With a federal judge poised to decide whether to extend the clock on the “Vote to Stop Cop City” referendum effort in a lawsuit over who can collect signatures for it, both sides have laid out their initial cases – and teased bigger battles about the vote’s validity that may well end up before the Georgia or even U.S. Supreme Courts.
An underlying theme from both sides is the awareness they are traveling in barely charted legal waters. They debated the meaning of a tiny, two-case body of U.S. Supreme Court precedent on the issue of petition signature-gathering. And the City of Atlanta acknowledged the law might be in flux, as the “Vote to Stop Cop City” referendum effort is in part propping itself on a fresh Supreme Court of Georgia precedent allowing a Camden County ballot question about a controversial spaceport.
The local referendum effort seeks to put the City of Atlanta’s lease of land to the private Atlanta Police Foundation for its controversial public safety training center on the Nov. 7 ballot for a binding yes-or-no vote. Killing the lease would essentially kill the project, which is currently in a site-preparation, pre-construction phase. Under state and City law — which is partly disputed in the lawsuit — organizers must gather at least 70,000 signatures by mid-August. Signers must be registered to vote in Atlanta as of 2021, and gatherers must be Atlanta residents — even though the facility’s site is on City-owned land outside City limits in unincorporated DeKalb.
Four DeKalb activists in the referendum — Lisa Baker, Jacqueline Dougherty, Keyanna Jones and Amelia Weltner — filed the lawsuit against the City and the state of Georgia on July 6, claiming that the Atlanta residency requirement for signature gathers violates their First Amendment rights to free speech and to petition the government.
The complaint asks the court, among other things, to declare the residency requirement unconstitutional and to set a new signature-gathering method that restarts the 60-day clock and allows already collected signatures to count.
U.S. District Judge Mark H. Cohen ordered expedited responses to the request, which came in by a July 21 deadline. There is no deadline for him to make further orders or set a trial date.
City and state reply
The City’s reply to the complaint says that the plaintiffs’ First Amendment rights are not harmed and argues that — despite the language of the petition forms — nonresidents actually can participate in signature-gathering as long as an Atlanta resident joins them. The City further argues that the plaintiffs suffer no harm because the entire referendum is unlawful anyway.
If the court does rule the residency requirement unconstitutional, the City argues, the entire referendum should be deemed unlawful and die on the spot rather than continuing with new rules or a restarted clock.
The state’s reply echoed those arguments while also arguing the court has no jurisdiction under the law based on the 11th Amendment, which generally prohibits private citizens from suing a state in federal court without its permission.
The City cites U.S. Supreme Court precedent that governments can restrict political participation to residents within its borders. The residency restriction for signature-gatherers in this case, it argues, is a “light” burden “counterbalanced” by government interest — meaning that a lower level of constitutional scrutiny should apply.
That government interest is given a somewhat complicated description: The City is responsible for verifying that petition-signers are qualified Atlanta voters — which ultimately is based on voter rolls — but, because the City cannot verify where the signatures were gathered, it is a “narrow and legitimate restriction” to make the signature-gatherers themselves residents.
The City also claims that nonresidents can gather petition signatures as long as an Atlanta resident is also there to act as a witness — for example, as part of a collection team.
The City and State cite a variety of reasons for claiming the entire referendum effort is legally invalid: State law doesn’t authorize referendums to repeal city ordinances, only to change city charters, killing an ordinance allowing a lease authorization that already happened is an illegal retroactive law and killing the lease would violate a constitutional provision on impairment of contracts. With the recent Georgia Supreme Court precedent, the City acknowledges that state laws are in flux but says the bar on such a referendum is “still good law” at this point.
The plaintiffs’ rebuttal says that the City failed to provide factual or legal evidence for its position, misread the precedents, and is wrong about the validity of the referendum.
The plaintiffs argue that the City failed to explain the exact government interest in the residency requirement. In addition, they say, the existing U.S. Supreme Court precedents apply “strict scrutiny” — the highest level of constitutional review — to such matters, which should be “fatal” to the City’s position. The City incorrectly pointed to precedents about voting rights, rather than free-speech rights, they argue.
The City is wrong about the ability of nonresidents to participate in signature-gathering, they say, citing the plain language of the petition form: “…I, a registered elector in the City of Atlanta, Georgia, have collected these signatures for this Petition within the City of Atlanta.”
Countering the claims of the referendum’s invalidity, the plaintiffs argue it is authorized under the Atlanta city charter. As for the contractual concerns, they argue the lease contract is ongoing in its performance, so its authorization was “not a one-time event” that is done forever and cannot be reversed.
More broadly, the plaintiffs argue that the validity question is “not ripe and not properly before the Court” because the referendum has no legal force unless it makes the ballot. They note the City skipped a chance to make the invalidity argument in a previous legal challenge regarding the language of the petition form and that the City instead issued the form, authorizing the referendum effort to begin.
The plaintiffs also counter the City’s position that the entire referendum should be thrown out if the residency requirement is ruled unconstitutional. They say the issues should be severable and that the City is making a paradoxical argument by simultaneously claiming the residency requirement is trivial yet also key to the validity of the entire process.
The plaintiffs’ reply is aimed at the City’s arguments. In the original complaint, they said they named the state as a defendant for the limited purpose of a potential ruling on the constitutionality of relevant state law.