Plaintiffs in Case Challenging Georgia Election Procedures in Light of COVID-19 Ask Federal Court to Reconsider Decision Holding Case Raises Non-Justiciable Political Questions (Reconsideration is Warranted)

You can find the motion here.

Here is what I say about the district court’s initial political question ruling in my draft paper on how courts have considered election cases under pandemic conditions:

Not all the judicial opinions have engaged in careful balancing of rights and interests. A federal district court in Georgia recently dismissed a constitutional challenge to Georgia’s rules and procedures for conducting the primary election in light of the pandemic. The court held that it should not engage in Anderson-Burdick balancing because the challenges raised nonjusticiable political questions.[1] Although the court purported to rely upon Judge William Pryor’s separate concurrence in the recent Florida ballot order case in the Eleventh Circuit,[2] the district court misread Judge Pryor, who distinguished ballot order challenges that Judge Pryor found nonjusticiable from normal voting rights challenges that should be adjudicated under Anderson-Burdick.[3]

This move among conservative judges toward nonjusticiability of voting rights claims is especially worrying. The approach of the trial court in the Georgia case would essentially give states a free hand to pass legislation that favors incumbents or a political party and to discriminate against a voting minority in the state with no justification whatsoever. It would render existing constitutional protections of voting rights a nullity by depending upon state actors with the potential to manipulate election rules in their self-interest to police themselves.

So far, the opinion in the Georgia case is an outlier, and other courts have recognized that courts must not only applying the Anderson-Burdick balancing test to voting rights challenges but also account for the pandemic context in balancing. Doing so will not inevitably lead to plaintiff victories. For example, claims that come too close to the election are likely to fail under the Purcell Principle. Sometimes courts will not recognize that plaintiffs’ rights are strong enough, or they will see the government’s interests as sufficiently compelling.


[1] Id. at *17 (“The basic problem with the voters and organizations’ complaint is that it is not based on the right to vote at all, so we cannot evaluate their complaint using the legal standards that apply to laws that burden the right to vote. As the voters and organizations correctly point out, we must evaluate laws that burden voting rights using the approach of Anderson and Burdick, which requires us to weigh the burden imposed by the law against the state interests justifying the law.”).


[1] Coalition for Good Governance v. Raffensberger, Order, Doc. 43, No. 1:20-cv-1677-TCB at 10 n.2 (N.D. Ga. May 14, 2020), https://electionlawblog.org/wp-content/uploads/covid-ga.pdf.

[2] Jacobson v. Fla. Sec’y of State, No. 19-14552, 2020 WL 2049076, at *14 (11th Cir. Apr. 29, 2020) (Pryor, J. concurring).

[3] Id. at *17 (“The basic problem with the voters and organizations’ complaint is that it is not based on the right to vote at all, so we cannot evaluate their complaint using the legal standards that apply to laws that burden the right to vote. As the voters and organizations correctly point out, we must evaluate laws that burden voting rights using the approach of Anderson and Burdick, which requires us to weigh the burden imposed by the law against the state interests justifying the law.”).

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