IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

BLACK MALE VOTER PROJECT, )

GEORGIA LATINO ALLIANCE FOR HUMAN )
RIGHTS, JERRY THOMAS, JR., AND )
HANSEL ENRIQUEZ )
)
Plaintiffs )
vs. ) Civil Action No.:
)
FULTON COUNTY, RICHARD BARRON, in his )
individual and official capacities as Director of the )
Fulton County Department of Registration and )
Elections, FULTON COUNTY BOARD OF )
REGISTRATION AND ELECTIONS, and their )
members, each sued in their individual and official )
capacities )
)
Defendants. )
__________________________________________)

COMPLAINT

Plaintiffs Black Male Voter Project, Georgia Latino Alliance for Human Rights, Jerry

Thomas, Jr., and Hansel Enriquez (collectively, “Plaintiffs”), by and through the undersigned

attorneys, file this Complaint for injunctive relief, seeking to protect the fundamental right to vote

as secured by the Georgia Constitution. The June 9, 2020 presidential primary (the “June

Primary”) in Fulton County was a debacle. Marked by mass confusion and long delays in the

voting by mail (“VBM”) process, as well as hours-long lines at polling places throughout the

County during both early voting and on Election Day, it was nothing short of a “meltdown” of the

electoral process.

Now, with less than 90 days until the November presidential election, Defendants have just

published a “Voting and Elections Action Plan,” which draws on the recommendations of their

own post-election Task Force. See Voting and Elections Action Plan (the “Plan”), August 13,
2020, https://www.fultoncountyga.gov/-/media/BRE-Voting-and-Elections-Action.ashx. The

Plan lays out aspirational “Action Points” covering many of the most central elements of the voting

process in Fulton County. Critically, the Plan (1) admits that “major failures” occurred and that

these failures were “systemic”; (2) admits that there must be corrective action to avoid a repeat of

the problems come November; and (3) commits to fixes in both absentee and in-person voting.

Unfortunately, however, the Plan also contains some glaring deficiencies, which will again

put the fundamental rights of Fulton County voters at risk this November.

 First, there is no transparency regarding who is responsible for doing what. The Plan is
silent on the issue of oversight and accountability. It offers zero comfort that those in
charge are both able and willing to fix what is broken in Fulton County in time for
November.

 Second, the Plan lacks any discussion of how Defendants will measure their own interim
progress or make necessary in-progress changes so that they are not “surprised” by Election
Day failures.

 Third, although the Plan generally discusses process improvements with qualitative terms
like “sufficient” and “adequate,” it entirely fails to identify or commit to meeting any
objectively measurable goals. There is no way to know if what Defendants consider
“sufficient” or “adequate” will actually be so—particularly given that voter turnout in
November is reasonably expected to far exceed what it was in June.

 Fourth, the Plan simply ignores several significant additional systemic failures, despite
being highlighted during the June Primary and despite correction of those failures being
critical to November election success.

This well-intentioned but entirely unenforceable Plan cannot save our democracy. The voters of

Fulton County will not get any election “do-overs.” Court intervention is desperately needed to

prevent an irreversible collapse in Fulton County’s election system this November.

The Georgia Supreme Court has held that under the Georgia Constitution, the State may

not make voting so difficult or inconvenient that it is tantamount to a denial of the right to vote—

which is precisely what happened in the June Primary. Defendants’ Plan, while a step in the right

direction, falls short substantively and lacks any adequate enforcement mechanism. Plaintiffs

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bring this suit for injunctive relief to ensure that there is a corrective plan in place that really does

correct the shortcomings from the June Primary. Swift and direct intervention by this Court is

essential to ensuring that the same—or even more significant—problems as seen in the June

Primary do not recur and cause irreparable harm to Fulton County voters in November. In addition,

a court order will overcome inevitable bureaucratic or even political resistance to implementing

concrete reforms. In sum, judicial intervention is the best means of guaranteeing Fulton County’s

citizens that they will not be denied their fundamental right to vote once again.

NATURE OF THE CASE

1. “No right is more precious in a free country than that of having a voice in the

election of those who make the laws under which, as good citizens, we must live.” Wesberry v.

Sanders, 376 U.S. 1, 17 (1964). As the United States Supreme Court recognized in Wesberry,

the right to vote and to have that vote counted is a fundamental constitutional right for all United

States citizens.

2. Article II, Section 1, Paragraph II of the Georgia Constitution protects the right of

Georgians to vote by providing that “[e]very person who is a citizen of the United States and a

resident of Georgia as defined by law, who is at least 18 years of age and not disenfranchised by

this article, and who meets minimum residency requirements as provided by law shall be entitled

to vote at any election by the people.” Ga. Const. art. II, § 1, para. II (emphasis added). In

addition, the Georgia Supreme Court has recognized under Georgia’s Equal Protection Clause,

that “‘[t]he right to vote is fundamental, forming the bedrock of our democracy.’” Favorito v.

Handel, 285 Ga. 795, 796 (2009) (quoting Wexler v. Anderson, 452 F.3d 1226, 1232 (11th Cir.

2006)).

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 3. Georgia law provides for a Board of Registration and Elections (“BRE”) to operate

within each county and to fulfill the duty of ensuring that elections are “honestly, efficiently, and

uniformly conducted.” Ga. Code Ann. § 21-2-70. The BRE must, among other obligations,

establish for the county a sufficient number of polling places; select and equip polling places and

ensure the proper operation of polling place equipment; deploy enough properly trained election

staff (including volunteer poll workers); and provide technical support and trouble-shooting

resources to address the range of issues that can be reasonably anticipated. See id. §§ 21-2-2(35);

21-2-70.

4. In addition, the BRE must administer the county’s VBM process and establish early

voting sites throughout the county. Id. § 21-2-40(b). VBM has increasingly been, and was in June,

promoted as a means of ensuring access to the ballot box by allowing people to avoid traveling to

voting sites and waiting in line, both of which are known to discourage participation. Particularly

in light of the COVID-19 pandemic, it has been a preferred means of keeping voters and their

families at home and safe.

5. In-person early voting (referred to herein as “early voting”), if effectively

conducted, can also give voters the option of avoiding longer wait times on Election Day. Thus,

early voting can help ensure the right to vote while maintaining physical distancing during the

ongoing pandemic. As such, VBM and early voting are important tools for the BRE to ensure that

citizens can exercise their right to vote freely and safely.

6. Whether or not a county’s BRE creates and implements a comprehensive,

thoughtful, and detailed voting plan greatly determines whether an election is honestly, efficiently,

and uniformly conducted or—like the June Primary—devolves into a public debacle that deprives

citizens of their fundamental right to vote.

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 7. Because, as Defendants now admit, their “absentee by mail process didn’t work,”

see Plan at 2, thousands of voters either did not receive their ballots in time or never learned

whether their votes were counted in the June Primary. Similarly, because Defendants failed to

manage the process for in-person voting, Fulton County residents waited in hours-long lines at

sites across the County during both early voting and on Election Day. Wait times also were made

worse by the fact that many people who wanted to vote by mail were instead forced to try to vote

in person because of uncertainty about the status of their ballots. The cumulative impact of

Defendants’ failures was that the fundamental rights of thousands of Fulton County voters were

jeopardized, and many voters were entirely deprived of their right to vote.

8. Given the magnitude of the June Primary failures, as well as the deficiencies in

Defendants’ just-released Plan, there is little reason to believe the required changes can or will

happen without judicial intervention, regardless of election officials’ good intentions.

Defendants and their employees must be enjoined to meet specific, actionable, and practicable

election plan goals. Absent such relief, voters will continue to be disenfranchised—an injury

that money cannot compensate. The public interest will be served by ensuring that voters have

the opportunity to vote and have their votes actually counted.

JURISDICTION AND VENUE

9. This action arises exclusively under the Constitution and laws of the State of

Georgia. This Court has jurisdiction to grant both declaratory and injunctive relief under Ga. Code

Ann. §§ 9-4-2 and 9-4-9.

10. Venue in this Court is proper under Ga. Code Ann. § 9-10-30 because at least one

of the defendants against whom substantial relief is prayed resides in Fulton County.

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 PARTIES

A. Organizational Plaintiffs

11. Plaintiff Black Male Voter Project (“BMVP”) is a civic organization dedicated to

building a movement that encourages Black men to regularly and actively engage in the voting

and electoral process. BMVP’s core programming helps Black men develop voting as a habit and

to see voting as a solution to their problems. BMVP has 4 full-time staff members and 27 part-

time staff members administering their program in Georgia. Before the 2020 election season,

roughly 90% of BMVP’s staff’s time was spent on its core programming and roughly 10% was

spent on educating individual voters about where and how to vote in specific elections. Leading

up to the June Primary, BMVP fielded complaints from voters who had problems trying to vote

absentee and from voters who had to wait in line for hours to vote in person. Due to Defendants’

failures, BVMP is now forced to change its approach in advance of the 2020 presidential primary.

Because of what BMVP saw in the June Primary, 100% of its staff time and resources is now

devoted to what used to be only about 10% of its work—getting information to individual Black

male voters about upcoming elections and helping them figure out where and how to vote.

12. Plaintiff Georgia Latino Alliance for Human Rights (“GLAHR”) is a community

organization that educates, organizes, and trains the Latinx community in Georgia to defend and

promote their civil and human rights.1 As part of their civic engagement campaign called “Soy

Georgia,” or “I am Georgia,” GLAHR’s executive director, two staff organizers, and trained

volunteers organize community meetings, phone banks, do social media outreach, and create

informational Spanish-language videos and pamphlets to educate Latinx voters in Fulton County

and across the State about how to exercise their right to vote. During the June Primary, GLAHR

1
GLAHR uses the term “Latinx” to refer to persons of Latin American origin or descent.
6
heard from community members who experienced long delays in getting their absentee ballots

and who encountered long lines when attempting to vote in person. Because of what GLAHR

observed in Fulton County during the June Primary, GLAHR is no longer confident that the VBM

system will be effectively administered in November, and is concerned that precincts with

substantial Latinx populations will be particularly impacted by problems on Election Day.

Therefore, GLAHR has diverted staff time and resources from organizing and outreach to

changing their recommendations on where and how to vote, developing a poll monitoring system,

and keeping closer tabs on public statements by elections officials in order to translate the latest

information into Spanish for the Latinx community.

B. Individual Plaintiffs

13. Plaintiff Jerry Thomas, Jr. is a 68-year-old resident of Fulton County. Despite

requesting an absentee ballot via email two months in advance of the June Primary, Mr. Thomas

still had not received his absentee ballot a week before the primary. After following up with a

registration officer multiple times who assured him that his absentee ballot would be mailed in

time, and still having failed to receive an absentee ballot, Mr. Thomas went to two early voting

locations on June 5, 2020. At both of these places, Mr. Thomas encountered unreasonably long

lines and wait times. Given his age, Mr. Thomas is considered to be at increased risk of severe

illness from COVID-19. Weighing his health, and potentially his life, against the importance of

voting, Mr. Thomas was forced to make a decision. He ultimately went home without voting

that day because he did not want to risk contracting COVID-19 and potentially passing it along

to his wife, who is also in a high-risk category. Mr. Thomas followed up with a registration

officer later that day by email and phone. He was told that they would overnight his absentee

ballot on June 5. Mr. Thomas did not receive his absentee ballot until the day after the primary,

7
on June 10. At no time did he receive an absentee ballot from any overnight delivery service. It

is Mr. Thomas’ custom and practice to vote in every general and primary election. The June

Primary was the first time that Mr. Thomas did not vote in over 20 years.

14. Plaintiff Hansel Enriquez is a 30-year-old resident of Fulton County. Mr.

Enriquez went to vote during the early voting period while on his one-hour lunch break on June

5, 2020, at the C.T. Martin Natatorium and Recreation Center. Once he arrived, he saw a line of

voters wrapping around the building—most of them Black. The line was so long that he could

not even see the end. Unable to wait in line for longer than an hour during his lunch break, Mr.

Enriquez left. After work that night, around 7:00 PM, Mr. Enriquez went to another early voting

location in College Park. Yet again, Mr. Enriquez encountered inordinate delays due to long

lines of voters—again mostly Black. Mr. Enriquez was forced to wait in line for eight hours and

did not vote until around 2:45 AM. During this wait, Mr. Enriquez witnessed several individuals

leave the line without voting.

C. Defendants

15. Defendant Fulton County is a county government. It is responsible for approving

the annual budget for the BRE. Fulton County is the largest and most populous county in

Georgia. As of the June Primary, roughly 11% of all Georgia’s active registered voters lived in

Fulton County. Moreover, Fulton County is approximately 55% non-white, and 14% of

Georgia’s Black population resides in Fulton County.

16. Defendant Richard Barron is the Director of the Fulton County Department of

Registration and Elections. He and his staff are responsible for conducting elections in Fulton

County and registering voters who reside within Fulton County. Defendant Richard Barron is

sued in his individual and official capacities.

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 17. Defendant Fulton County Board of Registration and Elections is the board of

elections for Fulton County. The BRE serves as both the “elections superintendent” and “the

board of registrars” for elections in Fulton County. It is statutorily obligated to develop an

election plan and take measures necessary to ensure that elections are “honestly, efficiently, and

uniformly conducted.” This includes managing the process for VBM and taking such other

measures necessary to ensure on-site voting for primary and general elections. Ga. Code. Ann.

§§ 21-2-383, 21-2-384. The BRE has jurisdiction over the Department of Registration and

Elections.

18. Defendants Mary Carole Cooney, Mark Wingate, Vernetta Nuriddin, Kathleen

Ruth, and Aaron Johnson are members of the BRE and are sued in their individual and official

capacities as members of the Fulton County BRE, insofar as such joinder is required by Georgia

law.

19. Given both the size and demographics of Fulton County’s population, the failure

of Defendants to effectively administer elections has statewide ramifications in terms of the

ability of minority and otherwise historically disenfranchised communities to have their voices

heard. More precisely, because such a large percentage of Georgia’s Black voters are citizens of

Fulton County, burdening the rights of Fulton County voters is de facto burdening the rights of

Black voters—not just in Fulton County but in the State as a whole. Likewise, these burdens

also fall disproportionately on Latinx voters.

THE JUNE PRIMARY REPRESENTED A MELTDOWN

OF THE VOTING SYSTEM IN FULTON COUNTY

20. Media reports, voter statements, and public testimony all tell a consistent story of

the Fulton County June Primary as a total “meltdown” of the electoral process, a “debacle” that

caused “many people to give up their right to vote out of frustration.” Deere, Fulton County

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Elections Board Adds 11 New Early Voting Sites, Atlanta Journal-Constitution (June 29, 2020),

https://www.ajc.com/news/local-govt--politics/fulton-county-elections-board-hopes-new-plan-

will-avert-past-castrophe/EVkRbN3GU46L8NUcUP8Zs O/.

21. Now, Defendants’ own published admissions, together with other documents

obtained to date, further detail a myriad of problems leading up to and during Election Day,

which reflected systemic failures across Fulton County. Moreover, compiled statewide election

data demonstrate that, while there were many problems in many Georgia counties, Fulton County

was an outlier. The combined scope and magnitude of the problems—beginning with a complete

breakdown of the absentee ballot system and culminating in hours-long lines at polling places

County-wide—created substantial voting obstacles, suppressed voter turnout, and in many cases

simply deprived Fulton County citizens of their right to vote.

A. Defendants’ Acts and Omissions Deprived Fulton County Voters of Their Right to
Vote by Absentee Ballot

22. All eligible Georgia voters have the right to apply for and receive a ballot allowing

them to vote by mail. Ga. Code. Ann. § 21-2-381(a)(1)(A). Georgia does not require otherwise

eligible voters to be physically “absent” or to otherwise claim an exemption from voting in

person. Id. § 21-2-381(a)(1)(C).

23. Each county’s “board of registrars”—in Fulton County’s case, its BRE—is

charged with processing absentee ballot applications in a timely manner. Voters can submit their

absentee ballot applications up to 180 days before an election, and the BRE must begin sending

out absentee ballots 49 days before the election. Id. § 21-2-384(a)(2). The first wave of absentee

ballots to early requesters must be mailed out between 49 and 45 days of the election. Id. For

absentee ballot applications submitted within 49 days of the election, the BRE must issue ballots

“immediately.” Id. This means that the total processing time from receipt of the application to

10
mailing out an absentee ballot or notice of rejection can be no more than 3 business days. Ga.

Comp. R. & Regs. 183-1-14-.11.

24. Voters can return their completed ballots by mail, in person, or by placing them

in designated drop boxes. Ga. Code. Ann. § 21-2-385; Ga. Comp. R. & Regs. 183-1-14-.08. All

completed ballots must be received by Election Day. Ga. Code. Ann. § 21-2-386(a)(1)(F). An

absentee ballot postmarked before Election Day but received after Election Day does not count.

Id.

25. In light of the COVID-19 pandemic, both State and County officials actively

promoted VBM, with the Secretary of State’s Office even sending absentee ballot applications

to all 6.9 million of Georgia’s active registered voters.

26. But Defendants never disclosed that Fulton County was woefully unprepared to

process ballot applications or returned ballots—indeed, that it lacked any comprehensive plan or

strategy to manage this form of voting.

27. As late as May 19, 2020, Gabriel Sterling (statewide voting system

implementation manager) stated that “[w]e need the voters of Georgia to really chip in and work

together and vote from the safety of their home, it’s going to be better for their neighbors, better

for the poll workers and better for the election process.” Lopez, Long Lines For Early Voting

Force Fulton County Officials to Make Changes, Extend Hours, 11Alive.com (May 19, 2020),

https://www.11alive.com/article/news/politics/elections/early-voting-problems-fulton-county-

coronavirus-pandemic/85-1dd7edbc-c616-4f62-9de5-edbc5b4d6fdb.

28. Fulton County officials likewise—and for good reason—actively encouraged

voters to use VBM as a means of both protecting people from COVID-19 and reducing polling

place congestion. On May 21, 2020, the County tweeted that voting by mail is “safe, secure and

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socially distant!” Fulton County Georgia (@FultonCountyGeorgia), Twitter (May 21, 2020),

https://twitter.com/FultonInfo/status/1263507804373073920.

29. However, Defendant Barron’s staff at the Department of Registration and

Elections was in fact completely overwhelmed and incapable of managing the task. Thousands

of applications submitted by email were not processed because the staff became bogged down

with printing and organizing ballot applications received by email, and ultimately simply ignored

the email applications in order to prioritize requests received in paper form. When they eventually

returned to process the emailed applications, they overlooked large numbers.2 See Niesse, et al.,

Fulton Reverses Course and Accepts Emailed Absentee Ballot Requests, Atlanta Journal-

Constitution (July 15, 2020), https://www.ajc.com/news/state--regional-govt--politics/fulton-

rejects-emailed-absentee-ballot-requests-after-primary-problems/p0LYsStYeF7NdlNhwgsyUK/.

30. The Atlanta Journal-Constitution reported that Fulton County had a backlog of

25,000 absentee ballot applications that was caused by overloaded computer servers. Brasch,

Fulton County Fixing Backlog of 25,000 Absentee Ballot Applications, Atlanta Journal-

Constitution (May 22, 2020), https://www.ajc.com/news/local/fulton-county-fixing-backlog-

000-absentee-ballot-applications/IOEQxJb7HZclRx0pwX9cKM/.

31. Some voters, including Plaintiff Jerry Thomas, Jr., repeatedly tried to check on

the status of their ballots but could not get confirmation that their applications had been

processed, and either did not receive ballots or had their ballots arrive after substantial delay,

2
VBM applications may be submitted in person, by fax or mail. Ga. Code. Ann. § 21-2-
381(a)(1)(A). For the June Primary, Fulton County also accepted applications via email. The
Secretary of State’s Office recently launched an online portal for registered voters to request an
absentee ballot in advance of November, but Defendants have not detailed how this will reduce
delays and errors.
12
including after Election Day. See, e.g., Ex. __, Kuttig Decl.; Ex. __, Jackson Decl.; Ex. __,

Hudson Decl.; Ex. __, Bassols Decl.; Ex. __, Parikh Decl.

32. Fulton County Commissioner Joe Carn acknowledged the breakdown of the VBM

system and that it was a slow moving train Defendants saw coming: “We knew that the state’s

plan was a disaster, that was obvious: You send out 6.9 million absentee ballots by mail and (the

state is) not prepared to process them, then of course people are going to abandon the mail-in

process due to the extreme delays and say ‘I want my vote to count, I’m going to go in person.’

We have to anticipate this stuff. Yes, the state screwed up, but that doesn’t mean Fulton County

needs to screw up again.” Fulton County Government TV, Board of Commissioners Meeting,

May 20, 2020, available at https://www.youtube.com/watch?v=pcHG0UoN5K8&feature=

youtu.be&t=26502.

33. During a Fulton County Board of Commissioners meeting in May, Carn called

the problems “unacceptable, absolutely unacceptable,” and said he was not interested in the “101

excuses;” Defendants had an obligation to “prepare and you get this stuff fixed.” Id.

34. But the problems were not fixed. Stories abound of voters like Plaintiff Jerry

Thomas, Jr., who did not receive his mail-in ballot in time, despite applying months in advance,

and ultimately did not cast a vote—for the first time in 20 years—because the alternative of

standing in line and voting in person presented too great a risk of COVID-19 infection.

35. On Election Day, Fulton County Commissioner Liz Hausmann, who reported

waiting 2.5 hours to vote, attributed the delays to management issues: “I think a lot of what we

are seeing throughout our system right now throughout the county is management issues. I’m

hearing that equipment was delivered late. Some of it is not charged up. The check in folks are

not really clear about what to do.” Dennis, Fulton County Commissioner Says Voting Issues

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Leave ‘Another Black Eye’, 11Alive.com (June 9, 2020), https://www.11alive.com/article/news/

politics/elections/fulton-county-voter-issues/85-7975ba88-c470-4808-a94a-3d9e11d2df2e.

Asked about the experience of voters who applied for but never received their absentee ballots,

she blamed the elections officials responsible for processing absentee ballot applications: “I’m

not going to be point[ing] out any names but the elections division is in charge of processing

those applications. It’s been widely reported that half of the e-mails received were lost. I don’t

know how to explain that.” Id.

36. Curiously, Defendants’ Plan seems to suggest that Defendants were surprised by

the increased demand for mail-in voting, even though voters were exhorted to use this method.

Moreover, their proposed process improvements are so general and high-level that they offer no

real comfort the situation will be materially better for November. Defendants’ Plan also dodges

the most critical issue: the need to immediately process all requests so that ballots are received

and can be returned in time to be counted, without voters having to vote in person on Election

Day.

B. Defendants’ Failure to Efficiently Process Absentee Ballots Placed Additional and

Unnecessary Burdens on In-Person Voting

36. Not surprisingly, as described below, the breakdown in the processing of absentee

ballots had a negative ripple effect on the entire election process. Not only did it increase the

number of people who then tried to vote in person, but it also led to additional obstacles and delays

for those who tried to switch from voting by mail to in-person voting.

37. Under Georgia law, a voter who has requested an absentee ballot and then

attempts to vote in person on the day of the election must submit to the precinct manager a written

request to cancel the absentee ballot application. Ga. Code. Ann. § 21-2-388(2). The county

14
registrar also must confirm, before the voter casts an in-person vote, that the voter has not actually

voted by absentee ballot or during early voting. Id.

38. There is no legal mandate that dictates how poll officials confirm that no prior

vote was cast. There are any number of ways this can be done, but Fulton County poll workers

were reportedly told that they had to use the most inefficient and cumbersome means available—

they had to have a poll manager personally call into the central registrar’s office and stay on the

line until an employee changed the voter’s status and orally reported to the poll manager that the

voter was clear to vote. This process not only took several minutes for each prospective voter; it

also pulled poll managers’ attention away from other critical problems, including voting machine

malfunctions and supervising inexperienced poll workers. Moreover, the central office was so

overwhelmed by these time-consuming and inefficient phone calls that some poll managers were

unable to reach the central office by phone at all.

39. During the June Primary, this technologically-backwards requirement predictably

resulted in further delays and confusion for the unsuccessful absentee voters and the poll workers

attempting to clear them to vote in person.

40. On June 18, 2020, one poll worker who worked at an Atlanta polling place

testified before the Georgia House of Representatives about the systemic voting obstacles this

call-in requirement has created. See Statement of Jacoria Borders, Hearing Before the H. Comm.

on Gov. Affairs, 2019 Leg., 155th Sess. (Ga. 2020), available at https://livestream.com/accounts/

25225474/events/9173400/videos/207628502. She recounted how poll workers quickly became

overwhelmed trying to clear these voters. She testified that a long line of such voters formed

within the polling place while her poll manager “struggled throughout the day to get through to

the elections office to cancel absentee ballots.” Id. She estimated that her poll manager spent

15
roughly 95% of her time on this issue alone, meaning that she could not attend to her numerous

other critical functions. Id. She further testified that many of these voters waited an additional

45 minutes to be cleared in addition to the roughly 3 hours they had waited simply to get through

the doors of the polling place. Id.

41. Without explanation, this specific and remediable failure is entirely ignored by

Defendants’ newly-minted Plan. Unless the Court intervenes to require Fulton County to adopt

a more efficient method of “confirming” that no prior vote has been cast, Fulton County voters

will again face unreasonable delays and lack of uniformity as poll managers and poll workers

attempt to administer a fundamentally impractical and unnecessarily burdensome system.

C. Defendants’ Failures Also Caused Unacceptably Long Wait Times, Which Deprived
Many Fulton County Voters of Their Right to Vote on Election Day

42. Election Day reports of in-person voting across Fulton County describe hours-

long lines, which started even before polls opened. These early morning problems, which

naturally coincided with the time of day when turnout is typically high as people seek to vote

before work, meant that many sites quickly got so far behind that they were never able to catch

up.

43. Many of the delays were attributed to the most mundane of logistical failures, but

speak significantly to Defendants’ failure to manage the most basic logistical challenges of

election administration. As one outlet reported, “voters stood for hours while poll workers waited

for equipment to be delivered or struggled to activate the system’s components.” Corasaniti, et

al., Georgia Havoc Raises New Doubts on Pricey Voting Machines, N.Y. Times (June 11, 2020),

https://www.nytimes.com/2020/06/11/us/politics/georgia-voting-machines.html?referringSourc

e=articleShare. Other reports described inadequate supplies of power cords and polling places

where no one had checked the power supply to the machines in advance of the June Primary, and

16
so failed to recognize that “the new machines required too much extra power for aging polling

locations, blowing fuses and never powering on.” See id.; Hakim, et al., Anatomy of an Election

‘Meltdown’ in Georgia, N.Y. Times (July 25, 2020), https://www.nytimes.com/2020/07

/25/us/politics/georgia-election-voting-problems.html.

44. Other problems were also reported as creating bottlenecks in getting voters

through the system. After inputting their selections via an electronic touchpad, voters were

required to print a paper copy of their completed ballot and then put it through a scanner that

records their votes. But Election Day reports describe sites with not enough scanners to meet

voter demand, which meant that people who had waited hours to cast their votes had to wait for

a second time to scan their ballots. For example, it was reported that at Park Tavern, a restaurant

and event space at the edge of Piedmont Park, “[t]he scanner was the choke point” as voters were

shocked to see “a station with 15 to 20 touch screens on which to vote but only a single scanner

to process the printed ballots.” See Hakim, et al., Anatomy of an Election ‘Meltdown’ in Georgia,

supra.3

3
The June Primary was conducted using a newly purchased statewide electronic voting system.
The system consists of three components: (1) an electronic poll pad that is used to check in voters
and verify their eligibility status; (2) a ballot marking device that records voters’ selections and
prints a paper ballot; and (3) a scanner that reads and secures the paper ballots. See Georgia
Statewide Voting System, Dominion Voting, https://sos.ga.gov/admin/uploads/Voting_is_easy.pdf
(last accessed Aug. 29, 2020). Although the Secretary of State bore responsibility for distributing
the voting systems to the counties, Defendants were at all times expressly permitted to “purchase,
lease, or otherwise acquire additional electronic ballot markers and ballot scanners.” Ga. Code.
Ann. § 21-2-300(a)(3). Furthermore, under Georgia law, Defendants remained obligated to:
 “provide polling places that are adequate for the operation of such equipment,
including, if necessary, the placement of polling places of a sufficient number of
electrical outlets and telephone lines,” id. § 21-2-300(b);

 “provide or contract for adequate technical support for the installation set up, and
operation of such voting equipment,” id. § 21-2-300(c);

17
 45. Ultimately, the backlog across sites was so great that an emergency court order

extended the polling place hours for Fulton County voters from 7:00 PM to 9:00 PM, although

many voters waited for many more hours and later than 9:00 PM in order to vote. Indeed, some

did not vote until early the next morning. As reported by the New York Times, “some voters in

Union City, a suburb south of Atlanta that is 88 percent black, waited in line until 12:37 a.m. to

vote.” Fausset, Georgia’s Election Mess: Many Problems, Plenty of Blame, Few Solutions for

November, N.Y. Times (June 10, 2020), https://www.nytimes.com/2020/06/10/us/politics/

georgia-primary-election-voting.html.

46. Pictures on the front pages of newspapers and posted on social media of hundreds

of voters waiting in the hot sun in lines extending as far as the eye can see tell a compelling story

of the magnitude of the problem. See, e.g., Emma Hurt (@Emma_Hurt), Twitter (June 9, 2020),

https://twitter.com/Emma_Hurt/status/1270500551487295488.

 “provide or contract for adequate technical support for the installation, set up, and
operation of such voting equipment, id. § 21-2-300(d).
The responsibility for providing “training to all poll officers and poll workers regarding the use of
voting equipment, voting procedures, all aspects of state and federal law applicable to conducting
elections, and the poll officers’ or poll workers’ duties in connection therewith” also remained
with Defendants. Id. § 21-2-99(a).

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 47. Furthermore, according to publicly available Election Day data, it is clear that

regardless of the specific logistical problems encountered at each site, Fulton County polling

places, as a whole, were simply overwhelmed by the number of voters assigned. There were 168

polling places for Fulton County’s 6,876,881 active registered voters, translating to an average per

site number of voters in Fulton of 4,578. Excluding Fulton County, the statewide average for

assigned active registered voters was 2,876. In other words, Fulton County officials assigned on

average more than 1,700 voters to each polling site compared to the rest of the State, without any

demonstrated ability to outfit sites for the increased demand. As a matter of simple arithmetic,

which could and should have been obvious to Defendants, there was no way that the polling places

Defendants established could process the volume coming through the doors even under optimal

conditions.

48. Moreover, the County should have expected the Election Day meltdown, as it

witnessed long wait times and polling sites’ inability to keep up with turnout even during early

19
voting. Even with only 5 early voting sites, there were numerous published reports of long wait

times, delays, and people making multiple unsuccessful attempts to vote. Many of those who

waited to vote early had tried and failed to vote by mail because they were at increased risk of

COVID-19, but still ended up standing in line for hours. See Ex. __, Hudson Decl. (2-hour wait

on Election Day); Ex. __, Parikh Decl. (3-hour wait during early voting); Ex. __, Bassols Decl.

and Ex. __, Jackson Decl. (4-hour wait on Election Day). In fact, Plaintiff Hansel Enriquez left

early voting centers because the lines appeared too long, only to return and end up waiting 8

hours to cast his vote.

49. These problems were a clear warning that should and could have been heeded. If

the County could not meet its duty to run an election during early voting, it could not possibly

have reasonably anticipated success on Election Day. As Fulton County counts down to the

November election, its citizens simply cannot afford this level of mismanagement. Because there

are no do-overs, judicial intervention is urgent and necessary.

D. “Exceptional” Circumstances Do Not Excuse Defendants from Their Duty to Protect

the Right to Vote

50. Before the June Primary, the County sought to deflect blame, citing “exceptional”

circumstances beyond its control, including COVID-19, new voting equipment, and anticipated

higher-than-average voter turnout. But the evidence does not support Defendants’ narrative.

Moreover, the County itself now has admitted that there is no excuse that justifies denying Fulton

County citizens their fundamental right to vote.

51. The challenges created by COVID-19 were known to Defendants well in advance

of the June Primary, as were the measures needed to address those challenges. As early as March,

BRE meeting minutes reflect discussions of the fact that senior centers likely would not be usable

as polling places due to the virus risk. See Fulton County Board of Registration and Elections,

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Approved Minutes Board of Registration And Elections Regular Meeting, March 12, 2020.

Following the Governor’s shutdown order on March 14, 2020, the election was twice postponed,

giving counties almost three months to make necessary adjustments. Furthermore, the data

clearly show that other counties throughout Georgia addressed COVID-19-related issues without

experiencing a breakdown of their voting system.4 The contrast between the events witnessed in

Fulton County and the voting experience in many other counties makes clear that there is no

constitutionally-sanctioned excuse the pandemic can create. Indeed, as Defendants’ admit in

their new Plan, “While we all understand the constraints of COVID-19, we have a duty to process

applications and keep the voting process going.” Plan at 3.

52. Similarly, new voting equipment is not a valid excuse for Defendants’

shortcomings. As described above, not only were any number of operational breakdowns

reported throughout both early and Election Day voting, but there was a marked lack of

preparation for dealing with predictable trouble-shooting needs. Indeed, Defendants’ new Plan

acknowledges that Defendants must manage equipment needs, including hiring technician teams

to deal with technical issues and to resolve on-site issues. Plan at 4-5.

53. High voter turnout, of course, should never be an excuse; it is an election goal.

One hundred percent of registered voters have a right to vote. Moreover, voter turnout in Fulton

County was significantly lower than elsewhere in the state. Only 30% of Fulton voters cast a

ballot, contrasted to 35% across the State excluding Fulton County, including majority white

4
A shortage of willing poll workers caused by COVID-19 was also cited as an excuse by County
officials. But, on information and belief, Fulton County actually had hundreds of people who were
asking to be poll workers, who Fulton County ignored. It also did little or nothing to recruit
additional, potentially willing, poll workers. Instead, in the eleventh hour, it merely resorted to a
last minute scramble in which the County “put out a frantic call for 250 poll workers just days
before in-person voting was held” and ended up using barely-trained temps. Hakim, et al.,
Anatomy of an Election ‘Meltdown’ in Georgia, supra.
21
counties. If a county cannot administer an election in which less than a third of registered voters

seek to vote, it has fundamentally misunderstood and failed to discharge its election-related

duties. Defendants do not have a right to assume that citizens will not vote, nor should they

blithely and cynically assume that voter turnout will always stay the same—particularly with an

approaching presidential election and every indication that voter turnout will increase markedly.

Such a view is a perversion of the constitutional process and not one that exculpates them from

liability. It is time for elections officials to meet this moment, not hope that voter turnout stays

low enough for them to manage.

E. Defendants’ Multiple Failures Created Obstacles to Voting and Voter Turnout Was
Suppressed

54. Forcing voters to stand in line for unreasonable lengths of time is inexcusable and

constitutes a fundamental interference with the right to vote. See Ga. Code Ann. § 21-2-404

(employees must be permitted time off to vote, “provided, however, that such necessary time off

shall not exceed two hours”). For many voters, who must take commuting times into account,

especially in Atlanta where traffic congestion is notorious, hours-long wait to vote is simply not

a realistic option. Some voters, like Plaintiff Hansel Enriquez, must return to work so that they

can earn a living. Others are unable to wait in lengthy lines due to familial obligations, such as

the need to care for their children. For other voters, such as elderly individuals or individuals

with pre-existing medical conditions, waiting in long lines puts their health at risk. Indeed, there

are numerous reasons why voters may not be able to stand in line for an unreasonable period of

time, leaving them with no option but to depart the polling place without voting.

55. Examples of voters who were discouraged from voting or were simply unable to

vote in the June Primary as a result of long lines are easy to find. Plaintiff Jerry Thomas, Jr.

stated “there were long lines of cars and people at both places. When I saw the voter lines, I

22
realized that voting that day would risk my health or life because of the COVID-19 pandemic.

At my age, I am considered high-risk. I also did not want to contract it and pass it along to my

wife who is also in a high risk category. I went home without voting that day.” Ex. __, Thomas

Decl. Another would-be voter declared “[w]hen I got to a desk, a poll worker told me that my

polling location was somewhere in East Point. They had an address on file where I had last lived

approximately a decade ago . . . . By the time I found out I could not vote at Parkside Elementary,

I did not have time to go stand in a long line in East Point to vote. Because of this mishap, I

wasn’t able to vote at all in the primary elections.” Ex. __, Smith Decl. This report is consistent

with the observations of Plaintiff Hansel Enriquez, who declared that “[d]uring the wait, I saw

numerous voters leave the line. From my vantage point, around the first two hours or so, I recall

seeing about a dozen voters leave the line. Later that night, I also saw some voters leave the

line.” Ex. __, Enriquez Decl.

56. These experiences are particularly concerning because Fulton County citizens are

majority non-white and represent a significant percentage of Black voters statewide. Thus,

suppression of voters in Fulton County is, functionally, suppression of Black voters in Georgia.

57. Absent judicial intervention, Defendants will continue to promise change but fail to

deliver. In what may ultimately be one of the most important elections of our lifetimes, thousands

of Fulton County voters will be denied their fundamental right to vote.

CAUSE OF ACTION

Violation of the Fundamental Right to Vote

under Article I, Section 1 and Article II, Section 1 of the Georgia Constitution

58. Plaintiffs reallege and incorporate by reference the allegations contained in the

preceding paragraphs.

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 59. The Constitution of the State of Georgia protects the fundamental right to vote.

Article I, Section 1, Paragraph II of the Georgia Constitution provides: “Protection to person and

property is the paramount duty of government and shall be impartial and complete. No person

shall be denied the equal protection of the laws.” Ga. Const. art. I, § 1, para. II.

60. Article II, Section 1, Paragraph II of the Georgia Constitution provides: “Every

person who is a citizen of the United States and a resident of Georgia as defined by law, who is

at least 18 years of age and not disenfranchised by this article, and who meets minimum residency

requirements as provided by law shall be entitled to vote at any election by the people.” Ga.

Const. art. II, § 1, para II.

61. Defendants’ failure to properly oversee and manage the June Primary resulted in

a breakdown of the VBM system as well as extraordinarily long wait times at polling places both

during early voting and on Election Day. These problems were obstacles to voters’ ability to cast

their ballots and, in some cases, caused the outright disenfranchisement of voters who were

unable to vote as a result of delayed and faulty processing of absentee ballots.

62. Fulton County’s performance during the June Primary makes it an outlier among

counties in Georgia, and, as outlined above, the failures of Fulton County disproportionately

impacted Georgia’s Black and other minority voters’ ability to vote.

63. As a result, the burdens imposed on Fulton County voters’ fundamental right to

vote during the June Primary were severe and Defendants can articulate no countervailing interest

that could justify the severity of the burden imposed on Fulton County voters.

64. The acts and omissions outlined above have and will continue to make the

exercise of the right to vote so difficult and inconvenient as to amount to an outright denial of

that right. Accordingly, the burdens imposed on Fulton County voters’ fundamental right to vote

24
violate the Georgia Constitution. See Democratic Party of Ga., Inc. v. Perdue, 288 Ga. 720, 728-

30 (2011) (citing Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504

U.S. 428, 434 (1992)).

65. Plaintiffs will again be exposed to these same injuries if Defendants are not

compelled by this Court to carry out specific and measurable corrective actions for the November

election consistent with Plaintiffs’ request for injunctive relief.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs submit this prayer for relief and seek the following:

A. That this Court issue a judgment declaring that Defendants have violated Article II,

Section 1, Paragraph II and Article I, Section 1, Paragraph II of the Georgia Constitution;

B. That this Court enter an injunction requiring Defendants, effective immediately, to

implement the following corrective measures, which shall supplement the Plan published on

August 13, 2020 with the following measurable obligations:

1. With regard to VBM, Defendants will reduce the time it takes to process an

absentee ballot application to one (1) day (not one business day) from

receipt of the request at the County. “Receipt” for purposes of an absentee

ballot application or returned ballot shall be the date on which the ballot is

received by mail, email or via an online portal.

2. For voters who request absentee ballots but then seek to vote in person,

Defendants will develop an alternative to the current requirement that a

polling place manager call the County to confirm that no absentee ballot

was actually recorded, such as permitting specially designated poll workers

25
 (e.g., volunteer attorneys, of which there are plenty) to clear voters at the

polling place without having to rely on phone calls.

3. With regard to polling locations, Defendants will increase the number of

poll pads and scanning machines needed to check in voters and process

ballots, in accordance with the following ratios:

a. Provide at least 1 poll pad for every 375 voters assigned to a

precinct.

b. Provide at least 1 scanner for every 750 voters assigned to a precinct.

C. Nothing in this Order shall be construed to enjoin any Georgia statute or regulation

or abrogate the duties otherwise imposed on Defendants under Georgia law, including but not

limited to those set forth in Georgia Code § 21-2-99(a) (requiring adequate training to all poll

officers and poll workers), Georgia Code § 21-2-300 (regarding equipment of polling places,

including with electrical outlets and telephone lines as well as technical support), Georgia Code

§ 21-2-384 (regarding mailing of absentee ballots), and Georgia Rules and Regulations, Rule

183-1-12 (requiring a sufficient supply of emergency paper ballots);

D. Retain jurisdiction to review, modify and approve Defendants’ plan and ensure

Defendants’ ongoing compliance with such plan including through Election Day, and the other

provisions of the foregoing Order;

E. That all costs of this action be taxed against Defendants; and

F. That the Court award any additional or alternative relief as may be deemed

appropriate under the circumstances.

26
Dated: September XX, 2020 Respectfully submitted,

/s/ Sean J. Young

Sean J. Young (Ga. Bar No. 790399)
Andres Lopez-Delgado (Ga. Bar No. 552876)
American Civil Liberties Union
Foundation of Georgia, Inc.
P.O. Box 77208
Atlanta, GA 30357
Tel: 770-303-8111
syoung@acluga.org
adelgado@acluga.org

Sophia Lin Lakin*

Dale E. Ho*
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Tel: 212-519-7836
slakin@aclu.org
dho@aclu.org

Hope S. Freiwald*
Dechert LLP
Cira Centre,
2929 Arch Street
Philadelphia, PA 19104
Tel: 215-994-2514
hope.freiwald@dechert.com

Mary H. Kim*
Dechert LLP
One Bush Street,
Suite 1600
San Francisco, CA 94104
Tel: 415-262-4517
mary.kim@dechert.com

Attorneys for Plaintiffs

*Pro hac vice applications forthcoming

27