Cause v. Kemp

• Decision Date: 17 March 2017
• Docket Number: CIVIL ACTION FILE NUMBER 1:16–cv–452–TCB
• Parties: COMMON CAUSE, et al., Plaintiffs, v. Brian KEMP, Secretary of State, Defendant.
• Court: U.S. District Court — Northern District of Georgia

243 F.Supp.3d 1315

COMMON CAUSE, et al., Plaintiffs,

v.Brian KEMP, Secretary of State, Defendant.

CIVIL ACTION FILE NUMBER 1:16–cv–452–TCB

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

Signed March 17, 2017

Chad Lennon, Emmet J. Bondurant, II, Jason James Carter, Bondurant Mixson & Elmore, LLP, Atlanta, GA, for Plaintiffs.

Cristina Correia, Attorney General's Office–Atl Department of Law, Josiah Benjamin Heidt, Georgia Department of Law Office of the Attorney General, Julia B. Anderson, State of Georgia Law Department, Atlanta, GA, for Defendant.

ORDER

Timothy C. Batten, Sr., United States District Judge

This case concerns Georgia's program for removing voters from county voter registration rolls due to a change in residency. Two non-profit organizations, Plaintiffs Common Cause and the Georgia State Conference of the NAACP, contend that the Georgia law violates federal voting-rights laws and the First Amendment to the U.S. Constitution. Currently before the Court is Defendant Brian Kemp's motion to dismiss for failure to state a claim [10].

I. Factual Background¹

At issue in this case is Georgia's program for removing ineligible voters from the voter registration rolls, codified primarily as O.C.G.A. § 21–2–234 ("Section 234"). The program operates as follows: during the first six months of each odd-numbered year, the secretary of state² compiles a list of voters with whom there has been "no contact" during the previous three years. § 21–2–234(a)(2). "No contact" is deemed to have been made when

the elector has not filed an updated voter registration card, has not filed a change of name or address, has not signed a petition which is required by law to be verified by the election superintendent of a county or municipality or the Secretary of State, has not signed a voter's certificate, and has not confirmed the elector's continuation at the same address during the preceding three calendar years.

§ 21–2–234(a)(1). The voters identified by the secretary are sent an address confirmation notice that includes a postage prepaid, preaddressed return card. § 21–2–234(c). The voter can use the card for address confirmation, or to inform the secretary that he or she has moved. § 21–2–234(d), (e), & (f). If the card is not returned within thirty days, then the voter's name is moved to the list of "inactive" voters. § 21–2–234(c)(2) & (g).

Voters on the inactive list can still vote. § 21–2–235(c). Any contact with the electoral system—including voting—would return the person to the active voters list. If there is no contact from a voter on the inactive list for two consecutive federal general election cycles, then the voter is removed from the registration list. § 21–2–235(b).

II. Procedural History

Georgia first enacted its voter-removal program in 1994. See 1994 Ga. Laws 1443. Pursuant to the then Section 5 of the Voting Rights Act of 1965, the U.S. Department of Justice reviewed the law and objected to the voter-removal program. See [1–1].

Georgia amended the law in 1997, putting into force the current version of Section 234. The DOJ again reviewed the law, and ultimately gave it preclearance under Section 5 of the Voting Rights Act. This preclearance meant that the DOJ found that the law "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." Perry v. Perez , 565 U.S. 388, 391, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) (quoting 42 U.S.C. § 1973c(a), now codified as 52 U.S.C. § 10304(a) ).

On February 10, 2016, Common Cause and the Georgia State Conference of the NAACP brought suit on behalf of "Georgia voters whose right to vote has been prejudiced, or is at risk of being prejudiced, by Kemp's enforcement of [S]ection 234." [1] at ¶ 3. After the parties had briefed Kemp's motion to dismiss [10], the United States submitted a statement of interest in this case pursuant to 28 U.S.C. § 517.³ In its notice, the United States sides with Plaintiffs and argues that the voter-removal program violates federal voting-rights laws. The notice makes no mention of Plaintiffs' claim concerning violations of the First Amendment.

III. Legal Standard

To survive a 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Chandler v. Sec'y of Fla. Dep't of Transp. , 695 F.3d 1194, 1199 (11th Cir. 2012). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted); Resnick v. AvMed, Inc. , 693 F.3d 1317, 1325 (11th Cir. 2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are "enough to raise a right to relief above the speculative level," and "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas , 643 F.3d 1300, 1302 (11th Cir. 2011), the Court need not accept as true plaintiff's legal conclusions, including those couched as factual allegations, Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

IV. Individual Capacity Claims

The complaint seeks equitable relief against Kemp in both his official and individual capacities. Claims seeking prospective equitable relief from a state agent performing official duties are considered official-capacity claims. See Wu v. Thomas , 863 F.2d 1543, 1550 (11th Cir. 1989) ; Santhuff v. Seitz , 385 Fed.Appx. 939, 942 n.3 (11th Cir. 2010).

Kemp moves to dismiss all claims against him in his individual capacity. Plaintiffs do not respond to this prong of Kemp's motion, but instead assert in a footnote that "Plaintiffs have properly sued Kemp in his individual capacity." [17] at 5 n.6 (citing Alabama v. PCI Gaming Auth. , 801 F.3d 1278 (11th Cir. 2015) ). Since Plaintiffs seek only equitable relief, the claims are considered brought against Kemp in his official capacity. See Edwards v. Wallace Cmty. Coll. , 49 F.3d 1517, 1524 n.9 (11th Cir. 1995) ("Qualified immunity does not pertain to claims for injunctive or declaratory relief, because these claims are considered to be official capacity claims against the relevant governmental entity."). Accordingly, all claims against Kemp in his individual capacity will be dismissed.

V. Compliance with Federal Voting Rights Laws

A. Relevant Statutes

1. The NVRA

The National Voter Registration Act of 1993 ("NVRA"), Pub. L. No. 103–31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501 –11 (2016)), established procedures to "increase the number of eligible citizens who register to vote" and to "enhance[ ] the participation of eligible citizens as voters" in federal elections. 52 U.S.C. § 20501(b). The NVRA sought to simultaneously "protect the integrity of the electoral process" and "ensure that accurate and current voter registration rolls are maintained." Id.

Section 8 of the NVRA sets standards for removing voters due to a change of residence. States are required to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of ... a change in ... residence." § 20507(a)(4). Programs enacted by states "shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965." § 20507(b)(1).

States are prohibited from using voter-removal programs that "result in the removal of the name of any person from the official list of voters ... by reason of the person's failure to vote." § 20507(b)(2). When removing a voter from the rolls, states must abide by the notice provisions of subsections (c) and (d)(1)(B). Id. Those subsections provide a two-step notice process: first, the registrant must fail to respond to a postage-prepaid and pre-addressed residency confirmation card. §§ 20507(b)(2)(A) & (d)(1)–(2). Then, if the registrant "has not voted or appeared to vote in 2 or more consecutive general elections for Federal office," he or she may be removed. § 20507(b)(2)(B).

The NVRA expressly permits states to take account of the U.S. Postal Service's change-of-address database to determine which voters may have changed residence and therefore would be ineligible to vote. § 20507(c)(1). This "safe harbor" provision demonstrates a permissible way for a state to determine which voters should receive the residency confirmation notice.

2. HAVA

In 2002, Congress passed the Help America Vote Act ("HAVA"), Pub. L. No. 107–252, 116 Stat. 1666–1730. HAVA requires states to maintain "a single, uniform, official, centralized, interactive computerized statewide voter registration list." 52 U.S.C. § 21083(a)(1)(A). The registration list must be managed "in a uniform and nondiscriminatory manner." Id. Moreover, states are required to adhere to minimum standards for ensuring the accuracy of the voter registration list. § 21083(a)(4).

Specifically, HAVA requires states to maintain:

A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the [NVRA], registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.

§ 21083(a)(4)(A). HAVA is explicit that removal of voters must be done "in...