554 F.3d 1340 (11th Cir. 2009), 07-14664, Common Cause/Georgia v. Billups

Docket Nº:07-14664, 08-10432.
Citation:554 F.3d 1340
Party Name:COMMON CAUSE/GEORGIA, et al., Plaintiffs, v. Ms. Evon BILLUPS, Superintendent of Elections for the Board of Elections and Voter Registration for Floyd County and the City of Rome, Georgia, Ms. Tracy Brown, Superintendent of Elections of Bartow County, Georgia, Mr. Gary Petty, Member of the Board of Elections and Registration of Catoosa County, Geor
Case Date:January 14, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1340

554 F.3d 1340 (11th Cir. 2009)

COMMON CAUSE/GEORGIA, et al., Plaintiffs,

The National Association for the Advancement of Colored People (NAACP), Inc., through its Georgia State Conference of Branches, Eugene Taylor, Bertha Barrett Young, Plaintiffs-Appellants,

v.

Ms. Evon BILLUPS, Superintendent of Elections for the Board of Elections and Voter Registration for Floyd County and the City of Rome, Georgia, Ms. Tracy Brown, Superintendent of Elections of Bartow County, Georgia, Mr. Gary Petty, Member of the Board of Elections and Registration of Catoosa County, Georgia, Ms. Michelle Hudson, Member of the Board of Elections and Registration of Catoosa County, Georgia, Ms. Amanda Spencer, Member of the Board of Elections and Registration of Catoosa County, Georgia, Cathy Cox, Individually, Karen Handel, In her official capacity as Secretary of State of Georgia and Chair of the Georgia Elections Board, State Election Board, et al., Defendants-Appellees.

Common Cause/Georgia, League of Women Voters of Georgia, Inc., The Central Presbyterian Outreach and Advocacy Center, Inc., Georgia Association of Black Elected Officials, Inc., The National Association for the Advancement of Colored People (NAACP), Inc. through its Georgia State Conference of Branches, Georgia Legislative Black Caucus Concerned Black Clergy of Metropolitan Atlanta, Inc., the following qualified and registered voters under Georgia law; Mrs. Clara Williams, Plaintiffs-Appellees-Cross-Appellants,

National Council of Jewish Women, Inc., Appellee-Cross-Appellant,

Eugene Taylor, Bertha Barrett Young, Plaintiffs-Appellees,

Mr. Tony Watkins, et. al., Plaintiffs,

v.

Ms. Evon Billups, Superintendent of Elections for the Board of Elections and Voter Registration for Floyd County and the City of Rome, Georgia, et al., Defendants,

State Election Board, Karen Handel, Defendants-Appellants, Cross-Appellees.

Nos. 07-14664, 08-10432.

United States Court of Appeals, Eleventh Circuit.

January 14, 2009

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Emmet J. Bondurant, David G.H. Brackett, Jason James Carter, Sarah M. Shalf, Bondurant, Mixson & Elmore, Lauren T. Estrin, Miles J. Alexander, Seth A. Cohen, Kilpatrick Stockton, LLP, Neil Bradley, Laughlin McDonald, Meredith Bell-Platts, ACLU Foundation, Inc., Atlanta,

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GA, Edward Hine, Jr., Hine & Twyman, PC, Rome, GA, Daniel B. Kohrman, AARP Foundation Lit., Washington, DC, for Plaintiffs-Appellants.

Mark H. Cohen, Troutman Sanders, Dennis R. Dunn, State of GA Law Dept., Anne Ware Lewis, Strickland, Brockinton, Lewis, LLP, Atlanta, GA, Christopher Lee Corbin, Farrar & Corbin, P.C., Summerville, GA, for Defendants-Appellees.

Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Amicus Curiae.

Appeals from the United States District Court for the Northern District of Georgia.

Before BIRCH and PRYOR, Circuit Judges, and STROM,[*] District Judge.

PRYOR, Circuit Judge:

This appeal concerns whether the legitimate interest of the government of safeguarding the exercise of a civil right is outweighed by a corresponding burden of that right. Although this appeal does not involve the right to travel, e.g., United States v. Guest , 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966), a burden of air travel in contemporary society provides an apt comparison. Before an adult passenger can board an airplane for a commercial flight in the United States, the passenger must present to a federal official an identification card with a photograph of the passenger. The burden of that exercise assists the federal government in keeping passengers safe from physical harm. This appeal concerns whether a state government can use that kind of exercise to safeguard one of our most fundamental civil rights: the right to vote.

We must decide whether a law of Georgia that requires every voter who casts a ballot in person to produce an identification card with a photograph of the voter unduly burdens the right to vote. The statute also requires state officials to issue, free of charge, a photo identification card to any registered voter. The Georgia Conference of the National Association for the Advancement of Colored People and two individual voters filed this action to enjoin the enforcement of that law on the ground that it unduly burdens the right to vote in violation of the Fourteenth Amendment. The district court dismissed the action on the ground that the NAACP and voters lacked standing, but it alternatively ruled on the merits and denied the permanent injunction. Because we hold that the NAACP and voters have standing, we vacate the order that dismissed the action. We instead render judgment in favor of the election officials of Georgia. We conclude, based on the decision in Crawford v. Marion County Election Board , __ U.S. __, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), which upheld a similar law in Indiana, that the burden imposed by the requirement of photo identification is outweighed by the interests of Georgia in safeguarding the right to vote. We also conclude that the NAACP and voters are prevailing parties as to a preliminary injunction against an earlier statute that charged a fee for a voter identification card, and we affirm the order that awarded them attorney's fees.

I. BACKGROUND

Voters in Georgia were not required to present any proof of identity to vote until

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1997, when the General Assembly enacted a statute that required voters to present identification to election officials to be admitted to the polls and allowed to vote. Several kinds of identification were allowed under that law, including a driver's license, birth certificate, a copy of a current utility bill, and a payroll check. Voters who were unable to produce acceptable identification were allowed to vote if they signed a statement under oath confirming their identity.

In 2005, the General Assembly amended the identification statute to require all registered voters in Georgia to present a government-issued photo identification to election officials to be admitted to the polls and allowed to vote in person. For voters who did not already possess an acceptable form of identification, the statute provided that voter identification cards could be obtained for a fee of $20 to $35. The legislation also eliminated the requirement that voters casting absentee ballots provide one of several statutory excuses to obtain an absentee ballot. The requirement of photo identification became effective on July 1, 2005, subject to preclearance under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Ga.Code Ann. § 21-2-417.

In September 2005, several organizations, including the NAACP of Georgia, and two voters, Tony Watkins and Clara Williams, filed a complaint against the Secretary of State of Georgia and the superintendents of elections for several counties in Georgia, in their official and individual capacities, that challenged the Georgia Photo ID Act of 2005, Ga. Code Ann. § 21-2-417. The organizations and voters alleged that the statute imposed a poll tax in violation of the Twenty-Fourth Amendment and Equal Protection Clause, violated the Fourteenth Amendment, violated the Civil Rights Act of 1964 and section 2 of the Voting Rights Act of 1965, and violated the Georgia Constitution.

The organizations and voters sought, and the district court granted, a preliminary injunction to bar enforcement of the statute. The district court ruled that the organizations and voters had proved a substantial likelihood of success on the merits of their claims that the statute unduly burdened the right to vote and constituted a poll tax. Georgia appealed and moved the district court and this Court for a stay pending appeal, which both courts denied.

In 2006, during the pendency of the appeal, the General Assembly repealed the statute and enacted a new statute that requires voters to present a photo identification before voting in person. The new statute requires a voter to produce one of six kinds of photo identification to vote: a driver's license, a voter identification card, a U.S. passport, a government employee identification card, a U.S. military identification card, or a tribal identification card. The legislation also requires each county to issue free of charge a " Georgia voter identification card," with a photograph of the voter, to any registered voter who does not have another acceptable form of identification. The identification cards can be obtained by producing evidence that the voter is registered to vote in Georgia and by swearing an oath that the voter does not have another acceptable form of identification. The statute also permits voters who vote in person but are unable to produce photo identification to cast a provisional ballot and return within forty-eight hours with valid identification. Voters may also vote by absentee ballot without presenting a photo identification unless the voter registered by mail without including photo identification and is voting for the first time.

The new statute divided the General Assembly along partisan lines. The new

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statute passed the Senate with thirty-two Republicans and no Democrats voting in favor and twenty-one Democrats and one Republican voting in opposition. The new statute also passed the House of Representatives with ninety-eight Republicans and thirteen Democrats voting in favor and sixty Democrats and no Republicans voting in opposition. Governor Perdue, a Republican, signed the bill into law, the Attorney General of the United States precleared the statute, and the new statute became effective before the 2006 primary and...

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