Fair Fight Action Raffensberger Good 1515-2

Case 1:17-cv-02989-AT Document 1515-2 Filed 10/12/22 Page 1 of 89
Fair Fight Action, Inc. v. Raffensperger, --- F.Supp.3d ---- (2022)
3. The Secretary of State's Alleged Mismanagement of

2022 WL 4725887
Voter Rolls...––––
Only the Westlaw citation is currently available.
United States District Court, 4. Plaintiffs expert witnesses...––––
N.D. Georgia, Atlanta Division.
5. Other Evidence Considered...––––
FAIR FIGHT ACTION, INC., et al., Plaintiffs,
v.
II. CONCLUSIONS OF LAW...––––
Brad RAFFENSPERGER, et al., Defendants.
A. Jurisdictional Considerations...––––
CIVIL ACTION FILE No. 1:18-CV-5391-SCJ
1. Standing...––––
|
Signed September 30, 2022 2. Political Question Doctrine...––––
3. Mootness...––––
OPINION AND MEMORANDUM OF DECISION
B. Count I: Fundamental Right to Vote Claim...––––
STEVE C. JONES, UNITED STATES DISTRICT JUDGE
1. Legal Standard...––––
*1 This is a voting rights case that resulted in wins and
losses for all parties over the course of the litigation and 2. Issue: Absentee Ballot Cancelation Procedures...––––
culminated in what is believed to have been the longest voting
3. Issue: The Secretary of State's Alleged Mismanagement
rights bench trial in the history of the Northern District of
of the Voter Rolls...––––
Georgia. “[B]earing in mind that these circumstances involve
‘one of the most fundamental rights of ... citizens: the right 4. Issue: Exact Match...––––
to vote,’ ” the Court now, in accordance with applicable law,
approaches this case with caution to render its Opinion and C. CountII: Fifteenth Amendment...––––
Memorandum of Decision, inclusive of findings of fact and
conclusions of law. Ga. State Conf. of NAACP v. Fayette 1. Legal Standard...––––
Cty. Bd. of Comm'rs, 775 F.3d 1336, 1343 (11th Cir. 2015)
(citations omitted). 2. Issue and Challenged Practices: Exact Match (MIDR and
Citizenship Match)...––––
D. Count III: Equal Protection...––––

TABLE OF CONTENTS
1. Legal Standard...––––
I. FINDINGS OF FACT...––––
A. Procedural History...–––– 2. Racial Discrimination...––––
B. The Named Parties...–––– 3. Geographic Discrimination...––––
1. Plaintiffs...–––– E. Count V: Section 2 of the Voting Rights Act...––––
2. The Named Defendants...––––
1. Analysis of the Applicable Factors

C. The Issues and Challenged Practices...––––
and Guideposts...––––
1. Training on Absentee Ballot Cancelations...––––
2. Exact Match...––––
F. Remaining Affirmative Defenses...––––
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1

extent it sought to dismiss the remaining counts against all

III. CONCLUSION...–––– Defendants or to dismiss the Voting Rights Act claim against
the SEB. Doc. No. [68], 83–84. The Court found all elements
I. FINDINGS OF FACT
of standing were satisfied. Id. at 22.
Having considered the evidence at trial, the parties’
presentations (pursuant to Federal Rule of Civil Procedure
Second, on December 27, 2019, the Court issued its
52(c)), and closing arguments, this Court makes the following
decision on Plaintiffs’ Motion for Preliminary Injunction,
findings of fact. 1 which concerned Georgia's list maintenance process and the
changing of the status of a large number of Georgia voters
on the State's inactive voter list to canceled status. Doc.
A. Procedural History
No. [188]. The motion initially concerned 120,561 voters;
A review of the record shows that on November 27, 2018,
however, “[s]ubsequent to the filing of Plaintiffs’ motion, the
Fair Fight Action and Care in Action filed a Complaint
Secretary of State returned 22,000 of the 120,561 voters [at
in this Court for declaratory and injunctive relief in which
issue] to the voting roll (after review of Plaintiffs’ briefing
they alleged “serious and unconstitutional flaws in Georgia's
and based upon the definition of a calendar year).” Doc. No.
elections process.” Doc. No. [1], ¶ 2. The Complaint has
[188], 2–3. The Court eventually denied Plaintiffs’ motion on
since been amended twice, first as a matter of right on
Eleventh Amendment and state sovereignty grounds. Id. at 32.
February 19, 2019, and again with permission of the Court
At the conclusion of the order, the Court exercised its inherent
on December 3, 2020. See Doc. Nos. [41]; [570]; [582].
authority to control the conduct of the parties and ordered
Four faith-based organizations—Sixth Episcopal District of
Defendants to make additional diligent and reasonable efforts
the A.M.E. Church, Ebenezer Baptist Church, Baconton
(through notices on the Secretary of State's website and
Missionary Baptist Church, and Virginia-Highland Church
press releases) to inform the general public of the voter list
—subsequently joined the Amended Complaint as Plaintiffs.
maintenance process and the need for the canceled voters
Doc. No. [41]. 2 to reregister to vote during the applicable registration time
period. Id. at 188.
*2 In the operative Second Amended Complaint, Plaintiffs
sue Secretary of State Brad Raffensperger in his official *3 Third, on February 16, 2021, the Court issued a decision
capacity. 3 Doc. No. [582]. Plaintiffs also sue the State on Defendants’ Motion for Summary Judgment with respect
Election Board (“SEB”) itself and members of the SEB in to jurisdictional issues. Doc. No. [612]. The Court dismissed
their official capacities. Id. Plaintiffs allege violations of Plaintiffs’ claims about changes in precincts and polling
federal law related to: the fundamental right to vote secured places on standing grounds, and it dismissed Plaintiffs’ claims
by the First and Fourteenth Amendments to the United as they pertained to security of the voter registration database,
States Constitution (Count I); the ban on racial discrimination dates of birth on absentee ballots, and failure to notify voters
in voting secured by the Fifteenth Amendment (Count II); of absentee ballot rejections for mootness. Id. at 71–72. The
violation of equal protection secured by the Fourteenth standing dismissal was based largely on a recent opinion
Amendment (Count III); violation of procedural due process
from the Eleventh Circuit, Jacobson v. Florida Secretary
secured by the Fourteenth Amendment (Count IV); 4 and of State, 957 F.3d 1193 (11th Cir.), opinion vacated and
violation of Section 2 of the Voting Rights Act of 1965 (Count
V). Id. superseded, 974 F.3d 1236 (11th Cir. 2020). The mootness
dismissal was based upon the State of Georgia's significant
The Court has issued a number of substantive orders in this change to its election laws in the form of HB 316 and HB 392
case. First, on May 30, 2019, the Court ruled on a Motion and cessation of the behavior on which Plaintiffs’ claims were
to Dismiss brought by Defendants. Doc. No. [68]. The Court based. As stated in the Court's prior orders:
granted the Motion to the extent it sought to dismiss the claims
During the 2019 Legislative Session, the Georgia General
against the SEB premised on 42 U.S.C. § 1983 and on Assembly passed HB 316 and HB 392. HB 316, which
the Help America Vote Act (which Plaintiffs subsequently was signed into law by the Governor on April 2, 2019,
eliminated from the case with respect to all Defendants by amends the Georgia Election Code to, among other
the filing of the Second Amended Complaint). See Doc. Nos. things, provide for more notice under Georgia's voter-list-
[68], 84; [570]; [582]. The Court denied the Motion to the maintenance process; to provide that a voter registration is

not automatically rejected under the Exact Match policy; Defendants’ Renewed Motion for Summary Judgment as to
to provide for the implementation of new voting machines; Plaintiffs’ Voting Rights Act claim. See Doc. No. [636], 47.
to prohibit the superintendent of a county from changing a
polling place less than thirty days before a general primary After the summary judgment proceedings concluded, the
or general election; to authorize the Secretary of State Court entered a series of pretrial orders, and the Court's
to become a member of a nongovernmental entity whose Amended-Final Consolidated Pretrial Order (Doc. No. [753])
purpose is to share and exchange information in order to governed the issues for trial. In Plaintiffs’ Statement of the
improve the accuracy and efficiency of voter registration Case for purposes of the Pretrial Order, Plaintiffs described
systems; and to change the way which provisional ballots their remaining claims as follows:
and absentee ballots are counted
Plaintiffs contend that Defendants the Georgia Secretary
.... of State (SOS), the State Election Board (SEB) and the
SEB members are denying and abridging Georgians’ right
HB 392, which was signed into law by the Governor to vote through: (1) the SOS's “Exact Match” policy
on April 29, 2019, requires the Secretary of State and its application; (2) extensive mismanagement of the
to promulgate a regulation establishing industry-based statewide voter registration list; and (3) non-uniform and
security standards and to annually certify that Georgia is improper practices regarding in-person cancellation of
substantially complying with its own security regulations. absentee ballots. These three policies and practices violate
federal law, as follows:
Doc. No. [68], 23–24; see also Doc. No. [612], 58–64.
• The Exact Match policy and its application: (a)
Fourth, the Court issued a decision on Defendants’ Motion violate the fundamental right to vote as guaranteed
for Summary Judgment on the merits on March 31, 2021. by the First and Fourteenth Amendments; (b)
Doc. No. [617]. The Court dismissed claims relating in racially discriminate against Georgians of color in
general to provisional ballots, absentee ballot rejections, the violation of the Fifteenth Amendment and the Equal
untimely mailing of absentee ballots, and the “voter purge” Protection Clause of the Fourteenth Amendment;
process. 5 Id. at 24. The Court also dismissed Fifteenth (c) discriminate against Georgians based on where
Amendment claims and equal protection claims based on they live and based on naturalized citizenship status
racial discrimination (other than those pertaining to Exact in violation of the Equal Protection Clause of the
Match); 6 equal protection claims relating to disparities based Fourteenth Amendment; and (d) deny or abridge the
on geography or residence (other than those pertaining to right to vote in violation of the Voting Rights Act.
Exact Match and in-person absentee ballot cancelation); and
• Defendants’ extensive mismanagement of the
a procedural due process claim relating to list maintenance.
statewide voter registration list violates Georgians’
Id. at 94–95. The Court stayed its consideration of Plaintiffs’
fundamental right to vote in violation of the First and
Voting Rights Act claim pending the United States Supreme
Court's decision in Arizona Republican Party v. Democratic Fourteenth Amendments. 7
National Committee, ––– U.S. ––––, 141 S. Ct. 221, 207
• The non-uniform and improper practices regarding
L.Ed.2d 1165 (Mem.) (2020) (No. 19-1258). Doc. No. [617],
in-person cancellation of absentee ballots (a) violate
95.
Georgians’ fundamental right to vote in violation
of the First and Fourteenth Amendments; and (b)
*4 Finally, on November 15, 2021, the Court issued a
discriminate against Georgians based on where they
decision on Defendants’ Renewed Motion for Summary
live, in violation of the Equal Protection Clause of the
Judgment on Plaintiffs’ Voting Rights Act claim following
Fourteenth Amendment.
the Supreme Court's July 1, 2021, decision in Brnovich
v. Democratic National Committee, ––– U.S. ––––, 141 S. Doc. No. [753-1], 1–2.
Ct. 222, 207 L.Ed.2d 1165 (2020), which was consolidated
with Arizona Republican Party. See ––– U.S. ––––, 141 *5 In Defendants’ Statement of the Case for purposes
S. Ct. 2321, 210 L.Ed.2d 753 (2021). This Court denied of the Pretrial Order, Defendants presented the following
affirmative defenses: (1) failure to state a claim upon which

witnesses merits recognition, and the Court further finds that

relief can be granted; (2) failure to name necessary and
these voters provided credible testimony useful to this Court's
indispensable parties; (3) lack of standing; (4) mootness;
consideration of the issues presented at trial.
(5) Eleventh Amendment bar; and (5) Political Question
Doctrine. Doc. No. [753], 2–3.
At the close of Plaintiffs’ case-in-chief on May 11, 2022, the
Court heard Plaintiffs’ remedies presentation, laying out the
After a delay in the start of trial due to the Omicron variant of
remedies sought and the basis for granting such relief. See Tr.
COVID-19, trial began on April 11, 2022. Doc. Nos. [694];
3181:20–3232:12 (remedies).
[703]; [789]. Trial concluded on June 23, 2022.
On May 12, 2022, the Court heard Defendants’ argument for

Collectively, the parties presented over fifty witnesses,
granting their oral motion for a Judgment on Partial Findings
including Plaintiffs’ expert witnesses, current and former
pursuant to Federal Rule of Civil Procedure 52(c). Tr. 3294.
employees of the Secretary of State's Office, and members
The Court also heard Plaintiffs’ arguments for denying the
of the SEB. Among the witnesses who testified at trial were
Rule 52(c) motion. Tr. 3335. During Plaintiffs’ presentation,
Georgia voters whom this Court recognizes with gratitude.
It is no small undertaking to sit for a deposition, to travel Plaintiffs, through Counsel, specifically delineated the issues
and challenged practices as follows:
to a federal courthouse, or to swear an oath and testify
in public before a federal court. The participation of these
Issues Challenged Practices
Absentee Ballot Cancellations • Lack of proper training on absentee ballot

cancellations
Exact Match • Missing Identification Required (“MIDR”)

Match
• Citizenship Match
The Secretary of State's Mismanagement • Removal of eligible voters in the felon

of Voter Rolls match process
• Removal and changes to the information of
eligible voters in the duplicate match process
• Removal of eligible voters in the “vitals”
process
The Court will now set forth evidence presented at trial

Tr. 3335–3410. concerning the parties. 8
On May 16, 2022, the Court ruled on Defendants’ Rule 52(c)
motion, “exercis[ing] its discretion to decline to render any
judgment until the close of all of the evidence.” See Doc. No.
1. Plaintiffs
[839], 2.
On June 13, 2022, Defendants began their case-in-chief. a) Fair Fight Action, Inc.
Defendants presented six fact witnesses and no expert
testimony. On June 21, 2022, Plaintiffs presented their Originally founded in 2014 under the name “Voter Access
rebuttal case, followed by the parties’ closing arguments on Institute,” Fair Fight Action, Inc. (“Fair Fight”) is a
June 23, 2022. Doc. Nos. [848-1]; [849]; [850]; [851]; [852]; nonprofit advocacy group operating nationwide. Tr. 1383:22–
[853]. 1384:1, 1395:12–17 (Stewart-Reid). The heart of Fair Fight's
activities are based in and focus on the State of Georgia. Tr.
1383:22–25 (Stewart-Reid).
B. The Named Parties

Fair Fight offered three representative witnesses at trial:

Lauren Groh-Wargo, Cianti Stewart-Reid, and Liza Conrad. At trial, United States Senator Reverend Raphael Warnock 10
Lauren Groh-Wargo served as Fair Fight's Executive Director testified via deposition, and Reverend John Vaughn testified
from 2014 to November 2021. Tr. 3847:15–23 (Groh-Wargo). in person for Ebenezer. Reverend Warnock has been Senior
Cianti Stewart-Reid is the current Executive Director of Pastor for Ebenezer since 2005. PX. 2053, Tr. 16:1–2
Fair Fight. She has held this role since December 2021. Tr. (Warnock Dep.). Reverend Vaughn is Ebenezer's Executive
1383:20–21, 1384:4–6 (Stewart-Reid). Liza Conrad currently Pastor and has been with the church for two-and-a-half-years.
serves under Ms. Stewart-Reid as Deputy Executive Director Tr. 2941:12–16, 2941:21–22 (Vaughn). He describes his role
for Fair Fight. Ms. Conrad was previously Fair Fight's Voter within the church as akin to a chief operating officer, or
Protection Director and served in that role from April 2019 “COO.” Tr. 2941:18–20 (Vaughn).
until she was elevated to Deputy Executive Director in
February 2022. Tr. 1048:14–1049:8 (Conrad).
e) The Sixth Episcopal District, Inc.
b) Care in Action, Inc. The African Methodist Episcopal (“A.M.E.”) Church

was founded by a small group of African Americans
*6 Care in Action, Inc. (“Care in Action”) is a nonprofit in Philadelphia, Pennsylvania in 1816. Tr. 2978:24–25
advocacy group that operates nationwide, with substantial (Jackson). Today, the A.M.E. Church has over two-and-a-
focus on efforts in Georgia. Tr. 83:20–23 (Livoti). half million members in thirty-three countries. Tr. 2978:9–
2979:3 (Jackson). One of twenty A.M.E. Church districts
Jessica Livoti testified on behalf of Plaintiff Care in Action at globally, the Sixth Episcopal District, Inc. (“Sixth District”)
trial. Executive Director of Care in Action from August 2017 serves the State of Georgia, with its headquarters in Atlanta.
until January 2021, Ms. Livoti now serves as a Care in Action Tr. 2972:22–24, 2974:12–13 (Jackson). The Sixth District
board member. Tr. 80:24–81:1 (Livoti). includes more than 500 A.M.E. churches and more than
96,000 members statewide. Tr. 2974:7–13, 2980:19–20
(Jackson).
c) Baconton Missionary Baptist Church, Inc.
Bishop Reginald Jackson, who has served as the Sixth
Baconton Missionary Baptist Church, Inc. (“Baconton”) is a District's Bishop since 2016, testified on behalf of the Sixth
church located in Walthourville, Georgia in Liberty County. District at trial. Tr. 2973:2–10 (Jackson).
Tr. 2526:1–2 (Scott). The church is affiliated with the General
Missionary Baptist Convention of Georgia and the Zion
Missionary Baptist Association, the oldest African American
f) Virginia-Highland Church, Inc.
Association in North America. Tr. 2526:1–8, 2531:13–17
(Scott). Founded in 1869 by newly freed slaves, Baconton's Founded in 1923, Virginia-Highland Church, Inc. (“Virginia-
congregation is presently approximately 400 members strong. Highland”) is a church located in the Virginia-Highland
Tr. 2532:23–2533:10, 2545:24 (Scott). neighborhood of Atlanta, Georgia in Fulton County. DX.
731 at 2. 11 Originally part of the Southern Baptist
Pastor Hermon Scott, who has served as the church's pastor
Convention, Virginia-Highland has been associated with the
since July 1997, testified on behalf of Baconton at trial. Tr.
United Church of Christ since 2002. Tr. 527:11–528:23
2531:18–19 (Scott).
(Laney). Virginia-Highland has roughly 300 members in its
congregation; twenty percent of the congregation are people
of color, and forty percent are LGBTQIA. 12 Tr. 529:9–18
d) Ebenezer Baptist Church of Atlanta, Georgia, Inc. (Laney).
Ebenezer Baptist Church of Atlanta, Georgia, Inc.

*7 Pastor Matt Laney testified on behalf of Virginia-
(“Ebenezer”) is a historic church located in Atlanta, Georgia
Highland at trial. Pastor Laney has been the church's pastor
in Fulton County. PX. 2053, Tr. 87:17 (Warnock Dep.). 9 since January 2018. Tr. 524:21–22, 525:18–20 (Laney).

elections, and they would handle multiple cases at a time. Tr.

3492:10–19 (Harvey).
2. The Named Defendants

This Court heard testimony from the following former
and current employees of the Secretary of State's Office
a) The Secretary of State concerning their employment, job duties, and policies and
practices of the Secretary of State's Office: Chris Harvey,
During the years relevant to this lawsuit, Georgia had three Gabriel Sterling, Ryan Germany, Kevin Rayburn, Melanie
Secretaries of State: Brian Kemp, who is currently Georgia's Frechette, and John Hallman.
Governor; Secretary Brad Raffensperger; and Secretary
Robin Crittenden, who served briefly between Secretary Chris Harvey served as the deputy-inspector general/chief
Kemp's resignation in November 2018 and Secretary investigator for the Secretary of State's Office from 2007 until
Raffensperger's inauguration in January 2019. Tr. 3461:21– July 2015 and then as the Elections Division Director from
3462:2 (Harvey). July 2015 until his departure from the Secretary of State's
Office in July 2021. He now serves as the Deputy Director at
The Secretary of State is a constitutional officer elected by P.O.S.T. Tr. 3459:25–3460:6 (Harvey).
Georgia voters every four years. Ga. Const. Art. 5, Sec. 3,
Par. 1. In addition to other duties and obligations, the General *8 Gabriel Sterling is the current chief operating officer
Assembly designated the Secretary as the State's “chief
for the Secretary of State's Office. Tr. 4177:10–15. He has a
election official” under the Help America Vote Act of 2002 political science degree from the University of Georgia and
(“HAVA”). O.C.G.A. § 21-2-50.2(a); see also 52 U.S.C. § has worked in Georgia elections, in both volunteer and paid
20509 (“Each State shall designate a State officer or employee capacities, in most election cycles since 1986. Tr. 4177:16–
as the chief State election official to be responsible for the 18, 4175:2–6 (Sterling).
coordination of State responsibilities under this chapter.”).
Under Georgia law, the Secretary shall “maintain the official Ryan Germany is the General Counsel for the Secretary
list of registered voters for this state and the list of inactive of State's Office. Tr. 1517:7–9 (Germany). He has held
voters required by this chapter.” O.C.G.A. § 21-2-50(a)(14). that position since 2014. Tr. 1517:10–11 (Germany). As
Georgia law also requires that the “Secretary of State shall General Counsel, Mr. Germany works with every division
exercise all the powers granted to the Secretary of State ... of the Secretary of State's Office, including but not limited
[t]o conduct training sessions at such places as the Secretary to the Elections Division, on legal issues. Tr. 1517:16–17
of State deems appropriate in each year, for the training (Germany). He also spends time on the promulgation of rules
of registrars and superintendents of elections.” O.C.G.A § and regulations for the SEB. Tr. 1522:1–3 (Germany).
21-2-50(a)(11).
Kevin Rayburn was the Deputy Elections Director and
As relevant to this case, the Secretary maintains two Deputy General Counsel at the Georgia Secretary of State's
divisions that impact elections: the Elections Division and the Office at the times relevant to this lawsuit. PX. 2054,
Investigations Division. Tr. 3462:3–5, 3461:5–17, 3492:10– Tr. 11:7–11:9 (Rayburn Dep.). He began working at the
19 (Harvey). Georgia Secretary of State's Office in July of 2016. PX.
2054, Tr. 10:11–10:22 (Rayburn Dep.). Mr. Rayburn's job
The Elections Division had about sixteen employees during responsibility as Deputy Elections Director was to support the
the relevant time of this lawsuit. Tr. 3462:3–5 (Harvey). Director, Mr. Harvey, in managing the Elections Division. PX.
It includes at least a training group, four to six county 2054, Tr. 16:2–16:9 (Rayburn Dep.).
liaisons, 13 legal counsel, and an Elections Division Director.
Tr. 3509:10–12 (Harvey); Tr. 826:2–20 (Hallman); PX. 2054, Melanie Frechette was employed with the Secretary of State's
Tr. 11:8–18 (Rayburn Dep.). Office from February 2017 through February 2020 as a county
liaison and then as the training administrator. Tr. 1216:7–23
Most investigators are certified by the Georgia Peace Officer (Frechette). In her role at the Secretary of State's Office, one of
Standards and Training Council (“P.O.S.T.”). Tr. 3461:5–17 Ms. Frechette's responsibilities was to receive and respond to
(Harvey). Two to four investigators would generally focus on questions from county election officials, as well as to provide

guidance on certain aspects of election administration. Tr.

1220:6–13 (Frechette).
1. Training on Absentee Ballot Cancelations
John Hallman was employed by the Secretary of State's Office Plaintiffs contend that Defendants are responsible for
from 2013 to 2020. Tr. 758:12–20 (Hallman). Mr. Hallman adequate training of county election officials, that
was the Election Systems Manager of the statewide voter Defendants’ training in absentee ballot cancelation
registration system known as eNet from July 2016 to February procedures is inadequate, and that this deficiency has caused
2020. Tr. 759:3–18 (Hallman). voters to be severely burdened when trying to vote in
person after having requested absentee ballots. Plaintiffs
assert that Defendants’ failure to train on absentee ballot
b) The State Election Board cancelation procedures violates the fundamental right to vote
and generates a lack of adequate statewide standards in
The Georgia General Assembly created the SEB in violation of the Equal Protection Clause of the Fourteenth
Amendment.
O.C.G.A. § 21-2-30(a). It consists of five members,
including a representative of each of the two major political
Plaintiffs’ claim here focuses mainly on absentee ballot
parties. O.C.G.A. § 21-2-30(c). 14 procedures related to voters who want to cancel their absentee
ballots so they can vote in person but do not have their
The General Assembly imposed ten statutory duties on the absentee ballots with them at the polling place. This situation
SEB, which range from promulgating rules and regulations to can arise, for example, when a voter has requested an absentee
making recommendations to the General Assembly. O.C.G.A. ballot but has not received the absentee ballot in time to cast
§ 21-2-31; see also Tr. 4095:2–6 (Mashburn); PX. 2051, it and have it counted.
Tr. 11:7–15 (Kemp Dep.). Among the SEB's statutorily
enumerated duties are the duties to (a) promulgate rules Plaintiffs assert that Defendants’ inadequate training of
and regulations to obtain uniformity in county practices county election superintendents and registrars means county
(O.C.G.A. § 21-2-31(1)), and (b) formulate, adopt, and election personnel do not know the correct procedures for
promulgate rules and regulations conducive to the fair, legal, canceling absentee ballots, causing voters not to be able to
and orderly conduct of elections (O.C.G.A. § 21-2-31(2)). vote at all or to be able to vote only after significant effort.
Significant testimony was dedicated to the SEB's statutory The process for canceling absentee ballots has changed during
duty to investigate and address violations of the Georgia the pendency of this case. Prior to HB 316's passage in April
Election Code. O.C.G.A. § 21–2-31(5). When exercising this 2019, Georgia law required, in pertinent part, that voters who
authority and obligation, the SEB would hear and decide had requested absentee ballots (but later went to the polls
cases of alleged violations of statutory law or regulations by to vote in person and did not have their absentee ballots
individuals or counties. Id.; see also Tr. 3607:12–20 (Harvey). with them) to appear before the county registrar, deputy
registrar, or absentee ballot clerk to cancel their absentee
*9 This Court heard testimony from three recent SEB ballots. O.C.G.A. § 21-2-388(2) (2007), amended by 2019
members—Seth Harp, Rebecca Sullivan, and Anh Le—and Ga. Laws 24 (HB 316).
one active SEB member, Matt Mashburn. All were attorneys.
All had either some significant state government experience When HB 316 was passed, it changed the absentee ballot
before being appointed to the SEB (Harp, Sullivan, Le, cancelation procedure by providing, in essence, that voters
and Lindsey), or had practiced election law well before who want to vote in person but do not have their absentee
their appointment (Sullivan and Mashburn). Tr. 3975:11– ballots with them need not go to the main election office to
3976:12, 3977:1–10, 3989:9–17 (Sullivan); Tr. 4075:16– cancel their absentee ballot. Rather, someone at the polling
4077:18 (Mashburn); Tr. 1765:19–1766:1–24 (Le). place can call the registrar's office and obtain approval to
cancel voters’ absentee ballots. See O.C.G.A. § 21-2-388
(effective Apr. 2, 2019).
C. The Issues and Challenged Practices

Training efforts in 2020, after the election law changes in HB

316, were significant both in terms of frequency and quantity
a) Training generally
of topics to discuss. For example, the training division
At the outset, based on the testimony provided in this lawsuit began providing information and training on the State's new
and the relevant testimony of Defendants’ fact witnesses Dominion Ballot Marking Devices, which represented the
and Plaintiffs’ training expert (Mr. Kevin Kennedy), first time that Georgia returned to using paper ballots in
this Court finds that—as a matter of fact—the counties over 15 years. Tr. 4192:15–4193:6 (Sterling); Tr. 3520:20–
train poll workers and the State trains county election 3521:3 (Harvey). The COVID-19 pandemic also necessitated
superintendents and registrars, including on the cancelation of significant training efforts, as many of the efforts to address
absentee ballots. Tr. 3469:4–22 (Harvey); Tr. 2864:22–2865:4 the virus's impact on elections were unprecedented. Tr.
(Kennedy). Former Elections Division Director Chris Harvey 4193:2–16 (Sterling); Tr. 3521:13–17 (Harvey).
testified that this training structure is a “train the trainer”
scenario. Tr. 1871:8–22 (Harvey). Prior to the 2020 election, absentee ballot by mail was a
method of voting in Georgia that “was not really growing.” Tr.
More specifically, “all county and municipal election 3528:15 (Harvey). Instead, it seemed to peak around the 2008
superintendents, chief registrars, and absentee ballot clerks election and “generally hovered around four or five percent
or, in the case of a board of elections or a board of elections of the votes.” Tr. 3528:12–20 (Harvey); DX. 781.
and registration, the designee of such board charged with the
daily operations” are required to become certified in election One consequence of the COVID-19 pandemic was the
administration within six months of their appointment. dramatic increase in the use of absentee ballots during the
O.C.G.A. § 21-2-101(a); Tr. 1569:13–18, 24 (Germany). The 2020 elections. Tr. 3524:21–3525:13 (Harvey); DX. 781. This
Secretary of State's Office provides the certification training was caused, in part, by the Secretary's decision to mail every
materials. Tr. 1865:19–1866:12 (Harvey). According to Mr. active Georgia voter an absentee ballot request form. Tr.
Harvey, the Secretary also has a policy of trying to make 3529:1–29 (Harvey).
the election certification materials accurate. Tr. 3538:23–25
(Harvey). During the pandemic, and in addition to the webinars
and other trainings that were taking place, communications
*10 The Secretary of State's Office also makes a poll worker between the Secretary of State's Office and county election
training manual online for counties to use. Tr. 3537:11– officials increased significantly: there were “at least weekly”
3538:7 (Harvey). According to Mr. Harvey, the Secretary has conference calls between the two parties, and the calls
a policy of trying to make the poll worker manual accurate. were frequently divided between counties in North Georgia,
Tr. 3538:15–17 (Harvey). However, that policy is not written South Georgia, and metro Atlanta counties independently. Tr.
down anywhere. Tr. 3538:18–19 (Harvey). Mr. Harvey did 3649:10–23 (Harvey).
not know “to what extent” the counties use the poll worker
manual and indicated that “it varies widely from county to In the light of Secretary's decision to issue all active voters
county.” Tr. 3538:8–14 (Harvey). absentee ballot request forms, the Secretary of State's Office
increased training on absentee cancelation procedures. Tr.
During either late 2018 or early 2019, the Secretary hired 3530:10–3531:3, 3649:24–3650:1 (Harvey).
Melanie Frechette to become the training director. Tr.
3520:10–15. Ms. Frechette came to the Secretary of State's In 2020, Georgians were to have numerous elections: (1)
Office already familiar with Georgia elections and county a Presidential Preference Primary (slated for March); (2) a
implementation of elections; prior to joining the Secretary of general primary of state elected officials, candidates for both
State's Office, she served with the Gwinnett County election seats to the United States Senate, and primaries for some
office for six to eight years and the Hall County election office congressional seats; (3) a general election; and (4) potential
for a year or more. Tr. 3523:15–22 (Harvey). general runoff elections. Tr. 4190:12–13; Doc. Nos. [829-6],
[829-7], [829-8].
b) Impact of the COVID-19 Pandemic on training

The 2020 elections also marked the first time that the State's 2105:20 (Harvey) (confirming these trainings included the
new Dominion Ballot Marking Device technology would be pre-HB 316 version of the statute); see also Tr. 3700:20–
used across the state. Tr. 3652:7–8 (Harvey). 3701:17 (Harvey) (describing the failure to update as a
“mistake”). Defendants proffered no certification materials
Because of the COVID-19 pandemic, the Secretary exercised showing that they have been corrected.
his existing authority to postpone the presidential preference
primary, then combine it with the general primary, and The poll worker manual developed by the Secretary of State's
postponed both again to the latest possible time that would Office also was not updated to show the changes in absentee
allow compliance with federal election laws. Tr. 4188:7– ballot cancelation procedures for the 2019 and 2020 elections.
4190:9 (Sterling); Tr. 3647:13–17 (Harvey). Tr. 2131:9–28 (Harvey). The poll worker manual has since
been updated (in May 2021) with the correct information. PX.
*11 One reason for the postponement was the real concern 1315 at 55–56; Tr. 2131:9–21 (Harvey).
that there would be an insufficient number of poll workers
available to work during the pandemic. Tr. 3647:13–17; In addition, there was evidence of two training presentations
3651:2–7 (Harvey). At that time, the Secretary of State's that were available to county superintendents and registrars in
Office began to understand that some county election offices which post-HB 316 absentee ballot cancellation information
were getting infected and could not administer the primary was referenced. See PX. 1076, PX. 1189, Tr. 2119:16–22,
election. Tr. 3647:19–25 (Harvey). 2121:4–5.
Fulton County was hit particularly hard: one of their

employees died of COVID relatively early; the registration
d) Plaintiffs’ absentee ballot witnesses
director was out with COVID for some time; and the office
had to be shut down for three to four days for disinfecting after Plaintiffs presented the following witnesses to testify about
further spread of the virus. Tr. 3648:6–16 (Harvey). Adding how absentee ballot issues burdened voters: Aria Aaron (PX.
to these health concerns was the “push” of absentee ballot 2057 (Aaron Dep.)); Deborah Allen (Tr. 623–648); Patricia
requests coming into Fulton County, which led to jammed Andros (Tr. 2690–2709); Dayle Bennett (Tr. 2709–2724);
servers and an inability to print and download applications Saundra Brundage (Tr. 1236–1253); Emily Huskey (Tr. 1141–
and ballots. Tr. 3648:17–25 (Harvey). 1168); Aaron Karp (Tr. 601–622); Margaret Whatley (PX.
2050 (Whatley Dep.)). 15
In response to the pending poll worker shortage, the Secretary
began to undertake efforts to recruit poll workers by reaching
out to various groups like the ACLU, State Bar of Georgia,
private businesses, and others. Tr. 3651:8–3650:3 (Harvey). e) Webster County
The end result was “a lot” of new poll workers in the 2020
The June 2019 election in Webster County, Georgia was
election. Tr. 3652:4–6 (Harvey).
discussed by several witnesses and is relevant to Plaintiffs’
absentee ballot claim. This local election was one of the
The testimony further indicated that even the best trained
first elections held after the change in the absentee ballot
superintendents can still make mistakes in the training of poll
cancelation process by HB 316. Specifically, HB 316 became
workers. Tr. 3511:6–15 (Harvey).
effective on April 2, 2019, and the Webster County election
took place on or around June 20, 2019. PX. 1117.
c) Errors in Secretary of State training documents *12 On June 20, 2019, a voter submitted a complaint to the
Secretary of State's Office stating that she was denied the right
The Secretary of State's Office did not update the
to vote three times in Webster County. PX. 1117. The voter
election certification materials to reflect the change to
stated that she was told she had to return her absentee ballot
the absentee ballot cancelation process after the passage
before she would be allowed to vote in person. DX. 791 at
of HB 316 in 2019. Tr. 2118:13–2119:11 (Harvey).
167; PX. 1117.
Mr. Harvey acknowledged that these Secretary of State
certification training materials are incorrect. Tr. 2103:22–

The Secretary of State's Office investigated the complaint,

which revealed that the voter did attempt to vote on two Plaintiffs’ second policy challenge relates to the matching
separate occasions and that the voter was told both times that of the voter registration applicant's citizenship information.
she needed to surrender her absentee ballot. DX. 791 at 167. Under this policy, voter registration applicants who provide
The investigation further revealed that the Webster County a Georgia driver's license number or state identification card
Elections Supervisor and Deputy Registrar indicated that they number on their voter registration applications will have
were unaware of the proper procedure to cancel an absentee their citizenship status matched against the DDS database.
ballot at the time of the incident and believed a voter had to Plaintiffs refer to this policy as “Exact Match Citizenship.”
surrender the ballot. Id. at 167–168. They indicated that they
were now aware of the proper procedure. Id. at 168.
a) Exact Match MIDR

The election at issue resulted in a tie. Id. A court challenge was
filed and ended with a consent agreement to void the election
results and hold a second election. Id. The investigation (1) MIDR history, process, and purpose
revealed that the second election was “due to the one ... voter
DDS currently has a Memorandum of Understanding
that was erroneously turned away for not having her absentee
(“MOU”) with the Secretary of State's Office dated March 27,
ballot with her to surrender when she presented to vote at the
2007, regarding the transmission of “voter registration data
polls.” Id. at 168.
between the parties for verification pursuant to the provisions
of HAVA.” PX. 1751; see also Tr. 1189:1–23, 1190:21–22
The case was presented to the SEB at a February 17, 2021
(McClendon); Tr. 497:12–17 (Mayer). The matching process
meeting. DX. 791. SEB member Matt Mashburn referred to
considers information in both the DDS database and the
a situation where a voter is wrongfully turned away as “the
federal SSA database. Tr. 3576:24–3577:8 (Harvey).
nightmare scenario” and made a motion to refer the case to the
Attorney General's Office, which motion carried. Id. at 170.
*13 The purpose of the MOU is to “enable[ ] the Secretary
of State and DDS to transmit voter registration data between
The events in Webster County, while unfortunate, appear to be
the parties for verification pursuant to the provisions of
an anomaly, and the circumstances of the election also appear
HAVA.” Tr. 1189:18–20; see also PX. 1751. The process for
to have been unique. Tr. 3553:6–9 (Harvey).
verification generally proceeds as follows.
First, the Secretary of State sends a new registering

2. Exact Match voter's information to DDS for verification. Tr. 1191:22–
24 (McClendon). Pursuant to the MOU, the Secretary
Plaintiffs challenge two policies under the umbrella of
of State transmits voter registration information to DDS
“Exact Match.” Both policies relate to how the Secretary of
for verification on a daily basis. Tr. 1190:23–1191:7
State handles voter registration applications. In short, both
(McClendon); see also PX. 1751.
policies match certain information from voter registration
applications against either the Georgia Department of Driver
Second, DDS takes the new registering voter's information
Services (“DDS”) or Social Security Administration (“SSA”)
and determines whether the record can be checked against
databases. The policies differ on the particular information
DDS information or if it needs to go to the SSA. If the record
being matched.
has a driver's license or state ID number, it will be checked
against DDS records. If a record does not have a driver's
The first policy Plaintiffs challenge relates to the matching
license number, it will be sent to the SSA for validation,
of certain identification information provided on voter
with whom DDS has an agreement to verify information as
registration applications. If this information on the voter
required by HAVA. Tr. 1194:20–1196:18 (McClendon).
registration application does not exactly match, character
by character, to the information in the DDS or SSA
If a record has certain uncurable defects, such as an invalid
databases, the voter registration applicant is given “Missing
date of birth or non-numeric characters in the last four
ID Required” (“MIDR”) status. Plaintiffs refer to this policy
digits of the applicant's social security number, DDS will
as “Exact Match MIDR.”
stop the verification process, flag, and return the application

to the Secretary of State's Office. Tr. 1196:19–1197:15 *14 If the information processed by DDS does not come
(McClendon); PX. 1753. back as a match, e.g., Jonathan William Smith registers to
vote as Billy Smith, a name that he goes by, the eNet system
Third, for records that it can process for verification, DDS will flag the person in what is called Active-MIDR (missing
checks the following criteria in the record against the identification requirement) status. Id.; see also Tr. 3577:18–20
information it has on file to determine if it is a match: (defining MIDR) (Harvey). The matching is fully automated
and binary: a voter is either flagged or not based on whether
a. Driver's license number, first twenty characters of the last the information returns and is verified. Tr. 1950:12–1951:14
name, first initial, and date of birth (if no social security (Harvey); see also PX. 2054, Tr. 156:2–156:24 (Rayburn
number is provided); or Dep.).
b. Driver's license number, first twenty characters of the

Persons flagged as Active-MIDR status are deemed to be
last name, first initial, date of birth, and last four digits
registered voters in Georgia. Tr. 3581:4–8 (Harvey); see
of the social security number (if provided); or
O.C.G.A. § 21-2-220.1. Regardless of the flag, these
c. First twenty characters of the last name, first initial, and voters can vote in person so long as they present a form
date of birth (if no social security number is provided of acceptable identification. Tr. 3574:20–22 (Harvey); Tr.
and license number is not found); or 399:12–20, 505:16–21 (Mayer). They can vote absentee by
mail only by providing some form of required identification;
d. First twenty characters of the last name, first initial, date
the absentee ballot will otherwise be treated as a provisional
of birth, and last four digits of the social security number
ballot and can be cured within the three-day period by, again,
(if last four digits of social security number are provided
providing the required identification. Tr. 3575:2–4, 9–14
and license number is not found).
(Harvey).
PX. 1753 at 1; see also Tr. 1197:16–1199:18 (McClendon).
When persons in Active-MIDR status vote for the first time,
A prior version of the verification process involved they can use more types of information—including a copy
comparing the first twenty characters of the first name. PX. of a current utility bill, bank statement, government check,
1752; see also Tr. 1201:9–25 (McClendon). The change was paycheck, or other government document that shows the
made sometime after 2017. Tr. 1202:1–4 (McClendon). name and address of such elector—to prove their identity
than are permitted under the photo identification requirement
For records verified by the SSA, the SSA automatically of registered voters who are not in the MIDR status.
returns to DDS the exact information provided to them. Compare O.C.G.A. § 21-2-417(c) with O.C.G.A. §
PX. 1753 at 2; see also Tr. 1200:20–8 (McClendon). These 21-2-417(a); see also Tr. 1614:20–22; 4137:23–24, 4141:11–
responses can include any of the following: invalid input data; 17 (Germany). These forms of identification are referred to as
multiple matches – all deceased; multiple matches – all alive; HAVA ID, which is broader than the photo ID requirement for
multiple matches – at least one alive and one deceased; single voters who previously have voted. Tr. 4137:3–10, 4141:21–
match – alive; single match – deceased; no match found; or 25, 4142:1–7 (Germany).
system error. PX. 1753 at 2.
Plaintiffs’ expert, Dr. Mayer, concurred with this
Fourth, and finally, after it has performed the verification understanding, stating that “[a] registrant who's been flagged
process, DDS transmits the voter information back to the as MIDR is required to clear that flag before they are given
Secretary of State with a determination of whether the a ballot, and they could clear that flag by showing a form
information was verified or not and, if not, the reasons of I.D. that is otherwise required by Georgia's voter I.D.
therefor. Tr. 1191:11–21, 1199:19–1200:7 (McClendon); Tr. law, but it's also possible for certain registrants, particularly
3574:4–19 (Harvey); see also PX. 1751. DDS takes no first-time registrants, to clear that flag with a different set of
further action regarding a voter's registration information identification documents.” Tr. 399:14–20 (Mayer).
after it returns the verification to the Secretary. Tr. 1192:7–9
(McClendon). 16 One purpose of MIDR is to prevent the same person from
registering various aliases and proving that the registering

voter is an actual person. Tr. 3604:11–19, 3606:14–24 The Secretary of State's Deputy Elections Director and
(Harvey). A similar purpose of the match policy is to filter out Deputy General Counsel explained that the requirement to
false registrations. Tr. 3605:20–3606:8 (Harvey). provide ID would also apply to voters in MIDR status
requesting an absentee ballot. Such voters would be sent
Importantly, an MIDR flagging also signals to the poll a provisional absentee ballot with instructions to show ID
worker that this voter is permitted to use HAVA ID to before their vote will be counted. PX. 2054, Tr. 197:10–
vote. Tr. 4141:7–25, 4142:1–11, 4145:8–18, Tr. 4146:7–12 197:16 (Rayburn Dep.).
(Germany). Mr. Germany provided uncontested testimony
that this notice is necessary for compliance with HAVA; The placement of an individual in Active-MIDR represents
without it, poll workers would be unable to identify which a change in this process due to HB 316. Tr. 3576:24–
voters were allowed to alternatively provide a HAVA ID, as
3577:17 (Harvey); see also O.C.G.A. §§ 21-2-220.1(b),
opposed to one of the photo IDs usually required by Georgia
law, to vote. Tr. 4146:4–12 (Germany). In other words, 21-2-216(g)(7); Tr. 3576:18–24 (Harvey) (reviewing DX.
another purpose of the Active-MIDR status is to ensure that 42 ( O.C.G.A. § 21-2-220.1)); Tr. 3580:8–23 (Harvey)
those first-time voters eligible under federal law to provide
(reviewing DX. 46 ( O.C.G.A. § 21-2-216)). Prior to the
HAVA ID can do so. Tr. 4145:15–18 (Germany). 17
enactment of HB 316, someone who failed the matching
process would be identified as “pending registration” and not
*15 If the voter does not have any of those forms of
on the active list of voters. Tr. 3576:24–3577:17; 3603:14–
identification, they are permitted to cast a provisional ballot.
15 (Harvey); PX. 2054, Tr. 196:16–196:22 (Rayburn Dep.).
O.C.G.A. § 21-2-417(c); Tr. 3578:5–10, 3604:20–3605:18 Consequently, the voter would not receive a precinct card (Tr.
(Harvey); Tr. 4145:19–25 (Germany). 3577:13–17 (Harvey)), and their time to take action to remain
on the active voter list was shorter than for persons who were
Other than being eligible to provide the aforementioned deemed active voters. See, e.g., O.C.G.A. § 21-2-235. Persons
additional forms of identification—HAVA ID—when voting in pending status may have “a slight delay” to vote because
for the first time, there are no practical differences between the poll worker may need to call the poll manager over for
a registered voter in Active-MIDR status and one that is not. “some entry to update” the voter's status. Tr. 3577:21–3578:4
Tr. 4146:13–17 (Germany). (Harvey).
Persons on Active-MIDR status may also vote by absentee

ballot once they have provided one of the broader forms of
(2) The Impact of MIDR
identification to a county election office; if the voter has yet to
provide the identification, the absentee ballot will be treated Prior to the passage of HB 316, the Secretary of State's Office
as provisional and can be cured within the three-day period conducted a demographic study and concluded that 70% of
by, again, providing the required identification. Tr. 3575:2–4, those in pending status were African American. Tr. 3601:14–
9–14 (Harvey); Tr. 4145:19–25 (Germany). 3602:2 (Harvey). Plaintiffs’ expert evidence showed that
60,477 registrants were in MIDR status as of January 2020.
Persons who are flagged in Active-MIDR status receive a PX. 1278 at 16, 18; Tr. 508:4–5 (Mayer). Of those, 69.4%
letter from their county election office notifying them of the were African American; 11.4% were white non-Hispanic;
kinds of identification they will need to vote. Tr. 399:21–24 5.7% were Hispanic; 3.3% were Asian or Pacific Islander;
(Mayer); see also PX. 1900. 3.4% were other or two or more demographic categories;
and 7% were unknown. PX. 1278 at 18. This translates to
The letter sent to voters in Active-MIDR status informs them 2.03% of registered African American voters in Georgia;
that they need to provide one of two forms of identification: 0.19% white non-Hispanic; 1.50% Hispanic; 1.19% Asian or
(1) a photo ID that complies with Georgia's photo ID law Pacific Islander; and 1.71% other or two or more demographic
(such as a driver's license) or (2) one of the alternative categories. Id. at 19.
identification forms permitted under HAVA. PX. 1900; see
also Tr. 401:22–402:5 (Mayer).

Individuals who are in pending status for citizenship can

b) Exact Match Citizenship
vote if they go to their polling place and provide proof of
citizenship. Tr. 1683:5–11 (Germany). These individuals will
(1) The citizenship verification process and purpose 18 be on the voter list at the polling location as someone who had
registered but is just pending their citizenship verification. Id.
*16 In Georgia, only United States citizens are eligible to
vote. O.C.G.A. § 21-2-216(a)(2); see also Tr. 3581:1– A Secretary of State regulation, Ga. Comp. R. & Regs.
3 (Harvey). The Election Code requires the Secretary of 590-8-1-.02, provides that if the DDS cannot determine
State to “establish procedures to match an applicant's voter citizenship, the county election office must make sure that
registration information to the information contained in the the driver's license identification number or identification
data base maintained by [DDS] for the verification of the card was entered properly before deciding on that individual's
accuracy of the information provided on the application eligibility as a voter. Tr. 3583:1–21, 3584:1–18 (Harvey); DX.
for voter registration, including whether the applicant has 780.
provided satisfactory evidence of United States citizenship.”
*17 The same regulation refers to the SAVE system,
O.C.G.A. § 21-2-216(g)(7); see also Ga. Comp. R. & which the Secretary began to use after the 2020 election.
Regs. 590-8-1-.02. DX. 780. “SAVE” stands for Systematic Alien Verification
for Entitlements. Tr. 1708:14–17 (Germany). 20 Outside the
All voters must demonstrate citizenship at the time of
elections and voter registration context, states are required
registration, and the SEB has promulgated a rule establishing
to use SAVE to check the citizenship status of individuals
the types of acceptable proof for voter registration purposes.
applying for public benefits. Tr. 282:23–25 (McCrary). SAVE
Tr. 3585:12–21 (Harvey) (considering DX. 777 (Ga. Comp.
is a different system than E-Verify. Tr. 282:18–22 (McCrary).
R. & Regs. 183-1-6-.06)).
In 2021, the Secretary of State's Office used SAVE to audit the
voter rolls and records from DDS. Tr. 1680:15–16, 1680:20–
In Georgia, when a voter registers using a driver's license or
22 (Germany). The range of dates for the registrations that
an ID card number, they go through a citizenship verification
the Secretary of State's Office identified during the audit was
process. Tr. 359:8–14 (Mayer). The data used for the
from 1997 until February 24, 2022. Tr. 1728:1–2 (Germany).
verification process is that which is on file with DDS. Tr.
During that audit, the Secretary of State's Office looked at
359:19–23 (Mayer). 19 the entire voter roll. Tr. 1682:3–5 (Germany). The Secretary
of State's Office worked with DDS to compare data and see
If during the citizenship verification process, a match does not what the Secretary of State's Office could do to add driver's
occur with the voter's DDS file, they are flagged as needing license numbers where it did not have them. Tr. 1681:1–4
to provide evidence of citizenship and are placed in pending (Germany). The Secretary of State's Office also had a special
status. Tr. 364:5–25 (Mayer), Tr. 3582:12–16 (Harvey). process through DDS to get the alien ID numbers of voters.
Tr. 1709:6–9 (Germany).
To this end, voters in pending status are then sent a letter
by a local election official by U.S. mail. Tr. 364:20–25 Upon receiving from DDS the alien registration numbers for
(Mayer). The letter indicates that a registrant placed in voters for whom they had not been able to verify citizenship,
pending status may provide confirmation of their citizenship the Secretary of State's Office ran those registration numbers
at the polls or while requesting an absentee ballot and be through the SAVE process. Tr. 1681:21–24 (Germany). As
able to vote. Specifically, the letter states that the registrant a result of this audit, 63% of people who had been listed
may vote by providing, in addition to the valid photo ID as pending for citizenship verification came back with their
required under Georgia law, a birth certificate issued by a citizenship confirmed and were put into active status. Tr.
U.S. State or the U.S. Department of State; a U.S. Passport; 1690:13–14 (Germany).
a Certificate of Citizenship; a Naturalization Certificate; a
U.S. Citizen ID card; or any of the fifteen other forms of Voters who were not verified as citizens based solely or in
verification allowed under Georgia law. PX. 1231 at STATE- part on SAVE were sent a letter from the Secretary of State's
DEFENDANTS-00742580. Office stating the following, which Mr. Germany paraphrased

at trial: “[W]e were unable to verify you. Here's how you can
show your citizenship, including you can show it when you go
c) Plaintiffs’ Exact Match witnesses
vote ....” Tr. 1724:7–20 (Germany). The Secretary of State's
Office is currently in discussions about implementing more *18 Plaintiffs presented the following witnesses to testify
frequent uses of SAVE to verify voters’ citizenships going about their voting experiences in an effort to show how the
forward. Tr. 1710:2–5 (Germany). Exact Match issue burdened voters: Dr. Benjamin Ansa (PX.
2096 (Ansa Dep.)); Cam Ashling (Tr. 294–326); Kia Carter
(Tr. 2482–2516); Dr. Carlos del Rio (Tr. 467–485); Rosa
(2) The impact of Exact Match Citizenship Hamalainen (PX. 2048 (Hamalainen Dep.)); Dr. Ali Kefeli
(PX. 2049 (Kefeli Dep.)). 21
At trial, Plaintiffs presented the expert testimony of Dr.
Mayer. In his initial report, Dr. Mayer identified 3,073
registrants flagged as pending for citizenship verification as
of January 2020. PX. 1278 at 21. Of those, 31.6% (972) were 3. The Secretary of State's Alleged
African American; 13.0% (400) were white non-Hispanic; Mismanagement of Voter Rolls
20.9% (642) were Hispanic; 23.2% (714) were Asian or
Plaintiffs next contend that the Secretary of State and SEB
Pacific Islander; 5.2% (159) were other or two or more
are in violation of the First and Fourteenth Amendments
demographic categories; and 6.1% (168) were unknown. Id. at
of the United States Constitution due to their affirmative
18. The African American registrants flagged as pending for
mismanagement of the voter registration database, which is
citizenship verification represent about 0.9% of the African
the database that houses the registration records of eligible
American voting age naturalized citizens living in Georgia
voters in the State of Georgia. More specifically, Plaintiffs
at approximately the same time; along with about 0.5% of
point to three list maintenance processes that they allege fall
white non-Hispanic voting age naturalized citizens; 0.7% of
within the Secretary of State's responsibility for managing
Hispanic voting age naturalized citizens; 0.5% of Asian or
the voter registration database: (1) the cancelation of records
Pacific Islander voting age naturalized citizens; and 0.4%
on the basis that the voter is convicted of a disqualifying
or other or two or more demographic categories voting age
felony; (2) the merger of voter registration records based on
naturalized citizens. Id.
the belief that two records are duplicative and represent only
one eligible voter; and (3) the cancelation of records on the
In his supplemental report, Dr. Mayer compared people in
basis that the voter is deceased.
pending status in a voter file dated January 28, 2020, with a
voter registration file from November 2021. Tr. 365:17–366:5
(Mayer); PX. 1999 at 6. Dr. Mayer testified that of the 3,073
voters who were in pending status for citizenship verification a) Maintaining the official list of registered voters
in the January 28, 2020 voter file, 43.1% were no longer in
Georgia law charges the Secretary of State with
pending status in the November 2021 voter file. Tr. 366:4–
“maintain[ing] the official list of registered voters for this
12 (Mayer); PX. 1999 at 6. In other words, 1,323 people
in pending status moved to active status, and 1,750 people state and the list of inactive voters.” 22 See O.C.G.A. §
remained in pending status. Tr. 370:18–24 (Mayer); PX. 1999 21-2-50(a)(14). The State's voter registration list is housed
at 6. In Dr. Mayer's view, this indicates that the verification in a system known as “eNet.” Tr. 759:13–21 (Hallman).
process misidentifies citizens as noncitizens with an “error In Georgia, counties enter voter registration data into the
rate” of 43.1%. Tr. 365:12–14. Dr. Mayer admitted that he statewide voter database, including when a voter moved
did not know whether the 1,750 registrants who remained in within the state. Tr. 1629:12–15 (Germany); Tr. 3555:9–18
pending status for citizenship verification as of November (Harvey) (addressing voter moves). The Secretary of State's
2021 were, in fact, citizens. Tr. 438:4–7 (Mayer). The Court Office would not change data even upon a voter's request or if
notes that Dr. Mayer's findings pre-date the Secretary of it knew the information was inaccurate; instead, the Secretary
State's SAVE audit, which found that 63% of voters in of State's Office would contact the county directly or inform
pending status were citizens. Tr. 1690:13–14 (Germany). the voter how to contact the county. Tr. 3556:6–24 (Harvey).

When a county user logs into eNet, they are presented with Secretary's current practice is to run the felon list information
a dashboard listing “buckets” of information on the number through eNet for potential matches to provide to the counties.
of DDS applications and online voter registrations to process Tr. 862:15–18 (Hallman); Tr. 3567:13–17 (Harvey); Tr.
along with items such as duplicate matches, felon records, and 1329:12–20 (Frechette). The Secretary has the discretion to
death records. Tr. 772:6–773:1, 764:25–765:5 (Hallman). The determine what matching criteria will be used in eNet. Tr.
county user then selects a “bucket” and is presented with a 3733:19–22 (Harvey).
list of individual matches to process. Tr. 765:5–12 (Hallman).
Ultimately, the decision of whether or not a “potential” match The Secretary has programmed eNet to conduct a monthly
is a “true” match is made by the counties. Tr. 899:10–12, comparison between those monthly lists and the list of
899:23–900:4 (Hallman). registered voters in eNet. PX. 800 at 19. 25 The file from DOC
is run at the end of the month, and the file from DCS is run in
the middle of the month. Id. at 20.
b) The felon matching process 23
Potential matches between the felon lists and existing voter
In Georgia, persons convicted of felonies who have not registration records are displayed on the county dashboard
for review by the county. Tr. 1329:21–1330:1 (Frechette).
completed their sentence are not eligible to vote. O.C.G.A.
Matches are highlighted if certain criteria are the same,
§ 21-2-216(b). An individual who is convicted of or who pled
and the Secretary of State establishes the criteria that will
to a felony but is on parole or probation will not be deemed
highlight a potential match of someone on the voter database
as having completed their sentence for voting purposes.
with someone who is also on the list of felons supplied by
Tr. 3795:25–3796:3 (Harvey). The felony status does not,
the state and federal governments. Tr. 3720:5–9 (Harvey).
however, impair their ability to obtain a driver's license. Tr.
eNet provides counties with “tight” felon matches listed first
3796:6–9 (Harvey). Consequently, many persons who are
and then “loose” matches, which become looser as the user
ineligible to vote because of felony status—purposefully or
goes down the list. Tr. 871:8–18, 872:12–18 (Hallman). The
inadvertently—register to vote when they obtain their driver's
Secretary of State's training documents provide the following
license and fail to opt out of the registration system. Tr.
comparison criteria used by the Secretary of State to highlight
3796:10–13 (Harvey).
a potential match for the counties to process, listed from
tightest to loosest:
*19 The Secretary of State's Office receives information
from the Department of Corrections (“DOC”) and the a. Last Name, First Name, Last 4 SSN, Date of Birth –
Department of Community Supervision (“DCS”) on a regular Active, Inactive, Pending, Reject
basis. Tr. 3567:5–13 (Harvey); O.C.G.A. § 21-2-231(a)
b. Last Name, First Name, Last 4 SSN, Date of Birth—
(“Unless otherwise notified by the Secretary of State, the
Cancelled
Georgia Crime Information Center shall, on or before the
tenth day of each month, prepare and transmit to the Secretary c. Last Name, Last 4 SSN, Date of Birth
of State and The Council of Superior Court Clerks of Georgia
a complete list of all persons, including dates of birth, social d. First Name, Last 4 SSN, Date of Birth
security numbers, and other information as prescribed by the
e. Last Name, First Name, Date of Birth
Secretary of State or The Council of Superior Court Clerks
of Georgia, who were convicted of a felony in this state since f. Last Name, Date of Birth, Race, Gender
24
the preceding reporting period.”) (emphasis added).
PX. 800 at STATE-DEFENDANTS-00115960; Tr. 1337:6–
Under Georgia law, “[u]pon receipt” of the felon list and 23, 1337:24–1338:2 (Frechette); see also PX. 800 at STATE-
“the lists of persons convicted of felonies in federal courts DEFENDANTS-00115961.
received pursuant to 52 U.S.C. Section 20507(g), the

There was evidence of eNet repeatedly flagging one voter,
Secretary of State shall transmit the names of such persons
whose names appear on the lists of electors to the appropriate Elizabeth Bauer, as a felon. PX. 658. 26 The evidence also
showed that another voter, Andre Smith, was repeatedly
county board of registrars.” O.C.G.A. § 21-2-231. The canceled. DX. 724.

In other words, under current practices, regardless of the

*20 According to the Secretary of State's Office, each criteria used for identifying potential matches, the counties
county is responsible for setting its own county-wide policy are the ones who make the choice as to what information is,
to apply to potential matches sent by the Secretary of State's in fact, a true match. Tr. 873:3–5 (Hallman).
Office to determine whether it is a true match; some counties
will do extra research on their own to determine if the person Additional testimony from Mr. Harvey and 2019 training
who is a potential match is an actual ineligible felon. Tr. materials (PX. 1903) established that the “[t]he record when
3570:5–10 (Harvey); Tr. 1351:16–1352:11 (Frechette). marked as a Felon match is flagged as a Challenged—
Felon.” PX. 1903. The training materials further indicate
Different counties have different resources and staff available; that if the county eNet user is “unsure” if there is a
accordingly, Mr. Hallman testified that it is difficult to choose felon match when processing the Felon Dashboard Report,
a single procedure that fits the needs of all counties. Tr. “the Challenge button can be used to handle those records
869:19–22 (Hallman). As such, the counties are expected to following O.C.G.A. § 21-2-228.” PX. 1903. Said Code
establish a uniform procedure for processing felon matches section involves the right of registrars to reexamine the
that is fair, utilizing the resources and staff available in that qualifications of electors. O.C.G.A. § 21-2-228(a). It also
county, and treating each record in the same manner with no gives the county board of registers the right to subpoena
preference for one over the other. Tr. 870:3–15 (Hallman); documents and witnesses and serve summonses and notices.
PX. 541. O.C.G.A. § 21-2-228(b).
Some larger counties, such as Fulton County, told the *21 Before a county cancels a voter for felony status, the
Secretary of State's Office they found reviewing looser county board of registrars is required, by statute, to mail
matches difficult due to the large number of potential matches
the voter a letter thirty days in advance. O.C.G.A. §
in that bucket. Many of the smaller counties, however, find the
21-2-231(c)(2). Pursuant to Georgia law, the letter is supposed
looser matches to be a useful tool. Tr. 871:7–873:20, 873:24–
to state “that the board of registrars has received information
874:16 (Hallman); Tr. 1359:19–23, 1360:14–25, 1361:9–12
that such person has been convicted of a felony and will be
(Frechette); PX. 1151.
removed from the list of electors 30 days after the date of the
notice unless such person requests a hearing before the board
Previously, in 2017, the Secretary of State eliminated a
potential match filter consisting of only the last four digits of of registrars on such removal.” O.C.G.A. § 21-2-231(c)
the social security number and date of birth because it was (2). To this regard, if a voter objects to the felon designation,
“showing too many false positives and all the good matches the voter is entitled to a hearing. Id.
will be caught by other filters.” Tr. 1359:12–18 (Frechette);
PX. 365. During his trial testimony, former Elections Director Harvey
reviewed O.C.G.A. § 21-2-231 (DX. 787) and testified
Ms. Frechette testified that she was not aware of any current that he was familiar with the § 231(c)(2) hearings. He further
issue with eNet producing “a lot of false matches” for testified that the burden of proof at these hearings is on
felons. Tr. 1355:14–19 (Frechette). When the structure of the “the entity that is challenging the elector.” Tr. 3828:6–12,
DOC was changed and split into two agencies, namely the 3842:12–18 (Harvey).
Department of Community Services and the Department of
Community Supervision, however, the number of individual However, Mr. Harvey also confirmed that 2019 training
felon records listed for the counties to process was higher than materials tell the counties that the voter must provide proof
usual. Tr. 876:7–20 (Hallman); PX. 1151. to remove the felon challenge flag. Tr. 3738:23–25–3739:1–
2, 3842:24–25, 3843:1–2; see also PX. 1903 at STATE-
County election offices review these potential matches sent DEFENDANTS-00068941 (“If the voter provides proof to
over by the Secretary of State and make determinations as remove the Felon Challenged flag or if matched in error ....
to whether the person on the voter list is ineligible to vote The record should be removed from the 40day Felon clock
by reason of a felony conviction. Tr. 3568:2–19, 3569:14–25,
and the Challenged flag removed”). 28 In addition, Ms.
27
3572:21–3573:6 (Harvey). Frechette testified that a voter who is challenged for any
reason has “the responsibility to clear up the issue” before

the voter could vote. Tr. 1328:1–5 (Frechette). However, Ms.

Frechette also testified that she did not “remember the exact Plaintiffs’ felon match evidence at trial also showed that
guidelines for a hearing” when asked if the voter needed to in 2018 and 2020, the Election Administration and Voting
seek a hearing. Tr. 1327:16–25. Survey (“EAVS”), published by the Election Assistance
Commission, identified Georgia as the state with the most
Considering witness credibility and Mr. Harvey's level of felon removals (68,249 and 54,730, respectively). PX. 1904;
experience and familiarity with the § 231(c)(2) hearings, the PX. 1981 at 167.
Court will resolve the conflicting evidence and trial testimony
by giving greater weight to Mr. Harvey's testimony that the
burden at the § 231(c)(2) hearing is on “the entity that is
c) The duplicate matching process
challenging the elector,” which would be the county in a felon
challenge context. Also, Defendants note in their proposed In general, a potential duplicate match occurs when eNet
findings that the training materials appear to be contrary to identifies people who may be the same person, e.g., Jonathan
law, and they cite O.C.G.A. § 21-2-229(c) to support this William Smith living in Fulton County and DeKalb County.
Tr. 3575:22–3576:13 (Harvey). Duplicate matches can be
statement. Doc. No. [855], ¶ 444. O.C.G.A. § 21-2-229(c) identified either when a new registration is processed or when
imposes the burden of challenging a voter's eligibility on the counties review batches of potential matches provided by the
“elector” making the challenge. Said Code Section is not Secretary of State's Office. Tr. 1300:8–21 (Frechette).
mentioned in the Secretary of State's felon matching training
materials and utilizes the term “elector” 29 as opposed to the In either instance, the Secretary of State's Office distinguishes
terms “county” or “board of registrars.” The Georgia Supreme between “tight” and “loose” potential matches and provides
Court has stated that: “OCGA § 21–2–228 permits a county both for county registrars to process. Tr. 793:18–794:9
or municipal board of registrars to challenge a person's right (Hallman). A “tight” potential match is one involving a
to register to vote or to remain on the list of electors, and “unique identifier,” like a social security number or a driver's
OCGA § 21–2–229 permits an elector to bring the same license number, “and a lot of other information matching first
type of challenge.” Cook v. Bd. of Registrars of Randolph name, last name, date of birth.” Tr. 793:18–20 (Hallman). A
Cty., 291 Ga. 67, 71, 727 S.E.2d 478, 482 (2012). If it is “loose” potential match may include matches on one or two
“the same type of challenge,” it is conceivable that the § criteria, for example, first initial and last name. Tr. 791:6–10,
229 burden language may apply to the present circumstances 793:12–794:6 (Hallman); see also PX. 1878 at 55.
under the doctrine of in para materia, but it is not necessary
for the Court to make a definitive statutory interpretation Loose matches are often used to find records where an
ruling for purposes of resolving the felony match issue. existing voter record needs to be corrected. Tr. 793:22–
794:6 (Hallman). If loose match criteria were not used,
*22 Regardless of the applicability of § 229, there was no it would run the risk of permitting the system to contain
evidence put forth of any accused felon having made a formal multiple registrations with multiple errors. Tr. 793:18–794:4
showing (or offer of proof) in a § 231(c)(2) hearing that he (Hallman). Because it is a unique identifier, if two records
or she was not a felon. However, none of Plaintiffs’ felon had the same driver's license number but different first or last
match witnesses ever proceeded to a § 231(c)(2) hearing; it is names or a different date of birth, it would still be treated
important to note that the evidence at trial showed that some as a potential match for comparison by the county user. Tr.
Georgia voters found themselves incorrectly canceled as 767:25–768:5 (Hallman).
persons convicted of disqualifying felonies, without receiving
any advance notice—and thus, there was no § 231(c)(2) When a new voter's registration information is initially
hearing process. Those voters are Dale Thomas, Jean Duncan, entered into eNet by a county user, the system automatically
Douglas Miller, and Andre Smith (discussed above). PX. 89 searches existing voter records to identify whether there are
at 1–2, PX. 1715, PX. 2071. Furthermore, three voters, Andre any existing records for that voter and to avoid the creation
Smith, Elizabeth Bauer, and Chris Warren, were either asked of duplicate records. Tr. 762:15–763:1, 787:4–13 (Hallman);
to provide or did provide proof that they were not felons. Tr. Tr. 1221:5–12 (Frechette).
2438:10–14; PX. 658, PX. 900, PX. 912, PX. 2019. 30

If there is a match between certain criteria in the new and last four digits of social security number. PX. 1903
application and existing record, the records are sent to the at STATE-DEFENDANTS-00068944; see also Tr. 1300:5–7
county's dashboard for review and determination of whether (Frechette).
the records are a true match for the same person. Tr. 1222:23–
1223:5 (Frechette). These criteria include, for example, first The process for handling these potential match batches is
name, last name, and date of birth. Tr. 1290:10–21 (Frechette). structurally similar to that used during new registration; the
eNet system displays on a county worker's dashboard the
If the county official determines that the records are a true existing voter registration information and the new data side-
match for the same person, the information from the new by-side for the county registrar to determine whether it is the
application replaces the information in the existing record so same person. Tr. 765:13–18, 21–24 (Hallman); see also PX.
there is only one surviving record. Tr. 1223:6–12 (Frechette). 1903 at STATE-DEFENDANTS-00068944.
The purpose of this process is to, where necessary, update an
existing voter record rather than create a new, duplicate record When there are duplicate records, the system does not
for the voter. Tr. 1222:1–5 (Frechette). automatically override an existing record; eNet requires
a county user to look at the screen and make that
*23 Ms. Frechette testified that in reviewing potential determination manually. Tr. 765:19–766:1 (Hallman); Tr.
matches between a new registration and an existing voting 1305:9–16 (Frechette). Under current practices, it is the
record, county officials also conduct independent research counties’ responsibility to implement practices on how
to determine whether a true match exists. Tr. 1257:7–14 to process such potential duplicate records for review.
(Frechette). Ms. Frechette testified that the Secretary of Tr. 1296:14–15, 1297:14–15 (Frechette); Tr. 765:19–766:1,
State's Office does not provide a minimum number of 772:1–773:1, 773:11–14, 774:7–15 (Hallman).
identifiers that must match between a new application and an
existing record before a county official should decide that the As a precautionary measure, if a county cancels a voter from
two records are a true match for the same voter. Tr. 1264:3– another county in the duplicate merge process, the other
7 (Frechette). Ms. Frechette would, however, help county county will be notified of the cancelation on their dashboard
officials find resources and information at their disposal to because that county is required to send the voter a letter. Tr.
resolve their questions about potential matches. Tr. 1259:18– 825:21–826:4 (Hallman).
22, 1260:8–12 (Frechette).
The system is designed to strike a balance between using
Ms. Frechette testified that it was not typical for a county business logic to prevent mistakes and allowing flexibility for
official, in reviewing potential matches, to automatically registrars to correct errors. Tr. 805:4–806:3 (Hallman). Mr.
assume there was a true match for the same voter based Hallman testified that “[y]ou don't want to make the system
solely on a matching driver's license number. Tr. 1257:7– too restrictive because then you can't fix problems or even
14 (Frechette). Regardless, like the felon match process, identify problems.” Tr. 805:20–22 (Hallman). Mr. Hallman
under current practices, the Secretary does not make the also testified that adding additional criteria to the potential
final determination of whether the potential duplicates are, matching process would put more demand on the system
in fact, the same person. That process is completed by and potentially slow down the process of voter registration
the county election offices. Tr. 3576:14–19 (Harvey); Tr. applications, which is a problem the State's vendor has warned
1315:23–1316:2 (Frechette). against. Tr. 848:11–849:2 (Hallman).
The eNet system also runs various batch processes on a *24 If a county user mistakenly merges a potential duplicate
daily, weekly, and monthly schedule to identify potential match that is not a match, the resulting voter registration file
duplicates, and the results appear on the dashboard for will contain errors. Tr. 794:14–21 (Hallman); Tr. 1223:13–
county registrars to process. Tr. 772:6–773:1 (Hallman); Tr. 24 (Frechette). Mr. Hallman testified that it is uncommon
1295:25–1296:13, 1300:2–4 (Frechette). eNet is programmed for county users to incorrectly merge duplicate voter records,
to apply four criteria to check for potential duplicate records: but he stated that it has happened more than once. Tr.
(1) first name, date of birth, and last four digits of social 798:2–5, 12–14, 818:18–25 (Hallman). Where such did occur,
security number; or (2) full social security number; or (3) Mr. Hallman testified that it would likely be treated as an
driver's license number; or (4) first name, date of birth,

individual training issue for that particular county user. Tr. canceled pursuant to this process so they may doublecheck
803:16–22 (Hallman). the Secretary's work. Tr. 3597:16–25 (Harvey).
Training guides are limited in scope and do not include Counties have an independent obligation to remove from
every aspect of election procedure, although the county users the voter registration database persons they know to be
were reminded during training sessions to double check their deceased based on information from “obituaries published by
screens and make sure they were not making mistakes. Tr. local newspapers, death certificates, verifiable knowledge of
805:22–807:4 (Hallman). None of the Secretary of State's the death, and information provided in writing and signed
training materials contain any best practices about which by a family member or members of the deceased person.”
values must match, or the proper procedures to follow when
O.C.G.A. § 21-2-231(e.1)
evaluating two different records. See, e.g., PX. 50; PX. 800;
PX. 1878; PX. 1903. The Secretary's policy is that “it's the
To facilitate this process, in addition to the automatic
responsibility of the county office to review the two records
cancelation of “tight” vitals matches, the Secretary of
to determine if it is the same person or not.” Tr. 1324:10–
State's Office also provides “loose” potential vitals matches
12 (Frechette). Indeed, Ms. Frechette testified: “Minimal
to counties for manual review. Tr. 885:20–24, 886:5–7
standards just wasn't part of our vocabulary. It was review the
(Hallman).
records and make the decision for your county registrations.”
Tr. 1324:22–24 (Frechette).
A loose potential vitals match is flagged when either of the
following sets of criteria matches between records: (1) last
Mr. Hallman testified that ultimately, if a county user
name and date of birth; or (2) last name and social security
mistakenly canceled a registered voter and that person went to
number. Tr. 1323:12–21 (Frechette); PX. 800 at 13.
his or her polling place to vote, it is “supposed to be handled”
by issuing that person a provisional ballot to vote and the
*25 As with the felon and duplicate matching processes,
county going back and researching “what happened with that
if eNet identifies a loose match, the potential match will
person's record.” Tr. 812:17–813:6 (Hallman).
be displayed on the county dashboard for review by county
registrars. Tr. 1323:17–21 (Frechette).
d) Vital records matching process Also like these other matching processes, Ms. Frechette
testified that the Secretary of State's Office does not tell the
Unlike the duplicate and felon matching processes, the county how to make the decision of whether a true match
Secretary does remove from the voter database voters who exists between death records and existing voter registration
appear on lists submitted by the Georgia Department of Public records. Tr. 1327:3–12, 1329:4–11 (Frechette). It is, again,
Health who are deceased. O.C.G.A. §§ 21-2-231(d), the counties’ responsibility to review the information in the
potential match, decide if there is a true match, and cancel
(e); Tr. 3597:2–8 (Harvey). eNet identifies deceased voters
the record. Tr. 1324:1–3, 10–12 (Frechette). Plaintiffs put
by comparing the voter registration rolls with vital records
forth no evidence from county officials to show that the
from the Georgia Department of Health on a weekly basis. Tr.
criteria used by the Secretary of State to identify potential
884:14–24 (Hallman).
matches definitively led to errors occurring in counties’
determinations, either due to the volume of the batches or
To prevent incorrect deletions of voter records, the Secretary
otherwise.
utilizes what is called a “tight match,” which compares a
(possibly deceased) voter's and recently-deceased's last name,
Counties are encouraged to perform audits on their vital
date of birth, and Social Security Number. Tr. 3597:9–13
records canceled automatically by the system to ensure the
(Harvey); Tr. 1321:22–1322:5 (Frechette); see also PX. 800
files have been removed from their active voter files. Tr.
at 12.
893:3–11, 894:13–15 (Hallman).
If those factors match, the registrant is automatically canceled

in eNet. Tr. 3597:9–13 (Harvey); Tr. 1322:22–1323:11
(Frechette). Counties are sent a list of persons who have been e) List Accuracy witnesses

Witnesses who testified about list accuracy burdens include historical backdrop to the present practices at issue. The Court
the following: Kia Carter (Tr. 2482–2516); Dasia Holt (PX. gives no evidentiary weight to Dr. Jones's statements about
2103 (Holt Dep.)); Kelly Dermody (PX. 2101 (Dermody polling place closures as this Court has already found that
Dep.)); Nicole Freemon (Tr. 1494–1515); Julian Grill (PX. Plaintiffs lack standing to assert their polling place closure
2056 (Grill Dep.)); Alkhealasharteula Harrison (Tr. 2665– claims against Defendants. Doc. No. [612], 36–42.
2690); Emily Huskey (Tr. 1141–1168); Antoinette Johnson
(PX. 2105 (Johnson Dep)); Brenda Lee (PX. 2095 (Lee
Dep.)); Anthony McKissic (Tr. 2723–2749); Meridith Rose
b) Mr. Kevin J. Kennedy
(Tr. 2765–2819); Andre Smith (Tr. 2429–2481); Jayme Wills
(PX. 2052 (Wills Dep.)). *26 Mr. Kevin Kennedy served as Wisconsin's chief
election officer from 1982 through 2016. Tr. 2820:15–19
(Kennedy). 31 He was a member of the National Association
4. Plaintiffs expert witnesses of State Election Directors (“NASED”) from 1990 to 2016
and served as the organization's president in 2006. Tr.
At trial, Plaintiffs offered expert testimony from the following 2825:23–2826:15 (Kennedy). He was also involved with the
experts: Dr. Adrienne Jones; Mr. Kevin J. Kennedy; Dr. Ken Election Center, a nationwide training organization for state
Mayer; Dr. Peyton McCrary; and Dr. Lorraine Minnite. The and local election officials, from the 1980s to 2016. Tr.
Court will now provide an overview of the expert testimony 2827:9–15 (Kennedy).
presented at trial.
After concluding his time as chief election officer in 2016, he
became an “inspector” for Wisconsin elections; in Georgia,
a) Dr. Adrienne Jones this is equivalent to a poll worker. Tr. 2824:17–25 (Kennedy).
He is currently Madison, Wisconsin's chief election inspector,
Dr. Adrienne Jones received her J.D. from the University of and in that role, he is responsible for overseeing the smooth
California, Berkley. Tr. 937:7–8 (Jones). After graduating law and proper administration of elections at the municipal level.
school, she pursued a Ph.D. in political science at the City See Tr. 2825:5–15 (Kennedy). The role also requires him to
University of New York; her graduate work focused on the receive training. Tr. 2825:16–18 (Kennedy).
Voting Rights Act of 1965. Tr. 937:17–23 (Jones). Dr. Jones
has been a professor of political science at various institutions This Court qualified Mr. Kennedy as an expert on election
for around twenty-two years. Tr. 936:7–19 (Jones). She is training; at trial, he was permitted to testify as to the threshold
currently in her sixth year as a Professor of Political Science at level of election training in Georgia and supervision regarding
Morehouse College, where her academic focus is on African election training. Tr. 2847:5–6.
American political development. Tr. 936:12–19, 938:13–
19 (Jones). In addition to her dissertation, Dr. Jones has At trial, Mr. Kennedy offered his expert opinion on the
published two peer-reviewed articles on the VRA, and she inadequacy of training for poll workers in Georgia regarding
is currently working on another peer-reviewed article and a absentee ballot cancelation. He did not offer an opinion
book on the VRA. Tr. 940:1–6, 13–19 (Jones). as to other issues in this case. This Court finds Mr.
Kennedy credible. The Court will weigh his testimony in its
This Court qualified Dr. Jones as an expert of historical Conclusions of Law.
review. Tr. 950:3–10. At trial, Dr. Jones testified about the
history of voting and voter suppression, specifically as it
related to the history of African American voting in Georgia.
c) Dr. Ken Mayer
Tr. 951:19–22 (Jones). This Court credits the testimony of
Dr. Jones inasmuch as her expert report provides a historical Dr. Kenneth “Ken” Mayer has a bachelor's degree and a
backdrop pertinent to cases brought under Section 2 of the doctorate in political science; he received his B.A. from
VRA. However, this Court ascribes only limited weight to University of California San Diego in 1982 and his Ph.D.
Dr. Jones's testimony concerning the matters addressed in her from Yale University in 1988. While at the University of
report that occurred after 1990. Likewise, this Court attributes California, he also minored in applied mathematics, and
limited weight to testimony that did not connect Dr. Jones's much of his coursework focused on applied statistics and

quantitative methods used in political science. Tr. 327:24– color. Tr. 413:25–414:1 (Mayer). In examining county-level
328:4 (Mayer). Since 1989, Dr. Mayer has been a professor of data files of registered voters as of January 2020, Tr. 412:25–
political science at the University of Wisconsin in Madison, 413:2 (Mayer), he found that though white voters made
Wisconsin. Tr. 328:6–11 (Mayer). He is also an affiliate up over half of all registered voters, only 11.4% of voters
professor at the La Follette School of Public Affairs, located flagged for MIDR were white. Tr. 413:12–15 (Mayer).
in Madison, Wisconsin. Tr. 328:7–8 (Mayer). African Americans, meanwhile, made up approximately 30%
of the overall voter file but nearly 70% of voters placed in
This Court qualified Dr. Mayer as an expert on election MIDR status. Tr. 413:18–21 (Mayer). Using his experience
administration, including the analysis of voter registration in statistical analysis, he calculated that an African American
files; voter verification processes; and the impact of those voter is more than ten times likely to be placed in MIDR
verification process, as far as they relate to statistical analyses. status under Exact Match than a white non-Hispanic voter.
Tr. 342:18–342:1. Tr. 414:5–9 (Mayer). In all, Dr. Mayer opined, based on data
he gathered and analyzed, that voters of color were far more
At trial, Dr. Mayer offered his expert opinion on likely to be flagged and put in MIDR status under Exact
Georgia's Exact Match policy and citizenship verification Match than white voters. Tr. 408:10–12 (Mayer).
requirements. 32
Dr. Mayer stated that based on relevant academic literature,
Dr. Mayer testified that HAVA does not require states to it was “certainly plausible, if not likely” that being flagged
implement the Exact Match policy Georgia follows. Tr. as MIDR could “trigger a poll worker into thinking that
358:13 (Mayer). His testimony indicated that while HAVA they have to subject or should subject or must subject [the
requires “that states go through a verification process by flagged] registrant to a higher level of scrutiny than they do
comparing registration information with information [in] other voters.” Tr. 403:16–24 (Mayer). Dr. Mayer testified that
driver's license or Social Security Administration files ... it another aspect of that line of academic literature suggested
doesn't say how [states] do that. That method is left up to that poll workers “frequently” and are “more likely to” subject
the state.” Tr. 358:4–8 (Mayer). Dr. Mayer explained that voters of color to a higher level of scrutiny than white voters;
there were other methods of voter verification available to voters of color are also more likely to be “asked to do
states that still met baseline HAVA requirements. Tr. 358:16– things the law doesn't actually require them to do” when
21 (Mayer). poll workers place them under this scrutiny. Tr. 404:11–16
(Mayer). However, Dr. Mayer did not directly observe this
*27 After an intensive statistical analysis, Dr. Mayer phenomenon in Georgia. Tr. 404:24–405:1 (Mayer).
concluded that Exact Match did not affect voters uniformly
across the state. Tr. 415:14–15 (Mayer). Dr. Mayer found Dr. Mayer also testified that in his opinion, there was no
“a relationship between the percentage of a county that is valid reason for placing voters who fail Exact Match in
non-Hispanic white and the percentage of those registrants MIDR status from an election administration perspective. Tr.
in MIDR status.” Tr. 416:2–4 (Mayer). The higher the 405:23–406:1 (Mayer).
percentage of inhabitants that are non-Hispanic white in a
particular county, the lower the percentage of voters in that Dr. Mayer also evaluated Georgia's citizenship verification
county in MIDR status. Tr. 416:5–8 (Mayer). process, and opined that the process “routinely misidentifies
U.S. citizens as noncitizens.” Tr. 365:12–13 (Mayer). He
Dr. Mayer also found a wide variation in the percentage concluded that the verification process had an “error rate”
of voters in MIDR in counties with similar demographics. of 43.1%; of the 3,073 people on the voter rolls flagged
Tr. 416:9–16 (Mayer). The variations in these comparable for noncitizenship as of January 2020, 43.1% of them had
counties could not be explained by other factors, which Dr. been able to provide documentation proving that they were,
Mayer felt was “consistent with and suggestive of different in fact, citizens by November 2021. Tr. 365:12–14; 366:6–
administrative practices in different counties.” Tr. 416:17–19 12 (Mayer); PX. 1999 at 7. It was Dr. Mayer's opinion that
(Mayer). Georgia's method of relying on driver's license data to verify
citizenship was “known to produce inaccurate results and can
Furthermore, Dr. Mayer concluded that Exact Match produce errors that approach 100% in terms of every person
“overwhelmingly disproportionally” impacted voters of

they ... flag as a noncitizen is actually a citizen.” Tr. 366:16–

20 (Mayer).
d) Dr. Peyton McCrary
*28 However, Dr. Mayer acknowledged that it was possible Dr. Peyton McCrary received a bachelor's and master's
that persons in pending status for citizenship could indeed degrees in history from the University of Virginia; the focus
be noncitizens. Tr. 504:9–12 (Mayer). He did not conduct an of his master's program was the “History of the South.” Tr.
analysis to determine whether any of the 1,750 registrants 186:14–187:3 (McCrary). Dr. McCrary went on to receive his
remaining in pending status for citizenship verification as Ph.D. in history from Princeton University, again focusing
of November 2021 were actually citizens. Tr. 439:25–440:4 on Southern history, this time with an emphasis on the Civil
(Mayer). War and Reconstruction Era. Tr. 187:5–9 (McCrary). Since
completing his Ph.D., he has taught at various universities. Tr.
Dr. Mayer believes that the SAVE program would likely bring 187:15–21 (McCrary). He consistently taught courses on the
down the number of voters in pending status for citizenship. history of the South for twenty years. Tr. 188:7–11 (McCrary).
Tr. 441:21–24 (Mayer). 33
This Court qualified Dr. McCrary as an expert in history.
In addition to identifying potential accuracy issues, Dr. Tr. 198:5–10, 22–23; 289:15. At trial, Dr. McCrary offered
Mayer's study of citizenship verification led him to his expert opinion on the history of voter discrimination
conclude that Georgia's citizenship verification process in Georgia; the history of racial polarization in voting
applies overwhelmingly to voters of color. Tr. 387:9–16 in Georgia; the history of voter registration processes in
(Mayer). Georgia; and the history of “the way in which the Georgia
party system evolved over time and what that has to say about
When compared to their overall demographic representation the context in which decision-making about, particularly the
in the voter file, Hispanics were between four and five times operation of the voter registration system, both before and
more likely to be flagged as noncitizens. Tr. 389:23–390:5 after the state began to implement ... HAVA [ ] in the 21 st
(Mayer). Asian and Pacific Islander registrants were between
century.” Tr. 200:15–201:16 (McCrary). 34 In sum, it was
seven and eight times more likely to be flagged as noncitizens.
Dr. McCrary's opinion that today's political context and voter
Tr. 390:8–14 (Mayer). African American registrants were also
registration and verification processes in Georgia resemble
slightly more likely to be flagged as noncitizens. Tr. 390:15–
the political context and voter registration and verification
23 (Mayer).
processes in place during the Jim Crow era. PX. 1289 at 7–8.
However, Dr. McCrary did not testify or speculate as to the
Furthermore, Dr. Mayer found that white registrants were
motivations behind implementing certain voter verification
both the least likely to be flagged for noncitizenship and
processes still in use today in Georgia at trial. Tr. 231:25–
the most likely “to be able to overcome that or to take
232:5 (McCrary). This Court finds Dr. McCrary credible. The
steps to move their registration into active status.” Tr.
Court will weigh his testimony in its Conclusions of Law.
393:13–15 (Mayer). African American registrants flagged for
noncitizenship were “least likely to be able to take the steps
to ... move their registration into active status.” Tr. 393:18–
21 (Mayer). e) Dr. Lorraine Minnite
*29 Dr. Lorraine Minnite has a bachelor's degree in

In Dr. Mayer's opinion, Georgia's citizenship “verification
American history, two master's degrees, and a Ph.D. in
process overwhelmingly and disproportionately flags voters
political science. Tr. 2332:6–7 (Minnite). She is an associate
of color[,] who are more likely to be flagged and more likely
professor of Public Policy and chair of the Department of
to have remained in pending status.” Tr. 398:7–10 (Mayer).
Public Policy and Administration at Rutgers University. Tr.
2331:20–22 (Minnite). Her area of academic interest is in
This Court finds Dr. Mayer credible. The Court will weigh his
American politics, with a special focus on elections and,
testimony in its Conclusions of Law.
more specifically, voter fraud in American elections; this has
been her focus for more than twenty years. Tr. 2337:13–
19 (Minnite). Drawing on her years of academic study, in

2010, Dr. Minnite wrote the peer-reviewed The Myth of Voter felony charges relating to absentee ballots following the
Fraud, published by Cornell University Press. Tr. 2339:11– election of the first-ever majority-Black school board. Tr.
13, 22–23, 2340:1–4 (Minnite). In addition to her book, she 683:7–684:12, 676:1–728:7, 745:8–755:3 (Dennard). The
has also written four peer-reviewed academic articles on voter prosecution of Dr. Dennard and others was prompted by the
fraud. Tr. 2341:3–4 (Minnite). Dr. Minnite has previously Secretary of State's Office, which initiated an investigation
testified in other cases regarding voter fraud. Tr. 2332:20–24 and then asked the Georgia Bureau of Investigations to
(Minnite). become involved. Tr. 683:7–684:12, 676:1–728:7, 745:8–
755:3 (Dennard). The charges were eventually dismissed
This Court qualified Dr. Minnite as an expert “in the area after then-Attorney General Sam Olens issued an opinion
of political science, specializing in elections, the political
interpreting O.C.G.A. § 21-2-385(a) or § 21-2-574 as
process[,] and voter fraud in American elections.” Tr.
not prohibiting the conduct Dr. Dennard had been accused
2344:19–2345:1. At trial, Dr. Minnite offered her expert
of engaging in—merely possessing another voter's sealed
opinion regarding incidents of voter fraud nationally and
absentee ballot to help have it delivered. Tr. 649:7–728:7,
in Georgia. In researching and forming her expert opinions
745:8–755:3 (Dennard); see also PX. 2000, 2038, 2047; DX.
for this case, Dr. Minnite defined “voter fraud” as “the
736.
process whereby voters intentionally corrupt the voting or
the electoral process.” Tr. 2350:13–15 (Minnite) (emphasis
Other asserted evidence of discriminatory purpose included
added). Dr. Minnite concluded that empirical evidence
2014 and 2018 campaign speeches by then-Secretary Kemp
showed that incidents of voter fraud are exceedingly rare
—in one speech, he urged his supporters to register voters
nationally and in Georgia; this conclusion applied both to
who would vote for Republican candidates and encourage
incidents of fraud at the polls on Election Day and to incidents
them to vote in the same way that Democrats had previously
of fraud in voter registration. Tr. 2346:3–6 (Minnite). She also
done with minority voters. DX. 740; PX. 2051, Tr. 86:9–
found that “a review of the available evidence in Georgia finds
17, 88:9–17, 92:18–22 (Kemp Dep.). Plaintiffs thereafter
no cases of voter impersonation at the polling place, and in
attempted to tie these campaign statements to investigations
addition there is minimal evidence of other forms of fraud
into the New Georgia Project, an organization focused on
intentionally committed by voters, such as what Georgia calls
registering people of color to vote. PX. 97 at 6. In May 2014,
‘repeat’ voting or voting when knowing one is ineligible to
the Secretary of State's Office commenced an investigation
vote.” Tr. 2346:10–15 (Minnite); PX. 1038 at 3. Dr. Minnite
into the New Georgia Project. The investigation began after
reaffirmed these opinions following the 2020 Election in
election officials in Butts County complained to the Secretary
Georgia. Tr. 2346:19–22 (Minnite); PX. 2098 at 4.
of State's Office about a voter registration drive and the
manner in which it was being conducted. Tr. 3622:21–
Dr. Minnite did not offer an opinion on Georgia's
3623:13 (Harvey). Specifically, based on the questions
implementation of HAVA or on Georgia's election
being asked—about personal identifiable information, social
administration processes generally. Tr. 2404:14–18, 2405:13–
security number, driver's licenses, etc.—the elections office
15 (Minnite). As such, her research did not involve examining
and sheriff's office believed that there was an identity theft
the amount of improper or invalid voter registration in
ring at work. Tr. 3623:1–4 (Harvey). As the investigation
Georgia. Tr. 2406:8–10 (Minnite). Dr. Minnite also testified
developed, it became focused on forgery, making false
that she was not opining that Georgia does not have an interest
statements on election documents, false voter registration,
in preventing voter fraud. Tr. 2410:25–2411:5 (Minnite).
and providing fraudulent information on election documents.
Tr. 3625:22–3626:3 (Harvey). The New Georgia Project was
This Court finds Dr. Minnite credible. The Court will weigh
later dropped as a respondent in the matter because the
her testimony in its Conclusions of Law.
Secretary's investigators could not find a causal link between
New Georgia Project and the canvassers the investigators
thought had committed forgeries. Tr. 2029:6–23 (Harvey).
5. Other Evidence Considered
Plaintiffs also presented discriminatory purpose evidence that

included the troubling and powerful story of Dr. Nancy a) Judicial notice of Georgia voting
Dennard, who, in 2010, was arrested and charged with and voter registration statistics

*30 Defendants moved this Court, pursuant to Rules 201(b) 1983 suit bears the burden of “prov[ing] his case by a
(2) and 201(c)(2) of the Federal Rules of Evidence, to preponderance of the evidence” at trial); League of United
take judicial notice of certain voter registration and election Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep. Sch.
statistics maintained by the Secretary of State's Office. Doc. Dist., 123 F.3d 843, 846 (5th Cir. 1997) (indicating that in the
No. [829]. As indicated during trial, that motion was granted Voting Rights Act context, the plaintiff was “required to prove
by this Court in the Docket Order entered June 13, 2022. Tr.
by a preponderance of the evidence that all of the Gingles
3297:10–12. Specifically, for purposes of this Opinion, this
preconditions were satisfied”); Swaters v. Osmus, 568 F.3d
Court takes judicial notice of the following:
1315, 1323–24 (11th Cir. 2009) (“The [affirmative] defense
As of the November 3, 2020 general election, there were must be established by a preponderance of the evidence.”). 35
7,638,898 registered voters in Georgia. Doc. No. [829-9], 4.
A. Jurisdictional Considerations
As of the June 9, 2020 primary election, there were 7,340,261
registered voters in Georgia. Id.
1. Standing
As of the November 6, 2018 general election, there were
“Standing is the threshold question in every federal case,
6,935,816 registered voters in Georgia. Id.
determining the power of the court to entertain the suit.”
As of the May 22, 2018 primary election, there were CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d
6,694,441 registered voters in Georgia. Id. 1257, 1269 (11th Cir. 2006) (internal quotation omitted).
Article III of the United States Constitution limits courts
As of the November 8, 2016 general election, there were to hearing actual “Cases” and “Controversies.” U.S. Const.
6,637,939 registered voters in Georgia. Id.
Art. III § 2; Lujan v. Defs. of Wildlife, 504 U.S. 555,
559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The
In the January 2021 runoff election between former Senator
standing requirement arising out of Article III seeks to uphold
David Perdue and now-Senator Jon Ossoff, 1,084,138
separation-of-powers principles and “to prevent the judicial
absentee by mail ballots were cast. Doc. No. [829-8], 3.
process from being used to usurp the powers of the political
In the January 2021 runoff election between former Senator branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398,
Kelly Loeffler and now-Senator Raphael Warnock, 1,084,021 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Standing is
absentee by mail ballots were cast. Doc. No. [829-7], 3. typically determined when the complaint is filed. Focus on
the Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
In the November 2, 2020 presidential election between former 1275 (11th Cir. 2003) (collecting authorities).
President Donald Trump and now-President Joe Biden,
1,316,943 absentee by mail ballots were cast. Doc. No. *31 To establish standing, a plaintiff must show three things:
[829-6], 3.
In the November 6, 2018 gubernatorial election between

First, the plaintiff must have suffered
Governor Brian Kemp and Stacey Abrams, 223,576 absentee
an “injury in fact”—an invasion of a
by mail ballots were cast. Doc. No. [829-5], 3.
legally protected interest which is (a)
concrete and particularized, and (b)
II. CONCLUSIONS OF LAW actual or imminent, not conjectural or
The Court now sets forth its conclusions of law, which will hypothetical. Second, there must be a
include consideration of jurisdictional principles followed causal connection between the injury
by consideration of the preponderance of the evidence as and the conduct complained of—the
to the remaining causes of action and affirmative defenses. injury has to be fairly traceable to
the challenged action of the defendant,
See Langston ex rel. Langston v. ACT, 890 F.2d 380, and not the result of the independent
383–84 (11th Cir. 1989) (noting that the plaintiff in a § action of some third party not before

the court. Third, it must be likely, as

typical projects. Havens Realty Corp. v. Coleman, 455
opposed to merely speculative, that the
U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982);
injury will be redressed by a favorable
decision. Arcia v. Fla. Sec'y of State, 772 F.3d 1335, 1341 (11th
Cir. 2014) (“Under the diversion-of-resources theory, an
organization has standing to sue when a defendant's illegal
acts impair the organization's ability to engage in its own
Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 (internal projects by forcing the organization to divert resources in
quotations, citations, and alterations omitted). The party
invoking jurisdiction bears the burden of establishing response.”); Common Cause/Ga. v. Billups, 554 F.3d
standing “with the manner and degree of evidence required 1340, 1350 (11th Cir. 2009) (finding an organization had
standing because it diverted “resources from its regular
at the successive stages” of litigation. Id. at 561, 112 activities to educate and assist voters in complying with”
S.Ct. 2130; see Church of Scientology Flag Serv. Org., a challenged statute); Common Cause Ind. v. Lawson,
Inc. v. City of Clearwater, 777 F.2d 598, 607 n.24 (11th Cir. 937 F.3d 944, 952–53 (7th Cir. 2019) (listing cases finding
1985) (standing “is a legal determination based on the facts standing for voter-advocacy groups that diverted resources
established by the record”). At trial, facts concerning standing
to counteract unlawful election activity). 36 A diversion
must be supported by evidence. Lujan, 504 U.S. at 561, of resources constitutes an Article III injury in fact. See
112 S.Ct. 2130; see Langston, 890 F.2d at 383–84 (noting Browning, 522 F.3d at 1165 n.14.
that plaintiff in a § 1983 suit must prove his case by a
*32 In the Eleventh Circuit, a litigant can establish
preponderance of the evidence at trial). While standing is
organizational standing to challenge election laws by showing
determined when the plaintiff's complaint is filed, “it must
it has diverted or anticipates having to divert time, personnel,
persist throughout a lawsuit.” G. Ass'n of Latino Elected
or other resources from its usual projects to assist voters
Offs., Inc. v. Gwinnett Cty. Bd. of Registration & Elections,
36 F.4th 1100, 1113 (11th Cir. 2022). whose ability to vote is affected by state action. See Arcia,
772 F.3d at 1341; Browning, 522 F.3d at 1165–66
The Court will now consider the three requisites that
(finding organizational standing when a plaintiff diverted
the organizational plaintiffs must establish: injury in fact,
resources from election-day education and monitoring to
traceability, and redressability.
educating volunteers and voters on compliance with a new
election law). To create a concrete injury, the diversion must
cause a perceptible impairment of organizational activities.
a) Injury-in-fact
Jacobson, 974 F.3d at 1249 (11th Cir. 2020). And to show
To establish an injury in fact, a plaintiff must show that a concrete injury, the organization must identify the specific
it “suffered an invasion of a legally protected interest that activities from which it diverted or is diverting resources.
is concrete and particularized and actual or imminent, not Id. at 1250; see also Ga. Ass'n of Latino Elected Offs.,
conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 Inc., 36 F.4th at 1114 (an organization establishes diversion-
U.S. 330, 339, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) of-resources standing by showing what it would have to
(internal quotations omitted). “A ‘concrete’ injury is one that divert resources away from to address the effects of the
actually exists—it is ‘real,’ as opposed to ‘abstract.’ ” Ga. defendant's alleged conduct); Ga. Latino All. for Hum.
Ass'n of Latino Elected Offs., Inc., 36 F.4th at 1114 (citations Rights v. Governor of Ga., 691 F.3d 1250, 1260 (11th Cir.
omitted). 2012) (finding standing for an immigration organization that
“cancelled citizenship classes to focus on” increased inquiries
Organizations may have standing under a “diversion-of- about a new law).
resources” theory when they divert financial resources or
personnel time to counteract unlawful acts of a defendant, As this Court stated in its summary judgment order
thereby impairing the organizations’ ability to engage in concerning standing, a plaintiff may show a diversion of
resources even if it diverts from one activity aimed at

achieving an organizational mission to a different activity in the Sixth District who is 18 and above is registered to vote,
and ... actually votes.” Tr. 2982:11–18 (Jackson).
aimed at that same mission. See, e.g., Common Cause/
Ga., 554 F.3d at 1350 (finding standing for organization that
*33 In 2018, the Sixth District diverted resources to address
diverted resources from its regular voting-related activities
Exact Match MIDR, voter roll inaccuracies, and absentee
to educate and assist voters in complying with a challenged
ballot cancelation procedures. Tr. 2999:4–12 (Jackson).
statute). Similarly, when an organization diverts its resources
Bishop Jackson diverted time preaching and communicating
to achieve its typical goal in a different or amplified manner,
with his congregation about the Sixth District's voter
the organization may still gain standing. See Ga. Ass'n of
initiatives, early voting, and voter roll inaccuracies. Tr.
Latino Elected Offs., Inc., 36 F.4th at 1115 (finding that
2998:23–2999:12 (Jackson); PX. 741 (2018 email urging
an organization diverted resources if it reassigned personnel
early voting). Other Sixth District staff and volunteers
to help Spanish-speaking voters understand English-only
devoted time in 2018 to oppose challenged practices in
materials); Browning, 522 F.3d at 1166 (finding standing this litigation and to update Bishop Jackson on their work.
when organization anticipated it would “expend many more Tr. 2995:1–14, 2996:6–16, 2997:4–9 (Jackson). Similarly,
hours than it otherwise would have” on specific election- the Sixth District diverted resources to address concerns
related activity). with Exact Match MIDR, mismanagement of the voter
rolls, and absentee ballot cancelation procedures during the
Notably, if this Court finds that one Plaintiff has standing with 2020 election cycle. See Tr. 2984:4–2985:12 (Jackson). For
respect to a challenged practice, there is standing sufficient example, the Sixth District focused on verifying voters’
for the Court to consider the challenge, regardless of whether registration status, creating a voter empowerment program to
any other Plaintiff has standing with respect to that challenged assist in mobilizing voters among individual congregations,
practice. See Town of Chester, N.Y. v. Laroe Ests., Inc., helping voters understand how to handle mail-in applications,
––– U.S. ––––, 137 S. Ct. 1645, 1651, 198 L.Ed.2d 64 (2017) and helping voters work through new issues relating to voting
(“At least one plaintiff must have standing to seek each form roll errors and absentee voting that differed from issues
of relief requested in the complaint.”), Ga. Ass'n of Latino the church had addressed in “routine registration effort[s].”
Elected Offs., Inc., 36 F.4th at 1113–14 (“We need not parse Tr. 2986:6–20, 3008:17–3013:19, 3031:5–13 (Jackson); PX.
each Plaintiff's standing, however, because one—GALEO— 1908 (document announcing church voter protection plan);
has standing, under a diversion of resources theory, to assert PX. 1909 (showing voter registration trainings). The Sixth
all of the claims in the second amended complaint.”). District also held workshops to address issues with inaccurate
voter registrations, Exact Match, and canceling absentee
Eight witnesses testified to support Plaintiffs’ organizational ballots. Tr. 3024:20–3025:18 (Jackson); PX. 1992. Thousands
standing: Bishop Reginald Jackson (the Sixth District); of AME church volunteers assisted with these efforts
Reverend Raphael Warnock and Reverend Dr. John H. during the 2018 and 2020 election cycles. Tr. 2997:4–
Vaughn (Ebenezer); Jessica Livoti (Care in Action); Liza 9, 3018:22–3019:15 (Bishop Jackson). Also, significant
Conrad and Cianti Stewart-Reid (Fair Fight); Pastor Hermon financial resources and staff time were devoted to these
Scott (Baconton); and Reverend Matt Laney (Virginia- efforts. Tr. 3019:10–15 (Jackson); PX. 1909 (listing a staff
Highland). The Court finds each of these witnesses credible member's outreach duties).
and specifically credits their testimony summarized below.
The evidence adduced at trial showed that resources—
including personnel and volunteer time—were diverted from
the Sixth District's other anticipated or regular activities, such
(1) The Sixth District has suffered an as focusing staff time on Christian education, addressing other
injury-in-fact caused by Defendants. social issues like youth outreach, and focusing on church
efforts related to COVID-19 or the census. Tr. 2995:19–
The Sixth District is an A.M.E. church in Georgia with a
2996:3, 2999:4–12 (Jackson).
long history of involvement in civil rights, particularly voting
rights. Tr. 2974:7–11, 2979:15–2982:18 (Jackson). Bishop
After carefully reviewing the evidence adduced at trial, the
Reginald Jackson is the Bishop of the Sixth District, a role he
Court finds that the Sixth District has demonstrated by a
assumed in 2016. Tr. 2973:2–10 (Jackson). Bishop Jackson
preponderance of the evidence that it suffered a concrete
has undertaken the task of ensuring that “every eligible person

injury-in-fact by diverting its organizational resources from

its core mission and other anticipated projects to counteract These programs diverted volunteer and staff time away from
Exact Match MIDR, voter roll inaccuracies, and absentee Ebenezer's other projects and “areas of church life.” PX. 2053,
ballot cancelation procedures. Tr. 106:22–107:25 (Warnock Dep.). For instance, diverting
volunteer time to these voting rights projects affected other
church programs that rely on the same volunteers, such as
Ebenezer's soup kitchen, programs for youth, or one of the
(2) Ebenezer has suffered an injury-
church's other “dozens of programs.” PX. 2053, Tr. 107:15–
in-fact caused by Defendants.
25 (Warnock Dep.). Ebenezer would otherwise devote these
Ebenezer has long been involved in voting rights efforts, resources to other kinds of church outreach. PX. 2053, Tr.
and its Senior Pastor, Reverend Raphael Warnock, testified 190:8–16 (Warnock Dep.). 40
in deposition that protecting voting rights is core to the
church's mission. PX. 2053 Tr. 35:10–36:9, 39:1–10, 41:3– After carefully reviewing the evidence adduced at trial,
37 the Court finds that Ebenezer has demonstrated by a
6, 72:8–10 (Warnock Dep.). The church's efforts have
included registering, educating, and mobilizing voters, as preponderance of the evidence that it has suffered a concrete
well as challenging barriers to voting. PX. 2053, Tr. 35:10– injury-in-fact by diverting its organizational resources from
the church's core mission and other anticipated projects to
36:9, 44:10–23, 71:15–23, 38 93:2–17 (Warnock Dep.).
counteract voter roll inaccuracies and the Exact Match MIDR
Before the 2018 election cycle, Ebenezer devoted its voting
policy. Ebenezer's efforts in 2018 and thereafter to have voters
efforts to general get-out-the-vote activities, consistent with
check their registration status and vote by mail sufficiently
the church's focus on voter registration, education, and
differ from Ebenezer's prior voting activities to constitute a
mobilization. See PX. 2053, Tr. 46:6–13, 49:1–3 (Warnock
diversion of resources. Ebenezer had not previously engaged
Dep.).
in voter registration verification, and its typical get-out-the-
vote campaigns were not only different in nature but also
*34 But Ebenezer expanded its voting rights efforts in 2018
involved less work. Under Eleventh Circuit jurisprudence
to counteract the effects of Defendants’ challenged voting
concerning diversion of resources, the Court finds that even
practices, such as perceived issues with the voter roll and the
if the church had engaged in prior efforts relating to voter
Exact Match MIDR policy. PX. 2053 Tr. 47:7–49:5, 104:15–
turnout and education, the evidence showed enough of a
18 (Warnock Dep.). Reverend Warnock testified in deposition
difference in the work undertaken in 2018 and 2020 to
that this new work was “much harder” than prior voting rights
demonstrate a diversion of resources sufficient to establish an
efforts. See PX. 2053, Tr. 108:12–16 (Warnock Dep.). To
injury in fact.
address these voting issues in 2018, the church newly focused
resources—including volunteer, staff, and worship time—on
verifying voter registration. PX. 2053, Tr. 49:1–20, 107:11–
108:6, 185:8–24 (Warnock Dep.). Also, Ebenezer provided (3) Care in Action has suffered an
church space for new programs, such as a voter registration injury-in-fact caused by Defendants.
verification hotline, to assist voters grappling with issues
caused by Defendants’ challenged voting practices. PX. 2053, Care in Action is a nationwide nonprofit organization with
39 a focus in Georgia. Tr. 83:20–23 (Livoti). It aims to assist
Tr. 51:7–53:12, 70:25–72:1, 111:10–21 (Warnock Dep.).
domestic workers, and its mission includes helping such
Ebenezer also devoted financial resources, volunteer time,
workers exercise their right to vote. Tr. 83:7–12 (Livoti). Care
and worship time to educate voters regarding options to vote
in Action's prior voting efforts focused on increasing voter
early or by absentee ballot. PX. 2053, 49:12–50:8, 103:3–10,
turnout among domestic workers; voter protection was not
106:22–107:25, 183:12–185:14 (Warnock Dep.). Ebenezer
part of its mission before 2018. Tr. 91:2–93:23 (Livoti).
continued and expanded these efforts during the 2020 election
cycle by, among other things, devoting church space and time
In 2018, Care in Action planned for its voting-related work
during ministry meetings and prayer sessions for projects
in Georgia to end on Election Day. Tr. 94:6–10 (Livoti). But
to increase voter turnout and educate voters. See, e.g., PX.
because some voters were unable to cast their ballots, the
2053, Tr. 59:3–8 (Warnock Dep.); see also Tr. 2944:9–2946:8,
organization's voting work continued past Election Day to
2948:6–2949:5, 2952:1–2953:23 (Vaughn).
ensure provisional ballots were cured and counted. Tr. 94:19–

95:21 (Livoti). Care in Action directly engaged with voters, Action from sending staff to Mexico to work on immigration
diverting resources and volunteer time from typical activities issues. Tr. 97:13–24 (Livoti). More broadly, voter protection
such as immigration matters to undertake provisional ballot efforts divert Care in Action's resources from its core work of
training, door-to-door communications, phone banks, text organizing, advocating for, and providing on-the-job training
message campaigns, and social media efforts. Tr. 95:9–98:12 for domestic workers—all of which Care in Action contends
(Livoti). To facilitate these efforts, Care in Action paid for it would refocus on if the practices at issue were discontinued.
the housing, travel, and meal expenses of staff members Tr. 123:6–124:11 (Livoti).
who stayed in Georgia to assist with the unanticipated post-
election activities. See PX. 915; PX. 916; PX. 922; PX. 940; The Court finds that Care in Action has demonstrated by a
PX. 1006 (receipts and invoices for Care in Action's post- preponderance of the evidence that it has suffered a concrete
election expenditures, including transportation, housing, and injury-in-fact by diverting its organizational resources to
meals for staff). Similarly, Care in Action spent $107,500 counteract Defendants’ Exact Match MIDR and citizenship
on post-election digital advertisements to reach potentially policies.
affected voters who had cast provisional ballots. Tr. 96:4–12
(Livoti); PX. 902.
(4) Fair Fight has suffered an
*35 In 2020, Care in Action expanded its scope of voting
injury-in-fact caused by Defendants.
work and began voter outreach and education earlier than
in prior election cycles. Tr. 108:4–16, 146:10–21 (Livoti). Fair Fight is a nationwide nonprofit with its primary
Care in Action incurred additional costs to develop training activities in Georgia. Tr. 1383:22–1384:1 (Stewart-Reid). Its
programs for staff and canvassers, and it devoted more staff mission has long focused on voter education, voter turnout,
time to voting activities than it had in the past. See Tr. 108:7– and progressive issue research. Tr. 1395:18–20, 1396:5–7
16, 115:15–117:22 (Livoti). For example, Care in Action (Stewart-Reid); Tr. 3852:20–3853:5, 3857:20–3858:3 (Groh-
trained its canvassers to educate voters about the Exact Match Wargo). Fair Fight is particularly focused on supporting
MIDR and Citizenship policies because the organization marginalized communities, voters of color, young voters,
serves a population with a high number of immigrants and low-income voters. Tr. 1396:8–13 (Stewart-Reid). But it
and naturalized citizens who commonly have multiple or also commits resources to research on non-voting progressive
hyphenated last names and who thus are likely to encounter issues, such as Medicaid expansion and reproductive rights.
issues under these systems. Tr. 114:22–115:10, 131:10– Tr. 1414:6–15 (Stewart-Reid).
18, 149:10–16, 150:1–4, 158:4–6, 161:21–162:1, 179:1–11,
180:18–25 (Livoti). Also, Care in Action has trained its Because of what it observed in the 2018 election,
canvassers to educate voters about challenges they may face Fair Fight began expending resources to mitigate voter
due to voter roll inaccuracies, including being registered suppression to protect its core missions of educating
under the wrong name. Tr. 119:1–17; 130:5–15; 151:4–7; and mobilizing voters. Tr. 3858:4–3859:5, 3895:20–3896:3,
158:4–6; 175:6–16; 181:1–4 (Livoti); see also Tr. 89:11– 3930:25–3931:4 (Groh-Wargo). Thus, while Fair Fight was
12 (Livoti) (discussing voter address issues that domestic still addressing voting issues, it diverted resources away from
workers face as a transient population). Care in Action has core missions to address a new concern—perceived voter
also undertaken voter education, including through a new suppression. Tr. 1395:25–1398:4, 1459:3–24 (Stewart-Reid);
voter hotline, regarding issues with absentee ballots and Tr. 3858:4–17, 3930:25–3931:4 (Groh-Wargo). For example,
voter registration inaccuracies. Tr. 118:22–119:17, 141:17– the organization's work to counteract Defendants’ acts has
24, 151:1–7, 160:20–25 (Livoti). caused it to divert resources from other programs, such as
get-out-the-vote campaigns and support of other progressive
Care in Action could have reached out to more voters had causes. Tr. 1424:16–22, 1459:3–14 (Stewart-Reid) (testifying
it not diverted resources from its traditional get-out-the-vote that volunteers now have less time to conduct get-out-the-
work, where conversations with voters are less complex and vote calls or have more voter interactions because they are
time consuming. Tr. 115:17–23; 117:12–22 (Livoti). Further, spending time having longer conversations with voters about
these expanded voting efforts caused Care in Action to divert the challenged practices).
resources from other programs. Tr. 123:6–124:3 (Livoti). For
example, its provisional ballot work in 2018 prevented Care in

Also, to combat the challenged practices, Fair Fight has 1087:15 (Conrad) (discussing civics programming to educate
devoted substantial staff, volunteer, and financial resources young voters of color that would receive more resources if
to several new initiatives. Tr. 1399:9–18 (Stewart-Reid); they were not diverted to address voter registration issues and
Tr. 1066:6–8 (Conrad); Tr. 3870:21–3871:5 (Groh-Wargo). absentee ballot cancelation issues).
For example, Fair Fight devoted staff time and financial
resources to create the “Fair Fight U” program, which The Court finds that Fair Fight has demonstrated by a
trains college students about voter roll inaccuracies, absentee preponderance of the evidence that it has suffered a concrete
ballot cancelation, and other voting issues to prepare those injury-in-fact by diverting its organizational resources from
students to check their registration status and exercise its typical voter turnout and voter education activities to
their right to vote. Tr. 1399:20–1402:18 (Stewart-Reid); counteract Defendants’ challenged practices relating to Exact
Tr. 3870:11–17 (Groh-Wargo). After the 2018 election, Match MIDR and citizenship policies, management of the
Fair Fight diverted resources to create and run similar voter rolls, and absentee ballot cancelation training. To that
programs to address voter registration and absentee ballot tend, the Court credits and gives weight to the testimony
cancelation issues, which were more complicated than prior of Ms. Groh-Wargo, Ms. Stewart-Reid, and Ms. Conrad
voting projects and consumed more volunteer time. E.g., regarding issues relating to the organization's diversion of
Tr. 1402:14–1405:8 (Stewart-Reid) (discussing Democracy resources.
Warriors program); PX. 1858 (showing $33,711 budget for
Atlanta Democracy Warriors Summit); PX. 1859 (showing
$9,256 budget for Macon Democracy Warriors Summit); see
(5) Baconton has suffered an injury-
Tr. 1059:12–1084:20 (Conrad) (discussing Voter Protection
in-fact caused by Defendants.
Department that collects stories from voters, addresses
voter registration issues arising from citizenship verification, Baconton, a Georgia church affiliated with the general
ensures voters’ registration information is accurate, and Missionary Baptist Convention, maintains a deep
trains poll observers); Tr. 1408:12–1409:12 (Stewart-Reid) commitment to civil rights and social justice issues. Tr.
(discussing the new Organizing Department, which manages 2531:13–17, 2541:18–2542:14 (Scott). Voting issues have
volunteers who conduct voter outreach regarding voter been a core part of the church's organizational mission,
suppression issues). and it has long promoted voter education, registration, and
participation. Tr. 2549:1–2550:24 (Scott). Before 2018, the
*36 Beyond the new initiatives, Fair Fight's existing church's voting efforts focused on encouraging people to vote
communications and research departments have diverted because the church and its Senior Pastor, Reverend Doctor
resources to address new voting issues by drafting and Hermon Scott, “[took] for granted” that once voters were
releasing press statements and social media content, creating registered, they were on the rolls and would be able to vote.
a website to facilitate voter registration verification, and Tr. 2553:18–2554:4, 2560:13–22 (Scott). But during the 2018
monitoring media to track relevant issues. Tr. 1069:2–12 election cycle, the church changed its focus after hearing
(Conrad); Tr. 1411:14–1414:18 (Stewart-Reid); see also Tr. about issues with voter registration status. Tr. 2553:18–
1425:1–8 (Stewart-Reid) (discussing how the organization's 2557:17 (Scott). Pastor Scott was especially concerned about
research team has diverted resources to “media monitoring” voters being unable to vote due to issues with identification
concerning “issues with absentee ballots or Exact Match or cards not matching with voter registration information. Tr.
the list inaccuracies” instead of other research for progressive 2554:5–2556:5 (Scott).
issues such as reproductive health). The group has also
diverted resources from its standard voter education to As a result of the above concerns, Pastor Scott began
educate voters about proper absentee ballot cancelation. Tr. diverting time during weekly bible studies and sermons
1398:7–19 (Stewart-Reid). Thus, as shown above, Fair Fight's to discuss voting issues and the need to verify voting
programs and efforts to address new voting issues have registration information, which took time away from religious
diverted attention, staff, and financial resources from the and other topics usually discussed. See Tr. 2558:1–2561:2,
organization's other projects, including voter engagement and 2574:7–12 (Scott). The church also diverted resources to
education efforts that are central to the organization's mission. host countywide meetings to discuss the importance of
Tr. 1404:25–1405:3, 1409:16–18, 1414:12–18, 1426:6–15 voter registration, education, and participation, including a
(Stewart-Reid); Tr. 3861:19–24 (Groh-Wargo); Tr. 1086:10– new emphasis on checking voter registration. Tr. 2561:12–

2566:12 (Scott); see PX. 634 at 4 (2018 worship bulletin verification. Tr. 532:8–536:8 (Laney). The church then had
announcing prayer meeting at Baconton). The church to spend more time training volunteers. Tr. 536:23–537:1
provided space, volunteers, and staff and printed materials (Laney). Similarly, volunteers had to devote more time with
to help host the countywide meetings. Tr. 2563:17–2564:17 each voter to address potential issues due to voter roll
(Scott). Baconton also diverted volunteer time in 2018 for irregularities and Defendants’ policies. Tr. 535:13–537:11
events to help church members verify their voter registration, (Laney). Since 2018, the church has continued to divert
which differed from prior voter registration efforts. Tr. resources to counteract Defendants’ policies by increasing
2558:7–12, 2575:22–2578:17 (Scott). Pastor Scott continued volunteer numbers, devoting significantly more staff time
diverting his and the church's time to efforts regarding voter to the Voting Rights Ministry, and adding discussions of
registration verification in 2022, which the church states will Defendants’ policies during voter registration drives. See Tr.
continue to occur unless the alleged voting practices are 533:22–540:21, 569:11–572:13 (Laney).
ended. See Tr. 2579:6–2580:3, 2654:14–25 (Scott).
To undertake these new or enhanced voting-related activities,
Pastor Scott testified at trial that if the church's volunteers Virginia-Highland has had to divert resources from its other
and staff had not diverted resources toward verifying voter projects, such as the church's LGBTQIA ministry. Tr. 543:4–
registration, they would have been involved in other activities 544:15 (Laney). For example, one church volunteer resigned
in line with Baconton's mission, such as feeding the hungry, from leadership positions in other ministries so she could
assisting the poor, and visiting prisoners. Tr. 2573:2–17, devote that time to the voting rights work. Tr. 581:24–582:11
2578:3–12, 2587:2–5 (Scott). He also testified that if the (Laney). Virginia-Highland anticipates that if this Court does
challenged voting practices were ended, his church would not resolve the challenged practices in Plaintiffs’ favor, the
reduce time spent on voter registration verification to church will continue to divert resources in future elections,
discussing those issues only when the State is removing voters and away from other ministries, due to the challenged
from voting roles, rather than weekly. Tr. 2656:2–24 (Scott). practices. Tr. 547:20–548:3, 577:2–9 (Laney).
*37 The Court finds that Baconton has demonstrated by a The Court finds that Virginia-Highland has shown by a
preponderance of the evidence that it has suffered a concrete preponderance of the evidence that it has suffered a concrete
injury-in-fact by diverting its organizational resources from injury-in-fact by diverting its resources from other core
the church's core mission to counteract issues relating to Exact church programs to counteract Defendants’ Exact Match
Match MIDR policy and voter roll inaccuracies, by educating MIDR and citizenship policies, management of the voter
and assisting voters with respect to voter registration issues rolls, and training concerning absentee ballot cancelation
and verification. If the Court grants relief to Plaintiffs, procedures.
Baconton would be able to refocus its diverted resources on
its core activities.
b) Traceability and redressability
(6) Virginia-Highland has suffered an “To establish causation [for standing,] a plaintiff need only
injury-in-fact caused by Defendants. demonstrate, as a matter of fact, a fairly traceable connection
between the plaintiff's injury and the complained-of conduct
Virginia-Highland is an Atlanta church that is part of the
of the defendant.” Charles H. Wesley Educ. Found., Inc.
United Church of Christ. Tr. 527:11–528:23 (Laney). Its
v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (emphasis
mission focuses on combatting racism and representing
in original) (internal quotations omitted). An organizational
marginalized people. Tr. 530:4–12 (Laney). In 2018, the
plaintiff proceeding under a diversion-of-resources theory
church diverted resources to address issues with Exact
establishes traceability by showing that resources were
Match MIDR and citizenship status, voter roll accuracy,
diverted to counteract the defendant's allegedly illegal
and absentee ballot cancelation. Tr. 535:13–536:8, 540:4–
541:7 (Laney). For example, while the church has had practices. Browning, 522 F.3d at 1166. The traceability
a “Voting Rights Ministry” since 2008 that originally requirement is not stringent and can be satisfied even with
focused only on registering voters, the church expanded a showing that the alleged injury is indirectly caused by
the program's reach in 2018 to include voter registration

explicitly assigns responsibility for the voter verification

the defendant. See Cordoba v. DIRECTV, LLC, 942 F.3d
and matching processes to the Secretary. See O.C.G.A. §
1259, 1271 (11th Cir. 2019).
21-2-50(a)(14) (requiring the Secretary to “maintain the
official list of registered voters for this state and the list
*38 An injury is traceable to an election official responsible
of inactive voters required by this chapter”); O.C.G.A. §
for the election administration process or rule that allegedly
21-2-50.2(a) (stating that the Secretary is the state's chief
has caused the plaintiff's injury. Compare Ga. Ass'n of Latino
election official under HAVA and thus is “responsible for
Elected Offs., Inc., 36 F.4th at 1116 (finding traceability
coordinating the obligations of the state under” HAVA);
requirement met with allegations that state election official's
failure to provide bilingual voting materials and information O.C.G.A. § 21-2-216(g)(7) (stating the Secretary “shall
caused the organizational plaintiff's diversion of resources) establish procedures to match an applicant's voter registration
information to the information contained in the data base
with Jacobson, 974 F.3d at 1253 (finding no traceability
maintained by the Department of Driver Services for the
to election official who was not responsible for the allegedly
verification of the accuracy of the information provided
injurious policy). Establishing traceability is sufficient to
on the application for voter registration, including whether
establish causation, but only for purposes of standing. 41 See the applicant has provided satisfactory evidence of United
Ga. Ass'n of Latino Elected Offs., Inc., 36 F.4th at 1116. States citizenship”). Evidence adduced at trial showed that the
Secretary directs or is involved in many aspects of the relevant
An injury is redressable when “a decision in a plaintiff's processes. See, e.g., PX. 1900 (letter that is drafted by the
favor would significantly increase the likelihood that she Secretary and that is sent by counties to registrants in MIDR
would obtain relief.” Lewis v. Gov. of Ala., 944 F.3d 1287, status); PX. 2021 at 7, PX. 2022 at 5 (discussing Secretary's
1301 (11th Cir. 2019) (en banc) (cleaned up). That is true citizenship audit).
so long as the court's judgment may remedy the plaintiff's
*39 Moreover, HAVA does not mandate the precise
injury, “whether directly or indirectly.” Id. (quotation
requirements of Exact Match MIDR in a way that precludes
marks omitted); see also Ga. Ass'n of Latino Elected Offs.,
Exact Match from being traceable to or redressable by
Inc., 36 F.4th at 1116 (stating it must be “likely,” not merely
Defendants. For example, HAVA does not require comparison
“speculative,” that the alleged injury will be redressed by a
of a registration applicant's first name, last name, date of birth,
favorable decision). Thus, if a state election official lacks the
authority to redress the alleged injury, the court cannot enter a or citizenship information. 52 U.S.C. § 21083(a)(5). Nor
judgment that may remedy the plaintiff's injury, which means does it require identifying information to match exactly. Id.
Rather, HAVA requires states to compare voter registration
the plaintiff lacks standing. See, e.g., Jacobson, 974 F.3d
applicants’ driver's license numbers or the last four digits
at 1269 (finding the plaintiffs lacked standing because the
of their social security numbers against that information in
defendant election official did not control the complained-of
ballot-listing injury, which meant she could not redress the the applicants’ DDS or SSA files. 52 U.S.C. § 21083(a)
alleged injury). (5); Tr. 358:4–12 (Mayer). HAVA does not require that
such identifying information match exactly. 52 U.S.C.
After careful consideration of the evidence adduced at trial, § 21083(a)(5); see Tr. 214:6–10 (McCrary); Tr. 357:20–
the Court finds that Plaintiffs have standing to pursue their 358:8 (Mayer) (“Th[e] method is left up to the state.”);
remaining claims because those claims are traceable to and Tr. 508:15–510:3 (Mayer). Plaintiffs presented evidence of
redressable by Defendants. other, less stringent ways to verify names in voter registration
databases that would comply with HAVA. See Tr. 358:16–
359:7 (Mayer); PX. 1278 (Mayer Report) at 10. Thus, the
(1) Exact Match MIDR and Citizenship are Court finds that HAVA is not a bar to finding traceability and
traceable to and redressable by Defendants. redressability here.
The Court finds based on the evidence adduced at trial Similarly, HAVA is not a bar to finding traceability and
that Defendants are legally responsible for the Exact Match redressability with respect to the challenged citizenship
MIDR and citizenship policies, and that those policies verification process. Evidence in the record showed not only
are traceable to and redressable by Defendants. State law that HAVA itself does not require citizenship verification

but also that other states have adopted alternative means for’ the Secretary—i.e., maintaining accurate registration
of confirming citizenship for purposes of voting. PX. rolls under HAVA.” Doc. No. [612], 43. None of the
66 at 2 (citations omitted); see also Tr. 363:24–365:4 parties briefing that proceeded the Summary Judgment
(Mayer) (discussing states that rely on registrant's citizenship
Order addressed O.C.G.A. §§ 21-2-221, 226, 228, or
attestation without otherwise verifying citizenship status).
Also, the evidence at trial showed that the Secretary exercises 231, as support for their traceability arguments. Doc. Nos.
oversight of the citizenship verification process. E.g., PX. [441], [489], [553]. At trial, however, there was extensive
1231, PX. 1779 (citizenship verification letters drafted by the testimony and argument regarding these statutes and their
Secretary). relationship to the Secretary of State's list maintenance
responsibilities. See, e.g., Tr. 423:22–424:11, 2245:23–
Finally, state law tasks the SEB and its members with 2248:1, 3203:10–3209:21, 3350:19–3351:20, 3353:3–7,
promulgating rules and regulations to obtain uniformity in 3355:8–18, 3580:8–3584:15, 3709:25–3710:10, 3735:25–
county practices, O.C.G.A. § 21-2-31(1), and formulate, 3736:10, 3737:10–3739:21, 3757:14–3766:6, 3773:24–
adopt, and promulgate rules and regulations conducive to 3776:1, 3796:20–3799:15, 3800:20–3801:15, 3827:18–
the fair, legal, and orderly conduct of elections, O.C.G.A. 3831:10. In light of the evidence adduced at trial, the Court
§ 21-2-31(2). The SEB must investigate, or authorize now determines whether Plaintiffs’ list maintenance claim
the Secretary to investigate, the administration of election is fairly traceable to the Secretary of State. “If an action
laws. O.C.G.A. § 21-2-31(5); see also Tr. 1742:16–1743:13 proceeds to trial, the facts necessary to establish standing
(Harvey) &. 4032:7–18 (Sullivan) (discussing SEB in context ‘must be supported adequately by the evidence adduced at
of complaints concerning election administration). Other trial.” Jacobson, 974 F.3d at 1245 (quoting Lujan, 504
statutory duties obligate the SEB to undertake significant U.S. at 561, 112 S.Ct. 2130).
oversight responsibilities regarding the administration of
elections and election laws. See O.C.G.A. §§ 21-2-31(10),
*40 In Jacobson, the Eleventh Circuit held that
21-2-33.1(a). The SEB also has enforcement powers under the challenged practice was not fairly traceable to the
Georgia law. See O.C.G.A. § 21-2-33.1. And the SEB can Florida Secretary of State because “Florida law tasks
have the Secretary of State provide support and assistance to the Supervisors, independently of the Secretary” with
carry out the SEB's duties. O.C.G.A. § 21-2-33.1(h); see conducting the challenged practice. Jacobson, 974 F.3d
also Tr. 4017:18–21 (Sullivan), Tr. 4093:14–17 (Mashburn), at 1253. The Eleventh Circuit reasoned that even though
& Tr. 1852:1–19 (Harvey) (discussing the SEB's ability to the Florida Secretary of State has general supervision of the
instruct the Secretary of State to issue Official Election administration of election laws, where “Florida law expressly
Bulletins to provide instructions to the counties). Given this gives a different, independent official control over the order
significant oversight authority and based on the evidence in which candidates appear on the ballot,” the challenged
adduced at trial, the Court finds that Exact Match MIDR practice is not traceable to the Florida Secretary of State.
and citizenship policies are traceable to the Board and its Id. at 1254. Accordingly, the Court will review the relevant
members. statutory authority regarding list maintenance to determine
whether the challenged practices are traceable to the Secretary
For the above reasons, the Court finds that Defendants of State or to the counties.
are sufficiently responsible for the Exact Match MIDR and
citizenship policies such that those policies are traceable to Upon review of the relevant Code sections, the Court
and redressable by Defendants. construes the duties of the county registrars and the Secretary
of State as follows.
(2) Some list maintenance practices are

traceable to and redressable by Defendants. (a) List Maintenance statutory overview
At summary judgment, the Court ruled that Plaintiffs’ list State law explicitly assigns responsibility for maintenance
maintenance claims are fairly traceable to the Secretary of the official list of registered voters to the Secretary.
of State because “the law itself contemplate[s] [a] role See O.C.G.A. § 21-2-50(a)(14) (requiring the Secretary to

“maintain the official list of registered voters for this state

and the list of inactive voters required by this chapter”); *41 On or before the tenth day of every month, the
O.C.G.A. § 21-2-50.2(a) (indicating that the Secretary of Secretary of State receives “a complete list of all persons,
State shall be responsible for coordinating the obligations of including addresses, ages, and other identifying information
as prescribed by the Secretary of State, who died during
the state under HAVA); see also 52 U.S.C. § 21083(a)
(1), (4) (setting forth each state's duties under HAVA; the preceding calendar month in the county.” O.C.G.A.
stating that each state “shall implement ... a single, uniform, § 21-2-231(d). The Secretary of State then has the duty
official, centralized, interactive computerized statewide voter to remove said persons from the list of electors and
registration list defined, maintained, and administered at the
notify the county registrar about the elector's death. Id.
State level that contains the name and registration information
§ 21-2-231(e). The County registrar also has a duty to
of every legally registered voter in the State”; and stating that
remove individuals from the list of electors, if the county
“[t]he State election system shall include provisions to ensure
registrar obtains information about the individual's death from
that voter registration records in the State are accurate and
obituaries, death certificates, or other verifiable knowledge of
updated regularly ....”). Indeed, Chris Harvey testified that the
Secretary is the state official in charge of ensuring “that the the death. Id. § 21-2-231(e.1).
HAVA requirements [are] met.” Tr. 3485:6–11 (Harvey).
If the county registrar fails to “initiate appropriate action
When an individual attempts to register to vote, the county regarding the right of an elector to remain on the list of
registrar has a duty to determine whether the individual is qualified registered voters” after receiving the felon list or
eligible to vote. O.C.G.A. § 21-2-226(a). Once an individual information about an elector's death, “such action may subject
is deemed an eligible elector, the county registrar has the the registrars ... to a fine by the State Election Board.”
duty of placing the elector in the proper districts. Id. at O.C.G.A. § 21-2-231(f).
226(b). The counties then have the duty to “from time to time
[examine] the qualifications of each elector of the county or At trial, Mr. Harvey testified that the process by which the
municipality whose name is entered upon the list of electors.” Secretary of State maintains the list of voters, with respect
O.C.G.A. § 21-2-228(a). If after notice and an opportunity for to deceased and felon electors, is by programming eNet with
a hearing, “the registrars find that the elector is not qualified certain criteria; eNet then flags the electors whose information
to remain on the list of electors, the registrars shall remove matches the criteria. Tr. 3716:15–3717:9; 3720:13–20.
the name of such elector from the list of electors.” O.C.G.A.
§ 21-2-228(e).
In addition to the counties’ general duty to examine the (b) Traceability for the specific challenged practices
qualifications, on or before the tenth day of every month, the
Secretary of State receives “a complete list of all persons, i) vitals matching
including dates of birth, Social Security numbers, and other
information as prescribed by the Secretary of State or The With respect to vital records, the Secretary of State receives
Council of Superior Court Clerks of Georgia, who were information from certain government agencies containing the
convicted of a felony in this state since the proceeding list of deceased individuals (Tr. 3715:20–3716:7), then the
Secretary of State programs eNet to apply certain matching
reporting period.” O.C.G.A. § 21-2-231(a). Upon receipt
criteria to the list of deceased persons against the electors
of that list and the list of individuals convicted of felonies in
on the voter registration database (Tr. 3717:1–3), then eNet
federal court, “the Secretary of State shall transmit the names
automatically cancels electors whose information matches
of such person whose names appear on the lists of electors
that of a deceased person (Tr. 3717:4–13). eNet will cancel an
to the appropriate county board of registrars.” O.C.G.A. § elector only if there is a “tight match,” which was defined as
21-2-231(c)(2). The county registrar then “shall mail a notice match in last name, Social Security number and date of birth.
to the last known address of each such person” stating that Tr. 3719:7–18.
the person was listed as having a felony and will be removed
from the list of electors thirty days after the notice, unless the Mr. Hallman testified that once the Secretary of State cancels
individual requests a hearing. Id. an elector, it sends the counties “loose matches.” Tr. 886:8–

15. Loose matches include: (1) last name and date of birth, then runs the list through eNet to identify voters whose
and (2) last name and SSN. PX. 800 at 13. information matches certain criteria that the Secretary of
State has developed for matching purposes. Tr. 862:15–18
Under both the statutory language and the testimony (Hallman); Tr. 3567:13–17, 3720:5–9 (Harvey); Tr. 1329:12–
developed at trial, the Secretary of State is responsible for 20 (Frechette). Specifically, eNet runs six different sets of
matching the lists of deceased individuals against the voter criteria for felon matching: (1) Last name, first name, last four
roll. The Secretary of State is then responsible for canceling digits of Social Security number, and date of birth for voters
the voters that match. The Secretary of State then sends in active, inactive, pending, or reject status; (2) last name,
the name of electors that loosely match the list of deceased first name, last four digits of Social Security number, and date
electors. The counties then cancel voters who are loosely of birth for voters in canceled status; (3) last name, last four
matched or if they obtain certain types of proof that the voter digits of Social Security number, and date of birth; (4) first
is deceased. name, last four digits of Social Security number, and date of
birth; (5) last name, first name, and date of birth; and (6) last
name, date of birth, race, 42 and gender. PX. 800 at 21. These
ii) felon matching matching criteria are listed in descending order from “tight”
matches to “loose” matches. See Tr. 871:8–18, 872:12–18
With respect to felon matching, the Court first reviews the (Hallman).
governing statute and then discusses how the Secretary of
State and counties undertake the process of attempting to Although the governing statute provides that “the Secretary
identify felons and remove them from voter rolls. of State shall transmit the names of [felons] whose names
appear on the lists of electors to the appropriate county board
Under Georgia law, the Secretary of State receives a monthly
of registrars,” O.C.G.A. § 21-2-231(c)(2), the process
list from the Georgia Crime Information Center “of all
persons, including dates of birth, social security numbers, unfolds more circuitously in practice. 43 Namely, once the
and other information as prescribed by the Secretary of Secretary of State has run the above criteria and developed
State ... who were convicted of a felony in this state since lists of potential matches between the felon lists and existing
voter registration records, the Secretary of State transmits the
the preceding reporting period.” O.C.G.A. § 21-2-231(a). list of potential matches to the counties by displaying them on
Pursuant to 52 U.S.C. § 20507(g), the Secretary of State the county dashboard for review by the county. Tr. 1329:21–
also receives “lists of persons convicted of felonies in federal 1330:1 (Frechette).
courts.” See O.C.G.A. § 21-2-231(c)(2). Upon receiving

At that point in the process, the governing statute provides
these lists of felons,
that once the county receives from the Secretary of State the
the Secretary of State shall transmit the names of such names of felons who appear on the county's voter rolls, the
persons whose names appear on the lists of electors to county “shall mail a notice to the last known address of each
the appropriate county board of registrars who shall mail such person by first-class mail” informing such persons that
a notice to the last known address of each such person they have been identified as a felon and will removed from the
by first-class mail, stating that the board of registrars voter rolls absent further action from the person. O.C.G.A.
has received information that such person has been § 21-2-231(c)(2). But the evidence at trial showed that under
convicted of a felony and will be removed from the the system in place, the counties do more than simply mail
list of electors thirty days after the date of the notice notices to those identified by the Secretary of State. Rather,
unless such person requests a hearing before the board each county must establish its own county-wide policy to
of registrars on such removal. apply to each potential match provided by the Secretary of
State to determine whether it is a true match. Tr. 3570:5–10
*42 Id. (emphasis added).
(Harvey); Tr. 1351:16–1352:11 (Frechette). In other words,
In practice, the Secretary of State receives from the under current practices intended to comport with O.C.G.A.
DOC and the DCS a list containing names of recently § 21-2-231, regardless of the criteria used for identifying
convicted felons. Tr. 3719:23–3720:1. The Secretary of State potential matches, the counties are the ones who ultimately

decide whether individuals in their voter rolls are in fact

2079, 150 L.Ed.2d 188 (2001)); see also Lexecon Inc. v.
felons. See Tr. 873:3–5 (Hallman). And if the county decides
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 27,
that someone identified as a potential match is indeed a felon,
118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (“[T]he mandatory
then the county must transmit to that individual the notice
‘shall,’ ... normally creates an obligation impervious to
letter and follow the remaining, related procedures provided
under the governing statute to remove the person identified as judicial discretion.”); U.S. v. Peters, 783 F.3d 1361, 1364
(11th Cir. 2015) (“Using the verb ‘shall in a statute is a
a felon from the voter rolls. See O.C.G.A. § 21-2-231(c)
command. ‘Shall’ creates an obligation not subject to judicial
(2).
discretion.”) (internal citations omitted).
*43 As to traceability, Defendants argue that the counties

—not the Secretary of State—are responsible for erroneous *44 Having considered the express terms of O.C.G.A.
felon cancelations. Specifically, Defendants contend that § 21-2-231(c)(2) and the procedure for felon matching as
“[t]he state is not making anyone take someone off the roll.” outlined at trial, the Court finds that the injury is sufficiently
Tr. 4437:1–3. Mr. Harvey testified that once eNet processes traceable to the Secretary of State for purposes of standing.
the list, the Secretary of State then sends the list of matches to To start, the Secretary of State has developed a system in
the counties, and the counties decide which electors need to which it generates lists of potential felon matches that it
be removed as felons. Tr. 3720:21–3721:6. And, a potential sends to the counties. Thus, the Secretary of State starts
match does “not necessarily [mean] cancellation ... the county the felon identification process by identifying “potential”
should look at and see if there is information that the person matches and sending those to the counties. At that point, the
should be canceled.” Tr. 3725:1–4. Once the county gets counties, relying on the potential matches that the Secretary of
the potential matches, the county determines whether the State sent them, undertake the process of identifying correct
individual should be removed as a felon; thus, in practice, the matches. And, per O.C.G.A. § 21-2-231(c)(2), the counties
Secretary of State does not make that final determination. Tr. “shall” then start the process of removing voters identified
3567:7–3568:1. as felons. Because counties are required by statute to send
notice letters and either conduct a hearing or remove the
For purposes of standing, the Court disagrees that the burdens elector thirty-days after the notice is mailed, the Court finds
caused by the felon matching process are not traceable to that under the plain language of the statute, the counties
the Secretary of State because the counties ultimately decide have no discretion over whether to send the notice, and
who is a felon. 44 As Defense Counsel argued, “how does must either hold a hearing or cancel a voter. While the
this list accuracy work in terms of felon matching? It's, again, Court acknowledges that in practice the counties do not
controlled by the statute.” Tr. 4435:23–25. And as discussed automatically send the notice letter to the impacted voter,
above, the governing statute provides that the Secretary of see infra, the Court finds that for purposes of traceability,
State sends the list of felons to the counties, which in practice the Georgia statute does not give the counties discretion over
is sent in the form of “matches.” Then, per the governing
whether to send a notice letter. See Jacobson, 974 F.3d
statute, the counties must send a notice to the impacted voters
at 1254 (requiring courts to look to the specific language of
informing them that they have been deemed a felon. But in
the statute to determine whether an action is traceable to the
practice, before that step occurs, counties use the information
secretary of state).
that they receive from the Secretary of State to determine
whether matched individuals are indeed felons.
Accordingly, certain burdens created by the felon matching
When outlining the duties for the counties and the Secretary process are traceable to the Secretary of State. 46 Moreover,
for the reasons discussed supra with respect to the SEB's
of State, O.C.G.A. § 21-2-231 uses the word “shall.” The oversight responsibilities in ensuring fair elections and
Court acknowledges that there is debate as to the meaning promulgating rules and regulations in accordance with that
of the word “shall” 45 ; however, in this Circuit “[t]he word responsibility, the Court finds that this matter is also traceable
to the SEB.
‘shall’ is ordinarily the language of a command.” In re
Tennyson, 611 F.3d 873, 878 (11th Cir. 2010)) (quoting
Alabama v. Bozeman, 533 U.S. 146, 153, 121 S.Ct.

the word “shall” requires the counties to (1) evaluate whether

the voters on the list of electors are qualified to vote and (2)
iii) duplicate matching
remove any elector who is not qualified to vote. See O.C.G.A.
The Court finds that the duplicate matching process is § 21-2-228(a). Under the current statutory framework, the
not traceable to the Secretary of State. “[T]here must be Georgia legislature has expressly delegated the authority to
a causal connection between the injury and the conduct determine the qualifications of electors and remove electors
complained of—the injury has to be ‘fairly ... trace[able] to the counties, with the exception of felons and vitals,
to the challenged action of the defendant, and not ... th[e] where the Georgia legislature reserved certain duties for the
result [of] the independent action of some third party not Secretary of State. See infra. Although, the Secretary of
State has general authority to maintain the list, “[Georgia]
before the court.’ ” Lujan, 504 U.S. at 560, 112 S.Ct.
law expressly gives a different, independent official [general]
2130; see also Jacobson, 974 F.3d at 1253–54 (holding control” over determining which electors are qualified to
that the challenged practices were not traceable to the Florida vote and removing electors that are not qualified to vote.
Secretary of State because state law assigned authority over
Jacobson, 974 F.3d at 1254. 47 As a result, the challenge
the challenged practice to the counties). With respect to
to duplicate matching is not traceable to the Secretary of State
duplicate matching, the Court finds that the causal link
because the counties have deliberative autonomous decision-
between Defendants and the voters was broken by the
making authority, not the Secretary of State.
counties’ actions.
By comparison, with respect to vital matches, the counties
Unlike felon and vital record matches, the Georgia Code does
are empowered to remove a voter from the voter rolls only
not outline the procedure by which the duplicate matches
if the county has physical proof that the voter is deceased,
are evaluated. O.C.G.A. § 21-2-228(a) requires the county
and with felons the statute requires the counties to send a
registrars to “from time to time” examine “the qualification
notice to all voters who are on the Secretary of State's list and
of each elector of the county or municipality whose name
either hold a hearing or remove all electors who are on the list.
is entered upon the list of electors.” The statute does not
The Georgia legislature abrogated the counties’ deliberative
expressly dictate the method that the counties must take to re-
autonomous decision-making authority with respect to the
examine an elector's qualifications.
cancelation process for electors who appear on the Secretary
of State's vitals and felons list. Accordingly, the Court finds
*45 At trial, Mr. Hallman testified that “[w]hen a voter
that there is not sufficient causation to tie a burden caused
registration application comes in through either [DDS or
by duplicate matching to Defendants. Accordingly, Plaintiffs’
OLVR], [e]Net is programmed by the Secretary of State to
First and Fourteenth Amendment claim with respect to the
run automatically a search of existing voter records that are
duplicate matching process fails as a matter of law. 48
already in [e]Net.” Tr. 762:15–19. As with vital records and
felon matching, the Secretary of State establishes the criteria
For the above reasons, the Court finds that Plaintiffs’ List
for what is determined to be a duplicate match. Tr. 761:2–
Maintenance Claim with respect to felon matching and vitals
4. The following is the criteria used to determine a duplicate
matching are traceable to Defendants. However, Plaintiffs’
match: (1) driver's license number; (2) last name, first name,
List Maintenance Claim with respect to Duplicate Matching
date of birth and Social Security number; and (3) last name,
is not traceable to Defendants.
first name, and date of birth. PX. 50, 39. Mr. Hallman testified
that once eNet determines that there is a possible duplicate
match, the counties would see a list of potential matches based
upon the different matching criteria and then would determine c) Inadequate training on absentee ballot cancelation
whether the voters are in fact a match or two different people. is traceable to and redressable by Defendants.
Tr. 765:13–766:1, 766:9–16.
As to training related to provisional and absentee ballots, state
Unlike with vital and felon matching, the statutes state that law requires that the Secretary “conduct training sessions at
when a county deems that an elector does meet the registration such places as the Secretary of State deems appropriate in
requirements, the county “shall remove the name of such each year, for the training of registrars and superintendents
elector.” O.C.G.A. § 21-2-228(e). As stated above, the use of of elections.” O.C.G.A. § 21-2-50(a)(11). The Secretary must

train and select trainings for county election superintendents,

standards. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7
registrars, and other county election officials. See O.C.G.A.
L.Ed.2d 663 (1962), the Supreme Court “set out the six indicia
§§ 21-2-100(a), 101(a). Former Elections Division Director
Chris Harvey testified that this training structure is a “train of a political question.” McMahon v. Presidential Airways,
the trainer” scenario because the individuals the Secretary Inc., 502 F.3d 1331, 1357 (11th Cir. 2007). Under Baker, any
must train then go on to train other county elections officials one of the following indicia removes an issue beyond the
and personnel. See Tr. 1871:8–22 (Harvey). Mr. Harvey also scope of justiciability:
conceded that if the higher-level county elections officials are
not well trained regarding absentee ballot procedures, then
they will not be able to adequately train their personnel on (1) a textually demonstrable
those matters. See Tr. 1873:19–25 (Harvey). That inadequate constitutional commitment of the issue
training can in turn implicate uniformity and other concerns to a coordinate political department;
in the Secretary's and the Board's province. See Tr. 1830:12– (2) a lack of judicially discoverable
20, 1835:21–23, 1838:17–24, 1865:7–10 (Harvey); O.C.G.A. and manageable standards for
§ 21-2-31. resolving it; (3) the impossibility
of deciding without an initial
*46 Given the above-cited authorities and trial evidence, the policy determination of a kind
Court finds that Plaintiffs have standing to pursue their claims clearly for nonjudicial discretion;
regarding the training of superintendents and registrars given (4) the impossibility of a court's
the Secretary's and Board's direct statutory responsibilities. undertaking independent resolution
O.C.G.A. §§ 21-2-31, 21-2-50(a)(11). Further, the facts without expressing lack of the
adduced at trial showed that failures by lower-level county respect due coordinate branches of
officials and poll workers are attributable to inadequate government; (5) an unusual need
training of their supervisors. In other words, the evidence for unquestioning adherence to a
at trial showed that claims related to the training of lower- political decision already made; or
level county officials and poll workers are directly traceable to (6) the potentiality of embarrassment
and redressable by Defendants because Defendants’ training from multifarious pronouncements by
of superintendents and registrars directly led to the issues various departments on one question.
complained of. Thus, Plaintiffs have standing for the absentee
ballot training claims.
Aktepe v. United States, 105 F.3d 1400, 1402–03 (11th Cir.

1997) (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691).
2. Political Question Doctrine
Satisfied that Plaintiffs have standing to bring this action, the As the Supreme Court explained in Rucho v. Common Cause,
Court now turns to the Political Question Doctrine. ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019):
Chief Justice Marshall famously wrote that it is “the

As stated above, Defendants have raised the doctrine of
province and duty of the judicial department to say what
political question as an affirmative defense to Plaintiffs’
the law is.” Sometimes, however, the law is that the judicial
claims. Doc. No. [753-2], 3. More specifically, Defendants
department has no business entertaining the claim of
state: “Plaintiffs’ federal claims against Defendants are barred
unlawfulness—because the question is entrusted to one of
as they raise political questions that should not be addressed
the political branches or involves no judicially enforceable
by the Court.” Id. Additional political question arguments
rights. In such a case the claim is said to present a “political
were raised in Defendants’ Rule 52(c) presentation.
question” and to be nonjusticiable—outside the courts’
competence and therefore beyond the courts’ jurisdiction.
Federal courts will generally refuse to hear a case if they find
Among the political question cases the Court has identified
it presents a “political question.” In this context, a political
are those that lack judicially discoverable and manageable
question is generally one that either is best left to the political
standards for resolving [them].
branches of government or that lacks judicially manageable

meaningful relief, then the case becomes moot and must be

Id. at 2494 (internal quotations and citations omitted). The dismissed.” De La Teja, 321 F.3d at 1362.
political question doctrine acts as a jurisdictional bar. See
McMahon, 502 F.3d at 1365. One “event” that may moot a claim is when the governmental
defendant ceases the behavior on which a claim is based,
After review, the Court agrees with Defendants’ general through the repeal or amendment of a challenged statute, rule,
premise that it is not the place of federal courts to decide or policy. Coral Springs St. Sys., Inc. v. City of Sunrise,
complex and subtle questions of election administration. 371 F.3d 1320, 1328–29 (11th Cir. 2004). The Supreme Court
However, federal courts are equipped and empowered to and the Eleventh Circuit “have repeatedly indicated that ‘the
address claims that individuals’ voting rights are being repeal of a challenged statute is one of those events that makes
burdened. At bottom, the case sub judice is about individual it absolutely clear that the allegedly wrongful behavior ...
voting rights and whether Georgia's election laws and policies
unduly burden individuals’ right to vote. Clearly, there could not reasonably be expected to recur.’ ” Flanigan's
are judicially manageable standards for evaluating such Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248,
1256 (11th Cir. 2017) (citations omitted). It also appears
complaints—the Anderson- Burdick framework exists that the Eleventh Circuit has established an exception to
for precisely this purpose. See Jacobson, 974 F.3d at 1262 the general rule that the burden of proving mootness falls
(“If the statute burdened voting or associational rights even on the party asserting it. Id. “As a result, ‘once the repeal
slightly, we could apply legal standards to determine whether of an ordinance has caused [the Court's] jurisdiction to be
questioned, [the plaintiff] bears the burden of presenting
the burden was unconstitutional. Under Anderson and
affirmative evidence that its challenge is no longer moot.’ ”
Burdick, we would weigh the burden imposed by the law
Id. “ ‘The key inquiry’ is whether the plaintiff has shown
against the state interests justifying that burden.”).
a ‘reasonable expectation’—or ... a ‘substantial likelihood’—
that the government defendant ‘will reverse course and
*47 Without more, Defendants have not carried their burden
of establishing a jurisdictional bar based on a political reenact’ the repealed rule.” Keohane v. Fla. Dep't of
doctrine affirmative defense. Corr. Sec'y, 952 F.3d 1257, 1268 (11th Cir. 2020) (citations
omitted).
Three broad factors guide courts conducting this inquiry: (1)

3. Mootness
whether the government's change in conduct resulted from
As indicated above, “[u]nder Article III of the Constitution, substantial deliberation or is merely an attempt to manipulate
federal courts may adjudicate only actual, ongoing cases or jurisdiction; (2) whether the government's decision to
terminate the challenged conduct was unambiguous; and
controversies.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, (3) whether the government has consistently maintained
477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). 49 “[T]he its commitment to the new policy or legislative scheme.
doctrine of mootness derives directly from the case-or-
Flanigan's Enters., Inc. of Ga., 868 F.3d at 1257. The
controversy limitation because an action that is moot cannot
Eleventh Circuit has also stated:
be characterized as an active case or controversy.” De
La Teja v. United States, 321 F.3d 1357, 1361–62 (11th Cir.
2003) (citations omitted). “Simply stated, a case is moot *48 When considering a full
when the issues presented are no longer ‘live’ or the parties legislative repeal of a challenged
lack a legally cognizable interest in the outcome.” Powell law—or an amendment to remove
v. McCormack, 395 U.S. 486, 496–97, 89 S.Ct. 1944, 23 portions thereof—these factors should
L.Ed.2d 491 (1969) (citation omitted). More specifically, “[i]f not be viewed as exclusive nor
events that occur subsequent to the filing of a lawsuit ... should any single factor be viewed
deprive the court of the ability to afford the plaintiff ... as dispositive. Rather, the entirety of
the relevant circumstances should be
considered and a mootness finding

should follow when the totality of the “legitimacy and strength of each of [the state] interests”
those circumstances persuades the and “the extent to which those interests make it necessary to
court that there is no reasonable
burden the plaintiff's rights.” Id. “Only after weighing all
expectation that the government entity
these factors is the reviewing court in a position to decide
will reenact the challenged legislation.
whether the challenged provision is unconstitutional.” Id.;
see also Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct.
Id. 2059, 119 L.Ed.2d 245 (1992).
In their Statement of the Case for purposes of the Pretrial *49 “Ordinary and widespread burdens, such as those
Order, Defendants argued that this Court “lacks jurisdiction requiring nominal effort of everyone, are not severe.”
over Plaintiffs’ claim as to training of county election officials Crawford v. Marion Cty. Election Bd., 553 U.S. 181,
on absentee ballot cancellation procedures because this claim 205, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Scalia,
is moot.” Doc. No. [753-2], 2. As discussed infra, the Court is J., concurring) (quotation omitted). However, burdens
unable to conclude that the absentee ballot issue is moot. 50 “are severe if they go beyond the merely inconvenient.”
Id. If a State's election law imposes only “reasonable,
nondiscriminatory restrictions” upon the First and Fourteenth
B. Count I: Fundamental Right to Vote Claim 51 Amendment rights of voters, “the State's important regulatory
interests are generally sufficient to justify” the restrictions.
1. Legal Standard Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (citing
Anderson, 460 U.S. at 788, 103 S.Ct. 1564). But if a State's
Count I of Plaintiffs’ Second Amended Complaint brings
election law imposes a “severe” burden, it must be “narrowly
voting rights claims under the First and Fourteenth
drawn to advance a state interest of compelling importance.”
Amendments. Doc. No. [582], p. 69. Count I claims
Defendants’ 52 following conduct imposed the following Id. (citing Norman v. Reed, 502 U.S. 279, 289, 112
severe burdens: (a) failing to train adequately county elections S.Ct. 698, 116 L.Ed.2d 711 (1992)). “The more a challenged
officials on laws governing elections; (b) failing to maintain law burdens the right to vote, the stricter the scrutiny to
an accurate and secure voter registration list; and (c) removing which we subject that law.” Democratic Exec. Comm.
and preventing voter registrations under the “Exact Match”
of Fla. v. Lee, 915 F.3d 1312, 1319 (11th Cir. 2019). 53 In
policy. Id. at 70, ¶ 155. Plaintiffs argue that, due to
other words, “lesser burdens ... trigger less exacting review.”
Defendants’ misconduct, “voters in Georgia have suffered
and will continue to suffer irreparable harm—including Timmons v. Twin Cities Area New Party, 520 U.S. 351,
disenfranchisement and severe burdens on the right to vote in 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). Notably, “[t]o
any and all elections and disenfranchisement.” Id. at 72, ¶ 157. establish an undue burden on the right to vote under the
Anderson- Burdick test, Plaintiffs need not demonstrate
“The Supreme Court has rejected a litmus-paper test for
constitutional challenges to specific provisions of a State's discriminatory intent behind the” challenged practice. Lee,
election laws and instead has applied a flexible standard.” 915 F.3d at 1319.
Common Cause/Ga., 554 F.3d at 1352 (internal quotation During closing argument, Defense counsel argued that the
marks omitted). Thus, a reviewing court must first “consider
the character and magnitude of the asserted injury to the rights “burdens” under Anderson- Burdick are limited to
protected by the First and Fourteenth Amendments that the “the impact on the voter[’]s rights to vote[,] [n]ot the
voter individually.” Tr. 4530:19–21. The Court finds that
plaintiff seeks to vindicate.” Anderson v. Celebrezze, 460 this bright-line rule is not supported by precedent. In
U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The
Court must then “identify and evaluate the precise interests Anderson, the Supreme Court found that the early filing
put forward by the State as justifications for the burden deadline for small political parties or independent candidates
burdens the rights of voters and candidates to vote for the
imposed by its rule.” Id. The Court must consider both

Plaintiff has not met its burden in providing the Court with an
candidate of their choice. Anderson, 460 U.S. at 792–
available remedy.
94, 103 S.Ct. 1564. There, the Court looked at the burden
on the individual voter's right to vote for their preferred
candidate, not the voter's ability to cast a vote. In Burdick,
b) Causation
the Supreme Court held that Hawaii's ballot access law did
not “interfere with the right of the voters to associate and have *50 Plaintiffs have failed to show that the Secretary of
candidates of their choice placed on the ballot.” Burdick, State's training on absentee ballot cancelations burdened
504 U.S. at 435, 112 S.Ct. 2059. Again, the Court looked voters. “[S]ection 1983 requires proof of an affirmative causal
at the burden on an individual voter to vote for a particular connection between the official's acts or omissions and the
candidate, not the right to vote generally. In Crawford, alleged constitutional deprivation.” Zatler v. Wainwright,
the Supreme Court noted, “in neither Norman nor Burdick 802 F.2d 397, 401 (11th Cir. 1986).
did we identify any litmus test for measuring the severity
of a burden that a state law imposes on a political party, an Plaintiffs argued that in § 1983 voting rights cases, courts
individual voter, or a discrete class of voters.” Crawford, do not have to conduct a separate causation analysis after
553 U.S. at 191, 128 S.Ct. 1610 (emphasis added). There, the establishing traceability. Doc. No. [888], ¶¶ 37–41. Plaintiffs
Court evaluated an individual voter's hardship in obtaining cite Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1998)
a photo ID and the impact of that burden on the voter's to establish that a lesser level of causation is required
when seeking injunctive relief against a state official in
ability to cast a vote. Id. at 197–98, 128 S.Ct. 1610.
their official capacity.” Id. ¶ 39. However, Luckey does not
Accordingly, the Court finds that the Anderson-Burdick stand for that proposition. The portion of Luckey cited is
analysis requires the Court first to evaluate the burden of the analyzing Ex Parte Young, not causation. “Personal action
challenged practice on the voter individually, and second, to by defendants individually is not a necessary condition of
evaluate the impact of that burden on the individual voter's injunctive relief against state officers in their official capacity.
right to vote. All that is required is that the official be responsible for the
challenged action. As the Young court held, it is sufficient
Using this framework, the Court addresses each alleged that the state officer sued must, ‘by virtue of his office,
violation of the right to vote in turn. ha[ve] some connection’ with the unconstitutional act or
conduct complained of.” Luckey, 860 F.2d at 1015–16.
This section of Luckey does not mention the level of causation
2. Issue: Absentee Ballot Cancelation Procedures necessary to prove a constitutional challenge.
The Eleventh Circuit has expressly held the opposite. In

a) Challenged practice: lack of training
on absentee ballot cancelations Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.
Plaintiffs have not met their burden in establishing an 1982), the Eleventh Circuit confirmed that “ Section 1983
imposes additional proof requirements when that statute is
Anderson- Burdick violation for Defendants’ training used as the vehicle to vindicate substantive constitutional
in absentee ballot cancelations. The evidence adduced at rights.” And the statute's “language plainly requires proof
trial does not support that Defendants’ training of county of an affirmative causal connection between the actions
election superintendents violated the First and Fourteenth taken by a particular person “under color of state law” and
Amendments. Plaintiffs have not sufficiently shown that the the constitutional deprivation.” Id. at 1381. Williams cites
incorrect information caused a burden on voters. Additionally,
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d
Anderson-Burdick does not apply when the challenged
practices are mistakes in election administration. Finally, even 561 (1976) and Sims v. Adams, 537 F.2d 829, 831 (5th Cir.
if Anderson-Burdick were to apply, the Court finds that 1976) to support this understanding. Id. “From Rizzo
and Sims it is clear that the inquiry into causation must be

a directed one, focusing on the duties and responsibilities of the county election supervisors for Fulton, DeKalb, and
each of the individual defendants whose acts or omissions are Muscogee—where Deborah Allen, Aaron Karp, and Margaret
Whatley voted, respectively—were certified before the 2020
alleged to have resulted in a constitutional deprivation.” Id.
elections and had no reason to see the erroneous materials. Tr.
The Supreme Court and Eleventh Circuit have found that
3535:17–3537:11.
Section 1983 causation is required in other constitutional
claims. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l With the exception of Cobb County, the State demonstrated
Plan. Agency, 535 U.S. 302, 344–45, 122 S.Ct. 1465, 152 that none of the county election superintendents in the
L.Ed.2d 517 (2002) (Rehnquist, C.J., dissenting) (“We have counties where an incident with absentee ballot training
occurred would have seen the erroneous certification
never addressed the § 1983 causation requirement in the materials before the 2020 election. Tr. 3535:17–3537:11.
context of a regulatory takings claim, though language in Although the Cobb County election supervisor was trained
Penn Central Transp. Co. v. New York City, 438 U.S. 104, on the outdated election certification materials, there was
98 S. Ct. 2646, 57 L.Ed.2d 631 (1978), suggests that ordinary no testimony regarding the effect that those certification
principles of proximate cause govern the causation inquiry materials had on training poll workers on absentee ballot
cancelation. Plaintiffs did not introduce testimony from
for takings claims.”); Thomas v. Bryant, 614 F.3d 1288,
anyone who worked on the 2020 election in Cobb County
1317 n.29 (11th Cir. 2010) (“Additionally, to prevail on an
regarding the training that was given on absentee ballot
Eighth Amendment claim brought pursuant to § 1983, a cancelations. Accordingly, there is not sufficient evidence
plaintiff inmate must also show a causal connection between to state that any difficulty that a voter faced in canceling
the constitutional violation and his injuries.”); Manzini v. their absentee ballot was proximately caused by the incorrect
The Fla. Bar, 511 F. App'x 978, 982 (11th Cir. 2013) (“The certification materials. In other words, there was no
decision of that state court judge breaks the chain of causation connection between the materials and an actual voter issue.
between [defendant's] actions and any alleged constitutional
violations.”). Second, there was no testimony at trial that any poll worker
actually received improper training in 2020 due to the content
*51 Although the Eleventh Circuit has not definitively held of the certification materials. Plaintiffs presented evidence
in the voting rights context that a plaintiff must establish that Defendants’ poll workers’ manual was not immediately
updated after the passage of HB 316. Tr. 2131:9–28. While
Section 1983 causation in addition to traceability, no case
this Court acknowledges that the Secretary of State's 2020
law states that the Section 1983 causal analysis does not poll worker manual contained an error, there was no testimony
apply. Given that the Supreme Court and the Eleventh Circuit or other evidence that the manual was actually used in any of
have required plaintiffs to prove Section 1983 causation the counties where a voter experienced an issue with absentee
and traceability in various other contexts, the Court sees no ballot cancelation. See Tr. 3538:8–14.
reason to avoid doing so here.
Finally, there is testimony that the Secretary of State's Office
The Court finds that Plaintiffs have not sufficiently provided alternate forms of training on absentee ballots.
Training efforts in 2020, after the changes to HB 316, were
proven causation under Section 1983. Plaintiffs provided significant both in terms of frequency and quantity of topics
evidence that the Secretary of State's election certification to discuss.
materials were not updated after the passage of HB 316.
Tr. 2118:13–2119:11. First, Chris Harvey testified that The Court finds that there is not sufficient record evidence
certification materials are reviewed only once when the to establish that the incorrect training materials proximately
superintendents obtain their initial certification. Tr. 3534:10– caused any injury to a voter.
23. These certification materials were not, and could not have
been, used statewide for all county superintendents, and each
county from which Plaintiffs presented isolated problems
with absentee ballot cancelations involved superintendents c) Applicability of Anderson-Burdick
who were initially certified long before the materials with
incorrect information. Tr. 3535:17–3537:11. For example,

*52 As an initial note, the Court is not persuaded that an during the administration of elections. “Unlike systematic
discriminatory laws, isolated events that adversely affect
Anderson- Burdick violation has occurred with respect
individuals are not presumed to be a violation of the equal
to absentee-ballot cancelations. At summary judgment, the
Court examined whether Plaintiffs’ training claims should protection clause.” Gamza v. Aguirre, 619 F.2d 449,
54
be analyzed under Anderson- Burdick or 42 U.S.C. 453 (5th Cir. 1980). “If every state election irregularity
§ 1983. Doc. No. [617], 18–23. The Court ultimately were considered a federal constitutional deprivation, federal
courts would adjudicate every state election dispute .... [But]
concluded that Anderson- Burdick is the proper
vehicle for analyzing Plaintiffs’ training claims because Section 1983 ... did not authorize federal courts to be state
“where, as here, the plaintiff's claims are constitutional election monitors.” Id. at 453–454.
challenges alleging a generalized burden on the right to
vote, Anderson- Burdick squarely applies.” Id. at 22. Here, Plaintiffs argued that Defendants’ absentee-ballot
cancelation training materials violated the First and
The Court maintains that Anderson- Burdick is the
Fourteenth Amendments because they contained incorrect
proper mechanism for evaluating a plaintiff's constitutional
information that burdened some voters’ right to vote. Tr.
challenge to generalized burdens on the right to vote,
4400:23–4401:14. Mr. Harvey testified that following the
including when those burdens are caused by the Secretary
passage of HB 316, Plaintiff provided evidence that the
of State's failure to train county election officials. However,
Secretary of State's Office did not immediately update the
the Court finds that Anderson- Burdick does not apply election certification materials or the poll workers’ manual
when the challenged practice is not the Secretary of State's to reflect the changes to the cancelations of absentee ballots.
failure to properly train the counties on a state law, statute, or Tr. 2118:13–2119:11. This means that a county election
policy, but rather that the Secretary of State made a mistake superintendent appointed to the position between April 2019
in election administration. and the January 2021 runoff may have been certified on
incorrect materials. Tr. 3538:15–3540:2. Additionally, there
was testimony that the poll worker manual developed by the
Anderson- Burdick applies when a party challenges
Secretary of State was not updated to show the changes in
a state's law, statute, rule, or policy, not a mistake in
absentee ballot cancelation procedures for the 2019 and 2020
election administration. “[A] court must identify and evaluate
elections. Tr. 2131:9–28. The poll workers’ manual has since
the interests put forward by the State as justifications for
been updated with the correct information. Tr. 2131:9–28.
the burden imposed by its rule, and then make the ‘hard
judgment’ that our adversary system demands.” Crawford, *53 Plaintiffs’ challenge to Defendants’ training on absentee
553 U.S. at 190, 128 S.Ct. 1610; see also Burdick, ballot cancelations is one of an election irregularity and thus
504 U.S. at 433, 112 S.Ct. 2059 (applying balancing test does not violate the First and Fourteenth Amendments. “To
hold otherwise would effectively transform any inadvertent
to “voting regulations”); Anderson, 460 U.S. at 782– error in the administration of state and local elections
83, 103 S.Ct. 1564, (challenging an Ohio statute requiring
an Independent Presidential candidate to file a statement into a federal equal protection violation.” Lecky v. Va.
State Bd. of Elections, 285 F. Supp. 3d 908, 919 (E.D.
of candidacy). The Eleventh Circuit in Jacobson opined Va. 2018). What Plaintiffs are challenging is Defendants’
that Anderson- Burdick applies “[when] the statute failure to adequately enforce a Georgia statute, not the
burden[s] voting or associational rights even slightly, [in constitutionality of the statute itself. 55 Plaintiffs also do
which case] we could apply legal standards to determine not assert that the absentee training materials that contained
whether the burden was unconstitutional .... But [when] the incorrect information exemplified a policy of the Secretary of
statute does not burden the right to vote, we cannot engage in State.
that kind of review.” Jacobson, 974 F.3d at 1262.
Therefore, the Secretary of State's failure to update the
poll workers’ manual and change the election certification
Anderson, Burdick, and their progeny do not apply materials were mistakes in election administration, not the
to accidental mistakes on the part of election officials implementation of a state statute, regulation, or policy.

The only voter who was unable to vote was Saundra

Accordingly, the Court finds that Anderson- Burdick is
Brundage of DeKalb County. Tr. 1237:22–24; 1238:23–25.
not applicable.
Ms. Brundage testified that she requested an absentee ballot
for the first time in the 2018 general election Tr. 1239:16–
1240:3. Ms. Brundage never received her absentee ballot. Tr.
d) Anderson-Burdick framework 1240:7–8. She then went to vote in person by taking the bus to
her polling place from her senior living facility. Tr. 1240:17–
(1) Burdens 21; 1241:1–5. Ms. Brundage testified that a poll worker told
her that she had requested an absentee ballot and that the
poll worker was not “ready to let [Ms. Brundage] vote” but
Although Anderson- Burdick is not applicable to
Plaintiffs’ absentee ballot cancelation claim, out of did not give a reason why. 59 Tr. 1240:21–25; 1241:8–16;
an abundance of caution, the Court will conduct an 1241:17–21. The poll worker did not suggest that she cast
a provisional ballot at that time but pointed out a man and
Anderson- Burdick analysis. 56 Assuming arguendo
said Ms. Brundage needed to talk to him. 60 Tr. 1241:22–
that the Anderson- Burdick framework does apply to 1242:5. Ms. Brundage waited while the individual walked
the absentee-ballot cancelation claim, the Court finds that the up and down the aisle talking on the telephone. Tr. 1242:6–
burden on voters outweighs Defendants’ justifications. The 14. Ms. Brundage stated that she tried to wait for the man to
Court begins its analysis by identifying the burden of the finish but was never able to talk to him. Tr. 1242:23–1243:2.
absentee ballot cancelation training on the right to vote. Unfortunately, Ms. Brundage had to leave the polling location
before the man apparently finished his phone call because she
*54 Plaintiffs provided testimony from seven voters had to catch the bus that had taken her to the polling location.
who experienced difficulty with in-person absentee ballot Tr. 1250:7–12. Ms. Brundage testified that she was at the
cancelations during the 2020 election cycle. 57 Despite the polling location for approximately fifteen minutes. Id.
difficulty, all but one of the voters was able to cast a vote in
the election. Mildred Russell of Webster County was able to The Court finds that the burden of the Secretary of State's
cast her vote after the initial election was nullified. PX. 1589; incorrect training materials on absentee-ballot cancelations
PX. 1149, at 3; PX. 1131. Aaron Karp of DeKalb County was at most slight. The Supreme Court in Crawford
was ultimately able to vote provisionally in the June 2020 held that “[b]urdens of that sort arising from life's vagaries,
primary after signing an affidavit swearing that he did not however, are neither so serious nor so frequent as to raise any
also submit his absentee ballot. Tr. 603:17–19, 612:15–613:1,
614:13–17. Deborah Allen, of Fulton County, was able to question about the constitutionality.” Crawford, 553 U.S.
vote provisionally in the June 2020 primary after waiting at 197, 128 S.Ct. 1610.
for forty minutes. Tr. 626:18–627:25, 635:6–639:7. Margaret
Whatley, of Muscogee County, was able to place her absentee *55 With the exception of one voter, all of the witnesses
ballot in a dropbox in the November 2020 general election were able to vote in the election either in-person by regular
after waiting for an hour to try to cancel her ballot. PX. ballot, by provisional ballot, or by absentee ballot. These
2050 at 21:8–12, 23:11–24:4, 24:10–16, 27:18–28:2. Dayle Plaintiffs may have experienced longer wait times; however,
Bennett of Fulton County was able to vote in the September this is a burden arising from life's vagaries and does
2020 special election after having to return home, retrieve not amount to a substantial burden. “[W]hile the Court
her absentee ballot, and surrender the ballot at the polls. understands that a long commute or wait in line can be an
Tr. 2713:4–17, 2720:8–13. Patricia Andros of Cobb County inconvenience, courts have routinely rejected these factors as
was able to vote provisionally in the June 2020 primary. Tr. a significant harm to a constitutional right.” Gwinnett Cty.
2694:12–17, 2695:22–24, 2696:5–24. Aria Aaron of Clayton NAACP v. Gwinnett Cty. Bd. of Registration and Elections,
County was able to vote in person in the November 2020 446 F. Supp. 3d 1111, 1124 (N.D. Ga. 2020); see League of
general election after signing an affidavit. PX. 2057 at 24:14– Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205,
1216 (N. D Fla. 2018) (“[S]ome courts have characterized
19, 30:14–23. 58
administrative burdens like waiting in line and commuting
as not severe.”); Common Cause Indiana v. Marion Cty.

Election Bd., 311 F. Supp. 3d 949, 957–58 (S.D. Ind.), vacated

and remanded, 925 F.3d 928 (7th Cir. 2019) (discussing
(2) Justifications
certain administrative difficulties involved in early voting as
“nonsevere, nonsubstantial, or slight burden[s] on the general Next, the Court turns to the Secretary of State's justification
right to vote as a matter of law”); Jacksonville Coal. For for the burden. The Court finds that the Secretary of State's
Voter Prot. v. Hood, 351 F. Supp. 2d 1326, 1335 (M.D. Fla. only asserted justification for the burden was that it made a
2004) (“While it may be true that having to drive to an early mistake in failing to update its training materials. Mr. Harvey
voting site and having to wait in line may cause people to be testified about the incorrect materials stating:
inconvenienced, inconvenience does not result in a denial of
meaningful access to the political process.”). While the Court
is sympathetic to the inconveniences resulting from a long I can say that as far when we train
wait to vote, the Court finds that the longer wait time was a the counties in person, at conference
slight burden. and at webinars, we were using the
new information. I think–and, again,
The Court finds that casting a provisional ballot does not it's not an excuse, but as laws change
create a severe burden on the right to vote. In Crawford, and there are so many things that need
the Supreme Court found that “the right to cast a provisional to be updated, forms and procedures
ballot provides an adequate remedy for problems” stemming and PowerPoints, and trying to get the
information out there, that we just – we
from absentee ballots. Crawford, 553 U.S. at 197–98, 128
just dropped the ball on that.
S.Ct. 1610. Relying on Crawford, other courts have found
that casting a provisional ballot does not burden the right
to vote. See South Carolina v. U.S., 898 F. Supp. 2d 30, Tr. 2119:16–22. Mr. Harvey also testified,
41 (D.D.C. 2012) (“[C]asting a provisional ballot instead of
a regular ballot does not burden the right to vote.”); N.C.
State Conf. of the NAACP v. McCroy, 156 F. Supp. 3d And I think when you asked about
683, 701 (M.D.N.C. 2016) (finding that using a provisional where I dropped the ball? I think it
ballot does not impose a material burden on the right to was because I was more focused on
vote). Accordingly, the Court finds that the voters casting of making sure that they got the newest
a provisional ballot is, at most, a slight burden on voters. information in their hands right now,
because it was -- it was -- it was
Plaintiffs have presented evidence of one voter who was necessary. And then just didn't connect
unable to vote, Ms. Brundage. While Ms. Brundage was the dots and close the loop on the back
unable to vote, her inability to cast her ballot cannot fairly end. Again, I'm not trying to minimize
be attributed to Defendants. Ms. Brundage testified that her it or excuse it, but the – it should have
senior care facility allotted her only fifteen minutes to vote, been done. There's no question about
and she was unable to cancel her absentee ballot during that it.
time. While the denial of the franchise is a severe burden,
the evidence does not indicate that Defendants denied Ms.
Brundage the franchise or that her inability to vote was caused *56 Tr. 2121:6–12.
by inadequate training on absentee ballot cancelations.
Plaintiffs’ expert, Mr. Kennedy, concedes that mistakes are
Accordingly, the Court finds that the burden caused by the common in election administration.
Secretary of State's incorrect training materials was slight, and
does not exceed the ordinary burdens of voting.
I think recognizing that you are dealing
with a very human-driven process
from the millions of voters that show

up at -- to cast their ballot either in stage of the litigation, but also precludes, under the totality of
person or absentee, the thousands of
the circumstances inquiry, a finding of liability.” Nipper
poll workers, that you are going to
v. Smith, 39 F.3d 1494, 1533 (11th Cir. 1994). Plaintiffs’
have misfires, mistakes made both by
requested remedies include posting signs in the polling places
voters and election officials.
explaining that voters can cancel their absentee ballots,
even if they did not bring them to the polls (Tr. 3225:18–
21); incorporating the procedure for in-person absentee
Tr. 2908:15–19. ballot cancelations into mandatory trainings (Tr. 3226:16–
21); informing county officials that poll workers need to
be trained on absentee ballot cancelation (Tr. 3226:21–24),
(3) Weighing the burdens issuing an Official Election Bulletin regarding absentee ballot
cancelation procedures (Tr. 3227:10–15); require county
officials to certify that they have a plan in place to train on
The third and final step of the Anderson- Burdick
absentee ballot cancelation procedures (Tr. 3227:16–18).
balancing test requires the Court to “weigh” the above
“factors”—the character and magnitude of the asserted
*57 These are the exact kinds of remedies that the Eleventh
injury to voter's constitutional rights weighed against
Circuit has cautioned against. “Federal judges can have
the state's justifications—“to determine if the Secretary
a lot of power—especially when issuing injunctions. And
of State violated the First and Fourteenth Amendment.”
sometimes, we may even have a good idea or two. But the
Swanson v. Worley, 490 F.3d 894, 902–03 (11th Cir. Constitution sets out our sphere of decisionmaking, and that
2007). When a state's practice imposes only “reasonable, sphere does not extend to second-guessing and interfering
nondiscriminatory restrictions” upon a plaintiff's First and with a State's reasonable, nondiscriminatory election rules.”
Fourteenth Amendment rights, a state's “important ... New Ga. Project v. Raffensperger, 976 F.3d 1278, 1284
interests will usually be enough to justify reasonable,
(11th Cir. 2020). In Coalition for Good Governance v.
nondiscriminatory restrictions.” Timmons, 520 U.S. at Raffensperger, 1:20-cv-1677-TCB, 2020 WL 2509092, at *4
358, 117 S.Ct. 1364. (N.D. Ga. May 14, 2020), Chief Judge Batten stated that
ordering defendants to adopt “Plaintiffs’ laundry list of so-
The Court finds that when weighing the burdens caused by called ‘Pandemic Voting Safety Measures’ would require the
the incorrect training materials against the State's justification Court to micromanage the State's election process” and bore
that this is an example of mistakes in election administration, “little resemblance to the type of relief plaintiffs typically seek
the Court finds that the burden outweighs the justification.
in election cases.” 62 In Coalition for Good Governance,
Although the burden to voters was slight, the State does not
the plaintiffs requested that the court require the State to
have an important interest in producing incorrect training
implement certain COVID-19 safety procedures, such as
materials. Accordingly, under the Anderson- Burdick adjusting the number of voting stations, expanding early
framework, Plaintiffs have met their burden in establishing voting, implementing curbside voting and temporary mobile
that the Secretary of State violated the First and Fourteenth voting centers, streamlining voter check-in, offering state
Amendments when training the counties on absentee-voting
provided PPE, and increasing physical distancing. Id. at
cancelations. 61
*1.
In the case sub judice, like in Coalition for Good

e) Remedies
Governance, Plaintiffs’ proposed remedies include sign
placement in polling locations and mandating the form
Even if the Court were to find that Anderson- Burdick of training the Secretary of State needs to give regarding
applied and that Plaintiffs satisfied their burden in absentee ballot cancelation. The Court finds that requiring
establishing a First and Fourteenth Amendment violation, signs in polling places is like the measures sought in
Plaintiffs have not proposed viable remedies. “The absence
of an available remedy is not only relevant at the remedial Coalition for Good Governance, and thus are non-
justiciable. Also, the Court finds that requiring the form

of training that the Secretary is required to give is was ultimately allowed to vote. There is also no evidence
micromanaging the State's election process, which likewise about the process that Ms. Hall went through to be reinstated
is non-justiciable. Thus, even if the Court were to find onto the voter rolls. Rather, the evidence suggests that the
SEB was investigating Ms. Hall for attempted voter fraud, not
that Anderson- Burdick applies, the Court would find
the county for incorrectly canceling her. Id. at 3. The Court
for Defendants because Plaintiffs have not shown a viable
acknowledges that there may be some burden on a voter who
remedy for addressing incorrect training on absentee ballot
has been erroneously canceled as deceased; however, without
cancelations.
more evidence, that burden is pure conjecture. Accordingly,
the Court finds that Plaintiffs have not provided sufficient
****
evidence of a burden on voters regarding the vital matches.
In conclusion, the Court finds that Plaintiffs failed to meet
their burden in establishing First and Fourteenth Amended
violation with respect to absentee ballot cancelation training (2) Justifications
because (1) there is not sufficient evidence of causation,
The Court finds that the State has an important state interest
(2) Anderson- Burdick does not apply to challenges to in removing deceased electors from the voter rolls.
incorrect training materials, and (3) no viable remedies are
available to ameliorate any burden caused by the incorrect First, the Court finds that the State has a legitimate interest
training materials. in ensuring that the voter roll does not contain deceased
voters or duplicate voters. The State presented evidence that
HAVA requires the Secretary of State to ensure that the voter
3. Issue: The Secretary of State's Alleged roll does not contain ineligible voters or deceased voters. Tr.
Mismanagement of the Voter Rolls 3712:6–3714:16. HAVA requires that “the chief State election
official, shall implement, in a uniform and nondiscriminatory
“The second practice that [P]laintiffs challenge is the manner, a single, uniform, official, centralized, interactive
Secretary's affirmative mismanagement of Georgia statewide computerized statewide voter registration list ... [t]he list
voter registration lists. Mismanagement that creates barriers maintenance ... shall be conducted in a manner that ensures
to getting and staying on the voter rol[l]s.” Tr. 37:16– that -- ... (ii) only voters who are not registered or who are not
19. Specifically, Plaintiffs challenge “the Secretary of eligible to vote are removed from the computerized list, and
State's over-inclusive criteria for matching a person's voter (iii) duplicate names are eliminated from the computerized
registration record to another record, whether a death record,
list.” 52 U.S.C. § 21083(a)(1)(A); (a)(2)(B)(ii)–(iii).
a felony record, a new registration record or just another
HAVA states “each State and jurisdiction shall be required to
existing record elsewhere in the database.” Tr. 38:20–24.
As discussed above, the duplicate matching process is not comply with the requirements of [52 § 21083](a) on and
traceable to Defendants. Accordingly, the Court will only
after January 1, 2004.” 52 U.S.C. § 21083(d)(1)(A). Also,
evaluate whether the vitals and felon matching process violate
“[t]he Attorney General may bring a civil action against any
the First and Fourteenth Amendments.
State or jurisdiction in an appropriate United States District
Court for such declaratory and injunctive relief (including
a temporary restraining order, a permanent or temporary
a) Vitals injunction, or other order) as may be necessary to carry
out the uniform and nondiscriminatory election technology
(1) Burdens and administration requirements under sections 21081,

21082, and 21083 of this title.” 52 U.S.C. § 21111.
*58 With respect to vital records, the Court finds that
Because the State is subject to potential legal action by the
Plaintiffs have failed to produce sufficient evidence of
Attorney General for failure to implement HAVA, the Court
the burdens on voters resulting from vital record matches.
finds that State has an important interest in complying with
Plaintiffs provided evidence of one voter who was incorrectly
HAVA.
listed as deceased, Deborah Hall. PX. 490, 3–4. Plaintiffs did
not introduce evidence into the record of whether Ms. Hall

Second, Defendants argue that there is an important state

Burdick, 504 U.S. at 439, 434, 112 S.Ct. 2059). The
interest in deterring fraud. Tr. 4482:18–24. “A State
Court finds that the State's important regulatory interests
indisputably has a compelling interest in preserving the
in complying with HAVA, preventing voter fraud, and
integrity of its election process.” Purcell v. Gonzalez, preventing vote dilution are sufficient to justify the slight
549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (internal burdens imposed by the vital matching process.
quotation marks omitted). As the Supreme Court stated in
Crawford, “there is no question about the legitimacy or
importance of the State's interest in counting only the votes b) Felon Matching
of eligible voters.” 128 S. Ct. at 1619. Georgia has an
interest in preventing election fraud that “provides a sufficient (1) Burdens
justification for carefully identifying all voters participating
The Court finds that the felon matching process severely
in the election process.” Id. When the State provides an
burdens voters. “Burdens are severe if they go beyond the
important state interest, the Court then looks to “the extent
to which those interests make it necessary to burden’ voting merely inconvenient,” Crawford, 553 U.S. at 205, 128
S.Ct. 1610 (Scalia, J., concurring), and Plaintiffs provided
rights.” Lee, 915 F.3d at 1322 (quoting Anderson, 460
evidence that voters who are misidentified as felons face
U.S. at 789, 103 S.Ct. 1564).
additional burdens when exercising their right to vote that
exceed a simple inconvenience. For example, Plaintiffs
Finally, Defendants have an important interest in preventing
introduced detailed evidence of the burdens three voters who
vote dilution (Tr. 4483:17–24). As stated above, the State
were incorrectly listed as felons faced as they tried to remedy
has a compelling state interest in preventing voter fraud. The
the felon matching mistake and exercise their right to vote.
State also has an important state interest in preventing vote
dilution. See Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. On August 3, 2018, Chris Warren received a letter informing
1362, 12 L.Ed.2d 506 (1964) (“The right to vote freely for him that he had been identified as having a felony conviction
the candidate of one's choice is of the essence of a democratic and that he could attend a hearing on August 9, 2018,
society, and any restrictions on that right strike at the heart regarding his felony status. PX. 912. 63 The letter contained
of representative government. And the right of suffrage can information for Mr. Girtman, the person to contact regarding
be denied by a debasement or dilution of the weight of a a conflict with the hearing date. Id. During their conversation,
citizen's vote just as effectively as by wholly prohibiting the Mr. Girtman agreed that Mr. Warren was not a felon and that
free exercise of the franchise.”). the person who was a convicted felon lived 100 miles away,
had a different driver's license number, and had a different
Social Security number. Id.; PX. 2019. Mr. Girtman told Mr.
(3) Weighing the burdens Warren he did not need to do anything further and would be
able to vote. PX. 912.
*59 The Court finds that the State's justifications for vital
matching outweigh the burdens imposed by the vital matching When Mr. Warren went to his polling place to vote, however,
process. Here, the Court found that Plaintiffs did not present he learned that he had been removed from the voter rolls.
sufficient evidence to show that the vital matching process Id. Mr. Warren was able to vote by provisional ballot. PX.
imposes a severe burden on voters. See supra Section II(B)(2) 900. On November 8, 2018, Mr. Warren went to the voter
(b)(3). In fact, the evidence adduced at trial does not establish registration office to “cure” his registration and provisional
the magnitude, if any, of the burden caused by the vital ballot. Id. While at the voter registration office, Mr. Warren
matching process. Accordingly, the burden imposed by the was instructed to provide his driver's license. Id. Mr. Warren
vital matching process is slight. reached out to the ACLU regarding his experience, and the
ACLU, in turn, emailed Mr. Germany about the situation. PX.
“Because the burden is ‘slight,’ ... the State's important 912; PX. 900. Ultimately, Mr. Warren's provisional ballot was
regulatory interests are generally sufficient to justify’ the counted. PX. 2019.
restrictions.’ ” Black Voters Matter Fund v. Raffensperger,
508 F.Supp.3d 1283, 1301 (N.D. Ga. 2020) (quoting

Andre Smith also testified that he was erroneously labeled a county had previously removed her as a false match. Id.
felon. In Mr. Smith's case, he was initially canceled as a felon Ms. Hicks told Mr. Hallman that she was “100% sure” that
on December 12, 2018. DX. 390. Mr. Smith's eNet records Ms. Bauer was not a felon; Ms. Hicks had spoken with the
reflect that a letter was sent to Mr. Smith on December 20, county's probation office to confirm as much, and Ms. Bauer
2018, and the comment reads “FELON.” Id. brought documentary proof that she was not a felon to the
county office herself. Id. Despite the fact Ms. Bauer presented
Mr. Smith testified that in May of 2020, he called the Fulton evidence that she was not a felon, that Ms. Hicks investigated
County registrar's office numerous times, and upon speaking and confirmed Ms. Bauer's non-felon status, and that Ms.
with the Fulton County registrar, Mr. Smith was asked to Hicks marked Ms. Bauer as a false felon match in eNet, the
provide his date of birth and Social Security number. Tr. Secretary of State continued to list Ms. Bauer as a felon in
2434:21–2435:4; 2435:17–2436:15. Mr. Smith then testified the list of matches it sent to the country as part of the felon
that he was instructed by the Fulton County registrar's office match process.
to call the jail or prison where he had been held after being
arrested. Tr. 2438:10–14. Mr. Smith testified that he did not Other voters had similar experiences. See, e.g., PX. 89 at
know who to call because he had never been convicted of 1–2 (Dale Thomas and Jean Duncan, mistakenly canceled
a felony. Tr. 2438:12–16; Tr. 2433:16–24. Mr. Smith then as persons convicted of a felony in 2013); PX. 2159 at 83–
contacted Fair Fight about being listed as a felon. Tr. 2442:12– 85 (transcript of SEB Case No. 2013-052 regarding these
16. Mr. Smith testified that a representative at Fair Fight same voters); 65 PX. 1715 (Douglas Miller of Stuart County,
called the Fulton County Registrar multiple times and was canceled as a felon match with Robert Miller of Franklin
able to get confirmation that Mr. Smith would be reinstated to
County). 66 The Court infers that these voters did not receive
the voter rolls. Tr. 2442:21–2443:1. When Mr. Smith arrived
notice from the counties that they were being removed from
at the polls on Election Day in June 2020, he learned that
the voter rolls as felons, and eventually went through a
his registration could not be verified. Tr. 2448:1–2. He was
process of attempting to remove the felon flag themselves.
eventually allowed to vote by provisional ballot. Tr. 2249:7–
8.
*61 The Court finds that felon matching creates a severe
burden on voters. The felon matching process forces
*60 On July 16, 2020, Mr. Smith received a letter informing
individual voters erroneously caught by the Secretary's
him that he was flagged as a felon, and if this information
matching criteria to navigate administrative obstacles that
proved incorrect, to request a hearing from the Fulton County
are distinctly more burdensome than the obstacles that the
Voter Registration office. PX. 2088. Mr. Smith's eNet record
Supreme Court and Eleventh Circuit have examined. For
shows that he was canceled again on August 25, 2020, and the
example, felon match differs from photo ID laws in several
status reason was “FELON.” DX. 390. On August 25, 2020,
aspects. A voter erroneously listed as a felon will have to
Fulton County sent a letter to Mr. Smith stating that he was
remedy that mistake to remain on the voter rolls, whereas
reinstated and had been canceled based on an incorrect match
photo ID laws apply after the voter is on the voter roll. Once a
with a different Andre Smith. PX. 2089. When Mr. Smith
voter has been flagged as a felon, a voter must do something—
checked his status on MVP immediately before testifying in
i.e. request a hearing or contact the counties or the Secretary
this case, in April of 2022, his MVP page indicated that he
of State's Office—in order to remain on the voter roll.
had once again been canceled because of a felony conviction.
PX. 2097.
Additionally, the photo ID laws examined in Crawford and
Elizabeth Bauer was flagged in eNet numerous times for Common Cause/ Georgia only applied to in-person voting,
being a felon. PX. 658. 64 Ms. Shea Hicks, the Gordon whereas the felon matching process touches on all methods
County Board of Elections Chairperson, emailed Mr. Hallman
of voting in Georgia. See Crawford, 553 U.S. 181, 128
on September 27, 2018, to inform him that a voter who had
S.Ct. 1610 (evaluating a photo ID law that only applied to in-
been previously convicted of a misdemeanor “ke[pt] showing
up on [her] dashboard,” as a felon even though Ms. Hicks person voters in Indiana); Common Cause/Georgia, 554
had rejected the voter as a felon match in past. Id. Ms. Hicks F.3d 1340 (evaluating a similar law in Georgia). Furthermore,
confirmed that Ms. Bauer, the voter in question, reappeared in Crawford and Common Cause/Georgia, the states
on the Secretary of State's list of felons even though the were required under state law to issue a free photo ID to

any legitimately registered voter. In Georgia, for example, 12, 3842:12–18), none of the witnesses presented at trial ever
voters were entitled to a free photo ID if they could provide attended a hearing, and at least two voters, Mr. Smith, and
proof that they were registered to vote and swore an oath Mr. Warren stated that they were asked to provide proof that
that they did not have another acceptable form of photo ID. they were not felons when they contacted the county board of
registers. Mr. Smith was asked by Fulton County to call the
Common Cause/Georgia, 554 F.3d at 1346. This process
jail where he had been held to prove he had not been there
is far simpler and more navigable than the processes some
serving a felony sentence. Tr. 2438:10–14. Mr. Warren said
voters incorrectly identified as felons sub judice.
he was informed that he “had to either provide proof of [his]
eligibility to remain a registered voter or attend a hearing.”
Take, for example, the case of Mr. Smith. While he was
PX. 912. And the Court agrees with Mr. Warren that “[i]t's
ultimately able to vote, Mr. Smith was erroneously listed as
hard to provide documentation proving that something did not
a felon; Mr. Smith made calls to the Fulton County Board of
occur.” Id.
Registrars to contest his designation as a felon; Mr. Smith,
who was never convicted of a felony, was instructed to contact
*62 Members of the Secretary of State's Office also agree;
the jail or prison to retrieve paperwork indicating that he was
when asked, “it's not easy to prove you're not a felon?” Mr.
no longer serving a sentence, Fulton County later determined
Harvey responded, “[n]o. You're trying to prove a negative.”
that Mr. Smith was not a felon and reinstated him to the
Tr. 3739:20–21. Asking an otherwise qualified and properly
voter rolls; upon arriving at the polls, however, Mr. Smith
registered voter to provide documentation proving that he or
learned that his registration was canceled; Mr. Smith, then
she is not a felon is far more burdensome than asking a voter
voted provisionally, and that provisional ballot was counted;
to provide the same kind of documentation he or she must
but, before testifying at this trial, he discovered he was once
show every time she or she takes a commercial flight.
again listed as a felon. Tr. 2431:12–13; 2432:11–22, 2435:3–
7; 2436:7–12; 2437:24–2438:2; 2442:12–2443:1; 2448:1–2;
The burdens resulting from the felon match process also differ
2249:7–8; PX.2097.
those resulting from pre-determined absentee ballot deadlines
during COVID. Voters incorrectly identified as a felon do
The burdens that Mr. Smith faced are distinct and more
not have “numerous avenues” available to them to “mitigate
severe than obtaining a free photo ID prior to voting. Once
the administrative burdens placed on them that are more
a voter is issued a photo ID, the voter presumably will not
than just inconvenient in order to remedy the error.” New
experience that burden again prior to the ID's expiration
Georgia Project, 976 F.3d at 1281. While voters concerned
date. But under the felon match process, Mr. Smith had to
about absentee ballot deadlines during COVID could have
address administrative errors multiple times, even though he,
“return[ed] their ballots through the mail, hand-delivery, or a
at no time, was convicted of a felony. The process a duly
drop box,” “participate[d] in early in-person voting,” or “vote
registered and qualified voter must go through to correct
in person on Election Day,” there is nothing voters flagged
being erroneously flagged as a felon is a far more involved,
as felons can do “differently” to avoid being burdened by
confusing, and burdensome than going to a state agency with
their false felon status. Id. The burden resulting from the felon
proof of voter registration and swearing an oath.
match process is not being caused by the voter's own failure to
take reasonable steps to stop themselves from being burdened.
Consider also that being accused of being a convicted felon
See id. at 1282 (“Voters must simply take reasonable steps
is not a common occurrence and does not have an obvious
and exert some effort to ensure that their ballots are submitted
response. There are other contexts in which an individual may
on time, whether through absentee or in-person voting.”);
be asked to present a form of photo ID. For example, “[b]efore
an adult passenger can board an airplane for a commercial Democratic Nat'l Comm. v. Wisconsin State Legislature,
flight in the United States, the passenger must present to a ––– U.S. ––––, 141 S. Ct. 28, 33, 208 L.Ed.2d 247 (2020)
federal official an identification card with a photograph of the (Kavanaugh, J., concurring in the denial of application to
vacate a stay) (“A deadline is not unconstitutional merely
passenger.” Common Cause/Georgia, 554 F.3d at 1345.
because of voters’ ‘own failure to take timely steps’ to
But it is not every day that a person is asked to provide
ensure their franchise.”) (internal citations omitted). Unlike
evidence that he or she is not a felon. Though the Court
absentee-ballot deadlines during COVID, being erroneously
found Mr. Harvey's testimony credible and the county bears
flagged as a felon is not something the voter has any agency
the burden of proof at a felon match hearing (Tr. 3828:6–

over. There are no options available to voters except to society, and any restrictions on that right strike at the heart
shoulder the burden. of representative government. And the right of suffrage can
be denied by a debasement or dilution of the weight of a
For the above reasons, the Court finds that voters are severely citizen's vote just as effectively as by wholly prohibiting the
burdened by the felon matching process; the procedural
free exercise of the franchise.” Reynolds v. Sims, 377
hurdles voters incorrectly flagged as felons must jump
U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The
through to remedy that error impose a severe burden on the
felon matching process removes ineligible voters from the
right to vote. 67 voter rolls, thereby preventing the dilution of eligible voters.
Accordingly, the State has a compelling interest in preventing
vote dilution.
(2) Justifications
When the State provides an important state interest, the Court
The Court finds that Defendants have both important and then looks to “the extent to which those interests make it
compelling interests in removing felons from the voter rolls.
necessary to burden’ voting rights.” Lee, 915 F.3d at 1322
First, the Court finds that the State has an important (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564).
interest in keeping felons from voting. Under O.C.G.A. §

21-2-216(b), “no person who has been convicted of a felony
involving moral turpitude may register, remain registered, or (3) Weighing the burdens
vote except upon completion of the sentence.” “[A] State has
The Court finds that the Defendants’ justifications for using
a significant interest in enforcing its own laws.” Cameron “loose matches” do not outweigh the burdens on voters.
v. EMW Women's Surgical Center, P.S.C., ––– U.S. ––––, 142 As stated above, the Court found that voters were severely
S. Ct. 1002, 1011 n.4, 212 L.Ed.2d 114 (2020). The felon burdened by the felon matching process. Specifically, the
matching process allows the Secretary of State to enforce the procedural hoops qualified voters must jump through to
law that prohibits individuals from registering to vote when correct erroneous felon flags severely burdens the right to
they have been convicted of a felony and who are currently vote, especially given that some voters, like Mr. Smith and
serving their sentence. Accordingly, Defendants’ interest in Ms. Bauer, must prove they are not felons multiple times.
upholding Georgia's ban on felon voting is important. “[W]hen [a voter's] rights are subject to ‘severe’ restrictions,
the regulation must be ‘narrowly drawn to advance a state
*63 Second, Defendants have a compelling interest in
interest of compelling importance.’ ” Burdick, 504 U.S.
preventing voter fraud. Defendants argue that the felon
at 434, 112 S.Ct. 2059. See also New Georgia Project, 976
matching process deters fraud. Tr. 4482:18–24. “A State
F.3d at 1280 (“If a State's rule imposes a severe burden on
indisputably has a compelling interest in preserving the
the right to vote, then the rule may only survive if it is
integrity of its election process.” Purcell v. Gonzalez, narrowly tailored and only if the State advances a compelling
549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (internal government interest.”).
quotation marks omitted). As the Supreme Court stated in
Crawford, “there is no question about the legitimacy or The Court finds that the felon matching process is not
importance of the State's interest in counting only the votes narrowly drawn. The Secretary of State identifies various
criteria for determining whether a registered voter is also a
of eligible voters.” 128 S. Ct. at 1619. Georgia has an felon. PX. 800, 21. Those are: (1) last name, first name, last
interest in preventing election fraud that “provides a sufficient four digits of Social Security number, and date of birth for
justification for carefully identifying all voters participating voters in active, inactive, pending, or reject status; (2) last
in the election process.” Id. name, first name, last four digits of Social Security number,
and date of birth for voters in canceled status; (3) last name,
Finally, Defendants have a compelling interest in preventing last four digits of Social Security number, and date of birth;
vote dilution. Tr. 4483:17–24. “The right to vote freely for the (4) first name, last four digits of Social Security number, and
candidate of one's choice is of the essence of a democratic date of birth; (5) last name, first name, and date of birth; and

(6) last name, date of birth, race, and gender. Id. Plaintiffs government to further their interest in monitoring voters’
challenge the use of the last set of criteria. Doc. No. [854], felon status; the State already employs five less restrictive
¶¶ 730, 973. matching criteria to check felon status. By a member of
the Secretary's Office's own admission, the last name, date
With respect to the final criteria, Mr. Hallman recommended of birth, race, and gender criterion could—and even should
removing this set of criteria because it was “pretty loose.” —be removed from the felon matching process. PX. 1151.
PX.1151. What's more, there is direct testimony from an individual who
works in the Secretary of State's Office that shows that the
felon matching criterion is not narrowly drawn, but is in fact,
“pretty loose.” Mr. Hallman's testimony and the email to Mr.
Rayburn illustrate that the Secretary of State's Office knows
that the felon matching process would likely result in “a lot”
of non-matches. Tr. 878:3–9.
Because the loose match criteria catch “a lot” individuals

who are not felons during the match process and thereby
increase the likelihood that voters will be erroneously labeled
as felons and suffer the resulting administrative burdens, the
final matching criteria are not narrowly tailored. 68 Tr. 878:3–
9; PX. 1151.
PX.1151 (excerpted). The email shows that the Secretary of
State contemplated removing the criteria altogether. Id. In just Although the Court finds that the State has a compelling
one run of the felon match process in August 2019, the last interest in restricting the list of electors to eligible voters and
name, race, gender, and birth date criteria identified roughly in preventing eligible voters’ votes from being diluted by non-
25,000 matches of an approximate 50,000 total felon matches. eligible voters being permitted to participate in the electoral
Id. process, the Court finds that the process by which voters are
*64 Additionally, trial testimony shows that the Secretary determined to be felons is not narrowly drawn to address that
of State knew that the final set of criteria—last name, date of interest. Accordingly, the Court finds that the felon matching
birth, race, and gender—would likely result in “a lot” of non- process violates the First and Fourteenth Amendments.
matches.
Q: That this criteria that the Secretary of State uses in its

eNet system to identify potential matches against the (4) Causation
felon list includes a criteria that you knew was pretty
loose, right, and that would produce matches that would Despite the Court's holding that the felon matching process
be teed up for all the counties that you are aware would violates the First and Fourteenth Amendment right to vote,
likely -- would likely include a lot of non-matches, right? the Court also finds that the various burdens resulting from
the felon matching process are caused by the counties and not
A: Correct. Defendant Secretary of State. “[S]ection 1983 requires proof
of an affirmative causal connection between the official's
Tr. 878:3–9. acts or omissions and the alleged constitutional deprivation.”
“Narrow tailoring requires the government to employ the Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986).
least restrictive alternative to further its interests.” In re As stated supra Section II(B)(2)(b), Plaintiffs have the burden
Georgia Senate Bill 202, ––– F.Supp.3d ––––, ––––, 2022 of proving not only that felon matching is traceable to
Defendants but also that Defendants’ actions concerning
WL 3573076, *15 (N.D. Ga. 2022) (citing United States felon matching caused the First and Fourteenth Amendment
v. Playboy Ent. Grp. Inc., 529 U.S. 803, 813, 120 S.Ct.
1878, 146 L.Ed.2d 865 (2000)). Relying on the matching violation under Anderson- Burdick. Plaintiffs have not
criteria examining only last name, date of birth, race, and carried their burden of proof as to causation.
gender is not the least restrictive means available to the

*65 The Court finds that the causal link between the burdens a county official asked him to contact the jail or prison where
of felon matching and Defendants is broken. Although he had been detained to sort out his felon status); PX. 912
(Mr. Warren writing to the ACLU that the letter he received
O.C.G.A. § 21-2-231 requires the Secretary of State to
from the county told him to “provide proof of [his] eligibility
send the counties the list of electors who have been flagged
to remain a registered voter”). Thus, the counties, not the
as felons, and the counties are then required to transmit a
Secretary of State, cause the voters’ burdens.
notice to all electors who appear on that list, in practice, that
is not how the felon matching occurs. 69 Employees of the Additionally, no witness testified that an error with the
Secretary of State testified, and the evidence shows, that eNet statewide voter database is proximately caused by the
uses certain matching criteria to match the list of electors Secretary of State's criteria for felon matching. Plaintiffs
against the list of felons; once there is a match, eNet sends never presented a county election official or other witness to
the counties a list of electors who are potentially felons; the substantiate Plaintiffs’ assertions that the issues experienced
county is then tasked with determining whether an elector by voters were caused by the Secretary of State's selection
is, in fact, a felon; and if the county determines either that of certain criteria or other management efforts of the voter
an elector is a felon or that more information is needed, the registration database.
county sends a notice to the elector that he or she was flagged
as a felon. Tr. 899:10–12, 899:23–900:4; PX. 1878, at 30– For example, with regard to Mr. Smith, Plaintiffs were
31; PX. 800. Thus, once the Secretary of State, by way of unable to identify or explain—through a county official, a
eNet, sends the counties the list of potential electors who voter, other testimony, or other evidence—that any action or
are felons, the counties take certain investigative steps to inaction caused the cancelation of Mr. Smith's record by the
determine whether an elector is a felon before sending the Secretary of State. Indeed, in one exhibit letter, Fulton County
notice that he or she has been flagged as a felon. Tr. 3570:7– admitted that it was responsible for the error and that the error
11. These steps include, but are not limited to, comparing the occurred because it had misidentified him with another voter
voter record information on one side of an eNet screen with who had the same “first name, last name and date of birth.”
the felon record information on the other side of the screen. PX. 2089.
Id.; PX. 800 at 25.
*66 The evidence shows that in practice, the counties decide
The Court finds that the independent actions of the counties in which voters to send a notice to, the counties conduct the
investigating whether an elector is a felon and then canceling hearings, the counties determine which voters need to be
the elector are independent actions that break the causal chain removed from the voter rolls, and the counties remove the
to the Secretary of State. “The causal relation does not exist felons from the voter roll. The voter is entirely unaware that
when the continuum between Defendant[s’] action and the the Secretary of State flagged him or her as a potential felon
ultimate harm is occupied by the conduct of deliberative until after the county takes the initial step of determining
autonomous decision-makers.” Dixon v. Burke Cty., 303 whether the flagged elector is a “true match” for a felon. Tr.
F.3d 1271, 1275 (11th Cir. 2002). One way to determine 3570:5–10; 1351:16–1352:11. Thus, the burdens caused by
if the causal link is destroyed is whether the defendant the felon matching process are caused not by the Secretary of
“exercised extraordinary influence over” the third party or State but by the counties.
whether the third party exercised “individual freedom of
The Court finds that Plaintiffs have not met their burden in
rational choice.” Id. Here, the burdens a voter faces in
proving a First and Fourteenth Amendment violation because
attempting to correct a false felon match are caused by the
Plaintiffs have not proven that the Secretary of State caused
county's deliberative autonomous decisions, not the Secretary
the burden on voters who are mislabeled and/or canceled by
of State's. Mr. Harvey testified that the counties investigate
the felon matching process. Although the Court is finding
and ultimately decide whether an elector is a felon, not the
for Defendants, the Court notes that it would be a better
Secretary of State. Tr. 3569:12–3570:10. The counties, not
practice for the Secretary of State to do away with the final
the Secretary of State, actually cancel voters. And testimony
matching criterion—last name, date of birth, gender, and race.
from voters flagged as felons at trial also showed that it is
This statement is given as a recommendation and should not
the counties, not the Secretary of State, that required voters
be construed as a remedy. Accordingly, Plaintiffs have not
like Mr. Smith and Mr. Warren to produce evidence proving
proven causation; therefore, Plaintiffs’ First and Fourteenth
they are not felons. Tr. 2438:10–14 (Mr. Smith testifying that

Amendment claims ultimately fail as to the felon matching not prevent an applicant from being registered to vote. Tr.
process. 1943:6–25; 1946:2–1947:22.
Since HB 316 was passed, a registrant who fails the

verification process is added to the active voter rolls and
4. Issue: Exact Match
flagged as MIDR. O.C.G.A. § 21-2-220.1 (providing that
Plaintiffs argue “this Secretary of State's ‘exact match’ policy in cases of an inexact match, “the applicant shall nevertheless
creates unnecessary and discriminatory obstacles for eligible be registered to vote but shall be required to produce proof
voters to get registered.” Tr. 23:22–24. Plaintiffs challenged of his or her identity ... at or before the time that such
two different aspects of Exact Match. First, Plaintiffs applicant requests a ballot for the first time”). When a
challenged MIDR status that resulted from discrepancies registrant is placed into MIDR status, county officials send
between a voter's registration form and DDS or the SSA the voter a form letter drafted by the Secretary of State
records. Tr. 32:12–34:3. Plaintiffs also challenged the and generated through eNet, the Secretary of State's voter
Secretary of State's Office's citizenship matching process. registration database. PX. 1900.
Tr. 29:7–17. The Court will first evaluate whether MIDR
is a constitutional violation under Anderson- Burdick. *67 An applicant may be placed in MIDR status due to
The Court will then evaluate whether citizenship matching typographical errors, changes in the way people spell their
names, and minor changes in characters between the two
violates Anderson- Burdick.
databases. Tr. 408:17–409:6; PX. 1278, 6. A transposed letter
or number (Tr. 1956:14–1957:2), the presence of a hyphen
(Tr. 1957:3–6), or the presence of an apostrophe (Tr. 1957:7–
a) Challenged Practice: MIDR 12) can cause a match failure. See PX. 1182 (Secretary of
State employee Kevin Rayburn acknowledging an applicant
was in MIDR because of a missing letter at the end of
(1) Burdens
the applicant's last name). Therefore, if an “applicant's last
Exact Match is the process by which the Secretary of State name is hyphenated on the voter registration application but
verifies a voter's registration. In Georgia, when an individual not on the applicant's driver's license,” he or she could fail
registers to vote, he or she is required to provide a valid verification. Tr. 1957:3–6. For paper applications, the Exact
Georgia Driver's License or Georgia ID Number. PX. 6; Match MIDR process can occur only after county election
personnel type the information into eNet. Tr. 1950:7–22. The
O.C.G.A. § 21-2-220.1(a). When an applicant provides Secretary of State's Office has admitted that failures to verify
a Georgia driver's license number or state identification “could be caused by erratic handwriting on a voter registration
number, it is matched against his or her information in the application or by a clerk committing a typing error when
DDS database: driver's license number, first twenty characters entering information.” PX. 1119; Tr. 1957:15–1958:8.
of the last name, first initial of the first name, and date of
birth. PX. 1753 at 1; Tr. 1197:24–1198:23; Tr. 1936:1–24. For At trial, Plaintiffs did not present any testimonial evidence
an applicant who did not provide his or her Georgia driver's of burdens that individual voters experienced regarding
license or state identification numbers but did provide the last being placed in MIDR status. Dr. Carlos del Rio did testify
four digits of his or her Social Security number, the following about a difficult experience he had at the polls during the
information on his or her voter registration application is November 2018 election, which was presumably caused by
matched against his or her information in the SSA database: discrepancies in the spelling of his last name on the voter
the last four digits of his or her Social Security number, first rolls and on his driver's license. Tr. 473:8–475:19. However,
twenty characters of the last name, first initial of the first Dr. del Rio's experience was not based on MIDR because it
name, and date of birth. Id. An applicant who does not provide
occurred prior to the passage of HB 316. 70 Accordingly, the
his or her Georgia driver's license number, state identification
burdens that Dr. del Rio faced are not attributable to MIDR.
card number, or last four digits of their Social Security number
will not have his or her information matched against any
Plaintiffs did provide expert testimony from Dr. Mayer that an
database. Failure to provide said information, however, does
MIDR flag at the polls could result in a burden to voters. Dr.
Mayer was qualified as an expert on election management as

it relates to statistical analysis. Tr. 342:25–343:2. Dr. Mayer Cause, 554 F.3d at 1355. Pursuant to HAVA, first-time
testified that “it is certainly plausible, if not likely, that the voters who registered by mail may prove their residency
simple fact that there is an MIDR flag, there is something by providing valid photo identification or an official copy
in the voter's registration record that is different than most of a current utility bill, bank statement, government check,
registrants, that it could easily trigger a poll worker into paycheck, or other government document that shows the
thinking that they have to subject or should subject or must
name and address of the voter. 52 U.S.C. § 21083(b)(2).
subject this registrant to a higher level of scrutiny than they
Defendants asserted that MIDR status informs poll workers
do other voters.” Tr. 403:18–24. Dr. Mayer also testified that
of who can present any of the HAVA-approved forms of
the letter that informs voters of their MIDR status carries the
identification and are not limited to showing a photo ID. Tr.
impression that the voter is not registered to vote, the letter
4145:15–18. Mr. Germany testified that MIDR status alerts
does not clearly tell a voter what form of identification is
poll workers that “this person has to comply with HAVA.
needed to clear the MIDR status. Tr. 401:15–403:3. On cross-
And the way they do so, they can provide one of those IDs,
examination Dr. Mayer conceded that he did not conduct any
either the photo ID or the kind of broader set of non-photo ID
research in Georgia after the passage of HB 316 to determine
allowed under HAVA.” Tr. 4145:15–18.
if any voters were in fact confused about MIDR status. Tr.
458:11–14.
As stated above, the Court finds that complying with HAVA is
an important state interest. See supra Section II(B)(2)(b)(2).
Without any direct testimony from a voter who experienced
being in MIDR status or testimony from a poll worker about
Second, Defendants introduced testimony that MIDR
how they treat individuals in MIDR status, the Court finds that
prevents fraud. As stated above, the State has a compelling
the burden on voters is relatively low. Here, Plaintiffs have
interest in preventing voter fraud. See supra Section II(B)(2)
not provided direct evidence of a voter who was unable to
(b)(2). Mr. Harvey testified, “MIDR is, my understanding of
vote, experienced longer wait times, was confused about voter
it is, because you didn't verify. You have to show something
registration status by being in MIDR status, or experienced
that shows you're the actual person. And that's the – I guess
heightened scrutiny at the polls due to MIDR status. Also,
protection from registering a bunch of alias people and then
there is no testimony about how a voter is treated by a poll
just showing up and saying, Oh, yeah, I'm John Smith, or
worker because of the MIDR flag.
I'm Chris Harvey. And by showing the I.D., you're verifying
that, okay, for whatever reason they couldn't match it, you're
Dr. Mayer's testimony at best states that there is a statistical
still a bona fide person.” Tr. 3604:11–19. Thus, Defendants
probability that individuals in MIDR status face these
have demonstrated that the State's compelling interest in
burdens. However, Dr. Mayer's testimony is based upon
preventing voter fraud is tied to the challenged practice.
nationwide statistics and are not specific to Georgia's voting
systems. Thus, if a burden does exist, it is minimal. Because
the burden is minimal, it “may be warranted by ‘the State's
(3) Weighing the burdens
important regulatory interests.’ ” Common Cause, 554
F.3d at 1352. The Court finds that the State's justifications outweigh any
potential burdens on voters. First, without an actual showing
that a voter was in fact burdened by his or her status on
(2) Justifications MIDR, the Court finds that the burden on voters by being
in MIDR status is minimal. Because MIDR imposes only
*68 Defendants advanced two justifications for MIDR. a “reasonable, nondiscriminatory restriction” upon the First
First, Defendants argued that MIDR is important to ensuring and Fourteenth Amendment rights of voters, “the State's
that voters are able to vote using the additional forms important regulatory interests are ... sufficient to justify” the
of identification under HAVA for first-time voters. Under
restrictions. Burdick, 504 U.S. at 434, 112 S.Ct. 2059.
Georgia law, voters, except for first-time voters who
registered by mail, must provide a photo ID in order to vote.
The Court finds that Defendants have provided one important
O.C.G.A. § 21-2-417(a). The Eleventh Circuit has already interest and one compelling interest that justify MIDR. First,
Defendants have provided testimony that MIDR status is
held that Georgia's voter ID law is constitutional. Common

necessary because it prevents voter fraud. “[D]eterring voter state, (5) a valid United States military photo identification
fraud is a legitimate policy on which to enact an election law, card, or (6) a valid tribal identification card. PX. 1231. The
even in the absence of any record evidence of voter fraud.” registrant must also provide proof of citizenship by using
Greater Birmingham Ministries, 992 F.3d at 1334. Thus, the one of fifteen acceptable documents; examples include (1) a
Court finds that the State's interest in deterring voter fraud birth certificate issued by the U.S., (2) a U.S. Passport, (3) a
outweighs the burden caused by MIDR. certificate of citizenship, or (4) a naturalization certificate. Id.
If a registrant cannot provide sufficient proof of citizenship
Additionally, compliance with HAVA is an important state before an election day or at the polls, the registrant can vote
interest. If a State fails to comply with HAVA, “[t]he provisionally and verify his or her citizenship afterward. Tr.
Attorney General may bring a civil action against [the] 1724:22; 1735:1–2.
State or jurisdiction in an appropriate United States District
Court for such declaratory and injunctive relief ... to carry Plaintiffs provided evidence of three voters who did not vote
out the uniform and nondiscriminatory election technology due to the citizenship matching process and two voters who
faced hurdles when voting. Two registrants testified that they
and administration requirements under sections 21081,
did not vote because they chose not to. Ms. Hamalanian
21082, and 21083 of this title.” 52 U.S.C. § 21111. testified that she had her citizenship verification paperwork
Accordingly, the State has an important State interest in readily available. PX. 2048, Tr. 18:20–25. Still, she did not
complying with HAVA and avoiding suit by the Attorney submit it to the county election official because she felt
General. “disappointed and a little bit angry with the case.” Id. Of
the other witnesses, the testimony shows that they were
The Court finds that Plaintiffs have failed to prove that the ultimately able to vote.
burdens imposed by MIDR outweigh the State's interests in
preventing fraud and complying with HAVA. Accordingly,
As was the case in Crawford, the record is virtually silent
MIDR does not violate the First and Fourteenth Amendments.
on the difficulty a naturalized citizen will face in obtaining
proof of citizenship documents. In Crawford, the Supreme
Court was unable to find that Indiana's photo ID laws severely
b) Challenged practice: Exact Match Citizenship
burdened elderly voters because the affected voters “have
not indicated how difficult it would be for them to obtain a
(1) Burdens
birth certificate.” Crawford, 553 U.S. at 201, 128 S.Ct.
The Court finds that the burdens imposed by Exact 1610. In the case sub judice, Ms. Hamalanian testified that
Match Citizenship are limited. Each voter in Georgia must her citizenship documentation was readily available to her,
demonstrate citizenship at the time of registration. Tr. and she had access to the means to submit said information
3585:12–21. When a registrant provides his or her driver's to the appropriate election officials. PX. 2048, Tr. 30:12–
license information as a part of the registration process, the 25. Ms. Hamalanian testified that she did not send the
data will be processed through DDS's database. Tr. 359:19– information because she was disappointed by an election
23. If the registrant is flagged as needing to provide evidence official's statement that even if Ms. Hamalanian faxed her
of citizenship, the registrant is placed in pending status. Tr. information that day, “it would have been too late to vote in
364:5–23. If the registrant can submit proof of citizenship that year's election.” PX. 18:15–19. Dr. Ansa testified that he
to an election official, the election official is supposed to did not attempt to vote in the 2016 election because he “didn't
override the DDS flag and put the registrant into active status. have that kind of luxury of time” to provide the citizenship
Tr. 386:13–19. verification documents before Election Day. PX. 2096, Tr.
21:21–22:3.
*69 To prove his or her citizenship, a registrant may
provide an acceptable form of photo identification, including Finally, concerning Ms. Ozgunes, the Court finds that her
(1) a Georgia driver's license, (2) a valid state or federal inability to vote was caused by a county's failure to provide
government-issued photo ID, (3) a valid U.S. passport, (4) her with a provisional ballot. Ms. Ozgunes was asked to
a valid employee photo identification issued by either the verify her citizenship in multiple elections, and after giving
federal government, the state, county, or other entity of this said proof, she continued to be identified as a noncitizen in

the voter registration database. PX. 89, 1–2. 71 However, the Tr. 1724:22; 1735:1–2. At a minimum, the registrants are
Court already awarded judgment to Defendants on the issue supposed to be issued a provisional ballot. Id. The testimony
of failure to train counties on provisional ballots. “Plaintiffs also shows that in 2019, the Secretary of State updated eNet to
have not shown” that a county's failure to provide an absentee avoid registrants consistently being flagged as noncitizens. Tr.
ballot is “factually traceable to Defendants’ training.” Doc. 3590:6–3591:5. Finally, the record shows that all of the voters
No. [617], 41. While it is regrettable that Ms. Ozgunes was who provided citizenship verification documents were able to
denied the right to vote, it cannot reasonably be said that vote. Thus, “consider[ing] the statute's broad application to
her inability to vote was traceable to Defendants. Further, all [Georgia] voters[,] [the Court] conclude[s] that it ‘imposes
Mr. Harvey testified that in 2019, the Secretary of State only a limited burden on voters’ rights.’ ” Crawford, 553
updated eNet to override DDS's attempts to flag a registrant U.S. at 202–03, 128 S.Ct. 1610 (citation omitted).
as a noncitizen if a voter application is received with a
naturalization form or provides some other form of proof of
citizenship. Tr. 3590:6–3591:5.
(2) Justifications
The remaining voters were all able to vote. Dr. Kefeli verified
Defendants argued that the State has compelling state interest.
his citizenship by sending an email (PX. 2049, Tr. 33:20–23),
Under Georgia law, noncitizens are not allowed to vote in
and Ms. Tran provided her naturalization documents to a poll
worker (Tr. 316:913). elections for public office. Ga. Const. Art. 2, § 1, ¶ II;
O.C.G.A. § 21-2-216(a)(2). Federal law also prohibits
*70 The Court agrees with Plaintiffs that naturalized citizens
noncitizens from voting. See Arcia v. Fla. Sec'y of State,
face more significant burdens than native-born citizens
772 F.3d 1335, 1344 (11th Cir. 2014) (“The National Voter
when registering to vote. Naturalized citizens must provide
Registration Act (NVRA) is premised on the assumption
additional forms of proof of citizenship, a hurdle that most
that citizenship is one of the requirements for eligibility to
voters do not face. See Tr. 2036:9–23 (explaining that the
DDS citizenship flags result from newly naturalized citizens vote. See, e.g., [ 52 U.S.C. §§ 20504, 20506, 20508]
with limited-term licenses; however, native-born citizens (requiring certain voter registration forms to state or specify
should never be issued limited-term licenses). Thus, the Court ‘each eligibility requirement (including citizenship) ....”).
finds that the Exact Match citizenship verification process Plaintiffs conceded that they were not challenging this policy
imposes a special burden on naturalized citizens. and agreed that pursuing this goal was a legitimate state
interest. Tr. 4330:7–10 (“We are not asking that noncitizens
be allowed to vote. I know this Court knows that. We have
Just as in Crawford, the Court recognizes that naturalized
only ever agreed that Georgia has a legitimate interest in
citizens face a special burden; however, the Court “cannot
preventing noncitizens from voting.”).
conclude that the statute imposes ‘excessively burdensome
requirements’ on any class of voters.” Crawford, 553 U.S. Defendants also asserted a compelling state interest in
at 203, 128 S.Ct. 1610. The Court finds that Plaintiffs have not ensuring compliance with HAVA and limiting voter fraud.
shown that the Exact Match Citizenship verification process The Supreme Court has noted that preventing voter fraud is
severely burdens voters. In Crawford, the Supreme Court a compelling state interest. “There is no denying the abstract
held that even if a law “imposed a special burden” on a importance, the compelling nature, of combating voter fraud.”
“limited number of persons[’] ... right to vote[,] ... [t]he See Purcell, 549 U.S. at 4, 127 S.Ct. 5 (acknowledging
severity of that burden is, of course mitigated by the fact “the State's compelling interest in preventing voter fraud”);
that, if eligible, voters ... may cast provisional ballots that will
cf. Eu v. San Francisco Cty. Democratic Cent. Comm., 489
ultimately be counted.” Crawford, 553 U.S. at 199, 128 U.S. 214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (“A
S.Ct. 1610. State indisputably has a compelling interest in preserving the
integrity of its election process.”); Crawford, 553 U.S. at
Mr. Germany testified that registrants flagged as noncitizens
225, 128 S.Ct. 1610 (Souter, J., dissenting).
are provided with notice of their pending status and informed
of the documents they need to show that they are citizens.

Exact Match citizenship verification violates the First and

Fourteenth Amendments.
(3) Weighing burdens
*71 The Court finds that Defendants’ important

justifications for preventing voter fraud and complying with (4) Remedies
HAVA outweigh the limited burden caused by the citizenship
matching process. “[W]hen a state election law provision Even if the Court were to find for Plaintiffs, the Court
imposes only ‘reasonable nondiscriminatory restrictions’ finds that it is prudent to abstain from awarding Plaintiffs’
upon the First and Fourteenth Amendment right of voters, ‘the proposed remedy. Plaintiffs asked the Court to order the
State's important regulatory interests are generally sufficient Secretary of State to implement the SAVE verification process
(Tr. 3193:6–20) and maintain records of the citizenship
to justify’ the restrictions.” Burdick, 504 U.S. at 434, 112
verification conducted by SAVE (Tr. 3195:2–4). However,
S.Ct. 2059. “When evaluating a neutral, nondiscriminatory
Mr. Germany testified that the Secretary of State is in the
regulation of voting procedure, [the Court] ‘must keep in
process of implementing SAVE. Tr. 1709:20–1711:20.
mind that [a] ruling of unconstitutionality frustrates the intent
of the elected representatives of the people.’ ” Crawford, Defendants argued that the Secretary of State's
553 U.S. at 203, 128 S.Ct. 1610 (quoting Ayotte v. implementation of SAVE meant that there was no injury to
Planned Parenthood of N. New Eng., 546 U.S. 320, 329, Plaintiffs. See Tr. 4459:20–22 (“If we are using SAVE, the
126 S.Ct. 961, 163 L.Ed.2d 812 (2006)). The Court found injury is not there. Because that's what[ ] they are saying they
that the citizenship matching process creates a limited burden want as a remedy.”) Also, Defendants argue that SAVE is not
on voters. Therefore, the Court must determine whether an appropriate remedy because “[t]he testimony is that we
Defendants provided important regulatory interests to justify want to continue doing this[,] [t]here is already a statute that
the law. says to do that[,] [t]here is a regulation that says to do that[,]
[t]here is no indication that that's going to change.” 73 Tr.
The Court finds that Defendants have shown that compliance 4460:1–4. The Court agrees that ordering the implementation
with HAVA is an important state interest. As stated above, if a of SAVE is not an appropriate remedy.
State fails to comply with HAVA, the Attorney General may
*72 As an initial note, the Defendants’ planned
bring a civil action against the State. 52 U.S.C. § 21111.
implementation of SAVE does not moot the issue, and the
Thus, Defendants have an important interest in complying
Court recognizes that absent a judicial order, things may
with HAVA.
change. But, SAVE is not dispositive of the Court's decision,
and the Court has no doubt that if the State changes its policy,
Also, Defendants have a compelling interest in preventing
this Court or another will hear about it, and the issue can be
voter fraud. “[D]eterring voter fraud is a legitimate policy
addressed on another day.
on which to enact an election law, even in the absence of
any record evidence of voter fraud.” Greater Birmingham
First, Georgia has a regulation that requires the Secretary of
Ministries, 992 F.3d at 1334. Even though the evidence
State to verify an applicant's citizenship using SAVE. See Ga.
adduced at trial shows that relatively few noncitizens attempt
Comp. R. & Regs. 590-8-1-.02(2)(a)(2) (“If the Department
to vote, 72 Defendants were not required to show instances of Driver Services records indicate that the applicant is not
of voter fraud to justify these election laws. Id. Accordingly, a United States citizen in the Department of Driver Services
the Court finds that Defendants have a compelling interest in database, the Secretary of State shall attempt to verify the
preventing voter fraud. applicant's United States citizenship status with the United
States Citizenship and Immigration Services utilizing the
The Court finds that the limited burdens placed on voters Systematic Alien Verification for Entitlements program. Such
by Exact Match citizen verification are justified by the verification will indicate whether the applicant is designated
State's compelling interest in fraud and important interest as a citizen of the United States within the Verification
in complying with HAVA. Accordingly, the Court finds that Information System database.”).
Plaintiffs have not satisfied their burden in proving that

Second, sufficient testimony and evidence establish that the

Secretary of State is in the process of implementing SAVE. The Court finds that Plaintiffs have not carried their burden
On August 17, 2020, the Secretary of State entered into in establishing that Exact Match Citizenship violates the First
a memorandum of understanding with the Department of and Fourteenth Amendments.
Homeland Security authorizing the Secretary to implement
SAVE. PX. 2022.
C. Count II: Fifteenth Amendment
In 2021, the Secretary of State's Office used SAVE to audit the In Count II of their Second Amended Complaint, Plaintiffs
voter rolls and records from DDS. Tr. 1680:15–16; 1680:20– allege that “[a]cting under color of state law, Defendants
22. The range of dates for the registrations that the Secretary deprived Georgians of the right to vote—as secured by the
of State's Office identified during the audit was from 1997 Fifteenth Amendment—by administering an election plagued
until February 24, 2022. Tr. 1728:1–2. During that audit, the with irregularities that disproportionally affected voters of
Secretary of State's Office looked at the entire voter roll. color.” Doc. No. [582], ¶ 167. More specifically, in their
Tr. 1682:3–5. As of the trial, Mr. Germany testified that the Statement of the Case for purposes of the Pretrial Order,
Secretary of State is discussing the process for implementing Plaintiffs allege that “[t]he Exact Match policy and its
more frequent uses of SAVE to verify voters’ citizenship. Tr. application ... racially discriminate against Georgians of color
1710:2–5. It is a goal of the Secretary of State to be able to in violation of the Fifteenth Amendment.” Doc. No. [753-1],
run voter applicants’ alien registration numbers through the 1–2. As stated above, the challenged practices here are Exact
SAVE system in real-time. Tr. 1694:6–21. Match MIDR and Exact Match Citizenship. 76
The Court notes that Mr. Germany testified that the Secretary
of State had no defined timeline for implementing SAVE. Tr.
1. Legal Standard
1710:2–5, 1711:4–11, 15–20. However, Mr. Germany also
testified that “I would hope that we could get it up and running The Fifteenth Amendment provides in relevant part that “[t]he
within a month to three months, but I'm hesitant to say that right of citizens of the United States to vote shall not be denied
because you know, when you start dealing with data transfers or abridged by the United States or by any State on account of
and data formatting, we can run into things that we then have race, color, or previous condition of servitude.” U.S. Const.
to resolve. But I mean in my mind, I do think it's a one- amend. XV. “The Amendment bans racial discrimination in
month-to-three-month project.” Tr. 1711:15–20. Given that voting by both state and nation. It thus establishes a national
the Secretary of State is in the process of implementing SAVE, policy ... not to be discriminated against as voters in elections
the Court declines to order the Secretary of State to implement to determine public governmental policies or to select public
SAVE. 74 officials, national, state, or local.” Terry v. Adams, 345
U.S. 461, 467, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). “The
*73 The Eleventh Circuit cautioned federal judges on using design of the Amendment is to reaffirm the equality of races
injunctions with respect to election laws. See New Ga. at the most basic level of the democratic process, the exercise
Project, 976 F.3d at 1284. Here, Plaintiffs ask the Court to
issue an Order requiring the Secretary of State to implement of the voting franchise.” Rice v. Cayetano, 528 U.S. 495,
SAVE even though an MOU authorizes the Secretary of State 512, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000).
to use SAVE, a regulation requires the Secretary of State to
use SAVE, and officials in the Secretary of State's Office “[T]he Supreme Court has long recognized that evidence of
testified that they are in the process of implementing SAVE. a racially discriminatory motivation is required for Plaintiffs
Accordingly, the Court finds that issuing said injunction to prevail on a Fifteenth Amendment claim.’ ” Greater
would be “second-guessing or interfering with [the] State's Birmingham Ministries v. Sec'y of State for Ala., 992 F.3d
reasonable, non-discriminatory election rules.” New Ga. 1299, 1321 (11th Cir. 2021) (citing City of Mobile v.
Project, 976 F.3d at 1284. Specifically, it would require the Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 64 L.Ed.2d 47
Court to second-guess the Secretary of State's timeline for (1980), superseded by statute on other grounds as stated
implementing SAVE. 75 Thus, the Court finds that ordering in Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct.
the Secretary of State to implement SAVE is the type of 2752, 92 L.Ed.2d 25 (1986)). There are two prongs to
remedy that district courts are cautioned against awarding.

an abridgment analysis under the Fifteenth Amendment. showing that the Secretary of State's decision or act had a
Greater Birmingham Ministries, 992 F.3d at 1321 (citations
discriminatory purpose and effect. See Arlington Heights,
omitted). Plaintiffs must first show that the State's “decision
429 U.S. at 266, 97 S.Ct. 555 (“Determining whether
or act had a discriminatory purpose and effect.” Id. (citing
invidious discriminatory purpose was a motivating factor
Burton v. City of Belle Glade, 178 F.3d 1175, 1188–89 demands a sensitive inquiry into such circumstantial and
(11th Cir. 1999)). 77 “If Plaintiffs are unable to establish direct evidence of intent as may be available.”).
both intent and effect, their constitutional claims fail.” Id.
(emphasis omitted). “Once discriminatory intent and effect
are established, the second prong provides that ‘the burden a) Impact of the challenged policy
shifts to the law's defenders to demonstrate that the law would
have been enacted without this [racial discrimination] factor.’ In turning to the first prong, the Court is required “to start by
” Id. determining whether the challenged law has a discriminatory
impact and ‘whether it bears more heavily on one race than
*74 The Eleventh Circuit has held that “the fluid concept another.’ ” Greater Birmingham Ministries, 992 F.3d at 1321
of discriminatory intent is sometimes subtle and difficult
(citing Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555).
to apply.” Dowdell v. City of Apopka, 698 F.2d 1181, The Court notes that the Supreme Court has “cautioned that
1185 (11th Cir. 1983). The Court must “evaluate all available it would be rare to find a case involving ‘a clear pattern,
direct and circumstantial evidence of intent in determining unexplainable on grounds other than race’ and that, ‘[a]bsent
whether a discriminatory purpose was a motivating factor a pattern as stark as that, ... [discriminatory] impact alone is
not determinative, and the Court must look to other evidence.’
in a particular decision.” Burton, 178 F.3d at 1189. In
” Id. at 1322 (citing Arlington Heights, 429 U.S. at 266,
addition, in Village of Arlington Heights v. Metropolitan
97 S.Ct. 555).
Housing Development Corporation, 429 U.S. 252, 97 S.Ct.
555, 50 L.Ed.2d 450 (1977), the Supreme Court suggested
In the case sub judice, Plaintiffs have presented evidence
that relevant evidentiary factors include: (1) the impact of
of discriminatory impact of the Exact Match policy and
the challenged law; (2) the historical background; 78 (3) application of the MIDR and Citizenship Match challenged
the specific sequence of events leading up to its passage; practices through the testimony of their expert, Dr. Mayer.
(4) procedural and substantive departures; and (5) the See PX. 1278, PX. 2030, Tr. 398:2–10, Tr. 412:11–414:9.
contemporary statements and actions of key legislators. 79 The Court finds Dr. Mayer's methodology of analyzing the
Greater Birmingham Ministries, 992 F.3d at 1322 (citing state's voter files to be sound and credits his conclusion that,
as an empirical matter, “voters of color are overwhelmingly
Arlington Heights, 429 U.S. at 267–68, 97 S.Ct. 555).
and disproportionately in MIDR status compared to their
The Eleventh Circuit has supplemented the Arlington overall composition of the voter file.” Tr. 413:7–9 (Mayer).
Heights list to include the following additional factors: (6) The evidence at trial also showed that in 2018, the Secretary
the foreseeability of the disparate impact; (7) knowledge of of State's Office undertook an internal review of the voter
that impact; and (8) the availability of less discriminatory files and concluded that approximately 70% of applicants in
alternatives. Id. (citing Jean v. Nelson, 711 F.2d 1455, pending status for failed verification at DDS or SSA were
Black. PX. 1887, Tr. 1993:14–1994:18 (Harvey).
1485–86 (11th Cir. 1983), on reh'g, 727 F.2d 957 (11th
Cir. 1984), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. *75 As for citizenship match, the Court again credits the
2992, 86 L.Ed.2d 664 (1985)). methodology used by Dr. Mayer in analyzing the state's voter
files. Dr. Mayer's testimony showed that non-Hispanic white
registrants are far less likely to be flagged as noncitizens,
as compared to their overall representation in the voter file,
2. Issue and Challenged Practices: Exact
whereas voters of color are far more likely to be flagged as
Match (MIDR and Citizenship Match)
noncitizens than their overall representation in the voter file
The Court must now undertake a sensitive inquiry and reflects. PX. 2027, Tr. 388:12–390:23 (Mayer). The Court
determine whether Plaintiffs have met their burden of credits Dr. Mayer's conclusion that the citizenship verification

process overwhelmingly applies to voters of color. Tr. 398:7–

10 (Mayer). *76 Nevertheless, the Court credits the expert testimony of
Dr. McCrary, 83 who provided a history of voter registration
However, there is no clear pattern that would be and a historical account of Exact Match MIDR, beginning
determinative, i.e., Plaintiffs’ evidence, standing alone, does in 2002 with the adoption of HAVA by Congress and its
not establish a “pattern, unexplainable on grounds other than implementation by the fifty states. Tr. 213:2–4 (McCrary).
race.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555.
Plaintiffs’ own expert testified that there was substantial Dr. McCrary testified that the State of Georgia did not begin
variation in the MIDR match numbers among counties that to comply with the voter verification provisions of HAVA 84
could not be explained by race, and he suggested “different until “between 2007 and 2008”; it was his understanding
administrative practices in different counties, even with “from court rulings at the time ... that Georgia believed that
the same overall demographics.” PX. 2031, Tr. 416:9–19 because it required a full Social Security number” when
(Mayer). Dr. Mayer further testified that for Citizenship registering to vote “rather than just the last four digits of the
Match, the numbers “are suggestive of and consistent with Social Security number, it was not required to comply with
inconsistent administrative practices around and in different HAVA.” Tr. 216:6–14. 85
jurisdictions around the state.” Tr. 418:6–13.
The rulings that Dr. McCrary referenced were: (1) Schwier v.
After review of Dr. Mayer's testimony, the Court concludes Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005) (holding that the
that the discriminatory impact factor is not determinative Secretary of State's use of an applicant's full Social Security
and the Court must consider the remaining Arlington number violated both the Privacy Act and the Voting Rights
Heights factors to determine if Defendants intended to Act) and (2) Morales v. Handel, No. 08-cv-3172, 2008 WL
discriminate when instituting Exact Match (MIDR and 9401054, at *8 (N.D. Ga. Oct. 27, 2008) (holding that the
citizenship) practices. State's voter verification policy required preclearance under
Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c). 86
b) Historical background In 2007 and 2008, Georgia “followed the procedure

apparently required by HAVA, which was to have the voter
The Court now considers the historical background registration database, which the state had created by that
Arlington Heights factor. time, compared with the driver[’]s license database operated
by the Department of Driver Services, or DDS, through a
A stay-panel of the Eleventh Circuit recently cautioned that database matching procedure.” Tr. 216:19–217:2 (McCrary).
Secretary of State Handel “participated in a memorandum
the “ Arlington Heights’s ‘historical background’ factor of understanding with DDS to carry out that function.” PX.
should be ‘focus[ed] ... on the ‘specific sequence of events 1751, Tr. 217:3–5 (McCrary). Dr. McCrary further testified
leading up to the challenged decision’ rather than ‘providing that the State of Georgia sought individual citizenship
an unlimited lookback to past discrimination.’ ” 80 League status from the SSA, through a verification program called
of Women Voters of Fla., Inc. v. Fla. Sec'y of State, 32 F.4th “HAVV.” 87 Tr. 221:7–14 (McCrary). Dr. McCrary testified
1363, 1373 (11th Cir. 2022) (citation omitted). that there was an inspector general's report from within the
SSA that was “sharply critical of” HAVV's “exact match”
Tracing the specific sequence leading up to implementation methodology for which many of the “non-matches were in
of the Exact Match MIDR and Citizenship Verification fact citizens.” Tr. 221:19–24, 222:9 (McCrary). Dr. McCrary,
challenged practices is difficult because those policies are however, had no evidence that the State of Georgia received
not contained in a single law or other legal authority; the inspector general's report. Tr. 284:11–13 (McCrary).
rather, they arise out of a combination of statutory and
administrative procedure. Defendants also acknowledge that *77 Dr. McCrary testified that Georgia continued to use the
the Exact Match MIDR process has never been a duly same methodology after the inspector general's report until
adopted, published written policy 81 and has evolved over 2009, when the United States Department of Justice (“DOJ”),
time. 82 Tr. 1936:1–14, 1940:22–24 (Harvey). reviewing the State's preclearance application, objected to the

“exact match” system of voter verification. Tr. 222:10–23; see agreed to have an unlimited time period for curing a finding
also PX. 66. 88
In the objection letter, the DOJ laid out its of non-eligibility to register under the voting verification
reasons for rejecting the application as follows: procedures.” Tr. 257:19–23 (McCrary). 92 Later, the Georgia
legislature passed HB 268, which “essentially left in place
• The State's process “[did] not produce accurate and the ‘exact match’ methodology that had been employed in the
reliable information” such that “thousands of citizens past, but [the State] agreed to run the records of persons found
who [were] in fact eligible to vote under Georgia law to be ineligible through the HAVA Match again.” Tr. 258:12–
were flagged.” PX. 66 at 3.
15. 93
• The impact of the errors in the State's process fell
“disproportionately on minority voters.” PX. 66 at 4. *78 In 2018, there was a legal challenge to HB 268 that
resulted in the Honorable Eleanor Ross, United States District
• Applicants who were “Hispanic, Asian, or African Judge, issuing a preliminary injunction finding that plaintiffs
American [were] more likely than white applicants, showed “a substantial likelihood of success on the merits
to statistically significant degrees, to be flagged for of their claim that” the State had “violated the right to vote
additional scrutiny.” PX. 66 at 4. for individuals placed in pending [registration] status due to
citizenship.” PX. 1289, ¶¶ 100, 110 (citing Ga. Coal. for
The DOJ also found the process for verifying voter
the People's Agenda v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga.
registration information to be “seriously flawed” in a manner
2018)). Judge Ross ordered the state “to allow county officials
that “subject[ed] a disproportionate number of African
to permit individuals flagged and placed in pending status due
American, Asian, and/or Hispanic voters to additional and,
to citizenship to vote a regular ballot by furnishing proof of
more importantly erroneous burdens on the right to register
citizenship to poll managers or deputy registrars.” PX. 1289,
to vote.” PX. 66 at 4. The DOJ concluded “[t]hese burdens
¶ 110.
are real, are substantial, and are retrogressive for minority
voters.” PX. 66 at 4.
Dr. McCrary was aware that the 2018 case remains pending
and that the State of Georgia has changed its process since the
Dr. McCrary testified that Georgia later developed a revised
preliminary injunction. Tr. 285:18–20.
version of its voter verification procedures that “proposed
daily monitoring of all the decisions ... in which individuals
Dr. McCrary states in his report that according to former
were evaluated for eligibility to vote, and to provide quick
elections director Harvey, “the state responded to the changes
notification to any individuals who were ruled to be ineligible
required by Judge Ross's injunction by adopting HB 316
to vote.” Tr. 249:12–17 (McCrary); Tr. 1595:14–1596:2
(2019).” PX. 1289, ¶ 112. As stated in the Court's prior orders:
(Germany); PX. 76 at STATE-DEFENDANTS-00078199
(“Board of registrars should check the SSVRZ791R1 report
on a daily basis”). 89
HB 316, which was signed into law
by the Governor on April 2, 2019,
Dr. McCrary testified that in 2010, Georgia sought
amends the Georgia Election Code
preclearance through both administrative review and a
to, among other things, provide for
Section 5 declaratory judgment action in the District of
more notice under Georgia's voter-list-
Columbia of the revised version of its voter verification
maintenance process; to provide that a
procedures, which the DOJ “informed the court it did not find
voter registration is not automatically
objectionable in light of the changes the State had purportedly
rejected under the Exact Match policy;
made, and, therefore, that new version of the State's voter
to provide for the implementation
verification procedure was precleared.” Tr. 249:4–11. 90 of new voting machines; to prohibit
the superintendent of a county from
Dr. McCrary testified that there was another court case, changing a polling place less than
NAACP v. Kemp, involving Exact Match that the State of thirty days before a general primary
Georgia agreed to settle in February of 2017. Tr. 257:2– or general election; to authorize the
15 (McCrary). 91 In that settlement agreement, “the State Secretary of State to become a member

of a nongovernmental entity whose

purposes.” Arlington Heights, 429 U.S. at 267, 97 S.Ct.
purpose is to share and exchange
555. Further even if the initial actions of the State of Georgia
information in order to improve the
could be viewed as showing invidious intent (or purpose)
accuracy and efficiency of voter
based on the DOJ's preclearance objection, the Court notes
registration systems; and to change
that the DOJ eventually found a revised matching policy
the way which provisional ballots and
unobjectionable, and the DOJ thus precleared Georgia's
absentee ballots are counted.
matching policy. Thus, this Court hesitates to find invidious
purpose for a policy precleared by the DOJ. The fact that
Exact Match MIDR and Citizenship Verification continue
Doc. No. [68], 23–24; see also Doc. No. [612], 58–64. Dr. to evolve following litigation, settlement agreements, and
McCrary's expert testimony ended with the enactment of HB additional legislative action does not change this historical
316. background conclusion. Further, to the extent that it is proper
to consider the State's interests in its Exact Match MIDR and
Plaintiffs also ask the Court to consider their evidence Citizenship Verification policies as a part of the historical
concerning the 2014 and 2018 campaign statements of
background factor, 96 the Court notes that the evidence
then-Secretary Kemp, the 2014 New Georgia Project
at trial demonstrated legitimate state interests in proving
investigation, and the 2010 Dr. Dennard investigation as
that the registered voter is an actual person, weeding out
further historical background evidence of discriminatory
false registrations, effectuating the HAVA permissible forms
purpose. However, the Court has determined that the focus
of identification requirement for certain first-time voters,
of its Fifteenth Amendment historical background analysis is
2002, with the adoption of HAVA by Congress and Georgia's and preventing noncitizens from voting. 97 Tr. 3581:1–
implementation process in 2007 to 2008, as well as the 3, 3604:11–19, 3606:14–24, 3605:20–3606:8 (Harvey), Tr.
revised policies. Plaintiffs have not linked how the 2010 4165:7–11, 4146:13–17 (Germany).
and 2014–2018 events tie in for consideration. 94 In essence,

Plaintiffs’ position is weakened significantly by the fact that
the Dr. Dennard investigation (concerning absentee ballots), c) Specific sequence of events,
the New Georgia Project investigation (concerning forgeries and substantive departures
in voter registrations), and the campaign statements evidence
presented in this case are largely unconnected to the passage Next, the Court considers the specific sequence of events and
of the laws and actual policies in question. See Greater substantive departures factors. There is nothing in the record
Birmingham Ministries, 992 F.3d at 1324 (indicating that to show a sudden change in the sequences of events leading
the plaintiffs’ “position is weakened significantly by the fact up to the Exact Match policy “that would spark suspicion”
that the evidence presented” in the case at hand was “largely and the record shows no substantive departures from “usual
unconnected to the passage of the actual law in question”). procedures.” Arlington Heights, 429 U.S. at 269, 97 S.Ct.
555. Accordingly, this factor weighs in favor of Defendants
To this regard, the Court has given no consideration to and against a discriminatory purpose finding.
Plaintiffs’ evidence concerning Dr. Dennard and the New
Georgia Project in this section of the Opinion, as said
evidence does not concern the specific sequence of events
d) Contemporary statements of key officials
leading up to the creation, implementation, and revision of
the laws and policies at issue. 95 The Court will consider While not considered for the historical background factor, the
the campaign statements in detail in the “[c]ontemporary Court will consider Plaintiffs’ evidence concerning the 2014
statements of key officials” section of this Opinion. and 2018 campaign statements of then-Secretary Kemp in the
contemporary statements category as follows.
*79 After considering the historical background of Exact
Match MIDR and Citizenship Verification, the Court finds As noted above, Plaintiffs offer two campaign statements
that this factor is neutral. The historical background does of then-Secretary Kemp to demonstrate a discriminatory
not reveal “a series of official actions taken for invidious motivation. These statements are from 2014 and 2018. In
these statements, then-Secretary Kemp urged his supporters

to register voters that would vote for Republican candidates

concerning lawmaker statements in the Masterpiece
and encourage them to vote in the same way that Democrats
Cakeshop case, the Court perceives that the law is unsettled
had previously done with minority voters. DX. 740, PX.
on consideration of statements, such as the ones at issue
2051, Tr. 86:9–17, 88:9–17, 92:18–22 (Kemp Dep.). At a
involving campaign speech.
2018 campaign fundraiser, then-Secretary Kemp expressed
concern about early voters primarily voting for Democrats
In the absence of binding authority, the Court deems it proper
and the number of absentee ballot requests. PX. 2051, Tr.
to overrule Defendants’ objection as to consideration of the
108:2–8, 109:14–1, 110:1–4, 110:11–15 (Kemp. Dep.). These
2014 and 2018 campaign statements. To the extent that it
statements were not contemporaneous with the adoption of
is proper to consider the campaign statements at issue, the
the challenged MIDR and Citizenship Match practices. See
Court after weighing the evidence and considering credibility,
Greater Birmingham Ministries, 992 F.3d at 1321 (citing
does not find that the speeches support a finding of “a
Arlington Heights, 429 U.S. at 267–68, 97 S.Ct. 555). wholesale intent” by then-Secretary Kemp to discriminate
against minority voters as it relates to the Exact Match policy.
The Court recognizes that Defendants objected to the Greater Birmingham Ministries, 992 F.3d at 1323. This Court
evidentiary admission of Governor Kemp's deposition is “confined to an analysis of discriminatory intent as it relates
testimony concerning the speeches at issue on the ground to” the Exact Match Policy and the statements Plaintiffs
that “[c]ampaign speech is not relevant.” Doc. No. [755-7], identify were not made about the matching policies at issue
12. 98 In opposition, Plaintiffs assert that “as the Secretary in this case, nor are they temporally connected to any of the
of State and Chair of the State Election Board, Governor periods when the policies were implemented or revised. See
Kemp was chiefly responsible for the administration of Greater Birmingham Ministries, 992 F.3d at 1323 (“Plaintiffs
Georgia's elections during the relevant time period. Therefore, provide no evidence that [the senator's] comment was made at
statements he made throughout that same time period in his the same time, or even during the same session, as the passage
capacity as a candidate for office are certainly relevant to the of [law at issue].”).
constitutionality of his actions.” Doc. No. [755-7], 12.
The stay-panel in the recent League of Women Voters of
*80 There does not appear to be a case on point that Florida case also indicated that it is improper to fail to
addresses the exact context that is presented in the case “properly account for what might be called the presumption
sub judice. The Court also recognizes that in the non-voting of legislative good faith” in a Fifteenth Amendment analysis.
rights class of cases/discrimination context, the Supreme League of Women Voters of Fla., 32 F.4th at 1373. In
Court has noted disagreement among the Justices as to support of the presumption of good faith statement, the stay-
whether statements made by lawmakers may properly be panel cited case law that dealt with state legislatures. Id.
taken into account in determining whether a law intentionally (citing Abbott v. Perez, ––– U.S. ––––, 138 S. Ct. 2305,
discriminates on the basis of religion. See Masterpiece 201 L.Ed.2d 714 (2018)). Plaintiffs in the case sub judice
Cakeshop, Ltd. v. Colo. C.R. Comm'n, ––– U.S. ––––, 138 object to applying such a presumption. Plaintiffs assert that
S. Ct. 1719, 1730, 201 L.Ed.2d 35 (2018) (considering the presumption of good faith is restricted to the intent of
the legislature (Doc. No. [854], ¶ 63) and is irrelevant to
religious discrimination); 99 see also Trump v. Hawaii, this case that involves an uncodified policy. However, this
––– U.S. ––––, 138 S. Ct. 2392, 2418–20, 201 L.Ed.2d 775 Court's independent research shows that courts have held
(2018) (considering campaign speech as extrinsic evidence that the good faith presumption extends to non-legislative
that was not determinative of the Court's final ruling when public officials, such as the Secretary of State. See, e.g.,
analyzing whether a policy “address[es] a matter within the
core of executive responsibility” and when applying rational Thompson v. Hous. Auth. of City of Miami., 251 F.
basis review to determine whether a policy “can reasonably Supp. 121, 124 (S.D. Fla. 1966) (“The presumption that
be understood to result from a justification independent of public officials will in good faith discharge their duties and
unconstitutional grounds”). observe the law is a very strong presumption, and will
prevail until overcome by clear and convincing evidence
In reviewing the limited authority concerning campaign to the contrary.”) (citing Barnes v. City of Gadsden, 174
speech and the Supreme Court Justices’ noted disagreements F. Supp. 64 (N.D. Ala. 1958)). Accordingly, the Court
will extend a good faith presumption in considering then-

Secretary Kemp's statements. Said presumption has not

Arlington Heights factors weigh in Plaintiffs’ favor,
been rebutted or overcome by Plaintiffs’ evidence. 100 the majority of the factors weigh against Plaintiffs or are
Accordingly, the contemporary statements factor weighs in neutral—or not determinative of whether a discriminatory
favor of Defendants. purpose was a motivating factor in the decision to institute
Exact Match MIDR and Citizenship Verification laws and
policies. In addition, there are legitimate State interests in
e) Foreseeability and knowledge of the disparate impact Exact Match MIDR and Citizenship Verification laws and
policies. Accordingly, the Court finds that Plaintiffs have
*81 Next, the Court considers the foreseeability and failed to show that the Exact Match MIDR and Citizenship
knowledge of the disparate impact factors. The evidence Verification laws and policies were enacted with a racially
at trial showed that the Secretary of State's Office is discriminatory intent or purpose. As such, this Court does
aware that its DDS citizenship verification process affects not reach the second prong of the Fifteenth Amendment
recently naturalized citizens rather than native-born citizens. analysis to consider whether Defendants have demonstrated
Tr. 2036:9–2040:14 (Harvey). Georgia was put on notice that the laws would have been enacted without the racial
of the problems with its voter verification procedure as discrimination factor. “[W]ithout proof of discriminatory
early as 2009, when the Department of Justice objected to intent, a generally applicable law with disparate impact is
Georgia's adoption of an “exact match” methodology for
not unconstitutional.” Crawford v. Marion Cnty Election
voter verification in implementing HAVA. PX. 66 at 4. 101 Bd., 553 U.S. 181, 207, 128 S.Ct. 1610, 170 L.Ed.2d 574
The Secretary of State's own internal review in 2018 showed (2008) (Scalia, J., concurring) (internal citation omitted). The
that 70% of applicants in pending for failed verification at Court finds against Plaintiffs and in favor of Defendants on
DDS or SSA were Black. Tr. 1993:14–1994:18 (Harvey); PX. Plaintiffs’ Fifteenth Amendment claims.
1887. This factor weighs in favor of Plaintiffs and constitutes
circumstantial evidence of intent.
D. Count III: Equal Protection
In their Complaint and Statement of Claim for purposes of the
Pretrial Order, Plaintiffs raise two different equal protection
f) Availability of less discriminatory alternatives
claims. The first claim challenges the same procedures
Last, the Court considers the availability of less as Counts I and II of their Second Amended Complaint.
discriminatory alternatives. Dr. Mayer's unrebutted testimony More specifically, Plaintiffs allege that “[a]cting under color
was that states have other options to implement HAVA of state law, Defendants 102 deprived Georgians of the
verification for identity that do not require an exact match. right to vote on an equal basis, as secured by the Equal
The most common alternative is typically referred to as Protection Clause, by administering an election plagued
contextual or probabilistic matching, which accounts for the with irregularities that disproportionately affected voters of
possibility of differences in a small number of characters color.” Doc. No. [582], ¶¶ 181–182; see also Doc. No.
between the databases without it being a different person. PX. [753-1], 1–2 (“The Exact Match Policy and its application ...
1278 at 10, Tr. 358:16–359:7 (Mayer). The Court also credits racially discriminate against Georgians of color in violation
Dr. Mayer's unrebutted testimony that at least three states of the Fifteenth Amendment and the Equal Protection
(California, Massachusetts, and Wisconsin) rely exclusively Clause of the Fourteenth Amendment.”). Plaintiffs’ second
on a registrant's attestation of citizenship, without verifying equal protection challenge concerns uniformity and residency
citizenship status. Tr. 363:24–364:4 (Mayer). This factor (or geographic discrimination). More specifically, Plaintiffs
weighs in favor of Plaintiffs and constitutes circumstantial allege that “Georgia's voting system ... violates Equal
evidence of intent. Protection because voters are subject to arbitrary and
inconsistent differences in rules, processes, and burdens
**** depending on where voters happen to reside”—resulting in
“different elections systems in different counties in Georgia.”
In sum, after evaluating available direct and circumstantial Doc. No. [582], ¶¶ 186–187; see also Doc. No. [753-1], 2
evidence of intent and weighing the evidence and making (“The Exact Match Policy and its application ... discriminate
credibility determinations, the Court finds that while some against Georgians based on where they live and based

on naturalized citizenship status in violation of the Equal the same analysis to both claims.”). Accordingly, for the
Protection Clause of the Fourteenth Amendment .... The reasons set forth in the Court's analysis concerning Count II,
non-uniform and improper practices regarding in-person Plaintiffs’ Count III equal protection (racial discrimination)
cancellation of absentee ballots ... discriminate against claim concerning voting procedures (specifically, “Exact
Georgians based on where they live, in violation of the Equal Match”) fails.
Protection Clause of the Fourteenth Amendment.”).
3. Geographic Discrimination
1. Legal Standard
As indicated above, Plaintiffs allege that “Georgia's voting
*82 The Fourteenth Amendment provides in relevant part system ... violates [the] Equal Protection [Clause] because
that “[n]o State shall ... deny to any person within its voters are subject to arbitrary and inconsistent differences
jurisdiction the equal protection of the laws.” U.S. Const. in rules, processes, and burdens depending on where voters
amend. XIV. “[T]he Equal Protection Clause confers a happen to reside,” resulting in “different elections systems
substantive right to participate in elections on an equal basis in different counties in Georgia.” Doc. No. [582], ¶¶ 186–
187. Plaintiffs further allege that “Defendants have allowed
with other qualified voters.” Bolden, 446 U.S. at 62, 100
the voting processes in the 159 counties in Georgia to
S.Ct. 1490.
devolve into an arbitrary and inconsistent web of actual laws,
erroneous interpretations of laws, and local rules that are often
unannounced until applied to a voter.” Id. ¶ 188. The specific
2. Racial Discrimination systems that Plaintiffs allege violate the Equal Protection
Clause are absentee ballot cancelations and Exact Match.
“A successful equal protection claim under the Fourteenth
Amendment requires proof of both an intent to discriminate
There does not appear to be binding Supreme Court or
and actual discriminatory effect.” Greater Birmingham
Eleventh Circuit precedent that provides an applicable
Ministries, 992 F.3d at 1224 (citing Davis v. Bandemer, standard; however, the Sixth Circuit has held that “[a] plaintiff
478 U.S. 109, 127, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986)). may state an equal-protection claim by alleging that lack of
“Once discriminatory intent and effect are established, the statewide standards results in a system that deprives citizens
second prong provides that “ ‘the burden shifts to the law's
of the right to vote based on where they live.” Northeast
defenders to demonstrate that the law would have been
Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 635
enacted without this [racial discrimination] factor.’ ” ” Id. at
1225 (citations omitted). (6th Cir. Sept. 13, 2016); see also Bush v. Gore, 531 U.S.
525, 104–05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (“The
Plaintiffs’ equal protection claim (racial discrimination right to vote is protected in more than the initial allocation of
allegations) concerning the procedures challenged in Count the franchise. Equal protection applies as well to the manner
II of the Second Amended Complaint is subsumed in of its exercise. Having once granted the right to vote on equal
the same analysis that the Court applied to the Fifteenth terms, the State may not, by later arbitrary and disparate
Amendment claim pertaining to Count II of this Opinion. Cf. treatment, value one person's vote over that of another.”). 103
NAACP v. Austin, 857 F. Supp. 560, 572 (E.D. Mich. 1994)
(“[W]e believe that the Fifteenth Amendment's prohibition *83 The central question in a lack-of-uniform standards
against purposeful discriminatory denial or abridgement by claim appears to be whether the state lacks “adequate
government of the freedom to vote on account of race, color, statewide standards” when implementing its voting laws,
or previous condition of servitude is subsumed in the analysis
practices, or procedures. Cf. Husted, 837 F.3d at 635
required under the Fourteenth Amendment's equal protection
(citations omitted).
clause.” (internal quotations omitted)); cf. also Thompson v.
Merrill, 505 F.Supp.3d 1239, 1254 (M.D. Ala. 2020) (“Both
a Fourteenth Amendment Equal Protection Clause claim In addition, as stated in Husted, “[a]rguable differences in
and a Fifteenth Amendment discrimination claim require how elections boards apply uniform statewide standards to the
proof of intent to discriminate. Therefore, the Court applies innumerable permutations of ballot irregularities, although

perhaps unfortunate, are to be expected, just as judges in contained the incorrect information, Plaintiffs have provided
sentencing-guidelines cases apply uniform standards with no evidence that the Secretary of State knowingly allowed
counties to implement different practices and procedures for
arguably different results.” Id. at 636.
canceling absentee ballots following the passage of HB 316.
To the contrary, there is evidence that the Secretary of State
In the case sub judice, the geographical differences in
conducted webinars, presentations, conferences, phone calls,
applying Exact Match and absentee ballot cancelations
and issued election bulletins in 2020. See, e.g., Tr. 2119:16–
policies are more akin to the innumerable permutations
22, 2121:4–5. When asked specifically about whether that
of ballot irregularities as opposed to a lack in state-wide
training included information about absentee ballots, Mr.
standards.
Harvey testified that he did not recall issuing an election
bulletin regarding absentee ballot cancelation procedures
following the passage of HB 316 (Tr. 2124:13–20), and the
a) Absentee ballot cancelations Secretary of State did not track which counties attended
webinars or reviewed the presentations regarding absentee
First, there is very little record evidence that there were
ballot cancelation procedures (Tr. 1889:3–1890:23).
geographic differences in the cancelation procedures for
absentee ballots. Plaintiffs presented direct evidence of seven
*84 The evidence also shows that at least two 2019 trainings
voters who experienced irregularities in canceling their
run by the Secretary of State's Office—one headed by Mr.
absentee ballots at the polls. See supra Section II(B)(1)(c)
Rayburn and another by Ms. Frechette—were explicitly
(1). These seven instances occurred in six out of Georgia's
dedicated to the changes to election administration in the
159 counties. Id. 104 Given the relatively few occurrences wake of HB 316's passage. PX. 1076; PX. 1189. Though
of these issues in a relatively small number of counties, the Plaintiffs argue that these optional trainings address absentee
Court finds that they are not illustrative of a lack of uniform ballot cancelation only in a “cursory manner” (Doc. No.
standards. Accordingly, Plaintiffs failed to carry their burden [854], ¶ 888), this Court cannot agree. Ms. Frechette's
in establishing that the training on absentee ballot cancelation 2019 presentation in particular appears to dedicate sufficient
violated the Equal Protection Clause. space to proper absentee ballot cancelation procedures in
various scenarios. PX. 1189 at 23–25. Mr. Harvey's testimony
Secondly, Mr. Harvey testified that “we did a lot of training in regard to providing information on the “current law”
on the current law at the time. And I think that's where throughout 2020 and the two 2019 trainings on election
95 percent of their focus was on, is making sure that they administration post-HB 316 demonstrate that the Secretary
received the latest information, because we're having to do of State, rather than deliberately turning a blind-eye to
-- in 2020, we had to adjust and make so many changes.” inconsistent procedures among different counties, took steps
Tr. 2122:12–17. With respect to the types of training, Mr. to ensure that there were uniform standards for absentee
Harvey testified that “I can say that as far as when we train ballot cancelations after the passage of HB 316. Tr. 2122:12–
counties in person, at conference and at webinars, we were 2123:22.
using the new information” from HB 316. Tr. 2119:16–22.
Additionally, “[t]he webinars that we do, the presentation The Court finds that the relatively few incidents in the
at the conferences, the election bulletins [ ] have updated record of voters who experienced difficulties in canceling
information.” Tr. 2121:4–5. their absentee ballots, coupled with the evidence regarding
the Secretary of State's training evidence that the Secretary
Mr. Harvey did admit that he was aware counties in of State does promulgate uniform standards regarding the
Georgia were using several different procedures or practices cancelation of absentee ballots.
with respect to canceling absentee ballot. Tr. 2109:22–25.
However, when he was asked to clarify what he knew
about the different practices that were being used, Mr.
b) Exact Match
Harvey only discussed county practices that preceded HB
316. Tr. 2110:6–18. Mr. Harvey did not testify to being With respect to Exact Match, the Court also finds that there
aware of differing practices post-HB 316. Other than the is not sufficient evidence of a lack of uniform standards.
poll workers’ manual and the certification materials that At summary judgment, the Court found that Plaintiffs’

geographic equal protection claim survived because the DDS when preparing his report. Tr. 427:15–21. Additionally,
evidence was unclear as to whether “county officials [were] Dr. Mayer agreed that he did not know what caused any
guided by clear rules.” Doc. No. [617], 83. However, the individual to be flagged by the MIDR matching process. Tr.
evidence adduced at trial established that there were sufficient 503:9–12. Dr. Mayer conceded that the error rate could be
standards for implementing Exact Match. Tr. 3574:4–19; Tr. due to the concentration of voters who registered by mail. Tr.
1192:2–3. 489:1–490:4. When an individual submits a voter registration
application either in person or via mail, an election official
As stated supra, the process for Exact Match is as follows. is responsible for inputting that information into eNet. Tr.
First, an applicant's information is uploaded to eNet. Tr. 1957:17–1958:3.
1190:23–1191:7. Second, the information is transmitted to
DDS, which determines whether it has information for the Similarly, Mr. Harvey testified that some of the causes of
applicant or if the applicant's information needs to be sent MIDR could be due to a typing error by an election official.
to SSA. Tr. 1194:20–1196:18. Third, if a record has certain Id. Mr. Harvey also testified that when an application is
uncurable defects, such as an invalid date of birth or non- flagged by DDS for a matching failure, the counties are
numeric characters in the last four digits of the applicant's trained to doublecheck their data entry. Tr. 1958:9–1960:2.
social security number, DDS will stop the verification Mr. Harvey specifically stated that training documents list
process, flag, and return the application to the Secretary of doublechecking the data entry as a best practice. 1959:5–
State. Tr. 1196:19–1197:15; PX. 1753. Fourth, for records that 1960:2.
it can process for verification, DDS checks certain criteria in
the record against the information it has on file to determine The Court finds that Plaintiffs have not established that
if it is a match. PX. 1753 at 1; see also Tr. 1197:16–1199:18. the error rate in the Exact Match process is caused by
Finally, after it has performed the verification process, DDS the Secretary of State's failure to promulgate uniform
transmits the voter information back to the Secretary of standards. 105 On cross-examination, Dr. Mayer conceded
State with a determination of whether the information was that the error rate could be attributed to the number of
verified or not and, if not, the reasons therefor. Tr. 1191:11– mail-in registration applications received by the counties. Tr.
21; 1199:19–1200:7; 3574:4–19; see also PX. 1751; DX. 489:1–490:4. However, the Court finds that Defendants have
42 ( O.C.G.A. § 21-2-220.1(b) (revised version of HAVA provided uniform training documents aimed at minimizing
Match policy enacted by HB 316). these errors. Additionally, Dr. Mayer conceded that DDS
conducts the actual match against its database. Tr. 427:15–
Dr. Mayer testified that, with respect to MIDR, “as a county 21. DDS is a statewide agency, and it is unclear from the
has fewer voters of color, registrants of color, that the pending record how its matching process would result in disparities in
rate tends to go down. But it also shows that even for counties different counties throughout the state. Accordingly, the Court
with very similar demographics ... you actually see huge finds that Plaintiffs have not established a lack of uniform
differences in the pending rate, often differences that exceed a standards concerning MIDR.
factor of ten that, again, are suggestive of and consistent with
inconsistent administrative practices around and in different Accordingly, the Court finds that Plaintiffs have not carried
jurisdictions around the state.” Tr. 418:3–13. Similarly, with their burden in establishing that Exact Match violates the
respect to citizenship matching, Dr. Mayer opined that there Equal Protection Clause because there is insufficient evidence
is “a relationship between the racial composition of a county to show that the Secretary of State failed to promulgate
and the rate of pending registrations,” which shows “the rate uniform standards for matching registrants.
of pending registrations increases as the percentage of African
American registrants goes up. PX. 1278, 31. Dr. Mayer
E. Count V: Section 2 of the Voting Rights Act
concluded that these differences were caused by “either a
Plaintiffs raise a vote-denial claim in Count V of their Second
lack of data validity checking protocols or the fact that those
Amended Complaint concerning Section 2 of the Voting
protocols were not effectively implemented.” Tr. 418:21–23.
Rights Act. Doc. No. [582], ¶ 204. 106
*85 On cross-examination, however, Dr. Mayer
acknowledged that the actual matching is conducted by the Section 2 of the Voting Rights Act provides:
DDS, and Dr. Mayer did not speak with any individuals at

qualifications of voting. Because neither case is directly on

(a) No voting qualification or prerequisite to voting or point, out of an abundance of caution, the Court will address
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner both the Brnovich guideposts and the Gingles Senate
which results in a denial or abridgement of the right of factors.
any citizen of the United States to vote on account of
race or color, or in contravention of the guarantees set When applying the relevant factors, the Court will give
forth in section 10303(f)(2) of this title, as provided in greater weight to the Brnovich guideposts than the
subsection (b).
Gingles Senate factors. “ Brnovich called into question
*86 (b) A violation of subsection (a) is established if, the usefulness of some of the Gingles factors in evaluating
based on the totality of circumstances, it is shown that a vote denial claim under § 2 of the VRA and offered alternate
the political processes leading to nomination or election factors that a court may consider.” United States v. Georgia,
in the State or political subdivision are not equally 574 F. Supp. 3d 1245, 1252 n.5 (N.D. Ga. 2021); see also
open to participation by members of a class of citizens Sixth Dist. of Afr. Methodist Episcopal Church v. Kemp,
protected by subsection (a) in that its members have 574 F. Supp. 3d 1260, 1277 (N.D. Ga. 2021) (including a
less opportunity than other members of the electorate
to participate in the political process and to elect similar discussion about Brnovich’s greater relevance to
representatives of their choice. The extent to which vote denial claims under Section 2 of the VRA). Regulating
members of a protected class have been elected to office voter registration and poll access is more akin to counting
in the State or political subdivision is one circumstance and collecting votes in Brnovich than to reapportionment
which may be considered: Provided, That nothing in
and voter dilution in Gingles. See Sixth Dist. of Afr.
this section establishes a right to have members of
Methodist Episcopal Church, 574 F. Supp. 3d at 1276–77 &
a protected class elected in numbers equal to their
n.16 (stating that when a court considers vote denial claims,
proportion in the population.
the Brnovich guideposts generally are more relevant than
52 U.S.C. § 10301 (emphasis in statute). “The key the Gingles factors because Brnovich was a vote denial
requirement is that the political processes leading to
case and Gingles was a vote dilution case).
nomination and election (here, the process of voting) must be
‘equally open’ to minority and non-minority groups alike.”
The Court will first discuss each of the Brnovich
Brnovich, 141 S. Ct. at 2337. Because § 2(b) defines what
guideposts: (1) the size of the burden imposed; (2) the
is needed to show a violation of § 2(a), as the Supreme Court
deviation from standard practice in 1982; (3) the size of
recently clarified, “equal openness and equal opportunity are
the disparity of the burden; (4) other available means of
not separate requirements. Instead, equal opportunity helps to
voting; and (5) the strength of the state interest. The Court
explain the meaning of equal openness.” Id. at 2337–38.
will then discuss the following relevant Gingles Senate
factors: (1) the history of official discrimination in Georgia;
Thus, the Court proceeds with a totality of the circumstances
(2) whether there is racially polarized voting in Georgia; (3)
analysis of Plaintiffs’ Exact Match claim under the relevant
voting practices and procedures in Georgia; (4) discrimination
Brnovich guideposts and Gingles Senate factors. The outside the voting context in Georgia; (5) racial appeals in
Court notes that neither Brnovich nor Gingles is campaigns in Georgia; and (6) minority candidate success
directly applicable to the challenged practices in this case. In in Georgia. With the benefit of Brnovich’s guidance, the
Brnovich, the Supreme Court was addressing regulations Court's analysis remains focused on the “touchstone” of
that impacted the counting and collection of votes. Id. at Section 2 claims: “equal openness” to voting. Brnovich,
141 S. Ct. at 2338.
2330. And in Gingles, the Supreme Court was addressing
reapportionment of votes. Gingles, 478 U.S. 30, 106
S.Ct. 2752, 92 L.Ed.2d 25. The case sub judice addresses

(1). With respect to citizenship matching, the Court finds that

this guidepost weighs against a Section 2 violation.
1. Analysis of the Applicable Factors and Guideposts
a) Brnovich guideposts (2) Deviation from standard practice in 1982
Second, Brnovich suggests examination of the “degree to

(1) Size of the burden imposed
which a [challenged] voting rule departs from what was
standard practice when § 2 was amended in 1982” since,
*87 In Brnovich, the Supreme Court recognized that after all, it is doubtful “that Congress intended to uproot
“every voting rule imposes a burden of some sort.” 141 facially neutral time, place, and manner regulations that have
S. Ct. at 2338. The Supreme Court also stated: “because a long pedigree or are in widespread use in the United States.”
voting necessarily requires some effort and compliance with Brnovich, 141 S. Ct. at 2339.
some rules, the concept of a voting system that is ‘equally
open’ and that furnishes an equal ‘opportunity’ to cast a ballot
must tolerate the ‘usual burdens of voting.’ ” Id. (citation (a) MIDR
omitted). Although the Supreme Court did not enumerate
what acts constitute “usual burdens of voting,” it did state that The Court finds that Exact Match, with respect to MIDR, is
having to identify one's own polling place and then having to a substantial departure from the law at the time of the 1982
travel there to vote are “unremarkable burdens” that do not congressional amendment to Section 2 of the Voting Rights
Act. In 1982, Georgia law required registrants provide their
exceed the usual burdens of voting. Id. at 2344. The Court
local registrar or deputy registrar “proper identification” at the
further stated that “[m]ere inconvenience cannot be enough
107 time of registration. 1981 Ga. L. p. 1719 (H.B. 405). 108 Such
to demonstrate a violation of § 2.” Id. at 2338.
“proper identification” could be satisfied by “exhibiting a
valid driver's license, birth certificate, or any other document
Finally, the Court notes that in conducting its burden analysis
as will reasonably reflect the true identity of the applicant.” Id.
in Brnovich, the Supreme Court reviewed evidence that
showed that the state “made extensive efforts to reduce [the In 2002, some twenty years following congressional
burden's] impact on the number of valid votes ultimately amendment of Section 2 in 1982, Congress enacted HAVA.
cast,” such that the identified burdens were “moderate” when 52 U.S.C. § 21803. HAVA requires the secretaries of state to
conduct an electronic comparison of voter rolls to information
considering the process as a whole. Brnovich, 141 S. Ct.
at 2344. held by DDS, 52 U.S.C. § 21083(a)(5)(B)(i), and indicates
the types of proof a first-time registrant can use to vote, 52
U.S.C. § 21083(b)(2)(A).
(a) MIDR
Georgia's verification requirements under Exact Match are
The Court finds that the size of the burden imposed by MIDR narrower and more exacting than the 1982 Georgia law and
is slight. See supra, Section II(B)(4)(a)(1). With respect to HAVA. Neither the 1982 Georgia law nor HAVA requires
MIDR, the Court finds that this guidepost weighs against a comparison of a registration applicant's first name, last name,
Section 2 violation.
date of birth, or citizenship information. 52 U.S.C. §
21083(a)(5); 1981 Ga. L. p. 1719 (H.B. 405). Neither law
requires the identifying information to match exactly. Id.
(b) Exact Match Citizenship Additionally, neither law specifies the consequences for
failure to match. Id.
The Court finds that the size of the burden imposed by
citizenship matching is limited. See supra Section II(B)(4)(b)
*88 With respect to MIDR, Exact Match as it exists today,
cannot be fairly characterized as an extension of the 1982

Georgia law, HAVA, or longstanding general verification status. Of those in MIDR status, 69.4% were Black, 11.4%
requirements. Accordingly, this guidepost weighs in favor of were white non-Hispanic, 5.7% were Hispanic, and 3.3%
finding a Section 2 violation. were Asian or Pacific Islander. Id. at 18. These numbers
account for 2.03% of Black registered voters, 0.19% of white
non-Hispanic registered voters, 1.50% of Hispanic registered
voters, and 1.19% of Asian or Pacific Islander registered
(b) Exact Match Citizenship
voters. Id. at 20. The Court finds that the disparate impact of
The Court finds that there is not a substantial deviation MIDR on voters is de minimis.
in Georgia's practice of matching noncitizens since 1982.
The Georgia Constitution makes United States citizenship In Brnovich, there was evidence in the record that the
a requirement of voter registration. See Ga. Const. art. challenged practice impacted 0.15% of voters. Id. at 2334.
2, sec. 1, par. 2. This requirement existed in the 1976
Additionally, in Brnovich, a little over 1% of Black voters,
Constitution. Ga. Const. art. II, sec. I, par. II (1976). 1% of Hispanic voters, 1% of Native American voters,
The use of a birth certificate as a means of establishing and 0.5% of non-Hispanic white voters were impacted by
identification—and citizenship—speaks to the State's policy
of trying to enforce the citizenship requirement prior to Arizona's law. Id. at 2344. In Brnovich, the Supreme
1982. Accordingly, the Court finds that this guidepost weighs Court held that the disparate impact of Arizona's law did not
against finding a Section 2 violation. lead to a finding that voting was not equally open to all.
Brnovich, 141 S. Ct. at 2340–41.
The Supreme Court stated, “[a] policy that appears to work

(3) Disparate impact
for 98% or more of voters to whom it applies—minority and
non-minority alike—is unlikely to render a system unequally
In Brnovich, the Supreme Court stated that “[t]he size of
any disparities in a rule's impact on members of different open.” Id. at 2345. The percentages of voters impacted
racial or ethnic groups is ... an important factor to consider.” by the Arizona law in Brnovich are analogous to those in
141 S. Ct. at 2339 (emphasis added). It cautioned that the case sub judice. Ninety-eight percent or fewer voters are
small disparities may not necessarily show “that a system impacted by MIDR, with the exception of Black voters where
is not equally open or that it does not give everyone 97.97% of Black voters were not impacted. The Court finds
that the impact of MIDR is like the impact of the Arizona
an equal opportunity to vote.” Id. The Supreme Court
law and does not render the election system unequally open.
further advised that “[w]hat are at bottom very small
Accordingly, the Court finds that this guidepost weighs
differences should not be artificially magnified.” Id. And against finding a Section 2 violation with respect to MIDR.
it criticized the practice of “dividing one percentage by
another,” which can create a “distorted picture.” Id. at 2345
(citing Frank v. Walker, 768 F.3d 744, 752 n.3 (7th Cir. (b) Exact Match Citizenship
2014)). 109 *89 The Court also finds that the disparate impact of
citizenship matching is small. Dr. Mayer's report indicates
that 3,037 registrants were placed in pending status because
(a) MIDR of a citizenship flag. PX. 2178, 22. This number accounts
for roughly 0.045% of registered Georgia voters. Id. Of
The Court finds that the disparate impact of MIDR is those in citizenship verification pending status, 31.6%
relatively small. Dr. Mayer's report indicates that 60,477 were Black, 13.0% were white non-Hispanic, 20.9% were
registrants were in MIDR status as of January 2020. PX. Hispanic, and 23.2% were Asian or Pacific Islander. Id.
1278, 18. The report also indicates that as of December 2019, These numbers account for approximately 0.048% of Black
Georgia had 6,798,488 registered voters. Id. at 17. Thus, registered voters, 0.011% of white non-Hispanic registered
roughly 0.89% of registered Georgia voters are in MIDR voters, 0.29% of Hispanic registered voters, and 0.44% of

Asian or Pacific Islander registered voters. 110 Id. at 17, 22. citizenship verification are used to prevent fraud in the
Dr. Mayer reports that in January of 2022, roughly 3,073 registration process.
Georgia registrants were placed in pending status for being
noncitizens. Under the 2014-2018 American Community Both the Supreme Court and the Eleventh Circuit have held
Survey 457,179 naturalized foreign-born citizens were living that preventing fraud in the registration process is a legitimate
in the State of Georgia. Id. Assuming that all individuals state interest. “One strong and entirely legitimate state interest
flagged as noncitizens were naturalized foreign born citizens, is the prevention of fraud.” Brnovich, 141 S. Ct. at 2340.
were eligible to vote, and the overall population has not “[D]eterring voter fraud is a legitimate policy on which to
increased between 2014-2018, 0.67% of all naturalized enact an election law, even in the absence of any record
citizens are in pending MIDR status. Id. at 22. evidence of voter fraud.” Greater Birmingham Ministries, 992
F.3d at 1334; see also Purcell, 549 U.S. at 4, 127 S.Ct. 5
Under the Supreme Court's analysis in Brnovich, a (internal quotation marks omitted) (“A State indisputably has
challenged practice that impacts 0.045% of the total a compelling interest in preserving the integrity of its election
population, less than one percent of any minority group, and
process.”); Crawford, 553 U.S. at 196, 128 S.Ct. 1610
less than one percent of naturalized citizens, does not show
(“There is no question about the legitimacy or importance
that that voting system is not equally open. Accordingly,
of the State's interest in counting only the votes of eligible
the Court finds that this guidepost weighs against finding a
Section 2 violation. voters.”); Eu, 489 U.S. 214, 231, 109 S.Ct. 1013, 103
L.Ed.2d 271 (“A State indisputably has a compelling interest
in preserving the integrity of its election process.”).
(4) Other available means
At trial, Defendants presented evidence that tied the
Next, the Court looks to Georgia's election system “as legitimate interest in preventing fraud to the challenged
practices. The Supreme Court stated that “Section 2 does
a whole.” Brnovich, 141 S. Ct. at 2339. Brnovich
not require a State to show that its chosen policy is
explained that “where a State provides multiple ways to
absolutely necessary or that a less restrictive means would
vote, any burden imposed on voters who choose one of the
available options cannot be evaluated without also taking into not adequately serve the State's objectives.” Brnovich,
111
account the other available means.” Id. Unlike the policies 141 S. Ct. at 2345–46. With respect to MIDR, Mr.
Harvey testified “MIDR is, my understanding of it is,
challenged in Brnovich, Exact Match does not affect only because you didn't verify. You have to show something
one method of voting among several; there are no alternative that shows you're the actual person. And that's the – I
means of registering to vote that avoid Exact Match. While guess protection from registering a bunch of alias people
the State provides multiple identification options for clearing and then just showing up and saying, Oh, yeah, I'm John
both the citizenship pending and MIDR statuses, under the Smith, or I'm Chris Harvey. And by showing the I.D., you're
current law, there is no means of avoiding those statuses verifying that, okay, for whatever reason they couldn't match
if a voter's registration does not exactly match DDS or it, you're still a bona fide person.” Tr. 3604:11–19. With
SSA records or incorrectly lists them as a noncitizen. All respect to citizenship matching, Plaintiffs conceded “[w]e
registration applications are subject to the policy. Thus, the have only ever agreed that Georgia has a legitimate interest
Court finds that this guidepost weighs in favor of finding a in preventing non-citizens from voting.” Tr. 4330:7–10.
Section 2 violation. Additionally, Mr. Harvey testified that the pending citizenship
flag was triggered “if somebody was sort of a positive
non-citizen, if that's the term. And the -- when somebody
(5) Strength of state interest gets a Georgia driver license, obviously, non-citizens can
get driver's licenses. They get a different driver's license, a
“[I]n determining ‘based on the totality of circumstances’ limited term driver's license versus one showing that you're a
whether a rule goes too far, it is important to consider citizen.” Tr. 3581:21–25. In other words, the citizenship flag
is supposed to attach when there is affirmative evidence that
the reason for the rule.” Brnovich, 141 S. Ct. at 2339–
someone who registered has a noncitizen driver's license. The
40. Defendants presented evidence that both MIDR and

Court finds that Defendants have provided evidence that ties

the prevention of voter fraud with both MIDR and citizenship
flags. b) Gingles Senate factors
*90 Accordingly, the Court finds that this guidepost weighs The Court now turns to the relevant Gingles Senate factors.
against finding a Section 2 violation. Those include: (1) the history of official discrimination in
Georgia; (2) whether there is racially polarized voting in
**** Georgia; (3) voting practices and procedures in Georgia;
(4) discrimination outside the voting context in Georgia; (5)
racial appeals in campaigns in Georgia; and (6) minority
The Court finds that under the Brnovich guidepost analysis
candidate success in Georgia.
neither MIDR nor the citizenship matching flags violate
Section 2 of the Voting Rights Act. With respect to MIDR,
the Court finds that the burden on voters, disparate impact,
and strength of the State's interest weigh against finding a (1) History of past discrimination
Section 2 violation. In Brnovich, the Supreme Court found As the Court noted in its previous orders, Defendants do
that Arizona's law did not violate Section 2 of the Voting not contest that “prior to the 1990s, Georgia had a long
Rights Act because “of the modest burdens allegedly imposed sad history of racist policies in a number of areas including
by [the law], the small size of its disparate impact, and voting.” Doc. No. [617], 70–71 (citing Doc. No. [450-1],
the State's justifications.” Brnovich, 141 S. Ct. at 2346. 50 n.38). The Court takes judicial notice of this fact. See
The burden, disparate impact, and the State's justifications Wright v. Sumter Cty. Bd. of Elections & Registration, 301
are virtually identical between MIDR and the challenged F. Supp. 3d 1297, 1310 (M.D. Ga. 2018), aff'd, 979 F.3d
1282 (11th Cir. 2020) (“Georgia has a history chocked full
practice in Brnovich; accordingly, the Court finds that
of racial discrimination at all levels. This discrimination was
under Brnovich, MIDR does not violate Section 2 of the ratified into state constitutions, enacted into state statutes, and
VRA. promulgated in state policy.”) (citations omitted).
With respect to citizenship matching, the Court finds that after *91 The history of past discrimination factor weighs in
weighing the Brnovich guideposts, citizenship matching favor of a Section 2 violation. In Shelby County v. Holder,
also does not violate Section 2 of the VRA. The Court finds 570 U.S. 529, 552–53, 133 S.Ct. 2612, 186 L.Ed.2d 651
that the other available means guideposts weigh in favor of (2013), the Supreme Court found that the coverage formula
finding a Section 2 violation, but the size of the burden, found in Section 5 of the VRA was unconstitutional because
disparate impact, deviation from practice in 1982 and State's the justification largely ignored the changes that State's
justifications weigh against finding a Section 2 violation. made in voting since 1965. The Eleventh Circuit likewise
The Court finds that Georgia's system of voting is equally “caution[s] against allowing the old, outdated intentions of
open. Roughly 0.045% of Georgia voters are impacted by previous generations to taint [Georgia]’s ability to enact
the citizenship pending flag. Less than one percent of any voting legislation.” Greater Birmingham Ministries, 992 F.3d
minority group was impacted by the citizenship flagging, at 1332. The Court finds that Plaintiffs presented evidence at
and approximately only 0.67% 112 of naturalized citizens are trial showing that Georgia's history of past discrimination is
impacted by the citizenship flag. As Mr. Harvey testified, the not simply resigned to the annals of history, but still exists
matching process is structured so that individuals are flagged today.
as noncitizens only where “something in the DDS system ...
says that this person is not a citizen.” Tr. 2034:1–9. Thus, Between 1965 and the Supreme Court's decision in Shelby
the Court finds that citizenship matching does not render an County, the Department of Justice objected to 177 proposed
election system unequally open; therefore, it does not create changes to election law by Georgia and its counties and
a Section 2 violation. municipalities (2013). Tr. 210:22–211:6 (McCrary); PX.
1289, ¶ 26 (McCrary Report).

In 2014, HB 836 changed the school board district maps 100 percent of black votes, but only 18-54 percent of white
in Sumpter County to dilute the strength of Black voters, a votes. Between 30 and 45 percent of white voters in the
change that federal courts found to violate Section 2 of the state supported Democratic candidates in the 1990s, but only
Voting Rights Act. See Wright. about a quarter of whites voted Democratic beginning in
2002. Black voters favored Democratic candidates by 85 to
Plaintiffs also introduced evidence about Dr. Dennard's 92 percent.” 113 PX. 1289, ¶ 41; see also Tr. 229:6–232:15.
election to the Quitman School Board, her subsequent “Exit polls in statewide elections for federal office from 1992
arrest, and the ensuing legal proceedings as evidence of through 2006 show that African Americans supported the
discrimination. Tr. 683:7–684:12, 676:1–728:7, 745:8–755:3. Democratic candidate at rates between 81 and 92 percent,
The Court finds that Dr. Dennard's experience of being whereas whites voted Democratic at rates between 23 and
photographed in a jumpsuit on the date of her arrest and the 45 percent.” PX. 1289, ¶ 42. In a 2014 survey, 25 percent
ensuing media coverage of the incident does provide some of white Georgia voters report themselves as Democrats, 59
evidence of racial animus that persists in Georgia. Tr. 696:2– percent as Republicans, and 17 percent as Independents. Id.
8; 702:2–4; PX. 2000; PX. 2003. However, the Court also ¶ 46. Whereas 73 percent of Black Georgia voters report
notes that this evidence is tempered by Judge Vines's legal themselves as Democrats, 12 percent as Republicans, and 15
proceedings for the same charges. Tr. 3496:5–21; 3497:2–8; percent as Independents. Id.
3693:18–24; 3698:14–18. While the Court is sympathetic to
Dr. Dennard regarding her treatment, the Court also finds that *92 Accordingly, the Court finds that there is racial
this evidence does not carry great weight when determining polarization in Georgia voting. Senate Factors 2 and 8 weigh
whether racial discrimination persists in present-day Georgia. in favor of finding a Section 2 violation.
Thus, the Court finds based on evidence in the record and

relevant case law that Georgia's history of discrimination, at
a minimum, existed within the last decade. Thus, this factor (3) Practices and procedures
weighs in favor of finding a Section 2 violation.
The third Gingles factor is effectively the same as the
Brnovich third guidepost. This Gingles factor concerns
(2) Racially polarized voting “the extent to which the state or political subdivision has
used ... voting practices or procedures that may enhance the
Under Gingles, racially polarized voting exists when there opportunity for discrimination against the minority group,”
is “a correlation between the race of voters and the selection Gingles, 478 U.S. at 37, 106 S.Ct. 2752, and the
of certain candidates. Plaintiffs need not prove causation or
Brnovich guidepost analyzes “the size of any disparities
intent to prove a prima facie case of racial bloc voting, and
in a rule's impact on members of different racial or ethnic
defendants may not rebut that case with evidence of cause or
groups,” Brnovich, 141 S. Ct. at 2339. Because the
intent.” Gingles, 478 U.S. at 74, 106 S.Ct. 2752.
Brnovich decision is more recent than Gingles and
Plaintiffs argue that voting in Georgia is—and has long been evaluated Arizona's voting procedures in light of today's
—polarized along racial lines. Their evidence at trial was that election procedures, the Court evaluates this Gingles
from Reconstruction through the passage of the Voting Rights
Act in 1965, white Georgians overwhelmingly supported the factor using the standards set forth in Brnovich. As the
Democratic Party, which defended racial discrimination in Court discussed in depth in the disparate impact section, this
registration and voting and official racial segregation in all Senate Factor weighs against finding a Section 2 violation.
aspects of public life. PX. 1289, ¶¶ 11, 124; see also Tr. 230:4–
14.
(4) Discrimination in other areas
Plaintiffs provide the following evidence of racial appeals in
campaigns. “In the 1990s African American congressional
The district court in Gingles found that historic
candidates running as Democrats enjoyed between 77 and
discrimination of minorities in housing, education,

employment, and healthcare led to many minorities being to voters about Black candidates in local races, stating that
a government run by African American leadership would
in a lower socioeconomic class. Gingles, 478 U.S. at 39,
“bankrupt you.” PX. 1651. He also warned voters that a Black
106 S.Ct. 2752. The district court concluded that this “gives
sheriff candidate would put unqualified Black people in high-
rise to special group interests and hinders blacks’ ability to
ranking positions if elected. Id. In 2018, Georgia governor
participate effectively in the political process and to elect
candidate Brian Kemp's campaign issued a campaign video
representatives of their choice.” Id. The Supreme Court that showed violent imagery—Kemp blowing up items,
did not discuss or disrupt the district court's finding. Kemp cocking a gun, and Kemp using a chainsaw—before he
revs his truck and states “I got a big truck—just in case I need
Here, Plaintiffs provide evidence of similar statistics as to round up criminal illegals and take ‘em home myself. Yup
follows: twice as many Black Georgians as white Georgians
I just said that.” PX. 1669. 114
live below the poverty line PX. 1289, ¶ 94; Tr. 255:25–
256:20; Black Georgians are less likely to attain a high
*93 The most recent Georgia elections also use racial
school or college degree (id. ¶ 93; Tr. 255:13–25); and Black
appeals in campaigns. In June 2020, then-Republican
Georgians die of cancer, heart disease and diabetes at a
candidate for Georgia's 14th U.S. congressional district
higher rate than white Georgians (PX. 2127; PX. 2128).
Marjorie Taylor Greene received national criticism for racist,
Plaintiffs’ evidence of the impact of past discrimination on
Islamophobic, and anti-Semitic views expressed in a series of
Georgia's current socioeconomic demographics is similar to
Facebook videos. PX. 1207. Greene suggested that Muslims
the evidence that the district court discussed in Gingles. do not belong in government; that Black people “are held
Gingles, 478 U.S. at 39, 106 S.Ct. 2752. Accordingly, this slaves to the Democratic Party”; that George Soros is a
factor weighs in favor of finding a Section 2 violation. Nazi; and that Black people should feel “proud” to see
a Confederate monument because it symbolizes progress
made since the Civil War. Id. In April 2020, former U.S.
congressman Paul Broun, Jr., running to reclaim his former
(5) Racial appeals in campaigns
seat, posted a campaign ad in which he offered to give away
Plaintiffs have provided evidence that racial appeals were an assault rifle, stating that such guns were needed to protect
against the “looting hordes from Atlanta.” PX. 1655.
made in recent Georgia elections. In Gingles, the district
court found, and the Supreme Court did not discuss or disturb,
In April 2022, Kandiss Taylor—candidate for Georgia
that “white candidates in North Carolina have encouraged
governor—posted a graphic reflecting her endorsement by the
voting along color lines by appealing to racial prejudice.”
Georgia Proud Boys, commenting that she was “proud to be
Gingles, 478 U.S. at 40, 106 S.Ct. 2752. The district the first candidate to receive an endorsement from the Georgia
court further held that “the use of racial appeals in political Chapter. Thank you for serving as I plan to serve.” PX.
campaigns in North Carolina persists to the present day 2165. In May 2022, when running in the Republican primary
and that its current effect is to lessen to some degree the for Georgia governor, former Senator David Perdue accused
opportunity of black citizens to participate effectively in the Stacey Abrams of “demeaning her own race.” PX. 2172. In
political processes and to elect candidates of their choice.” June 2022, candidate for the U.S. House of Representatives
in Georgia's Third Congressional District Rhonda Simpson
Id.
posted a photo on Facebook that falsely imagines Stacey
Abrams saying “I ain't even stole the election yet and
Here, Plaintiffs presented evidence of examples of racial
people be congratulatin’ me like crazy” and President Obama
appeals used in recent Georgia elections. For example,
responding, “It's because they think you're pregnant.” PX.
Plaintiffs point to the 2018 Republican gubernatorial primary,
2164.
during which candidate (and then-State Senator) Michael
Williams conducted a “deportation bus” tour with a school
The Court finds that Plaintiffs provided evidence of racial
bus emblazoned with the words “Fill this bus with
appeals in recent Georgia elections and have carried their
illegals.” The back of the bus read: “Danger! Murderers,
burden. Accordingly, this factor weighs in favor of finding a
rapists, kidnappers, child molesters, and other criminals on
Section 2 violation.
board.” PX. 1653. In September 2016, a Douglas County
commissioner was recorded making disparaging statements

more directly relates to Exact Match, weighs against finding

a Section 2 violation.
(6) Minority candidate success
The Supreme Court held that the success of some Black *94 Under the totality of the circumstances, the Court finds
that Exact Match is permissible under Section 2 of the VRA.
candidates does not dispose of a Section 2 claim. Gingles,
478 U.S. at 76, 106 S.Ct. 2752. However, courts must The Brnovich factors largely weigh in favor of finding
that Exact Match is permissible under Section 2 of the VRA.
consider the sustained success of Black candidates. Id. at
Although the Senate Factors overwhelmingly weigh in favor
77, 106 S.Ct. 2752. Only four Black candidates have ever
of finding a Section 2 violation, the Court finds that the one
been elected to non-judicial statewide offices in Georgia:
factor that is expressly tied to Exact Match, and not Georgia's
(1) Former Public Service Commissioner David Burgess,
entire voting schema, weighs against finding a violation.
in 2000; (2) former Labor Commissioner Mike Thurmond,
in 2002 and 2006; (3) former Attorney General Thurbert
In sum, this Court finds Plaintiffs have not met their burden
Baker, in 1998, 2002, and 2006; and (4) U.S. Senator
under Section 2 of the VRA to demonstrate that the Exact
Raphael Warnock, in 2020. See Shahar v. Bowers, 120
Match or citizenship verification processes renders Georgia's
F.3d 211, 214 (11th Cir. 1997) (the Court can take judicial
elections not “equally open” when considering the totality of
notice of these “matters of ‘political history,’ ” which are
“not subject to reasonable dispute”) (quoting Fed. R. Evid. the circumstances as required by VRA Section 2(b). 52
201(b)). The Court also observes that as of the May 24, 2022, U.S.C. § 10301; see also Brnovich, 141 S. Ct. at 2338. As
primary election, Herschel Walker received the Republican a result, there has been no showing that the election system
nomination for U.S. Senate and Senator Raphael Warnock is not “equally open” by Georgia's compliance with federal
received the Democratic nomination for the same office. The
Court finds that the election of four Black candidates to law regarding matching processes. Brnovich, 141 S. Ct. at
statewide non-judicial office is the exact situation referenced 2337.
by the Supreme Court when discussing the success of a
select few Black candidate as not dispositive of this issue.
F. Remaining Affirmative Defenses
Gingles, 478 U.S. at 76, 106 S.Ct. 2752. Accordingly, the As stated above, Defendants presented the following
Court finds that this factor weighs in favor of finding a Section affirmative defenses in its Statement of the Case for purposes
2 violation. of the Pretrial Order: (1) failure to state a claim upon which
relief can be granted; (2) failure to name necessary and
**** indispensable parties; (3) lack of standing; (4) mootness;
(5) Eleventh Amendment bar; and (5) Political Question
The Court finds that the Senate Factors weigh in favor Doctrine. Doc. No. [753], 2–3.
of finding a Section 2 violation. History of discrimination,
racially polarized voting, discrimination in other areas, racial A number of these defenses have been addressed in the
appeals in campaigns, and success of minority candidates all context of the Court's foregoing analysis of Plaintiffs’ case-
weigh in favor of finding a Section 2 violation. Although in-chief. No additional rulings will issue on the remaining
these factors weigh in favor of a violation, the Court finds affirmative defenses based on Plaintiffs’ failure to meet their
that these factors are more generalized indicators of the status initial burden of proof as to their claims at trial.
of minority life in Georgia as opposed to the indicators
of whether Exact Match results in fewer opportunities ****
for minority voters. While the Court acknowledges the
As discussed above, the Court finds for Defendants on all
importance of the Gingles Senate factors in determining
counts. However, this Order should not be construed to mean
whether a State's practices have resulted in discrimination
that Georgia's election procedures are flawless. The former
for minority voters, they do not sufficiently relate to the
Chief Elections Officer for the State testified that “you are
challenged practices in this case. Conversely, the Gingles going to have misfires [and] mistakes made both by voters
Senate factor dealing with practices and procedures, which and election officials.” Tr. 2908:18–19. And the current Chief
Operating Officer for the Secretary of State testified: “have

I ever seen a perfect election? No, because it simply doesn't

exist .... There is no perfect system by which you can make III. CONCLUSION
it perfect in such a way that the system still functions. You Having held a non-jury trial and considered the evidence
will always have to balance accessibility with security.” Tr. and arguments of the parties, for the foregoing reasons, the
4198:7–14. Plaintiffs’ expert Mr. Kennedy also testified that Court finds IN FAVOR of Defendants and against Plaintiffs
“I think recognizing that you are dealing with a very human- on all remaining Counts of Plaintiffs’ Second Amended
driven process from the millions of voters that show up at --
Complaint. 115
to cast their ballot either in person or absentee, the thousands
of poll workers, that you are going to have misfires, mistakes
*95 Pursuant to Federal Rule of Civil Procedure 58, the
made both by voters and election officials.” Tr. 2908:15–19.
Clerk is DIRECTED to enter judgment and close this case.
Although Georgia's election system is not perfect, the
IT IS SO ORDERED this 30th day of September, 2022.
challenged practices violate neither the constitution nor the
VRA. As the Eleventh Circuit notes, federal courts are not
“the arbiter[s] of disputes’ which arise in elections; it [is] not All Citations
the federal court's role to ‘oversee the administrative details
--- F.Supp.3d ----, 2022 WL 4725887
of a local election.’ ” Curry v. Baker, 802 F.2d 1302, 1306
(11th Cir. 1986).
Footnotes
1 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted
by the Court's docketing software. In addition, pursuant to the Amended-Final Consolidated Pretrial Order,
the parties submitted proposed findings of fact and conclusions of law at the conclusion of the trial. Doc. No.
[753], ¶ 25. The Court has adopted and rejected portions of the parties’ submissions.
2 In the Amended Complaint, Plaintiffs modified the case-style to include the corporate names of the original
two Plaintiffs, i.e., “Fair Fight Action, Inc.” and “Care in Action, Inc.”
3 Plaintiffs also sued Secretary Raffensperger in his capacity as Chair of the State Election Board. Doc. No.
[582], 1. However, the parties removed the “Chair” language from the case caption in their submission of
their proposed consolidated pretrial order. Doc. No. [658]. The evidence at trial was that up until 2021, the
Secretary of State was the chairman of the State Election Board. Tr. 4008:22–23. Pursuant to Federal Rule of
Evidence 201, the Court also takes judicial notice that following recent legislation, Secretary Raffensperger
is no longer the chair of the State Election Board. See O.C.G.A. § 21-2-30(a) (“There is created a state
board to be known as the State Election Board, to be composed of a chairperson elected by the General
Assembly ....”).
4
Counts I, II, III, and IV cite the alleged constitutional violation and include the language “as enforced by 42
U.S.C. § 1983.” “Title 42 U.S.C. § 1983 provides every person with the right to sue those acting under color
of state law for violations of federal constitutional and statutory provisions.” Williams v. Bd. of Regents of
Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007).
5 Throughout the litigation, Plaintiffs have used the term “voter purge,” while Defendants have used the term
“list maintenance” to refer to the process by which inactive voters are moved to canceled status in the voters

rolls upon the occurrence of certain triggering events. Doc. No. [617], 10. As this issue has been dismissed,
it is not necessary to enter a ruling in this Opinion as to the proper term.
6 “Exact Match” is another term that the parties do not agree upon. For purposes of this Opinion, the Court
uses the term “Exact Match.” However, the Court recognizes that Defendants sometimes refer to the same
practice as “HAVA Match” in reference to the Help America Vote Act, 52 U.S.C. § 21083(a)(5) identification
requirements. Plaintiffs do not agree that HAVA requires the “Exact Match” procedures in use by the State
of Georgia. See Doc. No. [492], 31. At summary judgment, the Court recognized that “Georgia's verification
requirements in Exact Match are much narrower than what HAVA itself requires.” Doc. No. [636], 32. The
Court stated: “HAVA does not require comparison of a registration applicant's first name, last name, date of
birth, or citizenship information. Nor does it require identifying information to match exactly. Finally, HAVA
does not specify the consequences for a failure to match.” Id. (citing 52 U.S.C. § 21083(a)(5)).
7 In the context of trial briefing, Plaintiffs clarified the nature of their list management claim. Doc. No. [795], 1;
see also Doc. No. [816], 4. More specifically, Plaintiffs stated: “Plaintiffs’ challenge to the Secretary of State's
affirmative mismanagement of the statewide voter registration database concerns the Secretary of State's
policy decisions governing the database and the unjustified burdens on voters that result.” Doc. No. [795], 2.
The policy decisions included but were not limited to: (1) choosing to delegate to the counties the ultimate
decision as to whether a voter's registration is canceled without providing meaningful rules or even guidance
to protect voters; (2) choosing to set overinclusive matching criteria; (3) choosing to tee up an overinclusive
group of registrations for cancelation, which are too large for at least some counties to carefully evaluate; (4)
choosing not to add alerts in the database alerting users of criteria that do not match when comparing records;
and (5) choosing not to assist database users when they sought help deciding whether to disenfranchise
registrants—including eligible voters. Doc. No. [795], 2–3. As stated in the Court's April 29, 2022 Order (Doc.
No. [816]), one of Plaintiffs’ clarifications concerned training county users on making cancelations decisions;
however, this clarification was not within the language of the Amended-Final Pretrial Order, and the Court
did not accept the clarification. Doc. No. [816], 6.
8 Additional findings of fact concerning the named plaintiffs will be discussed in the standing section of this
Opinion.
9 The Court takes judicial notice that Ebenezer is in Fulton County, Georgia; this fact is generally known within
the Northern District of Georgia. Fed. R. Evid. 201(b)(1).
10 This Court will refer to Senator Reverend Raphael Warnock as “Reverend Warnock” throughout the remainder
of this Opinion because Reverend Warnock testified specifically in his capacity as a church leader and his
testimony pertained to his church's activities and mission.
11 The Court takes judicial notice that Virginia-Highland is in Fulton County; this fact is generally known within
the Northern District of Georgia. Fed. R. Evid. 201(b)(1).
12 “LGBTQIA .... refers to the broad array of self-identified sexes, genders, and sexual orientations ....” 3
Rossein, Merrick, Employment Discrimination Law and Litigation § 27:1 (database updated Aug. 2022).
13 County liaisons are personnel in the Secretary of State's Office who assist and support counties in the
performance of their duties, in conjunction with other members of the Secretary of State's Office, and they
act as the point-of-contact between counties and the Secretary of State's Office to assist or troubleshoot
problems when they arise. Tr. 1373:11–21 (Frechette); 3472:21–25 (Harvey); Tr. 826:2–20 (Hallman).

14 As indicated above, the SEB as an entity remains a Defendant only for purposes of Plaintiffs’ Section 2 Voting
Rights Act claim (pertaining to Exact Match). Doc. No. [617], 3 nn.2 & 3. Other claims are brought against
the SEB Members in their official capacities.
15 The Court will make specific findings regarding the testimony of these witnesses in the next section of this
Opinion.
16 In general, the above-described process applies only to voters who did not register through DDS to begin with.
If a voter registers through DDS, including via automatic voter registration, their information will automatically
match what is on file with DDS before the registration is sent to counties to be processed. Tr. 1950:12–
1951:14 (Harvey).
17 The Court recognizes that there is a conflict in the testimony as to the purpose of MIDR because, at one point,
Mr. Harvey had no answer for the Court when asked why the Secretary of State needs MIDR. Tr. 1993:5–12.
After review, however, the Court deems it proper to resolve the conflict by giving the greater weight to Mr.
Harvey's subsequent trial testimony in which he provides a substantive purpose for MIDR. The Court also
gives greater weight to the testimony of Mr. Germany (set out above).
18 For purposes of perfecting the record and consistency, all transcript references to “S.A.V.E.” have been
changed to “SAVE” in this Opinion.
19 Noncitizens may obtain a Georgia driver's license. Tr. 3581:18–25 (Harvey). The license is known as a “limited
term” license as opposed to those that show the driver is a United States citizen. Id.; Tr. 1203:1–6, 10–17,
1204:2–4 (McClendon). Noncitizens must renew their limited term license or state ID card in person and
cannot do so online. Tr. 1203:23–1204:1 (McClendon). The expiration of limited-term driver's license or state
identification card is tied to the lawful duration of the noncitizen's stay in the United States. Tr. 1203:14–17
(McClendon). DDS does not know when someone becomes a citizen unless the individual informs DDS of
the change in citizenship status. Tr. 1205:2–5, 1206:2–4 (McClendon). If the individual does not inform DDS
of a change in citizenship status, the individual will remain in the DDS database as a noncitizen. Tr. 1205:2–
5, 1203:23–24 (McClendon). Mr. Harvey testified that the DDS citizenship information is “outdated for people
that don't update their citizenship status.” Tr. 2038:10–14 (Harvey).
20 SAVE is a web-based program operated by the Department of Homeland Security to help other governmental
entities determine the immigration status of applicants for public benefits or licenses. PX. 2021 at 4; PX. 2014.
21 The Court will make specific findings regarding the testimony of these witnesses in the next section of this
Opinion.
22 The parties differ on the definition of the word “maintain” and its implications. The Court will discuss the issue
and reach a conclusion in the conclusions of law (standing) section of this Opinion.
23 The particulars of the felon matching process come to the Court via testimony from the Secretary of State's
Office on how known felons are actually matched with registered voters; in other words, the Court's findings
of fact on the felon matching process are limited to how felon matching occurs in practice.
24 Mr. Harvey testified that the DOC and the DCS send a list “every month of all the people that are currently
serving felony sentences in Georgia.” Tr. 3567:7–13 (Harvey).
25 The specific language in the Secretary's training materials is as follows:
The Department of Corrections (DOC) provides a file that contains the information for all inmates currently
incarcerated for a felony conviction and the Department of Community Supervision (DCS) provides a file of

all of the individuals on probation and parole as the result of a felony conviction to the Secretary of State's
Office. These files are compared to the information in the voter registration system each month.
PX. 800 at 19.
26 This exhibit was taken under advisement at trial and later admitted per the Court's Order at Doc. No. [915].
27 The 2019 training materials also indicated that “[t]he records that are in cancelled or rejected status will no
longer be listed on the felon reports” of the county user's dashboard. PX. 1903. The training materials further
state that the number of felon records shown on the county user's dashboard is for the “current day only.”
PX. 1903.
28
The Court recognizes that the training materials provide for a “40 day Felon clock,” while O.C.G.A. §
21-2-231(c)(2) provides for felon removal after 30 days of the date of the board of registrar's notice.
29 As stated in the Georgia Election Code, the term “elector” “means any person who shall possess all of the
qualifications for voting now or hereafter prescribed by the laws of this state, including applicable charter
provisions, and shall have registered in accordance with” Georgia law. O.C.G.A. § 21-2-2(7).
30 The Court will make specific findings regarding these voters the next section of this Opinion.
31 Mr. Kennedy was also appointed Wisconsin's chief election officer under HAVA. Tr. 2821:11–13 (Kennedy).
32 Dr. Mayer did not offer an opinion as to whether any state officials have acted with discriminatory intent against
voters of color or whether Georgia's voter registration practices and systems were adopted with discriminatory
intent. Tr. 423:5–16 (Mayer). He also did not offer an opinion about training regarding cancelation of absentee
ballots. Tr. 422:24–423:1 (Mayer).
33 As stated above, SAVE is a web-based program operated by the Department of Homeland Security to help
other governmental entities determine the immigration status of applicants for public benefits or licenses.
PX. 2021 at 4; PX. 2014.
34 While Dr. McCrary was allowed to offer expert testimony as to the history of the implementation of certain
pieces of voting rights legislation in Georgia, the Court noted at trial that the portions of his testimony that
were subject to objection (based upon legal conclusion) were accepted by the Court as lay witness testimony
only. See, e.g., Tr. 215:4–21, 258:16–259:7.
35 Additional legal standards will be discussed, infra.
36 An organization that diverts its resources voluntarily can still have standing if the “drain on [the] organization's
resources arises from the organization's need to counteract the defendants’ assertedly illegal practices
[because] that drain is simply another manifestation of the injury to the organization's noneconomic goals.”
Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1166 (11th Cir. 2008) (internal quotations and
citation omitted).
37 The Court overrules Defendants’ objections regarding Reverend Warnock's testimony on voting rights being
part of Ebenezer's mission. See Doc. No. [767-1], 6–7. The testimony is not argumentative. The witness
was simply responding to questions asked. As Senior Pastor of his church, the witness also has knowledge
of the matters being discussed, and the surrounding testimony shows that he laid a foundation to discuss
it. Further, to the extent the witness was testifying as to facts concerning the church's mission, the Court
does not uphold Defendants’ objection that he was providing an improper lay witness opinion. To the extent
the witness was providing testimony that could better be described as theological opinions (e.g., PX. 2053,

Tr. 39:6–10 (Warnock Dep.)) (stating that “democracy is the political expression of this idea that all human
beings are created in the image of God”), the Court overrules Defendants’ objections but gives that testimony
little weight in considering legal issues. Finally, the church's mission and its connection to voting rights is
clearly relevant to this case.
38 The Court overrules Defendants’ objections as to this testimony. See Doc. No. [767-1], 16–17. The witness
was testifying as to phone banking and similar outreach activities that his church had undertaken. As Senior
Pastor of that church, the witness had a base of knowledge to testify as to these matters, and nothing else
about the facts of what the church was doing makes the testimony objectionable. To the extent Defendants
are objecting to the witness's use of the term “purged” to describe voters, the Court will afford that term little
weight from this witness.
39 For the reasons stated above, the Court again overrules Defendants’ objections as to this testimony. See
Doc. No. [767-1], 16–17.
40 The Court overrules Defendants’ objections regarding this testimony. See Doc. No. [767-1], 33–34. The
witness was testifying as to missions or other activities in which the church would engage if it were not
diverting resources to counteract Defendants’ challenged practices. That testimony is admissible here.
41 As discussed infra in Sections II(B)(2)(b) & II(B)(3)(b)(1), Plaintiffs still must show causation to prove liability.
42 Plaintiffs did not bring a race discrimination claim with respect to list maintenance, but it is worth nothing
that the felon matching process is the only maintenance system where the Secretary of State uses race as
a criterion.
43 It is important to note that Plaintiffs concede that the question of whether the Secretary's decision to delegate
discretionary decision-making about which people on the list of felons are (or are not) on the list of registered
voters complies with Georgia law “is not at issue in this suit.” Doc. No. [854], ¶ 694. Plaintiffs state that “their
challenge to the felon matching process is not that it violates state law, but that it is carried out in a way that
burdens Georgia's voters unconstitutionally.” Id.
44 The Court finds infra that the felon matching claim fails as to liability on causation grounds. The Court's finding
here is limited to determining whether the actions of the Secretary of State are sufficiently connected to the
alleged constitutional injury for purposes of standing. See Yellow Pages Photos, Inc. v. Ziplocal, LP, 795
F.3d 1255, 1264–65 (11th Cir. 2015) (stating that for standing there must be a fairly traceable connection
between the alleged injury in fact and the alleged conduct of the defendant).
45 Black's law dictionary defines “shall,” as 1. Has a duty to; more broadly, is required to <the requester shall
send notice> <notice shall be sent>. • This is the mandatory sense that drafters typically intend and that
courts typically uphold. 2. Should (as often interpreted by courts) <all claimants shall request mediation>. 3.
May <no person shall enter the building without first signing the roster>. • When a negative word such as not
or no precedes shall (as in the example in angle brackets), the word shall often means may. What is being
negated is permission, not a requirement. 4. Will (as a future-tense verb) <the corporation shall then have
a period of 30 days to object>. 5. Is entitled to <the secretary shall be reimbursed for all expenses>. • Only
sense 1 is acceptable under strict standards of drafting. SHALL, Black's Law Dictionary (11th ed. 2019).
46 Notably, the origin of the above division of responsibilities between the Secretary of State and the counties
distinguishes this case from Jacobson. In Jacobson, the plaintiffs sued the Florida Secretary of State
and argued that they were “injured because Republicans, not Democrats, appear first on the ballot in
Florida's general elections.” Jacobson, 974 F.3d at 1253. The Eleventh Circuit found that there was no

traceability because the Florida Secretary of State was not tasked under Florida law “with printing the names
of candidates on ballots in the order prescribed by the ballot statute.” Id. Rather, a Florida statute explicitly
assigned that role to county officials. Id. (citing Fla. Stat. § 99.121). Here, however, no statute explicitly
assigns voter eligibility decisions to the counties. Rather, the governing statute provides that the Secretary
of State “shall” transmit felon names to the counties, who then “shall” mail notices to those individuals and
initiate the process to remove the voter from the rolls. To be sure, the evidence shows that there is now
a system in place that delegates certain decision-making responsibilities to the counties. But the statute
does not expressly provide for that. Thus, the Court finds that this set of facts is distinguishable from the
straightforward statutory responsibilities that created a traceability issue in Jacobson.
47 As stated supra, the Georgia legislature, however carved out an exception that gave the Secretary of State
control over determining which electors are disqualified for either being deceased or a felon.
48 Because duplicate matching is not traceable to the Secretary of State, the Court will not evaluate the duplicate
matching process under the Anderson- Burdick framework.
49 “The Constitution's case-or-controversy limitation on federal judicial authority, Art. III, § 2, underpins both
[the] standing and ... mootness jurisprudence, but the two inquiries differ in respects critical to the proper
resolution of this case, so [the Court] address[es] them separately.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
50 For purposes of perfecting the record, the Court notes that Plaintiffs assert that Defendants presented a
“quasi-mootness” argument as to the Exact Match/Citizenship Match challenged practice and the Secretary
of State's recent use of the SAVE citizenship verification process (Doc. No. [854], ¶ 521); however, in their
proposed findings, Defendants acknowledge that the Exact Match/Citizenship Match challenged practice is
not mooted through existing statute or regulation. Doc. No. [855], ¶ 1029. In light of this acknowledgement,
the Court declines to render a mootness finding as to the Citizenship Match challenged practice.
51
“Plaintiffs filed suit under 42 U.S.C. § 1983, which provides them with a federal ‘cause of action for
constitutional violations committed under color of state law. To prevail, plaintiffs must demonstrate both that
the defendants deprived them of a right secured under the Constitution or federal law and that the deprivation
occurred under color of state law.’ ” Greater Birmingham Ministries, 992 F.3d at 1221–22 (citations omitted).
Because the Georgia laws and practices at issue fall squarely under color of state law, the Court need only
address the constitutionality of the law. Id.
52 With respect to Count I, the Court uses the term “Defendants” to encompass the Secretary of State, Sarah
Tindall Ghazal, Janice Johnston, Edward Lindsey, and Matthew Mashburn. “Defendants” in this section will
not include the SEB, because the SEB enjoys sovereign immunity for the claims in Count I.
53 While this Court recognizes that stay-panel opinions are “tentative,” “preliminary [in] nature,” and are “not a
final adjudication of the merits of the appeal,” this Court accepts the stay-panel's opinion in Lee as persuasive
authority. Democratic Exec. Comm. of Fla. v. Nat'l Republican Senatorial Comm., 950 F.3d 790, 795 (11th
Cir. 2020); cf. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th Cir. 2020) (treating the
motions panel's decision as persuasive, but not binding authority).
54
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

55
The Court has been unable to find a Supreme Court or Eleventh Circuit case where Anderson- Burdick
was applied to incorrect training materials. See Anderson, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547
(challenge to Ohio statute regarding independent candidates); Burdick, 504 U.S. 428, 112 S.Ct. 2059, 119
L.Ed.2d 245 (challenge to Hawaii's law prohibiting write-in candidates); Crawford, 553 U.S. at 181, 128
S.Ct. 1610 (challenge to Indiana's voter ID law); Clingman v. Beaver, 544 U.S. 581, 125 S.Ct. 2029, 161
L.Ed.2d 920 (2005) (challenge to Oklahoma's law that had invite-only primary system); Timmons, 520 U.S.
at 351, 117 S.Ct. 1364 (challenge to Minnesota's law prohibiting candidates from appearing on more than
one party's ballot); Norman, 502 U.S. at 279, 112 S.Ct. 698 (challenge to Illinois's signature requirement
law); Libertarian Party of Ala. v. Merrill, No. 20-13356, 2021 WL 5407456 (11th Cir. Nov. 19, 2021) (challenge
to Alabama law regarding party access to voter list); New Ga. Project v. Raffensperger, 976 F.3d 1278 (11th
Cir. 2020) (challenge to Georgia's law requiring absentee ballots to be received by election day); Cowen
v. Ga. Sec'y of State, 960 F.3d 1339 (11th Cir. 2020) (challenge to Georgia's law regarding ballot-access);
Independent Party of Fla. v. Sec'y of State 967 F.3d 1277 (11th Cir. 2020) (challenge to Florida's law regarding
signature requirements for ballot-access); Lee, 915 F.3d at 1312 (challenge to Florida's signature matching
law); Common Cause/Ga., 554 F.3d at 1340 (challenge to Georgia's voter ID law); Green v. Mortham, 155
F.3d 1332 (11th Cir. 1998) (challenge to Florida's law imposing qualifying fees on candidates); Fulani v.
Krivanek, 973 F.2d 1539 (11th Cir. 1992) (challenge to Florida's signature verification law).
56 Although the Court finds that Plaintiffs’ Training: Absentee-Ballot Cancelation claim fails as a matter of law, the
Court will out of an abundance of caution engage in the Anderson- Burdick analysis. See Jacobson,
974 F.3d at 1262 (“If the statute burdened voting or associational rights even slightly, we could apply legal
standards to determine whether the burden was unconstitutional. Under Anderson and Burdick, we
would weigh the burden imposed by the law against the state interests justifying that burden.”); New Ga.
Project, 976 F.3d at 1282 (reversing the district court in part because “the district court also erred in accepting
the plaintiffs’ novel procedural due process argument. The standard is clear: ‘[W]e must evaluate laws that
burden voting rights using the approach of Anderson and Burdick.’ ”).
57 Plaintiffs also submitted voter complaints that were received by the Secretary of State to show that the
Secretary of State was on notice that counties were not correctly canceling absentee ballots at the polls. See
PX. 1929, 1931 (two Clarke County voters were able to vote by casting an absentee ballot in the June 2020
primary after attempting to cancel their ballots and vote in person); PX. 1932 (Coweta County voter that was
told she could not vote in person because she received an absentee ballot); PX. 1950 (Fulton County voter
instructed to destroy her absentee ballot in front of the poll worker before being permitted to vote in-person);
PX. 1935 (Coweta County voter instructed to destroy her absentee ballot in front of the poll worker before
being permitted to vote in-person).
58 Defendants objected to PX. 2057 at Tr. 29:17–31:8 on the grounds of speculation. Doc. No. [760-1]. As to
PX. 2057 at 30:14–23, this objection is overruled. Ms. Aaron's testimony is not speculative because she is
testifying about her experience.
59 This statement was not admitted for its truth but was admitted for the purpose of showing course of conduct
under FRE 803(3).

60 This statement was not admitted for its truth but was admitted for the purpose of showing course of conduct
under FRE 803(3).
61 As the Court noted above, Plaintiffs have not met their burden for a First and Fourteenth Amendment claim
concerning absentee ballot cancelations because Plaintiffs have not sufficiently established causation or that
Anderson- Burdick applies to errors in election administration.
62
In Coalition for Good Governance, the court ruled that the case itself was a non-justiciable political
question. In Coalition for Good Governance, the plaintiffs asked the court to determine the number of
COVID-19 procedures that were sufficient. Just as with the question of fairness, see Rucho, 139 S. Ct. at
2494, Jacobson, 974 F.3d at 1262, there are not justiciably manageable standards to determine how many
COVID-19 procedures are enough. Coal. for Good Governance, 2020 WL 2509092, at *3. In the case sub
judice, Plaintiffs are not challenging whether a particular statute or practice is fair; rather Plaintiffs ask the
Court to decide whether a particular statute of practice unfairly burdens a voter's right to vote and whether the
State has a sufficient justification for said burden. Just as the challenged practices in Anderson, Burdick,
and their progeny are justiciable, these claims are justiciable. See supra Section II(A)(2)(c)(2).
63 There was significant discussion on the admissibility of PX. 912. The Court ultimately admitted PX. 912 as
an adoptive admission. Tr. 1677:12–14. Accordingly, these exhibits will be evaluated for their truth.
64 At trial the Court took PX. 685 under advisement. Tr. 3104:16–3105:16. On September 22, 2022, the Court
ruled that PX. 685 was admitted. The Court finds that the email exchange between Mr. Hallman and Ms.
Hicks is evidence of an adoptive admission. Doc. No. [815].
65 Plaintiffs moved for the admission of PX. 2159. During the trial, the Court took the exhibit under advisement.
Tr. 4050:12–4054:21. The document is admissible as a credible government record under FRE 803(8). The
Court finds that this document is a public record because it is the direct transcript from the SEB Meeting
on August 21, 2019. Mr. Harvey testified that SEB meetings are transcribed. Tr. 3656:15–17. Accordingly,
the Court finds that PX.2159 is admissible as a public record because it (1) sets out that it the August 21,
2019 meeting of the SEB and (2) that the meeting were transcribed and placed on the Secretary of State's
website. Finally, Defendants did not provide sufficient evidence to show that the official transcription lacks
trustworthiness.
66 PX. 1715 was taken under advisement by the Court. Tr. 3104:16–3105:2. Defendants raised a Rule 401
objection to this document, see id. This document is relevant as an example of a voter whose “record
was cancelled in error” based on data from the Department of Community Service and the Department of
Community Supervision. PX. 1715 at 1.
67 The Court finds that his burden differs from the burdens resulting from list maintenance/ use it or lose it. The
Court awarded summary judgment to Defendants on list maintenance/ use it or lose it because (1) all impacted
voters either, made no contact with the Secretary of State for five years, or the postal service database
reflected that the elector moved, (2) the voters could always re-register to vote, and (3) the cancellations
applied uniformly. Doc. No. [617], 52–55. With respect to felon matching, there is sufficient evidence in the
record to show that some of the impacted voters (1) were not felons and (2) were cancelled despite numerous
attempts to prove that they were not felons prior to the election.
68 The Court acknowledges that provisional ballots are available to voters who are canceled because they are
falsely flagged as felons. However, because the Court has determined that the burden on the voter results

from the procedural hurdles voters must clear in order to fix the felon match mistake, the Court does not find
that fact compelling when weighing the State's interests against the burden to the right to vote.
69 The Court notes again that Plaintiffs concede that the question of whether the Secretary's decision to delegate
discretionary decision-making about which people on the list of felons are (or are not) on the list of registered
voters complies with Georgia law “is not at issue in this suit.” Doc. No. [854], ¶ 694. Plaintiffs state that “their
challenge to the felon matching process is not that it violates state law, but that it is carried out in a way that
burdens Georgia's voters unconstitutionally.” Id.
70 HB 316 was enacted on April 2, 2019 (Doc. No. [68]), and Dr. del Rio's experience occurred in November of
2018. Tr. 473:8–475:19. The placement of registrants in Active-MIDR status represents a change pursuant
to HB 316. Tr. 3576:24–3577:17.
71 Although PX. 89 was initially taken under advisement, it was eventually admitted in its entirety. Tr. 2271:11.
72 “[T]he empirical evidence makes clear that fraud committed by voters either in registering to vote or at the
polls on Election Day is exceedingly rare ... both nationally and in Georgia.” Tr. 2346:3–6. Additionally, Mr.
Harvey testified that voter fraud “was not a -- not a significant problem that [he is] aware of.” Tr. 2041:10–16.
73
The Statute referenced by Defendants, O.C.G.A. § 21-2-216, does not discuss the Secretary of State's
use of SAVE to verify an applicant's citizenship. Additionally, the regulation cited by Defendants was adopted
in 2010 and the Secretary of State did not receive the MOU from the DHS authorizing it to use SAVE until
August 2020.
74 The Court notes that the issue of SAVE is not moot because SAVE is not yet fully operational. “To the extent
that [the challenged] features remain in place, and changes in the law have not fundamentally altered the
statutory framework as to render the original controversy a mere abstraction, the case its [sic] not moot.”
Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000). To
date, the Secretary of State still uses DDS as the only method for verifying citizenship; the only time SAVE
was used was during a one-time audit. Accordingly, the challenged feature remains in place.
75 The Court's determination that SAVE is not an available remedy depends on the Secretary of State's
affirmative testimony to the Court that SAVE is in the process of being implemented and expects that SAVE
will be fully operational in 2023.
76 As previously noted, Plaintiffs’ Exact Match MIDR challenge relates to the matching of certain identification
information provided on voter registration applications. Plaintiffs’ second policy challenge, i.e., Exact Match
Citizenship, relates to the matching of the voter registration applicant's citizenship information.
77 The Supreme Court has explained that “ ‘[d]iscriminatory purpose’ ... implies more than intent as volition or
intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1349 (11th Cir. 2005) (citing Hernandez v. New
York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). This Court recognizes that Holton
was a Fourteenth Amendment/Equal Protection case; however, the Eleventh Circuit has indicated that the
standard is the same for Fifteenth Amendment and Equal Protection/Fourteenth Amendment claims in the
voting rights context. See Greater Birmingham Ministries, 992 F.3d at 1328 (“[I]n order ‘to establish a violation
of either the Equal Protection Clause of the Fourteenth Amendment or the Fifteenth Amendment, [plaintiffs]
must show that [the state's] decision or act had a discriminatory purpose and effect.”) (citations omitted). To

this regard, the Court will utilize both Fifteenth Amendment and Equal Protection precedent in this section
of the Opinion.
78 The Eleventh Circuit has also “repeatedly recognized that evidence of [t]he historical background of the
decision is relevant to the issue of discriminatory intent.” Burton, 178 F.3d at 1189 (citing Williams v.
City of Dothan, 745 F.2d 1406, 1415 (11th Cir. 1984) (quoting Arlington Heights, 429 U.S. at 267, 97 S.Ct.
555) (internal quotations omitted)).
79 As indicated above, the evidence at trial showed that the exact matching process is not fully codified law
in Georgia's statutory scheme. Portions of the matching process at issue are actually part of a policy of the
Secretary of State's Office. To this regard, in considering the first and fifth factors, the Court will also utilize
the terms “policy” and “policymakers,” in addition to the terms “law” and “legislators.”
80 While this Court recognizes that stay-panel opinions are “tentative,” “preliminary [in] nature,” and are “not a
final adjudication of the merits of the appeal,” this Court accepts the stay-panel's opinion in League of Women
Voters as persuasive authority. Democratic Exec. Comm. of Fla., 950 F.3d at 795; cf. E. Bay Sanctuary
Covenant, 950 F.3d at 1265 (treating the motions panel's decision as persuasive but not binding authority).
81 To the extent the policy is memorialized in writing, it is reflected piecemeal in various documents, including
training materials. PX. 1289 (Expert Report of Peyton McCrary), ¶ 78 (“The voter verification system was
never adopted by the Secretary of State as a rule or policy, nor was it otherwise disclosed to the public.”),
PX. 1751 (DDS MOU), Tr. 1940:22–1942:13 (Harvey) (testifying that “it's not a written policy” and agreeing
that the policy is reflected in Secretary of State training materials), Tr. 349:17–19 (Mayer) (testifying that
there was “no indication that the policies and methods are actually written down and documented and clearly
articulated”).
82 For example, DDS recently switched from matching the whole first name to matching only the first letter
of the first name “because [the Secretary of State] requested that.” Tr. 1202:13–19 (McClendon); see also
Tr. 1936:9–11 (Harvey). Also, when Plaintiffs first brought this lawsuit, Exact Match MIDR prevented voter
registration applicants from being registered voters until they had taken certain steps to address the match
failures generated by the Exact Match MIDR process. If the applicant did not provide the information, they
would “fall off the list” and would not be registered to vote. Tr. 3603:8–11 (Harvey). In April 2019, after Plaintiffs
brought this lawsuit, Georgia passed HB 316, which changed the consequences of being flagged as “MIDR.”
Under HB 316, people flagged as MIDR were registered to vote, but they were still labeled “MIDR” until they
provided identification before or at the time they voted. Tr. 3604:3–4 (Harvey). HB 316 made no changes to
the consequences of the Exact Match Citizenship policy. Tr. 2035:2–7 (Harvey).
83 While the Court credits Dr. McCrary's expert history testimony, which includes some discussion of race and
political parties, the Court notes that Dr. McCrary specifically affirmed that he was not opining that any portion
of Georgia's voter registration practices and systems were adopted with a discriminatory intent. Tr. 266:1–11.
84 As stated at trial, the Court accepted as lay opinion certain testimony of Dr. McCrary concerning the voter
verification requirements of HAVA. Tr. 215:4–5 (McCrary). More specifically, Dr. McCrary testified that HAVA
required states to create a statewide voter registration database. Tr. 213:5–10 (McCrary). He further testified
that there was a HAVA “requirement ... both to establish a person's eligibility as to their place of residence and
to establish their eligibility by way of establishing whether they were or were not United States citizens.” Tr.
214:2–5 (McCrary). He testified that HAVA did not require states to use a particular matching methodology
such as the Exact Match employed by the State of Georgia in this case. Tr. 214:6–10 (McCrary).

85 There is also a letter exhibit in the record from Counsel for the State of Georgia to the Department of Justice
(dated August 17, 2010) which states: “Prior to 2006, Georgia was exempt from the data matching and
verification procedures required under HAVA because the State required voters to provide their full nine-digit
social security number when registering to vote. In 2006, however, a federal court enjoined the State from
that requirement. The State, no longer exempt from HAVA's data matching and verification requirements,
had to develop procedures to meet those requirements.” PX. 76 at STATE-DEFEDANTS-00078193.
86
Prior to 2013 and the United States Supreme Court's decision in Shelby County v. Holder, 570 U.S. 529,
133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), certain states, including Georgia, needed to seek preclearance from
the DOJ for new voting changes.
87 Dr. McCrary could not recall the full name of the program at trial. Tr. 221:14 (McCrary). His report states that
the full title of the program is “Help America Vote Verification.” PX. 1289, ¶ 72.
88 This historical evidence also applies to Exact Match Citizenship, since the DOJ raised the same concerns
about the racial impact of Exact Match Citizenship.
89 The exhibit defines the SSVRZ791R1 report as an “exceptions report.” PX. 76 at STATE-
DEFENDANTS-00078197. This report and a second exceptions report, “display, by county, the results of
the verification process and identify those applicants whose information was not successfully verified in its
entirety.” Id. at STATE-DEFENDANTS-00078198.
90 Dr. McCrary testified that the 2010 version is not used in Georgia today and the process has been changed
several times since 2016. Tr. 279:5–8. Dr. McCrary also described how experts subsequently found the
state's assurances of close, daily monitoring proved inaccurate in the years that followed preclearance. Tr.
250:2–254:17 (McCrary), PX. 1289, ¶ 84.
91 Dr. McCrary provided the full citation for the case in his report as: Georgia State Conf. NAACP v. Kemp, No.
2:16-cv-00219 (N.D. Ga.). PX. 1289 at 77 n.231.
92 Dr. McCrary testified that the 2016 and 2017 versions of the process are not used in Georgia today. Tr.
279:14–16.
93 While Dr. McCrary testified and indicated in his report that “the administrative implementation of HB 268 in
2017 would likely have been objectionable” were preclearance review still in place based upon discriminatory
effect, the Court gives little weight to this evidence in light of the subsequent litigation and enactment of HB
316 concerning voter verification procedures. PX. 1289, ¶ 99, Tr. 258:16–259:17.
94 The Court notes that 2010 is the same year that the DOJ did not object to Georgia's revised Exact Match
plan, leading to preclearance.
95 Even if the Court were to consider this evidence, the Court's ruling remains the same.
96 While not specifically enumerated as a factor in the Greater Birmingham Ministries case, the Court notes that
the Eleventh Circuit did consider the state's interest in its Fifteenth Amendment analysis concerning the law
at issue. See 992 F.3d at 1328 (“[W]hen we weigh the burden on a voter to obtain and present a photo ID
against Alabama's interests underlying the voter ID law, we find the law to be a neutral, nondiscriminatory
regulation of voting procedure.”).

97 Additional discussion regarding the State's interests will follow in the VRA section of this Opinion. In sum,
the Court declines to uphold Plaintiffs’ arguments for deeming the testimony related to the asserted state
interests insufficient.
98 Defendants raised additional pretrial/deposition objections (Doc. No. [755-7], 12) concerning the rule of
completeness that are now moot, as the entirety of the statements were played at trial.
99 There is some Eleventh Circuit precedent on discriminatory statements in the Fifteenth Amendment context;
however, the speech at issue in those cases was not campaign speech. See, e.g., Greater Birmingham
Ministries, 992 F.3d at 1227 (indicating that the racist comments of the lawmaker, while not condoned under
any circumstances, need to be “made about the law at issue in this case” to evidence discriminatory intent
behind the law); NAACP v. Stallings, 829 F.2d 1547, 1552 (11th Cir. 1987) (concluding that the speech
made by the sponsor of legislation during legislative session “was evidence of an intent to discriminate against
black voters in any voting legislation before the General Assembly during that session, and that a finder of
fact might well infer that such intent continued until 1951 when the bill was re-introduced under the same
sponsorship”).
100 The Court has considered the entirety of the evidence that Plaintiffs offered in support of their Fifteenth
Amendment claim in reaching this conclusion.
101 The Court gives this notification limited weight because the DOJ later precleared a revised version of
Georgia's policy.
102 With respect to Count III, the Court uses the term “Defendants” to encompass the Secretary of State, Sarah
Tindall Ghazal, Janice Johnston, Edward Lindsey, and Matthew Mashburn. “Defendants” in this section will
not include the SEB because the SEB enjoys sovereign immunity for the claims in Count III.
103
The Court recognizes that the Third Circuit has recently stated that Bush v. Gore is a limited holding as it
“does not federalize every jot and tittle of state election law,” but focused on the “lack of any standards” that
empowered officials to treat ballots “arbitrarily, violating equal protection.” Donald J. Trump for President, Inc.
v. Sec'y of Pa., 830 F. App'x 377, 388 (3d Cir. 2020). By contrast, where the State's election code provides
counties with specific guidelines, “[r]easonable county-to-county variation is not discrimination.” Id.
104 Those six counties are: Clayton County, Cobb County, DeKalb County, Fulton County, Muscogee County,
and Webster County.
105
Plaintiffs’ geographic uniformity claim differs from its Anderson- Burdick claim. A geographic uniformity
claim examines the differences in the implementations of Exact Match, whereas the Anderson- Burdick
claim examines the burdens imposed by Exact Match. To establish a geographic uniformity claim, the Court
must determine who conducted the matches and whether the differences in process burdened voters. But
to establish an Anderson- Burdick claim, the Court must determine what burdens the statute itself had
on voters.
106 “Vote denial occurs when a state, or here a municipality, employs a ‘standard, practice, or procedure’ that
results in the denial of the right to vote on account of race.” Burton v. City of Belle Glade, 178 F.3d 1175,
1197–98 (11th Cir. 1999) (citing 42 U.S.C. § 1973(a)).
107 Similarly, in the voter identification law jurisprudence (which Defendants in the case sub judice rely upon by
analogy), the Supreme Court stated that: “[f]or most voters who need [identification cards], the inconvenience
of making a trip to the [Bureau of Motor Vehicles], gathering the required documents, and posing for a

photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant
increase over the usual burdens of voting.” Crawford, 553 U.S. at 198, 128 S.Ct. 1610.
108 This session law is available through the University of Georgia at: http://neptune3.galib.uga.edu/ssp/cgi-bin/
legis-iDX..pl?sessionid=7f000001&type=law&byte=420472739.
109
In Frank, the court gave the following example: “If 99.9% of whites had photo IDs, and 99.7% of blacks
did, the same approach would yield the statement ‘blacks are three times as likely as whites to lack qualifying
ID’ (0.3 ÷ 0.1 = 3), but such a statement would mask the fact that the populations were effectively identical.”
768 F.3d at 753.
110 These percentages were extrapolated from the statistics contained in Table 1 and Table 5 of Dr. Mayer's
Expert Report.
111
This differs from the standard applied under Anderson- Burdick. Under Anderson- Burdick, when
a practice severely burdens voting, the Court must find that the practice is narrowly drawn to achieve the
State's purpose. Burdick, 504 U.S. at 434, 112 S.Ct. 2059. Accordingly, it is entirely consistent that the
Court could find a challenged practice is unconstitutional under the First and Fourteenth Amendments while
also finding that the same practice does not violate Section 2 of the VRA.
112 As stated above, this number is derived from the 2014-2018 American Community Survey's calculation of
foreign-born naturalized citizens who are living in Georgia and the registrants marked as pending noncitizens
in January 2020. The Court notes that Dr. Mayer's report does not state whether all of the individuals in
that American Community Survey were eligible to vote. Additionally, the January 2020 numbers do not state
whether all of the individuals were in fact naturalized citizens.
113 The Court notes that Plaintiffs’ expert Dr. Minnite also provided testimony regarding the history of race
discrimination in Georgia. However, the Court finds that this history was primarily focused on voting following
Reconstruction and has little relevance to the more recent history of discrimination in Georgia. PX. 1038, 3–4.
114 As discussed supra, with respect to the Fifteenth Amendment, Governor Kemp's campaign speech cannot
be used as evidence of the historical background Arlington Heights factor because the statements are not
tied to the sequence events leading to the enactment of Exact Match. See League of Women Voters of Fla.,
Inc., 32 F.4th at 1373 (stating that the “ ‘historical background’ factor should be ‘focus[ed] ... on the ‘specific
sequence of events leading up to the challenged decision’ rather than ‘providing an unlimited lookback to
past discrimination’ ”). The Gingles Senate factor regarding the use of racial appeals in political campaigns
requires the Court to look at historic as well as present day campaign rhetoric. See Gingles, 478 U.S. at 40,
80, 106 S.Ct. 2752 (affirming the district court's finding that the existence of racial appeals in North Carolina's
campaigns that dated from 1890 to 1984 weighed in favor of finding a Section 2 violation). Accordingly, the
Court finds that while Governor Kemp's campaign speech is not evidence of historical background under the
Fifteenth Amendment, Governor Kemp's campaign speech is evidence of racial appeals in campaigns under
Section 2 of the VRA.
115 For ease of reference, the Court cites to the Second Amended Complaint in its conclusion. As stated in
the Court's April 29, 2022 “governing issues” order (Doc. No. [816]), the Second Amended Complaint has
been conformed to the issues and claims presented in the Amended-Final Pretrial Order (Doc. No. [753]). In
addition, as previously noted, on May 30, 2019, the Court granted Defendants’ Motion to Dismiss based on

sovereign immunity as to the SEE and only the Count V (Section 2 of the Voting Rights Act of 1965) remained
pending at trial against said Defendant Doc. No. [68], 84.
End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

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Case 1:17-cv-02989-AT Document 1515-2 Filed 10/12/22 Page 1 of 89

Fair Fight Action, Inc. v. Raffensperger, --- F.Supp.3d ---- (2022)

3. The Secretary of State's Alleged Mismanagement of

D. Count III: Equal Protection...––––

B. The Named Parties...–––– 3. Geographic Discrimination...––––

1. Plaintiffs...–––– E. Count V: Section 2 of the Voting Rights Act...––––

2. The Named Defendants...––––

1. Analysis of the Applicable Factors

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1

extent it sought to dismiss the remaining counts against all

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3

witnesses merits recognition, and the Court further finds that

On May 12, 2022, the Court heard Defendants’ argument for

Absentee Ballot Cancellations • Lack of proper training on absentee ballot

Exact Match • Missing Identification Required (“MIDR”)

The Secretary of State's Mismanagement • Removal of eligible voters in the felon

The Court will now set forth evidence presented at trial

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 4

Fair Fight offered three representative witnesses at trial:

e) The Sixth Episcopal District, Inc.

b) Care in Action, Inc. The African Methodist Episcopal (“A.M.E.”) Church

Ebenezer Baptist Church of Atlanta, Georgia, Inc.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 5

elections, and they would handle multiple cases at a time. Tr.

2. The Named Defendants

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 6

guidance on certain aspects of election administration. Tr.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 7

Training efforts in 2020, after the election law changes in HB

b) Impact of the COVID-19 Pandemic on training

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 8

Fulton County was hit particularly hard: one of their

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 9

The Secretary of State's Office investigated the complaint,

a) Exact Match MIDR

First, the Secretary of State sends a new registering

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 10

b. Driver's license number, first twenty characters of the

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 11

Persons on Active-MIDR status may also vote by absentee

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 12

Individuals who are in pending status for citizenship can

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 13

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 14

received pursuant to 52 U.S.C. Section 20507(g), the

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 15

In other words, under current practices, regardless of the

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 16

the voter could vote. Tr. 1328:1–5 (Frechette). However, Ms.

2438:10–14; PX. 658, PX. 900, PX. 912, PX. 2019. 30

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 17

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 18

If those factors match, the registrant is automatically canceled

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 19

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 20

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 21

they ... flag as a noncitizen is actually a citizen.” Tr. 366:16–

*29 Dr. Lorraine Minnite has a bachelor's degree in