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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 20-13730 & 20-14067
____________________
DONNA CURLING,
DONNA PRICE,
JEFFREY SCHOENBERG,
COALITION FOR GOOD GOVERNANCE,
a nonprofit corporation organized and existing
under Colorado law,
LAURA DIGGES, et al.,
Plaintiffs-Appellees,
versus
BRAD RAFFENSPERGER,
in his official capacity as Secretary of State and
the Chair of the Georgia State Election Board,
REBECCA N. SULLIVAN,
in her official capacity as a Member
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2 Opinion of the Court 20-13730, 20-14067
of the Georgia State Election Board,
DAVID J. WORLEY,
in his official capacity as a Member
of the Georgia State Election Board,
AHN LE,
in her 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, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-02989-AT
____________________
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
GRANT, Circuit Judge:
Though the most recent and well-publicized election
challenges relate to the 2020 presidential election, those were not
the first. Here, we consider the fruit of an earlier set. A voting
advocacy group and some of its members doubted that their
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20-13730, 20-14067 Opinion of the Court 3
favored candidate lost a 2017 congressional runoff, and challenged
the election’s outcome. The group was especially concerned about
hacking risks and similar threats that it saw as inherent in Georgia’s
electronic voting system; that system, in turn, had been
implemented by the State after the 2000 election revealed certain
infirmities in paper balloting. Over time the State again replaced
its voting system, but the plaintiffs’ lawsuit expanded, eventually
including a variety of new claims.
Two are at issue here. First, the plaintiffs say that Georgia
should print hard-copy backup lists of voters only after early voting
has completed—not sooner, as occurs under current state practice.
That way, the argument goes, wait times will be shorter if the
electronic check-in system fails; because the list will have more
complete information on who has already voted, fewer provisional
ballots or double-checks to confirm voter eligibility will be
required. The district court agreed, and ordered the State to set a
new date for printing and distributing backup voter lists. Perhaps
on a blank slate this would be a reasonable idea. Or perhaps the
State is right that the administrative burdens of the later print date
outweigh the benefits. Either way, because the plaintiffs did not
show that the State’s current print-date policies severely burden
the right to vote, deciding which policy to implement is not our
call. As with other reasonable, nondiscriminatory voting rules, we
consider not what the best policy would be, but whether the State’s
administrative concerns justify the one in place. Here, they do.
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Second, the plaintiffs say that the State’s ballot scanners
should be set to recognize, or at least flag for review, even very
slight marks—despite ballot instructions directing voters to fill in
the ovals rather than check or cross through them—because some
voters might not read the instructions. Again, the district court
agreed with the plaintiffs’ contentions. But this time, the court did
not issue injunctive relief; it said that it would consider proposals
after the parties had conferred. Because the district court never
issued the promised injunction, we have nothing to review, so we
dismiss the State’s appeal on that front.
I.
In April 2017, after the representative from Georgia’s Sixth
Congressional District was appointed to serve as a cabinet
secretary, the State held an out-of-cycle election to fill the seat.1
The Coalition for Good Governance—a national voting advocacy
organization—did not trust the results. It organized several
lawsuits targeting Georgia elections, including the one here: an
action contending that the “precise outcome” of the runoff for the
Sixth District seat was unknowable because the State’s electronic
voting system was vulnerable to hacking, perhaps even to a
1 Certified election results reflect that Republican candidate Karen Handel
won the June 2017 runoff election with 51.78% of the vote; her opponent,
Democratic candidate (and now Senator) Jon Ossoff, received 48.22% of the
vote. See June 20, 2017 Special Election Runoff: Official Results, GA – Election
Night Reporting (June 26, 2017, 5:37 PM),
https://results.enr.clarityelections.com/GA/70059/Web02-state/#/.
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Russian cyberattack. For that reason the Coalition (along with
several individual plaintiffs) asked for a declaration that the runoff
election was void and for an injunction against the system’s future
use. The replacement, they suggested, should be an all-paper
balloting system—in their view, “the only safe method for
conducting the election.”
While the suit was pending, the State replaced its entirely
electronic voting machines with new machines from a new vendor:
“electronic ballot markers” that print out paper ballots “marked
with the elector’s choices in a format readable by the elector.”
O.C.G.A. § 21-2-300(a)(2). The paper ballots are then “tabulated by
using ballot scanners.” Id. In other words, the new machines allow
voters to select their choices electronically, confirm those choices
on a printed ballot, and then insert the ballot into a scanner for
tabulation.
So Georgia had moved on from the voting machines that
were the target of the original challenge. No matter—the plaintiffs
amended their complaint and moved to enjoin the use of the new
election equipment instead. The Coalition’s top request remained
that the State must return to a paper-only balloting system because
of hacking risks. During the litigation, though, the Coalition and
some of its members expanded their targets beyond the original
security-based challenges to the voting machines. The Coalition
added alternative requests for significant changes to the voting
system, even if not the complete overhaul that an all-paper
mandate would entail. These included requiring the State to
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disable any software that might collect identifying information,
create a plan to resolve mismatches between electronic voter
check-in lists and the voter registration database, change the print
date for the hard-copy backup check-in lists used at polling places,
increase the sensitivity of the scanners that tabulate ballots, and
implement “meaningful pre-certification audits of election results.”
The district court’s reaction was mixed; it granted some but
not all of the requested relief. Two of the court’s decisions are
relevant here: its rulings on print dates and scanner settings.
Shortly after the district court entered its partial relief, we
stayed the district court’s judgment pending appeal. Now we
vacate the district court’s preliminary injunction on the state’s
paper backup check-in list, as well as its related directives on
provisional and emergency ballots, and we dismiss the appeal with
respect to the scanner order.
A.
The district court first ordered the State to change the date
on which it prints and distributes backup lists for checking in voters
on Election Day. The State’s primary way to check in voters is with
computer tablets containing lists of eligible voters in each precinct.
These are also known as “PollPads.” To create the PollPad check-
in lists, the State transfers information from voter-registration
applications—each voter’s “name, address, date of birth, and
district combination information”—into an electronic database. As
early voting proceeds during the weeks before Election Day, the
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database (and, by extension, the PollPads) are updated to reflect
whether voters have requested absentee ballots, voted absentee, or
voted early.
The Coalition offered evidence of a wide variety of
problems with the PollPads in various precincts during various
elections. See, e.g., Doc. 755, at 104–05 (PollPad incorrectly
indicated that a woman had already voted, requiring the poll
manager to call the county office before allowing her to vote); id.
at 146–47 (PollPads in one precinct would not validate voter access
cards because the PollPads were plugged in incorrectly); Doc. 802
at 11–12 (poll workers needed to reset the Wi-Fi and Bluetooth
connections of the PollPads to get them to sync with each other).
Some of these issues were true glitches in the system. Others were
user error.
In any event, Georgia has a process for dealing with PollPad
malfunctions: state law requires each precinct to have a “paper
backup list.”
Ga. Comp. R. & Regs. 183-1-12-.19(1). Counties may
order their lists over a monthlong period spanning from the Friday
after the voter-registration deadline to the week before the
election.
The Secretary of State’s office provides the list, divided by
precinct, to each of Georgia’s 159 counties, and each county then
distributes the sub-lists to its precincts. The volume can be huge—
a given precinct’s list may fill several boxes.
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Because the paper lists are sometimes printed before the
close of early voting, and always printed before the absentee ballot
deadline (Election Day), they are necessarily less up to date than
the PollPads—by how much depends on the timing of a county’s
request. The Coalition wanted to narrow that gap. It asked the
district court to issue a preliminary injunction that would require
the hard-copy backup list to be an exact duplicate of the data in the
PollPad, as updated at the close of early voting.
It also wanted any voters marked as eligible on the hard-
copy list to be allowed to cast emergency ballots instead of
provisional ballots. Provisional ballots are used as a matter of
course whenever poll workers cannot confirm a person’s identity
or eligibility to vote. See
id. §§ 21-2-417(b), 21-2-418(a). In that
situation, a voter can fill out a paper ballot and swear or affirm that
she is eligible to vote. Id. §§ 21-2-418(b), 21-2-419(a). Officials then
examine the ballot and any documentation of the voter’s eligibility.
See id. § 21-2-419(b). If the local election board can determine that
the voter is eligible, the vote is added to the tally. See id. § 21-2-
419(c).
Poll workers also use paper ballots when an “emergency
situation” makes it “impossible or impracticable” to use the
electronic ballot markers. Id. §§ 21-2-281, 21-2-334;
Ga. Comp. R.
& Regs. 183-1-12-.11(2)(c). “Emergency situation” is a broad
category; it includes “power outages, malfunctions causing a
sufficient number of electronic ballot markers to be unavailable for
use, or waiting times longer than 30 minutes.” Ga. Comp. R. &
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Regs. 183-1-12-.11(2)(d). No matter the emergency, though, the
backup plan is the same. Poll workers issue paper ballots to anyone
who they can verify is a registered voter of the precinct.
Ga. Comp.
R. & Regs. 183-1-12-.11(2)(c). Unlike provisional ballots,
emergency ballots are counted right away because the voters who
cast them are already known to be eligible. See
id.
With that background, we return to the claims in this case.
The district court agreed with the Coalition that “using unreliable
and unsecure” electronic PollPads “without an updated paper
backup disenfranchises voters.” The court echoed the concern that
PollPad malfunctions could cause long lines, which would lead
some voters to leave their polling places without voting. The court
also worried that poll workers would direct voters to cast
provisional ballots, and that those provisional ballots ultimately
might not be counted.
The State argued that the Coalition’s print-date proposal
would cause administrative headaches and interfere with other
necessary preparations during the days immediately preceding the
election—but the court disagreed. In its view, the State’s interests
would be furthered, not frustrated, by the new plan. Concluding
that the other requirements for a preliminary injunction had been
met, the court ordered the Secretary of State to provide, on the
Coalition’s timeline, a hard copy of the check-in list for each polling
place—ready for use as a backup if the PollPads malfunctioned.2
2 That order was stayed by this Court pending appeal.
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The court added that any voter who appeared on that hard-copy
list must be allowed to vote with an emergency ballot instead of a
provisional ballot, with a few extra steps for any voters who had
requested an absentee ballot.
B.
The court later announced that the State needed to change
its scanner settings to be more sensitive when tabulating paper
ballots. Instructions for those ballots (whether provisional,
emergency, or absentee) direct voters to “blacken the Oval” next
to their choice, and include a picture of an oval completely filled in.
See O.C.G.A. § 21-2-480(b)(1). For whatever reason, some voters
instead check or cross through the ovals, and the Coalition argued
that those marks should also qualify as votes. It therefore asked the
court to order the State to change the settings on its scanners so
that “all perceptible votes” on hand-marked ballots would be
counted or, at the very least, flagged for review.
The court acknowledged that the burden “to read and
follow the instructions” to fill in the oval was “minimal.” Even so,
it found that some voters would instead check the ovals or draw an
“X” through them, and that the “average voter” is “likely unaware”
that the scanner might not count those selections. The court
decided that because the settings imposed a burden that was “more
than minimal but less than severe,” it should “apply an
intermediate level of scrutiny.” Under that standard, the court said,
the scanner settings failed; the burden on voters “outweighed” the
State’s interests in its existing settings.
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20-13730, 20-14067 Opinion of the Court 11
But the district court was not ready to set the exact contours
for relief. Rather than specify what actions the State needed to take
to adjust its scanners, the court asked the Coalition to propose
injunctive relief targeting the deficiencies identified in the court’s
order. The Coalition submitted its proposal promptly, but the
district court never ruled on it—despite a follow-on motion from
the Coalition asking the court to resume consideration of its
proposed injunction. While a decision on that filing was still
pending, the state defendants appealed both orders.
II.
We review questions of subject matter jurisdiction de novo.
Holston Invs., Inc. B.V.I. v. LanLogistics Corp.,
677 F.3d 1068, 1070
(11th Cir. 2012). We review a grant of a preliminary injunction for
abuse of discretion, but review any underlying legal conclusions de
novo. Gonzalez v. Governor of Georgia,
978 F.3d 1266, 1270 (11th
Cir. 2020). A district court can grant a preliminary injunction only
if the moving party establishes, among other things, that “it has a
substantial likelihood of success on the merits.”
Id. at 1270–71.
And a court abuses its discretion in granting a preliminary
injunction if, in determining whether success is likely, it incorrectly
or unreasonably applies the law. See
id.
III.
The state defendants begin by arguing that the Coalition and
its members lack standing to challenge Georgia’s voting systems.
But as long as the Coalition or one of its members has standing to
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sue for the injunctive relief sought below, we have jurisdiction over
this case. See Town of Chester v. Laroe Ests., Inc.,
137 S. Ct. 1645,
1650–51 (2017). Here, the Coalition gives us reason to exercise our
jurisdiction. We have recognized that voting advocacy
organizations like the Coalition have standing to sue when a policy
will force them “to divert personnel and time to educating
volunteers and voters” and to resolving problems that the policy
presents “on election day.” Florida State Conf. of the NAACP v.
Browning,
522 F.3d 1153, 1165–66 (11th Cir. 2008); see also, e.g.,
Georgia Ass’n of Latino Elected Offs., Inc., v. Gwinnett Cnty. Bd.
of Registration & Elections,
36 F.4th 1100, 1114 (11th Cir. 2022).
Because the Coalition credibly made that assertion, the district
court had jurisdiction to hear the Coalition’s and its members’
requests for injunctive relief.
IV.
With standing confirmed, we consider the two orders
appealed.
A.
We start with the order about backup voter lists.3 In that
order, the district court set a new timeline for printing hard-copy
3 The state defendants contend that they have immunity from a suit for this
injunctive relief under a narrow exception to Ex parte Young,
209 U.S. 123
(1908), for suits that implicate “special sovereignty interests.” Idaho v. Coeur
d’Alene Tribe of Idaho,
521 U.S. 261, 281, 287–88 (1997). We disagree—suits
challenging election procedures are routine. Curling v. Sec’y of State of
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voter lists; the state defendants ask us to reject that timeline. The
district court acted in response to the Coalition’s claim that
Georgia’s print schedule for its hard-copy voter list severely
burdens the right to vote; it says a more up-to-date list would allow
for smoother proceedings on Election Day. We evaluate that claim
under what is known as the Anderson-Burdick test, weighing “the
character and magnitude of the asserted injury” to voting rights
“against the precise interests put forward by the State as
justifications for the burden imposed by its rule.” Burdick v.
Takushi,
504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze,
460 U.S. 780, 789 (1983) (internal quotation marks omitted)).4
Georgia, 761 F. App’x 927, 934 (11th Cir. 2019) (unpublished); see, e.g., Black
Voters Matter Fund v. Sec’y of State for Georgia,
11 F.4th 1227, 1230 (11th Cir.
2021); Greater Birmingham Ministries v. Sec’y of State for Alabama,
992 F.3d
1299, 1304 (11th Cir. 2021); New Georgia Project v. Raffensperger,
976 F.3d
1278, 1280 (11th Cir. 2020). So the State is not immune to suits seeking this
relief; nor does this suit, as the state defendants suggest, present a political
question beyond this Court’s reach.
4 Contrary to the Coalition’s suggestion, the severity of the burden and the
weight of the State’s justification are reviewed de novo. See Cowen v. Georgia
Sec’y of State,
960 F.3d 1339, 1346 (11th Cir. 2020) (Anderson balancing is “not
a pure question of fact”); see also U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset
Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960, 966–67, 967 n.4 (2018)
(“In the constitutional realm . . . we have often held that the role of appellate
courts in marking out the limits of a standard through the process of case-by-
case adjudication favors de novo review even when answering a mixed
question primarily involves plunging into a factual record.”) (alteration
adopted and quotation omitted).
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If we conclude that the State’s policy imposes a severe
burden on the right to vote, we subject the policy to strict
scrutiny—meaning that the rule survives only if it is narrowly
tailored to serve a compelling state interest. New Georgia Project,
976 F.3d at 1280. When the burden is more modest, though, so is
the inquiry. Washington State Grange v. Washington State
Republican Party,
552 U.S. 442, 452 (2008). So long as a policy is
“reasonable and nondiscriminatory,” the State’s “important
regulatory interests in conducting orderly elections” will generally
be enough to justify it. Grizzle v. Kemp,
634 F.3d 1314, 1322 (11th
Cir. 2011) (quotations omitted); Indep. Party of Florida v. Sec’y,
State of Florida,
967 F.3d 1277, 1281 (11th Cir. 2020) (quotation
omitted). That examination offers no license for “second-guessing
and interfering with” state decisions; the Constitution charges
States, not federal courts, with designing election rules. New
Georgia Project, 976 F.3d at 1284.
The Coalition peppered the record with many examples of
PollPad failure—but most are unrelated to the relief that the
Coalition seeks. To be sure, these incidents show why a hard-copy
backup list may be useful. But a hard-copy list is already required
by law. See
Ga. Comp. R. & Regs. 183-1-12-.19(1). The dispute, in
other words, turns on whether the list is helpful enough when
printed according to state policy. The Coalition says it is not;
without complete early-voting information, the Coalition argues,
the paper backup is not “useable” because too many names must
be double-checked with the county office, which may lead to
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longer lines. The crucial issue in this case is whether there is
evidence that the State’s print date for the paper backup has caused
a burden of any significance on the right to vote.
The Coalition also finds it troubling that more voters will
need to cast provisional ballots if the paper backup lists do not
contain the latest early voting information. The problem with
overuse of provisional ballots, the Coalition claims, is that they are
not automatically tabulated. See O.C.G.A. § 21-2-419(a)–(c).
Instead (as Georgia law requires) local registrars will determine
whether those voters were eligible to cast their ballots and,
accordingly, whether their votes may be counted. Id. § 21-2-419(c).
But whatever the merits of the Coalition’s concern regarding
provisional ballots, that concern hinges on the State’s early print
date for the hard-copy backup list. In other words, the provisional
ballot argument presents the same print date issue—whether the
evidence shows that unnecessary use of provisional ballots has
been caused by the State’s print date for the paper backup.
The district court held that these burdens were severe
because “disenfranchisement” would result if a delay deterred a
person from voting, or if the state improperly declined to count a
provisional ballot. There is case law suggesting that any rule
imposing order on the election process “will invariably impose
some burden upon individual voters.” Burdick,
504 U.S. at 433.
Indeed, if federal courts were to flyspeck every election rule and
apply strict scrutiny no matter how limited the burden on voters,
our enforcement practices would bar States from carrying out their
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constitutional responsibility to prescribe election rules. See U.S.
Const. art. I, § 4, cl. 1; New Georgia Project, 976 F.3d at 1279–80,
1284. The case law suggests that the plaintiffs must show, at the
very least, that the burdens imposed “represent a significant
increase over the usual burdens of voting.” Crawford v. Marion
Cnty. Election Bd.,
553 U.S. 181, 198 (2008) (plurality opinion); see
also
id. at 205 (Scalia, J., concurring in the judgment) (“Burdens are
severe if they go beyond the merely inconvenient.”).
The Coalition says that delays when the tablets
malfunctioned “led to long lines and waiting periods of hours” that
“caused voters to leave” (quotations omitted). No doubt—as we
have said, the Coalition submitted serious evidence of long lines.
But plaintiffs must show that the relief they seek has some
relationship to the burden they identify. Though the record here
is lengthy, it does not show that the lines were attributable to the
fact that the State’s paper backup list does not include updated
information covering the last several days of early voting. Nor is it
obvious that a better list would clear up the problem. In one cited
example, the lines grew long because no one was even using the
existing backup list and the precinct operated only one provisional
voting station. In another, the poll manager at first refused to
switch to a paper balloting system at all.
The evidence here does not show that delays or wait times
at the polling places were related at all to the State’s print date for
the paper backup. It thus is not possible on this evidence to
conclude that the State’s print date has caused a burden on the right
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to vote. For the purposes of this case, we can assume that if
excessive wait times result in many voters leaving their polling
places before voting, and doing so with a likelihood that they will
not return to vote, that may well rise to the level of a severe
burden. Here, however, we need not consider that issue; nor do
we need to decide the standard for determining when evidence
might rise to the level of a severe burden on the right to vote.
Indeed, as explained below, we need not even decide whether the
evidence offered by the Coalition (unrelated as it is to the State’s
print date) rises to the level of a severe burden on the right to vote.
In its pollbook order, the district court ordered relief with
respect to the Coalition’s challenge to the State’s print date for the
paper backup for the pollbook. That relief merely delays the print
date for the paper backup by a few days such that the paper backup
reflects voting activity through the end of early voting. So the relief
ordered simply includes—as information available at each voting
place in the paper backup—a few more days of data concerning
early voting.
As noted above, the crucial issue before us is whether the
State’s print date for the paper backup caused a burden of any
significance on the right to vote. The problem for the Coalition in
this appeal is that their evidence of delays and wait times at voting
places—in other words, their evidence of burdens on voting—is
not related at all to the fact that the State’s paper backup lacked
information about a few additional days of early voting. At the
least, any delays that one might speculate could result from the
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State’s print date do not warrant the administrative difficulties that
would be imposed on the State in having to organize and distribute
updated information to the multiple precincts in 159 counties in
the short time between the end of early voting and election day.
The same goes for the Coalition’s argument that the hard-
copy print date leads to an excessive number of provisional ballots.
Here too the Coalition’s evidence with respect to any burden on
voting associated with the use of provisional ballots is wholly
unrelated to the State’s print date for the paper backup. That is,
the evidence does not show unnecessary use of provisional ballots
attributable to the State’s print date.
The Coalition nonetheless insists that the burden identified
here is the “disenfranchisement” that results when a provisional
voter’s ballot is not counted because she was ineligible to vote
where she cast it. But the failure to permit an ineligible voter to
cast a ballot is not disenfranchisement—it is election
administration. It is a bridge too far to suggest that a federal court
may force a state to allow voting in the wrong precinct. And in any
event, the mix-up that concerns the Coalition would occur for only
two reasons: a voter made a mistake and showed up at the
incorrect precinct, or the precinct information given to the voter
did not match the information on the elector list. Neither of these
problems would be solved by a more updated backup list. The first
is simply voter error, which cannot be attributed to the State and
has nothing at all to do with the PollPads or paper backups. As for
the second, the district court order itself says that the hard-copy list
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matches the information in the PollPads. So a later-printed list
would reproduce the same precinct errors as the earlier-printed
one; the only updates intended to be included in the new list relate
to early voting and the return of absentee ballots.5
In short, the Coalition has not demonstrated a severe burden
on the right to vote attributable to the State’s print date for the
paper backup. The district court erred in treating that print date as
such and abused its discretion when it reviewed the State’s backup
practices under strict scrutiny. See New Georgia Project, 976 F.3d
at 1281.
That means that we need only confirm that the State’s
policies are reasonable and nondiscriminatory, and that “relevant
and legitimate state interests” justify the limitations the State
imposes. Indep. Party of Florida, 967 F.3d at 1281–82 (quotation
omitted). They are, and they do.
To start, the existing backup list is not discriminatory; it does
not draw classifications between different voters, and no one even
alleges that the timing of the list is motivated by any discriminatory
intent. See Greater Birmingham Ministries v. Sec’y of State for
Alabama,
992 F.3d 1299, 1321 (11th Cir. 2021); Jones v. Governor
of Florida,
975 F.3d 1016, 1029–30 (11th Cir. 2020). The State has
5 One more point. In a separate order that the State does not appeal, the
district court has already directed the State to develop and implement a plan
that addresses errors in the electors list that make voters appear ineligible to
vote in their precinct.
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20 Opinion of the Court 20-13730, 20-14067
explained that its hard-copy print date is driven by administrative
factors—the need to distribute a large number of lengthy lists while
also managing other preparation tasks in advance of Election Day.
As for whether the State’s printing policy is reasonable, the
answer is yes. Again, the existing paper backup list contains
substantially the same information as the list in the PollPads—it is
simply less current to account for the State’s need to print and
distribute it before the election starts. The Coalition’s challenge to
these policies is, in essence, that the State could do better; its
printed copy of the list could contain more up-to-date early-voting
information.
Whether a later print date for the hard-copy list would be a
better choice is not our call to make—that choice is one for elected
officials. More early-voting information would of course be
helpful. But the proposed alternative is resource-intensive. It
involves either printing or electronically distributing lists of
electors for 159 counties, and doing so all on a single day. In all,
then, the State seeks to use its resources effectively—to give poll
workers the information they need to check in voters if the
PollPads malfunction while also managing its other election-
administration responsibilities. Those interests are enough to
justify its choice of when to print the backup list, especially when
the burdens identified flow (at best) indirectly from that decision.
Ultimately, the Coalition is asking the courts to redline the
already reasonable voting policy the State has in place. That is not
our role. The district court thus erred when it replaced those
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20-13730, 20-14067 Opinion of the Court 21
policies with the “better” option offered by the plaintiffs: a mandate
to use an electors list that is updated and printed on a somewhat
later date. We therefore vacate the preliminary injunction relating
to hard-copy printing and provisional balloting.
B.
We next consider the scanner order. In that order, the
district court held that the Coalition was entitled to a preliminary
injunction that would force the State to recalibrate its scanner
settings. But because the parameters of the relief sought by the
Coalition were “at once broader than what [was] called for to
address the specific injury identified and on the other hand,
insufficiently precise,” the district court directed the Coalition to
“submit a proposed injunctive relief order that delineates the
specific measures or course of action they are seeking that the
Court adopt to address this vote counting issue” (footnote
omitted). The district court recognized that the State, the
Coalition, and the manufacturers of voting machines might need
to confer about what software and setting changes could count “a
fuller range of voter markings.”
The state defendants ask us to review and reject the court’s
order, claiming that it qualifies as a preliminary injunction. The
Coalition disagrees. We cannot review the order, it says, because
even though the district court said that it granted a preliminary
injunction, it never entered one.
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22 Opinion of the Court 20-13730, 20-14067
We generally can hear an appeal “only after final judgment.”
Alabama v. U.S. Army Corps of Eng’rs,
424 F.3d 1117, 1128 (11th
Cir. 2005); see
28 U.S.C. § 1291. Injunctions, however, are an
exception. Congress—likely recognizing the “need to permit
litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable, consequence”—allows immediate appeals for
district court orders “granting, continuing, modifying, refusing or
dissolving injunctions,” including preliminary ones. Balt.
Contractors v. Bodinger,
348 U.S. 176, 180–81 (1955) (quotation
omitted);
28 U.S.C. § 1292(a). But merely saying that an injunction
has been granted is not enough. The order appealed must, at the
very least, give a “clearly defined and understandable directive” to
“act or to refrain from a particular action.” Alabama, 424 F.3d at
1128.
Here, that clear directive is missing. Although the district
court determined that the plaintiffs were entitled to injunctive
relief and decided to “grant” it, the court never fixed its remedy.
The court’s order notes that the State had changed its scanner
settings while the litigation was pending. Those new settings were
“an improved mechanism” in the court’s view—but also an
“incomplete remedy.” What remedy would be complete, though,
it was unprepared to say. It noted some possibilities—changing the
adjudication software to better catch checked or crossed ovals, for
example. It recognized that the State’s adoption of new scanner
settings had already changed the inquiry, and that “any course of
action that is not deliberate and properly researched” could create
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20-13730, 20-14067 Opinion of the Court 23
“administrative confusion and serious vote mishaps.” So even
though the district court held that “injunctive relief” was
“warranted,” it said that “there will not be an ‘instant fix’ of this
issue.” Rather than enter relief, the court directed the Coalition to
submit a proposed injunction.
The court’s order set just one thing: a timeline for putting
that future relief into effect. It told the parties that “the expanded
method(s)” beyond the new settings—whatever they might be—
“must be in place no later than the next election cycle following the
conclusion of the January 2021 runoffs.” With that timeline in
place, the court said that it would “enter a further relief order upon
receipt of Plaintiffs’ proposed remedy . . . and Defendants’
response.”
The plaintiffs soon submitted their proposal. But the
January elections came and went with no further action from the
district court—despite the Coalition’s follow-up request that the
court consider its submission. Nor has the court entered any
scanner relief since. As for the order the court did issue, it carried
no “clearly defined and understandable directive” for the
defendants to follow, just a deadline for carrying out the as-yet
undefined order. Id. We therefore conclude that the order entered
no preliminary injunction. And with no preliminary injunction,
the state defendants have no room to appeal, at least for now.
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24 Opinion of the Court 20-13730, 20-14067
* * *
It would be difficult to overstate the importance of the right
to vote. But in our efforts to protect that right, federal courts must
resist the temptation to step into the role of elected representatives,
weighing the costs and benefits of various procedures when the
State has already done so in a reasonable and nondiscriminatory
way. Because this suit invites us to do just that—and because the
district court accepted that invitation—we VACATE its
preliminary injunction on the State’s paper backup check-in list, as
well as its related directives on provisional and emergency ballots.
We DISMISS the rest of the appeal.
