Favorito v. Wan
| Decision Date | 01 July 2022 |
| Docket Number | A22A0939,A22A1097 |
| Parties | FAVORITO et al. v. WAN et al. JEFFORDS et al. v. FULTON COUNTY et al. |
| Court | United States Court of Appeals (Georgia) |
Garland Favorito, Caroline Jeffords, and seven other Georgia residents petitioned for declaratory judgment and injunctive relief against five members of the Fulton County Board of Registration and Elections in their individual capacities claiming that votes cast by the petitioners during the 2020 general election were diluted by the inclusion of allegedly unlawful ballots in Fulton County. Jeffords and one other petitioner also claimed that Fulton County had violated the Georgia Open Records Act.[1] Three of the respondent board members filed a motion to dismiss the petitions based on the petitioners' lack of standing. The trial court granted the three board members' motion and dismissed the claims against them, finding that the petitioners lacked standing due to their failure to allege a particularized injury. The court further ordered that the claims against the other two board members also be dismissed due to the same lack of standing of the petitioners. The court also dismissed Fulton County from the case, finding that the Open Records Act claims against it had already been fully adjudged in a prior order.
The petitioners appeal from the dismissal order, with Favorito and six others appealing in Case No. A22A0939, and Jeffords and another petitioner appealing in Case No. A22A1097. We consider the appeals together since they arise from the same order and both challenge the trial court's lack of standing ruling.
Because the petitioners' claims of vote dilution did not allege particularized injuries, the trial court correctly dismissed their claims against the five board members due to lack of standing. And an additional argument regarding standing to bring the Open Records Act claims against Fulton County presents nothing for review since the trial court did not dismiss Fulton County from the case based on the petitioners' lack of standing. So we affirm the order of the trial court in both appeals.
Sons of Confederate Veterans, supra at 803-804 (2) (citations and punctuation omitted).
In another case which, like the instant cases, also involved a lawsuit claiming vote dilution based on allegedly unlawful ballots in Georgia during the 2020 general election, a federal appellate court applied the same three-part standing test recited above and found that the plaintiff lacked standing because he had failed to allege a particularized injury. See Wood v. Raffensperger, 981 F.3d 1307 (11th Cir. 2020). "Although the federal court decision is not binding on this court, we find the analysis in that decision to be persuasive." Bing v. Zurich Svcs. Corp., 332 Ga.App. 171, 172 (1) (770 S.E.2d 14) (2015). In finding that the vote dilution claim based on allegedly unlawful ballots was not a particularized injury, the federal court in Wood explained:
To be sure, vote dilution can be a basis for standing. But it requires a point of comparison. For example, in the racial gerrymandering and malapportionment contexts, vote dilution occurs when voters are harmed compared to irrationally favored voters from other districts. By contrast, no single voter is specifically disadvantaged if a vote is counted improperly, even if the error might have a mathematical impact on the final tally and thus on the proportional effect of every vote. Vote dilution in this context is a paradigmatic generalized grievance that cannot support standing.
Wood, supra at 1314 (III) (A) (citations and punctuation omitted).
In the instant appeals, as in Wood, the petitioners' "interest in ensuring that only lawful ballots [were] counted" was a "generalized grievance . . . undifferentiated and common to all members of the public" that, "no matter how sincere, cannot support standing." Wood, supra (citations and punctuation omitted). The trial court therefore did not err in dismissing the petitioners' claims against the five individual board members for lack of standing. See Sons of Confederate Veterans, supra at 806 (2) ("because each of the appellants lacked standing, the trial courts correctly dismissed all of these actions").
The appellants in Case No. A22A1097 also challenge the dismissal of Fulton County from their case by arguing that they were not required to have standing to make a request for documents under the Georgia Open Records Act. But the dismissal of Fulton County was not based on a finding that the appellants lacked standing to make an open records request. Rather, the trial court ruled that because a prior court order had "fully adjudged [the Open Records Act] claims, no further relief may be accorded to Petitioners under the [Act], and therefore, Respondent Fulton County is also dismissed." Since the argument made on appeal does not address the dismissal ruling actually made by the trial court, it presents nothing for review.
Judgments affirmed.
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[1]All nine petitioners originally filed a single petition together. But after the trial court granted a motion to sever, two separate amended petitions alleging related claims were filed, with Favorito and six others filing one amended petition, while Jeffords and another petitioner filed the other amended petition.
[2]We note that two members of our Supreme Court have opined that it is "well past time to consider the source and nature of Georgia's standing doctrine, and the extent to which our reliance on federal standing jurisprudence really is appropriate in interpreting and applying Georgia standing doctrine." Black Voters Matter Fund v. Kemp, 313 Ga. 375, 393 (870 S.E.2d 430) (2022) (Peterson J., concurring). And that court has granted certiorari to address standing in Sons of Confederate Veterans, supra, cert. granted, S22C0039, 22C0045 S22G0045 (Mar. 8, 2022).
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