Judge Orders Georgia Officials to Review Provisional Ballots

ATLANTA (CN) —A federal judge on Monday ordered Georgia election officials to review thousands of provisional ballots cast in last week’s election for governor, and said they cannot certify statewide results in the race until late Friday afternoon.

The order from U.S. District Judge Amy Totenberg prevents Secretary of State Robyn Crittenden from certifying the results of the election between her predecessor, Brain Kemp, and Democrat Stacey Abrams, before Friday, Nov. 16 at 5:00 p.m.

Totenberg also ordered the secretary of state’s office to establish a hotline or website where voters can check whether their provisional ballots were counted, and if not, find out the reason why.

Approximately 21,000 provisional ballots were issued to Georgia voters during the 2018 general election. The ballots are usually only counted if voters can prove their eligibility within three days of Election Day.

A voter may be given a provisional ballot for a number of reasons, including if their registration was removed from the state’s database, if the voter is unable to provide photo identification at the polls, or if the voter shows up at the wrong polling precinct.

The order requires that Georgia election officials review voter registrations and issue updated reports explaining why many voters were required to use provisional ballots on Election Day.

According to the ruling, the secretary of state’s office intended to certify the election results on Nov. 14 even though state law provides for Nov. 20 deadline. The secretary of state’s office will not receive all final county certifications until Nov. 14.

“Thus, the Secretary of State’s Office effectively intends to certify the results on the same day it receives the returns from the counties, rather than taking any portion of the additional week provided under the law to fully discharge the Secretary’s independent duty of review,” the ruling states.

“The Secretary’s Office early-announced decision to proceed with certification of the vote on the very date of receipt of the county certified vote returns appears to suggest the Secretary’s foregoing of its responsibility to confirm the accuracy of the results prior to final certification, including the assessment of whether serious provisional balloting count issues have been consistently and properly handled,” the order says.

As of Tuesday, the unofficial results published on the secretary of state’s website showed Kemp with 50.26 percent of the vote compared to 48.79 percent for Abrams.

Kemp declared himself the winner of the hotly-contested election on Nov. 7 and has repeatedly demanded that Abrams concede the race, claiming that his opponent has no mathematical chance of winning.

Abrams has refused. She needs approximately 20,000 votes to force a runoff.

Abrams’ campaign has said that enough votes remain outstanding to pull Kemp below the majority threshold and trigger a Dec. 4 runoff.

Totenberg’s ruling comes in response to a Nov. 7 motion for a temporary restraining order filed by Common Cause Georgia as part of a Nov. 5 lawsuit against Kemp.

The motion requested that the court prevent election officials from rejecting any provisional ballots cast during the election belonging to any voter whose name does not appear on the voter registration list.

During Kemp’s tenure as secretary of state, his office cancelled over 1.4 million voter registrations. In 2017, over 668,000 registrations were cancelled.

“[T]he Secretary’s failure to maintain the voter registration database and properly implement the provisional balloting scheme unnecessarily burdens the rights of Georgia voters,” the order states.

Totenberg found that there has been a “statistically significant increase” in the number of voters required to cast provisional ballots relative to the total number of voters.

According to the ruling, 21,190 provisional ballots were cast in the 2018 general election out of 3.9 million total ballots.

In the 2016 general election, 16,739 provisional ballots were cast out of 4.1 million votes and just 12,151 provisional ballots were cast in the 2014 election out of 2.5 million total ballots.

The judge also found that “repeated inaccuracies” in the voter registration system forced qualified voters to cast provisional ballots because their registration records did not appear in the state’s database or were purged from the system.

Totenberg characterized the relief granted by the order as “modest,” noting that it falls “completely within the state statutory timelines and framework as well as meets the requirements of [the Help America Vote Act].”

In addition to establishing the provisional ballot hotline or website, the judge ordered election superintendents across the state to publicize the availability of the new resource on county election websites.

Most of the provisional ballots in Georgia’s Cobb and Fulton counties have already been added to the state count, but thousands of provisional ballots remain uncounted in DeKalb and Gwinnett counties. Both counties have historically been Democratic strongholds.

U.S. District Judge Leigh Martin May issued a ruling Tuesday morning which also stands to affect the outcome of the final vote tallies. May ruled that Gwinnett County election officials may not reject absentee ballots “containing an error or omission relating to the absentee voter’s year of birth” and ordered officials to count those ballots in their official counts.

May ordered Gwinnett election officials to “delay certification until such ballots have been counted.”

Lauren Groh-Wargo, campaign manager for Stacey Abrams, praised the rulings in a statement Tuesday morning.

“The rulings from last night and this morning were wins for Georgians’ fundamental right — the right to cast a ballot. Given the confusion sowed by the Secretary of State’s office last week and the number of voters who experienced irregularities regarding their registration status, these victories were necessary steps in the fight to count every eligible vote in Georgia. We remain grateful to groups like Common Cause who know this is about more than just one campaign — it is about committing to a fairer, more democratic system,” Groh-Wargo said.

On Monday, Ryan Mahoney, communications director for Brian Kemp’s campaign, again called for Abrams to concede.

“It’s incredibly shameful that liberal lawyers are doubling down on lawsuits desperately trying to create more votes for Stacey Abrams. They don’t want to win this election. They are trying to steal it,” Mahoney said.

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