No. 08-1231

bupreme eurt of the i niteb btate

NATIONAL ASSOCIATION FOR THEADVANCEMENT OF COLORED PEOPLE, et al.,

Petitioners,v.

EVON BILLUPS, et al.,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Eleventh Circuit

BRIEF IN OPPOSITION

THURBERT E. BAKERAttorney General

of GeorgiaDENNIS R. DUNNDeputy Attorney GeneralSTEFAN E. RITTERSenior Assistant

Attorney GeneralSTATE LAW DEPARTMENT40 Capitol Square, S.W.Atlanta, Georgia 30334(404) 656-5614

MARK H. COHEN*TROUTMAN SANDERS LLP5200 Bank of America Plaza600 Peachtree Street, N.E.Atlanta, Georgia 30308(404) 885-3597

*Counsel of Record

ANNE W. LEWISSTRICKLAND BROCKINGTON

LEWIS LLP1170 Peachtree Street, N.E.,

Suite 2000Atlanta, Georgia 30309(678) 347-2200

Attorneys for Respondents Karen C. Handeland the State Election Board

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (4021342-2831

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QUESTIONS PRESENTED

Did the Court of Appeals properly reject Peti-tioners’ equal protection challenge to Georgia’s Photo

ID Act based on this Court’s decision in Crawford v.Marion County Election Board, 553 U.S. __, 128S. Ct. 1610 (2008), which just last term upheld amore restrictive photo ID law in Indiana against thesame constitutional challenge?

..

Is the Court of Appeals’ decision upholdingGeorgia’s Photo ID Act consistent with the decisionsof this Court and other Courts of Appeals, which holdthat the legitimate interest of States in preventingvoter fraud and preserving public confidence in theintegrity of elections outweigh the minimal burdenimposed on voters by requiring the presentation of aphoto ID when voting in person?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................i

TABLE OF AUTHORITIES ...................................iii

STATEMENT OF THE CASE ................................1

A. Introduction .................................................1

B. Statement of Facts .......................................2

C. Proceedings Below .......................................6

REASONS FOR DENYING THE PETITION .......13

I. The Court of Appeals Properly Upheld Geor-gia’s Photo ID Law Based on This Court’sRecent Decision in Crawford v. MarionCounty Election Board .................................13

II. The Court of Appeals’ Decision Is Con-sistent With the Decisions of This Courtand Other Courts of Appeals Which Estab-lish That a State’s Legitimate Interest inPreventing Voter Fraud Outweighs the Min-imal Burden Imposed on Voters by a PhotoID Requirement for In-Person Voting .........20

CONCLUSION ........................................................28

111

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) ....12, 20, 24

Bryan v. Ga. Pub. Serv. Comm’n, 238 Ga. 572,234 S.E.2d 784 (1977) ...............................................4

Burdick v. Takushi, 504 U.S. 428 (1992) ... 12, 24, 25, 27

Common Cause/Ga. v. Billups, 406 F. Supp. 2d1326 (N.D. Ga. 2005) ("Common Cause/Ga./") .....6, 7

Common Cause/Ga. v. Billups, 439 F. Supp. 2d1294 (N.D. Ga. 2006) ("Common Cause/Ga.IF’) ......................................................................7, 8,9

Common Cause/Ga. v. Billups, 504 F. Supp. 2d1333 (N.D. Ga. 2007) ("Common Cause/Ga.III") .................................................................. passim

Common Cause/Ga. v. Billups, 554 F.3d 1340(llth Cir. 2009) ("Common Cause/Ga. IV") .... passim

Crawford v. Marion County Election Board,472 F.3d 949 (7th Cir. 2007) ...................................11

Crawford v. Marion County Election Board,553 U.S. __, 128 S. Ct. 1610 (2008) .............. passim

Daubert v. Merrill Dow Pharmaceuticals, Inc.,509 U.S. 579 (1993) .................................................16

Dortch v. Atlanta Journal, 261 Ga. 350, 405S.E.2d 43 (1991) ........................................................4

Eu v. San Francisco County Democratic Cent.Comm., 489 U.S. 214 (1989) ...................................23

Ind. Democratic Party v. Rokita, 458 F. Supp.2d 775 (S.D. Ind. 2006) ...........................................11

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TABLE OF AUTHORITIES - Continued

Page

Jackson v. Delk, 257 Ga. 541, 361 S.E.2d 370(1987) .........................................................................4

Perdue v. Lake, 282 Ga. 348, 647 S.E.2d 6(2007) .......................................................................10

Purcell v. Gonzalez, 549 U.S. 1 (2006) .................23, 24

Reynolds v. Sims, 377 U.S. 533 (1964) ......................24

Sears v. State, 232 Ga. 547, 208 S.E.2d 93(1974) .........................................................................4

Stewart v. Atlanta Beef Co., 93 Ga. 12, 18 S.E.981 (1893) ..................................................................4

Williamson v. Lee Optical of Okla., Inc., 348U.S. 483 (1955) ........................................................25

STATUTES

2003 Ga. Laws 517 .......................................................2

Ind. Code Ann. §§ 3-11.7-5-1 & -2.5(c) .......................18

O.C.G.A. § 1-3-1 ............................................................4

O.C.G.A.

O.C.G.A.

O.C.G.A.

O.C.G.A.

O.C.G.A.

O.C.G.A.

O.C.G.A.

§ 21-2-380 ..................................................2, 4

§ 21-2-381 ..............................................2, 3, 4

§ 21-2-384 ......................................................3

§ 21-2-386 ......................................................3

§ 21-2-417 ............................................passim

§ 21-2-417.1 .............................................6, 18

§ 40-5-103 ......................................................6

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TABLE OF AUTHORITIES - Continued

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CONSTITUTIONAL PROVISIONS

Fourteenth Amendment to the United StatesConstitution ..........................................................6, 9

Twenty-Fourth Amendment to the UnitedStates Constitution ...............................................6, 7

RULES

Fed. R. Civ. P. 65(a) .....................................................21

Ga. Comp. Rules & Regs. 183-1-20.01 .......................17

Sup. Ct. R. 10 ....................................................1, 13, 27

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STATEMENT OF THE CASE

A. Introduction

Less than one year after this Court decided es-sentially the same issue in Crawford v. MarionCounty Election Board, 553 U.S. __, 128 S. Ct. 1610(2008), Petitioners, contrary to this Court’s "Consider-ations Governing Review on Certiorari," seek to raiseagain the question of whether a State’s requirementof the presentation of a government-issued photo-graphic identification when voting in person violatesthe Equal Protection Clause of the Fourteenth Amend-ment. See Sup. Ct. R. 10. Undoubtedly recognizingthe harmony between the decision of the Court ofAppeals for the Eleventh Circuit and the Crawfordconclusion that no equal protection violation exists aswell as an absence of conflict among the Circuitsconcerning this issue, Petitioners allege that theCourt of Appeals somehow applied the wrong stan-dard of review in reaching its conforming conclusion.Petitioners not only ignore the facts as developed inan extensive bench trial and misstate the reasoningof the Court of Appeals but also fail to raise anysufficient ground, let alone a "compelling reason," forthe Petition to be granted. See id.

As the Petition fails to provide the Court withmost of the relevant facts (and instead provides a "State-ment" that is simply an extension of Petitioners’ legalargument), Respondents provide the Court with anactual statement of the facts and proceedings below.

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B. Statement of Facts

Both before and after the enactment of Georgia’sphoto ID law, Georgia’s registered voters could exer-cise their right to vote in one of two ways: (1) by ab-sentee ballot or (2) at the polls. The photo ID law didnot alter these methods of voting but changed certainprocedures applicable to these processes.

First, both prior and subsequent to the photo IDlaw, a voter could vote before a primary or generalelection by absentee ballot submitted through themail or in person at the registrar’s office or absentee

ballot clerk’s office. See 2003 Ga. Laws 517, 537-39,

§8 35 & 36 (codified at O.C.G.A. 88 21-2-380(b) & -381(2003)). Prior to the enactment of the photo ID re-quirement for in-person voting, a registered voter,however, had to assert a specific statutory reason whyhe or she could not vote in person on the day of theprimary or election in order to cast an absentee bal-lot. See 2003 Ga. Laws 517, 537-38, 8 35 (codified atO.C.G.A. 8 21-2-380(a) (2003)).

As a second option, prior to the enactment of thephoto ID law, a registered voter could vote in personat the polls on the day of the primary or election bypresenting one of seventeen documents specified inthe law.1 See 2003 Ga. Laws 517, 548-49, 848

1 Prior to the enactment of the photo ID law, a voter whocast an absentee ballot in person at the registrar’s office alsowas required to present one of the seventeen forms of identifica-tion in order to vote. See 2003 Ga. Laws 517, 548-49, § 48(codified at O.C.G.A. § 21-2-417(a) (2003)).

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(codified at O.C.G.A. § 21-2-417(a) (2003)). In addition,a voter could vote without presenting any identifica-tion by signing a statement under oath swearing thathe or she was the person identified on the elector’scertificate. Id. (codified at O.C.G.A. §21-2-417(b)(2003)). Accordingly, prior to 2005, other than relianceon the seventeen forms of identification (not all ofwhich contained a photograph of the individual) orthe sworn affidavit of voter, a poll worker in Georgiahad no available methodology to verify that theperson presenting one of these methods of identifica-tion was actually the registered voter whose nameappeared on the voter registration list.2

In 2005, the Georgia General Assembly amendedthe State’s election laws in two significant respects.

2 Although there is no photo ID requirement when votingby mail, to protect against voter fraud, the law requires electionofficials to take a number of steps to ensure that the personvoting by mail is the same person who registered to vote. Uponreceiving an absentee ballot application, a registrar or absenteeballot clerk must record the date of receipt and determine theapplicant’s eligibility to vote. See O.C.G.A. § 21-2-381(b)(1). Ab-sentee ballots are mailed to applicants only after eligibility isdetermined according to law. See O.C.G.A. §§ 21-2-381(b)(2)-(4)& -384(a)(2). When the voted ballot is returned, the registrar orclerk is required to compare the identifying information andsignature of the voter on the absentee ballot envelope with thevoter’s identifying information on both the voter registrationapplication and absentee ballot application. See O.C.G.A. § 21-2-386(a)(1)(B). The records available at the registrar’s office tocompare identifying information for a registered voter who castsan absentee ballot are not available to the poll workers onprimary or election day.

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The first change permitted registered voters to votean absentee ballot by mail without having to state anexcuse for not voting in person on the day of a pri-mary or election. See O.C.G.A. § 21-2-380(b). Thischange simply expanded the opportunity to vote bymail; it did not alter the documentation required toobtain an absentee ballot or require a photo ID to be

submitted with the mail-in ballot. See id. § 21-2-381(a)(1)(C).

Second, in an effort to protect against in-personvoter fraud,~ the state legislature changed the

3 Petitioners attempt to make issue of the facts that Geor-

gia’s photo ID law contains no "legislative findings or a state-ment of legislative purpose" and there was no testimony frommembers of the legislature as to the intent to prevent voterfraud. See Petition at: 3. Unlike the United States Congress,which has only delegated powers, the Georgia General Assem-bly’s power is plenary and "is absolutely unrestricted in itspower to legislate, so long as it does not undertake to enactmeasures prohibited by the State or Federal Constitution."Bryan v. Ga. Pub. Serv. Comm’n, 238 Ga. 572, 573, 234 S.E.2d784, 785 (1977) (quoting Sears v. State, 232 Ga. 547, 554, 208S.E.2d 93, 99 (1974)). Moreover, testimony of members of theGeorgia General Assembly is inadmissible to explain the reasonsfor the enactment of specific legislation. See Jackson v. Delk, 257Ga. 541, 543, 361 S.E.2d 370, 372 (1987); Stewart v. Atlanta BeefCo., 93 Ga. 12, 18 S.E. 981 (1893). Finally, unlike the Congress,Georgia has no official legislative history for the enactment ofstatutes, Dortch v. Atlanta Journal, 261 Ga. 350, 355 n.4, 405S.E.2d 43, 47 n.4 (1991) (Smith, J. dissenting), so the intent ofstatutes is gleaned from the plain meaning of the words used inlight of the "old law," the "evil" the legislature intends toaddress, and the "remedy" applied by the operation of the newlaw. See O.C.G.A. § 1-3-1(a) & (b).

manner in which registered voters who vote in personcould verify their identities. Registered voters whochose to vote in person were required to present oneof the following forms of government-issued identifi-cation:

¯ a Georgia driver’s license issued by theappropriate State agency;

¯ a valid photo ID card issued by anyagency or branch of the United States orany State government agency;

¯ a valid United States passport;

¯ a valid employee photo ID card issued bythe United States or a Georgia state orcounty government agency;

¯ a valid photographic United States mili-tary identification card; or

¯ a valid tribal photo ID card.

O.C.G.A. § 21-2-417(a). An in-person voter unable toproduce any of these alternative forms of photo IDwould be permitted to vote a provisional ballot, andthat ballot would be counted if the registrar was ableto verify current and valid identification of the reg-istered voter no later than two days after the pollsclose. Id.

For those voters who did not possess one of theacceptable forms of photo ID and still wished to votein person, photo ID cards were made available atservice centers operated by the Georgia Departmentof Driver Services ("DDS"). The 2005 photo ID law

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imposed a fee for such ID cards, but after a federalcourt entered a preliminary injunction,4 the state legis-

lature in 2006 repealed the fee provision and pro-vided that photo ID cards would be available free ofcharge in each county voter registrar office as well as

all DDS service centers. See O.C.G.A. §§ 21-2-417 &417.1; see also id. § 40-5-103(d).

C. Proceedings Below

On September 19, 2005, a group of non-profitcorporations, organizations, and associations, alongwith two registered voters, filed a complaint against agroup of county election officials and Cathy Cox, inher individual and official capacities as Georgia’sthen-Secretary of State and Chair of the State Elec-tion Board.~ Common Cause/Ga. v. Billups, 406 F. Supp.

2d 1326, 1328 (N.D. Ga. 2005) ("Common Cause/Ga./"). These plaintiffs alleged, in part, that Georgia’sphoto ID law enacted in 2005 violated the Fourteenthand Twenty-Fourth Amendments to the United StatesConstitution. Id.

4 See infra page 7.

~ Shortly after the case was filed, one of the original tworegistered voters in the federal action dismissed his claims, andthe State Election Board was added as a defendant. In addition,after the 2006 general election, Karen C. Handel succeededCathy Cox as Secretary of State of Georgia and Chair of theState Election Board. See Common Cause/Ga. v. Billups, 504F. Supp. 2d 1333, 1337-38, 1341 (N.D. Ga. 2007).

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On October 18, 2005, the District Court grantedthe plaintiffs’ motion for preliminary injunction andenjoined the enforcement of the 2005 photo ID law.Common Cause/Ga. I, 406 F. Supp. 2d at 1377. First,the District Court found that, based solely on theevidence before it on the motion for preliminary in-junction, there appeared to be a significant burden onthe right to vote. Specifically, the District Court notedits concerns that (1) because the DDS service centersoffering the photo ID cards were "not located in everyGeorgia county," the centers were not readily acces-sible to those who might need a photo ID to vote inperson, id. at 1362-63, and (2) the State had notadequately educated voters about the new photo IDlaw or the changes to the absentee ballot provisionspermitting absentee voting by mail without having toprovide an excuse, id. at 1364. Second, the DistrictCourt found that the fee for a photo ID card issued byDDS constituted a poll tax in violation of the Twenty-Fourth Amendment to the United States Constitu-tion. Id. at 1369-70.

Following the amendments by the state legisla-ture in 2006 which eliminated the fees charged forphoto ID cards and expanded the locations at whichsuch ID cards were available to all 159 Georgiacounties ("the 2006 Photo ID Act"), the plaintiffsasserted the same claims against the 2006 Photo IDAct as they raised in their original complaint againstthe 2005 photo ID law. Common Cause/Ga. v. Billups,439 F. Supp. 2d 1294, 1298 (N.D. Ga. 2006) ("Com-mon Cause/Ga. II"). On July 14, 2006, the District

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Court granted a preliminary injunction, but only withrespect to the July 18, 2006 primary and primaryrun-off elections. The District Court found that theState’s limited efforts to educate voters by runningpublic service announcements two weeks before theprimary and distributing a letter at the polls on theday of the primary did not give voters adequate timeto become aware of the 2006 Photo ID Act’s require-ments. Id. at 1346. Therefore, the District Courtconcluded that the plaintiffs had demonstrated a like-lihood of success that the 2006 Photo ID Act undulyburdened the right to vote in those specific elections.6

Id. at 1360. The District Court, however, emphasizedthe limitations on the reach of its order and offeredthe following guidance:

In issuing this Order, the Court does not in-tend to imply that all Photo ID requirementswould be invalid or overly burdensome onvoters. Certainly, the Court can conceive ofways that the State could impose andimplement a Photo ID requirement withoutrunning afoul of the requirements of theConstitution. Indeed, if the State allowssufficient time for its education efforts withrespect to the 2006 Photo ID Act and if theState undertakes sufficient steps to inform

~ The District Court concluded that the plaintiffs had nosubstantial likelihood of success on the merits of their poll tax orCivil Rights Act claims. Common Cause/Ga. H, 439 F. Supp. 2dat 1355, 1357-58.

voters of the 2006 Photo ID Act’s require-ments before future elections, the statutemight well survive a challenge for such fu-ture.

Id. at 1351.

Two months later, on September 15, 2006, theDistrict Court preliminarily enjoined the applicationof the 2006 Photo ID Act with respect to the Sep-tember 2006 special elections. See Common Cause/Ga. v. Billups, 504 F. Supp. 2d 1333, 1340-41 (N.D.Ga. 2007) ("Common Cause/Ga. III"). Again, the Dis-trict Court stressed that it was not ruling on anyissue other than the appropriateness of a preliminaryinjunction for the September 2006 special electionand reiterated its earlier guidance that if the State

allowed sufficient time for its education efforts beforean upcoming primary or election, the Act might wellsurvive a constitutional challenge. Id. at 1349-50.

The District Court conducted a bench trial on themerits on August 22-24, 2007. At trial, the plaintiffsproceeded solely on their claim that the 2006 PhotoID Act unduly burdened their right to vote in viola-tion of the Equal Protection Clause of the FourteenthAmendment to the United States Constitution. Id.at1342. State defendants, however, offered proof thatbeginning in early 2007 and up through the time oftrial, Georgia’s Secretary of State engaged in, as theDistrict Court subsequently concluded, a "serious,concerted effort" to educate the State’s voters con-cerning the requirements of the 2006 Photo ID Act,

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the availability of free photo ID cards, and the abilityto vote absentee by mail without a photo ID. Id. at1365-68, 1380.

By Order dated September 6, 2007, the DistrictCourt dismissed the plaintiffs’ case in its entirety anddirected that judgment be entered in favor of the

State defendants. First, the District Court held thatthe plaintiffs had failed to prove by a preponderanceof the evidence that the remaining organizationalplaintiff or the recently-added individual plaintiffs7

had standing to sue. Id. at 1371-74. Second, the Dis-trict Court concluded that even if standing existed

and the merits of the action were considered, the2006 Photo ID Act imposed no undue burden on theright to vote. Id. at 1377-80. The District Court foundthat the plaintiffs failed to produce admissible evi-dence to establish that the character and magnitudeof the asserted injury was significant. Id. at 1377.The District Court also found that the State defen-dants’ "exceptional" efforts to educate voters aboutthe requirements of the 2006 Photo ID Act under-taken after the entry of the earlier preliminary

7The District Court dismissed the original remainingindividual plaintiff due to lack of standing after the SupremeCourt of Georgia dismissed a lawsuit challenging the 2006 PhotoID Act on state constitutional grounds. Like the plaintiff in thestate lawsuit, the remaining federal individual plaintiff pos-sessed the same government-issued photo ID which could beused for in-person voting. See Common Cause/Ga. III, 504F. Supp. 2d at 1341; Perdue v. Lake, 282 Ga. 348, 647 S.E.2d 6(2007).

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injunctions belied the plaintiffs’ contention thatvoters were unaware of those requirements. Id. at1378-79. Given that the plaintiffs "proffered preciouslittle admissible evidence" to support their allegationthat the photo ID requirement was burdensome and"failed to uncover anyone" who could attest to the factthat they would be prevented from voting due to thatrequirement, the District Court held that the 2006Photo ID Act imposed no undue burden upon theright to vote and that the Act was a reasonable andlegitimate enactment to satisfy the State’s interest inpreventing voter fraud. Id. at 1378, 1380-81.

Despite apocalyptic assertions of wholesalevoter disenfranchisement, Plaintiffs have pro-duced not a single piece of evidence of anyidentifiable registered voter who would beprevented from voting pursuant to [the 2006Photo ID Act] because of his or her inabilityto obtain the necessary photo identification.Similarly, Plaintiffs have failed to produceany evidence of any individual.., who wouldundergo any appreciable hardship to obtainphoto identification in order to be qualified tovote.

Id. at 1380 (quoting Ind. Democratic Party v. Rokita,458 F. Supp. 2d 775, 822-23 (S.D. Ind. 2006), aff’dsub nom. Crawford v. Marion County Election Bd.,

472 F.3d 949 (7th Cir. 2007), aff’d, 128 S. Ct. 1610)(alterations in original and emphasis added).

On January 14, 2009, the Court of Appeals forthe Eleventh Circuit held that the District Court did

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not abuse its discretion when it declined to enjoin the

enforcement of the 2006 Photo ID Act. CommonCause/Ga. v. Billups, 554 F.3d 1340, 1355 (llth Cir.2009) ("Common Cause/Ga. /V"). Although the Courtof Appeals disagreed with the District Court that theNAACP and individual voters lacked standing tochallenge the photo ID requirement, the Court ofAppeals concluded that the District Court properlyapplied the flexible standard from Anderson v. Cele-

brezze, 460 U.S. 780 (1983), and Burdick v. Takushi,504 U.S. 428 (1992), and correctly held that "theburden imposed on Georgia voters who lack photoidentification was not undue or significant." Common

Cause/Ga./V, 554 F.3d at 1354.

The Court of Appeals agreed with the DistrictCourt that the burden imposed upon Georgia votersby the Act was not "undue or significant" and that theinability to locate a single voter who could not obtaina free photo ID card or otherwise vote belied theplaintiffs’ claims tlhat the requirements of the lawwere burdensome. Id. Moreover, "[t]he interest ofGeorgia in detecting and deterring voter fraud is a’valid neutral justification[ ]’ that this Court cannotignore." Id. at 1355 (quoting Crawford, 128 S. Ct. at1624) (brackets in original). Consequently, the Courtof Appeals held that the District Court did not abuseits discretion when it denied the plaintiffs’ request fora permanent injunction against the enforcement ofthe Act and rendered judgment in favor of the State’s

officials. Id. at 1355, 1357.

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REASONS FOR DENYING THE PETITION

The decision below does not conflict with adecision of this Court or any Court of Appeals, nordoes it implicate an important federal question thathas not been decided by this Court. In fact, just lastterm, this Court in Crawford v. Marion CountyElection Board upheld Indiana’s photo ID law for in-person voting against a similar equal protection chal-lenge. Petitioners have not carried their burden ofdemonstrating any "compelling reasons" for the Peti-tion to be granted. See Sup. Ct. R. 10.

The Court of Appeals Properly Upheld Geor-gia’s Photo ID Law Based on This Court’s Re-cent Decision in Crawford v. Marion CountyElection Board.

The Court of Appeals properly rejected Peti-tioners’ challenge to Georgia’s 2006 Photo ID Actbased on this Court’s decision last term in Crawfordv. Marion County Election Board, 553 U.S. __, 128S. Ct. 1610 (2008). In Crawford, this Court upheld amore restrictive Indiana photo ID law against thesame equal protection challenge at issue in this case.Petitioners attempt to distinguish Crawford by em-phasizing that the record is more complete in thiscase because a trial on the merits occurred as opposedto a ruling on summary judgment. However, the com-pleteness of this record and the lack of any evidenceto establish a significant burden upon the right tovote underscores why Crawford is equally dispositiveof the issues here.

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First, this Court noted in Crawford that theplaintiffs had not presented a single voter who hadbeen harmed by the photo ID law. See 128 S. Ct. at1614 (noting that the district judge found that theplaintiffs had "not introduced evidence of a single,individual Indiana resident who will be unable tovote as a result of SEA 483 or who will have his orher right to vote unduly burdened by its require-ments"). After two years of litigation in the DistrictCourt and a full trial on the merits, the evidence inthis case suffered from the same lack of actual harmto any voter. See Common Cause/Ga. IV, 554 F.3d at1354 (stating that Petitioners, "despite their bestefforts, failed to identify a single individual whowould be unable to vote because of the Georgia stat-ute or who would face an undue burden to obtain afree voter identification card").

The only alleged harm to any registered voterswas that if they exercised their right to vote in per-son, as opposed to voting absentee by mail, theywould be required to obtain a free photo ID card ifthey did not already possess an otherwise qualifyingphoto ID. As this Court explained in Crawford, "theinconvenience of making a trip to the [appropriategovernment agency], gathering the required docu-ments, and posing for a photograph surely does notqualify as a substantial burden on the right to vote,or even represent a significant increase over theusual burdens of voting." Crawford, 128 S. Ct. at1621; see Common Cause/Ga. III, 504 F. Supp. 2d at1377-78, 1380-81 (addressing the ability of each of the

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individual Petitioners and two additional trial wit-nesses to obtain a photo ID without difficulty).

Second, both at trial and in their Petition, Peti-tioners contended that "hundreds of thousands" ofGeorgia voters lack a driver’s license, see Petition at17-18, but, as the Court of Appeals explained, thedata match inquiry that produced a list of voterswho allegedly lacked driver’s licenses was seriouslyflawed. See Common Cause/Ga. IV, 554 F.3d at 1354("The data relied on by the NAACP and voters areincomplete and unreliable. The data matches fail toaccount for other forms of identification that areacceptable under the statute, including the free voteridentification cards."). The data relied upon byPetitioners also contained numerous inaccuracies inwhich persons with driver’s licenses (including theDistrict Judge) erroneously appeared on the datamatch list as not having a driver’s license. See id.Just as in Crawford, Petitioners here have failed toprovide any evidence of "the number of registeredvoters without photo identification," and this Courthas stressed that mere supposition cannot substitutefor actual "concrete evidence" of a real "burdenimposed on voters who currently lack photo identi-fication." 128 S. Ct. at 1622.

Third, Petitioners attempt to distinguish Craw-ford by saying that there was no record evidence inthat case of discriminatory impact of African-Americans.See Petition at 18. That distinction, however, cannotbe made because, in fact, Petitioners’ case also lackedany admissible evidence on that issue. See Common

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Cause/Ga. /V, 554 F.3d at 1354 (noting that Peti-tioners argued that the statute affects "between 5 and

10 percent of all registered voters, largely minorities,but the record tells a different story") (emphasis added).

Indeed, in addition to not identifying a singleindividual - of any race - who would be preventedfrom voting, see id., the District Court found thetestimony of Petitioners’ expert witness on the issue

of discriminatory impact to be so unreliable that thecourt excluded it pursuant to this Court’s precedent

in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509U.S. 579 (1993), and its progeny. See Common Cause/Ga. III, 504 F. Supp. 2d at 1371, 1378.

Finally, Petitioners contend that the politicalparty-line vote for passage of Georgia’s photo ID lawsupports the granting of their Petition, notwithstand-ing that in Crawford this Court explained that par-tisanship provided no basis for overturning the

Indiana statute. See Crawford, 128 S. Ct. at 1624.Petitioners’ argument that the Georgia photo ID lawwas enacted for partisan advantage is no differentthan the one raised in Crawford. In rejecting thisargument, the Court of Appeals expressly applied thisCourt’s analysis from Crawford:

The NAACP and voters also argue that thestatute was "adopted to gain partisan advan-tage," but the Supreme Court dismissed therelevance of partisan interests in Crawford."[I]f a nondiscriminatory law is supported byvalid neutral justifications, those justifi-cations should, not be disregarded simply

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because partisan interests may have pro-vided one motivation for the votes of individ-ual legislators." The interest of Georgia indetecting and deterring voter fraud is a "val-id neutral justification[]" that this Courtcannot ignore.

Common Cause/Ga /V, 554 F.3d at 1355 (quotingCrawford, 128 S. Ct. at 1623-24) (brackets in original

and internal citations omitted).

In contrast to Petitioners’ lack of admissibleevidence regarding the Georgia photo ID law’s burdenon the State’s voters, the State of Georgia undertookgreat efforts to ensure that no one is prevented fromvoting because of the photo ID law. In fact, JusticeBreyer’s dissent from the Crawford decision itselfrecounts these efforts and recognizes that there is alesser burden imposed by the Georgia law than by theIndiana law. 128 S. Ct. at 1644-45. As Justice Breyerexplained, "[b]y way of contrast, . .. Georgia [has] putinto practice photo ID requirements significantly lessrestrictive than Indiana’s." Id. at 1644 (emphasisadded).

Justice Breyer cited four major examples tosupport his conclusion. Initially, Justice Breyer notedthat Georgia "accepts in addition to proof of voterregistration a broader range of underlying docu-mentation than does Indiana." Id. (citing O.C.G.A.§ 21-2-417 and Ga. Comp. Rules & Regs. 183-1-20.01).Justice Souter’s dissent in Crawford, joined by Jus-tice Ginsburg, likewise recognizes that the burdens ofobtaining photographic identification are less in

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Georgia than Indiana because one can obtain a Geor-gia voter identification card even without presenta-tion of a birth certificate. See id. at 1635 n.26 ("Onlyone other State, Georgia, currently restricts voters tothe narrow forms of government-issued photo identifi-cation. But a birth certificate is not needed to get aGeorgia voter identification card.") (citing O.C.G.A.§§ 21-2-417 & -417.1 and Ga. Comp. Rules & Regs.

183-1-20.01).

Second, no person lacking a photo ID is pro-hibited from voting in Georgia because Georgia hasno-excuse-required absentee voting, and any Georgiavoter can vote absentee by mail without needing topresent photographic identification. As Justice Breyerexplained, "[w]hile Indiana allows only certain groupssuch as the elderly and disabled to vote by absenteeballot, in Georgia any voter may vote absentee withoutproviding any excuse, and (except where required byfederal law) need not present a photo ID in order to doso." Id. at 1645 (emphasis added).

Third, Indiana law provides that, although "[a]voter who is indigent ... may cast a provisionalballot," the ballot "will be counted only if she executesan appropriate affidavit before the circuit court clerkwithin 10 days following the election." Id. at 1613-14(citing Ind. Code Ann. §§ 3-11.7-5-1 & -2.5(c)). JusticeBreyer noted that, in contrast, "Georgia [does not]insist[], as Indiana does, that indigent voters traveleach election cycle to potentially distant places for the

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purposes of signing an indigency affidavit." Id. at1645.

Fourth, Justice Breyer emphasized the DistrictCourt’s finding of Georgia’s "serious, concerted effortto notify voters who may lack Photo ID cards of thePhoto ID requirement, to inform those voters of theavailability of free [State-issued] Photo ID cards orfree Voter ID cards, to instruct the voters concerninghow to obtain the cards, and to advise the voters thatthey can vote absentee by mail without a Photo ID."Id. (quoting Common Cause/Ga. III, 504 F. Supp. 2dat 1380) (brackets in original).

This case, when compared with Crawford, showsthat the same issues decided there are again beingbrought before this Court by the Petition. Indeed,when the actual evidence from the bench trial is con-sidered, the establishment of the lack of any signifi-cant burden among registered voters by the imple-mentation of Georgia’s photo ID law is even strongerthan the evidence which led this Court to upholdIndiana’s photo ID law in Crawford.

2O

II. The Court of Appeals’ Decision Is Con-sistent With the Decisions of This Courtand Other Courts of Appeals Which Estab-lish That a State’s Legitimate Interest inPreventing Voter Fraud Outweighs the Min-imal Burden Imposed on Voters by a PhotoID Requirement for In-Person Voting.

Anderson v. Celebrezze, 460 U.S. 780 (1983),provides that Petitioners initially must demonstrate

actual harm, and a court must first consider the"character and magnitude" of the asserted injury. Id.at 789. Petitioners :provided the District Court with apaucity of admissible evidence that Georgia’s 2006Photo ID Act imposed any burden upon voting, otherthan the minimal burden that some individuals whodesired to vote in person and lacked a photo ID wouldneed to visit their county elections registrar or a DDSoffice to obtain a free photo ID card.

In fact, notwithstanding Petitioners’ statementthat "the decisions of a court must be based on admis-sible evidence in the record, and not [on] unprovenassumptions or hearsay," the allegations on whichthey rely throughout their Petition are not the admis-sible evidence presented at trial, but rather consist ofwhat was presented at the preliminary injunctionhearings and ultimately was shown at trial not to be

correct. See Petition at 9, 11-14 & 17-19. As theDistrict Court noted in its decision following thebench trial:

Although Plaintiffs contended at the prelimi-nary injunction hearings that many voters

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who do not have driver’s licenses, passports,or other forms of photographic identificationhave no transportation to a voter registrar’soffice or DDS service center, have impair-ments that preclude them from waiting inoften-lengthy lines to obtain Voter ID cardsor Photo ID cards, or cannot travel to aregistrar’s office or a DDS service center dur-ing those locations’ usual hours of operationbecause the voters do not have transporta-tion available, Plaintiffs failed to produceadmissible evidence to that effect at trial.

Common Cause/Ga. III, 504 F. Supp. 2d at 1377(emphasis added). Moreover, the District Court notedthat some of the very statements in its preliminaryinjunction orders on which Petitioners rely, see Peti-tion at 11, were "speculation ... not binding on theCourt" that "frankly, proved to be inaccurate.’’8 Id. at1381 n.9.

Notwithstanding Petitioners’ assertions of hun-dreds of thousands of voters who lack photo ID forin-person voting, the only evidence that Petitioners

8 Additionally, Petitioners’ statement that the DistrictCourt’s factual findings at the preliminary injunction hearings"were based on testimony and documents that would have been’admissible at trial’ and were a ’part of the record,’" Petition at12 n.2 (citing Fed. R. Civ. P. 65(a)), is not correct. The DistrictCourt itself noted that the declarations of several Georgia voterswho lacked photo ID cards, which Petitioners proffered inconnection with the 2005 and 2006 preliminary injunctionhearings, were hearsay that had not been rendered admissibleat trial. See Common Cause/Ga. III, 504 F. Supp. 2d at 1351.

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presented of any harm caused by the 2006 Photo IDAct was testimony of four individuals - two indi-vidual Petitioners who testified at trial and two otherwitnesses who testified by deposition - all of whomsaid they could obtain a free photo ID card for votingwithout much difficulty.

For example, one of the individual Petitionerssaid that her family and friends often drive her wher-ever she needs to go and could drive her to her countyregistrar’s office to get a free photo ID card for voting,and she would, in fact, get a free photo ID card forvoting if the law was upheld. See id. at 1348-49, 1377-

78. The second individual Petitioner said he has notvoted in over twenty years, but his daughter or afriend drives him where he needs to go, and hisdaughter would drive him to his polling place if hevoted again, which is about the same distance fromhis home as his county registrar’s office where he canobtain a free photo ID card for voting. See id. at 1350-51, 1377-78. He also said his daughter could assisthim with voting an absentee ballot. See id. at 1350.One of the other witnesses said that she was able todrive with family or friends to obtain a free photo ID

card, and the final witness said that he could walk tohis county registrar’s office only one-quarter mileaway without hardship to obtain a free photo ID cardfor voting. See id. at 1351-54, 1377-78.

Accordingly, the only admissible evidence thatPetitioners provided at trial was that four Georgiaregistered voters would simply be required to obtain afree photo ID card for voting in a one-time trip to

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their county voter registrar’s office.~ This Court ex-plained in Crawford that "the inconvenience of mak-ing a trip to the [appropriate government agency],gathering the required documents, and posing for aphotograph surely does not qualify as a substantialburden on the right to vote, or even represent asignificant increase over the usual burdens of voting."Crawford, 128 S. Ct. at 1621.

Judged against this minimal burden to voters isthe State of Georgia’s compelling interest in pre-serving the integrity of its elections and protectingagainst voter fraud. See, e.g., Purcell v. Gonzalez, 549U.S. 1, 4 (2006) (quoting Eu v. San Francisco County

Democratic Cent. Comm., 489 U.S. 214, 231 (1989))("A State indisputably has a compelling interest inpreserving the integrity of its election process."),quoted in Common Cause/Ga. III, 504 F. Supp. 2d at1381. As this Court has explained:

Confidence in the integrity of our electoralprocesses is essential to the functioning ofour participatory democracy. Voter frauddrives honest citizens out of the democraticprocess and breeds distrust of our govern-ment. Voters who fear their legitimate voteswill be outweighed by fraudulent ones willfeel disenfranchised. "[T]he right of suffragecan be denied by a debasement or dilutionof the weight of a citizen’s vote just as

9 Georgia has 159 counties, more than any other State

except Texas.

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effectively as by wholly prohibiting the freeexercise of the franchise."

Purcell, 549 U.S. at 4 (quoting Reynolds v. Sims, 377U.S. 533, 555 (1964)), quoted in Common Cause/Ga.III, 504 F. Supp. 2d at 1381; see Crawford, 128 S. Ct.at 1619 ("There is no question about the legitimacy orimportance of the State’s interest in counting only thevotes of eligible voters.").

Without any support, Petitioners argue for an in-creased standard to support a State’s justification forenacting a photo ID law. However, this Court inCrawford upheld Indiana’s photo ID law despite thefact that the Indiana statute addressed only in-person voter impersonation at the polls when "[t]herecord contain[ed] no evidence of any such fraudactually occurring in Indiana at any time in its his-tory." 128 S. Ct. at 1619 (emphasis added). Moreover,

based on the facts of this case, the District Courtspecifically found that "the evidence in the record issufficient to support a finding that [Respondents]introduced the 2006 Photo ID Act in an effort toprevent fraud in w)ting." Common Cause/Ga. III, 504F. Supp. 2d at 1381 n.8.

As the Court of Appeals explained in applyingthis Court’s precedent from Crawford, Anderson, andBurdick, although the State of Georgia must identify

the interests thal~ it seeks to further, no actualevidentiary showing is required:

Anderson requires a state to "identif[y the]... interests that it seeks to further by its"

25

regulation, but Anderson does not requireany evidentiary showing or burden of proofto be satisfied by the state government. InAnderson, the Supreme Court considered theinterests posited by Ohio - voter education,equal treatment of all candidates, and po-litical stability - but did not discuss anyrecord evidence in support of those statedinterests. Nor do the more recent decisions inBurdick and Crawford place an evidentiaryburden on the state when defending a votingregulation.

Common Cause/Ga. IV, 554 F.3d at 1353 (bracketsand ellipsis in original and citations omitted).

This Court "did not require Indiana to provespecific instances of voter fraud" in Crawford, andthere likewise is no basis to place such a requirementon Georgia in this case. Id. In fact, this Court hasemphasized:

Evils in the same field may be of differentdimensions and proportions, requiring differ-ent remedies. Or so the legislature maythink. Or the reform may take one step at atime, addressing itself to the phase of theproblem which seems most acute to thelegislative mind. The legislature may selectone phase of one field and apply a remedythere, neglecting the others.

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,489 (1955) (emphasis added and citations omitted).

As the Court stated in Crawford, "[w]hile the mosteffective method of preventing election fraud may

26

well be debatable, the propriety of doing so is per-fectly clear." Crawfi~rd, 128 S. Ct. at 1619.

Additionally, Georgia has put into place severalprocedures to mitigate any burden that the photo IDrequirement might impose. First, individuals withouta photo ID for in-person voting can vote absentee bymail without having to provide an excuse why theycannot vote on the day of the primary or election.Common Cause/Ga. III, 504 F. Supp. 2d at 1379; seeCrawford, 128 S. Ct. at 1645 (Breyer, J., dissenting)("[I]n Georgia any voter may vote absentee withoutproviding any excuse, and (except where required byfederal law) need aot present a photo ID in order todo so."). Second, State defendants presented evidence

at trial of their "serious, concerted effort" to educatevoters about the photo ID requirement, which JusticeBreyer’s dissent :in Craw ford references in distin-guishing Georgia’s law from Indiana’s. CommonCause/Ga. III, 504 F. Supp. 2d at 1380, quoted inCrawford, 128 S. Ct. at 1645. Third, anyone inGeorgia who shows up at the polls on an election daywithout a valid photo ID can vote a provisional ballot.Common Cause/Ga. III, 504 F. Supp. 2d at 1344(quoting O.C.G.A.. § 21-2-417(b)); see Crawford, 128S. Ct. at 1621 ("The severity of that burden is, ofcourse, mitigated by the fact that, if eligible, voterswithout photo identification may cast provisionalballots that will ultimately be counted.").

In short, as the Court of Appeals recognized, the"insignificant burden" that the Georgia photo ID lawimposes is outweighed by the State’s interest in

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preserving the integrity of its elections and the seri-ous efforts that the State has taken to mitigate eventhe minimal burden of the law:

The insignificant burden imposed by theGeorgia statute is outweighed by the inter-ests in detecting and deterring voter fraud.Because the burden on Georgia voters is"slight," the state interest need not be "com-pelling ... to tip the constitutional scales inits direction." The legitimate state interest inpreventing voter fraud, as recognized inCraw ford, is more than "sufficient to out-weigh the limited burden" of producing photoidentification.

Common Cause/Ga./V, 554 F.3d at 1354-55 (quotingBurdick, 504 U.S. at 439-40) (ellipsis in original).

Petitioners have failed to state a compelling rea-

son why their Petition should be granted. See Sup.Ct. R. 10. The Court of Appeals properly analyzed andrejected Petitioners’ challenge to the 2006 Photo IDAct based on this Court’s holding in Crawford. Togrant this Petition would both alter the role of thisCourt in reviewing decisions of the Courts of Appealsand violate the most basic notions regarding theimportance of evidence, not mere unprovenallegations, in our system of jurisprudence.

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CONCLUSION

For the reasons set forth above, the petition for awrit of certiorari should be denied.

Respectfully submitted,

MARK H. COHEN*

TROUTMAN SANDERS LLP

5200 Bank of America Plaza600 Peachtree Street, N.E.Atlanta, Georgia 30308(404) 885-3597*Counsel of Record

THURBERT E. BAKERAttorney General of GeorgiaDENNIS R. DUNNDeputy Attorney GeneralSTEFAN E. RITTERSenior Assistant

Attorney GeneralSTATE LAW DEPARTMENT

40 Capitol Square, S.W.Atlanta, Georgia 30334(404) 656-5614

ANNE W. LEWIS

STRICKLAND BROCKINGTON

LEWIS LLP1170 Peachtree Street, N.E.,

Suite 2000Atlanta, Georgia 30309(678) 347-2200

Attorneys for RespondentsKaren C. Handel and theState Election Board