Filed Date: April 7, 2021
Case Ongoing
Clearinghouse coding complete
This is a case challenging three provisions contained in Georgia Senate Bill 202 (SB 202) that allegedly made absentee voting more difficult. On April 7, 2021, VoteAmerica, the Voter Participation Center, and the Center for Voter Information filed this suit in the United States District Court for the Northern District of Georgia. The plaintiffs sued the Secretary of State of Georgia, as well as several state election board members under 42 U.S.C. § 1983. Represented by the Campaign Legal Center and private counsel, the plaintiffs sought declaratory and injunctive relief. The case was assigned to Judge Charles A. Pannell, Jr.
The plaintiffs challenged three specific provisions of the bill:
The plaintiffs claimed that SB 202 violated their First Amendment rights to free speech and association and that the bill was impermissibly overbroad and vague. The plaintiffs first argued that SB 202 burdened their core political speech, which included communications and activities encouraging voters to participate in politics through absentee voting. They further argued that the bill also restricted the plaintiffs' "expressive conduct in sharing their belief in the capacity of the popular will to shape the composition and direction of the government." Next, the plaintiffs asserted that SB 202 impermissibly burdened their freedom of association by decreasing opportunities for the plaintiffs to “associate with potential voters and jointly participate in meaningful civic activities." The plaintiffs also asserted that SB 202 unconstitutionally compelled speech by forcing the plaintiffs to make a disclaimer that they would not have otherwise made. In arguing that the bill was substantially overbroad, the plaintiffs asserted that the challenged provisions regulated a sweeping amount of noncommercial political speech and constitutionally protected expressive conduct. Finally, the plaintiffs asserted that SB 202's failure to define several key words like "send" and "mail" meant that it failed to give reasonable notice of what constituted prohibited conduct to civic organizations and persons that participated in First Amendment protected activities concerning absentee ballot applications, and was therefore unconstitutionally vague.
On April 8, 2021, the case was reassigned to Judge J. P. Boulee. On April 14, 2021 the Republican National Committee, the National Republican Senatorial Committee, the National Republican Congressional Committee, and the Georgia Republican Party submitted a motion to intervene as defendants. They alleged that the defendants did not "share their distinct interests in conserving their resources and helping Republican candidates and voters" and that the resolution of the questions posed in the case would have significant implications on the work they do.
On May 17, 2021, the defendants moved to dismiss the action, arguing that the plaintiffs lacked standing and, even if they did have standing, had failed to state a claim. The defendants argued that the plaintiffs lacked standing because they had not sufficiently alleged an injury-in-fact. The defendants addressed each of the three alleged injuries the plaintiffs pleaded in their complaint. As to the plaintiffs’ claim that they needed to divert resources internally in order to comply with SB 202, the defendants argued that the plaintiffs had failed to make the required showing of the activities they were forced to divert funds from. As to the plaintiffs’ claim that they were injured by the risk of incurring fines for inadvertently sending absentee ballot applications to individuals who had already requested or submitted one, the defendants argued that the risk was entirely speculative. They also argued that SB 202 contained a safe harbor provision for those who relied on the information provided by the Secretary of State when sending absentee ballots applications, if the information turned out to be incorrect. As to the plaintiffs’ claim that they were harmed by a decrease in the efficacy of two direct mailing programs by the prohibition on sending pre-filled applications, the defendants argued that plaintiffs had pointed to no authority that such an alleged decrease resulted in an injury and that such injury could be attributable to the defendants. Lastly, the defendants argued that the plaintiffs had failed to allege an injury stemming from the disclaimer provision. For these reasons the defendants argued that the plaintiffs lacked standing.
Next, the defendants argued that the plaintiffs failed to state a claim upon which relief could be granted, again addressing each of the plaintiffs' claims. As to the free speech claim, the defendants argued that the plaintiffs were wrong to allege that the provisions were subject to strict scrutiny because there was no support for the argument that the provisions posed a severe burden on the plaintiffs. As to the free association claim, the defendants argued that the challenged provisions did not impede the plaintiffs from associating with voters to express their similarly held views. Rather, "all they do is place reasonable regulations around solicitation activity-to reduce voter confusion, make the absentee ballot process more manageable, and protect the integrity of the election." As to compelled speech, the defendants alleged that the disclaimer provision did not alter the content of the plaintiffs' speech and did not stop them from conveying to voters their chosen message, but rather only required them to make clear that the content came from a private entity and not the government.
On the issue of overbreadth, the defendants argued that the disclaimer provision was not overly broad because it had a legitimate sweep and only required private entities to disclaim that they, not the government, were mailing the absentee ballot application. Next, they argued that, in regards to the prefilling provision, the plaintiffs had only pleaded one situation where the law would infringe on First Amendment rights, but that there was no evidence that this situation would affect a significant number of voters. Finally, they argued that the anti-duplication provision did not block the plaintiffs from any protected activities. On the issue of vagueness, the defendants argued that the words the plaintiffs had argued were vague were properly defined in the context in which they were placed.
On June 4, 2021, the court granted the motion to intervene by the various Republican organizations. 2021 WL 2450647. On June 21, 2021, the defendant-intervenors filed a motion to dismiss.
On December 9, 2021, the court denied all of the pending motions to dismiss. The court first determined that VoteAmerica had sufficiently alleged an injury-in-fact because they claimed they would need to divert resources to efforts to comply with the new requirements imposed by SB 202. Even though the diversion had not yet occurred and was only "reasonably anticipated," the court found the alleged diversion of staff hours and limited program and financial resources sufficient to show an injury for standing purposes. The court therefore determined that VoteAmerica had standing to challenge the bill. As to the free speech, free association, and expressive conduct claims, the court determined that the plaintiffs had sufficiently stated plausible claims that the provisions affected their speech. The court rejected the defendants' arguments regarding type of protection, requisite burden, and category of speech, finding they were not appropriate issues for a motion to dismiss. In declining to dismiss the plaintiffs’ overbreadth claim, the court found that the plaintiffs had made out a plausible claim, and that “answering the question of whether the conduct regulated by the challenged provisions implicates a constitutional interest requires analysis of facts outside the complaint, which is inappropriate on a motion to dismiss.” Similarly, the court declined to dismiss the plaintiffs’ vagueness claim, finding that some of the challenged words and provisions could be ambiguous and would not have provided fair notice of what conduct was prohibited.
On December 16, 2021, the court stayed the case to consider whether to consolidate several pending suits involving substantially similar facts and legal issues, as well as several identical defendants (New Georgia Project v. Raffensperger, 1:21-cv-01229; Georgia State Conference of the NAACP v. Raffensperger, 1:21-cv-01259; Sixth District of the African Methodist Episcopal Church v. Kemp, 1:21-cv-01284; Asian Americans Advancing Justice, Atlanta v. Raffensperger, 1:21-cv-01333; Concerned Black Clergy of Metropolitan Atlanta v. Raffensperger, 1:21-cv-01728; Coalition for Good Governance v. Raffensperger, 1:21-cv-02070; and United States v. Georgia, 1:21-cv-02575). On December 23, 2021, the court decided to consolidate only the consenting cases, of which this case was not one.
On April 26, 2022, the plaintiffs moved for a preliminary injunction. They asserted that as they prepared for the upcoming 2022 general election cycle, "the Ballot Application Restrictions [were] directly stymieing" their "ability to speak and engage in Georgia." They alleged that they would be forced to decrease their messaging to potential Georgia voters, alter their communications in a way that would lead to a decrease in their effectiveness, and include a misleading and confusing disclaimer.
On June 30, 2022, after a hearing, the court denied the plaintiffs’ motion for a preliminary injunction. The court first addressed the categories of speech at issue and the protections available to those categories. The court determined that the plaintiffs' application distribution program did not constitute core political speech, because the distribution of forms “[did] not require the type of interactive debate and advocacy” the Supreme Court had ruled implicated political speech in prior cases. For this reason, the plaintiffs had not shown the ballot provisions restricted core political speech. Next, the court found that the plaintiffs had not shown that the act of sending ballot application packages was expressive conduct falling under First Amendment protections. The court then turned to the associational claims. While recognizing that the plaintiff organizations engaged in advocacy work, the court found that sending application forms to strangers did not rise to the level of the type of two-way engagement required to assert associational rights. Finally, the court did find that the disclaimer constituted compelled speech, but that it simply presented information designed to decrease confusion regarding absentee ballot applications and said nothing regarding the pro-absentee voting message the plaintiff organizations wished to convey.
The court then determined what level of scrutiny to apply to the provisions. Given that the plaintiffs had not shown that the prefilling and anti-duplication provisions restricted speech, the court found that those provisions were more appropriately categorized as rules governing the “mechanics of the electoral process.” Based on this finding, the court applied the Anderson-Burdick framework, which requires the court to weigh the "relative interests of the state in imposing election-related regulations against the alleged constitutional injury and the extent to which it is necessary to burden the plaintiff’s rights.” The court found the same framework applied to the disclaimer provision. Even though the disclaimer constituted compelled speech, it did not directly regulate speech (it didn’t prohibit the plaintiffs from conveying their message), and therefore also constituted a regulation governing the mechanics of the electoral process.
Under the Anderson-Burdick framework, the court found that the defendants needed only to show that the prefilling and anti-duplication provisions—since they did not implicate the First Amendment—were reasonable and supported by important regulatory interests. The court found that the defendants’ stated interests in addressing voter confusion and relieving the administrative burden on election officials were important regulatory interests and that the provisions were “reasonable and nondiscriminatory methods of achieving the state’s goals.” Next, the court applied the disclaimer provision. The court held that there was not enough evidence of significant harm to outweigh the state's compelling interests in avoiding voter confusion and ensuring the smooth administration of its elections. For these reasons, the court determined that the plaintiffs had not shown a likelihood of success on the merits of their claims and declined to issue an injunction. 609 F.Supp.3d 1341.
On September 26, 2022, the parties stipulated to the dismissal of plaintiff VoteAmerica as a party to the action after the parties determined that VoteAmerica’s web-based application that partially completed applications for voters was not prohibited by the challenged provisions. The court approved the stipulation three days later.
On December 13, 2022, the defendants moved for summary judgment. They argued that (1) the prefilling and anti-duplication provisions did not restrict protected speech and would therefore survive any level of scrutiny, (2) the disclaimer provision caused the plaintiffs no harm while supporting the state’s interest in minimizing voter confusion and ensuring efficient elections, (3) the challenged provisions did not implicate the plaintiff organizations’ associational rights, and (4) the meaning of each of the challenged provisions was clear.
The court ruled on the defendants’ summary judgment motion on September 27, 2023, denying and granting the motion in part. 2023 WL 6296928. The parties had already stipulated that any claims relating to the disclaimer provision were moot. In addition, the plaintiffs were no longer pursuing neither their vagueness claim, nor their claim that the anti-duplication provision was overbroad. The only claims before the court, therefore, concerned whether the prefilling and anti-duplication provisions violated the plaintiffs’ rights to free speech and freedom of association, and whether the prefilling provision was unconstitutionally overbroad.
For the purposes of the motion, the court found that the plaintiffs’ conduct (prefilling applications or sending multiple absentee ballot applications) was protected by the First Amendment. Because the law burdened protected speech, the court concluded that the appropriate standard would be strict scrutiny. The court held that both provisions at issue were both underinclusive and overinclusive; as such, they were not narrowly tailored enough to justify impeding the plaintiffs’ right to free speech, and the defendants’ were denied summary judgment on this claim.
The court denied the plaintiffs’ claim that these provisions impeded their freedom of association. The court found that the plaintiffs’ practice of sending absentee ballot applications with a cover letter to voters constituted associational activity. As such, the plaintiffs’ activities received First Amendment protections, but the court nevertheless granted the defendants’ summary judgment on the claim. It held that both provisions furthered the state’s compelling interests in decreasing voter confusion, combatting complaints of fraud, and increasing election integrity while minimally infringing plaintiffs’ associational activities. Finally, the court also found for the defendants’ on the plaintiffs’ overbreadth claim; it held that the plaintiffs’ failed to show that the prefilling provision penalized a substantial amount of speech that was constitutionally protected.
As of October 2023, litigation remains ongoing.
Summary Authors
Rhea Sharma (3/25/2023)
Simran Takhar (10/16/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/59805866/parties/voteamerica-v-raffensperger/
Boulee, Jean-Paul (Georgia)
Appel, Rachel Susanne (Georgia)
Bartolomucci, H. Christopher (Georgia)
Begakis, Steven Christopher (Georgia)
Carver, William Bradley (Georgia)
See docket on RECAP: https://www.courtlistener.com/docket/59805866/voteamerica-v-raffensperger/
Last updated March 10, 2024, 4:05 a.m.
State / Territory: Georgia
Case Type(s):
Key Dates
Filing Date: April 7, 2021
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Several voting focused nonprofits
Plaintiff Type(s):
Non-profit NON-religious organization
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Defendant Type(s):
Case Details
Causes of Action:
Constitutional Clause(s):
Due Process: Substantive Due Process
Available Documents:
Outcome
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Content of Injunction:
Issues
Voting: