Majority Forward v. Ben Hill Cnty. Bd. of Elections

• Court: U.S. District Court — Middle District of Georgia
• Writing for the Court: LESLIE A. GARDNER, JUDGE
• Citation: Majority Forward v. Ben Hill Cnty. Bd. of Elections, 512 F.Supp.3d 1354 (M.D. Ga. 2021)
• Decision Date: 04 January 2021
• Docket Number: CASE NO.: 1:20-CV-266 (LAG)
• Parties: MAJORITY FORWARD and Gamaliel Warren Turner, Sr., Plaintiffs, v. BEN HILL COUNTY BOARD OF ELECTIONS, et al., Defendants.

512 F.Supp.3d 1354

MAJORITY FORWARD and Gamaliel Warren Turner, Sr., Plaintiffs,

v.BEN HILL COUNTY BOARD OF ELECTIONS, et al., Defendants.

CASE NO.: 1:20-CV-266 (LAG)

United States District Court, M.D. Georgia, Albany Division.

Signed January 4, 2021

Halsey George Knapp, Jr., Joyce Gist Lewis, Adam Martin Sparks, Atlanta, GA, Uzoma Nkem Nkwonta, Perkins Coie LLP, Jacob D. Shelly, Marc E. Elias, Washington, DC, for Plaintiffs Majority Forward, Gamaliel Warren Turner, Sr.

Anthony A. Rowell, Ross H. Pittman, III, Nicholas A. Kinsley, Tifton, GA, for Defendants Ben Hill County Board of Elections, Cindi Dunlap, Thomas Green, David Walker, Danny Young, Gundron Mills, Penson Kaminsky.

Clifton Cartwright Fay, Thomas F. Gristina, James C. Clark, Jr., Columbus, GA, for Defendants Muscogee County Board of Elections And Registration, Nancy Boren, Margaret Jenkins, Uhland Roberts, Diane Scrimpshire, Linda Parker, Eleanor White.

ORDER

LESLIE A. GARDNER, JUDGE

Before the Court is Plaintiffs' Amended Complaint which seeks both a declaratory judgment and a preliminary injunction. (Doc. 20 ¶ 27.) On December 30, 2020, the Court held a hearing on Plaintiffs' request for a preliminary injunction. The Court entered a preliminary Order granting, in part, Plaintiffs' request for a preliminary injunction. (Doc. 27.) During the hearing on the preliminary injunction, the Court advised the Parties that, due to the urgent nature of the case, the Court might issue its order on the preliminary injunction and later enter a full order with the Court's findings and conclusions. The Parties did not object. This is the Court's final Order on the preliminary injunction consistent with Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

During the hearing, Plaintiff called no witnesses. The Ben Hill County Defendants also called no witnesses. Defendant Muscogee County called one witness, Defendant Boren. In addition to the testimony of Defendant Boren, the exhibits attached to the Parties' respective filings were admitted during the hearing. The following are the Court's findings of fact.

I. Ben Hill County

Plaintiffs allege that the Ben Hill County Defendants improperly sustained a mass challenge to the eligibility of voters in Ben Hill County based on data from the National Change of Address (NCOA) registry and, as a result, took actions in violation of the National Voter Registration Act (NVRA), 52 U.S.C. § 20501 et seq. , O.C.G.A. § 21-2-230, and the First and Fourteenth Amendments to the Constitution. As relates to Ben Hill County, the evidence offered during the hearing included a copy of the Elector Challenge made by Tommy Roberts and the declarations of Plaintiff Debra Lewis, Dr. Kenneth Mayer,¹ Defendant Cindi Dunlap, and Kathleen Searcy. As set forth in greater detail below, the sum of the evidence admitted at the hearing regarding Ben Hill County is that a challenge to an unspecified number of voters was submitted to the Board by Tommy Roberts on December 20, 2020, that Plaintiff Lewis was told by elections officials that her eligibility to vote had been challenged and that she would have to cast a provisional ballot and present evidence of her residency at a hearing on January 5, 2020, that Plaintiff Lewis denies having changed her residency from Georgia or having indicated a desire to change her residency, and that Dr. Mayer is of the opinion that the information submitted with the Roberts challenge letter was insufficient to support a challenge to the eligibility of the voters listed in the documents attached to the challenge.

Plaintiff Lewis' Declaration (Plaintiffs' Ex. P-10) was admitted, without objection, during the hearing. Plaintiff Lewis is a permanent resident and registered voter in Ben Hill County. (Id. ¶ 2.) In 2018 and 2019, Lewis regularly traveled to her boyfriend's residence in Missouri and temporarily changed her address to Missouri; but Lewis always intended to return to Georgia, never indicated a desire to change her residency to Missouri, and never registered to vote in Missouri. (Id. ¶¶ 4–5.) In fact, Lewis maintained her Georgia license, continuously paid utilities at her permanent residence in Georgia, and, in October of 2020, changed her mailing address back to her permanent residence in Georgia. (Id. ¶¶ 4, 6.) Plaintiff Lewis attempted to vote in the Runoff Election on December 28, 2020 but was told that she "was not allowed to vote because the election workers thought [she] had voted in Missouri, even though [she had] never voted in Missouri." (Id. ¶ 7.) Plaintiff Lewis was told by a poll worker that she would have to attend a hearing on January 5, 2021 to prove her residency. (Id. ¶ 8.) Lewis was confused and stated, "I do not have time to go through this hassle." (Id. ¶¶ 8–9.)

Dr. Mayer's Declaration (Plaintiffs' Ex. P-2) was admitted, over objection, during the hearing. Dr. Mayer was asked to evaluate the list of challenged voters from Ben Hill County. (Id. ¶ 3.) According to Mayer, the data provided by Roberts did not contain any "information about how the voters on the list were identified [or] when the address changes were filed, nor is it entirely clear when the list itself was generated." (Id. ¶ 15.) While Dr. Mayer evaluates the data, he provides no information about the process used by the Ben Hill Board to evaluate the challenge or what action the Board took with regard to the challenge. (See id. ¶¶ 15–20.)

During the hearing, the Ben Hill Defendants offered the following evidence which was admitted without objection: the Elector Challenge filed by Tommy Roberts (Defendant Ben Hill County's Ex. DBH-1), the Declaration of Cindi Dunlap, (Defendant Ben Hill County's Ex. DBH-2), and the Declaration of Kathleen Searcy, (Defendant Ben Hill County's Ex. DBH-3). In the Elector Challenge, Roberts advises that he is challenging the eligibility of an unspecified number of voters whose voter registration numbers, registered addresses, and address changes are listed in an attached spreadsheet. (Defendant Ben Hill County's Ex. DBH-1.) The aforementioned spreadsheet was not offered into evidence. Roberts' challenge states,

Available data from the United States Postal Service National Change of Address (NCOA) and other commercially available sources demonstrates probable cause to believe these individuals no longer reside where they are registered to vote. In fact, these electors appear to have permanently established other residence, as reflected in their change of address, to residential addresses outside of the Georgia county in which they are currently registered to vote.

(Defendant Ben Hill County's Ex. DBH-1.) Defendant Cindi Dunlap, the Elections Supervisor and Chief Registrar, spoke to Plaintiff Lewis and told her that "her right to vote had been challenged based on her residence[,]" and that she "could cast a provisional ballot and attend a hearing on January 5, 2021 to provide evidence of her permanent residence." (Defendant Ben Hill County's Ex. DBH-2 ¶¶ 3–4.) Searcy advises that Plaintiff Lewis cast a regular ballot to vote on December 29, 2020. (Defendant Ben Hill County's Ex. DBH-3 ¶¶ 2–3.)

II. Muscogee County

Plaintiffs allege that the Muscogee County Defendants improperly sustained a mass challenge to the eligibility of voters in Ben Hill County based on data from the NCOA registry and, as a result, took actions in violation of the NVRA, O.C.G.A. § 21-2-230, and the First and Fourteenth Amendments to the Constitution. During the hearing, Plaintiffs offered the Elector Challenge filed by Ralph Russell, (Plaintiffs' Ex. P-1), and the declarations of six affected Muscogee voters,² all of which were admitted without objection.³ As noted above, Plaintiffs also offered the declaration of Dr. Mayer which was admitted over objection. The Muscogee County Defendants offered the Declaration of Defendant Boren, and Defendant Boren testified during the hearing.⁴

A. The Elector Challenge

On December 14, 2020, Ralph Russell filed a challenged to the eligibility of 4,033 registered voters (hereinafter referred to as Targeted Voters) in Muscogee County to vote in the Runoff Elections. Russell stated,

The grounds for my challenge are that I have evidence that there are approximately 4,033 individuals registered to vote in Muscogee county who reside outside of the State of Georgia. This information was gathered by running the Muscogee County voter registration data base against the National Change of Address Registry.

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I believe that each of the individuals named ... as a result of registering their name and change of address to a location outside of Muscogee County, removed to another state with the intention of making the new state their residence. Thus, each individual has lost their residence in Muscogee County, and consequently, each individual is ineligible to vote in Muscogee County.

(Plaintiffs' Ex. P-1 at 2–3.) Russell attached a spreadsheet containing specific information about the 4,033 voters whose eligibility he was challenging. (See Defendant Muscogee County's Ex. DM-1 ¶ 3; see also id. at 14–33.) According to Boren, the spread sheet contained the voter's: registration number, county of registration, first name, middle or maiden name, last name, and an out-of-state address for mail delivery, including the city, state, and zip code. (Id. ¶ 5.)

Notably, Russell does not explain how or when he obtained the data that is included in the spreadsheet. (Plaintiffs' Ex. P-1.) While Russell states that the information was obtained by "running the Muscogee County voter registration data base against the National Change of Address Registry," there is no indication that the information purportedly culled from the Muscogee County data base or the NCOA registry was authentic. Nor is there any indication that the purported information was ripe. Russell does not explain how he obtained the information or attest to the veracity of the data. Moreover, as noted by Dr. Mayer, the data on the spreadsheet fails to...