Fair Fight Action, Inc. v. Raffensperger

• Citation: 593 F.Supp.3d 1320
• Decision Date: 15 November 2021
• Docket Number: CIVIL ACTION FILE No. 1:18-CV-5391-SCJ
• Parties: FAIR FIGHT ACTION, INC., et al., Plaintiffs, v. Brad RAFFENSPERGER, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

593 F.Supp.3d 1320

FAIR FIGHT ACTION, INC., et al., Plaintiffs,

v.Brad RAFFENSPERGER, et al., Defendants.

CIVIL ACTION FILE No. 1:18-CV-5391-SCJ

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

Signed November 15, 2021

ORDER

STEVE C. JONES, UNITED STATES DISTRICT JUDGE

This matter appears before the Court on Defendants’ Motion for Summary Judgment concerning the substantive merits of the case. Doc. Nos. [450]; [623].¹ On March 31, 2021, this Court entered an Order granting the motion in part, denying the motion in part, staying the motion in part, and finding the motion moot in part. Doc. No. [617]. The Court stayed Defendants’ Motion as to Count V of the Second Amended Complaint relating to Section 2 of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10301, pending a decision of the United States Supreme Court in Arizona Republican Party v. Democratic National Committee, ––– U.S. ––––, 141 S. Ct. 221, 207 L.Ed.2d 1165 (2020). See id. at 95. That case was consolidated with Brnovich v. Democratic National Committee, ––– U.S. ––––, 141 S. Ct. 222, 207 L.Ed.2d 1165 (2020).

The United States Supreme Court issued its opinion in Brnovich on July 1, 2021. See Brnovich, ––– U.S. ––––, 141 S. Ct. 222, 207 L.Ed.2d 1165 (2020). Thus, on July 2, 2021, the Court ordered Defendants to re-brief their motion for summary judgment on Plaintiffs’ Section 2 claims in light of Brnovich. Doc. No. [621]. Defendants filed their Renewed Motion for Summary Judgment on Plaintiffs’ Section 2 claims on July 21, 2021. Doc. No. [623]. Plaintiffs responded in opposition on August 10, 2021. Doc. No. [627]. Defendants replied on August 24, 2021. Doc. No. [630]. The matter is now ripe for this Court's review.

I. BACKGROUND

Plaintiffs Fair Fight Action, Inc., Care in Action, Inc., Ebenezer Baptist Church of Atlanta, Georgia, Inc., Baconton Missionary Baptist Church, Inc., Virginia-Highland Church, Inc., and The Sixth Episcopal District, Inc. (collectively, "Plaintiffs") first filed this lawsuit on November 27, 2018. Doc. No. [1]. Since then, Plaintiffs have twice amended their Complaint (Doc. Nos. [41]; [582]), and the Court dismissed several of Plaintiffs’ original claims. Doc. No. [68]. Plaintiffs’ Second Amended Complaint for Declaratory and Injunctive Relief brings certain claims against Defendants Brad Raffensperger (in his official capacity as Secretary of State of the State of Georgia (the "SOS" or the "Secretary") and as Chair of the State Election Board of Georgia), Members of the State Election Board in their official capacities (Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, and Anh Le), and the State Election Board (collectively, "Defendants"). Doc. No. [582].

In their Second Amended Complaint, Plaintiffs allege that in the 2018 General Election, Defendants "enforced unconstitutional and otherwise unlawful legislation, created and enforced unconstitutional and otherwise unlawful policies, and engaged in gross mismanagement that resulted in an election that deprived Georgia citizens, and particularly citizens of color, of their fundamental right to vote." Id. ¶ 2. Plaintiffs assert that Defendants’ actions violated the First, Fourteenth, and Fifteenth Amendments to the United States Constitution, as well as Section 2 of the VRA. Id. ¶ 3.

On June 10, 2020, upon Defendants’ request, the Court informed the parties that they would be allowed to file two separate summary judgment motions for purposes of addressing jurisdictional and substantive/merits issues. Doc. No. [379]. The Court ruled on the jurisdictional motion on February 16, 2021 (Doc. No. [612]) and the merits motion on March 31, 2021 (Doc. No. [617]). As mentioned supra, it stayed Defendants’ motion as to Plaintiffs’ Section 2 claims pending the decision in Brnovich. After permitting the parties to re-brief the issue, the Court now turns to it.

A. Statement of Facts

A full recitation of the material facts in this case can be found in the Court's two previous summary judgment orders. Doc. Nos. [612]; [617]. Defendants’ Motion for Summary Judgment on Plaintiffs’ Section 2 claims addressed several state election policies (training on in-person absentee ballot cancellations, exact match, and the accuracy of Georgia's registered voter list). See Doc. No. [623], 3. However, Plaintiffs concede in their response to Defendants’ motion that the "sole question before this Court regarding Section 2 is whether Plaintiffs’ challenge to Exact Match can proceed."² Doc. No. [627], 14.

The Court makes the following findings of fact for the purpose of resolving the pending motion for summary judgment. In doing so, the Court derives the facts from the admitted portions of the parties’ statements of material facts and the Court's own review of the record. Doc. Nos. [451] (Defendants’ Statement of Material Facts) ("DSMF"); [628] (Plaintiffs’ Statement of Material Facts for VRA Section 2 Claims) ("PSMF").

The Court resolved the parties’ objections to each other's facts as it reviewed the record.³ If a party admitted a fact in part, the Court includes the substance of the undisputed part. If a party denied a fact in whole or in part, the Court reviewed the record to determine if a dispute exists and if it is material. The Court excludes facts, or parts of facts, that are legal conclusions, immaterial, inadmissible at trial, or not supported by citation to record evidence. See LR 56.1(B)(2)(a)(2), NDGa. With that in mind, the Court sets forth the following facts for purposes of the pending Motion for Partial Summary Judgment as it relates to Plaintiffs’ Section 2 ("Exact Match") claim.

1. History of Exact Match

The term "Exact Match" means the voter verification program for voter registration application data, including citizenship status, used by the State of Georgia to meet the requirements of the Help America Vote Act, 52 U.S.C. § 21083(a)(5). Doc. No. [617], 11; see also Doc. No. [510-14] (Pl. Ex. 1007).⁴

The Help America Vote Act ("HAVA"), passed by Congress in 2002, requires that

The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.

52 U.S.C. § 21083(a)(5)(B).⁵

While HAVA requires a matching process, it does not say what the consequences of failing a match are on voter registration. Doc. No. [507-1], Pl. Ex. 26, R. Germany Dep. 123:1–3. The State of Georgia has, however, imposed consequences, which are addressed below.⁶ According to SOS General Counsel, Ryan Germany, the purpose of Exact Match "is to make sure that it's a real person and that you're getting accurate information." PSMF ¶ 591.

In 2009, the United States Department of Justice ("DOJ") denied preclearance to Georgia's Exact Match program. PSMF ¶ 406; see also Doc. No. [510-14], 143–147 (Pl. Ex. 1007).⁷ The DOJ explained that the program "does not produce accurate and reliable information" and cited testimony "that an error as simple as transposition of one digit of a driver license number can lead to an erroneous notation of a non-match across all compared fields." Id. In denying preclearance, the DOJ noted that "[t]he impact of these errors falls disproportionately on minority voters." Id.

In 2010, Georgia again sought preclearance of its Exact Match procedures based upon a revised verification process that called for daily monitoring of the voter verification process and prompt notice to applicants who could not be verified. PSMF ¶¶ 409–410. The DOJ indicated that it did not intend to object to Georgia's implementation of the revised verification process. Id. (citing Georgia v. Holder, 748 F. Supp. 2d 16, 18 (D.D.C. 2010) ("On August 16, 2010, [Georgia] amended its complaint to reflect that it had revised its proposed Verification Process. That same day, [the United States Attorney General] notified the Court that after having ‘conferred extensively with Plaintiff State of Georgia concerning this matter since the fall of 2008,’ and having reviewed the revised proposed verification process, it no longer opposed preclearance by the Court. Then, on August 18, 2010, the [DOJ] informed [Georgia] that it did not intend to object to implementation of the revised Verification Process.") (citations omitted)).

Despite the DOJ's non-objection to a revised verification process, since 2010, there have been additional legislative enactments pertaining to voter registration, HB 268 and HB 316,⁸ a 2018 notice of disproportionate impact letter from the NAACP to the State of Georgia, and two voting rights lawsuits challenging Georgia's "Exact Match policy"—one of the lawsuits resulted in a settlement and the second resulted in a preliminary injunction and remains pending. See NAACP v. Kemp, No. 2:16-cv-00219-WCO, 2016 WL 4800231 (N.D. Ga. 2016) ; Ga. Coal. for People's Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1258 (N.D. Ga. 2018) (referencing the settlement agreement in the 2016 case and issuing a preliminary injunction by stating "[p]laintiffs have shown a substantial likelihood of success on the merits of their claim that Defendant [then-Secretary of State, Brian Kemp] is violating the right to vote, as guaranteed by the First and Fourteenth Amendments to the United States Constitution, for individuals Defendant has flagged and placed into pending status due to citizenship. The election scheme here places a severe burden on these individuals.");⁹ see also PSMF ¶¶ 430, 433, 609; see generally Doc. Nos. [339], Expert Report of P. McCrary; [510-8], 7–19 (Pl. Ex. 644, p. 22); [510-8], 22 (Pl. Ex. 645).

2. Exact Match Process

The parties dispute whether Exact Match is currently codified law in the State of Georgia. Doc. No. [532] ¶ 426. While the record shows...