Democratic Party of Georgia, Inc. v. Perdue | Cases | Westlaw

*720 Appellant Democratic Party of Georgia, Inc. filed suit against appellees Governor Sonny Perdue, Secretary of State Karen Handel, and the State Election Board seeking a declaratory judgment and permanent injunctive relief against the enforcement of the 2006 amendment to OCGA § 21–2–417, known as the 2006 Photo ID Act (“2006 Act”). The trial court granted summary judgment to appellees on all counts of the complaint and denied appellant's cross-motion for partial summary judgment. On appeal, appellant contends the 2006 Act violates Art. II, Sec. I, Pars. II and III of the Georgia Constitution of 1983, in that it imposes an unauthorized condition and qualification on the right of registered Georgia voters to vote by requiring in-person voters to present a photo ID verifying their identity; and it unduly burdens the right to vote in violation of the equal protection clause of the Georgia Constitution, Art. I, Sec. I, Par. II. For the reasons that follow, we affirm.

In 1997, the Georgia General Assembly adopted OCGA § 21–2–417 (Ga.L.1997, p. 662, § 3), which required registered voters in Georgia to identify themselves by presenting one of seventeen forms of photographic or non-photographic identification to election officials as a condition of being admitted to, and allowed to vote at the polls. Former OCGA § 21–2–417(a). That law also allowed a voter who did not have one of the seventeen specified forms of identification to vote by signing a statement under oath swearing or affirming that he or she is the person identified on the elector's certificate. Former OCGA § 21–2–417(b).¹

In an effort to protect against in-person voter fraud, the legislature in 2005 amended OCGA § 21–2–417 (Ga.L.2005, p. 253, § 59) (“2005 Act”) to require registered voters in Georgia who vote in person to show one of six forms of government issued photo ID. If a person did not have or could not obtain an approved form of photo ID, he or she would be allowed to vote a provisional ballot upon *721 swearing or affirming that the elector is the person identified in the elector's voter certificate, and that vote would be counted only if the voter traveled to the county registrar's office and presented a photo ID within two days of the election. Id. Voters who did not possess one of the acceptable forms of photo ID could obtain a photo ID card from service centers operated by the Department of Driver Services for a fee. Ga. L.2005, p. 301, § 66.²

A group of organizations and individuals filed suit against Georgia election officials in the United States District Court for the Northern District of Georgia seeking to have the photo ID requirement of the 2005 Act declared unconstitutional. On October 25, 2005, the district court preliminarily enjoined enforcement of the 2005 Act, for among other reasons, imposing a poll tax in violation of the Twenty–Fourth Amendment to the United States Constitution. Common Cause/Georgia v. Billups, 406 F.Supp.2d 1326, 1369–1370, 1377 (N.D.Ga.2005) (“Common Cause/Ga. I ”). The defendants in that case appealed to the Eleventh Circuit.

During the pendency of that appeal, the Georgia General Assembly repealed the 2005 Act and passed the 2006 Act with identical photo ID requirements for in-person voting and a new Code section, OCGA § 21–2–417.1, which requires the board of registrars in each county to issue a “Georgia voter identification card” containing a photograph of the voter free of charge to registered voters residing in the county who do not have another **70 statutorily acceptable form of identification upon presentation of certain identifying documents. The significant distinction between the 2005 Act and the 2006 Act is that under the 2006 law, the fee charged for a State-approved voter ID card was eliminated. See OCGA § 21–2–417.1.

Following enactment of the 2006 Act, the Common Cause plaintiffs amended their federal complaint to challenge the 2006 Act on the same grounds asserted in their original complaint and sought a preliminary injunction against its enforcement. The district court preliminarily enjoined enforcement of the 2006 Act, but limited the injunction to the July 18, 2006 primary elections and corresponding primary run-off elections and declined to extend the injunction to future elections. Common Cause/Georgia v. Billups, 439 F.Supp.2d 1294, 1351, 1360 (N.D.Ga.2006) (“Common Cause/Ga. II ”). The court so ruled after finding that efforts to educate voters concerning the statutory photo ID requirements had been insufficient in the time available prior to the 2006 primary elections and thus posed an *722 undue burden on certain voters. Id. The district court noted, however:

During the pendency of the federal litigation, two registered Georgia voters filed a complaint in the Superior Court of Fulton County challenging the 2006 Act on state constitutional grounds.³ One plaintiff voluntarily dismissed his claims, and the superior court entered an order with respect to the second plaintiff permanently enjoining enforcement of the 2006 Act based on a violation of Art. II, Sec. I, Pars. II and III of the Georgia Constitution. On appeal, this Court vacated the permanent injunction and remanded the case with direction that it be dismissed after finding that the sole remaining plaintiff lacked standing to challenge the constitutionality of the 2006 Act. Perdue v. Lake, 282 Ga. 348(1)(a), (b), 647 S.E.2d 6 (2007).⁴

Subsequently, the federal district court lifted a stay of proceedings in the Common Cause litigation, which had been entered during the pendency of the Lake appeal, and conducted a trial on the merits. See Common Cause/Georgia v. Billups, 504 F.Supp.2d 1333, 1340(30) (N.D.Ga.2007) ( “Common Cause/Ga. III ”). The only remaining claim for relief in that case was that the statute unduly burdens the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 1342(I)(44). Following a bench trial at which plaintiffs sought a permanent injunction, the district court concluded that the Common Cause plaintiffs lacked standing to *723 pursue their claims, but “[i]n an abundance of caution,” id. at 1374(III)(A)(16), the court alternatively addressed the merits and determined that the 2006 Act did not violate the Equal Protection Clause because the interest of Georgia in preventing voter fraud outweighed the burden on the rights of voters. Id. at 1382(III)(B). The result was that the district court dismissed the Common Cause plaintiffs' federal claims for lack of standing, “decline[d] to enter a permanent injunction, and [found] in favor of the State Defendants on Plaintiffs' undue burden claim.” **71 Id. at 1383(III)(E). On appeal, the Eleventh Circuit concluded that certain remaining plaintiffs suffered an injury sufficient to confer standing to challenge the 2006 Act, but also determined that the district court “did not err when it determined that the legitimate interest of Georgia in preventing voter fraud justified the insignificant burden of requiring voters to present photo identification before they vote in person,” and in declining to enter a permanent injunction on that basis. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1355(III)(A) (11th Cir.2009). (“Common Cause/Ga. IV ”). Accordingly, the Eleventh Circuit vacated the order of the district court insofar as that court dismissed plaintiffs' complaint for lack of standing and rendered judgment in favor of the election officials of Georgia.⁵ Id. at 1357. The United States Supreme Court unanimously denied certiorari. NAACP v. Billups, ––– U.S. ––––, 129 S.Ct. 2770, 174 L.Ed.2d 271 (2009).

On May 23, 2008, appellant filed a complaint for declaratory and injunctive relief in the Superior Court of Fulton County. The complaint, which is the subject of this appeal, alleges (1) that the photo ID requirement of the 2006 Act violates Art. II, Sec. I, Pars. II and III of the Georgia Constitution in that it imposes an unauthorized condition and qualification on the fundamental right of registered Georgia voters to vote, and (2) that it denies equal protection of the law under Art. I, Sec. I, Par. II of the Georgia Constitution by unduly burdening the right to vote. Thereafter, appellant sought a temporary restraining order in the trial court against application of the 2006 Act in the July 2008 primary election, asserting a violation of Art. II, Sec. I, Pars. II and III. After hearing evidence and balancing the harms, the trial court found that appellant failed to meet the applicable standards for the grant of a TRO, and it denied the requested relief. A few months later, appellant sought an interlocutory injunction against application of the 2006 Act in the November 2008 general election on the same grounds, as well as a claim that the 2006 Act violates equal protection under the Georgia *724 Constitution. The trial court again concluded that appellant did not meet the applicable legal standard. An appeal was filed in this Court. Following briefing, appellant moved to withdraw its appeal, which motion was granted. Case No. S09A0201, withdrawn December 12, 2008.

Upon return of the case to the trial court, appellees filed a motion for summary judgment with respect to the entire complaint, and appellant filed a cross-motion for summary judgment as to its Art. II, Sec. I, Pars. II and III claim. After reviewing the evidence in accordance with the burdens placed on the respective movants, the trial court determined the 2006 Act does not violate Art. II, Sec. I, Pars. II and III of the Georgia Constitution, by imposing a new condition or qualification on the right to vote. The court also ruled that the 2006 Act does not violate Georgia's equal protection clause as it “is an ‘evenhanded restriction’ designed to protect the ‘integrity and reliability of the electoral process' ”; and that it is reasonable, narrowly tailored, and related to the legitimate State interest of preventing voter fraud. The court thus granted appellees' motion for summary judgment, and denied appellant's cross-motion.

1. In challenging the trial court's rulings on the respective motions for summary judgment, appellant first contends the photo ID requirement of the 2006 Act violates Art. II, Sec. I, Pars. II and III of the Georgia Constitution by unconstitutionally imposing a new qualification or condition on the right to vote in Georgia.

(a) Art. II, Sec. I, Par. II provides:

Although the right to vote guaranteed by our Constitution cannot be “absolutely denied or taken away by legislative enactment, the legislature has the right to prescribe reasonable regulations as to how these qualifications shall be determined.” Franklin v. Harper, 205 Ga. 779, 789(3), 55 S.E.2d 221 (1949) (upholding the constitutionality of the Voters' Registration Act of 1949). “[T]he legislature cannot take from or add to the qualification unless the power is granted expressly or by necessary implication.” Id. at 790(3), 55 S.E.2d 221. Indeed, our Constitution specifically authorizes the legislature to enact laws regulating the election process. Art. II, Sec. I, Par. I (“Elections by the people shall be by secret ballot and shall be conducted in accordance with procedures provided by law”). It has long been acknowledged that the legislature has wide “latitude in determining how the qualifications required by the Constitution may be determined, provided it does not deny the right of franchise by making the exercise of such right so difficult or inconvenient as to amount to a denial of the right to vote.” Franklin, supra at 790, 55 S.E.2d 221. See also Griffin v. Trapp, 205 Ga. 176, 181–182, 53 S.E.2d 92 (1949); Stewart v. Cartwright, 156 Ga. 192, 197, 118 S.E. 859 (1923).

The 2006 Act does not affect voter registration (for which no photo ID is required) nor does it condition the right to vote on presenting a photo ID, inasmuch as a registered voter may choose a manner of voting for which no photo ID is required. See Common Cause/Ga. III, 504 F.Supp.2d at 1379. Therefore, we find that the photo ID requirement for in-person voting is authorized by *726 Art. II, Sec. I, Par. I, as a reasonable procedure for verifying that the individual appearing to vote in person is actually the same person who registered to vote.⁷

Nor do we find the photo ID requirement to be an impermissible qualification on voting. The 2006 Act does not deprive any Georgia voter from casting a ballot in any election. A registered voter who does not possess a photo ID and who desires to vote in person can obtain a free photo ID at one or more locations in the county of his or her **73 residence. See OCGA § 21–2–417.1(a).⁸ This Court has held that requiring an additional step in the voting process in order to validate identity is not unconstitutional. See Franklin, supra at 792, 55 S.E.2d 221 (with regard to voter registration procedures). Alternatively, if a registered voter appears at the polls without a photo ID, that individual may still cast a provisional ballot and have the vote counted upon presentation of an acceptable photo ID within 48 hours. See OCGA § 21–2–417(b).⁹ Finally, an elector who does not wish to obtain a free photo ID can vote by absentee ballot by mail. See OCGA § 21–2–381(a)(1)(C). While we recognize that absentee voting may be a fundamentally different process from in-person voting governed by distinct procedures, “ ‘[u]nder Georgia law, every eligible voter in Georgia can make a decision to vote utilizing absentee ballots.’ ” Favorito v. Handel, 285 Ga. 795, 798, 684 S.E.2d 257 (2009). See OCGA § 21–2–380(b).

Art. II, Sec. I, Par. II of the Georgia Constitution does not require that qualified citizens be allowed to vote in any particular manner. *727 See Wheeler v. Bd. of Trustees, 200 Ga. 323, 334, 37 S.E.2d 322 (1946) (“The legislative branch of our government is charged with the duty of providing the manner of holding elections”). Instead, a qualified elector is guaranteed the fundamental right to vote provided he or she uses one of the procedures put forth by the legislature, assuming those procedures do not offend the constitution. Because all registered voters in Georgia have the option of voting in person or by absentee ballot, they are free to choose which set of procedures to follow. Favorito, supra.

(b) Appellant also argues that the 2006 Act violates Art. II, Sec. I, Par. III of the Georgia Constitution by making failure to present a photo ID at the polls, or within two days thereafter, a ground for denying a registered voter the right to vote.

Art. II, Sec. I, Par. III provides:

2. Appellant's final contention is that the trial court erred in finding as a matter of law that the 2006 Act did not violate the equal protection clause of the Georgia Constitution, Art. I, Sec. I, Par. II.

*728 Appellant first alleges that in granting appellees' motion for summary judgment on the equal protection counts of the complaint, the trial court failed to independently evaluate the claims under the Georgia Constitution and instead adopted the holding of two federal cases that addressed equal protection challenges to two state voter photo ID laws under the United States Constitution. See Crawford v. Marion County Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), upholding Indiana's photo ID statute, andCommon Cause/Ga. IV, supra at 1355, upholding the Georgia Act. In addition, appellant alleges the Georgia Constitution provides greater protections under its equal protection clause than does the United States Constitution, and, therefore, Georgians should enjoy enhanced equal protection of their right to vote. Despite appellant's attempt to expand Georgia's equal protection clause, this Court has repeatedly stated that the Georgia clause is generally “coextensive” with and “substantially equivalent” to the federal equal protection clause, and that we apply them as one. E.g., Smith v. State, 283 Ga. 376, 377, 659 S.E.2d 380 (2008) (citing Grissom v. Gleason, 262 Ga. 374, 375–376, 418 S.E.2d 27 (1992)); in thE interest oF A.N., 281 ga. 58, 62, 636 S.E.2d 496 (2006) (quoting Nodvin v. State Bar of Ga., 273 Ga. 559, 559–560, 544 S.E.2d 142 (2001)); Sears v. Dickerson, 278 Ga. 900, 901, 607 S.E.2d 562 (2005); McDaniel v. Thomas, 248 Ga. 632, 638, 285 S.E.2d 156 (1981).¹¹ That this Court has recognized greater protection extended under the Georgia Constitution than under the federal constitution in a number of other areas is not relevant.¹² We thus find applicable the test set forth by the United States Supreme Court in analyzing the voting laws of other states.

In Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), the Supreme Court established a balancing test to determine the level of scrutiny to apply in evaluating a constitutional challenge to a state voting law. That test weighs

We apply the balancing test set forth in Anderson, supra, 460 U.S. at 789, 103 S.Ct. 1564. As justification for the burden imposed in requiring a photo ID for in-person voting, appellees have identified the State's interest of assuring that only those persons who are lawfully registered to vote may do so and eliminating the potential for voter fraud at the polls. “There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters.” Crawford, supra, 553 U.S. at 196, 128 S.Ct. 1610. We agree with the Eleventh Circuit in Common Cause/Ga. IV, supra, that the prevention of voter fraud is an important regulatory interest. “Georgia has an interest in preventing election fraud that ‘provides a sufficient justification for carefully identifying all voters participating in the election process.’ ” Common Cause/Ga. IV, supra at 1353.

Next, “[t]he legitimate interest of Georgia in detecting and deterring voter fraud must be weighed against the burden of requiring photo identification to determine whether the interest is ‘sufficiently weighty to justify the limitation.’ ” Id. at 1354, quoting Crawford, 553 U.S. at 190, 128 S.Ct. 1610. To establish the extent of the burden, appellant relies on testimony from one voter who did not possess a statutorily authorized photo ID and because of age and physical infirmities could not travel without great difficulty to her local county office to obtain a free voter identification card (notably, these infirmities also limited her ability to get to her place of voting). Nonetheless, that individual was not prevented from voting as she subsequently voted an absentee ballot in the elections in issue.

In contrast, appellees submitted evidence that the State embarked on a comprehensive education program beginning in 2007 to inform election officials, poll workers, and voters about the photo ID requirement for in-person voters; that the law has been implemented *730 in 15 elections during 2007 and 2008 without problems and voter turnout has not been suppressed.

As did virtually every other court that considered this issue, we find the photo ID requirement as implemented in the 2006 Act to be a minimal, reasonable, and nondiscriminatory restriction which is warranted by the important regulatory interests of preventing voter fraud. See e.g., Common Cause/Ga. IV, supra at 1354–1355; Crawford, supra 553 U.S. at 204, 128 S.Ct. at 1624. Of further significance is the Supreme Court's Crawford decision. The Crawford Court upheld on federal equal protection grounds a more restrictive Indiana law requiring in-person voters to produce photo ID. Interestingly, the dissenters in Crawford, who would find the Indiana law unconstitutional under the balancing standard of Burdick, supra, contrasted the Indiana law with the less restrictive 2006 Georgia Act, noting that “Indiana's requirement imposes a significantly harsher, unjustified burden,” than does Georgia, but declining to determine the constitutionality of the Georgia law because the matter was not before the Court. Crawford, supra, 553 U.S. at 240, 128 S.Ct. 1610 (Souter, J., dissenting).

“[W]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions' ... ‘the State's important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick, supra, 504 U.S. at 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564). Accordingly, the trial court properly discharged its obligation by reviewing the evidence in accordance with the burdens placed on each respective movant and correctly declined to find that the 2006 Act violates Georgia's equal protection clause.