Martin v. Kemp

• Decision Date: 24 October 2018
• Docket Number: CIVIL ACTION NO. 1:18-CV-4789-LMM,CIVIL ACTION NO. 1:18-CV-4776-LMM
• Citation: 341 F.Supp.3d 1326
• Parties: Rhonda J. MARTIN, et al., Plaintiffs, v. Brian KEMP, et al., Defendants. Georgia Muslim Voter Project, et al., Plaintiffs, v. Brian Kemp, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

341 F.Supp.3d 1326

Rhonda J. MARTIN, et al., Plaintiffs,

v.Brian KEMP, et al., Defendants.

Georgia Muslim Voter Project, et al., Plaintiffs,

v.Brian Kemp, et al., Defendants.

CIVIL ACTION NO. 1:18-CV-4776-LMM

CIVIL ACTION NO. 1:18-CV-4789-LMM

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

Signed October 24, 2018

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

Cristina Correia, Russell D. Willard, Attorney General's Office-Atlanta Department of Law, Anne Ware Lewis, Bryan P. Tyson, Frank B. Strickland, Strickland Brockington Lewis, LLP, Atlanta, GA, for Defendants.

ORDER

LEIGH MARTIN MAY, UNITED STATES DISTRICT JUDGE

This case comes before the Court on Plaintiffs Rhonda J. Martin, Dana Bowers, Jasmine Clark, Smythe DuVal, Jeanne Dufort, and the Georgia Coalition for the People's Agenda, Inc.'s ("Electors") Amended Motion for Preliminary Injunction, Civ. A. No. 1:18-cv-4766 [hereinafter, "Martin"], Dkt. No. [19] and Plaintiffs Georgia Muslim Voter Project ("GMVP") and Asian-Americans Advancing Justice-Atlanta's ("Advancing Justice-Atlanta") Motion for Temporary Restraining Order, Civ. A. 1-18-cv-4789 [hereinafter, "GMVP"], Dkt. No. [5]. Plaintiffs seek an injunction to prevent election officials—as mere enforcers of current Georgia law—from rejecting absentee ballot applications and ballots due to an alleged signature mismatch or other technical error without pre-rejection notice, a reasonable opportunity to cure the deficiency before Election Day, and an opportunity to appeal.

All Plaintiffs seek an injunction on the basis that Georgia's statutory procedures for rejecting absentee ballot applications and absentee ballots, O.C.G.A. §§ 21-2-381, - 386, infringe upon the fundamental right to vote in violation of the equal protection clause of the Fourteenth Amendment. Plaintiff Electors also allege that such procedures threaten to burden the fundamental right to vote in violation of the Fourteenth Amendment's guarantee of substantive due process. Finally, Plaintiffs GMVP and Advancing Justice-Atlanta contend that the aforementioned Georgia statutes violate the procedural due process clause of the Fourteenth Amendment to the extent they deprive absentee ballot applicants and absentee voters of notice and an opportunity to be heard before their ballots or applications are rejected.

Because the Electors just filed a motion for preliminary injunction on Friday and an amended motion for preliminary injunction on Tuesday morning (the day of the hearing), the Court will only consider the Electors' arguments as to signature mismatch. All other Elector claims will be addressed by the Court at a later time, after Defendants have had an opportunity to be heard. See Order, Martin Dkt. No. [21] (setting a briefing schedule to resolve the Electors' Amended Motion for Preliminary Injunction). This Order will address the entirety of the GMVP Motion and the signature mismatch argument from the Martin Motion.

After due consideration and with the benefit of oral argument, the Court enters the following Order:

I. Background

A. Factual Summary

Georgia law authorizes any eligible voter to cast his or her absentee ballot by mail. With the exception of a slight change to the oath requirement,¹ the procedures governing how county registrars verify absentee ballot applications and absentee ballots have been in place since 2007. Harvey Decl., GMVP Dkt. No. [24-1] ¶ 4. The first step in the absentee-voting process is for a voter to submit an absentee ballot application via mail, fax, email, or in person. O.C.G.A. § 21-2-381(a)(1)(A). A voter may submit an absentee ballot application as early as 180 days prior to the date of the primary or election through and including the Friday before the primary or election.

Id. Absentee ballots cannot be issued the day before a primary or election. O.C.G.A. § 21-2-384(a)(1)(2).

When an absentee ballot is received, the county registrar or absentee ballot clerk must determine if the applicant is eligible to vote in the relevant primary or election by comparing the applicant's identifying information to the applicant's information on file with the registrar's office. O.C.G.A. § 21-2-381(b)(1). If the elector signed the application, the registrar must compare the elector's application signature to the elector's voter registration card signature. Id. If the registrar determines that the signatures do not match, the clerk or the board of registrars "shall deny the application by writing the reason for rejection in the proper space on the application and shall promptly notify the applicant in writing of the ineligibility." O.C.G.A. § 21-2-381(b)(2)(3). While there is no procedure by which an elector can contest the registrar's decision, the statutes do not prevent an elector whose application is rejected from applying a second time or voting in person. In Gwinnett County, when a voter's application for an absentee ballot is rejected, the Gwinnett County Board of Registrations and Elections ("BORE") sends a letter by first-class mail within three days of the rejection along with a written explanation of why the ballot was rejected, a new application, and an explanation of other ways the individual can cast his or her vote. Ledford Decl., GMVP Dkt. No. [23-1] ¶ 7.

If a voter's eligibility is confirmed, the registrar must mail an absentee ballot to the voter. O.C.G.A. § 21-2-381(b)(2)(A). When an absentee voter receives an official absentee ballot, they receive two envelopes. O.C.G.A. § 21-2-384(b). The voter must place the completed absentee ballot in the smaller of the two envelopes. Id. The smaller envelope must then be placed in the larger envelope, which contains the oath of the elector and a line for the elector's signature. O.C.G.A. § 21-2-384(b) - (c). All absentee ballots must be received by 7 p.m. on Election Day to be counted. O.C.G.A. § 21-2-386(a)(1)(F).

Upon receipt of each absentee ballot, the registrar or clerk must once again compare the elector's oath signature or mark made on the outside of the envelope with the signature or mark on the absentee elector's voter registration card. O.C.G.A. § 21-2-386(a)(1)(B). A ballot will be rejected "[i]f the elector has failed to sign the oath, or if the signature does not appear to be valid, or if the elector has failed to furnish required information or information so furnished does not conform with that on file ... or if the elector is otherwise found disqualified to vote[.]" O.C.G.A. § 21-2-386(a)(1)(C). The clerk shall write "Rejected" across the face of the envelope, provide the reason for rejection, and "promptly notify the elector of such rejection." Id.

An elector whose ballot is rejected pursuant to O.C.G.A. § 21-2-386(a) may vote in the primary or election by either applying for a second absentee ballot at least two days prior to the election or primary, or voting in person through early absentee voting or at the elector's polling place on the day of the election or primary. Ga. Comp. R. & Regs. 183-1-14-.09. Consistent with these regulations, within three days of a rejection, Gwinnett County provides a voter with a letter stating the reasons for rejection, a new application for an absentee ballot, and information on how to vote in person through early or Election Day voting. Ledford Decl., GMVP Dkt. No. [23-1] ¶ 14.

However, before an absentee ballot is rejected for mismatched signatures in Gwinnett County, the Gwinnett County Director of Registration and Elections, Lynn Ledford, reviews the questioned ballot. Id. ¶ 15. If she is unable determine whether the signatures match, she meets with two other senior staff members to determine by a majority vote whether the ballot is certified. Id. Staff members at BORE do not have access to voter history information when reviewing absentee ballot applications and cannot access voter history information when checking for statutorily required information on an absentee ballot application or absentee ballot envelope. Id. ¶ 9.

There is no procedure by which an elector can contest a registrar's decision that the signatures do not match. By contrast, an elector whose absentee ballot is rejected on grounds that the elector is unqualified to vote is provided with notice, a hearing "on an expedited basis prior to the certification of the consolidated returns of the election," and given an opportunity to appeal to the board of registrars, as well as further opportunity for judicial appeal. O.C.G.A. §§ 21-2-229, - 230(g).

County election directors are reporting an increase in the volume of absentee by-mail voting and absentee in-person (early) voting for the upcoming general election. Harvey Decl., GMVP Dkt. No. [24-1] ¶ 7. Indeed, Defendant Gwinnett County reports that it has received "significantly" more absentee ballot applications for the upcoming election than in previous years. Ledford Decl., GMVP Dkt. No. [23-1] ¶ 20. Plaintiff Electors contend that the recently publicized dangers associated with voting in person using Georgia's paperless Direct Recording Electronic ("DRE") machines has led candidates from all parties to encourage Georgia citizens to vote absentee by mail, thereby greatly increasing the number of voters casting their ballots by mail.

Plaintiffs GMVP and Advancing Justice-Atlanta allege that at least 493 absentee ballot applications and nearly 100 absentee ballots have been rejected due to signature mismatch thus far for the 2018 general election. Ali Decl., GMVP Dkt. No. [5-3] ¶ 7. With regards to Gwinnett County, Plaintiff Electors argue that absentee voters in Gwinnett County are more likely than absentee voters outside Gwinnett County to have their absentee ballots rejected. Martin Dkt. No. [1] ¶ 44. Specifically, Plaintiff Electors allege that as of October 12, 2018, Gwinnett County had rejected 9.6%² of all absentee mail ballots, while DeKalb County had only rejected 1.9% and Fulton County had rejected none. Id. Plaintiff Electors also argue that in addition to Gwinnett...