Georgia Association of Latino Elected Officials, Inc. et al v. Gwinnett County Board of Registration and Elections et al

Filing 58

ORDER: Because Plaintiffs lack standing, have alleged claims that are no longer live, and have failed to state claims upon which relief could be granted, Defendants Motions to Dismiss 38 and 39 are GRANTED. Signed by Judge William M. Ray, II on 10/5/20. (ah)

Case 1:20-cv-01587-WMR Document 58 Filed 10/05/20 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GEORGIA ASSOCIATION OF
LATINO ELECTED OFFICIALS,
INC., et al.
Plaintiffs,

CIVIL ACTION FILE NO:

v.

1:20-CV-01587-WMR

GWINNETT COUNTY BOARD OF
REGISTRATIONS AND
ELECTIONS, et al.,
Defendants.
ORDER
Gwinnett County Board of Registrations and Elections (“Gwinnett BOE”) is
subject to federal law that requires it to provide its election and voting-related
materials in Spanish given the significant percentage of its voters who speak and
read the Spanish language. Plaintiffs allege that Georgia Secretary of State Brad
Raffensperger’s statewide distribution (particularly to Gwinnett County) of
English-only absentee ballot applications and maintenance of its website and public
notices in English-only violated the federal provisions that apply to Gwinnett
County. In the alternative, Plaintiffs allege that the Secretary’s actions triggered
some duty of the Gwinnett BOE to provide similar communications in Spanish.

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Plaintiffs’ requests for relief, however, ask this Court to read beyond the plain
language of the Voting Rights Act (“VRA”) to impose duties upon Secretary
Raffensperger and Gwinnett BOE that do not currently exist under the law.
Accordingly, this Court cannot find that either Secretary Raffensperger or Gwinnett
BOE violated any applicable provision of the VRA. Further, irrespective of the
claims’ merits, the Individual and Organizational Plaintiffs lack standing to sue the
Gwinnett BOE and Secretary Raffensperger. None of them showed an injury in
fact, and their alleged injuries are not traceable to, nor redressable by, the Gwinnett
BOE and the Secretary. Thus, Plaintiffs have not established Article III standing,
and their claims fail on the merits under the law.
Nonetheless, this Court recognizes that Plaintiffs’ end goal of ensuring that
Spanish-speaking Gwinnett voters receive bilingual absentee ballot applications is
a reasonable and desirable outcome.

And, their argument that Secretary

Raffensperger should have simultaneously sent Spanish applications to Gwinnett
County, or that Gwinnett BOE should have supplemented the state’s English-only
applications, “may very well be the best public policy, particularly in a place like
Gwinnett County that enjoys such rich diversity.” [Doc. 33 at 2]. Nonetheless, the
plain language of the VRA simply does not require what the Plaintiffs allege here.
As such, they do not have a claim under the law. “It is not the job of this Court to
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write the law or to decide this case in favor of the party who requests the most
admirable outcome. [Id.] Rather, “the Court must follow the law as written and
leave the policy decisions for others.” [Id.].
Because Plaintiffs lack standing and fail to state a claim upon which relief
could be awarded, the Court hereby GRANTS Defendants’ Motions to Dismiss in
their entirety.
I.

FACTUAL BACKGROUND
On March 15, 2020, in light of the ongoing public health crisis, Secretary

Raffensperger postponed Georgia’s presidential primary election from March 24 to
May 19, combining the presidential primary with the previously scheduled primary
date for other offices. [Doc. 13 at ¶ 25]. Following Governor Brian Kemp’s decision
to extend the state of emergency in Georgia until May 13, Secretary Raffensperger
again postponed the presidential primary from May 19 to June 9. [Id. at ¶¶ 27-28;
Doc. 17-2 (hereinafter “Powers Decl.”), Exhibits 19, 23]. Secretary Raffensperger
explained that the additional time would allow officials to finalize contingency plans
and find additional poll workers. [Doc. 13 at ¶ 28; Powers Decl., Exhibit 19].
During the week of March 30, Secretary Raffensperger also used CARES Act1 funds

1

In response to the COVID-19 pandemic, Congress passed legislation to provide
emergency relief to workers, small businesses, and states. See Coronavirus Aid,
3

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to mail English-only absentee ballot applications to all Georgia registered voters,
including those in Gwinnett County, to encourage them to vote by mail in the
upcoming election due to the health risks posed by in-person voting. [Doc. 13 at ¶¶
2, 29; Powers Decl., Exhibit 8].
Plaintiffs Limary Ruiz Torres and Albert Mendez (the “Individual Plaintiffs”)
are limited-English proficient (“LEP”) Gwinnett County voters who were educated
in Spanish-speaking schools in Puerto Rico. [Doc. 13 at ¶¶ 7, 18, 19]. In their
original Complaint, the Individual Plaintiffs claimed that they received English-only
absentee ballot applications by mail, were unable to read them, and had yet to
complete them. [Id.]. The remaining Plaintiffs, the Georgia Association of Latino
Elected Officials, Inc.; the Georgia Coalition for the People’s Agenda, Inc.; Asian
Americans Advancing Justice– Atlanta, Inc.; the New Georgia Project; and Common
Cause (the “Organizational Plaintiffs”), are organizations engaged in “get out the
vote” activities and other voter registration efforts. [Id. at ¶¶ 13-17].
II.

PROCEDURAL HISTORY
On April 13, 2020, Plaintiffs filed suit against Gwinnett BOE and several of

its individual members (together, the “Gwinnett Defendants”), as well as Secretary

Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134
Stat. 281 (2020).
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Raffensperger, alleging violations of Sections 203 and 4(e) of the Voting Rights Act
(“VRA”), 52 U.S.C. §§ 10503, 10303, and seeking declaratory and injunctive relief.
[Doc. 1]. Four days later, Plaintiffs filed an Amended Complaint. [Doc. 13].
Plaintiffs then filed a Motion for a Temporary Restraining Order and
Preliminary Injunction on April 20, 2020, [Doc. 17], asking this Court to (1) enjoin
all continuing violations of Section 203 of the VRA by the Gwinnett Defendants and
Section 4(e) of the VRA by all Defendants; (2) require the mailing of “an accurately
translated bilingual absentee ballot application” to the Individual Plaintiffs; and (3)
require the mailing of “an accurately translated bilingual absentee ballot application
to Gwinnett County voters who were sent English-only applications, or,
alternatively, to all Gwinnett County voters who self-identified as ‘Hispanic/Latino’
when they registered to vote.” [Id. at 2].
The Gwinnett Defendants opposed Plaintiffs’ request for injunctive relief,
arguing that they have no duty under the VRA to mail out bilingual absentee ballot
applications to Gwinnett County voters because the Secretary of State, not Gwinnett
BOE, provided the English-only voting materials in question. [Doc. 24 at 2].
Secretary Raffensperger also opposed Plaintiffs’ request on the basis that Section
203 of the VRA does not apply to him and Section 4(e) of the VRA does not require

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that he provide bilingual ballot applications to Gwinnet County voters [Doc. 26 at
15].
On May 8, 2020, this Court denied Plaintiffs’ Motion for a Temporary
Restraining Order (“TRO”) and Preliminary Injunction [Doc. 33] on the grounds that
Plaintiffs did not meet the standard for a preliminary injunction, largely because
Plaintiffs did not prove they were likely to succeed on the merits of their claims. 2
Following this Order, Plaintiffs filed a Second Amended Complaint. [Doc. 36].
Plaintiffs claim that (1) both Gwinnett BOE and Secretary Raffensperger had
a responsibility to provide bilingual absentee ballot applications when and because
Secretary Raffensperger sent applications statewide—including into Gwinnett
County—and (2) both violate the VRA on a continuing basis by failing to make
various materials available in Spanish, particularly on the Secretary of State’s
website and in public notices. [Id. at ¶¶ 1-10]. Plaintiffs emphasized that this action
only concerns Spanish speaking voters in Gwinnett County under Section 203 of the
VRA and Gwinnett County LEP voters educated in Puerto Rico under Section 4(e)

2

Because this Court concluded that the Plaintiffs were unlikely to succeed on the
merits of their action, it did not address the issue of standing at that time. [Id. at 7].
It noted that it would address the Defendants’ allegation that both the Individual
Plaintiffs and the Organizational Plaintiffs do not have standing to pursue their
claims as the lawsuit progressed. [Id. at 7, n.3].
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of the VRA. [Id. at 2]. Plaintiffs also point out that Secretary Raffensperger sent
another set of English-only absentee ballot applications on or around April 21, 2020,
and that he had mentioned in his April 15 application for CARES Act funding that
his office “may consider providing similar services for the primary runoff and
November General Election.” [Id. at ¶ 5].
The Individual Plaintiffs acknowledge that Gwinnett BOE mailed them
bilingual absentee ballot applications for the June 9, 2020 primary election. [Id. at
¶¶ 20-21]. Both received the applications and were able to complete them, and
neither allege that they were prevented from successfully casting their ballot in the
June 9, 2020 primary election. [Id.]. Plaintiffs also acknowledge that a bilingual
absentee ballot application is available on the Gwinnett BOE website. [Id. at ¶ 61].
But, they note that the link to the Spanish language version of the application is
mislabeled with “In English,” although this link connects voters to the Spanish
language version of the form. [Id. at ¶ 63].
In their Prayer for Relief, Plaintiffs sought declaratory and injunctive relief
and asked this Court to (1) find that Defendants violated Sections 203 and 4(e) of
the VRA; (2) enjoin “all continuing violations of Sections 203 and 4(e) of the Voting
Rights Act by Defendants”; (3) compel the mailing of “an accurately translated
bilingual absentee ballot application” to “Gwinnett County voters such as Plaintiffs
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Mendez and Torres when requested in future elections or, alternatively, to all
Gwinnett County voters who self-identified as ‘Hispanic/Latino’ when they
registered to vote and all voters residing in Gwinnett County precincts for which at
least five percent of voters identified as Hispanic on their voter registration cards;”
and (4) require the provision of bilingual versions of election-related information
published on the Secretary of State’s website and the Georgia My Voter Page and
sent to nursing homes in Gwinnett County.” [Id. at p. 30, ¶¶ 2-4].
Both Defendants then filed the present Motions to Dismiss on June 20, 2020.
[Doc. 38; Doc. 39]. The Gwinnett Defendants argue that both the Individual and
Organizational Plaintiffs lack standing because they do not have an injury, and even
if they did, it is not traceable to nor redressable by Gwinnett Defendants. [Doc. 381 at 4-12]. They also contend that Plaintiffs fail to state a claim because Gwinnett
BOE did not “provide” the voting materials in question here and thus did not violate
the applicable federal law. [Id. at 12-18]. In a separate yet similar argument
regarding this case’s justiciability, Secretary Raffensperger contends that (1) the
Individual Plaintiffs’ claims are moot; (2) the Organizational Plaintiffs do not have
an injury; and (3) any injury suffered by all Plaintiffs is not traceable to the Secretary
of State. [Doc. 39-1 at 7-18]. Secretary Raffensperger also asserts that Plaintiffs
fail to state a claim because Section 203 of the VRA does not apply to the state of
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Georgia (and thus not to him as the Secretary of State) and that Section 4(e) of the
VRA does not require him to translate the materials at issue here. [Id. at 18-25].
Plaintiffs responded to both Motions to Dismiss in one brief on July 20, 2020.
stressing that their Second Amended Complaint broadly alleges that Defendants are
failing to provide numerous election materials. [Doc. 44 at 30]. Both the Gwinnett
Defendants and Secretary of State filed Reply Briefs in Support of their Motions to
Dismiss on August 3, 2020. [Doc. 46; 47]. On August 18, 2020, this Court held a
Zoom hearing to consider the Defendants’ Motions to Dismiss.
After that, Plaintiffs filed a Motion for Leave to File a Supplemental
Complaint on September 11, 2020. [Doc. 53-1]. In their motion, Plaintiffs seek to
supplement the Second Amended Complaint to include two new developments: (1)
the Georgia Secretary of State’s office launched an English-only online absentee
ballot application portal and (2) “the Gwinnett County Commissioners voted against
mailing absentee ballot applications to all active registered voters in Gwinnett
County.” [Id. at 2].
III.

LEGAL STANDARD

A. Motion to Dismiss for Lack of Standing
To invoke federal jurisdiction under Article III of the Constitution, a litigant
must establish that the case it brings is an appropriate “case or controversy” for the
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federal court to hear. U.S. CONST., Art. III § 2. A “case or controversy” first requires
Plaintiffs to demonstrate that they have standing to file suit, “which requires proof
of three elements.” Jacobson v. Fla. Sec'y of State, No. 19-14552, 2020 WL
5289377, at *4 (11th Cir. Sept. 3, 2020) (citing United States v. Amodeo, 916 F.3d
967, 971 (11th Cir. 2019)). “The litigant must prove (1) an injury in fact that (2) is
fairly traceable to the challenged action of the defendant and (3) is likely to be
redressed by a favorable decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992)). “And when plaintiffs seek prospective relief to prevent future
injuries, they must prove that their threatened injuries are “certainly impending.”
Id. (citing Clapper v. Amnesty Int'l USA, 568 U.S. 398, 401 (2013)). Further,
“[b]ecause standing is jurisdictional, a dismissal for lack of standing has the same
effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1).” Cone Corp. v. Fla. Dep't of Transp., 921 F.2d 1190, 1203 n. 42 (11th
Cir. 1991).
B. Motion to Dismiss Under Fed R. Civ. P. 12(b)(6)
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiffs satisfy the
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plausibility standard by pleading “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Establishing plausibility requires more than a “sheer possibility that a defendant has
acted unlawfully;” however, a complaint that “pleads facts that are ‘merely
consistent with’ a defendant’s liability . . . ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550
U.S. at 557). For purposes of a motion to dismiss, this Court must assume the truth
of Plaintiffs’ factual allegations, but it is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Id. at 678-89 (citing Twombly, 550
U.S. at 555) (internal quotation marks omitted).
IV.

JUSTICIABILITY ANALYSIS

Both the Individual and Organizational Plaintiffs lack standing because neither
established an injury in fact and, even if they had, that injury would not be traceable
to, nor redressable by, Defendants Raffensperger or Gwinnett BOE. Moreover,
Plaintiffs’ claims no longer present a live controversy and are therefore rendered
moot.

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A. Plaintiffs Do Not Have Article III Standing to Pursue Their Claims.
1.

Plaintiffs Have Not Established Injury in Fact.

The Individual Plaintiffs have not demonstrated that they suffered an injury
in fact. It is true that that “‘a person's right to vote is individual and personal in
nature,’ so ‘voters who allege facts showing disadvantage to themselves as
individuals’” typically will have standing to sue. Jacobson, at *5 (quoting Gill v.
Whitford, 138 S. Ct. 1916, 1929 (2018). However, when seeking declaratory or
injunctive relief, as the Plaintiffs do here,3 litigants “must allege and ultimately prove
‘a real and immediate—as opposed to a merely hypothetical or conjectural—threat
of future injury.’” Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014)
(quoting Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir.1994) (citation
omitted) (emphasis in original). Here, Gwinnett BOE sent both Individual Plaintiffs
bilingual absentee-ballot applications, and both were able to complete these
applications.4 [Doc. 36, ¶¶ 20-21]. Thus, the Secretary’s failure to send an English-

3

Oral Argument q and 2nd Am complaint

4

Initially, the Individual Plaintiffs rested their claims on not having received
Spanish absentee ballot applications. [Doc. 13, ¶¶ 18-19]. But in their Second
Amended Complaint, Plaintiffs acknowledged that they had received and
completed bilingual applications. [Doc. 36, ¶¶ 20-21].
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only ballot application did not cause the Individual Plaintiffs to suffer an injury in
fact.
But, they also allege that “if [they are] sent an English-only absentee ballot
application in the future, [they] will not be able to understand it.” [Doc. 36, ¶¶ 2021]. Thus, Plaintiffs’ arguments are not based on actual injury suffered in this case,
but rather on speculative injuries they may suffer in the future. Plaintiffs, however,
have not alleged that there is a “substantial likelihood” they actually will suffer
injury in the future. Id. (quoting Malowney v. Fed. Collection Deposit Grp., 193
F.3d 1342, 1346 (11th Cir.1999) (citations omitted)). They have merely alleged that
there is some chance the Plaintiffs could be harmed; “if [Plaintiffs are] sent Englishonly applications” again, that they will not be able to comprehend them. [Doc. 381 at 7]. This remote risk of harm is too speculative to warrant Article III standing.
Moreover, the fact that the Georgia Secretary of State website and new online
absentee ballot application portal operate in English only does not sufficiently injure
Plaintiffs for Article III standing. [Doc. 36 at 21; Doc. 53-1 at 9]. The Secretary of
State is not covered under the statutes of the VRA requiring it to provide this
information to Gwinnett County voters in Spanish. Instead, Gwinnett County is
under the obligation to do so when it provides this information to its voters, and
Plaintiffs admit that Gwinnett County has made a bilingual absentee-ballot
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application available on its website. There is also a Spanish-language computer
translated version of Gwinnett County’s website that Plaintiffs may use; and
although it has a few imperfections that can be corrected,5 Plaintiffs are not
effectively prevented from receiving the information they need to be able to vote and
therefore do not suffer any injury that can be redressed by this Court.
In a similar vein, the Organizational Plaintiffs fail to establish that they have
an injury in fact. An organization can establish injury in fact under a “diversion of
resources” theory, which predicates standing on the fact that “a defendant's illegal
acts impair the organization's ability to engage in its own projects by forcing the
organization to divert resources in response.” Arcia v. Fla. Sec'y of State, 772 F.3d
1335, 1341 (11th Cir. 2014) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363,
379 (1982)). Although diversion can be a concrete injury, Plaintiffs in this case have
not sufficiently alleged that they have been injured on those grounds, despite
arguments to the contrary in their briefings.
First, Plaintiffs have not established that Defendants engaged in any illegal
activity forcing them to divert resources. As discussed above and below, Gwinnett

“To access a Spanish-language computer-translated version of the website, voters
have to find a small box marked ‘English >’ at the bottom right hand corner of the
Gwinnett County BORE’s webpage.” [Doc. 36 at 23].
5

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Defendants did not violate any statute and thus were under no duty to provide
additional absentee-ballot applications after the Secretary of State did so. Further,
because Secretary Raffensperger is not covered by the language under the statutes,
he also was under no duty to provide ballot applications in the form that Plaintiffs
request. Since no illegal acts have been alleged, Plaintiffs do not meet the first
requirement under the diversion of resources theory.
Even if they had, Plaintiffs have not sufficiently alleged what they would
have to “divert resources away from in order to spend additional resources on
combatting” the effects of Secretary Raffensperger’s ballot application distribution.
Jacobson, at *9. GALEO’s overarching purpose is to protect the civil rights of
Georgia’s Latino community by, among other things, “organizing voter education,
civic engagement, [and] voter empowerment.” [Doc. 36 at 6-7]. Specifically,
GALEO has already been “working to address challenges facing Gwinnett County’s
LEP Spanish speaking voters as a result of the impact of the COVID-19 pandemic.”
[Id. at 7]. Thus, there is no indication that GALEO would in fact be diverting any
resources away from the core activities it already engages in by continuing to
educate and inform Latino voters. Plaintiffs allege that “GALEO is diverting
resources from getting out the vote and voter education to ‘reach[] out to and
educat[e] [LEP Gwinnett voters] about how to navigate the mail voting process . . .
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as well as other aspects of the electoral process.’” [Doc. 44 at 9]. But these other
activities are precisely of the same nature as those that GALEO engaged in before
the COVID-19 pandemic and continues to engage in now. Thus, Plaintiffs cannot
prove that they have suffered an injury in fact under this theory.
An organization can also establish associational standing by proving “that its
members ‘would otherwise have standing to sue in their own right.’” Jacobson at
*7. The “interests at stake must be germane to the organization’s purpose,” and the
suit itself also must be one that does not require individual member participation.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000). Although the interests at stake in this suit are clearly germane to the
organization’s purpose, and the suit does not require individual member
participation,6 the standing argument fails because the organization cannot prove
that its members have suffered injuries in fact for the reasons mentioned above.
Simply because GALEO has “Spanish-speaking voters in Gwinnett County who
receive[d] English-only materials” does not mean that the members themselves
would have standing to sue when they have suffered no injury in fact. [Doc. 44 at
Though voting is an individual right, Plaintiffs’ request for “prospective,
injunctive relief directed at election officials… does not require the Court to craft
individual remedies, nor does it require every [GALEO] member affected to
participate in the suit.” Democratic Party of Georgia, Inc. v. Crittenden, 347 F.
Supp. 3d 1324, 1338 (N.D. Ga. 2018).
16

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11]. Therefore, because individual members of the organizations would have no
standing to sue, GALEO and the other Organizational Plaintiffs do not have
standing to sue on their behalf.
2.
Plaintiffs
Redressability.

Cannot

Demonstrate

Causation

and

Even if Plaintiffs had been able to demonstrate injury in fact, they are unable
to establish traceability and redressability. Causation is established by
demonstrating that the Plaintiffs’ harm is fairly traceable to the action of the
Defendants. The harm here is not traceable to any action taken by Gwinnett County,
since Secretary Raffensperger’s office distributed the English-only applications and
Gwinnett County provided bilingual applications after the fact that Plaintiffs were
able to complete. Therefore, the harm that Plaintiffs allegedly suffered does not
come directly from Gwinnett County. Compare with Crittenden, 347 F. Supp. 3d.
1324 at 1338 (finding that there was causation because “the Court can trace a direct
line between Gwinnett's (or any county's) decision to reject an absentee ballot for
missing information, when that information is not material to verifying a voter's
identity, and the resulting injury when that person's vote is not counted.”).
Although the harm Plaintiffs allege came from the actions of Secretary
Raffensperger because his office provided the English-only ballot applications in

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this case, the speculative harm that it will occur again is not directly traceable to the
Secretary of State because “the Secretary simply does not conduct the elections at
the county level.” [Doc. 39-1 at 13]. Thus, “[b]ecause the [Secretary] didn't do (or
fail to do) anything that contributed to [their] harm,” the voters and organizations
“cannot meet Article III's traceability requirement.” Jacobson, at *11 (citing Lewis
v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (en banc)).
Nonetheless, any potential harm cannot be redressed by an order of this
Court. Secretary Raffensperger was under no legal obligation to provide the
materials Plaintiffs request. Although it may have been good policy for Secretary
Raffensperger to send out the applications in Spanish, he was not required to do so
under the VRA, and Plaintiffs were able to complete bilingual applications despite
having English-only ballot applications sent to them. Plaintiffs, therefore, do not
have Article III standing.
A. Plaintiffs’ Claims Are Moot.
A case must be dismissed when the issues presented are “no longer live.” De
La Teja v. United States, 321 F.3d 1357, 1362 (11th Cir. 2003). However, there is
an exception to the general mootness doctrine for cases that are capable of repetition
yet evading review. This exception is “limited to the situation” where there is a
“reasonable expectation that the same complaining party would be subjected to the
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same action again,” and where “the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration.” Murphy v. Hunt, 455 U.S.
478, 482 (1982) (internal quotations omitted). “The remote possibility that an event
might recur is not enough to overcome mootness, and even a likely recurrence is
insufficient if there would be ample opportunity for review at that time.” Hall v.
Sec'y, Alabama, 902 F.3d 1294, 1297 (11th Cir. 2018) (internal quotations omitted).
Here, Secretary Raffensperger is not likely to take the same challenged action
again, such that it would subject Plaintiffs to the same alleged harm in the future.
The facts in this case are unique because the federal government itself funded the
mailing of the ballot applications under the CARES Act. Otherwise, this precise
scenario involving a global pandemic is unfamiliar to our country, Secretary
Raffensperger has never distributed these voting materials in the past, and there is
no indication he will do so again. Specifically, Defendant Raffensperger has “stated
no intention to” send absentee ballot applications again for the general election, and
instead, has “professed the contrary intent,” that he does not plan to do so. Christian
Coal. of Alabama v. Cole, 355 F.3d 1288, 1292 (11th Cir. 2004). And,
Raffensperger’s indication likely “was not made so as to merely avoid a ruling by
the federal court,” but rather was made because this situation itself is inherently
unique and unlikely to present itself again. Id. Moreover, the challenged action is
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not too short in duration that it will evade meaningful judicial review. In fact, the
action was subject to review in this case and would be capable of review again if it
were to happen a subsequent time. Thus, it is not appropriate for the mootness
exception to apply in this case.
V.

MERITS ANALYSIS
A.
Plaintiffs’ Claims Under the Voting Rights Act Must be Dismissed
Pursuant to F.R.C.P. 12(b)(6).
Even if Plaintiffs have standing, Plaintiffs still lose on the merits. As this

Court described in its Order denying the Temporary Restraining Order, Secretary
Raffensperger is not a “covered political subdivision” under the VRA and thus was
under no duty to send the voting materials that Plaintiffs request. Nor is Secretary
Raffensperger required to operate the Georgia Secretary of State website in Spanish.
Consequently, Gwinnett Defendants had no duty to correct or supplement the voting
materials independently sent out by Secretary Raffensperger. [Doc. 33 at 7].
Further, the actions taken by the Secretary of State do not amount to a “conditioning
of the right to vote” on being able to understand and read English, such that it could
be subject to liability under Section 4(e) of the VRA. The claims, therefore, must
be dismissed.

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1. VRA Section 203
The Voting Rights Act of 1965 was enacted largely to remedy the systematic
exclusion of African Americans from the polls through use of devices such as poll
taxes and literacy tests. See Delgado v. Smith, 861 F.2d 1489, 1492 (11th Cir. 1988).
It was later amended in 1975 to extend the Act’s coverage to four other minority
groups, including Hispanics. To advance the Act’s purposes, any covered State or
political subdivision is prohibited from applying or imposing any voting standard or
practice “which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color.” 52 U.S.C. § 10301(a).
Specifically, whenever a covered jurisdiction “provides any registration or voting
notices, forms, instructions, assistance, or other materials or information relating to
the electoral process,” it must “provide them in the language of the applicable
minority group as well as in the English language.” 52 U.S.C. § 10503(c).
Under Section 203 of the VRA, Gwinnett County is a “covered political
subdivision.” Thus, it cannot “provide voting materials only in the English
language” and must provide them in the “language of the applicable minority group”
in the county, which is Spanish. 52 U.S.C. § 10503(b)(1). These requirements,
however, only apply “[w]henever a State or political subdivision subject to the

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prohibition of subsection (b) of this section provides” the voting materials in
question. Id. (emphasis added).
Gwinnett County did not provide the English-only voting materials to
Gwinnett County voters in this case. Instead, Secretary Raffensperger unilaterally
mailed out absentee-ballot applications in an English-only format, without any
coordination or involvement with the Gwinnett Defendants. Therefore, Gwinnett
County had no duty under the VRA to send out the bilingual applications to Gwinnett
County voters because it did not “provide” the voting materials in question. If it had,
the statutory requirements would quite plainly apply to Gwinnett County; but those
are not the facts presented to this Court in this case.
Additionally, no case that Plaintiffs have cited, or that the Court has found,
interprets Section 203 of the VRA to require an otherwise inactive jurisdiction to
correct or supplement voting materials independently distributed by another
governmental entity not subject to the VRA’s requirements. 7 Courts instead focus
on the entity that provided the materials and whether that entity is covered under the
VRA. See Delgado, 861 F.2d at 1497-97 (holding that the State’s involvement in the
administration of a citizen initiative to amend the state constitution was not sufficient

7

Plaintiffs do not appear to allege or argue that the State of Georgia is a covered
jurisdiction under Section 203 of the VRA.
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state action to trigger any obligation under Section 203 of the VRA); Padilla v.
Lever, 463 F.3d 1046, 1051 (9th Cir. 2006) (explaining that a State’s regulation of
the format of recall petitions “does not mean that the petitions are provided by the
State or subdivision” within the meaning of the VRA); Montero v. Meyer, 861 F.2d
603, 609-10 (10th Cir. 1988) (analyzing whether the petitions at issue were, in fact,
provided by the State to the electorate when determining whether plaintiffs were
likely to succeed on the merits of their Section 203 claim).
Because Gwinnett County is the covered entity in this case and because it did
not “provide” the materials in question, it had no duty to correct or supplement the
Secretary’s distribution. Moreover, Secretary Raffensperger was under no obligation
in the first place to provide the bilingual applications because the State is not a
covered jurisdiction under the Act. Therefore, Plaintiffs claims under Section 203 of
the VRA cannot withstand a motion to dismiss.
Nothing in Plaintiffs’ Motion to File a Supplemental Complaint alters that
conclusion here. Because the State is not a covered entity under the statute, the fact
that the Secretary’s website and public notices operate in English-only does not
impact the Secretary’s or Gwinnett County’s duties under the law. Section 203
applies based on the covered entity that provides the materials, “not the possibility
that voters within a covered jurisdiction may see or come across materials coming
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from outside it.” [Doc. 39-1 at 21]. Thus, these claims brought under Section 3 of
the VRA must be dismissed.
2. VRA Section 4(e)
Under Section 4(e) of the VRA, Congress has “secure[d] the rights under the
Fourteenth Amendment of persons educated in American-flag schools in which the
predominant classroom language was other than English.” 52 U.S.C. § 10303(e)(1).
To protect these rights, Section 4(e) prohibits “the States from conditioning the right
to vote of such persons on ability to read, write, understand, or interpret any matter
in the English language.” Id. In this case, Plaintiffs have alleged no facts supporting
the conclusion that Gwinnett Defendants or Defendant Raffensperger are
conditioning the right to vote on the voter’s ability to use the English language.
Regarding the Gwinnett Defendants, any voting materials provided to
Gwinnett County voters have been in Spanish pursuant to their obligations as a
covered subdivision under the VRA. The English-only absentee-ballot applications
were distributed by Secretary Raffensperger, not the Gwinnett Defendants.
Moreover, Gwinnett County provided Plaintiffs with absentee-ballot applications in
bilingual form after the Secretary’s distribution, and Plaintiffs have been unable to
establish that Gwinnett County is otherwise preventing its voters from voting in
person on Spanish ballots in any future elections. Therefore, Gwinnett County has
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not abrogated any of its responsibilities under the VRA and instead has done what
it is required to do by law.
Similarly, Secretary Raffensperger did not violate Section 4(e) because his
actions do not amount to “conditioning the right to vote” on being able to read or
understand English. Although “the right to vote” clearly entails more than simply
the “mechanics of marking a ballot or pulling a lever,”8 it does not require that every
correspondence provided by the State about voting be in English. By providing
English-only absentee ballot applications or by failing to render its website and
public statements in Spanish, Secretary Raffensperger did not transform the election
into an “English-only election process.” United States v. Berks Cty., Pennsylvania,
277 F. Supp. 2d 570, 579 (E.D. Pa. 2003). Though an election conducted entirely
in English only would likely violate Plaintiffs rights,9 Secretary Raffensperger’s
actions here did not create an English-only election, especially in light of Gwinnett
County’s continuing distribution of voting materials in Spanish through physical
materials and its website. Therefore, neither the Gwinnett Defendants nor Secretary

Arroyo v. Tucker, 372 F. Supp. 764, 767 (E.D. Pa. 1974).
See id. at 767 (noting that courts have found that “[t]he conduct of an election in
English only violates plaintiffs’ rights under the Voting Rights amendments”).
8

9

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Raffensperger have conditioned the right to vote on the ability to read and
understand English and are not subject to liability under Section 4(e).

VI.

CONCLUSION

Because Plaintiffs lack standing, have alleged claims that are no longer live,
and have failed to state claims upon which relief could be granted, Defendants’
Motions to Dismiss [Doc. 38-1, 39-1] are GRANTED.

IT IS SO ORDERED this 5th day of October, 2020.

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