Case No. 17-11315 1579449.1 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________________ COMMON CAUSE and GEORGIA STATE CONFERENCE OF THE NAACP, Plaintiffs-Appellants, v. BRIAN KEMP, individually and in his official capacity as Secretary of State of the State of Georgia, Defendant-Appellee. __________________________________________________ Appeal from the United States District Court for the Northern District of Georgia, Atlanta Division District Court Case No. 1:16-cv-452-TCB __________________________________________________ APPELLANTS’ RESPONSE TO APPELLEE’S MOTION TO HOLD CASE IN ABEYANCE __________________________________________________ Emmet J. Bondurant Georgia Bar No. 066900 [email protected]Jason J. Carter Georgia Bar No. 141669 [email protected]Chad K. Lennon Georgia Bar No. 408953 [email protected]BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, Georgia 30309 Telephone: (404) 881-4100 Counsel for Plaintiffs-Appellants
Transcript
Case No. 17-11315
1579449.1
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
3900 One Atlantic Center 1201 West Peachtree Street NW
Atlanta, Georgia 30309 Telephone: (404) 881-4100
Counsel for Plaintiffs-Appellants
Case No. 17-11315 Common Cause v. Kemp
1579449.1
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CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Counsel for Plaintiffs-Appellants Common Cause and Georgia
State Conference of the NAACP certifies that they believe the
Certificate of Interested Persons contained in Appellee’s Motion to Hold
Case in Abeyance is complete. See 11th Cir. R. 26.1-2(c).
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Defendant-Appellee, the Secretary of State of Georgia, has moved
to hold this appeal in abeyance pending the outcome of the Supreme
Court’s decision in Husted v. A. Philip Randolph Institute, No. 16-980
(cert. granted May 30, 2017).
Plaintiff-Appellants, Common Cause and the Georgia Conference
of the NAACP, oppose this motion. Because a stay is an “intrusion into
the ordinary processes of administration and judicial review,” Va.
Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.
Cir. 1958), Plaintiffs respectfully ask this Court to hear this appeal in
the usual course. Denial of the motion is warranted for at least two
reasons.
First, while plaintiffs in both this appeal and in Husted contend
that State voter-removal programs are unlawful under the National
Voter Registration Act of 1993, only this appeal raises questions about
the constitutionality of Georgia’s challenged voter-removal program,
O.C.G.A. § 21-2-234. Husted contains no constitutional claims.1 For that
1 See Question Presented, https://www.supremecourt.gov/qp/16-00980qp.pdf (“The question presented is: Does 52 U.S.C. § 20507 permit Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the NVRA and RAVA [sic]?”)
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reason, whatever the outcome in Husted, this Court must still hear and
decide this appeal’s constitutional claim on its merits.
Second, while this case was pending in the District Court, the
Secretary agreed to suspend activity under the challenged voter-
removal program. At oral argument, counsel for the Secretary
represented to the District Court that the Secretary “is not going to
remove anybody from the registration rolls until this matter is
resolved.” (Appellants’ Appendix Vol. I, Doc. 42 at 29:6–8).
That seemingly broad representation apparently does not extend
to the pendency of this appeal. Before filing the pending motion, counsel
for the Secretary conferred with counsel for Plaintiffs. Plaintiffs’ counsel
offered to consent to this motion, if the Secretary agreed to continue the
suspension of voter-removal activities under the challenged program
until this appeal is decided. The Secretary’s counsel refused. See
Declaration of Chad K. Lennon ¶ 3 (Exhibit 1).
As detailed in the Appellants’ Principal Brief, filed June 5, 2017,
the challenged voter-removal program is unlawful. The only Court of
Appeals to consider this question agrees, and the Supreme Court is
unlikely to reverse it. Indeed, the NVRA expressly forbids states from
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removing voters from voter rolls for failing to vote. 52 U.S.C.
§ 20507(b)(2). But every year, Georgia’s voter-removal programs remove
hundreds of thousands of eligible voters from the voter rolls for “failure
to vote.” See (Appellants’ Appendix Vol. I, Doc. 1 ¶ 33, at 17)
(according to the U.S. Election Assistance Commission, Georgia
removed 372,242 voters “due to failure to vote” during the two-year
period from October 2012 to November 2014). Under Georgia’s section
21-2-234 voter-removal procedure, the Secretary initiates removal
proceedings against voters based on their failure to vote (or make other
voting-related “contact”) for three years. Put simply, this program
violates the NVRA because it “result[s] in the removal” of voters “by
reason of [their] failure to vote,” 52 U.S.C. § 20507(b)(2). And it violates
the First Amendment because it penalizes citizens for exercising their
constitutional right to express themselves by not voting.
If this motion is granted, this appeal could be held in abeyance for
more than a year, during which time the Secretary will continue to
illegally remove thousands and thousands of voters. The risk that these
voters would be removed illegally far outweighs any difficulty in
managing the case in the unlikely event that the Supreme Court
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reverses the Husted decision. Under these circumstances, Plaintiffs
respectfully ask that the motion be denied. In the alternative, if the
Court intends to grant the motion, Plaintiffs respectfully request that
the Secretary be enjoined from implementing the unlawful voter
removal program in O.C.G.A. § 21-2-234 during the pendency of this
appeal. Because the Secretary already uses other voter removal
programs to maintain Georgia’s voter list, and those programs are
independently sufficient to comply with the NVRA, there is no harm to
the state from such an injunction.
Respectfully submitted this 26th day of June, 2017.
/s/ Emmet J. Bondurant Emmet J. Bondurant Georgia Bar No. 066900 Jason J. Carter Georgia Bar No. 141669 Chad K. Lennon Georgia Bar No. 408953 BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, Georgia 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 Counsel for Plaintiffs-Appellants
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CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of FED.
R. APP. P. 27(d)(2)(A) because this document contains 675 words.
2. This document complies with the typeface requirements of
FED. R. APP. P. 27(d)(1)(E) and the type-style requirements of FED. R.
APP. P. 32(a)(6) because this document has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 (version
14.0.6112.5000) in 14-point Century Schoolbook.
/s/ Chad K. Lennon Chad K. Lennon
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CERTIFICATE OF SERVICE
I certify that on June 26, 2017, I filed this document using the
Court’s CM/ECF system, which will automatically email the document
to the following counsel of record:
Christopher M. Carr Annette M. Cowart Russell D. Willard Julia B. Anderson Cristina M. Correia ([email protected]) Josiah B. Heidt ([email protected]) 40 Capital Square SW Atlanta, Georgia 30334-1330 Telephone: (404) 656-7063 Facsimile: (404) 651-9325
/s/ Chad K. Lennon Chad K. Lennon
E X H I B I T 1
E X H I B I T
A
From: Cristina CorreiaTo: Chad K. LennonCc: Emmet J. Bondurant; Jason J. CarterSubject: RE: Common Cause v. KempDate: Wednesday, May 31, 2017 3:42:25 PM
Chad, We cannot agree to suspend list maintenance obligations, including section 234, during thependency of the appeal. The Secretary of State’s Office maintains records of all voters receiving thepostcard confirmation cards due to inactivity, and a record of any subsequent removal. While I understand that Plaintiffs do not consent to a stay, I do intend to file a motion seeking a stayin the Eleventh Circuit. Best,Cris Cristina CorreiaAssistant Attorney General40 Capitol Square SwAtlanta, GA 30034404-656-7063Fax: [email protected]
From: Chad K. Lennon [mailto:[email protected]] Sent: Tuesday, May 30, 2017 2:22 PMTo: Cristina CorreiaCc: Emmet J. Bondurant; Jason J. CarterSubject: Re: Common Cause v. Kemp Thanks Cris. Unfortunately we can't agree to a stay, especially one that will likely last until nextspring or summer, if the Secretary is planning to continue removing voters in a way that we believeis illegal. We would be happy to agree to a stay if the Secretary will agree to suspend section 234activities pending decision by the Supreme Court. This goes without saying, but we ask that the Secretary keep full records of the voters who areremoved (or transferred to the inactive list) under section 234. We expect you'll take the stepsnecessary to ensure that there will be no administrative problems in identifying those voters, so theycan be restored to the rolls if this case is resolved in our favor. Thanks,Chad
On May 30, 2017, at 10:36 AM, Cristina Correia <[email protected]> wrote:
Chad, Yes, the Secretary of State’s office intends to conduct list maintenance later this year.
Obviously, nothing will be done prior to the June 20th run-off. Best,Cris Cristina CorreiaAssistant Attorney General40 Capitol Square SwAtlanta, GA 30034404-656-7063Fax: [email protected]
From: Chad K. Lennon [mailto:[email protected]] Sent: Tuesday, May 30, 2017 11:30 AMTo: Cristina CorreiaSubject: Common Cause v. Kemp Cris,In discussing the posture of the case given the SCOTUS grant, one question has comeup: at the hearing before Judge Batten, you said the Secretary had not been removingvoters under section 234 pending the Court’s decision. Did that hiatus end after JudgeBatten’s ruling? Thanks,Chad Chad LennonBondurant Mixson & ELMorE LLP
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