IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION

Transcription

1 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, et al., ) ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE ) NO. 4:05-CV-201-HLM MS. EVON BILLUPS, Superintendent of ) Elections for the Board of Elections and ) Voter Registration for Floyd County and ) the City of Rome, Georgia, et al., ) ) Defendants. ) PLAINTIFFS BRIEF IN OPPOSITION TO DEFENDANTS MOTION FOR STAY PENDING APPEAL The State Defendants have not established grounds for a stay pending appeal. 1 The State Defendants have failed to demonstrate that they are likely to succeed on appeal, that they will suffer irreparable harm if the stay is not granted, that the Plaintiffs will not suffer substantial harm if the stay is granted, and that a 1 The Court s Order of October 18, 2005, enjoined the Defendants from enforcing or applying the 2005 amendment to O.C.G.A , which requires voters to present a Photo ID as a pre-condition to in-person voting in Georgia, to deny Plaintiffs or any other registered voter in Georgia admission to the polls, a ballot, or the right to cast their ballots counted in any special, general, run off, or referenda election in the State of Georgia because of their failure or refusal to present a Photo ID. See Order of October 18, 2005, pp

2 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 2 of 19 stay is in the public interest. Therefore, the State Defendants motion should be denied. I. ARGUMENT AND CITATION OF AUTHORITY 2 A stay under Rule 62(c) is considered extraordinary relief for which the moving party bears a heavy burden. Dillard v. City of Foley, 926 F. Supp. 1053, 1076 (M.D. Ala. 1995) (quoting Winston-Salem/Forsyth County Bd. of Education v. Scott, 404 U.S. 1221, 1231 (1971) (Burger, C.J., in chambers)). In order to obtain a stay, the Defendants must show (1) a likelihood that they will prevail on the merits of the appeal; (2) that there will be irreparable injury to the petitioners unless the stay is granted; (3) that the adverse party will suffer no substantial harm if the stay were granted; and (4) that a stay would serve the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Garcia Mir v. Meese, 781 F.2d 1450 (11th Cir. 1986). 2 Having read and considered the briefs of the parties, presided over a hearing on the Plaintiffs Motion for Preliminary Injunction, and authored an Order that includes a meticulous review of the record, the Court is well acquainted with the facts applicable to the instant motion. For the sake of brevity, the Plaintiffs will not restate them here, except where relevant to their legal arguments. 2

3 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 3 of 19 A. The Defendants Are Not Likely to Prevail on Appeal. The Defendants fail to satisfy the first factor of the foregoing test because they are not likely to prevail on appeal. The Court correctly entered a preliminary injunction based on its conclusions that the Plaintiffs have a substantial likelihood of succeeding on the merits of their claim that the Photo ID requirement unduly burdens the right to vote in violation of the Fourteenth Amendment and also creates an unconstitutional poll tax. See Order, pp. 96, 104. As an initial matter, the Defendants appeal will be subject to a deferential standard of review by the Eleventh Circuit: Preliminary injunction decisions, 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 [the Eleventh Circuit] will not set them aside unless the district court has abused its discretion in making them. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11 th Cir. 2005). Particularly when their arguments are considered in light of this deferential standard of review, the Defendants are not likely to prevail in their appeal. Merely re-asserting the same arguments previously rejected by the district court will not satisfy the requirement of a likelihood of success on the merits on appeal. See, e.g., Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 847 (D.D.C. 1996) (party must show "change in circumstances or novel argument that 3

4 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 4 of 19 leads the Court to conclude that they bear a substantial chance of success on appeal") (citing Abrams v. Comms. Workers of Am., 702 F. Supp. 920, 925 (D.D.C. 1988), aff'd, 884 F.2d 628 (D.C. Cir. 1989)). Yet in asking for a stay pending appeal, the State Defendants re-assert the same arguments that were argued in their brief and at the hearing, and which were ultimately rejected by the Court. On page 6 of their brief, the State Defendants argue that Burdick v. Takushi, 504 U.S. 428, 434 (1992), authorizes the Photo ID requirement. This contention ignores the Court s unequivocal holding that even if the Court applies the Burdick test, Plaintiffs still have a substantial likelihood of succeeding on the merits of their Equal Protection Clause Claim. Order, p. 85. Specifically, the Court found that the character and magnitude of the asserted injury to the right to vote is significant (Order, p. 86), and the Photo ID requirement is not narrowly tailored to the State s interest of preventing voter fraud, and likely is not rationally based on that interest. Similarly, the State Defendants argument (on page 7 of their brief) that the Photo ID requirement is constitutional because one may vote absentee completely ignores the Supreme Court s holding in Harman v. Forssenius, 380 U.S. 528 (1965), which provides, as the Court explained, any material requirement imposed on a voter solely because of the voter s refusal to pay a poll tax violates the Twenty 4

5 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 5 of 19 Fourth Amendment. Order, pp (citing Harmon, 380 U.S. at 542). The State Defendants argument also ignores the Court s finding that absentee voting is simply not a realistic alternative to voting in person that is reasonably available for most voters who lack Photo ID. Order, p. 92. The State Defendants argue that they have satisfied a lesser standard of presenting a substantial case on the merits. For the foregoing reasons, however, it is doubtful that the State Defendants have even satisfied this standard. See e.g. Order, p. 84 ( The Photo ID law thus does nothing to address the voter fraud issues that conceivably exist in Georgia. ). In asserting that they have presented a substantial case on the merits the State Defendants make the following assertion: Neither the Supreme Court nor any circuit court of appeals, including the Eleventh Circuit has ever upheld a similar challenge to a photo ID requirement for in-person voting, and this Court itself recognized that its conclusion differs from that reached by other district courts. State Defendants Brief, p. 8. This assertion is misleading because [t]he identification requirements [in the cases referred to by the Defendants] are of little relevance to the case now before the Court because those requirements are much less stringent than Georgia s photo ID-only requirement. Order, p. 122, n.10 (also noting the unique nature of Georgia s Photo ID requirement). 5

6 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 6 of 19 Finally, for a Court to grant a motion to stay pending appeal where the movant can only satisfy the lesser standard of a substantial case on the merits, the movant must demonstrate that the other three factors weigh heavily in favor of granting a stay. Ruiz v. Estelle, 650 F.2d 555, (5 th Cir. 1981). As discussed below, the State Defendants can make no such showing. B. The Defendants Have Not Demonstrated that They Will Be Irreparably Harmed Absent a Stay. The Photo ID requirement... does nothing to address the voter fraud issues that conceivably exist in Georgia. Order, p. 84. Apparently recognizing this fact, in arguing that the equities of this case favor a stay, the State Defendants assert only that the Court s order will cause disruption and confusion in the upcoming November 8 elections. This potential harm, however, is overstated. 3 Since 1998, Georgia has held 3 An Atlanta Journal-Constitution article published n October 19, 2005, states: Shea Hicks, chairwoman of the Board of Elections and Registration in Gordon County, testified in the case that a preliminary injunction against the photo id requirement before November 8 could cause confusion among election officials, poll voters and voters. But Tuesday afternoon, Hicks said she was not expecting any problems on election day.... We ll be ready, she 6

7 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 7 of 19 elections in which voters were allowed to provide 17 forms of identification, including forms of non-photo identification such as a social security card, a current utility bill, a government check, a payroll check, or a bank statement that showed the name and address of the voter. See former O.C.G.A (a)(10), (11), (14), (15), (16). During that time, Georgia law also provided that a voter who did not have or was unable to find one of the seventeen forms of photographic or nonphotographic identification specified in former O.C.G.A (a) on election day, be admitted to the polls, issued a ballot and allowed to vote simply by signing a statement under oath swearing or affirming that he or she is the person identified on the elector s certificate. Former O.C.G.A (b). The preliminary injunction simply causes Georgia s voter identification law to revert to what has been the law in Georgia for over six years. Requiring election officials to follow these familiar procedures will not cause irreparable harm. The Defendants assertion that a stay would preserve the status quo more than enjoining the Photo ID requirement (see Defendants Brief, p. 3) is belied by the data recited in Defendants Brief. On page 8 of their brief, the Defendants note that 34 elections have been held under the new Photo ID requirement and that said. A copy of this article is attached hereto as Exhibit A. 7

8 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 8 of 19 another 350 elections are scheduled for November 8. If these numbers are correct, at least 316 counties or municipalities will be conducting elections for the first time since the Photo ID requirement became effective. Thus, the Court s Order enjoining enforcement of the law has the effect of preserving the status quo in a much larger portion of the state than a stay pending appeal. While the State Defendants contend that election officials will be required to devote significant time and effort to prepare for elections that comply with the Court s Order, such complaints do not justify a stay. Mere injuries, however substantial in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. Baker v. Adams County, 310 F.3d 927, 930 (6th Cir. 2002) (citing Sampson v. Murray, 415 U.S. 61, 90 (1974)) (denying a stay for the removal of a Ten Commandments display). Further, these arguments ignore the abilities of poll workers and election officials to perform their duties. Indeed, at least one such local official has been quoted as saying, We ll be ready. (A copy of the Atlanta Journal-Constitution article in which this quote appears is attached hereto as Exhibit A). 4 The Court correctly ruled that the potential injury to plaintiffs outweighs 4 It would seem that the Defendants motion for a stay would only add to the alleged confusion among election officials. 8

9 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 9 of 19 the harm to the State and defendants caused by entering a preliminary injunction. Order, p The State Defendants have failed to demonstrate that they will suffer irreparable harm in the absence of a stay. C. The Plaintiffs Would Suffer Irreparable Harm If the Stay Were Granted. The third factor is also not satisfied, as the Plaintiffs would suffer irreparable injury if the Photo ID requirement were enforced. The court ruled that the Plaintiffs demonstrated a likelihood of succeeding on the merits of their claims that the Photo ID requirement unduly burdens the right to vote and imposes a poll tax. See Order, pp. 96, 104. [V]oting is of the most fundamental significance under our constitutional structure. Burdick v. Takushi, 504 U.S. 428, 433 (1992); Reynolds v. Sims, 377 U.S. 533, 554 (1964); Harman, 380 U.S. at 537; Elrod v. Burns, 427 U.S. 347, 373 (1976). The right to vote is entitled to special constitutional protection because: The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.... [T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil rights. Reynolds, 377 U.S. at 555, 562; accord, Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ( [o]ther rights, even the most basic, are illusory if the right to vote is 9

10 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 10 of 19 undermined ). Because of the preferred place voting occupies in our constitutional scheme, any illegal impediment to the right to vote, as guaranteed by the U.S. Constitution or statute, would by its nature be an irreparable injury. Harris v. Graddick, 593 F. Supp. 128, 135 (M.D. Ala. 1984); accord, Dillard v. Crenshaw County, 640 F. Supp. 1347, 1363 (M.D. Ala. 1986) ( denial of the right to vote constitutes irreparable injury); Foster v. Kusper, 587 F. Supp. 1191, 1193 (N.D. Ill. 1984) (denial of the right to vote for candidate of choice constitutes irreparable harm ); see also Elrod, 427 U.S. at 373 (the loss of constitutionally protected freedoms for even minimal periods of time, unquestionably constitutes irreparable injury ). The record showed that the State was unable to document a single instance of fraud in the past nine years committed by someone impersonating a voter on election day at a polling place. The record also showed that some elderly, disabled or minority voters do not have the documents or funds to get a state-issued Photo ID. Some number of voters will lose their right to vote if Act 53 is implemented. Granting the stay would cause not only substantial harm to Plaintiffs right to vote, the harm caused would be irreparable. The State Defendants Motion for a Stay must be denied. D. Denial of the Stay is in the Public Interest. 10

11 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 11 of 19 The State Defendants also fail to meet the fourth factor of the test, as the vindication of constitutional violations is always in the public s interest. American Civil Liberties Union v. Rutherford County, 209 F. Supp.2d 799, 813 (M.D. Tenn. 2002); see also Indiana Civil Liberties Union v. O=Bannon, 110 F. Supp. 2d 842, (S.D. Ind. 2000), aff=d by 259 F.3d 766 (7 th Cir. 2001); American Civil Liberties Union v. Pulaski County, 96 F. Supp. 2d 691, (E.D. Ky. 2000), aff d 354 F.3d 438 (6 th Cir. 2003). The Court correctly found that [b]ecause the right to vote is a fundamental right, removing the undue burdens on that right imposed by the Photo ID requirement serves the public interest. Order, p Accordingly, the State Defendants Motion to Stay should be denied. II. CONCLUSION The Defendants have failed to satisfy the standards for a stay, and thus no stay should be issued. This 20 th day of October Respectfully submitted, /s/ David G.H. Brackett Emmet J. Bondurant Georgia Bar No David G.H. Brackett Georgia Bar No

12 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 12 of 19 BONDURANT, MIXSON & ELMORE, LLP 3900 One Atlantic Center 1201 W. Peachtree Street Atlanta, Georgia Telephone: Facsimile: Suite 300, Box Bridgepointe Plaza Rome, Georgia Telephone: Facsimile: Edward Hine, Jr. Georgia Bar No Peachtree Street, NE Suite 2800 Atlanta, Georgia Telephone: Facsimile: Miles J. Alexander Georgia Bar No Michael W. Tyler Georgia Bar No Seth A. Cohen Georgia Bar No

13 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 13 of 19 DOFFERMYRE, SHIELDS, CANFIELD, KNOWLES & DEVINE, LLC 1355 Peachtree Street Suite 1600 Atlanta, Georgia Telephone: Facsimile: Ralph I. Knowles Georgia Bar No ACLU OF GEORGIA 70 Fairlie Street, SW Suite 340 Atlanta, Georgia Telephone: Facsimile: Gerald Weber Georgia Bar No Elizabeth Littrell Georgia Bar No Margaret F. Garrett Georgia Bar No Neil Bradley Georgia Bar No Laughlin McDonald Georgia Bar No Meredith Bell-Platts Georgia Bar No

14 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 14 of 19 ACLU SOUTHERN REGIONAL OFFICE 2725 Harris Tower 233 Peachtree Street, NE Atlanta, Georgia Telephone: Facsimile: Jon Greenbaum LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, D.C Telephone: Facsimile: Kimberly Perkins The National Association for the Advancement of Colored People (NAACP), Inc M. Hope Drive Baltimore, Maryland Telephone: Theodore M. Shaw Director-Counsel Norman J. Chachkin Debo P. Adegbile NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th floor New York, NY Telephone: Facsimile:

15 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 15 of 19 Tisha R. Tallman Georgia Bar No Southeast Regional Counsel MALDEF, The Mexican American Legal Defense & Educational Fund 41 Marietta Street, Suite 1000 Atlanta, GA Telephone: Toll free: MALDEF ( ) Facsimile: Daniel B. Kohrman AARP FOUNDATION LITIGATION 601 E Street, N.W., Suite A4-240 Washington DC Telephone: Facsimile: dkohrman@aarp.org Attorneys for Plaintiffs 15

16 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 16 of 19 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I certify that this Brief complies with the font and point selections set forth in Local Rule 5.1B. This Brief has been prepared using Times New Roman font (14 point). /s/ David G.H. Brackett David G.H. Brackett Georgia Bar No

17 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 17 of 19 CERTIFICATE OF SERVICE I, David G.H. Brackett, do hereby certify that I have this day electronically filed the foregoing PLAINTIFFS BRIEF IN OPPOSITION TO DEFENDANTS MOTION FOR STAY PENDING APPEAL with the Clerk of Court using the CM/ECF system which will automatically send notification of such filing to opposing counsel as follows: Stefan E. Ritter, Esq. Dennis R. Dunn, Esq. Department of Law State of Georgia 40 Capitol Square, SW Atlanta, Georgia Stefan.Ritter@LAW.State.GA.US dennis.dunn@law.state.ga.us Mark H. Cohen, Esq. Troutman Sanders, LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia mark.cohen@troutmansanders.com Anne W. Lewis, Esq. Strickland, Brockington, Lewis, LLP Midtown Proscenium, Suite Peachtree Street, NE Atlanta, Georgia awl@sbllaw.net 17

18 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 18 of 19 L. Branch Connelly, Esq. Cook & Connelly Cook Building 9989 South Commerce Street P.O. Box 370 Summerville, Georgia Suzanne Hutchinson, Esq. P.O. Box 580 Calhoun, Georgia Thomas H. Manning, Esq. Michael D. McCrae, Esq. Smith, Shaw & Maddox, LLP SunTrust Bank Building P.O. Box 29 Rome, Georgia Clifton M. Patty, Jr., Esq Nashville Street Ringgold, Georgia H. Boyd Pettit III, Esq. H. Boyd Pettit, PC 100 West Cherokee Avenue Suite B P.O. Box 1178 Cartersville, Georgia hboyd@innerx.net 18

19 Case 4:05-cv HLM Document 50-1 Filed 10/20/2005 Page 19 of 19 Robert H. Smalley III, Esq. McCamy, Phillips, Tuggle & Fordham, LLP 411 W. Crawford Street P.O. Box 1105 Dalton, Georgia Brad J. McFall, Esq. Gammon, Anderson & McFall 105 Prior Street P.O. Box 292 Cedartown, Georgia This 20 th day of October /s/ David G.H. Brackett David G.H. Brackett 19