BREAKDOWN: the Latest Version of Georgia’s Election Overhaul

With three legislative days remaining for the 2021 legislative session, state lawmakers are still working to revamp Georgia’s election law after one of the most tumultuous election cycles in recent history.

Senate Bill 202, which now totals 93 pages, is sponsored by Senator Max Burns, Representative Barry Fleming, at least 22 others. The measure, donned the ‘Election Integrity Act of 2021,’ includes a three-page introduction to the bill, citing legislative intent and justification for such a massive overhaul.

Specifically, lawmakers cite ‘a significant lack of confidence in  Georgia election systems,’ concerns about allegations of ‘rampant voter suppression,’ ‘allegations of rampant voter fraud,’ and an opportunity to “update existing processes to reduce the burden on election officials and boost voter confidence.”

Here’s what SB 202 entails…

SB 202 creates O.C.G.A 21-2-3 to give the Georgia Attorney General full authority to have a hotline for voter issues (including anonymous tips) and the AG “shall have the authority” to review those complaints within 3 days to determine if further investigation is warranted. The language permits the AG to review the complaints but does not require the office to do so. 

Absentee Ballots

• Limits absentee ballot requests to 78 days before the election for first request and 11 days before election as last request
• Requires absentee ballot requests in writing with name, DOB, DL #, address, and a place to include a photocopy of the DL or ID card + a signature
• SOS is allowed to post a copy of an absentee ballot application online but the mailing of unsolicited absentee ballot applications to voters is not allowed
• Makes it a misdemeanor to handle someone else’s absentee ballot and a felony to open someone else’s absentee ballot 
• Electors in jails or detention centers who are eligible to vote must be giving resources to apply for an absentee ballot and return it in a timely manner (these are people who have not been convicted of a crime or who only were convicted of misdemeanors and therefore still have their right to vote)  
• During early voting, a county must report to SOS and post on website the number of people who voted early that day as well as the number of absentee ballots issued, returned, and rejected 
• No signature on absentee ballot means the ballot is rejected but a voter must be given the opportunity to fix it
• Any rejected absentee ballot must be done in a 3-day period after receipt
• Requires printing on ‘security paper
• Narrows how absentee ballot drop boxes are used, to include even distribution across the respective county, and drop boxes must be located at the elections office, with the absentee ballot clerk, or inside advance voting locations. The drop boxes may be located outside such locations during a governor-declared emergency
• An election superintendent is authorized to process and scan verified and accepted absentee ballots beginning at 8:00 a.m. on the third Monday prior to the day of the primary, election, or runoff but it is prohibited to tabulate or tally the absentee ballot votes until the closing of the polls on election day

State Elections Board Reform

• Amends OCGA 21-2-30 to remove SOS from the State Board of Elections and replace with a chairperson appointed by the General Assembly. Also includes procedure for electing this person and how they’re sworn in.
  • Requires that the person be nonpartisan and prohibits partisan organization participation during tenure as chairperson
  • If there is a vacancy and the legislature is not in session, Governor appoints an interim person until General Assembly convenes again
• Reduces the SOS to a non-voting member of the State Board of Elections 
• Amends State Board of Elections code to require 3 VOTING members for a quorum 
• Limits the State Elections Board emergency powers to imminent threats to public health or safety and requires notice to the public, the Governor, Lt Gov, Speaker of House, Chairs of standing committees, legislative counsel, and CEOs of the political parties upon scheduling a meeting for emergency powers
  • In the motions, the Board must make the case for threats to public health, safety, etc. and explain why the power would remedy the issue 
• SOS must notify the House and Senate Judiciary committees 5 days before entering into any consent agreement, consent order, or settlement
• Gives House and Senate Judiciary committees the authority to override an emergency rule by State Elections Board 

State Authority Over Local Election Superintendents/Board of Registrars 

• Expands the definition of ‘Superintendent’ so as to appropriately reference the respective Superintendent at state and local levels throughout the code section and clear up confusion in the old code section 
• Ln 239 amends code to allow State election Board to suspend a county election superintendent and appoint another as an interim — capped at 4 city and county suspensions at a single time across the state
  • Requires the SOS to provide all necessary resources for the State Elections Board to enforce this new authority

Investigations Into Irregularities, Inefficiencies, and More 

• Provides a process for seeking extraordinary relief, conducting preliminary investigations at the local level (by local body or by state Elections Board) and sets a standard of at least 3 violations of the elections code at the local level to move forward OR if there is clear and convincing evidence after 2 elections in 2 years that there is malfeasance, gross negligence, etc.
• Probate judge, sole commissioner, commissioners board, board of elections all may petition State Elections Board to grant a hearing 
• Testimony made before the State Elections Board and decisions rendered are open to the public but deliberations are not
• Based on findings from the hearing, the Board can suspend the local election super or board of registrars and provides a process for the appeal by those persons
• Prohibits local governments from expending attorneys fees on these matters except as it pertains to going through the pathway of seeking investigation and hearings through the State Elections Board
• Prohibits local governments from reducing funds because a superintendent or board of registrars is suspended
• Dictates that there is no limit on the number of people whose qualifications an elector can challenge
• Outlines the entities that may request that the State Elections Board conduct a performance review of local elections (Lines 492-498)
  • The SEB orders the SOS to appoint an independent performance review board

Local Election Authority

• Dictates that the Chief Judge of the Superior Court in the county is the election super in the event that there is no board of elections and the probate judge in a county is out of service 
  • Sole Commissioner/Board of Commissioners are responsible for setting the compensation for the fill in by the Chief Judge and it must come from the general fund
• Election Superintendents may allow a poll worker from an adjoining county so long as it does not negatively impact or inhibit the ability of the home county to administer elections because the poll worker is in the adjoining county
• Addresses how deaths of candidates on ballots are handled — different for nonpartisan and partisan races, and depends on the election, runoff, etc
• Prohibits election superintendents and local board of registrars from accepting gifts or items from anyone/entity other than state of georgia or federal government
• Outlines how superintendents can change precincts due to the wait time of the previous election
  • If last general election had > 2,000 electors and on election day, wait time in line was > 1 hour, the superintendent must reduce the size of the precinct to less than 2,000 electors but not fewer than 60 days before the election
  • Then outlines how public would be notified of polling location changes
• Only permits busses and ‘readily moveable facilities’ in emergency circumstances and when declared by the Governor if the precinct location is overwhelmed
• Gives superintendents the authority to change the number of voting booths at a precinct based on early voting and absentee ballots turned in before election day
• Outlines how counties must advertise that they will test voting equipment – including website, newspaper, public posting, and notice to SOS
• Provides that poll hours at a precinct may only be extended by order of a superior court judge
• Prohibits the stopping of county ballots – in-person or otherwise – until all votes are counted
• Requires an election day posting of ballots case, absentee ballots requested, the number returned, and those rejected

Secretary of State Authority & Operations

• Tightens language on how the SOS verifies voters have moved to other states and how those moves impact maintenance of voter lists
• Authorizes the SOS to inspect and audit absentee ballot applications/envelopes at any time during the 24-month retention period.

Special Elections

• Special primaries and special elections held at the same time as a general primary must be conducted using the same machines and facilities as the general primary, when possible. If a vacancy occurs in a partisan office to which the governor is authorized to appoint an individual to serve until the next general election, a special primary must precede the special election. 
  • The names of candidates on the ballot in a special primary must be listed alphabetically
• In order to fill a vacancy for an unexpired term of a United States senator, a special primary must be held at the same time as the general primary, followed by a special election held at the same time as the general election

SB 202 also:

• requires the General Assembly to study accepting donations for administration of elections, how to disburse those donations statewide, and to prepare a report by October 1, 2021 review next session;
• prohibits giving money, gifts, food, drinks, etc to an elector within 150 feet of a polling place, within a polling place, or within 25 feet of a voter standing in line to vote. 
• makes it a misdemeanor to photograph or record a voted ballot

You can read the 93-page bill here.