by Stanley Dunlap, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
November 16, 2022
Just weeks before a pivotal U.S. Senate race, an alliance of Democrats is challenging the secretary of state’s determination that Georgia’s new voting law bars counties from opening polls to early voting the Saturday after Thanksgiving.
Democratic U.S. Sen. Raphael Warnock’s campaign and the Democratic Party of Georgia are suing state election officials, claiming they are misinterpreting the law by prohibiting local elections officials from opening early voting precincts on Nov. 26 for the Dec. 6 runoff.
The plaintiffs are asking for a Fulton County Superior Court judge to issue an order stating that counties should not be prevented from holding early voting on Saturday, Nov. 26.
Warnock is in the runoff against Republican challenger Herschel Walker following the Nov. 8 midterm after neither candidate received the necessary 50% of votes required by Georgia law to declare a winner. State law prohibits voting on the Saturday if it falls within a day of a state holiday, but Warnock and Democrats argue that rule does not apply to runoffs.
According to the 2021 election law overhaul, counties must begin advance voting for a runoff “as soon as possible” but no later than the second Monday before the runoff date. Therefore, this year’s runoff will begin no later than Nov. 28.
Warnock said Tuesday that many Georgians who are busy at work or with other duties during the weekdays find it much easier to vote on Saturday.
“This runoff is just four weeks, think about that, counties are in the midst of certifying their election and as of (Tuesday) and we have 21 days before the curtain falls on this election,” Warnock said during a voting rights press conference.
“We believe this is not only wrong but also a clear misinterpretation of the law,” Warnock said. “We’re here today to say we stand behind counties that are willing to open up their polling locations.”
Secretary of State spokesman Mike Hassinger the changes made in the law following the 2020 election were intended to provide more uniformity during early voting that included which days the polls could be open.
“The law was clarified to state that early voting was only authorized on the days specified in the paragraph and not authorized on any other days, so the law has changed since the 2020 runoff,” Hassinger said in a statement. “Senator Warnock and his allies are trying to twist a law and pressure counties right before an election in order to gain a partisan advantage, and that’s not what any candidate who cares about secure, fair elections should be doing right now.”
In the controversial Senate Bill 202, Republicans mandated statewide advance voting on Saturdays and set standard hours for polls to remain open during advanced voting. However, the bill also shortened the runoff period from nine weeks to four weeks, which meant that voters had fewer opportunities for advanced voting. The holiday provision specifically mentioning runoffs was removed in a 2017 bill.
The shortened runoff time of four weeks was the standard for many years in Georgia until a federal lawsuit changed it to nine weeks to give more time for overseas and military ballots.
Anthony Michael Kreis, a law professor at Georgia State University, said the Georgia election law is problematic, since the section of the code that mentions the state holiday also mentions a three-week early voting period, which would not apply to a runoff conducted in such a short time frame.
Kreis said the secretary of state has a plausible explanation when looking at the code that the intention of not having polls open around a holiday applies to runoffs while the state Democrats also have a strong argument on their side.
“When there is ambiguity, particularly when it comes to voting, even if it’s a tie it should be interpreted in favor of the voter,” Kreis said.
He said that the secretary of state’s office is bungling an issue that should have been dealt with before early voting was nearing, although Raffensperger has mentioned before there are a few things in the law based on SB 202 that should be cleaned up.
“It’s indefensible as a matter of policy to say we need weeks of early voting for federal, statewide and general elections but when it comes to a runoff, we need five days,” Kreis said.
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