Georgia Secretary of State Brian Kemp (Photo: John Disney/ ALM)

A federal judge in Atlanta issued a temporary restraining order Wednesday barring Georgia election officials from rejecting absentee ballots or ballot applications over mismatched signatures without giving voters a chance to contest the decision and confirm their identities.

In a 31-page order, Judge Leigh May of the U.S. District Court for the Northern District of Georgia directed Georgia Secretary of State Brian Kemp to instruct election officials and county boards of elections across the state that absentee ballots with alleged voter signature mismatches should be marked as “provisional” rather than rejected. County election officials shall then send a pre-rejection notice to voters and give them an opportunity to resolve the alleged discrepancy.

Kemp, a Republican, is running against Democratic nominee Stacey Abrams for governor.

May said that process could extend for three days following the election and that an absentee voter shall have the right to appeal any rejected ballot.

Each absentee voter whose ballot is called into question must also be provided with instructions on how to verify their ballot, May said.

May gave the parties until Thursday to let her know whether her instructions are confusing or unworkable for election officials tasked with implementing them. But, she warned, “This is not meant to be an opportunity to readdress the propriety of entering the injunction—only its form.”

Sophia Lakin, staff attorney with the ACLU’s Voting Rights Project in New York, called the ruling “a huge victory, especially with the midterms just days away.”

May issued the order after a hearing Tuesday. The lawsuit, filed by ACLU lawyers on behalf of the Georgia Muslim Voter Project and Asian-Americans Advancing Justice-Atlanta, challenged Georgia election officials’ absentee ballot rejections based on comparisons of voter registration signatures with those on absentee ballot applications and the envelopes in which the absentee ballots were sealed.

In her order, May noted that Georgia currently has no procedure for a voter to contest an election official’s decision that a signature does not match. By contrast, the judge said, when an absentee ballot is rejected on other grounds, a voter is given notice and a hearing on an expedited basis before an election is certified, as well as an opportunity to appeal.

May also noted in issuing the TRO that county election officials across Georgia are reporting an increase in the volume of absentee ballots, both by mail and in person.

Saying that “the balance of equities and the public interest support an injunction,” May rejected complaints by Kemp lawyers with the office of state Attorney General Chris Carr that salvaging rejected absentee ballots would be “unduly burdensome.”

“The Court does not understand how assuring that all eligible voters are permitted to vote undermines integrity of the election process,” May said. “To the contrary, it strengthens it.”

“We are pleased that the court has enforced the due process guarantees of the U.S. Constitution,” stated Sean J. Young, legal director of the ACLU of Georgia. “Today’s ruling is a victory for democracy and for every absentee voter in the state of Georgia.”

Kemp’s office referred comments to the state attorney general whose spokeswoman declined comment.

The ACLU filed suit and sought the TRO following news reports that Gwinnett County election officials had, by Oct. 18, rejected 493 absentee ballot applications, nearly 100 of them due to alleged signature mismatches. The suit also claimed that Gwinnett County ballot rejection rates were on the increase and that, by Oct. 12, county officials had rejected nearly 10 percent of all absentee mail ballots.

That suit followed on the heels of a similar lawsuit from Georgia voters filed by Atlanta attorney Bruce Brown and backed by the Coalition for Good Governance, which has sounded alarms about the security of the state’s electronic voting system in a separate case seeking a return to paper ballots. This week, the Lawyers’ Committee for Civil Rights Under Law and the Campaign Legal Center filed appearances in the absentee ballot suit. Tuesday’s hearing before May addressed Brown’s absentee ballot case as well as the ACLU’s.

“We are very pleased that voters who have been rejected because of a signature mismatch will have another chance to have their ballots counted,” Brown said. “In her order, she said the plaintiffs win, win, win again, win, win, win, win, win. Then she said, ‘Here’s what I’m going to do about it.’”

Yet to be decided are questions Brown’s suit raised in addition to the mismatched signature rejections. One concerns ballots rejected over what Brown said was a superfluous request for voters’ birth year. Confused voters have instead put the date they filled out the ballot, he said. Brown said the judge has given Kemp and his co-defendants until Monday to address  those rejections, among others, and he is hopeful May will issue an order next week.

Brown said the remedy is to direct election officials to cast those ballots rather than reject them. Voters are not able to get an absentee ballot unless they have already qualified to register to vote, which includes proving they are old enough to do so. “Since you are already old enough to get a ballot, they don’t need your birth year,” he said.  “It’s also a mistake unlikely to be made by someone who is trying to defraud somebody.”

Read the order below: