Georgia Secretary of State Brian Kemp. (Photo: John Disney/ ALM)

Five voters in three Georgia counties filed an emergency lawsuit late Tuesday in federal court in Atlanta asking a judge to bar Secretary of State Brian Kemp from continuing to use the powers of his office to influence the 2018 general election.

Kemp, the Republican candidate for governor, has ignored repeated calls from Democrats and voting rights organizations to step down as the state’s chief election officer while he campaigns for the state’s highest office. Those calls intensified this week after Kemp announced he had launched a criminal investigation of the state Democratic Party in connection with information shared with his outside counsel, warning that the state voter registration web page was vulnerable to hackers.

Read the complaint: 

The emergency petition was filed two hours before the polls closed by former U.S. Attorney for the Middle District of Georgia Michael Moore, now a partner at Pope McGlamry in Atlanta; Atlanta attorney Bryan Sells, a former voting rights lawyer with the U.S. Justice Department; and attorneys with the nonpartisan, nonprofit organization Protect Democracy. It seeks an immediate temporary restraining order that would bar Kemp from any involvement in vote counting, certification of election results or any runoff or recount procedures—all normally responsibilities that the secretary of state would oversee.

The suit cites Kemp’s decision to open an investigation of the state Democratic Party based on what it calls an unfounded accusation and post notice of the allegation on his official state website while promoting it via his political campaign as a reason the TRO is needed.

“No person should be a judge in their own case is about as basic a rule of fairness as you can get,” said Larry Schwartztol, counsel for Protect Democracy. “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 emergency petition also cites two recent rulings by two federal judges in Atlanta changing policies imposed by Kemp’s office regarding absentee ballot rejections and voter registrations by newly minted citizens that have been held in abeyance rather than processed.

“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,” Moore said.

“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,” Sells added.

Kemp spokeswoman Candice Broce said Kemp has been notified of the suit. “This twelfth-hour stunt will not distract us from fulfilling our responsibilities and working with county officials to ensure a secure, accessible, and fair election for all eligible Georgians.”

“The Secretary of State’s office does not count votes; counties do,” Broce said. “The Secretary of State’s office does not re-count votes; counties do.”

The TRO request was the second suit filed against Kemp on Tuesday, with Common Cause of Georgia seeking an injunction to ensure that provisional ballots are properly counted. Citing publicized “security vulnerabilities” in the state’s antiquated computer voting system that Kemp’s office was alerted to over the weekend, the nonprofit suggested that voter registration data could easily be changed or canceled, potentially stripping legitimate voters of their right to vote.

The Common Clause suit was filed by Christopher Campbell of DLA Piper in Atlanta, a team of lawyers with New York’s Paul, Weiss, Rifkind, Wharton & Garrison and the Brennan Center for Justice at New York University School of Law. It alleges that, instead of focusing on patching weaknesses in the website, Kemp “instead waged a political counter attack against the Democratic Party.” In so doing, Kemp “recklessly exposed voters to potential tampering with their voter registration records.” Maintaining an unsecure voter registration database and publicizing those vulnerabilities, the lawsuit claims, violates federal and state election laws.