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Georgia Muslim Voter Project v. Kemp

United States Court of Appeals, Eleventh Circuit

March 21, 2019

GEORGIA MUSLIM VOTER PROJECT, ASIAN-AMERICANS ADVANCING JUSTICE-ATLANTA, Plaintiffs - Appellees,
v.
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,
v.
BRIAN KEMP, Secretary of State of Georgia, Defendant-Appellant, REBECCA N. SULLIVAN, et al., Defendants.

          On Appeal from the United States District Court for the Northern District of Georgia

          BEFORE: TJOFLAT, JILL PRYOR, and NEWSOM, Circuit Judges.

         BY THE COURT:

         On 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.

          JILL PRYOR, Circuit Judge, concurring in the denial of the motion for a stay.

         On the 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.

         When 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 order.[1]

         I. BACKGROUND

         A. Georgia's Statutory Absentee Voting Scheme

         Like 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 mismatch.

         Georgia 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[2] 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).[3] 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.

         Still, 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.

         B. The Proceedings Below

         The 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, [4] and 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 mismatched signature.

         GMVP 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.

         The district court thereafter entered an injunction[5] 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. § 21-2-493(1).
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.[6]

         The 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.[7] 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 response.

         II. LEGAL STANDARDS

         "A 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 the injunction:

(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).

         As to 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).[8] 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 omitted).

         On 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).

         In 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 considerations:

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.

         III. DISCUSSION

         In this 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.

         A. The Secretary Has Made No Strong Showing that the Injunction Would Cause Him Irreparable Injury.

         Starting 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).

         I might 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.

         Our 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.

         B. The Secretary Has Made No Strong Showing that He Is Likely to Succeed on Appeal.

         The 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 well.[9]

         1. The Secretary has made no strong showing that the district court likely erred in concluding that the plaintiffs could advance a facial challenge.

         The 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.

         On 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.

         The 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.

         I take 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.

         The 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.

         2. The Secretary has made no strong showing that the district court likely erred in weighing the Mathews factors.

         The Secretary challenges the weight the district court assigned each of the Mathews factors. For the reasons that follow, I find no error.

         a. The Private Interest at Stake

         As to 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.

         As an 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.

         The 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.

         To the 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.

         In sum, the Secretary has failed to show that the district court likely erred in giving this first Mathews factor substantial weight.

         b. The Risk of an Erroneous Deprivation

         As to 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 GMVP.[10]

         c. The Government's Interest and Burden

         As to 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.

         First, 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.

         Second, 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.

         Third, 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 absentee ballots.

         The 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 otherwise.[11]

          * * *

         In 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.

         3. The Secretary has made no strong showing that he is likely to succeed on the merits of his laches argument.

         In the 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).[12] 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.[13] 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.

         Nor is 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 election.

         Thus, on this record, the Secretary cannot make a strong showing that he is likely to succeed on the merits of his laches argument.

         C. The Remaining Nken Factors Counsel Against a Stay of the District Court's Preliminary Injunction.

         As with 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.

         In sum, 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 colleague's dissent.

         D. Neither the Parratt Doctrine, nor Principles of Federalism and

         Separation of Powers, nor the Equal Protection Clause Justifies a Stay of the Injunction.

         Aside 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, convinces me.

         1. The "Parratt Doctrine" does not doom GMVP's ...


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