The Americans with Disabilities Act (“ADA”) requires places of public accommodation, like hotels, to make reasonable modifications to accommodate individuals with disabilities. In accordance with this law, the Attorney General requires hotel owners to identify accessibility features on their websites in sufficient detail to allow individuals with disabilities to assess whether the hotels can meet their needs.

The respondent, Deborah Laufer, a self-appointed ADA “tester” and an individual with a disability has filed over 600 lawsuits against hotel owners and managing companies alleging that their websites are not sufficiently clear about their accessibility features. In these lawsuits, Ms. Laufer seeks injunctive relief and attorney’s fees, forcing smaller businesses to settle to avoid the high cost of litigation.

The problem? Ms. Laufer does not intend to ever visit these hotels. Her lawsuits have forced circuits to address whether testers like herself have Article III standing.

The Fifth Amendment’s Double Jeopardy Clause is simple, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This clause is so essential to the Fifth Amendment that James Madison listed it first amongst the rights granted in the Amendment he proposed to Congress, writing, “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.”

The Supreme Court incorporated the Double Jeopardy Clause against the states in 1969, stating that the clause “represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794 (1969). The ideal can be traced from Greek times through English common law. By the time it was incorporated against the States, every single state had incorporated some form of the guarantee against double jeopardy. Id. at 795.

Georgia is testing that ideal, at least according to Damian McElrath.