                Case: 18-14502         Date Filed: 03/21/2019    Page: 1 of 78


                       IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE ELEVENTH CIRCUIT


                                         No. 18-14502-GG

GEORGIA MUSLIM VOTER PROJECT,
ASIAN-AMERICANS ADVANCING JUSTICE-ATLANTA,

                                                                         Plaintiffs - Appellees,

                                               versus

BRIAN KEMP,
in his official capacity as the Secretary of State of Georgia,

                                                                        Defendant - Appellant,

GWINNETT COUNTY BOARD OF VOTER REGISTRATION AND ELECTIONS,
on behalf of itself and all others similarly situated,


                                                                                    Defendant.


                                         No. 18-14503-GG

RHONDA J. MARTIN,
DANA BOWERS,
JASMINE CLARK,
SMYTHE DUVAL,
JEANNE DUFORT,
THE GEORGIA COALITION FOR THE PEOPLE'S AGENDA, INC.,

                                                                         Plaintiffs - Appellees,

                                               versus

BRIAN KEMP,
Secretary of State of Georgia,

                                                                        Defendant - Appellant,
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REBECCA N. SULLIVAN, et al.,

                                                                                         Defendants.


                                 On Appeal from the United States
                        District Court for the Northern District of Georgia


BEFORE: TJOFLAT, JILL PRYOR, and NEWSOM, Circuit Judges.

BY THE COURT:

       On November 2, 2018, we denied the Emergency Motion for Stay of Injunction Pending Appeal

filed by Appellant Brian Kemp and advised at that time that one judge dissented and separate opinions

would follow. Today, we issue those opinions.




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JILL PRYOR, Circuit Judge, concurring in the denial of the motion for a stay.

      On the eve of the 2018 general election, and in the wake of a surge in

interest in voting by mail in Georgia, the Georgia Muslim Voter’s Project and

Asian-Americans Advancing Justice-Atlanta filed suit challenging the State’s lack

of prerejection procedures for redress when an elector’s signature on an absentee

ballot application or absentee ballot appears not to match the signature on her voter

registration card. For such a perceived mismatch, the State offered only notice of

rejection and an opportunity to try again, whether by mail or by voting in person.

But for other absentee ballot deficiencies, the State offered a more robust system of

prerejection notice and an opportunity to be heard. Finding a likely violation of

procedural due process, the district court entered an injunction in which it ordered

the Secretary of State of Georgia to instruct county elections officials to provide

prerejection notice and an opportunity to be heard in the event of a perceived

signature mismatch. In so doing, the district court borrowed heavily from existing

voting procedures pertaining to other ballot deficiencies, which had been passed by

Georgia’s legislature and long followed by state and local officials, to craft a

narrow remedy for a narrow class of ballot applications and ballots.

      When the Secretary moved in this Court for a stay pending appeal from the

injunction, we denied the stay, concluding that the district court had not abused its

discretion in crafting the relief it ordered. See Cumulus Media, Inc. v. Clear
                                           3
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Channel Commc’ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002) (“[The district

court’s] judgments, about the viability of a plaintiff’s claims and the balancing of

equities and the public interest, are the district court’s to make and we will not set

them aside unless the district court has abused its discretion in making them.”).

Our order denying the Secretary’s motion issued days before the November 2018

election, and in it we noted that opinions would follow. This is my opinion,

written as if it had been issued contemporaneously with that order.1

                                    I.      BACKGROUND

   A. Georgia’s Statutory Absentee Voting Scheme

       Like many states, Georgia permits electors to vote by mail, for any reason,

through a process it calls absentee voting. See O.C.G.A. § 21-2-380(a), (b).

Absentee electors must follow a two-step process, first applying for and second

voting via an absentee ballot. Id. §§ 21-2-381, -383, -384. At both steps, an

absentee elector must sign the application or ballot, and at both steps that signature

is compared by elections officials to the elector’s voter registration card signature.

Id. § 21-2-381(b)(1) (absentee ballot applications); id. §§ 21-2-384(b),

(c), - 386(a)(1)(B), (C) (absentee ballots). If the county elections official


       1
          I agree with Judge Newsom’s concurring opinion that this case is now moot, since the
election has passed. But one member of the panel dissented from our order denying the motion
for a stay pending appeal, and he has since written a dissenting opinion explaining his reasons
for declining to join the majority. I explain here why I believe the motion properly was denied.
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reviewing submissions concludes that the signatures match at the application stage,

an absentee ballot issues; if the signatures match at the absentee ballot stage, and

there are no other deficiencies, the absentee elector’s vote is counted. Id. § 21-2-

381(b)(2)(A) (absentee ballot applications); id. § 21-2-386(a)(1)(B) (absentee

ballots). If the official concludes that the signature on the absentee ballot

application or absentee ballot does not match that of the elector’s voter registration

card, then the application or ballot is rejected. Id. § 21-2-381(b)(3) (absentee

ballot applications); id. § 21-2-386(a)(1)(C) (absentee ballots). At issue in this

case is the process offered to absentee electors whose signatures on absentee ballot

applications and absentee ballots are deemed a mismatch.

       Georgia law has no provision by which an absentee elector notified of a

perceived mismatch may contest the decision, cure the mismatch, or prove her

identity before the absentee application or absentee ballot is rejected for a signature

mismatch. Instead, the law provides that after the application or ballot is rejected,

the county board of registrars2 or absentee ballot clerk is required to “promptly

notify” the elector of the rejection. Id. § 21-2-381(b)(3) (absentee ballot

applications); id. § 21-2-386(a)(1)(C) (absentee ballots).3 The law does not


       2
         County boards of registrars are empowered by state law to conduct primaries and
elections and to oversee the registration of electors and absentee balloting procedures. See
generally O.C.G.A. § 21-2-40.
       3
           For example, within three days of rejection of an absentee ballot, Gwinnett County
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prevent the absentee elector from trying again, either by filling out a new

application or by completing a new ballot. Nor does the law prevent an able

absentee elector from voting in person, either during early voting hours or on

Election Day. Ga. Comp. R. & Regs. 183-1-14-.09.

       Still, perceived signature mismatches are a bit of an outlier: Georgia law

provides prerejection procedures for other flaws in absentee ballot applications and

absentee ballots, just not for a signature mismatch. If the registrar or absentee

ballot clerk determines that an absentee ballot application lacks information such

that the official cannot determine the absentee elector’s identity, Georgia law

provides that the official must “write to request additional information” from the

elector instead of rejecting the application outright. O.C.G.A. § 21-2-381(b)(4).

If the board of registrars has probable cause to believe based on an absentee ballot

that the “elector is not qualified to remain on the list of electors,” the board must,

“if practical, notify the challenged elector and afford such elector an opportunity to

answer,” and then “shall proceed to conduct a hearing on the challenge on an

expedited basis prior to the certification of the consolidated returns of the election

superintendent.” Id. § 21-2-230(b), (g). If the absentee elector fails to prove her

eligibility at this stage, she may appeal to the superior court within 10 days of the


provides the absentee elector with a letter stating the reasons for the rejection, a new application
for an absentee ballot, and information about how to vote by other means.
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board of registrars’ decision. Id. § 21-2-230(g) (cross-referencing O.C.G.A. § 21-

2-229(e)). If the board of registrars believes that an absentee ballot has some

other deficiency that does not affect the elector’s qualifications to remain on the

list of electors—for example, if the absentee elector failed to provide the required

identification—and “it is not practical to conduct a hearing prior to the close of the

polls,” then elections officials must treat the ballot as a “challenged” ballot—that

is, a provisional ballot. Id. §§ 21-2-230(e), (i), -386(e), -419. If the absentee

elector provides the board of registrars with the required identification no more

than three days after the election, then her vote is counted. Id. § 21-2-419(c)(1);

Ga. Comp. R. & Regs. 183-1-14-.03(2), (3), (5). If the absentee elector fails to do

so, then the ballot is not counted and the absentee elector is so notified. Ga.

Comp. R. & Regs. 183-1-14-.03(5); O.C.G.A. § 21-2-419(d)(1). If necessary

based on these procedures, the election returns are adjusted and a corrected return

is certified. O.C.G.A. § 21-2-230(g), -493(l). Again, under Georgia law these

prerejection procedures are inapplicable to absentee ballot applications and ballots

with perceived signature mismatches.

B. The Proceedings Below

      The Georgia Muslim Voter Project and Asian-Americans Advancing

Justice-Atlanta (collectively, “GMVP”) caught wind of an October 12, 2018 news

article reporting increased rates of rejection of absentee ballot applications and
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absentee ballots in Gwinnett County due to perceived signature mismatches. Four

days later, the organizations filed suit in the Northern District of Georgia against

Brian Kemp, in his official capacity as Secretary of State of Georgia,4 and the

Gwinnett County Board of Registrars and Elections, on behalf of itself and

similarly situated boards of registrars in all 159 Georgia counties. As relevant to

this appeal, GMVP alleged that Georgia’s absentee voting scheme violated

procedural due process insofar as the State failed to provide prerejection notice, an

opportunity to be heard, and a chance to appeal for absentee electors whose

absentee ballot applications or absentee ballots contained a perceived mismatched

signature.

       GMVP moved for an injunction to prevent elections officials from rejecting

absentee ballot applications and absentee ballots due to perceived signature

mismatches without these prerejection procedures. After holding a hearing, the

district court determined that it was substantially likely that the Georgia’s statutory

procedures for rejecting absentee ballot applications and absentee ballots facially

violated the Fourteenth Amendment’s guarantee of procedural due process. The

district court found that the other factors courts consider in deciding whether to



       4
         Secretary Kemp also was a candidate for governor of Georgia in the November 2018
election. He won that election, and a new Secretary of State has assumed his prior position.
For ease of reference, I use the term “the Secretary” throughout.
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grant injunctions—irreparable injury, harm to the opposing party, and the public

interest—also weighed in favor of granting injunctive relief.

       The district court thereafter entered an injunction5 in which it ordered the

Secretary of State’s Office to issue the following instructions, reproduced in full

here, to all county boards of registrars, boards of elections, election

superintendents, and absentee ballot clerks:

       1) All county officials responsible for processing absentee ballots shall
          not reject any absentee ballots due to an alleged signature mismatch.
          Instead, for all ballots where a signature mismatch is perceived, the
          county elections official shall treat this absentee ballot as a
          provisional ballot, which shall be held separate and apart from the
          other absentee ballots. See O.C.G.A. § 21-2-419; Ga. Comp. R. &
          Regs. 183-1-14-.03(2). The county elections official shall then
          provide pre-rejection notice and an opportunity to resolve the
          alleged signature discrepancy to the absentee voter. This process
          shall be done in good faith and is limited to confirming the identity
          of the absentee voter consistent with existing voter identification
          laws. See O.C.G.A. §§ 21-2-417, -417.1. The elections official is
          required to send rejection notice via first-class mail and also
          electronic means, as available or otherwise required by law. See
          O.C.G.A. § 21-2-384(a)(2). This process shall include allowing the
          absentee voter to send or rely upon a duly authorized attorney or
          attorney in fact to present proper identification. This process shall
          be done prior to the certification of the consolidated returns of the
          election by the election superintendent. See O.C.G.A. § 21-2-
          230(g). The absentee voter shall have the right to appeal any
          absentee ballot rejection following the outcome of the

       5
         Although the district court labeled its order a “Temporary Restraining Order,” GMVP
Doc. 32 at 2, it actually was an immediately appealable preliminary injunction. See 28 U.S.C.
§ 1292(a)(1); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982) (explaining that the
functional effect of an order controls and that an order is an injunction if, rather than “merely
preserving the status quo,” it “grant[s] most or all of the substantive relief requested”).
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           aforementioned process, as designated in O.C.G.A. § 21-2-229(e).
           Any aforementioned appeals that are not resolved as of 5 p.m. on
           the day of the certification deadline shall not delay certification and
           shall not require recertification of the election results unless those
           votes would change the outcome of the election. See O.C.G.A.
           § 21-2-493(l).

       2) All county elections officials responsible for processing absentee
          ballot applications shall not reject any absentee ballot application
          due to an alleged signature mismatch. Instead, for all ballot
          applications where a signature mismatch is perceived, the county
          elections official shall, in addition to the procedure specified in
          O.C.G.A. § 21-2-381(b), provide a provisional absentee ballot to the
          absentee voter along with information as to the process that will be
          followed in reviewing the provisional ballot. The outer envelope
          of the absentee ballot provided shall be marked provisional. Once
          any provisional ballot is received, the procedure outlined in section
          1 above is to be followed.

       3) This injunction applies to all absentee ballot applications and
          absentee ballots rejected solely on the basis of signature mismatches
          submitted in this current election. This injunction does not apply
          to voters who have already cast an in-person vote.

GMVP Doc. 32 at 2-3.6

       The Secretary filed an emergency motion to stay the injunction pending

appeal, arguing that laches barred GMVP’s claims and that GMVP was unlikely to

prevail on the merits of the facial due process challenge.7 Only the Secretary


       6
         “Doc. #” refers to the numbered entry on the district court’s docket. Unless otherwise
noted, citations are to the GMVP v. Secretary case in the district court.
       7
         Several electors and the Georgia Coalition for the People’s Agenda, Inc. (collectively,
the “Electors”) separately filed suit against the Secretary, members of the Gwinnett County
Board of Voter Registration and Elections, and members of the State Election Board. The State
Election Board is tasked with promulgating rules and regulations that will “obtain uniformity in
the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and
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moved for a stay; the Gwinnett County Board of Voter Registration and Elections

did not. The district court denied the Secretary’s motion. The Secretary then

filed in this Court an Emergency Motion for Stay of Injunction Pending Appeal.

We summarily denied the motion for a stay. Judge Tjoflat dissented from our

summary order denying a stay and now has provided his reasons for doing so.

This is my response.

                                II.     LEGAL STANDARDS

       “A stay of a preliminary injunction requires the exercise of our judicial

discretion, and the party requesting the stay must demonstrate that the

circumstances justify the exercise of that discretion.” Democratic Exec. Comm. of



other officials” and facilitate the “fair, legal, and orderly conduct of primaries and elections.”
State Election Board Duties, http://sos.ga.gov/index.php/elections/state_election_board (last
accessed March 18, 2019).
        The Electors brought substantive due process and equal protection claims arising from
the rejection of absentee ballot applications and absentee ballots with perceived signature
mismatches. The Electors sought an injunction on these grounds, rather than on the basis of
procedural due process. Without consolidating the cases, the district court held a joint hearing
at which it entertained both motions for injunctive relief. There, the court expressed its
inclination to grant relief only on GMVP’s procedural due process claim and heard argument
primarily on GMVP’s request for an injunction on that claim. When the district court granted
the injunction, it entered the injunction onto the dockets in both cases. The district court denied
the Electors’ motion for an injunction but noted in its order that the Secretary remained enjoined
as set forth in the GMVP case.
        We consolidated both cases on appeal. The Secretary argues here that he “is especially
likely to succeed on the merits of his appeal” of the injunction entered onto the docket in the
Electors’ case because the Electors did not raise a procedural due process claim. Mot. for Stay
at 13 n.3. But based on the context in which the injunction was entered on the docket in the
Electors’ case, I do not read the injunction as granting the Electors any relief separate and apart
from the relief granted to GMVP. I therefore reject the Secretary’s argument.
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Fla. v. Lee, 915 F.3d 1312, 1317 (11th Cir. 2019). In deciding whether to grant a

stay of an injunction pending appeal, the Court considers the following factors,

which mirror the factors the district court considered in entering the injunction:

       (1) whether the stay applicant has made a strong showing that it is likely
       to succeed on the merits, (2) whether the applicant will be irreparably
       injured absent a stay, (3) whether issuance of the stay will substantially
       injure the other parties interested in the proceeding, and (4) where the
       public interest lies.

Id. (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors are

the “most critical.” Nken, 556 U.S. at 434. As to the first factor, “[i]t is not

enough that the chance of success on the merits be better than negligible.” Id.

(internal quotation marks omitted).

       As to the second factor, irreparable injury, “even if [a party] establish[es] a

likelihood of success on the merits, the absence of a substantial likelihood of

irreparable injury would, standing alone, make [a stay] improper.” Siegel v.

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).8 That is because “[a]

showing of irreparable injury is the sine qua non of injunctive relief.” Id. (internal

quotation marks omitted). “[T]he asserted irreparable injury must be neither




       8
         Siegel arose in the context of an appeal from the denial of a preliminary injunction, not
from a motion to stay a preliminary injunction. 234 F.3d at 1168. Because we use the Nken
factors for both inquiries, however, Siegel is directly applicable to this case.
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remote nor speculative, but actual and imminent.” Id. (internal quotation marks

omitted).

      On appeal we do all of this legal legwork through the lens of an abuse of

discretion standard of review. Lee, 915 F.3d at 1317. In so doing, we review de

novo any legal conclusions and for clear error any factual conclusions underlying

the district court’s exercise of its discretion. Id. But the weight to be afforded

any given factor and the ultimate weighing of the factors together are

quintessential exercises of discretion that we reverse only if that discretion is

abused. See Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1320-21 (11th Cir.

2010); BellSouth Telecommc’ns, Inc. v. MCImetro Access Transmission Servs.,

LLC, 425 F.3d 964, 968-70 (11th Cir. 2005).

      In determining whether the plaintiffs showed a substantial likelihood of

success on the merits of the procedural due process claim, the district court was

obliged to apply the framework from Mathews v. Eldridge, 424 U.S. 319 (1976).

Under Mathews, a court determining what process is due in connection with a

potential deprivation of a liberty or property interest must balance three

considerations:

      First, the private interest that will be affected by the official action;
      second, the risk of an erroneous deprivation of such interest through the
      procedures used, and the probable value, if any, of additional or
      substitute procedural safeguards; and finally, the Government’s
      interest, including the function involved and the fiscal and
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      administrative burdens that the additional or substitute procedural
      requirement would entail.

Id. at 335. We must apply this test “to the generality of cases, not the rare

exceptions.” Id. at 344.

                                III.   DISCUSSION

      In this section, I first explain why the Secretary’s failure to show that he is

likely to suffer irreparable harm requires that his motion for a stay be denied

without regard to any of the other Nken factors. Second, I respond to the

Secretary’s argument as to the other Nken factors and explain why they also do not

weigh in favor of a stay pending appeal. Third, I address my dissenting

colleague’s remaining concerns about the denial of the stay pending appeal.

   A. The Secretary Has Made No Strong Showing that the Injunction Would
      Cause Him Irreparable Injury.

      Starting with irreparable injury, the Secretary argues that the district court’s

injunction would cause irreparable harm because the injunction prevents it “‘from

effectuating statutes enacted by representatives of its people,’” upsets the election

process, and “risks introducing confusion, uncertainty, and inaccuracy during a

general election” such that this Nken factor “strongly favors granting a stay.”

Mot. for Stay at 22-23 (quoting Hand v. Scott, 888 F.3d 1206, 1207 (11th Cir.

2018)). I disagree. First, the injunction does not prevent the Secretary from

effectuating any statutes because it does not negate the effects of any statutes.
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Instead, it adds procedural protections. Second, the Secretary has failed to

substantiate any “injury following from the simple preparation on paper of a plan

to carry out the [district] court’s directives”—the only thing the injunction required

the Secretary to do. See Garcia-Mir v. Meese, 781 F.2d 1450, 1455 (11th Cir.

1986).

      I might view the risk of irreparable harm differently had any other defendant

moved for a stay or signaled that the injunction had in fact led to confusion,

uncertainty, or inaccuracy. But no other defendant so moved, and in fact the

evidence in this case belies the Secretary’s conclusory assertion that the injunction

will irreparably harm the State’s voting procedures. On the same day the

injunction was entered, the Secretary sent a four-page bulletin to county elections

officials statewide instructing them to comply with the injunction and explaining in

some detail how to do so. The Secretary has submitted no evidence or even

argument that any county has reported difficulty complying with the guidance;

indeed, the Chair of the Board of Registrars of one of Georgia’s most populous

counties testified that compliance with the injunction as instructed by the Secretary

was “pretty straightforward” and “easily doable” and would “not really add any

burdens to what we are already doing.” GMVP Doc. 37-1 at 2-3. The Chair

stated he did “not believe that it will be difficult to implement the guidance . . .

even with a week left until Election Day.” Id. at 2.
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      Our precedent makes clear that the Secretary’s failure to show that the

injunction would cause irreparable injury is an adequate and independent basis for

denying the motion to stay pending appeal. See Siegel, 234 F.3d at 1176. In any

event, because the Secretary argues that he can satisfy all of the Nken factors—and

my dissenting colleague agrees—I discuss the remaining factors in the sections that

follow.

   B. The Secretary Has Made No Strong Showing that He Is Likely to
      Succeed on Appeal.

      The Secretary advances three arguments for why the district court abused its

discretion in entering the injunction requiring state officials to provide prerejection

processes to absentee ballot applicants and electors whose ballot applications and

ballots suffer from perceived signature mismatches. First, he argues that the

plaintiffs’ challenge does not satisfy the requirements of a facial challenge and

therefore fails as a matter of law, merits aside. Second, and relatedly, he argues

that the district court erred in weighing the Mathews factors such that the facial

challenge fails on the merits. Third, he contends that the plaintiffs’ challenge

likely is barred by the doctrine of laches. For the reasons that follow, I disagree

on all three fronts. Where the dissent’s arguments are different from the

Secretary’s, I address those points as well.9


      9
          I focus my discussion primarily on the injunction as it relates to absentee ballots, as
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   1. The Secretary has made no strong showing that the district court likely erred
      in concluding that the plaintiffs could advance a facial challenge.

       The Secretary argued in the district court that GMVP’s procedural due

process challenge could only be construed as a facial challenge because GMVP

failed to identify any absentee elector to whom the signature mismatch procedure

had been unconstitutionally applied. And, the Secretary argued, GMVP could not

advance a facial challenge because it could not under any circumstances prove that

Georgia’s absentee election law would be “‘unconstitutional in all of its

applications.’” GMVP Doc. 24 at 19 (quoting Wash. State Grange v. Wash. State

Repub. Party, 552 U.S. 442, 449 (2008)). The Secretary explained that this is

because an elector who applies for an absentee ballot “weeks before the election

and is immediately notified of the rejection,” action “permitted if not

contemplated” by the absentee ballot application statute, has not been deprived of a

right without due process. Id. at 19-20. Nor, for that matter, the Secretary

argued, would an elector whose absentee ballot is rejected “and who is

immediately notified and provided an opportunity to cast another absentee ballot,



opposed to absentee ballot applications, because neither the Secretary nor the dissent makes any
argument specifically about the latter.




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which is not subsequently rejected,” suffer from deprivation of a right without due

process. Id. at 20. The district court agreed with the Secretary that GMVP could

not advance an as-applied challenge but disagreed that GMVP could not advance a

facial challenge.

      On appeal, the Secretary again argues that GMVP cannot advance a valid

facial challenge. He reiterates the argument he made in the district court—that

GMVP cannot show that Georgia’s statutory procedures are constitutionally

deficient “for all voters in all circumstances under which signatures are rejected.”

Mot. for Stay at 14.

      The dissenting opinion also asserts that GMVP cannot advance a facial

challenge, but for a reason further afield than the Secretary’s. The dissent says

that GMVP’s challenge to Georgia’s absentee ballot signature mismatch procedure

fails as a matter of law because “countless mail-in voters’ signatures are

determined by election officials to match,” and their votes are counted.

Dissenting Op. at 50. In other words, plenty of absentee electors never suffer from

a perceived signature mismatch on their absentee ballot applications or absentee

ballots, so GMVP cannot show that Georgia’s absentee ballot procedures are

unconstitutional in all of their applications.

      I take on the dissent’s argument first, followed by the Secretary’s. The

dissent’s focus on absentee electors who are unaffected by Georgia’s signature
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mismatch provisions overlooks the Supreme Court’s instruction that when

reviewing a facial challenge we do not consider instances in which a statute

“do[es] no work.” City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2451

(2015). “Legislation is measured for consistency with the Constitution by its

impact on those whose conduct it affects.” Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 894 (1992). “The proper focus of the constitutional inquiry

is the group for whom the law is a restriction, not the group for whom the law is

irrelevant.” Id. (emphasis added). Georgia’s signature mismatch procedures are

irrelevant for those absentee electors who have no signature mismatch. Thus, I

respectfully reject the dissent’s argument.

      The Secretary’s narrower argument also fails to persuade me. The

Secretary points out that an absentee elector whose ballot application or ballot is

rejected for a perceived signature mismatch but who receives a rejection notice in

time to try again (although there is no guarantee that he will) can either attempt to

submit another absentee ballot application and/or absentee ballot (although there is

no guarantee that second ballot will not be deemed another signature mismatch) or

can vote in person (provided he is physically able to do so). True, but immaterial

for purposes of determining whether GMVP is entitled to advance a facial

challenge. That is because if Georgia’s signature mismatch procedure violates the

dictates of procedural due process by failing to provide adequate predeprivation
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notice and opportunity to be heard, then any postdeprivation opportunity to take

advantage of entirely different procedures does not cure the due process violation.

That brings me to the merits of the procedural due process challenge, which I

address in the section that follows.

   2. The Secretary has made no strong showing that the district court likely erred
      in weighing the Mathews factors.

      The Secretary challenges the weight the district court assigned each of the

Mathews factors. For the reasons that follow, I find no error.

      a. The Private Interest at Stake

      As to the first of the Mathews factors, the private interest at stake, the

Secretary faults the district court for defining the interest at stake—too broadly—as

the fundamental right to vote. Instead, the Secretary argues, the private interest at

stake “is only the narrow interest in voting by mail,” which is “modest” for most

electors who could instead simply vote in person. Mot. for Stay at 15.

      As an initial matter, I disagree that the district court so broadly defined the

private interest at stake. The district court determined that the private interest at

stake here “implicates the individual’s fundamental right to vote” and therefore is

“substantial.” GMVP Doc. 28 at 23 (emphasis added). It is undeniably true that

the interest in voting absentee implicates the right to vote. Indeed, the parties



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appear to agree that the private interest at stake is the interest in voting by mail—

that is, by absentee ballot.

      The Secretary’s real disagreement is with the district court’s determination

that the interest in voting absentee is substantial. But the Secretary has failed to

meet his burden of showing that the district court likely erred. As the district

court explained, that the interest in voting by absentee ballot implicates the

fundamental right to vote lends it more than modest weight. And even though the

Secretary posits that an absentee elector rejected for a perceived signature

mismatch may still have ample time to vote in person, he has not shown that this

elector represents the “generality of cases.” Mathews, 424 U.S. at 344.

      To the contrary, given the statutory and regulatory scheme Georgia has

constructed for absentee voting, the Secretary’s hypothetical likely does not cover

the generality of cases. Although any elector in Georgia may vote by absentee

ballot, Georgia’s Administrative Code suggests that electors applying for absentee

ballots often do so because they are elderly, physically disabled, or residing

temporarily or permanently outside the voting precinct on Election Day, either

because of military obligations or because they have taken up residence overseas.

See Ga. Comp. R. & Regs. 183-1-14-.01(3) (listing these categories of absentee

electors along with a category for “[n]o reason is provided”). Individuals falling

into these categories are likely to have difficulty appearing in person to vote.
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Moreover, the ability to appear in person depends on receiving rejection notice in

time to do so. Although Georgia’s code requires that rejection notices “promptly”

issue, O.C.G.A. §§ 21-2-381(b)(3), -386(a)(1)(C), there is no time frame specified.

The Secretary points to nothing in the record to suggest that in the generality of

cases absentee electors apply for and cast ballots early enough within the voting

period such that they would benefit from a “prompt” notice, whatever that means.

      In sum, the Secretary has failed to show that the district court likely erred in

giving this first Mathews factor substantial weight.

      b. The Risk of an Erroneous Deprivation

      As to the second Mathews factor, the Secretary argues that the risk of an

erroneous deprivation is small considering the relatively low percentages of

absentee ballot applications and absentee ballots that were rejected for perceived

signature mismatches in previous elections. And, the Secretary again stresses,

rejections must be accompanied by notice, and this notice provides electors with

ample time to either mail in another absentee ballot application or absentee ballot

or vote in person. The Secretary’s arguments, however, do nothing to refute the

district court’s determination that although “the risk of an erroneous deprivation is

by no means enormous, permitting an absentee elector to resolve an alleged

signature discrepancy nevertheless has the very tangible benefit of avoiding

disenfranchisement” for that elector. GMVP Doc. 28 at 24. Because the
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Secretary has not even argued that this determination was in error, he cannot show

that the district court likely erred in finding that this second Mathews factor weighs

in favor of GMVP.10

       c. The Government’s Interest and Burden

       As to the final Mathews factor, the district court found “that additional

procedures would involve minimal administrative burdens while still furthering the

State’s” interest. Id. at 26. The Secretary disagrees, arguing that the injunction’s

procedures for absentee ballot applications or absentee ballots with a perceived

signature mismatch impose substantial burdens on the State. As I explain below,

the Secretary’s arguments do not convince me that the district court erroneously

weighed this factor.

       First, the Secretary takes issue with the injunction’s requirement that the

elector may send an attorney or attorney in fact to confirm the elector’s identity.

The Secretary argues that this predeprivation procedure burdens the State’s

undisputed substantial interest in preventing voter fraud by permitting individuals



       10
          Further in analyzing the second Mathews factor, the district court explained that the
“probative value of additional procedures is high” given the risk of disenfranchisement. GMVP
Doc. 28 at 25. The Secretary objects that the injunction’s requirements “are unlikely to add
significant value to the prompt notice and generous opportunities for cure the statute already
provides.” Mot. for Stay at 17. For the reasons I have explained, however, for many absentee
electors the cure of showing up to vote simply will not be possible or practicable.


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other than the elector to confirm the elector’s identity, “without any kind of oath or

affidavit, merely by possessing the [elector’s] identification.” Mot. for Stay at 18.

This is inaccurate: the injunction allows only “a duly authorized attorney or

attorney in fact to present proper identification” on behalf of the elector; implicit is

a requirement that the attorney or attorney in fact demonstrate that she is duly

authorized. GMVP Doc. 32 at 2 (emphasis added). Moreover, the injunction is

not a leap into wholly unfamiliar territory: Georgia law already contemplates that

someone other than the absentee elector may appear to prove the elector’s identity.

See O.C.G.A. § 21-2-381(a)(1)(B) (permitting a physically disabled elector to

present absentee ballot applications via her “mother, father, grandparent, aunt,

uncle, sister, brother, spouse, son, daughter, niece, nephew, grandchild, son-in-law,

daughter-in-law, mother-in-law, father-in-law, brother-in-law, or sister-in-law of

the age of 18 or over”). Thus, this aspect of the injunction’s prerejection

procedure does not substantially burden the State’s interest in preventing voter

fraud.

         Second, the Secretary argues that the injunction’s prerejection procedures

cause administrative burdens because they “necessitate significant changes to how

at least some counties track absentee ballot rejections[,] changes to the systems for

tracking absentee ballot voters[,] and more.” Mot. for Stay at 18-19. Even

assuming these changes would be required, the record does not support the
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Secretary’s assertion that they would create a substantial burden. In fact, as I

explained above in Part III.A., the evidence is to the contrary: by election

officials’ own reports, the injunction has caused little disruption. The Secretary

therefore has failed to persuade me as to administrative burdens.

       Third, the Secretary argues that the injunction’s prerejection right of appeal

imposes other burdens, specifically, on county elections officials “who will have to

appear and defend their rejection decisions, including on an expedited basis prior

to certification of the election” and on state courts who now must hear “this new

class of appeals on an expedited basis.” Mot. for Stay at 19. In addition, the

Secretary says, the injunction’s prerejection procedures inject the new burden of

requiring a system for recertification of election results if absentee ballots tied up

in any unresolved appeals would change the outcome of the election—a system the

Secretary says does not currently exist. Again, the Secretary has failed to meet his

burden. As explained in Part I.A., these procedures are already statutorily in place

for absentee ballot application and absentee ballot defects other than signature

mismatches. Contrary to the Secretary’s suggestion, the injunction does not

require the creation of a new system, nor does it newly obligate county elections

officials or state courts to adjudicate disputes relating to the rejection of absentee

ballots.


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       The burden on these entities may increase to some limited extent because of

this new class of ballot applications and ballots to which prerejection procedures

apply, but by the Secretary’s own calculation the number of perceived signature

mismatches is quite low. And by the Secretary’s own admission, some of the

prerejection procedures are unlikely to be used frequently. See Mot. for Stay at 18

(“[I]t is hard to see what additional work the . . . right of appeal could do in any

given case; either the voter will provide identification in the pre-rejection

opportunity to resolve the alleged signature deficiency, or the voter will not . . . .”

(internal quotation marks omitted)). For these reasons, I reject the Secretary’s

argument that the third Mathews factor should weigh in his favor and that the

district court likely erred in concluding otherwise.11


       11
          Also for these reasons, I disagree with the dissent that the injunction violates principles
of federalism by requiring counties in Georgia to “to craft ad hoc administrative tribunals” and
by requiring state courts to hear appeals from these tribunals. Dissenting Op. at 55. The
hearings the district court’s injunction contemplates already take place in Georgia, and the state
superior courts already hear appeals from the results of these hearings, where they are necessary.
         The dissent opines that the injunction provides a poor remedy for absentee electors with
perceived signature mismatches and that a state-law procedural due process claim in superior
court would be just that—superior—but the dissent’s characterization of the process the
injunction contemplates is inaccurate. The dissent argues that first the “voter must wait to see
whether he or she receives rejection notice.” Id. True, but given the injunction’s requirement
that the notice be sent by first-class mail and electronic means, this wait should not be onerous.
And in any event, an elector also would have to await a rejection notice before going straight to
the superior court to file a lawsuit. Second, the dissent says, the “voter must then respond to the
notice,” and “the [injunction] does not tell us the means of responding or the timeframe for
doing so.” Id. This is simply not true. As to the means of responding, the injunction provides
that the elector must respond by providing identification in accordance with O.C.G.A. §§ 21-2-
417 and -417.7 and that the elector may “send or rely upon a duly authorized attorney or attorney
in fact to present proper identification,” GMVP Doc. 32 at 2. As
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                                         *       *       *

       In conclusion, the Secretary has failed to show that the district court likely

erred in determining the weight of any single Mathews factor. And when I

examine all of the factors together, I cannot say that the district court likely erred

in weighing them. Thus, the Secretary has failed to make a strong showing that he

is likely to succeed on the merits of his appeal.

   3. The Secretary has made no strong showing that he is likely to succeed on the
      merits of his laches argument.

       In the alternative to his main merits argument, the Secretary argues that we

should stay the district court’s injunction because the equitable doctrine of laches

likely bars the plaintiffs’ procedural due process challenge. To succeed on a




to the timeframe for responding, the injunction expressly requires that the elector’s response
“shall be done prior to the certification” of the election returns. Id. at 2-3 (citing O.C.G.A. § 21-
2-230(g)). Third, the dissent asserts, “[i]f the voter challenges the election official’s signature
determination, he or she attends a hearing held by an unknown adjudicator.” Dissenting Op. at
55. Again, this is inaccurate. The injunction expressly cites to O.C.G.A. § 21-2-230(g), which
provides that the adjudicator in such a dispute is “the [county] board of registrars.” Fourth, the
dissent says that if the adjudicator upholds the signature mismatch determination, then the elector
can appeal the decision to the superior court. Yes, according to procedures already delineated in
O.C.G.A. § 21-2-229(e). And although the dissent suggests that all of these steps are inevitable,
I disagree. In all likelihood, most electors will never file a lawsuit in the superior court, or even
seek a hearing before the board of registrars, because earlier steps in the predeprivation process
will vindicate their rights. See Mot. for Stay at 18 (the Secretary arguing that “it is hard to see
what additional work” the right to appeal will do in light of the injunction’s other prerejection
procedures). For this reason, I am unconvinced that an elector’s filing a procedural due process
claim directly in the superior court is a superior process to the one the district court ordered.
And, of course, where state law is found to violate the federal Constitution, the district court is
empowered to remedy that violation without regard to whether a different—even superior—
remedy exists under the State’s constitution.
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laches claim, the Secretary must show that the plaintiffs inexcusably delayed

bringing their procedural due process claim and that the delay caused undue

prejudice. Lee, 915 F.3d at 1326; see United States v. Barfield, 396 F.3d 1144,

1150 (11th Cir. 2005).12 He cannot at this stage do so.             As the district court

explained, it is undisputed that events of the 2018 election cycle sparked their

action: for GMVP specifically, it was an October news report on increased rates

of rejection of absentee ballot applications and absentee ballots in Gwinnett

County due to perceived signature mismatches.13 Moreover, the Secretary does

not contest that laches is generally a factual question that requires factual

development—something that is lacking at the early stage of this case. In light of

the plaintiffs’ allegations and the early stage of this litigation, I cannot say it is

likely that the Secretary will be able to prove inexcusable delay merely because

Georgia’s absentee voting statutes have been on the books for several years.

       Nor is the Secretary likely to establish undue prejudice. As explained in

detail above, the record in this case shows that the injunction caused and was


       12
          “When the district court has weighed the proper factors in determining whether a
defendant has proven the elements of laches, we review the district court’s decision for abuse of
discretion.” Angel Flight of Ga., Inc. v. Angel Flight Am. Inc., 522 F.3d 1200, 1207 (11th Cir.
2008). I apply this standard of review here because the Secretary does not argue that the district
court weighed improper factors.
       13
         As for the Electors, they say it was the surge in litigation over the reliability of
Georgia’s in-person voting system and corresponding increase in absentee voting, which was
seen as more dependable.
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expected to cause little if any disruption to those tasked with administering the

2018 election.

      Thus, on this record, the Secretary cannot make a strong showing that he is

likely to succeed on the merits of his laches argument.

   C. The Remaining Nken Factors Counsel Against a Stay of the District
      Court’s Preliminary Injunction.

      As with the first and second factors, the remaining Nken factors— whether

the stay will substantially injure other interested parties and the public interest—do

not militate in favor of granting a stay of the injunction. “A stay would

disenfranchise many eligible electors whose ballots were rejected” for a perceived

signature mismatch even when they were eligible to vote. Lee, 915 F.3d at 1327.

“And public knowledge that legitimate votes were not counted due to no fault of

the voters”—and with no prerejection notice to the voters that their votes would

not be counted and no opportunity to rectify that situation—“would be harmful to

the public’s perception of the election’s legitimacy.” Id. It is beyond dispute that

“protecting public confidence in elections is deeply important—indeed, critical—to

democracy.” Id. (citing Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 197

(2008) (plurality opinion)). Thus, the remaining Nken factors do not favor

granting a stay.



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      In sum, the Secretary has failed to make the requisite showing to justify a

stay of the district court’s injunction. Before I conclude, I address some of the

points in my colleague’s dissent.

   D. Neither the Parratt Doctrine, nor Principles of Federalism and
      Separation of Powers, nor the Equal Protection Clause Justifies a Stay
      of the Injunction.

      Aside from those points I have already addressed, the dissent makes at least

three additional arguments for why we should stay the district court’s injunction

pending appeal. None of these arguments, taken individually or collectively,

convinces me.

      1. The “Parratt Doctrine” does not doom GMVP’s due process claim.

      In addition to challenging the district court’s conclusion that GMVP was

entitled to advance a facial due process challenge, the dissent argues that GMVP’s

claim fails under the so-called “Parratt doctrine.” Dissenting Op. at 49, 51-54. In

Parratt v. Taylor, 451 U.S. 527 (1981), as in a related case, Hudson v. Palmer, 468

U.S. 517 (1984), the Supreme Court held that when a state official was “not acting

pursuant to any established state procedure,” but rather was engaging in a

“random, unauthorized” act, the State is in no position to provide predeprivation

process, and postdeprivation process is all that is due. Zinermon v. Burch, 494




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U.S. 113, 130 (1990). Parratt does not bar GMVP’s claim for predeprivation

process in this case for two related reasons.14

       First, to my knowledge we have never applied Parratt to a facial procedural

due process challenge to an existing statutory or administrative scheme, and there

is good reason not to, at least in this context. Indeed, my dissenting colleague

appears not to disagree: he invokes Parratt only after opining (incorrectly, I

think) that GMVP’s claim can only be construed as an as-applied claim. In

Parratt, Hudson, and their progeny, see, e.g., McKinney v. Pate, 20 F.3d 1550,

1562-63 (11th Cir. 1994) (en banc), the state actor whose actions were challenged

was acting contrary to established state customs or policies. In Parratt, a prison

employee allegedly negligently mishandled an inmate’s property. Parratt, 451

U.S. at 530.15 In Hudson, a prison employee allegedly maliciously destroyed

inmate property because of a “personal vendetta.” Zinermon, 494 U.S. at 129-30

(citing Hudson, 548 U.S. at 521). In McKinney, members of a county Board of

Commissioners allegedly were biased against the plaintiff. McKinney, 20 F.3d at

1554; see id. at 1563 (“As any bias on the part of the Board was not sanctioned by


       14
          There is a third potential reason: the Secretary has not argued in his motion for a stay
pending appeal that Parratt applies. See Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 680
(11th Cir. 2014) (explaining that arguments not advanced by an appellant are deemed
abandoned).
       15
          The Supreme Court subsequently held that a state actor is not liable under § 1983 for
negligent conduct. See Daniels v. Williams, 474 U.S. 327, 336 (1986).
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the state and was the product of the intentional acts of the commissioners,

under Parratt, only the state's refusal to provide a means to correct any error

resulting from the bias would engender a procedural due process violation.”).

Here, the state actor whose actions are challenged—the Secretary—is not alleged

to have acted contrary to Georgia’s customs or policies. Rather, he is alleged to

have followed them. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36

(1982) (explaining that Parratt is inapplicable when “it is the state system itself

that destroys a complainant’s property interest, by operation of law”).

      Second, and relatedly, I disagree with the dissent’s characterization of

signature mismatch determinations as “‘random and unauthorized act[s] by a state

employee.’” Dissenting Op. at 51 (quoting Parratt, 451 U.S. at 539). The

Supreme Court expressly has stated that Parratt does not apply where the state

actor—here, the Secretary—“delegated to [its employees] the power and authority

to effect the” alleged deprivation and the “concomitant duty to initiate the [state-

law] procedural safeguards.” Zinermon, 494 U.S. at 138. These are precisely the

circumstances here. The Secretary has delegated to the county elections officials

reviewing absentee ballot application and absentee ballot signatures the power and

authority to reject, without predeprivation procedures, perceived signature

mismatches. In so doing, the elections officials, rather than engaging in random

and unauthorized acts, are following procedures established and authorized by
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Georgia law—that is, comparing signatures on absentee ballot applications and

absentee ballots to the signatures on electors’ voter registration cards. O.C.G.A.

§ 21-2-381(b)(1) (absentee ballot applications), id. §§ 21-2-384(b), (c),

- 386(a)(1)(B), (C) (absentee ballots).   Those same elections officials initiate the

postdeprivation processes in place for rejecting absentee ballot applications and

absentee ballots and providing instructions on how to vote despite the rejection.

Thus, “[u]nlike in Parratt and Hudson, this case does not represent the special

instance of the Mathews due process analysis where postdeprivation process is all

that is due because no predeprivation safeguards would be of use in preventing the

kind of deprivation alleged.” Zinermon, 494 U.S. at 139.

      For these reasons, I cannot agree that Parratt applies to this case or in any

way bars GMVP from obtaining relief.

      2. The injunction does not violate principles of federalism or separation of
         powers.

      The dissent argues that the district court violated the Constitution’s core

principle of federalism by ordering an injunction that “inserted a new provision

into the [Georgia] Code.” Dissenting Op. at 57. The dissent describes this “new

statutory provision”—the contents of the injunction—as an “egregious[ ] . . .

overreach.” Id. at 15-16. Comparing the lack of statutory prerejection

procedures for perceived signature mismatches against statutory procedures for

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challenges to electors’ eligibility to remain on a county’s list of electors, the

dissent makes two points: the district court contravened the will of the Georgia

legislature by adding a procedural requirement and “the legislature deliberately

omitted the [district court’s procedural requirement] because it would be

impossible to implement.” Id. at 17.

       As to the dissent’s first argument, “while federalism certainly respects

states’ rights, it also demands the supremacy of federal law when state law officials

offend federally protected rights.” Lee, 915 F.3d at 1331. If the district court

finds that the State likely has failed to protect the federal right to due process, then

it is the district court’s prerogative to grant relief even if the Georgia legislature did

not contemplate the remedy. And, as I have explained, rather than cutting an

entirely new scheme from whole cloth, the district court’s injunction borrowed

heavily from the processes already in place for other absentee ballot application

and absentee ballot defects. See GMVP Doc. 32 at 2-3 (incorporating procedural

protections set forth in O.C.G.A. §§ 21-2-230, -384, -417, -419).16 Although the


       16
          The dissent cites two additional statutes—O.C.G.A. § 21-2-228 and O.C.G.A. § 21-2-
229—to illustrate how Georgia can legislate intricate procedures for administrative adjudication
and judicial review of voting processes when it wants to and that the legislature simply had no
will to do so here. Aside from the fact that the legislature’s will must bend to the dictates of due
process, these two statutes are poor comparators for the procedures sought and ordered here.
Challenges to elector eligibility under these two statutes can be made at any time because they
concern the right of an elector to remain on the county’s list of eligible electors. For that reason,
the processes set forth in those statutes are more intricate and contemplate more thorough, time-
consuming review. The district court’s injunction incorporated nothing of O.C.G.A. § 21-2-
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federalism and separation-of-powers implications of any federal court’s injunction

against state procedures is significant, narrow relief like that granted here does not

so offend these principles as to violate the Constitution. See generally Goldberg

v. Kelly, 397 U.S. 254 (1970) (mandating narrow reforms to a state agency’s

procedure that lacked adequate procedural due process protections). Indeed,

“rather than undermining [Georgia’s] sovereignty, the preliminary injunction’s

solution actually respected it” by borrowing from existing statutory procedures

relating to absentee ballot applications and absentee ballots. Lee, 915 F.3d at

1331.

        As to the dissent’s second argument, the record in this case suggests that the

procedural protections the district court ordered not only are possible to

implement, but in fact are rather simple to do. See GMVP Doc. 37-1 (Chair of the

Chatham County Board of Registrars’ testimony that compliance with the

injunction was “pretty straightforward” and “easily doable” and that he did “not



228. And it incorporated O.C.G.A. § 21-2-229 only insofar as one subsection of that statute—
subsection (e) permitting judicial review of the administrative decision—is expressly
incorporated into O.C.G.A. § 21-2-230. Section 230, from which the injunction rather heavily
borrowed, see supra at 9-10, 26-27 n.11, covers challenges to elector eligibility advanced much
closer to the date of an election. See O.C.G.A. § 21-2-230(a) (“Such challenge may be made at
any time prior to the elector whose right to vote is being challenged voting at the elector’s
polling place or, if such elector cast an absentee ballot, prior to 5:00 P.M. on the day before the
election”). This statutory scheme shows that the legislature also contemplated a more hurried
predeprivation review process for challenges occurring closer in time to an election (as would be
the case for perceived signature mismatches).
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believe that it will be difficult to implement the guidance . . . even with a week left

until Election Day”).        Further, the existence of O.C.G.A. § 21-2-230, which

governs challenges that occur once voting has begun and from which the

injunction here borrowed several procedures, demonstrates that the procedural

protections the district court ordered are possible to implement. The dissent

downplays the relevance of § 230 by saying that “the volume of challenges under

that section pales in comparison to the volume of signature reviews at issue here.”

Dissenting Op. at 60 n.32. This statement is unsubstantiated by any data, though,

and the data we do have in the record does not indicate that the individual county

registrars’ offices would be burdened with herculean tasks. For example, of the

524 absentee ballots Gwinnett County had rejected as of October 18, 2018, only 9

were due to perceived signature mismatches.

       I therefore disagree with the dissent that the injunction offends principles of

federalism and separation of powers.17

       3. The injunction does not violate the Equal Protection Clause.




       17
          The dissent makes a third argument for why the district court’s injunction violates
these principles, saying the injunction is a re-writing of Georgia’s code and that the district court
had no authority to do. My colleague made a nearly identical argument in a recent case, see Lee,
915 F.3d at 1347-48 (Tjoflat, J., dissenting). I disagree with his reasoning here for the same
reasons the majority in Lee rejected his argument there. See id. at 1331 (majority opinion).

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      Finally, the dissent argues that the injunction violates the Equal Protection

Clause. The dissent complains that the injunction left unfilled a number of details,

including whether the board of registrars at the administrative hearing owes any

deference to the clerk who perceived the signature mismatch and, if so, under what

standard that decision is reviewed; whether and what evidence is admissible;

whether and how discovery may proceed; and who bears the burden of proof and

what is that burden. And, the dissent says, the injunction violates equal protection

because it “leaves election officials to fill in the details” of the prerejection notice

and opportunity to be heard with a requirement “only that they do so ‘in good

faith.’” Dissenting Op. at 65 (quoting GMVP Doc. 32 at 2). Specifically, the

dissent says that the injunction runs afoul of the principle that “‘[w]hen a court

orders a statewide remedy, there must be at least some assurance that the

rudimentary requirements of equal treatment and fundamental fairness are

satisfied.’” Id. (quoting Bush v. Gore, 531 U.S. 98, 109 (2000)).

      As an initial matter, I disagree that the injunction leaves unanswered each of

the questions the dissent poses. The injunction answers the questions of what

evidence is admissible and who bears the burden of proof by its explicit reference

to O.C.G.A. § 21-2-417. That statute provides that “each elector shall present

proper identification to a poll worker”—placing the burden of proof on the

elector—by presenting any of a list of identifying documents—the type of
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evidence that would be admissible. By its reference to O.C.G.A. § 21-2-230, the

injunction suggests that the board of registrars would owe no more deference to the

official who identified a possible signature mismatch than the board would owe if

it had probable cause to believe an elector was not eligible to remain on a voting

list. See O.C.G.A. § 21-2-230(b), (e). The injunction thus is not so standardless

as to offend the Constitution.

      Moreover, I disagree that ordering county officials to act in “good faith”

leaves us without any assurance that equal protection will be provided. Given that

the injunction provides cogent standards for prerejection process, requiring county

officials to act in “good faith” does not make it likely that counties will engage in

such vastly different practices that those practices will run afoul of equal protection

principles. Indeed, county officials already are tasked with acting in good faith to

determine the eligibility of an elector who submits a provisional ballot. See

O.C.G.A. § 21-2-419(b) (“The board of registrars shall immediately examine the

information contained on [the elector’s provisional ballot] and make a good faith

effort to determine whether the person casting the provisional ballot was entitled to

vote in the primary or election.” (emphasis added)). As with that process, given




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the procedural parameters for making such a determination, I do not view the

requirement here that officials act in “good faith” as constitutionally infirm.18

       Finally, I note that the Secretary has not argued that the injunction violates

the Equal Protection Clause. He cannot satisfy his burden to show that he is

entitled to a stay pending appeal if he does not make an argument, even a

meritorious one. I therefore respectfully disagree with the dissent that we should

grant a stay on equal protection grounds.

                                   IV.     CONCLUSION

       The task of a federal Court of Appeals in reviewing a district court’s

preliminary injunction is a narrow one: it must decide only whether the district

court abused its discretion. In this case, the district court exercised its discretion

narrowly, hewing largely to preexisting state law and procedures in analogous

contexts to afford affected absentee electors a narrow form of relief. The

Secretary’s arguments on appeal have failed to convince me that the district court’s

careful exercise of its discretion to provide this limited form of relief is so




       18
          The dissent also says that in contrast to the injunction, O.C.G.A. §§ 21-2-228, 229, and
230 “each . . . answers the questions” the dissent poses, Dissenting Op. at 66, but that is untrue
for the closest analogue to the signature mismatches at issue, § 230. Section 230 no more
answers these questions than does the district court’s injunction. But, for the same reasons the
prerejection procedures in the district court’s injunction pass muster, § 230’s procedures comply
with the dictates of equal protection.
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egregious that this Court must overturn it. It is for these reasons that I voted to

deny the Secretary’s motion for a stay.




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NEWSOM, J., CIRCUIT JUDGE, concurring in the judgment:

      On November 2, 2018, I voted to deny then-Secretary Kemp’s motion to

stay the district court’s injunction on the ground that he had not made the requisite

showing under Nken v. Holder, 556 U.S. 418 (2009). I write separately today

only to emphasize my belief that our November 2 order refusing the stay says all

that needs to be said.

      On November 2, we had before us a live “case or controversy,” to be sure.

The November 2018 election was fast approaching, the district court had entered

an injunction to which Kemp objected, and Kemp had filed an appeal and, with it,

a motion to stay. We denied the stay, the election went forward, Kemp was

elected Governor, and the Office of the Secretary of State has since voluntarily

dismissed its appeal of the district court’s injunction. So while our November 2

decision was not the least bit “advisory,” it seems to me that everything we say

today—more than four months after the fact and with so much water under the

bridge—is. In my judgment, we should not now opine on issues in a case that,

though once live, is now doubly (if not triply) moot—particularly given that

nothing we can say at this point could even theoretically provide Kemp the relief

he once sought. Cf. Fleming v. Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015)

(“We cannot turn back the clock and create a world in which the County does not

have to administer the 2014 election under the strictures of the injunction.”); Stone
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v. Bd. of Election Comm’rs for City of Chicago, 643 F.3d 543, 544–45 (7th Cir.

2011) (holding that an appeal of the decision to deny a preliminary injunction was

moot “[b]ecause the election has taken place”).




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TJOFLAT, Circuit Judge, dissenting:

       This conflict centers on absentee voting under Georgia law. On October 25,

2018, the United States District Court for the Northern District of Georgia—in an

effort to ensure that all absentee ballots for the general election would be

counted—entered a preliminary injunction that effectively rewrote Georgia’s

election code. Georgia’s Secretary of State (“the Secretary”) moved in this Court

for a stay of the injunction pending appeal. We denied the Motion; I dissented,

noting that an opinion would follow. I now explain my reasons for dissenting.

                                                I.

                                               A.

       Georgia permits registered voters to vote in person on Election Day, in

person early, or by mail. Ga. Code Ann. §§ 21-2-380 to -381.19 This case

concerns the last method—voting by mail—the details of which are set out in

Sections 21-2-381 and -386 of Georgia’s election code (“the Statutes”).

       To receive a mail-in ballot, a voter must first submit an application for a

mail-in ballot. Id. § 21-2-381. When an application is received, the registrar or

absentee ballot clerk shall “compare the signature or mark of the elector on the

application with the signature or mark of the elector on the elector’s voter


       19
        Georgia’s election code collectively refers to all voting that occurs before Election
Day, whether in person or by mail, as “absentee voting.”
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registration card.” Id. § 21-2-381(b)(1). If the voter is found to be eligible, a

ballot is mailed out within three business days. Id. § 21-2-381(b)(2)(A); Ga.

Comp. R. & Regs. 183-1-14-.11. But if the voter is found to be ineligible, the

registrar or clerk shall “deny the application by writing the reason for rejection in

the proper space on the application and shall promptly notify the applicant in

writing of the ground of ineligibility.” Id. § 21-2-381(b)(3).

      The registrar or absentee ballot clerk follows a similar process for mail-in

ballots themselves. When a mail-in ballot is received, the registrar or clerk shall

      compare the signature or mark on the oath with the signature or mark
      on the absentee elector’s voter registration card or the most recent
      update to such absentee elector’s voter registration card and
      application for absentee ballot or a facsimile of said signature or mark
      taken from said card or application.

Id. § 21-2-386(a)(1)(B). If the signature appears to be valid, and other

information appears to be correct, the ballot is certified. Id. If the signature

appears to be invalid, however, the registrar or clerk “shall promptly notify the

elector of such rejection.” Id. § 21-2-386(a)(1)(C).

      A voter whose signature is determined to be invalid receives process in the

form of notice, id. §§ 21-2-381(b)(3), -386(a)(1)(C), as well as the “opportunity to

vote in the primary, election, or runoff either by applying for a second absentee

ballot prior to the day before such primary, election, or runoff or by voting in

person at the elector’s polling place on the day of the primary, election, or runoff,”
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Ga. Comp. R. & Regs. 183-1-14-.09(2).20

       Plaintiffs to this suit, Betty J. Jones, a registered voter in Georgia, and

various advocacy groups, allege that the process set out in the Statutes is

constitutionally defective.21 The mail-in voting scheme is a facial violation of

procedural due process, they argue, because the Statutes do not set out any manner

and method for appealing a determination that the signature on a mailed-in

application or ballot is invalid—that is, that it fails to match the signature on

record.

       The District Court agreed and held that Plaintiffs were substantially likely to

succeed on the merits of their procedural due process claim. The Court reasoned

that Plaintiffs have a liberty interest in voting by mail-in ballot and that the balance

of interests under Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976), the

test to determine what process is due in any situation, required Defendants to

provide notice and an opportunity to be heard before voters are first denied the



       20
          A voter who votes in person, whether on Election Day or before Election Day, is
verified by identification, not by signature. Ga. Code. Ann. § 21-2-417.
       21
            A bit more about Plaintiffs:
        Ms. Jones suffers from “circulation problems that make it very difficult for her to stand in
long lines or walk and to vote in-person.” She submitted a mail-in ballot application in
September 2018 that was rejected due to a signature mismatch. She then submitted additional
forms, but as of one week before Election Day, she had yet to receive an absentee ballot.
      The advocacy groups are the Georgia Muslim Voter Project and Asian-Americans
Advancing Justice-Atlanta.
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opportunity to vote by mail-in ballot.

      The District Court enjoined the Secretary to order election officials in

Georgia’s 159 counties to provide pre-rejection notice, to set up ad hoc

administrative tribunals to adjudicate signature disputes, and to allow an attorney

to stand in for voters at those proceedings. The Court also vested Georgia’s

superior courts, the state’s trial courts of general jurisdiction, Ga. Const. art. VI,

§ 4, para. 1, with appellate jurisdiction over the tribunals:

      The county elections official shall . . . provide pre-rejection notice and
      an opportunity to resolve the alleged signature discrepancy to the
      absentee voter. This process shall be done in good faith and is
      limited to confirming the identity of the absentee voter consistent with
      existing voter identification laws. The elections official is required to
      send rejection notice via first-class mail and also electronic means, as
      available or as otherwise required by law. This process shall include
      allowing the absentee voter to send or rely upon a duly authorized
      attorney or attorney in fact to present proper identification. . . . The
      absentee voter shall have the right to appeal any absentee ballot
      rejection following the outcome of the aforementioned process, as
      designated in [Ga. Code Ann.] § 21-2-229(e).

Ga. Muslim Voter Project v. Kemp, No. 1:18-cv-04776-LMM, slip op. at 2

(N.D. Ga. Oct. 25, 2018) (temporary restraining order) (citations omitted).

      The Court also required, for mail-in ballot applications, that election

officials provide voters with provisional ballots:

      [F]or all ballot applications where a signature mismatch is perceived,
      the county elections official shall . . . provide a provisional absentee
      ballot to the absentee voter along with information as to the process
      that will be followed in reviewing the provisional ballot. . . . Once
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       any provisional ballot is received, the procedure outlined in section 1
       above is to be followed.

Id. at 3. A provisional ballot is a ballot issued to a voter who is unable to produce

a type of statutorily enumerated identification at the polling place but who

nonetheless “swear[s] or affirm[s] that the elector is the person identified in the

elector’s voter certificate.” See Ga. Code Ann. § 21-2-417(b). The ballot is

counted only if officials verify the voter’s identification within the statutory

timeframe. Id.

       The Secretary moved in this Court under Federal Rule of Appellate

Procedure 8 for a stay of the injunction pending appeal and in the alternative, for

expedited appeal, both of which the majority denied.22 Ga. Muslim Voter Project

v. Kemp, No. 18-14502-GG, slip op. at 2 (11th Cir. Nov. 2, 2018). The majority

believed that the Secretary had not made the requisite showing under Nken v.



       22
           This Court has jurisdiction under 28 U.S.C. § 1292(a)(1) to hear the motions. Under
an exception to the final-judgment rule, we have authority to review a district court’s grant of
injunctions. 28 U.S.C. § 1291(a)(1). Though the District Court entered a temporary restraining
order (“TRO”) under Federal Rule of Civil Procedure 65(b), not a preliminary injunction under
Rule 65(a), the “label placed upon the order is not necessarily dispositive of its appealability.”
AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1314 (11th Cir. 2004) (citation
omitted). We treat a TRO as an injunction when “(1) the duration of the relief sought or granted
exceeds that allowed by a TRO (ten days), (2) the notice and hearing sought or afforded suggest
that the relief sought was a preliminary injunction, and (3) the requested relief seeks to change
the status quo.” Id. (citations omitted).
        The TRO here is properly classified as a preliminary injunction because the TRO has no
expiration, because the parties filed motions and the District Court held an evidentiary hearing,
and because the relief requires the Secretary to take new action.
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Holder, 556 U.S. 418, 129 S. Ct. 1749 (2009), which outlines the factors for

determining whether a stay pending appeal is warranted.23 Id.                 The panel also

invoked its authority under Federal Rule of Appellate Procedure 3(b)(2) to

consolidate this case and a related case, Martin v. Kemp. Ga. Muslim Voter

Project, slip op. at 2 (11th Cir. Nov. 2, 2018).

                                                 B.

       The District Court committed three errors, each of which reveals that the

Secretary makes a “strong showing that he is likely to succeed on the merits” and

that the “public interest lies” with granting the stay. See Nken, 556 U.S. at 434,

129 S. Ct. at 1761.

       In Part II, I explain that Plaintiffs’ claim must rise or fall as a facial

challenge because, as the District Court observed, “Plaintiffs have not identified a

voter to whom [the Statutes] have been unconstitutionally applied.” Ga. Muslim

Voter Project, slip op. at 19 (N.D. Ga. Oct. 24, 2018) (order granting temporary

restraining order). But Plaintiffs have not met their burden—under precedent of



       23
            In deciding whether the Court should grant a stay pending appeal, the factors are
       (1) whether the stay applicant has made a strong showing that he is likely to
       succeed on the merits; (2) whether the applicant will be irreparably injured absent
       a stay; (3) whether issuance of the stay will substantially injure the other parties
       interested in the proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 434, 129 S. Ct. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107
S. Ct. 2113, 2119 (1987)).
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both this Court and the Supreme Court—of showing that the Statutes are

unconstitutional in all of their applications.

       In Part III, I explain that even if I were to construe Plaintiffs’ claim as an as-

applied procedural due process challenge, their claim would still fail because—

under the Parratt doctrine, as expounded by this Court in McKinney—the

deprivations are random and unauthorized acts.24 Because Georgia provides a

constitutionally adequate remedy, the law requires Plaintiffs to seek relief in

Georgia superior court, not here.

       And in Part IV, I explain that even if I could conceive of a situation in which

Georgia afforded Plaintiffs no remedy, the District Court’s remedy—which takes a

hacksaw to Georgia’s election code—is unconstitutional because it violates the

doctrine of federalism and the Equal Protection Clause. A federal court faced

with a facially unconstitutional state statute has but one remedy: strike down the

statute in toto. Applied here, that remedy would be to enjoin enforcement of

Georgia’s entire mail-in voting scheme. The Court’s remedy here is particularly

abusive not only because it modifies the scheme, thus allowing it to stand, but

because it allows the scheme to vary from county to county.



       24
         The cases are Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981), overruled on
other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986), and McKinney v.
Pate, 20 F.3d 1550 (1994) (en banc).
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                                           II.

      As an initial matter, Plaintiffs have no viable facial challenge to the Statutes.

      In Plaintiffs’ view, the “opportunity to be heard is—or is not—provided by

the statute on its face.” Ga. Muslim Voter Project, slip op. at 21 (N.D. Ga. Oct.

24, 2018) (order granting temporary restraining order). As such, they must show

that “no set of circumstances exists under which the law would be valid.” J.R. v.

Hansen, 803 F.3d 1315, 1320 (11th Cir. 2015) (alteration omitted) (quoting Horton

v. City of St. Augustine, 272 F.3d 1318, 1329 (11th Cir. 2001)); see also

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1261 (11th Cir. 2012)

(requiring that, as to a facial challenge, a statute be “unconstitutional in all

applications” (citing United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095

(1987))). To succeed on their procedural due process challenge, Plaintiffs must

identify a liberty interest that is burdened. Putting these two concepts together,

then, Plaintiffs must show that the identifiable liberty interest is burdened in all of

the law’s applications.

      For scores of Georgia’s mail-in voters, however, the Statutes are valid. The

District Court determined that Plaintiffs have a “right to apply for and vote via

absentee ballot.” Ga. Muslim Voter Project, slip op. at 22 (N.D. Ga. Oct. 24,

2018) (order granting temporary restraining order). But countless mail-in voters’

signatures are determined by election officials to match. These voters
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successfully apply for mail-in ballots and, when they return those ballots,

successfully have their votes counted. For these voters, then, the right to apply for

and vote via mail-in ballot is not burdened at all. For this reason alone, Plaintiffs’

facial challenge to the Statutes fails as a matter of law.

                                          III.

       Even construed as an as-applied challenge, Plaintiffs’ procedural due

process claim still fails.

       The state may not “deprive any person of life, liberty, or property[] without

due process of law.” U.S. Const. amend. XIV, § 1. A violation of procedural due

process requires “(1) a deprivation of a constitutionally[] protected liberty or

property interest; (2) state action; and (3) constitutionally inadequate process.”

Hansen, 803 F.3d at 1320 (alteration omitted) (quoting Grayden v. Rhodes, 345

F.3d 1225, 1232 (11th Cir. 2003)). My focus is on the third element alone—the

process due.

       The Supreme Court in Parratt v. Taylor told us what process is due in cases

when, as here, we face the “impracticality of providing any meaningful

predeprivation process,” given a “random and unauthorized act by a state

employee.” Parratt, 451 U.S. at 539, 541, 101 S. Ct. at 1915, 1916. In such

situations, “postdeprivation tort remedies are all the process that is due, simply


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because they are the only remedies the State could be expected to provide.”25

Zinermon, 494 U.S. at 128, 110 S. Ct. at 985. The only relevant question once we

determine that Parratt applies is whether the state’s post-deprivation remedies are

constitutionally adequate. Cf. McKinney, 20 F.3d at 1562 (observing that

“procedural due process violations do not become complete ‘unless and until the

state refuses to provide due process’” (quoting Zinermon, 494 U.S. at 123, 110 S.

Ct. at 983)).

       I explain below that this case is a textbook application of Parratt and that

Georgia provides a constitutionally adequate remedy. I also explain that the

remedy in state court more effectively and efficiently resolves Plaintiffs’ grievance

than does the District Court’s solution.

                                              A.

       This case falls squarely within Parratt because it would be impracticable for

Georgia to provide additional pre-deprivation procedures. Cf. Fetner v. City of

Roanoke, 813 F.2d 1183, 1185–86 (11th Cir. 1987) (“The touchstone in Parratt

was the impracticability of holding a hearing prior to the claimed deprivation.”



       25
          The Court explained that “Parratt is not an exception to the Mathews balancing test,
but rather an application of that test to the unusual case in which one of the variables in the
Mathews equation—the value of predeprivation safeguards—is negligible in preventing the kind
of deprivation at issue.” Zinermon v. Burch, 494 U.S. 113, 129, 110 S. Ct. 975, 985 (1990).


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(citing Parratt, 451 U.S. at 539–41, 101 S. Ct. at 1914–16)).

      To state the obvious, the Statutes do not authorize election officials to

deprive eligible voters of the right to apply for and to vote by mail-in ballot.

Indeed, the very fact that the Secretary would remove election officials shown to

perform erroneous signature reviews reveals that election officials “lack[] the state-

clothed authority to deprive persons of constitutionally protected interests.” See

Burch v. Apalachee Cmty. Mental Health Servs., Inc., 840 F.2d 797, 801 n.9 (11th

Cir. 1988) (en banc) (emphasis omitted), aff’d sub nom. Zinermon v. Burch, 494

U.S. 113, 110 S. Ct. 975 (1990); see also Dykes v. Hosemann, 776 F.2d 942, 952

(11th Cir. 1985) (Tjoflat, J., concurring in part and dissenting in part) (reasoning

that state officials lack such authority when the state subjects them to

consequences for wrongdoing).

      I have no doubt, of course, that election officials make erroneous

determinations. But the relevant question under Parratt is whether it is

practicable for the state to do more. The volume of signatures at issue in this case

provides a ready answer to that question. As of November 2, 2018, 184,925 mail-

in ballots had been returned statewide.26 And another 85,398 were still




      26
           Ga. Sec’y of State, Election Update 1 (Nov. 2, 2018),
http://sos.ga.gov/admin/uploads/ABSENTEE_TURNOUT_REPORT_11-2-181.pdf.
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outstanding.27 That’s 270,323 ballots.            Recall, too, that a mail-in ballot does not

issue before an application, which also requires a signature review. Ga. Code

Ann. § 21-2-381. In short, Georgia’s election officials were in for 540,646

signature reviews this past election cycle. It is simply not practicable to provide

pre-deprivation notice and an opportunity to be heard when so many signature

reviews are at issue.

                                                  B.

      Plaintiffs have a remedy; it just isn’t a federal one.

      Georgia superior courts, the state’s courts of general jurisdiction, provide

Plaintiffs a forum in which to sue the election officials. See Ga. Const. art. VI,

§ 4, ¶ 1 (“The superior courts shall have jurisdiction in all cases, except as

otherwise provided in this Constitution.”). Plaintiffs, moreover, have a procedural

due process claim under the state constitution, which prohibits the deprivation of

“life, liberty, or property except by due process of law,” id. art. I, § 1, para. 1, and

which confers a private right of action, see, e.g., Atlanta Taxicab Co. Owners Ass’n

v. City of Atlanta, 638 S.E.2d 307, 314 (Ga. 2006). In short, I have no doubt that a

suit in state court would make Plaintiffs whole—in other words, that they would be

able to vote by mail-in ballot.28


      27
           Ga. Sec’y of State, supra note 26, at 1.
      28
           To entertain Plaintiffs’ procedural due process claim, the District Court must have
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       When, as here, it is impracticable for a state like Georgia to provide pre-

deprivation process for erroneous signature reviews because the state must conduct

over half a million reviews in short order, a post-deprivation suit against election

officials in state court is a constitutionally sufficient remedy.

                                                C.

       What the majority fails to realize is not just that a remedy in Georgia

superior court is sufficient but that it is also superior.

       The District Court orders election officials to craft ad hoc administrative

tribunals and vests Georgia’s superior courts with jurisdiction to review the

tribunals’ decisions. The Court’s remedy requires Plaintiffs to leap through four

hoops.

       • A voter must wait to see whether he or she receives rejection notice.

       • The voter must then respond to the notice. (The TRO does not tell us

           the means of responding or the timeframe for doing so.)

       • If the voter challenges the election official’s signature determination, he

           or she attends a hearing held by an unknown adjudicator. (The TRO

           does not tell us who.)


believed that a Georgia court, hearing Plaintiffs’ claim that they were unlawfully denied the right
to vote, would do nothing to redress Plaintiffs’ harm. Cf. McKinney, 20 F.3d at 1563 (“[U]nder
Parratt, only the state’s refusal to provide a means to correct any error . . . would engender a
procedural due process violation.”). I find that belief to be utterly implausible.

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      • If the adjudicator upholds the official’s signature determination, the voter

          can appeal the decision to the superior court.

      That’s a fatiguing process, which is made all the more frustrating by the fact

that Plaintiffs might still end up in superior court. I would send Plaintiffs directly

to superior court—the neutral decisionmaker that wields the constitutional power

to remedy their deprivations in the first instance.

                                          IV.

      Set all of this aside, now, and assume that Georgia’s mail-in voting scheme

does violate procedural due process and thus that the District Court was right to

award some remedy. The Court still violated two bedrock constitutional

principles when it crafted its injunction. First, in re-writing Georgia’s election

code, the Court violated the doctrine of federalism, which prevents federal courts

from taking action that, if done by a state’s own courts, would breach separation of

powers. And second, it violated equal protection because in re-writing Georgia’s

election code, it created a system whereby the same mail-in application or ballot

might be counted in one Georgia county but not in another. The Supreme Court’s

decision in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000) (per curiam),

forecloses any remedy that, like the District Court’s sweeping injunction, lacks

“specific standards to ensure its equal application.” Id. at 106, 121 S. Ct. at 530.

I explain each of the District Court’s errors in turn.
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                                          A.

      The District Court wrongfully took its finding of a procedural due process

violation as an invitation to rewrite Georgia’s election code out of whole cloth. I

illustrate how the Court inserted a new provision into the Code and then detail

why, under the doctrine of federalism, that insertion amounts to a constitutional

violation.

                                          1.

      The District Court’s injunction creates a new statutory provision in

Georgia’s election code. In relevant part, it requires county officials to provide

pre-rejection notice, to set up ad hoc administrative tribunals to adjudicate

signature disputes, and to allow an attorney to stand in for voters at those

proceedings. It also vests Georgia’s superior courts with appellate jurisdiction

over the tribunals:

      The county elections official shall . . . provide pre-rejection notice and
      an opportunity to resolve the alleged signature discrepancy to the
      absentee voter. This process shall be done in good faith and is
      limited to confirming the identity of the absentee voter consistent with
      existing voter identification laws. The elections official is required to
      send rejection notice via first-class mail and also electronic means, as
      available or as otherwise required by law. This process shall include
      allowing the absentee voter to send or rely upon a duly authorized
      attorney or attorney in fact to present proper identification. . . . The
      absentee voter shall have the right to appeal any absentee ballot
      rejection following the outcome of the aforementioned process, as


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       designated in [Ga. Code Ann.] § 21-2-229(e).29

Ga. Muslim Voter Project, slip op. at 2 (N.D. Ga. Oct. 25, 2018) (temporary

restraining order) (citations omitted). For mail-in ballot applications with

signatures that are determined not to match, the injunction requires election

officials to provide voters with provisional ballots:

       [F]or all ballot applications where a signature mismatch is perceived,
       the county elections official shall . . . provide a provisional absentee
       ballot to the absentee voter along with information as to the process
       that will be followed in reviewing the provisional ballot. . . . Once
       any provisional ballot is received, the procedure outlined in section 1
       above is to be followed.

Id. at 3.

       The egregiousness of the District Court’s overreaching is apparent once the

injunction is examined alongside Georgia’s election code. The code prescribes

three ways in which a voter’s qualifications or right to vote can be challenged.

See Ga. Code Ann. §§ 21-2-228 (challenges to voter qualifications by boards of

registrars), -229 (challenges to voter qualifications by other voters), -230

(challenges to the right to vote by other voters).30 For those mechanisms,



       29
         The injunction presupposes a system of administrative tribunals because without an
administrative hearing and a record thereof, the superior courts would be reviewing an
administrative decision without any record before it.
       30
          The difference between § 21-2-229 and § 21-2-230 seems to be that a voter can be
validly registered to vote yet not have the right to vote. For example, a person that meets all
qualifications but for age may register to vote if that person would reach the legal age within six
months of registration. Ga. Code Ann. § 21-2-216(c). That said, the person cannot actually
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Georgia’s legislature outlined intricate procedures for administrative adjudication

followed by judicial review in the superior courts. These procedures, each of

which I set out fully in an appendix, see Appendix B, outline every possible detail

of the adjudicatory process, including filing of a complaint, service of process,

standards for allowing a complaint to go forward, burdens of proof, allowances for

discovery (including subpoenas), allocations of costs, and timeframes and

procedures for appeal.

       Sections 21-2-228, -229, and -230 collectively reveal two important facts:

first, the District Court contravened Georgia’s legislature’s will when it wrote into

the election code its own provision and relatedly, the legislature deliberately

omitted the Court’s provision because it would be impossible to implement.

       First, the level of detail that §§ 21-2-228, -229, and -230 provide prevent the

District Court from hiding behind any assertion that it was merely effectuating the

legislature’s intent; the legislature knew how to write the Court’s remedial scheme

for itself had it wanted to. Cf. Expressio Unius Est Exclusio Alterius, Black’s Law

Dictionary (10th ed. 2014) (“[T]o express or include one thing implies the

exclusion of the other . . . .”). Said differently, the purposeful inclusion of the

procedures in §§ 21-2-228, -229, and -230 evidences the legislature’s purposeful



vote until he or she reaches the legal age. Id.
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exclusion of them from the Statutes—sections within the same code title.31

       Second, the District Court’s remedy is unachievable, something that

Georgia’s legislature was well aware of when it declined to write the Court’s

remedial scheme into the Statutes. The challenges created by §§ 21-2-228 and -

229 can be conducted at any time because they concern counties’ and

municipalities’ lists of voters, lists that are perpetually in existence. Indeed, § 21-

2-228 charges counties and municipalities with examining voters’ qualifications

“from time to time.” Ga. Code Ann. § 21-2-228(a). When examinations can

occur throughout the year, administrative adjudications and judicial review are

feasible.32 Here, by contrast, all signature examinations would be forced to occur

in a span of less than two months.33



       31
          In evaluating the legislature’s intent, we look to the election code as a whole. See
Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d 1297, 1302 (11th Cir.
2013) (“[T]he ‘fundamental canon of statutory construction is that the words of a statute must be
read in their context and with a view to their place in the overall statutory scheme’ and that a
court should ‘fit, if possible, all parts into a harmonious whole.’” (alterations omitted) (citing
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33, 120 S. Ct. 1291, 1301
(2000))).
       32
          Examinations under § 21-2-229, which authorizes one elector to challenge another
elector’s qualifications, can also occur throughout the year. Though examinations under § 21-2-
230, which authorizes one elector to challenger another elector’s right to vote, occur once voting
has begun, the volume of challenges under that section pales in comparison to the volume of
signature reviews at issue here.
       33
          The boards of registrars cannot issue mail-in ballots more than 49 days before a
general election, Ga. Code Ann. § 21-2-384(a)(2), and the superintendents of elections must
transmit consolidated returns to the secretary of state no later than 5:00 P.M. on the Monday
following the election, id. § 21-2-493(k).
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                                                 2.

       The Georgia Supreme Court—or for that matter, any Georgia court—could

not rewrite the Statutes as the District Court has done here. The Georgia

Constitution requires strict separation of powers. See Ga. Const. art. I, § 2, para. 3

(“The legislative, judicial, and executive powers shall forever remain separate and

distinct; and no person discharging the duties of one shall at the same time exercise

the functions of either of the others except as herein provided.”). That paragraph,

at bare minimum, precludes judicial rewriting of statutes. See Robinson v. Boyd,

701 S.E.2d 165, 168 (Ga. 2010) (“Under our system of separation of powers this

Court does not have the authority to rewrite statutes.” (alteration omitted) (quoting

State v. Fielden, 629 S.E.2d 252 (Ga. 2006))); see also Lumpkin Cty. v. Ga.

Insurers Insolvency Pool, 734 S.E.2d 880, 882 (Ga. 2012) (“[A] court of law is not

authorized to rewrite the statute by inserting additional language” (quoting

Abdulkadir v. State, 610 S.E.2d 50, 53 (Ga. 2005))).

       Our Constitution, which enshrines federalism, requires us, as a federal court,

to respect Georgia’s choice on its own governmental structure.34 As a sister


       34
           The reason is simple: separation of powers within a state implements federalism’s
purpose in our constitutional structure. Whereas federal separation of powers secures liberty by
diffusing power among coequal branches of the same sovereign, federalism further secures
liberty by diffusing power among different sovereigns. See, e.g., Bond v. United States, 564
U.S. 211, 222, 131 S. Ct. 2355, 2364 (2011) (“By denying any one government complete
jurisdiction over all the concerns of public life, federalism protects the liberty of the individual
from arbitrary power.”); see also Metro. Wash. Airports Auth. v. Citizens for Abatement of
                                                   61
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circuit has said, “Even the narrowest notion of federalism requires us to recognize

a state’s interest in preserving the separation of powers within its own

government as a compelling interest.” White, 416 F.3d at 773. The court

explained that a “state’s choice of how to organize its government is ‘a decision of

the most fundamental sort for a sovereign entity.’” Id. (quoting Gregory v.

Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 2400 (1991)).

       So what was the District Court to do if it found, contrary to my conclusion,

that Georgia’s mail-in voting scheme violated procedural due process?

       The power that the Supremacy Clause, see U.S. Const. art. VI, para. 2,

grants federal courts that undertake judicial review of state statutes is limited to

refusing to apply state rules of decision that they believe are unconstitutional. See

United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000) (“The remedy if

the facial challenge is successful is the striking down of the regulation . . . .” (citing

Stromberg v. California, 283 U.S. 359, 369–70, 51 S. Ct. 532, 536 (1931))); see

also Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 154 (1994)

(“American courts have no general power of control over legislatures. Their



Aircraft Noise, Inc., 501 U.S. 252, 285, 111 S. Ct. 2298, 2316 (1991) (noting that federalism
“protects the rights of the people no less than separation-of-powers principles” (citing The
Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961))). If states in turn
choose to embrace separation of powers, liberty is only further protected. Cf. Republican Party
of Minn. v. White, 416 F.3d 738, 773 (8th Cir. 2005) (“Separation of powers is a concept basic to
the states’ constitutions as well as the federal Constitution.”).
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power, tout simple, is to treat as null an otherwise relevant statute which they

believe to be beyond the powers of the legislature . . . .”). That power does not

extend—as the District Court clearly believed—to prescribing new rules of

decision on the state’s behalf. See Virginia v. Am. Booksellers Ass’n, 484 U.S.

383, 397, 108 S. Ct. 636, 645 (1988) (“[W]e will not rewrite a state law to conform

it to constitutional requirements.”).35

       The District Court could impose no remedy other than full-on injunction of

Georgia’s mail-in voting scheme in all of its applications. The Court, in other

words, can offer Georgia a choice: forego mail-in voting altogether—a privilege

that the Constitution does not require states to confer—or rework the mail-in

voting scheme so that it accords with procedural due process. As a separate

sovereign, Georgia is entitled to make that choice without the District Court’s

interference. Cf. Stanton v. Stanton, 421 U.S. 7, 18, 95 S. Ct. 1373, 1379 (1975)

(holding that the means of remedying a constitutionally defective statute “plainly is

an issue of state law to be resolved by the [state] courts on remand”); see also Eric



       35
           Remarkably, courts cannot rewrite statutes even by striking down language, rather than
by adding it. Take severability clauses—which this statute noticeably lacks. In Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), as revised (June 27, 2016), for example,
the state defendant argued for a “narrowly tailored judicial remedy,” not facial invalidation, by
pointing to a severability clause in Texas’ abortion statute. Id. at 2318−19. But the Supreme
Court responded that a “severability clause is not grounds for a court to ‘devise a judicial remedy
that entails quintessentially legislative work.’” Id. at 2319 (alterations omitted) (quoting Ayotte
v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S. Ct. 961, 968 (2006)).
                                                63
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S. Fish, Choosing Constitutional Remedies, 63 UCLA L. Rev. 322, 350 (2016) (“In

most cases, courts do not permit themselves to add language. They cannot, for

instance, add new procedures to a statute to satisfy due process

requirements . . . .”).

       Here’s the long and short of it: the District Court violated the Constitution’s

command to respect Georgia’s decision to separate its governmental functions.

Because Georgia has precluded its state’s courts from rewriting its legislative

enactments, our Constitution prevents the District Court from doing the same.36

                                                 B.

       The District Court not only rewrote Georgia’s election code, but it did so in


       36
          Ironically, the District Court could not do to a statute passed by Congress what it today
does to one passed by Georgia’s legislature. See Harris v. Garner, 216 F.3d 970, 976 (11th Cir.
2000) (“[T]he role of the judicial branch is to apply statutory language, not to rewrite it.” (citing
Badaracco v. Comm’r, 464 U.S. 386, 398, 104 S. Ct. 756, 764 (1984) (“Courts are not
authorized to rewrite a statute because they might deem its effects susceptible of
improvement.”); then citing Blount v. Rizzi, 400 U.S. 410, 419, 91 S. Ct. 423, 429 (1971) (“[I]t is
for Congress, not this Court, to rewrite the statute.”); then citing Korman v. HBC Florida, Inc.,
182 F.3d 1291, 1296 (11th Cir. 1999) (“It is not the business of courts to rewrite statutes.”)));
Califano v. Westcott, 443 U.S. 76, 95, 99 S. Ct. 2655, 2666 (1979) (Powell, J., concurring in part
and dissenting in part) (reasoning that when a statute is held unconstitutional, “it is the duty and
function of the Legislative Branch to review its [statute] in light of [the court’s] decision and
make such changes therein as it deems appropriate”); see also Fish, supra, at 339 (“[I]f judges
could add language to statutes in ordinary cases, then the judiciary would effectively become a
second legislature.”).
        The District Court’s behavior here is in fact worse. Whereas rewriting congressional
statutes implicates only the separation of powers between Congress and the Judiciary—two
coequal branches within the same sovereign—rewriting state statutes intrudes on the authority of
a distinct sovereign. See Welsh v. United States, 398 U.S. 333, 367 n.15, 90 S. Ct. 1792, 1811
n.15 (1970) (Harlan, J., concurring in the result) (noting the “limited discretion [the] Court
enjoys to extend a policy for the State even as a constitutional remedy” (citations omitted)).
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a completely standardless manner—in plain violation of what the Equal Protection

Clause requires.

      The District Court requires election officials to “provide pre-rejection notice

and an opportunity to resolve the alleged signature discrepancy to the absentee

voter.” Ga. Muslim Voter Project, slip op. at 2 (N.D. Ga. Oct. 25, 2018)

(temporary restraining order). It then leaves election officials to fill in the details

of that process, requiring only that they do so “in good faith.” Id. Though “good

faith” may be sufficient for an agreement between two friends, it is constitutionally

defective guidance to protect the fundamental right to vote.

      As the Supreme Court explained in Bush v. Gore, “When a court orders a

statewide remedy, there must be at least some assurance that the rudimentary

requirements of equal treatment and fundamental fairness are satisfied.” 531 U.S.

at 109, 121 S. Ct. at 532. There, various of Florida’s 67 counties employed a

system whereby voters selected a candidate by punching through the ballot, thus

creating a hole next to the candidate’s name. Id. at 105, 121 S. Ct. at 530. But

many voters failed to fully punch the ballot, so the ballots contained partial

perforations or, in some cases, only indentations. Id. The Florida Supreme Court

ordered each of Florida’s counties to divine the “intent of the voter.” Id. The

Court explained that the Florida Supreme Court’s command was “unobjectionable

as an abstract proposition and a starting principle.” Id. at 106, 121 S. Ct. at 530.
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The problem, however, “inhere[d] in the absence of specific standards to ensure its

equal application.” Id. The Court discussed, for example, how the voter’s intent

varies based on whether, for a ballot to be legally counted, a chad must be

completely punched, whether it must only be dimpled, or whether it must only be

punched enough so that “any light could be seen.” Id. at 106−07, 121 S. Ct. at

531.

       The District Court’s injunction is similarly standardless because it leaves

numerous questions unanswered:

       • Does the administrative tribunal owe any deference to the election

          official’s decision? If so, under what standard is the decision reviewed?

       • Is evidence admissible? If so, what evidence?

       • How is that evidence obtained, i.e., what discovery is available?

       • Who bears the burden of proof? What burden does that party face?

Because each county can answer these questions differently, Equal Protection rears

its head. The irony, of course, is that Georgia’s legislature avoided these Bush v.

Gore problems when it crafted §§ 21-2-228, -229, and -230, each of which answers

the questions that the Court here left for “good faith” implementation.

       In short, the District Court could not, in crafting a remedy, create a system of

uttlerly standardless review. When the processes for determining whether two

signatures match vary from county to county, the court has provided inadequate
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protection for the fundamental right to vote.

                                   *      *        *

      For these reasons, I respectfully dissent.




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Appendix A: District Court’s Preliminary Injunction
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                IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF GEORGIA
                         ATLANTA DIVISION


RHONDA J. MARTIN, et al.,            :
                                     :
                                     :
     Plaintiffs,                     :
                                     :
v.                                   :
                                     :
BRIAN KEMP, et al.,                  :        CIVIL ACTION NO.
                                     :        1:18-CV-4776-LMM
                                     :
     Defendants.                     :



GEORGIA MUSLIM VOTER                 :
PROJECT, et al.,                     :
                                     :
                                     :
     Plaintiffs,                     :
                                     :
v.                                   :
                                     :
BRIAN KEMP, et al.,                  :        CIVIL ACTION NO.
                                     :        1:18-CV-4789-LMM
                                     :
                                     :
     Defendants.                     :
                                     :
                                     :
                                     :
                                     :
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                                          32 Filed 10/25/18   of 782 of 4


                   TEMPORARY RESTRAINING ORDER

      Based upon the Court’s prior findings, see Martin Dkt. No. [23]; GMVP

Dkt. No. [28], the Secretary of State’s Office shall issue the following instructions

to all county boards of registrars, boards of elections, election superintendents,

and absentee clerks:

   1) All county elections officials responsible for processing absentee ballots

      shall not reject any absentee ballots due to an alleged signature mismatch.

      Instead, for all ballots where a signature mismatch is perceived, the county

      elections official shall treat this absentee ballot as a provisional ballot,

      which shall be held separate and apart from the other absentee ballots. See

      O.C.G.A. § 21-2-419; Ga. Comp. R. & Regs. 183-1-14-.03(2). The county

      elections official shall then provide pre-rejection notice and an opportunity

      to resolve the alleged signature discrepancy to the absentee voter. This

      process shall be done in good faith and is limited to confirming the identity

      of the absentee voter consistent with existing voter identification laws. See

      O.C.G.A. §§ 21-2-417, -417.1. The elections official is required to send

      rejection notice via first-class mail and also electronic means, as available

      or as otherwise required by law. See O.C.G.A. § 21-2-384(a)(2). This

      process shall include allowing the absentee voter to send or rely upon a

      duly authorized attorney or attorney in fact to present proper

      identification. This process shall be done prior to the certification of the

      consolidated returns of the election by the election superintendent. See


                                          2
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   O.C.G.A. § 21-2-230(g). The absentee voter shall have the right to appeal

   any absentee ballot rejection following the outcome of the aforementioned

   process, as designated in O.C.G.A. § 21-2-229(e). Any aforementioned

   appeals that are not resolved as of 5 p.m. on the day of the certification

   deadline shall not delay certification and shall not require recertification of

   the election results unless those votes would change the outcome of the

   election. See O.C.G.A. § 21-2-493(l).

2) All county elections officials responsible for processing absentee ballot

   applications shall not reject any absentee ballot application due to an

   alleged signature mismatch. Instead, for all ballot applications where a

   signature mismatch is perceived, the county elections official shall, in

   addition to the procedure specified in O.C.G.A. § 21-2-381(b), provide a

   provisional absentee ballot to the absentee voter along with information as

   to the process that will be followed in reviewing the provisional ballot. The

   outer envelope of the absentee ballot provided shall be marked provisional.

   Once any provisional ballot is received, the procedure outlined in section 1

   above is to be followed.

3) This injunction applies to all absentee ballot applications and absentee

   ballots rejected solely on the basis of signature mismatches submitted in

   this current election. This injunction does not apply to voters who have

   already cast an in-person vote.




                                      3
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IT IS SO ORDERED this 25th day of October, 2018.



                              _____________________________
                              Leigh Martin May
                              United States District Judge




                                 4
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Appendix B: Compiled Sections of Georgia’s Election Code

Section 21-2-228

      Section 21-2-228 requires the state’s counties and municipalities to

periodically examine their electors’ qualifications. The board of registrars, upon

questioning the right of any existing elector to remain on the list of electors, “shall

give such person at least three days’ written notice of the date, time, and place of a

hearing.” Id. § 21-2-228(d). The board must send notice by first-class mail or by

personal service by various law-enforcement officers. Id. If a majority of the

registrars determines that the elector lacks the necessary qualifications, the elector

is removed from the list of electors and must be sent notice in the same manner

described above. Id. §§ 21-2-228(e), -228(b). An aggrieved elector “shall have a

right of appeal.” Id. § 21-2-228(f). The elector exercises that right by “filing a

petition with the clerk of the superior court within ten days after the date of the

decision of the registrars.” Id. The board must receive a copy of the petition.

Id. The board’s decision “shall stand” unless it is reversed by the court. Id.

      The board has broad investigatory powers. It may “require the production

of books, papers, and other material” and “subpoena witnesses,” whom it may

swear. Id. § 21-2-228(b). All with at least three days’ notice. Id. As to the

witnesses, all summonses, notices, and subpoenas issued by the board are required

to be served by designated law-enforcement officers, who receive specified
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compensation for these services. Id. §21-2-228(c). The witnesses themselves

“shall be allowed and paid the same mileage and fee as allowed and paid witnesses

in civil actions in the superior court.” Id. The failure of a subpoenaed witness to

attend or testify “shall be reported immediately by the registrars to the appropriate

superior court.” Id. The court “shall order such witness to attend and testify,”

and the witness, upon refusal, “shall be dealt with as for contempt.” Id.

Section 21-2-229

      Section 21-2-229 allows one elector to challenge the qualifications of a

person “applying to register to vote” or “whose name appears on the list of

electors,” so long as the person is in the same county or municipality. Id. § 21-2-

229(a). The challenge “shall be in writing and shall specify distinctly the

grounds.” Id. Upon receiving a challenge, the board of registrars “shall set a

hearing,” notice of the date, time, and place of which “shall be served” upon the

challenger and the challenged party. Id. § 21-2-229(b). The challenged party

“shall receive at least three days’ notice” in the manner provided for by § 21-2-

228. Id. At the hearing, the burden of proof “shall be on the elector making the

challenge.” Id. § 21-2-229(c). After reaching a decision, the registrars “shall

notify the parties of their decision.” Id. § 21-2-229(d). If the challenge is

successful, the “application for registration shall be rejected or the person’s name

removed from the list of electors.” Id. The aggrieved elector “shall be notified”
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in the manner provided for by § 21-2-228. Id. Both the challenger and the

challenged elector “shall have a right of appeal,” and the notice requirements for

and consequences of appeal match those provided for by § 21-2-228. Id. § 21-2-

229(e).

      Here too, the code confers broad discovery powers. Upon petition by the

challenger or the challenged elector, the board “shall have the authority to issue

subpoenas for the attendance of witnesses and the production of books, papers, and

other material.”Id. § 21-2-229(c).    The requesting party “shall be responsible to

serve such subpoenas and, if necessary, to enforce the subpoenas by application to

the superior court.” Id. As is the case under § 21-2-228, the witnesses are

compensated. Id.

Section 21-2-230

      Section 21-2-230 allows one elector to challenge the right of any elector to

vote, again so long as the person is in the same county or municipality. Id. § 21-2-

230(a). The challenge “shall be in writing and specify distinctly the grounds.”

Id. If the challenge is made to a mail-in absentee ballot, it must be lodged before

5:00 p.m. on the day before the election; if it is made to an in-person absentee

ballot, or if it is made to any other method of voting, it must be made before the

vote is cast. Id.

      The board “shall immediately consider such challenge and determine
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whether probable cause exists.” Id. § 21-2-230(b). If the board finds probable

cause, it “shall notify the poll officers” of the challenged elector’s precinct or

absentee ballot precinct and “if practical, notify the challenged elector and afford

such elector an opportunity to answer.” Id.

      What happens thereafter depends on whether the challenged elector casts a

ballot and on the grounds for the challenge.

      • If the challenged elector seeks to cast a vote at the polls, and if it is

          practical to conduct a hearing before the close of polls, the board “shall

          conduct such hearing and determine the merits of the challenge.” Id.

          § 21-2-230(h). If the board sustains the challenge, the elector “shall not

          be permitted to vote,” and if the grounds for the challenge are

          ineligibility to remain on the list of electors, the elector’s name “shall be

          removed from the list.” Id. If the board denies the challenge, the

          elector “shall be permitted to vote.” Id. Even if the polls have closed,

          the elector may still vote so long as he or she “proceeds to vote

          immediately after the decision of the registrars.” Id.

      • If the challenged elector seeks to cast a vote at the polls, but if it is

          impracticable to conduct a hearing before the close of polls or if the

          board at any time determines that it could not render a decision within a

          “reasonable time,” the elector “shall be permitted to vote by casting a
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   challenged ballot on the same type of ballot that is used . . . for

   provisional ballots.” Id. § 21-2-230(i). Here too, the elector may still

   vote even if the polls have closed, so long as he or she “proceeds to vote

   immediately after such determination of the registrars.” Id. If the

   challenge is based on the eligibility of the elector to remain on the list of

   electors, the board “shall proceed to finish the hearing prior to the

   certification of the consolidated returns of the election by the election

   superintendent.” Id. If the challenge is based on other grounds, the

   board does not need to take further action. Id. Both the challenger and

   the challenged elector may appeal the board’s decision in the same

   manner as is set out in § 21-2-229(e). Id.

• If the challenged elector casts an absentee ballot, and if the challenge

   concerns the elector’s eligibility to remain on the list of electors, the

   board “shall proceed to conduct a hearing on the challenge on an

   expedited basis prior to the certification of the consolidated returns of the

   election.” Id. § 21-2-230(g). The election superintendent “shall not

   certify such consolidated returns until such hearing is complete and the

   registrars have rendered their decision on the challenge.” Id. If the

   board sustains the challenge, the challenged elector “shall be removed

   from the list of electors,” and the ballot “shall be rejected and not
      Case: 18-14502      Date Filed: 03/21/2019    Page: 78 of 78


   counted.” Id. Both the challenger and the challenged elector may

   appeal the board’s decision in the same manner as is set out in § 21-2-

   229(e). Id.

• If the challenged elector casts an absentee ballot, but if it is impracticable

   to hold a hearing prior the close of polls, and if the challenge is not based

   on the elector’s qualifications to remain on the list of electors, the ballot

   “shall be treated as a challenged ballot” as provided for by § 21-2-386(e).

   Id. § 21-2-230(e).

• If the challenged elector does not vote, absentee or otherwise, and if the

   challenge is based on the elector’s qualifications to remain on the list of

   electors, the board “shall proceed to hear the challenge” pursuant to the

   procedures of § 21-2-229. Id. § 21-2-230(f).

• If the challenged elector does not vote, absentee or otherwise, and if the

   challenge is not based on the elector’s qualifications to remain on the list

   of electors, the board does not need to take further action. Id. § 21-2-

   230(d).
