IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

COMMUNITY DEVELOPMENT FUND,

INC., as an organization; COMMON CAUSE;

as an organization; LOWER MUSKOGEE

CREEK TRIBE,

Plaintiffs,

v.

BRAD RAFFENSPERGER, in his official

Defendant.

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declaratory and injunctive relief against Brad Raffensperger, in his official capacity

as the Georgia Secretary of State; Rebecca N. Sullivan, David J. Worley, Matthew

Mashburn, and Anh Le in their official capacities as members of the State Election

Board, to enjoin the enforcement and implementation of Georgia Senate Bill 202

(“SB 202”), an omnibus voter suppression bill passed by the Georgia General

Assembly on March 25, 2021 and signed into law the same day by Georgia

Governor, Brian Kemp.

2. SB 202 is the culmination of a concerted effort to suppress the

participation of Black voters and other voters of color by the Republican State

20510)(“NVRA”) after notice of NVRA violations are served on the appropriate

parties and the pre-litigation notice period expires.

A copy of SB 202 as passed by the Georgia General Assembly on March 25, 2021

(“SB 202/AP”) is available on the Georgia General Assembly’s website at this

link: https://www.legis.ga.gov/api/legislation/document/20212022/201498 (last

checked 3/27/21).

electorate comprised of Black voters and other voters of color. Additionally, as

demonstrated by election analyses, Black voters and voters of color usually

provide strong support to Democratic candidates. The demographic changes and

voters of color in order to maintain the tenuous hold that the Republican Party has

in Georgia. In other words, these officials are using racial discrimination as a

means of achieving a partisan end. These efforts constitute intentional

discrimination in violation of the Constitution and Section 2 of the Voting Rights

Act.

3. SB 202’s sweeping changes are aimed at suppressing the vote of

voting by absentee ballots, and the use of absentee ballot drop boxes - means of

voting that have been increasingly used by Black, Latinx, Asian American,

members of indigenous populations and other voters of color. In the most recent

elections in 2020 and 2021, voters of color used these methods of voting in

numbers not seen before. In response, the Georgia General Assembly enacted SB

202 to limit access to these voting methods and burden their use.

color who are negatively impacted by long lines and delays at the polls and stand

to suffer most when charitable organizations can no longer provide such items to

voters waiting to vote.

5. SB 202 also threatens the power of county election boards,

responsible for ensuring that voters of color are able to participate equally in the

political process, by stripping the Secretary of State of his vote on the State

by the General Assembly and granting the State Election Board the power to

effectively take over the County Board. SB 202, Section 5.

6. The provisions of SB 202, viewed individually or collectively,

threaten the fundamental right to vote of all Georgians, but their impact will be felt

most intensely by persons of color, which is precisely what the legislature

JURISDICTION AND VENUE

8. The Court has jurisdiction of this action pursuant to 28 U.S.C. §

1343(a) because it seeks to redress the deprivation, under color of state law, of rights,

privileges and immunities secured by the Voting Rights Act, and 28 U.S.C. § 1331

because it arises under the laws of the United States.

9. This Court has jurisdiction to grant both declaratory and injunctive

because a substantial part of the events or omissions giving rise to the claims

occurred in this District.

PARTIES

organization that was founded in 1941. Its mission is to eliminate racial

discrimination through democratic processes and ensure the equal political,

educational, social, and economic rights of all persons, in particular African

13. The Georgia NAACP has branches in counties across the state of

Georgia that are involved in voter registration, voter assistance, voter education,

election protection, grassroots mobilization, and get-out-the-vote efforts, including

Sunday early voting events, such as “Souls to the Polls.”

14. The Georgia NAACP has sought to prevent efforts to suppress or

disenfranchise African American voters and has been involved in voting rights

15. The Georgia NAACP engages in voter outreach efforts, including

voter education on voting in-person during early voting, voting by mail and voting

in person on election day.

16. The Georgia NAACP has engaged in GOTV campaigns. One of the

key components of these campaigns is providing accurate information regarding

mail-in ballots to the Georgia NAACP’s membership and the rest of the public.

18. The Georgia NAACP has conducted text and phone banking programs

and reached out to voters throughout Georgia to encourage voter participation and

to educate the public about the voting process, including about voting by mail.

19. Many of the Georgia NAACP’s members have voted by mail in the

past and stand to be negatively impacted by the substantial changes to Georgia’s

vote by mail procedures that have been enacted as part of SB 202. Many more will

changes to early voting times and days and the requirement of a sworn affidavit for

voters who go to the wrong precinct to vote prior to 5 p.m., as set forth in SB 202.

Many Georgia NAACP members are at risk of being disenfranchised by the

changes in SB 202.

20. The Georgia NAACP has an interest in preventing the

by the enactment of SB 202, the Georgia NAACP will not only have to change its

messaging to voters of color about these changes, but the NAACP will also have to

divert considerable resources from its ongoing election protection, advocacy, and

get out the vote efforts to educate and assist eligible voters.

22. The Georgia NAACP will also have to divert its resources to educate

voters about the substantial changes to the mail voting process, and will have to

2020 election and will be confused by the fact that they are not available outside

early voting locations in the future.

23. The Georgia NAACP has traditionally provided transportation to the

polls for voters on Election Day. The Georgia NAACP will have to divert

resources to physically transport voters to the county board of elections to drop off

24. The Georgia NAACP’s additional efforts to educate voters whose

mail ballots are rejected due to the new ID requirements and other procedures will

force the Georgia NAACP to have to divert substantial resources away from core

activities such as voter registration and other efforts such as criminal justice work.

This is due to the fact that the Georgia NAACP’s resources are limited.

25. Plaintiff THE GEORGIA COALITION FOR THE PEOPLE’S

place of business located in Atlanta, Georgia. The GCPA is a coalition of more than

30 organizations, which collectively have more than 5,000 individual members.

registration drives. After Gwinnett County became a covered jurisdiction for

Spanish under Section 203 in December 2016, GALEO LCDF has worked also

with the Gwinnett County Board of Registration and Elections (“BORE”) in an

voters with information about the presidential primary as well as additional mailers

after the primary was postponed due to COVID-19.

46. GALEO LCDF also sent several rounds of bilingual mailers to all

Latinx Georgia voters for both the General Election and the January 5, 2021

runoffs. GALEO LCDF also ran paid advertisements on Spanish media (radio &

TV) to promote voting and educate voters about voting for both elections.

disenfranchise Latinx, language minority voters and voters of color, GALEO

LCDF will be forced to divert resources from his voter registration, existing voter

education programs, get out the vote (GOTV) activities and other programs to

assist voters, particularly limited English proficient voters and new Americans, in

being able to navigate the many changes and challenges of SB 202 that will make

it more burdensome for them to vote by absentee ballot, during early voting and in

promotion and protection of the democratic process, including the right of all

citizens to vote in fair, open, and honest elections. COMMON CAUSE, at the

national level and in Georgia, conducts significant nonpartisan voter-protection,

advocacy, education, and outreach activities to endure that voters are registered

and have their ballots counted as cast.

49. In Georgia, COMMON CAUSE has increased its efforts in the areas

rights in the state. COMMON CAUSE works on election administration issues

with its coalition, much of which is represented by the other plaintiffs in the instant

lawsuit.

50. COMMON CAUSE, alongside other partners in Georgia, created a

program to help recruit volunteers to monitor local board of elections meetings.

Common Cause also works with these partners in election protection efforts during

cast provisional ballots to help ensure their ballots can be counted.

52. During the 2020 election cycle, COMMON CAUSE in Georgia

assisted some 6,000 voters who cast provisional ballots to cure those ballots so

they could be counted — most were cast because the voter appeared at the wrong

precinct. As a result of the enactment of SB 202, COMMON CAUSE will

continue to divert resources that it would apply to other organizational and

including provisional ballots cast due voters appearing at the wrong precinct, often

through no fault of their own.

53. Plaintiff LOWER MUSKOGEE CREEK TRIBE is a state-recognized

tribe located in Grady County on the southwest border of Georgia. The tribal

government is located in the old tribal town of Tama, which is located in

at the polls.

54. The United States Census Bureau’s 2019 5-Year American

Community Survey (ACS) estimates indicate that 41.6% of American Indians in

Georgia do not have a computer at home and that American Indians in Georgia are

155% less likely than white Georgians to not have a computer at home. This makes

it more likely that Georgia’s American Indian voters, including members of the

complying with SB 202’s absentee ballot provisions than white voters because they

are less likely to have a computer, printer scanner or internet access at home.

These resources are needed to obtain and print an absentee ballot application from

the websites of the Secretary of State or county registrar and to print necessary ID

documentation for the absentee ballot application and to include when returning a

voted absentee ballot to their county registrar’s office.

MATTHEW MASHBURN, AND ANH LE are members of the State Election

Board and are named herein in their official capacities.

57. The duties of members of the State Election Board include:

promulgating rules and regulations to “obtain uniformity” in the practices and

proceedings of elections officials, “as well as the legality and purity in all . . .

elections”; formulating, adopting, an orderly conduct of primaries and elections”;

standards concerning what constitutes a vote and what will be counted as a vote”;

and investigating frauds and irregularities in elections. See O.C.G.A. § 21-2-31.

of Georgia’s Election Code and voting procedures. The bill as enacted includes a

new and complicated absentee ballot application and ballot return process and

mandates new ID requirements when voting by absentee ballot, as well as when

requesting an absentee ballot. SB 202/AP Section 25.

59. The new absentee ballot ID requirements mandate that voters include

a Georgia Driver’s license number or Georgia State ID number on their absentee

ballot application. If they have neither, voters are required to copy another form of

acceptable voter ID and attach the copies of ID documents along with other

identifying information to both their absentee ballot applications and inside the

absentee ballot envelope when returning the voted ballot – thereby opening up

and organizations who are not so prohibited, such as the Plaintiffs, with a

substantial risk of incurring hefty fines for every application they send to an

individual who has not yet registered to vote or who has already requested a ballot

61. SB 202 also significantly limits the accessibility of absentee ballot

drop boxes to voters. While all counties would be required to have at least one, the

placement of drop boxes is limited to early voting locations and drop boxes are

available only to voters who can enter the early voting location during early voting

hours to deposit their ballot inside the box. Thus, drop boxes are essentially

useless to voters who can vote early in-person or who cannot access early voting

SB202/AP Section 26.

62. The bill also mandates an earlier deadline of 11 days before an

election to request an absentee ballot, leaving some voters who become ill or have

to travel out of the area in the lurch if they cannot vote during early voting and are

unable to meet the earlier deadline to apply for a ballot.

63. SB 202 gives unlimited discretion to election boards to limit early

impossible or significantly more burdensome for then to cast ballots during regular

workday hours. This change will have a disproportionate impact on Black voters

and voters of color who have low income and hourly wage jobs and will have

difficulty being able to take time off during their workday to vote between 9 am

and 5 pm.

65. Additionally, county boards of election are given unfettered discretion

days. SB 202/AP, Section 28.

66. Georgia Secretary of State statistics demonstrate that Black voters and

other voters of color utilize Sunday early voting hours significantly more than

White voters. Black voters and other voters take part in GOTV efforts focused on

Sunday early voting, including “Souls to the Polls” events hosted by Black

churches and other faith-based organizations that provide rides to the polls

they are registered to vote. SB 202 /AP Section 34.

68. Under SB 202, voters who arrive to vote after 5 pm and sign an

affidavit under penalty of perjury that they cannot get to their home precinct before

the close of the polls will be able to cast a provisional ballot which will count with

respect to the same contests on the voter’s home precinct ballot. All other voters

who arrive at the incorrect precinct before 5 pm can cast a provisional ballot at the

count, they will be required to vote at their home precinct, even if they cannot get

to their home precinct by the time polls close. The Board of Elections is tasked

with reviewing the sworn statements submitted by the voters who cast provisional

out of precinct ballots after 5 pm, but it is unclear what the purpose of that review

would be.

69. SB 202 shortens the runoff period to four weeks following the

absentee ballots and limiting access to early voting will likely result in longer lines

and delays at the polls on Election Day, particularly for Black voters and voters of

color in Georgia who are more often than white voters impacted by lines and

delays when voting on election day. See, e.g., Stephen Fowler, Why Do Nonwhite

Georgia Voters Have To Wait In Line For Hours? Too Few Polling Places,

Georgia Public Broadcasting, October 17, 2020, accessible at:

have-to-wait-in-line-for-hours-too-few-polling-pl

71. Compounding the burden on Black and Brown voters who experience

long lines and delays at the polls, SB 202 also criminalizes “line-warming,” the act

the pandemic, with a greater percentage of Black and Asian voters choosing to

vote by mail than White voters.

83. Persons of color in Georgia, and particularly Black voters, have

chosen to take advantage of early voting opportunities even before the pandemic,

at rates comparable to, and often higher than White voters. This is particularly so

of Georgia’s registered voters.

84. Black residents of Georgia are 88% more likely than white Georgia

residents to be below poverty level, and, upon information and belief, as a result

are less likely to possess the IDs required by SB 202, and more likely to encounter

technology access issues that would render the printing and copying requirements

of SB 202 more burdensome on them.

residents to be below the poverty level, and, upon information and belief, as a

result are less likely to possess the IDs required by SB 202, and more likely to

encounter technology access issues that would make the printing and copying

requirements of SB 202 more burdensome.

86. Black Georgians are 58% more likely than white Georgians to lack

persons of color in Georgia are more likely than white voters in Georgia to hold

jobs that do not give them the flexibility to take off from work during the time that

early voting and drop boxes are available under the new restrictions of SB 202.

90. Since 2013, Georgia has experienced polling place closures,

consolidations, and changing of locations of polling places, often in communities

of persons of color.

lines to vote in Georgia when they vote in person.

claims of voter fraud and election irregularities. Eleven such bills were proposed in

Georgia itself.

93. The procedure leading up to the passage of SB 202 was rushed and

irregular. Bills covering the same subjects, but with slightly conflicting provisions

were introduced in both houses of the Georgia legislature, sometimes in the same

house. Committee hearings were scheduled on the bills, but without posted

agendas, and without ample notice to the public or opportunity for the public to

view the proceedings without attending them in person.

94. Throughout the hearings held on these bills, the legislators were

and disproportionately impact populations of persons of color.

95. For example, at a February 19, 2021 hearing on a related bill that

202, representatives of the Georgia Coalition for the People’s Agenda noted that

“prohibiting of early voting on Sundays, and therefore the elimination of the Souls

to Polls, feels like a direct attack on certain communities.”

96. At this same hearing, representatives from the Southern Poverty Law

long, and limited to the issue of distribution of absentee ballot applications. At that

hearing, representatives of community groups alerted the Committee to the

potential negative impact of the civil penalties for distributing absentee ballot

applications to certain voters would have on such community groups.

98. On March 17, 2021, at a hearing of the House Special Committee on

Election Integrity, SB 202 was discussed, despite no agenda for the hearing being

99. At this March 17, 2021 hearing, community organizations and civil

rights organizations, including from the Georgia Coalition for the People’s

Agenda, expressed multiple concerns to lawmakers about SB 202, including the

lack of transparency and irregular process, as well as concerns about the bill taking

local authority away from county election officials.

100. On March 18, 2021 – the very next day – SB 202 was amended again,

101. On March 19, 2021, two further substitutions to the bill were made

and released to the public.

102. On March 22, 2021, an hour before a scheduled hearing of the House

Special Committee on Election Integrity on March 22, 2021, House leadership

shared the new over 90-page version of SB 202 with Democratic members of the

Committee. Chairman Fleming refused to take additional comment on the bill,

103. When SB 202 was first passed over from the Senate to the House on

March 9, 2021, it was a 2-page bill that dealt only with restrictions concerning

individuals and third-party groups sending absentee ballot applications to

prospective voters. In a matter of two weeks, the bill had grown to over 90 pages

dealing with numerous topics.

104. During the debate on the House and Senate floor on SB 202, Black

The failure to attach a fiscal note to the bill was raised on the Senate floor, but was

summarily rejected by the President of the Senate.

107. Throughout the debate on SB 202, its supporters attempted to justify

the bill using language similar to that used by former President Trump and his

allies concerning non-existent election irregularities in the 2020 Georgia

Presidential vote. Representative Barry Fleming, Chair of the House Special

part of town down near the docks” where the “chance of being shanghaied” is

significant.

52 U.S.C. § 10301 and 42 U.S.C. § 1983

(Discriminatory Purpose in Violation of the

Section 2 of the Voting Rights Act, Against all Defendants)

108. Plaintiffs repeat and re-allege each and every allegation contained in

Paragraphs 1 to 107 above, as if fully set forth herein.

109. 42 U.S.C. § 1983 authorizes suits for the deprivation of a right

secured by the Constitution or the laws of the United States caused by a person

112. Both the Fourteenth and Fifteenth Amendment prohibit intentional

racial discrimination by state actors.

113. Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, in

114. A violation of Section 2 of the Voting Rights Act may be based either

on a finding of a discriminatory purpose behind the challenged governmental

138. As a result of SB 202’s requirements and prohibitions described

above, individually and collectively, under the totality of the circumstances, the

political process in Georgia is not equally open to participation to Black voters and

vote of U.S. citizens who are residents of Georgia on account of their race or color,

or membership in a language minority group, in violation of Section 2 of the

Voting Rights Act.

140. Implementation of SB 202 will irreparably harm Black voters and

other voters of color.

141. Plaintiffs repeat and re-allege each and every allegation contained in

Paragraphs 1 to 140 above, as if fully set forth herein.

142. The First and Fourteenth Amendments of the United States

Constitution protect the right to vote as a fundamental right. The First

Amendment’s guarantees of freedom of speech and association protect the right to

vote and to participate in the political process.

143. The right to vote is a fundamental constitutional right also protected

by both the due process and equal protection clauses of the Fourteenth

Amendment. See, e.g., Bush v. Gore, 531 U.S. 98, 104-05 (2000); Harper v. Va.

State Bd. of Elections, 383 U.S. 663, 670 (1966); Anderson v. Celebrezze, 460 U.S.

necessary to burden the plaintiffs' rights.’” See Burdick v. Takushi, 504 U.S. 428,

434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

145. Even when a law imposes only a slight burden on the right to vote,

both through the individual restrictions and provisions and collectively through the

combined effect of all of the restrictions and barriers.

147. SB 202’s provisions requiring ID information and photo identification

with absentee ballot applications and ballots imposes a substantial burden on all

voters. This burden is unnecessary and is not outweighed by any purported State

interest.

by the Secretary of State and third parties, imposes a substantial burden on voters

trying to apply for and vote absentee that is not outweighed by any purported state

interest.

149. SB 202’s significant limitations on early voting, in particular the

impact on Sunday early voting, impose a substantial burden on all voters; this

burden is unnecessary and is not outweighed by any purported State interest.

otherwise restricting by arbitrary times, impose an unnecessary burden that is not

outweighed by any purported State interest.

152. SB 202 also prohibits providing food and water to voters waiting in

line at the polls, i.e., “line-warming,” which serves no legitimate purpose other

than to create unnecessary burdens on those trying to vote in person.

153. The burdens caused by these provisions, individually and collectively,

disenfranchised.

154. No legitimate state interest justifies these significant restrictions and

burdens.

155. The purported goals of increasing confidence in elections or

encouraging uniformity are pretextual at best, and in fact would be harmed by

imposing the restrictions and requirements of SB 202.

put forward by the State that were not already being adequately protected by pre-

existing criminal laws and election procedures.

158. These provisions will irreparably harm Black voters and other voters

of color.

160. The First Amendment to the Constitution, as applied by the

Fourteenth Amendment, prohibits abridgement of freedom of speech.

161. SB 202, restricts Plaintiffs and their members core political speech

interest.

163. As a result of SB 202, Plaintiff organizations will not be able to carry

out a key aspect of their organizational mission.

164. Because the restrictions in SB 202 and the potential penalties extend

to Plaintiff organizations’ members, their members’ right of association is also

jeopardized.

Fourteenth and Fifteenth Amendment to the United States Constitution and Section

2 of the Voting Rights Act’s prohibitions on discriminatory purpose;

Fourteenth Amendments to the U.S. Constitution as undue burdens on the right to

free speech and freedom of association;

all persons acting in concert with them from enforcing any of the challenged

provisions of SB 202;

Dated: March 28, 2021

Counsel for Plaintiffs