Gonzalez v. Governor of Ga.

• Decision Date: 27 October 2020
• Docket Number: No. 20-12649,20-12649
• Citation: 978 F.3d 1266
• Parties: Deborah GONZALEZ, April Boyer Brown, Adam Shirley, Andrea Wellnitz, Linda Lloyd, Plaintiffs-Appellees, v. GOVERNOR OF the State of GEORGIA, Secretary of State, State of Georgia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

978 F.3d 1266

Deborah GONZALEZ, April Boyer Brown, Adam Shirley, Andrea Wellnitz, Linda Lloyd, Plaintiffs-Appellees,

v.GOVERNOR OF the State of GEORGIA, Secretary of State, State of Georgia, Defendants-Appellants.

No. 20-12649

United States Court of Appeals, Eleventh Circuit.

October 27, 2020

Bruce P. Brown, Bruce P. Brown Law, Atlanta, GA, for Plaintiffs-Appellees.

Christopher Michael Carr, Andrew Alan Pinson, Miles Christian Skedsvold, Elizabeth T. Young, Attorney General's Office, Atlanta, GA, for Defendants-Appellants.

Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:

Following the resignation of the district attorney for the Western Judicial Circuit, the Governor of the State of Georgia solicited applications to appoint a replacement. The Secretary of State of the State of Georgia subsequently cancelled the election that was to be held for that office on November 3, 2020, on the grounds that O.C.G.A. § 45-5-3.2, a statute that addresses the Governor's power to fill vacancies in the office of district attorney, would permit the Governor's appointee to serve until the following state-wide general election.

After unsuccessfully attempting to qualify for the November election, Deborah Gonzalez sued the Governor and the Secretary of State (collectively, the "State") in the United States District Court for the Northern District of Georgia.¹ She argued that O.C.G.A. § 45-5-3.2 violates the Georgia Constitution and the Due Process Clause of the Fourteenth Amendment to the extent it allows the State to cancel the November 2020 election and sought a preliminary injunction that would require the State to hold the election.

The district court found that Gonzalez established a substantial likelihood of success in her argument that O.C.G.A. § 45-5-3.2, as applied here, violates the Georgia Constitution and the Fourteenth Amendment, and granted a preliminary injunction.² The State appealed, arguing that the district court abused its discretion by granting the preliminary injunction.

Because the question of whether O.C.G.A. § 45-5-3.2 violates the Georgia Constitution was an important and unresolved question of Georgia law, we certified a question to the Supreme Court of Georgia. Having received an answer from that court, we now address the merits of the State's appeal and affirm the district court's order granting the preliminary injunction.

I.

On February 5, 2020, Ken Mauldin announced his resignation from the office of district attorney for the Western Judicial Circuit, effective February 29, 2020. Under Article VI, Section VIII, Paragraph I(a) of the Georgia Constitution,³ Governor Brian Kemp had the authority to appoint a replacement for Mauldin, and he began soliciting applications to do so soon thereafter. Prior to Mauldin's resignation, an election for the office of district attorney for the Western Judicial Circuit was scheduled for November 3, 2020.

On March 6, 2020, Deborah Gonzalez attempted to qualify as a candidate for that election. Secretary Brad Raffensperger did not permit her to qualify as a candidate for the election because he had determined that, under O.C.G.A. § 45-5-3.2, the election would be cancelled.⁴ Under the State's reading of O.C.G.A. § 45-5-3.2, the next election for the office of district attorney for the Western Judicial Circuit would be held in November 2022.

Gonzalez sued Governor Kemp and Secretary Raffensperger under 42 U.S.C. § 1983,⁵ alleging that O.C.G.A. § 45-5-3.2 violates the Georgia Constitution and the Due Process Clause of the Fourteenth Amendment,⁶ as well as her First Amendment rights to free speech and free association.⁷ She also sought a writ of mandamus that would direct Secretary Raffensperger to conduct the election, as well as preliminary and permanent injunctive relief that would prevent the State from enforcing O.C.G.A. § 45-5-3.2 and require Secretary Raffensperger to hold the election.

The district court found that Gonzalez was "substantially likely to succeed on the merits of [her] claim that" O.C.G.A.§ 45-5-3.2, as applied here, violates the Georgia Constitution and the Due Process Clause of the Fourteenth Amendment. Gonzalez v. Kemp , ––– F. Supp. 3d ––––, ––––, No. 20-cv-2118, 2020 WL 4873545, at *6 (N.D. Ga. July 2, 2020). Accordingly, it enjoined the State from enforcing "the portion of O.C.G.A.§ 45-5-3.2 that would prevent an election for District Attorney for the Western Judicial Circuit on November 3, 2020" and ordered Secretary Raffensperger to "take all steps necessary to conduct the election." Id . at –––– – ––––, 2020 WL 4873545, at *7–8.

The State appealed to this Court, and, on August 11, 2020, we certified the following question to the Supreme Court of Georgia⁸ :

Does O.C.G.A. § 45-5-3.2 conflict with Georgia Constitution Article VI, Section VIII, Paragraph I (a) (or any other provision) of the Georgia Constitution?

Gonzalez v. Governor of Ga. , 969 F.3d 1211, 1212 (11th Cir. 2020) (mem.). The Supreme Court of Georgia accepted the certified question and answered:

"[Y]es" to the extent that OCGA § 45-5-3.2 authorizes a district attorney appointed by the Governor to serve beyond the remainder of the unexpired four-year term of the prior district attorney without an election as required by Article VI, Section VIII, Paragraph I (a) of the Georgia Constitution of 1983.

Kemp v. Gonzalez , ––– Ga. ––––, ––– S.E.2d ––––, ––––, No. S21Q0068, 2020 WL 5949847, at *1 (Ga. Oct. 8, 2020).⁹ With the benefit of the Supreme Court of Georgia's answer to the certified question, we now address the merits of the State's appeal.¹⁰

II.

We review the grant of a preliminary injunction for abuse of discretion, reviewing any underlying legal conclusions de novo and any findings of fact for clear error.¹¹ Swain v. Junior , 961 F.3d 1276, 1285 n.3 (11th Cir. 2020). "A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous." United States v. Estrada , 969 F.3d 1245, 1261 (11th Cir. 2020) (citation omitted). Our review under this standard is "very narrow" and "deferential." BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC , 425 F.3d 964, 968 (11th Cir. 2005) (citations omitted).

III.

A district court may grant a preliminary injunction only if the moving party establishes that: (1) it has a substantial likelihood of success on the merits;¹² (2) it will suffer an irreparable injury unless the injunction is granted; (3) the harm from the threatened injury outweighs the harm the injunction would cause the opposing party; and (4) the injunction would not be adverse to the public interest. Swain , 961 F.3d at 1284–85 ; accord Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The third and fourth factors " ‘merge’ when, as here, the [g]overnment is the opposing party." Swain , 961 F.3d at 1293 (internal quotation marks and citation omitted); cf . Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). After considering each factor, we conclude that the district court did not abuse its discretion by granting the preliminary injunction.¹³

A. Likelihood of Success on the Merits

The district court found that Gonzalez established a substantial likelihood of success on the merits of her claim that O.C.G.A. § 45-5-3.2 violates the Georgia Constitution and the Due Process Clause of the Fourteenth Amendment. See Gonzalez , ––– F. Supp. 3d at ––––, 2020 WL 4873545, at *6. The State argues that the district court erred by finding that O.C.G.A. § 45-5-3.2 violates the Georgia Constitution. The parties do not dispute that if O.C.G.A. § 45-5-3.2 violates the Georgia Constitution, as applied here, then it also rises to the level of a violation of the Due Process Clause of the Fourteenth Amendment. See Duncan v. Poythress , 657 F.2d 691, 704 (5th Cir. 1981) ("It is fundamentally unfair and constitutionally impermissible for public officials to disenfranchise voters in violation of state law so that they may fill the seats of government through the power of appointment. ... [S]uch action violates the due process guarantees of the [F]ourteenth [A]mendment.").

The federal courts are bound by the decisions of the Supreme Court of Georgia on questions of Georgia law. See Great Am. All. Ins. Co. v. Anderson , 847 F.3d 1327, 1333 (11th Cir. 2017) ; Silliman v. Cassell (In re Cassell) , 688 F.3d 1291, 1292 (11th Cir. 2012) ; Flava Works, Inc. v. City of Miami , 609 F.3d 1233, 1237 (11th Cir. 2010) ; cf. 28 U.S.C. § 1652. This principle applies to questions involving the interpretation of the Georgia Constitution and Georgia election law. See Riley v. Kennedy , 553 U.S. 406, 425, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008) (giving controlling weight to the Alabama Supreme Court's decision that an Alabama election law violated the Alabama Constitution). Because we are bound by the Supreme Court of Georgia's decision that O.C.G.A. § 45-5-3.2, as challenged here, violates the Georgia Constitution, see Kemp , ––– S.E.2d at ––––, 2020 WL 5949847, at *6, we conclude that the district court did not abuse its discretion by finding that Gonzalez established a substantial likelihood of success on her claim that O.C.G.A. § 45-5-3.2 violates the Georgia Constitution and the Fourteenth Amendment, see Gonzalez , ––– F. Supp. 3d at ––––, 2020 WL 4873545, at *6.

B. Irreparable Injury

Nor did the district court abuse its discretion by concluding that Gonzalez would suffer an irreparable injury unless an injunction was granted. See Gonzalez , ––– F. Supp. 3d at ––––, 2020 WL 4873545, at *6. We have held—and the State does not dispute—that "missing the opportunity to vote in an election is an irreparable harm for the purposes of a preliminary injunction." Jones v. Governor of Fla. , 950 F.3d 795, 828 (11th Cir. 2020). Instead, the State argues that the district...