800 F.Supp.3d 1349
N.D. Ga.2025Background
- Plaintiffs (Voter Participation Center and Center for Voter Information) mailed absentee-ballot applications as part of get-out-the-vote mailers; in 2020 they mailed ~9.6 million Georgia mailers that included a prefilled application, cover letter, and return envelope. Plaintiffs claim these mailings are protected First Amendment speech.
- Georgia enacted S.B. 202, which (1) bans sending absentee-ballot applications prefilled with an elector’s required information (Prefilling Provision) and (2) forbids sending absentee applications to anyone who already requested/received/voted an absentee ballot in that election (Anti-Duplication Provision). Violations carry criminal or administrative penalties.
- Plaintiffs brought multiple constitutional claims; after motions and summary judgment, the only remaining claim was that the two Ballot Application Provisions violate the First Amendment. Bench trial occurred April 9, 2024.
- Trial evidence showed voter and county-official complaints about confusion and potential fraud from prefilled and duplicate applications; Defendants (Secretary of State and State Election Board) argued the provisions advance compelling interests: reduce voter confusion, enhance confidence, and improve election efficiency.
- Plaintiffs changed practices after S.B. 202 (stopped prefilling and limited mailings), which the court found amounted to self-censorship giving Plaintiffs standing to sue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mailing prefilled or duplicate absentee-ballot applications is "speech" protected by the First Amendment | Prefilling and mailing applications communicate information and are pure speech protected by the First Amendment | The activity is conduct (mailing forms), not protected speech; regulation targets conduct | Held: mailing/prefilling applications is pure speech; the provisions regulate content and thus trigger First Amendment protection |
| Applicable level of scrutiny for the content-based restrictions | Strict scrutiny applies because the laws are content-based and burden political speech | Intermediate scrutiny should apply because the laws are viewpoint-neutral and target administrative effects | Held: the provisions are content-based; strict scrutiny applies |
| Whether the State has a compelling interest (to justify the speech restriction) | Plaintiffs: state interests are pretextual or insufficient to overcome strict scrutiny | Defendants: reducing voter confusion, enhancing confidence, and improving electoral efficiency are compelling interests | Held: the State’s interests are compelling |
| Whether the provisions are narrowly tailored / least restrictive means | Plaintiffs: provisions are overinclusive/underinclusive and less-restrictive alternatives (disclaimer, use official form or voter file, scienter requirement) are available | Defendants: provisions target the most pressing problems (incorrect or confusing prefilling; duplicate mailings to those who already requested ballots) and alternatives would not be comparably effective | Held: the provisions survive strict scrutiny — not over- or underinclusive in the relevant way and no less-restrictive alternative shown; provisions upheld |
Key Cases Cited
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing requirements for Article III)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (concrete injury requirement)
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech definition)
- Bartnicki v. Vopper, 532 U.S. 514 (distribution/delivery of information is speech)
- Cohen v. California, 403 U.S. 15 (communication via words is speech, not merely conduct)
- United States v. Playboy Ent. Group, 529 U.S. 803 (least restrictive means / strict scrutiny tailoring)
- Williams-Yulee v. Florida Bar, 575 U.S. 433 (strict scrutiny survivability; tailoring principles)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (strict scrutiny explanation)
- Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (public confidence in electoral integrity)
- Brown v. Ent. Merch. Ass'n, 564 U.S. 786 (over-/under-inclusiveness in tailoring)
- Reno v. ACLU, 521 U.S. 844 (less-restrictive-alternatives requirement)
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir.: content inquiry and conduct-vs-speech analysis)
- VoteAmerica v. Schwab, 121 F.4th 822 (10th Cir.: prefilling applications is speech)