Democratic Party of Ga. Inc. v. Perdue

• Decision Date: 07 March 2011
• Docket Number: No. S10A1517.,S10A1517.
• Parties: DEMOCRATIC PARTY OF GEORGIA, INC.v.PERDUE et al.
• Court: Georgia Supreme Court

288 Ga. 720

707 S.E.2d 67

11 FCDR 522

DEMOCRATIC PARTY OF GEORGIA, INC.

v.PERDUE et al.

No. S10A1517.

Supreme Court of Georgia.

March 7, 2011.

Emmet J. Bondurant, David G. Brackett, Jason J. Carter, Bondurant, Mixson & Elmore, Atlanta, for appellant.Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Assistant Attorney General, Troutman Sanders, Mark H. Cohen, Strickland, Brockington & Lewis, Anne W. Lewis, for appellees.THOMPSON, Justice.

Appellant Democratic Party of Georgia, Inc. filed suit against appellees Governor Sonny Perdue, Secretary of State Karen Handel, and the State Election Board seeking a declaratory judgment and permanent injunctive relief against the enforcement of the 2006 amendment to OCGA § 21–2–417, known as the 2006 Photo ID Act (“2006 Act”). The trial court granted summary judgment to appellees on all counts of the complaint and denied appellant's cross-motion for partial summary judgment. On appeal, appellant contends the 2006 Act violates Art. II, Sec. I, Pars. II and III of the Georgia Constitution of 1983, in that it imposes an unauthorized condition and qualification on the right of registered Georgia voters to vote by requiring in-person voters to present a photo ID verifying their identity; and it unduly burdens the right to vote in violation of the equal protection clause of the Georgia Constitution, Art. I, Sec. I, Par. II. For the reasons that follow, we affirm.

In 1997, the Georgia General Assembly adopted OCGA § 21–2–417 (Ga.L.1997, p. 662, § 3), which required registered voters in Georgia to identify themselves by presenting one of seventeen forms of photographic or non-photographic identification to election officials as a condition of being admitted to, and allowed to vote at the polls. Former OCGA § 21–2–417(a). That law also allowed a voter who did not have one of the seventeen specified forms of identification to vote by signing a statement under oath swearing or affirming that he or she is the person identified on the elector's certificate. Former OCGA § 21–2–417(b).¹

In an effort to protect against in-person voter fraud, the legislature in 2005 amended OCGA § 21–2–417 (Ga.L.2005, p. 253, § 59) (“2005 Act”) to require registered voters in Georgia who vote in person to show one of six forms of government issued photo ID. If a person did not have or could not obtain an approved form of photo ID, he or she would be allowed to vote a provisional ballot upon swearing or affirming that the elector is the person identified in the elector's voter certificate, and that vote would be counted only if the voter traveled to the county registrar's office and presented a photo ID within two days of the election. Id. Voters who did not possess one of the acceptable forms of photo ID could obtain a photo ID card from service centers operated by the Department of Driver Services for a fee. Ga. L.2005, p. 301, § 66.²

A group of organizations and individuals filed suit against Georgia election officials in the United States District Court for the Northern District of Georgia seeking to have the photo ID requirement of the 2005 Act declared unconstitutional. On October 25, 2005, the district court preliminarily enjoined enforcement of the 2005 Act, for among other reasons, imposing a poll tax in violation of the Twenty–Fourth Amendment to the United States Constitution. Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326, 1369–1370, 1377 (N.D.Ga.2005) (“ Common Cause/Ga. I ”). The defendants in that case appealed to the Eleventh Circuit.

During the pendency of that appeal, the Georgia General Assembly repealed the 2005 Act and passed the 2006 Act with identical photo ID requirements for in-person voting and a new Code section, OCGA § 21–2–417.1, which requires the board of registrars in each county to issue a “Georgia voter identification card” containing a photograph of the voter free of charge to registered voters residing in the county who do not have another statutorily acceptable form of identification upon presentation of certain identifying documents. The significant distinction between the 2005 Act and the 2006 Act is that under the 2006 law, the fee charged for a State-approved voter ID card was eliminated. See OCGA § 21–2–417.1.

Following enactment of the 2006 Act, the Common Cause plaintiffs amended their federal complaint to challenge the 2006 Act on the same grounds asserted in their original complaint and sought a preliminary injunction against its enforcement. The district court preliminarily enjoined enforcement of the 2006 Act, but limited the injunction to the July 18, 2006 primary elections and corresponding primary run-off elections and declined to extend the injunction to future elections. Common Cause/Georgia v. Billups, 439 F.Supp.2d 1294, 1351, 1360 (N.D.Ga.2006) (“ Common Cause/Ga. II ”). The court so ruled after finding that efforts to educate voters concerning the statutory photo ID requirements had been insufficient in the time available prior to the 2006 primary elections and thus posed an undue burden on certain voters. Id. The district court noted, however:

In issuing this Order, the Court does not intend to imply that all Photo ID requirements would be invalid or overly burdensome on voters. Certainly, the Court can conceive of ways that the State could impose and implement a Photo ID requirement without running afoul of the requirements of the Constitution. Indeed, if the State allows sufficient time for its education efforts with respect to the 2006 Photo ID Act and if the State undertakes sufficient steps to inform voters of the 2006 Photo ID Act's requirements before future elections, the statute might well survive a challenge for such future.

Id. at 1351.

During the pendency of the federal litigation, two registered Georgia voters filed a complaint in the Superior Court of Fulton County challenging the 2006 Act on state constitutional grounds.³ One plaintiff voluntarily dismissed his claims, and the superior court entered an order with respect to the second plaintiff permanently enjoining enforcement of the 2006 Act based on a violation of Art. II, Sec. I, Pars. II and III of the Georgia Constitution. On appeal, this Court vacated the permanent injunction and remanded the case with direction that it be dismissed after finding that the sole remaining plaintiff lacked standing to challenge the constitutionality of the 2006 Act. Perdue v. Lake, 282 Ga. 348(1)(a), (b), 647 S.E.2d 6 (2007). ⁴

Subsequently, the federal district court lifted a stay of proceedings in the Common Cause litigation, which had been entered during the pendency of the Lake appeal, and conducted a trial on the merits. See Common Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1340(30) (N.D.Ga.2007) ( “ Common Cause/Ga. III ”). The only remaining claim for relief in that case was that the statute unduly burdens the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 1342(I)(44). Following a bench trial at which plaintiffs sought a permanent injunction, the district court concluded that the Common Cause plaintiffs lacked standing to pursue their claims, but “[i]n an abundance of caution,” id. at 1374(III)(A)(16), the court alternatively addressed the merits and determined that the 2006 Act did not violate the Equal Protection Clause because the interest of Georgia in preventing voter fraud outweighed the burden on the rights of voters. Id. at 1382(III)(B). The result was that the district court dismissed the Common Cause plaintiffs' federal claims for lack of standing, “decline[d] to enter a permanent injunction, and [found] in favor of the State Defendants on Plaintiffs' undue burden claim.” Id. at 1383(III)(E). On appeal, the Eleventh Circuit concluded that certain remaining plaintiffs suffered an injury sufficient to confer standing to challenge the 2006 Act, but also determined that the district court “did not err when it determined that the legitimate interest of Georgia in preventing voter fraud justified the insignificant burden of requiring voters to present photo identification before they vote in person,” and in declining to enter a permanent injunction on that basis. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1355(III)(A) (11th Cir.2009). (“ Common Cause/Ga. IV ”). Accordingly, the Eleventh Circuit vacated the order of the district court insofar as that court dismissed plaintiffs' complaint for lack of standing and rendered judgment in favor of the election officials of Georgia.⁵ Id. at 1357. The United States Supreme Court unanimously denied certiorari. NAACP v. Billups, ––– U.S. ––––, 129 S.Ct. 2770, 174 L.Ed.2d 271 (2009).

On May 23, 2008, appellant filed a complaint for declaratory and injunctive relief in the Superior Court of Fulton County. The complaint, which is the subject of this appeal, alleges (1) that the photo ID requirement of the 2006 Act violates Art. II, Sec. I, Pars. II and III of the Georgia Constitution in that it imposes an unauthorized condition and qualification on the fundamental right of registered Georgia voters to vote, and (2) that it denies equal protection of the law under Art. I, Sec. I, Par. II of the Georgia Constitution by unduly burdening the right to vote. Thereafter, appellant sought a temporary restraining order in the trial court against application of the 2006 Act in the July 2008 primary election, asserting a violation of Art. II, Sec. I, Pars. II and III. After hearing evidence and balancing the harms, the trial court found that appellant failed to meet the applicable standards for the grant of a TRO, and it denied the requested relief. A few months later, appellant sought an interlocutory injunction against application of the 2006 Act in the November 2008 general election on the same grounds, as well as a claim that the 2006 Act violates equal protection under the Georgia Constitution. The trial court again...