Court: Georgia Cannot Reject Absentee Ballots Without Allowing Voters to Fix Them
By Tyler Estep
A federal judge intends to issue an injunction barring Georgia election officials from tossing certain absentee ballots without giving would-be voters advance notice and a chance to rectify any issues.
The implementation of the injunction -- which U.S. District Court Judge Leigh Martin May plans to file Thursday -- could complicate the work of election officials statewide, requiring the review of hundreds or thousands of ballot signatures with less than two weeks until Election Day. But civil rights groups whose lawsuits led to May's decision have already declared victory in the battle, just one of many voting rights skirmishes to surface in what's become a contentious Georgia election season.
"We are pleased that the court has enforced the due process guarantees of the U.S. Constitution," said Sean Young, legal director of Georgia's branch of the American Civil Liberties Union. "Today's ruling is a victory for democracy and for every absentee voter in the state of Georgia."
May submitted her "proposed injunction" on Wednesday in response to two different lawsuits challenging how Georgia evaluates mail-in absentee ballots and applications. She gave the Secretary of State's Office and other parties involved in the litigation until noon Thursday to file responses to her proposal.
But she wrote that objections should be confined to whether or not any of the "language is confusing or will be unworkable for the implementing officials." She stressed that she had made the decision to file the injunction and it was not not an issue attorneys should try to argue further in their written responses.
As presented Wednesday, the injunction would include ordering Secretary of State Brian Kemp and his office to tell local elections officials to make every effort to count legitimate mail-in votes. His office must communicate the following to local election offices:
--They "shall not reject any absentee ballots due to an alleged signature mismatch." Instead, ballots should be marked provisional and would-be voters given "pre-rejection notice and an opportunity to resolve the alleged signature discrepancy."
--Voters rejected using the aforementioned process shall have the right to appeal.
--Any absentee ballot applications where a signature mismatch is suspected also should not be rejected. Officials should instead "provide a provisional absentee ballot to the absentee voter along with information as to the process that will be followed in reviewing the provisional ballot."
The change would apply to all absentee ballots and applications "submitted in this current election," May's proposal said -- meaning it would apply to would-be mail-in voters that have already been rejected.
The contest over absentee ballots is being waged amid several other Georgia voting rights battles, all of which have taken greater prominence as Kemp remains in office while running for governor against Democrat Stacey Abrams. Voting and civil rights advocates have accused Kemp of voter suppression and the state has been thrust into the national spotlight over issues of voter access.
A report by the Associated Press earlier this month revealed that tens of thousands of potential Georgia voters were in limbo due to the state's controversial "exact match" law, which requires voter information -- including signatures -- to match driver's licenses, state ID cards or Social Security records.
Voters whose statuses are pending because of the exact match law, however, can still vote in November's election if they present valid ID.
May's order follows a Tuesday federal court hearing regarding motions submitted in a pair of lawsuits filed against Kemp and the Gwinnett County Board of Registrations and Elections. The order mirrors concessions sought in an Oct. 17 restraining order request filed in the suit led by the ACLU.
On Oct. 19, a preliminary injunction of much wider scope was requested in a separate suit led by the Lawyers' Committee for Civil Rights Under Law and the Coalition for Good Governance. The order May proposed Wednesday applies in that lawsuit, but she has not ruled on the broader claims, which cover voters rejected for reasons other than signature mismatches.
A spokeswoman for the Secretary of State's Office deferred comment Wednesday to state Attorney General Chris Carr's office. Carr's spokeswoman said the office could not comment on pending litigation.
A statement from Gwinnett -- which was included in the lawsuits because it has rejected absentee ballots at a much higher rate than other counties -- said local officials were reviewing the injunction order and would "provide its comments to the Court, as directed, by noon tomorrow."
During Tuesday's hearing, attorneys representing the defendants argued an injunction like the one proposed would add undue stress to already overworked elections officials.
"It's too late for the plaintiffs to come now and ask this court to fundamentally alter the process," Russell Willard, who was representing Kemp, said in court.
Bryan Tyson, an attorney representing Gwinnett, brought up another potential hurdle to meeting a court order. He said the county had every intention to follow the court's directions, but that local election officials are technically required to conduct elections according to written state law.
(c)2018 The Atlanta Journal-Constitution (Atlanta, Ga.)