Coalition for Good Governance et al v. Raffensperger et al

Filing 49

ORDER re 15 MOTION for Preliminary Injunction: Having reviewed and fully considered the papers and evidence submitted in connection with Plaintiffs Motion for Preliminary Injunction 15 , the Court GRANTS the Motion with respect to Photography Rule II only and DENIES it in all other respects. State Defendants are hereby enjoined from enforcing Photography Rule II until further order of the Court. Signed by Judge J. P. Boulee on 8/20/21. (ceo)

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 1 of 39

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
COALITION FOR GOOD
GOVERNANCE et al.,
Plaintiffs,
v.

CIVIL ACTION NO.
1:21-cv-02070-JPB

BRIAN KEMP et al.,
Defendants.
ORDER

Before the Court is Plaintiffs Coalition for Good Governance, Adam Shirley,
Ernestine Thomas-Clark, Antwan Lang, Patricia Pullar, Judy McNichols, Jackson
County Democratic Committee, Georgia Advancing Progress Political Action
Committee, Ryan Graham, Rhonda Martin, Jeanne Dufort, Aileen Nakamura,
Elizabeth Throop and Bradley Friedman’s (collectively “Plaintiffs”) Motion for
Preliminary Injunction (“Motion”). ECF No. 15. After due consideration of the
briefs, accompanying evidence and oral argument, the Court finds as follows:
I.

BACKGROUND

Plaintiffs filed this action seeking a declaration that certain provisions of
Georgia Senate Bill 202 (“SB 202”) violate the United States Constitution and/or

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 2 of 39

the Voting Rights Act. Governor Brian Kemp signed SB 202 into law on March
25, 2021.
In the instant Motion, Plaintiffs ask the Court to issue a preliminary
injunction enjoining the implementation of the following sections of SB 202:
• O.C.G.A. § 21-2-568.1 (the “Observation Rule”)
The Observation Rule prohibits a person from “intentionally observ[ing]
an elector while casting a ballot in a manner that would allow such
person to see for whom or what the elector is voting.”
• O.C.G.A. § 21-2-568.2 (the “Photography Rules”)
The Photography Rules proscribe the use of photographic or other
electronic monitoring or recording devices to (i) “[p]hotograph or record
the face of an electronic ballot marker while a ballot is being voted or
while an elector’s votes are displayed on such electronic ballot marker”
(“Photography Rule I”) or (ii) to “[p]hotograph or record a voted ballot”
(“Photography Rule II”).
• O.C.G.A. § 21-2-386(a)(2)(B)(vii) (the “Communication Rule”)
The Communication Rule precludes election “monitors” and “observers”
from “[c]ommunicating any information that they see while monitoring
the processing and scanning of the absentee ballots, whether intentionally
or inadvertently, about any ballot, vote, or selection to anyone other than
an election official who needs such information to lawfully carry out his
or her official duties.” The rule’s prefatory statement separately
establishes that such communications are prohibited “[w]hile viewing or
monitoring” the absentee ballot opening and scanning process. Id. § 212-386(a)(2)(B).
• O.C.G.A. §§ 21-2-386(a)(2)(A) and (a)(2)(B)(vi) (the “Tally Rules”)
Section (a)(2)(A) (“Tally Rule I”) prohibits any person from tallying,
tabulating or estimating the absentee ballots cast, attempting to do so or
2

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 3 of 39

causing a ballot scanner or any other equipment to produce any such tally
or estimate until polls close on the day of the primary, election or runoff.
Section (a)(2)(B)(vi) (“Tally Rule II”) applies specifically to election
“monitors” and “observers” and similarly prohibits them from tallying,
tabulating or estimating the absentee ballots cast or attempting to do so.
Tally Rule II’s prohibitions are, however, in effect only “[w]hile viewing
or monitoring” the absentee ballot opening and scanning process.
• O.C.G.A. § 21-2-381(a)(1)(A) (the “Ballot Application Rule”)
The Ballot Application Rule provides that an application for an absentee
ballot must be submitted “not earlier than 78 days or less than 11 days
prior to the date of the primary or election, or runoff of either, in which
the elector desires to vote.”
The Observation and Photography Rules became effective on March 25, 2021, and
the remaining challenged rules became effective on July 1, 2021.
Plaintiffs oppose the specified rules on one or more of the following
grounds: undue burden on the right to vote, abridgement of free speech and void
for vagueness. 1 They contend that the rules violate their rights under the First
Amendment and the Due Process Clause of the Fourteenth Amendment. 2
Defendants Brian Kemp, Brad Raffensperger, Rebecca N. Sullivan, Anh Le,
Matthew Mashburn and Sara Ghazal (collectively “State Defendants”) and
Intervenor Defendants Republican National Committee, National Republican

All rules, except the Ballot Application Rule, provide for criminal penalties
ranging from a misdemeanor to a felony.
2
Plaintiffs’ Motion concerns only a subset of the claims alleged in the Complaint.
1

3

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 4 of 39

Senatorial Committee, National Republican Congressional Committee and Georgia
Republican Party, Inc. (collectively “Intervenor Defendants”) oppose the Motion
on the merits. State Defendants also challenge Plaintiffs’ standing to bring this
suit.
II.

DISCUSSION

The Court addresses State Defendants’ standing argument first, given the
Court’s obligation “‘to ensure it is presented with the kind of concrete controversy
upon which its constitutional grant of authority is based.’” Cuban Am. Bar Ass’n,
Inc. v. Christopher, 43 F.3d 1412, 1422-23 (11th Cir. 1995) (quoting Hallandale
Professional Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759
(11th Cir. 1991)).
A.

Standing

To satisfy standing requirements under Article III, a plaintiff must show:
“(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Friends of
the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). These

4

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 5 of 39

requirements ensure federal courts adjudicate only actual “cases” and
“controversies.” A&M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 925
F.3d 1205, 1210 (11th Cir. 2019).
1.

Injury

State Defendants challenge the standing of both the individual and
organization plaintiffs to bring this suit.
a.

Individual Plaintiffs

“When an individual is subject to the threatened enforcement of a law, an
actual arrest, prosecution, or other enforcement action is not a prerequisite to
challenging the law.” Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1304
(11th Cir. 2017) (internal punctuation omitted) (quoting Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014)). “The plaintiff’s own action (or inaction) in
failing to violate [a] law eliminates the imminent threat of prosecution, but
nonetheless does not eliminate Article III jurisdiction.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 129 (2007). Indeed, “[t]he dilemma posed by . . .
putting the challenger to the choice between abandoning his rights or risking
prosecution . . . is ‘a dilemma that it was the very purpose of the Declaratory
Judgment Act to ameliorate.’” Id. at 129 (quoting Abbott Lab’ys v. Gardner, 387
U.S. 136, 152 (1967)). Therefore, courts allow a plaintiff to bring a pre-

5

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 6 of 39

enforcement suit “when he has alleged an intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution.” Wollschlaeger, 848 F.3d at 1304
(internal punctuation omitted).
In Wollschlaeger, the Eleventh Circuit Court of Appeals found that the
plaintiff doctors had demonstrated an injury sufficient for the purposes of standing
where they sought to challenge a new statute that prohibited them from discussing
firearm safety with their patients, although they had ceased those discussions as a
result of the statute’s enactment. Id. The court explained that “[w]here the
‘alleged danger’ of legislation is ‘one of self-censorship,’ harm ‘can be realized
even without an actual prosecution.’” Id. at 1305 (quoting Virginia v. Am.
Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)).
However, the threat of prosecution must be credible. See Am. Booksellers
Ass’n, 484 U.S. at 393 (stating that the court was “not troubled” by a preenforcement suit because the plaintiffs alleged “an actual and well-founded fear
that the [respective] law [would] be enforced against them”). This requirement is
also satisfied where the government has not disavowed prosecuting persons who
violate the challenged legislation. See, e.g., Holder v. Humanitarian L. Project,
561 U.S. 1, 16 (2010) (finding a credible threat of prosecution existed because the

6

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 7 of 39

government did not indicate it would forego prosecuting the plaintiffs if they
violated the statute).
Here, the record shows that individual plaintiffs have changed or intend to
change their behavior in response to SB 202. For example, Plaintiff Jeanne Dufort,
a poll watcher, member of the Vote Review Panel of Morgan County and vocal
critic of Georgia’s election system, testified that she will not vote in person and
may not serve as a poll watcher in future elections to avoid the possibility of
prosecution under the Observation Rule. Dufort Decl. ¶¶ 21-22, ECF No. 15-4.
Plaintiff Bradley Friedman, host of a nationally syndicated radio show that
addresses election security, testified that SB 202’s restrictions will limit his show’s
news reporting activities for upcoming elections. Friedman Decl. ¶ 8, ECF No. 155. As such, the alleged injury—self-censorship or forgoing participation in the
election process—may have already occurred for those plaintiffs who indicated
that they would change their behavior with respect to the July 13, 2021 runoff
elections. 3
With respect to the threat of prosecution under the challenged provisions,
Plaintiffs submitted evidence of pending complaints against poll watchers for
Since the parties completed briefing on this Motion prior to the July 13, 2021
runoff elections, the record does not reflect whether the respective plaintiffs did, in
fact, change their behavior.
3

7

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 8 of 39

election monitoring activities that allegedly violated an election statute not at issue
here. Marks Decl. ¶ 11, ECF No. 15-3. Notably, State Defendants did not refute—
either in their papers or during oral argument—Plaintiffs’ contention that any
alleged violations of SB 202 will be “vigorously” prosecuted. Pls.’ Reply Br. 5,
ECF No. 23. Therefore, Plaintiffs have demonstrated a credible threat of
prosecution.
State Defendants’ reliance on Clapper v. Amnesty International USA, 568
U.S. 398 (2013), to challenge Plaintiffs’ standing is misplaced. Unlike here, the
plaintiffs in Clapper lacked knowledge of the government’s enforcement practices
and failed to provide a credible basis for their fear of prosecution. Id. at 411.
Similarly, the opinions in City of Los Angeles v. Lyons, 461 U.S. 95 (1983),
and Tsao v. Captiva MVP Restaurant Partners, LLC, 986 F.3d 1332 (11th Cir.
2021), which State Defendants cite as additional reasons to find Plaintiffs lack
standing in this case, do not require a different result. Lyons did not concern a preenforcement challenge to legislation and rather involved a lawsuit regarding a
police restraint method that could be employed by officers at their discretion. See
461 U.S. at 98. Tsao involved an “insubstantial,” “non-imminent” and general
threat of identity theft as a result of a data breach. 986 F.3d at 1345. These cases
are thus quite different from the instant pre-enforcement challenge of SB 202.

8

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 9 of 39

In sum, the Court is satisfied that at least some individual plaintiffs have
demonstrated an actual injury and a credible threat of prosecution for the purposes
of standing to challenge the Observation, Communication, Photography and Tally
Rules. 4
b.

Organization Plaintiffs

“‘[A]n organization has standing to sue on its own behalf if the defendant’s
illegal acts impair its ability to engage in its projects by forcing the organization to
divert resources to counteract those illegal acts.’” Common Cause/Georgia v.
Billups, 554 F.3d 1340, 1350 (11th Cir. 2009) (quoting Fla. State Conf. of NAACP
v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008)). In Common Cause, the court
found that the plaintiff had established an injury sufficient to challenge a Florida
voting statute because the plaintiff planned to divert resources from its regular
voter registration, mobilization and education activities to a campaign to educate
and assist voters in complying with the new photo identification requirement under
the challenged statute. See id; see also Ga. Latino All. for Hum. Rts. v. Governor
of Ga., 691 F.3d 1250, 1260 (11th Cir. 2012) (stating that a sufficient injury is
demonstrated even when the diversion of resources is only “reasonably

As Plaintiffs’ Complaint shows, these alleged injuries are “arguably affected”
with First and Fourteenth Amendment interests. Wollschlaeger, 848 F.3d at 1304.
4

9

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 10 of 39

anticipate[d]” (alteration in original)). The court reasoned that this diversion
constituted an adequate injury because it would cause the organization’s
noneconomic goals to suffer. See Common Cause, 554 F.3d at 1350-51.
In this case, the Complaint alleges that Plaintiff Georgia Advancing Progress
Political Action Committee (“GAPPAC”) has diverted and will continue to divert
resources away from key activities as a result of SB 202. Compl. ¶ 223, ECF No.
1. For example, GAPPAC asserts that SB 202 has forced it to divert resources
from a core activity of translating voting materials into multiple languages for
members of the public to now undertaking education campaigns to explain the
requirements of SB 202. Id. ¶¶ 220, 224-25.
Plaintiff Coalition for Good Governance (“CGG”) likewise testified that it is
diverting resources to provide advice to its members regarding how to navigate SB
202’s requirements. Marks Decl. ¶ 13, ECF No. 15-3. It also explained that the
challenged provisions have diminished its core activities of monitoring absentee
ballot processing because, among other things, it is now prohibited from reporting
election integrity issues it uncovers. Id. ¶ 27. For example, Marilyn Marks,
Executive Director of CGG, testified that she has recorded video and reported
ballot tabulation issues in the past but intends to curtail her election monitoring
activities in light of SB 202’s provisions. Id. ¶¶ 27, 33.

10

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 11 of 39

The Court is not persuaded by State Defendants’ unsupported assertion that
CGG’s diversion of resources furthers its organizational purpose and therefore
cannot constitute an injury for standing purposes.
Based on these facts, the Court finds that GAPPAC’s and CGG’s diversion
of resources to address SB 202’s impact constitutes sufficient injuries for standing
purposes.
2.

Traceability and Redressability

It is well-settled that “[t]o satisfy the causation requirement of standing, a
plaintiff’s injury must be ‘fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third party not before the
court.’” Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1253 (11th Cir. 2020)
(quoting Lujan, 504 U.S. at 560). Additionally, “it must be the effect of the court’s
judgment on the defendant—not an absent third party—that redresses the
plaintiff’s injury, whether directly or indirectly.” Lewis v. Governor of Ala., 944
F.3d 1287, 1301 (11th Cir. 2019) (internal punctuation omitted) (quoting Digit.
Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015)).
Therefore, the court must be satisfied that a decision in the plaintiff’s favor would
“significantly increase the likelihood that [the plaintiff] would obtain relief that
directly redresses the injury that she claims to have suffered.” Id. (internal

11

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 12 of 39

punctuation and alteration omitted) (quoting Harrell v. Fla. Bar, 608 F.3d 1241,
1260 n.7 (11th Cir. 2010)).
In Luckey v. Harris, which involved a complaint against the governor of
Georgia and others regarding the state’s provision of legal services to indigent
criminal defendants, the court explained that “[a]ll that is required [for injunctive
relief against a state official] is that the official [sued] be responsible for the
challenged action.” 860 F.2d 1012, 1015 (11th Cir. 1988). Thus, “the state officer
sued must, by virtue of his office, have some connection with the unconstitutional
act or conduct complained of. Whether this connection arises out of general law,
or is specially created by the act itself, is not material so long as it exists.” Id. at
1015-16 (internal punctuation and alteration omitted). The court therefore
concluded that prospective relief could be ordered against the state officers,
including the governor of Georgia, who is generally responsible for enforcing the
state’s laws. Id. at 1016. Specifically, the court explained:
According to the Georgia constitution, the governor is responsible for
law enforcement in [the] state and is charged with executing the laws
faithfully. Ga. Const. Art. 5, § 2, ¶ 2. The governor further has the
residual power to commence criminal prosecutions, [O.C.G.A.] § 171-2 (1982), and has the final authority to direct the Attorney General
to “institute and prosecute” on behalf of the state. Id. § 45-15-35.
Defendants[, including the Governor,] are therefore appropriate
parties against whom prospective relief could be ordered.
Id.
12

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 13 of 39

Relying on this “binding precedent” from Luckey, the Eleventh Circuit
rejected the state officers’ argument in Georgia Latino Alliance that the plaintiffs
did not have standing to sue because the state officers, including the governor of
Georgia, lacked enforcement authority over the challenged immigration statute.
691 F.3d at 1260 n.5. The court emphasized that it was “easily satisfied” that the
plaintiffs met the traceability and redressability requirements to bring a preenforcement, constitutional challenge against the officers, where “[e]ach injury
[was] directly traceable to the passage of [the challenged statute] and would be
redressed by enjoining each provision.” Id. at 1260.
Following this reasoning, the Court finds that the traceability and
redressability requirements are satisfied in this case. The governor of Georgia is a
defendant here, and the injuries alleged are directly traceable to SB 202, for which
he has enforcement authority. 5

State Defendants concede that they have “authority with respect to civil
enforcement proceedings” regarding the Observation, Communication,
Photography and Tally Rules. Defs.’ Br. 17, ECF No. 21. They do not dispute
that they have general enforcement authority regarding the Ballot Application Rule
and argue only that they play no role in the “processing of absentee ballots for
purposes of the deadline.” Id.

5

13

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 14 of 39

In all, the Court finds that the Article III standing requirements are satisfied
by at least Plaintiffs Jeanne Dufort, Bradley Friedman, GAPPAC and CGG. 6
Accordingly, the Court will evaluate the merits of the Motion.
B.

Merits

A plaintiff seeking preliminary injunctive relief must show the following:
(1) a substantial likelihood that he will ultimately prevail on the
merits; (2) that he will suffer irreparable injury unless the injunction
issues; (3) that the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause to the opposing
party; and (4) that the injunction, if issued, would not be adverse to
the public interest.
Sofarelli v. Pinellas Cnty., 931 F.2d 718, 723-24 (11th Cir. 1991) (quoting United
States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir.1983)). “[A] preliminary
injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly establish[es] the burden of persuasion as to each of the four
prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal
punctuation omitted) (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301,

“‘Where only injunctive relief is sought, only one plaintiff with standing is
required.’” Gwinnett Cnty. NAACP v. Gwinnett Cnty. Bd. of Registration &
Elections, 446 F. Supp. 3d 1111, 1118 (N.D. Ga. 2020) (quoting Martin v. Kemp,
341 F. Supp. 3d 1326, 1333 (N.D. Ga. 2018)); see also, e.g., Glassroth v. Moore,
335 F.3d 1282, 1293 (11th Cir. 2003) (“Having concluded that those two plaintiffs
have standing, we are not required to decide whether the other plaintiff, the one
who has not altered his behavior . . . , has standing.”).
6

14

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 15 of 39

1306 (11th Cir.1998)). Granting a preliminary injunction is thus the exception
rather than the rule. See id.
1.

Likelihood of Success on the Merits

A plaintiff seeking preliminary injunctive relief must show a substantial
likelihood that he will ultimately prevail on the merits of his claim. Sofarelli, 931
F.2d at 723. This factor is generally considered the most important of the four
factors, see Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986), and
failure to satisfy the burden here, as with any of the other prerequisites, is fatal to
the claim, see Siegel, 234 F.3d at 1176. The Court addresses the merits of each
claim in turn.
a.

First Amendment Claims

Plaintiffs argue that the Communication and Photography Rules result in
unconstitutional restrictions on their freedom of speech under the First
Amendment.
The First Amendment prohibits the enactment of laws that abridge the
freedom of speech. See U.S. Const. amend. I. Therefore, governments generally
“ha[ve] no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)). Regulation of speech

15

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 16 of 39

based on the topic discussed or the idea or message expressed is presumptively
unconstitutional and may be justified only if the government proves that the
regulation is narrowly tailored to serve compelling state interests. See id. at 165
(stating that “[a] law that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive, content-neutral justification, or lack
of ‘animus toward the ideas contained’ in the regulated speech” (quoting
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993))).
However, the Supreme Court of the United States has “long recognized that
the government may impose some content-based restrictions on speech in
nonpublic forums, including restrictions that exclude political advocates and forms
of political advocacy.” 7 Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885-86
(2018). Restrictions on speech in nonpublic forums are subjected to a more limited
review and are constitutional “as long as the regulation . . . is reasonable and not an
effort to suppress expression merely because public officials oppose the speaker’s
view.” Id. at 1885 (quoting Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460
U.S. 37, 46 (1983)). In other words, where the regulation of speech in a nonpublic

A nonpublic forum is “a space that ‘is not by tradition or designation a forum for
public communication.’” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885
(2018) (quoting Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46
(1983)).

7

16

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 17 of 39

forum is content-based but neutral as to viewpoint, “there is no requirement of
narrow tailoring.” Id. at 1888. Instead, courts employ a lower standard of review,
which requires only that the regulation be “‘reasonable in light of the purpose
served by the forum.’” Id. at 1886 (quoting Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 806 (1985)).
With these principles in mind, the Court turns to Plaintiffs’ First
Amendment claims regarding the Communication and Photography Rules.
i.

The Communication Rule

State Defendants ask the Court to evaluate the Communication Rule under
the Anderson-Burdick framework for determining the constitutionality of an
election statute and not under the traditional First Amendment framework for
speech restrictions. However, they do not offer any binding authority for this
proposition, and the sole case they cite, Lichtenstein v. Hargett, 489 F. Supp. 3d
742, 777 (M.D. Tenn. 2020), does not support their argument. In determining the
appropriate inquiry in Lichtenstein, the court simply noted that the AndersonBurdick framework would be applicable if the challenged provision restricted
“expressive activity” but did not restrict “core political speech.” Id. (emphasis
added). That is not the case here because the Communication Rule implicates
speech, not merely expressive activity. As such, the Court will proceed with a

17

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 18 of 39

First Amendment analysis.
Under First Amendment jurisprudence, the Court must determine whether
the Communication Rule is content-based and in which kind of forum the rule
governs speech in order to select the appropriate level of review.
As described in section I, supra, the Communication Rule prohibits
“monitors” and “observers” from “[c]ommunicating any information that they see
while monitoring the processing and scanning of the absentee ballots, whether
intentionally or inadvertently, about any ballot, vote, or selection to anyone other
than an election official who needs such information to lawfully carry out his or
her official duties.” O.C.G.A. § 21-2-386(a)(2)(B)(vii). The prefatory statement to
the rule separately establishes that the specified communications are prohibited
“[w]hile viewing or monitoring” the absentee ballot opening and scanning process.
Id. § 21-2-386(a)(2)(B).
By its terms, the Communication Rule restricts speech based on the subject
matter. Monitors or observers are not permitted to disclose information regarding
“any ballot, vote, or selection” that they obtain during the election viewing and
monitoring process. Id. § 21-2-386(a)(2)(B)(vii). It is therefore content-based.
The operation of the rule is, however, limited in two important respects: (i)
it applies only during the viewing or monitoring of the absentee ballot opening and

18

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 19 of 39

scanning process and (ii) it consequently applies only in the physical space where
the ballot opening and scanning process is occurring (the “Ballot Processing
Room”). 8 Since the Ballot Processing Room is set aside specifically for that
purpose and is not traditionally or by designation a space for public
communication, it is a nonpublic forum. Cf. Mansky, 138 S. Ct. at 1886 (finding
that a polling place qualifies as a nonpublic forum). This means that a lower
standard of review applies, and the Communication Rule need only be reasonable
given the purpose of the forum. See id.
In light of the confidential work that takes place in the Ballot Processing
Room, the legitimate state goal of preserving the integrity of the electoral process 9
and the Communication Rule’s narrow scope, the rule appears to be a reasonable

State Defendants explained during oral argument that the process of opening and
scanning absentee ballots historically has occurred in a designated room where
participants are sequestered and are not permitted to communicate information
regarding the process to outsiders while the process is ongoing. Transcript of Oral
Argument, July 1, 2021, 42:3-10. SB 202 also refers to “the room” where the
process takes place and specifies additional requirements for conduct in that room,
including prohibiting the use of photographic or other recording devices therein.
O.C.G.A. § 21-2-386(a)(2)(B)(ii).
9
See Rosario v. Rockefeller, 410 U.S. 752, 761 (1973) (stating that “[i]t is clear
that preservation of the integrity of the electoral process is a legitimate and valid
state goal”); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1353 (11th Cir.
2009) (noting that a state “‘indisputably has a compelling interest in preserving the
integrity of its election process’” (quoting Purcell v. Gonzalez, 549 U.S. 1, 4
(2006))).
8

19

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 20 of 39

restriction of speech that is appropriate for the forum in which it applies.
State Defendants argue for an interpretation of the rule that would extend its
reach outside the Ballot Processing Room and until the polls close on election day.
Transcript of Oral Argument, July 1, 2021 (“Transcript”), 43:3-5, 44:1-4. They
contend that the legislature was “trying” to implement a “process to ensure that
vote counts would not be disclosed before the polls closed.” Id.
Yet those provisions are not in the Communication Rule as drafted. 10 The
Supreme Court has reiterated “time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says
there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The Eleventh
Circuit has also directed that “‘courts should always begin the process of
legislative interpretation . . . where they often should end it as well, which is with
the words of the statutory provision.’” United States ex rel. Hunt v. Cochise
Consultancy, Inc., 887 F.3d 1081, 1088 (11th Cir. 2018) (quoting Harris v.
Garner, 216 F.3d 970, 972 (11th Cir. 2000)). Therefore, the Court is not at liberty
to broaden the scope of the rule and insert additional language based on what State

The Tally Rules, which prohibit the estimating of absentee ballots cast before the
polls close on election day or while viewing or monitoring the absentee ballot
opening and scanning process, see section II(B)(1)(c)(iii), infra, appear to address
the concern regarding the premature disclosure of votes.
10

20

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 21 of 39

Defendants assert the Georgia legislature may have intended or hoped to achieve.
Based on the Court’s reading of the Communication Rule, Plaintiffs have
not demonstrated a substantial likelihood of success on the merits of their claim
that the Communication Rule violates the First Amendment.
ii.

The Photography Rules 11

As described in section I, supra, the Photography Rules regulate what type
of ballot information a person may record. Therefore, both are content-based. See
Reed, 576 U.S. at 163.
However, Photography Rule I necessarily applies only to polling stations
because it proscribes photographing or recording the face of an electronic ballot
marker while a ballot is being voted or while an elector’s votes are displayed on
the screen. 12 See O.C.G.A. § 21-2-568.2. Since a polling station is a nonpublic
forum, the lower reasonable standard of review applies to the Court’s analysis of

The Eleventh Circuit has recognized that the right to photograph or videotape is
protected by the First Amendment. See, e.g., Smith v. City of Cumming, 212 F.3d
1332, 1333 (11th Cir. 2000) (agreeing that the plaintiffs had a First Amendment
right to photograph and videotape police conduct, subject to reasonable
restrictions); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (recognizing
a First Amendment right to tape record a public meeting).
12
Another statute, O.C.G.A. § 21-2-413(e) (not part of SB 202 and not at issue
here), establishes a general ban on photography in a polling place while voting is
taking place. Therefore, Georgia law prohibits photography in a polling station of
both electronic ballot markers and paper ballots.
11

21

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 22 of 39

Photography Rule I.
Under this standard, the state of Georgia’s proffered interests in protecting
the secrecy of the ballot at the polling place and preventing fraud, including vote
payment schemes, provide a reasonable basis for the limited restriction on
photography and other forms of recording in that specific space. Accordingly,
Plaintiffs have not shown a substantial likelihood of success on the merits of their
claim as to Photography Rule I.
Photography Rule II, on the other hand, is not limited in any way. Its broad
sweep prohibits any photography or recording of any voted ballot in public and
nonpublic forums alike. Id. State Defendants asserted during oral argument that
Photography Rule II even prohibits recording voted ballots for personal use (e.g., a
voter photographing his own absentee ballot at home for his files). Therefore, the
strict scrutiny level of review applies, and the government must show that
Photography Rule II is narrowly tailored to serve a compelling state interest.
Even if the Court accepts State Defendants’ argument that Photography Rule
II serves the compelling interests of preserving ballot secrecy and preventing fraud,
they have neither argued that it is narrowly tailored to serve those interests nor
rebutted Plaintiffs’ assertion that the rule is a blanket prohibition on recording any
voted ballot under any circumstance.

22

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 23 of 39

By comparison, the Alabama election statute, which State Defendants offer
as an analogous regulation, reflects tailoring that is not evident here. For example,
that statute focuses on photography at a polling place and provides carveouts,
including for photography of a voter’s own ballot. See Ala. Code § 17-9-50.1.
Based on the foregoing analysis, the Court finds that Plaintiffs are not
substantially likely to succeed on the merits of their First Amendment challenge to
Photography Rule I but are substantially likely to succeed as to Photography Rule
II.
b.

Undue Burden on the Right to Vote

Plaintiffs allege that the Ballot Application and Observation Rules impose
an undue burden on their right to vote.
“It is beyond cavil that ‘voting is of the most fundamental significance under
our constitutional structure.’” Burdick v. Takushi, 504 U.S. 428, 433 (1992)
(quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)).
“But the right to vote is the right to participate in an electoral process that is
necessarily structured to maintain the integrity of the democratic system.” Id. at
441. Thus, “‘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

23

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 24 of 39

democratic processes.’” Id. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730
(1974)).
In resolving a challenge to a state’s election laws, the court must: (i)
“consider the character and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff seeks to vindicate;” (ii)
“identify and evaluate the precise interests put forward by the [s]tate as
justifications for the burden imposed by its rule;” (iii) “determine the legitimacy
and strength of each of those interests;” and (iv) “consider the extent to which
those interests make it necessary to burden the plaintiff’s rights.” Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983). The analysis is not a “litmus-paper test”
and instead requires a “flexible” approach. Common Cause, 554 F.3d at 1352.
Any “[d]ecision . . . is very much a matter of degree, very much a matter of
considering the facts and circumstances behind the law, the interests which the
[s]tate claims to be protecting, and the interests of those who are disadvantaged by
the classification.” Storer, 415 U.S. at 730 (internal citations and punctuation
omitted). Ultimately, “there is ‘no substitute for the hard judgments that must be
made.’” Anderson, 460 U.S. at 789-90 (quoting Storer, 415 U.S. at 730).
If the court finds that a plaintiff’s voting rights “are subjected to severe
restrictions, the regulation must be narrowly drawn to advance a state interest of

24

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 25 of 39

compelling importance. But when [the law] imposes only reasonable,
nondiscriminatory restrictions . . . , the [s]tate’s important regulatory interests are
generally sufficient to justify the restrictions.” Burdick, 504 U.S. at 434 (internal
citation and punctuation omitted); see also Common Cause, 554 F.3d at 1354-55
(stating that where the burden is slight, “the state interest need not be ‘compelling
. . . to tip the constitutional scales in its direction’” (alteration in original) (quoting
Burdick, 504 U.S. at 439)).
Nonetheless, even a slight burden “must be justified by relevant and
legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford
v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008) (quoting Norman v. Reed,
502 U.S. 279, 288-89 (1992)). Also, “a [s]tate may not choose means that
unnecessarily restrict constitutionally protected liberty.” Anderson, 460 U.S. at
806 (quoting Kusper v. Pontikes, 414 U.S. 51, 59 (1973)). “Precision of regulation
must be the touchstone in an area so closely touching our most precious freedoms.”
Id.
The Court applies the reasoning of these cases to its analysis of whether the
Ballot Application and Observation Rules impose an undue burden on Plaintiffs’
right to vote.

25

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 26 of 39

i.

The Ballot Application Rule

Voters have sixty-seven days to request an absentee ballot for a general
election and seventeen days after a general election to request a runoff election
absentee ballot. 13 While the Court recognizes that these application windows,
especially for runoff elections, may inconvenience some voters who—for one
reason or another—do not meet the deadline, those voters have other options, such
as early in-person or election day in-person voting. If they cannot use the alternate
options, they can reasonably be expected to exercise diligence to request a ballot
within the more than two-month window for general elections and the more than
two-week window for runoff elections. 14 See New Ga. Project v. Raffensperger,
976 F.3d 1278, 1281-82 (11th Cir. 2020) (describing—in the context of the
absentee ballot return deadline—the “numerous avenues [available in Georgia] to
mitigate chances that voters will be unable to cast their ballots” and stating that

The Ballot Application Rule provides that an application for an absentee ballot
must be made no earlier than seventy-eight days or later than eleven days prior to
election day, O.C.G.A. § 21-2-381(a)(1)(A), so the absentee ballot application
window for a general election is sixty-seven days. Since a runoff election is
scheduled twenty-eight days after the general election, id. § 21-2-499(b), and the
absentee ballot must be requested no later than eleven days prior to the election,
the application window for a runoff election is seventeen days.
14
An elector confined in a hospital may also apply for an absentee ballot on the
day of the election or during the ten-day period immediately preceding the
election. See O.C.G.A. § 21-2-384(a)(4).
13

26

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 27 of 39

voters must “take reasonable steps and exert some effort” to comply with the
deadline). Therefore, Plaintiffs have not demonstrated that they are substantially
likely to show that the allotted time to request an absentee ballot imposes a severe
burden on the right to vote. 15
State Defendants explained during oral argument that the Ballot Application
Rule is necessary because the late issuance of absentee ballots poses administrative
burdens on election officials, and the deadline addresses the legislature’s concern
that absentee ballots issued too close to election day may not allow sufficient time
for their return by the deadline and may therefore prevent the respective votes from
being counted. Transcript, 53:6-14. These appear to be strong, legitimate reasons
that justify and outweigh whatever slight burden the application windows may
impose on voters. It is not the role of the courts or Plaintiffs to dictate election

Intervenor Defendants have not cited any binding authority for their position that
the Supreme Court’s opinion in McDonald v. Board of Election Commissioners,
394 U.S. 802, 807-08 (1969), which states that there is no right to an absentee
ballot, essentially requires the Court to summarily dispose of Plaintiffs’ claims as
to the Ballot Application Rule or to ignore the undue burden analysis the Supreme
Court later developed in Anderson and Burdick. As set forth above, the AndersonBurdick framework requires the Court to evaluate the type of burden imposed by
the challenged provisions and apply the level of review that corresponds to that
burden. See Anderson, 460 U.S. at 789 (“Only after weighing [the designated]
factors is the reviewing court in a position to decide whether the challenged
provision is unconstitutional.”).
15

27

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 28 of 39

policy to legislatures, 16 and elected officials should be permitted leeway to address
potential deficiencies in the electoral process, so long as the response is reasonable
and does not impose a severe burden on constitutionally protected rights. See
Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986).
Consequently, Plaintiffs have not shown a substantial likelihood of success
on the merits of this claim.
ii. The Observation Rule
The Observation Rule prohibits a person from “intentionally” observing an
elector while that elector is casting a ballot “in a manner that would allow [the]
person to see for whom or what the elector is voting.” O.C.G.A. § 21-2-568.1. At
the heart of Plaintiffs’ challenge is a concern that voters may inadvertently violate,
or would be improperly accused of violating, the rule given the normal layout of
polling stations and the size and brightness of the voting touchscreens. Plaintiffs
reach this conclusion because they read the Observation Rule’s intent requirement
as applicable only to the act of observing the elector and not to the manner in
which the elector is observed.
By its plain words, however, the rule does not make such a distinction. The

Plaintiffs contend that the application deadline should be only a “couple days”
prior to election day. Transcript, 70:7-16
16

28

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 29 of 39

intent requirement naturally excludes inadvertent viewing and applies only if a
person intentionally attempts to see for whom an elector is voting. Plaintiffs’
reading of the rule does not square with the text.
Because the Observation Rule does not extend to inadvertent actions, it is
unlikely that Plaintiffs can show that it imposes a severe burden on their right to
vote. Therefore, the state’s legitimate interests in protecting the secrecy of the
balloting process and upholding the integrity of elections are likely sufficient to
justify whatever slight burden may exist. Plaintiffs thus have not carried their
burden to show that they are substantially likely to prevail on their challenge to the
Observation Rule. 17
c.

Void for Vagueness

Plaintiffs contend that the Observation, Communication and Tally Rules
violate the due process requirements of the Fourteenth Amendment because they
are impermissibly vague.
“Generally, the void for vagueness doctrine encompasses ‘at least two
connected but discrete due process concerns: first, that regulated parties should
know what is required of them so they may act accordingly; second, precision and
Plaintiffs’ argument regarding the potential for arbitrary enforcement of the rule
or the improper use of the rule to target political opponents is addressed below in
connection with their vagueness argument. See section II(B)(1)(c)(i), infra.

17

29

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 30 of 39

guidance are necessary so that those enforcing the law do not act in an arbitrary or
discriminatory way.’” Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1320
(11th Cir. 2017) (quoting FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253
(2012)); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983) (stating that the
vagueness doctrine “requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement”).
In Kolender, the Supreme Court found that a statute requiring citizens to
submit “credible and reliable” identification that provided “reasonable assurance”
of authenticity was impermissibly vague because it contained “no standard”
regarding how it could be satisfied and rather “vest[ed] virtually complete
discretion in the hands of the police to determine whether [the requirements were
met.]” 461 U.S. at 358, 359.
The vagrancy statute in Papachristou v. City of Jacksonville, which, among
other things, regulated when and under what conditions a person may stand or
stroll on city streets, was similarly unconstitutional because it provided “no
standards governing the exercise of the discretion [it] granted” and thereby
“permit[ted] and encourage[d] an arbitrary and discriminatory enforcement of the

30

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 31 of 39

law.” 405 U.S. 156, 170 (1972). The additional concern there was that the law
“furnish[ed] a convenient tool for ‘harsh and discriminatory enforcement by local
prosecuting officials, against particular groups deemed to merit their displeasure.’”
Id. (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)).
Nevertheless, the Supreme Court has cautioned that “[t]he root of the
vagueness doctrine is a rough idea of fairness.” Colten v. Kentucky, 407 U.S. 104,
110 (1972). Therefore, “[i]t is not a principle designed to convert into a
constitutional dilemma the practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human conduct and sufficiently
specific to provide fair warning that certain kinds of conduct are prohibited.” Id.
These cases guide the Court’s analysis of Plaintiffs’ claims that the
Observation, Communication and Tally Rules are impermissibly vague.
i.

The Observation Rule

As the Court explained in section II(B)(1)(b)(ii), supra, the Observation
Rule is clear in its prohibition of the intentional viewing of an elector in a manner
that would allow the elector’s votes to be seen. Thus, contrary to Plaintiffs’
assertion, the rule’s language provides fair warning as to what conduct is
prohibited and therefore satisfies the first prong of the vagueness test.
The second prong of the analysis, which requires the rule to establish a clear

31

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 32 of 39

standard for enforcement, might be a closer question. The Observation Rule does
vest discretion in polling station workers to determine when a person is
intentionally viewing an elector in a manner that would cause the elector’s vote to
be seen. But while it is possible that such discretion could lead to arbitrary or
discriminatory enforcement, the rule’s intent requirement addresses those
concerns. See Gonzales v. Carhart, 550 U.S. 124, 149 (2007) (noting that where
“intent . . . must be proved to impose liability,” the “scienter requirements alleviate
vagueness concerns”); Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)
(finding that a noise ordinance was not impermissibly vague, despite the discretion
it afforded police officers, in part because the statute required that the prohibited
acts be “‘willfully’ done”); United States v. Waymer, 55 F.3d 564, 568 (11th Cir.
1995) (“‘A statutory requirement that an act must be willful or purposeful may not
render certain, for all purposes, a statutory definition of the crime which is in some
respects uncertain. But it does relieve the statute of the objection that it punishes
without warning an offense of which the accused was unaware.’” (quoting United
States v. Conner, 752 F.2d 566, 574 (11th Cir. 1985))). Accordingly, the rule
satisfies the second prong of the vagueness test.
For these reasons, Plaintiffs have not demonstrated a substantial likelihood
of success on their argument that the Observation Rule is unconstitutionally vague.

32

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 33 of 39

ii.

The Communication Rule

Under the Communication Rule, disclosure of information “about any ballot,
vote, or selection to anyone other than an election official who needs such
information” is not permitted “[w]hile viewing or monitoring” the absentee ballot
opening and scanning process. O.C.G.A. § 21-2-386(a)(2)(B)(vii). The Court also
explained in section II(B)(1)(a)(i), supra, that the rule applies only in the Ballot
Processing Room. Because the rule specifically describes what type of
communication is prohibited as well as during what time and to whom such
information may not be provided, it provides both fair warning regarding the
proscribed conduct and clear guidance for enforcement purposes.
The Court is not persuaded by Plaintiffs’ argument that the rule is vague
simply because a “zealous State Election Board investigator or prosecutor” could
interpret it to prohibit communications outside the Ballot Processing Room. Pls.’
Br. 16, ECF No. 15-1. That interpretation would not pass muster because it is
contrary to the plain words of the statute.
In sum, the Communication Rule is not the type of standard-less regulation
that courts find to be impermissibly vague, and Plaintiffs therefore have not shown
that they are substantially likely to succeed on the merits of this claim.

33

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 34 of 39

iii.

The Tally Rules

The Tally Rules prohibit the tallying, tabulating or estimating of absentee
ballots cast before the polls close on election day (Tally Rule I), O.C.G.A. § 21-2386(a)(2)(A), or while viewing or monitoring the absentee ballot opening and
scanning process (Tally Rule II), id. § 21-2-386(a)(2)(B)(vi).18
Here also, the language of the rules is direct in what conduct is proscribed:
counting or estimating of absentee ballots cast prior to the closing of the polls on
election day or during the absentee ballot viewing and monitoring process.
Therefore, Plaintiffs are not substantially likely to show that the rules fail to
provide fair warning regarding prohibited conduct. Nor are they substantially
likely to show that the rules encourage arbitrary enforcement.
The Court disagrees with Plaintiffs’ argument that the Tally Rules punish
“pure thought” and inherently lack any “observable or objective indicia of criminal
conduct.” Pls.’ Br. 17, 19, ECF No. 15-1. To the contrary, writing down a tally or
estimate of the number of ballots cast is an observable act that would violate the
rules. 19 And such objective conduct, rather than mere mental thought, would be
Although similar in language, Tally Rule II applies specifically to election
monitors or observers, whereas Tally Rule I encompasses all persons engaged in
the absentee ballot opening and scanning process.
19
Plaintiffs mentioned but did not develop an argument that prohibiting
communications regarding ballot estimates would implicate the First Amendment,
18

34

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 35 of 39

necessary for enforcement. See United States v. Oviedo, 525 F.2d 881, 884 (5th
Cir. 1976) (noting that our jurisprudence does not permit the punishment of a
person’s “thoughts, desires, or motives, through indirect evidence, without
reference to any objective fact”). 20
For these reasons, Plaintiffs have not demonstrated that they are
substantially likely to succeed on the merits of this claim.
2.

Irreparable Harm

The Court will address the irreparable injury, balance of the equities and
public interest prongs only with respect to Photography Rule II because Plaintiffs
have not shown that they are substantially likely to succeed on the merits of their
challenge to the other provisions. See Siegel v. LePore, 234 F.3d 1163, 1176 (11th
Cir. 2000).
“A showing of irreparable injury is the ‘sine qua non of injunctive relief.’”
Id. (quoting Ne. Fla. Chapter of Ass’n of Gen. Contractors v. City of
so the Court does not address it. See Jones v. Bank of Am., N.A., 564 F. App’x
432, 434 (11th Cir. 2014) (agreeing with the district court’s conclusion that “when
a party fails to respond to an argument or otherwise address a claim, the [c]ourt
deems such argument or claim abandoned” (alteration in original) (quoting Hudson
v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001))).
20
“[D]ecisions of the United States Court of Appeals for the Fifth Circuit . . .
handed down by that court prior to the close of business on [September 30, 1981],
shall be binding as precedent in the Eleventh Circuit.” Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
35

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 36 of 39

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). Even if a plaintiff can show
a substantial likelihood of success on the merits, “the absence of a substantial
likelihood of irreparable injury would, standing alone, make preliminary
injunctive relief improper.” Id.; see also City of Jacksonville, 896 F.2d at 1285
(declining to address all elements of the preliminary injunction test because “no
showing of irreparable injury was made”).
The irreparable injury sufficient to satisfy the burden “must be neither
remote nor speculative, but actual and imminent.” Siegel, 234 F.3d at 1176
(quoting City of Jacksonville, 896 F.2d at 1285). In the context of constitutional
claims, it is well-settled that “[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373 (1976); see also City of Jacksonville, 896 F.2d at 128586 (noting that an ongoing violation of First Amendment rights constitutes
irreparable injury).
The parties devoted little time in their briefs and during oral argument to the
issue of irreparable harm. Plaintiffs assert that this prong is satisfied because they
have alleged constitutional harm, and State Defendants assert (without any
authority) that no irreparable injury exists because they contend Plaintiffs have not
alleged an intent to violate the challenged provisions.

36

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 37 of 39

Because Plaintiffs have shown a substantial likelihood of success on their
claim that Photography Rule II violates their First Amendment rights, they have
also carried their burden to show that they would suffer irreparable harm should an
injunction not issue with respect to that rule. The second factor of the preliminary
injunction test is therefore satisfied with respect to Photography Rule II.
3.

Balance of the Equities and Public Interest

The Court combines its analysis of the final two factors—balance of the
equities and the public interest—because “where the government is the party
opposing the preliminary injunction, its interest and harm merge with the public
interest.” Swain v. Junior, 958 F.3d 1081, 1091 (11th Cir. 2020).
The parties’ arguments under these prongs are similarly cursory. Plaintiffs
argue that the balance of equities weighs strongly in their favor given the important
First Amendment rights at stake. They also maintain that there is no public
detriment to enjoining the challenged provisions since other adequate laws exist
that would advance State Defendants’ interests without impinging on Plaintiffs’
constitutional rights.
State Defendants and Intervenor Defendants, on the other hand, focus solely
on the timing of injunctive relief in light of upcoming elections and Plaintiffs’
alleged lack of diligence in bringing their claims.

37

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 38 of 39

Since Plaintiffs have shown a substantial likelihood of success on the merits
of their claim that Photography Rule II violates their First Amendment rights, the
Court finds that the threatened injury to Plaintiffs outweighs any potential harm an
injunction may cause to State Defendants. This is particularly true where other
election statutes, including O.C.G.A. § 21-2-579(1), which prohibits voters from
allowing their ballot to be seen for fraudulent purposes, and O.C.G.A. § 21-2413(e), which generally bans photography in a polling place, advance the interests
underlying Photography Rule II.
Further, an injunction with respect to Photography Rule II would not be
adverse to the public interest because it would simply enjoin the enforcement of a
rule that is substantially likely to be found unconstitutional.
Although the Court’s opinion denying injunctive relief regarding the July 13,
2021 runoff elections, ECF No. 37, cited the timing and diligence considerations
set forth in Purcell, 549 U.S. at 5-6, those concerns are much less significant today
and do not militate against an injunction. The next scheduled elections are not
until September 21, 2021, and early voting for those elections has not yet begun.
Finally, an injunction enjoining the enforcement of Photography Rule II is
unlikely to affect the administration of the election or cause voter confusion at this
time.

38

Case 1:21-cv-02070-JPB Document 49 Filed 08/20/21 Page 39 of 39

For all these reasons, the Court finds that the third and fourth prongs of the
preliminary injunction test (balance of the equities and the public interest) are
satisfied with respect to Photography Rule II.
III.

CONCLUSION

Having reviewed and fully considered the papers and evidence submitted in
connection with Plaintiffs’ Motion for Preliminary Injunction (ECF No. 15), the
Court GRANTS the Motion with respect to Photography Rule II only and
DENIES it in all other respects. State Defendants are hereby enjoined from
enforcing Photography Rule II until further order of the Court.
The Court recognizes that a preliminary injunction is an extraordinary
remedy that should be granted sparingly, especially when it enjoins enforcement of
a statute, but finds it is appropriate here given the constitutional rights at stake and
Plaintiffs’ satisfaction of the requisite burden.
SO ORDERED this 20th day of August, 2021.

39