ 112.] Neither of these factors are acts of the State. Moreover, Plaintiffs’ requested relief is arbitrary. They do not maintain that five additional business days will be sufficient to ensure absentee ballots are timely returned, further warranting dismissal of this claim.
Finally, the State has strong interests in the current deadlines. Requiring absentee ballots to arrive by the close of the polls on Election Day protects against fraud and allows county election officials to timely complete the ballot-counting process before the certification deadline. 7. Counts I and VI of Plaintiffs’ Amended Complaint seek to strike, as facially unconstitutional, the Absentee Ballot Security Statute, which limits the types of persons who may “mail[] or deliver[]” absentee ballots for voters. O.C.G.A. § 21-2-385(a); [Doc. 33, ¶¶ 126-38, 167-72.] Count VII claims the same statute violates the Voting Rights Act. [Id. at ¶¶ 173-80.] Each facial challenge fails as a matter of law.
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Georgia law does not require voters to personally mail or deliver their absentee ballot to a county election office. O.C.G.A. § 21-2-395(a); Ga. Comp. R. & Regs. r. 183-1-14-0.6-.14. Instead, any voter may also rely on an array of family members or a roommate to deliver or mail the ballot. Id. Voters in particular circumstances may also rely on “caregiver[s]” or employees of the jail or detention center to deliver their ballots, regardless of whether such person lives with the voter. Id. Further, voters confined to a hospital on Election Day can have a registrar or absentee ballot clerk personally deliver and return their absentee ballots. Id.
None of the individual Plaintiffs allege that they are unable to vote without assistance. [Doc. 33, ¶¶ 20-22.] NGP, however, seeks to (1) “collect[] and deliver[] completed, signed, and sealed absentee ballots,” [id. at ¶ 19]; and (2) make sure that voters “prepared the ballot and envelope correctly.” [Id. at ¶ 21.] Plaintiffs also allege that “over 64,000 Georgians” live alone and do not have caregivers but fail to allege that those voters lack family members or a nearby mailbox. [Id. at 39]. Plaintiffs also claim that “27.2% of adults in Georgia who have a disability,” and that about “one-tenth” of disabled people nationwide say they need assistance in voting. [Id. at ¶¶ 7475 (emphasis added).] But, Plaintiffs ignore (and do not challenge) O.C.G.A. § 21-2-385(b), which allows disabled voters to “receive assistance in preparing
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his or her ballot from any person of the elector’s choice.” These allegations fail to state a claim under First Amendment and Anderson-Burdick theories.
The Supreme Court rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 375 (1968). By this standard, O.C.G.A. § 21-2-385(a) falls outside of these recognized limitations because it does not regulate speech. The statute only prohibits NGP from taking a ballot from a voter and deliver or mail it, which does not involve speech or impinge on the right of anyone to associate with NGP.
Even if this Court decided that the physical act of delivering an absentee ballot to a county election office or mailbox constitutes speech, that speech is, at best, incidental. Consequently, the Absentee Ballot Security Statute must be upheld if there is an “important governmental interest” to justify the regulation. O’Brien, 391 U.S. at 376. There are numerous, important reasons that justify the law, including protection against voter fraud, promoting voter confidence, and the orderly administration of the election process. See Burdick 504 U.S. at 433. And, recent examples of absentee voter fraud prove that the Supreme Court was correct to distinguish between pre-election speech and gathering completed ballots.
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Plaintiffs have no burden. To the extent that any burden exists, it is slight and insufficient to overcome important government interests, which is fatal to Plaintiffs’ Anderson-Burdick claim (Count I).
Plaintiffs’ Voting Rights Act (“VRA”) claim fails because Plaintiffs overlooked Georgia law that is directly on point and consistent with the VRA. Specifically, Plaintiffs allege that the restrictions on assisting voters with their absentee ballots violates Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508. Georgia law expressly addresses this in the same statute that Plaintiffs cite. O.C.G.A. § 21-2-385(b) provides that “[a] physically disabled or illiterate elector may receive assistance in preparing his or her ballot from any person of the elector's choice other than such elector's employer or the agent of such employer or an officer or agent of such elector's union . . . .” O.C.G.A. § 21-2-385(b). This addresses each of the criteria set forth in section 208 of the VRA and shows that Plaintiffs’ Count VII must be dismissed.
In consideration of the foregoing, and as more fully set forth in the attached memorandum, State Defendants respectfully ask the Court to dismiss Plaintiffs’ Amended Complaint in its entirety, with prejudice, as to State Defendants and grant State Defendants such other relief as the Court deems just and proper.
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Respectfully submitted this 26th day of June, 2020.
/s/ Josh Belinfante Josh Belinfante Georgia Bar No. 047399 jbelinfante@robbinsfirm.com Vincent Russo Georgia Bar No. 242628 vrusso@robbinsfirm.com Carey Miller Georgia Bar No. 976240 cmiller@robbinsfirm.com Brian Lake Georgia Bar No. 575966 blake@robbinsfirm.com Alexander Denton Georgia Bar No. 660632 adenton@robbinsfirm.com Melanie Johnson Georgia Bar No. 466756 mjohnson@robbinsfirm.com Robbin Ross Alloy Belinfante Littlefield LLC 500 14th Street NW Atlanta, GA 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250
Christopher M. Carr Attorney General GA Bar No. 112505 Brian K. Webb Deputy Attorney General GA Bar No. 743580 Russell D. Willard Senior Assistant Attorney General GA Bar No. 760280 State Law Department
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Case 1:20-cv-01986-ELR Document 83 Filed 06/26/20 Page 17 of 18 40 Capitol Square, S.W. Atlanta, Georgia 30334 Attorneys for State Defendants
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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing STATE DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT was prepared double-spaced in 13-point Century Schoolbook font, approved by the Court in Local Rule 5.1(C).
/s/Josh Belinfante Josh Belinfante

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

THE NEW GEORGIA PROJECT, et al.,

Plaintiffs,

v.

Civil Action File No.

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

1:20-cv-01986-ELR

Defendants.

STATE DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Defendants Brad Raffensperger, in his official capacity as Secretary of

State and the Chair of the Georgia State Election Board (the “Secretary”),

State Election Board Members Rebecca N. Sullivan, David J. Worley, Anh Le,

and Matthew Mashburn (collectively, the “State Defendants”), by and

through their undersigned counsel, file this Brief in Support of their Motion

to Dismiss Plaintiffs’ Amended Complaint.

I. Facts As part of their “four pillars” strategy1, Plaintiffs challenge five aspects

1 Plaintiffs’ counsel explains their partisan national strategy on a website: https://www.democracydocket.com/4pillars/.

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of voting in Georgia: (1) the statute governing incomplete absentee ballot request forms, O.C.G.A. § 21-2-384(b)(4) (the “Absentee Applicant Notification Statute”); (2) the statute allowing elderly, disabled, and Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) voters to request absentee ballots for an entire election cycle, O.C.G.A. § 21-2381(a)(1)(G); (3) the United States Postal Service’s (“USPS’s”) policy of requiring postage to deliver mail (but not official election mail); (4) the statutory requirement that absentee ballots be delivered to a county election official by 7:00 p.m. on Election Day, O.C.G.A. § 21-2-386(a)(1)(F); and (5) Georgia’s statutory prohibition on third party ballot harvesting (e.g., allowing third parties to collect and return absentee ballots from voters), O.C.G.A. § 21-2-385(a) (the “Absentee Ballot Security Statute”) (collectively, the “Challenged Policies”). [Doc. 33, ¶¶ 130-38.]
No individual plaintiff alleges she is being deprived of the right to vote. Plaintiff Jennings maintains that she could “benefit” from someone collecting her ballot in light of COVID-19, but does not allege she lacks access to a mailbox or is unable to obtain stamps. [Id. at ¶ 20.] Plaintiff Woodall, who states that she “lives alone a senior facility,” neither claims that the facility lacks a mailbox, nor that numerous caregivers could not deliver her ballot, nor that she lacks stamps. [Id. at ¶ 21.] Plaintiff Pyne, who has been
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temporarily residing in Florida for years, makes no claim of needing assistance of any kind, but instead worries that she cannot return her absentee ballot by election day. [Id. at ¶ 22.] NGP is an advocacy group that describes its mission as “registering Georgians to vote and . . . helping them become more civically engaged citizens,” which includes assisting Georgians “exercise the franchise.” [Id. at ¶ 17.] II. Standard of Review
The standard of review applied on a motion to dismiss is that a complaint must “state a claim to relief that is plausible on its face,” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007), and the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Factual allegations are presumed true, but not legal conclusions when they are “couched as [] factual allegation[s].” Iqbal, 556 U.S. at 678-79. 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). The Court may not consider, however, “affidavits and other evidence produced on application for a preliminary injunction.” Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947). Threshold issues of jurisdiction must be addressed prior to taking any other
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action. Georgia Shift v. Gwinnett Cty., No. 1:19-cv-01135-AT, 2020 WL 864938 at *2 (N.D. Ga. Feb. 12, 2020). III. Argument and Citation to Authority
This case is not about counting votes, as Plaintiffs do not allege they are prevented from voting. Plaintiffs lack standing, and their attacks on each of the Challenged Policies fail to state a claim for which recovery may be had.
A. Plaintiffs Lack Article III Standing To satisfy constitutional standing requirements, each Plaintiff must clearly show that each of the Challenged Policies causes them a cognizable injury. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Actionable injuries must be (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Lewis, 944 F.3d 1287, 1296 (11th Cir. 2019) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and punctuation omitted)). The injury must also be “fairly . . . trace[able] to the defendant’s conduct,” as opposed to the action of an absent third party. Id. Finally, each plaintiff must show that it is likely, not merely speculative, that a favorable judgment will redress her injury.” Id. As discussed more fully below, the Amended Complaint satisfies neither the injury nor redressability requirements. On injury, there is no allegation that the individual Plaintiffs: cannot vote without assistance; have
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had an absentee ballot request rejected; cannot obtain stamps; cannot access a mail box to take advantage of USPS policy to mail official election mail without sufficient postage; are precluded from requesting an absentee ballot, voting with the absentee ballot, or curing any deficiency in the absentee ballot process by voting in person. [See Doc. 33, ¶¶ 20-22.]
Nonsensically, Plaintiff NGP claims associational standing because it must divert resources from its missions of registering and encouraging voters to vote to its mission of registering and encouraging voters to vote. [Id. at ¶¶ 17-19.] These allegations fall short of establishing a cognizable injury. Associational standing requires “specific allegations establishing that at least one identified member ha[s] suffered or [will] suffer harm.” Ga. Republican Party v. SEC, 888 F.3d 1198, 1203 (11th Cir. 2018) (citation omitted). NGP has neither identified a single member nor alleged any specific harm.
NGP fares no better on its diversion of resources theory, where precedent requires the threatened future injury be a “realistic danger” that is not “merely hypothetical or conjectural.” Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008). Recent precedent makes clear that a party cannot simply complain they must divert resources, they must allege (1) what it is diverting resources from; and (2) how that diversion is connected to the alleged wrongful conduct. Jacobson v. Fla. Sec’y of State,
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No. 19-14552 at 21-22 (11th Cir. April 29, 2020). NGP does neither, and its vague, formulaic statement that the Challenged Policies cause it to divert resources is insufficient to confer standing. [Doc. 33, ¶¶ 17-18.] Spokeo, Inc., 136 S. Ct. at 1547; Lujan, 504 U.S. at 561. Indeed, for NGP, the 2020 election will be no different than any other for the organization: it will seek to register voters and encourage them to vote. [Doc. 33, ¶ 18.] These threshold infirmities warrant dismissing the Amended Complaint.
B. The Anderson-Burdick Analysis. In Count I, Plaintiffs claim that each of the Challenged Policies unconstitutionally burdens their right to vote, or for NGP, causes it to expend resources to satisfy its mission. [Id. at ¶¶ 126-38.] To survive a motion to dismiss, Plaintiffs must first identify a burden that the challenged law imposes on voting. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring in judgment). If the imposed burden is “severe,” the law must be narrowly tailored to achieve a compelling state interest, but if the challenged statute imposes “only ‘reasonable, nondiscriminatory restrictions,’” the state law must be upheld so long as the State’s interest is “important.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citation omitted). Anderson-Burdick’s balancing is required because “there must be a substantial regulation of elections if they are to be fair and honest and if
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[there is to be] some sort of order, rather than chaos.” Storer v. Brown, 415 U.S. 724, 730 (1974); see also Burdick, 504 US at 433 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). None of the Challenged Policies impose an unconstitutional burden on the Plaintiffs, and to the extent they impose any burdens, sufficient state interests foreclose Plaintiffs’ claims.
C. Georgia’s Absentee Applicant Notification Statute. Plaintiffs challenge Georgia’s Absentee Applicant Notification Statute on several grounds—(1) First and Fourteenth Amendment, Anderson-Burdick analysis (Count I); (2) Procedural Due Process (Count IV); and (3) Equal Protection (Count V)—but none state a claim for which relief may be had.
i. Count I: Anderson-Burdick and the First and Fourteenth Amendments.
Plaintiffs’ alleged injury centers on a single portion of a single statute, O.C.G.A. § 21-2-381(b)(4), which states: “If the registrar or clerk is unable to determine the identity of the elector from information given on the application, the registrar or clerk should promptly write to request additional information.” O.C.G.A. § 21-2-381(b)(4) (emphasis added). [See Doc. 33, ¶¶ 35–45 (quoting O.C.G.A. § 21-2-381(b)(4)).]2 The Individual Plaintiffs,
2 The statute—and Plaintiffs’ claim—only applies when the identity of the elector cannot be confirmed, not instances in which the voter is ineligible to
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however, do not allege that their future absentee ballot requests will be rejected under this statute. Instead, Plaintiffs rely on unidentified other “[v]oters” who are hypothetically notified “late in the process, or not at all . . . [and] may no longer be able to vote absentee” or “may have no choice at all” due to COVID-19, and/or the hypothetical voters’ disability, lack transportation, or “inflexible work schedules.”3 [Doc. 33, ¶ 131 (emphasis added).] In short, Plaintiffs have alleged no burden on themselves, but merely hypothesize a potential one for unidentified third parties. Their claims can be dismissed on this point alone.
The lack of an as-applied injury renders Plaintiffs’ claim as a facial challenge, as it seeks to “invalidate a law even though [the law’s] application in the case under consideration may be constitutionally unobjectionable.” Jacobs v. The Fla. Bar, 50 F.3d 901, 905-906 (11th Cir. 1995) (citations and internal quotation marks omitted). Facial challenges are generally disfavored and “[a] plaintiff challenging a law as facially unconstitutional ‘must
vote in the election; the signature on the application does not appear to match the signature on file; or the voter is not registered to vote. In those instances, different paragraphs of the same subsection apply. See O.C.G.A. §§ 21-2-381(b)(3) and 21-2-381(b)(5). 3 Georgia law requires that employers permit employees to take up to two hours of “time off from his or her employment to vote[.]” O.C.G.A. § 21-2-404.
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establish that no set of circumstances exists under which the [law] would be valid.’” J.R. v. Hansen, 803 F. 3d 1315, 1320 (11th Cir. 2015) (Hansen II) (citation omitted); see also Wash. State Grange v. Wash. State Republican Party, 552, U.S. 442, 449 (2008).
The Absentee Applicant Notification Statute easily survives a facial challenge. First, the law can be implemented in a constitutional manner because a county election office could, conceivably, notify a voter of an issue in time for the voter to cure the problem. Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1250 (11th Cir. 2013) (facial challenges fail when statute could be implemented in a constitutional manner).
Second, the statute provides sufficient protections. Counties are not “at liberty to notify voters they are unable to process their absentee applications at their leisure,” [Doc. 33, ¶41]; instead, they must do so “promptly.” O.C.G.A. § 21-2-384(b)(4). Federal law presumes the law is followed as written, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926), and conclusory allegations to the contrary will not withstand judicial scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Third, “there is no fundamental right to vote by absentee ballot,” Friedman v. Snipes, 345 F. Supp.2d 1356, 1370 (S.D. Fla. 2004) (citing McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807 (1969)),
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much less any fundamental right to request an absentee ballot. State Defendants cannot unlawfully burden an illusory right. Cf. McDonald, 394 U.S. at 807-808 (applying Equal Protection analysis).
Fourth, in the alternative, any purported burden caused by an absentee ballot request is minute. The Absentee Applicant Notification Statute does not preclude a voter from: (1) remedying the deficiency and voting absenteeby-mail; (2) utilizing early voting (absentee-in-person); or (3) voting on Election Day. See McDonald, 394 U.S. at 808 (applying rational basis review where challenged absentee statute did not preclude plaintiffs from voting). These are not high burdens, Plaintiffs have not alleged they are, and Georgia voters have more opportunities to vote than many Americans.4
Finally, any purported burden is “justified by relevant and legitimate state interests.” Billups, 554 F.3d at 1352. The State has an interest in not only preventing fraud and verifying the eligibility of voters, but also in
4 Georgia is one of twenty-nine states with in-person voting, but also provides no excuse absentee-by-mail voting. Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, National Conference of State Legislatures, Table 1, https://www.ncsl.org/research/elections-andcampaigns/vopp-table-1-states-with-no-excuse-absentee-voting.aspx. Georgia law also requires that elections have at least sixteen days of early voting. O.C.G.A. § 21-2-385(d)).
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permitting flexibility to county election officials to do their jobs without unreasonable and unnecessary interference or arbitrary deadlines.5
ii. Count IV: Procedural Due Process. Plaintiffs’ procedural due process claim (Count VI) is another “disfavored” facial challenge to the Absentee Applicant Notification Statute, because Plaintiffs fail to identify a single voter to whom the challenged statute has been unconstitutionally applied. Wash. State Grange, 552 U.S. at 449; [Doc. 33, ¶6]; see also Martin v. Kemp, 341 F. Supp. 3d 1326, 1337 (N.D. Ga. 2018) (plaintiffs raised a facial challenge). Count IV fails because Plaintiffs cannot show that the Absentee Applicant Notification Statute always deprives voters of a “constitutionally-protected liberty interest or property interest,” and always involves a “constitutionally inadequate process” to remedy that injury. Doe v. Fla. Bar, 630 F.3d 1336, 1342 (11th Cir. 2011); see also Mathews v. Eldridge, 424 U.S. 319, 335, (1976). Again, Plaintiffs have no constitutional interest in voting absentee. Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. Mar. 13, 2006) (citing McDonald, 394 U.S. at 807). In addition, under the Mathews analysis, the risk of erroneous deprivation is not high, as Plaintiffs have not
5 Plaintiffs themselves offer no proposed method to address incomplete absentee ballot requests. [See Doc. 33 at 80.]
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shown a single instance of erroneous deprivation let alone a high risk of it.6 Further, the statute provides procedures to minimize erroneous deprivation. As Plaintiffs acknowledge, [Doc. 33, ¶ 39], under O.C.G.A. § 21-2-381(b)(4), any individual whose identity is not confirmable from the application information is given both notice and opportunity to cure the problem. This post-deprivation safeguard provides an additional reason to dismiss Count IV. See McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994).
Finally, Plaintiffs fail to articulate any straightforward additional or substitute procedural safeguards, which is fatal to their facial challenge. [See Doc. 33, ¶¶6, 131, 156.] Uniformity in timing is not a cure because any deadline, however generous, can be exceeded.7
iii. Count V: Equal Protection. Plaintiffs also assert that Georgia’s Absentee Applicant Notification Statute violates the Equal Protection Clause of the Fourteenth Amendment. [Doc. 33, ¶ 165]. Plaintiffs erroneously premise their argument on Bush v. Gore, 531 U.S. 98, 104–105, 109 (2000), which was expressly “limited to the
6 Plaintiffs contend in 2018 “nearly 1,000 absentee ballot applications were rejected” but do not allege these rejections were erroneous or were not later cured by voters’ submission of additional information. [Doc. 33, ¶ 3.] 7 Plaintiffs’ nondescript remedy hinders the State Defendants’ ability to determine the administrative burden of implementing it, and the State Defendants reserve the right to more fully respond if Plaintiffs further develop their claim.
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present circumstances.” Plaintiffs fail to acknowledge this fact and the fact that Bush v. Gore, unlike this case, concerned instances where one person’s vote may be counted differently than another’s. This case is not about counting votes at all, but the methods by which a voter may request an absentee ballot.
Beyond this distinction, there is a rational basis for the challenged law. See Abbott, 2020 WL 2982937 at *9-10 (applying McDonald and the rational basis test). Plaintiffs’ Equal Protection challenge is facial, and because O.C.G.A. § 21-2-381 (b)(4) is facially neutral, Plaintiffs must allege facts showing discriminatory intent. See Lee, 915 F.3d at 1319 n.9 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). Plaintiffs fail to do so, which warrants dismissal.
D. Requesting Absentee Ballots for Each Election. Counts I and II seek to strike a state law that allows some voters to request an absentee ballot once for each election in the cycle under AndersonBurdick and 26th Amendment theories, respectively.
i. The Anderson-Burdick Analysis (Count I). Plaintiffs assert that the State unconstitutionally burdens voters because only those who are age 65 or older, disabled, or subject to UOCAVA may submit a single request for an absentee ballot that covers all elections in
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a cycle. Here, too, the purported burden is not on the vote itself but instead on the means of requesting an absentee ballot before Election Day. This is not actionable. McDonald, 394 U.S. at 807-08.
Worse yet, the alleged harm of this policy is purely hypothetical; it relies on Plaintiffs’ unfounded speculation that persons who request an absentee ballot for each election “are at greater risk” of something going wrong. [Doc. 33, ¶ 132.] But Plaintiffs identified no one who has been denied the right to vote because of this law, nor have they alleged that the two Individual Plaintiffs under age 65 (Woodall and Pyne) are incapable of making multiple requests. [Id., ¶¶ 21-22.] These manufactured “risks” do not articulate a cognizable claim: “[t]he Constitution is not offended simply because some groups find voting more convenient than” others. Abbott, 2020 WL 2982937 at *11 (5th Cir. Jun. 4, 2020) (quoting McDonald, 394 U.S. at 810).
Even if the risks were a burden on voting, the challenged statute is based on an important or compelling state interest. First, there is a strong interest in helping the most vulnerable. “‘Ironically, it is [Georgia’s] willingness’ to afford flexibility to older [and disabled] citizens ‘that has provided [Plaintiffs] with a basis for arguing that the provision . . .’” is unconstitutional. Abbott, 2020 WL 2982937 at *11 (quoting McDonald, 394
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U.S. at 810–811). Second, the risk of fraud is reduced when unused absentee ballots are not floating throughout the State. See Billups, 554 F.3d at 1352, (describing anti-fraud efforts as “relevant and legitimate.”
Finally, a host of rational reasons support the law. For example, younger people tend to move more frequently than older Americans, meaning absentee ballots issued for an entire election cycle may be mailed to an address where the voter no longer resides or receives mail.8 This alone is sufficient to uphold the law.
ii. The 26th Amendment Claim (Count II) Count II alleges a violation of the 26th Amendment to the United States Constitution. [Doc. 33, ¶¶ 139-46.] The only federal appellate court to have addressed this issue squarely rejected Plaintiffs’ theory. See Abbott, 2020 WL 2982937 at *14.9 This Court should as well.
8 United States Census, Young Adult Migration: 2007-2009, 2010-2012: American Community Surveys, (March 2015) available at https://www.census.gov/content/dam/Census/library/publications/2015/acs/acs -31.pdf. 9 The Amended Complaint cites an earlier trial-court order from Abbott, which the Fifth Circuit decided was erroneous and described as “an order that will be remembered more for audacity than legal reasoning.” [Doc. 33 at 63]. Abbott, 2020 WL 2982937, at *1.
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The 26th Amendment provides, in relevant part: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” U.S. Const. amend. XXVI (emphasis added). By its terms, the 26th Amendment prohibits only those state laws that “den[y] or abridge[]” the right to vote. The statute expands opportunities for some voters to request multiple absentee ballots, but all voters can request an absentee ballot for any election. O.C.G.A. § 21-2-381(a)(1)(G). Put simply, the challenged statute does not “deny or abridge” anyone’s right or opportunity to vote. See Abbott, 2020 WL 2982937 at *14 (deciding a more restrictive law was constitutional because “qualified voters [could] still exercise the franchise”).
Other cases have rejected similar challenges by applying a rational basis test to questions about absentee ballots.10 See Abbott, 2020 WL 2982937 at *14; Walgren v. Bd. of Selectmen of Town of Amherst, Mass., 373 F. Supp. 624, 634 (D. Mass. 1974), aff’d sub nom. Walgren v. Bd. of Selectmen
10 Cases cited in Plaintiffs’ Amended Complaint, however, are easily distinguishable, as none involved absentee voting. [See Doc. 33 at 63 (citing Worden v. Mercer Cty. Bd. Of Elections, 294 A.2d 233, 243 (N.J. 1972); Colo. Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972); and League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 122123 (N.D. Fla. 2018)].
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of Town of Amherst, 519 F.2d 1364 (1st Cir. 1975). Under this analysis, the statute must be upheld unless “no grounds can be conceived to justify the different treatment of voters,” McDonald, 394 U.S. at 809, and the “policy merits of [Georgia’s] voting procedures [are] not before [this] court.” . . . Abbott, 2020 WL 2982937 at *13 (citing Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993)). As discussed above, numerous rationales support the law.
E. Postage (Counts I and III). Plaintiffs identify no Georgia statute or policy that requires voters to place a stamp on an absentee ballot request or absentee ballot envelope. Nevertheless, they raise Anderson-Burdick (Count I) and 24th Amendment (Count III) claims to compel Georgia taxpayers to pay all postage associated with absentee ballot requests and absentee ballots. [Doc. 33, ¶¶ 133-34, 14750.] No Court has endorsed Plaintiffs’ radical theory, and this Court should not be the first.
i. Georgia’s Decision Not To Prepay Voters’ Postage Is Not A Poll Tax (Count III).
The U.S. Constitution prohibits a state from denying the right of citizen to vote in a federal election “by reason of failure to pay any poll tax or other
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tax.” U.S. Const. amend. XXIV (emphasis added).11 The clearest reason to dismiss Count III is that no state statute or
regulation raises revenue through absentee voting. While Plaintiffs offer no definition of what constitutes a tax under the United States Constitution, binding precedent has. Under federal law, a tax is an “enforced contribution to provide for the support of the government.” United States v. State Tax Comm’n, 421 U.S. 599, 606 (1975) (quoting United States v. La Franca, 282 U.S. 568, 572 (1931)); see also N.J. v. Anderson, 203 U.S. 483, 492 (1906) (“[A] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the government.”). In other words, a tax is imposed by a government to raise money for itself. Postage is not a requirement imposed by the State, nor does it flow to State coffers. In fact, postage is a service charge and not a tax. In re Adams, 40 B.R. 545, 548 (E.D. Pa. 1984).
11 There is no difference in the definition of a per se poll tax under either the 14th or 24th Amendment. See, e.g., Johnson v. Governor of State of Fla., 405 F.3d 1214, 1217 (11th Cir. 2005) (summarily disposing of plaintiffs’ poll tax claims brought under the 14th Amendment, the 24th Amendment, and section 10 of the Voting Rights Act). As such, Plaintiffs’ poll tax claim under the 14th Amendment fails for all the reasons discussed herein. In addition, Plaintiffs claims fails they have not alleged that Defendants acted with discriminatory intent or purpose and shown a discriminatory impact. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 1571 (11th Cir. 1984).
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(distinguishing between taxes and charges); In re Lorber Indus. of Cal., Inc., 675 F.2d 1062, 1067 (9th Cir. 1982) (deciding mandatory fees are not taxes).
In Harman v. Forssenius, 380 U.S. 528, 542 (1965), the seminal poll tax case under the 24th Amendment, Virginia required voters to either pay an express poll tax or complete a cumbersome and burdensome “certificate of residence.” 380 U.S. at 532. The Court concluded the choice was a false one, and it struck the poll tax statute as unconstitutional. Id. Here, Plaintiffs do not allege that voting in person (early or on Election Day) is inherently burdensome and necessitates the use of U.S. Mail. Also, unlike Virginia in Harman, Georgia does not require payment of anything to request or return an absentee ballot, and nothing flows to the State’s treasury. See O.C.G.A. §§ 21-2-216(a) (elector’s qualifications); 21-2-381 (application for absentee ballot); 21-2-385 (voting by absentee electors).
Unsurprisingly, similar polices in other states have easily withstood similar challenges. See League of Women Voters of Ohio v. LaRose, No. 2:20cv-01638-MHW-EPD (S.D. Ohio Apr. 3, 2020) (Slip Op. at 25); Bruce v. City of Colorado Springs, 971 P.2d 679, 685 (Colo. App. 1998) (deciding a requirement that voters “affix a stamp to their ballots” is reasonable and not an unconstitutional poll tax). Such should be the case here as well.
ii. Georgia’s Postage Policy Imposes No Unconstitutional Burden
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(Count I). Georgia’s policy does not burden Plaintiffs. The Individual Plaintiffs have not alleged that they cannot obtain stamps. Thus, any burden they face would be “incidental” and not actionable under federal law. See Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 827 (S.D. Ind. 2006), aff’d sub nom. Crawford, 472 F.3d 949 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (“It is axiomatic that “(e)lection laws will invariably impose some burden upon individual voters,” . . . [but] the cost of time and transportation cannot plausibly qualify as a prohibited poll tax . . .”) (quoting Burdick, 504 U.S. at 433). In fact, Plaintiffs agree and admit the “burden” of acquiring postage is a “practical” one. [Doc. 33, ¶ 133.] Plaintiffs’ reliance on COVID-19 does not save their facial claim either. The Amended Complaint alleges that the virus may make it difficult for some to vote in November, but such concerns are speculative and do not show an injury. In addition, Plaintiffs have not alleged that they are unable to take basic precautions such as wearing a mask and washing their hands before and after voting. Other courts have held that such incidental burdens to voting are not actionable. See Veasey v. Abbott, 796 F.3d 487, 268 (5th Cir. 2015) (photo identification requirement); Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012) (same) Common Cause/Georgia v. Billups, 439 F. Supp. 2d 1294, 1335
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(N.D. Ga. 2006) (same); Ind. Democratic Party, 458 F. Supp. 2d at 827 (“the imposition of tangential burdens does not transform a regulation into a poll tax”). This incidental burden is no more actionable than the State’s decision not to reimburse voters for gas, bus fare, or cab fare utilized to drive to polling locations.
Moreover, while the Amended Complaint alleges that the virus may make it difficult for some to vote in November, such concerns are speculative and do not show an injury. Plaintiffs have also not alleged that they are unable to take basic precautions such as wearing a mask and washing their hands before and after voting. The State also has an important interest in not pre-paying postage: it is in the midst of a budget crisis of historical proportions. Curling v. Raffensperger, No. 1:17-cv-2989-AT (N.D. Ga. May 26, 2020) (order denying motions for attorney’s fees and expenses).12 Thus, Plaintiffs’ Anderson-Burdick claim also fails.
iii. Plaintiffs have failed to plead causation as the State does not impose, control, or otherwise require the use of a stamp to mail in a ballot.
Plaintiffs cannot show their alleged harm (purchasing a stamp) is caused by the State, which is fatal to their claims. The USPS, not the State of
12 A copy of this Order is attached as Exhibit A.
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Georgia, imposes postal fees, and only the USPS benefits from those fees. 39 U.S.C. §§ 3622(c)(2); 101(d); 404(b). The State cannot impose a tax on it, and it neither controls nor benefits from postal fees. Similarly, voters in need of a stamp choose to vote absentee by mail; they are not compelled to do so.
F. Election Day Deadline Plaintiffs allege that requiring receipt of absentee ballots by the close of polls on Election Day violates procedural due process (Count IV) and imposes an unconstitutional burden (Count I). Both claims should be dismissed.
i. Procedural Due Process (Count IV) To show a violation of procedural due process, Plaintiffs must allege the challenged policy (1) deprives them of a constitutional right to vote; (2) is a state action; and (3) constitutes constitutionally inadequate process. Grayden v. Rhodes, 345, F.3d 1225 1232 (11th Cir. 2003). Plaintiffs have failed to allege any of these required elements. First, Plaintiffs fail to show the deprivation of a constitutionallyprotected interest because, as previously discussed, there is no federal constitutional right to vote by absentee ballot. McDonald, 394 U.S. at 807-08. Second, Plaintiffs fail to establish a constitutionally inadequate process. This requires an analysis of the right at issue, weighed against the risk of erroneous deprivation, the value of additional procedural safeguards,
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and the state’s interest or burden of implementing those safeguards. Mathews, 424 U.S. at 334. Here, the risk of erroneous deprivation is low, and Plaintiffs identify only speculative concerns. [Doc. 33, at ¶¶22, 50, 63, 70, 71, 109, 112.]
Next, Plaintiffs fail to articulate any meaningful additional procedural safeguards. It is anyone’s guess why an absentee ballot receipt deadline of 5 days after Election Day is constitutional but Election Day itself is unconstitutional. Moreover, Plaintiffs do not allege that the “generality of cases” are those voters whose absentee ballots arrive after Election Day. Mathews, 424 U.S. at 344.
Extending the deadline, however, would impose a heavy burden on the State and frustrate the State’s strong interests in conducting an efficient election. Green Party of Georgia v. Kemp, 106 F. Supp. 3d 1314, 1319 (N.D. Ga. 2015). After Election Day, elections officials need time to send out required cure notifications for absentee ballots, deal with provisional ballots, conduct post-election audits, certify election results and prepare and plan for any runoffs. Delaying these actions to count late absentee ballots would be detrimental; slowing the State’s efforts to finalize the last election and plan for the next.
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Timely certification of election results also promotes the important state interest of certainty in elections, as there is a “strong desire to avoid election uncertainty and the confusion and prejudice which can come in its wake.” Broughton v. Douglas Cty. Bd. of Elections, 286 Ga. 528, 528–29 (2010). This certainty would be compromised if late absentee ballots were counted, as voters’ confidence in the elections process would be undermined by a late change in the procedures they know and plan for. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see also Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). Finally, requiring absentee ballots to be delivered before unofficial results begin to be publicized cuts down on the potential of voter fraud, which is an important state interest and “eliminates the problem of missing, unclear, or even altered postmarks.” See Nielsen v. DeSantis, 4:20cv236-RH-MJF (N.D.Fla. June 24, 2020) (Order Denying Preliminary Injunction).
ii. Anderson-Burdick (Count I) As shown, there is no fundamental right to vote by absentee ballot. McDonald, 394 U.S. at 807. Likewise, there is certainly no burden on making sure the absentee ballot is returned by the close of polls on Election Day. This is particularly true given the fact that absentee voters can start receiving
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ballots by mail as early as forty-five days prior to election day, O.C.G.A. § 212-384(a)(2), and absentee ballot requests can be made as early as 180 days before a primary election or the November election, O.C.G.A. § 21-2381(a)(1)(A). Georgia voters have numerous opportunities to vote absentee— return by mail, at a county drop box, hand-delivery to the county elections office, and early in-person voting. See O.C.G.A. § 21-2-385; Ga. Comp. R. & Regs. r. 183-1-14-0.6-.14. Moreover, absentee voters can still vote in person after requesting and receiving their absentee ballot. See O.C.G.A. § 21-2-388.
Plaintiffs’ advance various theories of unconstitutional burdens. Each fails. First, Plaintiffs’ claim that they must “accurately guess” when to mail their ballot for the county to receive it by the close of the polls on Election Day is not actionable. [Doc. 33, ¶ 135.] “It is reasonable to expect a voter, who is voting by absentee ballot, no matter the reason, to familiarize themselves with the rules governing that procedure—especially when those procedures are provided.” Thomas v. Andino, No. 3:20-cv-1552, 2020 WL 2617329, at *25 n.25. (D.S.C. May 25, 2020). Here, the voter signs an oath on the absentee ballot envelope indicating that the voter read and understands the instructions for voting an absentee ballot. See O.C.G.A. § 21-2-384(c)(1). Under these circumstances, “voters who fail to get their vote in early cannot blame [Georgia] law for their inability to vote; they must blame ‘their own
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failure to take timely steps to effect their enrollment.” Id. (quoting Rosario v. Rockefeller, 410 U.S. 752, 758 (1973)); see also Mays v. LaRose, 951 F.3d 775, 792 (6th Cir. 2020) (upholding “Ohio’s deadline of noon, three days before Election Day” for requesting a mail-in ballot).
Second, Plaintiffs’ alleged injury that voting early deprives them of late-breaking information is equally meritless. [Doc. 33, ¶ 136.] Voters choose to vote early, and therefore choose to vote with the information they have at the time.
Third, Plaintiffs claim that increases in mail absentee ballots coupled with “unreliable mail service” caused by a budget crisis at USPS and COVID19 will lead to delays in mail delivery. [Id. at ¶ 112.] This “effectively moves election day forward for absentee voters—depending on postal delays, potentially by a week or more,” due to the current public-health emergency. [Id. at ¶ 136.] Neither of these factors are acts of the State: “[t]he real problem here is COVID-19, which all but the craziest conspiracy theorists would concede is not the result of any act or failure to act by the Government.” Coalition for Good Governance v. Raffensperger, No. 1:20-CV1677-TCB, 2020 WL 2509092, at *3 (N.D. Ga. May 14, 2020). Moreover, Plaintiffs’ requested relief is arbitrary. They do not maintain that five additional business days will be sufficient to ensure absentee ballots are
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timely returned, further warranting dismissal of this claim. See e.g., id. (“Similarly here, there are no discernable and manageable standards to decide issues such as how early is too early to hold the election or how many safety measures are enough.”).
Finally, as shown above, the State has strong interests in the current deadlines. Requiring absentee ballots to arrive by the close of the polls on Election Day protects against fraud and allows county election officials to timely complete the ballot-counting process before the certification deadline.
G. Georgia’s Absentee Ballot Security Statute (Counts I, VI and VII).
Counts I and VI of Plaintiffs’ Amended Complaint seek to strike, as facially unconstitutional, the Absentee Ballot Security Statute, which limits the types of persons who may “mail[] or deliver[]” absentee ballots for voters. O.C.G.A. § 21-2-385(a); [Doc. 33, ¶¶ 126-38, 167-72.] Count VII claims the same statute violates the Voting Rights Act. [Id. at ¶¶ 173-80.] Each facial challenge fails as a matter of law.
Georgia law does not require voters to personally mail or deliver their absentee ballot to a county election office (or currently, county drop-box). O.C.G.A. § 21-2-395(a); Ga. Comp. R. & Regs. r. 183-1-14-0.6-.14. Instead, any voter may also rely on an array of family members or a roommate to deliver
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or mail the ballot. Id. Voters in particular circumstances—disabled or in custody in a jail or other detention center—may also rely on “caregiver[s]” or employees of the jail or detention center to deliver their ballots, regardless of whether such person lives with the voter. Id. Further, voters confined to a hospital on Election Day can have a registrar or absentee ballot clerk personally deliver and return their absentee ballots. Id.
None of the individual plaintiffs allege that they are unable to vote without assistance. [Doc. 33, ¶¶ 20-22.] NGP, however, seeks to (1) “collect[] and deliver[]completed, signed, and sealed absentee ballots,” [id. at ¶ 19]; and (2) make sure that voters “prepared the ballot and envelope correctly.” [Id. at ¶ 21.]13 Plaintiffs also allege that “over 64,000 Georgians” live alone and do not have caregivers, but fail to allege that those voters lack family members or a nearby mailbox. [Id. at 39]. Plaintiffs also claim that “27.2% of adults in
13 These two goals are not the same. The first is a purely physical act where the voter has already completed their ballot and sealed it in an envelope. The second involves assisting the voter in “prepar[ing]” or voting the ballot. (Doc. 33 at 22). The statute identified in the Complaint, O.C.G.A. § 21-2-385(a), does not address helping individuals with voting itself; that is covered by O.C.G.A. § 21-2-385(b), which limits voter assistance to the disabled and illiterate. The State Defendants reserve the right to respond more fully if Plaintiffs amended their complaint to address ballot assistance. Suffice it to say, for now, that concerns about voter fraud and voter intimidation are magnified if the NGP seeks to assist voters with their ballot preparation.
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Georgia who have a disability,” and that about “one-tenth” of disabled people nationwide say they need assistance in voting. [Id. at ¶¶ 74-75 (emphasis added).] But, Plaintiffs ignore (and do not challenge) O.C.G.A. § 21-2-385(b), which allows disabled voters to “receive assistance in preparing his or her ballot from any person of the elector’s choice.”14
These allegations fail to state a claim under First Amendment and Anderson-Burdick theories, and the analysis for both is effectively the same for Counts I and VI. Once again, Plaintiffs put forward a theory that no court has ever adopted, and this Court should not be the first. Georgia’s statute regulates conduct, not speech, and the Amended Complaint, though replete with case citations, provides no authority to the contrary. [Id. at ¶¶ 72-78.]
i. First Amendment & Anderson-Burdick Claims (Counts I and VI).
State laws will withstand First Amendment scrutiny if the State’s interests are sufficiently important and narrowly tailored to withstand judicial scrutiny. See, e.g., Burdick, 504 U.S. at 434; United States v. O’Brien, 391 U.S. 367, 376-78 (1968) (applying First Amendment analysis). The
14 As discussed in subsection (ii) below, Plaintiffs wrongly claim that Georgia law “restricts [the disabled] from receiving assistance from anyone of their choice.” (Doc. 33 at 76). Their description of the law is entitled to no deference by this Court, even on a motion to dismiss. S. Florida Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 409 n.10 (11th Cir. 1996).
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Supreme Court rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” O’Brien, 391 U.S. at 375. By this standard, O.C.G.A. § 21-2-385(a) falls outside of these recognized limitations because it does not regulate speech. This analysis is substantively similar to that in Anderson-Burdick.
Even in the context of the First Amendment, a party alleging a facial challenge must show that “that no set of circumstances exists under which the [regulations] would be valid.” Worley, 717 F.3d at 1250. Plaintiffs cannot make that showing for several reasons. Third parties like NGP are not prohibited from urging individuals to vote or from explaining how the voting and absentee voting process works. O.C.G.A. § 21-2-385. They can facilitate and coordinate absentee-ballot delivery from approved family members, roommates, or caregivers. NGP members can be present to explain the importance of voting and even help a voter get to a mailbox or coordinate a visit from a family member. The only thing NGP cannot do is take a ballot from a voter and deliver or mail it, which does not involve speech or impinge on the right of anyone to associate with NGP.
Other First Amendment cases make this point. Just two years ago, the Ninth Circuit held that that the physical collection of ballots is non-
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expressive conduct that does not “[c]onvey [ ] a symbolic message of any sort.” Knox v. Brnovich, 907 F.3d 1167, 1181 (9th Cir. 2018). Likewise, the Fifth Circuit held that “there is nothing inherently expressive about receiving a person’s completed [voter-registration] application and being charged with getting that application to the proper place.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 392 (5th Cir. 2013) (internal quotation marks omitted).15
But, even if this Court decided that the physical (and silent) act of delivering an absentee ballot to a county election office or mailbox constitutes speech, that speech is, at best, incidental. Consequently, the Absentee Ballot Security Statute must be upheld if there is an “important governmental interest” to justify the regulation. O’Brien, 391 U.S. at 376. This standard of judicial scrutiny is a “lenient” one. Johnson, 491 U.S. at 407.
There are numerous, important reasons that justify the law, including protection against voter fraud, promoting voter confidence, and the orderly administration of the election process. See Burdick 504 U.S. at 433. The Supreme Court itself acknowledged an important government interest in the handling of ballots (as opposed to voter registration efforts). Meyer, 486 U.S.
15 The Steen court also distinguished collecting voter-registration applications from voter-registration drives, which is the bulk of Plaintiffs’ authority. [Doc 33 at 72-75.] Id. at 388-389.
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at 427-28. And, recent examples of absentee voter fraud prove that the Supreme Court was correct to distinguish between pre-election speech and gathering completed ballots. In 2018, North Carolina voters were subject to ballot harvesting fraud that overturned a congressional election.16 In Indiana, a court concluded that a political candidate induced
voters that were first-time voters or otherwise less informed or lacking in knowledge of the voting process, the infirm, the poor, and those with limited skills in the English language, to engage in absentee voting; [and provided] compensation and/or creating the expectation of compensation to induce voters to cast their ballot via the absentee process. Pabey v. Pastrick, 816 N.E.2d 1138, 1144 (Ind. 2004). Other incidents of absentee voter fraud occurred in Florida and Pennsylvania. See In re Election for City of Miami, 707 So. 2d 1170, 1171 (Fla. Dist. Ct. App. 1998); Marks v. Stinson, 19 F.3d 873, 877 (3d Cir. 1994). Moreover, NGP itself has had real trouble in its past efforts to engage voters. In 2017, upon inquiries by numerous Republican and Democratic county officials, the State Election Board referred 14 individuals affiliated
16 Rich Lowry, The Scandal in North Carolina Proves That Voter Fraud is Real, N.Y. Post (Dec. 6, 2018), https://nypost.com/2018/12/06/the-scandal-innorth-carolina-proves-voter-fraud-is-real/.
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with NGP to the State Attorney General’s office for investigation regarding improper voter registration efforts.17
In short, Plaintiffs have no burden. To the extent that any burden exists, it is slight and insufficient to overcome important government interests, which is fatal to Plaintiffs’ Anderson-Burdick claim (Count I).
ii. Georgia’s voter assistance statute is not preempted by Section 208 of the Voting Rights Act.
Plaintiffs’ Voting Rights Act (“VRA”) claim fails because Plaintiffs overlooked Georgia law that is directly on point and consistent with the VRA. Specifically, Plaintiffs allege that the restrictions on assisting voters with their absentee ballots violates Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508. That federal provision allows “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. § 10508.
Georgia law expressly addresses this in the same statute that Plaintiffs cite. O.C.G.A. § 21-2-385(b) provides that “[a] physically disabled or illiterate
17 State Election Board, Hr’g Tr. (Sept. 20, 2017), https://sos.ga.gov/admin/uploads/September_20,_2017_Transcript.pdf.
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elector may receive assistance in preparing his or her ballot from any person of the elector's choice other than such elector's employer or the agent of such employer or an officer or agent of such elector's union . . . .” O.C.G.A. § 21-2385(b). This addresses each of the criteria set forth in section 208 of the VRA and shows that Plaintiffs’ Count VII must be dismissed.18 IV. Conclusion
Plaintiffs’ Amended Complaint should be dismissed for failing to state a claim for relief. Their preferred policies are not compelled by the United States Constitution, and the attempt to seek legislative changes through judicial fiat should be given no quarter. For these reasons, State Defendants respectfully request that this Court GRANT the State Defendants’ Motion to Dismiss and DISMISS Plaintiffs’ Amended Complaint with prejudice.
18 To the extent that Plaintiffs’ argument is based on an impermissible expansion of the VRA, the claim still fails. The Senate Judiciary Committee expressly recognized “State provisions would be preempted only to the extent that they unduly burden the right recognized in this section [addressing disabled voters], with that determination being a practical one dependent upon the facts.” S. Rep. 97–417, at 241 (1982). “[B]ecause of their need for assistance, members of these groups are more susceptible than the ordinary voter to having their vote unduly influenced or manipulated.” S. Rep. 97–417, at 240 (1982). O.C.G.A. § 21-2-385(b) assists disabled and illiterate voters by allowing them to receive assistance from whomever they choose subject to limited restrictions. It cannot, therefore, burden their rights in the slightest, and, consequently, the Georgia statute is not preempted by the VRA.
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Respectfully submitted this 26th day of June, 2020.
/s/ Josh Belinfante Josh Belinfante Georgia Bar No. 047399 jbelinfante@robbinsfirm.com Vincent R. Russo Georgia Bar No. 242628 vrusso@robbinsfirm.com Carey Miller Georgia Bar No. 976240 cmiller@robbinsfirm.com Alexander Denton Georgia Bar No. 660632 adenton@robbinsfirm.com Brian Lake Georgia Bar No. 575966 blake@robbinsfirm.com Melanie Johnson Georgia Bar No. 466756 mjohnson@robbinsfirm.com Robbin Ross Alloy Belinfante Littlefield LLC 500 14th Street NW Atlanta, GA 30318 Telephone: (678) 701-9381 Facsimile: (404) 856-3250
Christopher M. Carr Attorney General GA Bar No. 112505 Brian K. Webb Deputy Attorney General GA Bar No. 743580 Russell D. Willard Senior Assistant Attorney General GA Bar No. 760280 State Law Department
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Case 1:20-cv-01986-ELR Document 83-1 Filed 06/26/20 Page 36 of 37 40 Capitol Square, S.W. Atlanta, Georgia 30334 Attorneys for State Defendants
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CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing STATE DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT was prepared doublespaced in 13-point Century Schoolbook font, approved by the Court in Local Rule 5.1(C).
/s/Josh Belinfante Josh Belinfante

CCaassee11:2:107-c-cvv-0-012998869-E-ALTR DDooccuummeenntt 78333-2 FFileiledd0056/2/266/2/200 PPaaggee11oof f77

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

DONNA CURLING, et al.,

:

:

:

Plaintiffs,

:

:

v.

:

:

BRAD RAFFENSPERGER, et al.,

:

:

:

Defendants.

:

CIVIL ACTION NO. 1:17-cv-2989-AT

ORDER

This matter is before the Court on the Plaintiffs’ Motions for Attorney’s Fees

and Expenses [Docs. 595, 596]. Plaintiffs seek an award of attorney’s fees and

expense as prevailing parties under 42 U.S.C. § 1988 in light of this Court’s August

15, 2019 Order granting in part their Motions for Preliminary Injunction.

Collectively, Plaintiffs seek a total of $6,302,766.30 in attorney’s fees and expenses

up through the date of the Court’s preliminary injunction Order.1

Although they do not expressly acknowledge the nature of their request,

Plaintiffs are requesting an interim award as no final judgment has been entered

in this case and Plaintiffs have filed amended complaints asserting additional

challenges to the State’s newly enacted Ballot Marking Device (BMD) voting

system.

1 Coalition Plaintiffs request an award of $1,899,381 in attorney’s fees and expenses. (Coalition Reply, Doc. 705 at 3.) Curling Plaintiffs request an award of attorneys’ fees and expenses of $4,403,385.30. (Curling Reply, Doc. 706 at 44.)

CCaassee11:2:107-c-cvv-0-012998869-E-ALTR DDooccuummeenntt 78333-2 FFileiledd0056/2/266/2/200 PPaaggee22oof f77
Section 1988 authorizes the Court, in its discretion, to award prevailing parties in civil rights actions reasonable attorney’s fees as part of the costs in an action as private attorneys general. 42 U.S.C. § 1988; Fox v. Vice, 563 U.S. 826, 833 (2011) (recognizing that prevailing civil rights plaintiffs ordinarily are entitled to a fee award under § 1988 because they serve as “private attorneys general” who vindicate policies that “Congress has considered of the highest priority”); Farrar v. Hobby, 506 U.S. 103, 122 (1992) (O’Connor, J., concurring). “The statute itself prescribes no time frame for filing the request for attorney’s fees.” Clark v. Hous. Auth. of City of Alma, 971 F.2d 723, 724 (11th Cir. 1992). Generally, attorney’s fee requests “must be made within a reasonable period of time after the entry of final judgment.” Id. (emphasis added) (citing Loman Dev. Co. v. Daytona Hotel & Motel Suppliers, 817 F.2d 1533, 1536 (11th Cir. 1987) and Gordon v. Heimann, 715 F.2d 531, 539 (11th Cir. 1983)).
At the same time, however, the Supreme Court has recognized that in some circumstances a person may be a “prevailing party” under § 1988 without having obtained a favorable “final judgment following a full trial on the merits,” and that Congress contemplated the award of fees pendente lite to be appropriate in some cases. Hanrahan v. Hampton, 446 U.S. 754, 756–57 (1980). Section 1988 permits such an interlocutory award of counsel fees only when a party has prevailed on the merits and established his entitlement to relief on at least some of his claims. Id. at 757-58. Eleventh Circuit precedent also recognizes that the availability of interim fee awards can further the purposes of § 1988 by enabling civil rights
2

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attorneys to undertake representation when litigation is likely to be protracted in difficult and complex cases that require significant investment of time and resources. See James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358–59 (5th Cir. 1977)2 (“There is a danger that litigants will be discouraged from bringing [civil rights] suits because of the risks of protracted litigation and the extended financial drain represented by such a risk. An award of interim attorneys’ fees will prevent extreme cash-flow problems for plaintiffs and their attorneys.”); McGuire v. Murphy, 285 F. Supp. 3d 1272, 1284 (M.D. Ala. 2018); Walters v. City of Atlanta, 652 F. Supp. 755, 761 (N.D. Ga. 1985), modified on other grounds, 803 F.2d 1135 (11th Cir. 1986).
In considering whether to allow Plaintiffs to recover an interim fee award, the Court is mindful of the following factors relevant to the propriety of an interim award of attorney’s fees: “(1) whether the grounds for an interim award are sufficiently discrete from matters remaining to be litigated; (2) whether the moving party will be unable to continue litigating the case absent an interim award; (3) whether the party opposing the interim award has been guilty of dilatory tactics; and (4) whether the action has been or is likely to be unduly protracted.” McGuire v. Murphy, 285 F. Supp. 3d at 1284 (quoting Walters v. City of Atlanta, 652 F. Supp. at 761).
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981.
3

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Again, Plaintiffs have not addressed these factors in their fee motions,
instead focusing solely on their entitlement as prevailing parties and the asserted
reasonableness of the amount of fees and expenses requested. Along with an
additional consideration discussed below, at least two of these factors counsel
against a finding that an interim award is necessary under the circumstances.
First, the Court notes (without commenting on the merits of such an
argument) that Plaintiffs themselves argue that their original claims challenging
Georgia’s former DRE voting system which has been discontinued are
fundamentally the same in their objective as their newly asserted claims
challenging Georgia’s BMD voting system.3 Indeed, the ultimate relief requested
– an order requiring Georgia to move to hand-marked paper ballots for all
elections – is identical for both sets of claims.4 Thus, if Plaintiffs’ arguments are
to be accepted, the first factor would weigh against an award now because the
3 Plaintiffs made this argument days after Governor Kemp signed HB 316 into law mandating implementation of BMDs as the new uniform statewide voting system and again in support of their requests to assert their BMD claims alongside the DRE claims and in response to Defendants’ motions to dismiss the amended complaints. (See Coalition Status Report, Doc. 351, arguing that their existing complaint encompassed a challenge to BMDs because “[l]ike the touchscreen DRE machines, the proposed new BMD touchscreen voting system does not produce an accountable vote or auditable results, offers no improvement over the DRE system, and shares the DRE’s security flaws,” and indicating they would seek to permanently enjoin DREs and BMDs); (see also Coalition Mot. for Leave to File Suppl. Compl., Doc. 600 at 7) (“[T[there is no prejudice to the Defendants since they have been well aware for months now that the Coalition Plaintiffs understand the scope of this action to properly encompass claims against any of the BMD systems that the State has been considering to replace DREs.”); (see also Curling Resp. to Mot. to Dismiss Am. Compl., Doc. 651 at 17) (“While Curling Plaintiffs’ claims regarding the [BMD] Election System arise from recent actions taken by State Defendants, they are legally identical to the DRE-related claims that this Court previously ruled Curling Plaintiffs have standing to pursue.”) 4 Though the ultimate hand-marked paper ballot relief requested may be similar, the Court notes there are differences in the evidentiary record, at least at present, regarding Plaintiffs’ claims in connection with the DRE and BMD claims.
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grounds for an interim fee award may arguably not be sufficiently discrete from matters remaining to be litigated. While the Court’s view as to the similarity of the claims, as opposed to relief requested, may turn out to be different than that advocated by Plaintiffs, the Court recognizes that all parties here are capable of arguing both sides of this coin at different points.
Second, neither group of Plaintiffs has asserted that their counsel will be unable to continue litigating this case, or unable to take on other election cases, due to a lack of resources. And as this Court is aware, counsel for Curling Plaintiffs at Krevolin and Horst and counsel for the Coalition Plaintiffs, Bruce Brown, Robert McGuire, and the Lawyer’s Committee for Civil Rights, have filed several other cases involving challenges to Georgia’s election provisions since the Court issued its August 2019 preliminary injunction Order. Therefore, Plaintiffs have not at this time shown that they will be unable to continue litigating this case without the Court granting their fee award pendente lite.
The Court recognizes that awards of costs and fees under § 1988 exist to enable plaintiffs with meritorious claims to attract competent counsel in cases such as this one – cases that benefit the public by securing compliance with constitutional law, but that do not promise much, if anything, in the way of a monetary damages award. And very capable counsel are handling the respective Plaintiffs’ claims here. While there are certainly cases where requiring counsel to wait years between entry of final judgment and a fee award would undermine one purpose of § 1988 by making representation in civil rights cases financially
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untenable and by discouraging members of the bar from undertaking similar cases in the future, this does not appear to be the case here. At least Plaintiffs have not argued as much in their motions as a basis to justify an award prior to the entry of final judgment in this case.
This is not to diminish Plaintiffs and their counsel’s contribution and commitment to protecting the constitutional rights of Georgia voters through their efforts in litigating this and other cases in this district. Nor is it an indication that the Court does not believe that Plaintiffs are entitled as prevailing parties on some portion of their claims here to an eventual award of reasonable attorney’s fees and expenses under § 1988. However, the Court in its discretion finds that it is more prudent to wait until a final resolution of this case to award fees at this juncture. This determination is influenced by the factors discussed above – but also in part by the Court’s recognition of the immediate pressing needs and deficits the State must address due to the current public health crisis and the reverberating economic fallout from the COVID-19 pandemic.5 This is especially so given the monetary size of interim fees and expenses sought in this case. It would not be in the public interest to add significant strain to the State’s available financial resources necessary to address the welfare and safety of Georgians in these
5 The Court also recognizes that the 2020 election cycle under the pandemic circumstances may well demand State expenditures beyond the norm. The Secretary of State has recently expended more than $3,000,000 to expand Georgia voters’ access to the absentee ballot voting process to assist voters in avoiding the risk of exposure posed by in-person voting during the imminent federal and statewide primary and general elections. See Black Voters Matter Fund et al v. Raffensperger, Civil Action No. 1:20-cv-1489-AT. And far more expenditures, beyond the norm for a Presidential election cycle, may well be required under the current circumstances.
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CCaassee11:2:107-c-cvv-0-012998869-E-ALTR DDooccuummeenntt 78333-2 FFileiledd0056/2/266/2/200 PPaaggee77oof f77 unprecedented times. But time and circumstances may also change the Court’s determination.
Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ Motions for Attorney’s Fees and Expenses [Docs. 595, 596]. Plaintiffs may renew their request once a final judgment has been entered on their claims or if circumstances change that would support an interim award under the factors discussed herein.
IT IS SO ORDERED this 26th day of May, 2020. _______________________ Amy Totenberg United States District Judge
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