Judge rules Georgia ballots mailed by Election Day must be counted

Election workers sort absentee ballots on Tuesday, August 11, 2020 at State Farm Arena. JOHN SPINK/JSPINK@AJC.COM
Election workers sort absentee ballots on Tuesday, August 11, 2020 at State Farm Arena. JOHN SPINK/JSPINK@AJC.COM

Credit: JOHN SPINK / AJC

Credit: JOHN SPINK / AJC

A federal judge on Monday extended the deadline for absentee ballots to be returned in Georgia, ruling that they must be counted if postmarked by Election Day and delivered up to three days afterward.

The decision will likely result in tens of thousands of ballots being counted after Nov. 3 that would have otherwise been rejected, enough to swing close elections. The ruling invalidates Georgia’s requirement that ballots had to be received at county election offices by 7 p.m. on Election Day.

U.S. District Judge Eleanor Ross wrote that voters must be protected during the coronavirus pandemic, when record numbers of Georgians are expected to cast absentee ballots.

“Extending the deadline would ensure that voters who receive their ballots shortly before Election Day are able to mail their ballots without fear that their vote will not count,” Ross wrote in her 70-page order.

The court order will slow vote counting and election results as officials take time to count all valid ballots.

The secretary of state’s office plans to immediately appeal the ruling.

“Extending the absentee ballot receipt deadline is a bad idea that will make it nearly impossible for election officials to complete their required post-election tasks in the timeline that is required by law,” Deputy Secretary of State Jordan Fuchs said.

The lawsuit by the New Georgia Project, a voter registration group, asked the court to intervene to prevent voter disenfranchisement during the presidential election.

U.S. District Judge Eleanor Ross.
U.S. District Judge Eleanor Ross.

More voters than ever are relying on absentee ballots during the coronavirus pandemic so they can avoid the potential health risk of human contact at polling places. Nearly half of all voters in Georgia’s June 9 primary used absentee-by-mail ballots.

Over 5 million Georgia voters are expected to participate in November’s election, many of them again likely to vote absentee. Georgia law has allowed any registered voter to request an absentee ballot without having to provide an excuse since 2005.

“As we take care of each other through a pandemic of historic proportions, we need to make sure that every vote counts,” said Nse Ufot, the executive director of the New Georgia Project. “This is a commonsense solution to a problem we’ve been seeing for some time. It’s a good day for Georgia and a good day for democracy.”

Every election, absentee ballots are discarded in Georgia because they arrive too late. Even if ballots were mailed well in advance of Election Day, the U.S. Postal Service didn’t always deliver them in time, a problem exacerbated by potential mail slowdowns this year.

In this year’s primary, election officials disqualified at least 8,495 absentee ballots because they were received late, according to state election data. That amounts to less than 1% of all absentee ballots cast.

The number of ballots received after Election Day is expected to grow in November. Attorneys for the New Georgia Project argued in court that as many as 60,000 ballots could arrive late in the general election.

The Democratic Party of Georgia called the ruling “a huge victory for Georgia voters.”

“All Georgians deserve to have their voice heard, and in the midst of a global pandemic, it is the responsibility of our democracy to make voting by mail and early voting options as accessible as possible,” Democratic Party of Georgia Chairwoman Nikema Williams said.

Attorneys for Georgia had warned that delaying the absentee deadline could result in chaos as election results hang in the balance. Election officials will have to scramble to count ballots quickly and verify that absentee ballots were in fact postmarked by Nov. 3.

State law requires election results to be certified 17 days after the election, by Nov. 20.

“The court notes it is reluctant to interfere with Georgia’s statutory election machinery. However, where the risk of disenfranchisement is great, as is the case here, narrowly tailored injunctive relief is appropriate,” Ross wrote.

Ross wrote that Georgia election officials have already shown they’re capable of processing absentee ballots received after Election Day. State law requires election officials to count absentee ballots from overseas and military voters if they’re received within three days of an election.

Georgia joins 18 other states that accept absentee ballots after Election Day if they’re postmarked beforehand, according to the National Conference of State Legislatures.

Ross denied other changes sought by the lawsuit, including free ballot postage, quick notification of absentee application deficiencies, automatic mailing of absentee ballots to all voters, and ballot collection by third-party organizations.

Election officials are urging Georgians to vote early to avoid lines and other problems.

The U.S. Postal Service has said that mail delivery delays could hold up absentee ballots. Voters should mail their completed ballots at least a week in advance of Election Day, by Oct. 27, according to a USPS letter to Secretary of State Brad Raffensperger.

Georgia voters can also cast absentee ballots without having to rely on the Postal Service. Many counties have set up drop boxes where voters can deposit their ballots until polls close on Election Day.

Voters can request absentee ballots through a website created by Raffensperger’s office at ballotrequest.sos.ga.gov. Then absentee ballots will begin to be mailed in late September.

How to vote absentee in Georgia

Any registered voter in Georgia can request an absentee ballot without having to provide an explanation.

Voters can order an absentee ballot online at ballotrequest.sos.ga.gov. They can also fill out and mail a paper absentee ballot request form to county election offices.

Election officials will begin mailing absentee ballots to voters around Sept. 18. State law prevents absentee ballots from being mailed before 49 days prior to Election Day.

Then voters can mail their absentee ballots or return them in drop boxes set up in many counties.

Read the judge's order

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