GEORGIA MUSLIM VOTER PROJECT, ASIAN-AMERICANS ADVANCING JUSTICE-ATLANTA, Plaintiffs - Appellees,
BRIAN KEMP, in his official capacity as the Secretary of State of Georgia, Defendant-Appellant, GWINNETT COUNTY BOARD OF VOTER REGISTRATION AND ELECTIONS, on behalf of itself and all others similarly situated, Defendant. RHONDA J. MARTIN, DANA BOWERS, JASMINE CLARK, SMYTHE DUVAL, JEANNE DUFORT, THE GEORGIA COALITION FOR THE PEOPLE'S AGENDA, INC., Plaintiffs - Appellees,
BRIAN KEMP, Secretary of State of Georgia, Defendant-Appellant, REBECCA N. SULLIVAN, et al., Defendants.
Appeal from the United States District Court for the Northern
District of Georgia
BEFORE: TJOFLAT, JILL PRYOR, and NEWSOM, Circuit Judges.
November 2, 2018, we denied the Emergency Motion for Stay of
Injunction Pending Appeal filed by Appellant Brian Kemp and
advised at that time that one judge dissented and separate
opinions would follow. Today, we issue those opinions.
PRYOR, Circuit Judge, concurring in the denial of the motion
for a stay.
eve of the 2018 general election, and in the wake of a surge
in interest in voting by mail in Georgia, the Georgia Muslim
Voter's Project and Asian-Americans Advancing
Justice-Atlanta filed suit challenging the State's lack
of prerejection procedures for redress when an elector's
signature on an absentee ballot application or absentee
ballot appears not to match the signature on her voter
registration card. For such a perceived mismatch, the State
offered only notice of rejection and an opportunity to try
again, whether by mail or by voting in person. But for other
absentee ballot deficiencies, the State offered a more robust
system of prerejection notice and an opportunity to be heard.
Finding a likely violation of procedural due process, the
district court entered an injunction in which it ordered the
Secretary of State of Georgia to instruct county elections
officials to provide prerejection notice and an opportunity
to be heard in the event of a perceived signature mismatch.
In so doing, the district court borrowed heavily from
existing voting procedures pertaining to other ballot
deficiencies, which had been passed by Georgia's
legislature and long followed by state and local officials,
to craft a narrow remedy for a narrow class of ballot
applications and ballots.
the Secretary moved in this Court for a stay pending appeal
from the injunction, we denied the stay, concluding that the
district court had not abused its discretion in crafting the
relief it ordered. See Cumulus Media, Inc. v. Clear
Channel Commc'ns, Inc., 304 F.3d 1167, 1171
(11th Cir. 2002) ("[The district court's] judgments,
about the viability of a plaintiff's claims and the
balancing of equities and the public interest, are the
district court's to make and we will not set them aside
unless the district court has abused its discretion in making
them."). Our order denying the Secretary's motion
issued days before the November 2018 election, and in it we
noted that opinions would follow. This is my opinion, written
as if it had been issued contemporaneously with that
Georgia's Statutory Absentee Voting Scheme
many states, Georgia permits electors to vote by mail, for
any reason, through a process it calls absentee voting.
See O.C.G.A. § 21-2-380(a), (b). Absentee
electors must follow a two-step process, first applying for
and second voting via an absentee ballot. Id.
§§ 21-2-381, -383, -384. At both steps, an absentee
elector must sign the application or ballot, and at both
steps that signature is compared by elections officials to
the elector's voter registration card signature.
Id. § 21-2-381(b)(1) (absentee ballot
applications); id. §§ 21-2-384(b), (c), -
386(a)(1)(B), (C) (absentee ballots). If the county elections
official reviewing submissions concludes that the signatures
match at the application stage, an absentee ballot issues; if
the signatures match at the absentee ballot stage, and there
are no other deficiencies, the absentee elector's vote is
counted. Id. § 21-2-381(b)(2)(A) (absentee
ballot applications); id. § 21-2-386(a)(1)(B)
(absentee ballots). If the official concludes that the
signature on the absentee ballot application or absentee
ballot does not match that of the elector's voter
registration card, then the application or ballot is
rejected. Id. § 21-2-381(b)(3) (absentee ballot
applications); id. § 21-2-386(a)(1)(C)
(absentee ballots). At issue in this case is the process
offered to absentee electors whose signatures on absentee
ballot applications and absentee ballots are deemed a
law has no provision by which an absentee elector notified of
a perceived mismatch may contest the decision, cure the
mismatch, or prove her identity before the absentee
application or absentee ballot is rejected for a signature
mismatch. Instead, the law provides that after the
application or ballot is rejected, the county board of
registrars or absentee ballot clerk is required to
"promptly notify" the elector of the rejection.
Id. § 21-2-381(b)(3) (absentee ballot
applications); id. § 21-2-386(a)(1)(C)
(absentee ballots). The law does not prevent the absentee
elector from trying again, either by filling out a new
application or by completing a new ballot. Nor does the law
prevent an able absentee elector from voting in person,
either during early voting hours or on Election Day. Ga.
Comp. R. & Regs. 183-1-14-.09.
perceived signature mismatches are a bit of an outlier:
Georgia law provides prerejection procedures for
other flaws in absentee ballot applications and absentee
ballots, just not for a signature mismatch. If the registrar
or absentee ballot clerk determines that an absentee ballot
application lacks information such that the official cannot
determine the absentee elector's identity, Georgia law
provides that the official must "write to request
additional information" from the elector instead of
rejecting the application outright. O.C.G.A. §
21-2-381(b)(4). If the board of registrars has probable cause
to believe based on an absentee ballot that the "elector
is not qualified to remain on the list of electors," the
board must, "if practical, notify the challenged elector
and afford such elector an opportunity to answer," and
then "shall proceed to conduct a hearing on the
challenge on an expedited basis prior to the certification of
the consolidated returns of the election
superintendent." Id. § 21-2-230(b), (g).
If the absentee elector fails to prove her eligibility at
this stage, she may appeal to the superior court within 10
days of the board of registrars' decision. Id.
§ 21-2-230(g) (cross-referencing O.C.G.A. §
21-2-229(e)). If the board of registrars believes that an
absentee ballot has some other deficiency that does not
affect the elector's qualifications to remain on the list
of electors—for example, if the absentee elector failed
to provide the required identification—and
"it is not practical to conduct a hearing prior to the
close of the polls," then elections officials must treat
the ballot as a "challenged" ballot—that is,
a provisional ballot. Id. §§ 21-2-230(e),
(i), -386(e), -419. If the absentee elector provides the
board of registrars with the required identification no more
than three days after the election, then her vote is counted.
Id. § 21-2-419(c)(1); Ga. Comp. R. & Regs.
183-1-14-.03(2), (3), (5). If the absentee elector fails to
do so, then the ballot is not counted and the absentee
elector is so notified. Ga. Comp. R. & Regs.
183-1-14-.03(5); O.C.G.A. § 21-2-419(d)(1). If necessary
based on these procedures, the election returns are adjusted
and a corrected return is certified. O.C.G.A. §
21-2-230(g), -493(1). Again, under Georgia law these
prerejection procedures are inapplicable to absentee ballot
applications and ballots with perceived signature mismatches.
The Proceedings Below
Georgia Muslim Voter Project and Asian-Americans Advancing
Justice-Atlanta (collectively, "GMVP") caught wind
of an October 12, 2018 news article reporting increased rates
of rejection of absentee ballot applications and absentee
ballots in Gwinnett County due to perceived signature
mismatches. Four days later, the organizations filed suit in
the Northern District of Georgia against Brian Kemp, in his
official capacity as Secretary of State of Georgia,
the Gwinnett County Board of Registrars and Elections, on
behalf of itself and similarly situated boards of registrars
in all 159 Georgia counties. As relevant to this appeal, GMVP
alleged that Georgia's absentee voting scheme violated
procedural due process insofar as the State failed to provide
prerejection notice, an opportunity to be heard, and a chance
to appeal for absentee electors whose absentee ballot
applications or absentee ballots contained a perceived
moved for an injunction to prevent elections officials from
rejecting absentee ballot applications and absentee ballots
due to perceived signature mismatches without these
prerejection procedures. After holding a hearing, the
district court determined that it was substantially likely
that the Georgia's statutory procedures for rejecting
absentee ballot applications and absentee ballots facially
violated the Fourteenth Amendment's guarantee of
procedural due process. The district court found that the
other factors courts consider in deciding whether to grant
injunctions—irreparable injury, harm to the opposing
party, and the public interest—also weighed in favor of
granting injunctive relief.
district court thereafter entered an injunction in which it
ordered the Secretary of State's Office to issue the
following instructions, reproduced in full here, to all
county boards of registrars, boards of elections, election
superintendents, and absentee ballot clerks:
1) All county officials responsible for processing
absentee ballots shall not reject any absentee ballots due to
an alleged signature mismatch. Instead, for all ballots where
a signature mismatch is perceived, the county elections
official shall treat this absentee ballot as a provisional
ballot, which shall be held separate and apart from the other
absentee ballots. See O.C.G.A. § 21-2-419; Ga.
Comp. R. & Regs. 183-1-14-.03(2). The county elections
official shall then provide pre-rejection notice and an
opportunity to resolve the alleged signature discrepancy to
the absentee voter. This process shall be done in good faith
and is limited to confirming the identity of the absentee
voter consistent with existing voter identification laws.
See O.C.G.A. §§ 21-2-417, -417.1. The
elections official is required to send rejection notice via
first-class mail and also electronic means, as available or
otherwise required by law. See O.C.G.A. §
21-2-384(a)(2). This process shall include allowing the
absentee voter to send or rely upon a duly authorized
attorney or attorney in fact to present proper
identification. This process shall be done prior to the
certification of the consolidated returns of the election by
the election superintendent. See O.C.G.A. §
21-2-230(g). The absentee voter shall have the right to
appeal any absentee ballot rejection following the outcome of
the aforementioned process, as designated in O.C.G.A. §
21-2-229(e). Any aforementioned appeals that are not resolved
as of 5 p.m. on the day of the certification deadline shall
not delay certification and shall not require recertification
of the election results unless those votes would change the
outcome of the election. See O.C.G.A. §
2) All county elections officials responsible for processing
absentee ballot applications shall not reject any absentee
ballot application due to an alleged signature mismatch.
Instead, for all ballot applications where a signature
mismatch is perceived, the county elections official shall,
in addition to the procedure specified in O.C.G.A. §
21-2-381(b), provide a provisional absentee ballot to the
absentee voter along with information as to the process that
will be followed in reviewing the provisional ballot. The
outer envelope of the absentee ballot provided shall be
marked provisional. Once any provisional ballot is received,
the procedure outlined in section 1 above is to be followed.
3) This injunction applies to all absentee ballot
applications and absentee ballots rejected solely on the
basis of signature mismatches submitted in this current
election. This injunction does not apply to voters who have
already cast an in-person vote.
GMVP Doc. 32 at 2-3.
Secretary filed an emergency motion to stay the injunction
pending appeal, arguing that laches barred GMVP's claims
and that GMVP was unlikely to prevail on the merits of the
facial due process challenge. Only the Secretary moved for a
stay; the Gwinnett County Board of Voter Registration and
Elections did not. The district court denied the
Secretary's motion. The Secretary then filed in this
Court an Emergency Motion for Stay of Injunction Pending
Appeal. We summarily denied the motion for a stay. Judge
Tjoflat dissented from our summary order denying a stay and
now has provided his reasons for doing so. This is my
stay of a preliminary injunction requires the exercise of our
judicial discretion, and the party requesting the stay must
demonstrate that the circumstances justify the exercise of
that discretion." Democratic Exec. Comm. of
Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019).
In deciding whether to grant a stay of an injunction pending
appeal, the Court considers the following factors, which
mirror the factors the district court considered in entering
(1) whether the stay applicant has made a strong showing that
it is likely to succeed on the merits, (2) whether the
applicant will be irreparably injured absent a stay, (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding, and (4) where the
public interest lies.
Id. (citing Nken v. Holder, 556 U.S. 418,
434 (2009)). The first two factors are the "most
critical." Nken, 556 U.S. at 434. As to the
first factor, "[i]t is not enough that the chance of
success on the merits be better than negligible."
Id. (internal quotation marks omitted).
the second factor, irreparable injury, "even if [a
party] establish[es] a likelihood of success on the merits,
the absence of a substantial likelihood of irreparable injury
would, standing alone, make [a stay] improper."
Siegel v. LePore, 234 F.3d 1163, 1176 (11th
Cir. 2000) (en banc). That is because "[a] showing of
irreparable injury is the sine qua non of injunctive
relief." Id. (internal quotation marks
omitted). "[T]he asserted irreparable injury must be
neither remote nor speculative, but actual and
imminent." Id. (internal quotation marks
appeal we do all of this legal legwork through the lens of an
abuse of discretion standard of review. Lee, 915
F.3d at 1317. In so doing, we review de novo any
legal conclusions and for clear error any factual conclusions
underlying the district court's exercise of its
discretion. Id. But the weight to be afforded any
given factor and the ultimate weighing of the factors
together are quintessential exercises of discretion that we
reverse only if that discretion is abused. See Osmose,
Inc. v. Viance, LLC, 612 F.3d 1298, 1320-21 (11th Cir.
2010); BellSouth Telecommc'ns, Inc. v. MCImetro
Access Transmission Servs., LLC, 425 F.3d 964, 968-70
(11th Cir. 2005).
determining whether the plaintiffs showed a substantial
likelihood of success on the merits of the procedural due
process claim, the district court was obliged to apply the
framework from Mathews v. Eldridge, 424 U.S. 319
(1976). Under Mathews, a court determining what
process is due in connection with a potential deprivation of
a liberty or property interest must balance three
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Id. at 335. We must apply this test "to the
generality of cases, not the rare exceptions."
Id. at 344.
section, I first explain why the Secretary's failure to
show that he is likely to suffer irreparable harm requires
that his motion for a stay be denied without regard to any of
the other Nken factors. Second, I respond to the
Secretary's argument as to the other Nken
factors and explain why they also do not weigh in favor of a
stay pending appeal. Third, I address my dissenting
colleague's remaining concerns about the denial of the
stay pending appeal.
The Secretary Has Made No Strong Showing that the Injunction
Would Cause Him Irreparable Injury.
with irreparable injury, the Secretary argues that the
district court's injunction would cause irreparable harm
because the injunction prevents it "'from
effectuating statutes enacted by representatives of its
people, '" upsets the election process, and
"risks introducing confusion, uncertainty, and
inaccuracy during a general election" such that this
Nken factor "strongly favors granting a
stay." Mot. for Stay at 22-23 (quoting Hand v.
Scott, 888 F.3d 1206, 1207 (11th Cir. 2018)). I
disagree. First, the injunction does not prevent the
Secretary from effectuating any statutes because it does not
negate the effects of any statutes. Instead, it adds
procedural protections. Second, the Secretary has failed to
substantiate any "injury following from the simple
preparation on paper of a plan to carry out the [district]
court's directives"—the only thing the
injunction required the Secretary to do. See Garcia-Mir
v. Meese, 781 F.2d 1450, 1455 (11th Cir. 1986).
view the risk of irreparable harm differently had any other
defendant moved for a stay or signaled that the injunction
had in fact led to confusion, uncertainty, or inaccuracy. But
no other defendant so moved, and in fact the evidence in this
case belies the Secretary's conclusory assertion that the
injunction will irreparably harm the State's voting
procedures. On the same day the injunction was entered, the
Secretary sent a four-page bulletin to county elections
officials statewide instructing them to comply with the
injunction and explaining in some detail how to do so. The
Secretary has submitted no evidence or even argument that any
county has reported difficulty complying with the guidance;
indeed, the Chair of the Board of Registrars of one of
Georgia's most populous counties testified that
compliance with the injunction as instructed by the Secretary
was "pretty straightforward" and "easily
doable" and would "not really add any burdens to
what we are already doing." GMVP Doc. 37-1 at 2-3. The
Chair stated he did "not believe that it will be
difficult to implement the guidance . . . even with a week
left until Election Day." Id. at 2.
precedent makes clear that the Secretary's failure to
show that the injunction would cause irreparable injury is an
adequate and independent basis for denying the motion to stay
pending appeal. See Siegel, 234 F.3d at 1176. In any
event, because the Secretary argues that he can satisfy all
of the Nken factors—and my dissenting
colleague agrees—I discuss the remaining factors in the
sections that follow.
The Secretary Has Made No Strong Showing that He Is Likely to
Succeed on Appeal.
Secretary advances three arguments for why the district court
abused its discretion in entering the injunction requiring
state officials to provide prerejection processes to absentee
ballot applicants and electors whose ballot applications and
ballots suffer from perceived signature mismatches. First, he
argues that the plaintiffs' challenge does not satisfy
the requirements of a facial challenge and therefore fails as
a matter of law, merits aside. Second, and relatedly, he
argues that the district court erred in weighing the
Mathews factors such that the facial challenge fails
on the merits. Third, he contends that the plaintiffs'
challenge likely is barred by the doctrine of laches. For the
reasons that follow, I disagree on all three fronts. Where
the dissent's arguments are different from the
Secretary's, I address those points as
The Secretary has made no strong showing that the district
court likely erred in concluding that the plaintiffs could
advance a facial challenge.
Secretary argued in the district court that GMVP's
procedural due process challenge could only be construed as a
facial challenge because GMVP failed to identify any absentee
elector to whom the signature mismatch procedure had been
unconstitutionally applied. And, the Secretary argued, GMVP
could not advance a facial challenge because it could not
under any circumstances prove that Georgia's absentee
election law would be "'unconstitutional in all of
its applications.'" GMVP Doc. 24 at 19 (quoting
Wash. State Grange v. Wash. State Repub.
Party, 552 U.S. 442, 449 (2008)). The Secretary
explained that this is because an elector who applies for an
absentee ballot "weeks before the election and is
immediately notified of the rejection," action
"permitted if not contemplated" by the absentee
ballot application statute, has not been deprived of a right
without due process. Id. at 19-20. Nor, for that
matter, the Secretary argued, would an elector whose absentee
ballot is rejected "and who is immediately notified and
provided an opportunity to cast another absentee ballot,
which is not subsequently rejected," suffer from
deprivation of a right without due process. Id. at
20. The district court agreed with the Secretary that GMVP
could not advance an as-applied challenge but disagreed that
GMVP could not advance a facial challenge.
appeal, the Secretary again argues that GMVP cannot advance a
valid facial challenge. He reiterates the argument he made in
the district court—that GMVP cannot show that
Georgia's statutory procedures are constitutionally
deficient "for all voters in all
circumstances under which signatures are rejected." Mot.
for Stay at 14.
dissenting opinion also asserts that GMVP cannot advance a
facial challenge, but for a reason further afield than the
Secretary's. The dissent says that GMVP's challenge
to Georgia's absentee ballot signature mismatch procedure
fails as a matter of law because "countless mail-in
voters' signatures are determined by election officials
to match," and their votes are counted. Dissenting Op.
at 50. In other words, plenty of absentee electors never
suffer from a perceived signature mismatch on their absentee
ballot applications or absentee ballots, so GMVP cannot show
that Georgia's absentee ballot procedures are
unconstitutional in all of their applications.
on the dissent's argument first, followed by the
Secretary's. The dissent's focus on absentee electors
who are unaffected by Georgia's signature mismatch
provisions overlooks the Supreme Court's instruction that
when reviewing a facial challenge we do not consider
instances in which a statute "do[es] no work."
City of Los Angeles, Calif. v. Patel, 135 S.Ct.
2443, 2451 (2015). "Legislation is measured for
consistency with the Constitution by its impact on those
whose conduct it affects." Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833, 894 (1992). "The proper
focus of the constitutional inquiry is the group for whom the
law is a restriction, not the group for whom the law
is irrelevant." Id. (emphasis added).
Georgia's signature mismatch procedures are irrelevant
for those absentee electors who have no signature mismatch.
Thus, I respectfully reject the dissent's argument.
Secretary's narrower argument also fails to persuade me.
The Secretary points out that an absentee elector whose
ballot application or ballot is rejected for a perceived
signature mismatch but who receives a rejection notice in
time to try again (although there is no guarantee that he
will) can either attempt to submit another absentee ballot
application and/or absentee ballot (although there is no
guarantee that second ballot will not be deemed another
signature mismatch) or can vote in person (provided he is
physically able to do so). True, but immaterial for purposes
of determining whether GMVP is entitled to advance a facial
challenge. That is because if Georgia's signature
mismatch procedure violates the dictates of procedural due
process by failing to provide adequate
predeprivation notice and opportunity to be heard,
then any postdeprivation opportunity to take
advantage of entirely different procedures does not cure the
due process violation. That brings me to the merits of the
procedural due process challenge, which I address in the
section that follows.
The Secretary has made no strong showing that the district
court likely erred in weighing the Mathews
Secretary challenges the weight the district court assigned
each of the Mathews factors. For the reasons that
follow, I find no error.
Private Interest at Stake
the first of the Mathews factors, the private
interest at stake, the Secretary faults the district court
for defining the interest at stake—too broadly—as
the fundamental right to vote. Instead, the Secretary argues,
the private interest at stake "is only the narrow
interest in voting by mail," which is "modest"
for most electors who could instead simply vote in person.
Mot. for Stay at 15.
initial matter, I disagree that the district court so broadly
defined the private interest at stake. The district court
determined that the private interest at stake here
"implicates the individual's fundamental
right to vote" and therefore is "substantial."
GMVP Doc. 28 at 23 (emphasis added). It is undeniably true
that the interest in voting absentee implicates the right to
vote. Indeed, the parties appear to agree that the private
interest at stake is the interest in voting by mail—
that is, by absentee ballot.
Secretary's real disagreement is with the district
court's determination that the interest in voting
absentee is substantial. But the Secretary has failed to meet
his burden of showing that the district court likely erred.
As the district court explained, that the interest in voting
by absentee ballot implicates the fundamental right to vote
lends it more than modest weight. And even though the
Secretary posits that an absentee elector rejected for a
perceived signature mismatch may still have ample time to
vote in person, he has not shown that this elector represents
the "generality of cases." Mathews, 424
U.S. at 344.
contrary, given the statutory and regulatory scheme Georgia
has constructed for absentee voting, the Secretary's
hypothetical likely does not cover the generality of cases.
Although any elector in Georgia may vote by absentee ballot,
Georgia's Administrative Code suggests that electors
applying for absentee ballots often do so because they are
elderly, physically disabled, or residing temporarily or
permanently outside the voting precinct on Election Day,
either because of military obligations or because they have
taken up residence overseas. See Ga. Comp. R. &
Regs. 183-1-14-.01(3) (listing these categories of absentee
electors along with a category for "[n]o reason is
provided"). Individuals falling into these categories
are likely to have difficulty appearing in person to vote.
Moreover, the ability to appear in person depends on
receiving rejection notice in time to do so. Although
Georgia's code requires that rejection notices
"promptly" issue, O.C.G.A. §§
21-2-381(b)(3), -386(a)(1)(C), there is no time frame
specified. The Secretary points to nothing in the record to
suggest that in the generality of cases absentee electors
apply for and cast ballots early enough within the voting
period such that they would benefit from a "prompt"
notice, whatever that means.
the Secretary has failed to show that the district court
likely erred in giving this first Mathews factor
Risk of an Erroneous Deprivation
the second Mathews factor, the Secretary argues that
the risk of an erroneous deprivation is small considering the
relatively low percentages of absentee ballot applications
and absentee ballots that were rejected for perceived
signature mismatches in previous elections. And, the
Secretary again stresses, rejections must be accompanied by
notice, and this notice provides electors with ample time to
either mail in another absentee ballot application or
absentee ballot or vote in person. The Secretary's
arguments, however, do nothing to refute the district
court's determination that although "the risk of an
erroneous deprivation is by no means enormous, permitting an
absentee elector to resolve an alleged signature discrepancy
nevertheless has the very tangible benefit of avoiding
disenfranchisement" for that elector. GMVP Doc. 28 at
24. Because the Secretary has not even argued that this
determination was in error, he cannot show that the district
court likely erred in finding that this second
Mathews factor weighs in favor of
Government's Interest and Burden
the final Mathews factor, the district court found
"that additional procedures would involve minimal
administrative burdens while still furthering the
State's" interest. Id. at 26. The Secretary
disagrees, arguing that the injunction's procedures for
absentee ballot applications or absentee ballots with a
perceived signature mismatch impose substantial burdens on
the State. As I explain below, the Secretary's arguments
do not convince me that the district court erroneously
weighed this factor.
the Secretary takes issue with the injunction's
requirement that the elector may send an attorney or attorney
in fact to confirm the elector's identity. The Secretary
argues that this predeprivation procedure burdens the
State's undisputed substantial interest in preventing
voter fraud by permitting individuals other than the elector
to confirm the elector's identity, "without any kind
of oath or affidavit, merely by possessing the
[elector's] identification." Mot. for Stay at 18.
This is inaccurate: the injunction allows only "a
duly authorized attorney or attorney in fact to
present proper identification" on behalf of the elector;
implicit is a requirement that the attorney or attorney in
fact demonstrate that she is duly authorized. GMVP Doc. 32 at
2 (emphasis added). Moreover, the injunction is not a leap
into wholly unfamiliar territory: Georgia law already
contemplates that someone other than the absentee elector may
appear to prove the elector's identity. See
O.C.G.A. § 21-2-381(a)(1)(B) (permitting a physically
disabled elector to present absentee ballot applications via
her "mother, father, grandparent, aunt, uncle, sister,
brother, spouse, son, daughter, niece, nephew, grandchild,
son-in-law, daughter-in-law, mother-in-law, father-in-law,
brother-in-law, or sister-in-law of the age of 18 or
over"). Thus, this aspect of the injunction's
prerejection procedure does not substantially burden the
State's interest in preventing voter fraud.
the Secretary argues that the injunction's prerejection
procedures cause administrative burdens because they
"necessitate significant changes to how at least some
counties track absentee ballot rejections[, ] changes to the
systems for tracking absentee ballot voters[, ] and
more." Mot. for Stay at 18-19. Even assuming these
changes would be required, the record does not support the
Secretary's assertion that they would create a
substantial burden. In fact, as I explained above in Part
III.A., the evidence is to the contrary: by election
officials' own reports, the injunction has caused little
disruption. The Secretary therefore has failed to persuade me
as to administrative burdens.
the Secretary argues that the injunction's prerejection
right of appeal imposes other burdens, specifically, on
county elections officials "who will have to appear and
defend their rejection decisions, including on an expedited
basis prior to certification of the election" and on
state courts who now must hear "this new class of
appeals on an expedited basis." Mot. for Stay at 19. In
addition, the Secretary says, the injunction's
prerejection procedures inject the new burden of requiring a
system for recertification of election results if absentee
ballots tied up in any unresolved appeals would change the
outcome of the election—a system the Secretary says
does not currently exist. Again, the Secretary has failed to
meet his burden. As explained in Part I.A., these procedures
are already statutorily in place for absentee ballot
application and absentee ballot defects other than signature
mismatches. Contrary to the Secretary's suggestion, the
injunction does not require the creation of a new system, nor
does it newly obligate county elections officials or state
courts to adjudicate disputes relating to the rejection of
burden on these entities may increase to some limited extent
because of this new class of ballot applications and ballots
to which prerejection procedures apply, but by the
Secretary's own calculation the number of perceived
signature mismatches is quite low. And by the Secretary's
own admission, some of the prerejection procedures are
unlikely to be used frequently. See Mot. for Stay at
18 ("[I]t is hard to see what additional work the . . .
right of appeal could do in any given case; either the voter
will provide identification in the pre-rejection opportunity
to resolve the alleged signature deficiency, or the voter
will not . . . ." (internal quotation marks omitted)).
For these reasons, I reject the Secretary's argument that
the third Mathews factor should weigh in his favor
and that the district court likely erred in concluding
* * *
conclusion, the Secretary has failed to show that the
district court likely erred in determining the weight of any
single Mathews factor. And when I examine all of the
factors together, I cannot say that the district court likely
erred in weighing them. Thus, the Secretary has failed to
make a strong showing that he is likely to succeed on the
merits of his appeal.
The Secretary has made no strong showing that he is likely to
succeed on the merits of his laches argument.
alternative to his main merits argument, the Secretary argues
that we should stay the district court's injunction
because the equitable doctrine of laches likely bars the
plaintiffs' procedural due process challenge. To succeed
on a laches claim, the Secretary must show that the
plaintiffs inexcusably delayed bringing their procedural due
process claim and that the delay caused undue prejudice.
Lee, 915 F.3d at 1326; see United States v.
Barfield, 396 F.3d 1144, 1150 (11th Cir.
2005). He cannot at this stage do so. As the
district court explained, it is undisputed that events of the
2018 election cycle sparked their action: for GMVP
specifically, it was an October news report on increased
rates of rejection of absentee ballot applications and
absentee ballots in Gwinnett County due to perceived
signature mismatches. Moreover, the Secretary does not
contest that laches is generally a factual question that
requires factual development—something that is lacking
at the early stage of this case. In light of the
plaintiffs' allegations and the early stage of this
litigation, I cannot say it is likely that the Secretary will
be able to prove inexcusable delay merely because
Georgia's absentee voting statutes have been on the books
for several years.
the Secretary likely to establish undue prejudice. As
explained in detail above, the record in this case shows that
the injunction caused and was expected to cause little if any
disruption to those tasked with administering the 2018
on this record, the Secretary cannot make a strong showing
that he is likely to succeed on the merits of his laches
Remaining Nken Factors Counsel Against a Stay of the
District Court's Preliminary Injunction.
the first and second factors, the remaining Nken
factors— whether the stay will substantially injure
other interested parties and the public interest—do not
militate in favor of granting a stay of the injunction.
"A stay would disenfranchise many eligible electors
whose ballots were rejected" for a perceived signature
mismatch even when they were eligible to vote. Lee,
915 F.3d at 1327. "And public knowledge that legitimate
votes were not counted due to no fault of the
voters"—and with no prerejection notice to the
voters that their votes would not be counted and no
opportunity to rectify that situation—"would be
harmful to the public's perception of the election's
legitimacy." Id. It is beyond dispute that
"protecting public confidence in elections is deeply
important—indeed, critical—to democracy."
Id. (citing Crawford v. Marion Cty. Election
Bd., 553 U.S. 181, 197 (2008) (plurality opinion)).
Thus, the remaining Nken factors do not favor
granting a stay.
the Secretary has failed to make the requisite showing to
justify a stay of the district court's injunction. Before
I conclude, I address some of the points in my
Neither the Parratt Doctrine, nor Principles of
of Powers, nor the Equal Protection Clause Justifies a Stay
of the Injunction.
from those points I have already addressed, the dissent makes
at least three additional arguments for why we should stay
the district court's injunction pending appeal. None of
these arguments, taken individually or collectively,
The "Parratt Doctrine" does not doom