GEORGIA MUSLIM VOTER PROJECT v. Kemp

Decision Date21 March 2019
Docket NumberNo. 18-14502-GG, No. 18-14503-GG,18-14502-GG
Citation918 F.3d 1262 (Mem)
Parties GEORGIA MUSLIM VOTER PROJECT, Asian-Americans Advancing Justice-Atlanta, Plaintiffs - Appellees, v. Brian KEMP, in His Official Capacity as the Secretary of State of Georgia, Defendant - Appellant, Gwinnett County Board of Voter Registration and Elections, on Behalf of Itself and All Others Similarly Situated, Defendant. Rhonda J. Martin, Dana Bowers, Jasmine Clark, Smythe Duval, Jeanne Dufort, The Georgia Coalition for the People's Agenda, Inc., Plaintiffs - Appellees, v. Brian Kemp, Secretary of State of Georgia, Defendant - Appellant, Rebecca N. Sullivan, et al., Defendants.
CourtU.S. Court of Appeals — Eleventh Circuit

Sean J. Young, ACLU of Georgia, Atlanta, GA, Dale E. Ho, NAACP Legal Defense and Education Fund, New York, NY, Sophia Lin Lakin, ACLU Foundation, New York, NY, for Plaintiffs - Appellees.

Andrew Alan Pinson, Christopher Michael Carr, Cristina Maria Correia, Russell D. Willard, Attorney General's Office, Atlanta, GA, for Defendant - Appellant Secretary, State Of Georgia.

Bryan P. Tyson, Taylor English Duma, LLP, Atlanta, GA, Richard A. Carothers, Brian Richard Dempsey, Carothers & Mitchell, LLC, Buford, GA, Anne Ware Lewis, Frank B. Strickland, Strickland Brockington Lewis, LLP, Atlanta, GA, for Defendant - Appellee Gwinnett County Board of Registrations And Elections.

BEFORE: TJOFLAT, JILL PRYOR, and NEWSOM, Circuit Judges.

BY THE COURT:

On November 2, 2018, we denied the Emergency Motion for Stay of Injunction Pending Appeal filed by Appellant Brian Kemp and advised at that time that one judge dissented and separate opinions would follow. Today, we issue those opinions.

JILL PRYOR, Circuit Judge, concurring in the denial of the motion for a stay.

On the eve of the 2018 general election, and in the wake of a surge in interest in voting by mail in Georgia, the Georgia Muslim Voter's Project and Asian-Americans Advancing Justice-Atlanta filed suit challenging the State's lack of prerejection procedures for redress when an elector's signature on an absentee ballot application or absentee ballot appears not to match the signature on her voter registration card. For such a perceived mismatch, the State offered only notice of rejection and an opportunity to try again, whether by mail or by voting in person. But for other absentee ballot deficiencies, the State offered a more robust system of prerejection notice and an opportunity to be heard. Finding a likely violation of procedural due process, the district court entered an injunction in which it ordered the Secretary of State of Georgia to instruct county elections officials to provide prerejection notice and an opportunity to be heard in the event of a perceived signature mismatch. In so doing, the district court borrowed heavily from existing voting procedures pertaining to other ballot deficiencies, which had been passed by Georgia's legislature and long followed by state and local officials, to craft a narrow remedy for a narrow class of ballot applications and ballots.

When the Secretary moved in this Court for a stay pending appeal from the injunction, we denied the stay, concluding that the district court had not abused its discretion in crafting the relief it ordered. See Cumulus Media, Inc. v. ClearChannel Commc'ns, Inc. , 304 F.3d 1167, 1171 (11th Cir. 2002) ("[The district court's] judgments, about the viability of a plaintiff's claims and the balancing of equities and the public interest, are the district court's to make and we will not set them aside unless the district court has abused its discretion in making them."). Our order denying the Secretary's motion issued days before the November 2018 election, and in it we noted that opinions would follow. This is my opinion, written as if it had been issued contemporaneously with that order.1

I. BACKGROUND
A. Georgia's Statutory Absentee Voting Scheme

Like many states, Georgia permits electors to vote by mail, for any reason, through a process it calls absentee voting. See O.C.G.A. § 21-2-380(a), (b). Absentee electors must follow a two-step process, first applying for and second voting via an absentee ballot. Id. §§ 21-2-381, -383, -384. At both steps, an absentee elector must sign the application or ballot, and at both steps that signature is compared by elections officials to the elector's voter registration card signature. Id. § 21-2-381(b)(1) (absentee ballot applications); id. §§ 21-2-384(b), (c), - 386(a)(1)(B), (C) (absentee ballots). If the county elections official reviewing submissions concludes that the signatures match at the application stage, an absentee ballot issues; if the signatures match at the absentee ballot stage, and there are no other deficiencies, the absentee elector's vote is counted. Id. § 21-2-381(b)(2)(A) (absentee ballot applications); id. § 21-2-386(a)(1)(B) (absentee ballots). If the official concludes that the signature on the absentee ballot application or absentee ballot does not match that of the elector's voter registration card, then the application or ballot is rejected. Id. § 21-2-381(b)(3) (absentee ballot applications); id. § 21-2-386(a)(1)(C) (absentee ballots). At issue in this case is the process offered to absentee electors whose signatures on absentee ballot applications and absentee ballots are deemed a mismatch.

Georgia law has no provision by which an absentee elector notified of a perceived mismatch may contest the decision, cure the mismatch, or prove her identity before the absentee application or absentee ballot is rejected for a signature mismatch. Instead, the law provides that after the application or ballot is rejected, the county board of registrars2 or absentee ballot clerk is required to "promptly notify" the elector of the rejection. Id. § 21-2-381(b)(3) (absentee ballot applications); id. § 21-2-386(a)(1)(C) (absentee ballots).3 The law does not prevent the absentee elector from trying again, either by filling out a new application or by completing a new ballot. Nor does the law prevent an able absentee elector from voting in person, either during early voting hours or on Election Day. Ga. Comp. R. & Regs. 183-1-14-.09.

Still, perceived signature mismatches are a bit of an outlier: Georgia law provides pre rejection procedures for other flaws in absentee ballot applications and absentee ballots, just not for a signature mismatch. If the registrar or absentee ballot clerk determines that an absentee ballot application lacks information such that the official cannot determine the absentee elector's identity, Georgia law provides that the official must "write to request additional information" from the elector instead of rejecting the application outright. O.C.G.A. § 21-2-381(b)(4). If the board of registrars has probable cause to believe based on an absentee ballot that the "elector is not qualified to remain on the list of electors," the board must, "if practical, notify the challenged elector and afford such elector an opportunity to answer," and then "shall proceed to conduct a hearing on the challenge on an expedited basis prior to the certification of the consolidated returns of the election superintendent." Id. § 21-2-230(b), (g). If the absentee elector fails to prove her eligibility at this stage, she may appeal to the superior court within 10 days of the board of registrars' decision. Id. § 21-2-230(g) (cross-referencing O.C.G.A. § 21-2-229(e) ). If the board of registrars believes that an absentee ballot has some other deficiency that does not affect the elector's qualifications to remain on the list of electors—for example, if the absentee elector failed to provide the required identification—and "it is not practical to conduct a hearing prior to the close of the polls," then elections officials must treat the ballot as a "challenged" ballot—that is, a provisional ballot. Id. §§ 21-2-230(e), (i), -386(e), -419. If the absentee elector provides the board of registrars with the required identification no more than three days after the election, then her vote is counted. Id. § 21-2-419(c)(1); Ga. Comp. R. & Regs. 183-1-14-.03(2), (3), (5). If the absentee elector fails to do so, then the ballot is not counted and the absentee elector is so notified. Ga. Comp. R. & Regs. 183-1-14-.03(5) ; O.C.G.A. § 21-2-419(d)(1). If necessary based on these procedures, the election returns are adjusted and a corrected return is certified. O.C.G.A. § 21-2-230(g), - 493(l). Again, under Georgia law these prerejection procedures are inapplicable to absentee ballot applications and ballots with perceived signature mismatches.

B. The Proceedings Below

The Georgia Muslim Voter Project and Asian-Americans Advancing Justice-Atlanta (collectively, "GMVP") caught wind of an October 12, 2018 news article reporting increased rates of rejection of absentee ballot applications and absentee ballots in Gwinnett County due to perceived signature mismatches. Four days later, the organizations filed suit in the Northern District of Georgia against Brian Kemp, in his official capacity as Secretary of State of Georgia,4 and the Gwinnett County Board of Registrars and Elections, on behalf of itself and similarly situated boards of registrars in all 159 Georgia counties. As relevant to this appeal, GMVP alleged that Georgia's absentee voting scheme violated procedural due process insofar as the State failed to provide prerejection notice, an opportunity to be heard, and a chance to appeal for absentee electors whose absentee ballot applications or absentee ballots contained a perceived mismatched signature.

GMVP moved for an injunction to prevent elections officials from rejecting absentee ballot applications and absentee ballots due to perceived signature mismatches without these prerejection procedures. After holding a hearing, the district court determined that it was substantially likely that the Georgia's statutory procedures for rejecting absentee ballot applications and absentee...

To continue reading

Request your trial
10 cases
  • Fla. State Conference of the Naacp v. Lee
    • United States
    • U.S. District Court — Northern District of Florida
    • 17 d5 Dezembro d5 2021
    ...a facial challenge we do not consider instances in which a statute ‘do[es] no work.’ " Ga. Muslim Voter Project v. Kemp , 918 F.3d 1262, 1270 (11th Cir. 2019) (Jill Pryor, J., concurring) (quoting City of L.A., Calif. v. Patel , 576 U.S. 409, 419, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015) ). T......
  • Jones v. Governor of Fla., No. 20-12003
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 11 d5 Setembro d5 2020
    ...at 903 ).A.Returning citizens have a strong interest in the right to reenfranchisement. See Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1270 (11th Cir. 2019) (Jill Pryor, J., concurring) (stating that interests that "implicate[ ] the right to vote" are "substantial" (quotation marks om......
  • Richardson v. Tex. Sec'y of State
    • United States
    • U.S. District Court — Western District of Texas
    • 8 d2 Setembro d2 2020
    ...Cir. 1982) (applying the Mathews test to Mississippi's felony disenfranchisement statute); Georgia Muslim Voter Project v. Kemp , 918 F.3d 1262,1270-71 (11th Cir. 2019) (Pryor, J., concurring) (in due process challenge to state's signature-comparison procedures, applying Mathews test and st......
  • Democracy N.C. v. N.C. State Bd. of Elections
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 4 d2 Agosto d2 2020
    ...at 217 (acknowledging that the privilege of absentee voting is afforded due process protections); see also Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1270–73 (11th Cir. 2019) (denying request for stay of injunction) (Pryor, J., concurring). These cases dealt with erroneous rejections ......
  • Request a trial to view additional results
1 books & journal articles
  • Election Spotlight: Nearly Twenty Years After Hanging Chads, Problems Persist in Florida
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 71-3, March 2020
    • Invalid date
    ...Id. at 1332.117. Id. at 1344.118. Id. at 1348.119. Id. at 1316 (majority opinion).120. Id.121. Id. 122. Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262 (11th Cir. 2019) (this later Georgia case also involved signature matching on absentee ballots)....

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT