Coal. for Good Governance v. Kemp

• Citation: 558 F.Supp.3d 1370
• Decision Date: 20 August 2021
• Docket Number: CIVIL ACTION NO. 1:21-cv-02070-JPB
• Parties: COALITION FOR GOOD GOVERNANCE et al., Plaintiffs, v. Brian KEMP et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

558 F.Supp.3d 1370

COALITION FOR GOOD GOVERNANCE et al., Plaintiffs,

v.Brian KEMP et al., Defendants.

CIVIL ACTION NO. 1:21-cv-02070-JPB

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

Signed August 20, 2021

Bruce P. Brown, Bruce P. Brown Law, Cary Ichter, Ichter Davis, LLC, Shea E. Roberts, Giacoma Roberts & Daughdrill LLC, Atlanta, GA, Gregory Keith Hecht, Hecht Walker, P.C., Stockbridge, GA, for Plaintiffs.

Gene C. Schaerr, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Riddhi Dasgupta, Pro Hac Vice, Schaerr | Jaffe LLP, Washington, DC, Bryan Francis Jacoutot, Bryan P. Tyson, Loree Anne Paradise, Taylor English Duma LLP, Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, for Defendants Brad Raffensperger, Rebecca N. Sullivan, Anh Le, Matthew Mashburn, Sara Ghazal.

Cameron T. Norris, Pro Hac Vice, Steven Christopher Begakis, Pro Hac Vice, Tyler R. Green, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, John E. Hall, Jr., William Bradley Carver, William Dowdy White, Hall Booth Smith, P.C., Atlanta, GA, for Defendants Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, Georgia Republican Party, Inc.

Gene C. Schaerr, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Schaerr Jaffe LLP, Washington, DC, Bryan Francis Jacoutot, Bryan P. Tyson, Loree Anne Paradise, Taylor English Duma LLP, Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, for Defendant Brian Kemp.

ORDER

J. P. BOULEE, United States District Judge

Before the Court is Plaintiffs Coalition for Good Governance, Adam Shirley, Ernestine Thomas-Clark, Antwan Lang, Patricia Pullar, Judy McNichols, Jackson County Democratic Committee, Georgia Advancing Progress Political Action Committee, Ryan Graham, Rhonda Martin, Jeanne Dufort, Aileen Nakamura, Elizabeth Throop and Bradley Friedman's (collectively "Plaintiffs") Motion for Preliminary Injunction ("Motion"). ECF No. 15. After due consideration of the briefs, accompanying evidence and oral argument, the Court finds as follows:

I. BACKGROUND

Plaintiffs filed this action seeking a declaration that certain provisions of Georgia Senate Bill 202 ("SB 202") violate the United States Constitution and/or the Voting Rights Act. Governor Brian Kemp signed SB 202 into law on March 25, 2021.

In the instant Motion, Plaintiffs ask the Court to issue a preliminary injunction enjoining the implementation of the following sections of SB 202:

• O.C.G.A. § 21-2-568.1 (the "Observation Rule")

The Observation Rule prohibits a person from "intentionally observ[ing] an elector while casting a ballot in a manner that would allow such person to see for whom or what the elector is voting."

• O.C.G.A. § 21-2-568.2 (the "Photography Rules")

The Photography Rules proscribe the use of photographic or other electronic monitoring or recording devices to (i) "[p]hotograph or record the face of an electronic ballot marker while a ballot is being voted or while an elector's votes are displayed on such electronic ballot marker" ("Photography Rule I") or (ii) to "[p]hotograph or record a voted ballot" ("Photography Rule II").

• O.C.G.A. § 21-2-386(a)(2)(B)(vii) (the "Communication Rule")

The Communication Rule precludes election "monitors" and "observers" from "[c]ommunicating any information that they see while monitoring the processing and scanning of the absentee ballots, whether intentionally or inadvertently, about any ballot, vote, or selection to anyone other than an election official who needs such information to lawfully carry out his or her official duties." The rule's prefatory statement separately establishes that such communications are prohibited "[w]hile viewing or monitoring" the absentee ballot opening and scanning process. Id. § 21-2-386(a)(2)(B).

• O.C.G.A. §§ 21-2-386(a)(2)(A) and (a)(2)(B)(vi) (the "Tally Rules")

Section (a)(2)(A) ("Tally Rule I") prohibits any person from tallying, tabulating or estimating the absentee ballots cast, attempting to do so or causing a ballot scanner or any other equipment to produce any such tally or estimate until polls close on the day of the primary, election or runoff.

Section (a)(2)(B)(vi) ("Tally Rule II") applies specifically to election "monitors" and "observers" and similarly prohibits them from tallying, tabulating or estimating the absentee ballots cast or attempting to do so. Tally Rule II's prohibitions are, however, in effect only "[w]hile viewing or monitoring" the absentee ballot opening and scanning process.

• O.C.G.A. § 21-2-381(a)(1)(A) (the "Ballot Application Rule")

The Ballot Application Rule provides that an application for an absentee ballot must be submitted "not earlier than 78 days or less than 11 days prior to the date of the primary or election, or runoff of either, in which the elector desires to vote."

The Observation and Photography Rules became effective on March 25, 2021, and the remaining challenged rules became effective on July 1, 2021.

Plaintiffs oppose the specified rules on one or more of the following grounds: undue burden on the right to vote, abridgement of free speech and void for vagueness.¹ They contend that the rules violate their rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment.²

Defendants Brian Kemp, Brad Raffensperger, Rebecca N. Sullivan, Anh Le, Matthew Mashburn and Sara Ghazal (collectively "State Defendants") and Intervenor Defendants Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee and Georgia Republican Party, Inc. (collectively "Intervenor Defendants") oppose the Motion on the merits.

State Defendants also challenge Plaintiffs’ standing to bring this suit.

II. DISCUSSION

The Court addresses State Defendants’ standing argument first, given the Court's obligation " ‘to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based.’ " Cuban Am. Bar Ass'n, Inc. v. Christopher , 43 F.3d 1412, 1422-23 (11th Cir. 1995) (quoting Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale , 922 F.2d 756, 759 (11th Cir. 1991) ).

A. Standing

To satisfy standing requirements under Article III, a plaintiff must show: "(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc. , 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). These requirements ensure federal courts adjudicate only actual "cases" and "controversies." A&M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co. , 925 F.3d 1205, 1210 (11th Cir. 2019).

1. Injury

State Defendants challenge the standing of both the individual and organization plaintiffs to bring this suit.

a. Individual Plaintiffs

"When an individual is subject to the threatened enforcement of a law, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law." Wollschlaeger v. Governor of Fla. , 848 F.3d 1293, 1304 (11th Cir. 2017) (internal punctuation omitted) (quoting Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) ). "The plaintiff's own action (or inaction) in failing to violate [a] law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction." MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). Indeed, "[t]he dilemma posed by ... putting the challenger to the choice between abandoning his rights or risking prosecution ... is ‘a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.’ " Id. at 129, 127 S.Ct. 764 (quoting Abbott Lab'ys v. Gardner , 387 U.S. 136, 152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). Therefore, courts allow a plaintiff to bring a pre-enforcement suit "when he has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution." Wollschlaeger , 848 F.3d at 1304 (internal punctuation omitted).

In Wollschlaeger , the Eleventh Circuit Court of Appeals found that the plaintiff doctors had demonstrated an injury sufficient for the purposes of standing where they sought to challenge a new statute that prohibited them from discussing firearm safety with their patients, although they had ceased those discussions as a result of the statute's enactment. Id. The court explained that "[w]here the ‘alleged danger’ of legislation is ‘one of self-censorship,’ harm ‘can be realized even without an actual prosecution.’ " Id. at 1305 (quoting Virginia v. Am. Booksellers Ass'n, Inc. , 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) ).

However, the threat of prosecution must be credible. See Am. Booksellers Ass'n , 484 U.S. at 393, 108 S.Ct. 636 (stating that the court was "not troubled" by a pre-enforcement suit because the plaintiffs alleged "an actual and well-founded fear that the [respective] law [would] be enforced against them"). This requirement is also satisfied where the government has not disavowed prosecuting persons who violate the challenged legislation. See, e.g. , Holder v. Humanitarian L. Project , 561 U.S. 1, 16, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (finding a credible threat of prosecution existed because the government did not indicate it would forego prosecuting the plaintiffs if they violated the statute).

Here, the record shows that individual plaintiffs have changed or intend to change their behavior in response to SB 202....