A federal judge in Atlanta turned Secretary of State Brian Kemp’s own words against him in denying a request to postpone a court order intended to reduce the number of rejected absentee ballots across the state.
Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia said that staying an injunction pending an appeal is not a right—echoing Kemp’s argument in seeking the delay that absentee voting is “a privilege and a convenience,” not a right.
In a court order issued late Tuesday, May reiterated that the risk qualified absentee voters’ ballots will be rejected because of alleged signature discrepancies is “high.”
Read May’s decision:
Last week, May issued temporary restraining orders in two federal voting rights cases challenging the state’s stringent matching provisions in processing applications for ballots and ballots cast by absentee voters.
Kemp, Georgia’s Republican candidate for governor, is in a statistical dead heat with Democrat Stacey Abrams, the former state House minority leader. Kemp asked May to postpone the TROs until he could appeal.
Georgia’s attorney general is defending Kemp.
Because state law entitles qualified voters to cast absentee ballots, the state cannot withdraw the right to cast an absentee ballot without violating an absentee voter’s due process rights, May said.
The judge also was unswayed by Kemp’s objections to procedural safeguards her temporary restraining order put in place that would convert absentee ballots to provisional ballots until a voter had the chance to resolve any signature discrepancy.
Kemp’s argument that an absentee voter could verify his or her identity by “simply showing up” at a county’s main election office “misses the mark,” she said.
“There is simply no guarantee that a voter whose ballot application or ballot has been rejected due to a signature mismatch will be able to provide a matching signature on a new application—particularly since signatures vary for a variety of benign reasons,” she said.
Variations in hand signatures among submitted ballots, ballot applications and voter registration forms may result from age, a physical or mental condition, disability, stress or by accident, she noted.
In addition, a number of absentee voters who cast a ballot by mail “physically cannot show up in person to verify their identity or vote in person.”
May also turned aside Kemp’s objection to allowing an absentee voter to send an attorney as a proxy to present proper identification. May said she was “highly doubtful” that allowing attorneys into the voter verification process would increase the risk of voter fraud, as Kemp claimed.
“The Court is simply not persuaded that the injunction’s attorney provision is more apt to induce voter fraud than the state’s suggested procedure for confirming a voter’s identity via fax or email,” she said.
“The injunction leaves county elections officials free to conduct hearings as they see fit—so long as there remains a constitutionally adequate opportunity for a voter to be heard,” she added. “While the injunction guards against erroneous rejections based on a signature mismatch, county elections officials still retain full discretion in verifying a voter’s identity.”
May also dismissed Kemp’s argument that the injunction would pose both fiscal and administrative burdens. “As Secretary Kemp continues to insist that the number of absentee voters at risk of rejection based on a signature mismatch is quite low, the Court finds that the injunction’s implementation … does not impose intractable costs or burdens on county elections officials.”
Without the injunction, advocacy groups, political candidates and voters who are plaintiffs in the two suits would be forced “to continue diverting substantial resources toward assisting and warning voters about the possibility of a ballot application or ballot rejection due to a signature mismatch,” May said.
Absent her TROs, May said absentee voters whose ballot applications or ballots are rejected because of a signature discrepancy “risk being completely disenfranchised from the upcoming election.”
“The Court finds that the public interest is best served by allowing qualified absentee voters to vote and have their votes counted,” she said. “This injunction ensures that absentee voters who are unable to vote in person and whose applications or ballots are rejected based on a signature mismatch will still have the opportunity to have their votes counted in the upcoming election.”