Anderson et al v. Raffensperger et al

Filing 92

MOTION for Preliminary Injunction with Brief In Support by Sara Alami, Lucille Anderson, Gianella Contreras Chavez, DSCC, Democratic Party of Georgia, Inc.. (Attachments: #1 Memorandum in Support of Motion, #2 Proposed Order)(Sparks, Adam)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LUCILLE ANDERSON, SARA ALAMI,
GIANELLA CONTRERAS CHAVEZ,
DSCC, and DEMOCRATIC PARTY OF
GEORGIA, INC.,
Plaintiffs,
v.
BRAD RAFFENSPERGER, in his official
capacity as the Georgia Secretary of State
and the Chair of the Georgia State Election
Board; REBECCA N. SULLIVAN, DAVID
J. WORLEY, MATTHEW MASHBURN,
and ANH LE, in their official capacities as
Members of the Georgia State Election
Board; MARY CAROLE COONEY,
MARK WINGATE, VERNETTA
NURIDDIN, KATHLEEN RUTH, and
AARON JOHNSON, in their official
capacities as Members of the FULTON
County Board of Registration and Elections;
SAMUEL E. TILLMAN, ANTHONY
LEWIS, SUSAN MOTTER, DELE
LOWMAN SMITH, and BAOKY N. VU, in
their official capacities as Members of the
DEKALB County Board of Registration and
Elections; PHIL DANIELL, FRED AIKEN,
JESSICA M. BROOKS, NEERA BAHL,
and DARRYL O. WILSON, JR., in their
official capacities as Members of the COBB
County Board of Elections and Registration;
JOHN MANGANO, BEN SATTERFIELD,
WANDY TAYLOR, STEPHEN DAY, and

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ALICE O’LENICK, in their official
capacities as Members of the GWINNETT
County Board of Registrations and
Elections; THOMAS MAHONEY III,
MARIANNE HEIMES, MALINDA
HODGE, ANTWAN LANG, and DEBBIE
RAUERS, in their official capacities as
Members of the CHATHAM County Board
of Elections; CAROL WESLEY,
DOROTHY FOSTER HALL, PATRICIA
PULLAR, DARLENE JOHNSON, and
DIANE GIVENS, in their official capacities
as Members of the CLAYTON County
Board of Elections and Registrations;
DONNA CRUMBLEY, DONNA MORRISMCBRIDE, ANDY CALLAWAY, ARCH
BROWN, and MILDRED SCHMELZ, in
their official capacities as Members of the
HENRY County Board of Elections and
Registration; MYESHA GOOD, DAVID C.
FEDACK, ROBERT PROCTOR, DANIEL
ZIMMERMANN, and MAURICE HURRY,
in their official capacities as Members of the
DOUGLAS County Board of Elections and
Registration; and RINDA WILSON,
HENRY FICKLIN, HERBERT
SPANGLER, CASSANDRA POWELL,
and MIKE KAPLAN, in their official
capacities as members of the MACONBIBB County Board of Elections,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page
I.

INTRODUCTION ..........................................................................................1

II.

BACKGROUND ............................................................................................2
A.
B.

Defendants are responsible for appropriately resourcing polling
locations................................................................................................6

C.

Defendants’ failures to allocate sufficient resources cause
Georgia’s long lines..............................................................................8

D.
III.

Georgia’s Recent History is Replete with Voters Facing Long
Lines .....................................................................................................2

Defendants have perpetually failed to address their systemic
under-resourcing of polling places. ....................................................15

ARGUMENT ................................................................................................16
A.

Plaintiffs are highly likely to succeed on the merits of their
claims..................................................................................................17
1.
2.

Long lines in Georgia treat similarly situated voters
differently in violation of the Equal Protection Clause. .......... 20

3.

No state interest justifies the long lines. ..................................21

4.
B.

Defendants’ systemically poor election administration
and long lines severely burden the right to vote. .....................17

Long lines in Georgia violate the Due Process Clause. ........... 22

Plaintiffs will suffer irreparable harm absent an injunction...............23

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TABLE OF AUTHORITIES
Page(s)
CASES
Burdick v. Takushi,
504 U.S. 428 (1992) ............................................................................................ 17
Bush v. Gore,
531 U.S. 98 (2000) .............................................................................................. 20
Carillon Imps., Ltd. v. Frank Pesce Int’l Grp., Ltd.,
112 F.3d 1125 (11th Cir. 1997) .......................................................................... 16
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ............................................................................................ 20
Corby v. Scranton Housing Authority,
2005 WL 6789319 (M.D. Pa. June 7, 2005)....................................................... 25
Crawford v. Marion Cty. Election Bd.,
553 U.S. 181 (2008) ............................................................................................ 18
Curling v. Raffensperger,
397 F.Supp.3d 1334 (N.D. Ga. 2019) ................................................................. 24
Democratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312 (11th Cir. 2019) .......................................................................... 25
Fla. State Conference of NAACP v. Browning,
522 F.3d 1153 (11th Cir. 2008) .......................................................................... 20
Ga. Coal. for People’s Agenda, Inc. v. Kemp,
347 F. Supp. 3d 1251 (N.D. Ga. 2018) .............................................19, 22, 24, 25
League of Women Voters of Fla., Inc., v. Detzner,
314 F. Supp. 3d 1205 (N.D. Fla. 2018) .............................................................. 19
League of Women Voters of North Carolina v. North Carolina,
769 F.3d 224 (4th Cir. 2014) .............................................................................. 24
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League of Women Voters of Ohio v. Brunner,
548 F.3d 463 (6th Cir. 2008) ........................................................................18, 23
Martin v. Kemp,
341 F. Supp. 3d 1326 (N.D. Ga. 2018) ............................................................... 24
NAACP State Conference of Pa. v. Cortés,
591 F. Supp. 2d 757 (E.D. Pa. 2008) ........................................................2, 18, 19
Ne. Ohio Coal. for the Homeless v. Husted,
696 F.3d 580 (6th Cir. 2012) ........................................................................21, 23
Norman v. Reed,
502 U.S. 279 (1992) ......................................................................................17, 22
Obama for America v. Husted,
697 F.3d 423 (6th Cir. 2012) .............................................................................. 20
Taylor v. Louisiana.,
419 U.S. 522 (1975) ............................................................................................ 22
United States v. Georgia,
892 F. Supp. 2d 1367 (N.D. Ga. 2012) ............................................................... 25
Ury v. Santee,
303 F. Supp. 119 (N.D. Ill. 1969) ....................................................................... 21
Warf v. Bd. of Elections of Green Cty., Ky.,
619 F.3d 553 (6th Cir. 2010) .............................................................................. 23
Wexler v. Anderson,
452 F.3d 1226 (11th Cir. 2006) .......................................................................... 21
STATUTES
O.C.G.A. § 21-2-31.................................................................................................... 6
O.C.G.A. § 21-2-40.................................................................................................... 7
O.C.G.A. § 21-2-40(a) ............................................................................................. 14
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O.C.G.A. § 21-2-50.................................................................................................... 6
O.C.G.A. § 21-2-50(a)(1) .......................................................................................... 7
O.C.G.A. § 21-2-50(a)(5), (11) .................................................................................. 7
O.C.G.A. § 21-2-70.................................................................................................... 7
O.C.G.A. § 21-2-300(a) ............................................................................................. 6
O.C.G.A. § 21-2-300(c) ......................................................................................... 7, 8
O.C.G.A. § 21-2-300(d) ............................................................................................. 7
OTHER AUTHORITIES
Ga. Comp. R. & Regs. 183-1-12-11(2)(c)-(d) ......................................................... 13
https://covid.cdc.gov/covid-data-tracker/#cases (last visited Aug. 31,
2020) ................................................................................................................... 15
U.S. Const. amend. I ................................................................................................ 17
U.S. Const. amend. XIV .......................................................................................... 17
U.S. Const. amend. XIV, § 1 ................................................................................... 20

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I.

INTRODUCTION

On June 9, 2020, Georgia’s election system experienced a complete
meltdown. The last voters in the June Primary cast their votes after 1:00 a.m.⸺over
six hours after the polls were scheduled to close. Some voters, like Plaintiff Gianella
Contreras Chavez, waited for up to eight hours in the extreme heat and well into the
night simply to cast their votes; others like Plaintiff Lucille Anderson, who returned
to the line multiple times, ultimately could not wait and were disenfranchised. The
June Primary was only the most recent election in which voters were burdened and
even disenfranchised by excessively long lines in Georgia’s elections. For over a
decade, Georgia voters have had to wait in lines significantly longer than the national
average—which is currently only ten minutes—and exponentially longer than the
30-minute cutoff recommended by the Presidential Commission on Election
Administration (“Commission). 1 Ex. 64 (76% of polling locations had wait times of
10 minutes or less and 92% had wait times of 30 minutes or less); Ex. 65 (“The
Commission has concluded that, as a general rule, no voter should have to wait more
than half an hour in order to have an opportunity to vote.”). And voters in the State’s

1

All references to exhibits refer to the Declaration of Amanda J. Beane in Support
of Plaintiffs’ Motion for Preliminary Injunction.
1

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urban and minority communities frequently encounter exceptionally long lines while
voters in suburban and predominantly white communities do not.
“[T]here can come a point when the burden of standing in a queue ceases to
be an inconvenience or annoyance and becomes a constitutional violation because
it, in effect, denies a person the right to exercise his or her franchise.” NAACP State
Conference of Pa. v. Cortés, 591 F. Supp. 2d 757, 764 (E.D. Pa. 2008). Defendants
have well-exceeded that point for over a decade now due to their systemically poor
administration of elections, which has repeatedly caused long lines at the polls,
deterring and disenfranchising Georgia voters. It has become clear that nothing will
change without judicial compulsion: the Court must order preliminary relief so that
Defendants remedy their systematic election problems and Georgia voters no longer
wait longer than anyone else in the country, so that they do not have to choose
between their school, their work, their child care, or—in this coming election, in
particular—their health, just to vote.
II.
A.

BACKGROUND

Georgia’s Recent History is Replete with Voters Facing Long Lines
Since at least 2008, Georgia voters have faced some of the longest average

2

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voting wait times in the country, often waiting hours to vote.2 A more detailed
history is contained in the report of Dr. Jonathan Rodden, a tenured Professor of
Political Science at Stanford University, and summarized here. According to the
Cooperative Congressional election study, Georgia was in the middle of the pack
among U.S. states for wait times in the general elections in 2008 and 2012, although
that meant that many Georgia voters waited over an hour to vote in the 2012 general
election, see Ex. 4, well over the 30-minute average wait time recommended by the
Commission.3 Ex. 61 at 24. By 2014, however, Georgia was one of the states with
the longest average wait times in the country.4 Ex. 61 at 25. And by 2018, Georgia
had the longest voting wait times in the entire country. Ex. 61 at 25 (citing Bipartisan
Policy Center Study).5 Wait times increased more dramatically in Georgia than in

2

Ex. 2 (wait times up to 10 hours in Atlanta and dozens of DeKalb polling locations
averaging 3-hour waits in 2008); Ex. 3 (6-hour lines in Clayton County in 2008).
3
The American Voting Experience: Report and Recommendations of the
Presidential Commission on Election Administration, supra at n. 3.
4
See also Ex. 7 (Fulton County polling locations ordered to stay open late in 2014).
By 2016, voters reported waiting in line to vote for up to five hours. Ex. 9 (long lines
reported in Fulton and DeKalb Counties); Ex. 28; (3-hour wait times in Cobb
County); Ex. 5 (5-hour wait times and lines with up to 400 people in Gwinnett
County); Ex. 21 (long lines in Macon-Bibb County).
5
See also Ex. 8 (Fulton County polling locations ordered to stay open late because
of long lines in 2018); Ex. 10 (2-hour wait times in Fulton and DeKalb Counties);
Ex. 11 (long lines in Gwinnett County because of lack of power cords, machine
failures, and technical issues); Ex. 14 (3-hour wait times in Chatham County); Ex.
19 (long lines in Clayton County). Ex. 22 (long lines in Macon-Bibb County).
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any other state between 2014 and 2018. Ex. 61 at 25. As a direct result, polling
locations have been ordered to stay open late in nearly every election since 2014.
See, e.g., Ex. 7 (2014), Ex. 45 (2017); Exs. 8, 49, 50 (2018); Ex. 41 (2019); Exs. 42,
43, 44, 46, 47, 48, 51, 52, 53, 54, 55, 56, 57, 58 (2020).
Despite having years to fix this problem, Defendants have not. Wait times
only increased during the June Primary when the nation witnessed voters waiting in
extraordinarily long lines across the state, with some waiting for up to eight hours to
vote. See, e.g., Ex. 1, Ex. 31 at ¶¶ 5-7, Ex. 32 at ¶¶ 3-7, Ex. 33 at ¶ 18, Ex. 34 at ¶¶
5-9, Ex. 35 at ¶¶ 6-18. Courts again ordered polling places to stay open late in
multiple counties to avoid disenfranchising voters. See, e.g., Ex. 42 (Chatham); Ex.
43 (Cherokee); Ex. 44 (Cobb); Ex. 46, Ex. 47 (DeKalb); Exs. 20, 48 (Douglas); Ex.
57 (Fulton); Ex. 52 (Henry); Ex. 53 (Lamar); Ex. 54 (Laurens); Ex. 55 (Liberty); Ex.
56 (Pickens); Ex. 57 (Bartow); Ex. 58 (Morgan). Hours-long wait times were
reported in the Counties. 6 see, e.g., Ex. 32 at ¶¶ 3-7 (Cobb: 8 hours); Ex. 35 at ¶¶
10-18 (Fulton: 7 hours); Ex. 36 at ¶¶ 3-10 (DeKalb: 4.5 hours); Exs. 12-13, 17; Ex.
40 (Clayton: 3 hours); Ex. 23; Exs. 41, 42 (Henry: 3 hours). Thousands of voters

6

The term “Counties” refers to the Georgia counties that are the subject of this
lawsuit: Fulton, DeKalb, Cobb, Gwinnett, Clayton, Chatham, Douglas, Henry, and
Macon-Bibb Counties.
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waited outside in the extreme heat, humidity, and rain. Ex. 31 at ¶¶ 5-7, Ex. 34 at ¶¶
8-9, Ex 35 at ¶ 12; Ex. 38 at ¶ 9. Many were forced to leave as conditions worsened,
see e.g. Ex. 36 at ¶¶ 6-9 (DeKalb: 100 voters, i.e. two-thirds of the line, left during
four-hour wait); see also Ex. 38 at ¶ 9; Ex. 17, or because of work schedules, health
concerns, and other commitments. Exs. 31, 37; see also Exs. 67-113.
These long lines were not distributed equally in Georgia. Minority
communities—and particularly those in the Counties named together with the
Secretary

as

Defendants

in

this

action—experienced

long

lines

and

disenfranchisement, while suburban, white and rural communities generally did not.
Ex. 61 at 3. The disparities are striking:
Among polling places where minorities made up over 90% of registered
voters, 36% were forced to stay open over one hour past the specified closing
time in order to accommodate long lines. In the Atlanta metro area, 45% of
such polling places were forced to do so. Among polling places where whites
made up over 90% of registered voters, less than 3% of polling places were
required to stay open late in order to accommodate long lines. In polling places
where minorities constituted more than 90% of active registered voters, the
average minimum wait time in the evening was 51 minutes. When whites
constituted more than 90% of registered voters, the average was around six
minutes.
Id.
The burdens and effects of long lines extend well beyond election day. As Dr.
Rodden explains, the longer a voter has to wait in line, the more they start to lose
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confidence that their vote will be counted. Id. at 14-15. Long lines cause the
electorate as a whole—not just those who personally wait in a long line—to lose
confidence in the election’s accuracy. Troublingly, voters who waited in or
witnessed long lines during the June Primary expressed doubts as to whether votes
had been accurately counted. See e.g., Ex. 33 at ¶ 10, Ex. 39 at ¶¶15-17.
B.

Defendants are responsible for appropriately resourcing polling
locations.
Defendants have clear legal obligations to resource elections. As the chief

elections officer, the Secretary has the responsibility to manage Georgia’s election
system and proscribe uniform procedures. O.C.G.A. § 21-2-50, see also Ex. 66 at
19. The Secretary chairs the Georgia State Election Board (“Board”), which is
responsible for ensuring uniform election processes across the state. O.C.G.A. § 212-31, see also Ex. 66 at 19. Both the Secretary and the Board (collectively “State
Defendants”) have “significant statutory authority to train election officials and set
election standards.” Ex. 66 at 19 (citing O.C.G.A. §§ 21-2-31, 21-2-50(b). The
Secretary’s specific responsibilities include allocating voting equipment to each
county, O.C.G.A. § 21-2-300(a); training county elections officials and furnishing
them with materials needed for elections, O.C.G.A. § 21-2-50(a)(5), (11);
developing and implementing a program “to educate voters, election officials, and
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poll workers in the proper use of such voting equipment.” O.C.G.A. § 21-2-300(d).
He is also responsible for preparing and distributing election materials, such as
ballots and election forms, O.C.G.A. § 21-2-50(a)(1), and is empowered to provide
the counties with sufficient emergency paper ballots in the highly foreseeable event
of voting machine or equipment failures. The Secretary may promulgate rules for
the set up and installation of voting machines, see O.C.G.A. § 21-2-300(c). For
example, he has instructed poll managers to prohibit poll workers from operating or
even plugging in voting machines prior to election day, Ex. 39, and could
appropriately modify this rule as necessary.
The Counties’ boards of election and registration (“County Defendants”) are
responsible for the day-to-day operations of running elections, Ex. 66 at 20,
including to: (1) select and equip polling places; (2) appoint poll officers; (3) make
and issue rules and instructions for poll officers, custodians, and electors; (4) instruct
poll officers in their duties; and (5) systematically and thoroughly inspect the
conduct of elections in the county’s precincts to ensure that elections are honestly,
efficiently, and uniformly conducted. See O.C.G.A. §§ 21-2-40, 21-2-70. In
addition, each county is responsible for providing or contracting for adequate
technical support for the “installation, set up, and operation of” voting equipment.
O.C.G.A. § 21-2-300(c). Thus, in addition to properly training poll workers, the
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Counties should ensure that each polling location has adequate technical support.
C.

Defendants’ failures to allocate sufficient resources cause Georgia’s long
lines.
Plaintiffs’ experts confirm an unsurprising fact: Georgia’s long voting lines

are caused by insufficient and inefficient resource allocation, all due to Defendants’
failures to fulfill their obligations as described above.7 That said, Plaintiffs’ experts
also provide a clear and simple solution: they demonstrate, using voting data and
resource capabilities, how providing adequate and properly allocated resources can
dramatically reduce long voting lines in November.
Number of voters at polling locations. The Counties are using polling
locations serving numbers of voters well over the national average, Ex. 61 at 41-51,
and have been for years. Id.at 18-24. Over the last decade, Georgia’s population has
grown substantially—especially in the Atlanta metro area—while the number of
polling places has been decreasing. Id. at 43. As a result, some polling locations in

7

Due to resistance and delays by Defendants in providing underlying data, Plaintiffs’
experts were only able to offer opinions as to certain counties. Plaintiffs will
supplement their expert reports as needed when they receive data from other
counties. Plaintiffs highlight specific examples of problems here, and otherwise refer
to and incorporate their expert reports, Exs. 61 and 62, for a more complete view of
the problems in each county.
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Georgia serve unusually large numbers of voters, especially in minority
communities, and many serve multiple precincts.
According to the Election Assistance Commission, the overall average of
registered voters per polling station in the United States was 1,547 in 2016. Ex. 61
at 43. In Georgia in June of 2020 it was almost twice as large: 3,046. Id. at 47. As of
2016, 48% of states had less than 1,000 registered voters per polling place on
average, but, as of June 2020, only 15% of Georgia polling places were beneath this
threshold. Id. at 42-43. More than a third—42%—of Georgia polling locations serve
over 3,000 voters. Id. at 43. Of these, 316 serve over 5,000 and 35 serve over 10,000
voters. Id. During the June Primary, five precincts in Fulton County were
consolidated so that a single polling location—Park Tavern—had to serve 16,000
voters. Ex. 1. At least five polling locations in Fulton County served over 10,000
voters, with one location serving 16,000. Ex. 60 at ¶ 14. And while 7% of polling
places that serve a single precinct checked in voters after 8 p.m., a staggering 52%
of polling places serving multiple precincts did so. Ex. 61 at 47-48.
Stark racial disparities are clear here, too. For the June Primary, 32% of
Georgia’s polling places served a population where the majority of voters assigned
to the polling place were minorities, but of polling places serving multiple precincts,
44% were minority-majority. Ex. 61 at 54.
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In the June Primary, polling locations were further overburdened because of
COVID-19 related concerns. Many precincts had to find new polling locations at the
last minute. Ex. 25 For example, Fulton County lost 40 polling locations. Id.
Inefficient/Insufficient Resource Allocation. Dr. Muer Yang, an associate
professor in the Department of Operations and Supply Chain Management, Opus
College of Business, University of St. Thomas, shows that Defendants are not
supporting these overloaded polling places appropriately, and that even minor
changes in resource allocation could improve lines significantly. Ex. 62 at 52-55.
As background, Georgia utilizes a three-stage voting system: first, a poll
worker using a poll pad will check the voter in; second, the voter casts his ballot
using a voting machine (BMD), which will then print out the voter’s completed
ballot; and third, the voter deposits the printed ballot into a scanner. Ex. 62 at 10.
Long lines form when there is an insufficient amount of any one of these items (poll
pads, voting machines, or scanners) for the number of voters present at any given
time. Where there are more voters, more poll pads, voting machines, and scanners
are needed. And in each instance, the number of technicians needed to keep
equipment operating throughout the day must be commensurate to the number of
poll pads, voting machines, and scanners deployed. See generally, Ex. 62 at 52-54.

10

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The field of study that focuses on reducing wait times in lines has developed
well-established methods to achieve wait reductions, one of which is optimized
resource allocation. See Ex. 62 at 6-9. Yet, Georgia has perpetually failed at
appropriate resource allocation. In the June Primary, voting machines were
distributed without properly accounting for the number of voters that each polling
location actually serves. Ex. 62 at 22-23, 27-28. Consequently, and predictably,
polling locations serving large numbers of voters were again woefully
underequipped. Id. State Defendants reportedly provided most polling locations with
only one scanner, regardless of number of voters. Ex. 1. On the other hand, some
polling locations received more voting machines than they could possibly use. Ex.
39 at ¶ 7 (5 voting machines and 5 printers placed in closet at polling location).
What makes this perpetual failure more egregious is the ease with which it is
remedied. Dr. Yang found that if counties had simply re-allocated existing voting
machines to correspond with the distribution of voters—a common-sense approach
that would have been simple to implement—wait times would have been drastically
reduced. Ex. 62 at 21-22, 32-35. For example, in Henry County, where wait times
extended to over two hours, a reallocation of the available voting machines
(increasing them at some locations while decreasing them at others) would have
resulted in an estimated average wait time of no more than four minutes at any
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polling location, and, at the high end, no voter would have waited more than 30
minutes. Ex. 62 at 20-21.
Another problem was the State’s failure to deploy adequate technicians. There
were countless technical issues throughout the state. See e.g. Exs. 5, 12, 18, 24; Ex.
31 at ¶ 7; Ex. 35, ¶¶ 21-25 (Fulton: inoperable voting machines and bottlenecks at
voter check-in); Ex. 39 at ¶ 10 (Cobb: no operational voting machines when polls
opened); Ex. 40 at ¶¶ 3-13 (Clayton: no operational voting machines for nearly four
hours). Nevertheless, the State deployed little more than one technician per county.
Ex. 1. For example, at Park Tavern, a polling location in Fulton County, the average
voter wait time was 94 minutes. Ex. 62 at 31. Dr. Yang estimates that, if machines
had been properly maintained and operational, wait times there would have been cut
by more than one third. Ex. 62 at 31-32. Technical malfunctions were rampant across
the Counties with insufficient technicians to help.8
Dr. Yang also found that a sufficient supply of paper ballots or paper poll
books is a simple way to mitigate delay—and the consequent long lines—caused by

8

See, e.g., Ex. 36 (Fulton: 4-hour delay because check-in machines not working);
Ex. 40 (Clayton: no voting machines working when polls opened); Ex. 17 (Chatham:
voting machines not working and other technical issues across the county); Ex. 23
(Macon-Bibb: delays caused by issues with setting up voting machines); Exs. 1 and
26 (polling locations did not have power sources compatible with voting machine
wattage); Ex. 62 at 37 (Douglas: hour-long lines due to technical or human errors).
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malfunctioning poll pads or voting machines. Ex. 62 at 37, 54. However, counties
failed to adequately supply these. See, e.g., Ex. 36 at ¶ 6; Ex. 40 (polling place with
inoperable voting machines lacked Democratic provisional ballots); Ex. 36 at ¶ 6.
Dr. Yang recommends clear guidance that paper ballots be used once the last voter
in line is going to have to wait longer than 30 minutes. Ex. 62 at 55-56. This
recommendation is consistent with Georgia law, which allows superintendents to
issue paper ballots when wait times exceed 30 minutes. Ga. Comp. R. & Regs. 1831-12-11(2)(c)-(d). This guidance was not uniformly followed during the primary as
wait times, as many voters waited in line for hours without ever having moved. See
e.g. Ex. 36 at ¶¶ 6-9 (line did not move for almost four hours because voting
machines not working); Ex. 37 at ¶¶ 4-5 (polls did not open until 9:00 a.m. because
voting machines not working).
To further compound these problems, polling locations were provided with
inadequate training on how to use the voting equipment. Ex. 1, Ex. 19 (Clayton:
polling location staffed with 2 workers), Ex. 35, ¶ 25 (Fulton polling place
understaffed). Poll managers had no hands-on experience with the new voting
machines and would not allow poll workers—whose only training had been to watch
a poorly executed YouTube video—to test the equipment, turn it on, or otherwise
familiarize themselves with it prior to election day. Ex. 39 at ¶¶ 3-9. Poll workers
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also received conflicting directions—which changed throughout the day—on what
to do if a voter had requested an absentee ballot; no written directions were ever
provided. Ex. 39 at ¶ 12. It is common sense that poll workers must be provided with
adequate training in order to avoid delays. See Ex. 62 at 33, 53.
D.

Defendants have consistently failed to address their systemic underresourcing of polling places.
The June Primary saw record voter turnout, with nearly 2.4 million voters

participating in the election. Ex. 59. According to the Secretary, voter turnout for the
general election in November could reach 5 million. Id. In other words, polling
locations that were far beyond capacity for the June Primary will be expected to
serve at least twice as many voters in November.
The risk of long lines and disenfranchisement is especially high in the context
of the current pandemic.9 During the June Primary, many polling locations cancelled
shortly before the election, as did hundreds of poll workers, because of COVID-19
related concerns. See, e.g., DPG Dec. ¶ 11. Ten percent of polling locations were
relocated, with the greater Atlanta area losing nearly 80 polling places. Ex. 60 at ¶
14. In November, too, overburdened and understaffed precincts will likely have to

9

Georgia is currently fourth in the nation for highest number of COVID-19 cases,
with 268,973 total cases as of August 31, 2020. See https://covid.cdc.gov/coviddata-tracker/#cases (last visited Aug. 31, 2020).
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be combined at the last minute. See e.g., Ex. 1.
The general election is less than three months away, but Defendants have not
taken sufficient, concrete action to ensure that November is not a repeat of the June
Primary. Nor do years of increasing long lines indicate that Defendants can or will
implement sufficient measures to address the turnout expected in November. The
message to the public has been confusing, alternating between the State and Counties
pointing the finger at one another—with the Secretary claiming “this all lays” on the
Counties and the Counties claiming “the buck stops” with the Secretary—and
Defendants purport to be “working together to come up with unique solutions to
voting in a pandemic,” Exs. 1, 59, but Defendants have not informed the public of
any concrete actions they are taking to prevent and remedy long lines. Preliminary
injunctive relief is essential.
III.

ARGUMENT

The Court should grant preliminary relief because: (1) Plaintiffs are highly
likely to succeed on the merits of their claims; (2) they will suffer irreparable harm
without one; (3) that harm outweighs any injury Defendants will suffer because of
an injunction; and (4) an injunction is in the public interest. Carillon Imps., Ltd. v.
Frank Pesce Int’l Grp., Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997).

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A.

Plaintiffs are highly likely to succeed on the merits of their claims.
1.

Defendants’ systemically poor election administration and long
lines severely burden the right to vote.

Plaintiffs are highly likely to prevail on their claims that Defendants’ failures
to remedy systematic long lines violate the U.S. Constitution. When an election law
is challenged under the First and Fourteenth Amendments, courts apply the
Anderson-Burdick balancing test, under which the Court “weigh[s] ‘the character
and magnitude of the asserted injury to the rights . . . the plaintiff seeks to vindicate’
against the ‘precise interests put forward by the State as justifications for the burden
imposed by its rule,’ taking into consideration ‘the extent to which those interests
make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S.
428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 780 (1983)).
The standard is “flexible,” with the rigorousness of scrutiny dependent upon
the extent to which the law burdens voting rights. Id. When those rights are subject
to “severe” restrictions, laws “must be narrowly drawn to advance a state interest of
compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). But even less
severe burdens remain subject to balancing: “[h]owever slight” the burden on voting
rights may appear, “it must be justified by relevant and legitimate state interest
‘sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election
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Bd., 553 U.S. 181, 191 (2008) (controlling op.) (quoting Norman, 502 U.S. at 28889).
Long lines systematically repeated for years, resulting in wait times of
multiple hours across the state, go beyond mere issues of election administration that
otherwise might call for deference to Defendants. Courts have recognized that where
long lines are pervasive and systematic, and where the government refuses to act to
fix the problems, long lines are an unconstitutional burden on the right to vote,
worthy of court intervention. Cortés, 591 F. Supp. 2d at 765 (noting “[h]istory is our
guide” and relying on evidence from past elections in determining there was a “real
danger” of machine malfunction “likely to cause unacceptably long lines” on
election day); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th
Cir. 2008) (allegations of long lines, and of longer lines in some counties than in
other counties, could state an equal protection claim).
And Georgia presents a particularly stark example of the problem. Lines
longer than even 30 minutes can and do result in disenfranchisement. But in recent
elections, Georgia voters suffered in lines that lasted up to eight hours, with the last
voter casting their ballot at 1:00 a.m. That is a travesty under any circumstance but
it falls particularly hard on working voters. Many simply cannot afford these wait
times and, indeed, countless voters left the lines in the June Primary as a result of
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significant wait times. Ex. 61, 14-16, 69; see also, e.g., Ex. 36 at ¶¶ 6-9, Ex. 38 at ¶
9, Ex. 40 at ¶ 6.
A burden on the right to vote that results in disenfranchisement is, at the risk
of stating the obvious, a severe burden. See, e.g., NGP, et al. v. Raffensperger, No.
1:20-cv-1986, slip op. 57-58 (N.D. Ga. Aug. 31, 2020) (finding repeated
disenfranchisement of thousands of Georgia voters due to Defendants’ poor
administration of elections severe); Ga. Coal. for People’s Agenda, Inc. v. Kemp,
347 F. Supp. 3d 1251, 1264 (N.D. Ga. 2018) (finding severe burden where 3,141
individuals would have been disenfranchised). Regardless, total disenfranchisement
is not needed to find a severe burden-—it is enough that right to vote is burdened, as
it is here, with hours needed to cast one’s ballot. Cortés, 591 F. Supp. 2d at 765
(“The delay resulting from a situation where 50% or more of the voting machines
are inoperable will unduly burden and thus deprive many citizens of their right to
vote.”).
And, worse, the burden is far from equally distributed. Dr. Rodden confirmed
what even a casual observer would notice: there are significant racial disparities
when it comes to who is standing in long lines in Georgia. Ex. 61 at 3, 36-38. In
polling places where minorities constituted 90% of voters, the average minimum
wait time in the evening was 51 minutes. Id. But when whites constituted 90% of
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voters, the average was merely 6 minutes. Id. This is a staggering difference. And
long lines are especially hard on low-income and minority voters, who often work
as shift laborers with unforgiving schedules and difficult child care arrangements.
“Disparate impact matters under Anderson-Burdick.” League of Women Voters of
Fla., Inc., v. Detzner, 314 F. Supp. 3d 1205, 1216 (N.D. Fla. 2018) (citing
Crawford).
2.

Long lines in Georgia treat similarly situated voters differently in
violation of the Equal Protection Clause.

The Equal Protection Clause prohibits a state from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, §
1. It requires that “all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Equal Protection
Clause’s protections extend to voting. “Having once granted the right to vote on
equal terms, the State may not, by later arbitrary and disparate treatment, value one
person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
“When a state adopts an electoral system, the Equal Protection Clause . . . guarantees
qualified voters a substantive right to participate equally with other qualified voters
in the electoral process. Fla. State Conference of NAACP v. Browning, 522 F.3d
1153, 1185 (11th Cir. 2008) (citations omitted). The Anderson-Burdick standard
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applies to Equal Protection claims based on disparate burdens on the right to vote.
Obama for America v. Husted, 697 F.3d 423, 430 (6th Cir. 2012).
The Defendants’ continued failure to prevent or remedy extremely long lines
at polling locations within the Georgia Counties as compared to other counties or
between polling locations within a single county imposes widely different burdens
on voters across the State and within counties in violation of equal
protection. See Ex. 62, 18-19 (showing highly disparate wait times within one
county), 24 (showing almost non-existent wait times in Athens-Clarke county, which
stands in contrast to the Georgia Counties).
And, as discussed above, the racial disparity is also stark, with waiting times
significantly longer at locations serving mostly minority populations as compared to
white voters. Ex. 61 at 3, 36-38. Further, polling places serving a majority of
minority voters having hundreds more active voters assigned as compared to polling
places serving a majority of white voters. Ex. 61 at 50-51.
This disparate allocation of resources among the state and within the counties,
as well as the significant racial disparity, constitutes a violation of equal protection.
See Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969) (failure to provide “substantially
equal voting facilities” violated equal protection); Wexler v. Anderson, 452 F.3d
1226, 1231–32 (11th Cir. 2006) (finding a non-uniform voting practice that makes
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it “less likely” a person in one county will “cast an effective vote” than a voter in
another county is a question “of constitutional dimension”); Ne. Ohio Coal. for the
Homeless v. Husted, 696 F.3d 580, 598 (6th Cir. 2012) (plaintiff may state equalprotection claim by alleging lack of statewide standards results in a system that
deprives citizens of the right to vote based on where they live).
3.

No state interest justifies the long lines.

Forcing voters to wait in long lines to cast a ballot imposes severe restrictions
on the right to vote and are therefore subject to strict scrutiny. Norman, 502 U.S. at
289; see Ex. 61 at 13-14 (citing evidence that long lines deter voters and leads to
lower voter turnout). But whether subject to strict scrutiny or something less, neither
the State nor the Counties have any legitimate interest in failing to implement the
changes that would cure these lines, let alone an “interest of compelling importance,”
and therefore their failures to remedy the long lines do not withstand any level of
scrutiny. Id. Indeed, it is their very job to do so. See Section B, supra.
After over a decade of Georgia steadily climbing to set the record for longest
wait times in the country, no administrative burden can justify Defendants’ refusal
to remedy the long lines. See, e.g., Taylor v. Louisiana., 419 U.S. 522, 535 (1975)
(holding “administrative convenience” cannot justify practices that impinge upon
fundamental rights); Georgia Coalition, 347 F. Supp. 3d at 1268 (holding increased
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administrative burden “is minimal compared to the potential loss of a right to
vote”). As Dr. Yang’s report makes clear, even slight tweaks in resource allocation
could substantially reduce wait times to vote. Ex. 62 at 51-52. For example, wait
times would be much shorter if election officials simply accounted for the number
of voters served by each polling location and allocating machines based on the
expected turnout. Id.
4.

Long lines in Georgia violate the Due Process Clause.

“The Due Process Clause protects against extraordinary voting restrictions
that render the Voting System ‘fundamentally unfair.’” Ne. Ohio Coal. for the
Homeless v. Husted, 696 F.3d 580, 597 (6th Cir. 2012); see also Warf v. Bd. of
Elections

of

Green Cty.,

Ky.,

619

F.3d

553,

559

(6th

Cir.

2010). “[S]ubstantial changes to state election procedures and/or the implementation
of non-uniform standards run afoul of due process if they ‘result in significant
disenfranchisement and vote dilution[.]’” Husted, 696 F.3d at 597; see also Warf,
619 F.3d at 559.  
Defendants have buried their heads in the sand as wait times to vote have
increased to the point where Georgia now has the longest waits in the country,
resulting in significant disenfranchisement of Georgia voters for over a decade. This
renders the failure to remedy long lines “fundamentally unfair.” See League of
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Women Voters of Ohio v. Brunner, 548 F.3d 463, 475-78 (6th Cir. 2008) (holding
plaintiffs stated valid substantive due process claim by alleging State chronically
failed to provide “systems, procedures, and funding” to local election officials); see
also Husted, 696 F.3d at 597 (failures to implement uniform standards violates due
process if they ‘result in significant disenfranchisement and vote dilution[.]’”).
B.

Plaintiffs will suffer irreparable harm absent an injunction.
The violation of a constitutional right, especially the right to vote, is

irreparable. See Martin v. Kemp, 341 F. Supp. 3d 1326, 1340 (N.D. Ga. 2018). No
one in this country should have to wait hours to vote, much less stand in line until 1
a.m., or come back repeatedly in hopes of a shorter line after a long day at work, or
trade their health, their job, their schooling, to exercise this most fundamental right.
A failure to fix this problem now cannot be undone in November. League of Women
Voters of North Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014)
(“[O]nce the election occurs, there can be no do-over and no redress.”).
Absent relief, individual plaintiffs, Georgia voters, and the organizational
plaintiffs will all suffer irreparable harm.10 Ex. 30 at ¶ 9; Ex. 31 at ¶ 8; Ex. 32 at ¶ 8;

Georgia has a history of letting deeply problematic voting rights issues fester until
a federal court intervenes. See Curling v. Kemp, 334 F.Supp.3d 1303, 1327 (N.D.
Ga. 2019 (testimony and evidence indicated that “State election officials had buried

10

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Ex. 60 at ¶¶ 18-19; Ex. 63, ¶¶ 10-11; see also Ga. Coalition for the People’s Agenda
v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018) (“plaintiffs’ organizational
missions, including registration and mobilization efforts, will continue to be
frustrated and organization resources will be diverted to assist” with the challenged
law, as “[s]uch mobilization opportunities cannot be remedied once lost”).
C.

The balance of the equities and the public interest favor an injunction.
The balance of the equities favors the relief that Plaintiffs seek. This Court

has found that “[t]he potential hardships that Georgia might experience are minor
when balanced against the right to vote, a right that is essential to an effective
democracy.” United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012).
Plaintiffs and other Georgia voters face severe burdens and potential
disenfranchisement by having to wait in line for hours to vote. See, e.g., Ex. 30, Ex.
31, ¶¶ 5-7, Ex. 32, ¶¶ 3-7, Exs. 67-113. Defendants will not be burdened by an
injunction that requires them to do their job: implement common sense measures to
ensure voters are not burdened by long lines. See, e.g., Corby v. Scranton Housing
Authority, 2005 WL 6789319, at *4 (M.D. Pa. June 7, 2005) (“An injunction

their heads in the sand” about security vulnerabilities permitted by outdated voting
software system, which “wound[ed] or reasonably threatened to wound the integrity
of the state’s election system”).
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requiring Defendants to follow [federal law] presents no additional burden upon
Defendants.”).  
Issuing the requested injunction is also in the public interest, which “is served
when constitutional rights are protected.” Democratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1327 (11th Cir. 2019) (citation omitted). See also Jones v. Governor
of Fla., 950 F.3d 795, 831 (11th Cir. 2020) (“The public, of course, has every interest
in ensuring that their peers who are eligible to vote are able to do so in every
election.”); Georgia Coal. for People’s Agenda, Inc., 347 F. Supp. 3d at 1268
(finding injunctive relief in public’s interest to ensure there was “a procedure in place
to allow every eligible Georgia citizen to register and vote”). A preliminary
injunction would ensure Georgians are able to exercise their right to vote in the
November election and reduce voters’ risk of exposure to COVID-19. That risk of
danger to public health is substantial, imminent, and ongoing. The public interest
factor therefore strongly favors the granting of injunctive relief.  
IV.

CONCLUSION

For all of these reasons, Plaintiffs respectfully request that the Court issue a
preliminary injunction requiring Defendants to provide sufficient election resources
to prevent voters from having to wait in unreasonably long lines on Election Day in
accord with the optimization approach outlined in Dr. Yang’s report.
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Dated: September 1, 2020

Respectfully submitted,
/s/ Adam M. Sparks
Halsey G. Knapp, Jr.
Georgia Bar No. 425320
Joyce Gist Lewis
Georgia Bar No. 296261
Adam M. Sparks
Georgia Bar No. 341578
KREVOLIN & HORST, LLC
One Atlantic Center
1201 W. Peachtree Street, NW, Ste. 3250
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Marc E. Elias*
Amanda R. Callais*
Jacki L. Anderson*
Tre Holloway*
PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Kevin J. Hamilton*
Amanda J. Beane*
Heath Hyatt*
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
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Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Marcus Haggard*
PERKINS COIE LLP
1900 Sixteenth Street, Suite 1400
Denver, CO 80202-5255
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Molly Mitchell*
PERKINS COIE LLP
1111 West Jefferson Street, Suite 500
Boise, ID 83702-5391
Telephone: [phone]
Facsimile: [phone]
[e-mail]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LUCILLE ANDERSON, et al.,
Civil Action No. 1:20-cv-03263-MLB
Plaintiffs,
v.
BRAD RAFFENSPERGER, et al.,
Defendants.

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document has been prepared in accordance
with the font type and margin requirements of L.R. 5.1, using font type of Times
New Roman and a point size of 14.
Dated: September 1, 2020

Adam M. Sparks
Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LUCILLE ANDERSON, et al.,
Civil Action No. 1:20-cv-03263-MLB
Plaintiffs,
v.
BRAD RAFFENSPERGER, et al.,
Defendants.

CERTIFICATE OF SERVICE
I hereby certify that on August ___ 2020, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send a notice of
electronic filing to all counsel of record.
Dated: September 1, 2020

Adam M. Sparks
Counsel for Plaintiffs

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