Harding et al v. Edwards et al

Filing 88

RULING granting in part and denying in part 31 Motion for Preliminary Injunction. Signed by Chief Judge Shelly D. Dick on 9/16/2020. (SWE)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JENNIFER HARDING, et al.
CIVIL ACTION
VERSUS
20-495-SDD-RLB
JOHN BEL EDWARDS, et al.
RULING
Before the Court is the Motion for Preliminary Injunction1 filed by Plaintiffs Jennifer
Harding (“Harding”), Jasmine Pogue (“Pogue”), the Louisiana State Conference of the
NAACP (the “Louisiana NAACP”), and Power Coalition for Equity and Justice (“Power
Coalition”) (collectively, “Plaintiffs”).2 Defendant Louisiana Secretary of State Kyle Ardoin
(“Secretary Ardoin”) and Intervenor-Defendant Louisiana Attorney General Jeff Landry
(“the Attorney General”) (collectively, “Defendants”) filed a Joint Response in Opposition
to the Motion,3 and Governor John Bel Edwards (“Governor Edwards”) filed a Response
to Plaintiffs’ Motion for Preliminary Injunction.4 This matter came before the Court for
hearing on September 8 and September 9, 2020.5 For the reasons that follow, the Court
finds that the Motion shall be GRANTED in part and DENIED in part.

1

Rec. Doc. No. 31.
The Court previously dismissed Plaintiff Omega Taylor from this action upon Plaintiffs’ Motion to Withdraw
Plaintiff (Rec. Doc. No. 71).
3
Rec. Doc. No. 52.
4
Rec. Doc. No. 49.
5
See Rec. Doc. Nos. 74 and 83 (Minute Entries).
2

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
During the COVID-19 pandemic, “[t]here are quite reasonable concerns about

voting in person.”6 Those concerns are the province of the state legislatures, to whom the
Constitution commends decisions involving the “Times, Places and Manner of holding
Elections.”7 Though the states retain considerable power to regulate elections, their
power has limits: in the course of their regulation, they may not unduly burden the citizens’
right to vote – the “‘fundamental political right, because preservative of all rights.’”8 Indeed,
“voting is of the most fundamental significance under our constitutional structure.”9
This year, with the global pandemic caused by the novel coronavirus known as
COVID-19 (or “the Virus”) sweeping across the United States, Louisiana state officials
have struggled to adopt voting rules that ameliorate the risk presented by in-person
voting. Across the country, courts – including this one – have likewise struggled with
issues related to the risk of voting in person during the pandemic. The United States
Supreme Court has been presented with more than a handful of cases on the subject of
elections during the pandemic, but has provided virtually no guidance.10 In Republican
National Committee v. Democratic National Committee, for example, the Court stayed a
lower court’s injunction requiring Wisconsin to count absentee ballots that were

6

Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 5422917 at *17 (5th Cir. Sept. 10, 2020).
U.S. Const. art. I, § 4, cl. 1.
8
Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966)(quoting Yick Wo v. Hopkins, 118 U.S.
356, 370).
9
Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Burdick v. Takushi, 504 U.S.
428 (1992).
10
Little v. Reclaim Idaho, No. 20A18, 2020 WL 4360897 (U.S. July 30, 2020); Merrill v. People First of
Alabama, No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020); Republican Nat. Comm. v. Common Cause
RI, No. 20A28, 2020 WL 4680151 (U.S. Aug. 13, 2020); Republican Nat'l Comm. v. Democratic Nat'l
Comm., 140 S. Ct. 1205, 1208 (2020); Texas Democratic Party v. Abbott, 140 S. Ct. 2015 (2020); Clarno
v. People Not Politicians, No. 20A21, 2020 WL 4589742 (U.S. Aug. 11, 2020); Thompson v. DeWine, No.
19A1054, 2020 WL 3456705, at *1 (U.S. June 25, 2020).
7

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postmarked after Election Day, but was quick to circumscribe its holding, noting that it
“should not be viewed as expressing an opinion on the broader question of whether to
hold the election, or whether other reforms or modifications in election procedures in light
of COVID–19 are appropriate. That point cannot be stressed enough.”11
In August, Louisiana Governor John Bel Edwards and Secretary of State Kyle
Ardoin declared that an emergency exists with respect to the upcoming November
presidential election. Secretary Ardoin drafted a proposed Emergency Election Plan that
would have expanded early voting to ten days (from the seven-day period provided by
statute) and offered the opportunity to vote absentee by mail to “any registered voter
testing positive for COVID-19 during and after early voting but before election day.”12
Although the proposed Plan eventually passed the Louisiana legislature, it was never
implemented because Governor Edwards – whose approval is required by Louisiana law
– rejected it. Per Edwards, the proposed Plan was “woefully inadequate”13 because it was
“contrary to guidance from the Centers for Disease Control (CDC) and the Louisiana
Department of Health (LDH)”14 and failed to “protect[] the right to vote while protecting the
health of the public.”15 Thus, with Louisianans headed to the polls in roughly seven weeks,
the state has enacted no measures whatsoever to make voting safer during the
pandemic.

11

Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1208 (2020).
Defendant’s Exhibit 4, p. 13.
13
“John Bel Edwards calls election plan ‘woefully inadequate,’ says he won’t sign it” The Advocate, August
18, 2020 https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_6067902e-e19711ea-8d64-27d09a688c5f.html
14
Defendant’s Exhibit 5, p. 1.
15
Id.
12

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It is against this backdrop that the Court turns to the Motion for Preliminary
Injunction filed by Plaintiffs, two individuals and two groups who contend that the lack of
an emergency election plan for the November and December elections has the effect of
unduly burdening their right to vote. Plaintiffs seek an injunction lifting or expanding the
“statutory limitations on who can vote absentee by mail” (known as the Excuse
Requirement) in the November and December elections and enjoining “the reduction of
the early voting period”16 for the same. “At minimum,” Plaintiffs ask the Court to order
Defendants to “extend to the upcoming elections the baseline protections provided in the
emergency plan that governed the July and August 2020 elections.”17 That Plan provided
for a thirteen-day period of early voting and created a “COVID-19 Ballot Application” that
offered Virus-specific reasons to request a mail ballot.18
Plaintiffs’ request for expanded early and mail-in voting is joined by Governor
Edwards, who contends that allowing the November and December elections to proceed
without a plan to mitigate the effects of the pandemic imposes “severe undue burdens on
the constitutional rights to vote for many voters in Louisiana.”19 Secretary Ardoin and
Attorney General Landry oppose Plaintiffs’ requested relief.

16

Rec. Doc. No. 31-1, p. 6.
Rec. Doc. No. 31, p. 2.
18
Those expanded excuses applied to the following voters: those at higher risk because of serious medical
conditions, those subject to a “medically necessary quarantine or isolation order,” those advised by a health
provider to self-quarantine, those experiencing symptoms of COVID-19 and seeking a medical diagnosis,
and those caring for an individual who is subject to a quarantine order and has been advised to selfquarantine.
19
Rec. Doc. No. 49, p. 4.
17

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II.

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LAW AND ANALYSIS
A. Preliminary Injunction
“A preliminary injunction is an extraordinary and drastic remedy; it is never

awarded as of right.”20 The decision whether to grant or deny a request for a preliminary
injunction is within the sound discretion of the court.21 In order to prevail on a motion for
a preliminary injunction, the movant must prove “(1) a substantial likelihood of
success on the merits, (2) a substantial threat of irreparable injury if the injunction is
not issued, (3) that the threatened injury if the injunction is denied outweighs any
harm that will result if the injunction is granted, and (4) that the grant of an injunction
will not disserve the public interest.”22 A preliminary injunction is an extraordinary
remedy requiring the applicant to unequivocally show the need for its issuance.23 The
movant must prove all four elements.24
1. Likelihood of Success on the Merits
Plaintiffs claim that the Excuse Requirement25 and limited early voting period
impose undue burdens on the right to vote in violation of the First and Fourteenth
Amendments”26 of the U.S. Constitution. It is unquestionable that “voting is of the most

20

Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations and quotations omitted). See also Allied
Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989); Mississippi Power & Light Co. v.
United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985) (preliminary injunctive relief “is an extraordinary
remedy and should be granted only if the movant has clearly carried the burden of persuasion with respect
to all four factors”).
21
See Allied Mktg. Grp., Inc., 878 F.2d at 809.
22
Robinson v. Hunt Country, Texas, 921 F.3d 440, 451 (5th Cir. 2019).
23
Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 572 U.S. 1053 (2014).
24
Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); Burdick v. Takushi, 504
U.S. 428 (1992).
25
The “Excuse Requirement” refers the reasons or “excuses” that a voter must offer as a matter of Louisiana
law to be considered for an opportunity to vote by mail. Under Louisiana Revised Statute §18:1303, only
voters certifying one of the “excuses” set forth therein are eligible to receive an absentee by mail ballot.
26
Rec. Doc. No. 31, p. 2.

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fundamental significance under our constitutional structure.”27 Although the Constitution
explicitly empowers state legislatures to regulate the “Times, Places and Manner of
holding Elections,”28 and “[e]lection laws will invariably impose some burden upon
individual voters,”29 state regulations may not unduly burden the right to vote. The Equal
Protection Clause provides one restraint against any such undue burden.30
In Burdick v. Takushi, the United States Supreme Court instructs that
[T]he rigorousness of our inquiry into the propriety of a state election law
depends upon the extent to which a challenged regulation burdens First
and Fourteenth Amendment rights. Thus, as we have recognized when
those rights are subjected to ‘severe’ restrictions, the regulation must be
‘narrowly drawn to advance a state interest of compelling importance.’
But when a state election law provision imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth
Amendment rights of voters, ‘the State's important regulatory interests
are generally sufficient to justify’ the restrictions.31
When cases fall somewhere between strict scrutiny and rational basis review, the
Anderson-Burdick32 framework provides that “a more flexible standard applies.”33 In these
cases, featuring a moderate burden on the right to vote, the court must weigh that burden
against “‘the precise interests put forward by the State as justifications for the burden
imposed by its rule,’ taking into consideration ‘the extent to which those interests make it
necessary to burden the plaintiff's rights.’”34 If the State's interests outweigh the burden
on Plaintiffs’ right to vote, the voting restrictions survive the Equal Protection challenge.

27

Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).
U.S. Const. art. I, § 4, cl. 1.
29
Burdick v. Takushi, 504 U.S. 428, 433 (1992).
30
See McDonald v. Bd. of Election Comm'rs of Chi., 394 U.S. 802, 807 (1969) (“[O]nce the States grant
the franchise, they must not do so in a discriminatory manner”).
31
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (internal citations omitted).
32
Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).
33
Burdick, 504 U.S. 428 at 434. “The appropriate standard for evaluating a claim that a state law burdens
the right to vote is set forth in Anderson.” Id. at 438.
34
Id. (quoting Anderson, 460 U.S. at 789).
28

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The Court turns now to the task of identifying the burden that the Excuse Requirement
and a limited period of early voting place on Plaintiffs’ right to vote.
a. Burden: The Excuse Requirement
The first aspect of Louisiana election law that Plaintiffs seek to enjoin is the set of
statutory limitations on who can vote absentee by mail, known as the “Excuse
Requirement.”35 Louisiana Revised Statute § 18:1303 generally provides that registered
voters over age 65, hospitalized voters, voters confined to nursing facilities, voters with
disabilities, military and overseas voters, and voters who expect to be absent from their
home parish on Election Day are permitted to vote “absentee” by mail. Plaintiffs contend
that, under the circumstances of a global pandemic, the limited excuses available to cast
a ballot by mail operate as an “undue burden[] on the fundamental right to vote that
Defendants cannot justify by any state interest.”36 Plaintiffs ask this Court to enjoin the
Excuse Requirement entirely, or, “at a minimum,” to order that Defendants must
implement the expanded set of Virus-related excuses that the legislature made available
during the July and August 2020 elections via the Secretary of State’s previous
Emergency Election Plan.37
The Excuse Requirement imposes some burden on the right to vote. Plaintiff
Jennifer Harding attests in her Declaration that she has assumed significant caretaking
responsibilities for her 72-year-old father, who has Parkinson’s Disease; her 71-year-old
mother, who has post-polio syndrome and recently underwent surgery; and her 93-yearold grandmother, who has been diagnosed with dementia.38 Harding began frequently

35

Rec. Doc. No. 31, p. 2.
Rec. Doc. No. 31-1, p. 22.
37
Id. at p. 2; See supra, n. 14.
38
Rec. Doc. No. 31-6, p. 3, ¶ 6.
36

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assisting her parents and grandmother this year because they no longer employ an inhome caretaker “due to concerns about COVID-19 and the caretaker’s exposure to other
patients she assists throughout the week.”39 Because of the possibility that “if [she]
contracted the virus, even unknowingly, [she] could put [her] parents and grandmother at
acute risk,”40 Harding “would vote by absentee mail-in ballot in order to eliminate the
chance of exposure to COVID-19 at [her] polling location – both inside and while waiting
in line to vote.”41 But La. R.S. § 18:1303 does not provide for caretakers of high-risk
individuals to vote absentee by mail. Harding further attests that her experience voting inperson during the July 2020 election was “uncomfortable and unsafe”42 because she was
unable to abide by social distancing recommendations due to the physical configuration
of her polling place. Based on her past experiences, Harding expects social distancing to
be even more difficult for the November presidential election, when her polling place is
typically “even more congested.”43
Plaintiff Jasmine Pogue has asthma and a history of upper respiratory infections.44
Contracting COVID-19 is of particular concern since her already-compromised lung
capacity makes her more vulnerable to the virus.45 Also, according to Pogue’s doctor, the
steroids she takes to fight her upper respiratory infections “put [her] at increased risk of
COVID-19’s effects.”46 Pogue attests that she is burdened by the Excuse Requirement
because she does not qualify under any subpart of the statute, so “voting in person will

39

Id. at p. ¶ 7.
Id. at ¶ 8.
41
Id. at p. 3-4, ¶ 10.
42
Id. at p. 6, ¶ 16.
43
Id. at ¶ 17
44
Rec. Doc. No. 31-7, p. 3, ¶ 5-7.
45
Id. at ¶ 8.
46
Id. at ¶ 7-8.
40

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remain [her] only option to participate in any of this year’s elections.”47 When she voted
in person in July and August, the experience “was stressful and uncomfortable because
of the inadequate enforcement of social distancing and sanitary precautions at [her]
polling site.”48 Pogue’s financial situation was made precarious by the pandemic because
her commission-based income has declined.49 As a result, contracting the Virus “would
trigger medical expenses that would pose financial challenges to [her] family.”50
The Court finds that Plaintiffs’ testimony clearly establishes that the state’s
maintenance of limited absentee by mail voting imposes a burden on their right to vote.
The burden on the right to vote is further supported by significant record evidence. As of
August 24, 2020, the Louisiana Department of Health estimated that there were 19,862
known active cases of the Virus in Louisiana: twice as many active cases as there were
when the state entered Phase 1 or Phase 2 of its reopening.51 Additionally, the White
House Coronavirus Task Force issued a report regarding Louisiana on August 16, 2020,
where it explained that, although “Louisiana has seen a decrease in new cases and a
decrease in test positivity,” the process “is fragile” and “[a]ny loosening of mitigation
efforts must be conservative, gradual, and associated with continued and expanded
testing and contact tracing.”52 On August 23, the White House Coronavirus Task Force
updated its remarks on Louisiana to reflect that “91% of all parishes in Louisiana have
ongoing community transmission.”53 As of August 30, 80% of parishes still had ongoing

47

Id. at ¶ 12.
Id.
49
Id. at ¶ 17.
50
Id.
51
Defendant’s Exhibit 11, p. 37-38.
52
Id. at p. 38.
53
Id. at p. 39.
48

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community transmission, with 23% of parishes in the “red zone” for high levels of
community transmission. Based on that data, the task force recommended that Louisiana
“[c]ontinue the closure of establishments where social distancing and mask use cannot
occur.”54
The Centers for Disease Control and Prevention (CDC) has issued guidance for
election officials, poll workers, and voters to prevent the spread of the Virus.55 The CDC
asserts that “the more an individual interacts with others, and the longer that interaction,
the higher the risk of COVID-19 spread.”56 Lower-risk polling settings, the guidance
explains, include those with “a wide variety of voting options”; “longer voting periods (more
days and/or more hours); and “any other feasible options for reducing the number of
voters who congregate indoors in polling locations at the same time.”57 Other
recommendations identified by the CDC include “protect[ing] people at increased risk for
severe illness” and “offer[ing] alternative voting options for voters with symptoms.”58
Clearly, based on the data and advice from state and federal authorities, the pandemic is
ongoing in Louisiana and calls for the implementation of measures to mitigate the risks of
appearing in person to vote.
The parties also presented expert opinion testimony on the burden presented by
in-person voting during the pandemic. Plaintiffs’ expert witness Dr. Arthur L. Reingold,59

54

Defendant’s Exhibit 12. This is a notable recommendation; as the Court discusses infra, one
establishment where “social distancing and mask use cannot occur” may be the polling place, based on the
testimony of Louisiana elections officials.
55
Plaintiffs’ Exhibit 76 (“Considerations for Election Polling Locations and Voters”).
56
Id. at p. 1.
57
Id.
58
Id. at p. 4.
59
Dr. Reingold is the Division Head of Epidemiology and Biostatistics at the University of California at
Berkeley School of Public Health. He spent eight years at the Centers for Disease Control and Prevention
(CDC) and has substantial credentials in the field of epidemiology. (Rec. Doc. No. 60-1, p. 2 et seq). At the
injunction hearing, Defendants stipulated to the tender of Dr. Reingold as an expert in Epidemiology. By

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who the Court finds credible, opined that “[p]olling locations are a prime area of concern
with regard to increased transmission of [the Virus], due to the close proximity of large
numbers of individuals – voters, observers, poll workers – in a limited indoor space.”60 Dr.
Reingold points out that, in light of the particular concern associated with polling places,
the Centers for Disease Control and Prevention recommends that election officials offer
alternative voting methods to minimize direct contact and crowd size at polling places.61
In Dr. Reingold’s expert opinion, “voting by mail is a demonstrably safer option for voters
in light of the [pandemic].”62 Moreover, he attests, that opinion is not based merely on
“people’s generalized fear of infection.”63 Instead, it is based on “what we know about
how this virus is transmitted” – specifically by “aerosols or droplets”64 – which means that
it “can spread rapidly in crowded conditions.”65 For that reason, he opines that “[a]llowing
people to vote absentee ballot enables them to vote without placing themselves in the
congregate setting of a polling location.”66
In this Court’s view, Dr. Reingold’s opinions credibly support Plaintiffs’ argument
that in-person voting imposes a burden. Dr. Reingold’s opinions were not effectively
contradicted by the countervailing experts put forth by Defendants. Defendants submit

stipulation of the parties, Dr. Reingold’s opinion was presented by way of his written Report (Rec. Doc. 601). Dr. Reingold was tendered for cross-examination by the Defendants and testified on cross regarding his
opinions. See Minute Entry, Rec. Doc. No. 74. All of the expert witnesses submitted their testimony via
written reports and were then subject to live cross-examination during the hearing.
60
Rec. Doc. No. 60-1, p. 15.
61
Id. at p. 16, citing CDC, Considerations for Election Polling Locations and Voters: Interim Guidance to
Prevent Spread of Coronavirus Disease (Plaintiffs’ Exhibit 76).
62
Id. at p. 18.
63
Id.
64
Id. at p. 18.
65
Id. at p. 8.
66
Id. at p. 18.

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the expert testimony of Dr. Quentin Kidd,67 who provides what he describes as “a
comparative analysis of elections held in various states as they relate to the COVID-19
pandemic. . .”68 Dr. Kidd specifically explained that his opinions were not predictive. Dr.
Kidd posits that, based on his analysis, “for states that were not already in a situation
where Coronavirus was surging, neither spikes or surges happened as a result of those
elections.”69 Examining Dr. Kidd’s data on a state-by-state basis, the Court observes that
Dr. Kidd notably hedged his opinion by pointing out that “there have been no reports that
[he is] aware of linking widespread COVID-19 cases or deaths to that [] election.”70
The Court finds Dr. Kidd’s opinion irrelevant, for several reasons. First of all, the
Court is disinclined to find that the epidemiological situation on the ground in other states,
during other elections dating back more than six months in some cases, is evidence of
the likely burden on Louisiana voters in November and December. In Dr. Kidd’s words it
is not predictive. As Defendant’s expert witness Dr. Phillip Barie stated at the hearing, no
one has a crystal ball to know how the next few months will transpire with respect to the
Virus. Moreover, if this Court’s inquiry were to cast an eye toward other states, it would
certainly bear mention that, as Plaintiffs point out, all but six of the fifty states “have

67

Dr. Kidd is a professor of political science and Dean of the College of Social Sciences at Christopher
Newport University in Newport News, Virginia, where he has been a faculty member for 23 years. Dr. Kidd
presents himself as “an expert in American politics, specifically in the areas of political behavior, voting
behavior, racial politics, Southern politics, and Virginia politics. . .” (Rec. Doc. No. 52-16, p. 2). At the
injunction hearing, Plaintiffs stipulated to the tender of Dr. Kidd as an expert. See Minute Entry, Rec. Doc.
No. 74.
68
Rec. Doc. No. 56-16, p. 3 ) (emphasis added).
69
Id. at p. 5.
70
See, e.g., Id. at p. 13 (with respect to Virginia); p. 15 (for West Virginia and Georgia); p. 17 (for Kentucky);
p. 19 (Alabama); p. 20 (Louisiana); p. 22 (Texas); p. 24 (South Carolina); p. 26 (Oklahoma); p. 29 (Florida)
(emphasis added).

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expanded the scope of access to absentee ballots”71 due to the risk presented by the
Virus. Of the states that require an excuse to vote by mail, only six states – including
Louisiana – have not deemed risk of exposure to the Virus a valid excuse.72
Second, Dr. Kidd’s finding that no surge or spike occurred following past elections
is not probative of the risk of encountering the Virus at polls in November and December
elections.73 The absence of a “widespread” outbreak does not negate the asserted burden
on Plaintiffs’ right to vote. The relevant burden is not the possibility that there will be a
surge or spike at the population level; the burden on the right to vote asserted by Plaintiffs
is the potential that they, as individuals, will contract the Virus as a result of having no
choice but to vote in person. Dr. Kidd’s analysis may show that, in the aggregate, inperson voting did not result in a large increase in Virus cases. But his testimony does not
establish that individual voters are not burdened by virus exposure in public polling
places. Additionally, as Plaintiffs’ expert Dr. Reingold explains in his report, a study of the
trend in cases after an in-person election is inherently flawed because it fails to account
for “secondary transmission to family/household members, who would have become
infected later, as well as missing others who either did not present for testing or who did
not develop symptoms, but who might have gone on to subsequently infect others.”74 In
other words, the data does not reflect the gravity of the risk and hence the nature and
extent of the burden.

71

Rec. Doc. No. 31-1, p. 15, citing Kate Rabinowitz and Brittany Renee Mayes, Washington Post, ”At least
83%
of
American
voters
can
cast
ballots
by
mail
in
the
fall,”
https://www.washingtonpost.com/graphics/2020/politics/vote-by-mail-states/ (August 20, 2020).
72
Id.
73
Id. at p. 29.
74
Rec. Doc. No. 60-1, p. 16-17.

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Defendants’ medical expert witness Dr. Philip Barie75 is generally skeptical of the
severity and the scope of the pandemic. But, when asked about his personal COVID-19
risk tolerance, he was far less cavalier. On cross-examination, Barie testified that if he
had close contact with a person infected with COVID-19, he would quarantine and would
not vote in person (this would be an option for Dr. Barie, since he lives in New York City,
which has implemented universal vote by mail due to the Virus).76 He also testified that
he would be concerned for his own health and safety if he were standing in line at the
polls behind a voter with tell-tale symptoms of the Virus.77
Dr. Barie attests that “the incidence and prevalence of COVID-19 may be gross
overestimates” because PCR tests78 can generate a positive result when they detect
“amounts of protein that are inherently non-infectious, represent too small a viral load to
be infectious, or when intact virus is not present at all.”79 Dr. Barie boldly asserts that “the
false-positive rate. . .may be as high as 90%.”80 His opinion is rendered suspect and
incredible by the following concessions that simply cannot be squared with his high false
positive assertion. Barie asserts that the COVID mortality rate “is 3.04% as of September
3, 2020 and is decreasing literally by the day.”81 As part of his source materials, he cites

75
Dr. Barie is a Professor of Surgery and a Professor of Public Health in Medicine at the Joan and Sanford
I. Weill Medical College of Cornell University in New York City, New York, (Rec. Doc. No. 61-3, p. 1), and
has decades of experience as a publishing research scientist specializing in the epidemiology of critical
surgical illness and other areas (Id. at p. 1-2). At the injunction hearing, Plaintiffs stipulated to the tender of
Dr. Barie as an expert witness (See Minute Entry, Rec. Doc. No. 74).
76
New York City Campaign Finance Board, “Voting and Coronavirus (COVID-19): Information for NYC
Voters”; https://www.nyccfb.info/nyc-votes/coronavirus/ (“This fall, all New York voters can vote by mail due
to the risk of contracting the coronavirus. You can select ‘Temporary illness or disability’ as the reason for
your request.”).
77
Hearing testimony, See also, Rec. Doc. No. 85, p. 7.
78
The polymerase chain reaction or “PCR” test, as distinct from the Antigen or “rapid test”. Dr. Barie testified
at the hearing that the Antigen test is associated with a higher false negative rate and the PCR test is
associated with a higher false positive rate.
79
Rec. Doc. No. 61-3, p. 8.
80
Id.
81
Id. at p. 13.

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to data collected by the Johns Hopkins University of Medicine Coronavirus Research
Center.82 As of the hearing date, Johns Hopkins had identified a total of 154,955
confirmed cases of the Virus in Louisiana.83 If, as Barie claims, 90% of those cases were
false positives,84 the “true” number could be as low as 15,495 confirmed cases in the
state. Yet, Louisiana has reported 5,140 deaths from the Virus.85 That many deaths with
only 15,495 cases would represent a mortality rate of 33.17% -- eleven times the rate
cited by Dr. Barie. He does not account for this discrepancy. The credibility of Dr. Barie’s
opinion that in-person voting is not unduly risky is further undermined by his hearing
testimony that 1 in 5 people infected with the Virus require hospitalization, with 25% of
those hospitalized being “critical,” and his admission that comorbidities increase the risk
of infection and mortality. Finally, the Court finds Dr. Barie’s minimization of the risks of
the pandemic to be further belied by his own blog post, which described the Virus as
“[s]tunning…in its virulence, its contagion, and its rapidly spreading pervasiveness.”86
“Protect your patients, yourselves, your families, and each other,” he wrote.87
For the reasons set forth above, the Court finds that Dr. Barie’s testimony lacks
credibility. His claim that “the virus may have already substantially disappeared”88 is
contradicted by the current report of the Centers for Disease Control and Prevention,
which reported 256,159 new infections in the seven days preceding the hearing.89 Even

82

Dr. Barie uses statistics compiled by http://wwww.covidusa.net, which in turn cites Johns Hopkins as one
of its data sources.
83
Johns Hopkins Coronavius Resource Center (9/9/2020) https://coronavirus.jhu.edu/region/us/louisiana
84
Rec. Doc. No. 61-3, p. 8.
85
https://coronavirus.jhu.edu/region/us/louisiana.
86
Philip S. Barie, “Stunning,” Surgical Infection Society https://www.sisna.org/blog-detail/stunning (March
26, 2020).
87
At the hearing, Dr. Barie noted that his blog post was made in March (March 26, 2020, to be specific).
88
Rec. Doc. No. 61-3, p. 8.
89
Centers for Disease Control, CDC COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#cases
(accessed September 10, 2020).

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assuming that 90% of those cases could be false positives, as Dr. Barie suggests, 25,615
new cases in seven days is hardly the mark of a “disappeared” Virus. Additionally, the
Court notes that the false-positive rate does not account for individuals who may be
infected but do not seek out testing because they are asymptomatic; Barie concedes that
“many” infected persons are asymptomatic.90
Dr. Barie further opines that “[a]irborne transmission of [the Virus] is controversial”
and rejects what he calls Dr. Reingold’s “speculative suggestion”91 that transmission
through the air is cause for concern. Overall, in Dr. Barie’s view, “the chance of a voter
contracting COVID-19 at a polling place is minimal” as long as that voter “takes proper
precautions such as maintaining social distance, wearing a face mask, using hand
sanitizer, and refraining from touching his or her face.”92 Even if that is so, according to
ample record evidence, the “precautions” that Dr. Barie recommends are not assured in
November and December elections93 and were not uniformly in place at polling locations
in Louisiana’s July and August elections. Again, the Court finds it telling that, even with
“precautions” in place, Dr. Barie testified that he would be concerned for his own safety if
he were standing in line at the polls behind a voter with tell-tale symptoms of the virus.94
Plaintiff Pogue testifies that her polling place can only be entered and exited via a
long hallway that is “too narrow to allow six feet of distance between voters standing in
line and those exiting.”95 At the hearing, Brandon Abadie, the Administrator of Elections

90

Rec. Doc. No. 61-3, p. 13.
Id. at p. 12.
92
Id. at p. 17.
93
Louisiana Commissioner of Elections Sherri Wharton Hadskey testified that masks are encouraged but
not required. See also Rec. Doc. No. 52-17, p. 68 (“Voters are highly encouraged to wear cloth face
coverings. . .”) Abadie testified that it would be “tough” for voters at some polling places to maintain six-foot
social distance.
94
Hearing testimony; See also Rec. Doc. No. 85, p. 7.
95
Rec. Doc. No. 31-7, p. 5.
91

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for the East Baton Rouge Clerk of Court, confirmed Pogue’s description of her polling
place and testified that social distancing is simply not possible at some polling places.
Similarly, Secretary Ardoin has stated that, although mask-wearing is recommended for
voters, the state cannot refuse to admit a maskless voter to the polling place.96 Indeed,
both Pogue and Harding observed people without masks at the polls in July and August.97
Notably, Defendants attach Declarations from Doris Quiett, Chanda Leatherman,
Rosalind Knighten, Roslyn Lacour, and Stephanie Sims – all of whom worked as
Commissioners at polling places for the July and August elections, and all of whom attest
that COVID-19 Guidelines were followed at their polling place.98 The Court has
considered this testimony, but observes that proper procedures being followed at one
polling place is no guarantee that they will be followed at another. As Abadie testified,
social distancing is simply impossible at some polling places.
Though the three medical experts are at odds in some respects (e.g., over the
likelihood of transmission via aerosolized droplets), the Court also finds significant accord
among their testimony. For example, Dr. Reingold states that, according to early models,
“COVID-19 will be present, nationally and in Louisiana, during the November and
December 2020 elections.”99 Dr. Barie agrees that “this is likely.”100 Likewise, the
underlying assumption of Dr. Kidd’s report is that the Virus is present, even surging, in
states throughout the country.

96
Secretary Ardoin, Press Release of the Secretary of State, Statement by Secretary Kyle Ardoin on
Administration
of
Louisiana’s
November
and
December
Elections
(Sept.
2,
2020)
https://www.sos.la.gov/Pages/NewsAndEvents.aspx#faq278.
97
Rec. Doc. No. 31-7, p. 5; Rec. Doc. No. 31-6, p. 7.
98
Rec. Docs. No. 52-8, 52-9, 52-10, 52-11, 52-12.
99
Rec. Doc. No. 60-1, p. 11.
100
Rec. Doc. No. 61-3, p. 4.

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Dr. Kidd finds “no evidence to suggest that in-person voting leads to widespread
Coronavirus outbreaks,”101 and the Court finds that opinion has no bearing on the risk to
an individual voting in person. Again, Plaintiffs do not claim that their right to vote is
burdened by the possibility of a widespread outbreak arising out of in-person voting. They
claim that the burden is the risk to “their own health and lives”102 that arises from voting
in person. As Dr. Reingold explains, “what matters is whether [voting in person] results in
an incremental increase in risk to individuals required to go to a polling place to vote . .
.[f]or the affected individuals, the impact is severe, even if the overall state numbers did
not ‘spike.’”103 And, nothing in the testimony of Defendants’ experts refutes the real risk
presented by the Virus when people congregate in indoor places. Surge or spike
correlative data has little bearing on the attendant risks to voters with comorbidities or
voters who have caretaking responsibilities over persons of fragility. Even Dr. Barie, who
is remarkably sanguine about the danger of the Virus in general, attests that “[t]hose at
highest risk to succumb are elderly” (like Jennifer Harding’s parents and grandmother)
“and have chronic comorbidities such as heart or lung disease, or diabetes”104 (like
Jasmine Pogue).
Defendants are loath to consider Plaintiffs’ contention that the statutory election
scheme, conceived without COVID in mind, is unduly burdensome on certain voters.105
And yet, Defendants’ actions suggest that they do recognize a very real burden.
Intervenor Defendant Attorney General Landry issued an opinion on September 1, 2020,

101

Rec. Doc. No. 56-16, p. 29.
Rec. Doc. No. 31, p. 3.
103
Rec. Doc. No. 60-1, p. 21 (emphasis added).
104
Rec. Doc. No. 61-3, p. 13.
105
Referring to it as a “‘burden’ on the right to vote, such as it is. . .” Rec. Doc. No. 52, p. 6.
102

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recognizing that the pandemic “has had a significant impact on Louisiana”106 and
purporting to broaden the applicability of the statutory disability excuse for absentee by
mail voting to “any voter with an underlying health condition known to be a comorbidity
for COVID-19,” provided the voter obtains a “certification from a medical professional that
“the existence of the comorbidity presents an unreasonable risk for that voter to vote in
person.”107
Likewise, Secretary Ardoin proposed an “Emergency Election Plan” for the
November and December elections that would have expanded early voting to ten days
and permitted “any registered voter testing positive for COVID-19 during and after early
voting but before election day”108 to request an absentee by mail ballot. This is an obvious
response to the burden on voters perceived by his office. A burden on both COVIDinfected voters voting in person, and on everyone else, who would otherwise be subjected
to the presence of infected voters at the polls. It cannot be emphasized enough that
Secretary Ardoin’s Emergency Election Plan for the summer went much further, offering
thirteen days of early voting and Virus-related excuses for voting by mail. If in-person
voting imposes no burden, why have Defendants taken action to allow certain voters to
avoid it?
The District Court for the Northern District of Georgia stated it well: “Exposure to a
deadly virus is a burden.”109 Just last week, the Fifth Circuit found that “[t]here are quite
reasonable concerns about voting in person. . .”110 Plaintiffs characterize the burden as

106

Rec. Doc. No. 52-1, p. 2.
Rec. Doc. No. 52-1, Attorney General Opinion 20-0104.
108
Rec. Doc. No. 49-4, p. 13.
109
People First of Alabama v. Merrill, No. 2:20-CV-00619-AKK, 2020 WL 3207824, at *14 (N.D. Ala. June
15, 2020).
110
Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 5422917 at *17 (5th Cir. Sept. 10, 2020).
107

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“undue” and “increased.”111 Defendants counter that “Plaintiffs’ claims do not even
implicate the right to vote.”112 The Court finds that the statutory Excuse Requirement, as
applied during the Pandemic, imposes at least a moderate burden on Plaintiffs’ right to
vote. The record before the Court indicates that the pandemic is ongoing in Louisiana and
nationwide; that the risk of transmission is greater in public places where many people
gather; and that there are individual voters, such as Plaintiffs, who reasonably do not wish
to appear in public to vote, based on their own underlying health conditions that place
them at higher risk of complications from the Virus, or out of a desire to protect family
members with those conditions.
Like the facts recently reviewed by the Fifth Circuit in Abbott,113 Louisiana is
“taking the kind of precautions for voting that are being used in other endeavors during
the pandemic,” but “[n]one of them guarantees protection.”114 The Fifth Circuit recognized
that “[t]here are quite reasonable concerns about voting in person. . .”115 The record in
this case demonstrates that, although state officials have attempted to implement
precautions to make voting in person safer, even these well-intentioned efforts cannot
ameliorate the risk. Masks will be encouraged, but not required; social distancing is
aspirational but cannot be assured; and high anticipated voter turnout will produce long

111

Rec. Doc. No. 31-1, p. 24.
Rec. Doc. No. 86, p. 20 (emphasis added).
113
Abbott, 2020 WL 5422917 (5th Cir. Sept. 10, 2020).
114
Id. at *17.
115
Id. Texas, like Louisiana, allows voters 65 and older to vote by mail without an excuse. After a Texas
district court “entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to
do so by absentee ballot,” the Abbott court was tasked with deciding whether “the vote-by-mail privilege for
older voters is unconstitutional under the Twenty-Sixth Amendment's prohibition against denying or
abridging the right to vote on account of age.” The court concluded that conferring the privilege on one set
of voters (those 65 and up) did not deny or abridge the right to vote for others. Abbott is distinguishable in
the sense that it was not an equal protection case, but also because “all voters under age 65,” generally
speaking, face less risk from in-person voting than do Plaintiffs herein, who have demonstrated specific
medical and social risk factors.
112

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lines.116 The process of disinfecting the voting booth between voters will take an
estimated 30 seconds per voter, which will cause voters to wait in line longer.117 Overall,
the Court finds that Defendants’ adherence to the statutory Excuse Requirement, which
fails to make provisions for voters with comorbidities or voters who care for the frail and
the infirm to safely vote, imposes a burden on Plaintiffs’ right to vote.
b. The State’s Interest
The United States Supreme Court instructs that, when applying the AndersonBurdick framework, “[h]owever slight [the] burden may appear . . .it must be justified by
relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’”118
Thus, the court examines the “precise interests put forward by the State as justifications
for the burden imposed by its rule . . ”119 Virus-related protections were offered for the
July and August elections and then abruptly rolled back for November and December.
Defendants proffer a list of four justifications for this roll-back: “(1) taking prophylactic
steps to prevent voter fraud; (2) maintaining the integrity of its elections systems; (3)
avoiding voter confusion; and (4) preserving public confidence in election results.”120 The
Court will address these justifications in turn.
i.)

Voter fraud

Defendants argue that the “risk of voter fraud is especially pernicious here, where
Plaintiffs seek unlimited and unrestricted absentee voting.”121 Citing a “compelling interest

116

Hearing testimony of Sheri Hadskey, Louisiana Commissioner of Elections and Brandon Abadie,
Administrator of Elections for the East Baton Rouge Clerk of Court.
117
Hearing Testimony of Commissioner Hadskey.
118
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008)(quoting Norman v. Reed, 502 U.S., at
288–289).
119
Burdick, 504 U.S. at 434 (citation omitted).
120
Rec. Doc. No. 52, p. 13.
121
Rec. Doc. No. 52, p. 8.

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in preventing voter fraud,”122 Defendants emphasize that “[e]laborate, empirical
verification of weightiness is not required”123 when assessing the strength of the state’s
interest.
Even under this standard, Defendants’ evidence is woefully inadequate. First, they
offer not a scintilla of evidence of fraud associated with voting by mail in Louisiana.
Strikingly absent is even a hint of fraud in the July and August primaries, where expanded
mail voting was available to voters with COVID-19 comorbidities, caretakers, and others.
In fact, the Louisiana Commissioner of Elections, Sherri Wharton Hadskey
(“Commissioner Hadskey” or “Hadskey”), testified that she was unaware of any incidents
of voter fraud among mail voters in the July and August elections.124 With utterly no
evidence of voter fraud in Louisiana, the Defendants bolster their voter fraud justification
with two exhibits: a 2012 Grand Jury Report from Miami-Dade County, Florida that
identified vulnerabilities in Florida’s absentee by mail voting process125 and a 2019 Order
from the North Carolina Board of Elections ordering a new election in North Carolina’s
Ninth Congressional District because the 2018 general election there was so “corrupted
by fraud, improprieties, and irregularities so pervasive that its results are tainted. . .”126
Defendants glaringly fail to acknowledge that, according to Secretary Ardoin,
Louisiana “absolutely, without a doubt” ranks among the top five states for election
security and election integrity.127 Asked about the prevalence of voter fraud in the state,

122

Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). That interest, the Court noted, is “[c]ounter[ed] [by] plaintiffs'
strong interest in exercising the ‘fundamental political right’ to vote.”
123
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997).
124
Hearing testimony of Sherri Hadskey.
125
Joint Exhibit 13.
126
Joint Exhibit 12.
127
Sec of State Ardoin’s April 15, 2020 testimony before the House and Governmental Affairs Committee,
Louisiana
House
of
Representatives
(April
15,
2020)

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Ardoin stated that “it has not been widespread” and that he believes it to be “a rare
occurrence.”128 When it has occurred, he explained, it has been in connection with “local
races, small races.” Ardoin demurred when asked if he knew the number of voter fraud
prosecutions that have proceeded to trial in Louisiana, but stated that such trials are “very,
very, very rare.”129 Likewise, former Secretary of State Tom Schedler in 2017 issued a
statement that “Louisiana did not have any widespread irregularities or allegations of
fraud”130 during the 2016 presidential election. Also, as Plaintiffs note, the database on
voter fraud maintained by the Heritage Foundation contains only four known instances of
voter fraud in Louisiana, none of which is related to absentee by mail voting and only one
of which occurred after 2005.131
Puzzling and left unexplained by the Defendants is why their concern over voter
fraud presented no obstacle to the passage and implementation of the Emergency
Election Plan for the July and August elections, which broadened the availability of mail
ballots for COVID-19 reasons. Apparently Secretary Ardoin, the Louisiana legislature, and
Governor Edwards were satisfied that expanding the availability of absentee by mail
voting presented no grave threat when they approved the Plan on April 27, 2020, fewer
than five months ago.132

https://house.louisiana.gov/H_Video/VideoArchivePlayer?v=house/2020/apr/0415_20_HG; See 18:25 –
21:00.
128
Id.
129
Id.
130
AP News, “Elections chief says no evidence of voter fraud in Louisiana” (January 25, 2017)
https://apnews.com/4cc1a8e3f93e4f7db12757bb7b8ef944.
131
The
Heritage
Foundation,
Election
Fraud
Cases:
Louisiana
https://www.heritage.org/voterfraud/search?state=LA
132
Rachel Thomas, “Louisiana’s emergency election plan approved” (April 21, 2020)
https://www.wafb.com/2020/04/21/la-secretary-state-announces-emergency-election-plan/

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The Court is not persuaded by Defendants’ conclusory assertion that their interest
in preventing voter fraud – which Defendant Secretary Ardoin testified only four months
ago is “a rare occurrence” – is weighty enough to justify their roll back of COVID-19specific allowances for mail voting.133 As the Supreme Court explains, when weighing the
state’s interest against the burden imposed, “the Court must not only determine the
legitimacy and strength of each of those interests; it also must consider the extent to
which those interests make it necessary to burden the plaintiff's rights. Only after weighing
all these factors is the reviewing court in a position to decide whether the challenged
provision is unconstitutional.”134 As discussed supra, the threat of voter fraud did not make
it necessary to maintain the statutory Excuse Requirement for the July and August
elections. If, as Secretary Ardoin testified, Louisiana is ranked in the “top five” states for
election security, why does a temporary expansion of absentee by mail voting present
such a threat?
Moreover, as noted by former Secretary of State Schedler, Louisiana has “many
layers of legal protection to shield us from voter fraud.”135 The application for an absentee
by mail ballot requires the voter to sign, with two witnesses, certifying “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.”136 Louisiana also has a detailed process for determining the validity of mail

133

The Court makes this finding mindful of the Supreme Court’s recognition that a state’s interest in
preventing voter fraud is “compelling” (Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)) and that “[e]laborate,
empirical verification of weightiness is not required”. (Timmons v. Twin Cities Area New Party, 520 U.S.
351, 352 (1997)).
134
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (emphasis added).
135
AP News, “Elections chief says no evidence of voter fraud in Louisiana,” (Jan. 25, 2017).
https://apnews.com/4cc1a8e3f93e4f7db12757bb7b8ef944
136
Joint Exhibit 25.

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ballots before they are tabulated, a process that involves members of the parish board of
elections going ballot by ballot to confirm that the proper procedures for marking and
submitting the ballot have been followed.137
The Court is underwhelmed by the argument that eliminating COVID-related mail
voting and returning to the statutory Excuse Requirement is a significant bulwark against
fraud, especially considering that Louisiana offers mail voting for reasons of mere
convenience that require no proof whatsoever. As Governor Edwards points out, a voter
may apply for an absentee by mail ballot on the premise that he or she “expects to be
temporarily outside the territorial limits of the state or absent from the parish in which he
is qualified to vote.”138 “Using this provision,” the Governor argues, “a duck hunter residing
in East Baton Rouge Parish could cross the Mississippi River to his hunting camp in West
Baton Rouge Parish, leaving him absent (though not far) from his parish of residence on
early voting days and election day. He would then be able to vote, by mail, absentee.”139
No documentation of the expected absence is required by the ballot application; only the
dates of anticipated absence are required. If the voter votes absentee by mail based on
the expectation that he or she will be absent and then, due to a change of plans, is no
longer absent, the law proscribes no consequences.140 How, then, can the state maintain
that it is necessary to disallow any Virus-related excuses to prevent voter fraud? It cannot.

137

La. R.S. 18:1313; Hearing testimony of Sherri Hadskey, Commissioner of Elections.
Rec. Doc. No. 49, p. 7.
139
Id.
140
Similarly, voters who “expect to be . . .upon the waters of the state” working offshore during early voting
and election day can simply check a box to receive an absentee by mail ballot; likewise, no proof is
requested from voters who claim to have “moved . . . to another parish more than 100 miles from the parish
seat of [their] former residence after the registration books closed.” Joint Exhibit 25.
138

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The Excuse Requirement already provides excuses that are merely “for the
convenience of voters” and those excuses “could reasonably be extended to fit the
circumstances of this pandemic without . . . undermin[ing] the security of the election.” 141
The line that has been drawn by Defendants is not a rational one,142 and their assertion
of its necessity is directly contradicted by the fact that, for an election conducted one
month ago, these same state officials did not, apparently, feel that maintaining the strict
statutory Excuse Requirement was necessary to avert voter fraud. While the state has a
legitimate interest in preventing voter fraud, based on the record before the Court, as it
relates to the Excuse Requirement, that interest does not necessitate the burdens
imposed by the requirement during the pandemic, especially for vulnerable voters such
as those with comorbidities of COVID-19 that place them at higher risk.
ii.)

Integrity of Elections Systems

The second justification asserted by Defendants for maintaining the strict
adherence to the statutory Excuse Requirement is the state’s need to “maintain[] the
integrity of its elections systems.”143 “A State indisputably has a compelling interest in
preserving the integrity of its election process.”144 Defendants argue that the integrity of
the state’s election process would be threatened by “unlimited vote by mail” because “it
may be impossible for the local parish Boards and Registrars to change their procedures
sufficiently in time for any election in 2020.”145

141

Rec. Doc. No. 49, p. 7.
“[T]he Constitution does not require the [state] to draw the perfect line nor even to draw a line superior
to some other line it might have drawn. It requires only that the line actually drawn be a rational line.” Texas
Democratic Party v. Abbott, 961 F.3d 389, 407 (5th Cir. 2020)(quoting Armour v. City of Indianapolis, 566
U.S. 673, 685 (2012).
143
Rec. Doc. No. 52, p. 13.
144
Rec. Doc. No. 52, p. 8 (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989)).
145
Id. at p. 9.
142

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However, the Louisiana Commissioner of Elections testified at the hearing that the
integrity of the state’s election process is already threatened, even without any Virusrelated expansion of mail balloting. Hadskey testified that the number of voters over the
age of 65 who have requested a mail ballot has dramatically increased, resulting in
enormous strain on the mail vote process. Commissioner Hadskey testified that
historically, approximately 60,000 voters aged 65 and older request mail ballots in
Presidential elections. The number of age 65-and-up mail ballot applications has surged
to nearly 165,000 since the pandemic. The deadline to request an absentee by mail ballot
is October 30, 2020, so the number of requests can be expected to increase. Because
state election officials are not accustomed to or prepared for such large numbers of
absentee by mail ballots, Hadskey stated that she is already “extremely concerned” about
being able to have election results tabulated on November 3, Election Day.
Be that as it may, a potential expansion of mail voting to accommodate voters with
comorbidities or caretakers has nothing whatsoever to do with the state’s failure to be
prepared to tabulate mail votes. Louisianans aged 65 and older have had the right vote
by mail on the basis of age for thirteen years.146 The right, so extended to the voters of
the state, gives rise to an attendant duty on the state to facilitate that vote. Hadskey
testified that her office began preparations for the Presidential election in February. She
further testified that in March, her office knew that the pandemic would have severe
affects on voting. The Secretary of State first declared an emergency with respect to
voting on March 13, 2020 and certified that the state of emergency persists for the

146

Act 124, introduced during the 2007 Regular Session of the Louisiana legislature, was signed by the
Governor and became effective on August 15, 2007. http://legis.la.gov/legis/BillInfo.aspx?i=206986

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November and December elections.147 According to the 2010 Census, more than 720,000
Louisianans are age 65 or older.148 The state has been statutorily duty bound to have a
system in place that would facilitate potentially 720,000 mail votes.
According to the Secretary of State, in the July 2020 election “[a]bsentee by mail
voters accounted for 19% of voters.”149 “Voters were given the opportunity to request an
absentee ballot for five COVID-19 related reasons.”150 Of the “164,296 voters who
requested an absentee ballot for the July 11, 2020 election, 2,810 of them used the
COVID-19 reasons for their request.”151 Ultimately, of the “99,075 voters who returned an
absentee ballot, only 1,863 (2%) voters utilized the COVID-19 emergency absentee ballot
application.”152 In other words, “COVID-19 voters made up less than 0.4%”153 of the
overall ballots cast. The bulk of absentee by mail voting -- 92% -- came from voters using
the “senior citizen excuse”, ie. voters 65 or older.154 Based on those statistics, the notion
that implementing the same COVID-19-related excuses for November would be
“impossible” is not believable. Simple arithmetic indicates that a continuation of the
COVID-19 excuses for mail voting would result in an additional 8,400 mail ballots.155 It is
hardly accurate for Defendants to insist that relaxing the Excuse Requirement to permit

147
“COVID-19
and
Elections
Update”,
Statement
by
Secretary
Ardoin,
https://www.sos.la.gov/OurOffice/PublishedDocuments/031320PressReleaseCOVID19.Final.pdf.
La. R.S. 18:401.3 authorizes the secretary to certify to the governor, the Senate Committee on Senate and
Governmental Affairs, and the House Committee on House and Governmental Affairs that the emergency
impairs the election and that an emergency election plan is necessary.
148
https://www.census.gov/quickfacts/LA
149
Defendant’s Exhibit 4, p. 4.
150
Id.
151
Id.
152
Id.
153
Id.
154
Id.
155
Secretary Ardoin’s office estimates that approximately 2.1 million votes will be cast in the November
election. Defendant’s Exhibit 4, p. 11. If COVID-19 absentee by mail voters make up 0.4% of the total vote
as they did in the July 2020 election, (Note 149 supra), there would be approximately 8,400 absentee by
mail votes cast using the COVID-19 excuses.

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the same mail vote reasons offered in July and August would wreak havoc on the integrity
of the system.
Although the Court is sympathetic to election officials’ struggle to contend with the
effects of the pandemic on voting patterns, it is not persuaded that the state’s interest in
“maintaining the integrity of its election systems” is any justification for the maintenance
of the Excuse Requirement. Based on the record, a modest relaxation of the Excuse
Requirement, such as the one in place for the July and August elections, would impose
at the most a de minimis additional burden on the system and does not pose a legitimate
threat to Louisiana’s election integrity.156
iii.)

Voter confusion

Defendants’ third asserted justification for rolling back COVID-19 absentee by mail
voting provisions and adhering to the Excuse Requirement is the state’s interest in
“avoiding voter confusion.”157 This sounds quite rational, until one considers that voter
confusion already exists with respect to the November and December elections as the
direct result of Defendants’ actions. The Secretary of State has been operating under a
declared state of emergency since March 13, 2020. Yet, no plan for the November
Presidential election was advanced until August 17, 2020, and that proposed Plan
eliminated the previously implemented Virus-related excuses for mail-in voting. Secretary

156

The Senate Judiciary Committee’s Report accompanying the 1982 amendment of the Voting Rights Act
suggested several factors for courts to consider when analyzing potential violations of Section 2 of the VRA.
One of those factors was “lack of responsiveness on the part of elected officials to the particularized needs
of minority group members.” S.Rep. No. 97-417, 97th Cong., 2d Sess. (1982), pages 28-29. Plaintiffs
evince significant evidence that the Virus, and therefore the need to vote in person, imposes a
disproportionate burden on Black voters in Louisiana. See, e.g., Declaration of Camara Phyllis Jones, M.D.,
M.P.H., Ph.D, Rec. Doc. No. 31-4. Plaintiffs are not seeking an injunction with respect to their VRA claims.
The Court simply notes that, in a related voting rights context, elected officials’ failure to respond to the
needs of minority groups is a factor to be considered by the court.
157
Rec. Doc. No. 52, p. 13.

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Ardoin has repeatedly indicated that the Court will have to step in to resolve confusion
over the plan for the November election. Secretary Ardoin has said he “would think the
Court’s going to have to order some sort of process”158 and that an Emergency Election
Plan “will [have to] be decided in court,” including the “the critical mechanisms my office
needs to administer the election in the extraordinary circumstances of a pandemic.”159
Likewise, when Governor Edwards rejected the proposed Plan for November and
December, he observed that a “resolution will likely have to come from courts, which is
unfortunate." Beyond a mere interest in avoiding voter confusion, in this Court’s view, the
state has an obligation to avoid voter confusion; an obligation that has not been fulfilled.
The Emergency Election Plan put in place for July and August, which added Virusrelated excuses to vote by mail, was not broken; the bumbling attempts to fix what was
not broken have brought us to today. Instead of leaving in place COVID-19 responsive
mail voting opportunities, Secretary Ardoin proposed that “any registered voter testing
positive for COVID-19 during and after early voting but before election day”160 should be
allowed to vote by mail. This eleventh hour proposal is itself confusing. “[D]oes it apply to
someone who received a positive test result prior to early voting, but is still within the
quarantine window during the early voting period? Does it apply to someone who submits
to a COVID-19 test during or after early voting and before election day and is directed to

158

WAFB Staff, “Sec. of State Discusses Nov. 3 Election Plan as La. Recovers from Hurricane Laura”
(Sept. 3, 2020) https://www.wafb.com/2020/09/03/sec-state-discusses-nov-election-plan-la-recovershurricane-laura-continues-fight-covid-/; 1:35 mark et seq.
159
Mark Ballard, “Louisiana’s fight over mail-in ballots is headed to federal court; here are the next steps”
(Aug. 31, 2020) https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_37557c18eafd-11ea-955d-4bf29cdb7e3e.html.
160
https://www.sos.la.gov/OurOffice/PublishedDocuments/SOSProposedEmergencyElectionPlan.pdf

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quarantine, but has not yet received a positive test result? Does it apply to someone who
took a test before early voting but receives a positive test result during early voting?”161
The legitimacy of Defendants’ stated interest in avoiding voter confusion is further
undermined by Attorney General Landry’s freshly issued Opinion 20-0104. Landry urged
dismissal of this case, arguing that “changing the method of absentee balloting at this
stage will invite chaos into the system.” Yet on September 1, 2020, Landry proposed to
do just that. After intervening in this lawsuit, Landry penned a letter to the Tangipahoa
Registrar of Voters stating that “a voter who is diagnosed with COVID-19 or is subject to
a quarantine order while awaiting a COVID-19 diagnosis would qualify to vote absentee
so long as a medical professional certifies the voter is disabled.”162 Landry further opines
that “any voter with an underlying health condition known to be a comorbidity for COVID19 will qualify for an absentee ballot if a medical professional certifies that . . .the existence
of the comorbidity presents an unreasonable risk for that voter to vote in person to the
point that it rises to a disability under [the statute].”163
For the July and August elections, voters with comorbidities were able to request
an absentee by mail ballot by certifying that they suffer from diabetes, hypertension, or
one of the other conditions identified by the CDC as placing them at higher risk. Now,
those same voters are expected to be aware of and rely upon a letter from the Attorney
General to the Tangipahoa Registrar of Voters that instructs them to go to the doctor and
obtain a certification that they are “disabled.” By the plain language of Landry’s opinion,
a voter can ask an optometrist for a note that says she is disabled because she was

161

Defendant’s Exhibit 5, p. 2.
Rec. Doc. No. 52-1, p. 3.
163
Id.
162

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tested for COVID-19 but has not yet received the results.164 The situation is an absurdity
and yet, is specifically permitted by the Attorney General’s Opinion.165 Ironically,
Defendants’ expert witness, Dr. Barie, testified at the hearing that, as a medical clinician,
he would not certify a patient awaiting COVID-19 diagnosis as disabled.
Meanwhile, the Attorney General urged the Court to dismiss this case because the
state is already “on the eve of the election,” and “changing the method of absentee
balloting at this stage will invite chaos into the system and harm more people through
voter confusion than any court-ordered remedy would help.”166 Defendants’ offer of “voter
confusion” as a justification for maintaining the Excuse Requirement lacks credibility in
light of the evidence that revisions to important forms for the fall elections are still
underway.167
The question before the Court is whether the state’s asserted interest in avoiding
voter confusion is sufficiently weighty to justify the burden imposed on Plaintiffs by their
rule. Defendants have articulated no reason why maintaining the statutory Excuse
Requirement has the effect of avoiding voter confusion, especially in light of the
multifarious pronouncements from different state officials about what rules will govern the
November and December election. The Court finds that, based on the record before the

164

Rec. Doc. No. 52-1, p. 3, n. 1.
In addition to essentially enlisting doctors to write certifications that are contra both legal and medical
norms, the Attorney General’s opinion arguably imposes an additional, and more constitutionally fraught,
burden of its own. An appointment with a medical professional is generally not free and may be quite
expensive, depending on one’s insurance status. By forcing voters who want to vote by mail into using the
disability excuse to get a doctor’s note, the Opinion may put voters in the position of having to incur costs
in order to exercise their right. Plaintiffs analogized this to a poll tax. The Court need not, and does not,
conclude as much, but finds the argument worth considering.
166
Rec. Doc. No. 56-1, p. 31.
167
Commissioner Hadskey testified that the disability excuse application form presently in use is being
revised in keeping with the September 1, 2020 Attorney General Opinion. The Commissioner estimated
that the new forms necessitated by the A.G.’s Opinion would not be ready for 2 more weeks.
165

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Court, the state’s interest in avoiding voter confusion – confusion that already exists due
to Defendants’ actions – does not outweigh the burden on Plaintiffs’ rights created by the
application of the statutory Excuse Requirement under pandemic circumstances. The
amorphous threat of unspecified voter confusion simply does not carry more weight than
the very real risk of exposure to a dangerous Virus that Plaintiffs face if they vote in
person.
iv.)

Public confidence in election results

The final state interest that Defendants cite as justification for maintaining the
Excuse Requirement is the state’s need to ensure public confidence in election results.168
Defendants do not elaborate on how maintaining the statutory Excuse Requirement
allegedly serves to preserve public confidence. As far as the Court can tell, the public
confidence argument overlaps with Defendants’ asserted interest in maintaining the
integrity of Louisiana’s election systems. At the hearing, Commissioner Hadskey testified
that universal mail-in voting would result in delays in tabulating the results on election
night due to the increased number of absentee by mail ballots.169 In previous elections,
she explained, late election results have caused voters to question the legitimacy of the
vote count or the overall result. To be clear, Hadskey also stated that the likelihood of
having election results on election night is already remote because of the surge in voters
requesting absentee by mail ballots under the “senior citizen” excuse for voters 65 and
older. In that sense, maintaining the Excuse Requirement (i.e. letting fewer people vote

168

The Fifth Circuit has recognized “promoting public confidence in the voting process” as a legitimate state
motive. See Veasey v. Abbott, 830 F.3d 216, 231 (5th Cir. 2016).
169
As previously noted, state election officials should have had systems in place to accommodate the more
than 700,000 voters, aged 65 or older, who have had the right to mail vote for more than a decade.

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by mail) does not ensure timely results, which, thanks to pandemic voting circumstances
driving a huge increase in elderly absentee voting, are likely already out of reach.
If the Virus-related excuses from the summer election Plan are made available for
the fall, based on the Secretary of State’s data, the likely total number of additional mail
ballots requested would be in the neighborhood of 9,000.170 It seems implausible that
such a meager fraction of the 2.1 million votes anticipated would change the timing for
vote tabulation, and certainly not to a degree that it would be responsible for undermining
public confidence. Weighed against the burden on 9,000 prospective absentee by mail
voters, the incidental effect that the additional ballots have on the vote tabulation process
is not a legitimate reason to maintain the burden. Public confidence is not a rational
reason to draw the line between who can and cannot vote absentee by mail in this
manner.
The Court finds no credible evidence that the need for public confidence in
elections necessitates maintaining the Excuse Requirement during a pandemic.
Defendants may not have considered that their insistence on the maintenance of the
Excuse Requirement may itself have a negative effect on the public’s confidence in the
election results. Virus-related protections were offered for the July and August elections
and then abruptly rolled back for November and December, with only the explanation that
this was the only plan that would pass the legislature.171 For state officials to reverse
course and, as they do here, insist that the same protections that were offered in the

170

See supra, n. 156.
See Defendant’s Exhibit 5 (Letter from Governor Edwards to Secretary Ardoin) (“[Y]ou presented me
with your plan, claiming it is the only plan you would be able to get through the legislative process. It was
clear than that you had already made this decision after discussion with members of the legislature. While
legislative approval is certainly a required element of La. R.S. 18:401.3, it should not be your primary goal
in developing a safe elections plan”).
171

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summer suddenly present an unacceptable risk of voter fraud and mass electoral chaos
can only have the effect of eroding public confidence in the administration of Louisiana
elections. Plaintiff Jasmine Pogue avers that:
If I had the opportunity to vote by absentee ballot, I would take it
unquestionably. I have participated in elections since I became eligible to
vote at 18 years old, and it is important to me that my voice is heard in our
political system. I am devastated that my right to vote and my need to
protect my health are put in tension by Louisiana’s refusal to extend vote by
mail opportunities for voters like me.172
In the Court’s view, the perceived unfairness of eliminating Virus-related protections that
were perfectly acceptable to state officials for the summer elections is more detrimental
to public confidence in the elections than a modest increase in mail-in voting.
c. Early Voting: Burden and State Interest
Plaintiffs also seek to enjoin “the reduction of the 13-day early voting period that
was established for the July and August 2020 elections to a seven-day early voting period
for the November and December elections.”173 According to Plaintiffs, this curtailment of
early voting imposes an undue burden on their right to vote. They explain that “additional
days of early voting will allow for effective social distancing and reduce the risk of crowds
gathering in lines to enter a polling place and inside the polling place.”174 Plaintiffs ask the
Court to “direct Defendants to provide a 13-day early voting period,” arguing that the state
has “no valid justification” for its failure to do so.175 As it did for the Excuse Requirement

172

Rec. Doc. No. 31-7, p. 6.
Rec. Doc. No. 31, p. 2.
174
Rec. Doc. No. 31-1, p. 25.
175
Plaintiffs’ discussion of early voting refers to both the “November and December elections” collectively
(See, e.g. Rec. Doc. No. 84, p. 17). But their request for an expanded period of early voting is premised on
the “anticipated considerable increase in voter turnout,” which, based on the record, is applicable only to
the November election. Plaintiffs’ early voting claim with respect to the December election is not abandoned,
per se, but the Court finds that their argument and evidence is primarily focused on relief with respect to
early voting in November.
173

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above, the Court must weigh the burden created by the reduction of the early voting period
against “‘the precise interests put forward by the State as justifications for the burden
imposed by its rule,’ taking into consideration ‘the extent to which those interests make it
necessary to burden the plaintiff's rights.’”176
The burden imposed by a limited period of early voting is the same as the burden
imposed by restricted access to absentee by mail voting: it increases the risk that Plaintiffs
will be exposed to the Virus, in this case by distributing the large presidential turnout over
only seven days instead of ten (as Secretary Ardoin proposed) or thirteen (as was offered
for the summer elections). This curtailment can only have the effect of creating more
crowded polling places, both during early voting and on Election Day, when voters who
did not have an opportunity to vote during early voting will have to appear, in person, at
their polling place. Neither in their briefs nor in the evidence presented at the injunction
hearing have Defendants identified the risk of voter fraud as a justification for limiting early
voting. Indeed, the Defendants quote the 2016 Fifth Circuit case Veasey v. Abbott for the
proposition that “the potential and reality of fraud is much greater in the mail-in ballot
context than with in-person voting.”177 In fact, although Defendants argue against
Plaintiffs’ request for an expanded period of early voting in their Opposition, it is a matter
of record that Secretary Ardoin, in his proposed Emergency Election Plan, sought a tenday period of early voting for the November election.178 And Commissioner Hadskey

176

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
Veasey v. Abbott, 830 F.3d 216, 239 (5th Cir. 2016)(emphasis added).
178
https://www.sos.la.gov/OurOffice/PublishedDocuments/SOSProposedEmergencyElectionPlan.pdf, p.
7.
177

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testified at the hearing that a ten-day period of early voting could feasibly be implemented
by her office and the parish Registrars of Voters.179
To the extent that Defendants oppose an expanded period of early voting at all,
their opposition is based on the logistical challenges and administrative demands that
they claim would arise from fitting an expanded early voting period of more than ten days
into an already cramped election calendar. To that end, Defendants offer testimony from
Commissioner Hadskey, who attests that as much as Plaintiffs may want thirteen days of
early voting, “it is not possible to do so.”180 Why not? Because, Hadskey explains, the last
day for a citizen to register and be allowed to vote in the November 3rd election is October
13, 2020.181 If this Court were to order that early voting is to take place over thirteen days,
as it did for the July and August elections, early voting would begin on October 13th – the
same day as the deadline for voter registration. Hadskey avers that “information regarding
new voters must be entered by the appropriate registrar into ERIN, the state’s electronic
information network, in order to allow these newly registered voters to vote during early
voting.”182 That process is “too cumbersome and too critical a process for registrars
across the state to complete accurately and timely before the start of early voting,” she
adds, especially since Louisiana has “historically received greater numbers of last minute
registrations than usual when there is a presidential election.”183

179

Hearing testimony of Commissioner Hadskey.
Rec. Doc. No. 52-17, p. 5.
181
Id. at p. 6 (October 13th is the deadline for online registration through the Geaux Vote portal on the
Secretary of State’s website. The deadline to complete a voter registration in person or by mail is October
5, 2020 (See Rec. Doc. No. 52-17, p. 21, Hadskey Exhibit A).
182
Rec. Doc. No. 52-17, p. 6.
183
Id.
180

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Additionally, Hadskey attests that the state’s ERIN system generates a “one line
poll list” for each registered voter, which contains the voter’s name, address, and the style
of ballot to be provided to the voter.184 For the July 2020 election, when the first day of
early voting and the last day of online voter registration both fell on Saturday, July 11, the
“one poll list” was not complete until the following Tuesday, July 14th, resulting in what
Hadskey describes as “chaos” and “confusion,” requiring the “registrars, deputy
registrars, and Secretary of State employees . . . to work on the weekend holidays to
accomplish this.”185
The

above-described

issues

with

processing

new

voter

registrations

notwithstanding, Commissioner Hadskey unequivocally testified that a ten-day period of
early voting could feasibly be implemented by her office and the parish Registrars of
Voters for the November election.186 And Secretary Ardoin proposed ten days of early
voting for November in his Emergency Election Plan, which, though not approved by the
Governor, has since earned the approval of the majority of the Louisiana legislature.187
Although they have brought forth evidence that thirteen days of early voting would be
unmanageable by state elections officials, Defendants have not identified a state interest

184

Rec. Doc. No. 52-17. At p. 7.
Id. at p. 8.
186
The same cannot be said for the December election; the Court finds that the logistical and timing-related
challenges attested to by Hadskey for that election make an expansion of early voting unworkable. As it
stands, there are already only seventeen days between November 3 and the start of December early voting
on November 20. Because the December ballot includes runoff elections from November, the fact that a
ballot cannot be prepared sooner, especially in light of the likelihood of delayed results in November, is
sufficient justification for maintaining seven days of early voting for December. The Court further notes that
December poses less risk to voters because it will be a lower-turnout, non-presidential election.
187
Mark Ballard, “In federal court, Louisiana elections officials unsure if mail ballots can be counted on
time,”
The
Advocate
(Sept.
9,
2020).
https://www.theadvocate.com/baton_rouge/news/politics/elections/article_e58b258e-f2ec-11ea-a2d3271a06a7292a.html (“On a largely party-line vote, the Louisiana House on Wednesday approved of
Ardoin’s latest emergency plan on a vote of 62-32 and the state Senate said yes on a 27-11 vote. The
ballots were delivered by mail”).
185

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that justifies limiting early voting to the seven-day period prescribed by statute. In fact,
Defendants scarcely appear to oppose a ten-day period of early voting at all. Based on
the record before the court, a curtailed period of early voting imposes a burden on
Plaintiffs that is not justified by any legitimate state interest.
2. Irreparable Injury
In addition to showing a likelihood of success on the merits, Plaintiffs must also
show that there exists a substantial threat that they will suffer irreparable injury in the
absence of an injunction. To that end, Plaintiffs cite the Supreme Court’s holding in Elrod
v. Burns that “[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”188 The Elrod Court was clear that
irreparable injury arises whether one’s First Amendment freedoms “were either
threatened or in fact being impaired.”189 Plaintiffs argue that if the challenged provisions
of Louisiana election law are not enjoined, they will have to choose between exercising
their right to vote and risking their health by voting in person. Likewise, the organizational
Plaintiffs, the Louisiana NAACP and Power Coalition, face irreparable injury. Courts have
held that a “voting-rights organization is [] irreparably harmed when the right to vote is
wrongfully denied or abridged—whether belonging to its membership or the electorate at
large.”190 Defendants contend that Plaintiffs cannot make a showing of irreparable injury

188

Elrod v. Burns, 427 U.S. 347, 373 (1976). See also Obama for Am. v. Husted, 697 F.3d 423, 436 (6th
Cir. 2012).
189
Id.
190
N. Carolina State Conference of NAACP v. Cooper, 430 F. Supp. 3d 15, 51 (M.D.N.C. 2019)(citing
Common Cause Georgia v. Kemp, 347 F. Supp. 3d 1270, 1295 (N.D. Ga. 2018). The North Carolina court
also held that “[o]rganizations with core voter-advocacy missions . . case, are irreparably harmed when
‘the defendant's actions ‘perceptibly impair[ ]’ the organization's programs, making it more difficult to carry
out its mission.” This Court found in its Ruling on the Motion to Dismiss in this case that the Louisiana
NAACP and Power Coalition have suffered impairment or frustration of their missions due to the actions of
Defendants.

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in the absence of an injunction because their alleged harms are too speculative. This
Court already considered and rejected that argument in its Ruling on the Motion to
Dismiss. The Court concludes that Plaintiffs have shown a likelihood of irreparable injury
in the absence of an injunction.
3.

Balance of Hardships

The Fifth Circuit instructs that a court should issue a preliminary injunction if the
movant establishes, in addition to the other three elements of the test, that “the threatened
injury if the injunction is denied outweighs any harm that will result in the injunction is
granted.”191 It is true, as Defendants point out, that the Fifth Circuit in Texas Democratic
Party v. Abbott, staying a lower court injunction, found irreparable injury to the state of
Texas caused by the injunction, writing that “any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.”192 This prong of the injunction analysis calls for a balancing. The Court
concludes that the ineffable, abstract injury of being unable to effectuate a statute, that
was modified and relaxed by the legislature to meet nearly identical circumstance only
months ago carries more weight than the Plaintiffs risk of exposure to a dangerous Virus.
The facts – and therefore the balance of hardships – in this case are distinguishable from
Abbott. First, the hardships on Plaintiffs here are weightier and more severe than in
Abbott, where the plaintiffs sought to expand the excuse-free mail in voting offered to 65year-olds and up to all voters, regardless of age. Here, Plaintiffs are not merely younger
than 65; they have demonstrated specific medical and medical-social reasons why

191
192

Robinson v. Hunt Cty., Texas, 921 F.3d 440, 451 (5th Cir. 2019), reh'g denied (May 16, 2019).
Texas Democratic Party v. Abbott, 961 F.3d 389, 411 (5th Cir. 2020).

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appearing in person at the polls presents them, and their families, with heightened risk.
Thus, the harm to them in the absence of an injunction would be more acute than the
harm to all voters under age 65, generally speaking. Moreover, Plaintiffs ask that “at a
minimum” for the previous Emergency Election Plan to be applied to the fall elections.
Inasmuch as that plan had legislative approval, the state’s legislative prerogative would
not be meaningfully impaired.
As the District Court for the Middle District of Pennsylvania put it, “there can be no
injury more irreparable” than a “risk of serious, lasting illness or death.”193 Even though
Plaintiffs’ serious illness or death is not an inevitable result of voting in person, on balance,
the increased risk of such is still more detrimental than the abstract injury the state would
suffer if this Court enjoined its statutes. Thus, the Court finds that this factor presents no
obstacle to injunctive relief.
4.

Public Interest

Lastly, the Court must inquire as to whether the grant of an injunction will serve
the public interest. Because granting Plaintiffs’ requested injunctive relief would result
in expanded voting opportunities for Louisiana voters, the Court concludes that it
would. It is well settled that citizens have a “strong interest in exercising the
‘fundamental political right’ to vote,’” 194 “[t]he public interest therefore favors
permitting as many qualified voters to vote as possible. Defendants assert that “the
public interest favors conducting the elections under restrictions less or as restrictive
as Louisiana’s normal election procedures,”195 which the Court can only assume was

193

Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020).
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
195
Rec. Doc. No. 52, p. 27.
194

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a misstatement on their part, since the entire premise of their Opposition to the
injunction is that instituting a less restrictive election regime would unleash chaos.
Defendants also argue that the public interest would be disserved by an injunction
because “Louisiana’s system is not set up or equipped to process that volume of
ballots.”196 On that point, the Court can only agree that the apparent inadequacy of
Louisiana’s election system is, indeed, not in the public interest. But as the Supreme
Court has held, “administrative convenience” 197 is not adequate justification for
burdening fundamental rights.
In their Post Hearing Brief, Defendants imply that an injunction by this Court would
impermissibly invade the legislative sphere, wondering “why would any elected official
engage in the hard work required to pass a law, when they can convince a federal court
to do ‘whatever it chooses to do’? The work of Louisiana’s lawmakers, even when that
work bears little fruit, should not be so cavalierly cast aside.”198 The Court rejects the
insulting notion that the significance of the issues presented are in anyway treated
cavalierly. Although determining the “Times, Places and Manner of holding Elections”199
is undeniably left to the States, it is equally true that it is the Court’s duty to determine the
constitutionality of state action. Defendants admit that Louisiana lawmakers’ efforts to
regulate the fall elections have “borne little fruit.” The Court will go a step further: Plaintiffs
have shown that the state’s failure to provide accommodation for pandemic-affected
voters is likely unconstitutional because it imposes an undue burden on Plaintiffs’ right to
vote. Based on the record before the Court, Plaintiffs have demonstrated a likelihood of

196

Id. at p. 28.
Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
198
Rec. Doc. No. 86, p. 1 (internal citations omitted).
199
U.S. Const. art. I, § 4, cl. 1.
197

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success on the merits, irreparable injury, a balance of interest in their favor and service
of the public interest.
B. Injunctive Relief
“Crafting a preliminary injunction is an exercise of discretion and judgment.”200 “A
court ‘need not grant the total relief sought by [the plaintiffs] but may mold its decree to
meet the exigencies of the particular case.’”201 The Court is, however, bound to consider
“the overall public interest.”202 Thus, for the above-stated reasons, and after careful
consideration of the record, the court will GRANT in part and DENY in part Plaintiffs’
Motion for Preliminary Injunction, as follows:


The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early
voting for the November 3, 2020 Presidential General and Open Congressional
Primary Election to thirteen days. The Court GRANTS more limited injunctive relief as
to early voting and shall order that the period of early voting for the November 3, 2020
Presidential General and Open Congressional Primary Election be increased to a tenday period which shall run from Friday, October 16, 2020 to Tuesday, October 27,
2020, (excluding Sunday, October 17 and Sunday, October 25), from 8:00am to
7:00pm each day.



The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early
voting for the December 5, 2020 Open General/Congressional/Republican State
Central Committee (RSCC) Election.

200

Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).
Id.
202
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26 (2008).
201

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Case 3:20-cv-00495-SDD-RLB



Document 88

09/16/20 Page 44 of 44

The Court DENIES the Plaintiffs’ Motion for injunctive relief to enjoin entirely the
operation of the Excuse Requirement set forth in Louisiana Revised Statute §18:1303.



The Court GRANTS Plaintiffs’ alternative Motion for injunctive relief to make available
the COVID-19 Ballot Application that was used during the July and August 2020
elections and to supply absentee by mail ballots to voters who validly request
absentee ballots via COVID-19 Ballot Application in both the November 3, 2020
Presidential General and Open Congressional Primary Election and the December 5,
2020

Open General/Congressional/Republican

State

Central

(RSCC) Election.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 16, 2020.

S

CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Committee