A federal judge has denied an emergency request from the “Vote to Stop Cop City” effort to force the counting of signatures — while also criticizing the City as dishonest in its conflicting legal arguments.
U.S. District Judge Mark H. Cohen’s Sept. 13 denial order said the referendum effort is in legal confusion primarily because the City “opted to approve a petition for a referendum it believed and later contended was illegal. A proverb dating back over four centuries once again applies here: Honesty is the Best Policy.”
Kurt Kastorf, an attorney for the Cop City Vote Coalition that filed the emergency request, said the group is still working out its next legal steps and suggested that the Atlanta City Council could place the referendum on the ballot anyway. But, he added, Cohen’s commentary was “remarkable.”
“While Atlanta may try to write us off as partisan advocates, here we have a federal judge calling a spade a spade,” said Kastorf. “The sole unifying theme of Atlanta’s legal strategy is that it does not want the voice of Atlanta voters to be heard.”
The press office of Mayor Andre Dickens issued a statement saying that Cohen’s order “validates” the City’s position and that it “respectfully disagrees” that its legal arguments have changed or caused the deadline confusion.
“The City did not bring this suit, but simply defended itself, first in the [U.S.] District Court and now at the Eleventh Circuit [Court of Appeals],” said the City’s statement. “It was the Petitioners who sought to change the rules in the middle of the process, not the City.”
“We understand and care that there are citizens in Atlanta who have strong feelings about the Atlanta Public Safety Training Center, and we especially acknowledge the voice and efforts of those who are seeking a referendum to bring the issue to a vote,” the City said. It also characterized Cohen’s order as recognizing “the City has repeatedly and steadfastly supported the right of those opposed to peacefully speak and organize.” However, the order does not contain such a statement, and an earlier action by Cohen in the case, which is the basis of the deadline confusion, was saying the plaintiffs are likely to prevail in their argument that City law violates their First Amendment rights.
The City’s statement further called for “all sides to begin to have solution-focused conversations,” while repeating familiar denunciations of supposed “misinformation” and “unnecessary divisive language” from protesters. The City itself has frequently promoted misleading or incorrect information — including a fundamental mystery about the plan’s green space — and has drawn controversy for labeling protesters as “outside agitators” and “terrorists.”
“Vote to Stop Cop City” aims to place a question on the ballot that could kill the lease for Atlanta’s controversial public safety training center and, thus, the project. To qualify, they need roughly 58,000 valid signatures from Atlanta voters on petition forms. They claim to have submitted over 116,000 signatures on Sept. 11.
That submission was within a new, extended deadline set by a preliminary injunction previously issued by Cohen in Baker v. City of Atlanta, a U.S. District Court lawsuit over who can gather signatures. But that injunction was stayed on Sept. 1 by the U.S. 11th Circuit Court of Appeals in an appeal filed by City attorneys, casting confusion on what signature-submission deadline is valid. City attorneys and the Atlanta Municipal Clerk’s office say they accepted the signature petitions but won’t start counting yet on the possibility the entire deadline is invalid.
Cohen’s denial of the emergency request leaves the legal stalemate in place. The 11th Circuit’s timeline for receiving briefs, or written arguments and replies, from both sides, extends to Oct. 4. That means any decision on the stay or underlying arguments would come after that date.
Two outside groups have filed notices of appearance in the 11th Circuit to provide amicus briefs — or expert advice — in the Baker case. They include the Washington, D.C.-based Ballot Initiative Strategy Center Foundation and the First Amendment Clinic at the University of Georgia School of Law. (The Clinic is representing this reporter in an unrelated matter.) The foundation did not respond to a comment request. Samantha Chariz Hamilton, an attorney at the Clinic, said her organization’s brief will focus on the case’s primary issue of the right of residents outside Atlanta to collect signatures for the petition. “Individuals living outside of the city, whether in DeKalb or elsewhere, have a constitutional right to circulate petitions among Atlanta residents,” said Hamilton.
The Cop City Vote Coalition is not a party in the Baker case, which is still pending before Cohen. In its emergency motion, the coalition sought the right to “intervene,” or participate, on the basis of impact on the First Amendment rights of voters represented by its member organizations. The coalition also asked Cohen to issue an injunction instructing the City not to reject the signature petitions solely on the basis of the deadline question.
In his denial, Cohen said his court had no jurisdiction because such an action would directly affect the issues under appeal in the 11th Circuit. He also questioned the legal standing of the “amorphous” coalition.
However, he acknowledged that the 11th Circuit’s stay of his injunction leaves everyone involved “in a quandary with respect to whether the signatures previously obtained in reliance on the Preliminary Injunction could still be counted.”
He said he was “compelled to comment upon the vacillating positions of the City of Atlanta throughout this litigation, which has directly contributed to the uncertainty of the validity of the signatures previously collected…”
“The City could have avoided the conundrum that now exists,” he wrote, blaming it for “approving a referendum petition it had no intention to honor regardless of the number of signatures obtained” rather than rejecting it and likely facing a lawsuit on underlying legal issues that would be resolved by the Supreme Court of Georgia.
The referendum effort at the city level is a new tactic in Georgia and is operating in an uncertain area of law following a Supreme Court of Georgia decision earlier this year that allowed a similar ballot question about a Camden County spaceport. Legal observers previously told SaportaReport that the “Vote to Stop Cop City” effort is likely to end up before the Supreme Court as well to clarify the law.
Update: This story has been updated with comment from the City of Atlanta and the First Amendment Clinic.