Georgia Voters File Emergency Lawsuit Seeking to Have Secretary of State Kemp Barred From Presiding Over His Own Election
Lawsuit Alleges Kemp’s Conduct Violates Constitutional Right to Due Process, Seeks Restraining Order
ATLANTA – On November 6, 2018, a group of Georgia voters filed a federal lawsuit asking the United States District Court in Atlanta to enjoin Secretary of State Brian Kemp from exercising any further powers of the Secretary of State’s Office in presiding over the 2018 general election, in which he himself is a candidate.
The emergency legal papers were filed at 5 PM today on behalf of five Georgia voters: LaTosha Brown, Jennifer N. Ide and Katharine Wilkinson of Fulton County, Candace Fowler of Dekalb County, and Chalis Montgomery of Barrow County. They are represented in the matter by the nonpartisan nonprofit Protect Democracy, former United States Attorney for the Middle District of Georgia Michael J. Moore of Pope McGlamry, and former Department of Justice Voting Rights Section attorney Bryan L. Sells of the Atlanta Law Office of Bryan L. Sells.
The plaintiffs are seeking a temporary restraining order barring Secretary Kemp from being involved in the counting of votes, the certification of results, or any runoff or recount procedures that would normally be exercised by the Secretary of State’s Office or the Board of Elections, on which he also sits.
Counsel for Protect Democracy Larry Schwartztol said, “That no person should be a judge in their own case is about as basic a rule of fairness as you can get. That principle, embodied in the Constitution’s Due Process Clause, applies with special force to Secretary Kemp, who has misused his official position to try to tilt the playing field of the election in his favor. The extreme facts of this case warrant emergency relief to protect the rights of Georgia voters.”
The lawsuit cites a recent effort by the Secretary of State to use the Secretary of State’s Office’s official powers to make an unfounded accusation against the party of his opponent and post that accusation on the Secretary of State’s official website, then promoting it through the Kemp campaign’s political channels. The lawsuit alleges that this is merely the latest and most extreme misuse of the Secretary’s position to try to give himself an unfair advantage in his race for governor.
Previously, two federal courts ruled against the Secretary in prior matters in which he was accused of violating the law. Two weeks ago, a federal judge ordered Secretary Kemp to instruct election officials to stop summarily discarding absentee ballots that contained signature discrepancies. And as recently as Friday, a federal judge struck down a restrictive “exact match” policy implemented by Secretary Kemp that had jeopardized the ability of over 3,000 individuals to vote because their voter registrations had minor discrepancies with their official identification documents.
Secretary Kemp is not the only Secretary of State presiding over his own election this cycle. In another high profile contest in Kansas, Secretary of State Kris Kobach is presiding over an election in which he is a candidate for governor. Although they are not the first or only government officials to have presided over elections in which they were candidates, the extreme actions both men have taken to use their office in ways that appear designed to advance their campaigns’ chances have drawn strong rebukes from experts.
The prominent election law scholar Rick Hasen described Secretary Kemp’s actions as “perhaps the most outrageous example of election administration partisanship in the modern era.” And the election law expert Michael McDonald described Mr. Kemp’s conduct as “an appalling abuse of power” that “undermines democracy and hurts confidence in the work done by professional election officials across the nation to run fair elections.”
“Whoever you support in an election, we should all be able to agree that it’s essential for a democracy for that election to be administered fairly,” said Moore, former United States Attorney for the Middle District of Georgia, who is co-counsel in this case. Co-counsel Bryan L. Sells added: “Allowing one of the candidates to not just preside over their own election but misuse their office to give them an unfair advantage is just anti-democratic and unlawful.”
More information about the lawsuit is available at protectdemocracy.org/brown-v-kemp/
The complaint can be found here: https://protectdemocracy.org/brown-et-al-v-brian-p-kemp-complaint/
The legal memorandum seeking a temporary restraining order can be found here: https://protectdemocracy.org/brown-et-al-v-brian-p-kemp-memorandum-of-law/
Protect Democracy is a nonpartisan nonprofit dedicated to preventing American democracy from declining into a more authoritarian form of government.
Michael J. Moore is a partner at the law firm of Pope McGlamry, which has offices in Atlanta and Columbus, Georgia. He previously served as the United States Attorney for the Middle District of Georgia from 2010 to 2015. He is also a former member of the Georgia Senate, where he served on the Appropriations, Judiciary, Transportation, and Defense Committees.
Bryan L. Sells is the Principal at The Law Office of Bryan J. Sells in Atlanta, Georgia. Before launching his own practice, Bryan served as Special Litigation Counsel in the Voting Section of the Civil Rights Division of the United States Department of Justice from 2010 to 2015.
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