Fulton County Superior Court

***EFILED***QW
Date: 5/23/2022 5:33 PM
Cathelene Robinson, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

Patty Durand, 2022CV365171

Case No. __________________
Petitioner,

vs.
Petitioner’s Emergency
Brad Raffensperger, Secretary Motion for a Stay
of State of the State of Georgia

Respondent.

Petitioner Patty Durand respectfully moves the Court for an

emergency stay of the Secretary of State’s decision, on the eve of the

primary election, to disqualify her as a Democratic candidate for Public

Service Commissioner in District 2. The Secretary’s decision is based on

the one-year residency requirement set forth in O.C.G.A. § 46-2-1(b).

Under well-established law and the facts of this case, that requirement

is unconstitutional as applied to Durand. Durand therefore requests a

stay until this Court has an opportunity resolve Durand’s petition for

judicial review on its merits.

 Good cause exists for the requested stay. First, the administrative

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

disqualification. Second, an emergency stay is necessary in this matter

to avoid disfranchising the hundreds of thousands of voters who have

already cast votes for Durand in the primary and to eliminate the

possible need for a special primary election to determine the Democratic

nominee. To preserve the integrity of the primary election, it is

imperative that Durand remains on the ballot, that all votes for her be

counted, and that all signs notifying voters of her disqualification be

removed.

In the absence of the requested stay, all votes cast for Durand in

the primary will be thrown out and Russell Edwards, a placeholder

candidate who suspended his campaign weeks ago, would be certified as

the nominee. See O.C.G.A. § 21-2-5(c). If it is later determined that

Durand was wrongfully disqualified, the State would need to hold a

special primary election to determine the nominee. If, on the other

hand, the Court issues a stay, votes for Durand will be counted. Durand

will likely be certified as the Democratic nominee. If it is thereafter

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determined that she should be disqualified, the Democratic Party would

be able to choose a replacement. See O.C.G.A. § 21-2-134(b)(1)(A). No

special primary would be necessary.

A proposed order is attached.

Background 1

I. The Georgia Public Service Commission

The Georgia Public Service Commission is a five-member body

created under the Georgia Constitution. Ga. const. art. IV, § 1, para. I.

The jurisdiction, powers, and duties of the Public Service Commission

are prescribed by state law, and they include broad governmental

authority to supervise and regulate common carriers, railroads, and

public utilities. O.C.G.A. § 46-2-1 et seq. Among many other duties, the

Commission regulates the rates that Georgians may be charged by

electric, natural gas, and telephone companies. Id.

Georgia law provides that commissioners are elected statewide for

six-year terms. O.C.G.A. § 46-2-1(a). Elections for commissioners are

held on a partisan basis. (Ex. P14: Sample Democratic primary ballot.)

1All citations are to the record before the Office of State Administrative
Hearings unless otherwise noted.
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In 1998, the Georgia General Assembly added a requirement that

commissioners must reside within specific districts and must have

resided in that district “for at least 12 months prior to election thereto.”

O.C.G.A. § 46-2-1(b). Because they are elected statewide, and not by the

voters in their district, commissioners represent the entire state. They

do not focus on the specific interests of the voters in their district.

(Testimony of Commissioner Echols, Tr. at 38:11; Testimony of

Commissioner Pridemore, Tr. at 1:44:10.)

Commissioner elections are staggered, and District 2 is up for

election in 2022. O.C.G.A. § 46-2-1(d). The incumbent commissioner from

District 2 is Tim Echols. (Testimony of Commissioner Echols, Tr. at

35:54.) Commissioner Echols was first elected in 2010, and he was re-

elected in 2016. (Id. at 36:26.) Commissioner Echols is running for re-

election as a Republican in 2022. (Id. at 36:32.) Commissioner Echols

launched his re-election campaign on or before November 6, 2021. (Ex.

R8: Echols declaration of intent.)

Tricia Pridemore is the chair of the Public Service Commission

and is the incumbent commissioner from District 5. (Testimony of

Commissioner Pridemore, Tr. at 1:10:00.) Commissioner Pridemore is a

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Republican. (Id. at 1:10:56.) Commissioner Pridemore is a longtime

Republican activist who has run for chair of the state party and has

supported dozens of Republican candidates. (Id. at 1:45:20)

II. Durand’s Candidacy

Durand has been a Georgia resident for more than 26 years.

(Testimony of Patty Durand, Tr. at 2:20:22.) From January 2011 until

February 2021, Durand was the executive director of the Smart Grid

Consumer Collaborative, a nonprofit organization working to promote

the benefits of creating a next-generation energy infrastructure in the

United States. (Id. at 2:20:54.) As part of her work, Durand often

interacted with commissioners and their staff. (Id. at 2:20:08.) Durand is

well known in the energy industry. (Id. at 2:23:00.)

Durand had a contentious meeting with Commissioner Echols in

February 2020 concerning Commissioner Echols’ recent vote to raise

utility rates. (Id. at 2:23:30.) After researching Commissioner Echols’

record further, Durand stepped down from her position in February 2021

to become a Democratic candidate for Public Service Commissioner in

District 2. (Id. at 2:20:46; id. at 2:28:46.)

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 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.)

Durand formally launched her campaign for Public Service

Commissioner in July 2021. (Tr. at 2:06:21; id. at 2:31:55; Ex. R10:

Durand declaration of intent; Ex. R21: Durand campaign

announcement.) Durand issued a media advisory announcing her

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

also reported in the Atlanta Journal Constitution’s online political

newsletter “The Jolt”, which is widely read by elected officials and

political followers. (Tr. at 2:34:38.) Durand posted her candidacy on

many social media platforms including Twitter, LinkedIn, Facebook and

Instagram. (Id. at 2:32:11.) Durand also engaged in other typical

campaign activities: soliciting friends, neighbors, and colleagues for

donations; writing blogs, newsletters and social media posts about

Georgia’s energy situation and her hopes and plans as a commissioner;

speaking on podcasts about her energy background for this office and

vision for Georgia if elected; hiring campaign staff; and attending

Democratic party events, for example. (Id. at 2:32:11.)

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 Durand set an initial fundraising goal of $100,000 by the end of

the year. (Id. at 2:36:56.) In January 2022, Durand filed a campaign-

finance report showing that she had raised more than $110,000 for her

campaign. (Id. at 2:42:27; Ex. R11: Durand fundraising report.) That

amount was much more than other recent Democratic candidates for

Public Service Commissioner had reported in their end-of-year

fundraising reports. (Tr. at 2:42:07.) Candidates and politicos regularly

look at campaign fundraising reports to gauge the seriousness of a

candidate or campaign. Durand’s total was reported in the media. (Id. at

2:44:01.)

At that point, she was Commissioner Echols’ only challenger. (Id.

at 2:45:52.)

III. Durand is Drawn Out of District 2

On January 26, 2022, Commissioner Pridemore texted

Commissioner Echols a photo of a map she had drawn that reconfigured

the commission’s residency districts. (Ex. P3: Echols-Pridemore text

exchange; Ex. P4: Screenshot of text between Pridemore and Echols.)

Commissioner Pridemore’s January 26 map kept Gwinnett County in

District 2. (Ex. P.4; Testimony of Commissioner Pridemore, Tr. at

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1:17:08.) Then, just after texting the map, Commissioner Pridemore

texted Commissioner Echols “Don’t forget to get her home address and

send it to me please.” (Ex. P4.) She was referring to Durand. (Tr. at

1:12:48.) Commissioner Pridemore asked for Durand’s home address for

use in connection with her map-drawing. (Tr. at 1:13:06.) Commissioner

Echols then responded with Durand’s home address. (Ex. P3; Ex. P4.)

Commissioner Pridemore thereafter revised her map with the

assistance of Gina Wright, executive director of Georgia’s Legislative

and Congressional Reapportionment Office. (Tr. at 1:40:30.) The

resulting map, which became the basis for Senate Bill 472 (“SB 472”),

removes Gwinnett County from District 2.

SB 472 removes the following counties from the 2012 District 2:

Baldwin, Bibb, Bleckley, Gwinnett, Houston, Johnson, Jones, Laurens,

Treutlen, Twiggs, and Wilkinson. (Compare Ex. R14: SB 472 map packet

with Ex. R12.) The total population of those counties, according to 2020

Census data, is 1,444,834. (Ex. R15: 2020 population county by county

name; Ex. R19: demonstrative SB 472 calculations.) The total population

of Gwinnett County, according to 2020 Census data, is 957,062. (Ex.

R15.) The new districts thus remove approximately 66 percent of the

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former District 2’s population, including all of Gwinnett County—which

alone comprised approximately 44 percent of the former District 2’s

population. (Ex. R19.) According to 2020 Census data, the total

population deviation of the residency districts in SB 472 is 1.55 percent.

(Ex. R14.)

Republican Senator John F. Kennedy introduced SB 472 in the

Senate on February 7. (Ex. R6: SB 472 Bill History.) The Senate

Reapportionment and Redistricting Committee, chaired by Senator

Kennedy, held a hearing on SB 472 on February 16. (Ex. R2: Transcript

of Senate Committee Hearing on SB 472 at 3-23.) Commissioner

Pridemore presented the bill to the committee. (Id. at 7:1-8:3.) Both

Senator Kennedy and Commissioner Pridemore told the committee that

the old districts had to be redrawn because of population changes

reflected in the 2020 Census. (Id. at 4:21-5:1; 7:4-8.) The committee

recommended passage of the bill by a vote of 8 to 3. (Id. at 22:15-22.)

Eight days later, Senator Kennedy presented SB 472 on the floor

of the Senate. (Ex. R3: Transcript of Senate Floor Debate on SB 472 at

4:10-8:10.) Senator Kennedy again told his colleagues that the changes

were necessary because of population shifts. (Id. at 4:22-5:6; 9:6-10:13;

9
22:22-23:2.) After vigorous debate, the bill passed on a party-line vote.

(Id. at 45:24-46:5.)

On March 2, 2022, the House Legislative and Congressional

Reapportionment Committee held a hearing on SB 472. (Ex. R4:

Transcript of House Committee Hearing on SB 472 at 3-34.)

Senator Kennedy, accompanied by Commissioner Pridemore, presented

the bill. (Id. at 3:19-8:8.) Both Senator Kennedy and Commissioner

Pridemore once again justified the new districts as legally necessary to

address population changes. (Id. at 4:18-22; 7:4-6; 7:19-24; 12:20-13:5;

14:5-9; 14-24-15:2).

Also at the hearing, Democratic Representative Kim Alexander

offered a substitute map for the residency districts in SB 472. (Id. at

16:4-12; Ex. R16: GHDC alternative map packet.) The substitute map

removed the following counties from the 2012 District 2: Bleckley,

Clarke, Emanuel, Greene, Hancock, Jefferson, Jenkins, Laurens,

Oconee, Screven, and Treutlen. (Ex. R17: GHDC map overlay.) The total

population of those counties, according to 2020 Census data, is 327,897.

(Ex. R15; Ex. R20: demonstrative GHDC calculations.) The GHDC

alternative thus would have removed approximately 15 percent of the

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old District 2’s population. (Ex. R20.) According to 2020 Census data, the

total population deviation of the residency districts in the substitute

map is 1.26 percent. (Ex. R16.)

House Minority Leader James Beverly presented the map to the

committee. (Ex. R4 at 16:25-21:2.) Leader Beverly explained that there

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,

480-81 (1975), the one-person-one-vote principle does not apply to

residency districts. (Ex. R4 at 18:3-16.) Leader Beverly further explained

that, even if the one-person-one-vote principle did apply, the existing

districts were already within constitutional limits after the 2020 Census.

(Id. at 18:17-21.) Beverly also presented data from the Legislative and

Congressional Reapportionment Office showing that the overall

population deviations among the districts in the existing map were

below the 10-percent threshold that the Supreme Court held to be

presumptively constitutional in Gaffney v. Cummings, 412 U.S. 735

(1973). (Ex. R4 at 19:5-10; Ex. R13: PSC 2012 with 2020 Census Data.)

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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.)

Leader Beverly also explained that substantial reconfiguration of

the districts was not necessary to achieve the goal of equalizing the

population among the districts. (Ex. R4 at 20:13-20.) The Democratic

alternative map had a lower population deviation than the districts in

SB 472 and maintained the cores of the existing districts. (Id.) It left

Gwinnett County in District 2. (Id.; Ex. R16; Ex. R17.) Overall, it

complied better with the House’s redistricting criteria and the stated

goals of SB 472 better than that bill did. (Ex. R18: House Redistricting

Guidelines.) The committee rejected the Democratic substitute on a

party-line vote and then recommended passage of SB 472 on a party-line

vote. (Ex. R4 at 26:5-27:25; 32:25-33:18.)

On Friday, March 4, SB 472 was considered on the House floor.

(Ex. R5: Transcript of House Floor Debate on SB 472 at 3-25.)

Representative Bonnie Rich presented the bill. (Id. at 3:15-4:19.) Like

Senator Kennedy and Commissioner Pridemore, Representative Rich

told her colleagues that SB 472 was necessary because of population

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shifts since the 2010 Census. (Id. at 4:12-16.) After vigorous debate, the

bill passed on a party line vote. (Id. at 22:12-25:9.)

The Governor signed the bill on the same day, which was the last

business day before the beginning of Georgia’s candidate qualification

period on Monday, March 7. (Ex. R6.) O.C.G.A. § 21-2-153(c)(1)(A).

At the time, Durand was still Commissioner Echols’ only

announced challenger. (Tr. at 2:46:17.)

IV. The Secretary Challenges Durand’s Qualifications

Durand established residency in Rockdale County, Georgia, on

March 4. (Tr. at 2:05:57.) Rockdale County is in the new District 2. (Ex.

R7: SB 472 text.)

She filed paperwork to qualify as a candidate for Public Service

Commissioner in District 2 on March 10. (Ex. P7: Durand declaration of

candidacy.)

Durand recruited another candidate, Russell Edwards, to enter

the Democratic primary as a placeholder candidate so that

Commissioner Echols would have at least a nominal opponent if she

were disqualified. When it appeared that Durand’s qualifications would

13
not be challenged, Edwards suspended his campaign and endorsed

Durand. (Tr. at 2:46:54.)

Seven weeks later, on April 28, the Secretary of State initiated this

challenge to Durand’s qualifications to be a candidate for District 2

based on the residency requirement set forth in O.C.G.A. § 46-2-1(b).

(OSAH Form 1.)

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

requirement to her candidacy under the circumstances of this case

unconstitutionally burdens her rights under the Equal Protection Clause

and the First and Fourteenth Amendments to the United States

Constitution and the corresponding protections of the Georgia

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
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 The hearing in this matter was held on May 12. Both sides were

represented by counsel. There were three witnesses—Durand,

Commission Chair Tricia Pridemore, and Commissioner Tim Echols.

Durand also subpoenaed Gina Wright to appear at the hearing to testify

and to produce documents, but she failed to comply with the subpoena.

There were also several dozen exhibits admitted into the record. The

Court made an audio recording of the proceedings.

The parties filed post-hearing briefs on May 18. On May 20, the

administrative law judge issued an initial decision, a copy of which is

attached to Durand’s petition for judicial review as Exhibit A. The

decision finds, among other things, that SB 472 removed 66 percent of

the old District 2’s population and was drawn with the specific purpose

of excluding Durand. The administrative law judge also, concluded,

however, that she is not authorized to rule on Durand’s constitutional

defenses. She then concluded that Durand is not qualified to be a

candidate for Public Service Commissioner in District 2.

largely on federal caselaw, the analysis would be the same under state
law.
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 The Secretary issued a final decision on May 23. A true and correct

copy of that decision is attached to Durand’s petition for judicial review

as Exhibit B. The Secretary’s decision concludes that Durand is not

qualified.

Legal Standard

The Georgia Code authorizes this Court to stay a decision of the

Secretary of State regarding candidate qualifications “upon appropriate

terms for good cause shown.” O.C.G.A. § 21-2-5(e).

Discussion

Good cause exists here because of the devastating consequences

for Georgia voters in the absence of a stay. The Secretary waited seven

weeks to challenge Durand’s qualifications and now seeks to throw out

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

her. And none of this is necessary because there is plenty of time to

disqualify Durand before the general election if she does not prevail on

her defenses. But Durand’s defenses have substantial merit. Under

well-established law and the circumstances of this case, the application

of Georgia’s durational residency requirement to Durand’s candidacy is

16
unconstitutional. This Court should therefore stay the Secretary’s

decision until Durand’s defenses can be heard.

I. Durand is likely to prevail on the merits.

To determine whether Georgia’s durational residency requirement

for Public Service Commissioners violates the Equal Protection Clause

or the First and Fourteenth Amendments as applied here, this Court

must apply the balancing test set forth in Anderson v. Celebrezze:

First, a court must evaluate the character and magnitude

of the asserted injury to rights protected by the First and
Fourteenth Amendments. Second, it must identify the
interests advanced by the State as justifications for the
burdens imposed by the rules. Third, it must evaluate the
legitimacy and strength of each asserted state interest and
determine the extent to which those interests necessitate
the burdening of the plaintiffs’ rights.

Bergland v. Harris, 767 F.2d 1551, 1553-54 (11th Cir. 1985)

(paraphrasing Anderson, 460 U.S. 780, 789 (1983). The same test applies

to both of Durand’s constitutional defenses. See Cowen v. Ga. Sec’y of

State, 22 F. 4th 1227, 1231-35 (11th Cir. 2022).

Under the Anderson test, the level of scrutiny varies on a sliding

scale with the character and magnitude of the asserted injury. When, at

the low end of the scale, the law “imposes only ‘reasonable,

nondiscriminatory restrictions’ upon the First and Fourteenth

17
Amendment rights of voters, ‘the State’s important regulatory interests

are generally sufficient to justify’ the restrictions.” Burdick v. Takushi,

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

discriminatory or “severe” burdens on the rights of political parties,

candidates, or voters, “the regulation must be ‘narrowly drawn to

advance a state interest of compelling importance.’” Id. at 434 (quoting

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

discriminatory ballot-access scheme warranted strict scrutiny).

The party asserting constitutional rights bears the burden of proof

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

relationship between these interests” and the challenged provisions.

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

18
and the burdens the State imposes on those seeking ballot access.”

Bergland, 767 F.2d at 1554.

A. The Character and Magnitude of the Injury

As applied here, Georgia’s durational residency requirement for

Public Service Commissioners burdens two overlapping rights protected

by the First and Fourteenth Amendments: “the right of individuals to

associate for the advancement of political beliefs, and the right of

qualified voters, regardless of their political persuasion, to cast their

votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). “Both of

these rights, of course, rank among our most precious freedoms.” Id.;

accord Anderson, 460 U.S. at 787. The residency requirement also

implicates the Equal Protection Clause because it creates a “geographic

classification” between persons who can and cannot run for Public

Service Commission based on the location and duration of their

residence. Illinois State Bd. of Elections v. Socialist Workers Party, 440

U.S. 173, 183-87 (1979); accord Cowen, 22 F.4th at 1235. See also Dunn

v. Blumstein, 405 U.S. 330, 334-35 (1972) (striking down a durational

residency requirement for voting as a violation of the Equal Protection

Clause).

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 The Georgia Supreme Court first applied the Anderson test to the

residency requirement twenty years ago in Cox v. Barber. 275 Ga. at

417-18. The court applied only low-level scrutiny, finding the

requirement to be both reasonable and nondiscriminatory. Id. at 418.

But the court expressly noted that the new districts for Public Services

Commissioners, which had just been redrawn in April 2002, did not

result in “a substantial number of residents excluded from seeking

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

being a candidate.” Id.

But the facts here are different. SB 472 did exclude a substantial

number of residents from seeking office. In fact, it excluded 1,444,834

people, or 66 percent of the total population of the former District 2, from

seeking office in District 2 on the eve of the qualifying period. That

represents a much higher share of the population than other courts have

found to constitute a severe restriction on the rights of voters and

candidates.

For example, in Headlee v. Franklin County Board of Elections,

368 F. Supp. 999 (1973), the court examined a one-year durational

20
residency requirement in a village where, by reason of an annexation

close to the election, nearly one-half of the village’s residents would be

ineligible to hold office. The court applied strict scrutiny because the

durational residency requirement, combined with the recent annexation,

“obviously reduces the number of potential candidates for public office

and unnecessarily restricts voter choice.” Id. at 1003. SB 472 excluded a

greater share of the population than did the annexation in Headlee,

which was cited with approval by the Georgia Supreme Court in Cox.

SB 472 also excluded a greater share of the population than the

one-year durational residency requirement for members of New Jersey’s

state legislature at issue in Robertson v. Bartels, 150 F. Supp. 2d 691,

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

approximately one-third of residents into new districts. See Robertson v.

Bartels, 890 F. Supp. 2d 519, 530 (D.N.J. 2012). SB 472 doubles that.

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 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

should find that SB 472, as applied here, constitutes a severe limitation

on the number of viable candidates for the office that warrants

heightened scrutiny.

But there is also a second reason to apply heightened scrutiny

here: unlike Cox, we have substantial evidence that District 2 was

drawn to exclude Durand specifically as a candidate. In the Eleventh

Circuit, a court’s inquiry into discriminatory intent is guided by an eight

factor test: (1) the impact of the challenged law; (2) the historical

background; (3) the specific sequence of events leading up to its passage;

(4) procedural and substantive departures; (5) the contemporary

22
statements and actions of key legislators; (6) the foreseeability of the

disparate impact; (7) knowledge of the impact; and (8) the availability of

less discriminatory alternatives. See Greater Birmingham Ministries v.

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,

264-268 (1977). To find that governmental action was motivated by

discriminatory intent, the discriminatory motive need only be “a

motivating factor,” not the sole, dominant, or primary one. Arlington

Heights, 429 U.S. at 265-66.

The record here establishes that Commissioner Pridemore, a

longtime Republican activist, drew the map. Drawing did not begin until

after Durand launched her candidacy, gained momentum, and filed a

strong campaign-finance report that received media attention. Durand

was Commissioner Echols’ only challenger. Commissioner Pridemore’s

initial draft kept Durand’s home county in Commissioner Echols’

district, but she then asked Commissioner Echols for Durand’s

address—which she admits that she did for use in drawing the map—

and thereafter removed it. Commissioner Pridemore and other

proponents of the map gave pretextual justifications—suggesting

23
repeatedly that it was legally required because of population changes

when it was not. The General Assembly rejected an alternative map that

better complied with redistricting guidelines the stated goals of SB 472.

And the General Assembly passed the map strictly along partisan

lines—even though members of the Public Service Commission are

elected statewide.

These facts strongly support an inference that SB 472’s district

lines were motivated, at least in part, by a desire to draw Durand out of

District 2. Notably, Commissioner Pridemore never denied that she

purposefully drew Durand out of Commissioner Echols’ district, and that

is the obvious inference from her text exchange with Commissioner

Echols. Under these circumstances, the application of Georgia’s

durational residency requirement to Durand’s candidacy falls squarely

within the Supreme Court’s disfavored category of restrictions—those

that impose an unequal or discriminatory burden on an identifiable

political group. Restrictions in that category must be subject to

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.)

(three-judge district court), aff’d 542 U.S. 947 (2004). As Justice

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).

Heightened scrutiny is often necessary to ensure that the state’s

asserted interests are “not merely a pretext for exclusionary or

anticompetitive restrictions.” Id.

Heightened scrutiny under the Anderson test is thus warranted

here for both reasons that the Georgia Supreme Court recognized in Cox.

B. Asserted State Interests and Narrow Tailoring

Because heightened scrutiny applies, the Secretary of State has

the burden of demonstrating (1) that Georgia’s asserted interests in the

requirement are compelling; and (2) that the requirement is narrowly

tailored to serve those interests. 3 Bergland, 767 F.2d at 1553-54.

Requirements that a candidate live within a certain district for a

period of time are frequently justified by a state’s legitimate interest in

3 In cases where the burden on the plaintiffs’ rights is non-

discriminatory but moderate, the Anderson test demands an
intermediate level of scrutiny. See, e.g., Cooper v. Raffensperger, 472 F.
Supp. 3d 1282, 1291-92 (N.D. Ga. 2020) (Ross, J.). In this case, the choice
between strict and intermediate scrutiny is immaterial because the
residency requirement would not pass muster under either one.
25
ensuring that voters have sufficient time to become familiar with the

candidates and in ensuring that candidates have sufficient time to

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)

(upholding a six-month in-district residency requirement for members of

the Oklahoma House of Representatives). But that interest cannot

justify Georgia’s in-district residency requirement for Public Service

Commissioners because commissioners are elected statewide. O.C.G.A.

§ 46-2-1(a). Both Commissioner Pridemore and Commissioner Echols

were adamant in explaining that they do not represent the voters of

their district or pay any particular attention to their needs. The

residency requirement therefore does not serve—and actually

undermines—the connection between the commissioner and her

constituents. A commissioner’s constituents include all Georgians, not

just those who live in her or his residency district.

The Secretary, moreover, has offered no evidence to support this or

any other justification for the application of Georgia’s in-district

residency requirement here. Under these circumstances, the

requirement flunks the Anderson test.

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C. Political Question Doctrine

At the hearing of this matter, counsel for the Secretary of State—

relying on the Supreme Court’s recent partisan-gerrymandering decision

in Rucho v. Common Cause, 139 S. Ct. 2484 (2019)—argued that

Durand’s defense is a nonjusticiable political question beyond this

Court’s jurisdiction. (Tr. at 3:14:00.) But this argument misses its mark

for at least three reasons.

First, Rucho does not apply to state proceedings. Its holding is

expressly based on the limitations on federal courts imposed by Article

III of the United States Constitution. 139 S. Ct. at 2493-94. And Rucho

also observes that partisan gerrymandering claims can still be brought

in state courts. Id. at 2507-08. (See Ex. P11 at 17 n.10 (noting that

Durand can challenge the durational residency requirement in the state

proceeding).)

Second, this is not a partisan gerrymandering case. This is a

challenge to Durand’s qualification to appear on the ballot as a

candidate based on Georgia’s durational residency requirement. Durand

challenges the constitutionality of that qualification as applied to her.

Candidate qualifications are routinely subject to challenge in federal and

27
state courts. Indeed, Cox was one such challenge, and so were Anderson,

Williams, Headlee, Robertson, Graveline, Bergland, Draper, and other

cases cited above.

Third, the Secretary’s argument is foreclosed by Williams, which

held that a constitutional challenge to Ohio’s ballot-access requirements

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

challenges to candidate qualifications and other ballot-access laws.

II. Durand will suffer irreparable harm in the absence of a

stay.
Harm is irreparable when “it cannot be undone through monetary

means.” Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th

Cir. 1981). Harms that touch upon the constitutional and statutory

rights of political parties, candidates, and voters are generally not

compensable by money damages and are therefore considered

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

28
Conference of the NAACP v. Fayette Cnty. Bd. of Comm’rs, 118 F. Supp.

3d 1338, 1347 (N.D. Ga. 2015).

In this case, the irreparable nature of the injuries is obvious. In

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

unring that bell.

III. The balance of the equities favors the Durand.

There is no question that the balance of the equities tips in

Durand’s favor here. The Secretary of State will suffer no harm if a stay

is granted. He can still disqualify Durand after the primary if Durand

does not ultimately succeed.

IV. A stay would serve the public interest.

The public interest in this case is clear. “[I]t is always in the public

interest to prevent the violation of a party’s constitutional rights.” Hobby

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

have a choice of candidates that is not limited by the General Assembly’s

29
discriminatory district lines. A stay will ensure that all votes will be

counted. A stay, if granted, would therefore favor the public interest.

Conclusion

For the foregoing reasons, this Court should stay the Secretary’s

decision to disqualify Durand as a candidate for Public Service

Commissioner in District 2. The Court should also order the Secretary

to instruct county election officials to remove any notices of Durand’s

disqualification from polling places and to count all lawful votes cast for

Durand until such time as the stay is lifted.

This 23rd day of May, 2022.

Respectfully submitted,

/s/ Bryan L. Sells

Bryan L. Sells
Georgia Bar No. 635562
The Law Office of Bryan L. Sells, LLC
Post Office Box 5493
Atlanta, Georgia 31107-0493
Telephone: (404) 480-4212
Email: [email protected]

Attorney for the Respondent

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 Certificate of Service

I hereby certify that on May 23, 2022, I served the foregoing

document on the petitioner by electronic mail to the following addresses:

[email protected]; [email protected]; [email protected].

/s/ Bryan L. Sells

Bryan L. Sells
Georgia Bar No. 635562
The Law Office of Bryan L. Sells, LLC
Post Office Box 5493
Atlanta, Georgia 31107-0493
Telephone: (404) 480-4212
Email: [email protected]

Attorney for the Respondent

31
 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.

Before the Court is Petitioner Patty Durand’s emergency motion

for a stay of the Respondent Secretary of State’s final decision of May 23

disqualifying her as a candidate for Public Service Commissioner in

District 2. Having considered the motion, and for good cause shown, IT

IS ORDERED that the motion is granted. This Court STAYS the

Secretary’s decision under O.C.G.A. § 21-2-5(e) until this Court enters a

decision on Durand’s petition for judicial review. It is further

ORDERED that the Secretary shall instruct all county election officials

to remove all notices of Durand’s disqualification posted under O.C.G.A.

§ 21-2-5 (c) and shall count all otherwise lawful votes cast for Durand in

the May 24 primary election

32
SO ORDERED, this _____ day of May, 2022.

___________________________________
The Honorable Melynee Leftrigde
Superior Court of Fulton County

33