IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CORECO JA’QAN PEARSON, et al., )

)
Plaintiffs, )
) CIVIL ACTION NO.
v. ) 1:20-cv-4809-TCB
)
BRIAN KEMP, et al., )
)
Defendants. )

DEFENDANTS’ CONSOLIDATED BRIEF IN SUPPORT OF THEIR

MOTION TO DISMISS AND RESPONSE IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF

Christopher M. Carr Carey Miller

Attorney General Josh Belinfante
Bryan K. Webb Melanie Johnson
Deputy Attorney General
Russell D. Willard Robbins Ross Alloy Belinfante
Senior Assistant Attorney General Littlefield LLC
Charlene S. McGowan 500 14th Street NW
Assistant Attorney General Atlanta, GA 30318

Office of the Georgia Attorney General

40 Capitol Square SW
Atlanta, GA 30334

Counsel for the State Defendants

 TABLE OF CONTENTS

INTRODUCTION ....................................................................................................1

FACTUAL BACKGROUND ..................................................................................4

I. Georgia’s Electronic Voting System is Secure and Has Not Been

Compromised. .............................................................................................4

A. Adoption and selection of Georgia’s electronic voting system. ................5

B. Testing and certification of Georgia’s voting system. ...............................7

C. Georgia’s electronic voting system has not been compromised and

Plaintiffs’ assertions to the contrary are disproven by the Risk-
Limiting Audit. .............................................................................................9

II. Absentee Ballots Were Validly Processed According to Law ..................12

ARGUMENT AND CITATION OF AUTHORITIES .......................................15

I. The Court Lacks Subject Matter Jurisdiction because Plaintiffs Cannot

Establish Article III Standing..................................................................15

A. Plaintiffs have not Alleged an Injury in Fact Sufficient to Form a Basis

for Standing.................................................................................................17

B. Plaintiffs do not have Standing as Presidential Electors. .......................19

C. Plaintiffs’ Alleged Injuries are not Traceable to the State

Defendants. ..................................................................................................21

II. Plaintiffs’ Claims are Moot..........................................................................24

III. Plaintiffs’ Claims are Barred by the Eleventh Amendment. ...................25

IV. Laches Bars Plaintiffs’ Claims for Post-Election Relief. ..........................27

V. The Court should Abstain from Granting Relief. .....................................30

i
 VI. Plaintiffs’ Motion for Injunctive Relief Should be Denied. ......................34

A. Plaintiffs are not likely to succeed on the merits of their claims. ..........34

B. The loss of Plaintiffs’ preferred candidate is not irreparable harm. ....44

C. The balance of equities and public interest weigh heavily against an

injunction.....................................................................................................45

CONCLUSION.......................................................................................................47

ii
 INTRODUCTION

Plaintiffs, a group of disappointed Republican presidential electors, filed a

Complaint alleging widespread fraud in the November general election in Georgia,

weaving an unsupported tale of “ballot stuffing,” the switching of votes by an

“algorithm” uploaded to the state’s electronic voting equipment that switched votes

from President Trump to Joe Biden, hacking by foreign actors from Iran and China,

and other nefarious acts by unnamed actors. Plaintiffs did not bring this election

challenge in state court as provided by Georgia’s Election Code. Instead, they ask

this Court to change the election outcome by judicial fiat and order the Governor,

the Secretary, and the State Election Board to “de-certify” the results of the election

and replace the presidential electors for Joe Biden (who were selected by a majority

of Georgia voters by popular vote as provided by state law) with presidential electors

for President Trump. Their claims would be extraordinary if true, but they are not.

Much like the mythological “kraken” monster1 after which Plaintiffs have named

this lawsuit, their claims of election fraud and malfeasance belong more to the

kraken’s realm of mythos than they do to reality.

1
A “kraken” is a mythical sea monster appearing in Scandinavian folklore, being
“closely linked to sailors’ ability to tell tall tales.” See
https://en.wikipedia.org/wiki/Kraken.
1
 The truth is that the 2020 general election was, according to the federal agency

tasked with overseeing election security, “the most secure in history.” (See Exhibit

B.)2 Cybersecurity experts have determined that there is “no evidence that any

voting system deleted or lost votes, changed votes, or was in any way

compromised.” (Id.) The accuracy of the presidential election results has been

confirmed through at least (1) the statewide risk-limiting audit; (2) a hand recount;

and (3) independent testing, which has confirmed that the security of the state’s

electronic voting equipment was not compromised.

As a threshold matter, the Eleventh Circuit issued an opinion today that

mandates dismissal of this action for lack of standing and mootness in the related

case of Wood v. Raffensperger, No. 20-14418, which raised many of the same claims

as this case and sought similar relief. (See slip opinion attached as Exhibit A). In

affirming the district court’s decision denying Wood’s motion to enjoin certification

of the election results, the panel held:

We agree with the district court that Wood lacks standing to sue
because he fails to allege a particularized injury. And because Georgia
has already certified its election results and its slate of presidential
electors, Wood’s requests for emergency relief are moot to the extent
they concern the 2020 election. The Constitution makes clear that
2
See Cybersecurity & Infrastructure Security Agency’s Joint Statement From
Elections Infrastructure Government Coordinating Council & the Election
Infrastructure Selector Coordinating Committees, November 12, 2020. A true and
correct copy of this statement is attached as Exhibit B.
2
 federal courts are courts of limited jurisdiction, U.S. Const. art. III; we
may not entertain post-election contests about garden-variety issues of
vote counting and misconduct that may properly be filed in state courts.

(slip op. at 1). This decision squarely controls, and the Court should dismiss the

action because Plaintiffs lack an injury in fact sufficient to establish Article III

standing. Certification of the election results also moots Plaintiffs’ claims, as the

Court has no authority under federal law to undo what has already been done.

Other threshold issues bar the relief Plaintiffs seek. Even if they were not

moot, Plaintiffs’ claims are barred by laches because of their inexcusable delay in

raising their challenge to the State’s electronic voting system and absentee ballot

procedures until after their preferred candidate lost. Plaintiffs’ claims are also barred

by the Eleventh Amendment to the U.S. Constitution, which bars suits for

retrospective relief against state officials acting in their official capacity absent a

waiver by the State. Similarly, despite their attempts to raise constitutional claims,

Plaintiffs’ lawsuit is really an election contest challenging the Presidential election,

which can and should be brought in a Georgia court as some of Plaintiffs’ allies have

recently done.

But most importantly, there is no credible evidence to support the drastic and

unprecedented remedy of substituting certified presidential election results with the

Plaintiffs’ preferred candidate. Without this, Plaintiffs cannot clearly establish the

3
required elements for injunctive relief. Like every state, Georgia has a compelling

interest in preserving the integrity of its election process. “Confidence in the

integrity of our electoral processes is essential to the functioning of our participatory

democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Public confidence in the

electoral process would certainly be undermined by a court invalidating the certified

results of a presidential election in which nearly 5 million Georgians cast ballots.

This Court should decline Plaintiffs’ unsupportable efforts to overturn the expressed

will of the voters, and should deny their request for relief and dismiss this action.

FACTUAL BACKGROUND

I. Georgia’s Electronic Voting System is Secure and Has Not Been

Compromised.

Plaintiffs allege wide-ranging conspiracy theories that Georgia’s electronic

voting system has been compromised by Hugo Chavez and the Venezuelan

government (or China and Iran, depending on which “expert” is asked), is infected

with a vaguely described “weighted” algorithm that switches votes between

candidates, and otherwise produces fraudulent results. In support of their argument,

Plaintiffs cite to the un-signed declaration of Dr. Shiva Ayyadurai, 3 other redacted

3
Dr. Ayyadurai claims he is “an engineer with vast experience in engineering
systems, pattern recognition, mathematical and computational modeling and
analysis.” [Doc. 6-1, ¶ 2]. Elsewhere, Dr. Ayyadurai claims to be the inventor of
4
declarations, hearsay in the form of various news articles, and contested evidentiary

filings in the case Curling v. Raffensperger, No. 1:17-cv-2989 (N.D. Ga.).4

The Plaintiffs—blinded by either willful ignorance or a lack of basic

knowledge of Georgia elections—are incorrect. Georgia’s electronic voting system

was adopted in compliance with state and federal law, is certified by the Election

Assistance Commission following inspection and testing conducted by independent

Voting System Test Laboratories (“VSTLs”), and has not been compromised. A

review of the facts, as opposed to Plaintiffs’ conspiracies, confirms the inaccuracy

of Plaintiffs’ allegations.

A. Adoption and selection of Georgia’s electronic voting system.

In 2019, the Georgia General Assembly enacted House Bill 316 (“HB 316”),

a sweeping and comprehensive reform of Georgia’s election laws, which also

modernized and further secured Georgia’s voting system. Specifically, the General

Assembly chose to require a new unified system of voting throughout the State—

electronic mail. See Sam Biddle, The Crazy Story of the Man Who Pretended to
Invent Email, Business Insider (Mar. 6, 2012),
https://www.businessinsider.com/the-crazy-story-of-the-man-who-pretended-to-
invent-email-2012-3. State Defendants object to any consideration of Dr.
Ayyadurai’s report as he is not qualified to offer the opinions proffered and utilizes
unreliable methodology.
4
The Curling matter is now subject to two appeals pending in the Eleventh Circuit
Court of Appeals, docket numbers 20-13730 and 20-14067.
5
moving the State away from the secure, but older, direct-recording electronic

(“DRE”) voting system to a voting system utilizing Ballot-Marking Devices

(“BMDs”) and optical scanners. The General Assembly determined this replacement

of DREs with BMDs should occur “as soon as possible.” O.C.G.A. § 21-2-300(a)(2).

The legislation placed the responsibility of selecting the equipment for the new

voting system on the Secretary of State. O.C.G.A. § 21-2-300(a). However, contrary

to Plaintiffs’ assertions that Governor Kemp and Secretary Raffensperger “rushed

through the purchase of Dominion voting machines and software,” (Doc. 6, p. 15),

the procurement of Georgia’s new voting system was completed through an open

and competitive bidding process as required by Georgia’s State Purchasing Act,

O.C.G.A. § 50-5-50. Secretary Raffensperger did not make the purchasing decision

alone, but established a Selection Committee comprised of seven individuals who

were tasked with reviewing bid proposals.5 Selection Committee members evaluated

those proposals using criteria and processes set forth on a Master Technical

Evaluation spreadsheet.6 Of the three requests for proposals evaluated by the

Selection Committee, Dominion Voting Systems (“Dominion”) received the highest

overall score. Id.

5
See https://sos.ga.gov/admin/uploads/Selection%20Committee%20Bios.pdf
6
See https://sos.ga.gov/admin/uploads/MasterTechnicalEvaluation_redacted.xls
6
 On July 29, 2019, Secretary Raffensperger posted a Notice of Intent to Award

the contract for the statewide voting system to Dominion. No bid protests were

received by the State, and Secretary Raffensperger issued a final Notice of Intent to

Award on August 9, 2019. Id. The voting system consists of BMDs that print ballots

by way of a connected printer and optical scanners connected to a locked ballot box.

The Dominion BMD allows the voter to make selections on a screen and then prints

those selections onto a paper ballot. The voter has an opportunity to review the paper

ballot for accuracy before placing it into the scanner. After scanning, the paper ballot

drops into a locked ballot box connected to the scanner. BMDs thus create an

auditable, verifiable ballot, as required by statute. O.C.G.A. § 21-2-300(a)(2)

(“electronic ballot markers shall produce paper ballots which are marked with the

elector’s choices in a format readable by the elector”) (emphasis added).

B. Testing and certification of Georgia’s voting system.

Georgia’s voting system is subject to two different certification requirements.

First, the voting system must have been certified by the United States Election

Assistance Commission (“EAC”) at the time of procurement. O.C.G.A. § 21-2-

300(a)(3). Second, the voting system must also be certified by the Secretary of State

as safe and practicable for use. Georgia’s BMD system meets both requirements.

7
The Help America Vote Act (“HAVA”) created the EAC, which set up a rigorous

process for voting-equipment certification, working with committees of experts and

coordinating with the National Institute of Standards and Technology. 52 U.S.C. §

20962; see also 52 U.S.C. §§ 20962, 20971 (test lab standards). The EAC certifies

voting systems as in compliance with the Voluntary Voting System Guidelines

(“VVSG”), version 1.0, and does so by utilizing approved, independent Voting

System Test Laboratories (“VSTL”). In the case of the voting system utilized in

Georgia, SLI Compliance served as the VSTL tasked with testing the system for

EAC purposes. The system utilized by Georgia, Democracy Suite 5.5-A, was

certified by the EAC on January 30, 2019.7

Separately, the Secretary of State utilized another independent EAC-certified

VSTL, Pro V&V, to conduct testing for state certification of the voting system.

Following the VSTL’s testing, the Secretary issued a Certification of the Dominion

Voting Systems as meeting all applicable provisions of the Georgia Election Code

and Rules of the Secretary of State on August 9, 2019.8 That certification has been

7
See United States Election Assistance Commission, Agency Decision — Grant of
Certification, https://www.eac.gov/sites/default/files/voting_system/
files/Decision.Authority.Grant.of.Cert.D-Suite5.5-A.pdf
8
Plaintiffs erroneously claim that both the Certificate and a test report signed by
Michael Walker were “undated” and have attached altered documents that have
been cropped to remove the dates of the documents. See Compl., ¶12 and Exhibits
5 and 6 thereto. A correct copy of the Certificate showing the date of August 9,
8
updated due to de minimis changes in system components on two different occasions

since, on February 19, 2020, and again on October 5, 2020.

C. Georgia’s electronic voting system has not been compromised and

Plaintiffs’ assertions to the contrary are disproven by the Risk-Limiting
Audit.

Plaintiffs’ conjecture and speculation does not rebut the reality that Georgia’s

voting system has not been compromised. Not only have two separate EAC-Certified

independent VSTLs confirmed that the system operates as intended, but Georgia’s

risk-limiting audit (“RLA”) further confirms that no “weighted” vote switching

occurred.

Shockingly, the basis for Plaintiffs’ outlandish claims of system compromise

are rooted in suspect statistical—not software—analyses that they suggest

irrefutably proves vote switching occurred. For example, in Dr. Ayyadurai’s

unsigned declaration, the author references (without citation) vote totals in certain

precincts for the proposition that a “weighted race” algorithm must be responsible.

(See generally Doc. 6-1.) The author, however, makes no attempt to evaluate any

other reasons voters may have chosen not to vote for President Trump. Indeed, the

2019 may be viewed at

https://sos.ga.gov/admin/uploads/Dominion_Certification.pdf. A copy of the test
report showing a date of August 7, 2019 may be found at
https://sos.ga.gov/admin/uploads/Dominion_Test_Cert_Report.pdf.
9
author of that declaration speculates that 48,000 of 373,000 votes cast in Dekalb

County were switched in this manner from Trump to Biden, (Doc. 6-1, p. 28),

meaning that (under the author’s theory) the results in Dekalb County would be

106,373 for Trump to 260,227 for Biden (or approximately 28.6% to 70%). Of

course, this would be extraordinarily unusual for heavily democratic Dekalb County,

in which President Trump received 51,468 votes (16.47%) in 2016, when the State

was using an entirely different voting system. 9

Moreover, the existence of such a “weighted” algorithm would have been

detected in the RLA conducted this year. Following the counties’ tabulation of the

November election results, but prior to certification, Secretary Raffensperger was

required by law to conduct a risk-limiting audit in accordance with O.C.G.A. § 21-

2-498. State Election Board Rule 183-1-15-.04 provides that the Secretary of State

shall choose the particular election contest to audit. Recognizing the importance of

clear and reliable results for such an important contest, Secretary Raffensperger

selected the presidential race for the audit.10 See Exhibit C.

9
See Dekalb County Election Results, 2016, available at
https://results.enr.clarityelections.com/GA/DeKalb/64036/183321/en/summary.ht
ml.
10
See Statement of Secretary Raffensperger, “Historic First Statewide Audit of
Paper Ballots Upholds Results of Presidential Race, attached as Exhibit C hereto
and available at
10
 County election officials were then required to count by hand all absentee

ballots and paper ballots printed by the Dominion BMDs. See id. The audit

confirmed the same outcome of the presidential race as the original tabulation using

the Dominion voting systems equipment. Id. While there was a slight differential

between the audit results and the original machine counts, the differential was well

within the expected margin of error that occurs when hand-counting ballots. Id. A

2012 study by Rice University and Clemson University found that hand counting

ballots in post-election audit or recount procedures can result in error rates of up to

2 percent. Id. In Georgia’s audit, the highest error rate reported in any county recount

was 0.73%, and most counties found no change in their final tally. Id.

The audit results refute Plaintiffs’ speculation that Dominion machines or

software might have somehow flipped, switched, or “stuffed” ballots in the 2020

presidential election. Id. Because Georgia voters can verify that their paper ballots

(whether hand-marked absentee ballots or ballots marked by BMDs) accurately

reflect their intended votes, any actual manipulation of the initial electronic vote

count would have been revealed when the hand count of paper ballots presented a

different result. The fact that this did not happen forecloses the possibility that

https://sos.ga.gov/index.php/elections/historic_first_statewide_audit_of_paper_ball
ots_upholds_result_of_presidential_race
11
Dominion equipment or software had been manipulated to somehow record false

votes for one candidate or to eliminate votes from another.

In sum, the components of Georgia’s voting system have been evaluated,

tested, and certified by two different independent laboratories as compliant with both

state and federal requirements and safe for use in elections. Neither of those two

VSTLs identified any “weighted” vote counting algorithm, nor any other

impropriety. And, in Georgia’s 2020 general election, the correct operation of the

voting system was again confirmed by the state’s risk-limiting audit.

II. Absentee Ballots Were Validly Processed According to Law

Plaintiffs’ claim that the rules under which county elections officials verified

absentee ballots are contrary to Georgia law is also without merit. Absentee ballots

for the 2020 general election were processed by county election officials according

to the procedures established by the Georgia legislature. These procedures were part

of HB 316, bipartisan legislation passed in 2019 to reform the state’s election code

and implement a new electronic voting system. The reforms kept in place Georgia’s

policy of “no excuse” absentee voting, but modified the technical requirements for

absentee ballots. HB 316 modified the language of the oath on the outer absentee

ballot envelope to leave the signature requirement but remove the elector’s address

and date of birth. See O.C.G.A. § 21-2-384. Further, HB 316 added a “cure”

12
provision, which requires election officials to give a voter until three days after the

date of the election to cure an issue with the voter’s signature before rejecting an

absentee ballot for a missing or mismatched signature on the outer envelope. See

O.C.G.A. § 21-2-386(a)(1)(C). The “cure” provision was added to the statute’s

requirement that election officials “promptly notify” the voter of a rejected absentee

ballot due to a missing or mismatched signature.

On November 6, 2019, the Democratic Party of Georgia, DSCC, and DCCC

(collectively, “Political Party Organizations”) sued the State Defendants, alleging

that the “promptly notify” language of O.C.G.A. § 21-2-386(a)(1)(C) was vague and

ill-defined and left counties without standards for verifying signatures on absentee

ballots. (App’x Vol. I at 144-49).

While that action was pending, the State Election Board (“SEB”) approved a

rule that established a uniform standard for counties to follow to “promptly notify”

voters when their absentee ballot is rejected as required by O.C.G.A. § 21-2-

386(a)(1)(C). The rule provides that when a timely submitted absentee ballot is

rejected, the board of registrars or absentee ballot clerk must send the voter notice

of the rejection and opportunity to cure within three business days, or by the next

business day if within ten days of Election Day. Ga. Comp. R. & Regs. r. 183-1-14-

.13 (the “Prompt Notification Rule”).

13
 The Prompt Notification Rule was adopted pursuant to the SEB’s rule-making

authority under O.C.G.A. § 21-2-31(2). It provides a uniform three-day standard for

“prompt” notification required by O.C.G.A. § 21-2-386(a)(1)(C) when an absentee

ballot is rejected, so that all counties give notice in a uniform manner. The Prompt

Notification Rule was promulgated pursuant to the Georgia Administrative

Procedure Act, published for public comment, and discussed at multiple public

hearings before it became effective on March 22, 2020.

Because the Prompt Notification Rule resolved the issues in the pending

lawsuit, the parties resolved the matter in a settlement agreement that included,

among other terms, an agreement that (1) the State Election Board would promulgate

and enforce the Prompt Notification Rule; and (2) the Secretary of State would issue

guidance to county election officials regarding the signature matching process.

On May 1, 2020, the Secretary of State distributed an Official Election

Bulletin (“OEB”), advising county election officials of the Prompt Notification Rule

and providing guidance for reviewing signatures on absentee-ballot envelopes.

(Declaration of Chris Harvey ¶ 5).11 The OEB instructed that after an election official

makes an initial determination that the signature on the absentee ballot envelope does

11
The Harvey Declaration was submitted in the related case of Wood v.
Raffensperger, Civil Action No. 1:20-CV-4651-SDG and is attached as Exhibit D.
14
not match the signature on file for the voter pursuant to O.C.G.A. § 21-2-

386(a)(1)(B) and (C), two additional registrars, deputy registrars, or absentee ballot

clerks should also review the signature, and the ballot should be rejected if at least

two of the three officials agree that the signature does not match. (Id.) The OEB

expressly instructs county officials to comply with state law. (Id.)

Contrary to Plaintiff’s claim that the Prompt Notification Rule and the OEB

have significantly disrupted the signature verification process, these measures have

had no detectable effect on the absentee ballot rejection rate since the last general

election in 2018. (Harvey Dec. ¶¶ 6, 7). An analysis of the number of absentee-ballot

rejections for signature issues for 2020 as compared to 2018 found that the rejection

rate for absentee ballots with missing or non-matching signatures in the 2020 general

election was 0.15%; the same rejection rate for signature issues as in 2018 before

the new measures were implemented. (Id.)

ARGUMENT AND CITATION OF AUTHORITIES

I. The Court Lacks Subject Matter Jurisdiction because Plaintiffs Cannot

Establish Article III Standing.

Plaintiffs raise three constitutional counts in their Complaint: (1) that the State

Defendants violated the Electors and Elections Clauses of Articles I and II (“Count

I”); that the State Defendants violated the equal protection clause of the U.S.

Constitution (“Count II”); that the State Defendants denied Plaintiffs Due Process
15
related to “alleged disparate treatment of absentee/mail-in voters among different

counties” (“Count III”); and that the State Defendants denied Plaintiffs Due Process

“on the right to vote” (“Count IV”). Plaintiffs also bring a state law election contest

claim against Defendants pursuant to O.C.G.A. § 21-5-522, invoking the Court’s

supplemental jurisdiction under 28 U.S.C. § 1367. However, because Plaintiffs

cannot establish standing as to any of these causes of action, the Court lacks

jurisdiction to consider the merits of Plaintiffs’ claims and the case should be

dismissed.

Federal courts have an independent obligation to ensure that subject-matter

jurisdiction exists before reaching the merits of a dispute. Jacobson v. Fla. Sec’y of

State, 974 F.3d 1236, 1245 (11th Cir. 2020) (vacating and ordering dismissal of

voting rights case due to lack of standing). “For a court to pronounce upon . . . the

constitutionality of a state or federal law when it has no jurisdiction to do so is, by

very definition, for a court to act ultra vires.” Id. (citation omitted). “If at any point

a federal court discovers a lack of jurisdiction, it must dismiss the action.” Id.

Article III of the Constitution limits the subject-matter jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. A party invoking

federal jurisdiction bears the burden of establishing standing at the commencement

of the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As an

16
irreducible constitutional minimum, Plaintiffs must show they have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision. Lujan, 504 U.S.

at 561. As the party invoking federal jurisdiction, Plaintiffs bear the burden at the

pleadings phase of “clearly alleg[ing] facts demonstrating each element.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

A. Plaintiffs have not Alleged an Injury in Fact Sufficient to Form a Basis

for Standing.

Injury in fact is the “first and foremost” of the standing elements. Spokeo, 136

S. Ct. at 1547. An injury in fact is “an invasion of a legally protected interest that is

both concrete and particularized and actual or imminent, not conjectural or

hypothetical.” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir.

2020); see also Bognet v. Sec’y Commonwealth of Pa., No. 20-3214, 2020 U.S. App.

LEXIS 35639 at *16 (3d Cir. Nov. 13, 2020) (“To bring suit, you—and you

personally—must be injured, and you must be injured in a way that concretely

impacts your own protected legal interests.”).

The alleged injury must be “distinct from a generally available grievance

about government.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). This requires

more than a mere “keen interest in the issue.” Trump v. Hawaii, 138 S. Ct. 2392,

2416 (2018); see also Lance v. Coffman, 549 U.S. 437, 440– 41 (2007) (“Our refusal
17
to serve as a forum for generalized grievances has a lengthy pedigree. . . . [A]

generalized grievance that is plainly undifferentiated and common to all members of

the public” is not sufficient for standing).

It is for this reason that the Eleventh Circuit found lack of standing in the

Wood case. The plaintiff in that case could not “explain how his interest in

compliance with state election laws is different from that of any other person. Indeed,

he admits that any Georgia voter could bring an identical suit. But the logic of his

argument sweeps past even that boundary. All Americans, whether they voted in this

election or whether they reside in Georgia, could be said to share [plaintiff’s] interest

in “ensur[ing] that [a presidential election] is properly administered.” (slip op., Ex.

A, at 11).

Plaintiffs have fared no better at articulating a particularized grievance that is

somehow different than that of the general voting public. In fact, throughout their

Complaint, Plaintiffs allege that their interests are one and the same as any Georgia

voter. See, e.g. Compl. at ¶ 156 (“Defendants…diluted the lawful ballots of Plaintiffs

and of other Georgia voters and electors…”); ¶ 163 (“Defendants further violated

Georgia voters’ rights…”), ¶ 199 (“all candidates, political parties, and voters,

including without limitation Plaintiffs, have a vested interest in being present and

having meaningful access to observe and monitor the electoral process”). Having

18
confirmed that their interests are no different than the interests of all Georgia voters,

Plaintiffs have articulated only generalized grievances insufficient to confer standing

upon them to pursue their claims.

B. Plaintiffs do not have Standing as Presidential Electors.

Plaintiffs assert that by virtue of their status as Republican presidential

electors, they are “candidates” that have standing to raise whatever variety of

election complaints that they may choose. For this proposition, they cite to only a

single case: Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020). However, Carson was

predicated on Minnesota election laws that differ from Georgia’s and upon facts that

are distinguishable from the Plaintiffs’ case. Further, the Third Circuit in Bognet

recently rejected Plaintiff’s broad reading of Carson. In that case, the court found

that a congressional candidate lacked standing to pursue claims under the Elections

and Elector clauses based on a generalized “right to run.” It specifically noted its

disagreement with Carson, saying “The Carson court appears to have cited language

from [Bond v. United States, 564 U.S. 211 (2011)] without considering the context—

specifically, the Tenth Amendment and the reserved police powers—in which the

U.S. Supreme Court employed that language. There is no precedent for expanding

Bond beyond this context, and the Carson court cited none.” 2020 U.S. App. LEXIS

35639 at *24, fn. 6; see also Hotze v. Hollins, No. 4:20-CV-03709, 2020 WL

19
6437668 at *2 (S.D. Tex. Nov. 2, 2020) (holding candidate lacked standing under

Elections Clause); Looper v. Boman, 958 F.Supp. 341, 344 (M.D. Tn. 1997)

(candidate lacked standing to claim that violations of state election laws had

disenfranchised voters as “[h]ow other people vote…does not in any way relate to

plaintiff’s own exercise of the franchise and further does not constitute concrete and

specific judicially cognizable injury.”); Moncier v. Haslam, 1 F.Supp.3d 854 (E.D.

Tn. 2014) (plaintiff denied opportunity to be placed on ballot as candidate for

judicial office shared the same generalized grievance as a large class of citizens and

failed to demonstrate concrete and particularized injury).

In finding that presidential elector did have standing to challenge purported

violations of state election laws, Carson relies heavily on specific provisions of

Minnesota elections law that treated presidential electors the same as other

candidates for office. However, in Georgia, unlike in Minnesota, all persons

possessing the qualifications for voting and who have registered in accordance with

the law are considered “Electors.” O.C.G.A. § 21-2-2(7). Presidential electors in

Georgia are not elected to public office, but perform only a limited ministerial role

in which they appear at the Capitol on the designated date and time to carry out the

expressed will of Georgia’s electors by casting their votes for President and Vice

President in the Electoral College. O.C.G.A. § 21-2-11. Presidential electors need

20
not file notices of candidacy otherwise required of political candidates. O.C.G.A.

§ 21-2-132. Their names do not appear on the ballot; instead, the names of the

candidates for President and Vice President appear on the ballot. O.C.G.A. § 21-2-

325. Georgia electors do not elect any presidential electors individually; instead,

“that slate of candidates shall be elected to such office which receives the highest

number of votes cast.” O.C.G.A. § 21-2-501(f).

The Eleventh Circuit has held that voters do not suffer a “concrete and

particularized injury” simply because their preferred candidate loses an election (see

Jacobson, 974 F.3d at 1252), and that such a harm would be based on “generalized

partisan preferences” which are insufficient to establish standing. Id.; see also Gill

v. Whitford, 138 S.Ct. 1916, 1933 (2018) (rejecting standing based on “group

political interests, not individual legal rights”). Plaintiffs have failed to articulate

how they, as presidential electors, have suffered any injury not common to their

partisan group political interests, or that would not have also been suffered by all

Georgia electors generally.

C. Plaintiffs’ Alleged Injuries are not Traceable to the State Defendants.

Not only have Plaintiffs failed to demonstrate an injury in fact, they cannot

satisfy the causation requirement of standing, which requires that “a plaintiff’s injury

must be ‘fairly traceable to the challenged action of the defendant, and not the result

21
of the independent action of some third party not before the court.’” Jacobson, 974

F.3d at 1253 (citation omitted); see also Hollywood Mobile Estates Ltd. v. Seminole

Tribe of Fla., 641 F.3d 1259, 1265 (11th Cir. 2011) (holding that an injury sufficient

to establish standing cannot “result [from] the independent action of some third party

not before the court.”).

Plaintiffs have introduced declarations and affidavits from witnesses that raise

disparate complaints about a variety of events that occurring at various times and

places during the November election and subsequent audit. These complaints focus

on actions allegedly taken by local elections officials and other third parties that are

not named as defendants in this case.12 Whatever one might conclude from these

varied allegations, they all have one thing in common: none of the actions

complained of are attributable in any way to any of the State Defendants. Instead,

they were taken by local elections officials not named as parties to this case, and any

12
Examples of these complaints include allegations that Dekalb County elections
workers were “more hostile” to Republican observers than Democratic observers
(Silva Aff. 06-9 Ex. 18, ¶14), that a Cobb County volunteer audit monitor witnessed
“already separated paper machine receipt ballots with barcodes in the Trump tray,
placing them in to the Biden tray” (Johnson Aff., Compl., Ex. 17, ¶¶4-5), and that
an audit observer at the Lithonia location was too far away from ballots to see how
they had been voted and that some auditors were validating ballots without reading
them aloud to another auditor. (O’Neal Aff., 6-10, Exhibit J, ¶5-8).
22
injuries that might have resulted from those actions are not traceable to and cannot

be redressed by the State Defendants.

With regard to Plaintiffs’ conspiratorial claims related to Dominion

equipment and software, there has been no allegation whatsoever that any of the

State Defendants participated in any conspiracy or collusion with Dominion or any

other third party malicious actor to cause any harm to Plaintiffs or any Georgia

voters. The only allegation made against any of the State Defendants is that

Governor Kemp and Secretary Raffensperger somehow “rushed” through the

equipment selection process. However, this process was an open, competitive

bidding process, conducted pursuant to Georgia procurement law, and during

Curling hearings, and no allegation has been made as to how any action or inaction

taken by any of the State Defendants during that bidding process might have caused

any of Plaintiffs’ alleged injuries.

Finally, to the extent that Plaintiffs claim injury as a result of any improprieties

in the mailing, processing, validation or tabulation of absentee ballots, these injuries

again would not be traceable to any of the State Defendants. Absentee ballots are

mailed, processed, validated, and tabulated by local elections officials. See O.C.G.A.

§ 21-2-386. Having failed to establish that any of their purported injuries are

traceable to or redressable by the State Defendants, Plaintiffs lack standing and their

23
claims should be dismissed. See Jacobson, 974 F.3d at 1253. See also Anderson v.

Raffensperger, 1:20-CV-03263, 2020 WL 6048048, at *22 (N.D. Ga. Oct. 13, 2020)

(applying Jacobson to dismiss election related claims against State Defendants).

II. Plaintiffs’ Claims are Moot.

The Eleventh Circuit held in the Wood decision today that federal challenges

to the certification of the presidential election results in Georgia are now moot. “‘We

cannot turn back the clock and create a world in which’ the 2020 election results are

not certified.” Wood v. Raffensperger, slip op. at 17 (quoting Fleming v. Gutierrez,

785 F.3d 442, 445 (10th Cir. 2015)). Accordingly, the case “no longer presents a live

controversy with respect to which the court can give meaningful relief.” Troiano v.

Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th Cir.

2004). Mootness is jurisdictional—because a federal court may only adjudicate

cases and controversies, and a ruling that cannot provide meaningful relief is an

impermissible advisory opinion. Id.

The Court “cannot prevent what has already occurred.” De La Fuente v.

Kemp, 679 F. App’x 932, 933 (11th Cir. 2017); Yates v. GMAC Mortg. LLC, No.

1:10-CV-02546-RWS, 2010 WL 5316550, at *2 (N.D. Ga. Dec. 17, 2010) (“The

Court is powerless to enjoin what has already occurred.”). While Plaintiffs

purportedly seek “decertification” of the certifications that Secretary Raffensperger

24
and Governor Kemp have already executed, they cite no authority whatsoever to

support the notion that a court could order such relief. If the Plaintiffs believed that

the results certified by Secretary Raffensperger and Governor Kemp were invalid

for fraud or other grounds specified in O.C.G.A. § 21-2-522, Georgia provides an

adequate remedy at law by setting forth the procedures for a state law election

contest to be initiated in the Superior Court of Fulton County. O.C.G.A. §§ 21-2-

520, et seq. However, there is simply no precedent for a federal court to issue an

injunction requiring either Governor Kemp or Secretary Raffensperger to

“decertify” their already-issued certifications or to certify results in direct

contravention of the actual election result.

III. Plaintiffs’ Claims are Barred by the Eleventh Amendment.

Plaintiffs’ federal claims are asserted against the individually named State

Defendants in their official capacities. (Doc. 1 at ¶¶ 31-33). These claims are barred

by the Eleventh Amendment. The Eleventh Amendment bars suit against a State or

one of its agencies, departments or officials, absent a waiver by the State or a valid

congressional override, when the State is the real party in interest. Kentucky v.

Graham, 473 U.S. 159, 169 (1985). Because claims against public officials in their

official capacities are merely another way of pleading an action against the entity of

which the officer is an agent, “official capacity” claims against a state officer are

25
included in the Eleventh Amendment’s bar. Kentucky, 473 U.S. at 165. While an

exception to Eleventh Amendment immunity exists under Ex parte Young, 209 U.S.

123 (1908), it is limited to suits against state officers for prospective injunctive

relief. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997). “A

federal court cannot award retrospective relief, designed to remedy past violations

of federal law.” Id.

Plaintiffs’ claims for injunctive and declaratory relief, premised on the

conduct of the November 3, 2020 General Election and the certification of results

that have already taken place, are barred because they are retrospective in nature.

“Retrospective relief is backward-looking, and seeks to remedy harm ‘resulting from

a past breach of a legal duty on the part of the defendant state officials.’” Seminole

Tribe of Fla. v. Fla. Dep’t of Revenue, 750 F.3d 1238, 1249 (11th Cir. 2014) (quoting

Edelman v. Jordan, 415 U.S. 651, 668 (1974)). “Simply because the remedy will

occur in the future, does not transform it into ‘prospective’ relief. The term,

‘prospective relief,’ refers to the ongoing or future threat of harm, not relief.”

Fedorov v. Bd. of Regents, 194 F. Supp. 2d 1378, 1387 (S.D. Ga. 2002). Plaintiffs’

claims for any relief related to the rules and regulations governing the conduct of the

November 3, 2020, election or any alleged past security lapses, miscounting of votes,

26
or election irregularities are entirely retrospective and barred by the Eleventh

Amendment.

IV. Laches Bars Plaintiffs’ Claims for Post-Election Relief.

In Wood v. Raffensperger, 2020 U.S.Dist. LEXIS 218058 (Nov. 20. 2020),

this Court found that claims raised by Plaintiffs’ counsel Lin Wood were barred by

the doctrine of laches. While Plaintiffs’ claims overlap significantly with Wood’s

claims, the facts here are even more compelling when it comes to a finding of laches.

Plaintiffs waited even longer than Wood did to file this action. As in Wood, virtually

all of the complaints that Plaintiffs allege regarding the security of Georgia’s voting

system or the propriety of State Election Board rules or regulations could have been

raised prior to the election.

To establish laches, State Defendants must show “(1) there was a delay in

asserting a right or a claim, (2) the delay was not excusable, and (3) the delay caused

[them] undue prejudice.” United States v. Barfield, 396 F.3d 1144, 1150 (11th Cir.

2005); see also Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1326 (11th

Cir. 2019) (“To succeed on a laches claim, [defendant] must demonstrate that

[p]laintiffs inexcusably delayed bringing their claim and that the delay caused it

undue prejudice.”).

27
 Where, as here, a challenge to an election procedure is not filed until after an

election has already been conducted, the prejudice to the state and to the voters that

have cast their votes in the election becomes particularly severe. Once the election

has been conducted, any harm that might arise from a purported constitutional

violation must be weighed against “such countervailing equitable factors as the

extremely disruptive effect of election invalidation and the havoc it wreaks upon

local political continuity.” Soules v. Kauaians for Nukolii Campaign Committee, 849

F.2d 1176, 1177 (9th Cir. 1988). For this reason, “if aggrieved parties, without

adequate explanation, do not come forward before the election, they will be barred

from the equitable relief of overturning the results of the election.” Id. at 1180-81

(citing Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182-83 (4th

Cir. 1983); see also Curtin v. Va. State Bd. of Elections, No. 1:20-cv-0546, 2020

U.S. Dist. LEXIS 98627, *16-17 (E.D. Va. May 29, 2020) (rejecting a similar

challenge to state official guidance as barred by laches due to plaintiffs’ failure to

raise the challenge prior to the election). To hold otherwise “permit[s], if not

encourage[s], parties who could raise a claim to lay by and gamble upon receiving a

favorable decision of the electorate and then, upon losing, seek to undo the ballot

results in a court action.” Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973).

28
 Plaintiffs delayed considerably in asserting their claims. To the extent that

they had any concerns regarding the vulnerability of Dominion’s voting systems,

they could have raised those claims long before the election. Each of the absentee

ballot regulations and procedures that Plaintiffs now complain of were adopted well

before the November 3, 2020 election, and any claims related to the application of

those rules during that election are subject to dismissal here for the same reasons

that they were dismissed in Wood. And, with regard to the purported “irregularities”

reported by Plaintiffs’ voter and observer declarants, Plaintiffs offer no explanation

why they did not attempt to address those issues with the relevant local election

officials at the time, but instead waited until after the election officials completed

the initial count and audit and certified those results.

As the Wood court recognized, Defendants and the public at large would be

significantly injured if Plaintiffs were permitted to raise these challenges after the

election has already taken place. 2020 U.S.Dist. LEXIS 218058 at *23 (“Wood’s

requested relief could disenfranchise a substantial portion of the electorate and erode

the public’s confidence in the electoral process.”); see also Arkansas United v.

Thurston, No. 5:20-cv-5193, 2020 WL 6472651, at *5 (W.D. Ark. Nov. 3, 2020)

(“[T]he equities do not favor intervention where the election is already in progress

and the requested relief would change the rules of the game mid-play.”).

29
V. The Court should Abstain from Granting Relief.

The relief Plaintiffs seek is nothing short of overturning the November

election. The ad damnum clause asks this Court to (1) order the Defendants to de-

certify the election results; (2) enjoin the Governor from transmitting the certified

results to the Electoral College; and instead (3) require the Governor to transmit a

certification that President Trump received the majority of votes in Georgia. (Doc.

1 ¶ 211(1-3); Doc. 101 at 100.) There are numerous problems with this proposed

relief. First, it violates the principles of federalism. Second, the Pullman doctrine

warrants dismissal. Finally, and at the very least, this lawsuit should be stayed

pending the outcome of state election challenges pursuant to the Colorado River

doctrine.

On federalism, the Eleventh Circuit recently held that it is “doubtful” that a

federal court could compel a state to promulgate a regulation. Jacobson, 974 F.3d at

1257. First, federal courts are only able to order state defendants from “refrain[ing]

from violating federal law.” Id. (citing Va. Office for Prot. & Advocacy v. Stewart,

563 U.S. 247, 255 (2011)). Much of Plaintiffs’ proposed relief cannot be reconciled

with this binding precedent. Specifically, Plaintiffs do not seek to just refrain the

Governor and the Secretary, they seek to compel them to certify a different candidate

than the election laws demand, which is wholly inconsistent with Georgia’s Election

30
Code and the thrice-audited results. The relief sought is particularly offensive to

federalism principles in the light of the election challenges pending in state court

that significantly mirror the claims brought in this lawsuit. As the Plaintiffs

themselves now recognize, “Georgia law makes clear that post-election litigation

may proceed in state Court.” Wood v. Raffensperger, slip op. at 9. Indeed, Plaintiffs’

Complaint repeatedly claims that they are bringing their lawsuit pursuant to Georgia

statutes that provide the very basis to challenge elections. (Doc. No. 1 ¶¶ 150

(O.C.G.A. § 21-2-522), 183-207 (O.C.G.A. §§ 21-2-521, 21-2-522). It is hard to

imagine a more significant challenge to federalism than for a party to come to federal

court asking that court to reverse certified election results without giving the State

an opportunity to act pursuant to its own statutory scheme.

These concerns are recognized by the Pullman doctrine, which is “appropriate

‘in cases presenting a federal constitutional issue which might be mooted or

presented in a different posture by a state court determination of pertinent state

law.’” 3637 Corp., Inc. v. City of Miami, 314 F. Supp. 3d 1320, 1334 (S.D. Fla.

2018) (citing Moheb, Inc. v. City of Miami, 756 F.Supp.2d 1370, 1372 (S.D. Fla.

2010) (quoting Abell v. Frank, 625 F.2d 653, 656–57 (5th Cir. 1980)). Here, the

constitutional issue presented—whether the legislature’s delegation of rulemaking

authority to the SEB is valid, and whether the SEB exceeded that authority when

31
promulgating various emergency rules—violates the federal constitution. In other

words, the Court cannot answer the constitutional question without first deciding

that the state agency exceeded its authority under State law. This is a classic Pullman

situation, which examines and requires that “(1) there must be an unsettled issue of

state law; and (2) there must be a possibility that the state law determination will

moot or present in a different posture the federal constitutional questions

raised.” Id. at 1372–73 (citing Abell, 625 F.2d at 657). Judge Jones reached the same

conclusion last December in another election-related lawsuit, Fair Fight, Inc. v.

Raffensperger.13 This Court should do the same and dismiss the lawsuit.

For a similar reason, Plaintiffs’ requested relief violates the Colorado River

Doctrine. There are numerous pending challenges to the November election that

have properly been filed in Georgia’s courts, including, according to press

statements by Mr. Wood’s counsel in the Wood litigation, one filed late on December

4, 2020, by President Trump. At least one seeks nearly identical relief as the

Plaintiffs’ lawsuit. Under similar circumstances, the Eleventh Circuit has indicated

that a stay of federal proceedings is warranted under the Colorado River doctrine,

which “authorizes a federal ‘district court to dismiss or stay an action when there is

an ongoing parallel action in state court.’” Moorer v. Demopolis Waterworks &

13
A true and accurate copy of the December Order is attached as Exhibit E.
32
Sewer Bd., 374 F.3d 994, 997–98 (11th Cir. 2004) (citing LaDuke v. Burlington

Northern Railroad Co., 879 F.2d 1556, 1558 (7th Cir.1989)). Factors considered in

the Colorado River analysis include: the desire to “avoid piecemeal litigation,”

whether state or federal law governs the issue, and whether the state court can protect

all parties’ rights. Id. at 987 (citation omitted).

Each of these factors warrants staying the litigation. The bulk of Plaintiffs’

complaint addresses issues of state law: how absentee ballot requests and ballots are

inspected, the authority of the General Assembly to delegate authority to the SEB

and the Secretary, and the criteria for certifying elections. Moreover, the state court

election challenges are to move swiftly. Thus, the possibility of piecemeal litigation

is real and concrete. Finally, the relief that the parties in the state court challenges

can obtain would protect all parties’ rights. The remedies available to Georgia courts

when ruling on election challenges are spelled out in state law. See O.C.G.A. § 21-

2-527(d). Under these circumstances, Colorado River factors are satisfied, and the

election challenge should proceed in state court under the same state laws that the

Plaintiffs raised in their Complaint.

33
VI. Plaintiffs’ Motion for Injunctive Relief Should be Denied.

Even if Plaintiffs could overcome the jurisdictional defects that are fatal to

their claims, they still fail to satisfy the requirements for the extraordinary injunctive

relief they seek.

“A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). To prevail on

their motion, Plaintiffs are required to show: (1) a substantial likelihood of prevailing

on the merits; (2) that the plaintiff will suffer irreparable injury unless the injunction

issues; (3) that the threatened injury to the movant outweighs whatever damages the

proposed injunction may cause the opposing party; and (4) the injunction would not

be adverse to the public interest. Duke v. Cleland, 954 F.2d 1526, 1529 (11th Cir.

1992). The Court “should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.

A. Plaintiffs are not likely to succeed on the merits of their claims.

1. Plaintiffs’ equal protection claims fail because they cannot show arbitrary
and disparate treatment among different classes of voters.

Plaintiffs’ equal protection claims fail for the same reason their counsel’s

equal protections claims failed in Wood. In the voting rights context, equal protection

means that “[h]aving once granted the right to vote on equal terms, the state may

34
not, by later arbitrary and disparate treatment, value one person’s vote over that of

another.” Bush v. Gore, 531 U.S. 98, 104 (2000) (citation omitted). Typically, when

deciding a constitutional challenge to state election laws, federal courts apply the

Anderson-Burdick framework that balances the burden on the voter with the state’s

interest in the voting regulation. Crawford v. Marion Cty. Election Bd., 553 U.S.

181, 190 (2008); Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318-19

(11th Cir. 2019).

But, as the Wood court recognized, Plaintiffs’ claims do not fit within this

framework. 2020 U.S. Dist. LEXIS 218058 at *25. Plaintiffs have not articulated a

cognizable harm that invokes the Equal Protection Clause. Any actions taken by the

State Defendants were taken “in a wholly uniform manner across the entire state.”

Id. at 26. No voters – including the Plaintiffs – were treated differently than any

other voter. Id. (citing Wise v. Circosta, 978 F.3d 93, 100 (4th Cir. 2020).

Nor have Plaintiffs set forth a “vote dilution” claim. None of the Plaintiffs

have alleged that any action of Defendants have burdened their ability to cast their

own votes. Instead, their claims, like Wood’s, appear to be that because some votes

were improperly counted or illegally cast, these illegal or improperly counted votes

somehow caused the weight of ballots cast lawfully by Georgia voters to be

somehow weighted differently than others. Id. at 27. Both the district court in Wood

35
court and the Third Circuit Court of Appeals in Bognet “squarely rejected” this

theory. Bognet, 2020 WL 6686120, at *31-2 (“if dilution of lawfully cast ballots by

the ‘unlawful’ counting of invalidly cast ballots were a true equal-protection

problem, then it would transform every violation of state election law…into a

potential federal equal-protection claim”); see also Jacobson, 974 F.3d at 1247

(rejecting partisan vote dilution claim).

The Supreme Court’s decision in Bush v. Gore does not support Plaintiff’s

case (see Doc. 6 at 16-17), as that case found a violation of equal protection where

certain counties were utilizing varying standards for what constituted a legal vote in

the 2000 Florida recount. 531 U.S. at 105 (“The question before us … is whether the

recount procedures … are consistent with its obligation to avoid arbitrary and

disparate treatment of the members of its electorate”). Here, any actions taken by the

State Defendants were undertaken state-wide. The isolated “irregularities”

complained of by Plaintiff’s various declarants, if true, would have taken place at

the county level under the supervision of elections officials that are not parties to

this case. All actions of the State Defendants have been uniform and applicable to

all Georgia counties and voters, in order to avoid the kind of ad hoc standards that

varied from county to county as found unconstitutional in Bush. They are the exact

opposite of arbitrary and disparate treatment.

36
 2. Plaintiffs’ claim under the Electors and Elections Clauses fails.

The electors clause of the United States Constitution provides that “[e]ach

State shall appoint, in such Manner as the Legislature thereof may direct, a Number

of Electors, ”who, in turn, cast the State’s votes for president. U.S. Const. art. II, §

1, cl. 2. The General Assembly established the manner for the appointment of

presidential electors in O.C.G.A. § 21-2-10, which provides that electors are selected

by popular vote in a general election. Plaintiffs fail to show how any act of the State

Defendants has altered this process.

Similarly, Plaintiffs fail to show how State Defendants have violated the

elections clause, which provides that “[t]he Times, Places, and Manner of holding

elections for Senators and Representatives, shall be prescribed in each State by the

Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. Plaintiffs complain about a variety

of regulations or procedures related to absentee ballot processing, without

articulating precisely how those regulations or procedures run afoul of the elections

clause. In any event, the State Election Board has the authority, delegated by the

legislature, “[t]o formulate, adopt, and promulgate such rules and regulations … as

will be conducive to the fair, legal, and orderly conduct of primaries and elections”

so long as those rules are “consistent with law.” O.C.G.A. 21-2-31(2). Thus, while

no one disagrees that State Defendants are not members of the Georgia legislature,

37
Plaintiff’s claim depends on the assumption that the rules and procedures used to

process absentee ballots during the November 3, 2020, election were somehow

inconsistent with Georgia’s election code.

But this simply is not so. The SEB Rule is consistent with State law, and a

Georgia court would likely say the same. Under Georgia precedent, when an agency

empowered with rulemaking authority (like the SEB is), the test applied to regulation

challenges is quite deferential. Georgia courts ask whether the regulation is

authorized by statute and reasonable. Albany Surgical, P.C. v. Dep’t of Cmty. Health,

257 Ga. App. 636, 637 (2002). The answer to both questions is an unqualified “yes.”

As shown, the SEB is empowered to promulgate regulations. O.C.G.A. § 21-

2-31(1). As recognized by Judge Grimberg in Wood, it is normal and constitutional

for state legislatures to delegate their authority in such a manner. 2020 U.S.Dist.

LEXIS 218058 at *10. The regulations are also reasonable. There is no conflict

between the signature verification regulation and statutes cited by the Plaintiffs,

O.C.G.A. §§ 21-2-386(a)(1)(C). (Doc. No. 1 at 23.) The statute requires an absentee

ballot where a signature “does not appear to be valid” to be rejected and notice

provided to the voter. Id. The challenged SEB Rule, which merely requires “an

additional safeguard to ensure election security by having more than one individual

review an absentee ballot’s information and signature for accuracy before the ballot

38
is rejected,” is consistent with this approach. Wood, 2020 U.S.Dist. LEXIS 218058

at *10. No statute cited by the Plaintiffs mandates that only one county official

examine the absentee ballot, and that the review process involves several officials

does not make it any less rigorous or inconsistent with the statutory law. (See Harvey

Decl. ¶¶ 3, 5). A Georgia court would likely hold the same, because state courts have

said that a “regulation must be upheld if the agency presents any evidence to support

the regulation.” Albany Surgical, P.C. v. Dep’t of Cmty. Health, 257 Ga. App. 636,

640 (2002). Mr. Harvey’s declaration certainly satisfies that standard, and it should

be obvious that having a verification process in place designed to ensure uniform

statewide application of the laws for determining consideration of an absentee ballot

does not lead to invalid votes.

Any remaining doubt must be resolved in the State’s favor, as the Plaintiffs

have not identified any conflict in the language. This is what Judge Grimberg rightly

concluded when he held that: “The record in this case demonstrate that, if anything,

Defendants’ actions in entering into the Settlement Agreement sought to achieve

consistency among county election officials in Georgia, which furthers Wood’s

stated goals of conducting “[f]ree, fair, and transparent elections.” Wood at * 10

(emphasis and brackets in original). This ends the inquiry and is fatal to Plaintiffs’

claims in Counts I, III, IV, and V.

39
 3. Plaintiffs’ due process claims fail.

Plaintiffs’ motion fails to articulate a discernable claim under the due process

clause. It is unclear what process Plaintiffs claim that they were due or how any of

the State Defendants failed to provide that process. Count II of Plaintiffs’ Complaint,

while captioned “Denial of Due Process” vaguely describes an undefined “disparate

treatment” with regard to cure processes and argues that the disparate treatment

“violates Equal Protection guarantees.” See Compl. at ¶172. Count IV of Plaintiffs’

Complaint is captioned “Denial of Due Process on the Right to Vote”, and appears

to describe a claim of vote dilution or debasement – citing to various equal protection

cases. See Compl. at ¶§176-80. Plaintiffs’ Motion for Preliminary Injunction does

not include any discussion of due process at all.

Plaintiffs have not articulated a cognizable procedural due process claim. A

procedural due process claim raises two inquires: “(1) whether there exists a liberty

or property interest which has been interfered with by the State and (2) whether the

procedures attendant upon that deprivation were constitutionally sufficient.”

Richardson v. Texas Sec’y of State, 978 F.3d 220, 229 (5th Cir. 2020) (citing

Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). The party

invoking the Due Process Clause’s procedural protections bears the “burden . . . of

establishing a cognizable liberty or property interest.” Richardson, 978 F.3d at 229

40
(citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Plaintiffs have not clearly

articulated what liberty or property interest has been interfered with by the State

Defendants, or how any procedures attendant to the purported deprivation were

constitutionally sufficient. As the Wood court noted:

…the Eleventh Circuit does “assume that the right to vote is a liberty interest
protected by the Due Process Clause.” Jones v. Governor of Fla., 975 F.3d
1016, 1048 (11th Cir. 2020). But the circuit court has expressly declined to
extend the strictures of procedural due process to “a State’s election
procedures.” New Ga. Project v. Raffensperger, 976 F.3d 1278, 1282 (11th
Cir. 2020) (“The generalized due process argument that the plaintiffs argued
for and the district court applied would stretch concepts of due process to their
breaking point.”).

2020 U.S. Dist. LEXIS 218058 at *33.

Nor have Plaintiffs articulated a cognizable substantive due process claim.

The types of voting rights covered by the substantive due process clause are

considered narrow. Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). This does

not extend to examining the validity of individual ballots or supervising the

administrative details of an election. Id. In only “extraordinary circumstances will a

challenge to a state election rise to the level of a constitutional deprivation.” Id.

As the Wood court recognized:

Although Wood generally claims fundamental unfairness, and the

declarations and testimony submitted in support of his motion speculate
as to wide-spread impropriety, the actual harm alleged by Wood
concerns merely a “garden variety” election dispute.

41
2020 U.S. Dist. LEXIS 218058 at *35. Further, “[p]recedent militates against a

finding of a due process violation regarding such an ordinary dispute over the

counting and marking of ballots.” Id. (citing Gamza v. Aguirre, 619 F.2d 449, 453

(5th Cir. 1980) for the proposition that “If every state election irregularity were

considered a federal constitutional deprivation, federal courts would adjudicate

every state election dispute.”).

The same is true here. Plaintiffs have introduced only speculative, conclusory

and contradictory testimony from “experts” that would do no more than establish a

possibility of irregularities if their analysis were correct, along with a hodge-podge

of disparate claims by third-party voters and observers claiming that they observed

a variety of different purported irregularities in a handful of different counties (none

of which are parties to this action). Plaintiffs have failed to demonstrate the

“extraordinary circumstances” rising to the level of a constitutional deprivation that

are necessary to support a substantive due process claim. Plaintiffs have therefore

failed to demonstrate a substantial likelihood of success on the merits of any claim

for violation of the 14th Amendment’s guarantee of either procedural or substantive

Due Process.

42
 4. Plaintiffs’ Election Contest Claims Fail.

As shown, the Plaintiffs have effectively filed an election challenge under

Georgia law. Seeking to stop certification does not save the Plaintiffs’ Complaint for

at least two additional reasons. First, it has long been the rule that electors are state

and not federal officials. See Walker v. United States, 93 F.2d 383, 388 (8th Cir.

1937). Consequently, it is state law that determines how challenges to electors are

made, and Georgia law sets forth that process as explained above. This also

demonstrates why abstention is appropriate. Second, to the extent that the Plaintiffs

argue that county election officials did not properly count mail-in and absentee

ballots, there are state remedies available to challenge the acts of those county

officials. Indeed, Georgia’s laws governing election challenges provide for just that.

Finally, and as addressed elsewhere in this brief, the Jacobson decision makes

clear that challenges to acts of county officials must be brought against those county

officials. 974 F.3d at 1254. It is insufficient to rely on the Secretary’s general powers

“to establish traceability.” Anderson, 2020 WL 6048048 at *23. Similarly, reliance

on the phrase “chief election official” or statements about the uniformity in the

administration of election laws have been deemed insufficient by the Anderson court

when it applied Jacobson. Id.

43
 In sum, because Plaintiffs are not likely to succeed on the merits of any of

their claims, injunctive relief must be denied.

B. The loss of Plaintiffs’ preferred candidate is not irreparable harm.

Plaintiffs fail to articulate any specific harm that he faces if his requested relief

is not granted, other than the vague claim that an infringement on the right to vote

constitutes irreparable harm. However, Plaintiffs do not allege that their right to vote

was denied or infringed in any way—only that their preferred candidate lost. It is not

irreparable harm if they are not able to “cast their votes in the Electoral College for

President Trump,” because “[v]oters have no judicially enforceable interest in the

outcome of an election.” Jacobson, 974 F.3d at 1246 (“Voters have no judicially

enforceable interest in the outcome of an election.”).

Irreparable harm goes to the availability of a remedy—not a particular

outcome. Certifying the expressed will of the electorate is not irreparable harm, but

rather inevitable and legally required within our constitutional framework. There is

a remedy available to extent that the losing candidate—rather than a dissatisfied

voter, supporter, or presidential elector—seeks post-certification remedies, and such

election contests have been filed in state court and remain pending.

44
 C. The balance of equities and public interest weigh heavily against an
injunction.

These remaining injunction factors—balancing the equities and public

interest—are frequently considered “in tandem” by courts, “as the real question

posed in this context is how injunctive relief at this eleventh-hour would impact the

public interest in an orderly and fair election, with the fullest voter participation

possible.” Curling v. Kemp, 334 F. Supp. 3d 1303, 1326 (N.D. Ga. 2018), aff'd in

part, appeal dismissed in part, 761 F. App’x 927 (11th Cir. 2019); see also Purcell,

549 U.S. at 4. The Court must “balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested

relief,” paying “particular regard as well for the public consequences in employing

the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.

Here, “the threatened injury to Defendants as state officials and the public at

large far outweigh any minimal burden on [Plaintiffs]. Wood, 2020 U.S. Dist. LEXIS

218058 at *38. “Confidence in the integrity of our electoral process is essential to

the functioning of our participatory democracy,” and court orders affecting elections

“can themselves result in voter confusion and consequent incentive to remain away

from the polls.” Purcell, 549 U. S. at 4-5. For this reason, the Supreme Court “has

repeatedly emphasized that lower federal courts should ordinarily not alter the

45
election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic

Nat’l Comm., 140 S.Ct. 1205, 1207 (April 6, 2020) (per curiam).

The Eleventh Circuit recently held that the Purcell principle applies with even

greater force when voting has already occurred. See New Ga. Project v.

Raffensperger, 976 F.3d 1278, 1283 (11th Cir. 2020) (“[W]e are not on the eve of

the election—we are in the middle of it, with absentee ballots already printed and

mailed. An injunction here would thus violate Purcell’s well-known caution against

federal courts mandating new election rules—especially at the last minute.”); see

also Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir.

2003) (“Interference with impending elections is extraordinary, and interference

with an election after voting has begun is unprecedented.”).

Here, the election has already been conducted, and the slate of presidential

electors has been certified. Granting Plaintiffs’ extraordinary relief would only serve

to “disenfranchise [] voters or sidestep the expressed will of the people.” Donald J.

Trump for President, 2020 U.S. App. LEXIS 37346 at *28. As the district court in

Wood correctly recognized, “To interfere with the result of an election that has

already concluded would be unprecedented and harm the public in countless ways.”

2020 U.S. Dist. LEXIS 218058 at *37-38. Plaintiffs seek even broader relief than

that sought in Wood. If granted, Plaintiffs’ requested relief would disenfranchise not

46
only Georgia’s absentee voters but would invalidate all votes cast by Georgia

electors.

CONCLUSION

For the foregoing reasons, Plaintiffs’ emergency motion for injunctive relief

must be denied and the Court should dismiss the action with prejudice. Furthermore,

the current TRO entered by the Court should be immediately dissolved to prevent

ongoing harm to the ability of county elections officials to begin early voting for the

January run-off, for the reasons shown in State Defendants’ motion to modify the

TRO.

Respectfully submitted, this 5th day of December, 2020.

Christopher M. Carr 112505

Attorney General
Bryan K. Webb 743580
Deputy Attorney General
Russell D. Willard 760280
Senior Assistant Attorney General

/s/ Charlene S. McGowan

Charlene S. McGowan 697316
Assistant Attorney General
40 Capitol Square SW
Atlanta, GA 30334
[email protected]
404-458-3658 (tel)

47
Carey Miller
Georgia Bar No. 976240
[email protected]
Josh Belinfante
Georgia Bar No. 047399
[email protected]
Melanie Johnson
Georgia Bar No. 466756
[email protected]

Robbins Ross Alloy Belinfante Littlefield

LLC
500 14th Street NW
Atlanta, GA 30318
Telephone: (678) 701-9381
Facsimile: (404) 856-3250

Attorneys for State Defendants

48
 CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing has been formatted using Times New

Roman font in 14-point type in compliance with Local Rule 7.1(D).

/s/ Charlene S. McGowan

Charlene S. McGowan
Assistant Attorney General

49
 CERTIFICATE OF SERVICE

I hereby certify that I have this day electronically filed the foregoing STATE

DEFENDANTS’ CONSOLIDATED BRIEF IN SUPPORT OF THEIR

MOTION TO DISMISS AND RESPONSE TO PLAINTIFF’S EMERGENCY

MOTION FOR INJUNCTIVE RELIEF with the Clerk of Court using the

CM/ECF system, which will send notification of such filing to counsel for all parties

of record via electronic notification.

Dated: December 5, 2020.

/s/ Charlene S. McGowan

Charlene S. McGowan
Assistant Attorney General

50
Exhibit A
 USCA11 Case: 20-14418 Date
(1 ofFiled:
21) 12/05/2020 Page: 1 of 20

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-14418
________________________

D.C. Docket No. 1:20-cv-04651-SDG

L. LIN WOOD, JR.,

Plaintiff-Appellant,
versus

BRAD RAFFENSPERGER, in his official capacity as Secretary of State of the

State of Georgia,
REBECCA N. SULLIVAN, in her official capacity as Vice Chair of the Georgia
State Election Board, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia
_______________________

(December 5, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LAGOA, Circuit
Judges.

WILLIAM PRYOR, Chief Judge:

 USCA11 Case: 20-14418 Date
(2 ofFiled:
21) 12/05/2020 Page: 2 of 20

This appeal requires us to decide whether we have jurisdiction over an

appeal from the denial of a request for emergency relief in a post-election lawsuit.

Ten days after the presidential election, L. Lin Wood Jr., a Georgia voter, sued

state election officials to enjoin certification of the general election results, to

secure a new recount under different rules, and to establish new rules for an

upcoming runoff election. Wood alleged that the extant absentee-ballot and recount

procedures violated Georgia law and, as a result, his federal constitutional rights.

After Wood moved for emergency relief, the district court denied his motion. We

agree with the district court that Wood lacks standing to sue because he fails to

allege a particularized injury. And because Georgia has already certified its

election results and its slate of presidential electors, Wood’s requests for

emergency relief are moot to the extent they concern the 2020 election. The

Constitution makes clear that federal courts are courts of limited jurisdiction, U.S.

Const. art. III; we may not entertain post-election contests about garden-variety

issues of vote counting and misconduct that may properly be filed in state courts.

We affirm.

I. BACKGROUND

Secretary of State Brad Raffensperger is the “chief election official” of

Georgia. Ga. Code Ann. § 21-2-50(b). He manages the state system of elections

and chairs the State Election Board. Id. § 21-2-30(a), (d). The Board has the

2
 USCA11 Case: 20-14418 Date
(3 ofFiled:
21) 12/05/2020 Page: 3 of 20

authority to promulgate rules and regulations to ensure uniformity in the practices

of county election officials and, “consistent with law,” to aid “the fair, legal, and

orderly conduct of primaries and elections.” Id. § 21-2-31(1)–(2). The Board may

also publish and distribute to county election officials a compilation of Georgia’s

election laws and regulations. Id. § 21-2-31(3). Many of these laws and regulations

govern absentee voting.

Any voter in Georgia may vote by absentee ballot. Id. § 21-2-380(b). State

law prescribes the procedures by which a voter may request and submit an

absentee ballot. Id. §§ 21-2-381; 21-2-384; 21-2-385. The ballot comes with an

oath, which the voter must sign and return with his ballot. Id. § 21-2-385(a). State

law also prescribes the procedures for how county election officials must certify

and count absentee ballots. Id. § 21-2-386(a). It directs the official to “compare the

identifying information on the oath with the information on file” and “compare the

signature or mark on the oath with the signature or mark” on file. Id.

§ 21-2-386(a)(1)(B). If everything appears correct, the official certifies the ballot.

Id. But if there is a problem, such as a signature that does not match, the official is

to “write across the face of the envelope ‘Rejected.’” Id. § 21-2-386(a)(1)(C). The

government must then notify the voter of this rejection, and the voter may cure the

problem. Id.

3
 USCA11 Case: 20-14418 Date
(4 ofFiled:
21) 12/05/2020 Page: 4 of 20

In November 2019, the Democratic Party of Georgia, the Democratic

Senatorial Campaign Committee, and the Democratic Congressional Campaign

Committee challenged Georgia’s absentee ballot procedures as unconstitutional

under the First and Fourteenth Amendments. They sued Secretary Raffensperger

and members of the Board for declaratory and injunctive relief. Secretary

Raffensperger and the Board maintained that the procedures were constitutional,

but they agreed to promulgate regulations to ensure uniform practices across

counties. In March 2020, the parties entered into a settlement agreement and

dismissed the suit.

In the settlement agreement, Secretary Raffensperger and the Board agreed

to issue an Official Election Bulletin regarding the review of signatures on

absentee ballots. The Bulletin instructed officials to review the voter’s signature

with the following process:

If the registrar or absentee ballot clerk determines that the voter’s

signature on the mail-in absentee ballot envelope does not match any
of the voter’s signatures on file . . . , the registrar or absentee ballot
clerk must seek review from two other registrars, deputy registrars, or
absentee ballot clerks. A mail-in absentee ballot shall not be rejected
unless a majority of the registrars, deputy registrars, or absentee ballot
clerks reviewing the signature agree that the signature does not match
any of the voter’s signatures on file . . . .

Secretary Raffensperger and the Board also agreed to train county election officials

to follow this process.

4
 USCA11 Case: 20-14418 Date
(5 ofFiled:
21) 12/05/2020 Page: 5 of 20

This procedure has been in place for at least three elections since March,

including the general election on November 3, 2020. Over one million Georgians

voted by absentee ballot in the general election. No one challenged the settlement

agreement until the filing of this action. By then, the general election returns had

been tallied and a statewide hand recount of the presidential election results was

underway.

On November 13, L. Lin Wood Jr. sued Secretary Raffensperger and the

members of the Board in the district court. Wood alleged that he sued “in his

capacity as a private citizen.” He is a registered voter in Fulton County, Georgia,

and a donor to various 2020 Republican candidates. His amended complaint

alleged that the settlement agreement violates state law. As a result, he contends, it

violates the Election Clause of Article I; the Electors Clause of Article II; and the

Equal Protection Clause of the Fourteenth Amendment. See U.S. Const. art. I, § 4,

cl. 1; id. art. II, § 1, cl. 2; id. amend. XIV, § 1. Wood also alleged that irregularities

in the hand recount violated his rights under the Due Process Clause of the

Fourteenth Amendment. Id. amend. XIV, § 1.

State law requires that such recounts be done in public view, and it permits

the Board to promulgate policies that facilitate recounting. Ga. Code Ann.

§ 21-2-498(c)(4), (d). Secretary Raffensperger directed county election officials to

designate viewing areas for members of the public and the news media to observe

5
 USCA11 Case: 20-14418 Date
(6 ofFiled:
21) 12/05/2020 Page: 6 of 20

the recount. He also permitted the Democratic and Republican Parties to designate

special recount monitors.

Wood alleged that officials ignored their own rules and denied Wood and

President Donald Trump’s campaign “meaningful access to observe and monitor

the electoral process.” Although Wood did not personally attempt to observe or

monitor the recount, he alleged that Secretary Raffensperger and the Board

violated his “vested interest in being present and having meaningful access to

observe and monitor the electoral process to ensure that it is properly administered

. . . and . . . otherwise free, fair, and transparent.”

Wood submitted two affidavits from volunteer monitors. One monitor stated

that she was not allowed to enter the counting area because there were too many

monitors already present, and she could not be sure from a distance whether the

recount was accurate. The other explained that the counting was hard for her to

follow and described what she thought were possible tabulation errors.

Wood moved for extraordinary relief. He asked that the district court take

one of three steps: prohibit Georgia from certifying the results of the November

election; prevent it from certifying results that include “defective absentee ballots,

regardless of whether said ballots were cured”; or declare the entire election

defective and order the state to fix the problems caused by the settlement

agreement. He also sought greater access for Republican election monitors, both at

6
 USCA11 Case: 20-14418 Date
(7 ofFiled:
21) 12/05/2020 Page: 7 of 20

a new hand recount of the November election and in a runoff election scheduled

for January 5, 2021.

Wood’s lawsuit faced a quickly approaching obstacle: Georgia law requires

the Secretary of State to certify its general election results by 5:00 p.m. on the

seventeenth day after Election Day. Ga. Code Ann. § 21-2-499(b). And it requires

the Governor to certify Georgia’s slate of presidential electors by 5:00 p.m. on the

eighteenth day after Election Day. Id. Secretary Raffensperger’s deadline was

November 20, and Governor Brian Kemp had a deadline of November 21.

To avoid these deadlines, Wood moved to bar officials from certifying the

election results until a court could consider his lawsuit. His emergency motion

reiterated many of the requests from his amended complaint, including requests for

changes to the procedures for the January runoff. He also submitted additional

affidavits and declarations in support of his motion.

The district court held a hearing on November 19 to consider whether it

should issue a temporary restraining order. It heard from Wood, state officials, and

two groups of intervenors. Wood also introduced testimony from Susan Voyles, a

poll manager who participated in the hand recount. Voyles described her

experience during the recount. She recalled that one batch of absentee ballots felt

different from the rest, and that that batch favored Joe Biden to an unusual extent.

At the end of the hearing, the district court orally denied Wood’s motion.

7
 USCA11 Case: 20-14418 Date
(8 ofFiled:
21) 12/05/2020 Page: 8 of 20

On November 20, the district court issued a written opinion and order that

explained its denial. It first ruled that Wood lacked standing because he had

alleged only generalized grievances, instead of injuries that affected him in a

personal and individual way. It next explained that, even if Wood had standing, the

doctrine of laches prevented him from challenging the settlement agreement now:

he could have sued eight months earlier, yet he waited until two weeks after the

election. Finally, it explained why Wood would not be entitled to a temporary

restraining order even if the district court could reach the merits of his claims. On

the same day, Secretary Raffensperger certified the results of the general election

and Governor Kemp certified a slate of presidential electors.

II. STANDARD OF REVIEW

“We are required to examine our jurisdiction sua sponte, and we review

jurisdictional issues de novo.” United States v. Lopez, 562 F.3d 1309, 1311 (11th

Cir. 2009) (citation omitted).

III. DISCUSSION

This appeal turns on one of the most fundamental principles of the federal

courts: our limited jurisdiction. Federal courts are not “constituted as free-wheeling

enforcers of the Constitution and laws.” Initiative & Referendum Inst. v. Walker,

450 F.3d 1082, 1087 (10th Cir. 2006) (en banc). As the Supreme Court “ha[s]

often explained,” we are instead “courts of limited jurisdiction.” Home Depot

8
 USCA11 Case: 20-14418 Date
(9 ofFiled:
21) 12/05/2020 Page: 9 of 20

U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (internal quotation marks

omitted). Article III of the Constitution establishes that our jurisdiction—that is,

our judicial power—reaches only “Cases” and “Controversies.” U.S. Const. art. III,

§ 2. Absent a justiciable case or controversy between interested parties, we lack the

“power to declare the law.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998).

When someone sues in federal court, he bears the burden of proving that his

suit falls within our jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). Wood had the choice to sue in state or federal court. Georgia

law makes clear that post-election litigation may proceed in a state court. Ga. Code

Ann. §§ 21-2-499(b), 21-2-524(a). But Wood chose to sue in federal court. In

doing so, he had to prove that his suit presents a justiciable controversy under

Article III of the Constitution. See Flast v. Cohen, 392 U.S. 83, 95 (1968) (listing

examples of problems that preclude our jurisdiction). He failed to satisfy this

burden.

We divide our discussion in two parts. We first explain why Wood lacks

standing to sue. We then explain that, even if he had standing, his requests to

recount and delay certification of the November election results are moot. Because

this case is not justiciable, we lack jurisdiction. Id. And because we lack the power

to entertain this appeal, we will not address the other issues the parties raise.

9
 USCA11 Case: 20-14418 Date
(10 of
Filed:
21) 12/05/2020 Page: 10 of 20

A. Wood Lacks Standing Because He Has Not Been Injured in a

Particularized Way.

Standing is a threshold jurisdictional inquiry: the elements of standing are

“an indispensable part of the plaintiff’s case.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). To prove standing, Wood “must prove (1) an injury in fact

that (2) is fairly traceable to the challenged action of the defendant and (3) is likely

to be redressed by a favorable decision.” Jacobson v. Fla. Sec’y of State, 974 F.3d

1236, 1245 (11th Cir. 2020). If he cannot satisfy these requirements, then we may

not decide the merits of his appeal. Steel Co., 523 U.S. at 94.

Wood lacks standing because he fails to allege the “first and foremost of

standing’s three elements”: an injury in fact. Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016) (alteration adopted) (internal quotation marks omitted). An

injury in fact is “an invasion of a legally protected interest that is both concrete and

particularized and actual or imminent, not conjectural or hypothetical.” Trichell v.

Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020) (internal quotation

marks omitted). Wood’s injury is not particularized.

Wood asserts only a generalized grievance. A particularized injury is one

that “affect[s] the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at

1548 (internal quotation marks omitted). For example, if Wood were a political

candidate harmed by the recount, he would satisfy this requirement because he

could assert a personal, distinct injury. Cf. Roe v. Alabama ex rel. Evans, 43 F.3d

10
 USCA11 Case: 20-14418 Date
(11 of
Filed:
21) 12/05/2020 Page: 11 of 20

574, 579 (11th Cir. 1995). But Wood bases his standing on his interest in

“ensur[ing that] . . . only lawful ballots are counted.” An injury to the right “to

require that the government be administered according to the law” is a generalized

grievance. Chiles v. Thornburgh, 865 F.2d 1197, 1205–06 (11th Cir. 1989)

(alteration adopted) (internal quotation marks omitted). And the Supreme Court

has made clear that a generalized grievance, “no matter how sincere,” cannot

support standing. Hollingsworth v. Perry, 570 U.S. 693, 706 (2013).

A generalized grievance is “undifferentiated and common to all members of

the public.” Lujan, 504 U.S. at 575 (internal quotation marks omitted). Wood

cannot explain how his interest in compliance with state election laws is different

from that of any other person. Indeed, he admits that any Georgia voter could bring

an identical suit. But the logic of his argument sweeps past even that boundary. All

Americans, whether they voted in this election or whether they reside in Georgia,

could be said to share Wood’s interest in “ensur[ing] that [a presidential election]

is properly administered.”

Wood argues that he has two bases for standing, but neither satisfies the

requirement of a distinct, personal injury. He first asserts that the inclusion of

unlawfully processed absentee ballots diluted the weight of his vote. To be sure,

vote dilution can be a basis for standing. Cf. Jacobson, 974 F.3d at 1247–48. But it

requires a point of comparison. For example, in the racial gerrymandering and

11
 USCA11 Case: 20-14418 Date
(12 of
Filed:
21) 12/05/2020 Page: 12 of 20

malapportionment contexts, vote dilution occurs when voters are harmed compared

to “irrationally favored” voters from other districts. See Baker v. Carr, 369 U.S.

186, 207–08 (1962). By contrast, “no single voter is specifically disadvantaged” if

a vote is counted improperly, even if the error might have a “mathematical impact

on the final tally and thus on the proportional effect of every vote.” Bognet v. Sec’y

Commonwealth of Pa., __ F.3d __, 2020 WL 6686120, at *12 (3d Cir. Nov. 13,

2020) (internal quotation marks omitted). Vote dilution in this context is a

“paradigmatic generalized grievance that cannot support standing.” Id. (internal

quotation marks omitted).

Wood’s second theory—that Georgia “value[d] one person’s vote over that

of another” through “arbitrary and disparate treatment”—fares no better. He argues

that Georgia treats absentee voters as a “preferred class” compared to those who

vote in person, both by the terms of the settlement agreement and in practice. In his

view, all voters were bound by law before the settlement agreement, but the rules

for absentee voting now run afoul of the law, while in-person voters remain bound

by the law. And he asserts that in practice Georgia has favored absentee voters

because there were “numerous irregularities” in the processing and recounting of

absentee ballots. Setting aside the fact that “[i]t is an individual voter’s choice

whether to vote by mail or in person,” Bognet, 2020 WL 6686120, at *15, these

complaints are generalized grievances. Even if we assume that absentee voters are

12
 USCA11 Case: 20-14418 Date
(13 of
Filed:
21) 12/05/2020 Page: 13 of 20

favored over in-person voters, that harm does not affect Wood as an individual—it

is instead shared identically by the four million or so Georgians who voted in

person this November. “[W]hen the asserted harm is . . . shared in substantially

equal measure by . . . a large class of citizens,” it is not a particularized injury.

Warth v. Seldin, 422 U.S. 490, 499 (1975). And irregularities in the tabulation of

election results do not affect Wood differently from any other person. His

allegation, at bottom, remains “that the law . . . has not been followed.” Dillard v.

Chilton Cnty. Comm’n, 495 F.3d 1324, 1332 (11th Cir. 2007) (quoting Lance v.

Coffman, 549 U.S. 437, 442 (2007)).

Wood’s attempts to liken his injury to those we have found sufficient in

other appeals fall short. In Common Cause/Georgia v. Billups, we ruled that

“[r]equiring a registered voter either to produce photo identification to vote in

person or to cast an absentee or provisional ballot is an injury sufficient for

standing.” 554 F.3d 1340, 1351–52 (11th Cir. 2009). But the injury there was the

burden of producing photo identification, not the existence of separate rules for in-

person and absentee voters. Id. And the burden to produce photo identification

affected each voter in a personal way. For example, some plaintiffs in Common

Cause alleged that they “would be required to make a special trip” to obtain valid

identification “that is not required of voters who have driver’s licenses or

passports.” Id. at 1351 (internal quotation marks omitted). By contrast, even Wood

13
 USCA11 Case: 20-14418 Date
(14 of
Filed:
21) 12/05/2020 Page: 14 of 20

agrees that he is affected by Georgia’s alleged violations of the law in the same

way as every other Georgia voter. “This injury is precisely the kind of

undifferentiated, generalized grievance that the Supreme Court has warned must

not be countenanced.” Dillard, 495 F.3d at 1335 (internal quotation marks

omitted).

Roe v. Alabama ex rel. Evans, 43 F.3d 574, also does not support Wood’s

argument for standing. In Roe, we ruled that the post-election inclusion of

previously excluded absentee ballots would violate the substantive-due-process

rights of Alabama voters and two political candidates. Id. at 579–81. But no party

raised and we did not address standing in Roe, so that precedent provides no basis

for Wood to establish standing. Cf. Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996)

(noting that in cases where “standing was neither challenged nor discussed . . . the

existence of unaddressed jurisdictional defects has no precedential effect”). And

Wood’s purported injury is far more general than the voters’ injury in Roe. The

voters in Roe bore individual burdens—to obtain notarization or witness signatures

if they wanted to vote absentee—that state courts post-election retroactively

permitted other voters to ignore. Roe, 43 F.3d at 580–81. In contrast, Georgia

applied uniform rules, established before the election, to all voters, who could

choose between voting in person or by absentee ballot, and Wood asserts that the

14
 USCA11 Case: 20-14418 Date
(15 of
Filed:
21) 12/05/2020 Page: 15 of 20

effect of those rules harmed the electorate collectively. That alleged harm is not a

particularized injury.

Wood suggested in his amended complaint that his status as a donor

contributed to standing and aligned his interests with those of the Georgia

Republican Party. But he forfeited this argument when he failed to raise it in his

opening brief. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir.

2004); see also Nat’l All. for the Mentally Ill v. Bd. of Cnty. Comm’rs, 376 F.3d

1292, 1296 (11th Cir. 2004) (ruling standing claims forfeited for failure to comply

with the Federal Rules of Appellate Procedure). And the donor argument fails on

its own terms. True, a donor can establish standing based on injuries that flow from

his status as a donor. See, e.g., Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125

(11th Cir. 2019). But donors, like voters, “have no judicially enforceable interest in

the outcome of an election.” Jacobson, 974 F.3d at 1246. Nor does a donation give

the donor a legally cognizable interest in the proper administration of elections.

Any injury to Wood based on election irregularities must flow from his status as a

voter, unrelated to his donations. And that fact returns him to the stumbling block

of particularization.

“[T]he ‘injury in fact’ test requires . . . that the party seeking review be

himself among the injured.” Lujan, 504 U.S. at 563 (internal quotation marks

omitted). Wood’s allegations suggest that various nonparties might have a

15
 USCA11 Case: 20-14418 Date
(16 of
Filed:
21) 12/05/2020 Page: 16 of 20

particularized injury. For example, perhaps a candidate or political party would

have standing to challenge the settlement agreement or other alleged irregularities.

Or perhaps election monitors would have standing to sue if they were denied

access to the recount. But Wood cannot place himself in the stead of these groups,

even if he supports them. Cf. Glanton ex rel. ALCOA Prescription Drug Plan v.

AdvancePCS Inc., 465 F.3d 1123, 1127 (9th Cir. 2006) (explaining that

“associational standing . . . does not operate in reverse,” so a member cannot

represent an association). He is at most a “concerned bystander.” Koziara v. City of

Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (internal quotation marks

omitted). So he is not “entitled to have the court[s] decide the merits of [his]

dispute.” Warth, 422 U.S. at 498.

B. Wood’s Requested Relief Concerning the 2020 General Election Is Moot.

Even if Wood had standing, several of his requests for relief are barred by

another jurisdictional defect: mootness. We are “not empowered to decide moot

questions.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (internal quotation

marks omitted). “An issue is moot when it no longer presents a live controversy

with respect to which the court can give meaningful relief.” Christian Coal. of

Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011) (alteration

rejected) (internal quotation marks omitted). And an issue can become moot at any

16
 USCA11 Case: 20-14418 Date
(17 of
Filed:
21) 12/05/2020 Page: 17 of 20

stage of litigation, even if there was a live case or controversy when the lawsuit

began. Id. at 1189–90.

Wood asked for several kinds of relief in his emergency motion, but most of

his requests pertained to the 2020 election results. He moved the district court to

prohibit either the certification of the election results or certification that included

the disputed absentee ballots. He also asked the district court to order a new hand

recount and to grant Republican election monitors greater access during both the

recount and the January runoff election. But after the district court denied Wood’s

motion, Secretary Raffensperger certified the election results on November 20.

And Governor Kemp certified the slate of presidential electors later that day.

Because Georgia has already certified its results, Wood’s requests to delay

certification and commence a new recount are moot. “We cannot turn back the

clock and create a world in which” the 2020 election results are not certified.

Fleming v. Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015). And it is not possible for

us to delay certification nor meaningful to order a new recount when the results are

already final and certified. Cf. Tropicana Prods. Sales, Inc. v. Phillips Brokerage

Co., 874 F.2d 1581, 1582 (11th Cir. 1989) (“[A]n appeal from the denial of a

motion for preliminary injunction is mooted when the requested effective end-date

for the preliminary injunction has passed.”). Nor can we reconstrue Wood’s

previous request that we temporarily prohibit certification into a new request that

17
 USCA11 Case: 20-14418 Date
(18 of
Filed:
21) 12/05/2020 Page: 18 of 20

we undo the certification. A district court “must first have the opportunity to pass

upon [every] issue,” so we may not consider requests for relief made for the first

time on appeal. S.F. Residence Club, Inc. v. 7027 Old Madison Pike, LLC, 583

F.3d 750, 755 (11th Cir. 2009).

Wood’s arguments reflect a basic misunderstanding of what mootness is. He

argues that the certification does not moot anything “because this litigation is

ongoing” and he remains injured. But mootness concerns the availability of relief,

not the existence of a lawsuit or an injury. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water

Mgmt. Dist., 647 F.3d 1296, 1304 (11th Cir. 2011). So even if post-election

litigation is not always mooted by certification, see, e.g., Siegel v. LePore, 234

F.3d 1163, 1172–73 (11th Cir. 2000) (en banc), Wood’s particular requests are

moot. Wood is right that certification does not moot his requests for relief

concerning the 2021 runoff—although Wood’s lack of standing still forecloses our

consideration of those requests—but the pendency of other claims for relief cannot

rescue the otherwise moot claims. See, e.g., Adler v. Duval Cnty. Sch. Bd., 112

F.3d 1475, 1478–79, 1481 (11th Cir. 1997) (instructing the district court to dismiss

moot claims but resolving other claims on the merits). Wood finally tells us that

President Trump has also requested a recount, but that fact is irrelevant to whether

Wood’s requests remain live.

18
 USCA11 Case: 20-14418 Date
(19 of
Filed:
21) 12/05/2020 Page: 19 of 20

Nor does any exception to mootness apply. True, we often review otherwise-

moot election appeals because they are “capable of repetition yet evading review.”

ACLU v. The Fla. Bar, 999 F.2d 1486, 1496 (11th Cir. 1993) (internal quotation

marks omitted). We may apply this exception when “(1) the challenged action was

in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same complaining party would be

subjected to the same action again.” Nat’l Broad. Co. v. Commc’ns Workers of

Am., 860 F.2d 1022, 1023 (11th Cir. 1988) (quoting Weinstein v. Bradford, 423

U.S. 147, 149 (1975)). But we will not apply this exception if there is “some

alternative vehicle through which a particular policy may effectively be subject to”

complete review. Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th Cir. 2004).

The “capable of repetition yet evading review” exception does not save

Wood’s appeal because there is no “reasonable expectation” that Wood will again

face the issues in this appeal. Based on the posture of this appeal, the challenged

action is the denial of an emergency injunction against the certification of election

results. See Fleming, 785 F.3d at 446 (explaining that whether the issues in an

interlocutory appeal are “capable of repetition, yet evading review” is a separate

question from whether the issues in the overall lawsuit are capable of doing so).

That denial is the decision we would review but for the jurisdictional problems.

But Wood cannot satisfy the requirement that there be a “reasonable expectation”

19
 USCA11 Case: 20-14418 Date
(20 of
Filed:
21) 12/05/2020 Page: 20 of 20

that he will again seek to delay certification. Wood does not suggest that this

situation might recur. Cf. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463–64

(2007). And we have no reason to think it would: he is a private citizen, so the

possibility of a recurrence is purely theoretical. Cf. Hall v. Sec’y, Ala., 902 F.3d

1294, 1305 (11th Cir. 2018).

IV. CONCLUSION

We AFFIRM the denial of Wood’s motion for emergency relief.

20
 USCA11 Case: 20-14418 (21
DateofFiled:
21) 12/05/2020 Page: 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit

Clerk of Court www.ca11.uscourts.gov

December 05, 2020

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 20-14418-RR

Case Style: L. Lin Wood, Jr. v. Brad Raffensperger, et al
District Court Docket No: 1:20-cv-04651-SDG

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless
exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF system by registering for an
account at www.pacer.gov. Information and training materials related to electronic filing, are available at
www.ca11.uscourts.gov. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been
entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en
banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing
or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed
by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is
governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all
persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a
copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See
11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the
appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of
certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or
[email protected] for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against appellant.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block
below. For all other questions, please call Regina A. Veals-Gillis, RR at (404) 335-6163.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Jeff R. Patch

Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

Exhibit B
12/5/2020 Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executi…

An o icial website of the United States government Here's how you know TLP:WHITE
EMAIL US CONTACT SITE MAP

JOINT STATEMENT FROM ELECTIONS

INFRASTRUCTURE GOVERNMENT COORDINATING
COUNCIL & THE ELECTION INFRASTRUCTURE
SECTOR COORDINATING EXECUTIVE COMMITTEES
Original release date: November 12, 2020

WASHINGTON – The members of Election Infrastructure Government Coordinating Council (GCC)

Executive Committee – Cybersecurity and Infrastructure Security Agency (CISA) Assistant Director
Bob Kolasky, U.S. Election Assistance Commission Chair Benjamin Hovland, National Association of
Secretaries of State (NASS) President Maggie Toulouse Oliver, National Association of State Election
Directors (NASED) President Lori Augino, and Escambia County (Florida) Supervisor of Elections
David Sta ord – and the members of the Election Infrastructure Sector Coordinating Council (SCC) –
Chair Brian Hancock (Unisyn Voting Solutions), Vice Chair Sam Derheimer (Hart InterCivic), Chris
Wlaschin (Election Systems & So ware), Ericka Haas (Electronic Registration Information Center),
and Maria Bianchi (Democracy Works) - released the following statement:
“The November 3rd election was the most secure in American history. Right now, across the country,
election o icials are reviewing and double checking the entire election process prior to finalizing the
result. 
“When states have close elections, many will recount ballots. All of the states with close results in the
2020 presidential race have paper records of each vote, allowing the ability to go back and count
each ballot if necessary. This is an added benefit for security and resilience. This process allows for
the identification and correction of any mistakes or errors. There is no evidence that any voting
system deleted or lost votes, changed votes, or was in any way compromised.
“Other security measures like pre-election testing, state certification of voting equipment, and the
U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build
additional confidence in the voting systems used in 2020.

“While we know there are many unfounded claims and opportunities for misinformation about the
process of our elections, we can assure you we have the utmost confidence in the security and
TLP:WHITE
integrity of our elections, and you should too. When you have questions, turn to elections o icials as
https://www.cisa.gov/news/2020/11/12/joint-statement-elections-infrastructure-government-coordinating-council-election 1/2
12/5/2020 Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executi…

trusted voices as they administer elections.” TLP:WHITE

 
###
Topics: Election Security

Keywords: CISA, Election security

Last Published Date: November 12, 2020

TLP:WHITE
https://www.cisa.gov/news/2020/11/12/joint-statement-elections-infrastructure-government-coordinating-council-election 2/2
Exhibit C
12/5/2020 Historic First Statewide Audit Of Paper Ballots Upholds Result Of Presidential Race | Elections

HOME CORPORATIONS ELECTIONS LICENSING SECURITIES CHARITIES

VOTER INFO. RESULTS & STATS CANDIDATE INFO. COUNTY & AGENCY

H I S TO R I C F I R S T S TAT E W I D E A U D I T O F PA P E R B A L LOT S U P H O L D S
R E S U LT O F P R E S I D E N T I A L R A C E

(ATLANTA)-Today, Secretary of State Brad Raffensperger announced the results of the Risk Limiting
Audit of Georgia’s presidential contest, which upheld and reaf rmed the original outcome produced by Key Election Dates and Military and Overseas
Information Voting
the machine tally of votes cast. Due to the tight margin of the race and the principles of risk-limiting
audits, this audit was a full manual tally of all votes cast. The audit con rmed that the original machine
count accurately portrayed the winner of the election. The results of the audit can be Register to Vote Where do I vote? (MVP)
viewed HERE , HERE , and HERE .

“Georgia’s historic rst statewide audit reaf rmed that the state’s new secure paper ballot voting
system accurately counted and reported results,” said Secretary Raffensperger. “This is a credit to the QUICK LINKS
hard work of our county and local elections of cials who moved quickly to undertake and complete such
a momentous task in a short period of time.” 2020 General Recount Risk Limiting Audit Public
Info by County Notice
“Georgia’s rst statewide audit successfully con rmed the winner of the chosen contest and should give
2020 Presidential GA Voter ID Info.
voters increased con dence in the results,” said Ben Adida, Executive Director of VotingWorks. “We
Electors
were proud to work with Georgia on this historic audit. The difference between the reported results
and the full manual tally is well within the expected error rate of hand-counting ballots, and the audit State Election Board Secure The Vote
was a success.” 
Elections Advisory 2019 Of cial Directory
By law, Georgia was required to conduct a Risk Limiting Audit of a statewide race following the Council
November elections. Understanding the importance of clear and reliable results for such an important
Vote Safe SAFE Commission
contest, Secretary Raffensperger selected the presidential race in Georgia for the audit. Meeting the
con dence threshold required by law for the audit meant conducting a full manual tally of every ballot Voter Registration Drive Stop Voter Fraud
cast in Georgia.
Reexamination Costs Online Complaints
The Risk Limiting Audit reaf rmed the outcome of the presidential race in Georgia as originally
Information for Voter Proposed Constitutional
reported, with Joe Biden leading President Donald Trump in the state. 
Registrations Pending Amendments
The audit process also led to counties catching making mistakes they made in their original count by not Due to Citizenship
uploading all memory cards. Those counties uploaded the memory cards and re-certi ed their results,
Intent to Tabulate Early Great Seal
leading to increased accuracy in the results the state will certify.
SD 4 Quali ed iVote - Students / Educators
The differential of the audit results from the original machine counted results is well within the
Candidates
expected margin of human error that occurs when hand-counting ballots. A 2012 study  by Rice
University and Clemson University found that “hand counting of votes in postelection audit or recount Advance Voting Info. Check Your Provisional

procedures can result in error rates of up to 2 percent.” In Georgia’s recount, the highest error rate in Ballot Status for November

any county recount was .73%. Most counties found no change in their nally tally. The majority of the 6, 2018 Election

remaining counties had changes of fewer than ten ballots.

2019 List Maintenance FAQs

Because the margin is still less than 0.5%, the President can request a recount after certi cation of the
results. That recount will be conducted by rescanning all paper ballots. LATEST ELECTIONS NEWS
Click here for the Risk Limiting Audit Report 
Secretary Raffensperger Launches Investigation of
Florida Attorney Looking to Fraudulently Register and
###

https://sos.ga.gov/index.php/elections/historic_first_statewide_audit_of_paper_ballots_upholds_result_of_presidential_race 1/2
12/5/2020 Historic First Statewide Audit Of Paper Ballots Upholds Result Of Presidential Race | Elections
Vote in Georgia’s Runoff Election
Thursday, December 03rd 2020

Secretary Raffensperger Launches Investigation Into

Groups Encouraging Fraudulent Registrations
Wednesday, December 02nd 2020

Secretary Raffensperger and Spalding Legislative

Delegation Call for Resignation of Spalding County
Elections Director Following Serious Management Issues
Tuesday, December 01st 2020

Historic First Statewide Audit of Paper Ballots Upholds

Result of Presidential Race
Thursday, November 19th 2020

Number of Absentee Ballots Rejected for Signature

Issues in the 2020 Election Increased 350% from 2018
Wednesday, November 18th 2020

OFFICE OF BRAD RAFFENSPERGER CONTACT

NEWS & ANNOUNCEMENTS 214 State Capitol

Atlanta, Georgia 30334

PRESS & MEDIA KIT 404.656.2881

E-Mail
PRIVACY POLICY
© 2018 Georgia Secretary of State

https://sos.ga.gov/index.php/elections/historic_first_statewide_audit_of_paper_ballots_upholds_result_of_presidential_race 2/2
Risk-Limiting Audit Report
Georgia Presidential Contest, November 2020
November 19th, 2020

From November 11 to November 19, 2020, county election officials in Georgia, conducted a
statewide risk-limiting audit of the Presidential Contest from the November 2020 General
Election, as ordered by the Georgia Secretary of State. Georgia’s original machine count
resulted in a margin of 0.3% between candidates Joe Biden and Donald Trump, requiring a full
manual count of just over 5 million ballots to complete an efficient risk-limiting audit. Audit
boards from all 159 Georgia counties examined 41881 batches, hand-sorting and counting each
ballot as part of the process, which was the largest hand count of ballots in United States
history. This document summarizes the findings of the audit.

Audit Outcome
The audit confirmed the original result of the election, namely that Joe Biden won the
Presidential Contest in the State of Georgia. Like any risk-limiting audit, this audit does not
confirm or correct the exact margin of victory. It only provides sufficient evidence that the correct
winner was reported.

Hand-Count Variations
Prior research indicates that the expected variance between hand and machine counts,
assuming no issues beyond normal human error in the counting process, ranges anywhere from
1.0 - 1.5% across all ballot types.

Georgia shows a 0.1053% (0.001053) variation in statewide total vote count, and a 0.0099%
(0.000099) variation in the overall margin. The audited vote totals from the hand tally for the
three candidates were:
Trump 2,462,857

Biden 2,475,141

Jorgensen 62,587

In addition, no individual county showed a variation in margin larger than 0.73%, and 103 of the
159 counties showed a margin variation of less than 0.05%.
Exhibit D
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 2 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 3 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 4 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 5 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 6 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 7 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 8 of 17
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 9 of 17

EXHIBIT 1
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 10 of 17

OFFICIAL ELECTION BULLETIN

May 1, 2020
_____________________________________________________________________________________________

TO: County Election Officials and County Registrars

FROM: Chris Harvey, State Elections Director

RE: Absentee Ballot Signature Review Guidance

______________________________________________________________________

Verifying that a voter’s signature on his or her absentee ballot matches his or her
signature on the absentee ballot application or in the voter registration record is required
by Georgia law and is crucial to secure elections. Ensuring that signatures match is even
more crucial in this time of increased absentee voting due to the COVID-19 crisis. The
purpose of this OEB is to remind you of some recent updates to Georgia law and
regulations regarding verifying signatures on absentee ballots and to make you aware of
the procedures that should be followed when a signature on an absentee ballot does not
match. HB 316, which passed in 2019, modified the absentee ballot laws and the design
of the oath envelope. The State Election Board also adopted Rule 183-1-14.13 this year,
which addresses how quickly and by what methods electors need to be notified
concerning absentee ballot issues. What follows are the procedures that should be
followed when the signature on the absentee ballot does not match the voter’s signature
on his or her application or voter registration record:

County registrars and absentee ballot clerks are required, upon

receipt of each mail-in absentee ballot, to compare the signature or
mark of the elector on the mail-in absentee ballot envelope with the
signatures or marks in eNet and on the application for the mail-in
absentee ballot. If the signature does not appear to be valid, registrars
and clerks are required to follow the procedure set forth in O.C.G.A. §
21-2-386(a)(1)(C).
Page 1 of 3
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 11 of 17
When reviewing an elector’s signature on the mail-in absentee ballot
envelope, the registrar or clerk must compare the signature on the
mail-in absentee ballot envelope to each signature contained in such
elector’s voter registration record in eNet and the elector’s signature
on the application for the mail-in absentee ballot.1 If the registrar or
absentee ballot clerk determines that the voter’s signature on the mail-
in absentee ballot envelope does not match any of the voter’s
signatures on file in eNet or on the absentee ballot application, the
registrar or absentee ballot clerk must seek review from two other
registrars, deputy registrars, or absentee ballot clerks.

A mail-in absentee ballot shall not be rejected unless a majority of the

registrars, deputy registrars, or absentee ballot clerks reviewing the
signature agree that the signature does not match any of the voter’s
signatures on file in eNet or on the absentee ballot application. If a
determination is made that the elector’s signature on the mail-in
absentee ballot envelope does not match any of the voter’s signatures
on file in eNet or on the absentee ballot application, the registrar or
absentee ballot clerk shall write the names of the three elections
officials who conducted the signature review across the face of the
absentee ballot envelope, which shall be in addition to writing
“Rejected” and the reason for the rejection as required under OCGA
21-2-386(a)(1)(C). Then, the registrar or absentee ballot clerk shall
commence the notification procedure set forth in O.C.G.A. § 21-2-
386(a)(1)(C) and State Election Board Rule 183-1-14-.13.

1
Once the registrar or clerk verifies a matching signature, they do not need to continue to review additional
signatures for the same voter.
Page 2 of 3
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 12 of 17

RULE 183-1-14-.13 Prompt Notification of Absentee Ballot Rejection

When a timely submitted absentee ballot is rejected, the board of registrars or absentee
ballot clerk shall send the elector notice of such rejection and opportunity to cure by
mailing written notice, and attempt to notify the elector by telephone and email, if a
telephone number or email is on the elector’s voter registration record or absentee ballot
application, no later than the close of business on the third business day after receiving
the absentee ballot. However, for any timely submitted absentee ballot that is rejected
within eleven days of Election Day, the board of registrars or absentee ballot clerk shall
send the elector notice of such rejection and opportunity to cure by mailing written notice,
and attempt to notify the elector by telephone and email, if a telephone number or email
is on the elector’s voter registration record or absentee ballot application, no later than
close of business on the next business day.

Page 3 of 3
Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 13 of 17

EXHIBIT 2
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 14 of 17

OFFICIAL ELECTION BULLETIN

November 12, 2020
_____________________________________________________________________________________________

TO: County Election Officials and County Registrars

FROM: Chris Harvey, Elections Division Director

RE: Audit Instructions

______________________________________________________________________

Pursuant to O.C.G.A. § 21-2-498 and SEB Rule 183-1-15-.04, the Secretary has
selected the contest for President of the United States to audit. While many risk-limiting
audits rely on samples of ballots, the design of risk-limiting audits combined with the
margin of this race mean that this risk-limiting audit is required to be a full manual tally
of the votes cast. SEB Rule 183-1-15-.04 requires that the Superintendent follow
instructions issued by the Secretary of State on how to specifically conduct the audit.
While there will be additional instructions issued regarding more specific processes,
initial instructions are below:

1. Start and Completion Times

Each county must start their audit no later than 9:00 a.m. on Friday, November 13, 2020
and must complete their audit no later than 11:59 p.m. on Wednesday, November 18,
2020.

Public notice of the date, time, and location of the audit must be posted on the county
election office’s website, or, if the county election’s office does not have a website, in
another prominent location.

2. Public Access and Political Party Monitors

The audit shall be open to the public and the press, but no person except the persons
designated by the Superintendent shall touch any ballot or ballot container. The
Superintendent shall designate a viewing area from which members of the public and
press may observe the audit for the purpose of good order and maintaining the integrity
of the audit. The Superintendent may also choose to make the audit proceeding
available via livestream or webcast. If any member of the public or press interferes with

Page 1 of 3
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 15 of 17
the process or persists in not following reasonable regulations and instructions set by
the Superintendent, that person shall be removed.

The State Executive Committee of each political party (Republicans and Democrats)
shall have the right to have one properly designated person act as monitor of the audit
for each ten audit teams that are conducting the audit, with a minimum of two
designated monitors in each county per party per room where the audit is being
conducted. Properly designated monitors shall have complete access to monitor the
audit. They do not have to remain in the public viewing areas. The designated monitors
shall be given a letter by the designating entity containing the name of the monitor, his
or her address, and the county in which he or she may monitor the audit. A copy of the
letter shall be delivered to the county elections superintendent prior to the monitor being
allowed to monitor the process. The designating entity shall provide their monitors with
name tags that clearly indicate their names and the entity the designated them. Such
name tags shall be worn at all times while monitoring the audit.

The Superintendent may make reasonable regulations, including regulations regarding

social distancing measures and required personal protective equipment, that designated
monitors and public observers shall follow so that they do not interfere with the auditing
process. If a designated monitor or public observer interferes with the audit after being
warned by an election official, or if he or she violated any of the prohibited activities
listed herein, the superintendent may revoke the person’s designation to monitor the
process, remove them from any further monitoring or observing, and refer the incident
to the Secretary of State’s office for investigation. Any infraction or irregularity observed
by a monitor or observer shall be reported to the superintendent or to the Secretary of
State. If a monitor’s designation is revoked by the Superintendent, the designating entity
shall have the right to designate a new monitor in the manner set forth herein.

While monitoring the process, designated monitors are prohibited from:

(a) In any way interfering with the audit process;

(b) Speaking to any member of the audit team or vote review panel;

(c) When outside of the public viewing area, using any photographic, electronic
monitoring or recording devices, cellular telephones, or other electronic
equipment;

(d) Touching any ballot or ballot container; or

(e) Engaging in any form of campaigning or campaign activity.

Before being allowed to monitor the process, each designated monitor shall execute an
oath swearing or affirming, under penalty of perjury, that they understand the
prohibitions set forth above, that they will not engage in any prohibited activity, and that

Page 2 of 3
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 16 of 17
they understand any violations of this rule will be punishable by the State Election
Board.

3. Audit Teams
Audit teams shall consist of at least two sworn designees. The Superintendent may
designate non-employees to be a member of an audit team, but any non-employees
designated to audit teams shall be residents of the State of Georgia. Every member of
the audit team shall be a person of good moral character and shall take and sign an
oath that they will conduct the audit fairly and accurately prior to conducting the audit. In
determining the candidate for which the vote was cast, the audit teams shall refer to and
rely on SEB Rule 183-1-15-02 (Definition of a Vote) for Optical Scan Voting Systems.

4. Vote Review Panels

Any ballot where the audit team does not agree on the selection for President shall be
sent to a Vote Review Panel. Each Vote Review Panel shall consist of a designee of the
Election Superintendent and a nominee of the county or state executive committee of
each political party (Republican and Democrat) designated via letter provided to the
Superintendent. Notice of the members and location of any Vote Review Panels shall
be posted prominently at the office of the Superintendent. Prior to beginning its work,
each member of the Vote Review Panel shall take and sign an oath The panel shall
manually review all ballots sent to it by any audit team and shall determine by a majority
vote “if the elector has marked his or her ballot in such a manner that he or she has
indicated clearly and without question the candidate for whom he or she desires to
cast his or her vote.” O.C.G.A. 21-2-438(c). The determination of the Vote Review Panel
shall be final. The Superintendent may create multiple Vote Review Panels

In making its determination, the Vote Review Panel shall refer to and rely on SEB Rule
183-1-15-.02 (Definition of a Vote) for Optical Scan Voting Systems.

5. Re-Certifying if Vote Counts Change

In cases like this, where the risk-limiting audit of the selected contest has led to a full
manual tally of the ballots cast, the vote counts according to the manual tally shall
replace the vote previously reported vote counts and each county shall re-certify the
new counts for the audited race, if necessary, prior to November 20, 2020.

Page 3 of 3
 Case 1:20-cv-04651-SDG Document 34-1 Filed 11/19/20 Page 17 of 17

OFFICIAL ELECTION BULLETIN

November 13, 2020
_____________________________________________________________________________________________

TO: County Election Officials and County Registrars

FROM: Chris Harvey, Elections Division Director

RE: Allowing More Credentialed Monitors at Risk Limiting Audit

Allowing Libertarian Party Monitors

______________________________________________________________________

There has been some concern about the appropriate number of political party monitors eligible
to view the audit process. The rules that the Secretary of State’s office put out require that
Superintendents allow a minimum of two political party monitors from each party, with
additional monitors if there are more than twenty audit teams. For example, if DeKalb has 75
audit teams, they would have to allow a minimum of 8 designated monitors for each party.
Additionally, as the Libertarian Party (technically a political body) has a candidate on the ballot
for President, the same standards should be applied to the designated monitors from the
Libertarian Party.

As an addendum to the rules on political parties monitors and because transparency should be
a guiding principle throughout this process, if Election Superintendents can safely allow more
than the minimum number of designated political party monitors consistent with maintaining
an orderly process, space limitations, social distancing/public health guidelines then you should.
Please allow as much transparency as you can while maintaining a secure, orderly process and
abiding your public health regulations.

Page 1 of 1
Exhibit E
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

FAIR FIGHT ACTION, INC., et al.,

Plaintiffs, CIVIL ACTION FILE NO.

1:18-CV-5391-SCJ
v.

BRAD RAFFENSPERGER, et al.,

Defendants.

ORDER

This matter is before the Court on Plaintiffs’ Motion for Preliminary

Injunction concerning the State of Georgia’s recent voter list maintenance

activities in which the status of a large number of Georgia voters on the State’s

inactive elector list was changed to cancelled status. Doc. No. [159].1

1
The Court recognizes that Plaintiffs use the words “removed” and “purged”
throughout their arguments. However, Defendants have presented evidence and
assert that the use of these words to describe the present circumstances is not correct,
because no voter is ever removed from the voter rolls. In the process of voter list
maintenance (which is permitted under applicable federal law, specifically the
National Voter Registration Act, “NVRA,” 52 U.S.C. § 20501, et al.), the affected voter’s
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 2 of 32

According to a press release from the Secretary of State’s Office, the list

was comprised of 313,243 inactive voters.2 Of these 313,243, there were 108,306,

who had filed a change of address request with the United States Postal Service

showing they have moved to a different county or state and 84,376, who had

election mail returned as undeliverable, totaling 192,682. For purposes of the

pending motion, Plaintiffs are not contesting the cancellation of the

registrations of these 192,682 voters. It is the remaining 120,561 voters (defined

as having had no contact with their county election officials since

January 1, 2012 and did not respond to two notices), which are at issue.

Subsequent to the filing of Plaintiffs’ motion, the Secretary of State returned

22,000 of the 120,561 voters to the voting roll (after review of Plaintiffs’ briefing

status is changed from inactive to cancelled, which means that the voter is no longer
eligible to vote. Doc. No. [172], p. 10, n.6 (citing Harvey Dec. ¶ 5). Notwithstanding
Defendants’ argument, the Court recognizes that the applicable Georgia statute
utilizes the word “removed.” See O.C.G.A. § 21-2-235(b) (“the elector shall be removed
from the inactive list of electors.”) (emphasis added).
2
https://sos.ga.gov/index.php/elections/georgia_secretary_of_states_office_cleans
_voter_file_by_4_as_required_by_law (last visited Dec. 23, 2019); see also Defs.
Hearing Ex. 1 (Dec. 19, 2019).

2
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 3 of 32

and based upon the definition of a calendar year). Thus, it is now

approximately 98,000 voters that are at issue.3

I. BACKGROUND4

In 2018, Plaintiffs Fair Fight Action, Inc. (“Fair Fight Action”), Care in

Action, Inc. (“Care in Action”), Ebenezer Baptist Church of Atlanta, Georgia,

Inc. (“Ebenezer”), Baconton Missionary Baptist Church, Inc. (“Baconton”),

Virginia-Highland Church, Inc. (“Virginia-Highland”), and The Sixth

Episcopal District, Inc. (“Sixth Episcopal District”) (collectively, the

“Plaintiffs”) sued Defendants Brad Raffensperger (in his official capacity as

Secretary of State of the State of Georgia and as Chair of the State Election Board

of Georgia), Members of the State Election Board in their official capacities

(Rebecca N. Sullivan, David J. Worley, and Seth Harp), and the State Election

3
At the December 16, 2019 hearing, Defense Counsel indicated that there were about
50,000 of these individuals who would have been canceled under Plaintiffs’
interpretation of the law. However, Plaintiffs state that this number is incorrect and
was probably based on the misunderstanding as to the calendar year for purposes of
counting inactivity. Plaintiffs expert also explained that other corrections were also
made by the Secretary of State based on a data transfer issue. See Dec. 19, 2019
Hearing Transcript at 27:7–10.
4
All citations are to the electronic docket unless otherwise noted, and all page
numbers are those imprinted by the Court’s docketing software.

3
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 4 of 32

Board (collectively, the “Defendants”), alleging that there are “serious and

unconstitutional flaws in Georgia’s elections process” and that Defendants’

actions have “deprived Georgia citizens . . . particularly citizens of color, of

their fundamental right to vote.” Doc. No. [41], ¶ 2. More specifically, Plaintiffs

allege that Defendants enforced unconstitutional and otherwise unlawful

legislation, such as O.C.G.A. § 21-2-234, which Plaintiffs refer to as “Use it or

Lose it” and Defendants characterize as voter list maintenance.5

At the time of the filing of Plaintiffs’ lawsuit, Georgia’s statutory voter

list maintenance authority was found in O.C.G.A. §§ 21-2-234 and 235 and

required the Secretary of State to send a postcard to voters with whom there

had been “no contact” for three calendar years. If the voter failed to return the

postcard, the voter’s status was changed to “inactive.” If the voter still did not

vote in the next two general elections, he or she was removed from the

registration rolls (or as Defendants’ assert, the registration status was changed

to cancelled).

5
Plaintiffs also refer to the statute as “voter list purge,” which as stated above,
Defendants have presented evidence showing that this is an inaccurate description.
See n.1, supra.
4
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 5 of 32

During the 2019 Legislative Session, the Georgia General Assembly

passed House Bill 316 (“HB 316”). HB 316, which was signed into law by the

Governor on April 2, 2019, amends the Georgia Election Code to, among other

things, provide for more notice under Georgia’s voter-list-maintenance

process. HB 316 amended O.C.G.A. § 21-2-234 to mandate that the Secretary of

State cannot remove voters from registrations rolls unless there has been “no

contact” with them for five calendar years—as opposed to the previous three

calendar years. See O.C.G.A. § 21-2-234(a)(2). HB 316 also amended O.C.G.A.

§ 21-2-234 to require notice to the voter not less than thirty days but no more

than sixty days prior to the cancellation of the voter’s registration. Id. § 235(b).

The approximately 98,000 voters presently at issue are the voters who

were placed on the inactive list (for no contact) under the prior statutory

provision of three years “no contact” and prior to the enactment of HB 316’s

five year “no contact” provisions. Defendants do not see HB 316 as retroactive

or “backward” looking and have subjected the voters at issue to voter

registration cancellation, even though they had less than five calendar years of

no contact prior to being placed on the inactive elector list. Doc. No. [159-2],

p. 11.

5
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 6 of 32

In Count IV of their Complaint, as amended, Plaintiffs allege that

Georgia’s voter-list-maintenance process violates Georgia voters’ rights to

procedural Due Process under the First and Fourteenth Amendments of the

United States Constitution. Doc. No. [41], ¶¶ 69–81, 205. The Complaint further

states: “[t]he “use it or lose it” statute, as well as its enforcement by Defendants,

unlawfully disenfranchise voters or severely burden their right to vote by

penalizing voters based on their voting choices, providing voters inadequate

notice, and failing to ameliorate the [registration cancellations] by offering

same-day registration.” Id. ¶ 77.

On December 16, 2019, Plaintiffs filed an emergency Motion for

Temporary Restraining Order and Preliminary Injunction in which they seek

to enjoin Defendants from canceling the voter registrations of 98,561 “inactive”

voters. Doc. No. [159].6 The Court held a hearing on the same date. During this

hearing, Defense Counsel indicated that the “nuclear silo start process” began

6
Plaintiffs indicated at the hearing that a supplemental pleading was unnecessary to
address the recent circumstances presented in their motion. However, the Court finds
that because the events at issue happened after the filing of the complaint, the better
practice is to supplement the complaint. See Fed. R. Civ. P. 15(d) (“On motion and
reasonable notice, the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.”).
6
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 7 of 32

on September 24, 2019 and the system completes the program on

December 16, 2019, without anyone taking an action to “push the button,” to

complete the process. Counsel also indicated that undoing the coding to stop

the process, was challenging because there were other categories of cancellation

in the program (besides the active voter cancellation). Counsel further

indicated that if the already-running automated list maintenance process were

stopped, the process becomes manual, which introduces the possibility for

human error. Counsel also indicated that the State of Georgia was already

within the ninety-day federal statutory timeline in which it could perform list

maintenance and stopping the process would render the State of Georgia not

being able to perform list maintenance again until the year 2021. Counsel

further indicated that it is easier to reinstate the voters rather than stop the

ongoing automated process, because the voter registrations could be restored

in an overnight, twenty-four to forty-eight-hour process.

The Court declined to grant an emergency restraining order, finding the

absence of imminent irreparable injury, based in large part on Defense

Counsel’s representation as to the ease of ability to restore the registrations of

the voters at issue within twenty-four to forty-eight hours. Doc. No. [164].

7
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 8 of 32

The parties thereafter briefed the preliminary injunction portion of the

motion (Doc. Nos. [172] and [177]) and the Court held a second hearing on

December 19, 2019. Doc. No. [180]. As stated above, in the interim time period

between the emergency December 16, 2019 hearing and the December 19, 2019

preliminary injunction hearing, Defendants returned approximately 22,000

Georgia voters to the voter roll by changing their status from cancelled to

inactive status. During the December 19, 2019 hearing, the parties presented

testimony (from expert witness, Dr. Michael McDonald and Georgia Elections

Director, Chris Harvey) and exhibits. Doc. Nos. [180], [181].

Post-hearing, the Court posed two additional questions to the parties,

concerning the asserted injury and state interests.7 The parties submitted their

responses on December 23, 2019. Doc. Nos. [184], [185].

7
The Court’s exact questions are as follows:
The Court notes the parties’ different statutory interpretations
of HB 316.

Pursuant to Anderson v. Celebrezze, 460 U.S. 779 (1983), the

Court must consider “the character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendment that the plaintiff[s] seek[] to vindicate.”
Id. at 789. The Court asks Plaintiffs to address the following
question: What is the precise injury that will be suffered by the

8
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 9 of 32

This matter is now ripe for review.

II. LEGAL STANDARD

The Court considers four factors when deciding whether to issue a

preliminary injunction pursuant to Federal Rule of Civil Procedure 65:

(1) whether there is a substantial likelihood of success on the merits of the

complaint; 8 (2) whether the preliminary injunction is necessary to prevent

approximately 120,000 people at issue here if this preliminary

injunction is denied?

Additionally, pursuant to Anderson, the State must put forward

“precise interests” as “justifications for the burden imposed by
its rule.” Id. at 789. “[T]he Court must not only determine the
legitimacy and strength of those interests, it must also consider
the extent to which those interests make it necessary to burden
the plaintiff’s rights.” Id. The Court asks Defendants to address
the following question: Notwithstanding its Eleventh
Amendment argument, what interest does the State have in
applying its interpretation of H.B. 316 to the approximately
120,000 people at issue here?

8
It appears to the Court that Plaintiffs are arguing the likelihood of success on the
merits of their motion for preliminary injunction; however, the Court’s review of
applicable authority indicates that the standard involves likelihood of success on the
merits of the complaint. See Forsyth Cty. v. U.S. Army Corps of Engineers, 633 F.3d
1032, 1042 (11th Cir. 2011) (noting that “[t]he County failed to establish a substantial
likelihood of success on the merits of its complaint.”); Mann v. Palmer, 713 F.3d 1306,
1310 (11th Cir. 2013) (indicating that the petitioner had to establish “a substantial
likelihood of success on the merits of his complaint.”); Indigo Room, Inc. v. City of
Fort Myers, 710 F.3d 1294, 1299 (11th Cir. 2013) (noting that the district court did not

9
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 10 of 32

irreparable injury; (3) whether the threatened injury outweighs the harm that

the preliminary injunction would cause to the non-movant; and (4) whether the

preliminary injunction would be adverse to the public interest.9 Parker v. State

Bd. of Pardons and Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). Injunctive

relief is an extraordinary and drastic remedy and should not be granted unless

the movant clearly establishes the burden of persuasion as to each of these four

factors. Siegel v. LePore, 234 F. 3d 1163, 1176 (11th Cir. 2000).10 In addition, “[a]t

the preliminary injunction stage, a district court may rely on affidavits and

hearsay materials which would not be admissible evidence for a permanent

injunction, if the evidence is ‘appropriate given the character and objectives of

abuse its discretion in denying injunction motion because it properly concluded that
movants failed to show a substantial likelihood of success on the merits of two counts
of their complaint); and Common Cause/Georgia v. Billups, 554 F.3d 1340, 1348 (11th
Cir. 2009) (noting that the district court ruled that the organizations and voters had
proved a substantial likelihood of success on the merits of their complaint).
9
Factors three and four also involve consideration of whether the movant has shown
reasonable diligence. See Benisek v. Lamone, --- U.S. ----, 138 S. Ct. 1942, 1944, 201 L.
Ed. 2d 398 (2018) (“a party requesting a preliminary injunction must generally show
reasonable diligence.”).
10
However, if a movant is unable to show a substantial likelihood of success on the
merits, the court need not consider the other preliminary injunction requirements. See
Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).

10
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 11 of 32

the injunctive proceeding.’” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51

F.3d 982, 985 (11th Cir. 1995). The decision to grant preliminary injunctive relief

is within the broad discretion of the district court. Majd–Pour v. Georgiana

Cmty. Hosp., Inc., 724 F.2d 901 (11th Cir. 1984).

III. ANALYSIS

The crux of Plaintiffs’ preliminary injunction motion involves the

question of what should happen to the approximately 98,000 voters that were

placed on the State of Georgia’s inactive list (for no contact) prior to the

enactment of HB 316. Plaintiffs assert that a constitutional question is

presented by the circumstances and this Court should apply the Supreme

Court’s Anderson-Burdick balancing test (involving consideration of the

asserted injury and the state’s interest) to evaluate whether the voting

restriction at issue violates Due Process or the First Amendment. Plaintiffs also

assert that the State of Georgia has no interest in removing voters from the rolls

in violation of its own laws. Doc. No. [176], p. 2. In contrast, Defendants assert

the Eleventh Amendment and the Pullman Doctrine inter alia to challenge the

propriety of Plaintiffs’ motion. As the Defendants’ arguments are

11
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 12 of 32

jurisdictionally based, the Court will consider those arguments first. 11 The

Court will thereafter consider Plaintiffs’ constitutional claim.

A. Eleventh Amendment

In opposition to Plaintiffs’ motion, Defendants argue that Plaintiffs’

motion and legal theory are barred by the Eleventh Amendment, because

Plaintiffs are essentially asking this Court to adjudicate state law for the first

time (and otherwise address state-law claims in federal court). Doc. No. [172],

pp. 2, 8, 16. More specifically, Defendants’ argument recognizes that Plaintiffs

and Defendants have different interpretations of the effect of HB 316 on the

approximately 98,000 voters at issue. Defendants argue that Plaintiffs’

requested injunctive relief requires this Court to endorse Plaintiffs’

interpretation of state law, which is barred by the Eleventh Amendment and

State sovereign immunity. Id. at p. 16. Defendants assert that the reality of

11
“Because the Eleventh Amendment represents a constitutional limitation on the
federal judicial power established in Article III, federal courts lack jurisdiction to
entertain claims that are barred by the Eleventh Amendment.” McClendon v. Ga.
Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001) (citations omitted); see also
Edelman v. Jordan, 415 U.S. 651, 678 (1974) (“the Eleventh Amendment defense . . .
partakes of the nature of a jurisdictional bar”) and Duke v. James, 713 F.2d 1506, 1510
(11th Cir. 1983) (discussing the Pullman abstention (from the exercise of federal
jurisdiction) doctrine).
12
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 13 of 32

Plaintiffs’ motion is that “it is a declaratory judgment claim regarding

compliance with HB 316 masquerading as a constitutional argument.” Id. at p.

17. Defendants further argue that “Plaintiffs cannot succeed in suggesting their

relief is based in federal law when it requires this Court to determine a novel

issue of state law.” Id. at p. 18.

In opposition, Plaintiffs state that their claims arise from the First and

Fourteenth Amendments of the United States Constitution, not state law—and

that their arguments do not require the Court to analyze novel issues of state

law. Doc. No. [177], p. 3.

The Eleventh Amendment states in relevant part: “[t]he Judicial power

of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of

another State . . . .” U.S. Const. amend. XI. The United States Supreme Court

has held that “a suit against state officials on the basis of state law contravenes

the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 117 (1984). 12 The Court also indicated that when injunctive relief is

12
“The Supreme Court [in Pennhurst] has explained that the rationale for the

13
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 14 of 32

sought, “an error of law by state officers acting in their official capacities will

not suffice to override the sovereign immunity of the State where the relief

effectively is against it.” Id. at 113 (citations omitted). The Court further stated:

“it is difficult to think of a greater intrusion on state sovereignty than when a

federal court instructs state officials on how to conform their conduct to state

law.” Id. at 106.

The Eleventh Circuit Court of Appeals has addressed the Pennhurst

decision on numerous occasions. In their briefing, Plaintiffs primarily rely upon

the Eleventh Circuit’s 1989 decision in Brown v. Georgia Department of

Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). In Brown, the Eleventh Circuit

held that the Supreme Court’s decision in Pennhurst does not apply when a

plaintiff alleges a violation of the federal Constitution. Id. at 1023. The Eleventh

Circuit stated that under Pennhurst, “the determinative question is not the

relief ordered, but whether the relief was ordered pursuant to state or federal

[exception to the Eleventh Amendment that allows state officials to be sued for
prospective relief, i.e., Ex parte Young doctrine] ‘rests on the need to promote the
vindication of federal rights,’ but in a case alleging that a state official has violated
state law, this federal interest ‘disappears.’” Ala. v. PCI Gaming Auth., 801 F.3d 1278,
1290 (11th Cir. 2015) (citations omitted).

14
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 15 of 32

law.” Id. In the case sub judice, no relief has been ordered, so the Court cannot

necessarily answer this determinative question.13

Additional Eleventh Circuit authority indicates that when the gravamen

of the complaint appears to be that the State improperly interpreted and failed

to adhere to a state statute, there is a Pennhurst problem—as despite references

to the United States Constitution in the pleadings, the claims necessarily rely

on a determination that a state official has not complied with state law, 14 a

determination that is barred by sovereign immunity. See S&M Brands, Inc. v.

Georgia ex rel. Carr, 925 F.3d 1198, 1205 (11th Cir. 2019) and DeKalb Cty. Sch.

Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir. 1997); see also Hand v. Scott, 888

F.3d 1206, 1213–14 (11th Cir. 2018) (holding that “the district court cannot

13
Phrased a different way, in Pennhurst, the Supreme Court indicated that “the
general criterion for determining when a suit is in fact against the sovereign is the
effect of the relief sought.” Pennhurst, 465 U.S. at 107 (emphasis added). In the case
sub judice, the Court finds that the effect of the relief sought by Plaintiffs is a
determination by this Court that Defendants have not complied with state law.
14
For example, Plaintiffs use the phrase “violation of state law” at numerous times in
their briefing and hearing exhibit/PowerPoint. See e.g., Doc. Nos. [159-1], p. 23; [176],
pp. 2, 7 n.1.

15
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 16 of 32

enjoin [a state] to follow the district court’s interpretation of [the state’s] own

constitution.”).15

While the Court recognizes Plaintiffs’ arguments and citation of

authority to the contrary, as well as its ability to review state statutes,16 the

gravamen of the Plaintiffs’ pending motion appears to be that the Secretary of

State (and therefore the State of Georgia) has improperly interpreted and failed

to adhere to Georgia’s new voter list maintenance statute (HB 316).17 This is

evidenced by the motion’s numerous references to violation of state law and

the fact that Plaintiffs are not seeking an injunction as to the entirety of the

15
This Court’s independent research only found one case to the contrary, Duncan v.
Poythress, 657 F.2d 691 (5th Cir. 1981); however, the applicability and precedential
weight of that case is doubtful, considering that it was decided pre-Pennhurst and
involved a substantive due process claim, as opposed to the procedural due process
claim at issue here.
16
As stated by Judge Gerald Tjoflat, the Supremacy Clause of the United States
Constitution “allows federal courts to review state statutes, but federal courts are
limited to refusing to apply the provisions they find unconstitutional.” Democratic
Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1348 (11th Cir. 2019) (Tjoflat, J., dissenting).
Here, the Court is not being asked to find a statute unconstitutional. Plaintiffs are
asking the Court to find a state official’s interpretation of a statute unconstitutional.
17
More specifically, the case of Democratic Executive Committee v. Lee, 915 F.3d 1312
(11th Cir. 2019) cited by Plaintiffs is distinguishable in that the arguments in that case
did not center upon a violation of state law.

16
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 17 of 32

approximately 300,000 voter registrations that were subject to cancellation.

Accordingly, in light of the above-stated authority, the Eleventh Amendment

bars Plaintiffs’ motion to the extent that it requires a conclusion by this Court

that Plaintiffs’ interpretation of HB 316 is correct.18

B. Pullman Doctrine

While the Court considers the Eleventh Amendment analysis

determinative, in the interest of caution, the Court will consider Defendants’

Pullman abstention doctrine argument. Defendants assert the Pullman

abstention doctrine, on the ground that “Plaintiffs’ Motion is predicated upon

only one discrete subset of list-maintenance activities that has not been

adjudicated by state courts [and further argue that] this Court should refrain

from adopting Plaintiffs’ arguments on an unsettled issue of state law.” Doc.

No. [172], p. 20.

“Under the Pullman abstention doctrine, a federal court will defer to

‘state court resolution of underlying issues of state law,’” before a substantial

18
The Court recognizes that Plaintiffs also present an alternative argument in the
event that the Court declines to engage in statutory interpretation or otherwise finds
that HB 316 is ambiguous as to the voters at issue. To this regard, the Court will
continue with its analysis and consider the constitutional question, infra.
17
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 18 of 32

federal constitutional question can be decided. Siegel, 234 F.3d at 1174; see also

Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). In considering

abstention, the court “must take into account the nature of the controversy and

the importance of the right allegedly impaired.” Id. In light of said

consideration, the Eleventh Circuit has held that “voting rights cases are

particularly inappropriate for abstention.” Id. In lieu of abstention, the

Eleventh Circuit has indicated that “the preferable way to obtain state court

resolution of those state law issues is through the certification process

established by” the state supreme court. Pittman v. Cole, 267 F.3d 1269, 1288

(11th Cir. 2001); cf. Roe v. State of Ala., 43 F.3d 574, 582 (11th Cir. 1995) (“We

agree that federal courts should refrain from holding a state election law

unconstitutional when a reasonable alternative course of action exists. We are,

therefore, reluctant to reach a final decision in this case while the proper

application of the [State] Election Code remains muddled. There are two ways

to show deference to the state decisionmakers in this matter: we can leave the

plaintiffs to their state remedies; or we can certify a question to the Supreme

Court of [the state], retain jurisdiction, and await that court’s answer.”)

(citations omitted). In light of this authority, the Court finds that it would not

18
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 19 of 32

be appropriate to apply the Pullman abstention doctrine to this voting rights

case. Nevertheless, the Court still does not proceed to interpreting the statute,

because from this Court’s brief review, the answer as to how HB 316 applies to

the voters who were already on the State of Georgia’s inactive elector list (prior

to enactment of HB 316) is not clear cut and both Plaintiffs and Defendants have

offered reasonable interpretations for how HB 316 affects the voters at issue.

Cf. Duncan, 657 F.2d at 699 (providing an overview of authority concerning

clear and vague statutes in the context of the Pullman abstention doctrine). In

essence, HB 316 is open to interpretation and could reasonably be interpreted

as either party contends. In addition, an interpretation of HB 316 by this Court

at this stage of the case creates a possibility for conflicting interpretations in the

event that a state court later decides the issue—there would be an interpretation

by the federal court and an interpretation by the state court. Cf. Pennhurst, 465

U.S. at 122 n.32 (“when a federal decision on state law is obtained, the federal

court’s construction often is uncertain and ephemeral”).

As stated above, the preferable way to obtain resolution of the state law

issue is through the certification process by the state supreme court. However,

19
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 20 of 32

neither party has asked to certify a question to the Georgia Supreme Court.19

Plaintiffs also have an additional remedy in the form of seeking a mandamus

in the state courts. Nevertheless, as stated above, the Court considers the

Eleventh Amendment analysis, supra, determinative to the extent that the

issues involve proper interpretation (and violation) of state law.20

19
The Court recognizes that it may sua sponte certify a question the Georgia Supreme
Court; however, as indicated at the December 19, 2019 hearing, the Court is concerned
as to timing in that the date that the Georgia Supreme Court will return an answer is
unknown and Plaintiffs have continuously expressed a desire to resolve this case in
March of 2020.
20
The interplay between the Pennhurst/Eleventh Amendment ruling and the
Pullman abstention doctrine has been described as follows.
The configuration of the Pennhurst litigation was identical
to the litigation in Pullman. Both cases involved lawsuits
filed in federal court, which raised both state claims and
federal constitutional claims against state officials, but
which could have been resolved on the state law claims
alone. The Supreme Court, however, did not consider
Pullman abstention as a potential resolution of the
Pennhurst litigation. Instead, the Court replaced the
methodology of a discretionary stay envisioned in
Pullman with a rule of mandatory dismissal. As a result,
the role of Pullman abstention in allocating
decisionmaking responsibility in suits against state
officials was transmuted substantially without a word of
explanation by the Court.
Keith Werhan, Pullman Abstention After Pennhurst: A Comment on Judicial
Federalism, 27 Wm. & Mary L. Rev. 449, 454 (1986).
20
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 21 of 32

C. Constitutional Claim

Assuming, arguendo, that Plaintiffs’ motion does not seek a ruling by the

Court regarding the correct statutory interpretation of HB 316 and whether the

three-year or five-year “no contact” provision applies to the approximately

98,000 voters at issue, the Court proceeds with the following constitutional

analysis of HB 316 and, in particular, the “no contact” scheme therein.

The Supreme Court “has made clear that a citizen has a constitutionally

protected right to participate in elections on an equal basis with other citizens

in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). This equal right

to vote, however, “is not absolute; the States have the power to impose voter

qualifications, and to regulate access to the franchise in other ways.” Id.;

see also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“It does not follow,

however, that the right to vote in any manner and the right to associate for

political purposes through the ballot are absolute.”).

“The Supreme Court has rejected a litmus-paper test for constitutional

challenges to specific provisions of a State’s election laws and instead has

applied a flexible standard.” Common Cause/Georgia v. Billups, 554 F.3d 1340,

1351 (11th Cir. 2009) (internal quotation marks omitted). Consequently, a

21
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 22 of 32

reviewing court must first “consider the character and magnitude of the

asserted injury to the rights protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate.” Anderson v. Celebrezze, 460 U.S. 780, 789

(1983). A court must then “identify and evaluate the interests put forward by

the State as justifications for the burden imposed by its rule.” Id. “Only after

weighing all these factors is the reviewing court in a position to decide whether

the challenged provision is unconstitutional.” Id.; see also Burdick, 504 U.S.

at 434. If a State’s election law imposes only “reasonable, nondiscriminatory

restrictions” upon the First and Fourteenth Amendment rights of voters, “the

State’s important regulatory interests are generally sufficient to justify” the

restrictions. Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at 788). But if a

State’s election law imposes a “severe” burden, it must be “narrowly drawn to

advance a state interest of compelling importance.” Id. (citing Norman v. Reed,

502 U.S. 279, 289 (1992)). In other words, “lesser burdens . . . trigger less

exacting review.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358

(1997).

Accordingly, the Court begins by evaluating the burden of this “no

contact” scheme on Plaintiffs’ First and Fourteenth Amendment rights.

22
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 23 of 32

“Ordinary and widespread burdens, such as those requiring nominal effort of

everyone, are not severe.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181,

205 (2008) (Scalia, J., concurring) (quotation omitted). However, burdens “are

severe if they go beyond the merely inconvenient.” Id. Plaintiffs argue that the

burden imposed on voters by the “no contact” scheme is “severe” and that,

should their motion for preliminary injunction be denied, the “precise injury”

the approximately 98,000 voters at issue will suffer is “complete

disenfranchisement.” See generally Doc. Nos. [159-1]; [184]. Plaintiffs contend

that removing voters solely due to inactivity—without any other evidence that

said voters have moved—raises a substantial risk that individuals will be

erroneously deprived of their constitutional right to vote. See Doc. No. [169-1],

p. 19. They specifically cite to a 2018 Election Assistance Commission Report,

in which statistics show that the State of Georgia mailed 478,295 voter

confirmation notices in advance of the 2018 election to individuals it suspected

of having moved. See Doc. No. [184-2]. Of those confirmation notices, more

than 75% of the notices were neither responded to nor returned as

23
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 24 of 32

undeliverable, suggesting that a substantial number of the notices were never

read.21 Id.

Additionally, Plaintiffs argue that once a voter is removed from the voter

roll under the “no contact” scheme, the likelihood of complete

disenfranchisement is high for two reasons. See Doc. No. [184], pp. 3–5. First,

the State of Georgia does not notify individuals that their voter registration has

been cancelled. Thus, Plaintiffs argue that the first moment that many voters

learn that they have been removed from the voter rolls is when they arrive at

the polls on Election Day. Because the State of Georgia does not offer same-day

registration, said individuals are therefore ineligible to vote. Second, for the

individuals who have learned that they have been removed from the voter

rolls, there is only a narrow window of time for said individuals to re-register

before the next election, as Georgia law requires voters to register weeks before

any election. See O.C.G.A. § 21-2-224.

21
Plaintiffs also point to Mr. Harvey’s testimony at the preliminary injunction hearing,
in which he acknowledged that “[t]here are a lot of people that don’t check their mail”
and that, upon receiving confirmation notices, voters may think it’s a “mailer,” “an
advertisement,” or “marketing things that look like . . . official documents.” See
Dec. 19, 2019 Hearing Transcript at 79:1–79:18.
24
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 25 of 32

Defendants, in response, argue that Plaintiffs have provided no evidence

of any burden that the “no contact” scheme imposes on the right to vote, let

alone a “severe” burden. See generally Doc. Nos. [172]; [185]. In support of this

contention, Defendants rely on the Eleventh Circuit’s ruling in Billups. Therein,

the Eleventh Circuit upheld the constitutionality of a state law requiring voters

to produce photo identification prior to casting a ballot. See 554 F.3d at 1355.

Employing the Anderson-Burdick balancing test, the Eleventh Circuit found

that the plaintiffs “failed to prove that any individual would bear a significant

burden” because they could not “identify a single individual who would be

unable to vote because of the Georgia statute or would face an undue burden

to obtain a free voter identification card.” Id. at 1354. Accordingly, the Eleventh

Circuit found that “the burden on Georgia voters is ‘slight’” and, thus, that the

state interest need not be “compelling.” Id. (citing Burdick, 504 U.S. at 439).

Defendants argue that, like the plaintiffs in Billups, Plaintiffs have failed

to prove that any individual would bear a significant or “severe” burden due

to the “no contact” scheme. Namely, in support of their motion, Plaintiffs

include eight declarations from Georgia voters. See Doc. Nos. [159-3]; [159-4];

[159-5]; [159-6]; [159-7]; [159-8]; [159-9]; [159-12]. Plaintiffs initially stated that

25
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 26 of 32

all eight of these voters were due to be removed from the voter rolls under the

“no contact” scheme despite that fact that none of these voters had ever moved.

Doc. No. [159-1], p. 15. In response, however, Defendants contend that four of

the voters (Linda Bradshaw, Keme Hawkins, Tommie Jordan, and Deepak

Eidnani) remain on the official list of voters as “active” voters. See Doc. No.

[172], pp. 13–14. Thus, these four voters are eligible and able to vote.

Moreover, Defendants contend that the other four voters (Clifford

Thomas, David Hopkins, Charlesetta Young, and Kilton Smith) were removed

from the voter rolls after failing to respond to the two confirmation notices sent

pursuant to the “no contact’ scheme under HB 316.22 At this time, there is no

evidence that any of these four voters were burdened or precluded from

returning the two confirmation notices, which are prepaid and preaddressed.

22
The Court notes that these four voters dispute that they ever actually received
confirmation notices. However, Defendants contend that Secretary of State records
show that confirmation notices were in fact sent to these four voters. See Doc. No.
[172-1]. “The common law has long recognized a rebuttable presumption than an item
properly mailed was received by the addressee.” Chung v. JPMorgan Case Bank, N.A.,
975 F. Supp. 2d 1333, 1348 (N.D. Ga. 2013) (quoting In re Farris, 365 F. App’x 198, 199
(11th Cir. 2010)). Plaintiffs’ conclusory allegation that these four voters never actually
received confirmation notices “is insufficient to rebut the presumption.” In re Farris,
365 F. App’x at 200 (“The mere denial of receipt, without more, is insufficient to rebut
the presumption.”).
26
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 27 of 32

Additionally, there is no evidence at this time that any of the four voters are

precluded or burdened by registering to vote again. In fact, at the preliminary

injunction hearing, Mr. Harvey testified that re-registering to vote after being

removed from the voter rolls for “no contact” is no different from registering

to vote in the first instance. See Dec. 19, 2019 Hearing Transcript at 47:23–48:4.

A voter can re-register to vote by going online to use the Online Voter

Registration system or renewing one’s driver’s license or identification card

with the Department of Driver Services. Id.

Based on the limited factual record before the Court, the Court finds that

Plaintiffs have not shown a substantial likelihood of success that the burden

imposed by the “no contact” scheme (i.e., returning a prepaid, preaddressed

confirmation notice and/or re-registering to voter) is severe.

The Court now turns to the State’s purported interests in enforcing the

“no contact” provision under its interpretation of HB 316. Because the burden

of said provision is “slight,” the state interest need not be “compelling . . . to tip

the constitutional scales in its direction.” Burdick, 504 U.S. at 439. Rather, “the

State’s important regulatory interests are generally sufficient to justify” the

restrictions. Id. at 434.

27
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 28 of 32

Defendants have identified three State interests in enforcing the “no

contact” provision under its interpretation of HB 316. First, Defendants state

that State of Georgia has an interest—both generally and as compelled by

federal law—in maintaining reliable lists of electors. See Doc. No. [185], p. 4.

Under the NVRA, states are required to make “a reasonable effort to remove

registrants who are ineligible to vote from the official list of eligible voters.”23

52 U.S.C. § 21083(a)(4)(a). Congress mandates this, in part, “to protect the

integrity of the electoral process; and . . . [to] ensure that accurate and current

voter registration rolls are maintained.” 52 U.S.C. §§ 20501(b)(3) and (b)(4).

Second, Defendants state that the State of Georgia and the Secretary of State

have an interest in applying election laws as written specifically. See Doc. No.

[185], p. 5. Finally, Defendants maintain that the “no contact” scheme

eliminates voter confusion and improves election-day operations. Doc. No.

[185], p. 5. For example, Defendants argue that inaccurate voter lists that

23
The method employed by the State of Georgia—both prior to and after the
enactment of HB 316—is contemplated by the NVRA and has been upheld by the
Supreme Court in Husted v. A. Philip Randolph Inst., ---U.S.----, 138 S. Ct. 1833,
1842 (2018). As Plaintiffs correctly note, however, the Supreme Court in Husted only
addressed whether the challenged voter-list-maintenance process complied with the
NVRA and did not address the constitutionality of said process.
28
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 29 of 32

incorporate individuals who have moved and are no longer eligible may cause

local election officials to improperly assess where equipment and personnel

should be deployed on election day in 2020. Id. at pp. 5–6.

Plaintiffs, in response, argue that the State has waived or disclaimed any

such interest in applying a three-year “no contact” provision to the

approximately 98,000 individuals at issue since HB 316 amended the “no

contact” provision to require five years of inactivity. In doing so, Plaintiffs

overstate the burden on the State under the Anderson-Burdick test. As

discussed supra, Plaintiffs failed to show a substantial likelihood of success that

the burden imposed by the “no contact” scheme is “severe.” Accordingly,

under the Anderson-Burdick, the State is only required to articulate an

important regulatory interest in enforcing their interpretation of said provision.

See Burdick, 504 U.S. at 439. The Court finds that all three of the above-stated

regulatory interests are sufficient to satisfy that obligation under the Anderson-

Burdick test.

The Court therefore concludes that, at this time, Plaintiffs have not met

their burden of showing a substantial likelihood of success that the “no contact”

scheme set forth in HB 316 violates the First and Fourteenth Amendments.

29
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 30 of 32

Because Plaintiffs have failed to establish a substantial likelihood of

success on the merits, the Court need not examine whether Plaintiffs have will

irreparable harm, or whether a balance of hardships weighs in Plaintiffs’ favor,

or, finally, whether the public interest would support the issuance of a

preliminary injunction. See Bloedorn, 631 F.3d at 1242.

IV. CONCLUSION

Plaintiffs’ Motion for Preliminary Injunction (Doc. No. [159]) is DENIED

on the ground that the Eleventh Amendment of the United States Constitution

and the principles of sovereign immunity do not permit a federal court to enjoin

a state (or its officers) to follow a federal court’s interpretation of the State of

Georgia’s laws. Such interpretation is within the province of the state court. As

to the remainder of Plaintiffs’ constitutional claim, the motion is also DENIED

on the ground that Plaintiffs have failed to show a substantial likelihood of

success on the merits of their claim that the “no contact” provision violates the

First and Fourteenth Amendments. It is important to note that the Court has

not conclusively determined the rights of the parties, but in accordance with

30
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 31 of 32

applicable authority, only balanced the equities in the interim as this litigation

proceeds.24

While the denial of this motion is based upon the Eleventh Amendment

and respect for state sovereignty, the Court has not ignored the fundamental

significance of voting under our constitutional structure.25 In recognition of this

important right, the Court would be remiss not to express its serious concern

that there needs to be an immediate and accurate interpretation by the state

court of HB 316 as to its effect on the voters who were already on the State’s

inactive list prior to the effective date of HB 316. To this regard, the Court will

allow Plaintiffs, upon request, to stay the pending litigation to seek emergency

relief at the state court level (or otherwise certify a question the Georgia

Supreme Court). In light of the immediacy of the situation in District 171, it is

within the authority of the Secretary of State to return any cancelled voters to

inactive status to allow Plaintiffs reasonable time to seek a decision from the

state court.

24
See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019)
(noting that “the purpose of the injunction is not to conclusively determine the rights
of parties, but only to balance the equities in the interim as the litigation proceeds.”).
25
Burdick, 504 U.S. at 432.
31
 Case 1:18-cv-05391-SCJ Document 188 Filed 12/27/19 Page 32 of 32

The Court also, pursuant to its inherent authority to control the conduct

of the parties, ORDERS Defendants to make additional diligent and reasonable

efforts (through notices on the Secretary of State’s website and press releases)

to inform the general public (especially those in House District 171, who face a

December 30, 2019 deadline to re-register) of this Court’s order in regard to the

voter list maintenance process and the need for the canceled voters to re-

register to vote during the applicable registration time period. 26

IT IS SO ORDERED this 27th day of December, 2019.

s/Steve C. Jones
HONORABLE STEVE C. JONES
UNITED STATES DISTRICT JUDGE

26
See generally Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335
(11th Cir. 2002) (discussing inherent authority).
32