Irreparable Harm Requires a Legally Available Referendum: Kemp v. City of Claxton Bars Injunctive Relief Against Atlanta’s Petition-Circulator Residency Rule

I. Introduction

In Lisa Baker v. City of Atlanta (11th Cir. Jan. 9, 2026), four DeKalb County residents—Lisa Baker, Jacqueline Dougherty, Keyanna Jones, and Amelia Weltner—sought to circulate referendum petitions inside Atlanta to repeal an Atlanta ordinance authorizing a land lease for a new police training facility. Their efforts were blocked by § 66-37(b) of the City of Atlanta Municipal Code, which required petition circulators to swear they are Atlanta residents.

They sued the City of Atlanta under the First Amendment and obtained a preliminary injunction from the district court, which (i) barred enforcement of the circulator-residency requirement, (ii) required reissuance of petition forms without the residency attestation, and (iii) restarted the 60-day signature-gathering window while preserving previously collected signatures. The City appealed and obtained a stay.

On appeal, the Eleventh Circuit addressed threshold jurisdictional questions (mootness and standing) and then vacated the injunction on a narrow but consequential ground: even assuming a First Amendment burden, plaintiffs could not show irreparable harm because, under Georgia law as stated in Kemp v. City of Claxton, the referendum vehicle they sought to use was unavailable to repeal a city ordinance at all.

II. Summary of the Opinion

• Mootness: The case was not moot despite substantial completion of construction; meaningful relief remained because the lease-authorizing ordinance and lease still existed, and plaintiffs sought to change petition-circulation rules. The court relied on Knox v. Serv. Emps. Int’l Union, Local 1000 and rejected arguments that the suit was moot simply because ultimate relief might be difficult as a merits question (citing MOAC Mall Holdings LLC v. Transform Holdco LLC and Chafin v. Chafin).
• Standing: Plaintiffs had Article III standing; they adequately alleged an injury from being barred from circulating petitions, traceable to City enforcement, and redressable by an injunction. The court emphasized that standing analysis assumes merits success at this stage (citing Fed. Election Comm’n v. Cruz and Garcia-Bengochea v. Carnival Corp.).
• Preliminary injunction vacated: The injunction was vacated because plaintiffs failed the “sine qua non” of injunctive relief—irreparable injury—under Siegel v. LePore. Under Kemp v. City of Claxton, the Home Rule petition/referendum mechanism applies only to charter amendments, not to repeals of ordinances like Atlanta’s leasing ordinance. Without any legal entitlement to the referendum process sought, plaintiffs could not show irreparable harm from being excluded from it.

III. Analysis

A. Precedents Cited

1. Georgia-law anchor: Kemp v. City of Claxton

The decision turns on Kemp v. City of Claxton, 496 S.E.2d 712 (Ga. 1998), which interpreted O.C.G.A. § 36-35-3(b)(2)—the Home Rule Act provision Atlanta’s § 66-37 mirrors. Kemp held that the petition/referendum procedure “applies only to amendments to municipal charters,” notwithstanding statutory language referencing “amendments to or repeals of ordinances, resolutions, or regulations.” The Kemp court emphasized the Home Rule Act’s purpose (relieving the General Assembly of charter-amendment burdens) and invoked a strict-construction principle for delegations of legislative power to municipal entities and the electorate.

In Baker, the Eleventh Circuit treats Kemp as dispositive state law: because plaintiffs sought to repeal a non-charter ordinance, no valid referendum petition could lie, meaning their asserted First Amendment injury could not qualify as irreparable harm for preliminary-injunction purposes.

2. The “tension” case: Camden County v. Sweatt

The court acknowledged that Kemp’s reasoning was criticized in Camden County v. Sweatt, 883 S.E.2d 827 (Ga. 2023), where the Georgia Supreme Court—interpreting the county home-rule provision—authorized referenda to repeal county resolutions and noted “tension with Kemp.” But Sweatt did not overrule Kemp and expressly declined to decide whether Kemp should be overruled. The Eleventh Circuit therefore held itself bound by Kemp as “the Georgia Supreme Court’s latest word” on the municipal statute (citing Gonzalez v. Governor of Ga. and Johnson v. 3M Co. for the controlling effect of state high-court decisions on state-law questions).

3. First Amendment petition-circulation cases: Meyer v. Grant and Buckley v. American Constitutional Law Foundation, Inc.

The district court had relied on Meyer v. Grant, 486 U.S. 414 (1988) and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) to apply strict scrutiny to the circulator-residency restriction, reasoning that limits on who may circulate petitions burden “core political speech.” The Eleventh Circuit did not reach that merits question; it assumed arguendo that plaintiffs might succeed on the First Amendment claim but found irreparable harm missing because the referendum path was unavailable under state law. In effect, the First Amendment authorities framed the district court’s merits approach, while Kemp framed the Eleventh Circuit’s irreparable-harm analysis.

4. Injunction framework and irreparable harm: Gonzalez v. Governor of Ga. and Siegel v. LePore

The court applied the traditional four-factor preliminary injunction test as articulated in Gonzalez v. Governor of Ga., 978 F.3d 1266 (11th Cir. 2020) and reiterated the en banc principle from Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) that irreparable injury is indispensable: even a strong merits showing cannot justify preliminary relief without irreparable harm.

5. Jurisdictional gatekeeping: mootness and standing authorities

For mootness, the panel relied on Bourgeois v. Peters, Graham v. Att’y Gen., State of Ga., Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., and Sheely v. MRI Radiology Network, P.A. and drew a sharp line between mootness and merits (reinforced by MOAC Mall Holdings LLC v. Transform Holdco LLC and Chafin v. Chafin). It declined “prudential mootness” (citing Penthouse Int’l, Ltd. v. Meese and Chamber of Com. v. U.S. Dep’t of Energy).

For standing, it relied on Lewis v. Governor of Ala., United States v. Hays, Lowman v. Fed. Aviation Admin., and, for early-stage pleading standards, Church v. City of Huntsville, Bischoff v. Osceola County, and Elend v. Basham. It found injury-in-fact consistent with other circuits’ petition-circulation standing cases: Libertarian Party of Va. v. Judd, Krislov v. Rednour, and Lerman v. Bd. of Elections in the City of N.Y..

6. The dissent’s First Amendment framing

Judge Newsom’s dissent, while “bracketing” merits, invoked the maxim (recently reaffirmed) that even short-lived First Amendment deprivations are irreparable, citing Mahmoud v. Taylor and Roman Catholic Diocese of Brooklyn v. Cuomo. He argued that—even if Kemp would ultimately doom the petition at the governmental “approval” step—plaintiffs retained a stand-alone First Amendment interest in the signature-gathering speech itself, citing Smith v. Arkansas State Highway Employees, Local 1315, Minn. State Bd. for Cmty. Colls. v. Knight, Meyer v. Grant, and Mills v. Alabama.

B. Legal Reasoning

1. The key move: importing state-law unavailability into irreparable harm

The Eleventh Circuit’s controlling analytical move is to treat the availability of the referendum process as a prerequisite to irreparable harm. Because Kemp makes the referendum procedure unavailable for repealing ordinances, the court reasoned that plaintiffs “have no right to the petition process they seek to utilize”; therefore exclusion from circulator eligibility cannot cause irreparable injury in a legally cognizable sense.

This reasoning also explains the panel’s rejection of the district court’s “ripeness” avoidance. The district court had deemed the referendum’s ultimate validity “not ripe,” focusing only on the First Amendment defect in the circulator-residency rule. The panel responded that irreparable harm cannot be assessed in isolation: if the referendum channel is categorically unavailable under state law, then the alleged First Amendment injury—defined by plaintiffs as exclusion from that channel—cannot support emergency equitable relief.

2. Federalism and Erie-like discipline in election-law emergencies

Although not framed as an Erie issue, the opinion reflects a federalism discipline: federal courts assessing constitutional challenges to local election/petition rules must account for controlling state-law limits on the underlying political mechanism. The panel underscored that it is “bound by” the Georgia Supreme Court’s interpretation in Kemp unless and until that court overrules it, notwithstanding later criticism in Sweatt.

3. The charter “workaround” rejected

Plaintiffs argued that Atlanta Charter § 2-501 independently authorizes initiative/referendum and thus avoids Kemp. The panel rejected that: municipalities possess only powers granted by the State and grants are strictly construed (citing Kemp and City of Doraville). A local charter cannot expand initiative/referendum powers beyond state constraints; an ordinance violating O.C.G.A. § 36-35-3 is “void” (citing Ivey v. McCorkle).

4. Narrow disposition: no need to decide strict scrutiny, Purcell, contract impairment, or severability

Because irreparable harm failed, the panel declined to reach other arguments, including: Purcell v. Gonzlaez timing concerns, the First Amendment merits, impairment of contract, balancing equities/public interest, and severability. The opinion did, however, flag remedial tailoring principles (citing Georgia v. President of the United States) and noted the district court’s remedy restarted the 60-day window broadly, potentially extending beyond the plaintiffs’ own injury.

C. Impact

1. A new practical rule for preliminary injunctions in petition-speech cases

The decision establishes a highly practical precedent in the Eleventh Circuit: when the challenged speech restriction is tied to participation in a statutory political process, preliminary injunctive relief may fail if state law forecloses that process for the plaintiffs’ objective. In other words, “loss of First Amendment freedoms” will not automatically equal irreparable harm if the “freedom” asserted depends on a state-law procedure the plaintiff cannot legally invoke.

2. Litigation strategy: defendants will front-load state-law “no vehicle” defenses

Municipal and state defendants can be expected to invoke state-law unavailability (like Kemp) early—at the irreparable-harm stage—rather than waiting to litigate merits or ripeness. Plaintiffs, correspondingly, must be prepared to (i) distinguish the state-law bar, (ii) reframe injury as independent speech harm (as the dissent urged), or (iii) pursue relief that does not presuppose the invalidated governmental procedure.

3. Pressure point on Georgia law: Kemp reconsideration remains for Georgia courts

By emphasizing that Kemp remains controlling despite Sweatt’s critique, the opinion effectively invites any change to come from Georgia’s appellate courts, not federal injunction practice. If Georgia later overrules or limits Kemp, the irreparable-harm analysis in cases like this could change materially.

4. Doctrinal friction with the dissent’s “speech regardless of success” theory

The dissent spotlights a likely fault line in future cases: whether petition-circulation speech is protected (and its loss irreparable) even when the petition’s legal efficacy is doubtful or foreclosed. The majority’s approach ties irreparable harm to the existence of a legally available referendum mechanism; the dissent would treat the circulation campaign as protected “core political speech” independent of governmental acceptance.

IV. Complex Concepts Simplified

• Preliminary injunction: An emergency court order entered before final judgment. The movant must show (among other things) likely success and irreparable harm—harm that can’t be fixed later by money or a final judgment.
• Irreparable harm (in this case): The court held there’s no irreparable injury from exclusion from a referendum process that state law does not allow for the type of ordinance being challenged.
• Mootness: A case is moot if a court can no longer provide any meaningful relief. Here, the case wasn’t moot because the ordinance/lease still existed and the challenged petition rules still mattered.
• Standing: The constitutional requirement that plaintiffs show a real injury caused by the defendant that a court can likely remedy.
• Strict scrutiny: The toughest constitutional test. The district court applied it under Meyer v. Grant and Buckley v. American Constitutional Law Foundation, Inc., but the Eleventh Circuit did not decide it.
• Home Rule (municipal): State-granted authority for local self-government. Under Kemp, Georgia’s municipal home-rule petition/referendum provision is limited to charter amendments.

V. Conclusion

Baker v. City of Atlanta vacates a high-profile preliminary injunction not by rejecting the First Amendment theory on the merits, but by tightening the gateway requirement of irreparable harm. The Eleventh Circuit held that Kemp v. City of Claxton renders the sought-after municipal referendum procedure unavailable to repeal ordinances; therefore, plaintiffs could not show irreparable injury from being excluded as petition circulators in that unavailable process. The dissent, by contrast, would treat petition-circulation speech as independently protected regardless of whether the petition ultimately succeeds.

The decision’s broader significance lies in its methodological lesson for emergency constitutional litigation: equitable relief can depend as much on the structure of state law as on the asserted constitutional burden, particularly where the claimed injury is participation in a state-created political mechanism.