Black Voters Matter Fund v. Raffensperger

• Decision Date: 11 August 2020
• Docket Number: Civil Action No. 1:20-cv-01489-AT
• Citation: 478 F.Supp.3d 1278
• Parties: BLACK VOTERS MATTER FUND, Megan Gordon, and Penelope Reid, on behalf of herself and all others similarly situated, Plaintiffs, v. Brad RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, and DeKalb County Board of Registration & Elections, and all others similarly situated, Defendants.
• Court: U.S. District Court — Northern District of Georgia

478 F.Supp.3d 1278

BLACK VOTERS MATTER FUND, Megan Gordon, and Penelope Reid, on behalf of herself and all others similarly situated, Plaintiffs,

v.Brad RAFFENSPERGER, in his official capacity as Secretary of State of Georgia, and DeKalb County Board of Registration & Elections, and all others similarly situated, Defendants.

Civil Action No. 1:20-cv-01489-AT

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 11, 2020

Dale E. Ho, Pro Hac Vice, Sophia Lin Lakin, American Civil Liberties Union Foundation, New York, NY, Sean Young, ACLU of Georgia Foundation, Atlanta, GA, for Plaintiffs.

Alexander Fraser Denton, Joshua Barrett Belinfante, Melanie Leigh Johnson, Brian Edward Lake, Vincent Robert Russo, Jr., Robbins Ross Alloy Belinfante Littlefield, LLC, Charlene S. McGowan, Georgia Attorney General's Office, Atlanta, GA, for Defendant Brad Raffensperger.

Irene B. Vander Els, Shelley Driskell Momo, DeKalb County Law Department, Decatur, GA, for Defendants DeKalb County Board of Registration & Elections, Anthony Lewis, Susan Motter, Dele Lowman Smith, Samuel E. Tillman, Baoky N. Vu, Erica Hamilton.

ORDER AND OPINION

Amy Totenberg, United States District Judge

Table of Contents

I. Background...1285

A. Georgia's Absentee Ballot Procedure...1285

B. The COVID-19 Outbreak and Georgia's Initial Response...1287

C. Summary of Testimony...1289

1. Cliff Albright...1289

2. Kevin Rayburn...1290

D. Evidence of Impacts on Voters...1291

1. Plaintiffs...1291

2. Initial Voter Affidavits...1291

3. Post-June 2020 Election Voter Affidavits...1294

E. Plaintiffs’ Proffered Expert Evidence...1295

1. Dr. Reingold...1295

2. Dr. Barreto...1296

II. Standing...1297

III. Legal Standard for Preliminary Injunction...1306

IV. Discussion: Poll Taxes...1307

A. Twenty-Fourth Amendment — Poll Taxes for Federal Elections...1307

B. Equal Protection Clause — Poll Taxes for State Elections...1308

C. Postage Cases...1309

D. "De Facto" Poll Taxes...1310

E. Application of the Law to the Facts...1313

V. Discussion: Anderson–Burdick...1315

A. COVID-19 Cases...1316

1. Wisconsin...1316

2. Alabama...1318

3. Texas...1320

4. Ohio...1321

B. Natural Disaster Cases...1321

C. Application of the Law to the Facts...1322

VI. Conclusion...1325

Plaintiffs Black Voters Matter Fund Megan Gordon and Penelope Reid filed this putative class action against Brad Raffensperger, the Georgia Secretary of State ("Secretary") and the DeKalb County Board of Registration & Elections ("DeKalb BOR") (on behalf of all similarly situated county boards of elections) (collectively, including the proposed defendant class, "Defendants") alleging that Defendants have unconstitutionally infringed the rights of Georgians to vote by requiring voters to pay for their own postage to submit absentee ballot applications and absentee ballots. Plaintiffs contend that the postage requirement is a poll tax in violation of the Twenty-Fourth and Fourteenth Amendments and an unjustifiable burden on the right to vote in violation of the First and Fourteenth Amendments. Plaintiffs seek relief, in the form of (a) a declaratory judgment that the requirement that voters affix their own postage to mail-in absentee ballots and mail-in absentee ballot applications is unconstitutional; and (b) a preliminary and permanent injunction prohibiting Defendants from requiring that voters affix their own postage for absentee ballots and applications and mandating that Defendants provide prepaid postage returnable envelopes for absentee ballots or postage.

The Court previously held a hearing on Plaintiffs’ Motion on April 24, 2020. (Doc. 69.) The Court denied the Motion for Preliminary Injunction as to the June 2020 election only, and later as to the August 2020 election in response to Plaintiffs’ Motion for Temporary Restraining Order (Docs. 83, 93.) The Court has kept the issue of the November 2020 election under advisement, and the parties have filed a number of supplemental briefs and filings, which the Court has reviewed.

Currently pending before the Court are the following motions:

• Plaintiffs’ Motion for a Preliminary Injunction as to the November 2020 General Election [Doc. 2];¹

• The Secretary's Motion to Dismiss Plaintiffs’ Amended Complaint [Doc. 90];

The DeKalb Defendants have also filed a Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 104). In addition to incorporating the Secretary's arguments, the DeKalb Defendants also raise issues of immunity that the Court need not reach in connection with the instant Motion for Preliminary Injunction. Accordingly, the Court will address that motion to dismiss at a later time. For similar reasons, because the Court finds that Plaintiffs have alleged standing, the Court need not reach Plaintiffs’ Motion to Certify Plaintiff and Defendant Classes (Doc. 110) at this time.

This is one of many challenges to Georgia's election procedures, both before and after the pandemic, pending in this district.² This case addresses an extremely narrow question of whether the state may require voters to affix postage to absentee ballot applications and absentee ballots, or whether the state must prepay for such postage. It is by no means the final word on Georgia's absentee balloting procedures, election procedures or Georgia's response in the electoral sphere to the challenges posed by the pandemic. There may be evidence that leads another court to different conclusions as to the overall legality of the absentee ballot process or specific features of that process — or their implementation within the state. But for the reasons that follow, the Motion for Preliminary Injunction is DENIED .

I. Background

A. Georgia's Absentee Ballot Procedure

Georgia law permits voters to cast an absentee ballot by mail. See generally O.C.G.A. § 21-2-380 et seq.³ In order to vote by absentee ballot, a voter must first submit an application "either by mail, by facsimile transmission, by electronic transmission, or in person in the registrar's or absentee ballot clerk's office." O.C.G.A. § 21-2-381(a)(1)(A). Upon receipt of a timely absentee ballot application, the relevant election official determines the voter's eligibility. Id. § 381(b)(1).

In the next step of the process, state law requires that local election officials "prepare, obtain, and deliver ... an adequate supply of official absentee ballots to the board of registrars or absentee ballot clerk for use in the primary or election or as soon as possible prior to a runoff." O.C.G.A. § 21-2-384(a)(1). Then, the relevant election official provides eligible voters with the absentee ballots. Specifically, Georgia law requires that such official "shall mail or issue official absentee ballots to all eligible applicants not more than 49 days but not less than 45 days prior to any presidential preference primary, general primary other than a municipal general primary, general election other than a municipal general election, or special primary or special election in which there is a candidate for a federal office on the ballot." Id. § 384(a)(2).

Registered voters who submitted absentee ballot applications requesting to vote by mail are supposed to receive three things by mail prior to election day: (a) the ballot itself, (b) a small "secrecy" envelope for placing the ballot in, and (c) a larger envelope for mailing the envelope containing the ballot. O.C.G.A. § 21-2-384(b), § 21-2-385(a). Prior to election day, the voter must "vote his or her absentee ballot, then fold the ballot and enclose and securely seal the same in the [smaller] envelope on which is printed ‘Official Absentee Ballot.’ " O.C.G.A. § 21-2-385(a). Next, this smaller "envelope shall then be placed in the second [larger] one, on which is printed the form of the oath of the elector; the name and oath of the person assisting, if any; and other required identifying information." Id. "The elector shall then fill out, subscribe, and swear to the oath printed on such envelope. Such envelope shall then be securely sealed and the elector shall then personally mail or personally deliver same to the board of registrars or absentee ballot clerk." Id. The backside of the mailing envelope filed by the Defendants with the Court asks three questions in bold on the top sealing portion:

STOP

Have you signed the oath?

Have you placed your ballot in the white envelope and sealed it?

Have you affixed sufficient postage?

(Docs. 54, 55.)

The outer, larger absentee ballot return envelope has a large logo indicating it is "Official Election Mail Authorized by the U.S. Postal Service." (Doc. 54-3 at 3.) The Secretary contends that the USPS has a policy of delivering official election mail regardless of whether the mail has sufficient postage:

The USPS has previously issued specific guidance that normal procedures for short-paid and unpaid mail should not be followed when processing absentee ballot materials: absentee ballots are delivered to the election office and not returned to the voter even if there is insufficient or no postage. Postage will be collected from the election office at a later date.

(Sec'y Resp. Br. at 15–16, Doc. 51, citing Postal Bulletin 22391 2014 Election and Political Mail Update, United States Postal Service (June 12, 2014), https://about.usps.com/postal-bulletin/2014/pb22391/html/front_cvr.htm) (footnotes omitted).⁴

As explained above, the statute requires that absentee ballot applications may be submitted "by mail," O.C.G.A. § 21-2-381(a)(1)(A), and that absentee ballot applications shall be "personally mail[ed] or personally deliver[ed]" by the voter. O.C.G.A. § 21-2-385(a). However, no portion of the Georgia Code addresses who must pay for postage for absentee ballot applications and absentee ballots.⁵ Absentee ballot application forms do not contain prepaid postage, and therefore the voter must pay postage to return the application. (Aff. Rayburn ¶ 8.b.) A "voter could return the completed form electronically to the county email address supplied on the absentee ballot request form that was mailed out." (...