VoteAmerica v. Raffensperger
| Decision Date | 30 June 2022 |
| Docket Number | CIVIL ACTION NO. 1:21-CV-01390-JPB |
| Citation | 609 F.Supp.3d 1341 |
| Parties | VOTEAMERICA, et al., Plaintiffs, v. Brad RAFFENSPERGER, in his official capacity as Secretary of State of the State of Georgia, et al., Defendants, and Republican National Committee, et al., Intervenor Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Alice Clare Campbell Huling, Pro Hac Vice, Caleb Jackson, Pro Hac Vice, Danielle M. Lang, Hayden Johnson, Pro Hac Vice, Jonathan Diaz, Robert Neil Weiner, Pro Hac Vice, Valencia Richardson, Pro Hac Vice, Campaign Legal Center, Washington, DC, Katherine Leigh D'Ambrosio, Robert B. Remar, Smith Gambrell & Russell, LLP, Atlanta, GA, for Plaintiffs.
Brian Field, Pro Hac Vice, Gene C. Schaerr, Pro Hac Vice, Joshua J. Prince, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Erik Scott Jaffe, Pro Hac Vice, Riddhi Dasgupta, Pro Hac Vice, Schaerr | Jaffe LLP, Washington, DC, Bryan Francis Jacoutot, Bryan P. Tyson, Loree Anne Paradise, Taylor English Duma LLP, Atlanta, GA, Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, for Defendants Brad Raffensperger, Rebecca Sullivan, David Worley, Matthew Mashburn, Anh Le.
Baxter D. Drennon, Hall Booth Smith, P.C., Little Rock, AR, Cameron T. Norris, Pro Hac Vice, Jeffrey Hetzel, Pro Hac Vice, Steven Christopher Begakis, Pro Hac Vice, Tyler R. Green, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, Alex Benjamin Kaufman, James Cullen Evans, John E. Hall, Jr., William Bradley Carver, Kevin T. Kucharz, William Dowdy White, Hall Booth Smith P.C., Atlanta, GA, for Defendants Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee, Georgia Republican Party, Inc.
Before the Court is VoteAmerica, Voter Participation Center ("VPC") and Center for Voter Information's ("CVI") (collectively "Plaintiffs") Motion for Preliminary Injunction ("Motion"). ECF No. 103. After due consideration of the briefs, accompanying evidence and oral argument, the Court finds as follows:
I. BACKGROUND
Plaintiffs challenge certain provisions of Georgia Senate Bill 202 ("SB 202") on First Amendment grounds. SB 202 governs election-related processes and was signed into law by Governor Brian Kemp on March 25, 2021.
On April 7, 2021, Plaintiffs filed suit against Brad Raffensperger, in his official capacity as the Georgia Secretary of State; Rebecca Sullivan, in her official capacity as the Vice Chair of the State Election Board; and David Worley, Matthew Mashburn and Anh Le, in their official capacities as members of the State Election Board (collectively "State Defendants").1 The Court permitted the Republican National Committee, National Republican Senatorial Committee, National Republican Congressional Committee and Georgia Republican Party, Inc. (collectively "Intervenor Defendants") to intervene in this action.
Both State Defendants and Intervenor Defendants moved to dismiss Plaintiffs’ Complaint, but the Court denied the motions on December 9, 2021. Discovery opened thereafter and is ongoing.
On April 26, 2022, Plaintiffs filed the instant Motion, asking the Court to enjoin the following three provisions of SB 202: (1) the Prefilling Provision, (2) the Anti-Duplication Provision and (3) the Disclaimer Provision (collectively the "Ballot Application Provisions"). The challenged provisions pertain to the distribution of absentee ballot application forms by third parties.
Briefing on the Motion closed on June 6, 2022, and the parties presented oral argument and evidence on June 9 and 10, 2022.
VoteAmerica is a nonpartisan, nonprofit organization whose mission is to "engage eligible voters throughout the country in the electoral process, with an emphasis on voting absentee." ECF No. 103 at 7; see also McCarthy Decl. ¶ 2, ECF No. 103-4. VoteAmerica provides online resources for voting, including an absentee ballot application tool. The tool allows voters to submit their personal information online and receive a prefilled absentee ballot application form that they can complete and send to their local election office. McCarthy Decl. ¶ 7, ECF No. 103-4.
VPC and CVI are also nonpartisan, nonprofit organizations. Lopach Decl. ¶¶ 2-3, ECF No. 103-3. Their mission is to "encourage the political participation of historically underrepresented groups" by providing members of those groups with voter resources, including vote-by-mail information. ECF No. 103 at 8; Lopach Decl. ¶¶ 2-7, ECF No. 103-3. Their core message is that "absentee voting is reliable and trustworthy," ECF No. 103 at 13; see also McCarthy Decl. ¶¶ 2-5, ECF No. 103-4; Lopach Decl. ¶¶ 7-10, ECF No. 103-3, and that "all eligible voters should participate in the political process," ECF No. 103 at 18. VPC and CVI further their mission in part by sending absentee ballot application forms to prospective voters. ECF No. 103 at 18.
Prior to the enactment of SB 202, Plaintiffs could send prospective voters an unlimited number of absentee voter application forms. VPC and CVI prefilled the absentee ballot applications with prospective voters’ personal identification information, such as name and address, before sending the applications to the voters. Tr. 43:21-44:3, June 9, 2022, ECF No. 129 (hereinafter "Tr. Day 1"). VPC and CVI obtained this information from the state's voter registration records. Id. The package mailed to prospective voters included cover information that urged the recipients to vote absentee. ECF No. 103 at 19. For example, cover letters exclaimed that the recipients’ votes matter and that voting by mail "is EASY." Id.
VPC and CVI contend that, based on their experience and research, voters are more likely to return the ballot application form when it is prefilled with their personal information, and the applications are less likely to be rejected by election officials for scrivener errors, illegible handwriting, etc. Tr. 65:8-66:1, Day 1.
The Ballot Application Provisions changed Georgia law regarding the distribution of absentee ballot application forms by third parties.
The Prefilling Provision provides that "[n]o person or entity ... shall send any elector an absentee ballot application that is prefilled with the elector's required information." O.C.G.A. § 21-2-381(a)(1)(C)(ii). Failure to comply with this provision could result in misdemeanor or felony charges. See id. §§ 21-2-598, 21-2-562(a).
VPC and CVI seek an injunction against the enforcement of the Prefilling Provision because they argue that it "restricts the content of [their] communications; interferes with their models for voter engagement, assistance, and association; and curtails the most effective means of conveying their speech." ECF No. 103 at 14. They explain that prospective voters are more likely to return ballot application forms that are prefilled, and those application forms are less likely to be rejected by election officials. Therefore, the prohibition on sending prefilled forms diminishes the effectiveness of their work.3
The Anti-Duplication Provision states that "[a]ll persons or entities ... that send applications for absentee ballots to electors in a primary, election, or runoff shall mail such applications only to individuals who have not already requested, received, or voted an absentee ballot in the primary, election, or runoff." O.C.G.A. § 21-2-381(a)(3)(A). According to VPC and CVI, this provision requires them to compare their mail distribution lists with the most recent information available from the Secretary of State's office and cull from their mailing lists the names of electors who have already requested, been issued or voted an absentee ballot. McCarthy Decl. ¶¶ 25-30, ECF No. 103-4; Lopach Decl. ¶¶ 51-60, ECF No. 103-3. Failure to comply with the Anti-Duplication Provision may result in fines of up to $100 "per duplicate absentee ballot application," O.C.G.A. § 21-2-381(a)(3)(B), and criminal penalties, including confinement of up to twelve months, see id. §§ 21-2-598, 21-2-603, 21-2-599. However, the statute provides a safe harbor for any entity that "relied upon information made available by the Secretary of State within five business days prior to the date" the applications were mailed. Id. § 21-2-381(a)(3)(A).
VPC and CVI challenge the Anti-Duplication Provision because they contend that it is "logistically impossible" to remove duplicates from the voter roll and print and mail applications within the five-day safe harbor. ECF No. 103 at 11; see also Lopach Decl. ¶¶ 33, 56, ECF No. 103-3. They explain that during the 2020 election cycle, they mailed more than eleven million absentee ballot applications in up to five waves, Tr. 38:4-10, Day 1, and preparation for each bulk mailing typically required several weeks of lead time, Lopach Decl. ¶¶ 33, 56, ECF No. 103-3.
VPC and CVI insist that it is equally untenable to cull duplicates after the packages are printed because that task would entail manually searching up to two million mailers stored on pallets to identify and remove packages addressed to voters who have already requested, been issued or voted an absentee ballot. Tr. 61:10-62:9, Day 1. They underscore that this task is even more daunting because the mailers are arranged by zip code and postal carrier route, rather than in alphabetical order.4 Id. at 61:24-62:2.
Additionally, VPC and CVI assert that removing mailers from a completed print run will likely result in increased mailing rates because the rates are tiered according to the size of the batch, and certain bulk discounts may no longer apply. Id. at 62:10-14.
Given these logistical difficulties, VPC and CVI intend to send only one wave of mailers this election cycle as close as possible to August 22, 2022, which is the first day that voters may request a ballot application form. Id...
To continue reading
Request your trial