Appellant's Emergency Motion For Expedited Review and Opening Brief - Wood v. Raffensperger Et Al

USCA11 Case: 20-14418 Date Filed: 11/25/2020 Page: 1 of 14
NO. 20-14418-RR
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
L. LIN WOOD, JR.,
Plaintiff/Appellant,
v.
BRAD RAFFENSPERGER, in his official
capacity as Secretary of State of the State of Georgia,
REBECCA N. SULLIVAN, in her official capacity as
Vice Chair of the Georgia State Election Board,
DAVID J. WORLEY, in his official capacity as a
Member of the Georgia State Election Board,
MATTHEW MASHBURN, in his official capacity as
a Member of the Georgia State Election Board,
and ANH LE, in her official capacity as
a Member of the Georgia State Election Board,
Defendants/Appellees.
On Appeal from the United States District Court

For the Northern District of Georgia
L.T. No.: 1:20-cv-04651-SDG
APPELLANT’S EMERGENCY MOTION FOR EXPEDITED REVIEW
RAY S. SMITH III, ESQ.

SMITH & LISS, LLC
Five Concourse Parkway, Suite 2600
Atlanta, Georgia 30328
Telephone: 404.760.6006
Facsimile: 404.760.0225
{00584613. }
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT
Appellant, L. LIN WOOD, JR., pursuant to Fed.Ed. R. Civ. P. 26.1, and 11th
Cir. R. 26.1-3, hereby submit this Certificate of Interested Persons and Corporate
Disclosure Statement, as follows:
Beane, Amanda J. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Blumenfeld, Jeremy P. - Counsel for Proposed Intervenors Woodhall, et al.
Brailey, Emily R. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Callais, Amanda R. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Carr, Christopher – Counsel for Appellee
Clarke, Kristen- Counsel for Proposed Intervenors Woodhall, et al.
Coppedge, Susan P. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Elias, Marc E. - Counsel for Intervenor-Defendants, Democratic Party of
Georgia, et al.
Greenbaum, Jon M. - Counsel for Proposed Intervenors Woodhall, et al.
Grimberg, Steven D. – United States Northern District Court Judge
Hamilton, Kevin J. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
{00584613. }
Houk, Julie M. - Counsel for Proposed Intervenors Woodhall, et al.
Hounfodji, Catherine North- Appellee
Knapp, Jr., Halsey G. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Krevolin and Horst, LLC- Counsel for Intervenor-Defendants, Democratic

Party of Georgia, et al.
Kuhlmann, Gillian C. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Law Office of Bryan L. Sells, LLC - Counsel for Proposed Intervenors

Woodhall, et al.
Lawyers’ Committee for Civil Rights Under Law- Counsel for Proposed
Intervenors Woodhall, et al.
Le, Anh - Appellee
Lewis, Joyce Gist- Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Manning, Susan Baker- Counsel for Proposed Intervenors Woodhall, et al.
Mashburn, Matthew- Appellee
McGowan, Charlene S. - Counsel for Appellee
Mertens, Matthew J. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Morgan, Lewis & Bockius LLP - Counsel for Proposed Intervenors

Woodhall, et al.
Office of Attorney General of Georgia- Counsel for Appellee
{00584613. } 3
Perkins Coie LLP - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Powers, John- Counsel for Proposed Intervenors Woodhall, et al.
Raffensperger, Brad - Appellant
Rosenberg, Ezra D. - Counsel for Proposed Intervenors Woodhall, et al.
Sells, Bryan L. - Counsel for Proposed Intervenors Woodhall, et al.
Smith, III, Ray - Counsel for Appellant
Sparks , Adam M. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Sullivan, Rebecca N. – Appellant
Velez, Alexi M. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Webb, Bryan K. - Counsel for Appellee
Willard, Russell D. - Counsel for Appellee
Wood, Jr., L. Lin. – Appellant
Worley, David J. - Appellee
{00584613. } 4
EMERGENCY MOTION FOR EXPEDITED REVIEW
COMES NOW the Appellant, L. LIN WOOD, by and through undersigned
counsel, pursuant to 11th Cir. R. 27-3 and moves for expedited review of this appeal,
and in support of this request states the following:
1. On November 13, 2020, Appellant filed an action in the District Court
for the Northern District of Georgia, asserting three claims against
Appellees/Defendants, in their official capacities, based on numerous constitutional
violations.
2. On November 16, 2020, Appellant filed an Amended Complaint, and on
November 17, 2020, Appellant filed an emergency motion for a temporary restraining
order (“TRO”).
3. On November 19, 2020, Appellees and Intervenors filed separate
responses in opposition to Appellant’s motion for a TRO, and the District Court held
oral argument on Appellant’s motion the same day.
4. At the conclusion of oral argument, the District Court denied Appellant’s
request for a TRO.
5. Appellant requests that this Court grant expedited briefing on its appeal
from the District Court’s decision denying the Emergency Motion for a Temporary
Restraining Order.
{00584613. } 5
6. Appellant’s underlying action relates to the integrity of election
procedures in the 2020 Presidential General Election in the State of Georgia,
particularly as those procedures were fundamentally and irredeemably flawed, from
this Constitutional deviation.
7. Appellant further submits that the procedures enacted by the Secretary
of State and the State Board of Elections relate to the enormous quantity of mail-in-
ballots cast in Georgia pursuant to the unlawful “Consent Decree,” which precludes
ascertainment of these ballots’ compliance with the detailed requirements for
demonstrating the authenticity of such votes and the eligibility of those purportedly
casting such ballots to vote in Georgia. Appellant’s vote was made more difficult that
the votes of others who were not required to present identification or were struggling
with signature verification.
8. This issue is critical because the State Board of Elections is proposing to
use the same procedures in the upcoming Senatorial run-off election, and if they are
invalid, then the outcome of that election could likewise be in doubt. The integrity of
the election system in Georgia should not be subject to ridicule or doubt.
9. This action also concerns a Due Process and Equal Protection claim that
Georgia’s mail ballot scheme, as modified by the unlawful “Consent Decree,” is
unconstitutional, and fails to comply with the election scheme adopted by the State
Legislature. Additionally, the scheme lacks any safeguards, given that there is clearly
{00584613. } 6
confusion and opportunity for mischief created by the lack of signature verification
wrought by the “Consent Decree/Settlement Agreement.”
10. This action is of nationwide importance because of the consequences of
flawed election processes on the election for the President of the United States in the
State of Georgia could turn the election in favor of either candidate.
11. It is critically important for Appellant’s claims to be heard before the
December 14, 2020 “safe harbor” date under GA Code § 21-2-499 (2019) of Georgia
certifying its Presidential electors, which is only 21 days away.
12. The Amended Complaint asserts claims under the First Amendment and
the Equal Protection Clause of the Fourteenth Amendment; the Electors and Elections
Clause of the Constitution; and the Due Process Clause of the Fourteenth Amendment
because Defendants, Georgia’s Secretary of State, Brad Raffensperger, and four
Georgia Election Board members, engaged in an intentional scheme to circumvent
Georgia’s legislative enactments by entering into an unconstitutional Consent Decree,
in an effort allow the counting of defective mail ballots.
13. Appellant seeks to exclude the defective mail ballots which may turn the
result of the Election, and further seeks to prevent the use of the same constitutionally
flawed procedures in the upcoming Senatorial run-off election. Appellant does not
seek to exclude any legally cast votes.
{00584613. } 7
14. Appellant further submits that good cause exists for expedited review, as
irreparable may occur or the appeal may become moot unless a ruling is obtained
within seven days.
15. Appellant contacted counsel for the Defendants and Intervenors to seek
agreement to Appellant’s proposed briefing schedule, namely, that Appellant’s
opening brief shall be due by November 25, 2020 by 5:00 p.m.; and that Appellees’
briefs shall be due by November 26, 2020 by 5:00 p.m., with oral argument to be
held on November 27, 2020 if desired by the Court.
16. At the time of filing, the Appellees have not consented to the proposed
briefing schedule.
WHEREFORE, Appellant respectfully request that the Court establish an
expedited schedule for the disposition of the instant appeal according to the above
deadlines.
Respectfully submitted,
/s/ Ray S. Smith III

RAY S. SMITH III, ESQ.
SMITH & LISS, LLC
Five Concourse Parkway, Suite 2600
Telephone: 404.760.6006
Facsimile: 404.760.0225
E-mail: [email protected]
{00584613. } 8
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the within and foregoing complies with the
requirements of FRAP 32(g).
SMITH & LISS, LLC
/s/ Ray S. Smith, III

Ray S. Smith, III
Georgia Bar No. 662555
Counsel for Appellant
Five Concourse Parkway

Suite 2600
(404) 760-6000
[email protected]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
electronically filed with this Court via CM/ECF and was furnished to all counsel on
the attached service list by e-mail on November 25th 2020:
SMITH & LISS, LLC
/s/ Ray S. Smith, III

Ray S. Smith, III

Suite 2600
{00584613. }
(404) 760-6000
[email protected]
{00584613. } 10
SERVICE LIST
Wood v. Raffensperger, et al.

Case No. 1:20-cv-04651-SDG
CHRISTOPHER M. CARR
Deputy Attorney General
BRYAN K. WEBB
Russell D. Willard
Senior Assistant Attorney General
Charlene S. McGowan
Assistant Attorney General
40 Capitol Square SW
Atlanta, GA 30334
[email protected]
404-458-3658 (tel)
Attorneys for State Defendants
Adam M. Sparks
Halsey G. Knapp, Jr.
Joyce Gist Lewis
Susan P. Coppedge
Adam M. Sparks
KREVOLIN AND HORST, LLC
One Atlantic Center
1201 W. Peachtree Street, NW, Ste. 3250
Atlanta, GA 30309
Telephone: (404) 888-9700
Facsimile: (404) 888-9577
[email protected]
[email protected]
[email protected]
[email protected]
Marc E. Elias*
Amanda R. Callais*
Alexi M. Velez*
{00584613. }
Emily R. Brailey*
PERKINS COIE LLP
700 Thirteenth Street NW, Suite 800
Washington, DC 20005
Telephone: (202) 654-6200
[email protected]
[email protected]
[email protected]
[email protected]
Kevin J. Hamilton*
Amanda J. Beane*
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101
Telephone: (206) 359-8000
[email protected]
[email protected]
Gillian C. Kuhlmann*
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, California 90067
Telephone: (310) 788-3900
[email protected]
Matthew J. Mertens*
Georgia Bar No: 870320
PERKINS COIE LLP
1120 NW Couch Street, 10th Floor
Portland, Oregon 97209
Telephone: (503) 727-2000
*Pro Hac Vice Application Pending
Counsel for Intervenor-Defendants, Democratic Party of Georgia (“DPG”), DSCC,

and DCCC (“Political Party Committees”)
Bryan L. Sells
{00584613. } 12
Law Office of Bryan L. Sells, LLC

P.O. Box 5493
Atlanta, GA 31107-0493
(404) 480-4212 (voice/fax)
[email protected]
John Powers*
[email protected]
Kristen Clarke
[email protected]
Jon M. Greenbaum*
[email protected]
Ezra D. Rosenberg*
[email protected]
Julie M. Houk*
[email protected]
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1500 K Street NW, Suite 900
Telephone: (202) 662-8300
Susan Baker Manning^

Jeremy P. Blumenfeld^
Catherine North Hounfodji^
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Telephone: +1.202.739.3000
Facsimile: +1.202.739.3001
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
* admitted pro hac vice
^ Pro hac vice admission pending
{00584613. } 13
Counsel for Proposed Intervenors James Woodhall, Helen Butler, Melvin Ivey,
Members of the Proposed Intervenors the Georgia State Conference of the NAACP,
and the Georgia Coalition for the People’s Agenda
{00584613. } 14
UNITED STATES DISTRICT COURT OF APPEALS
ELEVENTH CIRCUIT
CASE NO. 20-14418-RR

L. LIN WOOD, JR.,
Appellant,
vs.
BRAD RAFFENSPERGER, in his official

capacity as Secretary of State of the State
of Georgia, et al.,
Appellees.
___________________________________/
INITIAL BRIEF OF APPELLANT
On appeal from the United States District Court, Northern District of Georgia
Ray S. Smith, III

SMITH & LISS, LLC
Suite 2600
(404) 760-6000
Attorney for Appellant
[email protected]
{00584612. }
Wood v. Raffensperger, No. 1:20-cv-04651-SDG
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT
Appellant, L. LIN WOOD, JR., pursuant to Fed.Ed. R. Civ. P. 26.1, and 11th
Cir. R. 26.1-3, hereby submit this Certificate of Interested Persons and Corporate
Disclosure Statement, as follows:
Beane, Amanda J. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Blumenfeld, Jeremy P. - Counsel for Proposed Intervenors Woodhall, et al.
Brailey, Emily R. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Callais, Amanda R. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Carr, Christopher – Counsel for Appellee
Clarke, Kristen- Counsel for Proposed Intervenors Woodhall, et al.
Coppedge, Susan P. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Elias, Marc E. - Counsel for Intervenor-Defendants, Democratic Party of
Georgia, et al.
Greenbaum, Jon M. - Counsel for Proposed Intervenors Woodhall, et al.
Grimberg, Steven D. – United States Northern District Court Judge
{00584612. } 2
Hamilton, Kevin J. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Houk, Julie M. - Counsel for Proposed Intervenors Woodhall, et al.
Hounfodji, Catherine North- Appellee
Knapp, Jr., Halsey G. - Counsel for Intervenor-Defendants, Democratic

Krevolin and Horst, LLC- Counsel for Intervenor-Defendants, Democratic

Kuhlmann, Gillian C. - Counsel for Intervenor-Defendants, Democratic

Law Office of Bryan L. Sells, LLC - Counsel for Proposed Intervenors

Woodhall, et al.
Lawyers’ Committee for Civil Rights Under Law- Counsel for Proposed
Intervenors Woodhall, et al.
Le, Anh - Appellee
Lewis, Joyce Gist- Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Manning, Susan Baker- Counsel for Proposed Intervenors Woodhall, et al.
Mashburn, Matthew- Appellee
McGowan, Charlene S. - Counsel for Appellee
Mertens, Matthew J. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
{00584612. } 3
Morgan, Lewis & Bockius LLP - Counsel for Proposed Intervenors

Woodhall, et al.
Office of Attorney General of Georgia- Counsel for Appellee
Perkins Coie LLP - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Powers, John- Counsel for Proposed Intervenors Woodhall, et al.
Raffensperger, Brad - Appellant
Rosenberg, Ezra D. - Counsel for Proposed Intervenors Woodhall, et al.
Sells, Bryan L. - Counsel for Proposed Intervenors Woodhall, et al.
Smith, III, Ray - Counsel for Appellant
Sparks , Adam M. - Counsel for Intervenor-Defendants, Democratic Party

of Georgia, et al.
Sullivan, Rebecca N. – Appellant
Velez, Alexi M. - Counsel for Intervenor-Defendants, Democratic Party of

Georgia, et al.
Webb, Bryan K. - Counsel for Appellee
Willard, Russell D. - Counsel for Appellee
Wood, Jr., L. Lin. – Appellant
Worley, David J. - Appellee

{00584612. } 4
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that oral argument would benefit the Court. This appeal
involves important constitutional issues regarding the dilution and impairment of
Plaintiff’s fundamental right to vote and the Defendants’ illegal and unconstitutional
procedures for processing and rejecting absentee ballots in the 2020 elections. These
procedures violated Plaintiff’s rights to Equal Protection under the United States
Constitution. Unless this Court intervenes, said unconstitutional procedures will not
only continue to impair Plaintiff’s right to vote, but also will adversely affect and
taint the upcoming Senatorial runoff election.
{00584612. } 5
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT………………………2
STATEMENT REGARDING ORAL ARGUMENT………………………5
TABLE OF CONTENTS…………………………………………………..6
TABLE OF CITATIONS………………………………………………….8
JURISDICTIONAL STATEMENT……………………………………….12
STATEMENT OF THE CASE AND FACTS…………………………….13
SUMMARY OF ARGUMENT……………………………………………18
ARGUMENT………………………………………………………………19
THE DISTRICT COURT ERRED IN DENYING INJUNCTIVE

RELIEF BECAUSE THE ELECTION WAS, AND ABSENT
INJUNCTIVE RELIEF, THE RUNOFF ELECTION WILL
BE CONDUCTED IN AN UNLAWFUL MANNER RENDERING
IT UNCONSTITUTIONAL AND VIOLATIVE OF THE
PLAINTIFF’S FUNDAMENTAL RIGHT TO VOTE
Standard of Review…………………………………………………19
Merits……………………………………………………………….19
A. The Appellant Has Standing to Maintain This Lawsuit
B. The Appellees Instituted a Procedure for Processing Absentee Ballots

That Conflicts with State Law, Which Exceeded Defendants’ Authority,
and is Unconstitutional
{00584612. } 6
C. The Appellees’ Procedure for Processing Absentee Ballots Violates

Appellant’s Rights to Equal Protection under the United States
Constitution
CONCLUSION…………………………………………………………38
CERTIFICATE OF SERVICE………………………………………...38
SERVICE LIST………………………………………………………..41
{00584612. } 7
TABLE OF CITATIONS
CASES PAGE
Anderson v. Celebrezze,
460 U.S. 780 (1983)
Ariz. St. Leg. v. Ariz. Indep. Redistricting Comm 'n,

576 U.S. 787 (2015)
Baker v. Carr,
369 U.S. 186 (1962)
Bognet v. Secretary Commonwealth of Pennsylvania, et al.,

2020 WL 6686120 (3d Cir. November 13, 2020)
Burdick v. Takushi,
504 U.S. 428 (1992)
Bush v. Gore,
531 U.S. 98 (2000)
Charfauros v. Bd. of Elections,

249 F.3d 941 (9th Cir. 2001)
Charles H. Wesley Educ. Found., Inc. v. Cox,

408 F.3d 1349 (11th Cir. 2005)
City of Cleburne v. Clerburn Living Center,

473 U.S. 432 (1985)
Democratic Exec. Comm. of Fla. v. Lee,

915 F.3d 1312 (11th Cir. 2019)
Department of Trans. v. City of Atlanta,

260 Ga. 699, 703 (Ga. 1990)
{00584612. } 8
Dunn v. Bloomstein,
405 U.S. 330 (1972)
Fish v. Kobach,
840 F. 3d 710, (10th Cir. 2016)
Fla. State Conference of NAACP v. Browning,

522 F.3d 1153 (11th Cir. 2008)
Gill v. Whitford,
138 S.Ct. 1916 (2018)
Gray v. Sanders,
372 U.S. 83 (1963)
Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966)
Lance v. Coffman,
549 U.S. 437 (2007)
Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)
Mitchell v. Wilkerson,
258 Ga. 608, 610 (Ga. 1988)
Moore v. Circosta,
2020 WL 6063332 (MDNC October 14, 2020)
Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, Fla.,
508 U.S. 656 (1993)
New Ga. Project v. Raffensperger,

2020 WL 5200930 (N.D. Ga. Aug. 31, 2020)
{00584612. } 9
Nken v. Holder,
556 U.S. 418 (2009)
North Fulton Med. Center v. Stephenson,

269 Ga. 540 (Ga. 1998
Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012)
Pierce v. Allegheny County Bd. of Elections ,

324 F.Supp.2d 684 (W.D. Pa. 2003)
Premier Health Care Investments, LLC. v. UHS of Anchor, LP,

220 WL 5883325 (Ga. 2020)
Reynolds v. Sims,
377 U.S. 533 (1964)
Roe v. Alabama,
43 F. 3d 574 (11th Cir. 1995)
Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367388 (1992)
Schaivo v. Shaivo,
403 F. 3d 1223 (11th Cir. 2005)
Siegel v. Lepore,
254 Fed. 3d 1163 (11th Cir. 2000)
Smiley v. Holm,
285 U.S. 355 (1932)
Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997)
United States v. Students Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973)
{00584612. } 10
STATUTES
28 U.S.C. § 1292(a)(1)
O.C.G.A. § 21-2-220(c)
O.C.G.A. § 21-2-31
O.C.G.A. § 21-2-31(2)
O.C.G.A. § 21-2-381(b)(1)
O.C.G.A. § 21-2-386
O.C.G.A. § 21-2-386(a)(1 )(B)
O.C.G.A. § 21-2-386(a)(1 )(B)
O.C.G.A. § 21-2-380.1
O.C.G.A. § 21-2-386(a) (1)(C)
OTHER AUTHORITY
U.S. Const. Art. I, § 4, cl. 1
Ga. Const. Art. III, § I, Para. I;
U.S. Const. amend XIV
U.S. Const. amend XIV, § 1
{00584612. } 11
JURISDICTIONAL STATEMENT
This is an appeal of an interlocutory order of a district court of the United
States refusing an application for an injunction, which appeal is authorized by 28
U.S.C. § 1292(a)(1). See Bognet v. Secretary Commonwealth of Pennsylvania, et al.
2020 WL 6686120 *5 (3d Cir. November 13, 2020) (recognizing the immediate
appealability of voter and candidates motion for temporary restraining order and
preliminary injunction.); Schaivo v. Schaivo, 403 F. 3d 1223, 1225 (when denial of
TRO might have serious, perhaps irreparable consequence, same can be effectively
challenged only by immediate appeal).
{00584612. } 12
STATEMENT OF THE CASE AND FACTS
Appellant/Plaintiff, an individual residing in Fulton County, Georgia, is a
qualified, registered "elector" who possesses all of the qualifications for voting in
the State of Georgia. See O.C.G.A. §§ 21-2-2(7), 21-2-216(a); (see also Verified
Am. Compl. for Decl. and Inj. Relief (DE 5, the "Complaint", at 8). Plaintiff sought
declaratory relief and an emergency injunction from the district court below, among
other things, halting the certification of Georgia's results for the November 3, 2020
presidential election and determining that the results were defective. As a result of
the appellees’/defendants' violations of the United States Constitution and other
election laws, Plaintiff alleged below the Georgia's election tallies are suspect and
tainted with impropriety.
On November 13, 2020, Plaintiff filed his original Verified Complaint for
Declaratory and Injunctive Relief, which was subsequently amended. The named
defendants include Defendant Brad Raffensperger, in his official capacity as
Secretary of State of Georgia and as Chairperson of Georgia's State Election Board,
as well as the other members of the State Election Board in their official capacities
- Rebecca N. Sullivan, David J. Worley, Matthew Mashburn, and Anh Le
(hereinafter the "State Election Board"). (See DE 5, Compl., at 9-10.) The
Complaint alleges violations of the United States Constitution and the amendments
{00584612. } 13
thereto in the regards to the November 3, 2020 general election, as well as the "full
hand recount" of all ballots cast in that election, to be completed by November 18,
2020 (the "Hand Recount"), with those same violations likely to occur again in the
January 5, 2021 run-off election for Georgia's United States Senators. (See generally
id.)
The Georgia Legislature established a clear an efficient process for
handling absentee ballots . To the extent that there is any change in that
process, that change must, under Article I, Section 4 of the Constitution, be
prescribed by the Georgia Legislature. (See DE 5 Compl., at 17-18.)
Specifically, the unconstitutional procedure in this case involved the
unlawful and improper processing of absentee ballots. The Georgia
Legislature instructed county registrars and clerks (the "County Officials")
regarding the handling of absentee ballot O.C.G.A. §§ 21-2-
386(a)(l )(B), 21-2-380.1. (See DE 5 Compl., at 19.) The Georgia Election
Code instructs those who handle absentee ballots to follow a clear procedure:
Upon receipt of each [absentee] ballot, a registrar or clerk shall

write the day and hour of the receipt of the ballot on its
envelope. The registrar or clerk shall then compare the
identifying information on the oath with the information on
file in his or her office, shall compare the signature or make
on the oath with the signature or mark on the absentee elector's
{00584612. } 14
voter card or the most recent update to such absentee elector 's
voter registration card and application for absentee ballot or a
facsimile of said signature or maker taken from said card or
application, and shall , if the information and signature appear to
be valid and other identifying information appears to be
correct, so certify by signing or initialing his or her name below the
voter's oath...
O.C.G.A. § 21-2-386(a)(l )(B) (emphasis added); (see DE 5 Compl., at 20).
The Georgia Legislature also established a clear and efficient process to
be used by County Officials if they determine that an elector has failed to
sign the oath on the outside envelope enclosing the ballot or that the
signature does not conform with the signature on file in the registrar 's or
clerk' s office (a "defective absentee ballot"). See O.C.G.A. § 21-2-
386(a)(l)(C); (DE 5 Compl., a t 22.) With respect to defective absentee
ballots:
If the elector has failed to sign the oath, or if the signature does not
appear to be valid, or if the elector has failed to furnish required
information or information so furnished does not conform with that
on file in the registrar's or clerk's office, or if the elector is otherwise
found disqualified to vote, the registrar or clerk shall write across the
face of the envelope "Rejected," giving the reason therefor. The
board of registrars or absentee ballot clerk shall promptly notify the
elector of such rejection , a copy of which notification shall be
retained in the files of the board of registrars or absentee ballot clerk
for at least one year.
O.C.G.A. § 21-2-386(a)(l )(C) (emphasis added); (see DE 5 Compl., at 23). The
{00584612. } 15
Georgia Legislature clearly contemplated the use of written notification by the
county registrar or clerk in notifying the elector of the rejection. (See DE 5
Compl., at 24.)
In March 2020, Defendants Secretary Raffensperger, and the State Election
Board, who administer the state elections (collectively the "Administrators")
entered into a "Compromise and Settlement Agreement and Release"
(the "Litigation Settlement") with the Democratic Party of Georgia, Inc., the
Democrat Senatorial Campaign Committee, and the Democratic Congressional
Campaign Committee (the "Democrat Agencies"), setting forth totally different
standards to be followed by County Officials in processing absentee ballots
in Georgia. (See DE 5 Compl., 25-26.) See also Democratic Party of Georgia,
Inc., et al. v. Raffensperger, et al., Civil Action File No. 1:19-cv-05028-WMR,
United States District Court for the Northern District of Georgia, Atlanta Division,
Doc. 56-1 (DE 6, 30-35).
Although Secretary Raffensperger is authorized to promulgate rules and
regulations that are "conducive to the fair, legal, and orderly conduct of
primaries and elections," all such rules and regulations must be "consistent
with law." O.C.G.A. § 21-2-31(2); (see DE 5 Compl., at 28).
Under the Litigation Settlement, the Administrators agreed to change
{00584612. } 16
the statutorily-prescribed process of handling absentee ballots in a manner that
was not consistent with the laws promulgated by the Georgia Legislature. (See
DE 5 Compl., a t 28.) The Litigation Settlement provides that the Secretary of
State would issue an "Official Election Bulletin" to County Officials
overriding the prescribed statutory procedures. The unauthorized Litigation
Settlement procedure, set forth below, is more cumbersome, and makes it much more
difficult to follow the statute with respect to defective absentee ballots. (See DE 5,
Compl., at 30-32.)
Under the Litigation Settlement, the following language added to the
pressures and complexity of processing defective absentee ballots, making
it less likely that they would be identified or, if identified, processed for
rejection:
County registrars and absentee ballot clerks are required, upon

receipt of each mail-in absentee ballot, to compare the
signature or make of the elector on the mail-in absentee
ballot envelope with the signatures or marks in eNet and
on the application for the mail-in absentee ballot. If the
signature does not appear to be valid, registrars and clerks
are required to follow the procedure set forth in O.C.G.A. §
21- 2-386(a)(l )(C). When reviewing an elector's signature
on the mail-in absentee ballot envelope, the registrar or
clerk must compare the signature on the mail-in absentee
ballot envelope to each signature contained in such elector's
voter registration record in eNet and the elector's signature
on the application for the mail-in absentee ballot.
{00584612. } 17
If the registrar or absentee ballot clerk determines that

the voter's signature on the mail-in absentee ballot
envelope does not match any of the voter's signatures on
file in eNet or on the absentee ballot app lication, the registrar
or absentee ballot clerk must seek review from two other
registrars, deputy registrars, or absentee ballot clerks. A
mail-in absentee ballot shall not be rejected unless a
majority of the registrars, deputy registrars, or absentee ballot
clerks reviewing the signature agree that the signature does
not match any of the voter's signatures on file in eNet
or on the absentee ballot application. I f a determination
is made that the elector's signature on the mail-in absentee
ballot envelope does not match anv of the voter's
signatures on file in eNet or on the absentee ballot
application, the registrar or absentee ballot clerk shall
write the names of the three elections of ficials who
conducted the signature review across the face of the
absentee ballot envelope, which shall be in addition to
writing "Rejected" and the reason for the rejection as
required under 0.C.G.A. § 21-2-386(a)(l )(C ).Then, the
registrar or absentee ballot clerk shall commence the
notification procedure set forth in O.C.G.A. § 21-2-386(a)(l
)(C) and State Election Board Rule 183-1-14-.13.
(See DE 5 Compl., paragraph 33; see Ex. A, Litigation Settlement, p. 3-4,
paragraph 3, "Signature Match" (emphasis added).)
{00584612. } 18
SUMMARY OF ARGUMENT
The Plaintiff suffered an injury in fact and actual harm as a result of the
unconstitutional absentee ballot processing procedures utilized in connection with
the November 3, 2020 presidential election and the manual re-count. The procedures
were illegal and in derogation of the state legislature’s clear statutory scheme for
elections and accordingly, were unconstitutional. The procedures were promulgated
by the Defendants’ in violation of the non-delegation doctrine. Moreover, in issuing
these procedures, the Defendants exceeded their statutory authority. These
procedures violated the Plaintiff’s constitutional rights to Equal Protection under the
law.
As a result, this Court should reverse the district court and enter, or direct
that the district court enter, an injunction declaring that the election results are
defective, and ordering the Defendants to cure their constitutional violations by re-
doing the election in a manner consistent with the requirements of the United States
Constitution.
ARGUMENT
THE DISTRICT COURT ERRED IN DENYING INJUNCTIVE RELIEF

BECAUSE THE ELECTION WAS, AND ABSENT INJUNCTIVE RELIEF,
THE RUNOFF ELECTION WILL BE CONDUCTED IN AN UNLAWFUL
MANNER RENDERING IT UNCONSTITUTIONAL AND VIOLATIVE OF
THE PLAINTIFF’S FUNDAMENTAL RIGHT TO VOTE
{00584612. } 19
Standard of review
The Court of Appeals reviews a district court’s decision to deny a preliminary
injunction for abuse of discretion. Fish v. Kobach, 840 F. 3d 710, 723 (10th Cir.
2016). This Court reviews the district court’s factual findings for clear error and its
conclusions of law de novo. Id. Although review of a denial of a preliminary
inunction is normally limited to whether the district court abused its discretion, an
appellate court under some circumstances may decide the merits of a case in
connection with such a review. Siegel v. Lepore, 254 Fed. 3d 1163, 1171 n.4 (11th
Cir. 2000).
Merits
A. The Appellant Has Standing to Maintain This Lawsuit
The requirements for standing, under Article III of the Constitution, are three-
fold: First, the plaintiff must have suffered, or must face an imminent and not merely
hypothetical prospect of suffering, an invasion of a legally protected interest
resulting in a “concrete and particularized” injury. Second, the injury must have been
caused by the defendant's complained-of actions. Third, the plaintiff's injury or threat
of injury must likely be redressable by a favorable court decision.
Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1159 (11th Cir.2008).
An injury sufficient for standing purposes is “an invasion of a legally protected

{00584612. } 20
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
(1992).
In the voting context, “voters who allege facts showing disadvantage to
themselves as individuals have standing to sue,” Baker v. Carr, 369 U.S. 186, 206,
(1962), so long as their claimed injuries are “distinct from a ‘generally available
grievance about the government,’” Gill v. Whitford, 138 S.Ct. 1916, 1923
(2018)(quoting Lance v. Coffman, 549 U.S. 437, 439, 1 (2007) (per curiam)).
Contrary to the District Judge’s conclusion (DE 54 at 12), Plaintiff Wood
consistent with several constitutional provisions, established an injury sufficient
for standing. Specifically, under the Fourteenth Amendment of the U.S.
Constitution, a state may not “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV. The Fourteenth Amendment is one
of several constitutional provisions that “protects the right of all qualified citizens to
vote, in state as well as federal elections.” Reynolds v. Sims, 377 U.S. 533, 554
(1964). Because the Fourteenth Amendment protects not only the “initial allocation
of the franchise,” as well as “the manner of its exercise,” Bush v. Gore, 531 U.S. 98,
104, (2000), “lines may not be drawn which are inconsistent with the Equal
{00584612. } 21
Protection Clause ....” Id. at 105 (citing Harper v. Va. State Bd. of Elections, 383
U.S. 663, 665 (1966)).
The Supreme Court has identified two theories of voting harms prohibited by
the Fourteenth Amendment. First, the Court has identified a harm caused by
“debasement or dilution of the weight of a citizen's vote,” also referred to “vote
dilution.” Reynolds, 377 U.S. at 555. Plaintiff presented a dilution claim below.
Second, the Supreme Court has found that the Equal Protection Clause is
violated where the state, “[h]aving once granted the right to vote on equal terms,”
through “later arbitrary and disparate treatment, value[s] one person's vote over that
of another.” Bush, 531 U.S. at 104-05 (2000); see also Baker v. Carr, 369 U.S. 186,
208 (1962) (“A citizen's right to a vote free of arbitrary impairment by state action
has been judicially recognized as a right secured by the Constitution, when such
impairment resulted from dilution by a false tally, or by a refusal to count votes from
arbitrarily selected precincts, or by a stuffing of the ballot box.”) (internal citations
omitted). The Plaintiff supplied evidence in the form of numerous affidavits (D.E. 6
at Page 45-54; DE 7, DE 20, DE 30, and DE 35) outlining numerous irregularities
in the actual re-counting of votes including attributing the votes of one candidate to
the other, the failure of counters to compare signatures on absentee ballots with other
signatures on file, processing of absentee ballots that appear to be counterfeit
{00584612. } 22
because they had no creases indicative of having been sent by mail, and the manner
in which they were bubbled in, not allowing observers sufficient access to
meaningfully observe the counting and concluding fraudulent conduct occurred
during the vote re-counting as well as the live testimony of Susan Voyles. These
irregularities rise to the level of an unconstitutional impairment and dilution of the
Plaintiff’s vote.
The second theory of voting harm requires courts to balance competing
concerns around access to the ballot. On the one hand, a state should not engage in
practices which prevent qualified voters from exercising their right to vote. A state
must ensure that there is “no preferred class of voters but equality among those who
meet the basic qualifications.” Gray v. Sanders, 372 U.S. 368, 379-80, 83 (1963).
On the other hand, the state must protect against “the diluting effect of illegal
ballots.” Id. at 380. Because “the right to have one's vote counted has the same
dignity as the right to put a ballot in a box,” id., the vote dilution occurs only where
there is both “arbitrary and disparate treatment.” Bush, 531 U.S. at 105. To this end,
states must have “specific rules designed to ensure uniform treatment” of a voter's
ballot. Id. at 106.
In Bush, the Supreme Court held that, “[h]aving once granted the right to vote
on equal terms, the State may not, by later arbitrary and disparate treatment, value
{00584612. } 23
one person's vote over that of another.” 531 U.S. at 104-05. Plaintiff argued below
that he has been subjected to arbitrary and disparate treatment because he voted
under one set of rules, and other voters, through the guidance in the unlawful consent
agreement, were permitted to vote invalidly under a different and unequal set of
rules, and that this is a concrete and particularized injury.
For the purposes of determining whether Plaintiff has standing, is it not
“necessary to decide whether [Plaintiff’s] allegations of impairment of his vote” by
Defendants’ actions “will, ultimately, entitle them to any relief,” Baker, 369 U.S. at
208; whether a harm has occurred is best left to this court's analysis of the merits of
Plaintiff’s claims. Instead, the appropriate inquiry is, “[i]f such impairment does
produce a legally cognizable injury,” whether Plaintiff “is among those who have
sustained it.” Baker, 369 U.S. at 208.
For purposes of standing, a denial of equal treatment is an actual injury even
when the complainant is able to overcome the challenged barrier:
When the government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for members of
another group, a member of the former group seeking to challenge the
barrier need not allege that he would have obtained the benefit but for
the barrier in order to establish standing. The “injury in fact” in an equal
protection case of this variety is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate inability to obtain
the benefit.
{00584612. } 24
Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, Fla., 508
U.S. 656, 666 (1993).
The Supreme Court has rejected the argument that an injury must be
“significant”; a small injury, “an identifiable trifle,” is sufficient to
confer standing. United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 (1973). Plaintiff Wood submits
that he has suffered an injury sufficient to confer standing. “A plaintiff need not
have the franchise wholly denied to suffer injury. Any concrete, particularized, non-
hypothetical injury to a legally protected interest is sufficient.” Charles H. Wesley
Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005).
For instance, requiring a registered voter to produce photo identification to
vote in person, but not requiring a voter to produce identification to cast an absentee
or provisional ballot is sufficient to demonstrate disparate treatment and thus, an
injury sufficient for standing.
Additionally, the inability of a voter to pay a poll tax, for example, is not
required to challenge a statute that imposes a tax on voting, see Harper v.
Va. State Bd. of Elections, 383 U.S. 663, 668 (1966), and the lack of an acceptable
photo identification is not necessary to challenge a statute that requires photo
identification to vote in person. Because Plaintiff Wood has demonstrated that the
{00584612. } 25
unlawful “Consent Agreement” subjected him to arbitrary and disparate treatment,
vis-à-vis, other voters, he has clearly suffered a sufficient injury. See also Roe v.
Alabama, 43 F. 3d 574, 580-581 (11th Cir. 1995)(voter and candidates in statewide
election had standing to allege violation of their constitutional rights based on the
counting of improperly completed absentee ballots, which diluted votes of the voters
who met requirements of absentee ballot statute and those who went to the polls on
election day.)
B. The Appellees Instituted a Procedure for Processing Absentee Ballots

That Conflicts with State Law and is Unconstitutional
The Elections Clause of the United States Constitution states that "[t]he
Times, Places and Manner of holding Elections for Senators and
Representatives shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulation s,
except as to the Places of choosing Senators." U.S. Const. Art. I, § 4, cl. 1
(emphasis added); (see DE 5 Compl., at 12). Regulations of congressional and
presidential elections, thus, "must be in accordance with the method which
the state has prescribed for legislative enactments." Smiley v. Holm , 285 U.S.
355, 367 (1932); see also Ariz. St. Leg. v. Ariz. Indep. Redistricting Comm 'n,
{00584612. } 26
576 U.S. 787, 807-08 (2015); (see DE 5 Compl. at 13). In Georgia, the
"legislature" is the General Assembly (the "Georgia Legislature"). See Ga.
Const. Art. III, § I, Para. I; (see DE 5 Compl., at 14).
The Supreme Court of Georgia has recognized that statutes delegating
legislative authority violate constitutional nondelegation and separation of powers.
Premier Health Care Investments, LLC. v. UHS of Anchor, LP, 220 WL 5883325
(Ga. 2020). The non-delegation doctrine is rooted in the principle of separation of
powers in that the integrity of the tripartite system of government mandates the
general assembly not divest itself of the legislative power granted to it by the State
Constitution. Department of Trans. v. City of Atlanta, 260 Ga. 699, 703 (Ga.
1990)(finding OCGA § 50-16-180 through 183 created an impermissible
delegation of legislative authority). See also Mitchell v. Wilkerson, 258 Ga. 608,
610 (Ga. 1988)(election recall statute’s attempt to transfer the selection of the
reasons to the applicant amounted to an impermissible delegation of legislative
authority.)
Because the Constitution reserves for state legislatures the power to set
the time, place, and manner of holding federal elections, state executive officers
have no authority to unilaterally exercise that power, much less flout existing
{00584612. } 27
legislation, nor to ignore existing legislation. ( See D E 5 Compl., at 15.)
While the Elections Clause "was not adopted to diminish a State's authority
to determine its own lawmaking processes," it does hold states accountable
to their chosen processes in regulating federal elections. Ariz. St. Leg., 135
S.Ct. at 2677, 2668.
In North Fulton Med. Center v. Stephenson, 269 Ga. 540 (Ga. 1998), a
hospital outpatient surgery center which had already relocated to a new site
and commenced operations applied to the State Health Planning Agency for a
certificate of need under the agency’s second relocation rule, which certificate
was provided by the agency. A competitor sought appellate relief and the
Georgia Supreme Court held that the agency rule conflicted with the State
Health Planning Act, and thus, was invalid and had to be stricken.
Additionally, the supreme court held that the rule was the product of the
agency’s unconstitutional usurpation of the general assembly’s power to define
the thing to which the statute was to be applied. Id at 544. See also Moore v.
Circosta, 2020 WL 6063332 (MDNC October 14, 2020)(North Carolina State
Board of Elections exceeded its statutory authority when it entered into consent
agreement and eliminated witness requirements for mail-in ballots).
The Framers of the Constitution were concerned with just such a
{00584612. } 28
usurpation of authority by State administrators. In Federalist No. 59,
Alexander Hamilton defended the Elections Clause by noting that “a
discretionary power over elections ought to exist somewhere (emphasis
supplied) and then discussed why the Article 1, Clause 4 “lodged [the
power]… primarily in the [State legislatures] and ultimately in the
[Congress].” He defended the right of Congress to have the ultimate authority,
observing that even though granting this right to states was necessary to secure
their place in the national government, that power had to be subordinate to the
Congressional mandates to prevent what could arise as the “sinister designs in
the leading members of a few of the State legislatures.”
Hamilton feared that the state legislatures might conspire against the
Union but also that “influential characters in the State administrations” might
“prefer[] their own emolument and advancement to the public weal.” But in
concluding his defense of this constitutional compromise, Hamilton noted that
the Clause was designed to commit to the guardianship of election “those
whose situation will uniformly beget an immediate interest in the faithful and
vigilant performance of the trust.”
The procedures for processing and rejecting ballots employed by the
Defendants during the election. (See page ____, infra) constitute a
{00584612. } 29
usurpation of the legislator’s plenary authority. This is because the
procedures are not consistent with- and in fact conflict with- the statute
adopted by the Georgia Legislature governing processing of absentee ballots.
(See DE 5 Compl., 34.) First, the Litigation Settlement overrides the clear
statutory authorities granted to County Officials individually and forces
them to form a committee of three if any one official believes that an
absentee ballot is a defective absentee ballot. (See DE 5 Compl., 35.) Such a
procedure creates a cumbersome bureaucratic procedure to be followed with
each defective absentee ballot - and makes it likely that such ballots will
simply not be identified by the County Officials. (See id., 36.)
Second, the Litigation Settlement allows a County Official to compare
signatures in ways not permitted by the statutory structure created by the
Georgia Legislature. (See id., 37.) The Georgia Legislature prescribed
procedures to ensure that any request for an absentee ballot must be
accompanied by sufficient identification of the elector's identity. See
O.C.G.A . § 21-2-38l (b)(l ) (providing, in pertinent part, "In order to be found
eligible to vote an absentee ballot in person at the registrar's office or absentee
ballot clerk's office, such person shall show one of the forms of identification
listed in Code Section 21-2-417 ..."); (see DE 5 Compl., 38.) Under
{00584612. } 30
O.C.G.A. § 21-2-220( c), the elector must present identification, but need
not submit identification if the electors submit with their application
information such that the County Officials are able to match the
elector's information with the state database, generally referred to as the eNet
system. ( See DE 5 Compl., 39.) The system for identifying absentee ballots
was carefully constructed by the Georgia Legislature to ensure that electors
were identified by acceptable identification , but at some point in the process ,
the Georgia Legislature mandated the system whereby the elector be identified
for each absentee ballot. (See DE 5 Compl., 40.) Under the Litigation
Settlement, any determination of a signature mismatch would lead to the
cumbersome process described in the settlement, which was not intended by
the Georgia Legislature, which authorized those decisions to be made by single
election officials. ( See id., 41.) The Georgia Legislature also provided for the
opportunity to cure (again, different from the opportunity to cure in the
Litigation Settlement), but did not allocate funds for three County Officials
for every mismatch decision. (See id., 42.)
Finally , under paragraph 4 of the Litigation Settlement, the
Administrators delegated their responsibilities for determining when there
was a signature mismatch by considering in good faith "additional guidance
{00584612. } 31
and training materials" drafted by the "handwriting and signature review
expert" of the Democrat Agencies . (See DE 5 Compl., at 47; see Ex.
A, Litigation Settlement, p. 4, at 4, "Consideration of Additional Guidance
for Signature Matching.") Allowing a single political party to write rules
for reviewing signatures is not "conducive to the fair. ..conduct of primaries
and elections" or "consistent with law" under O.C.G.A. § 21-2-31. (See
DE 5 Compl., at 48.)
In short, the Litigation Settlement by itself has created confusion,
misplaced incentives, and undermined the confidence of the voters of the
State of Georgia in the electoral system . (See DE 5 Compl., a t 49.) Neither
it nor any of the activities spawned by it were authorized by the Georgia
Legislature, as required by the United States Constitution. (See DE 5
Compl., at 50.)
“A consent degree must of course be modified, if, as it later turns out,
one or more of the obligations placed upon the parties has become
impermissible under Federal law.” Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367388 (1992). As such, the lower court should be reversed and the
injunction requested below should be granted.
{00584612. } 32
C. The Appellees’ Procedure for Processing Absentee Ballots Violates

Appellant’s Rights to Equal Protection under the United States
Constitution
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution prohibits a state from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. This
constitutional provision requires “that all persons similarly situated should be
treated alike.” City of Cleburne v. Clerburn Living Center, 473 U.S. 432, 439
(1985).
And this applies to voting. “Having once granted the right to vote on equal
terms, the State may not, by later arbitrary and disparate treatment, value one
person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). The
appellees have failed to ensure that Georgia voters are treated equally regardless of
whether they vote in person or through absentee ballot. Under the Equal Protection
Clause of the 14th amendment, a state cannot utilize election practices that unduly
burden the right to vote or that dilute votes.
When deciding a constitutional challenge to state election laws, the
flexible standard outlined in Anderson v. Celebrezze, 460 U.S. 780 (1983) and
Burdick v. Takushi, 504 U .S. 428 (1992) applies. Under Anderson and Burdick,
{00584612. } 33
courts must "weigh the character and magnitude of the burden the State's rule
imposes on those rights against the interests the State contends justify that
burden, and consider the extent to which the State's concerns make the
burden necessary." Timmons v. Twin Cities Ar ea New Party, 520 U.S. 351,
358 (1997) (citations and quotations omitted). "[E]ven when a law imposes
only a slight burden on the right to vote, relevant and legitimate interests of
sufficient weight still must justify that burden ." Democratic Exec. Comm. of
Fla. v. Lee, 915 F.3d 1312, 1318-19 (11th Cir. 2019).
"To establish an undue burden on the right to vote under the Anderson-
Burdick test, Plaintiffs need not demonstrate discriminatory intent behind the
signature-match scheme or the notice provisions because we are considering
the constitutionality of a generalized burden on the fundamental right to vote,
for which we apply the And erson-Burdick balancing test instead of a traditional
equal protection inquiry." Lee, 915 F.3d at 1319.
Plaintiff’s equal protection claim is straightforward: states may not, by
arbitrary action or other unreasonable impairment, burden a citizen 's right to
vote. See Baker v. Carr, 369 U.S. 186, 208 (1962) ("citizen's right to a vote
free of arbitrary impairment by state action has been judicially recognized as a
{00584612. } 34
right secured by the Constitution"). "Having once granted the right to vote on
equal terms, the State may not, by later arbitrary and disparate treatment,
value on person 's vote over that of another." Bush, 531 U.S. at 104-05. Among
other things, this requires "specific rules designed to ensure uniform treatment"
in order to prevent "arbitrary and disparate treatment to voters." Id. at 106-07;
see also Dunn v. Bloomstein, 405 U.S. 330, 336 (1972) (providing that each
citizen "has a constitutionally protected right to participate in elections on an
equal basis with other citizens in the jurisdiction").
"The right to vote extends to all phases of the voting process, from
being permitted to place one's vote in the ballot box to having that vote actually
counted. Thus, the right to vote applies equally to the initial allocation of the
franchise as well as the manner of its exercise. Once the right to vote is
granted, a state may not draw distinctions between voters that are inconsistent
with the guarantees of the Fourteenth Amendment's equal protection clause."
Pierce v. Allegheny County Bd. of Elections , 324 F.Supp.2d 684, 695 (W.D. Pa.
2003) (citations and quotations omitted). "[T]reating voters differently " thus
"violate[s] the Equal Protection Clause" when the disparate treatment is the
result of arbitrary, ad hoc processes . Charfauros v. Bd. of Elections , 249 F.3d
{00584612. } 35
941, 954 (9th Cir. 2001). Indeed, a "minimum requirement for non-arbitrary
treatment of voters [is] necessary to secure the fundamental right [to vote]."
Bush, 531 U.S. at 105.
Defendants are not part of the Georgia Legislature and cannot
exercise legislative power to enact rules or regulations regarding the handling of
defective absentee ballots that are contrary to the Georgia Election Code. By
entering the Litigation Settlement, however, Defendants unilaterally and without
authority altered the Georgia Election Code and the procedure for processing
defective absentee ballots. The result is that absentee ballots have been processed
differently by County Officials than the process created by the Georgia
Legislature and set forth in the Georgia Election Code. Further, allowing a single
political party to write rules for reviewing signatures, as paragraph 4 of the
Litigation Settlement provides, is not "conducive to the fair. ..conduct of primaries
and elections" or "consistent with law" under O.C.G.A. § 21-2-31.
The rules and regulations set forth in the Litigation Settlement created
an arbitrary, disparate, and ad hoc process for processing defective absentee
ballots, and for determining which of such ballots should be "rejected,"
contrary to Georgia law. See O.C.G.A. § 21-2-386; (see also DE 5 Ex. A,
Litigation Settlement, p. 3-4, if 3, "Signature Match"). This disparate treatment

{00584612. } 36
is not justified by, and is not necessary to promote, any substantial or
compelling state interest that cannot be accomplished by other, less restrictive
means. As such, Plaintiff has been harmed by Defendants ' violations of his
equal protection rights, and an injunction should have been issued below.
Accordingly, the district court erred in not finding the Plaintiff had a substantial
likelihood of success on the merits.
Moreover, the irreparable nature of the harm to Plaintiff is apparent. "It is
well-settled that an infringement on the fundamental right to vote amounts in
an irreparable injury." New Ga. Project v. Raffensperger, 2020 WL 5200930 at
*26 (N.D. Ga. Aug. 31, 2020). Indeed, the violation of a constitutional right
must weigh heavily in the irreparable harm analysis on a motion for preliminary
injunction. Fish, 840 F. 3d at 752. Further, because there can be no do-over or
redress of a denial of the right to vote after an election becomes final, denial or
impairment of the right to vote weighs heavily in determining the existence of
irreparable harm. Id.
If the Georgia vote count, including defective absentee ballots that were
not processed according to the Georgia Election Code, is permitted to stand,
and if the same procedure is in place during the upcoming Senatorial runoff
{00584612. } 37
election, then Georgia's election results are and will continue to be improper,
illegal, and therefore unconstitutional. Plainly , there is no adequate remedy at
law if this occurs.
The remaining two factors for the preliminary injunction test, "harm to
the opposing party and weighing the public interest merge when the Government
is the opposing party." New Ga. Project v. Raffensperger, 2020 WL 5200930
at *26 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009) (alternations and
punctuation omitted).
The fact that the State has certified the Georgia purported election results
does not moot the Plaintiff’s lawsuit because this litigation is ongoing. Plaintiff’s
fundamental right to vote continues to be impaired, President Trump has officially
requested a recount and the constitutionally improper procedure would be employed
in the recount, as well as in the upcoming Senatorial runoff election in January.
Siegel, 234 F. 3d at 1372.
If the certified result is permitted to stand, and if the upcoming Senatorial
runoff election is run according to the same unconstitutional process, the Plaintiff
(and the citizens of Georgia) will be permanently harmed by the Defendants’
infringement on Plaintiff’s voting rights. New Ga. Project v. Raffensperger, 2020
WL 5200930 at *26-27 (concluding that movant satisfied balance of

{00584612. } 38
harms/public interest factors, as "Plaintiffs will be forever harmed if they are
unconstitutionall y deprived of their right to vote").
Nor should the doctrine of latches operate to bar Plaintiff’s claims. The
lawsuit was filed within days of the election and until the Plaintiff cast his vote
and all votes were purportedly in, Plaintiff had not suffered an injury. In any event,
delay in seeking preliminary relief is only one factor to be considered among
others, and there is no categorical rule that delay bars the issuance of an injunction.
Fish, 840 F. 3d at 753.
Moreover, the public will be served by the relief requested. "[T]he public
has a strong interest in exercising the fundamental political right to vote. That
interest is best served by favoring enfranchisement and ensuring that qualified
voters' exercise of their right to vote is successful. The public interest therefore
favors permitting as many qualified voters to vote as possible," and having
those votes properly processed and tallied pursuant to Georgia law. Obama
for Am. v. Husted , 697 F.3d 423, 436-37 (6th Cir. 2012) (citations and quotations
omitted). As such, this Court should direct or reverse with instructions that the
trial court direct that the election must be re-done in a constitutionally permissible
manner.
{00584612. } 39
CONCLUSION
For the reasons stated above, the District Court’s order should be reversed
with instructions to grant the Plaintiff an injunction determining that the results of
the 2020 general election in Georgia are defective as a result of the above described
constitutional violations and requiring the Defendants to cure said deficiencies in a
manner consisted with Federal and Georgia law, and not in accordance with the
improper procedures established in the litigation settlement. Further, the Defendants
should be enjoined from employing the constitutionally defective procedures in the
re-count requested by President Trump and in the upcoming Senatorial runoff
election.
{00584612. } 40
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
electronically filed with this Court via CM/ECF and was furnished to all counsel
on the attached service list by e-mail on November ____, 2020.:
SMITH & LISS, LLC
___________________________
Ray S. Smith, III

Suite 2600
(404) 760-6000
[email protected]
{00584612. } 41
SERVICE LIST
Wood v. Raffensperger, et al.

Case No. 1:20-cv-04651-SDG
CHRISTOPHER M. CARR
BRYAN K. WEBB
Russell D. Willard
Senior Assistant Attorney General
Charlene S. McGowan
Assistant Attorney General
40 Capitol Square SW
Atlanta, GA 30334
[email protected]
404-458-3658 (tel)
Attorneys for State Defendants
Adam M. Sparks
Halsey G. Knapp, Jr.
Joyce Gist Lewis
Susan P. Coppedge
Adam M. Sparks
KREVOLIN AND HORST, LLC
One Atlantic Center
1201 W. Peachtree Street, NW, Ste. 3250
Atlanta, GA 30309
Telephone: (404) 888-9700
Facsimile: (404) 888-9577
[email protected]
[email protected]
[email protected]
[email protected]
{00584612. } 42
Marc E. Elias*
Amanda R. Callais*
Alexi M. Velez*
Emily R. Brailey*
PERKINS COIE LLP
700 Thirteenth Street NW, Suite 800
Telephone: (202) 654-6200
[email protected]
[email protected]
[email protected]
[email protected]
Kevin J. Hamilton*
Amanda J. Beane*
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101
Telephone: (206) 359-8000
[email protected]
[email protected]
Gillian C. Kuhlmann*
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, California 90067
Telephone: (310) 788-3900
[email protected]
Matthew J. Mertens*
Georgia Bar No: 870320
PERKINS COIE LLP
1120 NW Couch Street, 10th Floor
Portland, Oregon 97209
Telephone: (503) 727-2000
{00584612. } 43
*Pro Hac Vice Application Pending
Counsel for Intervenor-Defendants, Democratic Party of Georgia (“DPG”),

DSCC, and DCCC (“Political Party Committees”)
Bryan L. Sells
Law Office of Bryan L. Sells, LLC
P.O. Box 5493
Atlanta, GA 31107-0493
(404) 480-4212 (voice/fax)
[email protected]
John Powers*
[email protected]
Kristen Clarke
[email protected]
Jon M. Greenbaum*
[email protected]
Ezra D. Rosenberg*
[email protected]
Julie M. Houk*
[email protected]
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
1500 K Street NW, Suite 900
Telephone: (202) 662-8300
Susan Baker Manning^

Jeremy P. Blumenfeld^
Catherine North Hounfodji^
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Telephone: +1.202.739.3000
Facsimile: +1.202.739.3001
[email protected]
[email protected]
{00584612. } 44
[email protected]
[email protected]
[email protected]
[email protected]
* admitted pro hac vice
^ Pro hac vice admission pending
Counsel for Proposed Intervenors James Woodhall, Helen Butler, Melvin Ivey,
Members of the Proposed Intervenors the Georgia State Conference of the
NAACP, and the Georgia Coalition for the People’s Agenda
{00584612. } 45

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USCA11 Case: 20-14418 Date Filed: 11/25/2020 Page: 1 of 14

IN THE UNITED STATES COURT OF APPEALS

L. LIN WOOD, JR.,

On Appeal from the United States District Court

APPELLANT’S EMERGENCY MOTION FOR EXPEDITED REVIEW

RAY S. SMITH III, ESQ.

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

Disclosure Statement, as follows:

Beane, Amanda J. - Counsel for Intervenor-Defendants, Democratic Party of

Blumenfeld, Jeremy P. - Counsel for Proposed Intervenors Woodhall, et al.

Brailey, Emily R. - Counsel for Intervenor-Defendants, Democratic Party of

Callais, Amanda R. - Counsel for Intervenor-Defendants, Democratic Party

Carr, Christopher – Counsel for Appellee

Clarke, Kristen- Counsel for Proposed Intervenors Woodhall, et al.

Coppedge, Susan P. - Counsel for Intervenor-Defendants, Democratic Party

Greenbaum, Jon M. - Counsel for Proposed Intervenors Woodhall, et al.

Grimberg, Steven D. – United States Northern District Court Judge

Hamilton, Kevin J. - Counsel for Intervenor-Defendants, Democratic Party of

Houk, Julie M. - Counsel for Proposed Intervenors Woodhall, et al.

Hounfodji, Catherine North- Appellee

Knapp, Jr., Halsey G. - Counsel for Intervenor-Defendants, Democratic Party

Krevolin and Horst, LLC- Counsel for Intervenor-Defendants, Democratic

Kuhlmann, Gillian C. - Counsel for Intervenor-Defendants, Democratic Party

Law Office of Bryan L. Sells, LLC - Counsel for Proposed Intervenors

Le, Anh - Appellee

Lewis, Joyce Gist- Counsel for Intervenor-Defendants, Democratic Party of

Manning, Susan Baker- Counsel for Proposed Intervenors Woodhall, et al.

Mashburn, Matthew- Appellee

McGowan, Charlene S. - Counsel for Appellee

Mertens, Matthew J. - Counsel for Intervenor-Defendants, Democratic Party

Morgan, Lewis & Bockius LLP - Counsel for Proposed Intervenors

Office of Attorney General of Georgia- Counsel for Appellee

Perkins Coie LLP - Counsel for Intervenor-Defendants, Democratic Party of

Powers, John- Counsel for Proposed Intervenors Woodhall, et al.

Raffensperger, Brad - Appellant

Rosenberg, Ezra D. - Counsel for Proposed Intervenors Woodhall, et al.

Sells, Bryan L. - Counsel for Proposed Intervenors Woodhall, et al.

Smith, III, Ray - Counsel for Appellant

Sparks , Adam M. - Counsel for Intervenor-Defendants, Democratic Party of

Sullivan, Rebecca N. – Appellant

Velez, Alexi M. - Counsel for Intervenor-Defendants, Democratic Party of

Webb, Bryan K. - Counsel for Appellee

Willard, Russell D. - Counsel for Appellee

Wood, Jr., L. Lin. – Appellant

Worley, David J. - Appellee

EMERGENCY MOTION FOR EXPEDITED REVIEW

COMES NOW the Appellant, L. LIN WOOD, by and through undersigned

and in support of this request states the following:

1. On November 13, 2020, Appellant filed an action in the District Court

for the Northern District of Georgia, asserting three claims against

Appellees/Defendants, in their official capacities, based on numerous constitutional

2. On November 16, 2020, Appellant filed an Amended Complaint, and on

3. On November 19, 2020, Appellees and Intervenors filed separate

oral argument on Appellant’s motion the same day.

4. At the conclusion of oral argument, the District Court denied Appellant’s