Case 1:18-cv-00212-LJA Document 1 Filed 11/08/18 Page 1 of 12

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION

The Democratic Party of Georgia

Plaintiff, COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF
v.

Constance Burkes, Ernest Davis Jr., Benny G.

Hand, Charles W. Lamb, Jr., Annabelle T.
Stubbs, & Frederick Williams, in their official
capacity as Superintendent of Elections of
Dougherty County
No. 1:18-cv-212
Defendants.

Not all violations of the United States Constitution are intentional (or even voluntary),

but all are insidious. During October, a confluence of extraordinary circumstances—first a

judicial injunction, then a state holiday, then a natural disaster—prevented Dougherty County

from coming even close to meeting its statutory deadline for providing absentee ballots to

electors. The result has been both a violation of Georgia law and an undue burden on the rights

of county electors, some of whom, through no fault of their own, will not have their absentee

ballots counted, because their completed ballots arrived back at the county after the close of polls

on Election Day. A simple solution to this deprivation of rights exists: this Court can issue an

injunction authorizing and instructing the Defendants to treat such ballots similarly to those sent

from electors overseas, counting them if they were postmarked by election day and received by

the county within three days following the election. Such relief is necessary to protect the right to

vote in Georgia.

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NATURE OF THE ACTION

1. The Democratic Party of Georgia files this action under 42 U.S.C. § 1983 to secure

equitable relief for the unlawful deprivation of their constituents’ and members’ constitutional

rights, privileges, and immunities guaranteed by the Fourteenth Amendment to the United States

Constitution, the First Amendment to the United States Constitution, and the laws of the United

States, and to redress harm to its organizational interests.

2. “No right is more precious in a free country than that of having a voice in the election

of those who make the laws . . . Other rights, even the most basic, are illusory if the right to vote

is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Plaintiff bring this lawsuit to

protect that right and to prevent disenfranchisement of Dougherty County voters who have been

denied the right to vote through Defendants’ implementation of Georgia’s election code.

PARTIES

PLAINTIFF

3. The Democratic Party of Georgia (“DPG”) is a state committee, as defined by 52

U.S.C. § 30101(15), and the official Democratic Party organization of the state of Georgia. It

represents a diverse group of stakeholders, including elected officials, candidate for elected

office, state committee members, advisory caucuses, affiliate groups, grassroots activists, and, of

course, active voters. DPG works to increase turnout to elect Democratic candidates at both the

state and Federal level, and assists Georgians to ensure that all eligible voters have access to the

franchise.

4. The DPG has direct organizational standing to bring a claim for a violation of the

Georgia election code and the Federal Constitution, for multiple reasons:

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5. First, Dougherty’s violation of the election code in a manner that decreases turnout is

directly contrary to DPG’s organizational mission, which includes both increasing voter turnout

in elections and helping to elect Democratic candidates to office at both the state and Federal

level. In particular, the DPG devoted extraordinary resources during the 2018 election cycle to

encouraging all voters, and particularly first-time voters, to consider voting by absentee ballot

and other forms of advance voting. The invalidation of absentee ballots frustrates that

organizational mission, not to mention results in fewer votes for Democratic candidates.

6. Second, the rejection of absentee ballots and Dougherty’s failure to comply with state

law both has already and will in the future cause a diversion of DPG’s resources. The DPG spent

substantial time and energy in advance of the election attempting to cure the problems with

Dougherty County’s absentee ballot program. For example, DuBose Porter, the Chairman of the

Democratic Party of Georgia, was personally involved in an effort to encourage the Governor of

Georgia to provide emergency relief to voters in Dougherty County. DPG expects to continue to

devote organizational resources to the problem in the future. DPG is receiving calls into its Voter

Protection Hotline from aggrieved voters in Dougherty County requesting assistance. Handling

those calls diverts employees and volunteers away from assisting other voters in the state of

Georgia, many of whom are presently calling in on other pressing matters.

7. The DPG also has representational standing based on injuries to its members. DPG’s

members include both current elected officials and current candidate for office, including

candidates who appeared on the ballot in Dougherty County. Those candidates are injured if

fewer absentee ballots are counted. DPG’s membership also includes the affected electorate

itself, who have unquestionably been injured either by having their ballots outright rejected, by

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having an undue burden placed on their voting rights, and by having to go through additional

rounds of process to make their voices heard.

8. Defendants Constance Burkes, Ernest Davis, Jr., Benny G. Hand, Charles W. Lamb,

Jr., Annabelle T. Stubbs, and Frederick Williams (“Defendants”) are each members of the

Dougherty County Board of Registrations and Elections, and collectively serve as the

Superintendent of Elections.

JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3),

(4), 1357, 1367, and 42 U.S.C. §§ 1983 and 1988.

10. This Court has personal jurisdiction over Defendants, all of whom are sued in their

official capacities and are appointed officials in the State of Georgia. All Defendants work or

reside in Georgia.

11. Venue in this district is proper under 28 U.S.C. § 1391(b)(1) and (2) because

Defendants work and reside in this district and a substantial part of the events and omissions

giving rise to these claims occurred in this district.

FACTUAL ALLEGATIONS

GEORGIA’S ABSENTEE BALLOT SCHEME

12. Georgia permits “no excuse” absentee balloting, meaning that any registered Georgia

voter can vote absentee by mail without being required to provide a reason for voting by

absentee ballot. O.C.G.A. § 21-2-380(b); Spalding Cty. Bd. Of Elections v. McCord, 287 Ga.

835, 840 (2010). To ensure that voters have adequate time to exercise their right to vote by

absentee ballot, the Board of Registrars (“Board”) or Absentee Ballot Clerk (“Clerk”) for a

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County “shall mail or issue official absentee ballots to all eligible applicants not more than 49

days but not less than 45 days prior to any . . . general election other than a municipal general

election.” O.C.G.A. § 21-2-384 (emphasis added).

13. Generally, an absentee ballot must be returned to the Board or Clerk prior to the

closing of the polls on the date of the election. When an absentee ballot is received after the

closing of the polls, the Board or Clerk “shall promptly notify the elector by first-class mail that

the elector’s ballot was returned too late to be counted and that the elector will not receive credit

for voting in the primary election.” O.C.G.A. § 21-2-386(a)(F).

14. However, not all absentee ballots must be received prior to the closing of the polls.

Overseas and military ballots “that are postmarked by the date of such primary, election, or

runoff and are received within the three-day period following such primary, election, or runoff, if

proper in all other respects, shall be valid ballots and shall be counted and included in the

certified election results.” O.C.G.A. § 21-2-386(a)(G).

THE INJUNCTION

15. According to the plain language of O.C.G.A. § 21-2-384, the Dougherty Defendants

should have issued official absentee ballots to all eligible applicants during the latter portion of

September, 2018. This deadline was disrupted, however, when a county resident seeking to be

listed as a candidate on the ballot sought and obtained an injunction, issued September 20, 2018,

prohibiting the Board from issuing any absentee ballots for the November 6, 2018 election.

16. The injunction was not lifted until approximately Friday, October 5, 2018, after the

statutory deadline for Dougherty to mail absentee ballots, and after approximately 1000

applications for absentee ballots had accumulated at the Board. The following weekday,

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Monday, October 8, was Columbus Day.

THE HURRICANE

17. By the following day, October 9, 2018, the county had begun preparing to be struck

by Hurricane Michael, a catastrophic hurricane with sustained winds of 145 miles per hour.

Hurricane Michael caused considerable damage to the county, resulting in the Governor of

Georgia declaring a state of emergency and the Federal Emergency Management Agency

designating the area eligible for individual and public disaster assistance.

18. The Board offices were closed for three days during and following Hurricane

Michael. Even after the office reopened, upon information and belief, the Board worked with

intermittent electrical power and telephone systems.

BALLOTS FINALLY ISSUE, BUT ARRIVE AND RETURN SLOWLY

19. Upon information and belief, the Board staff put considerable effort in the aftermath

of Hurricane Michael into issuing absentee ballots, including working on evenings and

weekends, but they were simply too far behind. The Board was continuing to mail absentee

ballots until at least as late as October 29, 2018, just days from the election and more than a

month behind the September deadline fixed by statute.

20. Mail is not delivered quickly in Dougherty County. In 2012, the United States Postal

Service closed the mail distribution center in Albany as a cost-savings measure and routed all

mail through a distribution center in Tallahassee, Florida. It typically took 3-4 days from when

the county listed an absentee ballot as sent for it to reach the voter, and then took multiple days

to be returned. The result is that the process of casting a ballot by mail is doubly slow, losing

days on both the delivery and the return trip.

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THE SUBSTANTIAL CUMULATIVE BURDEN ON VOTING

21. The result of this confluence of factors—an injunction, a state holiday, a powerful

hurricane, and slow mail—is that Dougherty County electors who sought to vote by absentee

ballot were significantly burdened or outright denied the franchise. Voters should have received

their ballots in September, but some or many of them did not receive them until the end of

October or the beginning of November, just days before they were due to be received back at the

Board (and with an intervening weekend in between).1

22. Although voters who request an absentee ballot sometimes still have the option of

voting in person, that process is not always practical or even possible, such as where the voter

has work or childcare obligations, is disabled, or is not physically present in Dougherty County

on the day of the election. Georgia voters rely on their right to receive absentee ballots 45 days in

advance to plan their schedules and ensure that they will be able to cast a timely ballot. In

addition, voters who have requested an absentee ballot but attempt to vote in person are subject

to an additional layer of administrative hurdles, such as the requirement that they appear in

person before and submit a written cancellation request to the Registrar or Clerk. See O.C.G.A. §

21-2-388(2). In addition, a voter who is unaware of the mail transit speed in Albany may

mistakenly believe that a ballot postmarked shortly before the election would arrive at the Board

or Clerk in time, when it may not.

23. In any event, Federal Courts have consistently held that “[w]hile it is true that

absentee voting is a privilege and a convenience to voters, this does not grant the state the

latitude to deprive citizens of due process with respect to the exercise of this privilege.” Raetzel
1
A search of “Post Offices™ and Approved Postal Providers” at usps.com indicates that no post
office locations are open in Albany on Sundays and only one is open for a portion of Saturday.

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v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990); see also

Zessar v. Helander, No. 05 C 1917, 2006 WL 642646, at *6 (N.D. Ill. 2006) (“approved absentee

voters are entitled to due process protection.”). In fact, Judge May of the Northern District of

Georgia reached a similar conclusion in the immediate lead-up to this election. See Case No.

1:18-cv-04776-LMM, Document 23, P. 22. (N.D. Ga. Oct. 24, 2018).

COUNT I:

Violation of Georgia Election Code

24. By issuing ballots in October, the County Defendants violated O.C.G.A. § 21-2-

384(a)(2), which required them to issue ballots in September 2018. The purpose of this

requirement is to ensure that electors have the right to review, complete, and return their ballots.

25. Georgia law provides any Court with jurisdiction over a dispute the power to frame

an appropriate remedy. O.C.G.A. § 9-2-3.

COUNT II:

Undue Burden on the Right to Vote in Violation of the First and Fourteenth
Amendments

26. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint

and the paragraphs in the counts below as though fully set forth herein.

27. Under the First Amendment and the Equal Protection Clause of the Fourteenth

Amendment, a state classification is subject to strict scrutiny when it “burdens the exercise of a

fundamental right guaranteed by the U.S. Constitution,” including the “fundamental rights to free

speech and to vote.” Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210-11 (10th Cir.

2002). Moreover, any state election regulation that imposes non-discriminatory restrictions on

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the right to vote must be justified by an important regulatory interest. Burdick v. Takushi, 504

U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). “However slight th[e]

burden may appear … it must be justified by relevant and legitimate state interests sufficiently

weighty to justify the limitation.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191

(2008) (Stevens, J., plurality opinion) (internal quotation marks omitted). This inquiry requires a

court to “weigh ‘the character and magnitude of the asserted injury to the rights protected by the

First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise

interests put forward by the State as justification for the burdens imposed by its rule,’ taking into

consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s

rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).

28. As set forth above, enforcing the requirement that ballots be received prior to the

close of polls where a county has failed in its obligation to mail absentee ballots sufficiently in

advance of an election would impose significant burdens on the fundamental right to vote.

Indeed, the decision by the General Assembly of Georgia to dictate by statute that ballots be

delivered sufficiently in advance of the election demonstrates that Georgia considers voters to

have a compelling interest in having adequate time to review, complete, and return their ballots.

And it certainly cannot be contended that where a voter receives a ballot too late to return it in

time to vote, that the voter has experienced a burden: that voter has been entirely denied the

franchise.

29. At the same time, there is no regulatory interest in enforcing O.C.G.A. § 21-2-

386(a)(F) under the circumstances presented here. Certainly Defendants can assert no compelling

interest in being permitted to violate O.C.G.A. § 21-2-384 without remedy. Although Defendants

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may assert a governmental interest in convenience, finality, or simplicity in rejecting absentee

ballots not received before the close of polls, this interest in minimal, because the state already

permits some absentee ballots to be postmarked the day of the election and received up to three

days later, namely overseas and military voters. Defendants already have processes in place to

count such votes, and cannot complete their canvas prior to doing so. In addition, Dougherty

County does not need to certify its results until Tuesday, November 13, after the three-day period

envisioned for military and overseas voters. Although, upon information and belief, the Secretary

of State’s office has informed the press of its intent to certify the state-wide results on November

14, 2018, it is under no obligation to do so until Monday, November 20. The result is that

providing the relief requested in this complaint will engender no delays in certifying the result

and not require the Defendants to develop any additional processes. Thus, the state has no

interest of sufficient importance to outweigh the undue burden application of O.C.G.A. § 21-2-

386(a)(F) would place on eligible voters.

COUNT III:

Arbitrary and Disparate Treatment in Violation of the Fourteenth Amendment

30. Plaintiffs reallege and incorporate by reference all prior paragraphs of this Complaint

and the paragraphs in the counts below as though fully set forth herein.

31. Under the Equal Protection Clause of the Fourteenth Amendment, “citizens enjoy ‘a

constitutionally protected right to participate in elections on an equal basis with other citizens in

the jurisdiction.’” Citizen Center v. Gessler, 770 F.3d 900, 918 (10th Cir. 2014) (quoting Dunn v.

Blumstein, 405 U.S. 330, 336 (1972)). Thus, “state actions in election processes must not result

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in ‘arbitrary and disparate treatment’” of voters. Hunter v. Hamilton Cnty. Bd. of Elections, 635

F.3d 219, 234 (6th Cir. 2011) (quoting Bush v. Gore, 531 U.S. 98, 105 (2000)).

32. As set forth above, enforcing O.C.G.A. § 21-2-386(a)(F), the requirement that ballots

be received prior to the close of polls, while providing no remedy for the government’s own

violation of O.C.G.A. § 21-2-384 that ballots be sent sufficiently far in advance, results in

arbitrary and disparate treatment of absentee voters in Dougherty County, who have received

several weeks less time to return their ballots than voters in other counties, and in some cases

have received so little time that voting absentee was de facto impossible, despite that Georgia

provides for “no excuse” absentee voting. Such arbitrary and disparate treatment of the right to

vote is inconsistent with the Fourteenth Amendment.

COUNT IV:

Denial of Procedural Due Process in Violation of the Fourteenth Amendment

33. Plaintiffs re-allege and incorporate by reference all prior paragraphs of this Complaint

and the paragraphs in the counts below as though fully set forth herein.

34. A claim for procedural due process lies when there is “(1) a constitutionally protected

liberty or property interest and (2) a governmental failure to provide an appropriate level of

process.” Citizen Center, 770 F.3d at 916. Plaintiffs and their constituents possess a

constitutionally protected right to vote, and the process by which Defendant County has

implemented the absentee ballot program has or will result in some ballots being rejected

through no fault of the elector and without providing the elector any form of process to remedy

that rejection.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment and relief as follows:

A. An order and judgment instructing Defendants that all absentee ballots received

by Dougherty County that are postmarked by November 6, 2018, and are received

within the three-day period following the election, if proper in all other respects,

shall be valid ballots and shall be counted and included in the certified election

results.

B. Such other and further relief as this Court may deem just and proper.

Dated: November 8, 2018

Respectfully submitted,

/s/ Kurt G. Kastorf

Kurt G. Kastorf
Georgia Bar No. 315315
The Summerville Firm
1226 Ponce de Leon Ave NE
Atlanta, GA 30306
(770) 635-0030
kurt@summervillefirm.com

Allegra J. Lawrence
Georgia Bar No. 439797
Lawrence & Bundy LLC
1180 West Peachtree Street, Suite 1650
Atlanta, Georgia 30309
Telephone:404-400-3350
Facsimile:404-609-2504
Allegra.Lawrence-Hardy@lawrencebundy.com

Dara Lindenbaum (Pro hac vice pending)

Sandler Reiff Lamb Rosenstein & Birkenstock P.C.
1090 Vermont Avenue NW, Suite 750
Washington, D.C. 20005
(202)734-6139
Lindenbaum@sandlerreiff.com

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JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I.! (a) PLAINTIFFS ! DEFENDANTS

The Democratic Party of Georgia Constance Burkes, Ernest Davis Jr., Benny G. Hand, Charles W.
Lamb, Jr., Annabelle T. Stubbs, & Frederick Williams

(b) County of Residence of First Listed Plaintiff Fulton County of Residence of First Listed Defendant Dougherty
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

! (c) Attorneys (Firm Name, Address, and Telephone Number) ! Attorneys (If Known)
Kurt G. Kastorf, The Summerville Firm, 1226 Ponce de Leon Ave NE, W. Spencer Lee, IV, P.O. Box 1376 (31702), 504 N. Jackson St.,
Atlanta, GA 30307. (770) 635-0030 Albany, GA 31701. (229) 888.0013!

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(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
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of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
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(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983, United States Constitution
VI. CAUSE OF ACTION Brief description of cause:
This is an emergency filing seeking to count absentee ballots of voters in the November 6, 2018 General Election.
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
/s Kurt G. Kastorf
FOR OFFICE USE ONLY

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
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I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
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date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.