A Federal Court Will Decide Whether Atlanta Voters Could Have a Say on Cop City

A court case heard in the Eleventh Circuit Court of Appeals on December 14, 2023, could have a decisive impact on the legal fight to finally put Cop City on the ballot. If successful, the citizen ballot initiative would put a question to voters about whether to revoke the lease of land to the Atlanta Police Foundation to build the massive militarized police training facility, which has seen grassroots resistance reach a fever pitch this year.

In Atlanta, for a citizen ballot initiative to be voted on in a general election, petition gatherers must collect signatures equivalent to 15 percent of active registered Atlanta voters within 60 days. On June 21, 2023, after delays imposed by the city, Atlanta residents could begin gathering signatures. But DeKalb County residents — where Cop City will be built — would not be able to gather signatures unless they were chaperoned by a Fulton County resident. DeKalb residents sued, and on July 27, 2023, a district court issued an injunction allowing them to collect signatures. Critically, the court also reset the clock, allowing collection of signatures beyond the original 60 days, adopting the Vote to Stop Cop City argument that the residency restriction significantly hampered constitutionally protected political expression. The City of Atlanta then appealed the injunction to the Eleventh Circuit Court of Appeals. On December 14, the Eleventh Circuit considered questions that could throw the entire referendum effort into jeopardy. Early next year, the court could issue a ruling altering which signatures — if any — can be counted.

When the Vote to Stop Cop City coalition turned the petitions in, optimism ran high. “The mayor and city council tried to overstep citizens and silence them,” said Britney Whaley, a member of the Vote to Stop Cop City coalition in a September 12 press release. “But the people are making sure their voices are heard.”

Now, with the fate of the referendum pending the Eleventh Circuit’s decision, City Councilmember Liliana Bakhtiari reflected on the city’s process: “I was a member of the public, not an elected official, when all of this began,” Bakhtiari told Truthout. “I felt misled. If I could change how the city carried out this process, I would have done it very differently. Because the city has completely mishandled this at every step.”

First Amendment Issues at Stake

Lisa Baker, a DeKalb County resident, agitated from the get-go to collect signatures to put Cop City on the ballot. But the first day she was slated to gather signatures, her Fulton County chaperone didn’t show. As a DeKalb County resident, Baker was barred from collecting signatures by herself: Even though 156,000 people daily commute across the county line, only City of Atlanta residents were allowed to gather petition signatures unchaperoned. Along with three other plaintiffs in Baker v. City of Atlanta, she sued to be allowed to collect signatures on the petition to put Cop City on the ballot.

The question at issue in the Eleventh Circuit has nothing to do with whether the referendum will pass in the general election. What’s at stake is whether Atlanta residents stand a fighting chance of placing Cop City on the ballot at all.

Cop City’s heightened militarization of police looms over communities in Atlanta and across the country, but DeKalb County residents already bear the brunt of the impact. With the seizure of 85 acres of forest land, DeKalb residents lost access to one of the most important urban parks in the nation. Majority-Black DeKalb residents fall in the 94th percentile for asthma prevalence and the 80th percentile for the incidence of diabetes — health effects partially mitigated by access to exercise outdoors and the fresh air urban forests provide. Soon after Cop City construction began, federal agencies stopped collecting data on water quality at the site, leading some neighbors to raise concerns about watershed degradation. Even the part of the forest not already destroyed by the Atlanta Police Foundation is now inaccessible, despite residents’ stubborn advocacy in county commission meetings for the reopening of Intrenchment Creek Park.

The four DeKalb residents suing the city simply wanted a voice in the political process around Cop City — a chance to decide on it through democracy.

In theory, at least, case law should be on their side. On two separate occasions, the Supreme Court imposed strict scrutiny over limitations on the rights of petitioners. Meyer v. Grant struck down a Colorado law that criminalized paying wages to petition circulators, signaling broad deference to petition-gathering activities. Of even more relevance, the Supreme Court in the 1998 case Buckley v. American Constitutional Law Foundation found that residency requirements for petition circulators “produced a speech diminution,” evidence of the core First Amendment issues at stake. In Maine, a circuit court even struck down a prohibition against petition gatherers flooding in from other states. In Atlanta, prominent First Amendment organizations, including the Georgia School of Law First Amendment Clinic and the NAACP Legal Defense Fund, have weighed in, submitting amicus briefs to the court expressing concern about the violation of the First Amendment rights of DeKalb County residents.

Throwing Into Doubt the “Vote to Stop Cop City” Petition

The First Amendment rights of petition gatherers aren’t all that’s at stake. The City of Atlanta is asking the Eleventh Circuit Court of Appeals to overturn the district court’s injunction in all or part, including the extension of the deadline to collect signatures. If granted, petition signatures collected by City of Atlanta residents and DeKalb County residents alike would come under fire.

In September, the Vote to Stop Cop City coalition marched triumphantly into the city clerk’s office to turn in over 100,000 signatures, well over the number required to put Cop City on the ballot (assuming that most of those signatures are valid). The city immediately began to undermine the democratic process, first by committing to conduct the count using signature matching — a controversial voter suppression method — and later by refusing to begin the process altogether, citing pending appeals over the deadline.

Atlanta’s assault on direct democracy escalated from there. By the time the Eleventh Circuit case made it to oral arguments, Atlanta argued in favor of collapsing the process altogether. In addition to fighting to revert to the original 60-day deadline (rather than the extended circuit court injunction deadline), the city began asserting that all citizen ballot referendum processes violate state law. (Plaintiffs point out that, despite delay-tactic hiccups along the way, the Atlanta city clerk approved the signature collection form, implying the city’s imprimatur over the referendum process.)

The City of Atlanta is fighting tooth and nail to ensure that the people never have their chance to weigh in on Cop City.

It got worse: Lawyers for the City of Atlanta accused referendum advocates of tampering with the election itself, arguing that the Vote to Stop Cop City coalition violated a legal principle forbidding last-minute changes to the electoral process. For good reason, courts generally frown upon judicial waffling ahead of an election, reasoning that 11th-hour changes to ballots or voting procedures can instill confusion, causing some voters to stay at home on Election Day. As activists fight for any semblance of a democratic process, it hasn’t gone unnoticed that the city’s own delays forced the ballot initiative from the November ballot into March 2024, while construction on Cop City advances day by day.

In questions during oral arguments, the judges reviewed allegations of election tampering with skepticism. After all, the whole fight at issue centered around getting Cop City on the ballot, not changing the language of an existing ballot measure.

But, while the judges might not buy the election tampering argument, if the questions asked in oral argument are any indication, Vote to Stop Cop City advocates are in more danger when it comes to the question of the signature collection timeline. In oral arguments, Robert Ashe III, an attorney representing the City of Atlanta, complained the injunction’s extension of the signature collection deadline “gave them not just their cake and they got to eat it too, but they got a windfall.” Arguably, he said, if the court reverted to the original 60-day deadline, “no valid signatures were submitted by the deadline at all.”

Most likely, on the question of which signatures count, the Eleventh Circuit will rule somewhere in between what the City of Atlanta and the Vote to Stop Cop City coalition want. They could decide that the extended deadline will apply only to the four DeKalb County plaintiffs, which would mean that only Atlantans’ signatures collected within the original 60-day timeline would be counted. Or they could rule that the timeline should be restarted after the district court’s injunction, which would throw out the signatures of everyone who signed the petition during the first 35 days, effectively silencing the most committed Cop City opponents who signed the petition immediately after the initiative was announced. Or, in the worst-case scenario, the court could rule that the entire process violated state law from the start, squashing any future direct democracy movements.

An End to Direct Democracy in Atlanta?

The Vote to Stop Cop City coalition dove deep into the city charter to find authorization for the referendum. While citizen-driven ballot initiatives are commonplace in some states, in Georgia, there’s only one precedent: a fight in a sparsely populated county in south Georgia to block construction of a spaceport. The direct democracy approach had never been tested in Atlanta before the Vote to Stop Cop City movement undertook its electoral effort. Depending on the Eleventh Circuit’s ruling, this could be a test case for citizen ballot initiatives in Atlanta, and possibly across the state.

Since the beginning, the Cop City process has suffered a deficit of democracy, from opaque backdoor dealings to allocating of public funds to the project over hours of public testimony to the contrary.

Notably, the question at issue in the Eleventh Circuit has nothing to do with whether the referendum will pass in the general election. What’s at stake is whether Atlanta residents stand a fighting chance of placing Cop City on the ballot at all. Whichever way the Eleventh Circuit rules, no one knows whether the Cop City initiative will make the ballot until the city clerk is compelled to conduct the count. It’ll be close. When local news conducted an analysis of 1,000 randomly-sampled signatures, they found that close to half may be invalid.

What’s clear is that the City of Atlanta is fighting tooth and nail to ensure that the people never have their chance to weigh in on Cop City. At any point, Atlanta could have taken a stand for democracy by following the district court’s injunction and counting the signatures. Instead, the city spent over $1.3 million on legal proceedings related to Cop City, which includes funds expended toward blocking the people’s referendum from ever making the ballot.

“While we have done our job, the city has not done theirs,” said Rohit Malhotra, executive director at the Center for Civic Innovation and a core member of the Vote to Stop Cop City coalition team, at a public meeting on December 7, 2023. “And so we hoped, in good faith, that they would do the right thing [by verifying referendum signatures], but it is clear that intimidation tactics are being used.”

The City of Atlanta wants to force Cop City forward by any means necessary. Should the court rule that way, Atlanta could sabotage not just this referendum but any future attempts at citizen ballot initiatives in the city. Since the beginning, the Cop City process has suffered a deficit of democracy, from opaque backdoor dealings to allocating of public funds to the project over hours of public testimony to the contrary.

The Eleventh Circuit is expected to issue a ruling as early as January. In the meantime, the signature count remains frozen.

“The reason why people signed those petitions was because they never got a chance to make their voices heard,” said Keyanna Jones, one of the DeKalb plaintiffs in this case. “We’re waiting for the court decision with bated breath.”