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Petitioner's Emergency Motion For A Stay
Petitioner's Emergency Motion For A Stay
***EFILED***QW
Date: 5/23/2022 5:33 PM
Cathelene Robinson, Clerk
vs.
Petitioner’s Emergency
Brad Raffensperger, Secretary Motion for a Stay
of State of the State of Georgia
Respondent.
Under well-established law and the facts of this case, that requirement
stay until this Court has an opportunity resolve Durand’s petition for
law judge and the Secretary did not consider Durand’s constitutional
challenge to O.C.G.A. § 46-2-1(b), which was the sole basis for the
already cast votes for Durand in the primary and to eliminate the
imperative that Durand remains on the ballot, that all votes for her be
removed.
In the absence of the requested stay, all votes cast for Durand in
hand, the Court issues a stay, votes for Durand will be counted. Durand
2
determined that she should be disqualified, the Democratic Party would
Background 1
created under the Georgia Constitution. Ga. const. art. IV, § 1, para. I.
public utilities. O.C.G.A. § 46-2-1 et seq. Among many other duties, the
1All citations are to the record before the Office of State Administrative
Hearings unless otherwise noted.
3
In 1998, the Georgia General Assembly added a requirement that
O.C.G.A. § 46-2-1(b). Because they are elected statewide, and not by the
35:54.) Commissioner Echols was first elected in 2010, and he was re-
4
Republican. (Id. at 1:10:56.) Commissioner Pridemore is a longtime
Republican activist who has run for chair of the state party and has
February 2021, Durand was the executive director of the Smart Grid
record further, Durand stepped down from her position in February 2021
5
Durand moved to Gwinnett County, which was in District 2, in
June 2021. (Id. at 2:31:40; Ex. R12: PSC 2012 districts map packet.)
candidacy, and her candidacy was reported in at least five news media
outlets across Georgia. (Ex. R21; Tr. at 2:34:38.) Durand’s candidacy was
speaking on podcasts about her energy background for this office and
6
Durand set an initial fundraising goal of $100,000 by the end of
finance report showing that she had raised more than $110,000 for her
amount was much more than other recent Democratic candidates for
2:44:01.)
at 2:45:52.)
7
1:17:08.) Then, just after texting the map, Commissioner Pridemore
texted Commissioner Echols “Don’t forget to get her home address and
Echols then responded with Durand’s home address. (Ex. P3; Ex. P4.)
resulting map, which became the basis for Senate Bill 472 (“SB 472”),
Treutlen, Twiggs, and Wilkinson. (Compare Ex. R14: SB 472 map packet
with Ex. R12.) The total population of those counties, according to 2020
8
former District 2’s population, including all of Gwinnett County—which
(Ex. R14.)
4:10-8:10.) Senator Kennedy again told his colleagues that the changes
9
22:22-23:2.) After vigorous debate, the bill passed on a party-line vote.
(Id. at 45:24-46:5.)
14:5-9; 14-24-15:2).
16:4-12; Ex. R16: GHDC alternative map packet.) The substitute map
Oconee, Screven, and Treutlen. (Ex. R17: GHDC map overlay.) The total
10
old District 2’s population. (Ex. R20.) According to 2020 Census data, the
was no legal need to redraw the residency districts because, under the
Supreme Court’s decision in Dallas County, Ala. v. Reese, 421 U.S. 477,
districts were already within constitutional limits after the 2020 Census.
(Id. at 18:17-21.) Beverly also presented data from the Legislative and
(1973). (Ex. R4 at 19:5-10; Ex. R13: PSC 2012 with 2020 Census Data.)
11
According to 2020 Census data, the total deviation of the residency
districts in the 2012 map was 9.94%. (Ex. R13: PSC 2012 districts with
2020 data.)
the districts was not necessary to achieve the goal of equalizing the
SB 472 and maintained the cores of the existing districts. (Id.) It left
complied better with the House’s redistricting criteria and the stated
goals of SB 472 better than that bill did. (Ex. R18: House Redistricting
12
shifts since the 2010 Census. (Id. at 4:12-16.) After vigorous debate, the
The Governor signed the bill on the same day, which was the last
candidacy.)
13
not be challenged, Edwards suspended his campaign and endorsed
Seven weeks later, on April 28, the Secretary of State initiated this
Durand does not dispute, as a matter of fact, that she has not lived
within the area encompassed by the newly drawn District 2 for the
requisite time. Rather, she contends that the application of the residency
Constitution.2
2The Georgia Supreme Court has held that the protection of the equal
protection clause in the 1983 Georgia Constitution, Ga Const. Art. 1,
Sec. 1, Para. 2, is at least coextensive with the protection afforded by the
Equal Protection Clause of the United States Constitution. See Grissom
v. Gleason, 262 Ga. 374, 376 & n.1 (1992). Similarly, the Georgia
Supreme Court has held that Georgia Constitution provides broader
protection than the First Amendment to the United States Constitution.
See State v. Miller, 260 Ga. 669, 671 (1990). Though this brief focuses
14
The hearing in this matter was held on May 12. Both sides were
and to produce documents, but she failed to comply with the subpoena.
There were also several dozen exhibits admitted into the record. The
The parties filed post-hearing briefs on May 18. On May 20, the
the old District 2’s population and was drawn with the specific purpose
largely on federal caselaw, the analysis would be the same under state
law.
15
The Secretary issued a final decision on May 23. A true and correct
qualified.
Legal Standard
Discussion
for Georgia voters in the absence of a stay. The Secretary waited seven
hundreds of thousands of votes that have already been cast for her. He
will put up signs at the polls warning Election-Day voters not to vote for
disqualify Durand before the general election if she does not prevail on
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unconstitutional. This Court should therefore stay the Secretary’s
(paraphrasing Anderson, 460 U.S. 780, 789 (1983). The same test applies
scale with the character and magnitude of the asserted injury. When, at
the low end of the scale, the law “imposes only ‘reasonable,
504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 788, 788-89 n.9);
accord Cox v. Barber, 275 Ga. 415, 418 (2002). But when the law places
Norman v. Reed, 502 U.S. 279, 289 (1982)). See, e.g., Graveline v.
Benson, 992 F.3d 524, 535-39 (6th Cir. 2021) (concluding that a
on the first step in the Anderson test, and the government bears the
burden on the second and third. Fulani v. Krivanek, 973 F.2d 1539, 1544
(11th Cir. 1992); Bergland, 767 F.2d at 1554. In this analysis, “the
burden is on the state to ‘put forward’ the ‘precise interests … [that are]
justifications for the burden imposed by its rules,’” and to “explain the
Fulani, 973 F.2d at 1544 (quoting Anderson, 460 U.S. at 789). “The State
must introduce evidence to justify both the interests the State asserts
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and the burdens the State imposes on those seeking ballot access.”
these rights, of course, rank among our most precious freedoms.” Id.;
classification” between persons who can and cannot run for Public
U.S. 173, 183-87 (1979); accord Cowen, 22 F.4th at 1235. See also Dunn
Clause).
19
The Georgia Supreme Court first applied the Anderson test to the
But the court expressly noted that the new districts for Public Services
Commissioners, which had just been redrawn in April 2002, did not
office.” Id. The court also noted that “there is no evidence in the record
that the district lines were redrawn to exclude Barber specifically from
But the facts here are different. SB 472 did exclude a substantial
represents a much higher share of the population than other courts have
candidates.
20
residency requirement in a village where, by reason of an annexation
ineligible to hold office. The court applied strict scrutiny because the
which was cited with approval by the Georgia Supreme Court in Cox.
694-96 (D.N.J. 2001). Soon after the 2001 round of redistricting, the
court applied strict scrutiny based on the fact that the shifting district
lines limited the voters’ choice of candidates and thereby affect the right
to vote. Ten years later, the same court reiterated that holding and
applied heightened scrutiny based on the fact that new districts moved
Bartels, 890 F. Supp. 2d 519, 530 (D.N.J. 2012). SB 472 doubles that.
21
The limiting effect of SB 472 is exacerbated by the fact that it
came on the eve of the qualifying period. People who were moved into
District 2 at the last minute had less than a week to explore the
possibility of a campaign. And even if they decided to jump into the race,
they would be starting months behind the incumbent. That was not the
case in Cox, where the General Assembly changed the districts in early
April, 275 Ga. at 416, because the qualifying period at that time was at
the end of June. See 2001 Ga. Laws. 2d. Ex. Sess. 325 § 7.
Given the extent and timing of the change to District 2, this Court
heightened scrutiny.
factor test: (1) the impact of the challenged law; (2) the historical
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statements and actions of key legislators; (6) the foreseeability of the
disparate impact; (7) knowledge of the impact; and (8) the availability of
Sec’y of State for Al., 992 F.3d 1299, 1322 (11th Cir. 2021); see also See
Village of Arlington Heights v, Metro. Hous. Dev. Corp., 429 U.S. 252,
longtime Republican activist, drew the map. Drawing did not begin until
address—which she admits that she did for use in drawing the map—
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repeatedly that it was legally required because of population changes
when it was not. The General Assembly rejected an alternative map that
And the General Assembly passed the map strictly along partisan
elected statewide.
heightened scrutiny. See, e.g., Anderson, 460 U.S. at 793; Graveline, 992
F.3d at 536. Cf. Larios v. Cox, 300 F. Supp. 2d 1320, 1347-48 (N.D. Ga.)
24
O'Connor has explained, the political party or parties in power have an
incentive “to shape the rules of the electoral game to their own benefit.”
Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O'Connor, J., concurring).
here for both reasons that the Georgia Supreme Court recognized in Cox.
become familiar with the needs of their constituents. See, e.g., Draper v.
Phelps, 351 F. Supp. 677 (W.D. Okla. 1972) (three judge district court)
26
C. Political Question Doctrine
Court’s jurisdiction. (Tr. at 3:14:00.) But this argument misses its mark
III of the United States Constitution. 139 S. Ct. at 2493-94. And Rucho
in state courts. Id. at 2507-08. (See Ex. P11 at 17 n.10 (noting that
proceeding).)
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state courts. Indeed, Cox was one such challenge, and so were Anderson,
did not present a political question. 393 U.S. at 28. Rucho did not
purport to overrule Williams, which remains good law on that issue and
explains why courts like those cited above routinely decide constitutional
means.” Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th
Cir. 1981). Harms that touch upon the constitutional and statutory
irreparable. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion); League of Women Voters v. North Carolina, 769 F.3d 224, 247
(4th Cir. 2014); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.
2012); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); Ga. State
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Conference of the NAACP v. Fayette Cnty. Bd. of Comm’rs, 118 F. Supp.
the absence of a stay, voters will be warned not to vote for her, and any
votes cast for her will not be counted. And there would be no way to
Durand’s favor here. The Secretary of State will suffer no harm if a stay
The public interest in this case is clear. “[I]t is always in the public
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en
banc) (quoting Awad v. Ziriax, 670 F.3d 1111, 1131–32 (10th Cir. 2012)),
aff’d 134 S. Ct. 2751 (2014); accord League of Women Voters of N.C., 769
F.3d at 247. A stay will ensure that voters in the Democratic primary
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discriminatory district lines. A stay will ensure that all votes will be
Conclusion
For the foregoing reasons, this Court should stay the Secretary’s
disqualification from polling places and to count all lawful votes cast for
Respectfully submitted,
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Certificate of Service
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IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
Patty Durand,
Case No. __________________
Petitioner,
vs.
Proposed
Brad Raffensperger, Secretary Order
of State of the State of Georgia
Respondent.
District 2. Having considered the motion, and for good cause shown, IT
ORDERED that the Secretary shall instruct all county election officials
§ 21-2-5 (c) and shall count all otherwise lawful votes cast for Durand in
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SO ORDERED, this _____ day of May, 2022.
___________________________________
The Honorable Melynee Leftrigde
Superior Court of Fulton County
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