Curling v. Raffensperger

• Docket Number: s. 20-13730 & 20-14067
• Decision Date: 05 October 2022
• Citation: 50 F.4th 1114
• Parties: Donna CURLING, Donna Price, Jeffrey Schoenberg, Coalition for Good Governance, a nonprofit corporation organized and existing under Colorado law, Laura Digges, et al., Plaintiffs-Appellees, v. Brad RAFFENSPERGER, in his official capacity as Secretary of State and the Chair of the Georgia State Election Board, Rebecca N. Sullivan, in her official capacity as a Member of the Georgia State Election Board, David J. Worley, in his official capacity as a Member of the Georgia State Election Board, Ahn Le, in her official capacity as a Member of the Georgia State Election Board, Matthew Mashburn, in his official capacity as a Member of the Georgia State Election Board, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

50 F.4th 1114

Donna CURLING, Donna Price, Jeffrey Schoenberg, Coalition for Good Governance, a nonprofit corporation organized and existing under Colorado law, Laura Digges, et al., Plaintiffs-Appellees,

v.Brad RAFFENSPERGER, in his official capacity as Secretary of State and the Chair of the Georgia State Election Board, Rebecca N. Sullivan, in her official capacity as a Member of the Georgia State Election Board, David J. Worley, in his official capacity as a Member of the Georgia State Election Board, Ahn Le, in her official capacity as a Member of the Georgia State Election Board, Matthew Mashburn, in his official capacity as a Member of the Georgia State Election Board, et al., Defendants-Appellants.

Nos. 20-13730 & 20-14067

United States Court of Appeals, Eleventh Circuit.

Filed: October 5, 2022

Joseph R. Palmore, Veronica Ascarrunz, Eileen M. Brogan, John P. Carlin, David D. Cross, Lyle F. Hedgecock, Mary G. Kaiser, Robert W. Manoso, Morrison & Foerster, LLP, Washington, DC, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, Halsey G. Knapp, Jr., Adam M. Sparks, Krevolin & Horst, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, William Brent Ney, William Brent Ney, LLC, Lawrenceville, GA, for Plaintiff-Appellee Donna Curling in No. 20-13730.

Joseph R. Palmore, Veronica Ascarrunz, Eileen M. Brogan, John P. Carlin, David D. Cross, Lyle F. Hedgecock, Mary G. Kaiser, Robert W. Manoso, Morrison & Foerster, LLP, Washington, DC, Halsey G. Knapp, Jr., Adam M. Sparks, Krevolin & Horst, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, William Brent Ney, William Brent Ney, LLC, Lawrenceville, GA, for Plaintiff-Appellee Donna Price in No. 20-13730.

Joseph R. Palmore, Veronica Ascarrunz, Eileen M. Brogan, John P. Carlin, David D. Cross, Lyle F. Hedgecock, Mary G. Kaiser, Robert W. Manoso, Morrison & Foerster, LLP, Washington, DC, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, Adam M. Sparks, Krevolin & Horst, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, for Plaintiff-Appellee Jeffrey Schoenberg in No. 20-13730.

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, for Plaintiff-Appellee Laura Digges in No. 20-13730.

David R. Brody, Jacob Paul Conarck, John Michael Powers, Ezra D. Rosenberg, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, for Plaintiff-Appellee Coalition for Good Governance in No. 20-13730.

Vincent R. Russo, Josh Belinfante, Alexander Fraser Denton, Carey Allen Miller, Robbins Alloy Belinfante Littlefield, LLC, Atlanta, GA, Robert Dalrymple Burton, Wilson Elser Moskowitz Edelman & Dicker, LLP, Atlanta, GA, Bryan Francis Jacoutot, Diane Festin LaRoss, Loree Anne Paradise, Attorney, Bryan P. Tyson, Taylor English Duma, LLP, Atlanta, GA, for Defendants-Appellants Secretary of State for the State of Georgia, David J. Worley, Rebecca N. Sullivan, State Election Board, Ahn Le, Matthew Mashburn in No. 20-13730.

Vincent R. Russo, Josh Belinfante, Alexander Fraser Denton, Carey Allen Miller, Robbins Alloy Belinfante Littlefield, LLC, Atlanta, GA, Bryan Francis Jacoutot, Diane Festin LaRoss, Loree Anne Paradise, Attorney, Bryan P. Tyson, Taylor English Duma, LLP, Atlanta, GA, for Defendant-Appellant Georgia State Election Board in No. 20-13730.

Mtichell Stoltz, Electronic Frontier Foundation, San Francisco, CA, for Electronic Frontier Foundation, Free Speech for the People.

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, Joseph R. Palmore, Veronica Ascarrunz, Eileen M. Brogan, John P. Carlin, David D. Cross, Lyle F. Hedgecock, Mary G. Kaiser, Robert W. Manoso, Morrison & Foerster, LLP, Washington, DC, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, Halsey G. Knapp, Jr., Adam M. Sparks, Krevolin & Horst, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, William Brent Ney, William Brent Ney, LLC, Lawrenceville, GA, for Plaintiffs-Appellees Donna Curling, Donna Price, Jeffrey Schoenberg in No. 20-14067.

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, David R. Brody, Jacob Paul Conarck, John Michael Powers, Ezra D. Rosenberg, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, William Brent Ney, William Brent Ney, LLC, Lawrenceville, GA, for Plaintiff-Appellee Coalition For Good Governance in No. 20-14067.

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, Robert Alexander McGuire, III, Attorney, Robert McGuire Law Firm, Seattle, WA, William Brent Ney, William Brent Ney, LLC, Lawrenceville, GA, John Michael Powers, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Plaintiff-Appellee Laura Digges in No. 20-14067.

Josh Belinfante, Carey Allen Miller, Alexander Fraser Denton, Brian Edward Lake, Vincent R. Russo, Robbins Alloy Belinfante Littlefield, LLC, Atlanta, GA, James Alan Balli, Sams Larkin Huff & Balli, LLP, Marietta, GA, Robert Dalrymple Burton, Wilson Elser Moskowitz Edelman & Dicker, LLP, Atlanta, GA, Jonathan D. Crumly, Sr., Jonathan D. Crumly, Sr., PC, Emerson, GA, Bryan Francis Jacoutot, Diane Festin LaRoss, Loree Anne Paradise, Attorney, Bryan P. Tyson, Taylor English Duma, LLP, Atlanta, GA, for Defendants-Appellants David J. Worley, Rebecca N. Sullivan, Brad Raffensperger, Anh Le, Matthew Mashburn in No. 20-14067.

Before Grant, Luck, and Anderson, Circuit Judges.

GRANT, Circuit Judge:

Though the most recent and well-publicized election challenges relate to the 2020 presidential election, those were not the first. Here, we consider the fruit of an earlier set. A voting advocacy group and some of its members doubted that their favored candidate lost a 2017 congressional runoff, and challenged the election's outcome. The group was especially concerned about hacking risks and similar threats that it saw as inherent in Georgia's electronic voting system; that system, in turn, had been implemented by the State after the 2000 election revealed certain infirmities in paper balloting. Over time the State again replaced its voting system, but the plaintiffs’ lawsuit expanded, eventually including a variety of new claims.

Two are at issue here. First , the plaintiffs say that Georgia should print hard-copy backup lists of voters only after early voting has completed—not sooner, as occurs under current state practice. That way, the argument goes, wait times will be shorter if the electronic check-in system fails; because the list will have more complete information on who has already voted, fewer provisional ballots or double-checks to confirm voter eligibility will be required. The district court agreed, and ordered the State to set a new date for printing and distributing backup voter lists. Perhaps on a blank slate this would be a reasonable idea. Or perhaps the State is right that the administrative burdens of the later print date outweigh the benefits. Either way, because the plaintiffs did not show that the State's current print-date policies severely burden the right to vote, deciding which policy to implement is not our call. As with other reasonable, nondiscriminatory voting rules, we consider not what the best policy would be, but whether the State's administrative concerns justify the one in place. Here, they do.

Second , the plaintiffs say that the State's ballot scanners should be set to recognize, or at least flag for review, even very slight marks—despite ballot instructions directing voters to fill in the ovals rather than check or cross through them—because some voters might not read the instructions. Again, the district court agreed with the plaintiffs’ contentions. But this time, the court did not issue injunctive relief; it said that it would consider proposals after the parties had conferred. Because the district court never issued the promised injunction, we have nothing to review, so we dismiss the State's appeal on that front.

I.

In April 2017, after the representative from Georgia's Sixth Congressional District was appointed to serve as a cabinet secretary, the State held an out-of-cycle election to fill the seat.¹ The Coalition for Good Governance—a national voting advocacy organization—did not trust the results. It organized several lawsuits targeting Georgia elections, including the one here: an action contending that the "precise outcome" of the runoff for the Sixth District seat was unknowable because the State's electronic voting system was vulnerable to hacking, perhaps even to a Russian cyberattack. For that reason the Coalition (along with several individual plaintiffs) asked for a declaration that the runoff election was void and for an injunction against the system's future use. The replacement, they suggested, should be an all-paper balloting system—in their view, "the only safe method for conducting the election."

While the suit was pending, the State replaced its entirely electronic voting machines with new machines from a new vendor: "electronic ballot markers" that print out paper ballots "marked with the elector's choices in a format readable by the elector." O.C.G.A. § 21-2-300(a)(2). The paper ballots are then "tabulated by using ballot scanners." Id. In other words, the new machines allow voters to select their choices electronically, confirm those choices on a printed ballot, and then insert the ballot into a scanner for tabulation.

So Georgia had moved on from the voting machines that were the target of the original challenge. No matter—the plaintiffs amended their complaint and moved to enjoin the use of the new election equipment instead. The Coalition's top request remained that the State must...