Less than 24 hours after the Democratic Party of Georgia sought a federal restraining order to extend the acceptance period for absentee ballots in the state’s Dec. 4 runoff, Georgia’s secretary of state has agreed to comply.
On Thursday, Democrats sued Secretary of State Robyn Crittenden over absentee ballots it claims weren’t mailed to voters from more than 60 counties until this week—just seven days before they must be back in the hands of the county election officials who mailed them.
In a consent order filed with the court Friday afternoon, Crittenden agreed to issue official bulletins by 6 p.m. Friday notifying all county election superintendents and the general public that, if an otherwise valid absentee ballot is postmarked on or before Dec. 4 and received by Dec. 7, it must be tallied and included with the certified election returns rather than discarded. A similar announcement must be posted on the secretary of state’s website by 10 a.m. Saturday.
Any absentee ballot without a valid postmark that arrives after the polls close at 7 p.m. Dec. 4 will not be tallied.
The suit was settled after Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia, who was assigned the case late Thursday, scheduled an emergency hearing at noon Friday but ordered counsel for the Democratic Party and the secretary of state to meet beforehand to discuss “in earnest” the feasibility of granting the relief the Democrats sought.
Meanwhile, Crittenden spokeswoman Candice Broce said Friday that, if Democrats “had come to us first,” the secretary of state “would have tried to work with them to resolve this problem. We immediately engaged in those discussions when this lawsuit was filed.”
The consent order is the second time this week that Crittenden has upended a federal voting rights lawsuit by agreeing to the sought-after relief. On Wednesday, less than a day after civil rights organization Asian Americans Advancing Justice sued over a state law severely limiting who can act as an interpreter for voters with limited proficiency in English, Crittenden agreed to indefinitely suspend enforcement of the state statute.
The Democratic Party lawsuit—filed Thursday by Halsey Knapp of Atlanta’s Krevolin & Horst—is the latest in a continuing battle Democrats and civil rights groups are waging with state and county election officials across Georgia to count ballots, rather than discard them. Five federal judges issued six temporary restraining orders expanding the number of absentee and provisional ballots that should be tallied during the midterm election.
The new complaint contended that many county election superintendents shirked their statutory responsibility to send out absentee ballots for the runoff as soon as possible after statewide results of the Nov. 6 election were certified on Nov. 17.
While some counties began mailing out ballots on Nov. 19, others waited until as late as Nov. 27 to begin mailing out runoff ballots, the suit contends. According to the suit, 44 of the state’s 159 counties didn’t put runoff absentee ballots in the mail until Nov. 26. Another 21 counties didn’t mail absentee ballots until Nov. 27.
The Democratic Party is asking for a temporary restraining order directing that runoff absentee ballots postmarked by Dec. 4 and received within three days of the Dec. 4 election be counted. Otherwise, any absentee ballots that are not either military or from abroad that arrive at a county election registrar’s office after the polls close at 7 p.m. on Dec. 4 will be discarded rather than counted.
Without a court order, absentee ballots will be handled unequally—and counted or rejected based on when county officials chose to mail them—a constitutional equal protection violation, the TRO request contends.
Thursday’s petition was filed after the Democratic Party’s voter protection hotline began receiving multiple calls from unhappy absentee voters requesting help in obtaining and timely returning runoff ballots by mail.
The runoff election includes two widely watched state races—one for secretary of state and one for the state Public Service Commission.
The number of affected voters is substantial. In the general election, 284,839 voters attempted to cast absentee ballots by mail, the suit contends. At least 121,301 voters have applied for absentee ballots for the Dec. 4 runoff, the suit says.
The suit cites one voter living temporarily in Montana who traveled to Georgia to personally cast his ballot in the general election but does not have the time or financial resources to return for the runoff. His absentee ballot was not mailed until Nov. 27—13 days after his mother applied for it.
“Given the late date of ballot mailing, the distance from DeKalb County, Georgia, to Montana, and reasonably anticipated mail delays resulting from transit slowdowns and high mail volume during the holiday shopping season, this voter is deeply concerned that he will not receive his ballot in time to vote and return it by 7 p.m. on Dec. 4 so his votes are counted, even if he were to pay for overnight shipping,” the suit says.
“There is no conflict between protecting voters’ rights and counting absentee mail-in ballots cast before the close of the polls but received in the three days following Election Day,” the suit says.
By law, “Counties need only certify their election results to Secretary of State Crittenden by the Monday following the election, Dec. 10, 2018, at 5 p.m.”
Broce said Friday that the secretary of state’s office began creating ballots for the runoff before the election was certified on Nov. 17. Once it was certified, the office immediately sent runoff ballot images to election officials across the state with a request to approve them by Nov. 19.
“Some counties have on-site printing, so they are able to begin printing ballots almost as soon as they receive their ballot images, but some counties—generally smaller counties—do not have the capability,” she said. “All parties involved—the secretary of state’s office, the counties, and the vendors—worked as expeditiously as possible to prepare absentee ballots for the run-off.”
Broce also called it “completely false” that any party involved in the process was not working as quickly as possible. She blamed Democrats for securing a court-ordered delay in certifying the general election results, saying the secretary of state had warned that delaying certification would adversely impact preparations for the Dec. 4 runoff.
On November 12, Totenberg ordered that certification of the general election results be delayed until Nov. 16 so election officials across the state could review provisional ballots cast by voters whose names were missing from the state voter registration database. The delay was intended to give those voters time to determine if their ballot was rejected and, if so, prove they were registered to vote.
Totenberg said she issued the order because plaintiff Common Cause Georgia “has shown a substantial likelihood” that then-Secretary of State Brian Kemp’s “failure to properly maintain a reliable and secure voter registration system has and will continue to result in the infringement of the rights of the voters to cast their vote and have their votes counted.”