Cooper v. Raffensperger

• Decision Date: 09 July 2020
• Docket Number: 1:20-CV-01312-ELR
• Citation: 472 F.Supp.3d 1282
• Parties: James L. (Jimmy) COOPER III, Martin Cowen, and Georgia Green Party, Plaintiffs, v. Brad RAFFENSPERGER, in his official capacity as Secretary of State of the State of Georgia, Defendant.
• Court: U.S. District Court — Northern District of Georgia

472 F.Supp.3d 1282

James L. (Jimmy) COOPER III, Martin Cowen, and Georgia Green Party, Plaintiffs,

v.Brad RAFFENSPERGER, in his official capacity as Secretary of State of the State of Georgia, Defendant.

1:20-CV-01312-ELR

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

Signed July 9, 2020

Bryan Ludington Sells, The Law Office of Bryan L. Sells, LLC, Atlanta, GA, for Plaintiffs.

Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, for Defendant.

ORDER

Eleanor L. Ross, United States District Judge

Presently before the Court is Plaintiffs' Motion for Preliminary Injunction. [Doc. 11]. For the reasons below, the Court grants in part and denies in part Plaintiffs' motion.

I. Background

This action arises from Plaintiffs' desire to be included on ballots for the upcoming general election as third-party candidates. See generally Compl. [Doc. 1]. Plaintiffs James L. "Jimmy" Cooper III and Martin Cowen each seek to run as candidates for United States Representative to serve Georgia's Eighth and Thirteenth Congressional Districts, respectively. [Doc. 11 at 11]. Plaintiff Georgia Green Party seeks to have a nominee for President of the United States appear on the ballot in November. [Id. at 21]. Defendant Brad Raffensperger is the Secretary of State for the State of Georgia ("Defendant" or "the Secretary") and oversees the state's election process. Compl. ¶ 10.

The crux of Plaintiffs' case is that Georgia's ballot access requirements for third-party candidates—specifically the requirements concerning the collection of signatures—combined with the circumstances presented by COVID-19, violate the First and Fourteenth Amendments to the Constitution. [Doc. 11 at 2]. As such, Plaintiffs seek a preliminary injunction from this Court prohibiting the Secretary "from enforcing Georgia's signature requirements for independent and third-party candidates in light of the current public health emergency caused by the novel coronavirus." [Id. at 1]. The Court first provides an overview of Georgia's ballot access laws and other relevant background information before addressing Plaintiffs' motion.

A. Georgia's Ballot Access Laws

In Georgia, the law distinguishes between three (3) kinds of candidates for partisan public offices: (1) candidates nominated by a political party; (2) candidates nominated by a political body; and (3) independent candidates. A "political party" is any political organization whose nominee received at least 20% of the vote in the last gubernatorial or presidential election. O.C.G.A. § 21-2-2(25). Based on that showing of support, political parties may obtain ballot access by nominating a candidate via primary election. O.C.G.A. § 21-2-130(1). Currently, only the Republican and Democratic parties meet this definition. [Docs. 11 at 9 n.7; 17 at 4].

A "political body" is any political organization other than a political party. O.C.G.A. § 21-2-2(23). Political bodies must

nominate candidates for partisan offices by convention. O.C.G.A. § 21-2-170(g). However, this process does not guarantee ballot access. Instead, political body candidates for non-statewide offices—such as the office of U.S. Representative (as is relevant here)—must submit: (1) a notice of candidacy and qualifying fee, O.C.G.A. § 21-2-132(d), and (2) a nomination petition signed by 5% of the number of registered voters eligible to vote for that office in the last election. O.C.G.A. § 21-2-170(b). The notice of candidacy and qualifying fee for non-statewide candidates is due during the thirty-fifth week before the election (which in 2020, fell on March 6). O.C.G.A. § 21-2-132(d). The nomination petition for non-statewide candidates is due no later than noon on the second Tuesday in July (which in 2020, falls on July 14). O.C.G.A. § 21-2-132(e).

Political body candidates for President undergo a similar process. Pursuant to O.C.G.A. § 21-2-170(b), political-body candidates for President must submit: (1) a notice of candidacy and qualifying fee, and (2) a nominating petition signed by at least 1% of the total number of registered voters at the last general election. However, the statutory 1% requirement was reduced to 7,500 signatures by court order in 2016, as the result of a prior challenge by the Green Party. See Green Party v. Kemp, 171 F. Supp. 3d 1340, 1372 (N.D. Ga. 2016), aff'd, 674 F. App'x 974 (11th Cir. 2017). The notice of candidacy and qualifying fee for presidential candidates are due in late June (which in 2020, fell on June 26). O.C.G.A. § 21-2-132(d). The nomination petition for presidential candidates is due no later than noon on the second Tuesday in July (which in 2020, as mentioned previously, is July 14). O.C.G.A. § 21-2-132(e).

B. The COVID-19 Pandemic

As no doubt all are aware, COVID-19 has disrupted life as Americans have previously known it. In Georgia alone, there have been over 100,000 confirmed cases of the virus with nearly 3,000 deaths.¹ In response to the pandemic, and for good reason, Governor Brian Kemp issued several executive orders out of concern for public safety. Specifically, Governor Kemp has:

• declared a public health state of emergency for the State of Georgia due to the spread of COVID-19, effective March 14, 2020, and subsequently extended it through and until August 11, 2020;

• ordered, on March 23, 2020, that all bars and nightclubs close and banned gatherings of more than ten (10) people;

• issued a Shelter-in-Place Order effective April 3–30, 2020; and

• ordered "all residents and visitors in the State of Georgia" to practice social distancing and sanitation in accordance with the guidelines published by the Centers for Disease Control and Prevention and encouraged residents and visitors to wear masks in public to prevent the spread of COVID-19.

[See Docs. 11-1, 11-3, 11-6, 11-7, 11-8, 11-9]; see also 2020 Executive Orders, OFFICE OF THE GOVERNOR , https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders. (last visited July 1, 2020). These restrictions were imposed in an effort to mitigate the spread of the virus, which easily transfers from person-to person, spreading at an alarming rate.

Similarly, Defendant Raffensperger—in accordance with his duty to oversee Georgia's voting activities—has taken several measures to adjust the election process in light of COVID-19. Such measures include the postponement of the Georgia primary, encouraging voting by mail, and, as relevant here, extending the deadline for independent and third-party candidates to submit nomination petitions until August 14, 2020. [Docs. 11-10, 11-12, 11-13]. This extension increased the signature gathering period from 180 to 211 days. 2d. Decl. of Chris Harvey ¶ 4 [Doc. 26-1].

C. The Parties

The individual Plaintiffs in this case are third-party candidates for U.S. Representative in their respective districts. Compl. ¶¶ 2, 7–8. Both timely submitted a notice of candidacy and paid the $5,220 qualifying fee before the March 6 deadline. Id. At the time Plaintiffs filed their Complaint, Plaintiff Georgia Green Party had not yet paid the filing fee or filed a notice of candidacy for its presidential electors because the applicable qualifying period did not begin until June 22. Id. ¶ 9. However, in the Complaint, Plaintiff Georgia Green Party represented that it was poised to do so at the appropriate time. Id. Defendant Raffensperger, as Georgia's Secretary of State, is charged by statute with enforcing Georgia's ballot-access restrictions. Id. ¶ 10.

After filing the requisite notices of candidacy and paying the qualifying fees, the only remaining requirement for Plaintiffs to appear on the general ballot is to meet Georgia's signature requirements. See O.C.G.A. § 21-2-170(b). As noted above, the individual Plaintiffs must submit a nomination petition signed by 5% of the number of registered voters eligible to vote in the last election for the office that they are seeking. O.C.G.A. § 21-2-170(b). Political body candidates for President must submit a nominating petition containing at least 7,500 signatures. See Green Party v. Kemp, 171 F. Supp. 3d at 1372. According to Plaintiffs, Georgia's response to COVID-19 has made it virtually impossible to gather signatures because "[g]athering signatures during the COVID-19 outbreak endangers public health and the lives of petition-circulators and potential signers." [Doc. 11 at 16].

D. Procedural History

On March 26, 2020, Plaintiffs filed the Complaint in this action. Compl. Plaintiffs bring a single claim pursuant to 42 U.S.C. § 1983, contending that "[u]nder the present circumstances, Georgia's ballot-access laws for independent political-body candidates for President of the United States and U.S. Representative violate rights guaranteed to these [P]laintiffs by the First and Fourteenth Amendments to the U.S. Constitution." Id. ¶ 63. On May 8, 2020, Plaintiffs filed the instant Motion for Preliminary Injunction, seeking to enjoin the signature requirements for this election. [Doc. 11 at 33-34]. This motion has been fully briefed and, with the benefit of oral argument,² is ripe for the Court's review.

II. Discussion

A temporary restraining order or preliminary injunction is an "extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four" elements. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal marks and citations omitted). A plaintiff seeking a preliminary injunction must demonstrate that: (1) there is a substantial likelihood of success on the merits; (2) it will suffer irreparable injury if relief is not granted; (3) the threatened injury outweighs any harm the requested relief would inflict on the non-moving party; and (4) entry of relief would serve the public interest. See, e.g., KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006). The decision as to whether a plaintiff carries this burden "is within the sound discretion of the district...