Groups brace for election-related court battles in Georgia

The counting of absentee ballots is among the many issues that could spark legal action concerning Tuesday's election. JOHN SPINK/JSPINK@AJC.COM



The counting of absentee ballots is among the many issues that could spark legal action concerning Tuesday's election. JOHN SPINK/JSPINK@AJC.COM

Political parties, campaigns and voting rights groups are ready to go to court on Election Day and the days that follow as they prepare for fights over ballot counting, poll hours and results in Georgia.

The Trump campaign has lined up attorneys in the state, and the Democratic Party of Georgia, the American Civil Liberties Union and Fair Fight Action are ready to respond to lawsuits.

No new legal action has been filed yet, but that could change quickly if races are close or there are problems at the polls on Tuesday.

Dozens of poll watchers from Georgia’s major political parties will be deployed to document issues, and the Justice Department announced Monday that it would send staffers to monitor compliance with federal voting rights laws in Fulton and Gwinnett counties.

It’s unclear which types of legal challenges will arise. Judges could be asked to keep polling places open past 7 p.m., challenge absentee or provisional ballots, or seek recounts in close races. All were issues that the courts hashed out during the 2018 midterm elections.

Since then, state officials have updated many of the rules governing the elections system, debuting new voting machines, simplifying absentee ballots and increasing the threshold to trigger recounts.

Still, the secretary of state’s office is bracing for legal battles that could prevent some races from being called.

“When we have a close election like this, in what is now viewed as a swing state, there’s going to be challenges,” said Gabriel Sterling, the state’s voting system manager. “There will be challenges from Republicans, there will be challenges from Democrats. And we expect them all to be going into court more than likely.”

He added, “Our goal was to make sure we have a safe and efficient process that is transparent and everybody can agree with the outcomes.”

Watching for trouble

The tense political climate and President Donald Trump’s recent comments urging his supporters to go to the polls and “watch very carefully" has some voting rights groups worried about voter intimidation.

That’s an issue being closely monitored by the local chapter of the ACLU, especially given Georgia’s status as a high-risk state for far-right militia activity around the election, according to a recent report.

“When you have the kind of rhetoric that we’re hearing nationally, we’re concerned about copycat activity," said Andrea Young, executive director of the ACLU of Georgia. "You don’t want to see that kind of activity around polling places.”

Young said her organization has prepared litigation materials for roughly a dozen election-related scenarios. Another top ACLU concern, she said, is ensuring the record number of absentee ballots cast are counted.

More than 1.2 million Georgians voted by mail this year, according to state election data.

Absentee ballots were a major point of legal contention during the 2018 elections, particularly concerning mismatched voter signatures and missing birth date information.

Some of those issues have been resolved by changes to state law and court rulings. Voters are no longer required to write in their birth years or addresses on ballot envelopes, instead only their signatures. In addition, a court settlement earlier this year required quick notification to voters when their ballots are rejected, giving them until the Friday after the election to correct problems.

Trump has repeatedly cast doubt on the integrity of mail-in ballots by raising the specter of voter fraud, which some worry could undermine public confidence in Tuesday’s election.

That heightened rhetoric is part of what prompted the Atlanta-based Carter Center to take the unusual step of wading into this year’s election. The nonprofit, founded by former President Jimmy Carter, typically focuses on elections in teetering democracies in Latin America, the Middle East and Africa, but this year it decided to embark on a public information campaign in the U.S.

“There have been real concerns about the impact of misinformation and disinformation on American trust in institutions," said Avery Davis-Roberts, associate director for the center’s Democracy Program. “This year, with the very volatile political situation around protests and counterprotests, we found that we do unfortunately meet a lot of the characteristics that we would look for in other countries.”

Lawyering up

Both presidential campaigns have braced for the possibility of recounts and court fights. They’ve poured significant resources into legal war rooms, particularly in the closely watched swing states of Michigan, Pennsylvania and Wisconsin that Trump narrowly carried in 2016.

In Georgia, where polls indicate the race is too close to call, the Trump campaign has hired at least five attorneys, including Bryan Tyson, who has represented Secretary of State Brad Raffensperger, and four others from Taylor English Duma, a spokeswoman for the firm confirmed.

The state Republican and Democratic parties are each deploying two-dozen poll watchers to precincts across the state, where they can monitor voter access and report back to officials about any irregularities. Most are lawyers or longtime party officials.

Matt Mashburn, a former GOP poll watcher and current member of the State Election Board, said thousands of voting observers will be watching for problems. Serious issues could be used to challenge election results.

“You’re looking for disruptions, people looking worried, people in small clumps together,” Mashburn said. “Normally you’d be able to figure out what’s going on, or you’d take your phone and call the party.”

He’s seen glitches that threw off vote counts, poll workers asking for voters' political affiliations, and tabulation errors during his 20-plus years of watching voting.

“Poll watchers aren’t supposed to fix anything on site, but they’re there to be the eyes and ears, and frequently what they see can be the basis of a challenge,” Mashburn said.

The Libertarian Party of Georgia also announced it will send out 12 volunteers., all of which are associated with the Coalition for Good Governance, a group that’s been one of the most vocal critics of Georgia’s new voting machines. The organization’s lawsuit seeking hand-marked paper ballots is pending in federal court.

A Trump campaign spokeswoman did not return a request for comment, and neither did the Biden campaign when asked about its legal plans for Georgia.

Spokespeople for the state Democratic and Republican parties declined or did not return requests for comment Monday, as did a representative for Fair Fight Action, the voting rights group established by former Democratic gubernatorial candidate Stacey Abrams that’s suing for court intervention to protect voters’ rights in Georgia elections.

More than 3.9 million Georgians have voted so far in the 2020 elections, and as many as 2 million more could turn out on Tuesday.

“Having 4 million people already voted, that just eases the pressure on the system on Election Day because there are fewer voters left to show up at the polls," said Tyson, who’s serving as a GOP poll watcher on Tuesday. “I’m very confident in how our election system is going to run in Georgia this time around.”

Legal landscape

Many court challenges to Georgia’s elections have been resolved this year.

  • Absentee ballot deadline: The 11th U.S. Circuit Court of Appeals reinstated Georgia’s Election Day deadline for absentee ballots to be returned. They must be received by county election officials by 7 p.m. on Tuesday.
  • Paper ballots: A federal judge denied a motion to replace Georgia’s new voting system with hand-marked paper ballots.
  • Paper backups: The 11th Circuit overturned a lower court’s ruling that would have required updated paper records of voter registration and absentee ballot information in every polling place.
  • Ballot postage: A federal judge ruled that requiring postage on mailed absentee ballots is not an unconstitutional poll tax.
  • Long lines: A case seeking court intervention to prevent lines at polling places was dismissed by a federal judge.