Lisa Baker v. City of Atlanta

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12469

____________________

LISA BAKER,

JACQUELINE DOUGHERTY,

KEYANNA JONES,

AMELIA WELTNER,

Plaintiffs-Appellees,

versus

CITY OF ATLANTA,

Defendant-Appellant,

STATE OF GEORGIA,

Defendant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:23-cv-02999-MHC

____________________

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2 Opinion of the Court 23-12469

Before NEWSOM, BRANCH, and LUCK, Circuit Judges.

BRANCH, Circuit Judge:

Appellees Lisa Baker, Jacqueline Dougherty, Keyanna Jones,

and Amelia Weltner, live in DeKalb County, outside the city limits

of Atlanta (“the City”). They desire to collect signatures inside the

City as part of a local referendum petition aimed at repealing a city

ordinance that authorized the lease of land owned by the City in

Dekalb County to the Atlanta Police Federation for the

construction of a new training facility. However, the Appellees’

residency posed a barrier to their signature collection efforts

because § 66-37(b) of the City of Atlanta Municipal Code imposes

a requirement that signature gatherers for local referendum

petitions be residents of the City. Thus, they filed a complaint

against the City challenging the constitutionality of the signature

gatherer residency requirement, arguing that it violated their First

Amendment rights. They also sought a preliminary injunction.

The district court granted the motion for a preliminary

injunction and enjoined the City from enforcing the portion of

§ 66-37(b) that requires that the person collecting signatures be a

resident of the City. The district court also ordered that the 60-day

period for collecting signatures would restart upon the City’s

issuance of new petitions that removed the requirement that the

person collecting signatures be an Atlanta resident and ordered that

all signatures collected previously would still be counted.

The City appealed and obtained a stay of the injunction.

After review and with the benefit of oral argument, we conclude

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23-12469 Opinion of the Court 3

that the plaintiffs cannot show irreparable harm because, under

Kemp v. City of Claxton, 496 S.E.2d 712 (Ga. 1998), they cannot use a

referendum petition to challenge a city ordinance. In other words,

they have no right to the petition process they seek to utilize;

accordingly, they cannot show irreparable harm as required for

injunctive relief. Therefore, we vacate the injunction and remand

for further proceedings.

I. Background

In 2021, the City of Atlanta adopted ordinance 21-O-0367

which authorized then-Mayor Keisha Lance Bottoms to lease land

owned by the City in DeKalb County to the Atlanta Police

Federation for the construction of a new public safety training

facility (“the leasing ordinance”). The Mayor executed a lease

agreement, and the City Council dedicated significant funds

toward the project. Construction on the new facility is now

substantially complete.

In June 2023, a group of individuals and organizations (the

“coalition”) filed a referendum petition with the Municipal Clerk

of the City of Atlanta, seeking to repeal the leasing ordinance and

prevent construction of the facility. Initially, the municipal clerk

rejected the coalition’s referendum petition “as to form” because

the draft provided did not include the required section for the

signature gatherer to provide his name and contact information

and attest that he was a resident of Atlanta and that the signatures

on the petition were collected within the city of Atlanta. The

coalition submitted a revised petition. The municipal clerk

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4 Opinion of the Court 23-12469

ultimately “approve[d] [the petition] as to form” and issued official

copies of the petition for use in collecting signatures on June 21,

2023. 1 The petition included a section for signers of the petition to

swear they were City of Atlanta residents and registered voters in

the last municipal election and provide their signature, printed

name, date, address, phone number, and birthdate. And the

signature gatherers had to swear that they were a registered elector

in the City of Atlanta (i.e., a City resident) and that the signatures

were collected within the boundaries of the City.

Pursuant to § 66-37 of the City of Atlanta Municipal Code,

which governed the coalition’s petition efforts, upon the issuance

of the approved petition by the municipal clerk on June 21, 2023,

the coalition had 60 days to collect approximately 70,000

signatures. See City of Atlanta, Ga. Code of Ordinances § 66-37(b).

Because the requirements of § 66-37 of the Municipal Code

are at issue in this case, it is necessary to first examine the language

of that section of the code before continuing with the procedural

history of the case. That section provides as follows:

(a) Whenever 15 percent of the registered voters,

as disclosed by registration lists of the last preceding

general municipal election, shall request, in a petition

filed with the municipal clerk, amendments to the

Charter or amendments to or repeals of ordinances

1 The municipal clerk noted, when approving the petition, that “this approval

as to form does not reflect any judgment or agreement by anyone at the City

as to the lawfulness or substantive validity of the petition itself.”

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23-12469 Opinion of the Court 5

or resolutions which may have already been adopted

by the council, the amendments or repeals shall

thereafter be submitted to the qualified voters of the

city. Such petition shall specifically set forth the exact

language of the proposed amendment or repeal. The

council shall determine the validity of such petition

within 50 days of its filing. If such petition is

determined valid, within one week the council shall

issue the call for a special election for the purpose of

submitting such amendment or repeal to the

registered electors of the city for their approval or

rejection. The council shall set the date of the special

election as provided in O.C.G.A. § 21-3-53. The

council shall cause a notice of the date of the election

to be published in a newspaper of general circulation

once a week for two weeks immediately preceding

such date. The voting on questions submitted to the

people at the special election provided for in this

section in what is known as the initiative and

referendum shall be held in the same manner as the

general election, under the same methods, and the

result thereof shall be canvassed in the same manner

and declared and reported to the council for

confirmation. If the majority of the votes are cast

against the ordinance or resolution, it shall be thereby

repealed and revoked and shall not thereafter be of

any effect nor shall it thereafter be adopted by the

council until resubmitted to and adopted by the

qualified voters of the city in the same manner as

originally submitted. If a majority of the votes are

cast in the affirmative, the ordinance or resolution

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6 Opinion of the Court 23-12469

shall stand and be effective in the same manner as

other ordinances or resolutions of the city. If the

council determines that the petition is not valid, it

shall publish in detail, in a newspaper of general

circulation in the week immediately following the

date on which the petition is declared to be not valid,

the reasons why such petition is not valid.

(b) The sponsor of a petition authorized by this

section shall obtain copies of all official petitions from

the municipal clerk. The municipal clerk shall

approve all petitions as to form. The municipal clerk

shall provide a place on each form for the person

collecting signatures to provide such person’s name,

street address, city, county, state, ZIP code and

telephone number and to swear that such person is a

resident of the city and that the signatures were

collected inside the boundaries of the city. The

collection of signatures for the petition shall begin on

the day the municipal clerk provides official copies to

the sponsor of the petition. A petition authorized by

this section shall not be accepted by the council for

verification if more than 60 days have elapsed since

the date the sponsor of the petition first obtained

copies of the petition from the municipal clerk.

(c) The council shall be authorized to submit to

the qualified voters of the city at any election any

ordinance or resolution which it may deem proper. If

a majority of voters shall vote for this ordinance or

resolution, it shall be adopted. If a majority of the

votes so cast are against the resolution or ordinance,

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it shall be defeated and shall not thereafter be adopted

by the council until resubmitted to and adopted by

the qualified voters of the city. If it receives a majority

vote of the people and becomes effective, it can only

be repealed by a majority vote of the qualified voters

at a special election. . . .

City of Atlanta, Ga. Code of Ordinances § 66-37.

Municipal Ordinance 66-37 is derived from—and is virtually

identical to—Georgia’s Home Rule for Municipalities Act,

O.C.G.A. § 36-35-3 (“Home Rule Act”). The Home Rule Act

provides, in relevant part, as follows:

(a) The governing authority of each municipal

corporation shall have legislative power to adopt

clearly reasonable ordinances, resolutions, or

regulations relating to its property, affairs, and local

government for which no provision has been made by

general law and which are not inconsistent with the

Constitution or any charter provision applicable

thereto. Any such charter provision shall remain in

force and effect until amended or repealed as

provided in subsection (b) of this Code section. . . .

(b) Except as provided in Code Section 36-35-6, a

municipal corporation may, as an incident of its home

rule power, amend its charter by following either of

the following procedures:

....

(2)(A) Amendments to charters or

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8 Opinion of the Court 23-12469

amendments to or repeals of ordinances,

resolutions, or regulations adopted pursuant to

subsection (a) of this Code section may be

initiated by a petition, filed with the governing

authority of the municipal corporation,

containing, [a certain percentage of signatures

based on the relevant population of the

municipality]. . . .

(C) The sponsor of a petition authorized by

this paragraph shall obtain copies of all official

petitions from the clerk of the governing

authority. The clerk of the governing

authority shall approve all petitions as to form.

The clerk of the governing authority shall provide a

place on each form for the person collecting

signatures to provide his or her name, street

address, city, county, state, ZIP Code, and

telephone number and to swear that he or she is a

resident of the municipality affected by the petition

and that the signatures were collected inside

the boundaries of the affected municipality.

The collection of signatures for the petition

shall begin on the day the clerk of the

governing authority provides official copies to

the sponsor of the petition. A petition

authorized by subparagraph (A) of this

paragraph shall not be accepted by the

governing authority for verification if more

than 60 days have elapsed since the date the

sponsor of the petition first obtained copies of

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23-12469 Opinion of the Court 9

the petition from the clerk of the governing

authority.

O.C.G.A. § 36-35-3 (emphasis added).

With these statutes in mind, we turn back to the events

giving rise to the present case. Appellees Baker, Dougherty, Jones,

and Weltner live in DeKalb County—outside the city limits of

Atlanta but near the proposed training facility—and they oppose

the construction of the training facility and desire to assist with

signature collection for the referendum petition. 2 However,

because of § 66-37(b)’s residency requirement for signature

gatherers, they were unable to collect signatures. Therefore, on

July 6, 2023, they filed a complaint, along with a motion for a

preliminary injunction, against the City 3 challenging the

constitutionality of § 66-37(b)’s requirement that signature

gatherers be residents of the City, arguing that it violated their First

Amendment rights because it prevented them from collecting

signatures for the referendum petition. Accordingly, they

requested (1) a declaration that the signature gatherer residency

requirement in § 66-37(b) violates the First Amendment on its face

and as applied; (2) a preliminary and permanent injunction

prohibiting the City from enforcing the residency requirement in

2 No one disputes that these individuals are not the petition’s sponsors or

members of the coalition.

3 Initially, the State of Georgia was also a named defendant, but the State

asserted that it was immune from suit pursuant to the Eleventh Amendment

and that it did not consent to jurisdiction. Thereafter, the plaintiffs filed a

motion to dismiss the State as a party, which the district court granted.

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§ 66-37(b); 4 (3) a preliminary injunction requiring the City to issue

new referendum petitions without the signature gatherer

residency restriction; (4) a preliminary injunction that restarted the

60-day period for collecting signatures upon the issuance of the

court’s order with the provision that all existing previously

collected signatures be counted; and (5) attorney’s fees.

The City opposed the request for injunctive relief, arguing

that the plaintiffs did not satisfy the four necessary requirements

for obtaining a preliminary injunction. First, it argued that there

was not a substantial likelihood of success on the merits because

§ 66-37(b)’s residency requirement did not infringe on a

nonresident’s political speech and was therefore not subject to

strict scrutiny. Second, the City argued that the proposed

referendum was invalid because, among other reasons, in Kemp v.

City of Claxton, 496 S.E.2d 712 (Ga. 1998), the Supreme Court of

Georgia held that O.C.G.A. § 36-35-3(b)(2), from which § 66-37(b)

derives, can be used only to amend city charters and does not apply

to city ordinances. Third, the City argued that its interest in

ensuring the “integrity of its political process” outweighed the

plaintiffs’ alleged injury. And finally, the City argued that, if the

residency requirement was unconstitutional, the appropriate

remedy was to strike down the ordinance in its entirety and enjoin

4 Section 66-37(b) also imposes a residency requirement for individuals who

sign the petition. See City of Atlanta, Ga. Code of Ordinances § 66-37(b). That

requirement was not challenged below and is not at issue in this appeal.

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the entire petition process—not sever portions as the plaintiffs

requested.

On July 27, 2023—approximately 35 days into the signature

collection period—the district court granted the motion for a

preliminary injunction after applying the traditional four-factor test

for preliminary injunctive relief. 5 First, the district court found that

the plaintiffs had shown a substantial likelihood of success on the

merits. The district court reached this conclusion by first

determining that § 66-37(b)’s signature gatherer residency

restriction was subject to strict scrutiny based on the Supreme

Court’s decisions in Meyer v. Grant, 486 U.S. 414 (1988), and Buckley

v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999),

as well as decisions from a number of other circuits to have

considered similar requirements. The district court explained that

the residency requirement clearly limit[ed] the

number of persons who [could] promote the

petition’s message thereby limiting the potential

number of the City’s residents who [could] receive

the political message and [made] it less likely that the

5 “A district court may grant a preliminary injunction only if the moving party

establishes that: (1) it has a substantial likelihood of success on the merits; (2) it

will suffer an irreparable injury unless the injunction is granted; (3) the harm

from the threatened injury outweighs the harm the injunction would cause

the opposing party; and (4) the injunction would not be adverse to the public

interest.” Gonzalez v. Governor of Ga., 978 F.3d 1266, 1270–71 (11th Cir. 2020)

(footnote omitted).

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proponents of the petition [could] gather sufficient

signatures to place the initiative on the ballot.

Therefore, the court concluded that, under Meyer, the residency

requirement imposed “a severe burden on core political speech”

and was subject to strict scrutiny.

The district court then found that the residency requirement

was not narrowly tailored to serve a compelling governmental

interest, noting that the City failed to present any argument on this

point. In reaching this conclusion, the district court rejected the

City’s argument that the restriction served a legitimate interest of

restricting the right to participate in the political process only to the

City’s own residents, explaining that the restriction was not

narrowly tailored to serve that interest given that “only residents

can sign petitions and vote in referendum elections.” Accordingly,

the district court concluded that the plaintiffs had established a

substantial likelihood of success on the merits for purposes of

obtaining a preliminary injunction.

Second, the district court concluded that the plaintiffs had

established that they would suffer irreparable harm in the absence

of an injunction because it was well-established that “[t]he loss of

First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” The district court

noted the City’s contention that the referendum itself was invalid

under the Supreme Court of Georgia’s decision in Kemp, but

concluded that “the issue of the ultimate validity of the proposed

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referendum to [the leasing ordinance] [was] not ripe for decision

by this [c]ourt.”

Finally, the district court explained that the remaining two

preliminary injunction factors—the balance of equities/harm to

opposing party and the public interest—merged because the

government was the opposing party. The district court then

concluded that these factors weighed in favor of the request for

injunctive relief.

Consequently, the district court enjoined the City from

“enforcing the portion of . . . § 66-37(b) that requires the person

collecting signatures to swear that such person is a resident of the

City of Atlanta”; ordered the municipal clerk to issue new copies of

the referendum petition that removed “the requirement that the

person collecting signatures swear that such person is a resident of

the City of Atlanta”; and ordered that the 60-day statutory period

for collecting signatures would restart on the date the new

referendum petitions were issued, although all valid signatures

previously collected “shall be counted” along with any new

signatures collected at the end of the new collection period.

The City promptly appealed and obtained a stay of the

injunction from this Court. We later directed the parties to address

whether they had satisfied the requirements for Article III standing

and whether the appeal was moot in light of the completion of

construction on the facility.

We begin our analysis by addressing the issue of whether

case is moot. Because we conclude that the case is not moot, we

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14 Opinion of the Court 23-12469

then address whether the plaintiffs have Article III standing. Based

on our conclusion that they have Article III standing, we proceed

to review the merits of the preliminary injunction.

II. Discussion

A. Mootness

Article III of the Constitution limits our jurisdiction to

“Cases” and “Controversies.” U.S. Const. art. III, § 2. As a result,

“we cannot entertain [an] appeal unless an actual dispute continues

to exist between the parties.” Bourgeois v. Peters, 387 F.3d 1303,

1307–08 (11th Cir. 2004). “If events that occur subsequent to the

filing of a lawsuit or an appeal deprive the court of the ability to

afford the plaintiff or appellant meaningful relief, then the case

becomes moot and must be dismissed.” Graham v. Att’y Gen., State

of Ga., 110 F.4th 1239, 1244 (11th Cir. 2024) (quotations omitted).

“[M]ootness is a jurisdictional issue that must be resolved at the

threshold.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of

Health & Rehab. Servs., 225 F.3d 1208, 1227 n.14 (11th Cir. 2000).

We review de novo whether a case is moot. Sheely v. MRI Radiology

Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007).

The City argues that the case is now moot because

construction of the facility is substantially complete, and the

plaintiffs’ goal with the referendum has always been to stop

construction of the facility, which means there is no meaningful

relief available. We disagree.

Although the plaintiffs’ ultimate goal may have been to stop

the construction of the training facility, it does not follow that there

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is no meaningful relief available to them in this appeal. The

plaintiffs in this case sought to enjoin the City from enforcing a

residency requirement for signature gatherers of a referendum

petition. The referendum petition sought to repeal the ordinance

that authorized the lease of the land for the facility—an ordinance

and lease that still exist irrespective of the construction of the

facility. Thus, despite construction of the facility, the plaintiffs still

have a concrete interest in this case and there is meaningful relief

available—if successful in this appeal, they could collect enough

signatures to send their referendum petition to the ballot and seek

to repeal the leasing ordinance. See Knox v. Serv. Emps. Int’l Union,

Local 1000, 567 U.S. 298, 307–08 (2012) (“As long as the parties have

a concrete interest, however small, in the outcome of the litigation,

the case is not moot.” (alterations adopted) (quotation omitted)).

The City argues that the case is moot because repeal of the

leasing ordinance would not change the status quo and could not

invalidate the actual lease agreement because of Georgia’s

constitutional prohibition against the impairment of contracts, but

this argument confuses the mootness inquiry with the merits. The

plaintiffs’ ultimate prospects of success and the legal availability of

certain types of relief are not pertinent to the mootness inquiry.

See, e.g., MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S.

288, 295 (2023) (rejecting argument that case was moot because no

legal vehicle was available to achieve the ultimate relief sought in

the suit); Chafin v. Chafin, 568 U.S. 165, 174 (2013) (rejecting a

party’s argument that the case was moot because the district court

allegedly lacked the authority to grant the relief requested and

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16 Opinion of the Court 23-12469

explaining that the “prospects of success are . . . not pertinent to

the mootness inquiry”).

Accordingly, we conclude that the case is not moot for

purposes of Article III. 6 We now turn to whether the plaintiffs have

established Article III standing.

B. Standing

We have an independent obligation to ensure that we have

jurisdiction by determining whether the parties have Article III

standing. See Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir.

2019) (en banc); see also United States v. Hays, 515 U.S. 737, 742 (1995)

(“The question of standing is not subject to waiver, [and w]e are

required to address the issue even if the courts below have not

passed on it, and even if the parties fail to raise the issue before us.”

6 Alternatively, the City argues that, even if the case is not moot in the

constitutional sense, we should invoke the prudential mootness doctrine.

Prudential mootness is a discretionary equitable doctrine that is not concerned

with our Article III powers, and, therefore, is not jurisdictional. Penthouse Int’l,

Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991) (explaining that the

prudential mootness doctrine “is concerned, not with the court’s power under

Article III to provide relief, but with the court’s discretion in exercising that

power”). Under this rarely invoked doctrine, we may exercise our discretion

and decline to grant relief in the context of a controversy that has become “so

attenuated that considerations of prudence and comity . . . counsel the court

to stay its hand, and to withhold relief it has the power to grant.” Chamber of

Com. v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980). We decline to

invoke this doctrine here because, as explained above, there is a legitimate

possibility of meaningful relief in this case and there is no reason to stay our

hand.

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(quotations omitted)). Here, we requested that the parties brief

standing, and it was extensively discussed at oral argument.

As discussed previously, Article III of the Constitution limits

our jurisdiction to “Cases” and “Controversies.” U.S. Const. art.

III, § 2. The standing doctrine is an essential part of this case-or-

controversy requirement.

“[T]o satisfy Article III’s standing requirements, a plaintiff

must show (1) [she] has suffered an ‘injury in fact’ that is

(a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will be redressed by a

favorable decision.” Lowman v. Fed. Aviation Admin., 83 F.4th 1345,

1355 (11th Cir. 2023); see also Lewis, 944 F.3d at 1296 (same).

“Because standing to sue implicates jurisdiction, a court must

satisfy itself that the plaintiff has standing before proceeding to

consider the merits of her claim, no matter how weighty or

interesting.” Lewis, 944 F.3d at 1296; see also Hays, 515 U.S. at 742

(explaining that “standing is perhaps the most important of the

jurisdictional doctrines” and federal courts “are required to address

[standing] even if the court[] below [has] not passed on it, and even

if the parties fail to raise the issue . . . . (alterations adopted)

(quotations omitted)).

“The burden is on the party seeking to exercise jurisdiction

to allege and then to prove facts sufficient to support jurisdiction.”

Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir. 2001) (quotations

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18 Opinion of the Court 23-12469

omitted). When, as here, we are at the early stages of litigation

where a preliminary injunction is being sought and the issue of

standing was not raised in the district court, we apply the same

standard as when standing is raised on a motion to dismiss,

focusing on the sufficiency of the allegations in the complaint. 7 See

Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994);

Bischoff v. Osceola County, 222 F.3d 874, 882 n.8 (11th Cir. 2000)

(discussing City of Huntsville’s standard for demonstrating standing

at the preliminary injunction stage of litigation). Under this

standard, “general factual allegations of injury” can suffice, and

“[w]e accept as true all material allegations contained in the

complaint and construe the complaint in a light most favorable to

the complaining party.” Elend v. Basham, 471 F.3d 1199, 1208 (11th

Cir. 2006). Furthermore, in evaluating whether the plaintiffs have

established Article III standing, “we must assume that on the merits

[the plaintiffs] would be successful” on their claim. See Garcia-

Bengochea v. Carnival Corp., 57 F.4th 916, 922 (11th Cir. 2023);

Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 994 (11th Cir. 2016);

see also Fed. Election Comm’n v. Cruz, 596 U.S. 289, 298 (2022) (“For

standing purposes, we accept as valid the merits of appellees’ legal

7 We note, however, that in cases where standing is contested in the district

court, we have not decided what degree of evidence is necessary to establish

standing at the preliminary injunction stage. See Church v. City of Huntsville, 30

F.3d 1332, 1336 n.1 (11th Cir. 1994) (“We leave for another day a

determination of the degree of evidence necessary to support standing at the

preliminary injunction stage when the plaintiff is on notice that standing is

contested.”).

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claims, so we must assume that the loan-repayment

limitation . . . unconstitutionally burdens speech.”).

i. Injury in Fact

Baker, Dougherty, Jones, and Weltner allege that they have

suffered a First Amendment injury because § 66-37(b)’s residency

requirement for signature gatherers “markedly reduces the pool of

people who can circulate petitions” and “bars [them] from

collecting signatures on their own, and thereby deprives [them] of

the opportunity to collect signatures on a matter on which they are

politically engaged and that directly affects them.” In other words,

they allege their speech is chilled by the residency requirement for

signature gatherers. While we express no opinion on the merits of

the plaintiffs’ assertion that § 66-37(b)’s residency requirement

violates the First Amendment, accepting their allegations as true

and assuming they would be successful on the merits as we must

at this preliminary stage of the proceedings, we conclude that their

allegations are sufficient to establish an injury in fact for purposes

of Article III standing. See Libertarian Party of Va. v. Judd, 718 F.3d

308, 311, 315 (4th Cir. 2013) (concluding that the Libertarian Party

of Virginia’s allegations that the requirement that a resident of the

state witness signatures on nominating petitions limited the

number of petition circulators and the size of the audience it could

reach “constitute[d] an injury in fact for standing purposes”); Krislov

v. Rednour, 226 F.3d 851, 856–57 (7th Cir. 2000) (holding that

political candidates had standing to challenge Illinois’s requirement

that nominating petition circulators be registered resident “voters

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20 Opinion of the Court 23-12469

of the same political subdivision for which the candidate is seeking

office” because the requirement allegedly deprived the candidates

of the political advocates of their choice and limited the number of

people who could carry their message, which “can be an injury to

First Amendment rights”); Lerman v. Bd. of Elections in the City of

N.Y., 232 F.3d 135, 139, 142–43 (2d Cir. 2000) (concluding that

plaintiff had sufficiently alleged an injury in fact when she claimed

that New York’s requirement that petition signatures be witnessed

by a person who was a “resident of the political subdivision in

which the office or position [was] to be voted for” deprived the

plaintiff of her First Amendment right to “gather signatures [o]n

behalf of” the candidate of her choice).

ii. Traceability

The second question we must consider in determining

whether the plaintiffs have standing is whether the asserted “injury

is fairly traceable to the challenged action of the defendant.”

Lowman, 83 F.4th at 1355. The traceability requirement is also

sometimes referred to as a “causation” requirement—meaning the

plaintiffs must demonstrate “a fairly . . . traceable connection

between the alleged injury in fact and the alleged conduct of the

defendant.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 771 (2000) (alterations adopted) (quotations omitted).

We have repeatedly emphasized that “the traceability requirement

is less stringent than proximate cause: ‘[e]ven a showing that a

plaintiff’s injury is indirectly caused by a defendant’s actions

satisfies the fairly traceable requirement.’” Cordoba v. DIRECTV,

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23-12469 Opinion of the Court 21

LLC, 942 F.3d 1259, 1271 (11th Cir. 2019) (quoting Resnick v. AvMed,

Inc., 693 F.3d 1317, 1324 (11th Cir. 2012)).

The plaintiffs here easily satisfy the traceability requirement.

Their alleged injuries are the direct result of the City’s enforcement

of § 66-37(b). In fact, the initial referendum petition submitted to

the municipal clerk was rejected as to form by the clerk because

the draft provided “[did] not comply with the legal requirement

that the petition contain a place on each form for the person

collecting signatures to provide his or her name, street address,

city, county, state, ZIP code, and telephone number and to swear

that he or she is a resident of the City of Atlanta.” By enforcing the

requirement that the referendum petition include a space “for the

person collecting signatures . . . to swear that he or she is a resident

of the City of Atlanta,” the City foreclosed the ability of the

plaintiffs who are nonresidents to collect signatures. Accordingly,

the plaintiffs have satisfied the traceability requirement for

purposes of Article III.

iii. Redressability

The final requirement of Article III standing is that the

plaintiffs demonstrate that “it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Lowman, 83 F.4th at 1355. In other words, the plaintiffs

need to demonstrate that “a court decision can . . . eliminate the

harm.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th

Cir. 2020) (en banc); see also Lewis, 944 F.3d at 1301 (en banc)

(explaining that the redressability inquiry “ask[s] whether a

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22 Opinion of the Court 23-12469

decision in a plaintiff’s favor would significant[ly] increase . . . the

likelihood that [the plaintiff] would obtain relief that directly

redresses the injury that she claims to have suffered” (second

alteration in original) (quotations omitted)).

Here, the plaintiffs satisfy redressability because they

requested that the district court enjoin enforcement of the

residency requirement in local ordinance § 66-37(b) and the

identical requirement in Georgia’s Home Rule Act for

Municipalities, O.C.G.A. § 36-35-3(b)(2)(C), from which ordinance

§ 66-37(b) flows. Enjoining enforcement of the residency

requirement would remedy their alleged harm—their inability to

collect signatures for referendum petitions as non-residents of the

City. Thus, at this preliminary stage of the proceedings, the

plaintiffs have included sufficient allegations and requests for relief

that satisfy the redressability element of Article III standing.

The City argues that the plaintiffs cannot show

redressability because the preliminary injunction the district court

issued enjoining the residency requirement in municipal ordinance

§ 66-37(b) was silent as to the residency requirement in O.C.G.A.

§ 36-35-3(b)(2)(C), and the City is still required to follow O.C.G.A.

§ 36-35-3. In other words, according to the City, the preliminary

injunction that issued does not eliminate the plaintiffs’ harm

because under § 36-35-3(b)(2)(C) non-residents of the city are still

prohibited from collecting signatures for referendum petitions.

We disagree. The City’s argument confuses the question of

redressability with the remedy actually granted. Properly framed,

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23-12469 Opinion of the Court 23

the appropriate question is whether the district court could have

redressed the plaintiffs’ injury. Here, the district court could have

redressed the alleged injury by enjoining both the municipal

ordinance in § 66-37(b) and O.C.G.A. § 36-35-3. The fact that the

district court did not enjoin O.C.G.A. § 36-35-3 does not affect

whether the plaintiffs have shown redressability. Accordingly, we

conclude that the plaintiffs have satisfied the redressability

requirement for purposes of Article III.

Having concluded that the plaintiffs have standing, we now

turn to the merits of the arguments concerning the preliminary

injunction.

C. Preliminary Injunction

The City maintains that the district court abused its

discretion for a variety of reasons in granting the plaintiffs’ request

for a preliminary injunction.8 We focus our analysis on whether

the plaintiffs established irreparable harm.

As noted previously, a district court may grant a preliminary

injunction only if the moving party establishes, among other

factors, that “it has a substantial likelihood of success on the merits”

and that “it will suffer an irreparable injury unless the injunction is

granted.” Gonzalez, 978 F.3d at 1271; see also Siegel v. LePore, 234

F.3d 1163, 1176 (11th Cir. 2000) (en banc) (“[A] preliminary

8 “We review the grant of a preliminary injunction for abuse of discretion,

reviewing any underlying legal conclusions de novo and any findings of fact for

clear error.” Gonzalez, 978 F.3d at 1270.

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24 Opinion of the Court 23-12469

injunction is an extraordinary and drastic remedy not to be granted

unless the movant clearly established the burden of persuasion as

to each of the . . . prerequisites.” (quotations omitted)). The

substantial likelihood of success on the merits requirement is

generally the most important factor. Gonzalez, 978 F.3d at 1271

n.12. Nevertheless, “even if Plaintiffs establish a likelihood of

success on the merits, the absence of a substantial likelihood of

irreparable injury would, standing alone, make preliminary

injunctive relief improper.” Siegel, 234 F.3d at 1176; see id. (“A

showing of irreparable injury is the sine qua non of injunctive

relief.” (quotations omitted)).

Here, the City maintains that even if we assume arguendo

that the plaintiffs showed a substantial likelihood of success on the

merits, injunctive relief is not appropriate because under the

Supreme Court of Georgia’s Kemp decision, the plaintiffs cannot

use the referendum process to repeal a local ordinance and thus the

plaintiffs cannot show irreparable harm. 9 We agree.

9 The district court declined to reach the City’s argument that the plaintiffs

could not show irreparable harm because the referendum petition itself was

invalid under Kemp, concluding that the validity of the petition was not ripe

for review. Instead, the district court explained that, in its view, the only issue

before the court was “whether Atlanta Municipal Code § 66-37(b) violates the

First Amendment by requiring signature gatherers to be City residents.”

However, in order to determine whether § 66-37(b)’s residency requirement

irreparably harms the plaintiffs’ First Amendment rights, the court must first

determine whether the referendum process is an available process in the first

instance. If the referendum process is not an available means to challenge the

leasing ordinance for the new training facility, then there necessarily cannot

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23-12469 Opinion of the Court 25

In Kemp, the Supreme Court of Georgia held that the

petition procedure in subsection O.C.G.A. § 36-35-3(b)(2)—from

which Atlanta’s virtually identical local ordinance § 66-37(b)

flows—“applies only to amendments to municipal charters.” 496

S.E.2d at 716. In reaching this conclusion, the court reasoned as

follows:

The cardinal rule of statutory interpretation is to

ascertain the legislative intent, “keeping in view at all

times the old law, the evil, and the remedy.” OCGA

§ 1–3–1(a); Miller v. Georgia Ports Auth., 266 Ga. 586,

587(1), 470 S.E.2d 426 (1996). A primary purpose of

the Municipal Home Rule Act was to authorize

municipalities to amend their charters by their own

actions. Sadler v. Nijem, 251 Ga. 375, 376, 306 S.E.2d

257 (1983). The Act was passed under the authority

of a 1954 amendment to the Constitution of the State

of Georgia, which is currently found at Art. IX, Sec.

II, Par. II. Prior to the 1954 amendment and the

Home Rule Act of 1965, city charters were

amendable only by acts of the General Assembly. See

Sadler, supra; Phillips v. City of Atlanta, 210 Ga. 72, 77

S.E.2d 723 (1953). The two procedures of OCGA

§ 36–35–3(b) were enacted to relieve the General

Assembly of its earlier burden of separately

amending each and every city charter in the state.

be any irreparable injury. In other words, the answer to the irreparable harm

question is inextricably intertwined with, and dependent upon, the answer to

the Kemp-based question.

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26 Opinion of the Court 23-12469

Moreover, a statute is to be read as a whole, and the

spirit and intent of the legislation prevails over a

literal reading of the language. Hargrove v. State, 253

Ga. 450, 452(1), 321 S.E.2d 104 (1984); Sirmans v.

Sirmans, 222 Ga. 202, 204, 149 S.E.2d 101 (1966). The

legislative intent will be effectuated even if some

language must be eliminated. Maples v. City of Varnell,

244 Ga. 163, 164, 259 S.E.2d 94 (1979). The language

upon which the [the plaintiffs rely] is the reference to

“amendments to or repeals of ordinances,

resolutions, or regulations,” found in OCGA

§ 36-35-3(b)(2)(A). All of OCGA § 36–35–3(b) is

prefaced by a statement that what follows are the

methods by which a municipal corporation may

“amend its charter.” This also shows that the petition

and referendum provision is intended to be available

only when the proposed amendment is intended to

affect a city charter.

Further, when examined in the context of the

structure of OCGA § 36–35–3, the very concept of

home rule suggests that the provisions of (b)(2) apply

only to charter amendments. Municipal corporations

are creations of the state, possessing only those

powers that have been granted to them, and

allocations of power from the state are strictly

construed. Porter v. City of Atlanta, 259 Ga. 526, 384

S.E.2d 631 (1989). Municipal home rule power is a

delegation of the General Assembly’s legislative

power to the municipalities. Ga. Const. of 1983, Art.

IX, Sec. II, Par. II; Cooper v. City of Gainesville, 248 Ga.

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23-12469 Opinion of the Court 27

269, 270, 282 S.E.2d 322 (1981); Plantation Pipe Line Co.

v. City of Bremen, 227 Ga. 1, 6(1), 178 S.E.2d 868 (1970).

OCGA § 36–35–3(a) specifies that the delegation of

legislative power is to “[t]he governing authority,”

which is the Mayor and Council. See Savage v. City of

Atlanta, 242 Ga. 671, 674–675(1), 251 S.E.2d 268

(1978). Under an interpretation of OCGA § 36–35–

3(b)(2) that would allow the electorate to petition for

a referendum on all ordinances and resolutions, the

electorate would be exercising legislative power. As

we must strictly construe the grant of legislative

power to the governing authority, we must reject

plaintiffs’ argument that the electorate can directly

exercise such general legislative power.

Kemp, 496 S.E.2d at 715–16.

Although the plaintiffs correctly point out that the reasoning

of Kemp has been called into question by the Supreme Court of

Georgia’s recent decision in Camden County v. Sweatt, 883 S.E.2d

827 (Ga. 2023), 10 the fact remains that Kemp is still controlling

10 In Sweatt, the Supreme Court of Georgia considered whether Article 9,

Section 2 of the Georgia Constitution, which is the “Home Rule for counties”

provision, authorized a referendum to overturn county resolutions. 883

S.E.2d at 835–36. Similar to the Home Rule for municipalities, the Home Rule

for counties states that:

(a) The governing authority of each county shall have

legislative power to adopt clearly reasonable ordinances,

resolutions, or regulations relating to its property, affairs,

and local government for which no provision has been

made by general law and which is not inconsistent with

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28 Opinion of the Court 23-12469

precedent in Georgia, and we are bound by Kemp unless and until

it is overruled. See Gonzalez, 978 F.3d at 1271 (explaining that we

are “bound by the decisions of the Supreme Court of Georgia on

questions of Georgia law”); Johnson v. 3M Co., 55 F.4th 1304, 1312

this Constitution or any local law applicable thereto. Any

such local law shall remain in force and effect until

amended or repealed as provided in subparagraph (b). . . .

(b) Except as provided in subparagraph (c), a county may, as

an incident of its home rule power, amend or repeal the

local acts applicable to its governing authority by

following either of the procedures hereinafter set forth:

(1) Such local acts may be amended or repealed by

a resolution or ordinance duly adopted at two

regular consecutive meetings of the county

governing authority not less than seven nor more

than 60 days apart. . . .

(2) Amendments to or repeals of such local acts or

ordinances, resolutions, or regulations adopted

pursuant to subparagraph (a) hereof may be

initiated by a petition filed with the judge of the

probate court of the county. . . .

Ga. Const., art. 9, § II, ¶ I(b) (emphasis added). Based on the plain text of the

constitutional provision, the Sweatt court held that “the Home Rule Paragraph

authorized the County’s electorate to petition for the repeal of the

Resolutions.” Sweatt, 883 S.E.2d at 838. The court recognized that its holding

created “tension with Kemp,” but concluded that Kemp was not controlling

because it involved “a completely separate legal provision.” Id. Thus, the

court concluded that it “need not consider at this time whether Kemp should

be overruled,” although it disapprovingly noted that the Kemp court

disregarded many of the traditional canons of statutory construction in

reaching its decision. Id.

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23-12469 Opinion of the Court 29

(11th Cir. 2022) (stating that “[t]he Georgia Supreme Court’s latest

word . . . controls us when it comes to Georgia law”).

As applied to the present case, Kemp forecloses the use of a

referendum petition under O.C.G.A. § 36-35-3(b)(2)—and by

necessary extension Atlanta’s local ordinance § 66-37(b)—to repeal

the leasing ordinance, because that ordinance does not affect the

City’s charter. 11 In other words, the plaintiffs and the coalition

11 Alternatively, the plaintiffs argue that, notwithstanding Kemp, § 2-501 of the

City charter independently authorizes the referendum process. We disagree.

Section 2-501 of the City charter, entitled “initiative and referendum,”

provides as follows:

(a) The council shall by ordinance prescribe procedures to

govern the initiation, adoption, and repeal of ordinances

by the electorate, and the council shall authorize an

initiative or referendum election on petition of at least 15

percent of the registered voters qualified to vote in the

preceding general municipal election.

(b) The council shall be authorized to submit to the qualified

voters of the city at any election not called only for the

purpose of putting said ordinance or resolution before the

voters any ordinance or resolution which it may deem

proper; and in the event a majority of voters shall vote for

this ordinance or resolution, it shall be adopted. If a

majority of the votes so cast are against the resolution or

ordinance, it shall be defeated and shall not thereafter be

adopted by the council until resubmitted to and adopted

by the qualified voters of the city. If it receives a majority

vote of the people and becomes effective, then it can only

be repealed by a majority vote of the qualified voters

voting at an election for such purpose.

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30 Opinion of the Court 23-12469

sponsoring the petition cannot use the referendum process to

repeal a local ordinance. 12 Kemp, 496 S.E.2d at 716. And because

no petition for referendum can lie to repeal a local ordinance, the

plaintiffs necessarily will not suffer any irreparable harm from

being denied the right to gather petitions for a referendum process

that is unavailable to them as a matter of state law. In sum,

contrary to the dissent’s position, because Georgia never granted

the plaintiffs a referendum or repeal process for city ordinances in

the first place, they cannot be irreparably harmed from being

denied the ability to participate in an unavailable process. Thus,

they cannot satisfy the irreparable injury requirement for obtaining

an injunction.

Atlanta City Charter § 2-501. Under well-established principles of local

government law, this section merely authorizes the City to adopt procedures

for petitions and referendum, pursuant to constraints of general state laws,

including O.C.G.A. § 36-35-3(b)(2). It does not give the City the independent

power to authorize referendum processes beyond those authorized under

O.C.G.A. § 36-35-3. See Kemp, 496 S.E.2d at 715 (“[M]unicipal corporations are

creations of the state, possessing only those powers that have been granted to

them, and allocations of power from the state are strictly construed.”); City of

Doraville, 181 S.E.2d at 350 (“A municipality, being a creature of the State has

only such direct power as is granted to it by the State and if there is a

reasonable doubt of the existence of a particular power, the doubt is to be

resolved in the negative.”); Ivey v. McCorkle, 806 S.E.2d 231, 233 (Ga. Ct. App.

2017) (“An ordinance enacted in violation of OCGA § 36-35-3[] is void.”).

12 Because we conclude that a petition for referendum to repeal a local

ordinance cannot lie under Kemp, we do not reach the City’s alternative

argument that the referendum is invalid because it seeks to impair a contract.

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23-12469 Opinion of the Court 31

Because the district court erred in concluding that the

plaintiffs met the requirement of showing irreparable injury, we

need not address the other injunctive factors. Accordingly, for the

above reasons, we conclude that the district court abused its

discretion in granting the plaintiffs’ request for preliminary

injunction. 13

III. Conclusion

In light of the above, we conclude that the plaintiffs have

Article III standing and the case is not moot. However, because

13 We note that the City made a number of other arguments on appeal,

including (1) that the district court violated Purcell v. Gonzlaez, 549 U.S. 1

(2006), when issuing the injunction; (2) that the plaintiffs did not show a

substantial likelihood of success on the merits; (3) that the referendum seeks

to impair a contract; (4) that the third and fourth injunctive factors did not

support the request for injunctive relief; and (5) that the district court erred in

severing the contested residency requirement from the remainder of

§ 66-37(b). Because we conclude that the plaintiffs failed to satisfy the

irreparable injury requirement, it is unnecessary for us to address these

arguments.

With regard to the City’s argument that the district court erred in the

scope of the remedy by restarting the 60-day signature collection period for

everyone, including residents of the City whose alleged First Amendment

rights were not burdened, we note that “[t]he Supreme Court has cautioned

that remedies should be limited to the inadequacy that produced the injury in

fact that the plaintiff has established, and no more burdensome to the

defendant than necessary to provide complete relief to the plaintiffs.” Georgia

v. President of the United States, 46 F.4th 1283, 1303 (11th Cir. 2022) (quotations

omitted). Nevertheless, we also do not reach this issue because we conclude

irreparable harm is not met and the injunction was improper in the first

instance.

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32 Opinion of the Court 23-12469

the plaintiffs failed to show an irreparable injury, the district court

abused its discretion in granting the preliminary injunction.

Accordingly, we vacate the injunction and remand the case to the

district court for further proceedings.

VACATED AND REMANDED.

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23-12469 NEWSOM, J., Dissenting 1

NEWSOM, Circuit Judge, dissenting:

Bracketing the question whether the plaintiffs have shown a

substantial likelihood of success on the merits of their First

Amendment claim, the Court vacates the district court’s

preliminary injunction on the ground that they haven’t

demonstrated “irreparable injury.” Respectfully, I disagree.

To be clear, the Court doesn’t dispute the established (and

recently reaffirmed) principle that “[t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Mahmoud v. Taylor, 606 U.S. 522,

569 (2025) (quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 592

U.S. 14, 19 (2020) (per curiam)). Instead, the Court seems to say

that the plaintiffs’ “First Amendment freedoms” never really

materialized here because (1) under the Georgia Supreme Court’s

decision in Kemp v. City of Claxton, 496 S.E.2d 712 (Ga. 1998),

Section 66-37(b)’s “referendum process” applies only to municipal-

charter amendments, and (2) the plaintiffs aren’t seeking to amend

Atlanta’s city charter, and thus can’t avail themselves of that

“referendum process.” Maj. Op. at 24–29.

I don’t think that’s quite right. The “referendum process”

to which the Court refers comprises two discrete steps. At step

one, petitioners like the plaintiffs fan out into the community to

advocate their position and attempt to collect signatures in support

of their cause—here, the effort to force a vote to repeal the local

ordinance that authorized Cop City’s lease. At step two, the

petitioners submit their signed petition to the city for approval.

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2 NEWSOM, J., Dissenting 23-12469

The Kemp problem that the Court identifies pertains to the second

of the two steps: Chances are the city will reject the petitioners’

signed petition because, as a matter of existing state law, Section

66-37(b) doesn’t cover grass-roots efforts to make non-charter-

related amendments to municipal ordinances.

But however remote the possibility that city officials will

ultimately approve their petition, it seems to me that the plaintiffs

have a separate, stand-alone First Amendment interest in

participating in the signature-gathering process itself—in going

through the motions, so to speak. Indeed, the Supreme Court has

expressly distinguished between speech- and petition-related acts,

on the one hand, and the success of those acts, on the other. In

Smith v. Arkansas State Highway Employees, Local 1315, for instance,

the Court reaffirmed that “[t]he First Amendment protects the

right of an individual to speak freely, to advocate ideas, to associate

with others, and to petition his government for redress of

grievances”—despite the fact that it does not separately “impose

any affirmative obligation on the government to listen [or]

respond.” 441 U.S. 463, 464–65 (1979) (per curiam); accord Minn.

State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984) (same).

With respect to the particular type of speech act at issue

here—the circulation of a citizen-initiated petition that seeks to

place an issue on a general-election ballot—the Supreme Court’s

unanimous decision in Meyer v. Grant, 486 U.S. 414 (1988), is

effectively on point. There, the Court detailed precisely why,

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23-12469 NEWSOM, J., Dissenting 3

whatever a petition’s ultimate fate, the very process of circulating

it involves “core political speech”:

The circulation of an initiative petition of necessity

involves both the expression of a desire for political

change and a discussion of the merits of the proposed

change. Although a petition circulator may not have

to persuade potential signatories that a particular

proposal should prevail to capture their signatures, he

or she will at least have to persuade them that the

matter is one deserving of the public scrutiny and

debate that would attend its consideration by the

whole electorate. This will in almost every case

involve an explanation of the nature of the proposal

and why its advocates support it. Thus, the

circulation of a petition involves the type of

interactive communication concerning political

change that is appropriately described as “core

political speech.”

Id. at 421–22.

The only potential hitch, it seems to me, is that in light of

Kemp, the plaintiffs’ petition-circulation efforts here may well be

doomed to fail: In all likelihood, despite the plaintiffs’ best

canvassing efforts, city officials will reject their petition on Kemp

grounds. Two rejoinders: First, given the Georgia Supreme

Court’s recent (and pointed) criticism of Kemp for privileging “spirit

and intent” to plain text in statutory interpretation, see Camden

County v. Sweatt, 883 S.E.2d 827, 839 (Ga. 2023), the plaintiffs could

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4 NEWSOM, J., Dissenting 23-12469

appeal the city’s denial up through the state-court system—and,

who knows, perhaps eventually prevail.

Second, even if the plaintiffs’ campaign is a fool’s errand, it’s

a fool’s errand to which the First Amendment entitles them. Even

if their petition is ultimately rejected on Kemp grounds, that is, the

plaintiffs may well think: The effort was worth it—we made our voices

heard, we got our message out, we planted the seed. That, it seems to

me, is wheelhouse First Amendment stuff. See, e.g., Mills v.

Alabama, 384 U.S. 214, 218 (1966) (“Whatever differences may exist

about interpretations of the First Amendment, there is practically

universal agreement that a major purpose of that Amendment was

to protect the free discussion of governmental affairs.”).