Clark et al v. Edwards et al

Filing 1

COMPLAINT against Kyle Ardoin, John Bel Edwards, Jeff Landry, Charlene Meaux Menard, Rhonda Rogers ( Filing fee $ 400 receipt number ALAMDC-2115758.), filed by Martha Christian Green, Lakeshia Barnett, Telisa Clark, Crescent City Media Group, League of Women Voters Louisiana. (Attachments: # 1 Attachment Civil Coversheet, # 2 Attachment Summons, # 3 Attachment Summons, # 4 Attachment Summons, # 5 Attachment Summons, # 6 Attachment Summons)(Davis, Danielle)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA

TELISA CLARK, LAKESHIA BARNETT,
MARTHA CHRISTIAN GREEN,
CRESCENT CITY MEDIA GROUP, and
LEAGUE OF WOMEN VOTERS
LOUISIANA,
Plaintiffs,
v.
JOHN BEL EDWARDS, in his official
capacity as Governor of Louisiana; KYLE
ARDOIN, in his official capacity as
Secretary of State of Louisiana; JEFF
LANDRY, in his official capacity as
Attorney General of the State of Louisiana;
CHARLENE MEAUX MENARD, in her
official capacity as Lafayette Parish Registrar
of Voters/Member of the Parish Board of
Election Supervisors; and RHONDA R.
ROGERS, in her official capacity as
Terrebonne Parish Registrar of
Voters/Member of the Parish Board of
Election Supervisors,

Case No.: _________________
COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

Defendants.

I.
1.

PRELIMINARY STATEMENT

Plaintiffs Telisa Clark, Lakeshia Barnett, Martha Christian Green, Crescent City

Media Group, and League of Women Voters Louisiana (collectively, “Plaintiffs”) bring this action
for immediate injunctive and declaratory relief against Louisiana Governor John Bel Edwards,
Secretary of State Kyle Ardoin and Attorney General Jeff Landry, Lafayette Parish Registrar of
Voters Charlene Meaux Menard, and Terrebonne Parish Registrar of Voters Rhonda R. Rogers,
for failing to protect the fundamental right to vote ahead of the 2020 elections—including elections

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on July 11, August 15, November 3, and December 5—during Louisiana’s COVID-19 public
health crisis.
2.

The COVID-19 pandemic presents an unprecedented challenge to our nation,

threatening the lives, livelihood, and health of millions of Americans and severely straining health
care systems, the economy, and all levels and branches of government.
3.

COVID-19 is wreaking havoc across all sectors and causing massive disruptions in

election administration during this presidential election year. With its high transmission and
mortality rates, COVID-19 poses a significant risk to in-person voters, especially to those voters
at higher risk of severe complications from COVID-19. The pandemic has decimated voter
registration drive activity, makes it unreasonably dangerous and burdensome to comply with
certain requirements for mail-in absentee voting, and threatens massive withdrawals by volunteer
poll workers who justifiably fear contracting the disease.
4.

The United States has recorded more than 1.2 million confirmed cases 1—more than

one-third of the global total. 2 As of May 18, 2020, Louisiana had reported 34,709 cases and 2,440
deaths. 3
5.

In the face of this rapidly escalating public health emergency, Defendant Governor

Edwards declared a state of emergency 4 and issued a stay-at-home order. 5 He also twice postponed

1

Ctrs. for Disease Control & Prevention (CDC), Cases in the U.S., https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html#accordion-1-collapse-3 (last updated May 18, 2020).
2
Coronavirus disease (COVID-19) Situation Report – 108, World Health Org. 1 (May 7, 2020),
https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200507covid-19-sitrep108.pdf?sfvrsn=44cc8ed8_2.
3
Louisiana Coronavirus (COVID-19) Information, La. Dept. of Health, http://ldh.la.gov/coronavirus/ (last updated
May 18, 2020).
4
Proclamation No. 25 JBE 2020, § 1, https://gov.louisiana.gov/assets/Proclamations/2020/modified/25-JBE-2020Public-Health-Emergency-COVID-19.pdf.
5
Proclamation No. 33 JBE 2020, § 3, https://gov.louisiana.gov/assets/Proclamations/2020/modified/33-JBE-2020Public-Health-Emergency-COVID.pdf.

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the primary and municipal elections, 6 and later extended the state’s stay-at-home order to May
15. 7 Even with the stay-at-home order partially lifted as of May 15, Louisianans are still required
to stay at home as much as possible; the types of businesses allowed to open may only do so with
strict social distancing, required mask use for employees helping the public, and only at 25 percent
total occupancy. 8
6.

On April 15, 2020, Defendant Secretary of State Ardoin proposed an emergency

election plan that would have substantially reduced the risk of voters being exposed to COVID-19
by suspending certain aspects of Louisiana election law that require person-to-person interactions,
including in-person voting by large categories of individuals. In declaring his support for Secretary
Ardoin’s plan, Defendant Governor Edwards stated that “nobody should have to choose between
exercising their right to vote and potentially endangering themselves or others.” 9
7.

Secretary Ardoin’s original plan was blocked by the Louisiana legislature. Instead,

on April 27, 2020, the Legislature adopted an alternative emergency election plan for the July 11
Presidential Preference Primary and Municipal Primary Election (“July election”) and the August
15 Municipal General Election (“August election”), developed and submitted by Defendants
Governor Edwards and Secretary of State Ardoin (the “Emergency Election Plan”). 10 As described
herein, the alternative Emergency Election Plan failed to suspend a number of aspects of Louisiana

6

Proclamation No. 28 JBE 2020 (Mar. 13, 2020), https://gov.louisiana.gov/assets/Proclamations/2020/modified/28JBE-2020-Special-Elections-COVID19-Postponement.pdf; Proclamation No. 46 JBE 2020 (Apr. 14, 2020),
https://gov.louisiana.gov/assets/Proclamations/2020/modified/46-JBE-2020-Elections.pdf.
7
Proclamation No. 52 JBE 2020, § 15, https://gov.louisiana.gov/assets/Proclamations/2020/52-JBE-2020-Stay-atHome-Order.pdf.
8
Proclamation No. 58 JBE 2020, § 15 (May 14, 2020) § 2A, 2C, 2D,
https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.
9
Id.
10
Secretary of State Emergency Election Plan for the July 11, 2020 Presidential Preference Primary and August 15,
2020 Municipal General Elections in the State of Louisiana, Sec’y of State (Apr. 20, 2020),
https://www.sos.la.gov/OurOffice/PublishedDocuments/Revised%20Emergency%20Election%20Plan%20for%20P
PP%20and%20Mun%20General%20Rev.%204-20.pdf.

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election law that will unnecessarily expose voters to risk of contracting COVID-19 and place an
undue burden on the right to vote. The Emergency Election Plan also does not apply to the
November 3 Presidential General and Open Congressional Primary Election (“November
election”) or the December 5 Congressional and Open General Election (“December election”). 11
8.

Louisiana law limits absentee voting by mail to voters who satisfy one of fifteen

excuses (“Excuse Requirement”). See La. Rev. Stat. § 18:1303. The Emergency Election Plan
creates an additional COVID-19 emergency absentee ballot application, which extends the ability
to vote by mail to five narrow categories of voters with COVID-19–related restrictions. 12 The
Emergency Election Plan fails to protect other categories of voters who need protection from
COVID-19.
9.

The Emergency Election Plan leaves in place the requirement that voters who cast

their ballots by mail find a witness to observe the signing of their absentee ballot affidavit and then
sign the certificate envelope (the “Witness Requirement”). See La. Rev. Stat. § 18:1306(E.)(2)(a)–
(b). This rule will require voters who qualify to vote by mail and who live on their own to risk
infection to have their ballots counted.
10.

Louisiana law fails to provide absentee voters with notice of defects with their mail-

in absentee ballot requests and their mail-in absentee ballots and deprives them of an opportunity
to cure such problems so that their votes may be counted (“Cure Prohibition”). See La. Rev. Stat.
§ 18:1313. Louisiana also provides no mechanism for tracking whether one’s absentee ballot has
been received, accepted, or counted.
11.

Epidemiologists and infectious disease specialists have already concluded that

there will very likely be a COVID-19 resurgence in the United States this fall. Dr. Anthony Fauci,

11
12

See id. at 2.
Emergency Election Plan, supra note 10, at 8.

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Director of the National Institute of Allergy and Infectious Diseases, has said a second wave of
infections in the United States is “inevitable.” 13 Furthermore, experts from the Harvard T.H. Chan
School of Public Health’s Center for Communicable Disease Dynamics warned that, to avoid
exceeding hospital critical care capacities, prolonged or intermittent social distancing may be
necessary into 2022. 14
12.

The Excuse Requirement, Witness Requirement, and Cure Prohibition

(collectively, the “Challenged Provisions”) will unnecessarily deprive Louisiana voters of their
right to vote in 2020 elections in light of COVID-19.
13.

Both together and separately, the Excuse Requirement and the Witness

Requirement needlessly burden Louisiana voters’ fundamental right to vote in the 2020 elections
in light of COVID-19. The Excuse Requirement and the Witness Requirement directly contradict
the specific guidance from the Centers for Disease Control and Prevention (“CDC”) concerning
safe voting practices during the COVID-19 pandemic. Among other measures, the CDC
recommends that states and jurisdictions “[e]ncourage voters to use voting methods that minimize
direct contact with other people and reduce crowd size at polling stations.” 15
14.

The Excuse Requirement and the Witness Requirement create significant risks to

the health and lives of Plaintiffs, as well as the Organizational Plaintiffs’ members and thousands
of other Louisiana voters who want to vote in the July, August, November, and/or December 2020
elections.

13

Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press
Briefing, White House (Mar. 25, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trumpvice-president-pence-members-coronavirus-task-force-press-briefing-11/.
14
Stephen M. Kissler et al., Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period,
Science, Apr. 14, 2020, https://science.sciencemag.org/content/early/2020/04/24/science.abb5793.
15
Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim guidance to
prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated March 27, 2020).

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The risk of disenfranchisement from the Excuse Requirement and Witness

Requirement fall more heavily on Black citizens in Louisiana, who are more likely than white
Louisianans to live alone or with young children, more likely to have underlying health conditions
that put them at severe risk from COVID-19, and who are afflicted by and die from COVID-19 at
shockingly disproportionate rates. Black Louisianans comprise nearly 57% of COVID-19–related
deaths despite making up just 33% of the state’s total population. Black Louisianans are also more
likely to live alone, making the Witness Requirement more burdensome than for white
Louisianans. Louisiana’s history of racial discrimination in various areas, such as voting,
education, employment, and healthcare, interact with these provisions to hinder Black people’s
ability to participate effectively in the political process in violation of Section 2 of the Voting
Rights Act.
16.

The Excuse Requirement and the Witness Requirement, separately and together,

unduly burden the fundamental right to vote of Louisiana voters for the 2020 elections.
17.

The Excuse Requirement and the Witness Requirement, separately and together,

violate Louisiana voters’ fundamental right to bodily integrity by requiring them to take a severe
risk to their health in order to exercise their right to vote.
18.

The Cure Prohibition will deprive Louisiana voters of their liberty interests in

requesting and casting mail-in absentee ballots and exercising their fundamental right to vote by
denying them notice of and an opportunity to cure defects.
19.

Plaintiffs therefore ask the Court to enjoin the Challenged Provisions and declare

them unconstitutional for the duration of the 2020 election cycle. Given that epidemiologists and
infectious disease specialists, including Dr. Anthony Fauci, are predicting a highly likely
resurgence of COVID-19 in the fall, and given the inexorable timeline of election administration

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procedures that must be completed to print mail-in ballots with certificate envelopes and
instructions and to educate the electorate about revised voting procedures, Plaintiffs, who all seek
to vote in November, must be granted relief now.
II.
20.

JURISDICTION AND VENUE

This action arises under the First and Fourteenth Amendments to the U.S.

Constitution, as well as Section 2 of the Voting Rights Act (“VRA”), and is brought under 42
U.S.C. §§ 1983 and 1988 and authorized under 52 U.S.C. § 10302 to seek injunctive and
declaratory relief for violations of constitutional and statutory rights under color of state law. This
Court therefore has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.
21.

This Court has personal jurisdiction over Defendants because each is sued in their

official capacity as a state official, and the violations complained of concern their conduct in such
capacities.
22.

Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.

23.

Venue in the Middle District of Louisiana is proper based on 28 U.S.C. § 1391(b)(1)

because Defendants are state officials working in Baton Rouge, Louisiana.
III.
24.

PARTIES

Plaintiff TELISA CLARK is a 55-year-old event planner and civil rights activist.

She is a U.S. citizen, has never lost her right to vote by reason of a felony conviction or court order,
and is a registered voter in Louisiana. She is African-American and lives in Houma, Louisiana.
Ms. Clark lives at home with her husband, Kevin Clark, who is 58 years old. Several family
members live with Ms. Clark and her husband at their home. Ms. Clark, her husband, and many
members of her household have health conditions that put them at higher risk of contracting and
suffering severe complications and potentially dying from COVID-19. Ms. Clark has hypertension

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and other serious heart conditions. Her husband is currently undergoing treatment for lung cancer
and is at extremely high risk of severe complications from COVID-19. Ms. Clark’s daughter
Kevon Barnett is currently seven months pregnant and suffers from hypertension. And Ms. Clark’s
grandson Matthew, who is 18 and a registered voter, has severe asthma. Because of the risk
COVID-19 poses to their health, Ms. Clark, her husband, her daughter Kevon, her grandson
Matthew, and other family members have been limiting their outside activity and avoiding personto-person contact. When they must go out in public, Ms. Clark and her husband wear gloves,
masks, and coverings on their clothes. Both Ms. Clark and her husband are lifelong, regular voters.
Ms. Clark prefers to vote in-person on election day. She voted early in-person recently after her
husband was diagnosed with cancer. Ms. Clark plans to vote in the July, August, November, and
December elections in Houma. Because of the severe risk that voting in person at her polling place
or at an early voting site poses to her health, her husband’s health, and the health of family
members living in her household, Ms. Clark needs to vote by absentee ballot for all upcoming
2020 elections. Ms. Clark understands that for the July and August elections, she will qualify to
request an absentee ballot through the COVID-19 Emergency Application as someone at higher
risk of severe illness from COVID-19 due to serious underlying medical conditions as identified
by the CDC. Ms. Clark understands, however, that for the November and December elections, she
does not qualify to request an absentee ballot and must decide whether to vote in person—risking
her health and the health of her family—and not voting at all.
25.

Plaintiff LAKESHIA BARNETT is 26 years old, a U.S. citizen, has never lost her

right to vote by reason of a felony conviction or court order, and is a registered voter in Louisiana.
She is African-American and lives in Houma, Louisiana. Ms. Barnett lives with her parents, Telisa
and Kevin Clark, and several other family members, at her parents’ home. Many of her family

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members in her home—including her parents—suffer from health conditions that put them at
higher risk of contracting and suffering severe complications and dying from COVID-19. Ms.
Clark has hypertension and other serious heart conditions. Mr. Clark is currently undergoing
treatment for lung cancer and is at extremely high risk of severe complications from COVID-19.
Ms. Barnett’s sister Kevon Barnett is currently seven months pregnant and suffers from
hypertension. And Ms. Barnett’s nephew Matthew, who is 18 and a registered voter, has severe
asthma. Because of the risk COVID-19 poses to their health, Ms. Barnett, her parents, sister,
nephew, and other family members have been limiting their outside activity and avoiding personto-person contact except when necessary. Ms. Barnett currently works two jobs. One employer,
Target, recently reduced her hours to zero, and she has not worked there since late April. She also
works at the U.S. Postal Service. At her job, Ms. Barnett rarely interacts with members of the
public and always wears protective gear. Ms. Barnett relies on her job to pay her living expenses
and for health insurance. At this job, she does not have the option to work from home or take time
off because she is worried about infecting her family members who are at higher risk from COVID19. If she took too much time off from work, she would lose her job. Ms. Barnett registered to vote
when she turned 18 and has voted regularly since then. She intends to vote in each election in
2020. She prefers to vote in person, but because of the risks voting in person would pose to her
family, Ms. Barnett needs to vote by absentee ballot in the July, August, November, and December
elections. Ms. Barnett understands that she needs an excuse to qualify for an absentee ballot in
Louisiana and that she does not qualify for any excuse under Louisiana law. Therefore, if Ms.
Barnett wants to vote in any election in 2020, she understands that she would have to vote in
person, which would require her to engage in the person-to-person contact she has been avoiding

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to protect the health of her high-risk family members. If forced to vote in person, Ms. Barnett
would have to choose between her vote and her family’s health.
26.

Plaintiff MARTHA CHRISTIAN GREEN is a 52-year-old scholar and researcher

working in the fields of law and religion. She is a U.S. citizen, has never lost her right to vote by
reason of a felony conviction or court order, and is a registered voter in Louisiana. She is white,
and lives in Lafayette, Louisiana. Ms. Green is also a member of the Lafayette chapter of the
League of Women Voters and a Board member for the League of Women Voters of Louisiana.
Ms. Green lives with and cares for her mother, Martha, who is 80 years old and suffers from several
health conditions that make her higher risk for contracting and suffering severe complications—
including death—from COVID-19. Ms. Green prefers not to reveal her mother’s specific medical
information because of privacy concerns, but she does suffer from hypertension, and her most
recent hospitalization was due to her high blood pressure. To protect her mother’s health and
minimize the risk of her mother contracting COVID-19, Ms. Green has been taking all necessary
precautions to limit her own person-to-person contact. Aside from time spent at her office where
she is away from other people and running necessary errands, including to the grocery store and
pharmacy, Ms. Green has been staying at home and away from members of the public. When she
is away from home and encountering other people and surfaces others may have touched, Ms.
Green wears a mask and uses disinfecting wipes to reduce her risk of infection. Ms. Green is a
lifelong voter and so is her mother. Both Ms. Green and her mother prefer to vote in person either
on election day or by early voting, but because of the risks to Ms. Green’s mother’s health, both
need to vote by mail during the 2020 elections. Ms. Green’s mother qualifies to request an absentee
ballot under Louisiana law that allows voters over the age of 65 to vote by mail. Ms. Green
understands that she needs an excuse to vote by mail in upcoming 2020 elections, but she does not

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qualify for any excuses, including the excuses provided under the Emergency Election Plan in
place for the July and August elections. Although early voting has been extended in Louisiana for
the July and August elections, early in-person voting is not a practical option for Ms. Green
because Lafayette has limited early voting locations, and Ms. Green would have to engage in the
person-to-person contact she has been avoiding to safeguard her mother’s health. If she cannot
vote by mail during the 2020 elections, Ms. Green will have to choose between her vote and
endangering her mother’s health.
27.

Plaintiff CRESCENT CITY MEDIA GROUP (“CCMG”) is a community

engagement and media production agency based in New Orleans, Louisiana. CCMG was founded
to address disparities in civic engagement and political education in communities of color in
Louisiana. CCMG works on a wide range of projects including civic engagement trainings, voter
registration campaigns, census education, mutual aid and direct service, and voter education.
28.

CCMG leads the “Louisiana Counts 2020” complete count committee and began

preparations for this public education campaign in 2018. CCMG prepared and disseminated media
toolkits, organizer trainings, social media campaigns, factual reports, and other resources for
community stakeholders across Louisiana to use in their census education work. CCMG also
invested significant time and energy into developing their “Census and Redistricting Initiative,” a
community education initiative focused on preparing communities for the 2020 Census and 2021
redistricting cycle. The program would have taught Louisiana residents the basics of the
redistricting process. In addition to its specific census and redistricting work, CCMG conducts
various voter education and policy advocacy training programs such as the Democracy and Power
Institute, which was founded in 2016 and teaches students and community leaders how to draft
legislation and lobby local governments.

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Much of CCMG’s planned work has been put on hold as it must now expend its

limited resources to respond to the state’s Emergency Election Plan and preparing for the
upcoming 2020 elections, in which thousands of voters of color will be forced to risk their health
by voting in person at their polling place. CCMG is now using its limited resources to acquire and
produce masks and other personal protective materials to provide to voters who will be forced to
cast a ballot in person this year because they do not qualify for an absentee ballot under the Excuse
Requirement. During early voting and on election day, CCMG will provide direct support at
polling places by handing out hand sanitizer and information on social distancing. CCMG is also
now educating voters about the Emergency Election Plan, explaining and training voters on the
Excuse Requirement, including the COVID-19 emergency absentee ballot application. CCMG will
be helping voters navigate the absentee ballot process, including the Witness Requirement for
voters who live alone by doing radio and television public service announcements about what
voters can do to protect themselves from COVID-19 infection while complying with the Witness
Requirement. The resources and staff time spent on these activities would have been spent on
CCMG’s community education activities relating to the Census, voter registration drivers, and
redistricting. But for the Challenged Provisions, CCMG would otherwise be spending these
resources, time, and staff hours on its core mission activities.
30.

Plaintiff LEAGUE OF WOMEN VOTERS LOUISIANA (“LWVLA”) is the

Louisiana affiliate of the national League of Women Voters (the “LWVUS”). LWVLA is a
nonpartisan, not-for-profit corporation organized under the laws of Louisiana. The mission of
LWVLA is to be a recognized, trusted, and knowledgeable volunteer, grassroots community
resource with the flexibility and sustainable capacity to ensure a strong, active, and participatory
democracy for all persons. The LWVLA is dedicated to ensuring that all eligible voters—

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particularly those from traditionally underrepresented or underserved communities, including firsttime voters, non-college youth, new citizens, minorities, the elderly, and low-income Americans—
have the opportunity and the information to exercise their right to vote. The local Leagues are
active in voter registration, especially of new citizens and high school and college youths, while
the state League works with the Secretary of State’s office to increase voter participation in
elections.
31.

Because of the restrictions on absentee ballots under Louisiana law during the

COVID-19 pandemic, LWVLA has been forced to divert time and resources away from its regular
activities. Specifically, LWVLA will be conducting public education on the passage of the
Emergency Election Plan with its complicated and vague Excuse Requirement, the current
absentee ballot laws—including the Witness Requirement—and how voters can stay safe while
complying with the law and voting. LWVLA member volunteers will be sending newsletters,
writing letters to the editor, engaging in voter outreach, responding to voter contacts, and
conducting voter education events to ensure that members and the Louisiana electorate are
educated on how they can vote during the 2020 elections without endangering their health or the
health of their loved ones or the community. Because the LWVLA has limited financial and human
resources, the resources and member time they will have to spend on these efforts would have been
spent on the following LWVLA efforts: voter registration efforts, education around the 2020
Census and redistricting, and “Get Out the Vote” efforts during the 2020 election cycle.
32.

The LWVLA has six local Leagues across the state and 287 members and members-

at-large. Many of the members of the LWVLA are over the age of 60. Some of its members live
in senior living facilities. Many members include registered voters age 60-65 who are at higher
risk for contracting and suffering severe complications or dying from COVID-19. Voting in person

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would therefore put the health of these voters at significant risk because of the person-to-person
contact at the polling place. But these members do not currently qualify for an absentee ballot
under Louisiana law or the Emergency Election Plan.
33.

LWVLA members include registered voters who live with, care for, or come into

regular contact with loved ones who are at higher risk of contracting and suffering severe
complications—including death—from COVID-19; yet, these members do not currently qualify
for an absentee ballot under Louisiana law or the Emergency Election Plan. These members must
choose between their vote and risking the health of their loved one by voting in-person at their
polling place.
34.

Defendant John Bel Edwards is the Governor of Louisiana and is being sued in his

official capacity. Under the Louisiana Constitution, he is “the chief executive officer of the state,”
and must “faithfully support the constitution and laws of the state and of the United States,” as
well as ensure that “the laws are faithfully executed.” La. Const. art. IV, § 5(A). Defendant
Governor Edwards is required to uphold the U.S. Constitution, including the First and Fourteenth
Amendments, as part of the execution of his gubernatorial duties and responsibilities. 4 U.S.C.
§ 101. In his capacity as “chief executive officer of the state,” Defendant Governor Edwards is
empowered to suspend or delay “any qualifying of candidates, early voting, or elections” “upon
issuance of an executive order declaring a state of emergency or impending emergency.” Id. §
18:401.1. The Governor does so “upon the certification of the secretary of state that a state of
emergency exists. Id. Defendant Governor Edwards is also responsible for approving, along with
a majority of the Senate Committee on Senate and Governmental Affairs and House Committee
on House and Governmental Affairs, an Emergency Election Plan submitted by the Secretary of

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State “for the holding of elections impaired as a result of such an emergency or disaster.” Id. §
18:401.3.
35.

Defendant Kyle Ardoin is the Secretary of State of Louisiana, and he is sued in his

official capacity. The Secretary of State is the state’s chief election officer. LA Const. art. IV, § 7.
In that capacity, he is responsible for, among other things, administering election laws, preparing
and certifying the ballots for all elections, and promulgating all election returns. Id. The Secretary
of State is also responsible for preparing absentee by mail ballots, envelopes, instructions,
certificates, and “all other matters pertaining to absentee by mail and early voting ballots shall be
determined by the Secretary of State, subject to approval as to content by the attorney general.”
La. Rev. Stat. § 18:1306(A)(1); see also id § 18:1306(B)(1).
36.

Defendant Jeff Landry is Louisiana’s Attorney General and is being sued in his

official capacity. As Attorney General, Defendant Landry is the “chief legal officer of the state,”
charged with asserting or protecting the rights or interests of Louisiana. La. Const. art. IV, § 8.
Defendant Landry is empowered to approve the content of various materials related to absentee
ballots. La. Rev. Stat. § 18:1306(A)(1); see also id § 18:1306(B)(2). Like other executive officers
of the State, Defendant Attorney General Landry is required to support the U.S. Constitution,
including the First and Fourteenth Amendments to it, before executing his duties as Attorney
General. 4 U.S.C. § 101.
37.

Defendant Charlene Meaux Menard is the Registrar of Voters for Lafayette Parish

and a member of the Lafayette Parish Board of Election Supervisors and is being sued in her
official capacity. As registrar and a member of the parish board of election supervisors, Defendant
Menard has the duty to supervise the preparation for and the conduct of all elections held in

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Lafayette Parish, and is charged with processing requests for absentee ballots, receiving absentee
ballots from voters, and tabulating and counting absentee by-mail ballots. La. Rev. Stat. § 18:1313.
38.

Defendant Rhonda R. Rogers is the Registrar of Voters for Terrebonne Parish and

a member of the Terrebonne Parish Board of Election Supervisors and is being sued in her official
capacity. As registrar and a member of the parish board of election supervisors, Defendant Rogers
has the duty to supervise the preparation for and the conduct of all elections held in Terrebonne
Parish, and is charged with processing requests for absentee ballots, receiving absentee ballots
from voters, and tabulating and counting absentee by-mail ballots. La. Rev. Stat. § 18:1313.
IV.

STATEMENT OF FACTS

A. Transmission of COVID-19 and Public Health Guidelines
39.

In December 2019, a novel coronavirus was detected, now named SARS-CoV-2,

and the disease it causes became known as COVID-19; it has now spread throughout the world,
including to every state in the United States.
40.

On January 30, 2020, the World Health Organization (WHO) declared COVID-19

to be a Public Health Emergency of International Concern. On March 11, 2020, the WHO declared
that it had become a pandemic. On March 13, 2020, President Donald Trump proclaimed a
National Emergency concerning COVID-19.
41.

On March 11, 2020, Defendant Governor Edwards declared a state of emergency, 16

and issued a stay at home order 17 on March 22, which was revised on May 15. 18 He has also twice

16

Proclamation No. 25 JBE 2020, § 1.
Proclamation No. 33 JBE 2020, § 3.
18
Proclamation No. 58 JBE 2020, § 15 (May 14, 2020) § 2A, 2C, 2D,
https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.
17

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postposed the presidential preference primary and municipal elections as a result of the COVID19 pandemic. 19
42.

The novel coronavirus that causes COVID-19 continues to spread at an

unprecedented pace around the world and within the United States. There are currently 1.48
million confirmed cases in the United States, and there have been 89,407 deaths nationwide.
43.

COVID-19 is highly contagious and lethal. According to an article published in

Science Magazine, produced by the American Association for the Advancement of Science, “the
virus acts like no pathogen humanity has ever seen.” 20
44.

According to the Centers for Disease Control and Prevention (“CDC”), older adults

and those who have underlying health conditions and diseases, such as chronic lung diseases,
moderate to severe asthma, diabetes, serious heart conditions, and others that suppress immune
systems like HIV/AIDS, are at higher risk of complications from COVID-19. 21 The CDC’s
website, relying upon research from the National Center for Immunization and Respiratory
Diseases (NCIRD), Division of Viral Diseases, notes that immunocompromised individuals are at
severe risk from COVID-19: “Many conditions can cause a person to be immunocompromised,
including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly
controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening
medications.” 22 Severe COVID-19 cases can lead to pneumonia and acute respiratory distress

19

Ashley Dean, Louisiana's Elections Are Postponed Another 3 Weeks, New Orleans Public Radio, Apr. 14, 2020,
https://www.wwno.org/post/louisianas-elections-are-postponed-another-3-weeks.
20
Meredith Wadman et al., How does coronavirus kill? Clinicians trace a ferocious rampage through the body,
from brain to toes, Science Magazine, Apr. 17, 2020, https://www.sciencemag.org/news/2020/04/how-doescoronavirus-kill-clinicians-trace-ferocious-rampage-through-body-brain-toes#.
21
Ctrs. For Disease Control & Prevention, People who are at higher risk for severe illness,
https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html (last updated May 14,
2020).
22
Ctrs. for Disease Control & Prevention, Information for Healthcare Professionals: COVID-19 and Underlying
Conditions, https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html (last updated Apr. 6,
2020).

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syndrome, requiring hospitalization; in critical cases, some patients need to be intubated and put
on a ventilator.
45.

Younger people have also contracted severe cases of COVID-19 and been

hospitalized; many of them have died. In Louisiana, patients under the age of 50 have accounted
for about six percent of COVID-19 related deaths in the state, 23 a rate far higher than in New York
and New Jersey, 24 even though these states have seen approximately nine times and four times the
number of deaths as Louisiana, respectively. As of May 9, 2020, about 30 percent of all
hospitalizations from COVID-19 in the United States have been of people less than 50 years old. 25
Young, healthy Americans have suffered debilitating and even, in certain cases, fatal strokes from
COVID-19, underscoring how little is known about how this particular virus actually attacks the
human body. Finally, and significantly, even if a person ultimately recovers from COVID-19, it
may leave their lungs and other organs severely damaged or weakened, leading to lifelong
respiratory deficiencies or problems. 26
46.

The CDC has noted that asymptomatic COVID-19-positive individuals can

transmit the disease to others. 27 As a result, the disease can spread before individuals know that
they have contracted COVID-19, facilitating the rapid contagion.

23
La. Dept. of Health, Louisiana Coronavirus (COVID-19) Information, Cases/Deaths by Age Group,
http://ldh.la.gov/coronavirus/ (last updated May 19, 2020).
24
N.Y. St. Dept. of Elections, Fatalities, Fatalities by Age Group, https://covid19tracker.health.ny.gov/views/NYSCOVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last
updated May 19, 2020); State of New Jersey Dept. of Health, COVID-19 Deaths by Age Group, New Jersey
COVID-19 Dashboard, https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (last updated May 19,
2020).
25
COVID-19 Laboratory-Confirmed Hospitalizations, COVID-19 Associated Hospitalizations by Age,
https://gis.cdc.gov/grasp/COVIDNet/COVID19_5.html (last updated Apr. 25, 2020).
26
Robin Young & Samantha Raphelson, As Patients Recover From Coronavirus, Doctors Wonder About LongTerm Health Impacts, WBUR, Apr. 28, 2020, https://www.wbur.org/hereandnow/2020/04/28/coronavirus-recoverychallenges.
27
Ctrs. For Disease Control & Prevention, Coronavirus 2019 (COVID-19): How to Prepare,
https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html (last updated Mar. 4, 2020).

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Louisiana has been especially hard-hit by COVID-19, experiencing the fastest two-

week spread of COVID-19 compared to other U.S. states and other countries. 28 As of May 18,
2020, Louisiana reported 34,498 COVID-19 cases and 2,491 deaths. 29 Louisiana ranks ninth in the
nation in the number of deaths, and it has lost more residents to COVID-19 than more populous
states like Texas, Florida, Georgia, Washington, and Maryland. 30
B. Louisiana’s Elections During the COVID-19 Pandemic
48.

COVID-19 will have an unprecedented impact on the nation’s upcoming elections.

Before the COVID-19 pandemic, the Brookings Institution predicted that “turnout in 2020 could
break all records and test our election machinery as it has never been tested before.” 31 Other experts
also anticipate record-breaking turnout in the 2020 presidential election. 32 Louisiana’s own turnout
statistics reflect voters’ increasing participation and interest. The 2019 gubernatorial election saw
a turnout of 51.05 percent, 33 compared to 40.19 percent in 2015. 34 In the 2016 general election,
over 67.79 percent of registered voters cast a ballot. 35

28
Andrew Capps, Louisiana experiences fastest COVID-19 case increase in the world in first weeks, Lafayette
Daily Advertiser, Mar. 24, 2020, https://www.theadvertiser.com/story/news/local/2020/03/24/covid-19-caseslouisiana-coronavirus-spreading-faster-than-anywhere-world/2907504001/.
29
Cases in the U.S., Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last updated May 14, 2020).
30
CDC, Cases in U.S., supra note 1.
31
William A. Galston, What does high voter turnout tell us about the 2020 elections? Brookings Institution (Nov.
20, 2019), https://www.brookings.edu/blog/fixgov/2019/11/20/what-does-high-voter-turnout-tell-us-about-the-2020elections/.
32
See, e.g., Susan Milligan, Preparing for a Voter Surge, U.S. News & World Report, Sept. 20, 2019,
https://www.usnews.com/news/elections/articles/2019-09-20/experts-predict-huge-turnout-in-2020; Nate Cohn,
Huge Turnout Is Expected in 2020. So Which Party Would Benefit? N.Y. Times, July 15, 2019,
https://www.nytimes.com/2019/07/15/upshot/2020-election-turnout-analysis.html; Ronald Brownstein, Brace for a
Voter-Turnout Tsunami, The Atlantic, June 13, 2019, https://www.theatlantic.com/politics/archive/2019/06/2020election-voter-turnout-could-be-record-breaking/591607/.
33
State Wide Post Election Statistical Report, La. Sec’y of State 1 (Nov. 16, 2019),
https://electionstatistics.sos.la.gov/Data/Post_Election_Statistics/Statewide/2019_1116_sta.pdf.
34
State Wide Post Election Statistical Report, La. Sec’y of State 1 (Nov. 21, 2015),
https://electionstatistics.sos.la.gov/Data/Post_Election_Statistics/Statewide/2015_1121_sta.pdf.
35
State Wide Post Election Statistical Report, La. Sec’y of State 1 (Nov. 8, 2016),
https://electionstatistics.sos.la.gov/Data/Post_Election_Statistics/Statewide/2016_1108_sta.pdf.

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On April 15, 2020, Defendant Secretary of State Ardoin proposed an emergency

election plan that would have expanded access to absentee ballots during the July primary and
August municipal elections, pursuant to La. Rev. Stat. § 18:401.3. Specifically, the first emergency
plan expanded the reasons to request an absentee ballot to registered voters who are:
•
•

At higher risk of severe illness from COVID-19 due to serious underlying
medical conditions (such as chronic lung disease, moderate to severe asthma,
hypertension and other serious heart conditions, diabetes, undergoing
chemotherapy, immunodeficiencies, severe obesity, chronic kidney disease and
undergoing dialysis, and liver disease);

•

Subject to a stay-at-home, quarantine, or isolation order;

•

Advised by a health care provider or governmental authority to self-quarantine
due to COVID-19 concerns;

•

Experiencing symptoms of COVID-19 and seeking a medical diagnosis;

•

Unable to appear in public due to concern of exposure to or transmission of
COVID-19;

•

Caring for an individual who is subject to a stay-at-home, quarantine, or
isolation order or who has been advised by a health care provider or
governmental authority to self-quarantine due to COVID-19 concerns; or

•

50.

Sixty years of age or older;

Caring for a child or grandchild if the child’s school or daycare is closed, or the
childcare provider is unavailable, due to precautions taken because of COVID19 concerns.

The first proposed emergency election plan also stated that failure to comply with

the Witness Requirement would not be a reason to challenge or reject returned absentee ballots for
the July and August elections.
51.

The plan was blocked by the Louisiana Senate and Governmental Affairs

Committee, which cited concerns of “voter fraud.” 36 After the first emergency election plan was
36

Sam Karlin, Louisiana republicans block emergency coronavirus election plan; future of election unclear, The
Advocate, Apr. 15, 2020, https://www.theadvocate.com/baton_rouge/news/coronavirus/article_4dfccfd6-7f44-11eab67e-73d2172ba20b.html.

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blocked, Defendant Governor Edwards stated that “nobody should have to choose between
exercising their right to vote and potentially endangering themselves or others.” 37 To the senators’
concerns about Louisiana voters using the COVID-19 crisis to engage in fraudulent behavior,
Defendant Secretary of State Ardoin stated: “I think some of their concerns are not steeped in all
the facts that were presented to them today. I’m hoping over time there can be some clarity.” 38
52.

On April 20, Defendant Secretary of State Ardoin presented a substantially revised

emergency election plan. Unlike the initial proposal, the revised Emergency Election Plan included
far fewer categories of voters eligible to cast absentee ballots and failed to waive the Witness
Requirement for absentee ballots during the July and August elections. The Emergency Election
Plan forces voters to choose between exercising their right to vote and potentially endangering
themselves or others.
53.

The Emergency Election Plan was approved, ironically, by the Louisiana

legislature mailing in their votes. 39
54.

Defendant Secretary of State Ardoin is now implementing the Emergency Election

Plan. There is no emergency election plan in place for the November or December elections.
55.

Even with the Emergency Election Plan in place, several provisions of Louisiana

law, as well as the Emergency Election Plan itself, now pose direct and severe obstacles to voting
in Louisiana’s 2020 elections and having one’s vote counted. These provisions are: (1) the Excuse
Requirement: the requirement to satisfy a specific excuse on the COVID-19 emergency application
for absentee ballots, provided in the Emergency Election Plan passed pursuant to La. Rev. Stat. §
18:401.3 and the requirement to satisfy a specific excuse to vote by absentee ballot, as provided in

37

Id.
Id.
39
Tierney Sneed, The Irony: LA Legislature Votes By Mail To Approve Plan Limiting Vote-By-Mail, TPM, May 4,
2020, https://talkingpointsmemo.com/news/voting-rights-primer-pandemic-age-flashpoint-voting.
38

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La. Rev. Stat. § 18:1303(B); (2) the Witness Requirement: the requirement that voters obtain a
witness signature on their mail-in absentee ballot, pursuant to La. Stat. Rev. § 18:1306(E)(2)(a);
and (3) the Cure Prohibition: the failure to provide absentee voters with notice of defects with their
absentee ballot request forms or their mail-in absentee ballots and an opportunity to cure such
problems so that their votes may be counted.
56.

According to Louisiana law, the following categories of voters may vote by mail:
•

Members of the United States Service, their spouses, and dependents;

•

Students, instructors, or professors at institutions located outside their parish of
residence, their spouses, and dependents;

•

Ministers, priests, rabbis, or other members of the clergy assigned to a religious
post outside their parish of registration, their spouses, and dependents;

•

Those who will be or expect to be outside their parish of registration during the
early voting period and on Election Day;

•

Those involuntarily confined to a mental health institution;

•

Voters located outside the United States;

•

Jurors sequestered on Election Day;

•

Voters hospitalized during the early voting period and on Election Day;

•

Those employed on state waters during the early voting period and on Election
Day;

•

Incarcerated voters not confined pursuant to a felony conviction;

•

Participants in the Department of State Address Confidentiality Program;

•

Voters with disabilities;

•

Voters aged sixty-five years and older;
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•

The Secretary of State and his or her employees; and

•

People employed by a registrar of voters outside of their parish of registration.

See La. Rev. Stat. § 18:1303.
57.

The Emergency Election Plan extends the ability to vote by mail to voters:
•

•

Subject to a medically necessary quarantine or isolation order as a result of
COVID-19;

•

Advised by a health care provider to self-quarantine due to COVID-19
concerns;

•

Experiencing symptoms of COVID-19 and seeking a medical diagnosis; or

•

58.

At higher risk of severe illness from COVID-19 due to serious underlying
medical conditions as identified by the Centers for Disease Control and
Prevention (including chronic lung disease, moderate to severe asthma, serious
heart conditions, diabetes, severe obesity (BMI of 40 or higher), chronic kidney
disease and undergoing dialysis, liver disease, pregnancy, or
immunocompromised due to cancer treatment, smoking, bone marrow or organ
transplantation, immune deficiencies, poorly controlled HIV or AIDS, and
prolonged use of corticosteroids and other immune weakening medications);

Caring for an identified individual who is subject to a medically necessary
quarantine or isolation order as a result of COVID-19 or who has been advised
by a health care provider to self-quarantine due to COVID-19 concerns. 40

The Emergency Election Plan leaves untouched the requirement that voters who

cast their ballots by mail, other than military and overseas voters, obtain a witness signature for
their ballots to count. See La. Rev. Stat. § 18:1306(E.)(2)(a)–(b). According to the U.S. Census
Bureau, over half a million Louisianans live in a single-member household. 41
59.

The Emergency Election Plan also fails to address the failure to provide absentee

voters with notice of problems with their mail-in ballots and an opportunity to cure such problems
so that their votes may be counted. See La. Rev. Stat. § 18:1313.

40

Emergency Election Plan, supra note 10, at 8.
Table S2501, Occupancy Characteristics, Amer. Community Survey 2014-2018, U.S. Census Bureau,
https://data.census.gov/cedsci/table?q=S2501&tid=ACSST5Y2018.S2501&hidePreview=true&g=0400000US22.

41

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C. The Impact of COVID-19 on Black Louisianans given Past and Present
Discrimination
60.

COVID-19 has devastated Black communities across the country. A recent study

showed that counties with disproportionate numbers of Black residents account for more than half
of COVID-19 diagnoses and nearly 60 percent of COVID-19 deaths nationally. 42 Socioeconomic
factors such as access to health care and employment status, as well as disproportionate rates of
underlying health conditions, contribute to the disproportionate impact of COVID-19 on the Black
community. 43
61.

In Louisiana, Black residents have been especially hard-hit by the COVID-19

pandemic. On April 6, Louisiana released racial impact data for COVID-19 deaths: while making
up only 33% of the state’s population, Black residents accounted for 70% of COVID-19 deaths. 44
And by mid-May, nearly 57% of people who had died from COVID-19 in Louisiana were Black. 45
Put differently, Black Louisianans are dying at a rate 2.65 times higher than other races in the
state. 46
62.

The disparate impact of COVID-19 on Black Louisianans reflects systemic

inequality and discrimination in healthcare, education, housing, employment, access to

42

Laura Barron-Lopez, A new study shows just how badly black Americans have been hit by Covid-19, Politico,
May 5, 2020, https://www.politico.com/news/2020/05/05/black-counties-disproportionately-hit-by-coronavirus237540.
43
Vanessa Williams, Disproportionately black counties account for over half of coronavirus cases in the U.S. and
nearly 60% of deaths, study finds, Wash. Post., May 6, 2020,
https://www.washingtonpost.com/nation/2020/05/06/study-finds-that-disproportionately-black-counties-accountmore-than-half-covid-19-cases-us-nearly-60-percent-deaths/; Colleen Walsh, COVID-19 Targets Communities of
Color, Harvard Gazette, Apr. 14, 2020, https://news.harvard.edu/gazette/story/2020/04/health-care-disparities-inthe-age-of-coronavirus/.
44
Weekend Edition Sunday, 7 Out Of 10 Patients Killed By COVID-19 In Louisiana Were African American, NPR,
Apr. 12, 2020, https://www.npr.org/2020/04/12/832682489/7-out-of-10-patients-killed-by-covid-19-in-louisianawere-african-american.
45
Louisiana Dep’t of Health, COVID-19 (last updated May 11, 2020), http://ldh.la.gov/coronavirus/.
46
Id.

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transportation, and other socioeconomic factors. 47 Black people are less likely to have health
insurance 48 and are disproportionately medically underserved. 49
63.

Black residents are more likely to suffer and die from the underlying health

conditions that make COVID-19 infection more likely and more deadly. On April 8, a CDC study
suggested that about 90 percent of the most serious COVID-19 cases involve underlying health
conditions that are more common and more deadly in Black Americans and strike at younger ages,
including hypertension and cardiovascular disease, obesity, diabetes, and chronic lung disease. 50
According to the CDC, the rate of diabetes is 66 percent higher in Black Americans than in white
Americans and the rate of hypertension is 49 percent higher. 51
64.

The combined effects of discrimination in healthcare, employment, education,

housing, and other areas of life create a perfect storm that puts Black Louisianans at
disproportionate risk of contracting and dying from COVID-19. Black Americans are, for example,
more likely to be part of the essential “front line” workforce than white Americans. In Louisiana,
the U.S. Census Bureau’s 2018 American Community Survey 1-Year Estimates (“ACS”) shows
that 29.9% of Black people and just 14.8% of white people over age 16 work in service
occupations. 52 Similarly, 16.3% of Black people and just 11.3% of white people work in

47

Sheba Turk, Racial disparities in Louisiana's COVID-19 death rate reflect systemic problems, WWLTV, Apr. 7,
2020, https://www.wwltv.com/article/news/health/coronavirus/racial-disparities-in-louisianas-covid-19-death-ratereflect-systemic-problems/289-bd36c4b1-1bdf-4d07-baad-6c3d207172f2.
48
Heeju Sohn, Racial and Ethnic Disparities in Health Insurance Coverage: Dynamics of Gaining and Losing
Coverage over the Life-Course 4-5, Population Research Policy Rev. (April 2017),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5370590/pdf/nihms823497.pdf.
49
Asad El Malik, The Color of a Pandemic: COVID-19, Poverty, and Race in New Orleans, Big Easy Magazine,
Mar. 28, 2020, https://www.bigeasymagazine.com/2020/03/28/the-color-of-a-pandemic-covid-19-poverty-and-racein-new-orleans/; Andre M. Perry, et al. Mapping racial inequity amid COVID-19 underscores policy discriminations
against Black Americans, Brookings, Apr. 16, 2020, https://www.brookings.edu/blog/theavenue/2020/04/16/mapping-racial-inequity-amid-the-spread-of-covid-19/.
50
Linda Villarosa, ‘A Terrible Price’: The Deadly Racial Disparities of Covid-19 in America, NY Times, Apr. 29,
2020, https://www.nytimes.com/2020/04/29/magazine/racial-disparities-covid-19.html.
51
Id.
52
U.S. Census Bureau, 2018: ACS 1-Year Estimates Selected Population Profiles, Table S0201,
https://tinyurl.com/yb3dxcm3.

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production, transportation, or material moving occupations. 53 By contrast, 39.3% of white people
versus only 24.7% of Black people in Louisiana hold management or professional occupations—
i.e., “white collar” jobs that are much more likely to allow employees to continue to work safely
at home. 54 Further, because 15.8% of Black households and only 4.7% of white households lack a
vehicle, 55 Black Louisianans are at higher risk of exposure to COVID-19 both at their job and
getting to their job using public transit.
65.

The CDC has acknowledged that racial and ethnic minorities are disproportionately

impacted by COVID-19 due to economic and social conditions caused by institutional racism and
systemic inequalities in healthcare, among other factors. 56 According to the ACS, in Louisiana,
7.9% of Black people and 6.2% of white people lack health insurance; 39.6% of Black people and
37.8% of white people over age 65 have a disability; 16.0% of Black people and 12.5% of white
people age 18 to 64 have a disability; 19% of Black people and only 10.8% of white people lack a
high school degree; 9.9% of Black people and 4.5% of white people over age 16 are unemployed;
25.2% of Black households and 8.1% of white households in general live below the poverty line;
22.9% of Black people over 65 versus 8.7% of white people over 65 also live in poverty; 31% of
Black households and just 17.9% of white households lack broadband internet; 28.1% of Black
households and 8.7% of white households use SNAP/food stamps; and Black median family
income ($37,048) is half that of white families ($76,800). 57

53

Id.
See id.
55
Id.
56
Centers for Disease Control & Prevention, COVID-19 in Racial and Ethnic Minority Groups,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html (last visited May
8, 2020).
57
U.S. Census Bureau, 2018: ACS 1-Year Estimates Selected Population Profiles, Table S0201,
https://tinyurl.com/yb3dxcm3.
54

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And given underlying inequalities, Black people in Louisiana are more likely to

have the underlying health conditions that put them at increased risk for contracting and dying
from COVID-19. The Louisiana Department of Health reports that Black Louisianans have higher
rates of death from diabetes, heart disease, and cancer than white residents. 58 Black adults in
Louisiana also report higher rates of asthma than white adults. 59
D. The Challenged Provisions Unreasonably Burden the Voting Rights of
Louisiana Voters and Impose an Unconstitutional Condition on the Right to
Vote.
1. Louisiana’s Excuse Requirement will force thousands of voters to
risk exposure to COVID-19 by voting in person during 2020 elections.
67.

Plaintiffs challenge Louisiana’s requirement to have an excuse to vote by mail in

upcoming 2020 elections during the COVID-19 pandemic. Even though the emergency plan adds
five additional excuses on the COVID-19 emergency application for absentee ballot (“emergency
application”) for voters who seek to vote by mail in the July primary or August municipal elections,
the Excuse Requirement will burden thousands of Louisiana voters who do not qualify for an
absentee ballot, but cannot risk voting in person because of the risks of person-to-person contact.
Given the current COVID-19 pandemic and its likely resurgence in the fall, the state’s failure to
provide an option to vote by absentee ballot in November and December in particular for high-risk
voters, those caring for or living with high-risk spouses, children, or near relatives, and many
others, places these voters in the untenable position of choosing between their vote and their health
or the health of a spouse, child, or near relative.

58

Louisiana Dep’t of Health, Minority Health Indicators, http://ldh.la.gov/index.cfm/page/672 (last visited May 8,
2020).
59
Id.

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By requiring every voter who wishes to safeguard their health—or the health of a

spouse, child, or near relative—to have an excuse to vote by mail, Louisiana imposes an undue
burden on their fundamental right to vote.
69.

The burden of the Excuse Requirement will fall more heavily on Black voters in

Louisiana, who—due to longstanding socioeconomic discrimination and inequity—are more
likely to contract and die from COVID-19 than voters of other races.
70.

For the July and August elections, the Excuse Requirement threatens to

disenfranchise many thousands of voters, like Plaintiffs Barnett, Green, and LWVLA members,
who are living with or caring for loved ones who are at increased risk from COVID-19 and do not
want to risk exposing their loved one to infection by voting in person. The Excuse Requirement
also poses an unreasonable obstacle to voters like LWVLA members who are between 60-65 years
old and whose age makes them more susceptible to COVID-19. And although voters who satisfy
one of excuses on the expanded emergency list, like Plaintiff Clark, can vote by absentee ballot in
the July and August elections, there is still no option for them to vote by mail in November and
December. The burden placed on these voters—including voters who are at severe risk of
contracting and suffering complications and dying from COVID-19 is unnecessary. Given
epidemiologists and infectious disease specialists, including Dr. Anthony Fauci, are predicting a
highly likely resurgence of COVID-19 in the fall and given the inexorable timeline of election
administration procedures that must be completed to print mail-in ballots with instructions and to
educate the electorate about revised voting procedures, the Excuse Requirement must be enjoined
now.
71.

Plaintiffs LWVLA and Plaintiff CCMG will expend their limited resources to

educate Louisiana voters about whether they qualify to apply for an absentee ballot and how to

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stay safe while voting for those voters who are ineligible for an absentee ballot but need to take
specific precautions while voting in person to protect their health or the health of a loved one.
Plaintiff CCMG will also spend staff time at selected polling locations to provide hand sanitizer
and information on best practices on social distancing to voters who are forced to vote in person
but need to stay safe while doing so. These resources are diverted away from Plaintiff LWVLA’s
and Plaintiff CCMG’s regular activities which, for both organizations, include engaging with
Louisiana residents on voter registration, the 2020 Census, and the 2020 redistricting cycle.
72.

The Excuse Requirement does not advance any valid government interest. Indeed,

the first emergency election plan proposed by Defendant Ardoin allowed broader categories of
voters to qualify for an emergency application, including anyone “unable to appear in public due
to concern of exposure to or transmission of COVID-19,” among other reasons. 60 In defending the
first emergency election plan, Defendant Ardoin stated that it was drafted “in direct response to an
unprecedented health event” and, noting the state had already reached 1000 deaths, he hoped it
would not “take another 600 [deaths] for people to realize it is not wise to proceed with elections
as if nothing is wrong.” 61
73.

Further, many other provisions in Louisiana law already safeguard the integrity of

the absentee ballot process. For example, the state’s election code requires absentee ballot
envelopes to include an affidavit and a line for the voter’s signature, “certifying that the statements
made by [the voter] are true and correct and that the voter is aware of the penalties for knowingly
making a false statement therein, which penalties shall be stated on the certificate,” id.
§ 18:1306(E.)(1)(f); and permits commissioners, watchers, and qualified voters to challenge an

60

See supra ¶ 49.
Recording of Senate Hearing for First Emergency Election Plan, Senate Cmte. on Senate & Governmental Affairs
9:17 to 9:48 (Apr. 15, 2020).
61

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absentee ballot on the grounds that the voter is not qualified to vote in the election or precinct, or
that the voter is not the person listed on the precinct register, id. § 18:1315(A.)(2)(a); id.
§ 18:565(A.)(1)–(3). Voters are also required to sign the following statement on their absentee
ballot request form on penalty of law: “I CERTIFY that the statements made herein by me are true
and correct and I may be subject to a fine of not more than $2,000 or imprisonment for not more
than 2 years, or both, for knowingly making false statements.” 62
74.

Additionally, given projected voter turnout for the November 2020 election and the

highly likely resurgence of COVID-19 in the fall, the Excuse Requirement does not meaningfully
advance any valid state interest for the November and December elections. The state has already
concluded that the July and August elections need an expanded list of absentee voting excuses for
the July and August elections, conceding that these pandemic conditions require a modification of
the existing restrictions on voting by mail.
75.

In addition to Louisiana, only 15 other states require an excuse to vote by mail—

half of these states have already waived their excuse requirements in response to COVID-19. 63
That demonstrates that such requirements are not necessary to ensure election integrity. And even
if the Excuse Requirement created a marginal benefit to a valid state interest, such benefit would
be greatly outweighed by the risk of widespread disenfranchisement.
76.

Therefore, in the context of this highly contagious and lethal pandemic, the Excuse

Requirement, which requires a significant number of voters to cast their ballots in person in

62

General Application for Absentee by Mail Ballot, La. Sec’y of State (Sept. 2019),
https://www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/GeneralApplicationForAbsenteeByMailBallot.pd
f; Disabled Application for Absentee by Mail Ballot, La. Sec’y of State (Sept. 2019),
https://www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/DisabledApplicationForAbsenteeByMailBallot.p
df.
63
Max Feldman, et al., Brennan Center for Justice, Covid-19 Should Be a Legitimate ‘Excuse’ to Vote by Mail
(Apr. 20, 2020), https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excusevote-mail.

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violation of social distancing directives and/or guidelines, violates the fundamental right to vote
under the First and Fourteenth Amendments to the U.S. Constitution and Section 2 of the Voting
Rights Act of 1965 (“VRA”). Additionally, by requiring some voters to cast their ballots in person
during this lethal pandemic, the Excuse Requirement also conditions voters’ exercise of the
franchise on the surrender of their fundamental right to bodily integrity, in violation of the
Fourteenth Amendment to the U.S. Constitution.
2. Louisiana’s Witness Requirement will deny large numbers of eligible
voters the right to vote without meaningfully advancing any valid
state interest.
67.

Plaintiffs also challenge Louisiana’s requirement that voters who cast a ballot by

mail obtain a witness signature. Under state law, the absentee ballot envelope flap must contain a
line for the handwritten signature of one witness and a line for the printed name of the witness.
See La. Rev. Stat. § 18:1306(E.)(2)(a). The voter must sign their absentee ballot affidavit in the
presence of this witness, who then signs the envelope. Id.
77.

In the context of the COVID-19 crisis, the Witness Requirement imposes an

unreasonably dangerous and burdensome hurdle to thousands of voters who live alone and,
because of their age or underlying health conditions, are strictly limiting person-to-person contact
to protect their health. These voters cannot risk contracting COVID-19, and Louisiana cannot
require them to do so to vote. Plaintiff LWVLA and Plaintiff CCMG will expend their limited
resources to educate Louisiana voters who live alone but qualify for absentee ballots on how to
comply with the Witness Requirement while protecting their own health. Plaintiff CCMG will be
spending money on media advertisements to reach voters who live alone and will be voting
absentee to ensure that if they are forced to find a witness, they have the information they need to
do so in the safest manner possible. These resources are diverted away from Plaintiff LWVLA’s

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and Plaintiff CCMG’s regular activities which, for both organizations, include engaging with
Louisiana residents on voter registration, the 2020 Census, and the 2020 redistricting cycle.
68.

On May 1, 2020, Louisiana had over 2.9 million registered voters. 64 In the

November 2019 general election, over 1.5 million Louisianans voted. 65 And in the 2016
presidential election, over 2 million Louisiana voters cast ballots. 66
69.

According to the ACS, 14.9% of Louisiana adults live alone. 67 If the November

2020 election has similar voter turnout to November 2016, nearly 300,000 Louisiana voters (i.e.,
14.9% of 2 million voters) could be forced to choose between risking their health by voting inperson, leaving their homes and violating social distancing directives to find witnesses for their
absentee ballots, or not voting at all. Many of them will be forced not to vote to protect their health
and their community.
70.

This burden on the right to vote will fall more heavily on older voters, voters with

disabilities, and Black voters, among others. According to the ACS, of the 532,003 Louisianans of
voting age who live alone, 35.89% (190,943) are 65 and older. 68 Around 27.51% of Louisianans
18 and older who live alone have a disability, and 43.69% of Louisianans 65 and older who live
alone have a disability. 69
71.

Of all Black households (i.e., homes with all their occupants, regardless of number,

treated as one unit), 38.70% contain people who live alone, per the ACS. 70 Of all white households,

64

Louisiana Sec’y of State, Registration Statistics – Statewide (last visited May 14, 2020),
https://www.sos.la.gov/ElectionsAndVoting/Pages/RegistrationStatisticsStatewide.aspx.
65
Louisiana Sec’y of State, Geaux Vote, Election Results (select Sat Nov 16 2019 from menu),
https://voterportal.sos.la.gov/graphical.
66
Id. (select Tues Nov 6 2018 from menu).
67
U.S. Census Bureau, 2018: ACS 1-Year Estimates Data Profiles, Table DP02, https://tinyurl.com/y89tlwwt.
68
Id.
69
Id.
70
U.S. Census Bureau, 2018: ACS 1-Year Estimates – Public Use Microdata Sample, Custom Table,
https://tinyurl.com/y9xng3b2.

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31.30% contain people who live alone. 71 And 14.9% of all Black households in Louisiana are
headed by women who live alone with their children under 18 (i.e., people who are not legally
competent witnesses) versus just 4.9% of similar white households. 72
72.

The Witness Requirement imposes a severe burden on many voters and is not

narrowly tailored to the state’s interest in preventing or detecting electoral fraud. The Witness
Requirement is simply not an effective enough deterrent or method of detecting and prosecuting
fraud to outweigh the severe risks and burdens it imposes on voters, particularly at-risk voters who
are living alone, during this pandemic. Indeed, Defendant Secretary of State Ardoin’s first
Emergency Election Plan waived the Witness Requirement to ensure that it would not prevent
voters from casting an absentee ballot without incurring an unreasonable risk to their health or the
health of loved ones. Several other provisions of Louisiana law safeguard the integrity of absentee
voting without putting voters’ lives at risk. In fact, Louisiana is one of only 12 states that require
a voter submitting an absentee ballot to have their ballot witnessed or notarized. 73
73.

In the context of this highly contagious and lethal pandemic, the Witness

Requirement imposes an undue burden on the right to vote under the First and Fourteenth
Amendments to the U.S. Constitution, unconstitutionally conditions exercise of the right to vote
on the surrender of the fundamental right to bodily integrity under the Fourteenth Amendment to
the U.S. Constitution, and denies Black voters an equal opportunity to participate in the political
process and elect representatives of their choice in violation of Section 2 of the VRA.

71

U.S. Census Bureau, 2018: ACS 1-Year Estimates – Public Use Microdata Sample, Custom Table,
https://tinyurl.com/ya7j57b5.
72
U.S. Census Bureau, 2018: ACS 1-Year Estimates Selected Population Profiles, Table S0201,
https://tinyurl.com/yb3dxcm3.
73
See Ala. Code §§ 17-9-30(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Miss.
Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Minn. Stat. §§ 203B.07, 203B.121; Minn. R. 8210.2450; Mo. Rev.
Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 1720-23; S.C. Code Ann. §§ 7-15-220, 7-15-230; VA Code Ann. §§ 24.2-706, 24.2-707; Wis. Stat. § 6.87(4)(b)1.

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3. Louisiana’s failure to provide absentee voters notice and an
opportunity to cure defects in their absentee ballot request forms and
their absentee ballots so they may be counted will disenfranchise
Louisiana voters.
74.

Plaintiffs Clark and LWVLA also challenge Louisiana’s failure to provide voters

who qualify to vote by absentee ballot any notice of or opportunity to correct deficiencies in their
absentee ballot request forms and absentee ballots so that their ballot can be counted.
75.

In the 2016 general election, 3.7% of Louisiana voters received an absentee ballot,

and 2.9% of voters returned them. 74 The rejection rate was nearly 3% for absentee ballots in
2016—2,271 voters had their absentee ballots rejected without any notice or opportunity to address
deficiencies under Louisiana law. 75
76.

Louisiana is about to experience a substantially higher level of absentee mail-in

voting than prior to the pandemic, for several reasons. For example, elderly voters ages 65 and up
already had the option to vote by mail under the existing excuses but now that they are at severe
risk from COVID-19, many will abandon in-person voting at the polls and cast ballots by mail for
the first time. With all these first-time absentee voters requesting ballots and voting them remotely,
this will inevitably yield a higher error rate.
77.

Even under the limited expanded eligibility of the Emergency Election Plan,

Louisiana officials expect an increase in voters—especially older voters—seeking to vote by mail
for the first time in this year’s elections. Defendant Secretary of State Ardoin acknowledged this
reality in defending the first emergency election plan, noting that even if no plan was implemented,
the state was likely to see an influx of absentee ballot requests during the COVID-19 pandemic. 76

74
U.S. Election Assistance Comm’n, The Election Administration & Voting Survey: 2016 Comprehensive Report
23 tbl.2 (2016), https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf.
75
Id.
76
Recording of Senate Hearing for First Emergency Election Plan, Senate Cmte. on Senate & Governmental Affairs
at 23:45 (Apr. 15, 2020).

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Indeed, Plaintiff Clark is a lifelong in-person voter, but must vote by absentee ballot because of
the risk in-person voting poses to her health and the health of her family. And Plaintiff Green’s
mother—at 80 years old—always prefers to vote in person, but because of the risks that COVID19 poses to her health, she will be requesting an absentee ballot this year.
78.

Under Louisiana law, local election officials may reject an absentee ballot for a

perceived failure to comply with a legal requirement. Without notice of or an opportunity to fix
any deficiencies, thousands of voters will be denied their fundamental right to vote and likely more
than in prior presidential election years.
V.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF
(All Plaintiffs)
Violation of the Fundamental Right to Vote
42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S. Constitution
75.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
76.

Eligible individuals have a fundamental right to vote under the First and Fourteenth

Amendments of the U.S. Constitution. Under the First and Fourteenth Amendments, a court
considering a challenge to a state election law must carefully balance the character and magnitude
of the injury to the rights that the plaintiff seeks to vindicate against the justifications put forward
by the State. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S.
780, 789 (1983).
77.

Unless Plaintiffs are granted the requested relief, thousands of Louisiana voters’

right to vote, including Plaintiffs’, will be severely burdened—if not entirely denied—in the July,
August, November, and December elections.

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First, Plaintiffs Barnett and Green do not qualify to vote by mail under La. Rev.

Stat. § 18:1303 or the Emergency Election Plan, which requires an excuse to vote by mail. But
because they live with family members who are at increased risk for contracting and suffering
severe complications or dying from COVID-19, they cannot vote in person in the July, August,
November, or December elections without endangering the health of their loved ones. And
Plaintiff Clark, although she qualifies for an absentee ballot under the Emergency Election Plan
for the July and August elections, she does not qualify to vote by mail under La. Rev. Stat
§ 18:1303 for the November or December elections. Because Plaintiff Clark is at increased risk of
severe illness or death from COVID-19, she cannot vote in person without endangering her health.
The Excuse Requirement imposes a severe burden on many voters, including Plaintiffs Barnett,
Green, and Clark, which are not sufficiently tailored to the state’s interest, and, as such, these laws
unduly burden Plaintiffs’ right to vote.
79.

Second, even though many voters qualify to vote by mail in upcoming elections,

the fact that they live alone means that they will have to interact with someone from outside their
household to satisfy the Witness Requirement. Otherwise, their only option is to vote in person.
Due to their age and preexisting health conditions, such contact could result in severe illness or
even death. The Witness Requirement is unreasonably dangerous for absentee voters and imposes
a severe burden on many such voters, including but not limited to those who live alone and/or who
have an underlying health condition that puts them at heightened risk. The burdens of the Witness
Requirement are not sufficiently tailored to the state’s anti-fraud interest, and, as such, these laws
unduly burden Plaintiffs’ right to vote. The Witness Requirement unduly burdens their right to
vote in the July, August, November and/or December elections. Both Plaintiff LWVLA and
Plaintiff CCMG are injured by the Witness Requirement, in that they will divert resources and

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time to educating voters on how to comply safely with the Witness Requirement during the
COVID-19 pandemic.
SECOND CLAIM FOR RELIEF
(Plaintiffs Clark and LWVLA)
Unconstitutional Condition on Right to Vote Compelling Forfeiture of Right to Bodily
Integrity
42 U.S.C. § 1983, Fourteenth Amendment to the U.S. Constitution
80.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
81.

Voting is protected by the First Amendment as a means of political association and

political expression. Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Norman v. Reed,
502 U.S. 279, 288–90 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787–89, 806 (1983); Kusper
v. Pontikes, 414 U.S. 51, 56–58 (1973); Williams v. Rhodes, 393 U.S. 23, 30–31 (1968).
82.

Under the unconstitutional condition doctrine, the government may not require an

individual to forfeit one constitutional right in order to exercise another. See Lefkowitz v.
Cunningham, 431 U.S. 801 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968); Howard
v. Walker, 406 F.3d 114, 129 (2d Cir. 2005); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir.
2004); Green v. Brigano, 123 F.3d 917, 921 (6th Cir. 1997).
83.

When the government places a condition on the exercise of a right or receipt of a

government-created benefit that interferes with a constitutional right, courts will apply the same
level of scrutiny to the condition as it would to a law that directly regulates the constitutional right.
See Memorial Hosp. v. Maricopa Cty., 415 U.S. 250, 261–62 (1974); Dunn v. Blumstein, 405 U.S.
330, 335 (1972); Shapiro v. Thompson, 394 U.S. 618, 638 (1969). Government actions that
threaten the right to bodily integrity will survive only if they are narrowly tailored to achieve a

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compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Kallstrom v.
City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998).
84.

The Supreme Court has invalidated voting requirements or conditions that require

the forfeiture of another fundamental right. See Blumstein, 405 U.S. at 346, 353 (1972) (finding
that durational residency requirement for voter registration placed unconstitutional condition on
fundamental right to interstate travel).
85.

There is a constitutionally recognized fundamental right to bodily integrity. See

Washington v. Glucksberg, 521 U.S. 702, 777–78 (1997); Alton v. Tex. A & M Univ., 168 F.3d
196, 199 (5th Cir. 1999). “[I]ndividuals possess a constitutional right to be free from forcible
intrusions on their bodies against their will, absent a compelling state interest.” Guertin v. State,
912 F.3d 907, 919 (6th Cir. 2019) (quoting Planned Parenthood Sw. Ohio Reg. v. DeWine, 696
F.3d 490 (6th Cir. 2012)). This right is violated if government officials are deliberately indifferent
to the violation of the plaintiff’s bodily integrity. See M.D. by Strukenberg v. Abbot, 907 F.3d 237,
248 (5th Cir. 2018); Guertin, 912 F.3d at 919. “To act with deliberate indifference, a state actor
must consciously disregard a known and excessive risk to the victim’s health and safety.” M.D. by
Stukenberg, 907 F.3d at 252 (quoting Hernandez ex rel. Hernandez v. Tex. Dept. of Prot. &
Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004)). The state “must be both aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and [it] must also
draw that inference.” Id. (quoting Hernandez, 380 F.3d 872, at 881) (alteration in original).
“Involuntarily subjecting nonconsenting individuals to foreign substances with no known
therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.”
Guertin, 912 F.3d at 921–22.

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By requiring Plaintiffs to vote in person or obtain a witness signature, both of which

cannot be safely and reasonably accomplished throughout 2020 and during the COVID-19
emergency in Louisiana, Defendants force Plaintiffs to forfeit their right to bodily integrity in order
to exercise their right to vote. Should Plaintiffs exercise their right to vote under these
circumstances, Defendants will have knowingly and unreasonably subjected Plaintiffs to
significant risk of exposure to a highly contagious and highly lethal pathogen, the novel
coronavirus that causes COVID-19, without a therapeutic basis or Plaintiffs’ consent. As reflected
by Defendant Governor Edwards’ stay-at-home order, the Emergency Election Plan, and
Defendant Secretary of State Ardoin’s failed attempts to waive the Witness Requirement for the
July and August elections, Defendants are aware of the dangers posed by COVID-19 to voters
generally and specifically if voters are forced to comply with the Excuse and Witness
Requirements and risk contracting or causing illness, death, and lasting injury.
87.

Defendants, acting under color of state law, have deprived and will continue to

deprive Plaintiffs of their rights under the Fourteenth Amendment to the U.S. Constitution, by
requiring them to forfeit their right to bodily integrity in order to exercise their right to vote.
88.

For the foregoing reasons, Defendants have deprived and will continue to deprive

Plaintiffs of the right to be free of unconstitutional conditions on their rights to vote in violation of
the Fourteenth Amendment to the U.S. Constitution as enforced by 42 U.S.C. § 1983.
THIRD CLAIM FOR RELIEF
(Plaintiffs Clark and Barnett)
Violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301
89.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

Complaint as though fully set forth herein.

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Section 2 of the VRA provides in part that “[n]o voting qualification or prerequisite

to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a
manner which results in a denial or abridgement of the right of any citizen of the United States to
vote on account of race or color . . . .” 52 U.S.C. § 10301(a).
91.

The “essence of a [Section] 2 claim is that a certain electoral law, practice, or

structure interacts with social and historical conditions to cause an inequality in the opportunities
enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles,
478 U.S. 30, 47 (1986). Section 2 prohibits both vote denial and vote dilution. See id. at 45 n.10.
92.

The Fifth Circuit has adopted a two-part test for determining liability on a claim of

vote denial under Section 2:
[1] [T]he challenged standard, practice, or procedure must impose a discriminatory burden
on members of a protected class, meaning that members of the protected class have less
opportunity than other members of the electorate to participate in the political process and
to elect representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and historical conditions
that have or currently produce discrimination against members of the protected class.
Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016).
93.

The Excuse Requirement and the Witness Requirement—separately and together—

will result in Black voters in Louisiana having less opportunity than other members of the
electorate to participate in the political process and elect representatives of their choice. The
Excuse Requirement and the Witness Requirement will result in the denial or abridgement of the
right to vote for Black voters in Louisiana.
94.

The Excuse Requirement and the Witness Requirement—separately and together—

impose a discriminatory burden on Black voters in Louisiana.
95.

The Excuse Requirement, if not enjoined, will severely burden the right to vote and

will disproportionately impact Black voters in Louisiana. Because of longstanding and pervasive
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discrimination in healthcare, housing, education, employment, and other socioeconomic areas,
Black voters are at higher risk of contracting COVID-19, suffering serious complications and
dying than white voters if required to vote in person. Accordingly, Black voters are
disproportionately burdened by the Excuse Requirement.
96.

The Witness Requirement, if not enjoined, will severely burden the right to vote

and will disproportionately impact Black voters in Louisiana. Black voters are more likely to live
alone than white voters in Louisiana. And because of longstanding and pervasive discrimination
in healthcare, housing, education, employment, and other socioeconomic areas, Black voters are
at higher risk of contracting COVID-19, suffering serious complications and dying than white
voters if required to break self-quarantine to find a witness signature on their absentee ballot.
Accordingly, Black voters are disproportionately burdened by the Witness Requirement.
97.

The discriminatory results of the Excuse Requirement and the Witness

Requirement are directly linked to social and historical conditions. Louisiana has a long history of
voting-related discrimination, including recent polling place closures, discriminatory lack of early
voting sites and days, and at-large election systems. From 1965 to 2013, Louisiana was covered
by the preclearance provisions of the VRA. During that time, the U.S. Department of Justice
objected to dozens of Louisiana’s proposed voting changes because of their potentially
discriminatory purpose or effect.
98.

Black Louisianans continue to face discrimination in other areas of life, including

healthcare, health, education, employment, and housing, which hinders their ability to participate
effectively in the political process. Such discrimination results in Black Louisianans suffering
disproportionately from health conditions that put them at higher-risk of serious complications and
death from COVID-19. See supra ¶¶ 60-66. This heightened and disproportionate risk from

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COVID-19 exacerbates the difficulties Louisiana’s Black voters face in participating effectively
in the political process and electing representatives of their choice.
99.

Under the totality of the circumstances, the Excuse Requirement and the Witness

Requirement interact with social and historical conditions to deny and abridge the right to vote of
Black people in Louisiana. Because of the Excuse Requirement and the Witness Requirement,
Black people in Louisiana will have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice.
FOURTH CLAIM FOR RELIEF
(Plaintiffs Clark and LWVLA)
Denial of Plaintiffs’ Right to Procedural Due Process in Violation of the Fourteenth
Amendment to the Constitution of the United States and 42 U.S.C. § 1983
100.

Plaintiffs reallege and reincorporate by reference all prior paragraphs of this

Complaint as though fully set forth herein.
101.

The Due Process Clause of the Fourteenth Amendment prohibits the deprivation of

“life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV. A liberty
interest that is governed by due process can be created by the Constitution or “may arise from an
expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005). Courts analyze whether a statutory entitlement existed prior to the notice and process
afforded and prior to the deprivation.
102.

“The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Fed. Deposit Ins. Corp. v. Bank of Coushatta, 930
F.2d 1122, 1130 (5th Cir. 1991) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
103.

“An elementary and fundamental requirement of due process in any proceeding

which is to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present
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their objections.” Triplett v. Dep't of Soc. Servs., 26 F.3d 1119 (5th Cir. 1994) (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)) (internal quotation marks omitted).
104.

Under Mathews, the determination of what process is due rests on the balance

between (1) the interest affected; (2) the risk of erroneous deprivation under the current procedures,
and the “probable value, if any, of additional or substitute procedural safeguards”; and (3) the
state’s interest, including the “fiscal and administrative burdens” additional procedures would
entail. 424 U.S. at 335.
105.

Absent

exigent

circumstances,

due

process

requires

pre-deprivation

procedures. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described
‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.” (quoting
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original)); Sciolino, 480 F.3d at 653
(“An opportunity to clear your name after it has been ruined by dissemination of false, stigmatizing
charges is not ‘meaningful.’”).
106.

Louisiana law gives registered Louisiana voters who meet certain criteria statutory

rights to request and cast a mail-in absentee ballot that will be processed and counted, thereby
vesting them with liberty interests. Eligible, registered voters enjoy an “individual and personal”
right to vote under Louisiana law. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Reynolds
v. Sims, 377 U.S. 533, 561 (1964)).
107.

Yet Defendants do not afford mail-in absentee voters any notice of or opportunities

to cure material defects in their absentee ballot requests and their absentee ballots that will result
in rejection, thereby depriving Plaintiff Clark and other registered Louisiana voters eligible to vote

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by absentee ballot of their liberty interests in requesting and casting mail-in absentee ballots and
exercising their fundamental right to vote.
108.

Louisiana is about to experience a substantially higher level of absentee mail-in

voting than prior to the pandemic. Many elderly voters ages 65 and up already had the option to
vote by mail under the existing excuses but now that they are at severe risk from COVID-19, many
will abandon in-person voting at the polls and cast ballots by mail for the first time. With all these
first-time absentee voters requesting ballots and voting them remotely, this will inevitably yield a
higher error rate.
109.

The risk of erroneous deprivation is high, as these eligible, registered Louisiana

voters are entitled by law to vote an absentee ballot either under the provisions set forth under La.
Rev. Stat. § 18:1303 or under the Emergency Election Plan and, therefore, must be provided with
an opportunity to timely cure any defect that would cause the absentee ballot request form’s
rejection or the absentee ballot’s rejection.
110.

Defendants cannot advance any interests that outweigh the risk of erroneous

deprivation. Any increased administrative burden in affording voters an opportunity to cure their
absentee ballot defects is far outweighed by the threat of disenfranchising Plaintiff Clark and
Plaintiff LWVLA’s members eligible to vote by absentee ballot. Defendants’ interest in
conducting fair election administration and preserving election integrity would not be
compromised in the slightest, and they would satisfy their weighty interest in abiding by federal
constitutional requirements.
111.

For the foregoing reasons, Defendants have violated and will continue to violate

Plaintiffs’ and their members’ federal constitutional rights to procedural due process.
112.

At all relevant times, Defendants have acted under color of state law.

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113.

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Defendants have deprived and will continue to deprive Plaintiffs and their members

of their right to adequate notice and a meaningful opportunity to be heard to cure deficiencies with
their absentee ballot requests and their absentee ballots. This wholly fails to meet these minimum
requirements of procedural due process, as guaranteed to Plaintiffs by the Fourteenth Amendment
to the U.S. Constitution and 42 U.S.C. § 1983.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court provide the following relief:
a.

Assume jurisdiction over this action;

b.

Declare that the Excuse Requirement, as provided in La. Rev. Stat.

§ 18:1303(B) and La. Rev. Stat. § 18:401.3, and the Witness Requirement, as provided in La. Rev.
Stat. § 18:1307(A), violate the First and Fourteenth Amendments to the U.S. Constitution as undue
burdens on the fundamental right to vote, violate the Fourteenth Amendment to the U.S.
Constitution because they unconstitutionally condition the right to vote upon the forfeiture of the
right to bodily integrity, and violate Section 2 of the Voting Rights Act, during, at least, all
elections in Louisiana in 2020;
c.

Declare that the Cure Prohibition, as found generally in La. Rev. Stat.

§ 18:1313, violates the Fourteenth Amendment to the U.S. Constitution by denying Plaintiff Clark
and Plaintiff LWVLA members their right to procedural due process.
d.

Issue preliminary and permanent injunctions that order relief including:
1.

Prohibiting Defendants from enforcing the Excuse Requirement for
all voters during, at least, all elections in Louisiana in 2020;

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2.

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Prohibiting Defendants from enforcing the Witness Requirement for
all voters during, at least, all elections in Louisiana in 2020; 77

3.

Ordering Defendants to issue guidance instructing all local, city, and
parish election officials to modify election materials, including
absentee ballots, envelopes, instructions, and other materials, to
reflect the enjoining of the Challenged Provisions, and conduct a
public information campaign informing Louisiana voters about the
enjoining of the Excuse Requirement, the Witness Requirement, and
the Cure Prohibition, in coordination with parish and local officials
before and during the absentee balloting period;

4.

Ordering Defendants to issue guidance instructing all parish and
local election officials to process all valid absentee ballot
applications, regardless of whether the applicant has provided an
excuse, for all elections in Louisiana in 2020;

5.

Ordering Defendants to issue guidance instructing all parish and
local election officials to count otherwise validly cast absentee
ballots that are missing the signature of a witness for all elections in
Louisiana in 2020;

6.

Ordering Defendants to provide absentee voters notice and an
opportunity to cure any defects in their absentee ballots during, at

77

Alternatively, Defendants must offer voters the opportunity to sign a sworn affirmation on the absentee ballot’s
certificate envelope that states the voter could not reasonably and safely complete the Witness Requirement and
count all absentee ballots with that signed, sworn attestation.

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least, all elections in Louisiana in 2020 that do not require the voter
to appear anywhere in person;
e.

Award Plaintiffs attorneys’ fees in this action;

f.

Award Plaintiffs their costs of suit;

g.

Order such other relief as the Court deems just and appropriate; and

h.

Retain jurisdiction to enforce the Judgment.

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DATED this 19th day of May, 2020.

05/19/20 Page 48 of 49

Respectfully submitted,
/s/ Danielle E. Davis
Danielle E. Davis, La. Bar No. 37995
SOUTHERN POVERTY LAW CENTER
P.O. Box 57089
New Orleans, LA 70157
T: [phone]
C: [phone]
F: [phone]
[e-mail]
Caren E. Short*
Nancy G. Abudu*
SOUTHERN POVERTY LAW CENTER
P.O. Box 1287
Decatur, GA 30031
P: [phone]
F: [phone]
[e-mail]
[e-mail]
Jon Sherman* (D.C. Bar No. 998271)
Michelle Kanter Cohen* (D.C. Bar No.
989164)
Cecilia Aguilera* (D.C. Bar No. 1617884)
Fair Elections Center
1825 K St. NW, Ste. 450
Washington, D.C. 20006
P: [phone]
[e-mail]
[e-mail]
[e-mail]
John A. Freedman*
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Avenue, N.W.
Washington, D.C. 20001
P: [phone]
[e-mail]
*Motion for pro hac vice admission
forthcoming
Attorneys for Plaintiffs
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