Curling et al v. Kemp et al

Filing 969

ORDER denying 951 Motion to Stay. Signed by Judge Amy Totenberg on 10/14/2020. (hpc)

Case 1:17-cv-02989-AT Document 969 Filed 10/14/20 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DONNA CURLING, et al.,
Plaintiffs,
v.
BRAD RAFFENSPERGER, et al.,
Defendants.

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CIVIL ACTION NO.
1:17-cv-2989-AT

ORDER
On September 28, 2020, the Court entered a preliminary injunction,
requiring that every polling place in Georgia must have at least one updated paper
pollbook backup to prevent bottlenecks at the polls on Election Day if electronic
pollbooks used to check in voters experience disruptive outage or malfunction.
State Defendants have filed a Motion to Stay the Order Opinion and Order of
September 28, 2020, pending an appeal to the Eleventh Circuit Court of Appeals
[Doc. 951]. State Defendants assert that “the Court has taken it upon itself to
rewrite Georgia’s election code” and that “[s]taying the preliminary injunction here
will ensure at least a modicum careful deliberation before mandating such a drastic
change.” (Mot. at 2, 12.) This argument is a fallacy and simply removed from the
actuality of the content of the Court’s Order. 1

Defendants’ arguments spark memories of old episodes of The Twilight Zone: “You are about
to enter another dimension. A dimension not only of sight and sound but of mind. A journey into
a wondrous land of imagination. Next stop – The Twilight Zone.”
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The Court’s relief is an important backup to ensure timely (in case of
lines/delays) and accurate (using up to date information on eligibility and
qualification of voters) administration of the election only if needed in emergency
circumstances that prevent voter check-in as usual on the PollPads. But the relief
of requiring precincts to have on hand a paper backup of information in the
electronic pollbooks solely as a backstop is not monumental. 2 Defendants’ “sky is
falling” and “it’s the end of the world as we know it” protestations are divorced
from reality. Defendants know this.
The Court DENIES Motion because a stay of the Court’s Order would vitiate
the utility of the State Defendants’ own emergency processes.
I.

Legal Standard
Federal Rule of Civil Procedure 62(d) governs when a court may stay an

injunction pending appeal. See Fed. R. Civ. P. 62(d). Rule 62(d) provides, in
relevant part:
While an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court
may suspend, modify, restore, or grant an injunction on terms for
bond or other terms that secure the opposing party’s rights.
“A stay is not a matter of right, even if irreparable injury might otherwise result.”
Nken v. Holder, 556 U.S. 418, 434 (2009) (citing Virginian Railway Co. v. United
States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’

The Court made slight modifications to its Order to clear up Defendants’ misinterpretation of
the relief and entered an Amended Order on October 12, 2020. (See Doc. 966.)
2

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and ‘[t]he propriety of its issu[ance] is dependent upon the circumstances of the
particular case.’” Id. (internal citations omitted).
When determining whether to grant a stay, the Court considers the following
factors:
(1) whether the stay applicant has made a strong showing that he 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.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The movant bears a “heavy burden”
and “must establish each of these four elements in order to prevail.” Larios v. Cox,
305 F. Supp. 2d 1335, 1336 (N.D. Ga. 2004) (citing Siegel v. Lepore, 234 F.3d 1163,
1176 (11th Cir. 2000) (en banc)) (emphasis in original); see also Nken, 556 U.S. at
433-34 (2009) (“The party requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.”).
In addition, “[a]lthough the first factor (i.e., a strong showing of likelihood
of success on the merits) is generally the most important, the movant need not
always show that [it] probably will succeed on the merits of [the] appeal.” Gonzalez
ex rel. Gonzalez v. Reno, No. 00-11424, 2000 WL 381901, at *1 (11th Cir. Apr. 19,
2000) (citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)). When
the balance of the equities weighs in favor of granting the stay, the movant need
only show a substantial case on the merits. Larios, 305 F. Supp. 2d at 1337).
However, “the more the balance of equities (represented by the other three factors)
tilts in the opposing party’s favor, the greater the movant’s burden to show[] a
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likelihood of success on the merits.” Id. (internal marks and citations omitted).
Finally, the latter two factors – harm to the opposing party and weighing the public
interest – merge when the government is the opposing party, as is the case here.
Nken, 556 U.S. at 435.
III.

Discussion
Defendants’ description and characterization of the entire course of the

proceedings are not consistent with the actuality and their portrayal of the record
evidence and the Court’s findings paint a picture of this case that is
unrecognizable. 3
Defendants’ legal arguments in support of their Motion include everything
but the kitchen sink: the Court’s Order grants relief on an issue that is not a part of
this case, the Court’s Order seeks to bind nonparty counties over whom the
Secretary of State has no control or authority, the Court’s Order attempts to alter
Georgia’s election procedures and invade the discretion of State and local election
officials, the pollbook claim presents a nonjusticiable political question, the Court’s
Order is barred by the Eleventh Amendment, the Court applied the incorrect legal
standard, considered evidence not before the Court, and shifted the burden to

This includes the nature of the allegations in the pleadings, the scope and timing of discovery,
the delay caused by Defendants’ appeal of the Court’s threshold jurisdiction over the claims that
was essentially deemed to be frivolous by the Court of Appeals. Despite the delays in the case as
a result of the Defendants’ aggressive litigation strategy and motions practice, the Plaintiffs and
the Court attempted to facilitate the factual development in a timely manner because of the
expedited relief sought in connection with a continuing cycle of elections. Plaintiffs conducted an
enormous amount of discovery and evidence gathering to support their claims. Defendants
meanwhile made strategic decisions to limit their discovery, choosing not to conduct any fact or
expert depositions.

3

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Defendants, and the Court’s Order will harm the State by changing the law on the
eve of the election and jeopardizing the accuracy of the election.
The Court has previously addressed nearly every one of these arguments.
For the reasons stated in this Court’s Orders on Defendants’ Motion to Dismiss and
the Coalition Plaintiffs’ Motion for Preliminary Injunction (Docs. 751 and 918), the
Court finds that the State Defendants have not made a strong showing that they
are likely to succeed on the merits of their appeal, that they will suffer harm absent
a stay, or that a stay of the injunction is in the public interest.
1.

The Coalition Plaintiffs’ Claim Regarding Deficiencies in the
Security and Reliability of the State’s Electronic Voter
Registration Database and Pollbook System is Properly
Before the Court

Plaintiffs’ claims in this case challenge the security and reliability of
Georgia’s voting system based on known and demonstrated risks and
vulnerabilities in the computerized components of the system. This includes
claims relating to the security and reliability of Georgia’s voter registration
database and electronic pollbooks. (Coalition Pls.’ Third Am. Compl., Doc. 226 ¶¶
93-120, 131-32, 152; Coalition Pls.’ First Suppl. Compl., Doc. 628 ¶ 189.)
Defendants know this and their attempts to pretend otherwise are not persuasive.
Despite State Defendants’ selective parsing of the pleadings, Plaintiffs’
allegations and claims regarding the State Defendants’ handling of compromises
to the “elections.kennesaw.edu” server which housed sensitive voter data have
been front and center in this case since its inception and remain a concern today.

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In their Third Amended Complaint, the Coalition Plaintiffs alleged security
breaches of the election server previously housed at Kennesaw State University’s
Center for Election System compromised Georgia’s voting system. (Doc. 226 ¶¶
93-120.) Among the electronic files contained on the server were voter information
registration information, voter histories and personal information of all Georgia
voters. (Id. ¶¶ 94-97.) Plaintiffs alleged that despite warnings from an independent
cyber security specialists, Defendants failed to ensure that the elections software,
files, and sensitive voter data on the “elections.kennesaw.edu” server was secure
and allowed the server to remain easily accessible from the public Internet for
nearly a year. (Id. ¶¶ 97-108.) Plaintiffs further alleged that “both prior to and
since the 2016 presidential election[,] foreign governments and other unknown
suspect parties have actively probed state election systems in attempts to gain
unauthorized access and manipulate the voter information and computer systems
used to conduct American elections” and “that these efforts targeting American
voting systems have included unauthorized intrusions into the very same kind of
computer systems . . . found to be completely unprotected from external access in
Georgia for at least seven consecutive months from August 2016 through February
2017.” (Id. ¶¶ 107-08.) The complaint alleges that Defendants “knew that software
applications, password files, encryption keys, voter information registration
information, and other sensitive information critical to the safe and secure
operation of Georgia’s Voting System had been unsecured, breached, and
compromised.” (Id. ¶ 110; see id. ¶ 111 (“From at least August 2016 until the
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present, the Secretary and his agents – and from at least March 2017 all
Defendants – knew or should have known that the software, data, and voter
information hosted on the “elections.kennesaw.edu” server at KSU had been
repeatedly compromised by unauthorized access.”)).

As a result, the Coalition

Plaintiffs allege that voters, including Coalition member and Fulton County voter
Brian Blosser, were deprived of the right to cast ballots based on errors in the
system that “caused eligible voters to appear to be voters in other congressional
districts or unregistered.” (Id. ¶¶ 131-132; see also ¶ 152 (“Blosser was prohibited
from voting on April 18, 2017, in the CD6 Special Election when his name did not
appear on the eligible voter rolls for CD6, and was instead erroneously listed as a
resident of CD11. Blosser was not permitted to vote a provisional ballot, even after
he made repeated attempts to have Fulton County election officials correct this
system error. At a public meeting on April 22, 2017, Barron and the Fulton Board
Members blamed this error on a “software glitch.”)).
As Defendants’ note and the Court has explained at length in prior Orders,
this case began in 2017 as a suit to enjoin Georgia’s Direct Recording Electronic
(“DRE”) based voting system. 4 Plaintiffs’ original claims challenged elements of
the voting system beyond the DRE voting machines themselves. As highlighted
extensively in this Court’s prior orders, Plaintiffs’ claims encompassed the security

Plaintiffs’ claims also sought to enjoin the State’s Global Election Management Systems
(“GEMS”) as a result of significant security flaws. In prior orders, the Court has referred to the
prior system as the DRE/GEMS system. For ease of reference in this Order, the Court refers to
the prior system as the DRE system.

4

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of the Secretary of State’s election technology infrastructure and the actual breach
of the Center for Election Systems (“CES”) servers, computer networks, and data
and the State’s electronic voter registration system and database. The Court
rejected Defendants’ arguments that it lacked jurisdiction to hear these claims in
2018. Defendants appealed and lost.
After Georgia enacted legislation to replace the DREs with an electronic
ballot-marking device (“BMD”) based voting system, the Court enjoined the State’s
continued use of DREs past the completion of the 2019 election cycle. 5 The voter
registration database (ENET), which is maintained by the Secretary of State and
used by county registrars to update voter registration records was not replaced in
the State’s transition to the BMD system. The voter history and information from
the State’s pre-existing voter registration database is used to populate the new
electronic pollbooks for each election. 6

In that same order, entered on August 16, 2019, the Court also found that the Coalition Plaintiffs
were entitled to injunctive relief on their claim that the State’s voter registration database and
electronic pollbook system, as constituted and administered by the Secretary of State and Georgia
counties, bore critical deficiencies and risks that impact the reliability and integrity of the voting
system process. (Doc. 579.) The Court found that the evidence in the record demonstrated that
the Defendants’ administration of a vulnerable and compromised voter registration database and
inaccurate voter registration express pollbook voting check-in had substantially burdened voters’
capacity and their right to cast votes. Noting that the State’s adoption of a new electronic pollbook
for voter check-in for use with the State’s legacy voter registration software and database would
not remedy these demonstrated problems or alleviate the imminent threat to voters’ exercise of
their right to vote, the Court required Defendants to take remedial action. Specifically, the Court
ordered the State Defendants, among other things, to (1) develop and implement procedures to
be undertaken by election officials to address errors and discrepancies in the voter registration
database and (2) require all County Election Offices to furnish each precinct location with at least
one printout of the voter registration list for that precinct.
6 See Defs.’ Mot. to Dismiss at 11, n. 14; see also Dec. 6, 2019 Tr. at 11 (explaining that the ENET
system “used to program ExpressPoll check-in units for the GEMS/DRE system” is “not being
replaced” and that “[t]he same database and same data, a flat text file, will be used to populate the
Poll Pads”).
5

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The Plaintiffs amended their Complaints in October 2019 to include
additional claims challenging the incoming BMDs. 7 The allegations and claims in
the Coalition Plaintiffs’ First Supplemental Complaint “are additional to, and do
not supersede or replace, the allegations and claims stated in” their Third
Amended Complaint addressing the prior DRE voting system. (Coalition Pls.’ First
Supp. Compl. at 6, Doc. 628.)

The Coalition Plaintiffs First Supplemental

Complaint expressly challenges the implementation of the new BMD voting system
components and the integration of these devices with “Georgia’s current, defective
voter registration system.” 8 (Coalition Pls.’ First Suppl. Compl., Doc. 628 ¶ 189.)
These concerns were at the center of the Court’s consideration in ordering relief in
August 2019 and remain a focus of this case even as the State implements the
BMDs in connection with multiple other components and the State’s main election
system server. 9

Plaintiffs had previously asserted that their Complaints already encompassed a challenge to the
new BMD system. The Court rejected this notion and indicated that if Plaintiffs wished to proceed
with such a challenge, an amendment of the complaint to expressly deal with the BMD system
would be necessary. The Court granted the Plaintiffs’ motions to amend to add the BMD claims
based on Defendants’ written indication of their consent on the condition that they retained their
right to “to file motions to dismiss on the merits of the new claims,” and that discovery would be
stayed pending a ruling on the motions.
8 Plaintiffs challenge the State Defendants’ implementation of the BMD voting system with known
and demonstrated vulnerabilities that include, among other things, the Secretary of State’s failure
to remedy compromises in its current voter registration and internal IT systems. (Curling Pls.’
Compl. ¶¶ 75-88; Coalition Pls.’ Compl. ¶¶ 135, 176-186.)
9 As the Court found in its August 15, 2019 Order:
The voter registration database, containing millions of Georgia voters’ personal
identifying information, plays a vital role in the proper functioning of the voting
system. Yet it has been open to access, alteration, and likely some degree of virus
and malware infection for years, whether in connection with: CES/KSU’s handling
of the system and data and failure to address these circumstances upon transfer of
CES’s functions back to the SOS; failure to remediate the database, software and
data system flaws and deficiencies; or exposure of the widespread access to
7

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Thus, any arguments that this case has nothing to do with the security of the
State’s voter registration database and system or the reliability of the electronic
pollbooks are fantastical.
Defendants assert they are likely to succeed on appeal because “the legal
basis on which Coalition Plaintiffs sought the relief this Court granted is
unknown,” and the Court’s Order does not “offer any clarity as to which provisions
of the U.S. Constitution demands paper pollbook back-ups.” (Mot., Doc. 951 at
12.)
To be clear, the Court must correct one central element of the State’s
erroneous description of the issues in this case: Plaintiffs do not and have never
challenged the State’s determination to use electronic pollbooks for voter check-in
– this simply was not the issue before the Court. Instead, the issue posed is that
significant problems in functionality of the e-pollbooks in tandem with the
defective voter registration database could effectively block voters at the threshold
of the polls and preclude or burden their exercise of the franchise. (See September
17, 2018 Order, Doc. 309 at 4-12, 34-38; August 15, 2019 Order, Doc. 579 at 21-90;
September 28, 2020 Order, Doc. 918 at 20-47.) The relief ordered was narrowly

passwords to the voter registration data system throughout the SOS, CES/KSU, the
159 counties, or the public via the virtual open portal maintained at CES/KSU.
Most significantly, the programming and use of ballots in both the DRE and future
Dominion BMD system is tied to the accuracy of voter precinct and address
information. Inaccuracy in this voter information thus triggers obstacles in the
voting process. New Dominion express poll machines bought as part of the new
contract with Dominion cannot alone cleanse the voter database to be transferred
and relied upon.
(August 15, 2019 Order, Doc. 579 at 88-89.)

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tailored, based on the State’s own designated emergency ballot statute and
regulations to address these issues. Voters who are not shown on the State’s official
electors list in the pollbook are not permitted to vote, except in certain situations
by provisional ballots that may not ultimately be counted. The State’s failure to
address inaccuracies in the official electors list (whether from compromised voter
registration data or from providing an incomplete voter list as a paper backup) may
result in the denial of eligible and qualified voters’ rights to cast a ballot and have
their vote counted. The legal grounds for the Coalition Plaintiffs’ claims are the
alleged violations of the fundamental right to vote and substantive due process
rights guaranteed by the First and Fourteenth Amendments. The Court did not
hold that the Constitution requires paper pollbook backups. The Court held that
the State cannot unconstitutionally burden the right of qualified voters to cast their
ballots and have them counted. It is plain and simple.
2.

The Court’s Paper Pollbook Backup Order Imposes No
Changes to Georgia’ Statutory or Regulatory Regime and
Requires No Changes to Georgia Election Officials’ Election
Procedures

Defendants assert that “the Court ordered significant changes to [the] voting
process after the election is underway, and it will continue to cause irreparable
harm as long as it remains in place.” This is incorrect for a number of reasons.
Here are three.
First, the updated paper pollbook backup is a reinforcement to be used only
on Election Day and only then in the event of an emergency or where the electronic

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PollPads are not operational. This relief is consistent with Georgia law rather than
a home-cooked remedy.

This relief does not impact any voting currently

underway, including absentee mail voting or early in-person voting which began
two weeks after the entry of the Order. 10 The Order simply directs the Secretary of
State to transmit at the close of absentee/in-person early voting updated voter
information in a readily available format to the county election superintendents
for printing for use as a backup at each polling place on Election Day. This is the
same information contained in the PollPads, i.e., an actual paper backup.
Moreover, as the Court noted in the Order, there is no established date for when
the electors list is printed for each election and updates to the list are generated
the Friday before Election Day.

(See Order at 17-18) (discussing Elections

Director’s testimony describing fluidity of the provision of voter information and
updates) 11.
Second, the Order only directs that a paper pollbook be provided that
contains all information already required by law to be used by election workers to
As Defendants represented to the Court in the telephone conference in connection with the
BMD software modification on September 28, 2020 (the same day the relief Order was entered),
the only part of the election that was “underway” at that time was absentee mail voting, and there
was sufficient time to implement the BMD software fix in thousands of voting machines in 159
counties in advance of in-person voting. Logically, Defendants’ reasoning would apply to the
timing of the Court’s order here which requires production of updated information at the
conclusion of absentee and in-person voting for use as a single paper backup only at the polls on
Election Day.
11 See Harvey Decl., Doc. 815-1 ¶¶ 4-5 (attesting that “[t]he electors lists are ordered by the liaison
for their county, usually starting the Friday after the voter registration deadline, and each list is
ordered individually,” “[l]arger counties are usually printed last – sometimes not until the week
before the election to give the counties as much time as possible to enter any remaining eligible
voter registrations” and the Friday prior to the date of the election, the Secretary of State’s Office
“generates” a “supplemental list” of voters added to ENET since the electors list was initially
pulled).
10

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accurately determine voter eligibility as expressly provided in Georgia’s election
code. The Court’s order addressed in detail Georgia’s statutory and regulatory
election requirements and procedures relating to the electors list, pollbooks, and
emergency procedures when the use of electronic voting equipment is impossible
or impractical. (Doc. 918 at 11-16.) The Court also considered the State’s evidence
about the administrative details and implementation of these procedures
presented through the testimony of the Secretary of State’s Director of Elections,
Chris Harvey, who has “more than a decade [of] acquired firsthand knowledge of
Georgia’s election processes at both the state and county level.” (Id. at 17) (quoting
(Harvey Decl., Doc. 815-1 ¶ 2.) As the Court thoroughly explained, the paper
pollbook backup ordered by the Court would simply provide the same information
contained in the electronic pollbook as required by state law and therefore could
be used in the same manner as the electronic pollbook to determine voter eligibility
(as necessary in the event of emergencies, electronic outages, or disruptions). (See
Order at 12-13) (quoting O.C.G.A. § 21-2-401(b) requiring that “[t]he registrars
shall, prior to the hour appointed for opening the polls, place in the possession of
the managers in each precinct one copy of the certified electors list for such
precinct, such list to contain all the information required by law. The list shall
indicate the name of any elector who has been mailed or delivered an absentee
ballot” and Ga. Comp. R. & Regs. 183-1-12-.19(8) requiring that “[p]rior to delivery
to a polling place, the election superintendent or registrars shall cause the
electronic poll books to accurately mark all persons who have been issued or cast
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absentee ballots in the election”) (emphasis added); (see also Order at 17-19)
(summarizing testimony of Elections Director, Chris Harvey, that, “[w]hen a voter
requests an absentee ballot but then appears at the polls on Election Day without
their ballot in hand, the poll official should check with the registrar to ensure that
no absentee ballot has been accepted for that voter prior to having the voter execute
a cancellation affidavit and then vote using the BMD” and “[t]hat process applies
whether the voter is checked in using the PollPad or a paper list”); (see also Order
at 54-57) (explaining that under the Secretary of State’s own training manual, poll
workers are currently trained to use a paper list of electors in the precinct and are
directed to refer to the paper list to keep processing voters if the polling place loses
power or the PollPads stop working and that the only change would be that the
paper backup copy Plaintiffs request would be more complete and accurate than
the current paper lists and would mirror the information in the e-pollbook).)
Third, the two elections officials who presented testimony, expressly
acknowledged that the actual relief ordered would not be burdensome or
disruptive. The Secretary of State’s Election Director testified at the hearing before
this Court that he had no objection to providing counties with the information
necessary to prepare such an updated paper backup. Richard Barron, Director of
Registrations and Elections for Fulton County, the county with the largest voter
population in Georgia, similarly testified that he had “no issue” with the paper
pollbook relief request sought by Plaintiffs, and welcomed it as an improvement

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and a way of alleviating the burden on poll workers by cutting down on the number
of required calls to determine voter eligibility.
In addition, State Defendants argue that the Court’s Order alters the State’s
procedure and effectively excises the requirement in O.C.G.A. § 21-2-388(2) that
registrars “confirm[] that the elector’s absentee ballot has not yet been received by
the board of registrars” prior to allowing a voter to vote in the precinct on Election
Day “because the Court orders the Secretary to direct every superintendent that no
such additional check is required before voters who are shown as ‘having requested
an absentee mail-in ballot’ are allowed to vote on the BMDs.” (Mot. at 14.) This is
a glaring mischaracterization and an entirely inaccurate interpretation of the
Court’s ordered relief. Here’s why.
The remedy’s conformity with the overall regulatory scheme imposed no
changes to Georgia’s statutory procedures relating to voters who requested
absentee ballots, but who instead decide to vote in-person. The Court’s Order
recognized Defendants’ concern that “a paper printout of the updated electors list
would not account for every voter’s status, as absentee ballots are continuously
being returned” and therefore “an updated electors list could not adjudicate voter
eligibility in all situations.” But the Court found that this concern did not justify
denying relief where an updated list can be used to properly adjudicate voter
eligibility for some voters and for others would require the poll workers to follow
their existing protocol of contacting the county elections offices to confirm voter
eligibility. (See Order at 57) (“A poll manager, consistent with current practice,
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would simply then call the County Elections Office to confirm the voting status for
a much smaller, select number of voters.”). Plaintiffs’ proposed order, however,
did not expressly account for the situation described by Defendants, and instead
asked the Court to require county election superintendents to “to use the paper
back-up of the pollbook in the polling place to attempt to adjudicate voter eligibility
and precinct assignment” and “to allow voters who are shown to be eligible electors
on the paper pollbook backups to cast an emergency ballot that is not to be treated
as a provisional ballot.” Therefore, the Court included provisions in its relief
intended to address this gap and to indicate that the State’s existing procedures for
handling such voter eligibility issues would still apply, referring expressly to the
procedures outlined in O.C.G.A. § 21-2-388, providing for cancellation of absentee
ballots and permitting voters to cast votes in person upon cancellation. (See id. at
65, n. 28.).
Nonetheless, because the State Defendants purport to labor under a flawed
misinterpretation, the Court entered an Amended Order on October 12, 2020,
clarifying that voter eligibility shall be determined in accordance with O.C.G.A. §
21-2-388 and the existing practices as described by Mr. Harvey. Specifically, the
Amended Order provides that the Secretary shall direct that election
superintendents “allow voters who are shown to be eligible electors on the paper
pollbook backup but who are shown as having requested an absentee mail-in ballot
to have their absentee ballot canceled and to cast a regular or emergency ballot that
is not to be treated as a provisional ballot, provided that such voter’s eligibility is
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confirmed by the county registrar’s office and the voter’s absentee ballot is
canceled in accordance with the provisions of O.C.G.A. § 21-2-388.” (Am. Order,
Doc. 966 at 2-3) (citing O.C.G.A. § 21-2-388 (providing for cancellation of absentee
ballots and permitting voters to cast votes in person upon cancellation by either
surrendering their absentee ballot to the poll manager of the precinct or in the case
of a voter who has requested but not yet received their absentee ballot by
completing an elector’s oath affirming the voter has not marked or mailed an
absentee ballot for voting in such primary or election); See O.C.G.A. § 21-2-384
(regarding elector’s oath); see also Ga. Comp. R. & Regs. 183-1-14-.06 (regarding
procedures for spoiled absentee ballots).)
3.

The Court’s Order is Directed at the Secretary of State as the
State’s Chief Election Official; It Does Not Improperly
Purport to Bind Nonparty-counties Over Whom the
Secretary of State Claims to Lack Control or Authority

Borrowing from the Florida law script in Jacobson v. Fla. Sec’y of State,
State Defendants assert that the Court has stepped out of bounds by ordering the
Secretary of State to direct the county superintendents to require poll workers
follow the Order, despite the fact that they are not parties to this action. They argue
that an injunction against the State Defendants cannot alter the independent
obligations of the non-party election superintendents.
As outlined above and in the Order granting Coalition Plaintiffs’ motion to
amend the September 28th Order, the Court-ordered relief does not change
Georgia’s existing procedures or in any way alter the obligations and protocols of

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the county election officials in determining voter eligibility when required to resort
to the paper pollbook in the event of an emergency.
Georgia law confers primary authority on the Secretary of State to manage
Georgia’s electoral system, including the authority to bring investigations and
enforcement actions against County Boards of Election and Registrations.

See

O.C.G.A. § 21-2-50(b) (referring to the Secretary as “the state’s chief election
official”); see also Ga. Op. Att’y Gen. No. 2005-3 (Apr. 15, 2005) (“[I]it is clear that
under both the Constitution and the laws of the State the Secretary is the state
official with the power, duty, and authority to manage the state’s electoral system.
. . .”). The Secretary of State is the election official charged under Georgia law with
responsibility for maintaining the State’s voter registration database, for
producing the official voter lists to county election officials for use in all elections,
and as the Chair of the State Election Board is responsible for ensuring uniform
election practices and procedures in the state. See, e.g., O.C.G.A. § 21-2-31;
O.C.G.A. § 21-2-50(b). The express provisions of Georgia’s Election Code clearly
delineate the Secretary of State’s authority and responsibility for administering
and implementing Georgia’s elections. “The Secretary of State is designated as the
chief state election official to coordinate the responsibilities of this state under the
National Voter Registration Act of 1993.” O.C.G.A. § 21-2-210. “The Secretary of
State shall establish and maintain a list of all eligible and qualified registered
electors in this state which shall be the official list of electors for use in all elections
in this state.” O.C.G.A. § 21-2-211(a). “The Secretary of State is authorized to
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procure and provide all of the necessary equipment to permit the county boards of
registrars to access and utilize the official list of electors maintained by the
Secretary of State,” which “shall include, but not be limited to, computer hardware;
computer software; modems, controllers, and other data transmission devices;
data transmission lines; scanners and other digital imaging devices; and printers.”
O.C.G.A. § 21-2-211(b). 12
The Court’s Order directs the Secretary of State to follow the same
procedures it has historically used in providing elector information to counties in
carrying out their duties on election day. The Secretary of State provides the
official electors list, it provides the electronic PollPads, it provides the information
from ENET that is used to populate the PollPads, and it generates the
supplemental list from ENET for the counties to print prior to Election Day. The
Court’s Order simply requires the Secretary of State to follow these same
procedures in providing the updated information in electronic format to each
county election superintendent with directions that they print and distribute the
paper backup to each precinct which would only impose a minimal burden on
Defendants.

Jacobson held that the plaintiffs there lacked standing to sue the Florida Secretary of State to
challenge Florida’s ballot order laws because, pursuant to Florida state law, the Florida Secretary
of State did not have the power to redress the plaintiffs’ injuries. As just described, Georgia law
differs from Florida law on this point. For all of these reasons, this Court finds that Jacobson’s
analysis of the Florida Secretary of State’s limited authority and the absence of necessary county
parties in that case is not applicable here.

12

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4.

The Coalition Plaintiffs’ Claim Does Not Present a
Nonjusticiable Political Question

This case arises in a classic First Amendment factual and legal context: Are
voters being turned back at the polls or burdened in exercising the right of
franchise by the State’s established process and voting equipment, as
implemented, for operation of the polls?

This is the question presented by

Plaintiffs’ claim. Clearly, this does not pose a political question involving policy
choices of the legislature. Jacobson v. Florida Sec'y of State, 19-14552, 2020 WL
5289377, at *18 (11th Cir. Sept. 3, 2020) (holding that a complaint that the order
in which candidates appear on a ballot confers an impermissible partisan
advantage to one party presented a nonjusticiable political question because it does
not allege any burden on individual voting rights). Defendants’ contention that
“[d]etermining the timing of printing paper pollbook backups and procedures for
canceling absentee ballots are questions of policy with no judicially manageable
standards,” stands in direct contradiction to the testimony and the provisions of
Georgia’s election code. (Mot., Doc. 951 at 15-16.) But the Court’s remedy does
not tackle the question of when to print a paper pollbook backup for use on
Election Day or whether different procedures should be used for canceling
absentee ballots. The question is what information should be included in the paper
pollbook backup – as to that, the standards are clear, they are defined, and they
remain unchanged by this Court’s Order:

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• The Secretary of State is responsible for establishing and maintain a list
of all eligible and qualified registered electors in this state which shall be
the official list of electors for use in all elections in this state. O.C.G.A. §
21-2-211(a).
• The Election Code authorizes the Secretary of State to procure and
provide all of the necessary equipment to permit the county boards of
registrars to access and utilize the official list of electors maintained by
the Secretary of State, i.e. the electronic pollbooks for use during
elections. O.C.G.A. § 21-2-211(b).
• The official list of electors eligible to vote in any primary or election shall
be prepared and completed at least five calendar days prior to the date of
the primary or election in which the list is to be used. O.C.G.A. § 21-2224(f)
• The official list of electors and the official list of inactive electors prepared
and distributed to the poll officers of each precinct shall include the
elector’s name, address, ZIP Code, date of birth, voter identification
number . . . congressional district, state Senate district, state House
district, county commission district, if any, county or independent board
of education district, if any, and municipal governing authority district
designations, if any, and such other voting districts, if any. O.C.G.A. § 212-224(g).

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• The official list of electors prepared and distributed to the poll officers of
each precinct may also include codes designating that an elector has
voted by absentee ballot, has been challenged, or has been sent mail by
the registrars which has been returned marked undeliverable. O.C.G.A.
§ 21-2-224(g).
• The registrars shall, prior to the hour appointed for opening the polls,
place in the possession of the managers in each precinct one copy of the
certified electors list for such precinct, such list to contain all the
information required by law. The list shall indicate the name of any
elector who has been mailed or delivered an absentee ballot. O.C.G.A. §
21-2-401(b).
• Election superintendents shall cause each polling place to be equipped
with an appropriate number of electronic poll books within the county
during primaries, elections, and runoffs. Electronic poll books shall be
the primary method for checking in voters and creating voter access
cards, but the superintendent shall cause every polling place to be
equipped with a paper backup list of every registered voter assigned to
that polling place. The paper backup list shall be used in case the
electronic poll books do not properly function. The superintendent shall
cause poll workers to be adequately trained in checking in voters on both
electronic poll books and paper backup list. Ga. Comp. R. & Regs. 183-112-.19(1).
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• The registrars of each county shall utilize the absentee ballot subsystem
of the statewide voter registration system for absentee balloting and
advance voting. Ga. Comp. R. & Regs. 183-1-12-.19(3).
• Prior to delivery to a polling place, the election superintendent or
registrars shall cause the electronic poll books to accurately mark all
persons who have been issued or cast absentee ballots in the election. Ga.
Comp. R. & Regs. 183-1-12-.19(8).
• For electors whose names are added to the voter registration rolls after
the preparation of the electronic poll books, the registrars shall provide
a printed supplemental list for use at the affected polling places. Ga.
Comp. R. & Regs. 183-1-12-.19(10).
• Consistent with these provisions, the paper backup list should mirror the
updated information from the electors list after the close of absentee and
early voting three days prior to election day.
• When an absentee ballot which has been voted shall be returned to and
received by the board of registrars, it shall be deemed to have been voted
then and there; and no other ballot shall be issued to the same elector. If
an elector has requested to vote by absentee ballot and has not received
such absentee ballot, has such ballot in his or her possession, has not yet
returned such ballot, or has returned such ballot but the registrars have
not received such ballot, such elector may have the absentee ballot

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canceled and vote in person on the day of the primary, election, or runoff
as provided in O.C.G.A. § 21-2-388.
• County election officials and poll managers will follow the procedures
outlined in O.C.G.A. § 21-2-388(2) to determine the eligibility of voter
who previously requested to vote by absentee ballot but requests to vote
in-person at the precinct on election day.
In the event problems with the PollPads arise, and election workers resort
to using the paper backup list for voter check-in, the paper backup should match
the same information the statute and regulations provide are required and that the
Elections Director testified is included in the electronic pollbooks – updated
information from the electors list after the close of early voting during the three
days prior to election day. According to the State Election Board regulations and
the Secretary of State’s own training manual, poll workers are currently trained to
use a paper list of electors in the precinct and are directed to refer to the paper list
to keep processing voters if the polling place loses power or the PollPads stop
working. (See Order, Doc. 918 at 57) (citing Doc. 802 at 27 and Poll Worker Manual
2020 Edition (updated April 2020) available on the Secretary of State’s website at
https://georgiapollworkers.sos.ga.gov/Shared%20Documents/Georgia%20Poll%
20Worker%20Training%20Manual.pdf.).

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5.

Eleventh Amendment Immunity Does Not Apply to Bar
Relief on Plaintiffs’ Claims

Hoping the third time’s the charm, Defendants repeat their arguments that
Plaintiffs’ claims seek to vindicate special state sovereignty interests and are barred
by the Eleventh Amendment. This Court rejected these arguments raised in
connection with the DRE claims and again when Defendants raised them with
respect to the amended BMD claims.

(See August 2018 Order, Doc. 309 at 29-

30; see also July 30, 2020 Order, Doc. 964 at 25-33.) Moreover, Defendants lost
on their Eleventh Amendment defenses in their first appeal before the Eleventh
Circuit Court of Appeals, in part because they had mischaracterized the nature of
the claims and law posed in this case.

Curling v. Secretary of Georgia, 761 F.

App’x 927, 932 (11th Cir. 2019) (stating that the State’s “arguments can be disposed
of without much ado because they run counter to the complaints’ allegations and
settled precedent” and “any number of binding precedents demonstrate why it is
irrefragable that” Plaintiffs’ claims satisfy the Ex parte Young exception to
Eleventh Amendment immunity). This mantra continues.
6.

This Court Did Not Apply the Incorrect Legal Standard For
Determining Whether the State’s Election Procedures
Violated Plaintiffs’ Constitutional Rights and Did Not Shift
the Burden to Defendants

The Court followed the standard set forth in Anderson and Burdick in
analyzing whether Plaintiffs established a substantial likelihood of prevailing on
the merits of their claim related to the paper pollbook backup. (Order, Doc. 918 at
48-62.) This standard requires the Court to weigh the character and magnitude of
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the burden the State’s rule imposes on those rights against the interests the State
contends justify that burden and consider the extent to which the State’s concerns
make the burden necessary. Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v.
Celebrezze, 460 U.S. 780 (1983).
Defendants assert that “[i]n challenges to a state’s electronic-voting method,
the lower-scrutiny Burdick test is applied.” (Mot., Doc. 951 at 20 (citing Wexler v.
Anderson, 452 F.3d 1226, 1232 (11th Cir. 2006)). This is a misstatement of the
“Burdick test” and its application in Wexler. 13 The Eleventh Court in Wexler
described Burdick as a balancing test and recognized that the “level of scrutiny
courts apply to state voting regulations should vary with the degree to which a
regulation burdens the right to vote.” Wexler, 452 F.3d at 1232 (citing Burdick,
504 U.S. at 433-34). The Eleventh Circuit has not adopted a bright-line rule that
courts must apply a “lower-scrutiny” test under Burdick to challenges involving a
state’s electronic-voting method. Rather, the Eleventh Circuit recognizes that the
“Supreme Court has rejected a ‘litmus-paper test’ for ‘constitutional challenges to
specific provisions of a State’s election laws’ and instead has applied a ‘flexible
standard’.” Common Cause Georgia v. Billups, 554 F.3d at 1340, 1352 (11th Cir.
2009) (quoting Anderson, 460 U.S. at 789).

The Court in Wexler found that the plaintiffs in that case had not alleged that voters using
touchscreen machines were less likely to cast effective votes and therefore their claims regarding
the alleged disparate impact of Florida’s manual recount procedures did not result in a severe
burden and was not subject to strict scrutiny. 452 F.3d at 1232-33.

13

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Defendants do not articulate how, in their words, the Court either (i) applied
the wrong legal standard, (ii) created its own “novel analytical framework,” or (iii)
“misapplied its own new approach to Constitutional law.” Instead, Defendants
simply disagree with the Court’s view of the evidence, its assessment of the burden
on Plaintiffs’ interest in their ability to cast votes at the polls as severe, and its
findings that the State’s proffered interests were insufficient to outweigh that
burden.
Defendants advance a convoluted theory that the Court flipped the burden
to Defendants to prove they had taken steps to guard against imposing burdens on
voters. It did not. The Court considered and addressed the only interest put
forward by the State Defendants to justify their refusal to provide a reconciled and
updated paper backup: a generic “interest in timely and accurate administration of
elections” and in the use of electronic pollbooks as the primary method of
determining voter eligibility. (Resp., Doc. 815 at 19-20.) Because Plaintiffs are not
challenging use of electronic pollbooks, the Court’s relief does not alter State’s
requirement that electronic pollbooks shall be used as the primary method of
determining voter eligibility. The Court simply noted that Defendants did not
explain how the requested relief – provision of an updated paper backup for use
during emergency situations where pollbooks become inoperable or errors in the
electronic system persist – was inconsistent with their “interest in timely and
accurate administration of elections.”

27

And the Court found that Plaintiffs’

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evidence indicates that such a backup would serve both the Defendants’ stated
interests as well as the constitutional interests advocated by Plaintiffs.
7.

The Court’s Relief is Not Based on Evidence Outside the
Record

To create the appearance of error, Defendants contend that the Court “took
judicial notice of disputed evidence and findings in other cases in this district to
support its findings.” (Mot., Doc. 951 at 21.) The Court’s Orders in the course of
the case were extraordinarily detailed and careful, two of them stretching over 150
pages. They explained at length the evidentiary and legal basis of the Court’s
findings and legal rulings. The evidence was presented in the record before this
Court.

The Court meticulously considered the evidence presented both by

Plaintiffs and Defendants. To the extent that the Court took notice of any other
court rulings relative to the State’s same processes (i.e., use of provisional ballots
due to issues in the State’s voter registration database and electronic pollbooks),
this was as a point of comparison – that the same electoral issues appeared, for
instance, in Common Cause Georgia v. Kemp, 347 F. Supp. 3d 1270 (N.D. Ga.
2018). Defendants object to the Court’s reference to its own findings and review
of the evidence in connection with its injunction 14 issued in Common Cause, a case
that was transferred to the undersigned as related to the instant case because of
the allegations related to the security breach of the State’s voter registration
database. (See 1:18-cv-5102 November 6, 2018 Order, Doc. 4, reassigning case.)
The Secretary of State did not appeal the preliminary injunction order entered in Common
Cause.

14

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And finally, Defendants overstate the Court’s reliance on the evidence and findings
in Common Cause summarized in a single footnote of the Court’s 67-page Order.
8.

Defendants Will Suffer No Harm Absent a Stay; Rather
Plaintiffs and the Public Will Suffer if a Stay is Granted

The relief is narrowly tailored to address a significant immediate burden to
voters’ access to the ballot on election day, when a high proportion of voters turn
out. A stay of the Order tailored to ease those burdens would permit this burden
to persist. Neither the Secretary of State’s top elections official nor the head
election official in charge of Fulton County, with the largest voting population in
Georgia, described the precise relief ordered as creating any burden or “irreparable
injury” to their management of the voting process. The evidence is to the contrary.
For all of the reasons enumerated herein, the Supreme Court’s concerns in
Purcell v. Gonzalez are not implicated. And indeed, in the Court’s consideration
of all of the relief issues presented in this case, the Court has again and again been
mindful of Purcell’s cautionary principles in refusing to enjoin the State’s voting
system in favor of the ultimate relief requested by Plaintiffs of a switch to handmarked paper ballots. (See September 2018 Order Doc. 309; August 2019 Order,
Doc. 579; and October 2020 Order at Doc. 964.) The issue of the paper pollbook
backup is in a distinctly different posture from the other challenges to the voting
system presented in the case: the requested relief at issue is narrow and does not
disturb in any way the State’s administration of its electoral rules or cause

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confusion. Quite the opposite; it should serve to promote voter confidence in the
integrity of the election and incentivize voting at the polls.
II.

CONCLUSION
For the foregoing reasons, the Court finds that Defendants have failed to

establish the “heavy burden” necessary to warrant a stay of the Court’s preliminary
injunction on the paper pollbook backup.

Accordingly, the Court DENIES

Defendants’ Motion to Stay [Doc. 951].

IT IS SO ORDERED this 14th day of October, 2020.

_____________________________
Amy Totenberg
United States District Judge

30