New Ga. Project v. Raffensperger, 20-13360-D

• Decision Date: 02 October 2020
• Docket Number: No. 20-13360-D,20-13360-D
• Citation: 976 F.3d 1278
• Parties: The NEW GEORGIA PROJECT, Reagan Jennings, Candace Woodall, Beverly Pyne, Plaintiffs - Appellees, v. Brad RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, Ahn Le, in their official capacities as Members of the Georgia State Election Board, Defendants - Appellants, Mary Carole Cooney, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

976 F.3d 1278

The NEW GEORGIA PROJECT, Reagan Jennings, Candace Woodall, Beverly Pyne, Plaintiffs - Appellees,

v. Brad RAFFENSPERGER, in his official capacity as the Georgia Secretary of State and the Chair of the Georgia State Election Board, Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, Ahn Le, in their official capacities as Members of the Georgia State Election Board, Defendants - Appellants,Mary Carole Cooney, et al., Defendants.

No. 20-13360-D

United States Court of Appeals, Eleventh Circuit.

October 2, 2020

Marc Erik Elias, Amanda Rebecca Callais, Perkins Coie, LLP, Washington, DC, Kevin J. Hamilton, Stephanie R. Holstein, Perkins Coie, LLP, Seattle, WA, Amanda Rebecca Callais, Perkins Coie, LLP, Anchorage, AK, Halsey G. Knapp, Jr., Joyce Gist Lewis, Adam M. Sparks, Krevolin & Horst, LLC, Atlanta, GA, Christian Ramses Ruiz, Perkins Coie, LLP, Phoenix, AZ, Lilian Margarita Timmermann, Perkins Coie, LLP, Denver, CO, for Plaintiffs-Appellees.

Vincent R. Russo, Josh Belinfante, Attorney, Alexander Fraser Denton, Melanie Leigh Johnson, Brian Edward Lake, Carey Allen Miller, Robbins Ross Alloy Belinfante & Littlefield, LLC, Christopher Michael Carr, Charlene S. McGowan, Attorney General's Office, Atlanta, GA, for Defendants-Appellants.

Mithun Mansinghani, Attorney General's Office, Oklahoma City, OK, for Amici Curiae State of Arizona, State of Arkansas, State of Florida, State of Idaho, State of Indiana, State of Kansas, State of Kentucky, State of Louisiana, State of Mississippi, State of Missouri, State of Montana, State of Nebraska, State of North Dakota, State of Tennessee, State of Texas, State of South Carolina, State of South Dakota, State of West Virginia.

Cameron Thomas Norris, Consovoy McCarthy, PLLC, Arlington, VA, for Amici Curiae Republican National Committee, Georgia Republican Party, Inc.

Jason Brett Torchinsky, Holtzman Vogel Josefiak Torchinsky, PLLC, Haymarket, VA, for Amicus Curiae Honest Elections Project.

On Appeal from the United States District Court for the Northern District of Georgia

Before WILSON, GRANT, and LAGOA, Circuit Judges.

GRANT, Circuit Judge:

The United States Constitution still gives States the power to set the "Times, Places and Manner of holding Elections for Senators and Representatives."

U.S. Const. art. I, § 4, cl. 1. And that power "is matched by state control over the election process for state offices." Clingman v. Beaver , 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005). To be sure, "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Burdick v. Takushi , 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal quotation marks omitted). But we also know that "the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system." Id .

Here, the district court misapplied the Anderson - Burdick framework when it enjoined the State defendants’ enforcement of a long-standing Georgia absentee ballot deadline, which requires ballots to be received by 7:00 p.m. on Election Day to be counted. See O.C.G.A. § 21-2-386(a)(1)(F) ; O.C.G.A. § 21-2-403. Instead, the district court manufactured its own ballot deadline so that the State is now required to count any ballot that was both postmarked by and received within three days of Election Day. And though our dissenting colleague suggests that we should defer to the district court's judgment on this issue, the law does not allow us to step back: "if the trial court misapplies the law we will review and correct the error without deference to that court's determination." Haitian Refugee Ctr., Inc. v. Baker , 953 F.2d 1498, 1505 (11th Cir. 1992).

Georgia has asked us to put its law back into force by staying the district court's injunction. Under Nken v. Holder , parties are entitled to a stay if they show (1) that they will likely succeed on the merits; (2) irreparable injury absent a stay; (3) that the stay will not substantially injure the other interested parties; and (4) that a stay is in the public interest. 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Because the State defendants have met all four prongs of the Nken test, we grant their motion to stay the injunction.¹

First, likelihood of success on the merits. As we have already indicated, the State defendants satisfy this standard because the district court did not properly apply the appropriate framework. Under Anderson and Burdick , courts must weigh the "character and magnitude of the burden the State's rule imposes" on the right to vote "against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary." Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (internal quotation marks omitted). If a State's rule imposes a "severe burden" on the right to vote, then the rule may survive only if it is "narrowly tailored" and only if the State advances a "compelling interest." Id. But if the rule imposes only "reasonable, nondiscriminatory restrictions," then "a State's important regulatory interests will usually be enough" to justify it. Id. (internal quotation marks omitted). As the Supreme Court explained in Anderson and then in Burdick , election laws "invariably impose some burden upon individual voters." Burdick , 504 U.S. at 433, 112 S.Ct. 2059. That means strict scrutiny is not required for every voting regulation; to say otherwise would "tie the hands of States" as they seek "order, rather than chaos" in their elections. Id. (internal quotation marks omitted).

Here, Georgia's decades-old absentee ballot deadline is both reasonable and nondiscriminatory, while its interests in maintaining that deadline (especially now that absentee voting has already begun) are at least "important"—as the district court itself recognized—and likely compelling. The district court thus erred on two analytical fronts: first, in finding that Georgia's Election Day deadline severely burdened the right to vote; and second, in improperly weighing the State's interests against this burden. That is, the district court abused its discretion by applying the wrong legal standard—strict scrutiny. See Grizzle v. Kemp , 634 F.3d 1314, 1326 (11th Cir. 2011) (reversing a preliminary injunction because the district court's "application of strict scrutiny on review of the Plaintiffs’ constitutional claims was error").

The district court offered only a few paragraphs of light analysis before concluding that the Election Day receipt deadline for absentee ballots places a severe burden on voters. In fact, the significant bulk of the district court's short discussion of the burden on voters was not about Georgia—it was a description of another district court decision from a different State, followed by the conclusion that "[t]he situation here is similar." New Ga. Project v. Raffensperger , ––– F. Supp. 3d ––––, ––––, No. 20-cv-01986-ELR, 2020 WL 5200930, at *24 (N.D. Ga. Aug. 31, 2020). The court then suggested that here, as there, a high number of absentee-ballot requests due to COVID-19 "will lead to a potentially substantial backlog, increasing the possibility that voters will receive their ballots on a later date." Id . at –––– – ––––, 2020 WL 5200930 at *23–24. It seemed to assume that if anyone's ballot would be rejected because of the deadline, the burden would "be severe." Id . at ––––, 2020 WL 5200930 at *24.

These conclusions missed the mark. While the district court relied on the June 2020 primary election to prove that the Election Day deadline posed a burden on voters, it also ignored evidence that during that very primary—which also took place during the COVID-19 pandemic—the percentage of absentee ballots rejected as late was smaller than usual. The court offered no other analysis. In the end, as a legal matter, it is just not enough to conclude that if some ballots are likely to be rejected because of a rule, "the burden on many voters will be severe." Id. ; see also Burdick , 504 U.S. at 433, 112 S.Ct. 2059.

Indeed, a look at the evidence shows that Georgia's Election Day deadline does not implicate the right to vote at all. Georgia has provided numerous avenues to mitigate chances that voters will be unable to cast their ballots. Voters may request absentee ballots as early as 180 days before the election and may receive the ballots as early as 49 days before the election. See O.C.G.A. § 21-2-381(a)(1)(A) ; O.C.G.A. § 21-2-384(a)(2). They can return their ballots through the mail, hand-delivery, or a drop box; dozens of drop boxes are available through Election Day in numerous locations, and all jurisdictions have the authority to add them. See O.C.G.A. § 21-2-385 ; Ga. Comp. R. & Regs. 183-1-14-0.8-.14. Voters also have the option to participate in early in-person voting. O.C.G.A. § 21-2-385. Even those who have already requested and received an absentee ballot can vote in person on Election Day if they properly cancel their absentee ballot. O.C.G.A. § 21-2-388. And though delays in the postal service may (not will ) delay when some voters receive their absentee ballots, all of these avenues remain open to any and all voters.

The district court did not acknowledge these provisions or weigh how they mitigate the Election Day deadline's impact on the right to vote. Voters must simply take reasonable steps and exert some effort to ensure that their ballots are submitted on time, whether through absentee or in-person voting. Contrary to the district court's conclusion, then, no one is "disenfranchised." And the burden on a voter to ensure that a ballot is postmarked by Election Day is not meaningfully smaller than the burden of, say, dropping the ballot in a drop box at one's polling place on Election Day.

When the alleged burdens are not...