JENNIFER HARDING, et al. VERSUS JOHN BEL EDWARDS, et al.
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION
Before the Court is the Motion for Preliminary Injunction1 filed by Plaintiffs Jennifer Harding (“Harding“), Jasmine Pogue (“Pogue“), the Louisiana State Conference of the NAACP (the “Louisiana NAACP“), and Power Coalition for Equity and Justice (“Power Coalition“) (collectively, “Plaintiffs“).2 Defendant Louisiana Secretary of State Kyle Ardoin (“Secretary Ardoin“) and Intervenor-Defendant Louisiana Attorney General Jeff Landry (“the Attorney General“) (collectively, “Defendants“) filed a Joint Response in Opposition to the Motion,3 and Governor John Bel Edwards (“Governor Edwards“) filed a Response to Plaintiffs’ Motion for Preliminary Injunction.4 This matter came before the Court for hearing on September 8 and September 9, 2020.5 For the reasons that follow, the Court finds that the Motion shall be GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
During the COVID-19 pandemic, “[t]here are quite reasonable concerns about voting in person.”6 Those concerns are the province of the state legislatures, to whom the Constitution commends decisions involving the “Times, Places and Manner of holding Elections.”7 Though the states retain considerable power to regulate elections, their power has limits: in the course of their regulation, they may not unduly burden the citizens’ right to vote – the “fundamental political right, because preservative of all rights.”8 Indeed, “voting is of the most fundamental significance under our constitutional structure.”9
This year, with the global pandemic caused by the novel coronavirus known as COVID-19 (or “the Virus“) sweeping across the United States, Louisiana state officials have struggled to adopt voting rules that ameliorate the risk presented by in-person voting. Across the country, courts — including this one — have likewise struggled with issues related to the risk of voting in person during the pandemic. The United States Supreme Court has been presented with more than a handful of cases on the subject of elections during the pandemic, but has provided virtually no
In August, Louisiana Governor John Bel Edwards and Secretary of State Kyle Ardoin declared that an emergency exists with respect to the upcoming November presidential election. Secretary Ardoin drafted a proposed Emergency Election Plan that would have expanded early voting to ten days (from the seven-day period provided by statute) and offered the opportunity to vote absentee by mail to “any registered voter testing positive for COVID-19 during and after early voting but before election day.”12 Although the proposed Plan eventually passed the Louisiana legislature, it was never implemented because Governor Edwards — whose approval is required by Louisiana law — rejected it. Per Edwards, the proposed Plan was “woefully inadequate”13 because it was “contrary to guidance from the Centers for Disease Control (CDC) and the Louisiana Department of Health (LDH)”14 and failed to “protect[] the right to vote while protecting the health of the public.”15 Thus, with Louisianans headed to the polls in roughly seven weeks, the state has enacted no measures whatsoever to make voting safer during the pandemic.
It is against this backdrop that the Court turns to the Motion for Preliminary Injunction filed by Plaintiffs, two individuals and two groups who contend that the lack of an emergency election plan for the November and December elections has the effect of unduly burdening their right to vote. Plaintiffs seek an injunction lifting or expanding the “statutory limitations on who can vote absentee by mail” (known as the Excuse Requirement) in the November and December elections and enjoining “the reduction of the early voting period”16 for the same. “At minimum,” Plaintiffs ask the Court to order Defendants to “extend to the upcoming elections the baseline protections provided in the emergency plan that
Plaintiffs’ request for expanded early and mail-in voting is joined by Governor Edwards, who contends that allowing the November and December elections to proceed without a plan to mitigate the effects of the pandemic imposes “severe undue burdens on the constitutional rights to vote for many voters in Louisiana.”19 Secretary Ardoin and Attorney General Landry oppose Plaintiffs’ requested relief.
II. LAW AND ANALYSIS
A. Preliminary Injunction
“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.”20 The decision whether to grant or deny a request for a preliminary injunction is within the sound discretion of the court.21 In order to prevail on a motion for a preliminary injunction, the movant must prove “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.”22 A preliminary injunction is an extraordinary remedy requiring the applicant to unequivocally show the need for its issuance.23 The movant must prove all four elements.24
1. Likelihood of Success on the Merits
Plaintiffs claim that the Excuse Requirement25 and limited early voting period impose undue burdens on the right to vote in violation of the First and Fourteenth Amendments”26 of the U.S. Constitution. It is unquestionable that “voting is of the most fundamental significance under
In Burdick v. Takushi, the United States Supreme Court instructs that
[T]he 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.31
When cases fall somewhere between strict scrutiny and rational basis review, the Anderson-Burdick32 framework provides that “a more flexible standard applies.”33 In these cases, featuring a moderate burden on the right to vote, the court must weigh that burden 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.‘”34 If the State‘s interests outweigh the burden on Plaintiffs’ right to vote, the voting restrictions survive the Equal Protection challenge.
The Court turns now to the task of identifying the burden that the Excuse Requirement and a limited period of early voting place on Plaintiffs’ right to vote.
a. Burden: The Excuse Requirement
The first aspect of Louisiana election law that Plaintiffs seek to enjoin is the set of statutory limitations on who can vote absentee by mail, known as the “Excuse Requirement.”35
The Excuse Requirement imposes some burden on the right to vote. Plaintiff Jennifer Harding attests in her Declaration that she has assumed significant caretaking responsibilities for her 72-year-old father, who has Parkinson‘s Disease; her 71-year-old mother, who has post-polio syndrome and recently underwent surgery; and her 93-year-old grandmother, who has been diagnosed with dementia.38 Harding began frequently assisting her parents and grandmother this year because they no longer employ an in-home caretaker “due to concerns about COVID-19 and the caretaker‘s exposure to other patients she assists throughout the week.”39 Because of the possibility that “if [she] contracted the virus, even unknowingly, [she] could put [her] parents and grandmother at acute risk,”40 Harding “would vote by absentee mail-in ballot in order to eliminate the chance of exposure to COVID-19 at [her] polling location – both inside and while waiting in line to vote.”41 But
Plaintiff Jasmine Pogue has asthma and a history of upper respiratory infections.44 Contracting COVID-19 is of particular concern since her already-compromised lung capacity makes her more vulnerable to the virus.45 Also, according to Pogue‘s doctor, the steroids she takes to fight her upper respiratory infections “put [her] at increased risk of COVID-19‘s effects.”46 Pogue attests that she is burdened by the Excuse Requirement because she does not qualify under any subpart of the statute, so “voting in person will remain [her] only option to participate in any of this year‘s elections.”47 When she voted in person in July and August, the experience “was stressful and uncomfortable because of the inadequate enforcement of social distancing and sanitary precautions at [her] polling site.”48 Pogue‘s financial situation was made precarious by the pandemic because
The Court finds that Plaintiffs’ testimony clearly establishes that the state‘s maintenance of limited absentee by mail voting imposes a burden on their right to vote. The burden on the right to vote is further supported by significant record evidence. As of August 24, 2020, the Louisiana Department of Health estimated that there were 19,862 known active cases of the Virus in Louisiana: twice as many active cases as there were when the state entered Phase 1 or Phase 2 of its reopening.51 Additionally, the White House Coronavirus Task Force issued a report regarding Louisiana on August 16, 2020, where it explained that, although “Louisiana has seen a decrease in new cases and a decrease in test positivity,” the process “is fragile” and “[a]ny loosening of mitigation efforts must be conservative, gradual, and associated with continued and expanded testing and contact tracing.”52 On August 23, the White House Coronavirus Task Force updated its remarks on Louisiana to reflect that “91% of all parishes in Louisiana have ongoing community transmission.”53 As of August 30, 80% of parishes still had ongoing community transmission, with 23% of parishes in the “red zone” for high levels of community transmission. Based on that data, the task force recommended that Louisiana “[c]ontinue the closure of establishments where social distancing and mask use cannot occur.”54
The Centers for Disease Control and Prevention (CDC) has issued guidance for election officials, poll workers, and voters to prevent the spread of the Virus.55 The CDC asserts that “the more an individual interacts with others, and the longer that interaction, the higher the risk of COVID-19 spread.”56 Lower-risk polling settings, the guidance explains, include those with “a wide variety of voting options“; “longer voting periods (more days and/or more hours); and “any other feasible options for reducing the number of voters who congregate indoors in polling locations at the same time.”57 Other recommendations identified by the CDC include “protect[ing] people at increased risk for severe illness” and “offer[ing] alternative voting options for voters with symptoms.”58 Clearly, based on the data and advice from state and federal authorities, the pandemic is ongoing in Louisiana and calls for the implementation of measures to mitigate the risks of appearing in person to vote.
The parties also presented expert opinion testimony on the burden presented by in-person voting during the pandemic. Plaintiffs’ expert witness Dr. Arthur L. Reingold,59 who the Court finds credible,
In this Court‘s view, Dr. Reingold‘s opinions credibly support Plaintiffs’ argument that in-person voting imposes a burden. Dr. Reingold‘s opinions were not effectively contradicted by the countervailing experts put forth by Defendants. Defendants submit the expert testimony of Dr. Quentin Kidd,67 who provides what he describes as “a comparative analysis of elections held in various states as they relate to the COVID-19 pandemic. . .”68 Dr. Kidd specifically explained that his opinions were not predictive. Dr. Kidd posits that, based on his analysis, “for states that were not already in a situation where Coronavirus was surging, neither spikes or surges happened as a result of those elections.”69 Examining Dr. Kidd‘s data on a state-by-state basis, the Court observes that Dr. Kidd notably hedged his opinion by pointing out that “there have been no reports that [he is] aware of linking widespread
The Court finds Dr. Kidd‘s opinion irrelevant, for several reasons. First of all, the Court is disinclined to find that the epidemiological situation on the ground in other states, during other elections dating back more than six months in some cases, is evidence of the likely burden on Louisiana voters in November and December. In Dr. Kidd‘s words it is not predictive. As Defendant‘s expert witness Dr. Phillip Barie stated at the hearing, no one has a crystal ball to know how the next few months will transpire with respect to the Virus. Moreover, if this Court‘s inquiry were to cast an eye toward other states, it would certainly bear mention that, as Plaintiffs point out, all but six of the fifty states “have expanded the scope of access to absentee ballots”71 due to the risk presented by the Virus. Of the states that require an excuse to vote by mail, only six states – including Louisiana – have not deemed risk of exposure to the Virus a valid excuse.72
Second, Dr. Kidd‘s finding that no surge or spike occurred following past elections is not probative of the risk of encountering the Virus at polls in November and December elections.73 The absence of a “widespread” outbreak does not negate the asserted burden on Plaintiffs’ right to vote. The relevant burden is not the possibility that there will be a surge or spike at the population level; the burden on the right to vote asserted by Plaintiffs is the potential that they, as individuals, will contract the Virus as a result of having no choice but to vote in person. Dr. Kidd‘s analysis may show that, in the aggregate, in-person voting did not result in a large increase in Virus cases. But his testimony does not establish that individual voters are not burdened by virus exposure in public polling places. Additionally, as Plaintiffs’ expert Dr. Reingold explains in his report, a study of the trend in cases after an in-person election is inherently flawed because it fails to account for “secondary transmission to family/household members, who would have become infected later, as well as missing others who either did not present for testing or who did not develop symptoms, but who might have gone on to subsequently infect others.”74 In other words, the data does not reflect the gravity of the risk and hence the nature and extent of the burden.
Defendants’ medical expert witness Dr. Philip Barie75 is generally skeptical of the severity and the scope of the pandemic. But, when asked about his personal COVID-19 risk tolerance, he was far less cavalier. On cross-examination, Barie testified that if he had close contact with a person infected with COVID-19, he would
Dr. Barie attests that “the incidence and prevalence of COVID-19 may be gross overestimates” because PCR tests78 can generate a positive result when they detect “amounts of protein that are inherently non-infectious, represent too small a viral load to be infectious, or when intact virus is not present at all.”79 Dr. Barie boldly asserts that “the false-positive rate. . .may be as high as 90%.”80 His opinion is rendered suspect and incredible by the following concessions that simply cannot be squared with his high false positive assertion. Barie asserts that the COVID mortality rate “is 3.04% as of September 3, 2020 and is decreasing literally by the day.”81 As part of his source materials, he cites to data collected by the Johns Hopkins University of Medicine Coronavirus Research Center.82 As of the hearing date, Johns Hopkins had identified a total of 154,955 confirmed cases of the Virus in Louisiana.83 If, as Barie claims, 90% of those cases were false positives,84 the “true” number could be as low as 15,495 confirmed cases in the state. Yet, Louisiana has reported 5,140 deaths from the Virus.85 That many deaths with only 15,495 cases would represent a mortality rate of 33.17% -- eleven times the rate cited by Dr. Barie. He does not account for this discrepancy. The credibility of Dr. Barie‘s opinion that in-person voting is not unduly risky is further undermined by his hearing testimony that 1 in 5 people infected with the Virus require hospitalization, with 25% of those hospitalized being “critical,” and his admission that comorbidities increase the risk of infection and mortality. Finally, the Court finds Dr. Barie‘s minimization of the risks of the pandemic to be further belied by his own blog post, which described the Virus as “[s]tunning...in its virulence, its contagion, and its rapidly spreading pervasiveness.”86 “Protect your patients, yourselves, your families, and each other,” he wrote.87
Dr. Barie further opines that “[a]irborne transmission of [the Virus] is controversial” and rejects what he calls Dr. Reingold‘s “speculative suggestion”91 that transmission through the air is cause for concern. Overall, in Dr. Barie‘s view, “the chance of a voter contracting COVID-19 at a polling place is minimal” as long as that voter “takes proper precautions such as maintaining social distance, wearing a face mask, using hand sanitizer, and refraining from touching his or her face.”92 Even if that is so, according to ample record evidence, the “precautions” that Dr. Barie recommends are not assured in November and December elections93 and were not uniformly in place at polling locations in Louisiana‘s July and August elections. Again, the Court finds it telling that, even with “precautions” in place, Dr. Barie testified that he would be concerned for his own safety if he were standing in line at the polls behind a voter with tell-tale symptoms of the virus.94
Plaintiff Pogue testifies that her polling place can only be entered and exited via a long hallway that is “too narrow to allow six feet of distance between voters standing in line and those exiting.”95 At the hearing, Brandon Abadie, the Administrator of Elections for the East Baton Rouge Clerk of Court, confirmed Pogue‘s description of her polling place and testified that social distancing is simply not possible at some polling places. Similarly, Secretary Ardoin has stated that, although mask-wearing is recommended for voters, the state cannot refuse to admit a maskless voter to the polling place.96 Indeed, both Pogue and Harding observed people without masks at the polls in July and August.97 Notably, Defendants attach Declarations from Doris Quiett, Chanda Leatherman, Rosalind Knighten, Roslyn Lacour,
Though the three medical experts are at odds in some respects (e.g., over the likelihood of transmission via aerosolized droplets), the Court also finds significant accord among their testimony. For example, Dr. Reingold states that, according to early models, “COVID-19 will be present, nationally and in Louisiana, during the November and December 2020 elections.”99 Dr. Barie agrees that “this is likely.”100 Likewise, the underlying assumption of Dr. Kidd‘s report is that the Virus is present, even surging, in states throughout the country.
Dr. Kidd finds “no evidence to suggest that in-person voting leads to widespread Coronavirus outbreaks,”101 and the Court finds that opinion has no bearing on the risk to an individual voting in person. Again, Plaintiffs do not claim that their right to vote is burdened by the possibility of a widespread outbreak arising out of in-person voting. They claim that the burden is the risk to “their own health and lives”102 that arises from voting in person. As Dr. Reingold explains, “what matters is whether [voting in person] results in an incremental increase in risk to individuals required to go to a polling place to vote . .[f]or the affected individuals, the impact is severe, even if the overall state numbers did not ‘spike.‘”103 And, nothing in the testimony of Defendants’ experts refutes the real risk presented by the Virus when people congregate in indoor places. Surge or spike correlative data has little bearing on the attendant risks to voters with comorbidities or voters who have caretaking responsibilities over persons of fragility. Even Dr. Barie, who is remarkably sanguine about the danger of the Virus in general, attests that “[t]hose at highest risk to succumb are elderly” (like Jennifer Harding‘s parents and grandmother) “and have chronic comorbidities such as heart or lung disease, or diabetes”104 (like Jasmine Pogue).
Defendants are loath to consider Plaintiffs’ contention that the statutory election scheme, conceived without COVID in mind, is unduly burdensome on certain voters.105 And yet, Defendants’ actions suggest that they do recognize a very real burden. Intervenor Defendant Attorney General Landry issued an opinion on September 1, 2020, recognizing that the pandemic “has had a significant impact on Louisiana”106 and purporting to broaden the applicability of the statutory disability excuse for absentee by mail voting to “any voter with an underlying health condition known to be a comorbidity for COVID-19,”
Likewise, Secretary Ardoin proposed an “Emergency Election Plan” for the November and December elections that would have expanded early voting to ten days and permitted “any registered voter testing positive for COVID-19 during and after early voting but before election day”108 to request an absentee by mail ballot. This is an obvious response to the burden on voters perceived by his office. A burden on both COVID-infected voters voting in person, and on everyone else, who would otherwise be subjected to the presence of infected voters at the polls. It cannot be emphasized enough that Secretary Ardoin‘s Emergency Election Plan for the summer went much further, offering thirteen days of early voting and Virus-related excuses for voting by mail. If in-person voting imposes no burden, why have Defendants taken action to allow certain voters to avoid it?
The District Court for the Northern District of Georgia stated it well: “Exposure to a deadly virus is a burden.”109 Just last week, the Fifth Circuit found that “[t]here are quite reasonable concerns about voting in person. . .”110 Plaintiffs characterize the burden as “undue” and “increased.”111 Defendants counter that “Plaintiffs’ claims do not even implicate the right to vote.”112 The Court finds that the statutory Excuse Requirement, as applied during the Pandemic, imposes at least a moderate burden on Plaintiffs’ right to vote. The record before the Court indicates that the pandemic is ongoing in Louisiana and nationwide; that the risk of transmission is greater in public places where many people gather; and that there are individual voters, such as Plaintiffs, who reasonably do not wish to appear in public to vote, based on their own underlying health conditions that place them at higher risk of complications from the Virus, or out of a desire to protect family members with those conditions.
Like the facts recently reviewed by the Fifth Circuit in Abbott,113 Louisiana is “taking the kind of precautions for voting that are being used in other endeavors during the pandemic,” but “[n]one of them guarantees protection.”114 The Fifth Circuit recognized that “[t]here are quite reasonable concerns about voting in person. . .”115 The record in this case demonstrates
lines.116 The process of disinfecting the voting booth between voters will take an estimated 30 seconds per voter, which will cause voters to wait in line longer.117 Overall, the Court finds that Defendants’ adherence to the statutory Excuse Requirement, which fails to make provisions for voters with comorbidities or voters who care for the frail and the infirm to safely vote, imposes a burden on Plaintiffs’ right to vote.
b. The State‘s Interest
The United States Supreme Court instructs that, when applying the Anderson-Burdick framework, “[h]owever slight [the] burden may appear . . .it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.‘”118 Thus, the court examines the “precise interests put forward by the State as justifications for the burden imposed by its rule . . .”119 Virus-related protections were offered for the July and August elections and then abruptly rolled back for November and December. Defendants proffer a list of four justifications for this roll-back: “(1) taking prophylactic steps to prevent voter fraud; (2) maintaining the integrity of its elections systems; (3) avoiding voter confusion; and (4) preserving public confidence in election results.”120 The Court will address these justifications in turn.
i.) Voter fraud
Defendants argue that the “risk of voter fraud is especially pernicious here, where Plaintiffs seek unlimited and unrestricted absentee voting.”121 Citing a “compelling interest in preventing voter fraud,”122 Defendants emphasize that “[e]laborate, empirical verification of weightiness is not required”123 when assessing the strength of the state‘s interest.
Even under this standard, Defendants’ evidence is woefully inadequate. First, they offer not a scintilla of evidence of fraud associated with voting by mail in Louisiana. Strikingly absent is even a hint of fraud in the July and August primaries, where expanded mail voting was available to voters with COVID-19 comorbidities, caretakers, and others. In fact, the Louisiana Commissioner of Elections, Sherri Wharton Hadskey (“Commissioner Hadskey” or “Hadskey“), testified that she was unaware of any incidents of voter fraud
Defendants glaringly fail to acknowledge that, according to Secretary Ardoin, Louisiana “absolutely, without a doubt” ranks among the top five states for election security and election integrity.127 Asked about the prevalence of voter fraud in the state, Ardoin stated that “it has not been widespread” and that he believes it to be “a rare occurrence.”128 When it has occurred, he explained, it has been in connection with “local races, small races.” Ardoin demurred when asked if he knew the number of voter fraud prosecutions that have proceeded to trial in Louisiana, but stated that such trials are “very, very, very rare.”129 Likewise, former Secretary of State Tom Schedler in 2017 issued a statement that “Louisiana did not have any widespread irregularities or allegations of fraud”130 during the 2016 presidential election. Also, as Plaintiffs note, the database on voter fraud maintained by the Heritage Foundation contains only four known instances of voter fraud in Louisiana, none of which is related to absentee by mail voting and only one of which occurred after 2005.131
Puzzling and left unexplained by the Defendants is why their concern over voter fraud presented no obstacle to the passage and implementation of the Emergency Election Plan for the July and August elections, which broadened the availability of mail ballots for COVID-19 reasons. Apparently Secretary Ardoin, the Louisiana legislature, and Governor Edwards were satisfied that expanding the availability of absentee by mail voting presented no grave threat when they approved the Plan on April 27, 2020, fewer than five months ago.132
The Court is not persuaded by Defendants’ conclusory assertion that their interest in preventing voter fraud - which Defendant Secretary Ardoin testified only four months ago is “a rare occurrence” - is weighty enough to justify their roll back of COVID-19-specific allowances for mail voting.133
Moreover, as noted by former Secretary of State Schedler, Louisiana has “many layers of legal protection to shield us from voter fraud.”135 The application for an absentee by mail ballot requires the voter to sign, with two witnesses, certifying “that the statements made herein by me are true and correct and I may be subject to a fine of not more than $2,000 or imprisonment for not more than 2 years, or both, for knowingly making false statements.”136 Louisiana also has a detailed process for determining the validity of mail ballots before they are tabulated, a process that involves members of the parish board of elections going ballot by ballot to confirm that the proper procedures for marking and submitting the ballot have been followed.137
The Court is underwhelmed by the argument that eliminating COVID-related mail voting and returning to the statutory Excuse Requirement is a significant bulwark against fraud, especially considering that Louisiana offers mail voting for reasons of mere convenience that require no proof whatsoever. As Governor Edwards points out, a voter may apply for an absentee by mail ballot on the premise that he or she “expects to be temporarily outside the territorial limits of the state or absent from the parish in which he is qualified to vote.”138 “Using this provision,” the Governor argues, “a duck hunter residing in East Baton Rouge Parish could cross the Mississippi River to his hunting camp in West Baton Rouge Parish, leaving him absent (though not far) from his parish of residence on early voting days and election day. He would then be able to vote, by mail, absentee.”139 No documentation of the expected absence is required by the ballot application; only the dates of anticipated absence are required. If the voter votes absentee by mail based on the expectation that he or she will be absent and then, due to a change of plans, is no longer absent, the law proscribes no consequences.140
The Excuse Requirement already provides excuses that are merely “for the convenience of voters” and those excuses “could reasonably be extended to fit the circumstances of this pandemic without . . . undermin[ing] the security of the election.”141 The line that has been drawn by Defendants is not a rational one,142 and their assertion of its necessity is directly contradicted by the fact that, for an election conducted one month ago, these same state officials did not, apparently, feel that maintaining the strict statutory Excuse Requirement was necessary to avert voter fraud. While the state has a legitimate interest in preventing voter fraud, based on the record before the Court, as it relates to the Excuse Requirement, that interest does not necessitate the burdens imposed by the requirement during the pandemic, especially for vulnerable voters such as those with comorbidities of COVID-19 that place them at higher risk.
ii.) Integrity of Elections Systems
The second justification asserted by Defendants for maintaining the strict adherence to the statutory Excuse Requirement is the state‘s need to “maintain[] the integrity of its elections systems.”143 “A State indisputably has a compelling interest in preserving the integrity of its election process.”144 Defendants argue that the integrity of the state‘s election process would be threatened by “unlimited vote by mail” because “it may be impossible for the local parish Boards and Registrars to change their procedures sufficiently in time for any election in 2020.”145
However, the Louisiana Commissioner of Elections testified at the hearing that the integrity of the state‘s election process is already threatened, even without any Virus-related expansion of mail balloting. Hadskey testified that the number of voters over the age of 65 who have requested a mail ballot has dramatically increased, resulting in enormous strain on the mail vote process. Commissioner Hadskey testified that historically, approximately 60,000 voters aged 65 and older request mail ballots in Presidential elections. The number of age 65-and-up mail ballot applications has surged to nearly 165,000 since the pandemic. The deadline to request an absentee by mail ballot is October 30, 2020, so the number of requests can be expected to increase. Because state election officials are not accustomed to or prepared for such large numbers of absentee by mail ballots, Hadskey stated that she is already “extremely concerned” about being able to
Be that as it may, a potential expansion of mail voting to accommodate voters with comorbidities or caretakers has nothing whatsoever to do with the state‘s failure to be prepared to tabulate mail votes. Louisianans aged 65 and older have had the right vote by mail on the basis of age for thirteen years.146 The right, so extended to the voters of the state, gives rise to an attendant duty on the state to facilitate that vote. Hadskey testified that her office began preparations for the Presidential election in February. She further testified that in March, her office knew that the pandemic would have severe affects on voting. The Secretary of State first declared an emergency with respect to voting on March 13, 2020 and certified that the state of emergency persists for the November and December elections.147 According to the 2010 Census, more than 720,000 Louisianans are age 65 or older.148 The state has been statutorily duty bound to have a system in place that would facilitate potentially 720,000 mail votes.
According to the Secretary of State, in the July 2020 election “[a]bsentee by mail voters accounted for 19% of voters.”149 “Voters were given the opportunity to request an absentee ballot for five COVID-19 related reasons.”150 Of the “164,296 voters who requested an absentee ballot for the July 11, 2020 election, 2,810 of them used the COVID-19 reasons for their request.”151 Ultimately, of the “99,075 voters who returned an absentee ballot, only 1,863 (2%) voters utilized the COVID-19 emergency absentee ballot application.”152 In other words, “COVID-19 voters made up less than 0.4%”153 of the overall ballots cast. The bulk of absentee by mail voting -- 92% came from voters using the “senior citizen excuse“, ie. voters 65 or older.154 Based on those statistics, the notion that implementing the same COVID-19-related excuses for November would be “impossible” is not believable. Simple arithmetic indicates that a continuation of the COVID-19 excuses for mail voting would result in an additional 8,400 mail ballots.155 It is hardly accurate for Defendants to insist that relaxing the Excuse Requirement to permit the same mail vote reasons offered in July and August would wreak havoc on the integrity of the system.
Although the Court is sympathetic to election officials’ struggle to contend with
iii.) Voter confusion
Defendants’ third asserted justification for rolling back COVID-19 absentee by mail voting provisions and adhering to the Excuse Requirement is the state‘s interest in “avoiding voter confusion.”157 This sounds quite rational, until one considers that voter confusion already exists with respect to the November and December elections as the direct result of Defendants’ actions. The Secretary of State has been operating under a declared state of emergency since March 13, 2020. Yet, no plan for the November Presidential election was advanced until August 17, 2020, and that proposed Plan eliminated the previously implemented Virus-related excuses for mail-in voting. Secretary Ardoin has repeatedly indicated that the Court will have to step in to resolve confusion over the plan for the November election. Secretary Ardoin has said he “would think the Court‘s going to have to order some sort of process”158 and that an Emergency Election Plan “will [have to] be decided in court,” including the “the critical mechanisms my office needs to administer the election in the extraordinary circumstances of a pandemic.”159 Likewise, when Governor Edwards rejected the proposed Plan for November and December, he observed that a “resolution will likely have to come from courts, which is unfortunate.” Beyond a mere interest in avoiding voter confusion, in this Court‘s view, the state has an obligation to avoid voter confusion; an obligation that has not been fulfilled.
The Emergency Election Plan put in place for July and August, which added Virus-related excuses to vote by mail, was not broken; the bumbling attempts to fix what was not broken have brought us to today. Instead of leaving in place COVID-19 responsive mail voting opportunities, Secretary Ardoin proposed that “any registered voter testing positive for COVID-19 during and after early voting but before
The legitimacy of Defendants’ stated interest in avoiding voter confusion is further undermined by Attorney General Landry‘s freshly issued Opinion 20-0104. Landry urged dismissal of this case, arguing that “changing the method of absentee balloting at this stage will invite chaos into the system.” Yet on September 1, 2020, Landry proposed to do just that. After intervening in this lawsuit, Landry penned a letter to the Tangipahoa Registrar of Voters stating that “a voter who is diagnosed with COVID-19 or is subject to a quarantine order while awaiting a COVID-19 diagnosis would qualify to vote absentee so long as a medical professional certifies the voter is disabled.”162 Landry further opines that “any voter with an underlying health condition known to be a comorbidity for COVID-19 will qualify for an absentee ballot if a medical professional certifies that . . .the existence of the comorbidity presents an unreasonable risk for that voter to vote in person to the point that it rises to a disability under [the statute].”163
For the July and August elections, voters with comorbidities were able to request an absentee by mail ballot by certifying that they suffer from diabetes, hypertension, or one of the other conditions identified by the CDC as placing them at higher risk. Now, those same voters are expected to be aware of and rely upon a letter from the Attorney General to the Tangipahoa Registrar of Voters that instructs them to go to the doctor and obtain a certification that they are “disabled.” By the plain language of Landry‘s opinion, a voter can ask an optometrist for a note that says she is disabled because she was tested for COVID-19 but has not yet received the results.164 The situation is an absurdity and yet, is specifically permitted by the Attorney General‘s Opinion.165 Ironically, Defendants’ expert witness, Dr. Barie, testified at the hearing that, as a medical clinician, he would not certify a patient awaiting COVID-19 diagnosis as disabled.
Meanwhile, the Attorney General urged the Court to dismiss this case because the state is already “on the eve of the election,” and “changing the method of absentee
The question before the Court is whether the state‘s asserted interest in avoiding voter confusion is sufficiently weighty to justify the burden imposed on Plaintiffs by their rule. Defendants have articulated no reason why maintaining the statutory Excuse Requirement has the effect of avoiding voter confusion, especially in light of the multifarious pronouncements from different state officials about what rules will govern the November and December election. The Court finds that, based on the record before the Court, the state‘s interest in avoiding voter confusion – confusion that already exists due to Defendants’ actions – does not outweigh the burden on Plaintiffs’ rights created by the application of the statutory Excuse Requirement under pandemic circumstances. The amorphous threat of unspecified voter confusion simply does not carry more weight than the very real risk of exposure to a dangerous Virus that Plaintiffs face if they vote in person.
iv.) Public confidence in election results
The final state interest that Defendants cite as justification for maintaining the Excuse Requirement is the state‘s need to ensure public confidence in election results.168 Defendants do not elaborate on how maintaining the statutory Excuse Requirement allegedly serves to preserve public confidence. As far as the Court can tell, the public confidence argument overlaps with Defendants’ asserted interest in maintaining the integrity of Louisiana‘s election systems. At the hearing, Commissioner Hadskey testified that universal mail-in voting would result in delays in tabulating the results on election night due to the increased number of absentee by mail ballots.169 In previous elections, she explained, late election results have caused voters to question the legitimacy of the vote count or the overall result. To be clear, Hadskey also stated that the likelihood of having election results on election night is already remote because of the surge in voters requesting absentee by mail ballots under the “senior citizen” excuse for voters 65 and older. In that sense, maintaining the Excuse Requirement (i.e. letting fewer people vote by mail) does not ensure timely results, which, thanks to pandemic voting circumstances driving a huge increase in elderly absentee voting, are likely already out of reach.
If the Virus-related excuses from the summer election Plan are made available for the fall, based on the Secretary of State‘s data, the likely total number of additional mail ballots requested would be in the neighborhood of 9,000.170 It seems
The Court finds no credible evidence that the need for public confidence in elections necessitates maintaining the Excuse Requirement during a pandemic. Defendants may not have considered that their insistence on the maintenance of the Excuse Requirement may itself have a negative effect on the public‘s confidence in the election results. Virus-related protections were offered for the July and August elections and then abruptly rolled back for November and December, with only the explanation that this was the only plan that would pass the legislature.171 For state officials to reverse course and, as they do here, insist that the same protections that were offered in the summer suddenly present an unacceptable risk of voter fraud and mass electoral chaos can only have the effect of eroding public confidence in the administration of Louisiana elections. Plaintiff Jasmine Pogue avers that:
If I had the opportunity to vote by absentee ballot, I would take it unquestionably. I have participated in elections since I became eligible to vote at 18 years old, and it is important to me that my voice is heard in our political system. I am devastated that my right to vote and my need to protect my health are put in tension by Louisiana‘s refusal to extend vote by mail opportunities for voters like me.172
In the Court‘s view, the perceived unfairness of eliminating Virus-related protections that were perfectly acceptable to state officials for the summer elections is more detrimental to public confidence in the elections than a modest increase in mail-in voting.
c. Early Voting: Burden and State Interest
Plaintiffs also seek to enjoin “the reduction of the 13-day early voting period that was established for the July and August 2020 elections to a seven-day early voting period for the November and December elections.”173 According to Plaintiffs, this curtailment of early voting imposes an undue burden on their right to vote. They explain that “additional days of early voting will allow for effective social distancing and reduce the risk of crowds gathering in lines to enter a polling place and inside the polling place.”174 Plaintiffs ask the Court to “direct Defendants to provide a 13-day early voting period,” arguing that the state has “no valid justification” for its failure to do so.175 As it did for the Excuse Requirement
The burden imposed by a limited period of early voting is the same as the burden imposed by restricted access to absentee by mail voting: it increases the risk that Plaintiffs will be exposed to the Virus, in this case by distributing the large presidential turnout over only seven days instead of ten (as Secretary Ardoin proposed) or thirteen (as was offered for the summer elections). This curtailment can only have the effect of creating more crowded polling places, both during early voting and on Election Day, when voters who did not have an opportunity to vote during early voting will have to appear, in person, at their polling place. Neither in their briefs nor in the evidence presented at the injunction hearing have Defendants identified the risk of voter fraud as a justification for limiting early voting. Indeed, the Defendants quote the 2016 Fifth Circuit case Veasey v. Abbott for the proposition that “the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”177 In fact, although Defendants argue against Plaintiffs’ request for an expanded period of early voting in their Opposition, it is a matter of record that Secretary Ardoin, in his proposed Emergency Election Plan, sought a ten-day period of early voting for the November election.178 And Commissioner Hadskey testified at the hearing that a ten-day period of early voting could feasibly be implemented by her office and the parish Registrars of Voters.179
To the extent that Defendants oppose an expanded period of early voting at all, their opposition is based on the logistical challenges and administrative demands that they claim would arise from fitting an expanded early voting period of more than ten days into an already cramped election calendar. To that end, Defendants offer testimony from Commissioner Hadskey, who attests that as much as Plaintiffs may want thirteen days of early voting, “it is not possible to do so.”180 Why not? Because, Hadskey explains, the last day for a citizen to register and be allowed to vote in the November 3rd election is October 13, 2020.181 If this Court
Additionally, Hadskey attests that the state‘s ERIN system generates a “one line poll list” for each registered voter, which contains the voter‘s name, address, and the style of ballot to be provided to the voter.184 For the July 2020 election, when the first day of early voting and the last day of online voter registration both fell on Saturday, July 11, the “one poll list” was not complete until the following Tuesday, July 14th, resulting in what Hadskey describes as “chaos” and “confusion,” requiring the “registrars, deputy registrars, and Secretary of State employees . . . to work on the weekend holidays to accomplish this.”185
The above-described issues with processing new voter registrations notwithstanding, Commissioner Hadskey unequivocally testified that a ten-day period of early voting could feasibly be implemented by her office and the parish Registrars of Voters for the November election.186 And Secretary Ardoin proposed ten days of early voting for November in his Emergency Election Plan, which, though not approved by the Governor, has since earned the approval of the majority of the Louisiana legislature.187 Although they have brought forth evidence that thirteen days of early voting would be unmanageable by state elections officials, Defendants have not identified a state interest that justifies limiting early voting to the seven-day period prescribed by statute. In fact, Defendants scarcely appear to oppose a ten-day period of early voting at all. Based on the record before the court, a curtailed period of early voting imposes a burden on Plaintiffs that is not justified by any legitimate state interest.
2. Irreparable Injury
In addition to showing a likelihood of success on the merits, Plaintiffs
3. Balance of Hardships
The Fifth Circuit instructs that a court should issue a preliminary injunction if the movant establishes, in addition to the other three elements of the test, that “the threatened injury if the injunction is denied outweighs any harm that will result in the injunction is granted.”191 It is true, as Defendants point out, that the Fifth Circuit in Texas Democratic Party v. Abbott, staying a lower court injunction, found irreparable injury to the state of Texas caused by the injunction, writing that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”192 This prong of the injunction analysis calls for a balancing. The Court concludes that the ineffable, abstract injury of being unable to effectuate a statute, that was modified and relaxed by the legislature to meet nearly identical circumstance only months ago carries more weight than the Plaintiffs risk of exposure to a dangerous Virus. The facts – and therefore the balance of hardships – in this case are distinguishable from Abbott. First, the hardships on Plaintiffs here are weightier and more severe than in Abbott, where the plaintiffs sought to expand the excuse-free mail in voting offered to 65-year-olds and up to all voters, regardless of age. Here, Plaintiffs are not
As the District Court for the Middle District of Pennsylvania put it, “there can be no injury more irreparable” than a “risk of serious, lasting illness or death.”193 Even though Plaintiffs’ serious illness or death is not an inevitable result of voting in person, on balance, the increased risk of such is still more detrimental than the abstract injury the state would suffer if this Court enjoined its statutes. Thus, the Court finds that this factor presents no obstacle to injunctive relief.
4. Public Interest
Lastly, the Court must inquire as to whether the grant of an injunction will serve the public interest. Because granting Plaintiffs’ requested injunctive relief would result in expanded voting opportunities for Louisiana voters, the Court concludes that it would. It is well settled that citizens have a “strong interest in exercising the ‘fundamental political right to vote,”194 “[t]he public interest therefore favors permitting as many qualified voters to vote as possible. Defendants assert that “the public interest favors conducting the elections under restrictions less or as restrictive as Louisiana‘s normal election procedures,”195 which the Court can only assume was a misstatement on their part, since the entire premise of their Opposition to the injunction is that instituting a less restrictive election regime would unleash chaos. Defendants also argue that the public interest would be disserved by an injunction because “Louisiana‘s system is not set up or equipped to process that volume of ballots.”196 On that point, the Court can only agree that the apparent inadequacy of Louisiana‘s election system is, indeed, not in the public interest. But as the Supreme Court has held, “administrative convenience”197 is not adequate justification for burdening fundamental rights.
In their Post Hearing Brief, Defendants imply that an injunction by this Court would impermissibly invade the legislative sphere, wondering “why would any elected official engage in the hard work required to pass a law, when they can convince a federal court to do ‘whatever it chooses to do‘? The work of Louisiana‘s lawmakers, even when that work bears little fruit, should not be so cavalierly cast aside.”198 The Court rejects the insulting notion that the significance of the issues presented are in anyway treated cavalierly. Although determining the “Times, Places and Manner of holding Elections”199 is undeniably left to the States, it is equally true that it is the Court‘s duty to determine the constitutionality
B. Injunctive Relief
“Crafting a preliminary injunction is an exercise of discretion and judgment.”200 “A court ‘need not grant the total relief sought by [the plaintiffs] but may mold its decree to meet the exigencies of the particular case.‘”201 The Court is, however, bound to consider “the overall public interest.”202 Thus, for the above-stated reasons, and after careful consideration of the record, the court will GRANT in part and DENY in part Plaintiffs’ Motion for Preliminary Injunction, as follows:
- The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early voting for the November 3, 2020 Presidential General
and Open Congressional Primary Election to thirteen days. The Court GRANTS more limited injunctive relief as to early voting and shall order that the period of early voting for the November 3, 2020 Presidential General and Open Congressional Primary Election be increased to a ten-day period which shall run from Friday, October 16, 2020 to Tuesday, October 27, 2020, (excluding Sunday, October 17 and Sunday, October 25), from 8:00am to 7:00pm each day. - The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early voting for the December 5, 2020 Open General/Congressional/Republican State Central Committee (RSCC) Election.
- The Court DENIES the Plaintiffs’ Motion for injunctive relief to enjoin entirely the operation of the Excuse Requirement set forth in
Louisiana Revised Statute §18:1303 . - The Court GRANTS Plaintiffs’ alternative Motion for injunctive relief to make available the COVID-19 Ballot Application that was used during the July and August 2020 elections and to supply absentee by mail ballots to voters who validly request absentee ballots via COVID-19 Ballot Application in both the November 3, 2020 Presidential General and Open Congressional Primary Election and the December 5, 2020 Open General/Congressional/Republican State Central Committee (RSCC) Election.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 16, 2020.
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA