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A Judge Nullifying Election Law 60 Days Out is Cheating

This ruling is a partisan play. It gives organizations like Abrams' a license to cheat by eliminating established procedures and replacing them with--nothing.

Federal Judge Eleanor Ross nullified a longstanding Georgia law regarding absentee ballots. Let’s get right to it.

Georgia law O.C.G.A. 21-2-386 lays out the rules for validation of absentee ballots received by mail, and the cancellation of rejected ballots. It has been established law for at least a decade. Subsection (F) indicates how ballots received by mail are tested for validity.

(F) All absentee ballots returned to the board or absentee ballot clerk after the closing of the polls on the day of the primary or election shall be safely kept unopened by the board or absentee ballot clerk and then transferred to the appropriate clerk for storage for the period of time required for the preservation of ballots used at the primary or election and shall then, without being opened, be destroyed in like manner as the used ballots of the primary or election. The board of registrars or absentee ballot clerk shall promptly notify the elector by first-class mail that the elector’s ballot was returned too late to be counted and that the elector will not receive credit for voting in the primary or election. All such late absentee ballots shall be delivered to the appropriate clerk and stored as provided in Code Section 21-2-390.

Nowhere in the Code Section is checking a postmark mentioned. Georgia Secretary of State administrative rules for the State Election Board, which governs how counties conduct elections, Subject 183-1-14 on Absentee Voting does not mention checking postmarks.

But Judge Ross ordered that ballots received after 7 p.m. on Election Day, but postmarked by Election Day, must be counted. She did this just a few months before the election, when ballot materials have already been prepared, and poll workers, supervisors, and county boards of election have been trained in procedures.

No county in Georgia is able to consistently apply Judge Ross’s order because no current law or procedures exist for the counting, handling, or proper testing of ballots by looking at postmarks.

This is a recipe for mass chaos.

Georgia’s secretary of state Brad Raffensperger has done a lot to make voting by mail easier during the pandemic. The state Board of Elections approved a slate of changes to streamline and improve processes surrounding absentee (mail-in) ballots on August 10, one month ago. But this is a bridge too far.

“Changing the deadline to return absentee ballots will introduce delay and confusion in the election process. This, in turn, risks delaying the Electoral College process and disenfranchising voters in Georgia, including preventing voters from casting ballots in runoff elections,” the attorneys wrote in a motion Friday to stay Ross’ preliminary injunction while the appeal is pending.

Georgia appeals absentee ballot deadline extension, Atlanta Journal-Constitution, September 8, 2020

The changes approved in August include a new statewide online portal to allow voters to request absentee ballots, instead of going through county election boards. This is sorely needed, as the previous statewide mailing required each request to be returned to the county boards. My own story is that I requested ballots from Fulton County, which were never received. When primary day came in June, I went to vote in person, to be informed that I had to vote provisional because I was listed as an absentee voter.

Also, counties can now begin scanning and processing (but not tabulating) absentee ballots two weeks before Election Day, a huge boon to removing delays in results. The new rules also clarify settings for scanners to determine how absentee ballots are counted as votes, after the state spent more than $100 million for a new scanning system.

You can see that these standards, settings, and tests get into the category of “arcane.” These are important because legal activists like the New Georgia Project–Stacey Abrams organization–are watching. Abrams activists filed the lawsuit which caused Judge Ross to throw out existing Georgia election law.

For the June primary, Georgia’s system was set to factory settings, which counted marks that filled in 35% or more of the target area as a vote, did not count anything below 12% as a vote, and sent anything between those two to a review panel. The amendment proposed to State Election Board rule 183-1-15-.02 now lowers both thresholds. Any marks that fill in more than 20% of the target area is considered a vote, anything below 10% is not considered a vote and between 10-20% will go to an adjudication panel.

Now, a federal judge has ruled to change the processes with a stroke of a pen, and throw out procedures in favor of using a standard that nobody has trained on, determining a postmark date on the outside of an envelope.

This is a partisan play to throw the entire November election into chaos, and create causes where Abrams and other Democratic Party apparatchiks can claim voter suppression and procedural errors.

It’s cheating to change things this close to the election, so that you can later claim some large number of ballots that would normally very easily be rejected because they were received after 7 p.m. on Election Day should now be counted, even if there’s no procedure to vet those ballots by looking at postmarks.

It could take weeks to go through all the ballots, and some might have questionable postmarks. Some ballots might unquestionably be counted even if they were mailed the day after Election Day.

I can think of a scenario where a ballot harvesting operation pre-meters ballot return envelopes with an Election Day postmark, then goes out on Election Day to harvest those ballots door to door. Then the ballots hit the mailbox the evening of Election Day, after the polls have closed (or even the next day!). Technically, those ballots should not be counted, as they were mailed after the polls closed, but they were postmarked on Election Day.

This ruling is a partisan play. It gives organizations like Abrams’ a license to cheat by eliminating established procedures and replacing them with–nothing.

We know it’s a partisan play because blue states are seeking these kinds of rulings because they don’t have time to legislate the changes, while a red state like Georgia is appealing the ruling. Adding chaos and uncertainty to the election surrounding absentee ballots helps Democrats and hurts Republicans.

The law is what it is. Longstanding procedures, though they may be inconvenient, are not suppressing votes to help Republicans. They exist to remove doubt and uncertainty. They limit uncertainty in areas like when a ballot is received, and what constitutes a valid vote cast.

Throwing them all away this close to the election is partisan hackery and cheating. I hope the 11th Circuit Court will overturn this terrible ruling and other courts will follow suit. I’d be happy if one of these cases makes it to SCOTUS and the Supreme Court rules that state laws should remain as close to their original procedures as possible.

We don’t need more uncertainty in this election.


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