Common Cause Georgia v. Brian Kemp
On November 5, the Brennan Center and co-counsel filed a lawsuit on behalf of Common Cause Georgia (CCGA), seeking to protect Georgia citizens' fundamental right to vote from malfeasance or tampering with Georgia's voter registration database. CCGA has asked the Court to enter an injunction ensuring that all provisional ballots cast by eligible voters are counted. The Court granted in part Plaintiff's request for a temporary restraining order on November 12.
My Voter Page, a website of the Georgia State Government, is a public interface where voters can check their voter registration status, poll locations, and view sample ballots for upcoming elections. It appears that at the very least for a significant period of time prior to the November 6, 2018 general election, My Voter Page and the state’s voter registration server were vulnerable to multiple security breaches.
Secretary of State Brian Kemp knowingly maintained an unsecure voter registration database and then exacerbated the security risk by exposing said vulnerabilities to increased publicity just prior to the November 2018 election. This increased the risk that eligible voters would be unlawfully removed from the State voter registration database or have their voter registration information manipulated in a manner that prevents them from casting a regular ballot. To the extent the registration database was manipulated, experts would expect to see a significant increase in the number of provisional ballots cast; there has been such an increase, and Georgia's provisional ballot counting scheme fails to provide adequate process here. This is because a voter's provisional ballot is not counted in the state unless elections officials affirmatively determine that the voter is duly registered. But, as a result of Secretary Kemp's actions, the state's information may not be accurate at the time the provisional ballots are counted.
CCGA requested emergency relief to prevent elections officials from rejecting provisional ballots until the Court has an opportunity to examine the evidence more fully. More broadly, CCGA is asking the state to put in place a modified provisional balloting counting system that would presume the ballots are valid unless election officials can prove otherwise—by showing “clear and convincing evidence” that a voter was not eligible to vote or was not registered. This modified counting system would aim to address the risks posed by a vulnerable system and ensure that all qualified voters’ provisional ballots are counted.
On November 12, the Court granted Plaintiff’s request for a temporary restraining order in part. The order requires the state to take a number of steps to protect voters who had to cast provisional ballots because of registration problems. For example, Georgia officials must establish a hotline and website for voters to check if their ballots were counted; conduct a thorough review of provisional ballots; and provide detailed information about provisional ballots cast.
The organizational plaintiff in the suit — Common Cause Georgia — is represented by the Brennan Center for Justice at NYU School of Law and Paul, Weiss, Rifkind, Wharton & Garrison LLP.
- Complaint (11/05/2018)
- Plaintiff's Notice of and Motion for a Temporary Restraining Order and Expedited Discovery (11/07/2018)
- Plaintiff's Memorandum of Law Regarding Standing in Further Support of Plaintiff's Motion for a Temporary Restraining Order (11/07/2018)
- Order (11/07/2018)
- Defendant's Brief in Opposition to Plaintiff's Motion for a Temporary Restraining Order and Expedited Discovery (11/08/2018)
- Defendant's General Submission in Response to Court's Request for Information (11/09/2018)
- Defendant's Supplemental General Submission in Response to Court's Request for Information (11/09/2018)
- Defendant's Reply Brief in Support of its Opposition to Plaintiff's Motion for a Temporary Restraining Order and Expedited Discovery (11/09/2018)
- Supplemental Submission of Plaintiff Common Cause Georgia and Exhibit (11/09/2018)
- Plaintiff's Supplemental Submission in Support of Motion for a Temporary Restraining Order (11/10/2018)
- Defendant's Sunday Supplemental General Submission in Response to Court's Requests for Information and Suggestion of Mootness of Plaintiff's Motion for Temporary Restraining Order (11/11/2018)
- Plaintiff's Response to Defendant's Sunday Supplemental General Submission (11/11/2018)
- Plaintiff's Supplemental Submission Regarding Standing (11/11/2018)
- Order (11/12/2018)
- Corrected Order (11/14/2018)