U.S. District Judge Steve C. Jones said four multi-state voter advocacy groups that made the request have not proven a likelihood of success on their claims necessary for a preliminary injunction, while also raising issues with their standing and failure to provide defendant Georgia Secretary of State Brad Raffensperger with a statutorily required notice.
Judge Jones said Georgia's election officials would be severely burdened by having to determine before Jan. 5 if any voters were improperly removed from rolls in 2019 and whether they had re-registered since, and to then restore the eligibility of any wrongly purged voters.
"Plaintiffs have not shown that a single voter was prevented from re-registering before the deadline [to register for the Senate runoffs] on Dec. 7, 2020," Judge Jones said in his order. "In fact, the testimony at the evidentiary hearing established that many of the individuals on the 2019 canceled registration list have re-registered to vote due to outreach efforts."
Although Judge Jones rejected many of the plaintiffs' arguments in his order, he kept alive their claims, indicating he would "allow the briefing process to run" and rule at a later date on Raffensperger's motion to dismiss the suit. He urged the parties to get together in the meantime to figure out why their respective eligible voter lists might differ.
Gerald A. Griggs of Gerald A. Griggs LLC, an attorney for the voter advocacy groups, told Law360 the judge's ruling underscored that "there are inaccuracies within the [state's] voter roll maintenance process."
"We stand ready to meet with the secretary of state to remedy the problem of improper purges from the voting rolls," Griggs said in an emailed statement. "We await the secretary to set the meeting."
Raffensperger did not immediately provide a comment on the case.
The Black Voters Matter Fund, Transformative Justice Coalition, Rainbow Push Coalition and Southwest Voter Registration Education Project sued Raffensperger on Dec. 2, claiming violations of the National Voter Registration Act and the 14th Amendment right to vote. They filed their motion for preliminary injunction on Dec. 3 seeking the immediate restoration of eligibility for 199,908 purged voters.
The plaintiffs claimed Raffensperger violated the NVRA by not using one of 18 United States Postal Service licensees to evaluate notice-of-change-of-address lists in order to determine which voters should be purged. In turn, he violated the act's requirement to maintain accurate and current voter lists, the groups argued.
But Judge Jones said the plain language of the law meant it was fine for Raffensperger to contract a non-licensee as long as the information used by that company came from a licensee, which is what the state did in 2019.
He said the groups' NVRA claims also failed because the law required them to send Raffensperger a notice of their grievances, giving him 90 days to correct any violations before being sued.
The groups pointed to a report published in August by the ACLU of Georgia claiming the state wrongly purged voters, which Raffensperger publicly commented on at the time, as well as two letters sent in subsequent weeks to his office.
But Judge Jones said the report wasn't written by the plaintiffs or sent to Raffensperger, and the letters, of which one wasn't from plaintiffs either, were sent 71 and 44 days before the lawsuit was filed.
Judge Jones rejected the groups' argument that notice under the act was futile, saying they couldn't prove Raffensperger would not have corrected any violations within 90 days. He said they ultimately lacked standing to sue under the NVRA, even though he found they had organizational standing in general because they spent thousands of dollars warning Georgia voters they may have been wrongly purged.
The judge also criticized as time-barred and not proven the groups' constitutional claim that Georgia's "use it or lose it" policy for voter registration is against people's right to vote, saying that issue has been litigated in Georgia since 2018. The state cancels registration after nine years of voter inactivity.
"Plaintiffs here have not submitted evidence that any individual voter was burdened by the process," Judge Jones said. "The court sees no reason why plaintiffs waited until December of 2020 to bring their broader constitutional claims."
Judge Jones said the groups had failed to show they would suffer irreparable harm without the immediate restoration of eligibility for purged voters, citing their "tenuous connection" to canceled voters.
He also said the runoff election was already in play and that under well established case law, the court should be wary of interfering at the last minute, particularly because it would likely cause "significant" voter confusion.
The plaintiff groups are represented by Gerald A. Griggs of Gerald A. Griggs LLC, Jeanne E. Mirer of Mirer Mazzocchi & Julien PLLC, Maria O. Banjo of Maria O. Banjo LLC, Tricia P. Hoffler of The CK Hoffler Firm and Fred D. Gray of Gray Langford Sapp McGowan Gray Gray & Nathanson.
Raffensperger is represented by Bryan F. Jacoutot, Bryan P. Tyson and Loree A. Paradise of Taylor English Duma LLP.
The case is Black Voters Matter Fund et al. v. Raffensperger, case number 1:20-cv-04869, in the U.S. District Court for the Northern District of Georgia.
--Editing by Philip Shea.
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