A decades-old precedent by Georgia’s Supreme Court doomed the 2023 referendum petition to put the controversial $110 million police and fire training center known as “Cop City” on the ballot, the U.S. Court of Appeals for the Eleventh Circuit held in a decision released Friday. 

The divided three-judge panel’s opinion vacated a district judge’s order and sent the case back to allow for further proceedings.

In June 2023, a coalition of local and national organizations filed a referendum petition in the City of Atlanta to overturn the city’s ground lease for the site of the training center. However, a city law allowed only residents of the City of Atlanta to collect signatures. Weeks later, four plaintiffs who were not residents of Atlanta filed a federal lawsuit against the city arguing the residency restriction violated their First Amendment rights.

U.S. District Court Judge for the Northern District of Georgia Mark H. Cohen sided with the plaintiffs and issued a preliminary injunction in July 2023. He ordered the city to allow non-residents to gather petition signatures, restart the 60-day period for signature collection and count signatures collected from the beginning of the process back in June. 

The City appealed in August 2023, and the Eleventh Circuit quickly issued a stay of the injunction. Though organizers claim to have attained the requisite number of signatures, the city chose not to begin the signature-counting process while the appeal remained pending. 

In the decision issued Friday, the appellate court relied on a 1998 Georgia Supreme Court ruling in Kemp v. City of Claxton, which held that the petition process under state law can only be used to repeal charters, not local ordinances. 

Since the Kemp ruling prevented the Vote to Stop Cop City campaign from using the petition and referendum process to reverse the ground lease ordinance, the appeals court found plaintiffs could not suffer any irreparable harm sufficient to justify the injunction. 

In a small win for the plaintiffs, the 2-1 majority also rejected Atlanta’s argument that the construction and opening of Cop City rendered the case moot. The panel majority noted, “despite construction of the facility, the plaintiffs still have a concrete interest in this case and there is meaningful relief available—if successful [at the Georgia Supreme Court], they could collect enough signatures to send their referendum petition to the ballot and seek to repeal the leasing ordinance.” 

Jeff Filipovits, Wingo Smith and Gerry Weber, who represent the plaintiffs, told ACPC in a written statement, “We respectfully disagree with the Court’s application of the Kemp case to repealing City ordinances, a power found in our City’s charter. Regardless, we believe the First Amendment still clearly applies to our clients’ efforts once the City has permitted the petition to be circulated.

Our clients worked hard and faithfully to get the referendum on the ballot despite an ordinance we believe clearly violates their First Amendment rights. That fight is not over, and the case will return to the district court for further proceedings.”

“Wheelhouse First Amendment stuff”

Writing in dissent, Circuit Judge Kevin Newsom noted that the City had the option of accepting the petition, notwithstanding the Kemp decision, and that the petition gatherers could have appealed the City’s decision to the Georgia Supreme Court even if it hadn’t. Indeed, Newsom noted, the Georgia Supreme Court recently expressed skepticism about the Kemp ruling in a 2023 decision on a different referendum.

“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,” Circuit Judge Kevin Newsom wrote. “That, it seems to me, is wheelhouse First Amendment stuff.” Newsom would have left the injunction in place because the City’s statute limiting signature collection to city residents violated the First Amendment. 

Pastor Keyanna Jones, an organizer and plaintiff in the case, felt heartened by the dissent. “I absolutely think our efforts were worth the work and time taken, as this case has opened the eyes of the people to what democracy calls for and how fragile our democracy truly is,” Jones told ACPC. “Despite the fact that Cop City has been built, I am still very much willing to fight for our right to a referendum to repeal the leasing ordinance. Some people might think we’re down, but we’re definitely not out.” 

A spokesperson for the City of Atlanta could not be immediately reached for comment.