[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13435 May 12, 2005
____________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-01780 CV-WCO-1
CHARLES H. WESLEY EDUCATION FOUNDATION, INC.,
JARU RILEY, et al.,
Plaintiffs-Appellees,
versus
CATHY COX, individually and in her official
capacity as Secretary of State of Georgia, and
LINDA W. BEAZLEY, individually,
KATHY A. ROGERS, in her official capacity
as Director of the Elections Division, Office
of the Secretary of State of Georgia,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 12, 2005)
Before BARKETT, KRAVITCH and FARRIS*, Circuit Judges.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
FARRIS, Circuit Judge:
Plaintiffs were granted a preliminary injunction from the district court
enjoining Defendant Georgia state officials from rejecting voter registration forms
submitted to the state in a single mailed package. Defendants appealed, and we
affirm.
I
The Wesley Foundation is a charitable and educational organization
affiliated with the predominantly African-American Alpha Phi Alpha fraternity.
In June 2004 the Foundation conducted a voter registration drive at a shopping
mall in DeKalb County, Georgia, at which they provided and collected voter
registration forms for submission by mail. Among the forms they collected was
one from Plaintiff Earline Crawford, who was already registered to vote, but gave
the Foundation her form so as to notify the state of her changed address. The
Foundation collected sixty-four forms and mailed them in a single package to the
Secretary of State’s office for processing.
Shortly thereafter, the Secretary’s office rejected the forms because, in its
view, Georgia law prohibited anyone but registrars, deputy registrars or otherwise
authorized persons from accepting or collecting voter registration forms. Because
no authorized person participated in the voter registration drive, it would not
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accept the applications. The package was postmarked before the state- and
federally-imposed deadlines (though the individual forms were not postmarked),
and it is undisputed that had each of the forms been sent individually, the
Secretary would have accepted them.
In their amended complaint, Plaintiffs allege violations of their rights under
the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg et seq. (2004),
the Voting Rights Act of 1965, 42 U.S.C. 1973 et seq. (2004) and the First,
Fourteenth, and Fifteenth Amendments to the United States Constitution.1 They
also filed a motion for preliminary injunction, which the district court granted.
Defendants now appeal, arguing that the Plaintiffs lack standing to bring their
claims and that the district court erred in granting the injunction.
II
A. Standing
We review the legal question of standing de novo. See London v. Wal-Mart
Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003). In doing so, we review factual
determinations made at the trial level as part of consideration of motions for
preliminary injunctions for clear error. This That and The Other Gift and
1
Plaintiffs include Ms. Crawford, four individual volunteers for the Foundation, and the
Foundation itself.
3
Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 1321 (11th Cir. 2002).
To have standing, and therefore a justiciable “case or controversy,” the
plaintiffs must satisfy three constitutional requirements. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). They must establish that: (1) they have
suffered a particularized, concrete injury to a legally protected interest (injury in
fact); (2) the injury is fairly traceable to the challenged action (causation); and (3)
it is likely that the injury may be redressed by judicial action (redressability).
Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 805
(11th Cir. 1993). Defendants argue that Plaintiffs fail to satisfy these
requirements.
1. Ms. Crawford
Defendants claim first that Ms. Crawford did not allege in the Complaint
the now-argued specific injury of being unable to vote in her new home precinct.
We disagree. The Complaint alleges that the state rejected her form in violation of
Ms. Crawford’s rights under the NVRA, which specifically protects her right to
use the federal registration form to notify the state of a change of her address. See
42 U.S.C. §§ 1973gg-4(a)(3), gg-6(a)(1)(B). Such allegations are sufficient to
satisfy the requirements of notice pleading. See United States v. Baxter Intern.,
Inc., 345 F.3d 866, 881 (11th Cir. 2003) (“Because the Federal Rules embody the
4
concept of liberalized ‘notice pleading,’ a complaint need contain only a statement
calculated to give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”) (internal citations omitted).
Defendants also claim that Ms. Crawford lacks standing because as an
already registered voter, she suffered no injury that can be traced to the state. We
reject the argument. Ms. Crawford’s alleged injuries are sufficient to show injury-
in-fact for standing purposes. A plaintiff need not have the franchise wholly
denied to suffer injury. Any concrete, particularized, non-hypothetical injury to a
legally protected interest is sufficient. See Parker v. Scrap Metal Processors, Inc.,
386 F.3d 993, 1003 (11th Cir. 2004). Moreover, where an alleged injury is to a
statutory right, standing exists “even where the plaintiff would have suffered no
judicially cognizable injury in the absence of statute.” Warth v. Seldin, 422 U.S.
490, 514 (1975).2
Ms. Crawford’s alleged injuries are also “fairly traceable” to Defendants’
actions. Defendants’ causation argument, that the root of Crawford’s attempted
address change’s inadequacy was her own lack of compliance with Georgia’s
requirements, conflates standing with the merits of the case. Causation in the
2
Defendants abandon on appeal the argument advanced before the district court that they
cured Ms. Crawford’s injuries by sending her an additional form to fill out a few days before the
registration deadline.
5
standing context is a question of fact unrelated to an action’s propriety as a matter
of law. To establish causation a plaintiff need only demonstrate, as a matter of
fact, “a fairly traceable connection between the plaintiff’s injury and the
complained-of conduct of the defendant.” Parker, 386 F.3d at 1003. Ms.
Crawford’s alleged injuries flow directly from the denial of her registration form.3
2. Wesley Foundation Plaintiffs
Defendants claim that the Wesley Foundation Plaintiffs also lack standing.
To this end, they argue that these Plaintiffs had no “right” to conduct voter
registration drives, and therefore they cannot allege injury in their inability to
conduct one as they wish. In other words, Defendants claim that whatever injury
Plaintiffs suffered, it was not an injury to a “legally protected” interest that can be
traced to their actions. We disagree.
Defendants’ argument is based on the flawed notion that because the NVRA
does not provide for private registration drives as one of the modes of registration
it mandates, it prohibits them. The NVRA requires the states to accept voter
3
Though Defendants do not pursue the question, Ms. Crawford’s injuries are also
redressable: the injunctive relief provided by a favorable decision in this case would redress Ms.
Crawford’s injuries by permanently withdrawing the additional registration requirements
Defendants seek to impose upon her. The fact that the issuance of the preliminary injunction
forced the state to accept the sixty-four forms for purposes of elections occurring during this
suit’s pendency does not affect our analysis. Standing is to be “determined as of the time . . . the
plaintiff’s complaint is filed,” and is not altered by events unfolding during litigation. Focus on
the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003).
6
registration forms in three ways beyond those through which the states voluntarily
elect to accept them: registration by mail, registration in person at various official
locations (so-called “registration places”), and registration in conjunction with
driver licensing. See 42 U.S.C. § 1973gg. In the first instance, these methods are
not intended to be exclusive; rather, the Act seeks to encourage voter registration
by setting a floor on registration acceptance methods. See id. at § 1973gg-1(b);
gg-2(a). More importantly, the use of a private registration drive is not a mode of
registration at all. Rather, it is a method by which private parties may facilitate the
use of the mode of registration by mail, for which the Act does provide.
Nowhere does the NVRA prohibit or regulate voter registration drives;
rather, it impliedly encourages them. See id. at § 1973gg-4(b) (directing the
secretaries of state to make the federal forms provided for in the Act available,
“with particular emphasis on making them available for organized voter
registration programs”).4 The only provisions regulating mailed forms are
unrelated to the legitimacy of voter drives such as the Foundation’s; instead, these
provisions regulate the states by ensuring that voters delivering valid forms in a
timely fashion by mail are registered. Id. at §§ 1973gg-2(a)(2), gg-6(a)(1)(D). In
4
The Act mandates that the states accept a particularly defined federal registration form
(hereinafter “federal form”) for purposes of registration for federal elections. See id. at §
1973gg-7(a)(2). This was the form used by the Plaintiffs.
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other words, they regulate the forms’ final content and method of delivery, but do
not regulate their dissemination or collection. Thus the Act does not prohibit
registration drives, but, because it limits the states’ ability to reject forms meeting
its standards (which privately collected, mailed forms would do), it does protect
them. See § 1973gg-6(a)(1)(D) (stating that the states “shall . . . ensure” that
voters delivering timely, valid forms are registered); § 1973gg-2(a)(2) (states
“shall accept” the federal mail-in form). For these reasons, it is clear that the
Foundation’s right to conduct voter registration drives is a legally protected
interest.
As with Defendants’ causation arguments regarding Ms. Crawford, we
reject the claim that because the Foundation engaged in actions Defendants
consider prohibited, the Plaintiffs are the “cause” of any injuries suffered.
Whether such a denial was appropriate, and whether Plaintiffs acted within their
rights in conducting their drive as they did, are questions relevant not to standing,
but to the dispute on the merits (so long as Plaintiffs’ asserted interests are legally
protected). For standing purposes, it is clear that Plaintiffs’ alleged injuries are
traceable to the Defendants’ rejection of their mailed bundle of registration forms.
The NVRA protects Plaintiffs’ rights to conduct registration drives and
submit voter registration forms by mail, and Defendants’ denial of the sixty-four
8
forms here was a clear invasion of that interest, traceable to Defendants’ actions,
and redressable by injunctive relief.5 As such, Plaintiffs have standing to sue.
B. Preliminary Injunction
Having determined that the Plaintiffs have standing, we turn to the district
court’s decision to grant Plaintiffs’ motion for preliminary injunction. Preliminary
injunction decisions, “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 [this Court]
will not set them aside unless the district court has abused its discretion in making
them.” Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d
1167, 1171 (11th Cir. 2002). Only if the Court finds that error in the
“apprehension or application of the law will [it] subject the entirety of a
preliminary injunction order to plenary review.” Id.
To grant a motion for a preliminary injunction, the trial judge must
determine that the moving party has shown that “(1) it has a substantial likelihood
of success on the merits; (2) irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant outweighs whatever
damage the proposed injunction may cause to the moving party; and (4) if issued,
5
As with Ms. Crawford, redressability is both conceded and satisfied as to the Foundation
Plaintiffs.
9
the injunction would not be adverse to the public interest.” Siegel v. LePore, 234
F.3d 1163, 1176 (11th Cir. 2000) (en banc).
1. Substantial Likelihood of Success
Defendants contend primarily that the suit does not carry the requisite
“substantial likelihood of success on the merits.” They argue first that the
Plaintiffs’ NVRA claims are basically preemption claims, and that there is no
conflict between Georgia and federal law regarding the acceptance of voter
registration forms. In essence, their claim is that the NVRA only requires that
mailed registration forms be accepted when delivered both in a timely fashion and
pursuant to additional state requirements. See 42 U.S.C. § 1973gg-6(a)(1)(B),(D).
Because the Act only regulates the content of the form itself and the timing of its
delivery, they argue, the Act allows the state to regulate the method of delivery.
This argument is unpersuasive. By requiring the states to accept mail-in
forms, the Act does regulate the method of delivery, and by so doing overrides
state law inconsistent with its mandates. The Act simply requires that valid
registration forms delivered by mail and postmarked in time be processed. Id. at
§§ 1973gg-2(a)(2), gg-6(a)(1)(D). The forms here appear to have satisfied these
requirements. The postmark on the package applied to all its contents, thereby
rendering each form postmarked, and no party disputes the forms’ timeliness.
10
This case is unlike Association of Community Organizations for Reform
Now v. Miller, 912 F.Supp. 976, 986-88 (W.D. Mich. 1995), aff’d, 129 F.3d 833
(6th Cir. 1997), on which Defendants rely to argue that their anti-“bundling”
policy is a legitimate protection against voter fraud. That case upheld a Michigan
statute providing that when voter cards sent to registrants were returned as
undeliverable, those persons were deemed unregistered. This is not the kind of
rule at issue here. First, the Michigan rule did not implicate the clear directives of
the mail-in registration processes protected by the NVRA. It dealt with the
evaluation of registrations after submission and initial registration. Second, unlike
the Michigan statute, the Georgia policy does little, if anything, to prevent fraud or
assist in the assessment of voter eligibility. Defendants assert that their practices
protect confidential voter information and prevent fraudulent submission, but the
risk of exposure and fraud is equal whether forms are sent in bulk or individually,
so long as third-party handling of any kind is allowed (and Defendants admit the
NVRA does not prohibit third-party submission of individual forms).
Defendants also claim that because the NVRA provides for registrars to
serve various functions for the state—most significantly assisting with and
receiving registration forms—citizens may not serve similar roles in private voter
registration drives. See 42 U.S.C. § 1973gg-5(a)(4),(5). As noted, though, the Act
11
does not regulate private voter organization; it only imposes duties on the states.
The Act does not dictate that only state actors may perform the simple function of
assisting citizens with voter registration forms, and Plaintiffs do not claim
authority to receive such forms on behalf of the state. Similarly, Defendants are
not helped by their citation to a Georgia statute providing for the creation of
official “registration places” where applications for registration are “received.”
See Ga. Comp. R. & Regs. § 183-1-6-.03(3)(c),(k)(1). That statute is simply not
implicated either by pre-submission third-party handling of forms or by
registration by mail. In any case, even were that statute implicated by Plaintiffs’
actions here, it would have to give way to the clear mandates of the NVRA, which
Plaintiffs appear to have satisfied.6
2. Irreparable Injury, Balancing Harms, and the Public Interest
None of the remaining factors for consideration of a motion for preliminary
injunction is favorable to the Defendants. The associational and franchise-related
6
That Plaintiffs’ actions here do not implicate § 183-1-6-.03(3) eviscerates Defendants’
argument that the preclearance provisions of the Voting Rights Act, 42 U.S.C. § 1971 et seq.,
which were allegedly followed in adopting that provision (but not the anti-bundling rule), support
the legitimacy of the state’s actions. In any case, as the Plaintiffs and amici have noted,
preclearance has no bearing on the legitimacy of a given rule, procedure or action with regard to
other federal electoral laws. See Reno v. Bossier Parish, 528 U.S. 320, 335 (2000)
(“[P]reclearance under § 5 affirms nothing but the absence of backsliding”). Defendants’ related
claim that the private voter registration drive (which was not “precleared”) was invalid falls short
because the preclearance provisions of the Act simply do not apply to private actors. 42 U.S.C. §
1973c.
12
rights asserted by the Plaintiffs were threatened with significant, irreparable harm,
and the injunction’s cautious protection of the Plaintiffs’ franchise-related rights is
without question in the public interest. In contrast, the harm and costs threatened
to the state by these registration forms were minimal, if they existed at all. The
administrative burden of opening bundled forms instead of individual forms is
negligible, and the public interest in protecting against electoral fraud does not
appear to be compromised by the temporary loss of Georgia’s anti-bundling rule.
AFFIRMED.
13