Wood v. Raffensperger et al
OPINION AND ORDER denying the 6 Emergency MOTION for Temporary Restraining Order. Signed by Judge Steven D. Grimberg on 11/20/2020. (jed)
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
L. LIN WOOD, JR.,
BRAD RAFFENSPERGER, in his official
capacity as Secretary of State of Georgia;
REBECCA N. SULLIVAN, in her official
capacity as Vice Chair of the Georgia State
Election Board; DAVID J. WORLEY, in his
official capacity as a Member of the Georgia
State Election Board; MATTHEW
MASHBURN, in his official capacity as a
Member of the Georgia State Election Board;
and ANH LE, in her official capacity as a
Member of the Georgia State Election Board,
Civil Action No.
OPINION AND ORDER
This matter is before the Court on a motion for temporary restraining order
filed by Plaintiff L. Lin Wood, Jr. [ECF 6]. For the following reasons, and with the
benefit of oral argument, Wood’s motion is DENIED.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 2 of 38
On November 3, 2020, the United States conducted a general election for
various federal, state, and local political offices (the General Election).1 However,
the voting process in Georgia began in earnest before that date. On September 15,
2020, local election officials began mailing absentee ballots for the General Election
to eligible voters.2 On October 12, 2020, Georgia’s in-person, early voting period
started.3 This entire process played out amidst the throes of a global health
pandemic caused by the novel coronavirus SARS-CoV-2—colloquially known as
COVID-19. Due in large part to the threat posed by COVID-19, an overwhelming
number of Georgia voters—over 1 million of the 5 million votes cast by November
3—participated in the General Election through the use of absentee ballots.4
Wood, a registered voter in Fulton County, Georgia, believes Defendants—
the elected officials tasked with conducting elections in the state—performed their
roles in an unconstitutional manner. As such, Wood initiated this action on
Elections and Voter Registration Calendars, https://sos.ga.gov/index.php/electi
ons/elections_and_voter_registration_calendars (last accessed Nov. 19, 2020).
ECF 33-2; ECF 33-6; ECF 33-8.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 3 of 38
November 13, 2020, ten days after the conclusion of the General Election.5
On November 16, Wood filed an Amended Complaint, asserting three claims
against Defendants—all in their official capacities—for violation of: the First
Amendment and the Equal Protection Clause of the Fourteenth Amendment
(Count I); the Electors and Elections Clause of the Constitution (Count II); and the
Due Process Clause of the Fourteenth Amendment (Count III).6
Counts I and II seek extraordinary relief:
As a result of Defendants’ unauthorized actions and
disparate treatment of defective absentee ballots, this
Court should enter an order, declaration, and/or
injunction that prohibits Defendants from certifying the
results of the 2020 general election in Georgia on a
Alternatively, this Court should enter an order,
declaration, and/or injunction prohibiting Defendants
from certifying the results of the General Election which
include the tabulation of defective absentee ballots,
regardless of whether said ballots were cured.
Alternatively, this Court should enter an order,
declaration, and/or injunction that the results of the 2020
general election in Georgia are defective as a result of the
above-described constitutional violations, and that
Defendants are required to cure said deficiencies in a
manner consistent with federal and Georgia law, and
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without the taint of the procedures described in the
For Count III, Wood requests an order, declaration, and/or injunction requiring
Defendants to perform a myriad of activities, including ordering a second recount
prior to the certification of the election results and permitting monitors designated
by the Republican Party to have special access to observe all election activity.8
On November 17, 2020, Wood filed an emergency motion for a temporary
restraining order.9 Two sets of parties subsequently sought permission to
intervene as defendants (collectively, the Intervenors): (1) the Democratic Party of
Georgia, Inc. (DPG), DSCC, and DCCC; and (2) the Georgia State Conference of
the NAACP (Georgia NAACP) and Georgia Coalition for the People’s Agenda
(GCPA).10 On November 19, Defendants and Intervenors filed separate responses
in opposition to Wood’s motion for a temporary restraining order.11 The Court
held oral argument on Wood’s motion the same day. At the conclusion of the oral
E.g., ECF 5, ¶¶ 81–83, 93–95. The Litigation Settlement—also referred to as the
Settlement Agreement—is discussed infra in Section I.b.
ECF 5, ¶ 106.
ECF 8; ECF 22.
ECF 31; ECF 34; ECF 39.
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argument, the Court denied Wood’s request for a temporary restraining order.
This Order follows and supplements this Court’s oral ruling.
Georgia Statutory Law Regarding Absentee Ballots.
Georgia law authorizes any eligible voter to cast his or her absentee ballot
by mail without providing a reason. O.C.G.A. § 21-2-380(b). To initiate the
absentee-voting process, a prospective voter must submit an application to the
applicable registrar’s or absentee ballot clerk’s office. O.C.G.A. § 21-2-381(a)(1)(A).
Upon receipt of a timely absentee ballot request, a registrar or absentee ballot clerk
must enter the date the office received the application and compare the
prospective voter’s information and signature on the application with the
information and signature on file in the registrar’s or clerk’s office. O.C.G.A. § 212-381(b)(1). If the prospective voter’s eligibility is confirmed, the registrar or clerk
must mail the voter an absentee ballot. O.C.G.A. § 21-2-381(b)(2)(A).
An absentee voter receives two envelopes along with the absentee ballot;
the completed ballot is placed in the smaller envelope, which is then placed in the
larger envelope, which contains the oath of the elector and a signature line.
O.C.G.A. § 21-2-384(b). Upon receipt of a timely absentee ballot, a registrar or clerk
is required to compare the identifying information and signature provided in the
oath with the information and signature on file in the respective office.
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O.C.G.A. § 21-2-386(a)(1)(B). If the information and signature appear to match, the
registrar or clerk signs his or her name below the voter’s oath. Id. If the information
or signature is missing or does not appear to match, the registrar or clerk is
required to write “Rejected” across the envelope and provide the reason for the
rejection. O.C.G.A. § 21-2-386(a)(1)(C). The board of registrars or absentee ballot
clerk is required to “promptly notify” the elector of the rejection, who then has
until the end of the period for verifying provisional ballots to cure the issue that
resulted in the rejection. Id.
Secretary of State Raffensperger is “the state’s chief election official.”
O.C.G.A. § 21-2-50(b). See also Ga. Op. Att’y Gen. No. 2005-3 (Apr. 15, 2005)
(“Just as a matter of sheer volume and scope, it is clear that under both the
Constitution and the laws of the State the Secretary is the state official with the
power, duty, and authority to manage the state’s electoral system. No other state
official or entity is assigned the range of responsibilities given to the Secretary of
State in the area of elections.”). In this role, Raffensperger is required to, among
other things, “promulgate rules and regulations so as to obtain uniformity in the
practices and proceedings of superintendents, registrars, deputy registrars, poll
officers, and other officials” and “formulate, adopt, and promulgate such rules and
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regulations, consistent with law, as will be conducive to the fair, legal, and orderly
conduct of primaries and elections.” O.C.G.A. § 21-3-31(1)-(2).
The Settlement Agreement
Wood does not challenge the underlying constitutionality of the absentee
ballot framework enacted by the Georgia General Assembly. The genesis of his
claims instead derive from a lawsuit filed over one year ago by the DPG against
Raffensperger, the then-Members of the Georgia State Election Board, and the
then-Members of the Gwinnett County Board of Registration and Elections.12
In that action, the DPG, DSCC, and DCCC challenged several aspects of the
process for rejecting absentee ballots based on a missing or mismatched
On March 6, 2020, the DPG, DSCC, DCCC, Raffensperger, and the Members
of the Georgia State Election Board executed—and filed on the public docket—a
“Compromise Settlement Agreement and Release” (Settlement Agreement).14
As part of the Settlement Agreement, Raffensperger agreed to issue an Official
Election Bulletin containing certain procedures for the review of signatures on
Democratic Party of Ga., Inc. v. Raffensperger, 1:19-cv-05028-WMR (ECF 1)
Id. at ECF 56 (Settlement Agreement).
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absentee ballot envelopes by county election officials for the March 24, 2020
Presidential Primary Election and subsequent General Election. In relevant part,
the procedures stated:
When reviewing an elector’s signature on the mail-in
absentee ballot envelope, the registrar or clerk must
compare the signature on the mail-in absentee ballot
envelope to each signature contained in such elector’s
voter registration record in eNet and the elector’s
signature on the application for the mail-in absentee
ballot. If the registrar or absentee ballot clerk
determines that the voter’s signature on the mail-in
absentee ballot envelope does not match any of the
voter’s signatures on file in eNet or on the absentee
ballot application, the registrar or absentee ballot clerk
must seek review from two other registrars, deputy
registrars, or absentee ballot clerks. A mail in absentee
ballot shall not be rejected unless a majority of the
registrars, deputy registrars, or absentee ballot clerks
reviewing the signature agree that the signature does
not match any of the voter’s signatures on file in eNet
or on the absentee ballot application. If a determination
is made that the elector’s signature on the mail-in
absentee ballot envelope does not match any of the
voter’s signatures on file in eNet or on the absentee ballot
application, the registrar or absentee ballot clerk shall
write the names of the three elections officials who
conducted the signature review across the face of the
absentee ballot envelope, which shall be in addition to
writing “Rejected” and the reason for the rejection as
required under OCGA 21-2-386(a)(1)(C).15
Id. (emphasis added).
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No entity or individual sought permission to intervene and challenge the
Settlement Agreement. United States District Judge William M. Ray closed the case
on March 9.16
The Risk-Limiting Audit
Georgia law provides procedures for conducting a “risk-limiting audit”
prior to the final certification of an election. O.C.G.A. § 21-2-498. Such an audit
must be “[c]omplete[d] . . . in public view.” O.C.G.A. § 21-2-498(c)(4). And the
State Election Board is “authorized to promulgate rules, regulations, and
procedures to implement and administer” an audit, including “security
procedures to ensure that [the] collection of validly cast ballots is complete,
accurate, and trustworthy throughout the audit.” O.C.G.A. § 21-2-498(d).
See also Ga. Comp. R. & Regs. 183-1-15-.04 (2020).
On November 11, 2020, Raffensperger announced a statewide risk-limiting
audit (the Audit)—also referred to as a “full hand recount”—of all votes cast in the
contest for President of the United States.17 Every county in Georgia was required
to begin the Audit at 9:00 am on November 13 and finish by 11:59 pm on
Id. at ECF 57.
ECF 33-1; ECF 33-2; ECF 33-3.
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November 18.18 The statewide election results are set to be certified on
November 20.19 Raffensperger required the Audit to “be open to the public and
the press” and required local election officials to “designate a viewing area from
which members of the public and press may observe the audit for the purpose of
good order and maintaining the integrity of the audit.”20 The two major political
parties—Democratic and Republican—were permitted “the right to have one
properly designated person as a monitor of the audit for each ten audit teams that
are conducting the audit, with a minimum of two designated monitors in each
county per party per room where the audit is being conducted.”21 The designated
monitors were not required to remain in the public viewing areas, but were
required to comply with the rules promulgated by Raffensperger and the local
election officials.22 The Audit process differs from that required by Georgia law for
a recount requested by a unsuccessful candidate following the official certification
of votes. See O.C.G.A. § 21-2-524.
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The standard for the issuance of a temporary restraining order and a
preliminary injunction are identical. Windsor v. United States, 379 F. App’x 912,
916–17 (11th Cir. 2010). A preliminary injunction is “an extraordinary remedy.”
Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011). To obtain the relief he seeks,
Wood must affirmatively demonstrate: “(1) substantial likelihood of success on
the merits; (2) [that] irreparable injury will be suffered unless the injunction issues;
(3) the threatened injury to [him] outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest.” McDonald’s Corp. v. Robertson, 147 F.3d 1301,
1306 (11th Cir. 1998). See also Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)
(“In this Circuit, a preliminary injunction is an extraordinary and drastic remedy
not to be granted unless the movant clearly established the burden of persuasion
as to each of the four prerequisites.”).
Wood’s motion essentially boils down to two overarching claims:
that Defendants violated the Constitution by (1) executing and enforcing the
Settlement Agreement to the extent it requires different procedures than the
Georgia Election Code, and (2) not permitting designated monitors to have certain
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live viewing privileges of the Audit at the county locations. Defendants and
Intervenors posit a number of challenges to Wood’s claims.
As a threshold matter, the Court finds Wood lacks standing to assert these
claims. Article III limits federal courts to the consideration of “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. The doctrine of standing “is an
essential and unchanging part of the case-or-controversy requirement of
Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). It is “built on
separation-of-powers principles” and “serves to prevent the judicial process from
being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 408 (2013). See also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (“[N]o principle is more fundamental to the judiciary’s proper role in our
system of government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.”) (quoting Raines v. Byrd, 521 U.S. 811,
818 (1997)). The standing inquiry is threefold: “The litigant must prove (1) an
injury in fact that (2) is fairly traceable to the challenged action of the defendant
and (3) is likely to be redressed by a favorable decision.” Jacobson v. Fla. Sec’y of
State, 974 F.3d 1236, 1245 (11th Cir. 2020) (citing Lujan, 504 U.S. at 561). Wood must
“demonstrate standing for each claim he seeks to press and for each form of relief
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that is sought”—Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650
Lujan, 504 U.S. at 561.
Injury in fact is “the first and foremost of standing’s three elements” and
requires Wood to show that he suffered “an invasion of a legally protected interest
that is concrete and particularized and actual or imminent, not conjectural or
hypothetical.” Spokeo, 136 S. Ct. at 1547–48. To be “particularized,” the alleged
injury “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S.
at 561 n.1. Wood must demonstrate “a personal stake in the outcome of the
controversy,” as a federal court “is not a forum for generalized grievances.” Gill v.
Whitford, 138 S. Ct. 1916, 1929 (2018). This requires more than a mere “keen interest
in the issue.” Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018). The alleged injury must
be “distinct from a generally available grievance about government.”
Gill, 138 S. Ct. at 1923. See also id. at 1929 (explaining that a person’s “right to vote
is individual and personal in nature . . . [t]hus [only] voters who allege facts
showing disadvantage to themselves as individuals have standing to sue to
remedy that disadvantage”) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964);
Baker v. Carr, 369 U.S. 186, 206 (1962)). Claims premised on allegations that “the
law . . . has not been followed . . . [are] precisely the kind of undifferentiated,
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generalized grievance about the conduct of government . . . [and] quite different
from the sorts of injuries alleged by plaintiffs in voting rights cases where we have
found standing.” Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324, 1332–33 (11th Cir.
2007) (citing Baker, 369 U.S. at 207–08). See also Lance v. Coffman, 549 U.S. 437, 440–
41 (2007) (“Our refusal to serve as a forum for generalized grievances has a lengthy
pedigree. . . . [A] generalized grievance that is plainly undifferentiated and
common to all members of the public” is not sufficient for standing).
Wood alleges he has standing because he is “a qualified registered elector
residing in Fulton County, Georgia” who has “made donations to various
Republican candidates on the ballot for the November 3, 2020 elections, and his
interests are aligned with those of the Georgia Republican Party for the purposes
of the instant lawsuit.”23 These allegations fall far short of demonstrating that
Wood has standing to assert these claims.
The Elections and Electors Clause
Starting with his claim asserted under the Elections and Electors Clause,
Wood lacks standing as a matter of law. The law is clear: A generalized grievance
regarding a state government’s failure to properly follow the Elections Clause of
ECF 5, ¶ 8.
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the Constitution does not confer standing on a private citizen.24 Lance, 549 U.S. at
442; Bognet, 2020 WL 6686120, at *6 (“[P]rivate plaintiffs lack standing to sue for
alleged injuries attributable to a state government’s violations of the Elections
Clause. . . . Their relief would have no more directly benefitted them than the
public at large.”); Dillard, 495 F.3d at 1332–33.
For his equal protection claim, Wood relies on a theory of vote dilution, i.e.,
because Defendants allegedly did not follow the correct processes, invalid
absentee votes may have been cast and tabulated, thereby diluting Wood’s inperson vote. But the same prohibition against generalized grievances applies to
equal protection claims. United States v. Hays, 515 U.S. 737, 743 (1995) (“The rule
against generalized grievances applies with as much force in the equal protection
context as in any other.”) Wood does not differentiate his alleged injury from any
Although separate constitutional provisions, the Electors Clause and Elections
Clause share “considerably similarity” and may be interpreted in the same
manner. Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 839
(2015) (Roberts, C.J., dissenting). See also Bognet v. Sec’y Commonwealth of Pa.,
No. 20-3214, 2020 WL 6686120, at *7 (3d Cir. Nov. 13, 2020) (applying same test
for standing under both Elections Clause and Electors Clause); Donald J. Trump
for President, Inc. v. Bullock, No. CV 20-66-H-DLC, 2020 WL 5810556, at *11
(D. Mont. Sept. 30, 2020) (“As an initial matter, the Court finds no need to
distinguish between the term ‘Legislature’ as it is used in the Elections Clause
as opposed to the Electors Clause.”).
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harm felt in precisely the same manner by every Georgia voter. As Wood conceded
during oral argument, under his theory any one of Georgia’s more than seven
million registered voters would have standing to assert these claims. This is a
textbook generalized grievance. Bognet, 2020 WL 6686120, at *12 (“Voter Plaintiffs’
dilution claim is a paradigmatic generalized grievance that cannot support
standing. . . . Put another way, a vote cast by fraud or mailed in by the wrong
person through mistake, or otherwise counted illegally, has a mathematical impact
on the final tally and thus on the proportional effect of every vote, but no single
voter is specifically disadvantaged. Such an alleged dilution is suffered equally by
all voters and is not particularized for standing purposes.”) (internal punctuation
omitted) (collecting cases); Moore v. Circosta, No. 1:20-cv-911, 2020 WL 6063332, a
*14 (M.D.N.C. Oct. 14, 2020) (“[T]he notion that a single person’s vote will be less
valuable as a result of unlawful or invalid ballots being cast is not a concrete and
particularized injury in fact necessary for Article III standing.”). See also Citizens for
Fair Representation v. Padilla, 815 F. App’x 120, 123 (9th Cir. 2020) (dismissing equal
protection claim for lack of standing and stating “the Supreme Court has
consistently held that a plaintiff raising only a generally available grievance . . .
does not state an Article III case or controversy.”).
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For the same reasons, Wood also does not have standing to pursue his due
process claim. Wood asserts that various election monitors appointed by the
Republican Party “have been denied the opportunity to be present throughout the
entire Hand Recount, and when allowed to be present, they were denied the
opportunity to observe the Hand Recount in any meaningful way.”25 Yet, Wood
does not allege that he attempted to participate as a designated monitor. Nor does
he allege that, on behalf of the Republican Party, he himself designated monitors
who were ultimately denied access. Wood’s broad objection is that Defendants
failed to conduct the Audit fairly and consistently under Georgia law. This is a
generalized grievance.26 Lance, 549 U.S. at 440–41. See also Nolles v. State Comm. for
Reorganization of Sch. Dists., 524 F.3d 892, 900 (8th Cir. 2008) (voters lacked standing
because substantive due process claim that delay of implementation of new statute
ECF 6, at 21.
To the extent Wood attempts to rely on a theory of third party standing, the
Court disagrees; the doctrine is disfavored and Wood has not alleged or
proven any of the required elements—that (1) he “suffered an injury-in-fact
that gives [him] a sufficiently concrete interest in the dispute”; (2) he has “a
close relationship to the third party”; and (3) there is “a hindrance to the third
party’s ability to protect its own interests.” Aaron Private Clinic Mgmt. LLC v.
Berry, 912 F.3d 1330, 1339 (11th Cir. 2019) (internal quotation marks omitted).
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 18 of 38
until after referendum election violated their right to fair election did not allege
Alignment with Non-Parties
Wood further points to his status as a donor to the Republican Party whose
interests are aligned with that party and its political candidates to support his
standing argument. But this does not sufficiently differentiate his alleged injury
from that which any voter might have suffered—no matter the party affiliation.
Ostensibly, Wood believes he suffered a particularized injury because his
preferred candidates—to whom he has contributed money—did not prevail in the
General Election. This argument has been squarely rejected by the Eleventh
Circuit. Jacobson, 974 F.3d at 1247 (“A candidate’s electoral loss does not, by itself,
injure those who voted for the candidate. Voters have no judicially enforceable
interest in the outcome of an election. Instead, they have an interest in their ability
to vote and in their vote being given the same weight as any other.”)
(internal citation omitted).
Lack of Relevant Authorities
Finally, the Court notes the futility of Wood’s standing argument is
particularly evident in that his sole relied-on authority—Meek v. Metropolitan Dade
County, Florida, 985 F.2d 1471 (11th Cir. 1993)—is no longer good law. The Eleventh
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Circuit expressly abrogated its holding in that case over thirteen years ago. Dillard,
495 F.3d at 1331–32 (“We subsequently upheld Meek’s reasoning against repeated
challenges that it was wrongly decided in light of the Supreme Court’s later
decisions . . . [b]ut it is clear that we can no longer do so in light of the Supreme
Court’s most recent pronouncement on voter standing in Lance.”).
During oral argument, Wood additionally pointed to Roe v. State of Alabama
by & through Evans, 43 F.3d 574 (11th Cir. 1995), but that case does not support
Wood’s standing argument. For example, two plaintiffs in Roe were candidates for
a political office decided in the challenged election. Id. at 579. Wood is a private
citizen, not a candidate for any elected office. Moreover, the Eleventh Circuit
found particularized harm in the post-election inclusion of absentee ballots that
had been deemed invalid. Id. at 580. Wood here seeks to do the opposite—remove
validly cast absentee ballots after completion of the election.
In sum, Wood lacks standing to pursue these claims in the first instance.
The Doctrine of Laches
Even if the Court found Wood possessed standing to pursue his claims
regarding the Settlement Agreement (Counts I and II), such claims would
nonetheless be barred by the doctrine of laches. To establish laches, Defendants
must show “(1) there was a delay in asserting a right or a claim, (2) the delay was
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not excusable, and (3) the delay caused [them] undue prejudice.” United States v.
Barfield, 396 F.3d 1144, 1150 (11th Cir. 2005). See also Democratic Exec. Comm. of Fla.
v. Lee, 915 F.3d 1312, 1326 (11th Cir. 2019) (“To succeed on a laches claim,
[defendant] must demonstrate that [p]laintiffs inexcusably delayed bringing their
claim and that the delay caused it undue prejudice.”). Courts apply laches in
election cases. E.g., Sanders v. Dooly Cnty., Ga., 245 F.3d 1289, 1291 (11th Cir. 2001)
(“[W]e conclude that the district court did not abuse its discretion in deeming the
claims seeking injunctive relief to be laches-barred.”). See also, e.g., Detroit Unity
Fund v. Whitmer, 819 F. App’x 421, 422 (6th Cir. 2020) (holding district court did
not err in finding that plaintiff’s claims regarding deadline for local ballot
initiatives “barred by laches, considering the unreasonable delay on the part of
[p]laintiffs and the consequent prejudice to [d]efendants”). Cf. Benisek v. Lamone,
138 S. Ct. 1942, 1944 (2018) (“[A] party requesting a preliminary injunction must
generally show reasonable diligence. That is as true in election law cases as
elsewhere.”) (internal citation omitted). Defendants have established each element
First, Wood delayed considerably in asserting these claims. On March 6,
2020, the GDP, DSCC, DCCC, and Defendants executed the Settlement
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Agreement, which was entered on the public docket. It has since been in effect for
at least three elections. Nearly eight months later—and after over one million
voters cast their absentee ballots in the General Election—Wood challenges the
terms of the Settlement Agreement as unconstitutional. Wood could have, and
should have, filed his constitutional challenge much sooner than he did, and
certainly not two weeks after the General Election.
Nor has Wood articulated any reasonable excuse for his prolonged delay.
Wood failed to submit any evidence explaining why he waited to bring these
claims until the eleventh hour. He instead relies solely on a representation from
his legal counsel during oral argument, without evidence, that Wood did not vote
in any election between the execution of the Settlement Agreement and the
General Election. Even assuming this proffer to be true, it does not provide a
reasonable justification for the delay. Wood’s claims are constitutional challenges
to Defendants’ promulgation authority under state law. If valid, these claims
should not depend on the outcome of any particular election, to wit, whether
Wood’s preferred candidates won or lost. Indeed, Wood’s claims, even assuming
his standing for bringing them could be established, were ripe the moment the
parties executed the Settlement Agreement.
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Finally, Defendants, Intervenors, and the public at large would be
significantly injured if the Court were to excuse Wood’s delay. A bedrock principle
of election law is that “lower federal courts should ordinarily not alter the election
rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205, 1207 (2020) (citing Purcell v. Gonzalez, 549 U.S. 1, 5 (2006)). This is
because a last-minute intervention by a federal court could “result in voter
confusion and consequent incentive to remain away from the polls.” Purcell,
549 U.S. at 4–5. See also Democratic Nat’l Comm. v. Wisc. State Legislature, No. 20A66,
2020 WL 6275871, at *4 (U.S. Oct. 26, 2020) (Kavanaugh, J., concurring in denial of
application to vacate stay) (“The principle [of judicial restraint] also discourages
last-minute litigation and instead encourages litigants to bring any substantial
challenges to election rules ahead of time, in the ordinary litigation process.
For those reasons, among others, this Court has regularly cautioned that a federal
court’s last-minute interference with state election laws is ordinarily
Underscoring the exceptional nature of his requested relief, Wood’s claims
go much further; rather than changing the rules on the eve of an election, he wants
the rules for the already concluded election declared unconstitutional and over
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 23 of 38
one million absentee ballots called into question. Beyond merely causing
confusion, Wood’s requested relief could disenfranchise a substantial portion of
the electorate and erode the public’s confidence in the electoral process.
See Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003)
(“Interference with impending elections is extraordinary, and interference with an
election after voting has begun is unprecedented.”) (citation omitted);
Arkansas United v. Thurston, No. 5:20-cv-5193, 2020 WL 6472651, at *5 (W.D. Ark.
Nov. 3, 2020) (“[T]he equities do not favor intervention where the election is
already in progress and the requested relief would change the rules of the game
Thus, Wood is not entitled to injunctive relief on Counts I and II for the
additional reason that these claims are barred by the doctrine of laches.
The Merits of the Request for Injunctive Relief
Even assuming Wood possessed standing, and assuming Counts I and II are
not barred by laches, the Court nonetheless finds Wood would not be entitled to
the relief he seeks. The Court addresses each required element for a temporary
restraining order in turn.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 24 of 38
Substantial Likelihood of Success on the Merits
Equal Protection (Count I)
Wood argues the execution and enforcement of the Settlement Agreement
burdens his right to vote in contravention of the Equal Protection Clause because
the agreement sets forth additional voting safeguards not found in the Georgia
Election Code. States retain the power to regulate their own elections. Burdick v.
Takushi, 504 U.S. 428, 433 (1992) (citing U.S. Const. Art. I, § 4, cl. 1). The Supreme
Court has held that:
Common sense, as well as constitutional law, compels
the conclusion that government must play an active role
in structuring elections; as a practical matter, there must
be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes.
Burdick, 504 U.S. at 433 (citing Storer v. Brown, 415 U.S. 724, 730 (1974)).
Inevitably, most election laws will “impose some burden upon individual
voters.” Burdick, 504 U.S. at 433. But the Equal Protection Clause only becomes
applicable if “a state either classifies voters in disparate ways . . . or places
restrictions on the right to vote.” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir.
2012). As recently summarized by one federal district court:
The Supreme Court has identified two theories of voting
harms prohibited by the Fourteenth Amendment. First,
the Court has identified a harm caused by debasement or
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 25 of 38
dilution of the weight of a citizen’s vote, also referred to
[as] vote dilution. . . . Second, the Court has found that
the Equal Protection Clause is violated where the state,
having once granted the right to vote on equal terms,
through later arbitrary and disparate treatment, values
one person’s vote over that of another.
Moore, 2020 WL 6063332, at *12 (citing Bush v. Gore, 531 U.S. 98, 104–05 (2000);
Reynolds, 377 U.S. at 554). A rationale basis standard of review applies if the
plaintiff alleges “that a state treated him or her differently than similarly situated
voters, without a corresponding burden on the fundamental right to vote.”
Obama for Am., 697 F.3d at 429 (citing McDonald v. Bd. of Election Comm’rs, 394 U.S.
802, 807–09 (1969)). If a fundamental right is implicated, the claim is governed by
the flexible Anderson/Burdick balancing test. Burdick, 504 U.S. at 433–35; Anderson
v. Celebrezze, 460 U.S. 780, 788 (1983).
Wood’s equal protection claim does not fit within this framework.27 Wood
does not articulate a cognizable harm that invokes the Equal Protection Clause.
The Court notes that, in the Amended Complaint, Wood alludes to issues
caused by Raffensperger’s adoption of Ballot Trax—an electronic interface that
permits an elector to track his or her ballot as it is being processed [ECF 5,
¶¶ 44–46]. Wood also alleges harm in that the Settlement Agreement
permitted the DPG to submit “additional guidance and training materials” for
identifying a signature mismatch, which Defendants “agree[d] to consider in
good faith” [id. ¶ 47; see also ECF 5-1, ¶ 4]. Wood did not address how these
items violated his constitutional rights—equal protection or otherwise—in
either his motion or during oral argument. Therefore, the Court need not
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 26 of 38
For example, to the extent Wood relies on a theory of disparate treatment, Bush v.
Gore is inapplicable. Defendants applied the Settlement Agreement in a wholly
uniform manner across the entire state.28 In other words, no voter—including
Wood—was treated any differently than any other voter. E.g., Wise v. Circosta, 978
F.3d 93, 100 (4th Cir. 2020); Deutsch v. New York State Bd. of Elections, No. 20 CIV.
8929 (LGS), 2020 WL 6384064, at *6 (S.D.N.Y. Oct. 30, 2020).
Wood fares no better with a vote dilution argument. According to Wood,
his fundamental right to vote was burdened because the “rules and regulations set
forth in the [Settlement Agreement] created an arbitrary, disparate, and ad hoc
process for processing defective absentee ballots, and for determining which of
such ballots should be ‘rejected,’ contrary to Georgia law.”29 At the starting gate,
the additional safeguards on signature and identification match enacted by
Defendants did not burden Wood’s ability to cast his ballot at all. Wood, according
to his legal counsel during oral argument, did not vote absentee during the
address them at this stage.
Wood concedes as much in the Amended Complaint. See ECF 5, ¶ 25
(alleging the Settlement Agreement “set[ ] forth different standards to be
followed by the clerks and registrars in processing absentee ballots in the State
of Georgia.”) (emphasis added).
ECF 6, at 18.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 27 of 38
General Election. And the “burden that [a state’s] signature-match scheme
imposes on the right to vote . . . falls on vote-by-mail and provisional voters’
fundamental right to vote.” Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312,
1319 (11th Cir. 2019).
This leaves Wood to speculate that, because the Settlement Agreement
required three ballot clerks—as opposed to just one—to review an absentee ballot
before it could be rejected, fewer ballots were ultimately rejected, invalid ballots
were tabulated, and his in-person vote was diluted. In support of this argument,
Wood relies on Baker v. Carr, where the Supreme Court found vote dilution in the
context of apportionment of elected representatives. 369 U.S. at 204–208. But Wood
cannot transmute allegations that state officials violated state law into a claim that
his vote was somehow weighted differently than others. This theory has been
squarely rejected. Bognet, 2020 WL 6686120, at *11 (“[T]he Voter Plaintiffs cannot
analogize their Equal Protection claim to gerrymandering cases in which votes
were weighted differently. Instead, Plaintiffs advance an Equal Protection Clause
argument based solely on state officials’ alleged violation of state law that does not
cause unequal treatment. And if dilution of lawfully cast ballots by the ‘unlawful’
counting of invalidly cast ballots were a true equal-protection problem, then it
would transform every violation of state election law (and, actually, every
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 28 of 38
violation of every law) into a potential federal equal-protection claim requiring
scrutiny of the government’s ‘interest’ in failing to do more to stop the illegal
activity. That is not how the Equal Protection Clause works.”).
Even if Wood’s claim were cognizable in the equal protection framework, it
is not supported by the evidence at this stage. Wood’s argument is that the
procedures in the Settlement Agreement regarding information and signature
match so overwhelmed ballot clerks that the rate of rejection plummeted and, ergo,
invalid ballots were passed over and counted. This argument is belied by the
record; the percentage of absentee ballots rejected for missing or mismatched
information and signature is the exact same for the 2018 election and the General
Election (.15%).30 This is despite a substantial increase in the total number of
absentee ballots submitted by voters during the General Election as compared to
the 2018 election.31
In sum, there is insubstantial evidence supporting Wood’s equal protection
theory and he has not established a substantial likelihood of success on the merits
as to Count I.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 29 of 38
Electors and Elections Clauses (Count II)
In relevant part, the Constitution states: “The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. This provision—
colloquially known as the Elections Clause—vests authority in the states to
regulate the mechanics of federal elections. Foster v. Love, 522 U.S. 67, 69 (1997).
The “Electors Clause” of the Constitution similarly states that “[e]ach State shall
appoint, in such Manner as the Legislature thereof may direct, a Number of
[Presidential] Electors.” U.S. Const. art. II, § 1, cl. 2.
Wood argues Defendants violated the Elections and Electors Clauses
because the “procedures set forth in the [Settlement Agreement] for the handling
of defective absentee ballots is not consistent with the laws of the State of Georgia,
and thus, Defendants’ actions . . . exceed their authority.”32 Put another way,
Wood argues Defendants usurped the role of the Georgia General Assembly—and
thereby violated the United States Constitution—by enacting additional
safeguards regarding absentee ballots not found in the Georgia Election Code.
In support, Wood points to Chief Justice Rehnquist’s concurrence in Bush v. Gore,
ECF 5, ¶ 90.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 30 of 38
which states that “in a Presidential election the clearly expressed intent of the
legislature must prevail.” 531 U.S. at 120 (Rehnquist, C.J., concurring).
State legislatures—such as the Georgia General Assembly—possess the
authority to delegate their authority over elections to state officials in conformity
with the Elections and Electors Clauses. Ariz. State Legislature, 576 U.S. at 816
(“The Elections Clause [ ] is not reasonably read to disarm States from adopting
modes of legislation that place the lead rein in the people’s hands . . . it is
characteristic of our federal system that States retain autonomy to establish their
own governmental processes.”). See also Corman v. Torres, 287 F. Supp. 3d 558, 573
(M.D. Pa. 2018) (“The Elections Clause, therefore, affirmatively grants rights to
state legislatures, and under Supreme Court precedent, to other entities to which
a state may, consistent with the Constitution, delegate lawmaking authority.”).
Cf. Bullock, 2020 WL 5810556, at *11 (“A survey of the relevant case law makes clear
that the term ‘Legislature’ as used in the Elections Clause is not confined to a state’s
Recognizing that Secretary Raffensperger is “the state’s chief election
official,”33 the General Assembly enacted legislation permitting him (in his official
O.C.G.A. § 21-2-50(b).
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 31 of 38
capacity) to “formulate, adopt, and promulgate such rules and regulations,
consistent with law, as will be conducive to the fair, legal, and orderly conduct of
primaries and elections.” O.C.G.A. § 21-2-31(2). The Settlement Agreement is a
manifestation of Secretary Raffensperger’s statutorily granted authority. It does
not override or rewrite state law. It simply adds an additional safeguard to ensure
election security by having more than one individual review an absentee ballot’s
information and signature for accuracy before the ballot is rejected. Wood does not
articulate how the Settlement Agreement is not “consistent with law” other than
it not being a verbatim recitation of the statutory code. Taking Wood’s argument
at face value renders O.C.G.A. § 21-2-31(2) superfluous. A state official—such as
Secretary Raffensperger—could never wield his or her authority to make rules for
conducting elections that had not otherwise already been adopted by the Georgia
General Assembly. The record in this case demonstrates that, if anything,
Defendants’ actions in entering into the Settlement Agreement sought to achieve
consistency among the county election officials in Georgia, which furthers Wood’s
stated goals of conducting “[f]ree, fair, and transparent public elections.”34
ECF 5, ¶ 11.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 32 of 38
Wood has not demonstrated a substantial likelihood of success as to
Due Process (Count III)
Under the Fourteenth Amendment, “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
The Due Process Clause has two components: procedural and substantive.
DeKalb Stone, Inc. v. Cnty. of DeKalb, Ga., 106 F.3d 956, 959 (11th Cir. 1997).
Wood alleges that Defendants have “fail[ed] . . . to ensure that the Hand Recount
is conducted fairly and in compliance with the Georgia Election Code” by denying
monitors “the opportunity to be present throughout the entire Hand Recount, and
when allowed to be present, they were denied the opportunity to observe the
Hand Recount in any meaningful way.”35 Although not articulated in his
Amended Complaint or motion for temporary restraining order, Wood clarified
during oral argument that he is pursing both a procedural and substantive due
process claim. Each will be addressed in turn.
Procedural Due Process
A procedural due process claim raises two inquires: “(1) whether there
exists a liberty or property interest which has been interfered with by the State and
ECF 6, at 20–21.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 33 of 38
(2) whether the procedures attendant upon that deprivation were constitutionally
sufficient.” Richardson v. Texas Sec’y of State, 978 F.3d 220, 229 (5th Cir. 2020)
(citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). The party
invoking the Due Process Clause’s procedural protections bears the “burden . . . of
establishing a cognizable liberty or property interest.” Richardson, 978 F.3d at 229
(citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Wood bases his procedural
due process claim on “a vested interest in being present and having meaningful
access to observe and monitor the electoral process.”36 But Wood does not
articulate how this “vested interest” fits within a recognized, cognizable interest
protected by procedural due process. The Court is not persuaded that the right to
monitor an audit or vote recount is a liberty or property right secured by the
Constitution. For example, the Eleventh Circuit does “assume that the right to vote
is a liberty interest protected by the Due Process Clause.” Jones v. Governor of Fla.,
975 F.3d 1016, 1048 (11th Cir. 2020). But the circuit court has expressly declined to
extend the strictures of procedural due process to “a State’s election procedures.”
New Ga. Project v. Raffensperger, 976 F.3d 1278, 1282 (11th Cir. 2020)
(“The generalized due process argument that the plaintiffs argued for and the
ECF 5, ¶ 101.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 34 of 38
district court applied would stretch concepts of due process to their breaking
More specifically, federal courts have rejected the very interest Wood claims
has been violated, i.e., the right to observe the electoral process. See, e.g., Republican
Party of Penn. v. Cortes, 218 F. Supp. 3d 396, 408 (E.D. Pa. 2016) (“[T]here is no
individual constitutional right to serve as a poll watcher . . . but rather the right is
conferred by statute.”); Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv966, 2020 WL 5997680, at *67 (W.D. Pa. Oct. 10, 2020) (same); Dailey v. Hands, No.
14-423, 2015 WL 1293188, at *5 (S.D. Ala. Mar. 23, 2015) (“[P]oll watching is not a
fundamental right.”); Turner v. Cooper, 583 F. Supp. 1160, 1162 (N.D. Ill. 1983)
(finding no authority “that supports the proposition that [plaintiff] had a first
amendment right to act as a pollwatcher. Indeed, we would suggest that the state
is not constitutionally required to permit pollwatchers for political parties and
candidates to observe the conduct of elections.”). Without such an interest, Wood
cannot establish a substantial likelihood of success on the merits as to his
procedural due process claim.
Substantive Due Process
Wood’s substantive due process claim fares no better. The types of voting
rights covered by the substantive due process clause are considered narrow.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 35 of 38
Curry v. Baker, 802 F.2d 1302, 1314 (11th Cir. 1986). Pursuant to the “functional
structure embodied in the Constitution,” a federal court must not “intervene to
examine the validity of individual ballots or supervise the administrative details
of a local election.” Id. In only “extraordinary circumstances will a challenge to a
state election rise to the level of a constitutional deprivation.” Id. See also Bennett v.
Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998) (“We have drawn a distinction between
garden variety election irregularities and a pervasive error that undermines the
integrity of the vote. In general, garden variety election irregularities do not violate
the Due Process Clause, even if they control the outcome of the vote or election.”)
(citation and punctuation omitted) (collecting cases); Duncan v. Poythress, 657 F.2d
691, 700 (5th Cir. 1981) (“[T]he due process clause of the fourteenth amendment
prohibits action by state officials which seriously undermine the fundamental
fairness of the electoral process.”). It is well understood that “garden variety”
election disputes, including “the ordinary dispute over the counting and marking
of ballots” do not rise to the level of a constitutional deprivation.37 Curry, 802 F.2d
In contrast, as Defendants note, it would be a violation of the constitutional
rights of the millions of absentee voters who relied on the absentee ballot
procedures in exercising their right to vote. See e.g. Griffin v. Burns, 570 F.2d
1065, 1079 (1st Cir. 1978) (finding disenfranchisement of electorate who voted
by absentee ballot a violation of substantive due process).
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 36 of 38
at 1314–15. See also Serpentfoot v. Rome City Comm’n, 426 F. App’x 884, 887 (11th Cir.
2011) (“[Plaintiff’s] allegations show, at most, a single instance of vote dilution and
not an election process that has reached the point of patent and fundamental
unfairness indicative of a due process violation.”).
Although Wood generally claims fundamental unfairness, and the
declarations and testimony submitted in support of his motion speculate as to
wide-spread impropriety, the actual harm alleged by Wood concerns merely a
“garden variety” election dispute. Wood does not allege unfairness in counting
the ballots; instead, he alleges that select non-party, partisan monitors were not
permitted to observe the Audit in an ideal manner. Wood presents no authority,
and the Court finds none, providing for a right to unrestrained observation or
monitoring of vote counting, recounting, or auditing. Precedent militates against
a finding of a due process violation regarding such an “ordinary dispute over the
counting and marking of ballots.” Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir.
1980) (“If every state election irregularity were considered a federal constitutional
deprivation, federal courts would adjudicate every state election dispute.”). Wood
has not satisfied his burden of establishing a substantial likelihood of success on
the merits as to his substantive due process claim.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 37 of 38
Because Wood cannot show a likelihood of success on the merits, an
extensive discussion of the remaining factors for the issuance of a temporary
restraining order is unnecessary. Obama for Am., 697 F.3d at 436 (“When a party
seeks a preliminary injunction on the basis of a potential constitutional violation,
the likelihood of success on the merits often will be the determinative factor.”).
See also Bloedorn, 631 F.3d at 1229 (“If [plaintiff] is unable to show a substantial
likelihood of success on the merits, we need not consider the other
requirements.”). Nonetheless, for the second factor, Plaintiffs must show that
“irreparable injury would result if no injunction were issued.” Siegel, 234 F.3d at
1175–76 (“A showing of irreparable injury is the sine qua non of injunctive relief.”).
This factor also weighs in Defendants’ favor. As discussed above, Wood’s
allegations are the quintessential generalized grievance. He has not presented any
evidence demonstrating how he will suffer any particularized harm as a voter or
donor by the denial of this motion. The fact that Wood’s preferred candidates did
not prevail in the General Election—for whom he may have voted or to whom he
may have contributed financially—does not create a legally cognizable harm,
much less an irreparable one. Jacobson, 974 F.3d at 1247.
Case 1:20-cv-04651-SDG Document 54 Filed 11/20/20 Page 38 of 38
Balance of the Equities and Public Interest
The Court finds that the threatened injury to Defendants as state officials
and the public at large far outweigh any minimal burden on Wood. To reiterate,
Wood seeks an extraordinary remedy: to prevent Georgia’s certification of the
votes cast in the General Election, after millions of people had lawfully cast their
ballots. To interfere with the result of an election that has already concluded would
be unprecedented and harm the public in countless ways. See Sw. Voter Registration
Educ. Project, 344 F.3d at 919; Arkansas United, 2020 WL 6472651, at *5. Granting
injunctive relief here would breed confusion, undermine the public’s trust in the
election, and potentially disenfranchise of over one million Georgia voters.
Viewed in comparison to the lack of any demonstrable harm to Wood, this Court
finds no basis in fact or in law to grant him the relief he seeks.
Wood’s motion for temporary restraining order [ECF 6] is DENIED.
SO ORDERED this the 20th day of November 2020.
Steven D. Grimberg
United States District Court Judge
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