The New Georgia Project v. Brad Raffensperger

Case: 20-13360 Date Filed: 10/02/2020 Page: 1 of 31

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

No. 20-13360-D
_________________________

THE NEW GEORGIA PROJECT,
REAGAN JENNINGS,
CANDACE WOODALL,
BEVERLY PYNE,

Plaintiffs - Appellees,

versus

BRAD RAFFENSPERGER,
in his official capacity as the Georgia Secretary of State
and the Chair of the Georgia State Election Board,
REBECCA N. SULLIVAN,
DAVID J. WORLEY,
MATTHEW MASHBURN,
AHN LE,
in their official capacities as Members of the
Georgia State Election Board,

Defendants - Appellants,

MARY CAROLE COONEY, et al.,

Defendants.
__________________________

On Appeal from the United States
District Court for the Northern District of Georgia
__________________________
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Before WILSON, GRANT, and LAGOA, Circuit Judges.
GRANT, Circuit Judge:
The United States Constitution still gives States the power to set the “Times,
Places and Manner of holding Elections for Senators and Representatives.” U.S.
Const. art. I, § 4, cl. 1. And that power “is matched by state control over the
election process for state offices.” Clingman v. Beaver, 544 U.S. 581, 586 (2005).

To be sure, “[n]o right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good citizens, we
must live.” Burdick v. Takushi, 504 U.S. 428, 441 (1992) (internal quotation
marks omitted). But we also know that “the right to vote is the right to participate
in an electoral process that is necessarily structured to maintain the integrity of the
democratic system.” Id.
Here, the district court misapplied the Anderson-Burdick framework when it
enjoined the State defendants’ enforcement of a long-standing Georgia absentee
ballot deadline, which requires ballots to be received by 7:00 p.m. on Election Day

to be counted. See O.C.G.A. § 21-2-386(a)(1)(F); O.C.G.A. § 21-2-403. Instead,
the district court manufactured its own ballot deadline so that the State is now
required to count any ballot that was both postmarked by and received within three
days of Election Day. And though our dissenting colleague suggests that we
should defer to the district court’s judgment on this issue, the law does not allow us
to step back: “if the trial court misapplies the law we will review and correct the

error without deference to that court’s determination.” Haitian Refugee Ctr., Inc.
v. Baker, 953 F.2d 1498, 1505 (11th Cir. 1992).

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Georgia has asked us to put its law back into force by staying the district
court’s injunction. Under Nken v. Holder, parties are entitled to a stay if they show

(1) that they will likely succeed on the merits; (2) irreparable injury absent a stay;
(3) that the stay will not substantially injure the other interested parties; and
(4) that a stay is in the public interest. 556 U.S. 418, 434 (2009). Because the

State defendants have met all four prongs of the Nken test, we grant their motion to
stay the injunction.1
First, likelihood of success on the merits. As we have already indicated, the
State defendants satisfy this standard because the district court did not properly
apply the appropriate framework. Under Anderson and Burdick, courts must weigh
the “character and magnitude of the burden the State’s rule imposes” on the right
to vote “against the interests the State contends justify that burden, and consider
the extent to which the State’s concerns make the burden necessary.” Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (internal quotation marks
omitted). If a State’s rule imposes a “severe burden” on the right to vote, then the
rule may survive only if it is “narrowly tailored” and only if the State advances a
“compelling interest.” Id. But if the rule imposes only “reasonable,

nondiscriminatory restrictions,” then “a State’s important regulatory interests will
usually be enough” to justify it. Id. (internal quotation marks omitted). As the
Supreme Court explained in Anderson and then in Burdick, election laws

1
We note that we write only for the parties’ benefit. As we recently held, because “orders
concerning stays are not a final adjudication of the merits of the appeal,” the “tentative and
preliminary nature of a stay-panel opinion precludes the opinion from having an effect outside
that case.” Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm., 950 F.3d
790, 795 (11th Cir. 2020) (internal quotation marks omitted).
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“invariably impose some burden upon individual voters.” Burdick, 504 U.S. at
433. That means strict scrutiny is not required for every voting regulation; to say

otherwise would “tie the hands of States” as they seek “order, rather than chaos” in
their elections. Id. (internal quotation marks omitted).
Here, Georgia’s decades-old absentee ballot deadline is both reasonable and

nondiscriminatory, while its interests in maintaining that deadline (especially now
that absentee voting has already begun) are at least “important”—as the district
court itself recognized—and likely compelling. The district court thus erred on
two analytical fronts: first, in finding that Georgia’s Election Day deadline
severely burdened the right to vote; and second, in improperly weighing the State’s
interests against this burden. That is, the district court abused its discretion by
applying the wrong legal standard—strict scrutiny. See Grizzle v. Kemp, 634 F.3d
1314, 1326 (11th Cir. 2011) (reversing a preliminary injunction because the district
court’s “application of strict scrutiny on review of the Plaintiffs’ constitutional

claims was error”).
The district court offered only a few paragraphs of light analysis before
concluding that the Election Day receipt deadline for absentee ballots places a

severe burden on voters. In fact, the significant bulk of the district court’s short
discussion of the burden on voters was not about Georgia—it was a description of
another district court decision from a different State, followed by the conclusion
that “[t]he situation here is similar.” New Ga. Project v. Raffensperger, --- F.
Supp. 3d ---, No. 20-cv-01986-ELR, 2020 WL 5200930, at *24 (N.D. Ga. Aug. 31,
2020). The court then suggested that here, as there, a high number of absentee-

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ballot requests due to COVID-19 “will lead to a potentially substantial backlog,
increasing the possibility that voters will receive their ballots on a later date.” Id.

at *23–24. It seemed to assume that if anyone’s ballot would be rejected because
of the deadline, the burden would “be severe.” Id. at *24.
These conclusions missed the mark. While the district court relied on the

June 2020 primary election to prove that the Election Day deadline posed a burden
on voters, it also ignored evidence that during that very primary—which also took
place during the COVID-19 pandemic—the percentage of absentee ballots rejected

as late was smaller than usual. The court offered no other analysis. In the end, as a
legal matter, it is just not enough to conclude that if some ballots are likely to be
rejected because of a rule, “the burden on many voters will be severe.” Id.; see
also Burdick, 504 U.S. at 433.
Indeed, a look at the evidence shows that Georgia’s Election Day deadline
does not implicate the right to vote at all. Georgia has provided numerous avenues
to mitigate chances that voters will be unable to cast their ballots. Voters may
request absentee ballots as early as 180 days before the election and may receive
the ballots as early as 49 days before the election. See O.C.G.A. § 21-2-

381(a)(1)(A); O.C.G.A. § 21-2-384(a)(2). They can return their ballots through the
mail, hand-delivery, or a drop box; dozens of drop boxes are available through
Election Day in numerous locations, and all jurisdictions have the authority to add
them. See O.C.G.A. § 21-2-385; Ga. Comp. R. & Regs. 183-1-14-0.8-.14. Voters
also have the option to participate in early in-person voting. O.C.G.A. § 21-2-385.
Even those who have already requested and received an absentee ballot can vote in

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person on Election Day if they properly cancel their absentee ballot. O.C.G.A.
§ 21-2-388. And though delays in the postal service may (not will) delay when

some voters receive their absentee ballots, all of these avenues remain open to any
and all voters.
The district court did not acknowledge these provisions or weigh how they

mitigate the Election Day deadline’s impact on the right to vote. Voters must
simply take reasonable steps and exert some effort to ensure that their ballots are
submitted on time, whether through absentee or in-person voting. Contrary to the

district court’s conclusion, then, no one is “disenfranchised.” And the burden on a
voter to ensure that a ballot is postmarked by Election Day is not meaningfully
smaller than the burden of, say, dropping the ballot in a drop box at one’s polling
place on Election Day.
When the alleged burdens are not severe, a compelling state interest is not
required. Timmons, 520 U.S. at 358. Here, Georgia’s regulatory interest is more
than enough to uphold its reasonable ballot-receipt restriction. The State
defendants have presented several interests that justify the deadline. These include
conducting an efficient election, maintaining order, quickly certifying election

results, and preventing voter fraud. The district court acknowledged that these
interests are “strong” and “important.” New Ga. Project, 2020 WL 5200930, at
*25. And that should have been enough. But the court, after elevating the burden
voters face to find it severe, diminished the interests of the State in order to
conclude that it did not show a compelling interest. Because the State’s Election
Day deadline imposes only a reasonable burden even on absentee voters who

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receive their ballots later than usual, the State’s interests easily survive the
Anderson-Burdick framework. Cf. Green v. Mortham, 155 F.3d 1332, 1335 (11th

Cir. 1998) (noting “states’ compelling interests” in “maintaining fairness, honesty,
and order” in the election process).
We add that the district court also erred in accepting the plaintiffs’ novel

procedural due process argument. The standard is clear: “[W]e must evaluate
laws that burden voting rights using the approach of Anderson and Burdick.”
Jacobson v. Florida Sec’y of State, --- F.3d ---, No. 19-14552, 2020 WL 5289377,

at *18 (11th Cir. Sept. 3, 2020). The district court, though, also evaluated
Georgia’s deadline under Mathews v. Eldridge and found that it additionally
violated procedural due process. Yet it cited no binding cases from any court that
apply the Mathews test to a State’s election procedures. New Ga. Project, 2020
WL 5200930, at *25. And even if we could choose to innovate a new approach
(which we cannot), we would see no reason to do so. The generalized due process
argument that the plaintiffs argued for and the district court applied would stretch
concepts of due process to their breaking point. And even looking at that approach
in the most charitable light possible, it is conceptually duplicative of the specific

test we have been instructed to apply under Anderson and Burdick.
The district court also wrongly suggested that a recent Supreme Court
decision staying a lower court election order—an order that mandated counting
Wisconsin absentee ballots postmarked after Election Day—supports its
injunction. New Ga. Project, 2020 WL 5200930, at *24 (citing Republican Nat’l
Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (RNC)). The plaintiffs

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are even more direct, stating that the Supreme Court “approved an extension of
Wisconsin’s election day receipt deadline.”

Not so. The Supreme Court specifically noted that the district court’s order
extending the absentee ballot deadline was “not challenged in this Court.” RNC,
140 S. Ct. at 1206. The Court emphasized that it considered only what it called the

“narrow, technical” question of whether the Wisconsin district court erred by
altering the election rules to permit absentee ballots postmarked after Election Day
to be counted so long as they were received within one week of the election. Id. at

1206–07. Finding that the district court “fundamentally alter[ed] the nature of the
election” and that the relief offered was not even requested by the plaintiffs, the
Court stayed that portion of the district court’s order. Id. at 1207. And it also
repeated its mantra that “lower federal courts should ordinarily not alter the
election rules on the eve of an election.” Id.
That mantra has consistently pointed the Supreme Court in one direction—
allowing the States to run their own elections. Since March, the Supreme Court
has reviewed, by our count, seven emergency motions related to district court
injunctions of state election laws due to COVID-19.2 In six of those cases it has

stayed the injunction or declined to vacate a stay issued by the circuit court. And

2
See RNC, 140 S. Ct. at 1208 (granting stay); Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020)
(granting stay); Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (2020) (denying application to
vacate Fifth Circuit’s stay); Thompson v. DeWine, No. 19A1054, 2020 WL 3456705, at *1 (U.S.
June 25, 2020) (denying application to vacate Sixth Circuit’s stay); Merrill v. People First of
Ala., --- S. Ct. ---, No. 19A1063, 2020 WL 3604049 (U.S. July 2, 2020) (granting stay); Clarno
v. People Not Politicians Or., --- S. Ct. ---, No. 20A21, 2020 WL 4589742, at *1 (U.S. Aug. 11,
2020) (granting stay); Republican Nat’l Comm. v. Common Cause R.I., --- S. Ct. ---, No. 20A28,
2020 WL 4680151, at *1 (U.S. Aug. 13, 2020) (denying stay).
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in the one case where the Court denied the application for a stay, it did so only
because the state officials and the plaintiffs had already agreed to settle the case.

See Republican Nat’l Comm. v. Common Cause R.I., --- S. Ct. ---, No. 20A28,
2020 WL 4680151, at *1 (U.S. Aug. 13, 2020). Here, we have no such agreement.
And we are not on the eve of the election—we are in the middle of it, with

absentee ballots already printed and mailed. An injunction here would thus violate
Purcell’s well-known caution against federal courts mandating new election
rules—especially at the last minute. Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006).

In sum, the State defendants have shown a high likelihood of prevailing on
the merits, which is where much of the work gets done on a stay request. But the
other factors matter too, and the defendants satisfy them. See Nken, 556 U.S. at
434.
Georgia will suffer irreparable harm absent a stay. When the district court
bars “the State from conducting this year’s elections pursuant to a statute enacted
by the Legislature,” unless the statute is unconstitutional, an injunction would
“seriously and irreparably harm the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324
(2018) (footnote omitted); see also Little v. Reclaim Idaho, 140 S. Ct. 2616, 2617

(2020) (Roberts, C.J., concurring) (“[T]he State is likely to suffer irreparable harm
absent a stay. Right now, the preliminary injunction disables Idaho from
vindicating its sovereign interest in the enforcement of initiative requirements that
are likely consistent with the First Amendment.”). The plaintiffs, on the other
hand, will not suffer irreparable injury due to the stay. Election Day is still over
one month away and these plaintiffs may submit their absentee ballots (on time) or

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take advantage of any of the other avenues that Georgia has made available to
ensure that voters are able to cast their ballots.

And finally, a stay is in the public interest. The Supreme Court has
“repeatedly emphasized that lower federal courts should ordinarily not alter the
election rules on the eve of an election.” RNC, 140 S. Ct. at 1207. Staying the

district court’s order here will prevent voter confusion, especially since Georgia
has already mailed absentee ballots with instructions that the Election Day deadline
applies. And it will also serve the other interests (conceded by the district court to

be “important”) that Georgia has set forth—including its interests in conducting an
efficient election, maintaining order, quickly certifying election results, and
preventing voter fraud. Simply put, a stay preserves the status quo and promotes
confidence in our electoral system—assuring voters that all will play by the same,
legislatively enacted rules. “Confidence in the integrity of our electoral processes
is essential to the functioning of our participatory democracy.” Purcell, 549 U.S.
at 4.
* * *
Federal judges can have a lot of power—especially when issuing

injunctions. And sometimes we may even have a good idea or two. But the
Constitution sets out our sphere of decisionmaking, and that sphere does not extend
to second-guessing and interfering with a State’s reasonable, nondiscriminatory
election rules. COVID-19 has not put any gloss on the Constitution’s demand that
States—not federal courts—are in charge of setting those rules. Because Georgia’s
decades-old Election Day deadline for absentee ballots does not threaten voting

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rights, and is justified by a host of interests, we stay the district court’s injunction
of that deadline. Appellants’ “Motion to Stay Injunction Pending Appeal” is

GRANTED.

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LAGOA, Circuit Judge, concurring:

I concur with Judge Grant. I write separately to address the merits of the

district court’s findings that (1) Georgia’s decades-old election-day deadline for

absentee ballots (the “Receipt Deadline”) impermissibly burdened the voters’ First

and Fourteenth Amendment rights to associate and vote, and (2) Georgia’s

legislatively enacted election scheme somehow violated the voters’ rights to

procedural due process. I conclude that neither of these findings are supported by

the Constitution. As such, I agree that the State has carried its burden of showing a

strong likelihood of success on the merits (as well as the other elements required for

a stay, although I do not discuss them here) and agree with Judge Grant that we

should stay the district court’s injunction pending appeal.

I.

All election laws burden the right to vote. Each provision of a state’s election

scheme, “whether it governs the registration and qualifications of voters, the

selection and eligibility of candidates, or the voting process itself, inevitably

affects—at least to some degree—the individual’s right to vote and his right to

associate with others for political ends.” Anderson v. Celebrezze, 460 U.S. 780, 788

(1983). Examples abound. If a state requires that voters present a valid

identification card in order to vote, any would-be voter who does not obtain and

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present such a card will be prevented from voting. See, e.g., Crawford v. Marion

Cnty. Election Bd., 553 U.S. 181, 202–03 (2008). If a state bans the use of write-in

voting, any would-be voter whose preferred candidate did not qualify for the election

will be prevented from voting for that candidate. See, e.g., Burdick v. Takushi, 504

U.S. 428, 441 (1992). And, as relevant here, if a state imposes a strict deadline for

the receipt of absentee ballots, any would-be voter who chooses to vote by absentee

ballot and does not return his ballot by that deadline will be prevented from having

his vote counted.

As evident from these examples, not all burdens on the right to vote are

unconstitutional. To be sure, “voting is of the most fundamental significance under

our constitutional structure.” Ill. State Bd. of Elections v. Socialist Workers Party,

440 U.S. 173, 184 (1979). It is a “fundamental political right” that is “preservative

of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). But the Constitution

also commits, via the Elections Clause, the regulation of the “Times, Places and

Manner of holding Elections” to the States. U.S. Const. art. 1, § 4, cl. 1; see also

Cook v. Gralike, 531 U.S. 510, 523 (2001) (“[T]he States may regulate the incidents

of such elections, including balloting, only within the exclusive delegation of power

under the Elections Clause.”).

Against this backdrop of competing interests, federal courts must be chary of

hearing challenges to a state’s duly enacted election procedures—particularly when

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brought at the eleventh hour. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Faced

with an application to enjoin operation of [election] procedures just weeks before an

election, the Court of Appeals was required to weigh, in addition to the harms

attendant upon issuance or nonissuance of an injunction, considerations specific to

election cases and its own institutional procedures.”). Thus, in these cases, courts

must apply a “flexible standard” to challenges involving state election laws.

Burdick, 504 U.S. at 434. As the Supreme Court explained in Burdick:

A court considering a challenge to a state election law must 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
justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary to
burden the plaintiff’s rights.”

Under this standard, the rigorousness of our inquiry into the propriety
of a state election law depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment rights. Thus, as
we have recognized when those rights are subjected to “severe”
restrictions, the regulation must be “narrowly drawn to advance a state
interest of compelling importance.” But when a state election law
provision imposes only “reasonable, nondiscriminatory restrictions”
upon the First and Fourteenth Amendment rights of voters, “the State’s
important regulatory interests are generally sufficient to justify” the
restrictions.

Id. (citations omitted).

In this case, the only state election provision at issue on appeal is Georgia’s

Receipt Deadline for absentee ballots. That deadline, pursuant to Georgia law,

requires absentee ballots to be received by 7:00 p.m. on Election Day in order to be
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counted. See O.C.G.A. § 21-2-386(a)(1)(F). If a ballot is received by county

election officials after that date and time—regardless of when the ballot was mailed

or why it was received late—the ballot will not be tallied, and the voter who mailed

the ballot will be deprived of exercising his right to vote in that election.

Every election cycle, at least some Georgians’ votes are not counted due to

this facially neutral Receipt Deadline. In 2018, for example, the district court noted

that over 3,500 absentee ballots arrived after the Receipt Deadline and, as a result,

were not counted. That figure represented 1.6% of all mail-in ballots for that cycle.

During the June 2020 primary (the first statewide election held in Georgia during

the COVID-19 pandemic), the number of late ballots rose to 7,281. That figure

represented 0.67% of all mail-in ballots submitted in June. In fact, for each year of

data presented to the district court, the percentage of ballots rejected as late fell

somewhere between 0% and 1.6%.

Despite the fact that the percentage of Georgians who had their ballots rejected

because they missed the Receipt Deadline actually dropped during the June 2020

election cycle (which, as noted above, occurred during the ongoing COVID-19

pandemic), the district court concluded that Georgia’s Receipt Deadline was

unconstitutional in light of the pandemic. Relying primarily on mail delays

associated with the ongoing pandemic, the district court said that the strict Receipt

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Deadline imposes “severe burdens on the right to vote” and will disenfranchise

voters “through no fault of their own.”

That conclusion was erroneous, and the State has more than carried its burden

of showing a likelihood of succeeding on the merits of its appeal. In this regard, the

district court’s primary error was failing to conduct any independent analysis of the

severity of the burden at issue. The district court did not, as we have previously

instructed in Greater Birmingham Ministries v. Secretary of State for Alabama, 966

F.3d 1202, 1223 (11th Cir. 2020), compare the burden of utilizing the challenged

mechanism (i.e., mailing the absentee ballot) to the alternatives provided by the state

(e.g., utilizing a drop box). Nor did the district court attempt to analyze the burden

in the abstract, as we did in Common Cause/Georgia v. Billups, 554 F.3d 1340, 1354

(11th Cir. 2009).

As explained by Judge Grant in the majority, conducting either of these

analyses would have resulted in the denial of Plaintiffs’ requested injunction. This

is because Georgia already provides a number of alternatives to the absentee voter

who fears missing an upcoming election deadline due to mail delays. The district

court itself acknowledged as much. It stated that “there are widely available

alternatives to voting by mail, including use of drop boxes or hand delivery.”

(emphasis added). But even those are not the only options. Georgia law also allows

voters—in addition to utilizing the mail, drop boxes, or hand delivery—to vote in-

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person early or on Election Day (even after originally requesting an absentee ballot).

See O.C.G.A. §§ 21-2-385, 21-2-388; Ga. Comp. R. & Regs. 183-1-14-0.6 to .14.

In fact, even if viewed only in the abstract, the burden attendant to the Receipt

Deadline still could not be characterized as severe. Georgia law allows voters to

request their absentee ballots up to 180 days before Election Day. O.C.G.A. § 21-

2-381(a)(1)(A). The voter who waits to return his absentee ballot until the very last

minute will be equally affected regardless of when the deadline is set. In other

words, it is not the application of the nondiscriminatory Receipt Deadline that

deprives a voter from having his vote counted, it is his own lack of diligence in

returning his ballot.

Against this slight burden, Georgia asserts a sufficiently important state

interest in response: the ability to conduct an efficient election, to prevent voter

fraud, and to quickly certify its election results. See Eu v. San Francisco Cnty.

Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (“A State indisputably has a

compelling interest in preserving the integrity of its election process.”); Green v.

Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998) (noting that states have a compelling

interest in “maintaining fairness, honesty, and order” in elections). The importance

of these interests is not seriously in dispute on appeal. The district court itself

acknowledged that the State’s proffered interests are both “strong” and “important.”

Indeed, with the anticipated increased use of mail-in voting during these socially

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distanced times, it is reasonable to assume that it will take longer to tabulate the

absentee ballots than it would during previous elections. Arbitrarily extending the

deadlines for receiving those absentee ballots will thus result in unnecessary delays

in calculating the result of the election and will undermine voters’ confidence in its

accuracy.

Rather than conducting these analyses, the district court based its conclusion

on Republican National Committee v. Democratic National Committee, 140 S. Ct.

1205 (2020) (“RNC”). But as Judge Grant notes, that case said nothing about the

issue presented here. Instead, RNC was concerned with the deadline by which

absentee ballots must be sent to the State, not the deadline by which absentee ballots

must be received by the State. See id. at 1206 (“The District Court’s order granting

a preliminary injunction is stayed to the extent it requires the State to count absentee

ballots postmarked after [election day].”). In fact, the Supreme Court explicitly

limited its analysis to that “narrow question” and made clear that its decision “should

not be viewed as expressing an opinion on the broader question of . . . whether other

reforms or modifications in election procedures in light of COVID-19 are

appropriate. That point cannot be stressed enough.” Id. at 1208 (emphasis added).

Nevertheless, the district court here disregarded that unambiguous directive and

decided that the Supreme Court’s decision supported its injunction. In other words,

the district court rested its entire analysis on an interlocutory order directed at a

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wholly unrelated issue. Because, on the record before us, Georgia has shown a

likelihood of succeeding on its claim that this limited burden is justified by its

important state interests, Georgia is entitled to a stay of the injunction pending

appeal.

II.

The district court did not end its analysis of the issue with Anderson/Burdick,

however. Instead, the district court also analyzed the voting-rights issue through the

lens of procedural due process. I agree with Judge Grant that the doctrine of

procedural due process has no applicability to the present dispute. I write separately

to explain, from my perspective, why this is so.

The Due Process Clause provides that no state shall “deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

Procedural due process is “a guarantee of fair procedure.” Zinermon v. Burch, 494

U.S. 113, 125 (1990). In order to trigger its protections, however, a plaintiff must

allege a constitutionally protected interest—a deprivation of life, liberty or property.

So, “[w]hen we are evaluating claims that the State has unfairly deprived someone

of liberty or property, it is appropriate first to ask whether the state action adversely

affected any constitutionally protected interest.” Ohio Adult Parole Auth. v.

Woodard, 523 U.S. 272, 291 (1998) (Stevens, J., concurring in part and dissenting

in part) (emphasis added). As such, “standard analysis under [the Due Process

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Clause] proceeds in two steps: We first ask whether there exists a liberty or property

interest of which a person has been deprived, and if so we ask whether the procedures

followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562

U.S. 216, 219 (2011).

In this case, the district court completely skipped the first step, and jumped

immediately to analyzing whether the voters were at risk of being deprived of their

liberty interests. But what interests are implicated? While the right to vote is

certainly fundamental, this case does not implicate that right—at least not directly.

Here, Plaintiffs claim a constitutionally protected interest in voting absentee. But

the Supreme Court has unambiguously held that the right to vote absentee is not a

fundamental interest that triggers Fourteenth Amendment protections. See, e.g.,

McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807–08 (1969) (“It

is thus not the right to vote that is at stake here but a claimed right to receive absentee

ballots. Despite appellants’ claim to the contrary, the absentee statutes, which are

designed to make voting more available to some groups who cannot easily get to the

polls, do not themselves deny appellants the exercise of the franchise . . . .”).

Indeed, some courts have gone further still. In Johnson v. Hood, 430 F.2d 610

(5th Cir. 1970), 1 our predecessor court said that “the right to vote in a state election,

1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit
adopted all Fifth Circuit decisions issued before October 1, 1981, as binding precedent.
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in itself, is not a right secured by the Constitution or by federal law. Thus, even an

improper denial of the right to vote for a candidate for a state office achieved by state

action ‘is not a denial of a right of property or liberty secured by the due process

clause.’” Id. at 612 (quoting Snowden v. Hughes, 321 U.S. 1, 7 (1944)). And in

League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 479 (6th Cir. 2008), the

Sixth Circuit held that even when an election system “impinges on the fundamental

right to vote,” it does not “implicate procedural due process” because voting is not

a liberty interest protected by the due process clause. The district court here

conducted no analysis on the question of whether the voters’ asserted interest in this

case was sufficient to trigger due process protection. Its failure to answer that

question provides an independent basis to reject its analysis.

Ultimately, however, to rule on the present motion we need not decide

whether the voters’ right to vote by absentee ballot is a constitutionally protected

liberty interest that triggers procedural due process protection. This is because, even

if Plaintiffs are being deprived of that interest, they are being deprived of it by

legislative action, not by adjudicative action. As we said in Jones v. Governor of

Florida, “the Supreme Court has long distinguished between legislative and

adjudicative action” when deciding “what the Due Process Clause requires.” 2020

WL 5493770, at *20 (11th Cir. Sep. 11, 2020) (citing Bi-Metallic Inv. Co. v. State

Bd. of Equalization, 239 U.S. 441, 445–46 (1915)). When a state deprives persons

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of liberty or property through legislative action—an action passed by the legislative

process that applies “to more than a few people”—then “the affected persons are not

entitled to any process beyond that provided by the legislative process.” Id.

(emphasis in original) (quoting Bi-Metallic, 239 U.S. at 445); see also Bi-Metallic,

239 U.S. at 445 (“General statutes within the state power are passed that affect the

person or property of individuals, sometimes to the point of ruin, without giving

them a chance to be heard. Their rights are protected in the only way that they can

be in a complex society, by their power, immediate or remote, over those who make

the rule.”). On the other hand, when a state deprives persons of a liberty interest

through an adjudicative action—an action that concerns only a “relatively small

number of persons” who are “exceptionally affected, in each case upon individual

grounds”—then the affected individuals may be entitled to additional process above

and beyond that provided by the legislative process. Bi-Metallic, 239 U.S. at 446.

Only in the latter situation do courts apply the framework of Mathews v. Eldridge,

424 U.S. 319 (1976).

We have had occasion to apply this rule in various circumstances. In 75 Acres,

LLC v. Miami-Dade County, 338 F.3d 1288, 1290 (11th Cir. 2003), for example, we

stated that the Due Process Clause had no applicability to a challenge to a county

ordinance that required the County Manager to impose a building moratorium on

certain parcels of real property without any pre-deprivation notice or hearing. The

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moratorium, we explained, was a legislative action. See id. at 1296. And we stated,

in Jones, that a group of felons challenging a voting rights restoration scheme had

no rights to procedural due process because they lost their right to vote due to a

provision of the Florida Constitution. See Jones, 2020 WL 5493770, at *20. That

constitutional directive, we explained, was a legislative action. See id.

The application of this doctrine to the present case is manifest. Because even

if Plaintiffs are being deprived of a constitutionally protected liberty interest, they

are being deprived of that interest by legislative action. Georgia’s Receipt Deadline

is a law of general applicability which affects all Georgians equally. It was passed

by Georgia’s legislature performing a legislative function. No individualized

determination is required (or provided) before a late-arriving ballot is rejected under

the law. And no individualized determination is due. The “process” that Georgia’s

voters are entitled to before their late-arriving ballots are rejected is the process that

inured during the enactment of the law itself. Procedural due process, then, has

nothing to do with this case.

III.

For these reasons, I agree with Judge Grant that the State is entitled to a stay

pending appeal. By pointing out how the district court has misapplied the law, the

State has more than carried its burden on the first and foremost factor required for a

stay. The State’s “case is strongest where it most matters, namely, the likelihood of

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success on the merits.” Al Otro Lado v. Wolf, 952 F.3d 999, 1022 (9th Cir. 2020)

(Bress, J., dissenting). While it is true, as Judge Wilson notes in his dissent, that our

review at this procedural juncture is narrow, our review must remain ever mindful

that “the grant of a stay pending appeal is preventive or protective in that it seeks to

maintain the status quo pending a final determination on the merits of the suit.” Ruiz

v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981). Granting a stay here furthers that ideal

by ensuring that Georgia’s duly enacted election laws remain in place before a merits

panel of this Court can rule on the propriety of the injunctive relief issued below.

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WILSON, Circuit Judge, dissenting:

We review a district court’s order entering a preliminary injunction for an

abuse of discretion. BellSouth Telecomms., Inc. v. MCIMetro Access Transmission

Servs. LLC, 425 F.3d 964, 968 (11th Cir. 2005). That is, we may only reverse and

grant a stay of that injunction if “the district court applie[d] an incorrect legal

standard, or applie[d] improper procedures, or relie[d] on clearly erroneous

factfinding, or if it reache[d] a conclusion that is clearly unreasonable or

incorrect.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir.

2005). Our review is “very narrow” and “deferential.” BellSouth, 425 F.3d at 968

(citations omitted). We have said that the district court “is in a far better position .

. . to evaluate [the] evidence.” Cummulus Media, Inc. v. Clear Channel

Commc’ns, Inc., 304 F.3d 1167, 1171 (11th Cir. 2002). 1

The majority’s review is not “narrow,” nor is it “deferential.” The district

court did not act unreasonably when it directed the State to accept and count valid

absentee ballots that are postmarked by and received within three days of Election

1
We explain the purpose for this standard of review in Cummulus Media, stating:
The expedited nature of preliminary injunction proceedings often
creates not only limits on the evidence available but also pressure to
make difficult judgments without the luxury of abundant time for
reflection. Those judgments, about the viability of a plaintiff’s
claims and the balancing of equities and the public interest, are the
district court’s to make and we will not set them aside unless the
district court has abused its discretion in making them.
Cummulus Media, 304 F.3d at 1171.
 Case: 20-13360 Date Filed: 10/02/2020 Page: 26 of 31

Day. The district court applied the correct legal standards, made no clearly

erroneous factfinding, and its conclusions are not unreasonable nor are they

incorrect. Given our standard of review, I would deny the State’s request to stay

the district court’s injunction.

I.

To grant a preliminary injunction, the court must consider if the moving

party demonstrated that: (1) there is a substantial likelihood of success on the

merits; (2) it will suffer irreparable injury if relief is not granted; (3) the threatened

injury outweighs any harm to other parties; and (4) the requested relief is in the

public’s interest. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268

(11th Cir. 2006).

I cannot conclude on this record that the district court misapplied the

Anderson-Burdick framework. 2 The district court methodically followed the

framework set forth in Anderson and Burdick and offered adequate support for its

factual findings and legal conclusions.

A. Likelihood of Success on the Merits

The district court properly analyzed the plaintiffs’ likelihood of success in

their challenge to the absentee ballot deadline, O.C.G.A. § 21-2-386(a)(1)(F),

2
When faced with the constitutionality of an election law, we apply the framework set out in
Anderson v. Celebrezze, 460 U.S. 780 (1983), and later redefined in Burdick v. Takushi, 504 U.S.
428 (1992).
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using the Anderson-Burdick framework.3 As the majority explains, this is a

balancing test. Initially, the court considers the magnitude of the burden. Then, it

weighs that burden against the state interests. Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 358 (1997). If the law imposes a severe burden on the

plaintiff, then it “must be narrowly tailored and advance a compelling state

interest.” Id. at 351. If the burden is not severe, a state must show that its asserted

interests are “‘sufficiently weighty to justify the limitation’ on the party’s rights.”

Id. at 352.

i. Severity of the Burden

In its thorough seventy-page order, the district court provided more than

“light analysis.” It did not “assume” that the burden imposed by the ballot

deadline was severe, and it analyzed the relevant facts and evidence proffered by

the parties. The district court considered that COVID-19 has affected millions of

people in the United States, and Georgia is a “hotspot” for the virus. New Ga.

Project v. Raffensperger, No. 20-cv-01986-ELR, 2020 WL 5200930, at *4 (N.D.

3
The majority repeatedly refers to the ballot deadline as “decades-old” and “long-standing.”
There is no doubt that this deadline has long been the law in Georgia. There is also no doubt that
this law’s lifespan is irrelevant. The plaintiffs challenge O.C.G.A. § 21-3-386(a)(1)(F) as
applied. That is, the plaintiffs argue that, in light of a pandemic, a public health state of
emergency, and the upcoming November election, the ballot deadline impermissibly burdens
their fundamental right to vote. Given that this is an as applied challenge, the history of the law
is irrelevant.
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Ga. Aug. 31, 2020).4 The pandemic is “ongoing,” and creates legitimate concerns

about the safety of voting. Id. 5 Georgia recognized this issue by adjusting certain

aspects of the voting process, as well as encouraging absentee voting.

Unsurprisingly, a record number of people voted absentee in the June 2020

primary, and even more are projected to vote absentee in November. The district

court found that the already “well-documented strains on Georgia’s election

administration infrastructure,” and the experiences of some of the individual

plaintiffs were important in finding that voters were being disenfranchised through

no fault of their own. Id. It also noted that over 7,200 voters had their ballots

rejected as late in the June 2020 primary, and that number would undoubtedly be

larger in November.

The district court’s analysis is thorough and complete. I disagree with the

majority’s claim that the district court erred in finding that the burden on the right

to vote was severe. The district court did not “ignore” the fact that the percentage

4
In fact, the United States District Court for the Northern District of Georgia recently decided to
suspend jury trials until January. The court said this was necessary considering that Georgia has
“one of the highest positivity rates in the nation” for COVID-19 cases. See Robin McDonald,
Northern District’s Chief Judge Extends Jury Trial Suspensions, LAW.COM (Sept. 29, 2020),
https://www.law.com/dailyreportonline/2020/09/29/northern-districts-chief-judge-extends-jury-
trial-suspensions/.
5
The confirmed cases of COVID-19 in the United States have increased by over one million—
from 5.7 million documented cases to over 7.1 million documented cases—from the time the
district court issued its opinion only a month ago. Cases in the U.S., CTRS. FOR DISEASE
CONTROL, https://covid.cdc.gov/covid-data-tracker/#cases_casesinlast7days (last visited Oct. 1,
2020).
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of absentee ballots rejected in the June 2020 primary election was lower than in

2018. The rate of affected voters is not always a key consideration. See Anderson,

460 U.S. at 784 (1983) (finding a law violated people’s voting and associational

rights even though it affected only a small percentage of voters). Even so, the

district court explicitly noted the number of absentee ballots accepted and rejected

in both 2018 and June 2020, demonstrating that it did not ignore evidence in

determining the severity of the burden. Contrary to the majority’s contention, the

district court also considered the measures that Georgia has taken to address

absentee voting. It offered a detailed description of Georgia voting procedures and

it relied on these measures to support its decision to deny most of the plaintiffs’

requests for relief.

ii. Balance of State’s Interests

The district court sufficiently addressed Georgia’s interest under the

Anderson-Burdick framework. Because it found that the burden was severe, the

law had to be “narrowly tailored and advance a compelling state interest.”

Timmons, 520 U.S. at 358. Georgia articulated legitimate interests in maintaining

the ballot deadline—namely in conducting an efficient election, maintaining order,

quickly certifying results, and preventing voter fraud. While the district court

acknowledged the State’s interests as valid, the means the State used to achieve

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these interests—the ballot deadline—were “not justified by the severe burden

faced by certain voters.” New Ga. Project, 2020 WL 5200930, at *25.

The district court closely analyzed the gravity of the pandemic, the facts of

this case, and previous caselaw to balance the burdens on the plaintiffs and

defendants, respectively. It explained that absentee ballots must be postmarked by

Election Day. Then, it carefully crafted the three-day extension, and thoroughly

explained why it was more appropriate than the proposed five-day extension. The

district court’s conclusions, and the remedy it fashioned, are reasonable: it imposes

a small burden on the State in order to avoid a more substantial burden on an

individual’s right to vote. I disagree with the majority’s claim that the district

court abused its discretion in applying the wrong legal standard. The district court

applied the correct legal standard—the Anderson-Burdick framework—a

framework that is flexible and fact dependent. See Crawford v. Marion Cnty.

Election Bd., 553 U.S. 181, 191 (2008) (recognizing that there is “no litmus test for

measuring the severity of a burden that a state law imposes on . . . an individual

voter”); Gill v. Scholz, 962 F.3d 360, 365 (7th Cir. 2020) (explaining that a “fact-

intensive analysis” is required under the Anderson-Burdick framework).

B. The Remaining Three Factors

The district court found that the remaining three factors—irreparable harm,

the other party’s harm, and the public interest—weigh in favor of the plaintiffs.

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It asserted that the State will not be irreparably harmed by this injunction. While

acknowledging there are some administrative burdens in amending the ballot

deadline, the district court found that these burdens are low. The State already

uses an identical deadline for some voters under O.C.G.A. § 21-2-386(a)(1)(G), so

adopting this standard for all absentee voters is not unreasonable. On the other

hand, the district court explained that a severe burden on the right to vote is

generally irreparable because once a deprivation occurs it cannot be redressed.

Lastly, the court found that the injunction is in the public interest, as the public has

an interest in ensuring votes are counted and that the right to vote is protected.

I would look to the district court’s order with the deference that the law

requires. The district court’s order—that the State should accept absentee ballots

that are postmarked by but received within the three days of Election Day—is not

unreasonable. Because the majority does not give the district court the deference

our precedent requires, I dissent. I would deny the State’s motion for a stay of the

district court’s injunction order.

31