NOTE: This case is being tracked in close to real time by the Stanford/MIT Healthy Elections Project. So for more current information, see their tracker. COVID-19 Summary: This is a class-action suit brought by a nonprofit organization and an individual against the state of Georgia to challenge the state’s requirement to purchase postage stamps for mail-in ballots. The plaintiffs sought declaratory and injunctive relief requiring election officials to provide prepaid returnable envelopes for absentee ballots and absentee ballot applications. On April 30, the preliminary injunction was denied for the June primaries and on August 11, the plaintiffs’ motion for preliminary injunction was denied as to Count I of the amended complaint, and which was accordingly dismissed.
On April 8, 2020, Black Voters Matter Fund and an individual voter filed a class-action lawsuit against the Secretary of State of Georgia and the Dekalb County Board of Registration & Elections to challenge the state’s requirement to purchase postage stamps for mail-in ballots. The plaintiffs filed the suit after anticipating mail-in votes to skyrocket for the June and November 2020 elections, given that the COVID-19 pandemic posed health risks for in-person voting. The plaintiffs argued that because election officials required voters to pay postage, the state unconstitutionally forced voters to pay in order to participate in the election. They also alleged that the poll tax posed an undue burden on the right to vote in violation of the First and Fourteenth Amendments. The plaintiffs sought declaratory and injunctive relief under 42 U.S.C. § 1983. Specifically, they sought declaratory and injunctive relief injunction requiring election officials to provide prepaid returnable envelopes for absentee ballots and absentee ballot applications. The plaintiffs also filed a preliminary injunction and sought attorney fees. They were represented by the American Civil Liberties Union (ACLU) and ACLU of Georgia. The case was filed in the U.S. District Court for the Northern District of Georgia and assigned to Judge Amy Totenberg.
On April 20, the defendants filed an opposition to the preliminary injunction, claiming that the Secretary had already taken various steps to mitigate the risk of harm to Georgia primary voters during the COVID-19 outbreak. On April 23, the defendants filed a motion to dismiss the complaint.
On April 30, the plaintiff’s motion for preliminary injunction was denied as to the June primaries. 2020 WL 2079240. This was, in part, because the state had already begun mailing ballots to voters and as such, the plaintiffs' proposed remedies would be difficult to implement. The court noted that the requested relief for subsequent elections remained pending and would be addressed in a separate decision.
On May 11, the plaintiffs filed an amended complaint to add two other voter plaintiffs and the Director of Voter Registration and Elections as a defendant. The same day, the court denied the defendants’ motion to dismiss the original complaint as moot. The next day, the defendants filed a motion to dismiss the plaintiffs' amended complaint. On May 12, the plaintiffs filed an emergency motion for a temporary restraining order (TRO) and a preliminary injunction, and sought to expedite the briefing process to implement the requested relief in time for the August runoff. The request was denied on May 15, and the court noted that the emergency motion did not raise any new facts or arguments, instead “‘incorporat[ing] by reference all prior filings and evidence submitted in connection with the Original Plaintiffs’ prior motion for preliminary injunction’ and seek[ing] relief for the August runoff and November general elections.”
On May 18, the defendants filed a motion to dismiss for failure to state a claim, stating that the claims were barred by the Eleventh Amendment and legislative immunity. On May 31, the plaintiffs filed a motion to certify a defendant class of all Georgia boards of registrars, their members, their election directors, county registrars, and municipal absentee ballot clerks, as well as a plaintiff class of all registered Georgia voters. The plaintiff class was subdivided into a subclass of all registered Georgia voters who satisfy one of the COVID-19 risk factors identified by the Center for Disease Control.
On August 11, the plaintiffs’ motion for preliminary injunction was denied as to Count I of the amended complaint, which alleged that the state imposed an unconstitutional poll tax in violation of the Fourteenth and Twenty-Fourth Amendments. 2020 WL 4597053. While the court noted that the plaintiffs “presented compelling evidence that the state’s handling of the June 2020 election was plagued with difficulties, including many instances of voters not receiving their absentee ballots, and as a result being unnecessarily exposed to the virus[,]” the court found that such issues were “beyond the scope of this litigation, which is focused on the postage requirement for absentee voting.” The court also pointed to other courts in this district considering direct challenges regarding those issues and that variations may lead to different outcomes. Accordingly, the defendant’s motion to dismiss the amended complaint was granted for Count I of the complaint but denied as to Count II.
The case is ongoing.
Averyn Lee - 08/13/2020
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