Anderson et al v. Raffensperger et al
Filing
174
OPINION & ORDER. The Court GRANTS County Defendants' 105 Motion to Dismiss, GRANTS State Defendants' 106 Motion to Dismiss, and DENIES Plaintiffs' 92 Motion for Preliminary Injunction. The Court DISMISSES this action for lack of subject matter jurisdiction. Signed by Judge Michael L. Brown on 10/13/2020. (bgt)
Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 1 of 78
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Lucille Anderson, et al.,
Plaintiffs,
Case No. 1:20-cv-03263
Michael L. Brown
United States District Judge
v.
Brad Raffensperger, et al.,
Defendants.
________________________________/
OPINION & ORDER
Plaintiffs (voters and political organizations) filed a complaint and
motion for preliminary injunction asking this Court to step into Georgia’s
November 2020 Presidential Election to dictate how various counties
equip, staff, and operate their polling locations, how they train poll
workers, and how they function on Election Day. (Dkts. 1; 92.) They say
all of this is necessary because these counties (and really all of Georgia)
have “faced some of the longest average wait times to vote in the entire
county, often waiting hours to vote, with many deterred from voting and
disenfranchised.” (Dkt. 1 ¶ 3.) They claim these problems reached a
crescendo in the June 2020 Primary when “Georgia’s election system
Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 2 of 78
experienced a complete meltdown.” (Dkt. 92-1 at 1.) Finally arguing
“what’s past is prologue,” Plaintiffs say “nothing will change without
judicial compulsion,” guaranteeing lines that threaten to disenfranchise
voters in the November 2020 Election. (Dkts. 92-1 at 2; 159 at 10.)1
Plaintiffs’ motion for preliminary injunction lists the steps it asks the
Court to take to manage the November Election. Defendants move to
dismiss for lack of subject matter jurisdiction or, alternatively, for failure
to state a claim. (Dkts. 105; 106.) The Court grants Defendants’ motions
to dismiss, denies Plaintiffs’ preliminary injunction motion, and
dismisses this case for lack of subject matter jurisdiction.
I.
Background
Plaintiffs are three individuals (Lucille Anderson, Sara Alami, and
Gianella Contreras Chavez) and two political organizations (DSCC and
Democratic Party of Georgia, Inc.).
Plaintiffs Anderson, Alami, and
Chavez (together, “Individual Plaintiffs”) are registered voters in Fulton
County. (Dkts. 1 ¶¶ 12–14; 93-30 ¶¶ 2–3; 93-31 ¶¶ 2–3; 93-32 ¶ 2.) They
Plaintiffs quote The Tempest to suggest what has happened before will
happen again, that is, the past will repeat itself. Shakespeare may have
had a different meaning: that what has happened in the past sets the
stage for what is to come, including the opportunity for either greatness
or failure.
1
2
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each waited in long lines to vote in the June 2020 Primary. (Dkts. 1
¶¶ 12–14; 93-30 ¶¶ 4–7; 93-31 ¶¶ 5–6; 93-32 ¶¶ 3–7.)2 Plaintiff Anderson
went to her polling location on her way to work but, finding long lines,
could not vote. She returned that afternoon, waited in line more than an
hour, and went home because she feared she might “pass out” from the
heat. She returned about an hour later, but left without voting when she
discovered the line was even longer than before. She planned to return
at 9:00 p.m. but was too “exhausted from a full day of work and waiting
to vote in the Georgia heat” to do so. (Dkts. 1 ¶ 12; 93-30 ¶¶ 4–7.)
Plaintiff Alami arrived at her polling location 30 minutes before it opened
but still waited in line for 6 hours before voting. (Dkts. 1 ¶ 13; 93-31
¶¶ 5–6.) Plaintiff Chavez waited in line for more than 8 hours, before
finally voting at 1:00 a.m. (Dkts. 1 ¶ 14; 93-32 ¶¶ 3–7.) Each Individual
Plaintiff plans to vote in the November 2020 General Election but worries
she will have to wait in long lines in order to do so. (Dkts. 1 ¶¶ 12–14;
93-30 ¶ 9; 93-31 ¶ 8; 93-32 ¶ 8.)
Although Plaintiff Chavez now resides in Fulton County, she lived and
voted in Cobb County during the June 2020 Primary. (Dkts. 1 ¶ 14; 93-32
¶ 2.)
2
3
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Plaintiff DSCC is the national senatorial committee of the
Democratic Party. (Dkts. 1 ¶ 15; 93-63 ¶ 3.) Its mission is to elect
candidates of the Democratic Party to the U.S. Senate, including from
Georgia. (Id.) Plaintiff Democratic Party of Georgia, Inc. (“DPG”) is a
state committee responsible for the day-to-day operation of the
Democratic Party in Georgia. (Dkt. 1 ¶ 16); 52 U.S.C. § 30101(15). Its
mission is to elect Democratic Party candidates across the state. (Dkts.
1 ¶ 16; 93-60 ¶ 2.) Plaintiffs DSCC and DPG (together, “Organizational
Plaintiffs”) claim long voting lines harm their missions and require them
to divert resources as a result. (Dkts. 1 ¶¶ 15–16; 93-60 ¶¶ 17–19; 93-63
¶¶ 10–11.)
Defendants are Georgia state and county officials sued in their
official capacities. The state Defendants are the Georgia Secretary of
State and members of the Georgia State Election Board (together,
“State Defendants”).
The county Defendants are members of nine
County Boards of Registration and Elections (together, “County
Defendants”). Those boards are in Fulton, DeKalb, Cobb, Gwinnett,
Chatham, Clayton, Henry, Douglas, and Macon-Bibb Counties (together,
“Nine Counties”).
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Plaintiffs claim Defendants have repeatedly caused long voting
lines in the Nine Counties by failing to provide (1) enough polling
locations, (2) enough voting equipment, (3) enough poll workers,
(4) adequate training to poll workers, (5) enough technicians to address
equipment malfunctions and other technical issues, (6) enough time to
set up polling locations, and (7) enough backup paper pollbooks and
emergency paper ballots in case voting equipment breaks down. (Dkt. 1
¶¶ 4, 20; id. at 79.) Plaintiffs claim these failures unduly burden the
right to vote in violation of the First and Fourteenth Amendments
(Count 1); result in “extraordinary voting restrictions that render the
Voting System fundamentally unfair” in violation of the substantive
component of the Due Process Clause (Count 2); and “place[] widely
different burdens on voters across the State . . . . depending on the
counties in which they live,” in violation of the Equal Protection Clause
(Count 3).
(Id. ¶¶ 197–214.)
The complaint seeks declaratory and
injunctive relief. (Id. at 79.)
In September 2020, Plaintiffs moved for a preliminary injunction
asking the Court to order Defendants to take the following actions for the
November 2020 Election:
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(1) Defendants must use a queue formula submitted by Plaintiffs’
expert to “allocate voting machines, poll pads, scanners, and
technicians in a way reasonably calculated to minimize wait
times” at each polling location within the Nine Counties. (Dkt.
119-3 at 4–6.)
(2) Defendants must supply each polling location within the Nine
Counties with (a) “emergency paper ballots equal to or exceeding
40% of the number of registered voters assigned to a polling
place”; (b) “sufficient paper pollbook backups updated to show
who has voted through Friday, October 30, 2020, in the event of
electronic poll book malfunction”; and (c) “sufficient secure ballot
boxes to hold emergency paper ballots in the event of scanner
malfunction.” (Id. at 6–7.)
(3) State Defendants must “enact a policy requiring and issue
guidance to all county election officials instructing that poll
workers utilize the emergency backup supplies whenever the
last voter in line is expected to or does in fact wait 30 minutes or
more to cast a ballot.” (Id. at 7.)
(4) Defendants must “enact a policy requiring poll workers to
consistently monitor and record wait times every 30 minutes at
polling places.” (Id. at 7–8.)
(5) Defendants must “ensure that poll workers at polling locations
within [the Nine Counties] are adequately trained to operate all
components of the voting system . . . . [and] to address common
equipment failure issues.” (Id. at 8.)
(6) Defendants must ensure, at the Secretary of State’s expense,
that there are “sufficient technicians available for deployment at
each polling place within [the Nine Counties] on less than 30
minutes notice.” (Id. at 9.)
(7) The Secretary of State must “allocate and train at least one
technician for each 10 polling locations within a county.” (Id.)
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(8) Defendants must “enact policies requiring that the functionality
of polling equipment at each polling location be adequately
tested at each polling location within a reasonable time before
the location opens.” (Id.)
Plaintiffs say these actions are required to avoid long voting lines at the
November 2020 Election because Defendants will otherwise make the
same mistakes that have caused long lines in the past. (See, e.g., Dkt. 1
¶¶ 6, 208.) Defendants moved to dismiss in September 2020. They say
the Court lacks subject matter jurisdiction for several reasons, including
that Plaintiffs do not have standing to pursue their claims. They also
seek dismissal for failure to state a claim.
Plaintiffs sought no discovery and, in early October 2020, the Court
held a hearing on the parties’ motions. (Dkt. 124.) The Court expressed
reservations about whether Plaintiffs had presented facts sufficient to
establish the imminent injury required for standing. (See, e.g., Dkt. 159
at 5–6.) In an effort to afford Plaintiffs every opportunity to make that
showing, the Court ordered County Defendants to provide Plaintiffs with
additional information about their proposed allocation of voting
equipment and voters for the November 2020 Election. (Dkt. 159 at 123–
127.)
County Defendants have since provided Plaintiffs with that
information, as well as information about the steps they have taken
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following the June 2020 Primary to avoid the problems that plagued that
election. After Plaintiffs filed an expert affidavit predicting “long” lines
at several precincts, the Court held a second evidentiary hearing. (Dkts.
149-1; 169.) Despite this expert affidavit, the Court’s reservations about
Plaintiffs’ standing have only increased. It is now clear that Plaintiffs
lack standing to bring their claims because they have not shown they face
a certainly impending injury.
II.
Plaintiffs Lack Standing
Plaintiffs claim they will be injured by long voting lines in the Nine
Counties during the November 2020 Election. Individual Plaintiffs say
these lines will burden their right to vote. (Dkt. 111 at 3–4.) And
Organizational Plaintiffs say the lines will require them to divert
resources to help voters (including their own members) avoid
disenfranchisement. (Id. at 8–9, 11.) Because Plaintiffs point to future
injuries that depend on the existence of long lines at the November 2020
Election, Plaintiffs must show those lines are sufficiently likely to occur
— or, in the language of the caselaw, that they are “certainly impending”
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— in order to establish standing. Plaintiffs say the lines are “all but
certain” to occur. (Dkt. 118 at 17.) The Court disagrees.3
A.
General Standing Principles
“Article III of the Constitution limits federal courts to adjudicating
actual ‘cases’ and ‘controversies.’”
A&M Gerber Chiropractic LLC v.
GEICO Gen. Ins. Co., 925 F.3d 1205, 1210 (11th Cir. 2019). The doctrine
of standing “constitutes the core of Article III’s case-or-controversy
requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103–
04 (1998); see A&M Gerber Chiropractic, 925 F.3d at 1210 (“Perhaps the
most important of the Article III doctrines grounded in the case-orcontroversy requirement is that of standing.”).
“Standing cannot be
waived or conceded by the parties, and it may be raised (even by the court
To the extent Organizational Plaintiffs are diverting resources because
they believe long lines are inevitable, that is insufficient to establish
standing — they must show the lines are actually likely to occur. See
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013) (“[Plaintiffs]
cannot manufacture standing by choosing to make expenditures based on
hypothetical future harm that is not certainly impending.”); City of Los
Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983) (“It is the reality of the
threat of repeated injury that is relevant to the standing inquiry, not the
plaintiff’s subjective apprehensions.”); Greater Birmingham Ministries v.
State, 161 F. Supp. 3d 1104, 1114 (N.D. Ala. 2016) (“[S]tanding based on
diverting resources to avoid the risk of hypothetical future harm is not a
sufficient injury.”).
3
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sua sponte) at any stage of the case.” A&M Gerber Chiropractic, 925 F.3d
at 1210. Courts “have always insisted on strict compliance with this
jurisdictional standing requirement.” Raines v. Byrd, 521 U.S. 811, 819
(1997).
“[T]o satisfy Article III’s standing requirements, a plaintiff must
show (1) it has suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
“The plaintiff bears the burden of establishing each element.” Cordoba
v. DIRECTV, LLC, 942 F.3d 1259, 1268 (11th Cir. 2019). And plaintiff
must meet that burden for “each claim against each Defendant.” Warren
Tech., Inc. v. UL LLC, 2018 WL 10550930, at *5 (S.D. Fla. Oct. 31, 2018);
see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff
must demonstrate standing for each claim he seeks to press.”).
Courts “should not speculate concerning the existence of standing,
nor should [they] imagine or piece together an injury sufficient to give
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plaintiff standing when it has demonstrated none.” Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005). In other words, “[i]t is
not enough that [plaintiff] sets forth facts from which [the court] could
imagine
an
injury
sufficient
to
satisfy
Article
III’s
standing
requirements.” Id. Instead, “plaintiff has the burden to clearly and
specifically set forth facts sufficient to satisfy Art. III standing
requirements.” Id.; see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (noting that, even “at the pleading stage, the plaintiff must clearly
allege facts demonstrating each element” of standing). “If the plaintiff
fails to meet its burden, this court lacks the power to create jurisdiction
by embellishing a deficient allegation of injury.” Bochese, 405 F.3d at
976.
“[A] motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or
factual challenge to the complaint.” McElmurray v. Consol. Gov’t of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). “A facial
attack on the complaint requires the court merely to look and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and
the allegations in his complaint are taken as true for the purposes of the
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motion.” Id. “Factual attacks, on the other hand, challenge the existence
of subject matter jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and affidavits are
considered.” Id. Defendants lodge a factual attack here. (See, e.g., Dkts.
105-1 at 3–4, 6 (citing evidence outside the complaint and arguing
“Plaintiffs’ allegations do not enjoy the same degree of deference” because
this is “a challenge to jurisdiction in a factual 12(b)(1) motion”); 151 at 2–
6 (citing extrinsic evidence to challenge standing); 170-2 at 8–12
(acknowledging the Court can consider extrinsic evidence to determine
standing).) This means the “trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Makro
Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008).4
The significance of the facial/factual distinction may be limited. Even
in a facial attack, courts “are obliged to consider not only the pleadings,
but to examine the record as a whole to determine whether [they] are
empowered to adjudicate the matter at hand.” Elend v. Basham, 471
F.3d 1199, 1208 (11th Cir. 2006); see Corbett v. Transp. Sec. Admin., 930
F.3d 1225, 1235 (11th Cir. 2019) (“While we typically confine our
standing analysis to the four corners of the complaint, we may look
beyond it when we have before us facts in the record.”). There is also
authority that, in a facial attack, a court is still “free to weigh the
evidence and satisfy itself as to the existence of its power to hear the
case.” Flat Creek Transportation, LLC v. Fed. Motor Carrier Safety
Admin., 923 F.3d 1295, 1299 n.1 (11th Cir. 2019) (rejecting the argument
that a facial attack precluded the court from weighing the evidence).
4
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A plaintiff must, however, have “ample opportunity to present
evidence bearing on the existence of jurisdiction.” Morrison v. Allstate
Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000). Given the eleventh
hour at which Plaintiffs filed and briefed their motions, they have
certainly had that here. The parties have submitted substantial evidence
on the issue of standing, the Court allowed Plaintiffs to obtain additional
standing information from Defendants (even though they never
requested it), and the Court has held two hearings at which the parties
were entitled to introduce evidence (including one in which Plaintiffs’
expert testified). No one has requested more discovery, another hearing,
or additional time to present evidence.
B.
Injury in Fact
Injury in fact is “the first and foremost of standing’s three
elements.”
Spokeo, 136 S. Ct. at 1547.
“When a plaintiff seeks
prospective relief to prevent a future injury, it must establish that the
threatened injury is certainly impending.” Indep. Party of Fla. v. Sec’y,
State of Fla., 967 F.3d 1277, 1280 (11th Cir. 2020); see Jacobson v. Fla.
Sec’y of State, --- F.3d --- 2020 WL 5289377, at *4 (11th Cir. Sept. 3, 2020)
(same); see also Clapper, 568 U.S. at 410 (“[A] threatened injury must be
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certainly impending to constitute injury in fact.”).
“[A]llegations of
possible future injury are not sufficient.” Clapper, 568 U.S. at 409. Nor
is a “realistic threat,” Summers v. Earth Island Inst., 555 U.S. 488, 499–
500 (2009), an “objectively reasonable likelihood” of harm, Clapper, 568
U.S. at 410, or “a ‘perhaps’ or ‘maybe’ chance” of injury, Bowen v. First
Family Fin. Servs., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000). The
Supreme Court has said that literal certainty is not “uniformly
require[d],” and that a “substantial risk” or “substantial likelihood” of
harm may be enough “[i]n some instances.” Clapper, 568 U.S. at 414 n.5
(emphasis added); Bowen, 233 F.3d at 1340 (emphasis added).
The
required showing is ultimately “a matter of degree,” Thompson v. State
Farm Fire & Cas. Co., 2016 WL 2930958, at *3 (M.D. Ga. May 19, 2016),
and “[h]ow likely is enough is necessarily a qualitative judgment,” Fla.
State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th
Cir. 2008).
C.
Defendants’ Past Elections
Certainly Impending Injury
Do
Not
Establish
a
Plaintiffs’ prediction of long lines in November 2020 is based almost
entirely on the existence of long lines in past elections. Although “past
wrongs are evidence bearing on whether there is a real and immediate
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threat of repeated injury,” O’Shea v. Littleton, 414 U.S. 488, 496 (1974),
they are typically “insufficient alone,” Aransas Project v. Shaw, 775 F.3d
641, 648 (5th Cir. 2014); see Stanley v. Broward Cty. Sheriff, 773 F. App’x
1065, 1069 (11th Cir. 2019) (“Past exposure to illegal conduct does not in
itself show a pending case or controversy regarding injunctive relief if
unaccompanied by any continuing, present injury or real and immediate
threat of repeated injury.”). That is, courts generally “must focus on what
[defendant] has promised to do going forward,” even if defendant has a
“long and sordid history” of violations. Hoffer v. Jones, 290 F. Supp. 3d
1292, 1300–01 (N.D. Fla. 2017); see Mancha v. Immigration & Customs
Enf’t, 2007 WL 4287766, at *2 (N.D. Ga. Dec. 5, 2007) (“The focus of the
inquiry is on prospective conduct. Therefore, it follows that past exposure
to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief.”). Plaintiffs’ failure to focus on the future
here does not foreclose standing as a matter of law. See Ciudadanos
Unidos De San Juan v. Hidalgo Cty. Grand Jury Comm’rs, 622 F.2d 807,
820 (5th Cir. 1980) (finding “allegations of past illegal conduct . . .
sufficient to give rise to a strong inference that the injury will be repeated
in the future”). But it does make standing harder to establish.
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1.
Defendants’ Past Elections Were Different
The predictive value of Georgia’s past elections is simply too limited
to tell us (with the requisite certainty) what will happen in November.
Georgia revamped its voting equipment and voting process in 2020, so
elections before then reveal little about elections today. Before 2020,
Georgia used Direct Recording Electronic voting machines that, in the
words of one court, were “unreliable and grossly outdated.” Curling v.
Raffensperger, 397 F. Supp. 3d 1334, 1403 (N.D. Ga. 2019). Georgia now
uses a three-stage voting process that involves entirely different
equipment: (1) voters check in using electronic poll pads; (2) they cast
their ballots on machines known as Ballot Marking Devices (“BMDs”);
and (3) they deposit their printed ballots through optical scanners. (Dkt.
93-62 at 10.) This new approach was introduced as part of Georgia House
Bill 316,5 which made sweeping changes to the state’s voting system more
generally. These changes dilute the link between Georgia’s past and
future elections. Indeed, Plaintiffs’ own expert declined to use pre-2020
election data “in making assessments for the 2020 General Election
Georgia Act No. 24, Georgia House Bill 316, amending Chapter 2 of Title
21 of the Official Code of Georgia Annotated.
5
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because the voting machines and, as such, voting process for those
elections are different from the process that will [be] in use in the 2020
General Election.” (Dkt. 93-62 at 1 n.1.)
That leaves the June 2020 Primary. But Plaintiffs conceded at oral
argument that, however bad that election was, it does not by itself show
that the November 2020 Election will be similarly plagued by long lines.
(See Dkt. 159 at 116.) The Court agrees. The June 2020 Primary was
unique in ways that make it an unreliable guide to future elections. It
was the first election in which Defendants used their new voting
equipment and voting process.
And it was the first election that
Defendants administered during the global COVID-19 pandemic. (See,
e.g., Dkts. 108-1 ¶ 4 (“[t]he June 9 primary was the most unique
circumstances I have ever encountered in an election” due to the “new
voting system” and the “global pandemic”); 108-2 ¶ 3 (same); 108-3 ¶ 6
(noting “unique challenges” based on “an unprecedented global
pandemic” and “newer voting equipment”).)
There is no doubt that these two features contributed substantially
to long lines in June 2020. The introduction of new voting machines, for
example, led to problems as simple as one county discovering on the eve
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of Election Day that the new machines were so much bigger than the old
ones that the county did not have enough trucks to deliver them to polling
locations in time for opening. (Dkts. 142-1 ¶¶ 3–4; 159 at 84; see also
Dkts. 108-1 ¶ 9; 108-2 ¶ 6.) To make matters worse, the pandemic limited
the extent to which poll workers received training on these new
machines. (See, e.g., Dkts. 128-1 ¶¶ 5 (“[O]pportunities for poll worker
training were negatively impacted by COVID-19.”); 142-1 ¶ 9 (“Given the
nature of the pandemic, our training opportunities for poll workers were
extremely limited ahead of the June 9 primary.”).) Workers thus were
not always prepared to operate the machines on Election Day. Many
counties also lost “a significant number of polling places,” as well as
“hundreds of regular poll workers,” due to the pandemic. (See, e.g., Dkts.
108-1 ¶¶ 5, 11; 108-2 ¶¶ 5, 7; 108-3 ¶ 7.)
These disruptions were not limited to the Nine Counties or, indeed,
to Georgia. “Longer than usual lines [were] reported in cities across the
country,” suggesting that the pandemic was behind many of the problems
and that this year’s primaries were far from normal across the board.
https://www.politico.com/news/2020/06/09/georgia-primary-electionvoting-309066 (cited at Dkt. 111 at 4 n.1). The November 2020 Election
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will also take place during the pandemic, of course.
But this time
Defendants have had months to prepare for it based on the experience
and lessons of a prior “pandemic election.”
2.
Defendants Have Made
November 2020 Election
Changes
for
the
Defendants have taken steps to ensure that the long lines of June
will not be repeated in November. This further reduces the predictive
value of the June 2020 Primary (and earlier elections).6
a)
Statewide
Plaintiffs say certain counties have experienced long voting lines
because they lack sufficient poll workers, technicians, backup paper
pollbooks, and emergency paper ballots. Georgia officials have taken
steps to address those issues across the state:
Poll Workers: The Secretary of State is partnering with the
U.S. Election Assistance Commission to help counties recruit
Cobb County Defendants “have made significant changes to their voting
machine allocation” but do not otherwise identify specific changes for the
November 2020 Election. (Dkt. 148 at 17.) Plaintiffs admit that, based
on their own expert’s analysis, “Cobb County does not have any locations
that are predicted to have voting lines of over 30 minutes during peak
times due to voting machine allocation.” (Id.) Chatham County
Defendants also have not identified specific changes for the November
2020 Election. But there is little evidence of their plans one way or the
other, much less that they are insufficient.
6
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enough poll workers. (Dkt. 110-6.) The Secretary has also
established a website to facilitate recruitment of poll workers.
(Dkt. 110-7.)
Technicians: Recognizing that technical issues with voting
equipment contributed to problems during the June 2020
Primary, the Secretary of State has taken steps to increase
technical assistance to the counties. Specifically, the state’s
“vendor is increasing the number of Election Day technicians
available, aiming to have a contracted technician available for
each polling place.” (Dkt. 110-5 ¶ 5.) This far exceeds Plaintiffs’
request for the state to provide one technician for every ten
polling places. (Dkt. 119-3 at 9.)
Backup Supplies: Voting locations will now have at least one
backup paper pollbook and “a sufficient stock of emergency paper
ballots” for the November 2020 Election.
Curling v.
Raffensperger, 2020 WL 5757809, at *25 (N.D. Ga. Sept. 28,
2020).
Additional Measures: The state has also expanded absentee
and early voting options across Georgia. (See, e.g., Dkts. 110-8;
110-10; 110-15 at 6.)
b)
Fulton County
Plaintiffs allege that long lines have repeatedly occurred at certain
voting locations within Fulton County over the past decade. (Dkt. 1 ¶¶
63–99.) Plaintiffs say these lines were caused by insufficient voting
locations, insufficient voting equipment, poor planning, equipment
malfunctions and insufficient technical support, understaffing of voting
locations, inadequate poll worker training, problems with absentee ballot
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voting, and insufficient emergency paper ballots. (Id.) Plaintiffs claim
Fulton County Defendants will again make these mistakes in November
2020. (See, e.g., Dkt. ¶¶ 6, 98–99, 208.)7
But the evidence shows Fulton County has taken steps to address
the problems Plaintiffs identify.
Plaintiffs allege, for example, that
Fulton County voters endured long lines in June 2020 because of
consolidated polling locations, most notably the Park Tavern location
where Futon County directed 16,000 registered voters. (Dkt. 1 ¶ 88; see
also Dkt. 93-24 at 3 (“[M]ore than 16,000 Atlantans were assigned to vote
[at Park Tavern] after two polling places backed out.”).) Fulton County
has since removed two precincts (about 12,000 voters) from that location.
(Dkt. 110-15 at 5.) And, beyond Park Tavern, it has reassigned more
than 170,000 Fulton County voters to different polling places for the
upcoming election.
(Dkt. 110-5 at 1.)
Indeed, the county has
dramatically increased its voting locations from 164 in June 2020 to 255
in November 2020. (Dkt. 147-1 ¶ 5.) Only 4 of these locations have more
than 5,000 assigned voters, meaning the county now “has fewer voters
Plaintiffs generally allege that each Defendant will repeat their past
mistakes in the upcoming November 2020 Election. (See, e.g., Dkt. 1
¶¶ 6, 208.)
7
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assigned per precinct than at any time during the tenure of its current
Elections Department director.” (Id. ¶ 6.)
A senior Fulton County election official provided other evidence the
county has “made significant changes to address [past] issues and to
facilitate a better voting experience in the November election.” (Dkt. 1471 ¶ 4.) Those changes include the following:
Voting Equipment: Fulton County has “purchased millions of
dollars of voting equipment” and now has at least one BMD for
every 250 registered voters. (Id. ¶ 8.) It has also purchased two
mobile voting units to help alleviate lines at any voting locations
requiring assistance. (Id. ¶ 9.) Plaintiffs concede that Fulton
County has “made significant changes to their voting machine
allocation” and that this puts the county at “lower risk” of long
lines in November. (Dkt. 148 at 17.)
Technical Issues: Fulton County has assigned a technician to
each polling location (to arrive by 5 a.m.), ensured each location
can accommodate its voting equipment, deployed a new
electronic communication system to ensure voting locations can
obtain “additional technological help,” and has purchased items
to reset poll pads if they experience problems. (Dkt. 147-1 ¶ 10.)
Poll Workers: Fulton County has “revamped” its poll worker
training to “provide more hands-on opportunities to prepare
equipment and to understand the procedures.” (Dkt. 108-2 ¶ 8.)
It has also hired 510 line managers and created an additional
call center to handle election day calls from the voting locations.
(Dkt. 147-1 ¶ 10.)
Voting Alternatives: Fulton County has expanded early
voting and absentee voting. It will have 30 polling locations —
including 3 “mega sites” — open for early voting for 3 weeks
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(including weekends). (Id. ¶ 7.) It has created an online portal
for absentee ballot applications, almost doubled its number of
absentee ballot drop boxes, and created a smartphone
application to help voters with several aspects of voting.
(Id. ¶¶ 11–13.)
Emergency Paper Ballots: Fulton County has doubled the
amount of emergency paper ballots at each voting location,
exceeding the state law requirement by a factor of two. (Id. ¶ 10).
c)
DeKalb County
Plaintiffs allege that long lines occurred at certain voting locations
within DeKalb County in 2008, 2016, 2018, and June 2020. (Dkt. 1
¶¶ 100–115.) Plaintiffs say these lines were caused by the consolidation
and relocation of voting locations, equipment malfunctions, insufficient
technical support, understaffing, insufficient training of poll workers,
and insufficient emergency paper ballots. (Id.)
But a senior DeKalb County election official has presented evidence
that the county is taking steps to shorten lines for the November 2020
Election “based on lessons learned and experience from the June 2020
primary and August 2020 run-off election.” (Dkt. 143-1 ¶ 6.) Those steps
include the following:
Voting Locations: Only 2 of DeKalb County’s 176 precincts
now have more than 5,550 registered voters. (See Dkt. 127-1.)
Where the pandemic has required precincts to be consolidated
into a single voting location, the county will maintain “separate
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voting lines, registration, machines and poll workers for each
precinct.” (Dkt. 143-1 ¶ 4.) The county does not expect “any
shortage of polling places.” (Id. ¶ 5.)
Technical Issues: In addition to the technicians provided by
the state, the county will provide at least 20 technicians of its
own. (Id. ¶ 15.)
Poll Workers: DeKalb County has “increased recruitment
efforts for poll workers” and has now secured 1,800 workers as
well as “additional back-up poll workers” in case of cancellations.
(Id. ¶¶ 9–10.) The county “expects there to be a sufficient
amount of poll workers staffed at each of the polling places.” (Id.
¶ 8.)
Training: DeKalb County “has already commenced training
poll workers” (including backup workers) and “is providing
improved training” for the November 2020 Election. (Id. ¶¶ 10–
11.) This will include “in-person training” and “a live simulation
of the entire voting process from start to finish.” (Id. ¶ 11.)
Emergency Paper Ballots: DeKalb County expects to have
“a sufficient amount of emergency paper ballots” at each voting
location, and “has the capacity to print [and deliver] additional
emergency paper ballots on Election Day” if necessary. (Id. ¶¶ 8,
13.) The ability to print emergency paper ballots goes directly
to Plaintiffs’ claim that County Defendants have insufficient
paper ballots at the polling locations.
Voting Alternatives: DeKalb County will have 12 early voting
locations open for almost 3 weeks (including weekends). (Id. ¶
3.) The county also has “taken steps to improve the efficiency of
the absentee voting process,” including by acquiring new
scanning equipment and engaging a non-profit organization with
expertise in absentee voting. (Id. ¶ 14.) The county is sending
absentee ballot applications to all registered voters and is
placing 24 absentee ballot boxes throughout the county. (Id. ¶¶
17–18.)
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Line-Tracking: DeKalb County will deploy a new software
application that allows voters and the county to monitor line
length at all voting locations. (Id. ¶ 16.)
d)
Gwinnett County
Plaintiffs allege long lines occurred at certain voting locations
within Gwinnett County in 2016, 2018, and June 2020. (Dkt. 1 ¶¶ 129–
142.)
Plaintiffs say these lines were caused by polling place
consolidation, technical issues, understaffing, inadequate training of poll
workers, and the delayed delivery of equipment to voting locations. (Id.)
But a senior Gwinnett County official presented evidence that the
county “has taken a number of steps to learn from the June primary and
prepare for the November election.” (Dkt. 108-1 ¶ 5; see Dkt. 142-1 ¶ 12.)
Those steps include:
Voting Equipment: Gwinnett County has “made significant
changes to their voting machine allocation,” which Plaintiffs
concede puts them at “lower risk” of long lines. (Dkt. 148 at 17.)
Poll Workers: Gwinnett County has “added more in-person
training opportunities for poll workers who will be working in
the November election.” (Dkt. 142-1 ¶ 9; see Dkt. 108-1 ¶¶ 12–
16.) That training is now well underway. (Dkt. 108-1 ¶¶ 15–16.)
The county also has “added additional individuals for November
to ensure that all polls will be adequately staffed.” (Dkt. 142-1
¶ 10.)
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Equipment Delivery: Gwinnett County has secured “more
trucks and drivers” for equipment delivery and established a
“better communication” system with its transportation
contractor.
(Id. ¶ 5.)
The county also has revised its
“instructions for [equipment] logic and accuracy testing” in
advance of delivery. (Id. ¶¶ 7–8.) The county implemented these
changes in an August 2020 election and “all equipment was
delivered and set up well in advance of the start of voting.” (Id.
¶¶ 5, 8.) The county expects no delivery issues in November
2020. (Id. ¶ 6.)
Alternative Voting: “For the first time ever, Gwinnett County
will open nine early-voting locations for all three weeks of early
voting.” (Id. ¶ 11.)
e)
Clayton County
Plaintiffs allege long lines occurred at certain voting locations
within Clayton County in 2008, 2018, and June 2020. (Dkt. 1 ¶¶ 157–
167.) Plaintiffs say these lines were caused by the consolidation of voting
locations, insufficient poll workers, inadequate training, technical issues,
and insufficient emergency paper ballots. (Id.)
But a senior Clayton County official has provided an affidavit
showing the county is making changes for the November 2020 Election.
(Dkt. 140.) Those changes include:
Voting Locations: Clayton County has increased its voting
locations from 58 in June 2020 to 65 in November 2020. (Id. ¶
4.) The county is monitoring early and absentee voting so it can
adjust its equipment allocations based on unanticipated voting
patterns. (Id. ¶ 10.)
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Poll Workers: Clayton County is providing in-person training
to poll workers. (Id. ¶ 12.) Training is offered 6 days per week,
several times per day. (Id.) The county has reduced class sizes
to 20 workers. (Id.)
f)
Henry County
Plaintiffs allege long lines occurred at certain voting locations
within Henry County in June 2020. (Dkt. 1 ¶¶ 168–174.) Plaintiffs say
these lines were caused by the consolidation of voting locations,
understaffing, inadequate training, and technical issues. (Id.)
But a senior election official provided evidence the county is making
changes “based on lessons learned and experience from the June 2020
primary and August 2020 run-off election.” (Dkt. 108-3 ¶ 6.) Those
changes include:
Voting Equipment: Henry County has secured 55% more poll
pads, 117% more ballot marking devices, and about 30% more
scanners than it had for the June 2020 Primary. (See Dkt. 1491 at 9.)
Poll Workers: Henry County “has increased recruitment
efforts for poll workers” by working with the state and other local
organizations. (Dkt. 108-3 ¶ 7.) It has now secured “a sufficient
number of poll workers” for each polling place, as well as backup
workers in case of cancellations. (Id.)
Training: Henry County is “improving training” for poll
workers by requiring each worker to “perform[] a live simulation
of the entire voting process” before the election. (Id. ¶ 9.) The
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county will provide this training to backup workers as well. (Id.)
The training program has already begun and will last for more
than 3 weeks. (Id. ¶ 8.)
Backup Paper Supplies: Henry County expects to have
“a sufficient amount of emergency paper ballots,” and will keep
a paper list of voters at each voting location in case electronic
poll pads malfunction. (Id. ¶¶ 6, 10.)
g)
Douglas County
Plaintiffs allege long lines occurred at three voting locations within
Douglas County in June 2020 due to technical issues. (Dkt. 1 ¶¶ 175–
181.)
Douglas County has since determined that those issues were
largely caused by insufficient “on-site technical support” and human
error by an election manager. (Dkt. 146-1 ¶¶ 5–6.) The county has
replaced the manager responsible and secured “an on-site technician for
every polling location during the November 2020 election.” (Id.) The
county also has taken other steps to ensure a smooth election in
November:
Voting Equipment: It has “increased the number of poll pads,
BMDs, and ballot scanners to many of its precincts.” (Dkt. 1461 ¶ 7.)
Alternative Voting: It has increased its early voting locations
from 5 in June 2020 to 8 in November 2020 — and it has notified
voters of these new locations by email. (Id. ¶ 4.) The county also
has mailed absentee ballot applications to all registered voters.
(Id.)
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h)
Macon-Bibb County
Plaintiffs allege long lines occurred at certain voting locations
within Macon-Bibb County in 2012, 2016, 2018, and June 2020. (Dkt. 1
¶¶ 182–189.)
Plaintiffs say these lines were caused by insufficient
training, technical issues, understaffing, and delays setting up
equipment on Election Day. (Id. ¶¶ 183–186.) But Macon-Bibb County
has taken steps to address these issues and to otherwise ensure a smooth
election in November:
Set-Up Delays: Poll workers will now arrive earlier to set up
the voting equipment. (Dkt. 128-1 ¶ 5.)
Staffing: Macon-Bibb County has secured 357 poll workers for
its 31 voting locations. (Dkt. 128-3.) It says it “will have enough
. . . poll workers to accommodate each and every polling location
in” the county. (Dkt. 128-1 ¶¶ 9–10.)
Training: Macon-Bibb County is now conducting “in-person,
hands-on poll worker training.” (Id. ¶ 6.) Training for the June
2020 Primary was “almost exclusively virtual.” (Id. ¶ 6.)
i. Conclusion
The evidence shows Defendants have taken extensive measures to
address the issues that caused long lines in the past. It is possible, of
course, these measures will ultimately prove insufficient and long lines
will still arise. But that is not the point; no one, including this Court, can
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guarantee short lines. See Georgia Shift v. Gwinnett Cty., 2020 WL
864938, at *5 (N.D. Ga. Feb. 12, 2020) (“This Court cannot guarantee that
voters will not have to stand in line.”). The point is these measures
materially distinguish the November 2020 Election from the June 2020
Primary (and earlier elections) — and this precludes the Court from
assuming June (or the more distant past) will repeat itself in November.
3.
Plaintiffs’ Cases are Unavailing
Plaintiffs cite O’Shea, 414 U.S. 488 and Lynch v. Baxley, 744 F.2d
1452, 1456 (11th Cir. 1984) in support of their theory that Defendants’
past conduct establishes imminent injury. (Dkt. 111 at 4–5.) But the
O’Shea court found there was not standing, rejecting the argument that
defendants’ “pattern and practice of conduct” established imminent
injury.
O’Shea, 414 U.S. at 493–99.
And although the court
acknowledged that “past wrongs are evidence bearing on whether there
is a real and immediate threat of repeated injury,” it also said that “[p]ast
exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief.” Id. at 495–96.
Lynch is equally unhelpful. The court there held plaintiff was
“realistically threatened by a repetition of his experiences and therefore
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ha[d] standing to seek the requested injunction.”
744 F.2d at 1457
(emphasis added). But Lynch was decided years before the Supreme
Court expressly adopted the heightened standing requirement of a
“certainly impending” injury. Whitmore v. Arkansas, 495 U.S. 149, 158
(1990) (“A threatened injury must be certainly impending to constitute
injury in fact.”). And, more recently, the Court has squarely rejected an
attempt to “replace the requirement of imminent harm . . . with the
requirement of a realistic threat” of injury — the very standard on which
the Lynch court relied. Summers, 555 U.S. at 499–500; see Georgia Shift,
2020 WL 864938, at *3 (“In Summers, the Supreme Court rejected a
standing test that would replace the requirement of ‘imminent’ harm
with the requirement of ‘a realistic threat.’”). Given these developments,
Lynch is not useful guide here.8
Lynch is also distinguishable on the facts. The plaintiff there sought to
enjoin the state from “detaining in county jails persons awaiting mental
illness involuntary commitment proceedings.” 744 F.2d at 1454. The
court said he had standing including because (1) he had been
incarcerated twice in the last three years while he awaited commitment
proceedings, and (2) the state had “ordered the possibly mentally ill
detained in three-fourths of the county jails in the state.” Id. at 1456–57.
But the court did not focus only on historical facts. The court emphasized
that plaintiff suffered from an existing “mental condition,” that a statute
expressly authorized the state to incarcerate those awaiting commitment
8
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Plaintiffs’ strongest authorities are actually cases they fail to cite:
Ciudadanos, 622 F.2d 807 and 31 Foster Children v. Bush, 329 F.3d 1255
(11th Cir. 2003). But even those cases do not establish imminence here.
Ciudadanos involved a Texas statute that left the “selection of potential
grand jurors . . . entirely to the discretion of the jury commissioners.” 622
F.2d at 811.
Plaintiffs sued the commissioners, claiming they
systematically excluded members of plaintiffs’ demographic group from
jury selection in violation of the Fourteenth Amendment. Id. at 812–13.
The court found plaintiffs had standing to seek injunctive relief because
(1) “the very nature of the Texas selection scheme” was “highly subjective
and susceptible to abuse”; (2) the commissioners had, for “over ten
years[,] . . . consistently produced grand juror lists upon which the classes
to which [plaintiffs] belong have been substantially underrepresented”;
proceedings, that the state admittedly continued to invoke the statute,
that “mental health facilities are not available in certain counties,” and
that jails were the only facilities “routinely available” for many people
awaiting commitment proceedings. Id. All of these facts were present
and ongoing, rather than historical, making them plausibly predictive of
future harm. In contrast, Plaintiffs here focus largely on historical facts
— long lines at past elections. They say little about present and ongoing
facts that make long lines likely in the future.
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and (3) this evidence was “sufficient to give rise to a strong inference that
the injury will be repeated in the future.” Id. at 820–21.
31 Foster Children involved a putative class action brought by
several children in Florida’s foster care system. 329 F.3d at 1260. The
children claimed that Florida’s foster care officials consistently provided
them with terrible care in violation of the U.S. Constitution. Id. at 1260–
61, 1264–65. The court found the children established an imminent
injury because (1) “[t]hey cannot avoid exposure to the defendants’
challenged conduct” and (2) “[t]he alleged systemic deficiencies in the
Florida foster care system are similar to an injurious policy.” Id. at 1266.
Ciudadanos and 31 Foster Children stand for the proposition that
past wrongs can predict future wrongs if there is a long record of wrongs
and no reason to think they will not continue. But that is not our case.
Defendants here have taken substantial steps to address the issues that
caused long lines in the past. So the Court cannot assume those issues
will continue in the future based only on their existence in the past —
especially
when
there
are
unique
33
elements
about
the
past
Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 34 of 78
(e.g., the intersection of a new voting system and a new pandemic).9 The
bottom line is that past is not necessarily prologue here. The Court
rejects Plaintiffs’ argument that, because long lines have occurred in the
past, they are certainly impending in November 2020.10
D.
Plaintiffs’ Expert Predictions Do Not Establish a
Certainly Impending Injury
To bolster their contention that Defendants are likely to repeat the
failures of the past, Plaintiffs have retained Dr. Muer Yang to predict
November 2020 Election Day wait times at polls in seven of the Nine
Counties.11 Dr. Yang is an associate professor of operations management
at a university in Minnesota. (Dkt. 93-62 at 2.) His predictions are based
largely on the number of voters assigned to each polling location and the
amount of voting equipment available to accommodate those voters.
As explained above, Georgia’s pre-2020 elections are also
distinguishable from today’s elections because they used a different
voting system.
10 Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994) also relied
on past wrongs to predict future wrongs. But it has little in common with
our case. In Church, unlike here, there was no reason to believe
defendants would change their conduct going forward. Indeed, there was
every reason to believe they would continue their conduct because it was
part of “a well organized and coordinated campaign” — an intentional
and ongoing municipal policy — to cause the injuries about which
plaintiffs complained. Id. at 1339.
11 Dr. Yang offers no prediction for Chatham County or Clayton County.
9
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Dr. Yang initially submitted a declaration in which he offered
predictions for only Henry and Fulton Counties (“First Report”).
(Dkt. 93-62 at 40–45, 48–51.) But his analysis was based on the counties’
equipment allocation during the June 2020 Primary and, as explained
above, both counties are making significant adjustments to alleviate the
problems they experienced in that election. As mentioned above, in an
effort to afford Plaintiffs the opportunity to show the requisite certainty
of a future injury for standing, the Court (at the close of its first hearing)
ordered County Defendants to provide Dr. Yang with additional data so
he could perform his analysis for all Nine Counties based on their
equipment and voter allocations for the November 2020 Election.
Specifically, the Court ordered County Defendants to provide Plaintiffs
the number of registered voters assigned to each polling location and the
number of BMDs, scanners, and poll pads assigned to each of those
locations for both the June 2020 Primary and the upcoming November
2020 Election. (See Dkts. 125; 138; 159 at 119–127.) This was the very
information Plaintiff’s sought in their preliminary injunction motion so
that Dr. Yang could calculate wait times at each polling place in
November. (Dkt. 119-3 at 5.)
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Dr. Yang has now submitted a second declaration, redoing his
analysis for Henry and Fulton Counties and offering new predictions for
the remaining counties (“Second Report”).
(Dkt. 105-1.)
Dr. Yang
predicts wait times of at least 30 minutes — which he defines as “long”
— at certain voting locations within Fulton County, Gwinnett County,
Macon-Bibb County, Henry County, Douglas County, and DeKalb
County. Plaintiffs say this shows long lines are certainly impending at
those locations. The Court disagrees.12
In their complaint and personal declarations, Plaintiffs repeatedly say
their injuries will be triggered by “long lines.” (See Dkts. 1 ¶¶ 12–16; 9330 ¶ 9; 93-31 ¶ 8; 93-32 ¶ 8; 93-60 ¶¶ 10, 18–19; 93-63 ¶¶ 10–11.) They
never say (at least for the purposes of their alleged injury) that “long”
means “30 minutes”; indeed, they often suggest it means something
closer to hours. (See, e.g., Dkts. 1 ¶¶ 12–14 (complaining about hourslong lines); 93-30 ¶ 9 (“I am concerned I will have to wait in hours long
lines again.”); 93-31 ¶ 8 (“I am concerned about . . . wait[ing] in line for
hours to cast my vote.”); 93-32 ¶ 8 (“I do not know if I will be able to stand
in line for eight hours” and “[s]tanding in line . . . for hours puts me at
risk of contracting COVID-19”); 93-60 ¶¶ 6–9 (referring to “[l]ong lines
with up to two-hour wait times,” three-hour waits, “voters waiting for
several hours,” and “eight-hour lines”); 93-63 ¶ 9 (referring to “voters
wait[ing] up to eight hours”).) There is no evidence or allegation that
Individual Plaintiffs are worried about standing in a line that is 31
minutes instead of 29 minutes. Nor is there any evidence or allegation
that Organizational Plaintiffs will decide whether to divert resources
based on that distinction. It is unclear whether Plaintiffs may now, postpleading, redefine their injury in the way they seek to do. But, for the
purposes of assessing Plaintiffs’ evidence, the Court will consider
Dr. Yang’s 30-minute barrier.
12
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1.
Dr. Yang’s Methodology
As explained earlier, Georgia uses a three-stage voting process:
(1) voters check in using electronic poll pads; (2) they cast their ballots on
BMDs; and (3) they deposit their printed ballots through scanners. The
following graphic illustrates how the process works:
(Dkt. 93-62 at 11.)
In his analysis, Dr. Yang predicts voters’ wait times at each stage
of the voting process (check in, cast ballot, deposit ballot) and then adds
those waits together to predict voters’ total wait time. (Dkt. 93-62 at 11.)
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He does this for each voting location within the counties he studied. He
estimates both the average wait time and the maximum wait time at each
location.13 He calculates two average wait times for each location: one,
using a queue formula known as M/M/c; and the other, using a
simulation model developed by someone called Mark Pelczarski. He also
uses the simulation model to calculate the maximum wait time at each
location.
Dr. Yang’s predictions (whether calculated under M/M/c or the
simulation model) are based on four main inputs: (1) the number of voters
expected to vote at each voting location on Election Day in November
2020, (2) the rate at which voters will arrive at those locations throughout
the day, (3) the amount of voting equipment allocated to each location,
and (4) how long it will take voters to use that equipment once they access
it. (See Dkt. 93-62 at 11–12.)
Notice that inputs (1), (2) and (4) depend on “how independent
decisionmakers will exercise their judgment” in the November 2020
“Average wait time at a polling place is the sum of every voter’s wait
time divided by the total number of voters turned out at this poll.” (Dkt.
93-62 at 6 n.5.) “The maximum wait time is the average of wait times of
voters arriving during the worst 15-minute intervals throughout the
day.” (Dkt. 149-1 at 11 n.16.)
13
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Election: whether thousands of individual registered voters will decide to
vote; if so, using what method; if in person, on what day; if on Election
Day, at what time and how long on each machine. Clapper, 568 U.S. at
413. As a matter of law (rather than science), this raises immediate red
flags because standing is “substantially more difficult to establish” where
it “depends on the unfettered choices made by independent actors not
before the courts and whose exercise of broad and legitimate discretion
the courts cannot presume either to control or to predict.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 562 (1992); see Clapper, 568 U.S. at 413
(“[W]e have been reluctant to endorse standing theories that require
guesswork as to how independent decisionmakers will exercise their
judgment.”). Moreover, any “theory of standing, which relies on a highly
attenuated chain of possibilities, does not satisfy the requirement that
threatened injury must be certainly impending.” Clapper, 568 U.S. at
410. There is no doubt that Dr. Yang’s predictions do rely on a chain of
possibilities or a sequence of uncertain assumptions. That, too, raises
red flags.
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2.
General Problems with Dr. Yang’s Predictions
In addition to the legal red flags mentioned above, the Court has
several concerns with Dr. Yang’s methodology and assumptions. First,
he never fully explains the M/M/c queue theory or the simulation model
on which his predictions are based. He says, in a footnote in his reports,
that the M/M/c model “assumes that a voter’s arrival process follows a
Poisson distribution, the service time follows an exponential distribution,
and c servers in the queue system.” (Dkts. 93-62 at 9 n.7; 149-1 at 4 n.6.)
That is not exactly illuminating.
He says “[s]imulation models are
another popular method used to study waiting lines” because they
“capture more dynamic characteristics of queues” (some of which he then
identifies). (Dkt. 149-1 at 2.) But that hardly tells the Court what the
simulation model actually is. There are, of course, other insights into
both models scattered throughout his reports — for example, that
M/M/c assumes “voters will arrive at a constant rate throughout the
day” whereas the simulation model does not — but no ordinary person
can walk away from Dr. Yang’s report feeling clear about either
approach.
(Id.) That suggests the Court should be cautious before
deferring to them.
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Second, Dr. Yang assumes voters will spend 45 seconds checking in
with a poll pad and 20 seconds depositing their printed ballot in the
scanner. (Dkt. 149-1 at 7.) But he assumed a check-in time of 30 seconds
in his First Report and does not explain why he now believes it will be
50% longer. (Dkt. 93-62 at 12.) He admits “a small number of polling
places will be affected by this 15-second increase” — meaning it causes
them to exceed his 30-minute barrier — though he does identify which
places those are. (Dkt. 170-2 at 26.) Dr. Yang also assumed, in his First
Report, that voters would spend 14 seconds depositing their ballots in the
scanner. (Dkt. 93-62 at 49.) That assumption was based on a video
demonstration of the voting process, which showed a voter spending
14 seconds at the scanner. (Dkt. 93-62 at 12.) He does not explain why
he now believes that time will be 43% longer. Nor does he say how much,
or at what locations, this increase affected his projections.14
Dr. Yang also uses a formula, based on voting data in South Carolina,
to predict the amount of time voters will spend using a BDM to cast their
ballot. (Dkt. 170-2 at 26–27.) Although he says the “overall logic behind
th[e] model” applies to Georgia, he says “local election officials” might
determine the real number is “shorter” or “longer” based on
circumstances in their own jurisdictions. (Id. at 27–28.)
14
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Third, there are serious problems with Dr. Yang’s calculation of
expected in-person voters on Election Day in November 2020 — a key
input on which his calculations are based.
In his First Report, he
assumed for Henry County that roughly the same percentage of
registered voters who voted on Election Day in November 2016 would do
so again in November 2020 (minus an anticipated increase in absentee
voting due to COVID-19).
(Dkt. 93-62 at 40–41.)
Now he says the
number will be 40% of the total voter turnout in November 2020
(“40% Methodology”). (Dkt. 149-1 at 8.)15 He gets this 40% figure from
an online national poll (dated July 2020) that asked: “Thinking ahead to
the (2020 presidential) election in November, would your preference be
to vote in person on Election Day, vote in-person early, or vote by mail?”16
(Dkt. 149-1 at 8.) But somebody’s preference for a particular voting
method says little about the method they intend to use. No doubt lots of
people would prefer to vote in person. But many will not do so because
His Second Report applies the 40% Methodology to all counties other
than Douglas County. For that county, he uses projections apparently
provided by the Secretary of State. There is no evidence of how those
projections were calculated. (Dkt. 170-2 at 29–30, 35–36, 86–87.)
16 The poll is available at
https://ropercenter.cornell.edu/psearch/question_view.cfm?qid=1958132
&pid=50&ccid=50#top.
15
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other considerations — like the pandemic or personal responsibilities —
outweigh that preference. (See Dkt. 93-62 at 40 (“Due to the Covid-19
pandemic, voting by mail is expected to be much higher than in previous
elections.”); Dkt. 170-2 at 95.)
Dr. Yang then applies his 40% figure to the total number of people
expected to vote in November 2020. To determine this latter number, he
applies what he believes to be the overall turnout rate at each precinct in
November 2016 to the total number of registered voters assigned to that
precinct today.
He gets the November 2016 turnout rate from the
Georgia Secretary of State’s website. (Dkt. 149-1 at 8 n.13.) But that
website appears to report conflicting rates for each county.
And,
although Dr. Yang does not know which rate is accurate, his report
generally uses the higher one. (See Dkt. 170-2 at 40–44, 48–50.)17
One
set
of
rates
is
located
at
https://sos.ga.gov/index.php/Elections/current_and_past_elections_resul
ts;
another
at
https://sos.ga.gov/index.php/elections/general_election_turnout_by_dem
ographics_november_2016. For example, the former says turnout rate
was 75% in Fulton County in November 2016. But the latter says that
rate was 57%. Dr. Yang includes the higher rate (75%) in his report.
(Dkt. 149-1 at 22.) There are similarly conflicting numbers for Douglas
County (78% vs. 63%), Macon-Bibb County (72% vs. 60%), and other
17
43
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Dr. Yang testified at his evidentiary hearing that he now prefers
his second methodology for predicting election day voters in November
2020 (40% x projected overall turnout) because the COVID-19 pandemic
makes the November 2016 data less reliable. (See, e.g., Dkt. 170-2 at 44–
45, 84–85.) But this does not account for the unreliability of the 40%
number itself (pulled from a poll about preferences rather than plans or
past performance). Nor is the assertion credible since (1) Dr. Yang’s First
Report used the very methodology he now criticizes and (2) his Second
Report still relies on data (overall turnout) from the November 2016
Election. Indeed, even at his evidentiary hearing, Dr. Yang testified that
“you can pick [his first methodology] to project election voters this year.”
(Dkt. 170-2 at 50; see also id. at 61 (“[Y]ou can argue either way.”), 72
(“[Y]ou can probably do that.”).)
He further testified that the 40%
Methodology “was just presenting you [with] another case” but that it
was up to officials’ “local elections judgment” to decide how “likely” that
scenario was. (Dkt. 170-2 at 72.) The problems with Dr. Yang’s 40%
counties. (See Dkt. 149-1 at 17, 25 (Dr. Yang citing the higher rate for
Douglas and Macon-Bibb Counties).)
44
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Methodology are explored in more detail in the Court’s analysis of Henry
County below.
3.
Dr. Yang’s Predictions Fall Short in Each County
The Court now looks at Dr. Yang’s specific predictions for the
counties he studied. His predictions ultimately establish no more than a
possibility — not even a reasonable likelihood — of long voting lines in
November 2020. Under binding precedent, that is not enough to show
standing.
a)
Cobb, Fulton, Gwinnett, and Macon-Bibb
Counties
Having received Dr. Yang’s Second Report, Plaintiffs concede that
“Cobb County, Fulton County, and Gwinnett County have made
significant changes to their voting machine allocation and, due to those
re-allocations, appear to be at a lower risk for voting lines of over 30
minutes long, at least due to machine allocation.” (Dkt. 148 at 17.)
Although Plaintiffs do not say so explicitly, Macon-Bibb County is clearly
“lower risk” as well since its projected wait times are even lower than
Fulton County’s (and about the same as Gwinnett’s). (Dkt. 149-1 at 26.)
Plaintiffs admit Cobb County “does not have any locations that are
predicted to have voting lines of over 30 minutes during peak times due
45
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to voting machine allocation.” (Dkt. 148 at 17.) So Dr. Yang’s analysis
offers no support for Plaintiffs’ contention that Cobb County voters face
a “certainly impending” injury from long lines.
Dr. Yang also found that Fulton County allocated enough BMDs to
each voting location. (Dkt. 149-1 at 23.) But he did raise concerns about
the number of scanners at two Fulton County locations: 1272 and 729
(also identified as 08E/09F and ML03/ML07AB).
(Id. at 23.)
He
concluded that the county’s decision to have just one scanner at each of
these locations could lead to wait times of 39 and 31 minutes during peak
periods. (Id.) He thus recommended the addition of another scanner at
each location.
(Id.)
During the evidentiary hearing, Fulton County
Defendants pointed to their most recent equipment allocation plan,
which shows three scanners at locations 1272 and 729. (Dkts. 168-1 at 1;
170-2 at 75–78.)
Dr. Yang conceded he had been unaware of this
allocation, that it exceeded his recommendation, and that he no longer
has any basis to believe the county’s allocation of voting equipment will
result in wait times (even during peak periods) that exceed his 30-minute
barrier. (Id.)
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Finally, Dr. Yang found that Gwinnett and Macon-Bibb Counties
each have two voting locations at which there may be maximum wait
times of 30–32 minutes. (Dkt. 149-1 at 24–26.)18 But he testified at his
evidentiary hearing that there was “wiggle room” in his numbers —
which were not “precise” — and that a projected wait time of 31 minutes
“very possibl[y] . . . could be 29 minutes or about 28 minutes” or even
25 minutes. (Dkt. 170-2 at 23, 79.) So his predictions for Gwinnett and
Macon-Bibb Counties — especially when combined with the Court’s
general concerns outlined above — establish no more than “a ‘perhaps’ or
‘maybe’ chance” of 30-minute lines in those counties. County Bowen, 233
F.3d at 1340.
That is insufficient to show standing, even assuming
30 minutes constitutes a “long line.” Id.
b)
Henry County
Henry County Defendants have perhaps the most compelling
argument against standing of all the counties for which Dr. Yang offered
predictions. In his First Report, Dr. Yang analyzed Henry County’s voter
and equipment allocation information for the June 2020 Primary. He
He conceded the average wait times at these locations would be no more
than 9 minutes, raising a concern only about the busiest 15 minutes in
the voting day. (Dkt. 149-1 at 24, 26.)
18
47
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found that the allocation was insufficient at certain voting locations. He
then recommended a new allocation plan for November 2020. (Dkt. 93-62
at 40–45.)
He said his plan would result in average wait times of
“no more than three minutes long at any polling location[] and no voter
would have to wait for more than 30 minutes.” (Id. at 43.)
During litigation before this Court, Henry County presented
evidence that, based on its experience in the June 2020 Primary, it
increased and reallocated voting equipment at each of its 37 polling
places for the November Election. (Dkt. 164-1 ¶ 7.) As part of this, it
more than doubled the number of BMDs it plans to deploy from 222 in
June to 482 in November. (Id.) It also increased the number of poll pads
it will deploy to the precincts from 74 to 115. (Id.) Henry County’s
reallocations and deployment of additional voting equipment exceeded
Dr. Yang’s recommendations in every precinct. (Compare Dkt. 93-62 at
44–45 with Dkt. 133-1.) For example, while Dr. Yang recommended that
Henry County allocate 8 BMDs to the Locust Grove location, the county
decided to include 12 machines at that location. (Dkts. 93-62 at 44; 1331.) It will send 16 BMDs to the Westside location, rather than the 8 he
recommended. (Id.) The Lowes precinct will get 20 rather than the 12
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Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 49 of 78
he recommended, and the North Hampton and Stockbridge precincts will
get 20 and 16 rather than the 9 and 8 he proposed. (Id.)
After receiving Henry County’s allocation plan for the November
2020 election, Plaintiffs asked Dr. Yang to reanalyze the county’s
deployment of voting equipment.
As the county has now exceeded
Dr. Yang’s prior recommendations, one might expect his new analysis to
re-verify his prior conclusion that “no voter would have to wait for more
than 30 minutes.”
But, not so.
In his Second Report, Dr. Yang
dramatically changed his methodology to increase his estimate of
Election Day turnout — and that change allowed him to predict
maximum wait times of 31–91 minutes in 7 Henry County precincts,
notwithstanding his earlier prediction that none of those precincts would
have problems in November. (Dkt. 149-1 at 11.)
In his first analysis, he relied on November 2016 voter data from
the Georgia Secretary of State’s website to conclude that “[a]bout 22% of
the total registered voters are Election Day voters” in Henry County.
(Dkt. 93-62 at 40.) In recognition of his belief that “Covid-19 will increase
the mail-in absentees in the 2020 General Election” like it did in the June
2020 Primary, he ultimately assumed that “Election Day voters at each
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Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 50 of 78
polling place in Henry County in the November General Election [would
be] 19% of the total registered voters.” (Id. at 40–41.)
In his second analysis, he threw out his 19% in-person Election Day
rate. Instead, he determined from documents on the Georgia Secretary
of State’s website that Henry County had a total voter turnout rate of
79% in the November 2016 Election. (Dkts. 149-1 at 8 & n.13; 170-2 at
59–60.) He then considered a July 2020 poll from the Pew Research
Center’s American Trends Panel which found that, when “[t]hinking
ahead to the (2020 presidential) election in November,” 40% of
respondents said their “preference” would be to vote in person on Election
Day. (Dkt. 149-1 at 8.) He accepted this as showing that “40% of voters
are likely to vote in person on Election Day.” (Id.) Applying these two
multiples together (79% x 40%), he concluded that 31.6% of Henry
County’s registered voters would vote on Election Day next month — a
12.6% increase from his prior estimate. (Dkt. 170-2 at 59–60.)
He relied on this calculation despite no evidence suggesting Henry
County voters had ever before turned out to vote on Election Day at that
level. He did this despite his previous calculation using actual historical
data showing only 22% of the county’s registered voters go to the polls on
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Election Day. He also did this despite having “assume[d] for the purposes
of [his second] analysis that the overall voter turnout in the 2020
Presidential Election [will be] the same as the turnout for the 2016
Presidential Election, though it may in fact be higher.” (Dkt. 149-1 at 8.)
Dr. Yang’s decision to increase his assumption of Election Day
voting by 12.6% had a profound impact on his conclusions. For the Locust
Grove precinct, for example, his Second Report estimated 2,275 Election
Day voters, nearly doubling his previous estimate of 1,237 voters. (Dkts.
93-62 at 44; 149-1 at 11.) His estimate for voter turnout at the Sandy
Ridge precinct also nearly doubled, increasing from his initial estimate
of 896 to 1,641 (an increase of 745 voters).
(Id.)
He had similarly
dramatic increases in several other Henry County precincts. (Id.) As a
result of his methodological change, Dr. Yang now predicts maximum
wait times exceeding his 30-minute barrier at 7 precincts.
He
recommends adding more equipment to those locations.
Dr. Yang’s new analysis is too speculative to show that 30-minute
lines — much less “long lines” — are certainly impending in Henry
County next month. His analysis turns on the 40% figure taken from the
Pew poll and the November 2016 overall turnout rates reported on the
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Secretary’s website.
The Court finds both suspect.
As to the first,
Dr. Yang said he thought the Pew poll presents the “best data” he could
find. (Dkt. 170-2 at 37.) But he could provide no credible reason for
abandoning his prior determination that 19% of registered voters will
vote on Election Day, particularly when he continues to assume
throughout his report that total turnout in the November 2020 Election
will be the same as the November 2016 Election. He testified that the
COVID-19 outbreak “might” have some “kind of influence on the voter
turnout this year.” (Dkt. 170-2 at 45; see id. (“[I]f there was no COVID19 this year, I think I would just directly go to 2016 and to [sic] use that
number.”).) He suggested it could increase or decrease voter turnout, he
was not sure. (Id.) He looked to the Pew poll because it was more current
and, he assumed, included any impact the outbreak might have on voter
preference.
(Id.)
It is hard for the Court to believe the COVID-19
outbreak, and the social distancing it mandates, will lead to higher
in-person voter turnout, let alone that it will do so to the extent he now
predicts. Indeed, in his First Report, Dr. Yang was clear that “Covid-19
will increase mail-in absentee ballots in the 2020 General election” just
as it did in the June 2020 Primary, and that “voting by mail is expected
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Case 1:20-cv-03263-MLB Document 174 Filed 10/13/20 Page 53 of 78
to be much higher than in previous elections.” (Dkt. 93-62 at 40.) He
never suggested the outbreak would increase in-person voting.
And
County Defendants have presented plenty of evidence that they
anticipate more mail-in voting as a result of the pandemic. (See, e.g.,
Dkts. 128-1 ¶ 9; 164-1 ¶ 6; 167-1 ¶ 7.)
The Pew poll also was not conducted in Georgia, let alone Henry
County. And, on its face, the poll merely asked (in July) how people
would “prefer” to vote in November. It does not even purport to estimate
how people intend to vote, the purpose for which Dr. Yang adopted it.
At a hearing, Dr. Yang also could not confirm the accuracy of the
November 2016 turnout rates on which he relied to predict total voter
turnout in November 2020. While talking about his analysis, Dr Yang
explained that he obtained voter turnout rate information for November
2016 from the Secretary of State’s website. (Dkt. 170-2 at 39–42.) He
provided a link to the data in his report. (Dkt. 149-1 at 8 n.13.) During
the hearing, the Court directed Dr. Yang to other reports on the same
website that show different numbers. (Dkt. 170-2 at 48–50.) He could
not explain which report was correct. (Id.) So, by way of example, Dr.
Yang testified that he relied on reports showing Douglas county had a
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voter turnout rate of 78% in the November 2016 Election. (Id. at 39–42;
see also Dkt. 149-1 at 17.)19 But, the Court directed him to a different
report on the same website that showed the county had a turnout rate of
63% in the November 2016 Election. (Dkt. 170-2 at 48–50.)20 Dr. Yang
could not explain which number was more accurate. (Id.) Similarly, the
report from the Secretary of State that Dr. Yang used for calculating
DeKalb County’s turnout rate of 76% is also in conflict with another
report on the Secretary of State’s website which shows a turnout rate of
60% in that county. (Dkt. 149-1 at 14.) The same issue would apply to
Dr. Yang’s calculation of the turnout rate in Henry County, the report he
used showing 79.8% turnout on a countywide basis and the other showing
65.1% turnout on the same basis.21 There is thus a real concern that Dr
Dr. Yang did not actually use these reports for Douglas County (since
he obtained numbers directly from Douglas County itself) but he did use
them for the other counties. He testified about the Douglas County report
as an example of what he did for Henry County and other counties
besides Douglas County.
20
The
report
is
available
at
https://sos.ga.gov/index.php/elections/general_election_turnout_by_dem
ographics_november_2016.
21 Compare
https://sos.ga.gov/index.php/Elections/current_and_past_elections_resul
ts with
https://sos.ga.gov/index.php/Elections/voter_turn_out_by_demographics.
19
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Yang substantially overstated the counties’ likely turnout rate in
November.
Given Dr. Yang’s prior conclusion that Henry County will
experience no wait times longer than 30 minutes from the adjustment
the county made, his prior assumption that November 2020 will see the
same level of Election Day voting as November 2016, his failure to
provide any credible (much less compelling) basis for turning away from
that assumption, his decision to now use a Pew poll of national voting
“preference,” and his inability to substantiate the turnout data he pulled
from the Secretary’s website in the light of conflicting data located
elsewhere on the same website, the Court finds Dr. Yang’s Second Report
is too speculative and unreliable to show that long lines are certainly
impending in Henry County for the November 2020 Election.
c)
Douglas County
Plaintiffs’ complaint does not say that Douglas County voters
previously suffered long lines as a result of voting equipment shortages.
Instead, it alleges the county suffered long lines because “software
errors” delayed the start of voting and rendered certain machines
inoperable. (Dkt. 1 ¶¶ 176–178.) Dr. Yang nevertheless predicts that
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14 voting locations in Douglas County will experience maximum wait
times of 31–119 minutes as a result of equipment allocations. (Dkt. 1491 at 18.)
But these wait times (10 of which are less than an hour) assume an
extraordinarily high turnout on Election Day in November 2020. To
justify that assumption, Dr. Yang did not use November 2016 Election
data (as he did for Henry County in his First Report) or the 40% figure
from the Pew poll (as he did for every other county in his Second Report).
Instead, he used turnout projections that he received from Douglas
County, which apparently obtained them from the Georgia Secretary of
State’s Office. (Dkt. 170-2 at 29–30, 35–36.) Dr. Yang believes the
Secretary’s numbers are the most reliable prediction of Election Day
turnout because “local election officials know better about their own
place.” (Id. at 86.)
But he does not know how the Secretary came up
with his numbers. (Id. at 86–87.)
And they are wildly inconsistent with historical Election Day
turnout in Douglas County, including from as recently as June 2020
(during the pandemic).
Take precincts 1272 and 729, for example.
Dr. Yang predicts the longest maximum wait times at those locations
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(119 and 116 minutes). (Dkt. 149-1 at 18.) And he does so based on the
assumption that 37% and 35.5% of registered voters will vote on Election
Day at each location.22 But those percentages were about 22.5% and
27.2% in November 2016 (and potentially lower depending on which
Secretary of State data you use).23 If Dr. Yang applied these November
2016 percentages (as he did in his First Report), his projected Election
Day turnout would drop from 2,008 to 1,223 in precinct 1272, and from
1,990 to 1,526 in precinct 729.
Those differences are substantial.
Likewise, Dr. Yang assumes that 51.2% and 64.3% of the total turnout in
37% = 2,008 Election Day voters / 5,435 registered voters;
35.5% = 1,990 Election Day voters / 5,612 registered voters. (See Dkts.
149-1 at 18 (Dr. Yang predicting 2,008 and 1,990 Election Day voters at
precincts 1272 at 729); 132-3 at 4, 7 (5,435 and 5,612 registered voters in
precincts 1272 and 729).)
23 These percentages are based on data reported in the same part of the
Secretary’s website on which Dr. Yang relies for other elements of his
analysis:
:
https://results.enr.clarityelections.com/GA/63991/184321/en/selectcounty.html. But another report on the Secretary’s website shows a
much
lower
turnout
rate
in
Douglas
County:
https://sos.ga.gov/index.php/elections/general_election_turnout_by_dem
ographics_november_2016 (68.6% vs. 82.9% in precinct 1272; 55.3% vs.
71.2% in precinct 729). As explained earlier in this Order, Dr. Yang did
not know which data was correct.
22
57
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precincts 1272 and 729 will vote on Election Day.24 But in June 2020,
those percentages were just 34.8% and 44%.25 These differences are also
significant.
It is far from clear that Dr. Yang’s percentages make more sense
than the lower ones described above. We do not know how his were
calculated (beyond the fact that they were obtained from the Secretary).
And they do not square with Douglas County’s actual voting history in
the most recent general and pandemic-affected elections. Given these
facts, the lower percentages seem at least as plausible as those used by
Dr. Yang. Indeed, Dr. Yang himself would have used them (and even
reduced them to account for an expected increase in absentee voting) if
he were still applying the methodology on which he relied in his First
Report. (See Dkt. 93-62 at 40–41.)
51.2% = 2,008 Election Day voters / 3,924 total votes cast; 64.3% = 1,990
Election Day voters / 3,095 total votes cast. (See Dkts. 149-1 at 18 (Dr.
Yang predicting 2,008 and 1,990 in-person Election Day voters in
precincts 1272 and 729); 132-4 at 4 (predicting total turnout of 3,924 and
3,095 voters in precincts 1272 and 729).)
25 34.8% = 599 Election Day voters / 1,720 total votes cast; 44% = 682
Election
Day
voters
/
1,549
total
votes
cast.
See
https://results.enr.clarityelections.com/GA/Douglas/103662/web.254232/
#/summary?v=255449%2F.
24
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These lower percentages would reduce the wait times predicted in
Dr. Yang’s report. We do not know by how much, of course. Maybe it
would have a big impact. Maybe not. But this uncertainty is precisely
what precludes the Court from saying long lines are “certainly
impending” in Douglas County. The water is muddied even further by
the fact that, since receiving Dr. Yang’s report, Douglas County has
added more voting equipment to all 14 locations at which Dr. Yang
predicted wait times of at least 30 minutes. (Dkt. 167-1 ¶ 8.) Dr. Yang’s
projections do not account for this new development, which presumably
will reduce wait times even more. When all of this is combined with the
Court’s broader reservations about Dr. Yang’s report, his predictions are
simply too speculative to meet Plaintiffs’ burden to show a certainly
impending injury.
d)
DeKalb County
Dr. Yang predicts maximum wait times of 36 minutes, 40 minutes,
and 207 minutes at three voting locations in DeKalb County. (Dkt. 1491 at 14.) DeKalb County officials have since presented evidence that they
“anticipate being in a position to allocate additional poll pads and
scanners” to all three locations if space and staffing permit. (Dkt. 166-1
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¶ 11; see id. ¶ 7 (“DeKalb VRE is in the process of ordering 50 additional
scanners to be delivered for use at polling locations on Election Day. The
DeKalb VRE is also working on an acquisition of 125 additional poll pads
to be delivered for use at polling locations on Election Day.”).) Given this
development, and the “wiggle room” already inherent in Dr. Yang’s
projections, Plaintiffs have not shown long lines are certainly impending
in the 36- and 40-minute locations.
The 207-minute location (McWilliams) is a closer call.
The
projected wait time for that location assumes 40% of the total turnout in
November 2020 will vote on Election Day. At his evidentiary hearing,
Dr. Yang “guess[ed]” that the voting location “still might be a problem”
even if he assumed (as he did in his First Report) that November 2020
will see the same Election Day turnout as November 2016. (Dkt. 170-2
at 71.)26 Although he did not “have time to do the math” during the
hearing, he did do “a quick calculation” from which he determined that
the maximum wait at McWilliams would likely fall from 207 minutes to
85 minutes. (Id. at 71, 82–83.) He said the “bottleneck” in that scenario
He said this assumption was “likely to reduce” the 36- and 40-minute
locations to less than a 30-minute wait. (Dkt. 170-2 at 72; see id. (“[Y]ou
can probably do that.”).)
26
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would be the check-in stage because there were insufficient poll pads
there. (Id. at 83.)
Given that DeKalb County now anticipates adding poll pads to the
McWilliams location, it is unclear whether the check-in bottleneck would
still arise under Dr. Yang’s model. Adding poll pads might simply move
the bottleneck to the BDM stage of the process, but there is no clear
evidence about that one way or the other. (See Dkt. 170-2 at 83 (testifying
that, after running his “quick calculation” during the hearing, “the checkin station is the bottleneck, it’s not the voting machines”); id. at 68–69
(testifying that, under his 40% Methodology of predicting Election Day
turnout at McWilliams, “if you increase the poll pads, the voters can flow
through this first step very quickly, and then the supplemental BMDs
could be a bottleneck” (emphasis added)).) Given the potential addition
of equipment at McWilliams, Dr. Yang’s reliance on the 40%
Methodology, his admittedly incomplete attempt during the hearing to
calculate wait times based on Election Day turnout in November 2016,
and the Court’s broader reservations about his report, Dr. Yang’s
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predictions also fail to meet Plaintiffs’ burden to show “certainly
impending” long lines at McWilliams.27
E.
Plaintiffs’ Injuries
Defendants
Are
Not
Traceable
to
State
Even if Plaintiffs had established an Article III injury based on
certainly impending long lines in November, they have not shown that
injury is traceable to State Defendants.
element of the standing doctrine.
Traceability is the second
It requires “a fairly traceable
connection between the plaintiff’s injury and the complained-of conduct
of the defendant.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
103 (1998). A “showing of proximate cause” is not necessary. Resnick v.
AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012). “Even a showing that
a plaintiff’s injury is indirectly caused by a defendant’s actions satisfies
the fairly traceable requirement.” Id. But the injury cannot “result
[from] the independent action of some third party not before the court.”
Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259,
Even assuming there were certainly impending long lines at one or two
voting locations, Individual Plaintiffs have not alleged that they plan to
vote there and Organizational Plaintiffs have not alleged that they will
divert resources based on the risk of only fleeting long lines at those
specific locations.
27
62
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1265 (11th Cir. 2011).
And traceability does not exist where
“an independent source would have caused [plaintiff] to suffer the same
injury.” Swann v. Sec’y, Georgia, 668 F.3d 1285, 1288 (11th Cir. 2012);
see 13A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris.
§ 3531.5 (3d ed. Apr. 2020 Update) (“standing may be defeated by finding
a different cause” and “[d]irect breaks in the causal chain have defeated
standing in a wide variety of other circumstances”).
Plaintiffs claim they will be injured by long lines in the November
2020 Election. Plaintiffs say those lines will be caused by (1) insufficient
polling
locations,
(2) insufficient
voting
equipment
allocation,
(3) insufficient poll workers, (4) inadequate training of poll workers,
(5) insufficient technicians, (6) insufficient time to set up polling
locations, and (7) insufficient backup paper pollbooks and emergency
paper ballots.
As discussed above, Plaintiffs have presented future
evidence only about the allocation of voting equipment. The Court finds
that evidence insufficient to establish imminent injury but, even
assuming it was sufficient, Plaintiffs have not shown State Defendants
are responsible for the equipment misallocations they say will happen in
November.
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Granted, the Secretary of State is required by state law to provide
voting equipment to the counties.
O.C.G.A. § 21-2-300(a).
But the
counties are responsible for allocating that equipment among their
precincts and for otherwise “equip[ping] polling places for use in
primaries and elections.” O.C.G.A. § 21-2-70(4). The state has also
“made additional equipment available to counties upon request and
demonstration of need.”
(Dkt. 110-5 ¶ 6; see Dkt. 159 at 59
(“[T]he counties come to the State and say here’s what we need, the State
provides it.”).)
And “[c]ounties additionally may procure their own
equipment to the extent they need more, which the State will acceptance
test and approve for use.” (Dkt. 110-5 ¶ 6.)
In other words, the state provides counties with a “baseline” level
of equipment and then counties must determine what to do with that
equipment and whether to obtain more. (Dkt. 159 at 59 (“We provide the
baseline, and then if the counties want more, they can request and/or
purchase it.”); see Dkt. 171-1 ¶ 3 (the state initially provides counties with
a baseline level of equipment based on past election data and the number
of active voters in each county). Plaintiffs do not allege the state has
violated its general duty to provide equipment. (See Dkts. 110-5 ¶ 3; 171-
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1 ¶ 3.) So if a county does not have enough equipment in a certain
precinct, the county must address the issue, not the Secretary of State or
the State Election Board. Indeed, Plaintiffs conceded the Secretary of
State “doesn’t have the authority to command” counties to allocate their
voting equipment in a particular way — and, more generally, is not
“responsible for the errors and mistakes made at the county level.” (Dkt.
159 at 105–107.)28
Plaintiffs point out that State Defendants have several significant
responsibilities for elections in Georgia.
And they are right.
For
example, the Secretary of State is Georgia’s “chief election official.”
O.C.G.A. § 21-2-50(b). And State Defendants must “formulate, adopt,
and promulgate . . . rules and regulations” to ensure uniformity and
fairness in Georgia’s elections. O.C.G.A. § 21-2-31(1)–(2); see also id.
§ 21-2-31(10) (requiring State Defendants to take such “action, consistent
with law, as [they] may determine to be conducive to the fair, legal, and
Even Plaintiffs’ expert has concluded that, to the extent equipment
shortages might arise in November, the problem will almost always be
the misallocation of voting equipment within certain counties, not a
shortage in the overall quantity of equipment available for deployment.
How to allocate equipment within a county is a task that falls especially
squarely on the counties.
28
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orderly conduct of primaries and elections”). But, under binding caselaw,
these general powers are insufficient to establish traceability.
See
Jacobson, 2020 WL 5289377, at *12, 14 (“voters and organizations . . .
cannot rely on the Secretary’s general election authority to establish
traceability,” nor can they rely on his authority “to promulgate a rule” or
“issue directives”).
The Court rejects Plaintiffs’ contention that the
alleged injuries of which they complain are traceable to the Secretary of
State simply because the Georgia Code refers to him as the “state’s chief
election official.” (Dkt. 112 at 23.) Likewise, the Court rejects the notion
the alleged injuries are traceable to the State Election Board simply
because of its duty to ensure uniformity in the administration of election
laws. (Id. at 2.) No Georgia law allows State Defendants to reach down
into the county precincts and demand the relief Plaintiffs seek. (Dkt. 159
at 105–107.)
Plaintiffs also rely on Grizzle v. Kemp, 634 F.3d 1314 (11th Cir.
2011), which held that Georgia’s Secretary of State was “a proper party
in [an] action for injunctive and declaratory relief pursuant to Ex Parte
Young.” 634 F.3d at 1316. But “Article III standing and the proper
defendant under Ex parte Young are separate issues.” Jacobson, 2020
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WL 5289377, at *13. So Grizzle does not “address[]—let alone resolve[]—
the standing issues in this suit.” Id.
Plaintiffs have not shown their injury (even assuming it was
imminent) is traceable to the State Defendants. That means Plaintiffs
lack standing to sue the State Defendants here. Plaintiffs’ claims against
the State Defendants are thus dismissed for lack of subject matter
jurisdiction. See Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017)
(“Article III standing to sue each defendant also requires a showing that
each defendant caused his injury and that an order of the court against
each defendant could redress the injury.” (emphasis added)); Mahon v.
Ticor Title Ins. Co., 683 F.3d 59, 65 (2d Cir. 2012) (rejecting the argument
that “plaintiff’s injury resulting from the conduct of one defendant should
have any bearing on her Article III standing to sue other defendants”);
Holland v. JPMorgan Chase Bank, N.A., 2019 WL 4054834, at *6
(S.D.N.Y. Aug. 28, 2019) (“A plaintiff proceeding against multiple
defendants must establish standing as to each defendant and each
claim.”).
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III. Plaintiffs’ Requested Injunctive Relief is Unavailable
Even if Plaintiffs had standing here, the Court would deny their
motion for a preliminary injunction. “[A] preliminary injunction is an
extraordinary and drastic remedy not to be granted unless the movant
clearly establishe[s]” it is warranted. Siegel v. LePore, 234 F.3d 1163,
1176 (11th Cir. 2000); see Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never
awarded as of right.”). Plaintiffs here have not shown they are entitled
to the relief they seek. On the contrary, their proposed injunction is
riddled with problems that make it inappropriate.29
A.
The Court Cannot Outsource the Election to Plaintiffs’
Expert
Plaintiffs’ proposed injunction would order County Defendants to
use Dr. Yang’s M/M/c formula “to allocate voting machines, poll pads,
scanners, and technicians in a way reasonable calculated to minimize
wait times” at each voting location for the November 2020 Election.
(Dkt. 119-3 at 4.) More specifically, it would require Defendants to send
Plaintiffs also have not shown irreparable harm for the same reasons
that they fail to show imminent injury. See Alabama v. U.S. Army Corps
of Engineers, 424 F.3d 1117, 1133 (11th Cir. 2005) (“[P]reventing
irreparable harm in the future is the sine qua non of injunctive relief.”).
29
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data to Dr. Yang and then implement whatever allocation plan he
recommends based on that data (with the Secretary of State required to
foot the bill if more equipment is needed to comply with Dr. Yang’s plan).
(Id. at 4–6.) This request is truly extraordinary. And Plaintiffs cite no
authority permitting (much less requiring) the Court to grant it.
The United States Constitution gives states the power to set the
“Times, Places and Manner of holding Elections for Senators and
Representatives.” U.S. Const. art. I, § 4, cl. 1. And that power “is
matched by state control over the election process for state offices.”
Clingman v. Beaver, 544 U.S. 581, 586 (2005).
These constitutional
powers are “broad.” See Duncan v. Poythress, 657 F.2d 691, 702 (5th Cir.
1981) (“[T]he constitution leaves to the states broad power to regulate the
conduct of federal and state elections.”). And courts have no business
interfering with them absent a compelling need to do so. See New Georgia
Project v. Raffensperger, 2020 WL 5877588, at *3 (11th Cir. Oct. 2, 2020)
(Grant, J.) (the Supreme Court’s “mantra” points “in one direction—
allowing the States to run their own elections”); id. at *5 (Lagoa, J.
concurring) (“[F]ederal courts must be chary of hearing challenges to a
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state’s duly enacted election procedures.”).30 When courts do interfere,
they must tread carefully and provide the minimum (and least
disruptive) relief necessary to redress the harm.
Plaintiffs’ requested relief flies in the face of these principles. It
does not require the parties to collaboratively determine how Defendants
should allocate their resources for the upcoming election. Instead, it
outsources the job entirely to an academic in Minnesota and requires
Defendants to do whatever he says.
Even Dr. Yang admits this is appropriate. He repeatedly testified
that he views his proposals as data points to be considered, not blindly
adopted, by election officials on the ground. (See, e.g., Dkt. 170-2 at 52–
53 (“So in terms of how to address it, it will be up to the election officials
how are you going to do it. I’m not trying to say you have to use my
See also Coal. for Good Governance v. Raffensperger, 2020 WL 2509092,
at *4 (N.D. Ga. May 14, 2020) (courts cannot “micromanage the State’s
election process”); Georgia Shift, 2020 WL 864938, at *5 (“Plaintiffs invite
the Court to dictate how the Counties should properly administer their
elections. The law does not allow this type of federal judicial oversight
except when an election process reaches the point of patent and
fundamental unfairness.”).
30
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calculation.”).)31 That is so because there are several factors not captured
by his analysis that must also be considered when deciding how to run
an election. Those include the global pandemic and other “constraints”
on which Dr. Yang is not an expert. (Id. at 53–54.) Dr. Yang has never
even visited or seen pictures of Georgia’s voting locations. (Id. at 54.)
And he has never been appointed by a court to make election decisions
for a government. (Id. at 57.) He is simply not in a position to determine,
single-handedly, how Defendants should run their elections here.
Plaintiffs’ counsel put it best when he said at oral argument:
“[W]e’ve offered experts that we’ve hired at our own expense to come up
with ideas. Maybe they’re good ideas, maybe they’re bad ideas. But
they’re ideas that ought to be considered.” (Dkt. 159 at 110.) Plaintiffs
may be right. Perhaps Dr. Yang’s ideas should be considered; indeed,
several County Defendants have now considered them. But that is not
what Plaintiffs request here.
They seek an injunction requiring
Defendants to adopt Dr. Yang’s ideas wholesale.
Plaintiffs have not
shown that relief is appropriate. The Court cannot strip state officials of
(See also Dkt. 170-2 at 27 (“Usually, the local election officials should
know better about this.”), 28 (“I respect the counties election officials’
opinion and knowledge on their local places.”).)
31
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their constitutionally enshrined authority over elections and reassign
that authority to an academic instead (at least on the facts here). Cf.
Coal. for Good Governance, 2020 WL 2509092, at *4 (dismissing case
where “[t]he relief Plaintiffs seek bears little resemblance to the type of
relief plaintiffs typically seek in election cases aimed to redress state
wrongs”).
B.
Plaintiffs’ Requested Relief is Too Vague
1.
Rule 65’s Specificity Requirements
Other elements of Plaintiffs’ requested relief are improper for a
different reason: they are too vague to enforce. Rule 65 of the Federal
Rules of Civil Procedure requires an injunction to “state its terms
specifically” and to “describe in reasonable detail . . . the act or acts
restrained or required.” Fed. R. Civ. P. 65(d)(1). These are “no mere
technical requirements.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974).
“The Rule was designed to prevent uncertainty and confusion on the part
of those faced with injunctive orders, and to avoid the possible founding
of a contempt citation on a decree too vague to be understood.” Id. “Since
an injunctive order prohibits conduct under threat of judicial
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punishment, basic fairness requires that those enjoined receive explicit
notice of precisely what conduct is outlawed.” Id.
The injunction must be “very explicit” and “leave[] no uncertainty
in the minds of those to whom it is addressed, who must be able to
ascertain from the four corners of the order precisely what acts are
forbidden.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188,
1203 (11th Cir. 2001); 11A Charles Alan Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. § 2955 (3d ed. Apr. 2020 Update).
That is, the
injunction “should be phrased in terms of objective actions” and “should
clearly let defendant know what he is ordered to do or not to do.”
Planetary Motion, 261 F.3d at 1203; see Hughey v. JMS Dev. Corp., 78
F.3d 1523, 1531 (11th Cir. 1996) (“[A]n ordinary person reading the
court’s order should be able to ascertain from the document itself exactly
what conduct is proscribed.”). If “the wording of the injunction could lend
itself to alternate interpretations,” it violates Rule 65’s specificity
requirements. Planetary Motion, 261 F.3d at 1205.
2.
Discussion
Plaintiffs seek an injunction requiring Defendants to (1) provide
“sufficient” secure ballot boxes, (2) ensure poll workers are “adequately”
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trained, (3) provide “sufficient” technicians, and (4) ensure voting
equipment is “adequately” tested within a “reasonable” time before each
voting location opens. Such an injunction would violate Rule 65.
Georgia Shift makes that clear. The plaintiffs there sought an order
requiring defendants to (among other things) “provide enough polling
places,” to “provide enough functioning machines at polling places,” and
to “hire and train sufficient elections staff to prevent voters from having
to wait in unreasonably long lines.” 2020 WL 864938, at *2. The court
declined to issue the injunction because it “would be too amorphous to be
capable
of
enforcement,”
in
violation
of
Rule
65’s
specificity
requirements. 2020 WL 864938, at *5. The court said the requested
relief was so vague that it essentially told defendants to “obey the law.”
Id.
Our case is similar on both the facts and the relief requested. As in
Georgia Shift, Plaintiffs here seek to compel Defendants to take election
administration
measures
that
are
“adequate,”
“sufficient,”
and
“reasonable.” But what counts as adequate, sufficient, and reasonable is
subject to “alternate interpretations,” meaning Defendants could easily
“misapprehend what conduct is proscribed.” Planetary Motion, 261 F.3d
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at 1205; see Payne v. Travenol Labs., Inc., 565 F.2d 895, 898 (5th Cir.
1978) (“The word ‘discriminating,’ like the word ‘monopolizing’ . . . , is too
general” to satisfy Rule 65); Brandner v. Abbott Labs., Inc., 2012 WL
27696, at *4 (E.D. La. Jan. 5, 2012) (finding that an injunction containing
the word “sufficient” violated Rule 65 because “the vagueness of the term
. . . places an unfair burden of interpretation on [defendant]”). This
precludes Plaintiffs’ requested relief.
C.
Plaintiffs’ Remaining Relief is Unnecessary
The final elements of Plaintiffs’ proposed injunction would order
(1) Defendants to provide sufficient emergency paper ballots and paper
pollbooks; (2) State Defendants to “enact a policy” requiring these paper
supplies to be used when lines at are least 30 minutes long;
(3) Defendants to “enact a policy” requiring poll workers to record wait
times every 30 minutes; and (4) the Secretary of State to provide one
technician for every ten polling locations. (See Dkt. 119-3.) Plaintiffs
have not shown any of these actions are necessary to avoid long lines in
November.
Starting with the first item of requested relief, another court has
already ordered Defendants to provide sufficient emergency paper
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supplies to each voting location. Curling, 2020 WL 5757809, at *25.
So nothing is gained by issuing another injunction requiring the same
thing. (See Dkt. 159 at 113 (“[T]he backup emergency paper ballots and
the paper pollbooks have been addressed in the Curling decision.”).) As
for the remaining items, “an injunction is to be narrowly tailored to
remedy the specific action which gives rise to it.” Valley v. Rapides Par.
Sch. Bd., 646 F.2d 925, 942 (5th Cir. 1981); see Califano v. Yamasaki, 442
U.S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the
extent of the violation established.”).
Plaintiffs have not shown
Defendants will cause long lines by failing to do the remaining three
things they seek to compel. On the contrary, Georgia law already says
poll workers may use emergency paper supplies if lines exceed
30 minutes. Ga. State Election Board Rule 183-1-12-.11(2). And the
state is “increasing the number of Election Day technicians available,
aiming to have a contracted technician available for each polling place.”
(Dkt. 110-5 ¶ 5 (emphasis added).)
The counties also have secured
additional technicians of their own. Plaintiffs have not shown more is
required. See Califano, 442 U.S. at 702 (“[I]njunctive relief should be no
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more burdensome to the defendant than necessary to provide complete
relief to the plaintiffs.”).32
The bottom line is that Plaintiffs lack standing because they have
not shown long lines are certainly impending in November. And, even if
Plaintiffs had standing, the Court cannot issue the injunction they seek
because it requests relief that is either inappropriate or unnecessary. For
these reasons, Defendants’ motions to dismiss are granted, Plaintiffs’
motion for a preliminary injunction is denied, and this case is dismissed
for lack of subject matter jurisdiction.
IV.
Conclusion
The Court GRANTS County Defendants’ Motion to Dismiss
(Dkt. 105), GRANTS State Defendants’ Motion to Dismiss (Dkt. 106),
and DENIES Plaintiffs’ Motion for Preliminary Injunction (Dkt. 92). The
Court DISMISSES this action for lack of subject matter jurisdiction.
It is unclear whether the Court even could order State Defendants to
“enact a policy” requiring the actions Plaintiffs seek. See Jacobson, 2020
WL 5289377, at *14 (“it is doubtful that a federal court would have
authority to” issue “an injunction ordering the Secretary to promulgate a
rule” because “such relief would . . . raise[] serious federalism concerns”);
id. (“[T]he Ex parte Young exception to sovereign immunity is limited to
the precise situation in which a federal court commands a state official
to do nothing more than refrain from violating federal law.”).
32
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SO ORDERED this 13th day of October, 2020.
78
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