THE BURCH FIRM, LLC

P.O. Box 335

Columbus, Georgia 31902
www.georgiaappealslaw.com

Carolyn “Tippi” Cain Burch

VIA EMAIL ONLY

Georgia Secretary of State’s Office

2 MLK Drive S.E.
804 West Tower,
Atlanta, Georgia 30334

September 30, 2022

Re: SOS Case No. SEB2022-205

Dear

I write on behalf of 34N22, Inc., a federal political committee registered with

the Federal Election Commission, in response to the requests for information
and for the production of documents by your office and the Georgia State
Board of Elections, as transmitted on September 9, 2022 and supplemented
on September 12, 2022.

34N22 has sponsored and disseminated various public communications in

support of the election of Herschel Walker to the United States Senate, and
in opposition to the reelection of incumbent Senator Raphael Warnock, all
of which have been timely and fully reported to the Federal Election
Commission in conformance with federal law. In order to highlight public
policy failures directly affecting the pocketbooks of everyday citizens and
voters, 34N22 hosted events at grocery stores and gas stations during which
it distributed to individuals in the vicinity pre-paid vouchers to purchase
gasoline or groceries. 34N22 did not directly or indirectly condition the
distribution of vouchers on any recipient’s agreement to register to vote, to
vote for or against any particular candidate, or to vote at all. No recipient
was asked about his or her voter registration status, political party affiliation
or candidate preferences prior or subsequent to the issuance of a
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voucher; and a recipient’s actual, stated or perceived voter registration

status, political party affiliation, voting decisions, or candidate preferences
in no way affected his or her eligibility for a voucher. Indeed, a reporter’s
informal but independent survey of voucher recipients confirmed that, after
receiving the vouchers, a majority were either undecided or support the
reelection of Senator Warnock. See Nick Wooten, COLUMBUS LEDGER-
ENQUIRER, A Herschel Walker PAC Paid for Their Groceries. Will Shoppers
Voter for Him in November? (Aug. 2, 2022). In addition, the voucher
giveaways were neither physically nor temporally proximate to the receipt,
completion or casting of ballots; they occurred solely at grocery stores and
gas stations.

As your office has previously recognized, the offer and/or distribution of food
or other gratuities in connection with campaign events or other political
activities is lawful, as long as it is not made contingent upon the participants’
voter registration status, voting decisions, or electoral preferences. See, e.g.,
Ga. Sec’y of State’s Office Investigations Division, SEB Case # 2016-000093,
Report of Investigation (Jun. 30, 2016).1 This is consistent with the views of
independent legal experts consulted in media reports on the giveaways. See
Greg Bluestein, ATLANTA J.-CONST., Walker Gas Voucher Event Sparks Ire
(June 6, 2022) (“Several legal experts told

1In contrast to 34N22’s neutrally structured giveaways, which expressly eschewed any
nexus between electoral activities and voucher eligibility, various businesses (including
Starbucks, Uber and Lyft) and advocacy organizations have launched programs that
directly incentivized or subsidized voting; each terminated their initiatives without any
adverse legal consequences. See Starbucks: Voters Get Free Coffee, ATLANTA BUSINESS
CHRONICLE, Nov. 3, 2008, available at https://www.bizjournals.com/atlanta/
stories/2008/11/03/daily7.html; Taylor Drake, Central Georgia Groups to Provide Free
Uber Rides to the Polling Place, WMAZ-TV, Oct. 19, 2020, available at https://www.
13wmaz.com/article/news/local/freeuberridestovote/93-e5b238a4-fa0c-4089-a79b-60
1db8e22952; Aditi Shrikant, Uber Lyft, and More Are Offering Discounted Rides to the
Polls on Election Day, VOX, Nov. 6, 2018, available at https://www.vox.com/the-goods/
2018/11/6/18068666/voting-lyft-uber-election-day. Likewise, a committee controlled
by current and former gubernatorial candidate Stacey Abrams has directly paid more than
$1,000,000 in personal liabilities of select individuals in Georgia, see 108,000 People
Will Get Medical Debt Relief After Stacey Abrams’ PAC gifts $1.34M, ASSOCIATED PRESS,
Oct. 27, 2021, available at https://www.npr.org/2021/10/27/1049675704/stacey-
abrams-medical-debt-relief-pac-donation, without any apparent inquiry from your office.

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The Atlanta Journal-Constitution the program appears permissible so long

as the voucher was given to anyone regardless of voter registration status or
as a basis to pledge their vote for a candidate. One attorney said it was no
different than a campaign handing out merchandise, so long as the option is
afforded to all.”); Nick Wooten, COLUMBUS LEDGER-ENQUIRER, A Herschel
Walker PAC Paid for Their Groceries. Will Shoppers Voter for Him in
November? (Aug. 2, 2022) (“Chris Grant, a Mercer University political
science professor, said the gas and grocery giveaways mirror the free fish and
barbecues offered by politicians of a bygone era — folks like former Georgia
governors Marvin Griffin and rural populist Eugene Talmadge.”). For these
reasons, 34N22 maintains unqualifiedly that the voucher giveaways were
fully consistent with all applicable Georgia laws and regulations, including
but not limited to O.C.G.A. §§ 21-2-570 and 21-2-414.

In the interests of transparency and to facilitate an efficient resolution of this

matter, however, 34N22 desires to cooperate as fully as possible in your fact-
finding process. The information and materials included in this response are
provided subject to, and without waiving, any and all claims or defenses
available to 34N22 under applicable federal or state law, or any privilege or
confidentiality interest (including but not limited to the attorney-client
privilege, the attorney work product doctrine, and the First Amendment
privilege) that may protect from disclosure any documents, communications
or information relating to the subject matter of your investigation.

I. Requests for Information

34N22 responds to your requests for information as follows:

1. Some of the recipients signed something after receiving a

voucher. What was this document that was signed? I am
requesting a copy of the form to add to the file.

Some voucher recipients who wished to record their opinions about U.S.
Senate candidates and/or policy issues important to them were asked to sign
a general release authorizing 34N22 to use their name and likeness in
potential future public communications by the organization. Copies of the
release forms as executed by the voucher recipients are enclosed as Exhibit
A. No voucher recipient was asked to sign any document other than the

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aforementioned release form, and no individual’s receipt of a voucher was

conditioned upon his or her execution of the release.

2. How & where are the give-a-ways publicized?

The times and locations of the voucher giveaways were publicized on

34N22’s website and social media pages roughly one hour before the events
began. No further advance notice was given to anyone except for members of
the local media (via a press advisory, with an embargo against public
dissemination until the events began) and the proprietors of the businesses
at which the events were held.

3. Can you provide a list of the dates and locations the give-a-
ways have been held, including any upcoming events?

34N22 sponsored and conducted voucher giveaways at the locations and on

the dates indicated below:

Date Location
Chevron Gas Station
June 4, 2022 1192 Pryor Road
Atlanta, Georgia 30315
Exxon Station
June 28, 2022 4433 Forsyth Road
Macon, Georgia 31210
Adams’ Food Center
July 28, 2022 6381 Hamilton Street
Preston, Georgia 31824
Piggly Wiggly
August 9, 2022 59 Magnolia Street
Jeffersonville, Georgia 31044
Terry’s IGA
August 25, 2022 115 North Spring Street
Washington, Georgia 30673
Chevron Station
September 8, 2022 10325 Abercorn Street
Savannah, Georgia 31406

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As of the date of this letter, given the imminent commencement of voting

activity in Georgia, 34N22 does not intend to engage in future giveaways of
vouchers, gift cards, or any other item carrying more than a de minimis
monetary value (e.g., stickers and flyers), but fully reserves its right to do so
in a manner consistent with applicable laws.

4. Are vouchers given to everybody, regardless of their

candidate preference or intention to vote? Are there any
conditions agreed upon, prior to receiving the voucher? Are
the vouchers ever taken away from recipients after receiving
them?

Vouchers were distributed entirely on a first-come, first-served basis,

without regard to the recipient’s actual, stated or perceived candidate
preferences or intention to vote. 34N22 did not directly or indirectly place
any conditions (including but not limited to conditions relating to an
individual’s actual, stated or perceived voter registration status, voting
intentions, voting decisions, or candidate preferences) on the issuance of a
voucher. 34N22 has never rescinded, revoked, or requested or demanded
the relinquishment of a voucher.

5. What are the ‘marching orders,’ policies and/or procedures

during these events? How were recipients chosen? Was
anyone turned away? If so, why?

34N22 did not promulgate or disseminate any written policies or procedures

in connection with the voucher giveaways, but the consultants and vendors
of 34N22 responsible for designing and executing the giveaways did so on
the premise, and with the contemporaneous understanding, that the
issuance of a voucher must not be directly or indirectly contingent upon the
recipient’s actual, stated or perceived voter registration status, voting
intentions, voting decisions, or candidate preferences. Vouchers were
distributed solely on a first-come, first-served basis, and each recipient was
limited to one voucher per event. Because 34N22 had purchased a finite
number of vouchers for each event, it is possible that some attendees who
desired a voucher did not ultimately obtain one because supplies had been
exhausted. If and to the extent any person who requested a voucher was
turned away, such a refusal would have been attributable solely and
exclusively to either an exhaustion of

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voucher supplies or the person’s prior receipt of a voucher at the same event.

6. Can you also provide in your response, an explanation of the

intent of the 34N22 gas / grocery voucher give-a-ways;
particularly while promoting one candidate and denouncing
another by means of verbal statements, flyers, and signage?

34N22 respectfully objects to this request on the grounds that it seeks

information that is not relevant to any statute, regulation, claim or issue
within the Secretary of State’s or the State Board of Elections’ jurisdiction,
and that is privileged from disclosure by 34N22’s First Amendment rights of
speech and association. Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th
Cir. 2010); see also Curling v. Raffensperger, No. 1:17-cv-2989-AT, 2021 WL
5162576 (N.D. Ga. Nov. 5, 2021) (recognizing First Amendment privilege
claims in the context of election-related litigation). The United States
Supreme Court has cautioned that any “intent-based test” in connection with
the implementation of election laws “chill[s] core political speech.” Fed.
Election Comm’n. v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007). While
34N22 fully recognizes the State’s prerogative to regulate and prohibit quid
pro quo transactions in connection with the registration of voters and casting
of ballots, any related enforcement inquiry must be predicated on the
“objective . . . substance of the communication [or activity at issue] rather
than amorphous considerations of intent and effect.” Id. at 469. 34N22
respectfully submits that the objective attributes and characteristics of its
voucher giveaways do not supply any colorable reason to believe that these
activities were carried out in a manner that is inconsistent with any
applicable Georgia law.

7. From which account were the funds extracted from to pay for
the vouchers? Is it from the same account listed on the
Statement of Organization form which was filed with the
FEC?

All disbursements in connection with the voucher giveaways were made from
34N22’s depository account at Chain Bridge Bank N.A., as disclosed on its
Statement of Organization on file with the Federal Election Commission.

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8. Can you provide the best contact point for 34N22, should the
board need further information or clarification.

Please direct all future correspondence to the undersigned, as legal counsel

for 34N22.

II. Requests for Production of Documents

34N22 responds to your and the State Board of Elections’ requests for the
production of documents as follows:

1. Each document, plan, advertisement, or communication

relating to payments, contributions, vouchers and other
forms of value given to people to pay for or defray the cost to
purchase gasoline.

a. [As supplemented by the Secretary’s office]: A copy of

the flyers which were handed out and an example of the
gas/grocery voucher.

34N22 has enclosed with this letter the following documents:

1. copies of flyers that were distributed or made available to the public in

connection with the voucher giveaways, see Exhibit B;
2. an image of a sample voucher, see Exhibit C;
3. images of social media postings published by 34N22 concerning the
voucher giveaways, see Exhibit D; and
4. copies of the relevant reports submitted to the Federal Election
Commission that disclose disbursements relating to the voucher
giveaways, including the amounts spent and payee information, see
Exhibit E.

34N22 respectfully objects to this request to the extent it seeks documents or

communications that are internal to 34N22 and its agents or consultants, or
that were not disseminated to the public. For the reasons discussed above,
34N22 believes that the actual or alleged subjective intentions of 34N22 or
any of its agents or consultants are not relevant to any statute, regulation,
claim, or issue within the Secretary of State’s or the State Board of Elections’
jurisdiction. Further, such documents and communications are subject to

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the First Amendment privilege, which protects against compelled

“[d]isclosures of political affiliations and activities that have a ‘deterrent
effect on the exercise of First Amendment

rights.’” Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010); see
also Curling v. Raffensperger, No. 1:17-cv-2989-AT, 2021 WL 5162576 (N.D.
Ga. Nov. 5, 2021) (recognizing First Amendment privilege claims in the
context of election-related litigation).

34N22 further objects to this request to the extent it seeks documents or

communications that are protected from compulsory disclosure by the
attorney-client privilege and/or the attorney work product doctrine.

2. Each document or record of communications between and

among any organization or entity that was involved in the
initiative to offer to pay, make contributions, provide
vouchers or give other form of value to pay for or defray the
cost to purchase gasoline.

34N22 respectfully objects to this request to the extent it seeks documents or

communications that are internal to 34N22 and its agents or consultants, or
that were not disseminated to the public. For the reasons discussed above,
34N22 believes that the actual or alleged subjective intentions of 34N22 or
any of its agents or consultants are not relevant to any statute, regulation,
claim, or issue within the Secretary of State’s or the State Board of Elections’
jurisdiction. Further, any such documents and communications are
protected from compelled disclosure by the First Amendment privilege.

34N22 further objects to this request to the extent it seeks documents or

communications that are protected from compulsory disclosure by the
attorney-client privilege and/or the attorney work product doctrine.

3. Each document or communication that discusses or

mentions the target groups and geographic areas in which
offers to pay, contribute, provide vouchers for and to give
any other form of value to pay for or defray the cost to
purchase gasoline.

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34N22 respectfully objects to this request to the extent it seeks documents or

communications that are internal to 34N22 and its agents or consultants, or
that were not disseminated to the public. For the reasons discussed above,
34N22 believes that the actual or alleged subjective

intentions of 34N22 or any of its agents or consultants are not relevant to any
statute, regulation, claim, or issue within the Secretary of State’s or the State
Board of Elections’ jurisdiction. Further, any such documents and
communications are protected from compelled disclosure by the First
Amendment privilege.

34N22 further objects to this request to the extent it seeks documents or

communications that are protected from compulsory disclosure by the
attorney-client privilege and/or the attorney work product doctrine.

Subject to the foregoing objections, 34N22 has enclosed with this letter
copies of communications that it distributed or made available to the general
public in connection with the voucher giveaways.

4. A copy of each and every brochure, document, campaign

literature or other communication given to people when they
were offered payment, contributions, vouchers or other
value to pay for or defray the cost to purchase gasoline.

Documents responsive to this request are enclosed.

***

In closing, we note the likelihood that the complaints received by your office
were not organic—no such complaints were apparently submitted against
Starbucks, Uber, Lyft, and Stacey Abrams, after all, see supra note 1—but
instead were coordinated and funded by groups that oppose the political
messages advocated by 34N22. Such attempts to divert 34N22 resources
from voter communications to legal fees are their own sort of political
suppression, and should be approached with an appropriate degree of
skepticism. We trust that your office will review the issues evenhandedly and
without regard for sensational outrage manufactured by political opponents.

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As noted above, 34N22 is committed to cooperating with your investigation

to the fullest extent consistent with its own constitutional and statutory
rights. To that end, please do not hesitate to contact me if you have any
questions or seek additional information.

Respectfully,

/s/ Tippi Burch

Carolyn “Tippi” Cain Burch
The Burch Firm, LLC
P.O. Box 335
Columbus, Georgia 31902