Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 1 of 14 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 REPLY BRIEF IN SUPPORT OF MOTION TO CERTIFY QUESTION OF STATE LAW TO THE GEORGIA SUPREME COURT It is ironic that the Attorney General of the State of Georgia opposes the Plaintiffs efforts to obtain a ruling from the Georgia Supreme Court on the constitutionality, under the Georgia Constitution, of the Photo ID requirement at issue in this litigation. Despite this opposition, the Court should certify the issue of state law to the Georgia Supreme Court because it is potentially determinative of Count Two of the Plaintiffs Complaint, alleging violation of the Fourteenth Amendment of the United States Constitution. Seizing on a footnote of the Plaintiffs Initial Brief, the State Defendants respond to the Plaintiffs Motion to Certify as if the Plaintiffs have asked the Court 1
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 2 of 14 to rule on and enforce a judgment on Count One of the Complaint (a claim based entirely on state law), which the Court has opined to be barred by the Eleventh Amendment. This is not the case, however. Instead, the Plaintiffs are asking the Court to certify a question of state law that is potentially determinative to the Plaintiffs federal law claim in Count Two of the Complaint, that the Photo ID requirement violates the Fourteenth Amendment to the United States Constitution. Thus, the Plaintiffs motion to certify the state constitutional issue to the Georgia Supreme Court is not an attempt to make an end run around the Eleventh Amendment. See State Defendants Brief, p. 3. It is exactly the opposite. The Plaintiffs are seeking to comply with the spirit as well as the letter of the Eleventh Amendment by having a threshold issue of state constitutional law that is inextricably intertwined with Plaintiffs federal constitutional claim under the Fourteenth Amendment of which this Court has jurisdiction under Ex Parte Young, 209 U.S. 123 (1908), decided in the first instance (and finally) by the Georgia Supreme Court, rather than by a federal court. Certification of the state constitutional issue to the Georgia Supreme Court will serve the dual purposes of federalism and comity between the federal courts and the state courts (1) by having a legal issue that is purely a matter of interpretation of the state constitution decided in the first instance by the state rather than the federal courts which is 2
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 3 of 14 one of the basic purposes of the Eleventh Amendment; (2) by expediting disposition of the case and also conserving scarce federal judicial resources; and (3) by avoiding putting the federal court in the uncomfortable position of having to decide an issue of state constitutional law that has not previously been authoritatively decided by the Georgia Supreme Court, and which is subject to being overruled if the Georgia Supreme Court were later to decide the issue differently in another case. 1 As discussed in the Plaintiffs initial brief in support of the motion to certify, the Photo ID requirement cannot be considered legitimate in this Court s Fourteenth Amendment analysis if it violates the Georgia Constitution. Further, even if the Court were to accept the State Defendants assertion that in enacting the Photo ID requirement the state sought to accomplish an end (i.e., prevention of fraudulent voting by imposters) that is legitimate or compelling, the means of achieving this end must not violate the Georgia Constitution. Cf. United States v. Robel, 389 U.S. 258, n.20 (1967) (invalidating act where the means chosen by 1 State Senator Cecil Staton, who introduced the Photo ID bill in the Senate, has been quoted as saying he hopes tweaking the law will help it pass muster with the courts. Macon Telegraph, Macon.com, December 19, 2005. One of the advantages of certification is that the Georgia Supreme Court is the body vested with the power to authoritatively construe[ ] the meaning of words in state law. Gooding v. Wilson, 405 U.S. 518, 520 (1972). Its opinion would thus control subsequent cases involving efforts to require one particular form of identification in order to vote. 3
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 4 of 14 Congress were contrary to the letter and spirit of the First Amendment) quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) ( Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. ) (emphasis added). The question of whether the particular means chosen by the General Assembly complies with the Georgia Constitution, is a question of Georgia state law. If the Georgia Supreme Court, given the opportunity, would rule that the means chosen by the legislature (i.e., Photo ID) is unconstitutional under the Georgia Constitution either because it is not authorized by the state constitution (because it is not a condition of registration or a requirement of residency, see Georgia Const., Art. II, I, II), or because it is prohibited by the Constitution (because it is not one of the two grounds on which someone who is duly registered may be denied the right to vote, see Georgia Const., Art. II, I, III), this ruling would make it unnecessary for this Court to go through the rest of the Fourteenth Amendment analysis required by Dunn v. Blumstein, 405 U.S. 330 (1972), Anderson v. Celebrezze, 460, U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). Significantly, this Court does not require a waiver of Eleventh Amendment immunity to rule on Count Two of the Complaint. See Armistead v. Pingree, 629 4
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 5 of 14 F. Supp. 273, 278 (M.D. Fla. 1986) ( The fact that compelling compliance with federal law may incidentally require state officials to comply with state law does not bar the Court from resolving the federal claims. ) This Court has full authority to address Plaintiffs Fourteenth Amendment claim, whether it interprets state law, certifies the state law question, or decides the claim on another rationale. Defendants argument that the Eleventh Amendment requires that if [plaintiffs] want an answer on their state constitutional law question, they must obtain it in the state judicial system, State Defendants Brief, p. 6, obliterates the difference between a claim based purely on state law and a federal claim that can be affected by the interpretation of state law. Their argument is without merit. See Armistead, supra; see also Burdick, 504 U.S. at 431 (discussing questions certified to the Supreme Court of Hawaii by the trial court). Certification at this time is appropriate, moreover. By certifying the question at this time, the Court will take advantage of the delay inherent in the State Defendants interlocutory appeal to the Eleventh Circuit by also seeking a ruling on a potentially determinative issue of state law from the Georgia Supreme Court. Such a procedure would expedite the ultimate resolution of this dispute, thereby conserving the resources of the parties and the judiciary. 5
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 6 of 14 Finally, Defendants arguments regarding advisory opinions and avoiding the state trial court are also without merit. O.C.G.A. 15-2-9 authorizes certification when it appears to the certifying court that there are questions of state law which are determinative of the federal proceeding. By definition, such questions are not hypothetical, and because federal courts are required to follow the interpretation of state law by the highest court of the state, an opinion rendered as a result of certification would not be merely advisory. Gooding, 405 U.S. at 520. For the foregoing reasons and those set forth in the Plaintiffs initial brief in support of their motion, the Plaintiffs Motion to Certify the Question of State Law to the Georgia Supreme Court should be granted. This 27 th day of December, 2005. Respectfully submitted, /s/ David G.H. Brackett Emmet J. Bondurant Georgia Bar No. 066900 David G.H. Brackett Georgia Bar No. 068353 6
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 7 of 14 BONDURANT, MIXSON & ELMORE, LLP 3900 One Atlantic Center 1201 W. Peachtree Street Atlanta, Georgia 30309 Telephone: 404-881-4100 Facsimile: 404-881-4111 E-mail: bondurant@bmelaw.com brackett@bmelaw.com Suite 300, Box 5511 111 Bridgepointe Plaza Rome, Georgia 30162-5511 Telephone: 706-291-2531 Facsimile: 706-291-1301 E-mail: ehinejr@bellsouth.net Edward Hine, Jr. Georgia Bar No. 355775 1100 Peachtree Street, NE Suite 2800 Atlanta, Georgia 30309 Telephone: 404-815-6500 Facsimile: 404-815-6555 E-mail: MAlexander@kilpatrickstockton.com SCohen@kilpatrickstockton.com Miles J. Alexander Georgia Bar No. 009000 Michael W. Tyler Georgia Bar No. 721152 Seth A. Cohen Georgia Bar No. 175198 7
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 8 of 14 DOFFERMYRE, SHIELDS, CANFIELD, KNOWLES & DEVINE, LLC 1355 Peachtree Street Suite 1600 Atlanta, Georgia 30309 Telephone: 404-881-8900 Facsimile: 404-881-3007 E-mail: rknowles@dsckd.com Ralph I. Knowles Georgia Bar No. 426721 ACLU OF GEORGIA 70 Fairlie Street, SW Suite 340 Atlanta, Georgia 30303 Telephone: 404-523-6201 Facsimile: 404-577-0181 E-mail: gweber@acluga.org blittrell@acluga.org mgarrett@acluga.org Gerald Weber Georgia Bar No. 744878 Elizabeth Littrell Georgia Bar No. 454949 Margaret F. Garrett Georgia Bar No. 255865 Neil Bradley Georgia Bar No. 075125 Laughlin McDonald Georgia Bar No. 489550 Meredith Bell-Platts Georgia Bar No. 048948 8
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 9 of 14 ACLU SOUTHERN REGIONAL OFFICE 2600 Marquis One Tower 245 Peachtree Center Avenue, NE Atlanta, Georgia 30303-1227 Telephone: 404-523-2721 Facsimile: 404-653-0331 E-mail: nbradley@aclu.org lmcdonald@aclu.org Jon Greenbaum LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, D.C. 20005 Telephone: 202-662-8315 Facsimile: 202-628-2858 E-mail: jgreenbaum@lawyerscommittee.org Kimberly Perkins The National Association for the Advancement of Colored People (NAACP), Inc. 4805 M. Hope Drive Baltimore, Maryland 21215-3297 Telephone: 410-580-5794 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 10013 Telephone: 212-965-2200 Facsimile: 212-226-7592 9
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 10 of 14 Tisha R. Tallman Georgia Bar No. 696949 Southeast Regional Counsel MALDEF, The Mexican American Legal Defense & Educational Fund 41 Marietta Street, Suite 1000 Atlanta, GA 30303 Telephone: 678-559-1071 Toll free: 877-4 MALDEF (1-877-462-5333) Facsimile: 678-559-1079 E-mail: ttallman@maldef.org Daniel B. Kohrman AARP FOUNDATION LITIGATION 601 E Street, N.W., Suite A4-240 Washington DC 20049 Telephone: 202-434-2064 Facsimile: 202-434-6424 E-mail: dkohrman@aarp.org Attorneys for Plaintiffs 10
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 11 of 14 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. 068353 11
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 12 of 14 CERTIFICATE OF SERVICE I, David G.H. Brackett, do hereby certify that I have this day electronically filed the foregoing PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION TO CERTIFY QUESTION OF STATE LAW TO THE GEORGIA SUPREME COURT with the Clerk of Court using the CM/ECF system which will automatically send email 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 30334 E-mail: 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 30308-2216 E-mail: mark.cohen@troutmansanders.com Anne W. Lewis, Esq. Strickland, Brockington, Lewis, LLP Midtown Proscenium, Suite 2000 1170 Peachtree Street, NE Atlanta, Georgia 30309 E-mail: awl@sbllaw.net 12
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 13 of 14 L. Branch Connelly, Esq. Cook & Connelly Cook Building 9989 South Commerce Street P.O. Box 370 Summerville, Georgia 30747 E-mail: bconn6@wavegate.com Suzanne Hutchinson, Esq. P.O. Box 580 Calhoun, Georgia 30703 E-mail: shutchinson@gordoncounty.org Thomas H. Manning, Esq. Michael D. McCrae, Esq. Smith, Shaw & Maddox, LLP SunTrust Bank Building P.O. Box 29 Rome, Georgia 30162-0029 E-mail: tmanning@smithshaw.com mmcrae@smithshaw.com Clifton M. Patty, Jr., Esq. 7731 Nashville Street Ringgold, Georgia 30736 E-mail: pattylaw@catt.com H. Boyd Pettit III, Esq. H. Boyd Pettit, PC 100 West Cherokee Avenue Suite B P.O. Box 1178 Cartersville, Georgia 30120 E-mail: hboyd@innerx.net 13
Case 4:05-cv-00201-HLM Document 72 Filed 12/27/2005 Page 14 of 14 Peter R. Olson, Esq. Jenkins & Olson, PC 15 South Public Square Cartersville, Georgia 30120 E-mail: polson@jnlaw.com Robert H. Smalley III, Esq. McCamy, Phillips, Tuggle & Fordham, LLP 411 W. Crawford Street P.O. Box 1105 Dalton, Georgia 30722-1105 E-mail: rsmalley@mccamylaw.com Brad J. McFall, Esq. Gammon, Anderson & McFall 105 Prior Street P.O. Box 292 Cedartown, Georgia 30125-0292 E-mail: bjm@gammonanderson.com This 27 th day of December 2005. /s/ David G.H. Brackett David G.H. Brackett 14