Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 1 of 71
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, et al.,
) ) ) Plaintiffs, ) v. ) ) MS. EVON BILLUPS, Superintendent ) of Elections for the Board of Elections ) and Voter Registration for Floyd County ) and the City of Rome, Georgia, ) et al., ) ) Defendants, ) ) and ) ) STATE ELECTION BOARD, ) ) Defendant-Intervenor. )
CIVIL ACTION NO. 4:05-CV-201-HLM
STATE DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 2 of 71
TABLE OF CONTENTS I. INTRODUCTION ...............................................................................................1 II. STATEMENT OF FACTS .................................................................................5 A. Methods of Voting and Voter Identification in Georgia Prior to the Enactment of the Photo ID Acts.....................................................................5 B. Changes to the Requirements for Absentee and In-Person Voting in 2005 .......................................................................................................7 1. Changes to Absentee Voting by Mail in 2005 ............................................7 2. Changes to In-Person Voting in 2005......................................................10 C. This Court’s Order Preliminarily Enjoining the 2005 Photo ID Act ..............11 D. The General Assembly Responded to This Court’s Concerns by Enacting the 2006 Photo ID Act. ................................................................................13 E. The State Election Board Has Enacted Regulations Providing for the Administration of the Issuance of Free Photo IDs Under the 2006 Photo ID Act. ..............................................................................................15 F. There Are at Least 221 Locations Statewide Where Photo ID Cards Are Available Free of Charge for Registered Voters Who Choose to Vote In Person and Do Not Currently Have a Valid Photo ID. ..................................16 G. The State Election Board and Others Have Undertaken Substantial Efforts to Train Local Election Officials and Educate Voters Concerning the Requirements of the 2006 Photo ID Act. ..........................17 H. Plaintiffs Misrepresent the Number of Persons Lacking Proper Identification to Vote In Person. ...............................................................20 I. The Concerns Expressed by Plaintiffs’ Declarants Either Do Not Apply to the 2006 Photo ID Act, Were Formulated Before the Adoption of the State Election Board Regulations, or Are Unwarranted Based Upon Current Georgia Law. ..............................................................................................24 J. Notwithstanding the Questionable Merits of Her Conclusion, the Declaration of Sheryl Gowen Should Be Rejected Because It Proceeds From the Faulty Assumption That An Absentee Ballot Voter is Personally Required to Complete the Application Attached to Her Declaration in Order to Vote an Absentee Ballot. ..............................................................28 K. The Temporary Restraining Order Issued by the Superior Court of Fulton County on July 7, 2006. ...........................................................31
i
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 3 of 71
III. ARGUMENT AND CITATION OF AUTHORITY.........................................32 A. Plaintiffs Are Not Substantially Likely to Succeed on the Merits. ..............34 1. The 2006 Photo ID Act Does Not Violate Equal Protection by Unduly Burdening Plaintiffs’ Right to Vote. ..........................................................34 a. Plaintiffs’ Equal Protection Claim Must Be Reviewed Under the Rational Relationship Test, Not Strict Scrutiny....................................36 b. The 2006 Photo ID Act’s “Reasonable, Nondiscriminatory” Restrictions Are Justified by the State of Georgia’s Important Interest in Preventing Voter Fraud. ......................................................40 i. The 2006 Photo ID Act Has Remedied the Burdens Which This Court Found the Prior Law Imposed, Such That Plaintiffs’ Asserted Injury, If Any, Is Now Slight. ..............................................40 ii. The State of Georgia Has an Important Interest in Eliminating the Potential for Voter Fraud. ................................................................47 iii. The State’s Interest in Preventing Voter Fraud Makes the Photo ID Requirement for In-Person Voting Necessary. ...............50 iv. That the 2006 Photo ID Act Does Not Include Plaintiffs’ Preferred Methods for Combating Voter Fraud Is Legally Irrelevant...............53 2. Plaintiffs’ Civil Rights Act Claims Under 42 U.S.C. § 1971 Fail Because the 2006 Photo ID Act Does Not Discriminate. .........................56 B. Plaintiffs Have Not Shown That They Will Be Irreparably Harmed Without the Requested Injunctive Relief. ...................................................59 C. The Harm to the State of Georgia from Enjoining Its Duty and Obligation to Guard Against Voter Fraud Outweighs the Inconvenience to Plaintiffs. ................................................................................................60 D. The Public Interest Would Not Be Served by Granting the Requested Injunctive Relief. ........................................................................................63 IV. CONCLUSION ..............................................................................................66
ii
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 4 of 71
I. INTRODUCTION To address the concerns articulated by this Court in its October 18, 2005 Order granting a preliminary injunction prohibiting enforcement of the 2005 amendment to O.C.G.A. § 21-2-417 (“the 2005 Photo ID Act”), the Georgia General Assembly in its 2006 Regular Session repealed the 2005 Photo ID Act and enacted a new law. The 2006 amendment to O.C.G.A. § 21-2-417 (“the 2006 Photo ID Act”) requires that photographic identification (“photo ID”) cards must be issued free of charge to all recipients and be readily available not only from the 60 Department of Driver Services (“DDS”) centers throughout the state, but also at one or more additional locations in each of Georgia’s 159 counties. In implementing the new 2006 Photo ID Act, the State Election Board – like the General Assembly – has attempted to address the Court’s concerns, specifically the concern that the requirements of the 2005 Photo ID Act were not well publicized. The State Election Board has placed much emphasis on both training election workers and educating the public on the new law’s requirements, as have numerous county election officials, and a preliminary injunction this stage would disserve the public interest. Last fall, Plaintiffs’ argument regarding the 2005 Photo ID Act was that the State of Georgia had not done it right. In fact, in response to a question from the Court, Plaintiffs’ counsel at the previous preliminary injunction hearing specifically
1
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 5 of 71
stated that if the State of Georgia removed the fee for photo ID cards and made them available at reasonably convenient locations throughout the state, Plaintiffs would no longer contend that the law violated equal protection. (See Transcript of Prelim. Inj. Hearing, 10/12/05 (“Tr.”), at 109-10 (attached as Tab A to State Defs.’ Appendix of Exhibits).) Yet despite the General Assembly enacting a new law to address these two concerns, Plaintiffs nonetheless seek another preliminary injunction, with their principal claim once more being that the photo ID requirement violates equal protection. At the heart of the matter, Plaintiffs’ stated grievance is that voters who do not already have an acceptable form of photo ID should not have to choose between voting an absentee ballot by mail and obtaining a free photo ID card to vote in person. Accordingly, Plaintiffs’ legal argument has transformed from “the State of Georgia has not done it right” to “the State of Georgia cannot do it at all.” (See Pls.’ Mem. Supp. Renewed Mot. for Prelim. Inj. [hereinafter “Pls.’ Mem.”] at 10.) Plaintiffs’ changed position fails to recognize that there is no constitutional right for Plaintiffs to vote in the specific manner that they desire and that the State of Georgia has a legitimate interest in preventing the potential for in-person voter fraud, regardless of how many actual instances of fraud have come to light.
2
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 6 of 71
Plaintiffs’ motion for injunctive relief should be denied because they are unlikely to succeed on the merits of their contention that the 2006 Photo ID Act violates the U.S. Constitution and the Civil Rights Act of 1964, 42 U.S.C. § 1971(a)(2)(A) & (B). The 2006 Photo ID Act imposes no undue burden on the right to vote and will cause no irreparable harm because it does not deny any registered voter the right to vote. First, photo IDs are readily available today free of charge in all Georgia counties to registered voters who do not already have a driver’s license or DDS-issued photo ID card. Second, the State of Georgia and local election officials have engaged in substantial education efforts to inform voters of the photo ID requirement and where individuals can obtain the free photo ID cards. Third, any registered voter who does not already have an acceptable form of photo ID can vote an absentee ballot by mail. Fourth, any registered voter who appears in person to vote without an acceptable form of photo ID may still vote a provisional ballot and have that vote counted by presenting an acceptable form of photo ID within two days. The 2006 Photo ID Act also does not violate the Civil Rights Act because it does not discriminate on the basis of race. The requirements for the presentation of a photo ID for in-person voting apply to all registered voters, all of whom have the
3
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 7 of 71
ability to either obtain a free photo ID if they do not already have one or vote an absentee ballot by mail without a photo ID. Moreover, the balance of the equities favors the denial of a preliminary injunction. No Plaintiff has been deprived of the right to vote, and enjoining this statute will cause confusion both to voters across the state who have been informed that the photo ID requirement is in effect and to the local election officials who have already received the equipment, training, and forms to implement the 2006 Photo ID Act and have begun issuing photo IDs. The General Assembly in good faith amended O.C.G.A. § 21-2-417 to address the principal concerns raised by this Court when it preliminarily enjoined the 2005 Photo ID Act, and neither the U.S. Constitution nor the Civil Rights Act prohibit the photo ID requirement now in effect. Plaintiffs’ Second Amended Complaint makes clear that the issue at hand is simply a political dispute, not a legal one. The Second Amended Complaint is replete both with references to the sharp partisan disagreement on this legislation and with allegations of improper motives attributed to one political party. (Second Am. Compl. ¶¶ 17, 19, 23, 29, 34-35, 84; see also Pls.’ Mem. at 41-43.) Plaintiffs’ lawsuit is simply an attempt by the party that lost the political legislative battle to resurrect it in court and try again.
4
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 8 of 71
II. STATEMENT OF FACTS A.
Methods of Voting and Voter Identification in Georgia Prior to the Enactment of the Photo ID Acts1 Prior to the enactment of the Photo ID Acts, Georgia registered voters could
exercise their right to vote in one of two different ways: by absentee ballot or at the polls on Election Day. Depending upon which method the voter picked, specific rules applied. First, a voter could vote prior to Election Day by absentee ballot submitted either through the mail or in person at the registrar’s or absentee ballot clerk’s office. See 2003 Ga. Laws 517, §§ 35, 36 (codified as O.C.G.A. §§ 21-2380(b) & -381 (2003)). In order to obtain an absentee ballot though the mail, a voter was, and still is, required to submit a written request that contains “sufficient information for proper identification of the elector.” Id. § 36 (codified as O.C.G.A. § 21-2-381(a)(1) (2003)). Upon receipt of the ballot, the voter’s signature would be, and still is, matched with a signature on file; no other identification was or is now required. In addition to casting an absentee ballot by mail, an absentee voter could also vote his or her ballot in person as part of the advance voting process or independent from that process. Either way, however, a voter casting an absentee 1
The “Photo ID Acts” refer to both “the 2005 Photo ID Act” (2005 Ga. Laws 253, § 59) and “the 2006 Photo ID Act” (Act No. 432 (attached as Exhibit F to Plaintiffs’ Second Amended Complaint).) 5
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 9 of 71
ballot in person was required to present “proper identification to a poll worker.” Proper identification under law included the presentation of one of seventeen possible documents specified in the law. Id. § 48 (codified as O.C.G.A. § 21-2417(a) (2003)). Absentee ballot voters (other than advance voters) were also subject to another important requirement. Prior to 2005, in order to cast an absentee ballot by mail or in person at any time other than the advance voting period, a voter would also have to assert one of a series of reasons why he or she could not vote in person, such as being 75 years of age or older, being absent from the precinct during the time of the primary or election, being physically disabled or having to care for someone who is physically disabled, the election falling on a religious holiday observed by the voter, or being required to remain on the job for the protection of the public health and safety. See id. § 35 (codified as O.C.G.A. § 212-380(a) (2003)). In addition to absentee voting, a registered voter could vote in person by appearing at the polls on Election Day. Again, a voter would be required to present “proper identification to a poll worker” of the same type required for inperson absentee voters. O.C.G.A. § 21-2-417(a) (2003).
6
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 10 of 71
Thus, prior to 2005, there were different identification requirements imposed under Georgia law for registered voters who voted by mail-in absentee ballot or in person, whether via an absentee ballot or at the polls. Furthermore, only certain voters were allowed to cast absentee ballots at any time other than during the advance voting period. Neither Plaintiffs nor anyone else contends that the U.S. Constitution or the Civil Rights Act prevented the General Assembly from requiring such identification or imposing different identification or eligibility requirements for in-person voting and voting by mail under that prior election scenario. B.
Changes to the Requirements for Absentee and In-Person Voting in 2005 1.
Changes to Absentee Voting by Mail in 2005
In its 2005 Regular Session, the General Assembly enacted a wide range of changes to the Georgia Election Code. 2005 Ga. Laws 253. One significant change gave registered voters the ability to vote an absentee ballot by mail without having to claim any excuse for choosing not to vote in person. The amendment expanding the ability to vote by mail is codified as O.C.G.A. § 21-2-380(b): An elector who requests an absentee ballot by mail or who during the period of Monday through Friday of the week immediately preceding the date of a primary, election, or run-off primary or election, casts an absentee ballot in person at the registrar’s office or absentee ballot clerk’s office shall not be required to provide a reason as identified in
7
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 11 of 71
subsection (a) of this Code section in order to cast an absentee ballot in such primary, election, or run-off primary or election. Id. (emphasis added). Although the General Assembly expanded the opportunity for registered voters to vote by mail in Georgia, it did not alter the means upon which an absentee voter may provide documentation to obtain an absentee ballot. “The application shall be in writing and shall contain sufficient information for proper identification of the elector . . . .” O.C.G.A. § 21-2-381(a)(1)(C). Therefore, a registered voter who votes by mail still is not required to present a photo ID prior to being permitted to cast his or her vote.2 Although there is no requirement for the presentation of a photo ID when voting by mail, to protect against voter fraud, election officials are required to ensure that the person voting by mail is the same person who registered to vote. When an application for an absentee ballot is made, a registrar or absentee ballot clerk must record the date received and determine if the applicant is eligible to vote in the primary or election involved. O.C.G.A. § 21-2-381(b)(1). There are specific means by which the registrar or clerk declares the potential absentee voter eligible 2
The only exception to this is a person who registered to vote through the mail and then votes for the first time by absentee ballot. To identify him or herself, the voter has a choice of including with his or her absentee ballot a photo ID or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. O.C.G.A. § 21-2-386(a)(1)(D). 8
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 12 of 71
or ineligible, or requests additional information prior to the primary or election to confirm the voter’s identity. O.C.G.A. § 21-2-381(b)(2)-(4). Absentee ballots are mailed only to eligible applicants. O.C.G.A. § 21-2-384(a)(2). The absentee voter is required to sign an oath verifying eligibility. O.C.G.A. § 21-2-384(c)(1). When the voted ballot is returned, the registrar or clerk is required to compare the identification and signature of the voter on the absentee ballot with the identifying information on the voter registration and absentee ballot application: Upon receipt of each [absentee] ballot, a registrar or clerk shall write the day and hour of the receipt of the ballot on its envelope. The registrar or clerk shall then compare the identifying information on the oath with the information on file in his or her office, shall compare the signature or mark on the oath with the signature or mark on the absentee elector’s application for absentee ballot or a facsimile of said signature or mark taken from said application, and shall, if the information and signature appear to be valid, so certify by signing or initialing his or her name below the voter’s oath. Each elector’s name so certified shall be listed by the registrar or clerk on the numbered list of absentee voters prepared for his or her precinct. O.C.G.A. § 21-2-386(a)(1)(B). In contrast, when a registered voter appears in person to vote at the polls, the voter executes a voter’s certificate, and the poll officer checks the name of the certificate against the electors list present in the precinct. O.C.G.A. § 21-2-431(a). Unlike the identification requirement imposed when voting an absentee ballot by
9
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 13 of 71
mail, there is no requirement that a poll officer check the signature on the voter’s certification with the signature on the voter’s registration. 2.
Changes to In-Person Voting in 2005
Along with expanding the ability of registered voters to cast an absentee ballot by mail, the General Assembly also revised requirements for in-person voting by amending O.C.G.A. § 21-2-417 (“the 2005 Photo ID Act”). That Act changed the manner in which registered voters who vote in person can verify their identity, in an effort to protect against in-person voter fraud by assuring that only the registered voter is casting a ballot. Registered voters who chose to vote in person were required to present at their polling place one of the following forms of government-issued identification which carries indicia of reliability: • • • • • •
A Georgia driver’s license issued by the appropriate state agency, A valid photographic identification card issued by any agency or branch of the United States or any state government agency, A valid U.S. passport, A valid photographic employee identification card issued by the United States or a Georgia state or county government agency, A valid photographic U.S. military identification card, or A valid tribal photographic identification card.
2005 Ga. Laws 253, § 59. Under the 2005 Photo ID Act, an in-person voter who was unable to produce any of the alternative photo IDs would be permitted to vote a provisional ballot. That ballot would then be counted if the registrar was able to verify current and valid identification of the registered voter no later than two days 10
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 14 of 71
after the polls close. Id. This same process was already in place to allow voters whose names do not appear on the list of electors to cast a provisional vote, which will be counted if the issue is resolved no later than two days after the polls close. O.C.G.A. §§ 21-2-418(a) & -419(c). Under the 2005 Photo ID Act, photo ID cards for voting purposes were available at service centers operated by the DDS for a fee ranging from $20 for a five-year card to $35 for a ten-year card. See O.C.G.A. § 40-5-103(a). Such cards were free to all applicants for a DDS-issued photo ID card for voting who swore under oath they were indigent. See 2005 Ga. Laws 253, § 66. C.
This Court’s Order Preliminarily Enjoining the 2005 Photo ID Act On September 19, 2005, a group of plaintiffs filed an action in this Court,
seeking to declare the 2005 Photo ID Act unconstitutional, and a hearing was held on Plaintiffs’ Motion for Preliminary Injunction on October 12, 2005. During that hearing, the Court expressed concern about the lack of voter education relating to the 2005 Photo ID Act, including the removal of restrictions which now permit any registered voter to vote an absentee ballot by mail without a photo ID. (Tr. 148-49.) The Court also had the following colloquy with Plaintiffs’ counsel: THE COURT: Mr. Bondurant, if the state had a law that any registered voter or any individual, any individual who’s a citizen of the State of Georgia who wants a photo I.D. and does not otherwise have one, or even if he or she had one, such as a driver’s license, if they can go to a 11
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 15 of 71
reasonably convenient state office and get a photo I.D. for no cost whatsoever to themselves, if that were the law and we still had the voter I.D. requirements that we have now as passed by the legislature last session, would it be your position that that denies the equal protection of the law to vote? MR. BONDURANT: The answer to that question in my view would be no. (Tr. 109-10.)3 By Order dated October 18, 2005, the Court granted Plaintiffs’ motion and preliminarily enjoined the enforcement of the 2005 Photo ID Act. See Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326, 1377 (N.D. Ga. 2005). The Court found that Plaintiffs were likely to succeed on the merits of their federal constitutional challenge on two grounds. First, the Court found that there was a significant burden on the right to vote. The Court noted its concern that because the DDS service centers at which the photo IDs were available “are not located in every Georgia county,” the centers were not readily accessible to those who may need a photo ID. Id. at 1362-63. Second, the Court found that the fee for a photo ID card 3
Counsel for Plaintiffs then proceeded to explain why he thought such a revised statute might still violate Article II, Section 1, Paragraph 2 of the Georgia Constitution, a position the federal court refused to consider in its order preliminarily enjoining the 2005 Photo ID Act. See Common Cause/Georgia v. Billups, 406 F. Supp. 2d at 1356-59. That claim, however, is the subject of an action first brought in the Superior Court of DeKalb County, Berry v. Perdue, Civil Action No. 06CV4751-4, and now pending in the Superior Court of Fulton County, Lake v. Perdue, Civil Action No. 2006CV119207. 12
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 16 of 71
issued by DDS constituted a poll tax in violation of the Twenty-Fourth Amendment to the United States Constitution. Id. at 1369-70. The Court also found that voters had been inadequately educated about the new law, particularly the information that registered voters are no longer required to have an excuse for not voting in person in order to vote an absentee ballot by mail. Id. at 1364. D.
The General Assembly Responded to This Court’s Concerns by Enacting the 2006 Photo ID Act. In direct response to this Court’s October 18, 2005 Order, during the 2006
Regular Session, the General Assembly enacted amendments to O.C.G.A. § 21-2-417 and added a provision in O.C.G.A. § 21-2-417.1 (collectively, “the 2006 Photo ID Act”). While the legislature maintained the requirement for the presentation of a government-issued photo ID for in-person voting, the new legislation provides that for voters who need them, free photo ID cards are available from the DDS service centers and from every county. O.C.G.A. §§ 21-2-417 & -417.1; see also id. § 40-5103(d). First, voters may continue to obtain photo ID cards suitable for in-person voting from any of the State’s now-60 DDS service centers. O.C.G.A. § 40-5103(d); (see also Declaration of Thomas Blake Ussery (“Ussery Decl.”) ¶¶ 5- 7 & Exs. 1-2 (attached as Tab B to State Defs.’ Appendix of Exhibits).) Second, each county board of registrars must provide at least one place in their respective counties 13
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 17 of 71
where photo ID cards may be issued to registered voters who do not already have a valid license or identification card issued by DDS. O.C.G.A. § 21-2-417.1(a). The 2006 Photo ID Act required the State Election Board to provide each county board of registrars with “the necessary equipment, forms, supplies, and training” for the production of the photo ID cards. O.C.G.A. § 21-2-417.1(g). The General Assembly appropriated $800,000 to the State Election Board to provide for the purchase and installation of equipment to produce photo ID cards in every county voter registrar’s office, the training for the registrars to operate the equipment, and voter education concerning the issuance of the photo ID cards; that amount has been sufficient to enable the State Election Board to meet those requirements. (See Declaration of Claud L. McIver, III (“McIver Decl.”) ¶ 4 (attached as Tab C to State Defs.’ Appendix of Exhibits).) The 2006 Photo ID Act was submitted to the United States Department of Justice as required by Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and was precleared by letter dated April 21, 2006. (A copy of the preclearance letter for the 2006 Photo ID Act is attached as Exhibit E to Plaintiffs’ Memorandum.)
14
Case 4:05-cv-00201-HLM
E.
Document 119
Filed 07/10/2006
Page 18 of 71
The State Election Board Has Enacted Regulations Providing for the Administration of the Issuance of Free Photo IDs Under the 2006 Photo ID Act. The 2006 Photo ID Act also authorized the State Election Board to adopt rules
and regulations for the administration of the issuance of photo ID cards. O.C.G.A. § 21-2-417.1(h). In accordance with that authority, on June 19, 2006, the State Election Board adopted regulations providing for the documentation required for the issuance of free photo ID cards to registered voters who do not already possess a valid photo ID for in-person voting. Ga. Comp. R. & Regs. r. 183-1-20-.01 (2006) (copy attached to Pls.’ Mem., Ex. A); see also McIver Decl. ¶ 7 & Ex. 1. The regulations were precleared under Section 5 by the United States Department of Justice by letter dated June 27, 2006. (A copy of this preclearance letter is attached as Exhibit H to Plaintiffs’ Memorandum.) In adopting the regulations, and in particular the type of documentation needed to obtain a free Voter Identification Card (“VIC”), the State Election Board included the types of identifying documents that might be readily available to voters and easily identifiable by registrars. (McIver Decl. ¶ 8.) While a voter can present a photo ID card such as that issued by a nursing home, employer, housing authority, agency which provides any benefits, or building access card, a nonphoto identity document such as a copy of a voter registration application (available at the voter registrar’s
15
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 19 of 71
office), tax return, paycheck stub, Medicare or Medicaid statement, or social security benefits statement can also be presented. Ga. Comp. R. & Regs. r. 183-1-20.01(4)(b)1. & 2. (2006). F.
There Are at Least 221 Locations Statewide Where Photo ID Cards Are Available Free of Charge for Registered Voters Who Choose to Vote In Person and Do Not Currently Have a Valid Photo ID. The 2006 Photo ID Act provides that each registrar’s office in Georgia’s 159
counties will have the necessary equipment to produce a voter photo ID card free of charge to any registered voter who does not presently have a valid Georgia driver’s license or state-issued photo ID card that would be acceptable for identification at the polls. Counties also have the ability to purchase additional equipment and add other locations where free photo ID cards are available. (McIver Decl. ¶ 6(a).) Fulton County has obtained two additional machines for its North and South Fulton County service centers (in addition to the one in its main office in downtown Atlanta) and has ordered an extra unit to take to locations such as nursing homes. (Declaration of Gloria W. Champion (“Champion Decl.”) ¶¶ 8-9 (attached as Tab E to State Defs.’ Appendix of Exhibits).) DeKalb County has purchased one additional machine to produce photo ID cards at locations such as nursing homes for people who might have some difficulty in getting to the registrar’s office. (Declaration of Linda W.
16
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 20 of 71
Latimore (“Latimore Decl.”) ¶ 10 (attached as Tab F to State Defs.’ Appendix of Exhibits).) In addition, state photo ID cards may be obtained free of charge at any one of 60 DDS service center locations, including three service centers in Fulton County (one located within the City of Atlanta) and two service centers in DeKalb County. (See Ussery Decl. ¶ 7.) That is a total of at least 221 locations statewide (including five DDS service centers and four county offices in Fulton and DeKalb Counties); voters have the option of obtaining a free photo ID card at any one of the DDS service centers in the state or at any location designated by his or her county registrar. (Id. ¶ 7 & Ex. 1.) G.
The State Election Board and Others Have Undertaken Substantial Efforts to Train Local Election Officials and Educate Voters Concerning the Requirements of the 2006 Photo ID Act. The efforts to implement the 2006 Photo ID Act have already been substantial.
Following preclearance of the 2006 Photo ID Act on April 21, 2006, the State Election Board immediately set about fulfilling its purchasing, training, and education obligations. (McIver Decl. ¶ 5.) The State Election Board first initiated and completed the equipment purchasing process, which culminated in the distribution of equipment to each county. (Id. ¶ 6(a).) That equipment has been installed and is operational in all 159 county registrar’s offices, and registrars have
17
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 21 of 71
been issuing photo ID cards since June 30, although demand has been exceedingly low. (Id. ¶¶ 6(a), 10; Second Declaration of Lynn Bailey (“Bailey Second Decl.”) ¶ 10 (attached as Tab G to State Defs.’ Appendix of Exhibits); Champion Decl. ¶¶ 1011; Second Declaration of Lynn Ledford (“Ledford Second Decl.”) ¶¶ 10, 12 (attached as Tab H to State Defs.’ Appendix of Exhibits); Second Declaration of Gary Smith (“Smith Second Decl.”) ¶¶ 9, 11 (attached as Tab I to State Defs.’ Appendix of Exhibits); Second Declaration of Shea Hicks (“Hicks Second Decl.”) ¶¶ 9, 11 (attached as Tab J to State Defs.’ Appendix of Exhibits).) In addition, the training of all registrars has been completed. A mass training session was held at the Voter Registrars Association of Georgia on May 22-24, 2006, which was attended by representatives of 157 of the 159 county registrars. (McIver Decl. ¶ 6(c).) Many counties have also received on-site training from the vendor, as may have been required by the needs of the particular county. (Id.) Counties have also trained their own workers on the operation and use of the machinery which produces the photo ID cards and the requirements of the 2006 Photo ID Act. (Champion Decl. ¶ 10; Latimore Decl. ¶ 4(a).) The State Election Board has also instituted voter education efforts. The Board produced an educational piece which is to be handed out during early voting (beginning today, July 10) and at the polls on July 18, primary election day. (McIver
18
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 22 of 71
Decl. ¶ 11 & Ex. 2.) The State Election Board’s education piece tells those voters what forms of photo ID are acceptable, one of which they may already have. It also tells voters how to get a free photo ID card from their county registrar or the DDS. Finally, the piece advises all voters that every registered voter is permitted to vote absentee by mail without a photo ID and without an excuse. (Id.) The counties have been instructed to distribute the letters during early voting and at the polls on July 18. (Id. ¶ 12.) For smaller counties, the State Election Board has provided the letter template, supplied the paper to the counties, and instructed them to print the letters for distribution during early voting and on July 18. (Id.) The State Election Board has also made and aired public service announcements on television and radio providing information about the need to bring photo IDs to the polls, the types of photo ID that are acceptable, how to get a free VIC or identification card from the DDS, and the ability of all voters to vote an absentee ballot by mail without having to provide an excuse or photo ID. (Id. ¶¶ 1822.) In addition to the education piece to be handed out to voters, and the television and radio spots which have already aired, the State Election Board has begun working on a brochure to send to voters with a target distribution date of September 1, 2006. Like the other education pieces, this brochure will also inform voters about the need to bring photo IDs to the polls, the types of photo ID that are acceptable,
19
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 23 of 71
how to get a free identification card, and the ease of voting an absentee ballot by mail without an excuse or photo ID. (Id. ¶ 23.) The counties have also undertaken efforts to publicize the 2006 Photo ID Act. For example, in Forsyth County, election officials have sent letters to voters who did not show one of the acceptable forms of photo ID in the 2004 election (292 of the 50,000 voters) and have held meetings with senior citizens and included information in the county residents’ water bills to educate them about the photo ID requirements and absentee voting. (See Smith Second Decl. ¶ 3(b).) H.
Plaintiffs Misrepresent the Number of Persons Lacking Proper Identification to Vote In Person. Plaintiffs have attached to their brief press releases from the Secretary of
State’s office, which imply that more than 600,000 persons statewide lack the identification to vote in person at the polls on July 18. (See Pls.’ Mem., Exs. B & C.) However, the numbers contained in those exhibits do not in fact represent the number of registered voters who lack one of the acceptable forms of photo ID for in-person voting; moreover, even a cursory examination of the list reveals that the numbers themselves are unreliable. First, the numbers which Plaintiffs cite do not reflect the number of registered voters who lack an acceptable form of photo ID for in-person voting. O.C.G.A. § 21-2-417.1(a)-(b) provides that a registered voter may obtain a voter 20
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 24 of 71
photo ID free of charge if he or she does not presently have a Georgia driver’s license or state-issued photo ID card that would be acceptable at the polls. Because only those registered voters who lack a valid driver’s license or DDSissued photo ID are eligible for the voter identification card issued by the counties, the Secretary of State’s office attempted to determine the number of persons who might be eligible for receiving that free photo ID card. The Secretary of State’s office therefore sent to the DDS a database containing a compilation of the voter registration rolls on file for Georgia’s 159 counties, so that such list could be “compared” to the DDS database of persons who have been issued driver’s licenses or DDS-issued photo ID cards. (See Second Declaration of Cathy Cox (“Cox Second Decl.”) ¶ 4 (attached as Tab K to State Defs.’ Appendix of Exhibits).) Although the Secretary of State’s office has the concurrent authority to remove deceased voters from those roles, the individual rolls of registered voters are in large part maintained by the counties, and their level of performance in terms of keeping the list current varies. (Id.) Armed with the composite registration list, the DDS then did a “comparison” between the list of registered voters and the DDS database showing who had been issued driver’s licenses or DDS-issued photo ID cards. (Id.) According to the Secretary of State’s press release, about 675,000 registered voters
21
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 25 of 71
did not “match” when the DDS compared them to the database of issued driver’s licenses or DDS-issued photo ID cards. (See Pls.’ Mem., Ex. B.) The Secretary of State did not participate in the comparison and has no direct knowledge of how the match was performed. (Cox Second Decl. ¶¶ 5-6.) However, even if that database comparison were accurate, which it is not for the reasons discussed below, the results of the comparison would do nothing to prove the number of registered voters who do not possess any acceptable form of photo ID for in-person voting. (See id. ¶ 3 (“I do not know how many registered voters lack the identification required for in-person voting at the polls.”).) In order to reasonably arrive at that number, a comparison would also have to be performed between the registered voter list and (1) the databases of all agencies and branches of the United States that issue photo IDs, (2) the databases of all state government agencies that issue photo IDs, (3) the databases of all federal and Georgia state and county government agencies that issue photo IDs to their employees, (4) the databases of United States military branches that issue photo IDs, and (5) the databases of Native American tribes that issue photo IDs. See O.C.G.A. § 21-2417(a). There are a number of photo IDs other than Georgia driver’s licenses and DDS-issued photo ID cards which are not encompassed within the exhibits relied
22
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 26 of 71
upon by Plaintiffs, but which can provide identification for registered voters to vote in person. Second, even the most cursory review of the results of the database comparison between the list of registered voters provided and the DDS-driver’s license/identification card list reveals the inaccuracy of the “match” performed. Counsel for State Defendants – three people – spent a short time reviewing the “match” list and found numerous persons who were registered voters who in fact had driver’s licenses. (See, e.g., Declarations of Senator Jeff E. Mullis, Alisa Heiman Aczel, Virginia Balfour, Merideth Lynne Blackburn, Shiriki Lean Cavitt, Cynthia Hinrichs Clanton, Ruby J. Kajumba, Bradley J. Lewis, Mary R. McCauley, Jeffrey R. Mueller, Shereen M. Walls, Stefan Passantino, Oscar N. Persons, Joel M. Rainer, Joan M. Ransom, Hank Richardson, and DeWitt R. Rogers (attached as Tabs L-BB to State Defs.’ Appendix of Exhibits).) The appearance of these people on the list makes clear that the list, relied upon by Plaintiffs, is inaccurate and therefore unreliable. Finally, the small number of persons who have sought free photo ID cards since they have become available belies the argument that a large number of persons lack the necessary photo identification to vote in person. (See McIver Decl. ¶¶ 10, 24; Bailey Second Decl. ¶ 11; Champion Decl. ¶ 10; Hicks Second Decl.
23
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 27 of 71
¶ 11; Ledford Second Decl. ¶ 12; Smith Second Decl. ¶ 11; “Voters in no hurry to get IDs,” Rome News-Tribune, July 2, 2005 (attached as Tab D to State Defs.’ Appendix of Exhibits).) For example, Gloria Champion, the Executive Director for the Fulton County Department of Voter Registration and Elections, states that based upon the number of limited inquiries she has received about the free photo ID cards and her 26-year experience in that office, she believes the equipment already provided by the State of Georgia to Fulton County will be sufficient to fulfill the amount of anticipated requests for the photo ID cards. (See Champion Decl. ¶¶ 2, 12; see also Smith Second Decl. ¶ 9; Ledford Second Decl. ¶ 15; Hicks Second Decl. ¶ 9.) I.
The Concerns Expressed by Plaintiffs’ Declarants Either Do Not Apply to the 2006 Photo ID Act, Were Formulated Before the Adoption of the State Election Board Regulations, or Are Unwarranted Based Upon Current Georgia Law. Many of the declarations relied upon by Plaintiffs to support their contention
that the 2006 Photo ID Act imposes an undue burden were executed by those declarants when the provisions of the 2005 Photo ID Act were in effect; because the photo IDs are now free and more widely available, these declarations are no longer relevant. (See Pls.’ Mem. at 20, nn.11-12; see also Declaration of Martina Robinson.) In addition, a number of Plaintiffs’ declarants executed their declarations before the adoption of the State Election Board rules and regulations, so their concern about not possessing identity documents necessary to be issued a 24
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 28 of 71
free photo ID card or not knowing what constitutes an acceptable nonphoto identity document is no longer relevant. (See, e.g., Declarations of Annie Johnson, George Cliatt, Irene Laster, Larry Dewberry, Minnie Bridges, Pearl Kramer, and Rosa Brown; McIver Decl. ¶ 9(a).) The registrars have all been provided with the rules, which themselves allow a broad range of acceptable documents to be provided to obtain a free photo ID card, and a voter merely needs to telephone his or her registrar’s office to find out what is needed. (McIver Decl. ¶ 9(a).) Local election officials have also been active in providing this information, which has occurred since these declarations were executed in late April and early May. (Champion Decl. ¶¶ 11; Smith Second Decl. ¶ 3(b); Latimore Decl. ¶ 4(b); Ledford Second Decl. ¶ 13; Bailey Second Decl. ¶ 3(b); Hicks Second Decl. ¶ 3(b).) Several of Plaintiffs’ declarants state that they do not live near a DDS office, do not know where to obtain a photo ID card, do not have a birth certificate, have lost their voter registration card, or do not know where to get the documents needed for a free photo ID card. None of these concerns are valid because the Board regulations provide that the registrar’s offices will be at least one location for the issuance of free photo ID cards. At present, all registrars are producing the photo ID cards at their offices; in some of the larger counties, registrars are also making the cards available at satellite offices or through mobile units which will
25
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 29 of 71
travel to places where some members of the public will have difficulty in traveling, like nursing homes. Moreover, the regulations themselves indicate that no birth certificate or voter registration card is needed to obtain a free photo ID card; in fact, if the registrar has a copy of the voter’s registration on file, that document can suffice to show the voter’s name, address, and date of birth. Several of the declarations offered by Plaintiffs show that the declarant fears there are other fees associated with getting the documentation needed for a photo ID card, but there are no such fees. All voters eligible for a free photo ID card can use copies of documents that do not cost anything and are readily available to a voter (e.g., Medicare or Medicaid statement, voter registration application, annual social security statement, etc.). See Ga. Comp. R. & Regs. r. 183-1-20-.01(4)2; McIver Decl. ¶ 9(c). One declarant admits that she has the necessary document to get a free photo ID card, but does not want to travel to obtain it and will not vote an absentee ballot by mail because she wants to be able to “keep abreast of events” close to the primary. (See Declaration of Eleanor Whittenberg.) While that is a personal choice, it does not rise to a constitutional right. Plaintiff Williams complains that she does not consider absentee voting to be “an acceptable substitute” for in-person voting because “several years ago” some voters did not receive their ballots in
26
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 30 of 71
time. While that experience was unfortunate, there is no evidence that this problem is occurring today, and the election official for Ms. Williams’ county reports immediate compliance with sending out absentee ballots to voters after their applications have been received. (Champion Decl. ¶ 16.) Plaintiffs take completely contrary positions with respect to the regulations adopted by the State Election Board. On the one hand, they argue that the regulations are “too loose” and insufficient to prevent voter fraud because an applicant for a free photo ID card can establish his or her identity by the mere presentation of their voter registration application.4 (See Pls.’ Mem. at 3, 17-18.) On the other hand, Plaintiffs present declarations of people who say they don’t know if they have the necessary documents to obtain the free photo ID card. The Board regulations in fact make it simple for an already registered voter to obtain the necessary photo ID for in-person voting should that voter not already have an acceptable photo ID in his or her possession.
4
Plaintiffs erroneously contend that an applicant for a free photo ID card would have to complete a new voter registration application when arriving at the registrar’s office to be able to rely on that piece of identification as a “nonphoto identity document” under the Board rules. That is untrue because registrars will have a copy of the voter’s registration application on file, which itself can be used as the required “nonphoto identity document” should the voter not have a photo identity document. See Ga. Comp. R. & Regs. r. 183-1-20-.01(4)(b)2.(iii). 27
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 31 of 71
Finally, two of the declarants are Democratic members of the General Assembly who complain about partisanship in the legislature. (See Declarations of DuBose Porter and Sam Zamarippa.) This supports State Defendants’ contention that Plaintiffs’ challenge is, in reality, a political dispute and not a legal one. Furthermore, those declarants’ testimony about the intent of the legislation is inadmissible. See Fulton County v. Dangerfield, 260 Ga. 665, 667 (1990); Jackson v. Delk, 257 Ga. 541, 543 (1987); Stewart v. Atlanta Beef Co., 93 Ga. 12, 18 (1893), quoted in S. Ry. Co. v. A.O. Smith Corp., 134 Ga. App. 219, 221 (1975); see also Goldrush II v. City of Marietta, 267 Ga. 683, 692 (1997) (“Judicial inquiry into legislative motives or purposes is a ‘hazardous matter,’ for what motivates one legislator to make a comment about a law is not necessarily what motivates fellow legislators to enact the law.”). J.
Notwithstanding the Questionable Merits of Her Conclusion, the Declaration of Sheryl Gowen Should Be Rejected Because It Proceeds From the Faulty Assumption That An Absentee Ballot Voter is Personally Required to Complete the Application Attached to Her Declaration in Order to Vote an Absentee Ballot. Plaintiffs have presented the Declaration of Sheryl Gowen, a faculty member
of the College of Education at Georgia State University, for the proposition that 54% of the adult population in Georgia is incapable of “reading, comprehending, or completing” a particular application for absentee ballot which she has reviewed.
28
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 32 of 71
The Gowen Declaration should be rejected because it is entirely based on the faulty assumption that completion of the application attached as her “Exhibit B” by a registered voter is the only way that a voter can receive an absentee ballot to vote by mail. Apparently, Dr. Gowen was not even aware of the applicable Georgia law which does not require the completion of any particular form to receive an absentee ballot: The application [for an absentee ballot] shall be in writing and shall contain sufficient information for proper identification of the elector; the permanent of temporary address of the elector to which the absentee ballot shall be mailed; the identity of the primary, election, or runoff in which the elector wishes to vote;5 the reason for requesting the absentee ballot, if applicable;6 and the name and relationship of the person requesting a ballot if other than the elector. O.C.G.A. § 21-2-381(a)(1)(C). The request for an absentee ballot only has to be in writing; it can be written on a blank piece of paper, and no specific form is required. A voter need only include his or her name, address, and the election they seek to vote in. (See Champion Decl. ¶ 14 (“Any voter who makes a request for an absentee in writing that contains enough information for us to verify that the 5
A registered voter with a disability or of advanced age may request on one application an absentee ballot for the entire election cycle and does not have to submit a separate request for each election. O.C.G.A. § 21-2-381(a)(1)(H). 6
Of course, based upon the change to the absentee ballot law in 2005, no reason need be given to vote an absentee ballot by mail. See O.C.G.A. § 21-2-380(b). 29
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 33 of 71
person is a registered voter and their address receives a ballot.”).) Other local election officials confirm that they have not experienced problems with the application, but, in any event, a simple written request suffices. (Bailey Second Decl. ¶ 13; Hicks Second Decl. ¶ 13; Latimore Decl. ¶ 15; Ledford Second Decl. ¶ 17; Smith Second Decl. ¶ 13.) Most adults without a college degree or high school diploma should be able to write their name, address, and the primary or election they seek to vote in. Dr. Gowen was also apparently unaware that the request for an absentee ballot does not have to be made by the registered voter if that voter is unable to complete a request due to illiteracy. “If the elector is unable to fill out or sign such elector’s own application because of illiteracy or physical disability, the elector shall make such elector’s mark, and the person filling in the rest of the application shall sign such person’s name below it as a witness.” O.C.G.A. § 21-2381(a)(1)(F). A relative may also apply for an absentee ballot for the actual registered voter. O.C.G.A. § 21-2-381(a)(1)(E). Thus, Dr. Gowen’s declaration should be rejected as it is based on completely flawed suppositions which are contrary to Georgia law.
30
Case 4:05-cv-00201-HLM
K.
Document 119
Filed 07/10/2006
Page 34 of 71
The Temporary Restraining Order Issued by the Superior Court of Fulton County on July 7, 2006. State Defendants notified this Court by the filing of its Motion to Dismiss
Plaintiffs’ Motion for Preliminary Injunction on Friday evening that the Superior Court of Fulton County has issued a temporary restraining order (“TRO”), prohibiting the Governor and the State Election Board from requiring one of the six forms of photo ID enumerated in the 2006 Photo ID Act during the July 18, 2006 primary and following run-off election. (Lake v. Perdue, No. 2006CV119207, Order of July 7, 2006 (attached as Ex. 1 to State Defs.’ Mot. to Dismiss [docket no. 113]).) Instead, the TRO provides the same relief that this Court initially granted in its October 18, 2005 preliminary injunction against the 2005 Photo ID Act, namely, that the State be required to permit the showing of any of the seventeen forms of identification or to sign the affidavit authorized by Georgia law prior to the 2005 amendment. The State defendants in that case this morning filed an Emergency Motion with the Georgia Supreme Court to stay the TRO. The parties to that case expect to receive notification of the ruling on the emergency motion prior to this Court’s scheduled hearing on July 12. In the event that motion is unsuccessful, there would be no need for this Court to hold the hearing, as the relief sought by
31
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 35 of 71
Plaintiffs here with respect to the primary and run-off election will be in place,7 as has been acknowledged by the Court’s Order issued today. III. ARGUMENT AND CITATION OF AUTHORITY Plaintiffs have failed to satisfy the prerequisites for obtaining the “extraordinary and drastic” remedy of preliminary injunctive relief, especially as asserted against a state government. To obtain a preliminary injunction, the movant must demonstrate “(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest.” Zardui-Quitana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). Eleventh Circuit law is clear that injunctive relief is an extraordinary remedy, and a litigant is not entitled to a preliminary injunction unless he has proven all four prerequisites. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1240 (11th Cir. 2005); Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993); Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (“A preliminary injunction is an extraordinary and drastic remedy not to be 7
Indeed, if the plaintiffs in the Lake case secure a permanent injunction from the Superior Court, no further proceedings in this case would be required. 32
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 36 of 71
granted until the movant clearly carries the burden of persuasion as to the four prerequisites.”); United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (same). Plaintiffs have a particularly heavy burden in this case because they seek to enjoin enforcement of a state statute. “[P]reliminary injunctions of legislative enactments – because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits – must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.” Ne. Fla. Chapter, 896 F.2d at 1285. When a movant seeks to enjoin a government agency, “his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own affairs.” Rizzo v. Goode, 423 U.S. 362, 378-79 (1976). “This ‘well-established’ rule bars federal courts from interfering with nonfederal government operations in the absence of facts showing an immediate threat of substantial injury.” Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1372 (N.D. Ga. 2002) (quoting Midgett v. Tri-County Metro. Dist. of Or., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999)). As the Supreme Court of the United States has instructed:
33
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 37 of 71
Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 425-26 (1961) (emphasis added). A.
Plaintiffs Are Not Substantially Likely to Succeed on the Merits. Plaintiffs are not entitled to a preliminary injunction because they cannot
prove a substantial likelihood of success on the merits of any of the claims raised in their Second Amended Complaint. 1.
The 2006 Photo ID Act Does Not Violate Equal Protection by Unduly Burdening Plaintiffs’ Right to Vote.
In Count Two of the Second Amended Complaint, Plaintiffs contend that the 2006 Photo ID Act imposes an “undue burden” on their right to vote not justified by any “substantial and compelling state interest” and, therefore, is in violation of equal protection. (Second Am. Compl. ¶ 90.) This language connotes that strict scrutiny should apply. In Dunn v. Blumstein, 405 U.S. 330 (1972), however, strict scrutiny was applied because the challenged law absolutely denied some citizens of any right to vote – both in person and absentee. 405 U.S. at 337, 341 (citing
34
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 38 of 71
Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 n.6, 627 (1969) (“The present appeal involves an absolute denial of the franchise.”)). Georgia’s 2006 Photo ID Act does not deny the right to vote to any registered voter. By asserting in their Complaint that strict scrutiny should apply, Plaintiffs “proceed[ ] from the erroneous assumption that a law that imposes any burden on the right to vote must be subject to strict scrutiny.” Burdick v. Takushi, 504 U.S. 428, 432 (1992). The Supreme Court, however, has emphasized that its “cases do not so hold.” Id. For cases in which the voting restriction is only a “reasonable, nondiscriminatory” law and not a “severe” burden denying anyone’s right to vote, strict scrutiny is inappropriate, and the equal protection challenge should be reviewed under the rational basis test. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (“[A] court must resolve [an election law] challenge by an analytical process that parallels its work in ordinary litigation.”), cited in Burdick, 504 U.S. at 434; McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 809 (1969) (“The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end . . . .”); Ind. Democratic Party v. Rokita, No. 1:05-CV-0634-SEB-VSS, 2006 U.S. Dist. LEXIS 20321, at *191 (S.D. Ind. Apr. 14, 2006) (emphasizing that the absence of legislative facts to support Indiana’s photo ID law “has no significance in rational-basis analysis”); Colo. Common
35
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 39 of 71
Cause v. Davidson, No. 04CV7709, 2004 WL 2360485, at *3 (D. Colo. Oct. 18, 2004) (“[T]he state’s important interest in holding structured elections will generally trigger only a rational relationship kind of review . . . .”). Once Plaintiffs’ claims are reviewed under the rational basis test, it is clear that the 2006 Photo ID Act must be upheld as a reasonable, nondiscriminatory law rationally related to the State of Georgia’s legitimate, and even important, regulatory interest in eliminating the potential for voter fraud at the polls. a.
Plaintiffs’ Equal Protection Claim Must Be Reviewed Under the Rational Relationship Test, Not Strict Scrutiny.
Although “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens,” that right “is not absolute.” Dunn, 405 U.S. at 336. In fact, “the right to vote . . . is a right that has meaning only in a highly regulated social context.” Colo. Common Cause, 2004 WL 2360485, at *2. “Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.” Burdick, 504 U.S. at 433. The authority to regulate elections, including “the initial task of determining the qualifications of voters,” is given to the states, and “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 729-30 (1974) (citing U.S. Const. art. I, § 2, cl. 1); see also Dunn, 36
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 40 of 71
405 U.S. at 336 (“States have the power to impose voter qualifications, and to regulate access to the franchise in other ways.”); Rokita, 2006 U.S. Dist. LEXIS 20321, at *116 (“Pursuant to Art. I, § 4, cl. 1, ‘state legislatures may, without transgressing the Constitution, impose extensive restrictions on voting.’”) (quoting Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004)). Election laws will invariably impose some burden upon individual voters. Each provision of a code, “whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects – at least to some degree – the individual’s right to vote and his right to associate with others for political ends.” Burdick, 504 U.S. at 433 (emphasis added) (quoting Anderson, 460 U.S. at 788). Because state regulation is necessary to ensure that voting is fair and honest, “[s]tate election laws are, generally, not subject to strict scrutiny review.” League of Women Voters v. Blackwell, 340 F. Supp. 2d 823, 829 (N.D. Ohio 2004) (citing Burdick, 504 U.S. at 433). “[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Burdick, 504 U.S. at 433. In fact, “strict scrutiny of an election law is not warranted merely because it may prevent some otherwise eligible voters from exercising that right” because “[a]ny election restriction is going to exclude, either de jure or de facto, some people from voting . 37
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 41 of 71
. . .” Rokita, 2006 U.S. Dist. LEXIS 20321, at *119 (quoting Griffin, 385 F.3d at 1130). In deciding what level of scrutiny to apply to a challenged state election law, the Supreme Court has prescribed a balancing test where “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments” are weighed against “the precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. Under this balancing test, only when the restrictions placed on voting rights are “severe” will the regulation be subjected to strict scrutiny. Burdick, 504 U.S. at 434. “[W]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters,” the rational basis test is applied, and “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788). Plaintiffs’ new argument that “reasonable” is somehow a higher standard than “rational,” although novel, is without any legal merit and is nothing more than a transparent attempt to change the rules midcourse. In fact, in Anderson v. Celebrezze itself, the case which Plaintiffs cite for their proposition, the Supreme Court emphasized that a federal court must resolve election law challenges “by an
38
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 42 of 71
analytical process that parallels its work in ordinary litigation,” 460 U.S. at 789, and the Supreme Court’s decisions contemplate that reasonableness is equivalent to rationality. See, e.g., McGowan, 366 U.S. at 426 (stating that, under the rational basis test, a law “will not be set aside if any state of facts reasonably may be conceived to justify it”). Other federal courts reviewing voter ID laws have likewise recognized the traditional analysis. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *191; Colo. Common Cause, 2004 WL 2360485, at *3. If anything, additional deference to the legislature’s judgment is warranted in this case: [I]n examining an election regulation aimed at combating fraud, courts are well advised to pay additional deference to the legislative judgment because “the striking of the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which we judges should not interfere unless strongly convinced that the legislative judgment is grossly awry.” Rokita, 2006 U.S. Dist. LEXIS 20321, at *131 (quoting Griffin, 385 F.3d at 1131). Because the photo ID requirement does not impose a “severe” restriction on voting rights, the State of Georgia must show only that the requirement bears a rational relationship to a legitimate state interest in order to survive Plaintiffs’ challenge.
39
Case 4:05-cv-00201-HLM
b.
Document 119
Filed 07/10/2006
Page 43 of 71
The 2006 Photo ID Act’s “Reasonable, Nondiscriminatory” Restrictions Are Justified by the State of Georgia’s Important Interest in Preventing Voter Fraud.
When reviewed under the rational relationship test, it is clear that the 2006 Photo ID Act’s reasonable, nondiscriminatory restrictions are justified by the State’s regulatory interests in preventing voter fraud at the polls – interests which are not only legitimate but also “important.” Wexler v. Anderson, No. 04-16280, 2006 U.S. App. LEXIS 15080, at *17 (11th Cir. June 20, 2006) (“When a state election law imposes only ‘reasonable, nondiscriminatory restrictions’ upon voters’ rights, the ‘state’s important regulatory interests are generally sufficient’ to sustain the regulation.”) (quoting Burdick, 504 U.S. at 434); see, e.g., Rokita, 2006 U.S. Dist. LEXIS 20321, at *130 (emphasizing that a state “has an important interest in preventing voter fraud”); Common Cause/Georgia, 406 F. Supp. 2d at 1366 (stating that curbing voter fraud undoubtedly is an “important” interest). i.
The 2006 Photo ID Act Has Remedied the Burdens Which This Court Found the Prior Law Imposed, Such That Plaintiffs’ Asserted Injury, If Any, Is Now Slight.
The 2006 Photo ID Act has removed the burdens on which the Court based its October 18, 2005 preliminary injunction, and the restrictions that the new law places on voting do not deny any Georgia voter his or her right to vote; Plaintiffs’ injury, if any, is now slight. Any registered voter who does not possess a photo ID
40
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 44 of 71
can obtain one free of charge at the voter registrar’s office in his or her own home county, or additional county designated offices, or any of the 60 DDS service centers throughout Georgia. That some currently registered voters might need to visit one of those offices in order to obtain a photo ID card to vote in person is not a burden which supports striking down the law. See Franklin v. Harper, 205 Ga. 779, 791-92 (1949) (upholding a Georgia law which required voters to re-register, stating that “[i]t may be that those voters who are now on the permanent voters’ list will be put to great inconvenience in registering again, but this standing alone is not a sufficient reason to strike down the act”).8 Additionally, the 2006 Photo ID Act applies only to registered voters who vote in person. Any registered voter may still vote by mail without presenting a photo ID; for those who wish to vote by mail, the Georgia law now makes it easier to vote because the prior requirement that any voter seeking an absentee ballot had to claim one of certain provided reasons for not voting in person has been repealed. See O.C.G.A. § 21-2-380(b). This makes any burden imposed by the 2006 Photo ID Act even less than the burden imposed by the Indiana photo ID law, recently 8
The facts in Harman v. Forssenius, 380 U.S. 528 (1965), cited by Plaintiffs, are much different than the circumstances before the Court. The Supreme Court emphasized in Harman that the required voter’s certificate would have required annual trips to a city or county office and the certificate would have to be filed six months before the election. See id. at 541.
41
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 45 of 71
upheld by another federal district court; to vote absentee in Indiana one must still claim an exception why he or she cannot vote at the polls. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *17 n.10, *147 (citing Ind. Code § 3-11-10-24). In Georgia, those who fail to vote by mail and wish to vote at the polls on Election Day, but do not have a photo ID, may vote a provisional ballot, obtain a photo ID, and present that identification within two days after the election. See O.C.G.A. §§ 21-2-417 & -419. Furthermore, in implementing the 2006 Photo ID Act, the State Election Board has taken great efforts to inform Georgia voters of the new requirements, addressing another one of the burdens that the Court said the 2005 Photo ID Act imposed. (McIver Decl. ¶¶ 6-7, 10.) All equipment necessary for the production of free photo ID cards in each county registrar’s office has been distributed and installed, and registrars have begin issuing photo ID cards. (McIver Decl. ¶¶ 6, 7, 10; Bailey Second Decl. ¶¶ 9-10; Champion Decl. ¶ 8-10; Hicks Second Decl. ¶¶ 9-11; Ledford Second Decl. ¶¶ 10-12; Smith Decl. ¶¶ 9-11.) In addition, in conjunction with a mass training session held May 22-24, the training of all registrars under 2006 Photo ID Act has been completed. (McIver Decl. ¶ 7.) Many counties have also received on-site training from the equipment vendor, as may have been required by the needs of the particular county. (Id.) The
42
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 46 of 71
educational effort initiated by the State Election Board has been well underway, printing of educational pieces has occurred, counties have been instructed as to their use, and advance voting began today, July 10. (Id. ¶¶ 11-13 & Ex. 1.) Ultimately, now that a new photo ID requirement has been enacted to address the Court’s concerns with the prior law, it is obvious that Plaintiffs’ principal asserted injury is that some individuals who lack a photo ID would prefer not to vote absentee by mail.9 Such an asserted injury is not a sufficient basis for striking down the law, much less resorting to the drastic remedy of a preliminary injunction. In fact, the U.S. Constitution grants “to the States a broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ U.S. Const. art. I, § 4, cl. 1, which power is matched by state 9
Plaintiffs’ disparate impact argument that the asserted injury is great because it will fall disproportionately on minorities is based solely on presumptions rather than any reliable evidence and is an attempt to bootstrap a Voting Rights Act Section 2 claim onto their equal protection claim. (Compare Second Am. Compl. ¶ 62 with id. ¶ 105.) As the Court emphasized in its October 18, 2005 Order after reciting Plaintiffs’ socio-economic data, At this point, however, the Court simply cannot agree with Plaintiffs that the evidence is sufficient to demonstrate that Plaintiffs have a substantial likelihood of succeeding on the merits with respect to their § 2 vote denial claim. The Court therefore is reluctant to grant preliminary injunctive relief to Plaintiffs based on their § 2 vote denial claim. Common Cause/Georgia, 406 F. Supp. 2d at 1375. 43
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 47 of 71
control over the election process for state offices.” Rokita, 2006 U.S. Dist. LEXIS 20321, at *115-16 (citation omitted). Pursuant to this authority, the Georgia Constitution provides that the General Assembly shall determine how to conduct voting in this state. See Ga. Const. art. II, § 1, ¶ 1; see also Wheeler v. Bd. of Trustees, 200 Ga. 323, 334 (1946) (“The legislative branch of our government is charged with the duty of providing the manner of holding elections . . . .”) (emphasis added); cf. Ga. Const. art. III, § 6, ¶ 1 (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”); Bryan v. Ga. Pub. Serv. Comm’n, 238 Ga. 572, 573 (1977) (quoting Sears v. State, 232 Ga. 547, 554 (1974)) (stating that unlike the U.S. Congress, which has only delegated powers, the General Assembly’s powers are plenary, and it is “absolutely unrestricted in its power to legislate” unless it undertakes an act prohibited by the Constitution). The General Assembly’s authority in the area of voting includes “wide latitude” in deciding how voter qualifications shall be determined. Franklin, 205 Ga. at 790. Given that (1) the General Assembly and State Election Board have addressed this Court’s concerns as stated in its October 18, 2005 Order and (2) Plaintiffs’ counsel acknowledged that if the General Assembly made photo IDs
44
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 48 of 71
free of charge and available at “reasonably convenient” locations, then there would no longer be a legal basis for a federal equal protection challenge, it seems clear that any injury allegedly caused by the 2006 Photo ID Act is slight indeed. Even in situations where a particular method of voting has been denied entirely, as long as other avenues for voting are permitted, it has been held that no severe restriction exists. As the Supreme Court emphasized in Burdick, “it does not follow, however, that the right to vote in any manner . . . [is] absolute.” 504 U.S. at 433. The federal district court upholding Indiana’s photo ID law similarly explained in its recent decision that “there is no absolute constitutional right to vote in any specific manner an individual may desire . . . .” Rokita, 2006 U.S. Dist. LEXIS 20321, at *115. In McDonald v. Board of Election Commissioners of Chicago, county jail inmates sought to enjoin enforcement of statutes which denied them access to absentee ballots. The Supreme Court distinguished the challenge in McDonald from cases in which individuals were excluded from being allowed to vote: [T]here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants’ claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise . . . . 45
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 49 of 71
394 U.S. at 807-08. Because the Illinois statute did not absolutely bar the right to vote, the Court applied the rational relationship test and held the statute did not violate equal protection: The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. Id. at 809. Indeed, this important distinction between the right to vote and the right to vote in a preferred manner was emphasized by the Supreme Court in Kramer v. Union Free School District, another voting rights case decided less than two months after McDonald: This case presents an issue different from the one we faced in McDonald v. Board of Election Commissioners of Chicago. The present appeal involves an absolute denial of the franchise. In McDonald, on the other hand, we were reviewing a statute which made casting a ballot easier for some who were unable to come to the polls. As we noted, there was no evidence that the statute absolutely prohibited anyone from exercising the franchise; at issue was not a claimed right to vote but a claimed right to an absentee ballot. Kramer, 395 U.S. at 626 n.6 (internal citations omitted) (emphasis added).
46
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 50 of 71
This case presents even lesser burden than the circumstances at issue in McDonald. Unlike the law in McDonald, the 2006 Photo ID Act does not deny any person of his or her right to vote in a particular manner and places no severe burden on the exercise of that right. To the extent that the photo ID requirement imposes any restriction on voting rights, that restriction is very slight. The IDs are free, readily available at convenient locations in all 159 counties, and anyone without a photo ID is entitled to vote absentee by mail without having to claim one of the previously required excuses for why he or she cannot vote at the polls. ii.
The State of Georgia Has an Important Interest in Eliminating the Potential for Voter Fraud.
It is well-established that the State of Georgia has a legitimate and important interest in eliminating the potential for voter fraud and in maintaining the integrity of the election process. See Burdick, 504 U.S. at 441 (stating that “the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system”); League of Women Voters, 340 F. Supp. 2d at 829 (“Few can doubt that deterrence, detection, and avoidance of election fraud are fundamentally important state and public concerns and interests.”); Colo. Common Cause, 2004 WL 2360485, at *3 (“Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same 47
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 51 of 71
compelling state interest, as the Burdick Court expressly recognized when it included the words ‘fair and honest’ at the very beginning of its litany of state interests in structuring elections.”). Ascertaining an individual’s identity before allowing the person to vote is a rational way to guard against voter fraud. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *130 (“It is beyond dispute that Indiana has a compelling interest in ascertaining an individual’s identity before allowing the person to vote. It is also well-established that Indiana has an important interest in preventing voter fraud.”). A substantially similar photo ID law enacted by the State of Indiana was upheld in a decision issued earlier this year. Just like the 2006 Photo ID Act, Indiana’s law requires that registered voters present photo ID at the polls in order to vote. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *13-16. The Indiana federal court held that Indiana’s photo ID requirement for in-person voting was “a constitutionally-valid, reasonable time, place, and manner restriction on voting and on voters.” Id. at *8. The court found that Indiana’s “important regulatory interest” in combating voter fraud was sufficient to justify the “reasonable, nondiscriminatory restrictions” contained in the photo ID law. Id. at *133. Even if there had not been any evidence of voter fraud in Georgia, relevant case law shows that the General Assembly nonetheless validly exercised its
48
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 52 of 71
legislative power in enacting the 2006 Photo ID Act. In Colorado Common Cause v. Davidson, the court considered a challenge to a voter ID law based in part upon the plaintiffs’ contention that the law was unnecessary because actual voter fraud in Colorado had been “rare.” The court concluded that the state’s interest was reasonable regardless of the amount of proven voter fraud, and that it was also reasonable to address potential fraud by requiring more specific voter identification at the polls on Election Day: It may or may not be true, as Plaintiffs claim, that as an historical matter actual voter fraud has been rare in Colorado. But the state has a legitimate, indeed compelling, interest in doing what it can to make sure that last month’s fraudulent or no-longer-eligible registrant does not become next month’s fraudulent voter. Colo. Common Cause, 2004 WL 2360485, at *13. Similarly, in Acorn v. Bysiewicz, the court rejected a constitutional challenge to the Connecticut’s requirement that voters must register at least seven days in advance of Election Day in order to vote, which the state justified by its interest in preventing voter fraud despite evidence that Election Day fraud was not a significant problem: Plaintiffs’ second contention, that electoral fraud is not a large problem under Connecticut’s current regime, was largely (and happily for the voters of Connecticut) supported by the evidence at trial. According to the trial testimony of Mr. Garfield from the Elections Commission, there have been only approximately five substantiated cases of voter fraud per year over the last five years, though it should 49
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 53 of 71
be noted that this witness also testified, without contradiction, that based upon his experience, more voter fraud occurs than is reported . . . . In any event, the precise scale of Connecticut’s voter fraud problem is irrelevant because, under the less exacting scrutiny applicable here, the State is not required to wait until fraud becomes rampant before taking remedial action, and need not provide elaborate empirical verification of its concern. As the Supreme Court has instructed, legislatures should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively. 413 F. Supp. 2d 119, 151 (D. Conn. 2005) (internal citations and quotation marks omitted and emphasis added). iii.
The State’s Interest in Preventing Voter Fraud Makes the Photo ID Requirement for In-Person Voting Necessary.
The State of Georgia’s interest in preventing voter fraud makes the photo ID requirement necessary because the prior method of in-person voter identification provided no meaningful opportunity for the identity of a voter to be questioned. There are no identification requirements for registration. Therefore, the only opportunity to verify a voter’s identity is at the time a ballot is cast. For absentee ballots cast by mail, current law requires the registrar or absentee ballot clerk to compare the identification and signature of the voter on the absentee ballot with the same identifying information on the voter registration and absentee ballot application. See O.C.G.A. § 21-2-386(a)(1)(B). No such procedure existed for inperson voting under prior law, making it more likely to discover fraud perpetrated
50
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 54 of 71
in absentee voting than in in-person voting. Without a photo ID requirement, it would be nearly impossible to catch an imposter who casts a vote for another registered voter on Election Day, especially when that other registered voter does not cast a vote in that election, unless the polling officer knows the actual registered voter by sight.10 State Defendants note the lack of logic in Plaintiffs’ circular argument related to evidence of voter fraud in Georgia. Essentially, Plaintiffs argue that under the previous election laws, which provided that a voter could produce one of seventeen separate types of identification, including an affidavit from the voter that he or she is who they claim to be, there was insufficient evidence of voter fraud to justify any increased scrutiny by the State of this process. In short, Plaintiffs attempt to bootstrap this previous circumstance into an argument that there is no showing of prior voter fraud even though the previous system is a relatively weaker and less effective means of detecting voter fraud than the current system of 10
In response to Plaintiffs’ suggestion that a signature match could be done at the polls, Secretary of State Cathy Cox testified last October that such a process would be extremely time-consuming and that the State does not currently have such technology in place at its polling places. See Common Cause/Georgia, 406 F. Supp. 2d at 1353; Tr. 89-90. Secretary of State Cox’s Second Declaration, as well as the declarations of other state and local election officials, filed contemporaneously with this brief, reiterate the difficulties with signature matching at the polls. (See Cox Second Decl. ¶ 11; Bailey Second Decl. ¶ 12; Champion Decl. ¶ 13; Hicks Second Decl. ¶ 12; Latimore Decl. ¶ 14; Ledford Second Decl. ¶ 16; Smith Second Decl. ¶ 17.) 51
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 55 of 71
requiring government-issued photo IDs. That prior method of voter identification, however, provided no meaningful opportunity for the identity of a voter to be questioned. It is not surprising that there may not be a cavalcade of voter identity fraud cases, given the lack of real verification of identification presented under the previous system. (Bailey Second Decl. ¶ 13.) The “successful” fraud is the one that goes undetected. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *133 (“Plaintiffs’ response to the State’s justification for the voter identification requirements has been that there are no documented cases of in-person voter impersonation in Indiana; that argument misses the point, however, because the State is not required to produce such documentation prior to enactment of a law.”). Finally, Plaintiffs fail to address the deterrent effect that a stronger and more reliable form of voter identification will have on any instances of voter fraud. While the previous system may have provided a lesser deterrent, as noted above, its ability to detect or highlight voter fraud is certainly less effective than the issuance of government-supplied ID cards with their indicia of reliability and the ready ability of poll workers to verify whether the person who appears is actually the registered voter who is entitled to vote. Because the 2006 Photo ID Act bears a rational relationship to the State’s not only legitimate, but also important, interest in preventing voter fraud,
52
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 56 of 71
Plaintiffs’ equal protection claim must fail. The 2006 Photo ID Act is a reasonable, nondiscriminatory restriction justified by the State of Georgia’s important regulatory interests and is necessary to combat potential in-person voter fraud. iv.
That the 2006 Photo ID Act Does Not Include Plaintiffs’ Preferred Methods for Combating Voter Fraud Is Legally Irrelevant.
Plaintiffs contend that “[i]f the motive of the Republican Majority in adopting the [2006 Photo ID Act] had been to prevent fraudulent voting,” it is Plaintiffs’ opinion that more effective measures that could have been adopted instead of the photo ID requirement. (Second Am. Compl. ¶ 84.) Unless strict scrutiny is applied, Plaintiffs’ preference for alternatives other than what was enacted is legally irrelevant and cannot serve as a basis for invalidating the 2006 Photo ID Act. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *142-43 (“Plaintiffs expend considerable effort in their briefs explaining that there exist effective alternatives to requiring photo identification that the General Assembly could have adopted and that there are additional potential avenues of voter fraud that the General Assembly failed to address with SEA 483. These arguments are not relevant, never mind persuasive in view of the fact that the legislature has wide
53
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 57 of 71
latitude in determining the problems it wishes to address and the manner in which it desires to address them.”) (footnote omitted). The Supreme Court has emphasized that elected officials should be permitted to respond to electoral process deficiencies “with foresight rather than reactively.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986). “[E]laborate, empirical verification of the weightiness of the State’s asserted justifications” is not required. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997). Courts must defer to the legislature’s judgment because “the striking of the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which [] judges should not interfere unless strongly convinced that the legislative judgment is grossly awry.” Griffin v. Rogers, 385 F.3d 1128, 1131 (7th Cir. 2004), quoted in Rokita, 2006 U.S. Dist. LEXIS 20321, at *131. As Chief Justice Cardozo once wrote, a legislature is also not required to solve all possible evils at once and may choose among various alternatives, even if the chosen alternative will not completely eliminate the evil. See People v. Teuscher, 162 N.E. 484, 485 (N.Y. 1928) (“Legislation is not void because it hits the evil that is uppermost. Equally it is not void because it hits the evil that is nearest.”); see also Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003)
54
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 58 of 71
(upholding legislative determination even if the enacted requirement cannot completely eliminate voter fraud). The U.S. Supreme Court has stressed this point: Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955)) (emphasis added); accord FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993) (same); Rokita, 2006 U.S. Dist. LEXIS 20321, at *143 (same); see also McDonald, 394 U.S. at 809. (“[A] legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.”); Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir. 2005) (“We will not substitute our judgment on when and where to make such distinctions for that of the [ ] legislature.”). The Georgia General Assembly has chosen to address the potential for fraud at the polls through the 2006 Photo ID Act. While the legislature may later consider other potential election issues, it is not required to have done so in conjunction with the photo ID requirement in order for that legislation to be upheld.
55
Case 4:05-cv-00201-HLM
2.
Document 119
Filed 07/10/2006
Page 59 of 71
Plaintiffs’ Civil Rights Act Claims Under 42 U.S.C. § 1971 Fail Because the 2006 Photo ID Act Does Not Discriminate.
Plaintiffs assert a cause of action under the Civil Rights Act of 1964, codified at 42 U.S.C. § 1971. Plaintiffs’ claims under 42 U.S.C. § 1971(a)(2)(A) fail as a matter of law because the 2006 Photo ID Act does not determine who is qualified to vote; it merely provides the mechanisms by which to verify the identities of voters. Likewise, Plaintiffs’ claims under 42 U.S.C. § 1971(a)(2)(B) fail because the 2006 Photo ID Act does not add any condition on voter qualifications, and there is no “error or omission on any record” being used to disqualify any potential elector. The 2006 Photo ID Act does not discriminate on the basis of “[r]ace, color, or previous condition,” 42 U.S.C. § 1971(a), and Plaintiffs have not demonstrated a substantial likelihood that they can show such discrimination. The 2006 Photo ID Act does not violate 42 U.S.C. § 1971(a)(2)(A) because it does not apply different standards in “determining whether any individual is qualified under State law or laws to vote in any election.” 42 U.S.C. § 1971(a)(2)(A). Individuals who choose to vote in person are all held to the same standard, whether they are Caucasian, African-American, Hispanic, Asian-American, or otherwise. Likewise, individuals who choose to vote by absentee ballot are all held to the same standard regardless of their race or color. Requiring the exact same procedures for in-person and 56
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 60 of 71
absentee voting would make little sense. “[A]bsentee voting is an inherently different procedure from voting in person.” Rokita, 2006 U.S. Dist. LEXIS 20321, at *177. Numerous other procedures are also different among in-person and absentee voting, none of which Plaintiffs challenge. Taken to its logical (or, in fact, illogical) conclusion, Plaintiffs’ proposed construction could “compel the invalidation of vast portions of the [Georgia] Election Code.” Id. The 2006 Photo ID Act does not determine who is qualified to vote; it merely provides the mechanisms by which to verify the identities of voters, depending on which method they choose to cast their ballot. See id. at *149 (“[T]he State has provided an eminently reasonable explanation for [the absentee ballot] exception [to the photo ID requirement]: ‘Election officials would have no way to compare photo identification included with an absentee ballot . . . with the face of the person who actually marked the ballot’; thus ‘requiring voters to include a photocopy of the identification would . . . have little, if any, benefit in terms of fraud prevention and detection.’”). The 2006 Photo ID Act also does not violate 42 U.S.C. § 1971(a)(2)(B). The photo ID requirement does not add any condition on voter qualifications, and there is no “error or omission on any record” being used to disqualify any potential elector. 42 U.S.C. § 1971(a)(2)(B). The photo ID requirement merely changes the
57
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 61 of 71
manner by which in-person voters prove their identity. Georgia has a “fundamental” and “compelling” interest in minimizing voter fraud by verifying the identity of voters. See League of Women Voters, 340 F. Supp. 2d at 829 (“Few can doubt that deterrence, detection, and avoidance of election fraud are fundamentally important state and public concerns and interests.” (emphasis added)); Colo. Common Cause, 2004 WL 2360485, at *3 (“Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same compelling state interest.” (emphasis added)). Even if the 2006 Photo ID Act does not eliminate all potential voter fraud, that does not justify declaring the statute unconstitutional. See, e.g., McDonald, 394 U.S. at 809. “Plaintiffs’ assertion that voters should be able to prove their identity through means other than photo identification is a weak equivocation over the [Georgia] General Assembly’s selection of the allegedly wrong method for determining a material requirement to vote.” Rokita, 2006 U.S. Dist. LEXIS 20321, at *181. Because the 2006 Photo ID Act does not discriminate, Plaintiffs’ claims under the Civil Rights Act of 1964 fail as a matter of law. As Plaintiffs cannot prevail on this claim, Plaintiffs’ motion for preliminary injunction should be denied.
58
Case 4:05-cv-00201-HLM
B.
Document 119
Filed 07/10/2006
Page 62 of 71
Plaintiffs Have Not Shown That They Will Be Irreparably Harmed Without the Requested Injunctive Relief. A showing of irreparable injury is “the sine qua non of injunctive relief” and
cannot be presumed, even when there is a violation of constitutional rights. Siegel v. LePore, 234 F.3d 1163, 1176-77 (11th Cir. 2000) (“Plaintiffs also contend that a violation of constitutional rights always constitutes irreparable harm. Our case law has not gone that far, however.”) (quoting Ne. Fla. Chapter, 896 F.2d at 1285). In all cases, a movant for a preliminary injunction against a state or local government must present facts that show a “real and immediate” threat of substantial, irreparable harm before a federal court will intervene. O’Shea v. Littleton, 414 U.S. 488, 494 (1974); see also Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“[A] party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate – as opposed to a merely conjectural or hypothetical – threat of future injury.”). Plaintiffs’ only threatened injury in this case is their claimed inability to vote in person without valid photo ID. To the extent that any harm exists, such harm is not irreparable for several reasons. First, any registered voter without a photo ID can vote an absentee ballot by mail. See O.C.G.A. § 21-2-380(b). Plaintiffs admit this fact and are consequently aware that enforcement of the photo ID requirement for the July 18 elections causes no one irreparable harm. (Second Am. Compl. ¶ 59
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 63 of 71
41.) Second, there has been no showing that Plaintiffs cannot obtain a photo ID free of charge at a convenient location. Third, if Plaintiffs choose not to vote an absentee ballot by mail and do not obtain an acceptable form of photo ID prior to the July 18 primary, they may still vote a provisional ballot in person and have that ballot counted upon presenting an acceptable form of photo ID, which may include a free photo ID card, within two days of the primary. See O.C.G.A. §§ 21-2417(b) & -419(c). Plaintiffs’ failure to show they will be irreparably harmed absent the granting of the injunction, and indeed their admission that no such harm will occur, requires denial of Plaintiffs’ motion for preliminary injunction. C.
The Harm to the State of Georgia from Enjoining Its Duty and Obligation to Guard Against Voter Fraud Outweighs the Inconvenience to Plaintiffs. In balancing the equities, “[g]reater caution” must be exercised where a
government is involved because “the Government has traditionally been granted the widest latitude in the dispatch of its own affairs,” and it is “well-established” that federal courts generally should not “interfer[e] with non-federal government operations.” Martin, 225 F. Supp. 2d at 1373 (quoting Brown v. Bd. of Trustees, 187 F.2d 20, 24 (5th Cir. 1951)). As the Supreme Court of the United States has cautioned,
60
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 64 of 71
[w]here, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law” . . . . When the frame of reference moves from a unitary court system . . . to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.” Rizzo, 423 U.S. at 378-79 (citations omitted). “[T]hese principles [ ] have applicability where injunctive relief is sought, not against the judicial branch of a state government, but against those in charge of an executive branch of an agency of state or local governments . . . .” Id. at 380. Through the actions of the State Election Board, all equipment necessary for the production of free photo ID cards in each county registrar’s office has been distributed and installed, and registrars have begin issuing photo ID cards. (McIver Decl. ¶¶ 6, 7, 10; Bailey Second Decl. ¶¶ 9-10; Champion Decl. ¶ 8-10; Hicks Second Decl. ¶¶ 9-11; Ledford Second Decl. ¶¶ 10-12; Smith Decl. ¶¶ 9-11.) In addition, in conjunction with a mass training session held May 22-24, the training of all registrars under 2006 Photo ID Act has been completed. (McIver Decl. ¶ 7.) Many counties have also received on-site training from the equipment vendor, as may have been required by the needs of the particular county. (Id.) The educational effort initiated by the State Election Board has been well underway,
61
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 65 of 71
printing of educational pieces has occurred, counties have been instructed as to their use, and advance voting began today, July 10. (Id. ¶¶ 11-13 & Ex. 1.) In contrast, Plaintiffs’ only threatened injury in this case is the inability of individuals without government-issued photo IDs to vote in a preferred manner. As noted above, there is no constitutional right to vote in a preferred manner. See Burdick, 504 U.S. at 433 (“[I]t does not follow, however, that the right to vote in any manner . . . [is] absolute.”); Kramer, 395 U.S. at 626 n.6 (“[A]t issue was not a claimed right to vote but a claimed right to an absentee ballot.”); McDonald, 394 U.S. 807-08 (“[T]here is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.”); Rokita, 2006 U.S. Dist. LEXIS 20321, at *115 (“[T]here is no absolute constitutional right to vote in any specific manner an individual may desire . . . .”). Additionally, the circumstances of which Plaintiffs complain are easily remedied. Plaintiffs can obtain a photo ID card free of charge at their voter registrar’s office or any of the 60 DDS service centers throughout Georgia. Plaintiffs can also vote an absentee ballot by mail. Either way, any alleged
62
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 66 of 71
inconvenience suffered by Plaintiffs is far outweighed by the severe effects a preliminary injunction would have on the election process. D.
The Public Interest Would Not Be Served by Granting the Requested Injunctive Relief. It is in the public interest that the State of Georgia apply its duly-enacted and
federally-precleared photo ID requirement in the July 18, 2006 primary and following run-off election. A federal court “should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws” when deciding whether a preliminary injunction is appropriate. Miller v. Bd. of Comm’rs, 45 F. Supp. 2d 1369, 1372 (M.D. Ga. 1998) (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964)). Nowhere in their brief do Plaintiffs even attempt to demonstrate how enjoining the application of the photo ID requirement for inperson voting would not adversely affect the public interest. In contrast, there is a strong public interest in applying the State of Georgia’s photo ID requirement to the upcoming elections. First, as noted above, Georgia has a legitimate interest in maintaining the integrity of the election process and minimizing voter fraud. See Burdick, 504 U.S. at 441 (stating that “the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system”); League of Women Voters, 340 F. Supp. 2d at 829 (“Few can doubt that 63
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 67 of 71
deterrence, detection, and avoidance of election fraud are fundamentally important state and public concerns and interests.”); Colo. Common Cause, 2004 WL 2360485, at *3 (“Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same compelling state interest.”). Ascertaining an individual’s identity before allowing the person to vote is a rational way to guard against voter fraud. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *130 (“It is beyond dispute that Indiana has a compelling interest in ascertaining an individual’s identity before allowing the person to vote. It is also well-established that Indiana has an important interest in preventing voter fraud.”). The public interest in combating voter fraud with better voter identification requirements “is to be given weight in deciding whether restraining a state statute would harm the public interest.” BankWest, Inc. v. Baker, 324 F. Supp. 2d 1333, 1357 (N.D. Ga. 2004) (citing Premium Tobacco Stores, Inc. v. Fisher, 51 F. Supp. 2d 1099, 1108 (D. Colo. 1999)). As Judge Shoob explained in a challenge to another Georgia statute: It is not the province of this Court to resolve the debate as to whether [a duly enacted state law] is good or bad for Georgia citizens. That is a matter for the legislature to decide. Absent a showing by [P]laintiffs that the Act is unconstitutional, which they have failed to do, the Court must defer to the legislature’s determination that enforcement of the Act will serve the public interest. 64
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 68 of 71
Id. at 1357-58 (emphasis added); see also McDonald, 394 U.S. at 809 (“Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent . . . .”); Ne. Fla. Chapter, 896 F.2d at 1285 (“When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government.”). Second, the Georgia General Assembly’s remedy need not be perfect in order to serve the public interest. Plaintiffs’ political preference for alternatives other than what was enacted is legally irrelevant and cannot serve as a basis for enjoining the 2006 Photo ID Act. See Rokita, 2006 U.S. Dist. LEXIS 20321, at *142-43. The Supreme Court has emphasized that a “legislature traditionally has been allowed to take reform one step at a time,” and it “need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” McDonald, 394 U.S. at 809 (citations omitted). Federal courts “must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Rizzo, 423 U.S. at 378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)). 65
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 69 of 71
Because Plaintiffs have not carried their burden of showing that the extraordinary relief sought would aid public interest, and because strong public interest instead exists for applying the photo ID requirement in the upcoming elections, the Court should deny Plaintiffs’ motion for preliminary injunction. IV. CONCLUSION For the foregoing reasons, State Defendants respectfully request that the Court deny Plaintiffs’ Motion for Preliminary Injunction. This 10th day of July, 2006. Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 Department of Law State of Georgia 40 Capitol Square, S.W. Atlanta, GA 30334-1300 Telephone: 404/656-7298 Facsimile: 404/657-9932
[email protected]
DENNIS R. DUNN Deputy Attorney General Georgia Bar No. 234098 STEFAN E. RITTER Senior Assistant Attorney General Georgia Bar No. 606950
(signatures continued on following page)
66
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 70 of 71
Troutman Sanders LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308 Telephone: 404/885-3597 Facsimile: 404/962-6753
[email protected]
/s/ Mark H. Cohen MARK H. COHEN Special Assistant Attorney General Georgia Bar No. 174567
Strickland Brockington Lewis LLP Midtown Proscenium, Suite 2000 1170 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: 678/347-2200 Facsimile: 678-347-2210
[email protected]
/s/ Anne W. Lewis ANNE W. LEWIS Special Assistant Attorney General Georgia Bar No. 737490
Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C. /s/ Mark H. Cohen MARK H. COHEN
67
Case 4:05-cv-00201-HLM
Document 119
Filed 07/10/2006
Page 71 of 71
CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing State Defendants’ Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to counsel of record for Plaintiffs. The undersigned also certifies that the within and foregoing document was served by email to the following non-CM/ECF participants: H. Boyd Pettit, III
[email protected]
Peter Olson
[email protected]
This 10th day of July, 2006. /s/ Mark H. Cohen MARK H. COHEN
68
