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                           UNITED STATES DISTRICT COURT
                           MIDDLE DISTRICT OF LOUISIANA


CLARK, et al
                                                                      CIVIL ACTION
VERSUS                                                                 20-308-SDD-RLB

JOHN BEL EDWARDS, et al

consolidated with

POWER COALITION FOR EQUITY
AND JUSTICE, et al
                                                                       CIVIL ACTION
VERSUS
                                                                       20-283-SDD-RLB
JOHN BEL EDWARDS, et al

                                          RULING

        Before the Court is the Motion to Dismiss Plaintiffs’ Complaint1 filed by Defendant,

Louisiana Attorney General Jeff Landry (“the Attorney General”). Plaintiffs, Telisa Clark,

Lakeshia Barnett, Crescent City Media Group, League of Women Voters Louisiana,

Power Coalition for Equity and Justice, Louisiana State Conference of the NAACP, Jane

Chandler, Jennifer Harding, Edith Gee Jones, and Jasmine Pogue (collectively,

“Plaintiffs”) filed an Opposition,2 to which the Attorney General filed a Reply.3 For the

reasons that follow, the Court finds that the Motion should be GRANTED.

I.      FACTUAL AND PROCEDURAL BACKGROUND

        The emergence of the novel coronavirus known as COVID-19 (hereinafter, “the

Virus”) derailed the state of Louisiana’s spring election season. Due to the public health



1
  Rec. Doc. No. 35.
2
  Rec. Doc. No. 37.
3
  Rec. Doc. No. 38.
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emergency, elections previously scheduled for April 4 and May 9, 2020 were rescheduled

by proclamation of Governor John Bel Edwards (“Governor Edwards”) to be held on July

11 and August 15, 2020.4 On April 27, 2020, the Louisiana legislature approved an

Emergency Election Plan submitted by Louisiana Secretary of State Kyle Ardoin

(“Secretary Ardoin”).5

       This matter began as two separate cases in the Middle District of Louisiana –

Power Coalition v. Edwards and Clark v. Edwards – which were consolidated on June 3,

2020.6 The consolidated Plaintiffs challenge three aspects of the Emergency Election

Plan, as well as certain provisions of Louisiana election law more generally. Plaintiffs’ first

challenge relates to the fact that, under Louisiana law, absentee by mail voting is limited

to voters who satisfy one of fifteen excuses (the “Excuse Requirement”).7 Although the

Emergency Election Plan created a COVID-19 Emergency Application allowing voters to

request an absentee ballot based on five new Virus-related excuses, Plaintiffs complain

that the new excuse categories are overly narrow and, as such, the “Plan fails to protect

other categories of voters who need protection”8 from the Virus.

       In addition to the Excuse Requirement, Plaintiffs take issue with what they call the

“Witness Requirement.” Louisiana law requires a voter using an absentee by mail ballot


4
  No. 28 JBE 2020: “Elections – Rescheduled Due to Statewide State of Emergency Caused by COVID-
19,” (March 13, 2020) (https://gov.louisiana.gov/assets/Proclamations/2020/modified/28-JBE-2020-
Special-Elections-COVID19-Postponement.pdf) and No. 46 JBE 2020: “Elections – Rescheduled Due to
Statewide       State    of     Emergency      Caused     by     COVID-19,”     (April    14,   2020)
(https://gov.louisiana.gov/assets/Proclamations/2020/modified/46-JBE-2020-Elections.pdf).
5
  “SECRETARY OF STATE EMERGENCY ELECTION PLAN FOR THE JULY 11, 2020 PRESIDENTIAL
PREFERENCE PRIMARY AND AUGUST 15, 2020 MUNICIPAL GENERAL ELECTIONS IN THE STATE
OF                                                                                        LOUISIANA”:
https://www.sos.la.gov/OurOffice/PublishedDocuments/Revised%20Emergency%20Election%20Plan%20
for%20PPP%20and%20Mun%20General%20Rev.%204-20.pdf
6
  Rec. Doc. No. 17.
7
  See La. R.S. § 18:1303.
8
  Rec. Doc. No. 47, ¶ 8.
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to “sign the certificate in the presence of one witness.”9 That witness is then required to

sign the absentee by mail ballot envelope flap, which “contain[s] a line for the handwritten

signature of one witness and a line for the printed name of the witness.”10 Plaintiffs

complain that the Emergency Election Plan “leaves in place [this] requirement” and thus

“require[s] voters who qualify to vote by mail and live on their own to risk infection to have

their ballots counted.”11

        Lastly, Plaintiffs argue that the state of Louisiana “fails to provide absentee voters

with notice of defects with their mail-in absentee ballot requests and their mail-in absentee

ballots and deprives them of an opportunity to cure such problems so their votes may be

counted.”12 The ill effects of this so-called “Cure Prohibition” are compounded, Plaintiffs

argue, by the fact that Louisiana “provides no mechanism for tracking whether one’s

absentee ballot has been received, accepted, or counted.”13 Since this action was filed,

Defendants have promulgated an emergency rule aimed at providing voters with an

opportunity to cure certain ballot deficiencies.14 In response, Plaintiffs have withdrawn

from their Motion for Preliminary Injunction the claims related to the “Cure Provision.”15

The “Cure Prohibition” is nevertheless one of the Challenged Provisions in the Complaint.

        The relief sought by Plaintiffs is severalfold. First, they seek declaratory relief,

beginning with a declaration from this Court that the Excuse Requirement and the Witness

Requirement violate the First and Fourteenth Amendments to the United States




9
  La. R. S. § 18:1306(E)(2)(a).
10
   Id.
11
   Rec. Doc. No. 47, ¶ 9.
12
   Id. at ¶ 10.
13
   Id.
14
   Rec. Doc. No. 40.
15
   Rec. Doc. No. 48.
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Constitution because those requirements (1) impose undue burdens on the fundamental

right to vote and (2) unconstitutionally condition the right to vote upon the forfeiture of the

right to bodily integrity.16 Plaintiffs also seek a declaration that the Excuse and Witness

Requirements violate Section 2 of the Voting Rights Act, as well as a declaration that the

Cure Prohibition violates the Fourteenth Amendment because it denies certain Plaintiffs

their right to procedural due process.17 Next, Plaintiffs pray for this Court to issue

preliminary and permanent injunctions that would, inter alia, prohibit Defendants from

enforcing the Excuse Requirement and the Witness Requirement for all voters during all

Louisiana elections in 2020.18 Additionally, Plaintiffs want this Court to enjoin Defendants

“to provide absentee voters notice and an opportunity to cure any defects in their

absentee ballots during, at least, all elections in Louisiana in 2020 that do not require the

voter to appear anywhere in person.”19

        The July 11 Louisiana Presidential Preference Primary/Municipal Primary is now

less than three weeks away, with early voting already underway and many absentee

ballots already distributed.20 Applications to receive absentee ballots by mail are due by

July 7 at 4:30pm. Although a statewide public health emergency remains in effect,

Louisiana has taken significant steps toward “reopening” since this action began; when

the Power Coalition Complaint was filed, Governor John Bel Edwards’ stay-at-home order

was still in place. That order expired on May 15, 2020. On June 4th, Governor Edwards

announced that Louisiana was entering “Phase 2” in the reopening process, which allows



16
   Rec. Doc. No. 47, p. 44.
17
   Id.
18
   Rec. Doc. No. 47, pp. 45-46.
19
   Rec. Doc. No. 47, p. 46.
20
   Rec. Doc. No. 35-1, p. 5.
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restaurants, bars, salons, shopping malls, churches, casinos, gyms, and other

businesses to operate at 50% capacity, subject to social distancing and other hygiene-

related requirements.21 The Governor’s proclamation cautions that “it may be necessary

to go back to the full restrictions in the Stay at Home order”22 if cases of the Virus increase

or the capacity of the health care system is threatened. But, as of now, “based upon the

advice and expertise of medical experts at the Louisiana Department of Health,”23

reopening – with precautions – is the reality on the ground. Against this backdrop,

Attorney General Jeff Landry now urges the instant Motion to Dismiss, arguing that

Plaintiffs’ claims should be dismissed because they lack standing, they have not

adequately alleged state action, and that, because of the proximity of the election, the

United States Supreme Court’s Purcell doctrine instructs this Court to avoid last-minute

electoral meddling. The Court will address the arguments in turn.

II.    LAW AND ANALYSIS

       a. The Challenged Provisions and the Anderson-Burdick Standard

       “Constitutional challenges to specific provisions of a State's election laws . . .

cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid

restrictions.”24 The United States Supreme Court has set forth the following test:

       [T]he rigorousness of our inquiry into the propriety of a state election law
       depends upon the extent to which a challenged regulation burdens First and
       Fourteenth Amendment rights. Thus, as we have recognized when those
       rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly
       drawn to advance a state interest of compelling importance.’ But when a
       state election law provision imposes only ‘reasonable, nondiscriminatory

21
    La. Proclamation Number 74 JBE 2020: “State of Emergency for COVID-19 Phase 2 of Resilient
Louisiana,”        https://gov.louisiana.gov/assets/Proclamations/2020/74-JBE-2020-State-of-Emergency-
COVID-19-Resilient-Louisiana-Phase-2.pdf
22
   Id.
23
   Id.
24
   Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (citing Storer v. Brown, 415 U.S. 724, 730 (1974)).
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       restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the
       State's important regulatory interests are generally sufficient to justify’ the
       restrictions.25

The Attorney General suggests that this test is of limited use here because Plaintiffs have

failed to identify a burden on their right to vote that relates to the State’s action and not to

the Virus itself. Plaintiffs “need to show a burden on the right to vote that resulted from

some action of the State,” he argues. “They have failed to do so because each harm they

allege would not exist but for the Virus, a non-state actor.”26

       Plaintiffs correctly note in their Motion for Preliminary Injunction that “in general,

voters do not have a constitutional right to vote by absentee ballot.”27 Nevertheless, they

argue that the burden on Plaintiffs’ right to vote due to the Challenged Provisions “is

extremely severe” because Plaintiffs “cannot safely vote in person . . . [so] they are

effectively disenfranchised.”28 The Supreme Court in Burdick stated that “all election

regulations[] have an impact on the right to vote.”29 Before delving into the merits question

of whether the impact of the Challenged Provisions on Plaintiffs’ right to vote is such that

it offends the Constitution, this Court is bound to consider the jurisdictional question of

Plaintiffs’ standing.

       b. Motions Under Federal Rule of Civil Procedure 12(b)(1)

       “When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other

Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before




25
   Burdick v. Takushi, 504 U.S. 428, 434 (1992) (internal citations omitted).
26
   Rec. Doc. No. 35-1, p. 22.
27
   Rec. Doc. No. 22-1, p. 16 (citing McDonald v. Bd. Of Election Comm’rs of Chicago, 394 U.S. 802, 808-
809 (1969).
28
   Rec. Doc. No. 22-1, p. 17.
29
   Burdick, 504 U.S at 434 (1992).
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addressing any attack on the merits.’”30 “A motion to dismiss under Rule 12(b)(1) is

analyzed under the same standard as a motion to dismiss under Rule 12(b)(6).”31

Therefore, the Court must accept all well-pleaded facts in the complaint as true and view

them in the light most favorable to the plaintiff.32 Ultimately, “[t]he burden of proof for a

Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the

plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”33

        “Article III standing is a jurisdictional prerequisite.”34 If a plaintiff lacks standing to

bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal

under Rule 12(b)(1) is appropriate.35 The party seeking to invoke federal jurisdiction bears

the burden of showing that standing existed at the time the lawsuit was filed.36 Article III

of the Constitution limits federal courts’ jurisdiction to certain “cases” and “controversies.”

“No principle is more fundamental to the judiciary’s proper role in our system of

government than the constitutional limitation of federal-court jurisdiction to actual cases

or controversies.”37       “One element of the case-or-controversy requirement” is that




30
   Crenshaw-Logal v. City of Abilene, Texas, 436 Fed.Appx. 306, 308 (5th Cir. 2011) (quoting Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011); Fed.R.Civ.P. 12(h)(3)).
31
   Wagster v. Gautreaux, 2014 WL 3546997, at *1 (M.D. La. July 16, 2014) (quoting Hall v. Louisiana, et al,
974 F.Supp.2d 978, 985 (M.D. La. Sept. 30, 2013)) (citing Benton v. U.S., 960 F.2d 19, 21 (5th Cir. 1992)).
32
   Lewis v. Brown, 2015 WL 803124, at *3 (M.D. La. Feb. 25, 2015).
33
   Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).
34
   Crenshaw-Logal, 436 Fed.Appx. at 308 (citing Steel Co., 523 U.S. at 101, 118 S.Ct. 1003, and Xerox
Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989)).
35
   Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Chair King, Inc.
v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir. 1997).
36
   M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Howery v. Allstate Ins. Co., 243
F.3d 912, 916 (5th Cir. 2001); Ramming, 281 F.3d at 161.
37
   DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal
quotation marks omitted); Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)
(internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492-493, 129
S.Ct. 1142, 173 L.Ed.2d 1 (2009).
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plaintiffs “must establish that they have standing to sue.”38 The United States Supreme

Court has held that “the irreducible constitutional minimum of standing contains three

elements”39:

        First, the plaintiff must have suffered an “injury in fact”—an invasion of a
        legally protected interest which is (a) concrete and particularized, and (b)
        actual or imminent, not conjectural or hypothetical. Second, there must be
        a causal connection between the injury and the conduct complained of—
        the injury has to be fairly traceable to the challenged action of the defendant,
        and not the result of the independent action of some third party not before
        the court. Third, it must be likely, as opposed to merely speculative, that the
        injury will be redressed by a favorable decision.40

        To establish Article III standing, an injury must be “concrete, particularized, and

actual or imminent.”41 A particularized injury is one which “affect[s] the plaintiff in a

personal and individual way.”42 “Although ‘imminence’ is concededly a somewhat elastic

concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged

injury is not too speculative for Article III purposes—that the injury is certainly

impending.”43 “Allegations of possible future injury”44 do not suffice.

        The Court will not spill ink expounding on the centrality of the right to vote, which

is unquestionably “of the most fundamental significance under our constitutional

structure.”45 The 12(b)(1) question raised by the Attorney General’s Motion is whether

Plaintiffs have articulated an “injury” to that right that is sufficient to support Article III


38
   Raines, 521 U.S. at 818, 117 S.Ct. 2312; see also Summers, 555 U.S. at 492-493, 129 S.Ct. 1142;
DaimlerChrysler Corp., 521 U.S. at 342, 126 S.Ct. 1854; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
39
   Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
40
   Id. (internal citations and quotations omitted).
41
   Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, –––– (2010).
42
   Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
and n. 1 (1992).
43
   Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992).
44
   Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
45
   Burdick, 504 U.S. at 433 (1992)(quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,
184 (1979)).
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standing. In the Attorney General’s view, Plaintiffs’ alleged injury is not “actual or

imminent”46 because the risk of “possibly coming in contact with the Virus through the act

of physically voting or by having a third party sign their absentee ballot as a witness”47 is

a harm far too hypothetical to be an “injury-in-fact” to under the doctrine.

        Plaintiffs contend that the Attorney General misunderstands their argument. The

alleged injury-in-fact is not potential exposure to the Virus, they explain, but rather the

fact that they are “forced to comply with the challenged requirements”48 of state voting

procedure. But, Plaintiffs’ cited reason for objecting to those requirements is that the

requirements force upon them a choice: to “violate social distancing guidance or face

disenfranchisement.”49 In other words, Plaintiffs simultaneously argue that risk of

exposure to the Virus is not their alleged injury-in-fact and that the State’s voting

procedures are unconstitutional because they force Plaintiffs to risk exposure to the Virus

(by violating social distancing guidance). This strikes the Court as a difficult needle to

thread. The risk presented by the Virus is the raison d’etre of Plaintiffs’ lawsuit; however

sliced, Plaintiffs’ alleged injury is inextricable from that risk.

        The analysis cannot proceed without acknowledging Purcell, the Supreme Court

doctrine that applies to cases like this one, where Plaintiffs seek broad declaratory and

injunctive relief related to a series of elections, the soonest of which is already open for

early voting.50 In Purcell v. Gonzalez, the Supreme Court held that courts in cases like




46
   Rec. Doc. No. 35-1, p. 8 (quoting Clapper, 568 U.S. at 409).
47
   Rec. Doc. No. 35-1, p.9.
48
   Rec. Doc. No. 36, p. 3, n. 3.
49
   Id.
50
   Although the August, November, and December elections are less imminent than the July 11 election,
the Court is mindful that, as the Attorney General notes, “the post-election calendar of required events for
the July 11 election have a cascading effect on the August run-off elections.” (Rec. Doc. No. 35-1, p. 5).
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this are bound to “weigh . . . considerations specific to election cases.”51 Those

considerations include the possibility that “[c]ourt orders affecting elections, especially

conflicting orders, can themselves result in voter confusion and consequent incentive to

remain away from the polls.”52 The Purcell doctrine has been invoked in recent election

cases that featured claims related to the Virus’s impact on voting. In Republican Nat'l

Comm. v. Democratic Nat'l Comm,53 the Supreme Court granted an application for stay

of the lower court’s preliminary injunction, which had required Wisconsin election officials

to count absentee ballots that were postmarked after election day. Explaining its reasons

for the stay, the Court explained that it “has repeatedly emphasized that lower federal

courts should ordinarily not alter the election rules on the eve of an election.”54 And, in

Texas Democratic Party v. Abbott, the Fifth Circuit noted that the Purcell doctrine is

especially important in situations “where, as here, ... local officials are actively shaping

their response to changing facts on the ground.”55

       The Purcell doctrine does not command judicial abstention in late-breaking

election cases, and this Court does not suggest that Purcell alone would provide a reason

to dismiss Plaintiffs’ claims. But Purcell clearly instructs that a court considering significant

judicial intervention “on the eve of an election”56 is to proceed with caution, recognizing

that, in the words of the Supreme Court, “[n]o bright line separates permissible election-

related regulation from unconstitutional infringements on First Amendment freedoms.”57



51
   Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
52
   Id. at 4-5.
53
   140 S. Ct. 1205, 1207 (2020).
54
   Id.
55
   Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 2982937, at *16 (5th Cir. June 4, 2020)
(quoting S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020)).
56
   Republican Nat'l Comm., 140 S. Ct. 1205, 1207 (2020).
57
   Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997).
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The intervention-shy spirit of Purcell is echoed in the underpinnings of Article III standing

doctrine. Indeed, “[t]he law of Article III standing, which is built on separation-of-powers

principles, serves to prevent the judicial process from being used to usurp the powers of

the political branches.”58 Under the United States Constitution Article I, § 4, “The Times,

Places and Manner of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof.” Thus, this Court undertakes the

standing analysis in this case with particular rigor, knowing that to justify potentially

disruptive judicial intervention, the existence of an Article III case or controversy is

especially vital. The injury-in-fact element is best assessed by reference to the specific

Plaintiffs in this matter, each of whom asserts a different type of injury, arising out of a

different set of circumstances.

INDIVIDUAL PLAINTIFFS

                1) Plaintiff Jane Chandler

        Jane Chandler is 76 years old and thus qualifies to receive an absentee ballot,

even under non-Emergency Election Plan voting procedures (pre-Virus Louisiana

election law provides that registered voters 65 years of age and older may vote by mail).59

As such, she can demonstrate no injury-in-fact with respect to the Excuse Requirement.

Her alleged injury centers around the Witness Requirement; Plaintiffs avers that she has

a “lung condition”60 that places her at higher risk and that she “does not know how she

will be able to safely and efficiently obtain a witness signature for her ballot envelope

without defying the predominant health guidance to maintain isolation.”61 But is the


58
   Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013).
59
   La. R.S. §18:1303(J).
60
   Rec. Doc. No. 49, p. 10.
61
   Id.
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predominant health guidance really “to maintain isolation”? According to Governor

Edwards’ recent Proclamation regarding Phase 2 of Louisiana’s reopening, that condition

would qualify Chandler as “higher-risk,” based on guidance issued by the Centers for

Disease Control and Prevention.62 For higher-risk individuals, the Governor reports the

advice of “medical experts at the Louisiana Department of Health”63 as follows:

        All individuals who are at higher risk of severe illness from COVID-19 should
        stay at home, unless travelling outside the home for an essential activity,
        such as: 1) Obtaining food, medicine, and other similar goods necessary for
        the individual or a family member of the individual. 2) Obtaining medical
        care and treatment and other similar vital services for an individual or a
        family member of the individual. 3) Going to and from an individual's
        workplace. 4) Going to and from the home of a family member. 5) Going to
        and from an individual's place of worship. 6) Engaging in outdoor activity,
        provided individuals maintain a distance of six feet from one another.64

The Governor and his health experts do recommend that higher-risk individuals “stay at

home,” but they also enumerate six “essential activities” as exceptions to that general

rule. Indeed, Chandler notes that she has left home “for limited purposes, such as a

doctor’s appointment, and has maintained social distancing best practices while out.”65

Yet, she asserts that she is suffering injury because she “does not know how she will be

able to safely and efficiently obtain a witness signature for her ballot envelope without

defying the predominant health guidance to maintain isolation.”66 Presumably, the same


62
    The Governor’s Proclamation states: “Those individuals who are at higher risk of severe illness, as
designated by the Centers for Disease Control (CDC), are those with conditions such as asthma, chronic
lung disease, compromised immune systems (including from smoking, cancer treatment, bone marrow or
organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, or use of corticosteroids or other
immune weakening medications), diabetes, serious heart disease (including heart failure, coronary artery
disease, congenital heart disease, cardiomyopathies, and hypertension), chronic kidney disease
undergoing dialysis, liver disease, or severe obesity or those who are 65 or older or living in a nursing home
or long-term care facility.”
63
        https://gov.louisiana.gov/assets/Proclamations/2020/74-JBE-2020-State-of-Emergency-COVID-19-
Resilient-Louisiana-Phase-2.pdf
64
   Id.
65
   Rec. Doc. No. 49, p. 10.
66
   Id.
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“best practices” that Chandler employed during her limited outings could be used to

ensure her safety during the brief interaction necessary to obtain a witness signature on

her ballot. The District Court for the Western District of Wisconsin has suggested various

ways in which a witness signature could be obtained while maintaining social distancing:

        . . . a friend or neighbor may watch the voter mark their ballot through a
       window, open door or other physical barrier, and even may do so by video
       chat, like Skype or Facetime, with the voter then placing the ballot outside
       for the witness to sign and mail . . . [or] the voter could ask an individual
       delivering groceries or food to witness the ballot.67

In fact, Chandler has already “arranged to have her groceries and other necessities

dropped off”68 at her home. This Court does not dismiss the risks associated with the

Virus, nor belittle the concerns of voters like Chandler. But if, as Plaintiffs argue, the

relevant injury is being forced to violate social distancing guidelines in order to vote

absentee, the Court humbly disagrees that Chandler is actually forced to so. Chandler

can get a witness signature on her absentee ballot without violating those guidelines by

taking the same precautions she takes when leaving her home for doctor’s appointments

and other “limited purposes.”69

       Chandler’s alleged injury is reminiscent of the injury asserted in Clapper v.

Amnesty International USA.70 In Clapper, a group of “attorneys and human rights, labor,

legal, and media organizations whose work allegedly requires them to engage in sensitive

and sometimes privileged telephone and e-mail communications with colleagues, clients,

sources, and other individuals located abroad”71 challenged a provision of the Foreign


67
   Democratic Nat'l Comm. v. Bostelmann, No. 20-CV-249-WMC, 2020 WL 1638374, at *6 (W.D. Wis. Apr.
2, 2020).
68
   Rec. Doc. No. 49, p. 10.
69
   Id.
70
   586 U.S. 398 (2013).
71
   Id. at 406.
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Intelligence Surveillance Act that allowed the American government “to acquire foreign

intelligence information by jointly authorizing the surveillance of individuals who are not

‘United States persons’ and are reasonably believed to be located outside the United

States.”72 Plaintiffs asserted that, because of the nature of their work, “there is an

objectively reasonable likelihood that their communications with their foreign contacts will

be intercepted under [the provision] at some point in the future.”73

        The United States Supreme Court held that such an injury was insufficient to

establish Article III standing because it involved a “highly attenuated chain of possibilities,

[and thus] does not satisfy the requirement that threatened injury must be certainly

impending.”74 Plaintiffs’ asserted injury, the Court explained, involved multiple layers of

assumptions – that the Government would target non-U.S. persons with whom the

plaintiffs communicated; that the Government would do so by invoking the authority in the

challenged provision and not some other method of surveillance; and that the

Government would successfully intercept plaintiffs’ communications.

        Although the chain of possibilities involved in Plaintiff Chandler obtaining a witness

signature for her absentee ballot is admittedly not so extensive as the chain of possibilities

in an international surveillance operation, the Clapper Court’s point nevertheless applies.

The injury asserted by Chandler is that, in light of the Virus, complying with the Witness

Requirement will cause her to compromise her safety. But for Chandler’s safety to be

compromised while obtaining a witness signature, quite a few things would have to go

wrong. First, she would have to choose a method of obtaining a signature that involved



72
   Id. at 401.
73
   Id. at 410.
74
   Clapper, 568 U.S. at 410.
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in-person contact, which, as described above, is not necessary. Second, if in-person

contact did occur, she would have to take no precautions in the form of maintaining social

distance, using personal protective equipment, hand sanitizer, and so on. Chandler

admits that she “has maintained social distancing best practices while out,”75 and has not

asserted that she would be unable to do so while obtaining a witness signature. Third, the

person that Chandler selected to witness her ballot would actually have to be carrying the

Virus. The risk is not zero, but it is highly speculative. Ultimately, Chandler would have to

comply with the Witness Requirement to vote by mail whether the Virus existed or not.

Thus, the gravamen of her asserted injury is fear of exposure to the Virus. Such fear is

simply not enough to give rise to a “certainly impending” injury. The instructions of

Governor Edwards in his most recent Proclamation make clear that, by taking

precautions, even “higher-risk” individuals can safely make contact with others.

                2) Plaintiff Edith Gee Jones

        As a 65-year-old New Orleans resident, Louisiana law enables Edith Gee Jones,

like Plaintiff Chandler, to vote by mail even pre-Virus. Obtaining a witness signature on

her absentee ballot would present no obstacle, as Ms. Jones lives with her husband. Her

alleged injury arises out of her desire “to continue her tradition of voting in person.”76

Jones plans to take advantage of the state’s expanded early voting period, since during

early voting “her polling site has typically been less crowded than on election days.”77

This is all well and good. But the Court fails to see how these allegations amount to any

colorable injury, when Louisiana law already provides for a period of early voting, to run



75
   Rec. Doc. No. 49, p. 10.
76
   Id. at p. 12.
77
   Id.
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“from fourteen days until seven days prior to any scheduled election,”78 and the

Emergency Election Plan expands the early voting period from seven days to thirteen

days for the July 11, 2020 and August 15, 2020 elections,79 providing Jones with five

additional days on which she may vote early. At best, Plaintiff Jones’ alleged injury can

be construed as arising out of the fact that the expanded early voting period in the

Emergency Election Plan has not yet been put in place for Louisiana’s fall election

season. But that is an injury far too speculative and remote to grant her standing. Jones

cannot reasonably assert an injury to her right to vote based on requirements that may or

may not be in place in their current form for the November and December elections. Jones

wants to vote early, and the law permits her to do so. The Court sees no injury to her right

to vote.

              3) Plaintiff Jennifer Harding

       Jennifer Harding lives in Baton Rouge with her husband and her son. She would

like to vote by absentee ballot “to decrease her risk of virus exposure at her polling

station,” in part because she has part-time “parental care responsibilities” for her 72-year-

old father, 71-year-old mother, and 93-year-old grandmother, all of whom have significant

health issues. Harding has not requested an absentee by mail ballot because “she does

not believe the Emergency Plan absentee ballot application permits her, or others

similarly situated in part-time eldercare roles, to request a ballot without exposure to the

risk of criminal penalty.”80




78
   La. R.S. § 18:1309(A)(1)(a)i).
79
  https://www.sos.la.gov/OurOffice/PublishedDocuments/Revised%20Emergency%20Election%20Plan%
20for%20PPP%20and%20Mun%20General%20Rev.%204-20.pdf
80
   Rec. Doc. No. 49, p. 11.
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       The “COVID-19 Emergency Application” prepared by the Secretary of State allows

an applicant to attest that she is unable to vote in person because she is “Caring for an

individual . . . who is subject to a medically necessary quarantine or isolation order as a

result of COVID-19 or who has been advised by a health care provider to self-quarantine

due to COVID-19 concerns.”81 The excuse as written is not conditioned upon having only

live-in or full-time care responsibilities. It is true, as the application states, that providing

a false statement on the ballot application is a felony offense, but the Court fails to see

why Harding would be subject to a penalty for making a false statement when she clearly

alleges that she has significant elder care responsibilities, and the Secretary of State’s

form does not inquire as to the “live-in” or “full-time” nature of those responsibilities. The

ballot application states that a penalty attaches to “knowingly making false statements;”82

as Harding avers that she does not know whether she meets the criteria, her attestation

that she needs to vote absentee because she is “caring for an individual. . .”83 would not

be knowingly false.

       The Court is sensitive to the fact that Harding and other would-be absentee voters

are not attorneys and may be uneasy about the potential criminal penalty because of

certain unclear language on the ballot application. Nevertheless, Harding’s own belief that

she would not qualify based on the Secretary of State’s criteria is apparently entirely

speculative and not sufficiently concrete to give rise to an injury-in-fact. Even assuming

that Harding would not qualify, for the same reasons described above with respect to Ms.

Chandler, the notion that the Excuse Requirement forces Harding to “jeopardiz[e] her


81
  https://www.sos.la.gov/OurOffice/PublishedDocuments/COVID-
19%20VR2%20Absentee%20by%20Mail%20Application%20(Rev.%204-20)%20Ver.%201.pdf
82
   Id.
83
   Id.
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health and the health of her family and community by voting in person”84 is a conclusion

that requires quite a few assumptions. Harding prefers to vote by absentee ballot due to

the Virus, and the state’s expanded Virus-related excuses appear to accommodate that

preference. She cannot make out a claim of injury-in-fact by assuming that she does not

qualify to vote absentee and then asserting, contra the Governor’s guidance, that voting

in person automatically poses a mortal risk. The Court is sympathetic to Harding’s

concerns, but, as the Fifth Circuit put it in Texas Democratic Party v. Abbott,

       The Constitution is not offended simply because some groups find voting
       more convenient than do the plaintiffs because of a state’s mail-in ballot
       rules. That is true even where voting in person may be extremely difficult, if
       not practically impossible, because of circumstances beyond the state’s
       control, such as the presence of the Virus.85

               4) Plaintiff Jasmine Pogue

       Like Plaintiff Harding, supra, Jasmine Pogue’s alleged injury arises out of her own

belief that she does not qualify to vote absentee by mail under the Secretary of State’s

Emergency Election Plan criteria. Pogue alleges that she suffers from asthma and has a

history of upper respiratory infections, including one in mid-March of this year. Her asthma

attacks leave her with “severe difficulty breathing.”86 Despite this, she “does not believe

that her asthma qualifies as ‘moderate or severe’”: the COVID-19 Emergency Application

lists “moderate to severe asthma” as an example of the conditions that place an individual

at higher risk due to the Virus and, therefore, qualify him or her for an absentee ballot.




84
   Rec. Doc. No. 49, p. 11.
85
   Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 2982937, at *11 (5th Cir. June 4, 2020)
(internal citations and quotations omitted).
86
   Rec. Doc. No. 49, p. 12.
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Pogue, based on her own belief that her asthma is not moderate to severe, “does not

believe that she qualifies to apply for an absentee ballot.”87

       The Court admires Pogue’s desire to be cautious when filling out the ballot

application. But her alleged injury – being forced to vote in person because she does not

fulfill any of the excuses provided – is speculative. She did not apply; her application was

not rejected. Additionally, it seems to the Court that, based on her asthma and history of

respiratory infections, Pogue qualifies for an absentee ballot on the basis of “chronic lung

disease,” which is one of the explicitly enumerated qualifying conditions. Or, since she

fears that voting “would pose severe and potentially fatal risk to her health,”88 Pogue could

discuss her desire to self-quarantine with a health care provider; if they agreed it was a

wise measure, Pogue could with clear conscience check the box on the ballot application

for individuals who have been “advised by a health care provider to self-quarantine.” As

it stands, Pogue’s alleged injury is hypothetical. It assumes that she does not meet any

of the provided excuse criteria and that, if she applied, her application would be rejected.

               5) Telisa Clark89

       Plaintiff Telisa Clark qualifies to vote absentee by mail under the Emergency

Election Plan because she suffers from hypertension and other serious heart conditions.

So, the Excuse Requirement presents no obstacle to Clark exercising her right to vote;

nor does the Witness Requirement, because Clark lives with several family members and

would not have to seek a witness outside the home. Clark’s alleged injury relates to the

November and December elections, for which no Emergency Election Plan has yet been


87
   Id.
88
   Id.
89
    Plaintiffs have moved to amend Ms. Clark’s declaration (See Rec. Doc. No 68), but the proposed
amendments do not affect the analysis herein.
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put in place. Plaintiffs allege that, for those future elections, Clark “does not qualify to

request an absentee ballot and must choose between voting in person – risking her health

and the health of her family – and not voting at all.”90 This allegation assumes that the

Emergency Election Plan will not be extended to apply for the November and December

election. It is as yet unknown what procedures will govern those elections. It is premature,

speculative, and insufficiently concrete for Clark to assert an injury-in-fact based on

requirements that may or may not be in place in the future. Governor Edwards and

Secretary of State Ardoin have certified states of emergency and implemented changes

– in the form of gubernatorial Proclamations and the Emergency Election Plan – in

response to the evolving Virus situation. Until Clark can articulate a concrete, imminent

injury based on an actual state policy, her claims present no injury-in-fact sufficient to

support a finding of Article III standing.

                  6) Plaintiff Lakeshia Barnett

          Lakeshia Barnett is the daughter of co-Plaintiff Telisa Clark. She resides with her

parents and several other family members, all of whom suffer from health conditions that

qualify them to vote absentee under the Emergency Election Plan. Barnett herself,

however, “understands that she needs an excuse to qualify for an absentee ballot in

Louisiana and that she does not qualify for any excuse under Louisiana law.”91 Assuming

arguendo that Barnett is correct in her assessment that she could not qualify to vote

absentee by mail, the Court acknowledges that she would then be required to vote in




90
     Rec. Doc. No. 47, p. 9.
91
     Rec. Doc. No. 47, p. 10.
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person. Per Barnett, voting in person means that she “would have to choose between her

vote and her family’s health.”92

       The Court finds that this form of injury – alleged by several Plaintiffs – is

hypothetical and speculative. Like Plaintiff Chandler, Ms. Barnett’s alleged injury is

dependent on “highly attenuated chain of possibilities, [and thus] does not satisfy the

requirement that threatened injury must be certainly impending.”93 A number of

circumstances would have to coalesce in order for Barnett’s health to be jeopardized by

exercising her right to vote. Her injury becomes manifest if she confronts a crowded

polling place (and does not take advantage of early voting when the polls are less

crowded), social distancing and personal protective equipment fails to ameliorate the risk,

and she comes into contact with an infected person and she transmits the Virus to her

family. This “chain of possibilities” is further complicated by Barnett’s attestation that she

is employed by the United States Postal Service and explains that at her job, she “rarely

interacts with members of the public and always wears protective gear.”94 Barnett fails to

explain how those same precautions would fail to protect her when she votes in person.

The Emergency Election Plan allows Barnett to take advantage of early voting to minimize

human interaction, and the Plan sets forth a bevy of measures to be employed at polling

places, including hand sanitizer, gloves, masks, tape and cones to mark 6-foot social

distancing intervals, and disinfectant wipes to clean each voting machine, pen, pencil,

and voter card between voters.95 Barnett’s assumption that she would be forced to violate



92
   Id.
93
   Note 72, supra
94
   Id. at p. 9.
95
  https://www.sos.la.gov/OurOffice/PublishedDocuments/Revised%20Emergency%20Election%20Plan%
20for%20PPP%20and%20Mun%20General%20Rev.%204-20.pdf.
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social distancing guidelines and risk infection with the Virus in order to vote in person is

just that: an assumption. While her own fears for her health and the health of her family

are undoubtedly quite real, Article III standing doctrine is quite clear: “[a]llegations of

possible future injury”96 are not sufficient. Moreover, Barnett’s alleged injury is not

sufficiently particularized; undoubtedly many voters who continue to work in public-facing

occupations during the Virus have concerns about the effect on their health and the health

of their families. That concern does not “affect[] the plaintiff in a personal and individual

way;”97 navigating how to safely appear in public against the backdrop of the Virus is the

new normal for all Americans.

        The public health emergency caused by the Virus is by no means over. But,

according to Governor Edwards, whose Proclamations are issued based on advice from

state public health experts and the Centers for Disease Control, the conditions on the

ground are sufficiently safe for even higher-risk individuals to travel to and from work,

attend church, visit the doctor, the grocery store, and family members’ homes, provided

that they take appropriate precautions and exercise social distancing.98 In light of the

public health emergency, the Secretary of State has promulgated an Emergency Election

Plan that almost doubles the length of the early voting period, creates five new Virus-

related excuses for absentee by mail voting, and implements strict disinfection and social

distancing plans at polling places. Plaintiffs strenuously assert that their alleged injury is

not merely fear of exposure to the Virus – likely because they know that such an argument

does not pass constitutional muster. But, examining the claims of each Plaintiff, to the


96
   Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
97
   Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
and n. 1 (1992)).
98
   See above.
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extent they articulate a potential injury at all, that injury is inextricably bound up in fear of

exposure to the Virus. Plaintiffs instead characterize their injury as “the immediate

impairment of the right to vote in the context of the objective danger created by the

pandemic.”99 However, they fail to adequately allege that there has been, or will be, an

impairment of the right to vote attributable to State action. Based on the allegations in the

Complaint, two of the six individual Plaintiffs face no obstacle to voting absentee by mail

in the July and August elections but claim injury based on their supposition that they might

not be able to do the same in the scheduled November and December elections. Another

Plaintiff claims injury based on the Witness Requirement but fails to allege how that

requirement represents an “immediate impairment” to her right to vote; by her own

admission, she has made “limited outings” while taking precautions, and she could do the

same to obtain a witness signature. The other three Plaintiffs allege that the Excuse

Requirement presents an impairment to their right to vote because they do not qualify

and thus must vote in person, which they prefer not to do. Plaintiffs’ own “beliefs” that

they do not qualify for mail ballots are speculative, since all three appear to at least

arguably qualify under one of the excuses provided on the ballot application. And, in any

event, they fail to allege how voting in person represents an “impairment” of their right to

vote. The potential presence of the Virus in their polling place is not a legal impairment of

their right; it is an epidemiological reality to which state officials have responded, not by

impairing voting rights, but by expanding them. Some of the Plaintiffs here appear to have

“fallen through the cracks” in the emergency ballot application. They feel that they should

qualify, but either because they have concluded that their health conditions are not


99
     Rec. Doc. No. 36, p. 6.
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serious enough to qualify them based on their diagnosis or upon the advice of their doctor,

or because none of the categories on the ballot application captures with 100% accuracy

the reason for their desire to vote absentee by mail, they have not filled out the application.

        Even assuming that they would not qualify if they applied, Plaintiffs’ desire to avoid

their polling place because of their fear – however legitimate -- that they would be exposed

to the Virus is simply not an injury-in-fact. The Governor, based on the advice of state

medical officials and the Centers for Disease Control, has authorized even higher-risk

individuals to leave home, taking precautions, for activities like work and church. The

Secretary of State, in concert with the legislature and the Governor, has promulgated an

Emergency Election Plan that expands the availability of social-distancing-compliant

avenues for voting, including early voting and voting by mail. Moreover, the Emergency

Election Plan provides for the implementation of social distancing, personal protective

equipment, and disinfection protocols at polling places. Thus, the Court rejects Plaintiffs’

contention that they are being “forced to choose” between their health and voting. After

accounting for the state’s expansion of voting opportunities and the realistic level of risk

on the ground, as described by Governor Edwards, Plaintiffs’ alleged injury can be only

fear of the risk of exposure to the Virus. In a state with 2.9 million registered voters100 and

48,634 confirmed cases of the Virus,101 the “chain of possibilities”102 is too remote – not

certainly impending – and speculative.

        This holding should not be construed as minimizing or deriding Plaintiffs’ fear of

the Virus, which is a very legitimate public health concern. However, in a situation where



100
    Rec. Doc. No. 61, p. 2 (Parties’ Joint Stipulation as to the Admission of Certain Facts).
101
    Id.
102
    Clapper, 568 U.S. at 410.
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judicial intervention is disfavored as a matter of law, and the state authorities, to whom

the Constitution delegates the authority to determine the “Times, Places, and Manner”103

of elections, have undertaken a Virus-related expansion of voting opportunities, this Court

finds that Plaintiffs have not plausibly alleged an injury to their right to vote.

ORGANIZATIONAL PLAINTIFFS

        Not all of the Plaintiffs are individuals. Four nonprofit organizations – Crescent City

Media Group, the League of Women Voters Louisiana, Power Coalition for Equity and

Justice, and the Louisiana State Conference of the NAACP – join this action and must

likewise demonstrate standing under Article III. An organization “can establish standing

in its own name if it meets the same standing test that applies to individuals.”104 So, the

organizational Plaintiffs must demonstrate the same “injury-in-fact,” required for the

above-discussed individual Plaintiffs, as well as show that the injury-in-fact is fairly

traceable to, and redressable by, Defendants. The Fifth Circuit has held that “[n]onprofit

organizations can suffer an Article III injury when a defendant's actions frustrate their

missions and force them to “divert significant resources to counteract the defendant's

conduct.”105 Organizational standing based on resource diversion arises when “the

defendant's conduct significantly and ‘perceptibly impaired’ the organization's ability to

provide its “’activities—with the consequent drain on the organization's resources...’ Such

injury must be “concrete and demonstrable.”106 In the Complaints, all four organizational

Plaintiffs assert standing based on their diversion of resources and the frustration of their




103
    Article I, § 4.
104
    OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017).
105
    N.A.A.C.P. v. City of Kyle, Texas, 626 F.3d 233, 238 (5th Cir. 2010).
106
    N.A.A.C.P., 626 F.3d at 238 (5th Cir. 2010).
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missions. “Not every diversion of resources to counteract the defendant's conduct,

however, establishes an injury in fact.”107

      1) Power Coalition for Equity and Justice

         Power Coalition for Equity and Justice (“Power Coalition”) describes itself as a

“nonpartisan, nonprofit statewide civic engagement table in Louisiana that works to build

grassroots power, advocate for community-centered policies, and increase voter

participation.”108 In 2019, Power Coalition’s voting-related efforts included over 1.2 million

“contact attempts” in the form of door knocks, phone calls, and text messages to

“infrequent and semi-frequent voters of color.”109 Power Coalition also “routinely provides

rides to the polls and rapid response voter support on Election Days.”110

         Power Coalition reports that, “[s]ince the COVID-19 pandemic began,” it has been

forced to shift to “virtual engagement models” and to dedicate time to “monitoring and

responding to each iteration of Louisiana’s Emergency Plan.”111 If the Challenged

Provisions are not enjoined by this Court, Power Coalition alleges that it “anticipates

diverting resources to train volunteers and educate voters on the limitations of these

measures [and] expects to receive an influx of requests for rides to the polls or assistance

obtaining a witness signature in advance of Election Day, and recurring questions about

how to adhere to social distancing guidance while attempting to vote in person or in the

presence of a signatory.”112




107
    Id.
108
    Rec. Doc. No. 49, p. 9.
109
    Id.
110
    Id.
111
    Id.
112
    Id.
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          As an initial matter, the Court does not find that Power Coalition has alleged a

significant diversion of resources. By their own allegations, they have a strong voting-

related mission, including offering rides to the polls and voter support. The fact that they

anticipate demand for those services does not strike the Court as an injury, nor does the

fact that they undertook to monitor developments in Louisiana election law; that activity

seems consistent with their general activities and mission. In NAACP v. City of Kyle, Tex.,

the Fifth Circuit found that the Home Builders Association of Greater Austin did not have

organizational standing in a Fair Housing Act case where it alleged injury based on a new

city housing ordinance because the HBA had “not explained how the activities [it

undertook in response to the ordinance], which basically boil down to examining and

communicating about developments in local zoning and subdivision ordinances, differ

from the HBA's routine lobbying activities.”113 Likewise here. In OCA-Greater Houston v.

Texas, the Fifth Circuit distinguished NAACP v. City of Kyle, explaining that an

organization that “went out of its way to counteract the effect of Texas’s allegedly unlawful

voter-interpreter restriction”114 had organizational standing. The Court simply does not

see how Power Coalition has “gone out of its way” in response to the actions of

Defendants. This is especially true because the Challenged Provisions were already part

of Louisiana law and thus, the organization cannot claim to be expending resources to

research, understand, and educate the public on new laws. The expanded ballot excuses

related to the Virus are new, of course, but again, the Court is unpersuaded that




113
      N.A.A.C.P., 626 F.3d at 238 (5th Cir. 2010).
114
      OCA-Greater Houston, 867 F.3d at 612 (5th Cir. 2017).
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conducting voter education on those excuses is “out of the way” for an organization with

a self-described mission to “increase voter participation.”115

         Even assuming that Power Coalition had alleged an injury, that injury is traceable

to the Virus, not to the State actions of Defendants. The pandemic has wreaked havoc

on many aspects of society – courts, schools, businesses, churches, and almost every

conceivable organization has shifted its operations and spent money in response to the

Virus. In that sense, the Virus’s manifold effects on society are an injury that is “plainly

undifferentiated and ‘common to all members of the public.’”116 So, Power Coalition (and

the other organizational Plaintiffs) has not articulated a particularized injury. In any event,

the fact that Power Coalition’s voting activities are now partly Virus-related (i.e. fielding

questions about social distancing and Virus-related ballot excuses) is not fairly traceable

to Defendants. And it would be a stretch for Power Coalition to argue that the state’s

actions – which, after all, expanded early voting and access to absentee by mail voting –

somehow frustrates their mission of “increas[ing] voter participation.”117 The Court does

not deny that the Virus has thrown a wrench into Power Coalition’s normal operations,

but even assuming arguendo that sufficient injury has been alleged, that injury is not fairly

traceable to the conduct of Defendants.

      2) Louisiana State Conference of the NAACP

         The Louisiana State Conference of the National Association for the Advancement

of Colored People (the “Louisiana NAACP”) has a membership that “includes Black voters

residing throughout Louisiana.”118 The Louisiana NAACP’s work “includes efforts to


115
    Rec. Doc. No. 49, p. 9.
116
    United States v. Richardson, 418 U.S. 166, 177 (1974).
117
    Rec. Doc. No. 49, p. 9.
118
    Rec. Doc. No. 49, p. 10.
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register, educate, and advocate on behalf of Black voters throughout Louisiana” in

support of its mission, which focuses on “eliminating racial discrimination in the

democratic process and ensuring the protection of voting rights and equitable political

representation.”119 The Louisiana NAACP alleges that, “[a]s a direct result of the

Challenged Provisions, the Louisiana NAACP has diverted its limited resources to monitor

and investigate the impact of the Challenged Provisions on its members, and has

advocated for a modified Emergency Plan that considers the significant impact of the

COVID-19 pandemic on Black Louisianans. . .”120 Again the Court is unpersuaded that

these activities represent a significant diversion of resources away from the Louisiana

NAACP’s mission of “ensuring the protection of voting rights”.121 And, assuming that this

alleged diversion of resources suffices to show Article III injury, that injury is traceable to

the Virus, not Defendants. The Challenged Provisions were part of Louisiana election law

pre-Virus. To the extent those provisions impact the Louisiana NAACP and its members

differently now, it is due to the Virus and its attendant upheaval.

      3) League of Women Voters Louisiana

         The League of Women Voters Louisiana (“LWVLA”) is a “nonpartisan, not-for-profit

corporation” that seeks to “ensure a strong, active, and participatory democracy for all

voters,”122 “particularly those from traditionally underrepresented or underserved

communities.”123 LWVLA asserts that, “[b]ecause of the restrictions on absentee ballots

under Louisiana law during the COVID-19 pandemic, [it] has been forced to divert time



119
    Id.
120
    Id.
121
    Note 115, supra.
122
    Rec. Doc. No. 47, p. 12.
123
    Id.
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and resources away from its regular activities.”124 As an initial matter, the Court notes that

there are actually fewer “restrictions on absentee ballots” during the pandemic than there

are under normal, pre-Virus Louisiana election law. Nevertheless, LWVLA explains that

they are compelled to conduct public education on the “complicated and vague Excuse

Requirement” in the Emergency Election Plan, as well as to advise voters on how to “stay

safe while complying with the law and voting.”125 Confusingly, LWVLA alleges that these

Virus-related activities will prevent them from engaging in the following LWVLA efforts:

“voter registration efforts, education around the 2020 Census and redistricting, and ‘Get

Out the Vote’ efforts during the 2020 election cycle.”126 The Court fails to see how the

Virus-related changes represent a significant diversion of resources from LWVLA’s

planned mission. Based on LWVLA’s own allegations, it will spend the Louisiana election

season engaged in voter education, voter outreach, and advocacy. The fact that the

content of that education and outreach is now related to the Emergency Election Plan is

not enough to demonstrate an injury-in-fact. Assuming arguendo that injury has been

demonstrated, that injury is nevertheless squarely traceable to the global pandemic, not

to the actions of Defendants. To hold otherwise would be to hold than any change in state

election law gave nonprofit organizations like the LWVLA standing to sue, simply because

they were forced to incorporate the new legal landscape into their education and outreach

efforts. That cannot be true. In any event, the Emergency Election Plan expands voting

opportunities; the LWVLA cannot argue that it was forced to divert resources “to

counteract the defendant's conduct”127 when LWVLA defines it mission as seeking to


124
    Id.
125
    Rec. Doc. No. 47, p. 12.
126
    Id.
127
    N.A.A.C.P. v. City of Kyle, Texas, 626 F.3d 233, 238 (5th Cir. 2010).
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ensure that all voters “have the opportunity and the information to exercise their right to

vote.”128 The same could be said for all of the organizational Plaintiffs. Injury does not

arise because of their desire or preference for a different scheme of absentee by mail

voting, nor because they adjust their organization’s activities in response to the Virus and

the Virus-related changes to the law. The law is not static. It cannot follow that every

change in voting laws that causes voting advocacy groups to ‘check and adjust’ is an

injury.

          Other courts have held to the contrary in similar cases. For example, in Fair Fight

Action, Inc., v. Raffensperger,129 the District Court for the Northern District of Georgia

considered      whether      organizational      standing     existed     where       several   nonprofit

organizations that “have promoting voting and voter education as part of their missions. .

. each allege that they have had to, or will have to, redistribute resources from existing

programs to ones specifically designed to address [state election officials’] challenged

practices.”130 The court concluded that the organizations did have standing, because

“[t]he diversion of resources from general voting initiatives or other missions of the

organization to programs designed to address the impact of the specific conduct of the

Defendants satisfies the injury-in-fact prong.”131

          Although the organizational Plaintiffs in this action make very similar allegations,

the nature of Defendants’ conduct – the conduct to which the organizations allege they

are responding by diverting resources – is distinguishable. In Raffensperger, the

challenged policies included state officials’ “enforcing the ‘Use it or Lose it’ statute [which


128
    Rec. Doc. No. 47, p. 12.
129
    Fair Fight Action, Inc. v. Raffensperger, 413 F. Supp. 3d 1251 (N.D. Ga. 2019).
130
    Id. at 1267.
131
    Id.
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purged voters from the registration rolls], enforcing the Exact Match policy [which

automatically rejected a voter’s registration application if the provided data did not exactly

match data in existing state and federal databases], failure to secure voter registration

data, failure to secure voting machines, promoting poll closures, maintaining inaccurate

voter rolls, failing to provide adequate resources, and failing to properly train election

officials on provisional and absentee ballots.”132

           These allegations strike the Court as distinguishable from the instant case in two

important respects. First, Raffensperger is a 2019 case and thus free from the tangled

issues of causation present here, where the organizational Plaintiffs’ diversion of

resources is arguably attributable not to Defendants’ conduct but to a global pandemic

that has caused resources to be diverted by nearly every individual and organization in

society. Second, the organizational plaintiffs in Raffensperger were challenging policies

that had the effect of making it more difficult to vote – e.g. purging voter rolls, closing

polls, and improperly rejecting voter registration applications. By contrast here,

Defendants’ Emergency Election Plan expands access to voting, albeit not as much as

Plaintiffs would prefer. In the face of expanded voting access, it is more difficult for

Plaintiffs to show that they have “diverted significant resources to counteract the

defendant’s conduct.”133 Plaintiffs are not counteracting Defendant’s conduct; they are

helping the individuals they serve to vote, under unprecedented circumstances.




132
      Fair Fight Action, Inc. v. Raffensperger, 413 F. Supp. 3d 1251, 1268 (N.D. Ga. 2019).
133
      NAACP, 626 F.3d 233 at 238.
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                4)       Crescent City Media Group

        The final organizational Plaintiff is Crescent City Media Group (“CCMG”), “a

community engagement and media production agency based in New Orleans.”134 CCMG

exists “to address disparities in civic engagement and political education in communities

of color in Louisiana.”135 To that end, CCMG conducts “civic engagement trainings, voter

registration campaigns, census education, mutual aid and direct service, and voter

education.”136 CCMG alleges that “much of [its] planned work has been put on hold”

because it is now “using its limited resources to acquire and produce masks and other

personal protective materials to provide to voters who will be forced to cast a ballot in

person this year because they do not qualify for an absentee ballot under the Excuse

Requirement.”137 CCMG alleges that it will “provide direct support at polling places by

handing out hand sanitizer and information on social distancing.”138 Now, CCMG is

engaged in “educating voters about the Emergency Election Plan, explaining and training

voters on the Excuse Requirement [and] doing radio and television public service

announcements about what voters can do to protect themselves from COVID-19 infection

while complying with the Witness Requirement.”139 The above activities, CCMG explains,

will take away from the time and money it would have otherwise spent on “activities

relating to the Census, voter registration drivers, and redistricting.”140




134
    Rec. Doc. No. 47, p. 10.
135
    Id.
136
    Id.
137
    Rec. Doc. No. 47, p. 11.
138
    Id.
139
    Id.
140
    Id.
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           Naturally, CCMG would prefer to operate in an environment where the Virus had

not interjected significant uncertainty into the voting process. But the fact that they are

engaged in voter education efforts – which is part of their stated mission – does not

constitute a diversion of resources that gives rise to an injury-in-fact. The shift in resources

and priorities described by CCMG is attributable not to the state’s efforts to amend state

election procedures in light of the Virus, but rather to the Virus itself. If there is an

individual, a business, an organization, or a government entity that has gone unaffected

by the explosion of the Virus onto the scene this spring, the Court is not aware of it. Many

tragic effects have followed, and CCMG’s efforts to ameliorate the impact of the Virus on

Louisiana citizens are admirable. But CCMG does not acquire standing to sue Defendants

by alleging that its resources have been diverted and plans upended, when (1) the cause

of that diversion is the Virus and (2) the diversion does not frustrate its mission but, in

fact, complements it.

           It is not lost on this Court that, as Plaintiffs point out, “Louisiana is just one of four

states that have refused to relax their excuse requirements so that all voters can vote

absentee during this pandemic.”141 On this topic, the United States Constitution is clear:

the “Times, Places, and Manner”142 of these elections is a matter left to the states. During

this election cycle, Louisiana state officials have exercised their statutory authority to put

in place an Emergency Election Plan. Secretary of State Ardoin proposed an original

version of the Emergency Election Plan that would have gone much further to relax the

Challenged Provisions in this lawsuit. Indeed, Plaintiffs aver that the original plan “would




141
      Rec. Doc. No. 36, p. 13.
142
      Article I, Section 4.
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have substantially reduced the risk of voters being exposed to COVID-19.”143 However,

the original plan was “blocked by the Louisiana legislature.”144 The question before the

Court is not whether the Emergency Election Plan that was eventually adopted is in line

with the actions taken in other states, or whether the Plan comports with the preferences

of Louisianans. The question is whether that Plan is constitutional. As the Fifth Circuit in

Texas Democratic Party v. Abbott explained, “we need not—and will not—consider the

prudence of [the state’s] plans for combating the Virus when holding elections. Instead,

we must decide only whether the challenged provisions . . . run afoul of the Constitution,

not whether they offend the policy preferences of a federal district judge.”145 Here, this

Court does not reach the merits of Plaintiffs’ claims because it finds that they have failed

to adequately allege an injury-in-fact sufficient to give rise to standing under Article III or

because the demonstrated injury is not traceable to state action. “No principle is more

fundamental to the judiciary's proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual cases or controversies.”146

The need to establish jurisdiction before proceeding is even more essential in cases like

this, given the Supreme Court’s warning “that lower federal courts should ordinarily not

alter the election rules on the eve of an election.”147 This Court has no jurisdiction where

Plaintiffs have not shown that the actions of Defendants – who, though they may not have

expanded voting opportunities as much as Plaintiffs would prefer, undeniably expanded

them – have caused them injury.



143
    Rec. Doc. No. 47, p. 3.
144
    Id.
145
    Texas Democratic Party v. Abbott, No. 20-50407, 2020 WL 2982937, at *5 (5th Cir. June 4, 2020).
146
    DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
147
    Republican Nat'l Comm., 140 S. Ct. 1205, 1207 (2020).
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III.    CONCLUSION

        For the reasons stated above, the Attorney General’s Motion to Dismiss148 is

hereby GRANTED and Plaintiffs’ claims against all Defendants are dismissed with

prejudice. Because the dismissal is on standing grounds, the Court does not reach the

Attorney General’s 12(b)(6) argument, his argument for required joinder under 12(b)(7),

or his argument that Plaintiffs’ suit is barred by political question doctrine. The hearing on

the Motions for Preliminary Injunction set to begin June 24, 2020149 is hereby

CANCELED. Additionally, the Motion for Extension of Time150 filed by the Attorney

General and Secretary Ardoin is hereby DENIED as MOOT.

        IT IS SO ORDERED.

        Signed in Baton Rouge, Louisiana on June 22, 2020.



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




148
    Rec. Doc. No. 35.
149
    Rec. Doc. No. 28.
150
    Rec. Doc. No. 64.
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