An earlier diary Georgia Gives Green Light... highlighted the efforts by Karen Handel to challenge voters based on their citizenship. In this diary, I lay out some of the legal issues regarding these challenges, based on two sources:
- A conversation I just had with a representative of the Sec. of State of Georgia's office (404-656-2881).
- A conversation with a professor of law at a prominent university.
In so doing, I argue that Karen Handel has distorted an already strange set of laws (OCGA-21-2-229 and OCGA-21-2-230) to make it appear easier to challenge and disenfranchise voters on Election Day. I would strongly suggest that anyone reading with ties to the Obama/Martin legal teams or has contacts with the Atlanta NAACP to get on this immediately.
In Thursday's AJC article on "challenged" voters, Sec. Handel and her office made three claims:
- Counties that have election boards will conduct hearings on these and other challenged ballots at 10 a.m. the Friday after the election. They will determine whether the person is a citizen.
- Those whose citizenship is in question can go to a county elections office before Election Day and produce documents proving their citizenship and resolve the issue, Carrothers said.
- Any voter can challenge another’s qualifications to cast a ballot by notifying a precinct poll manager, Handel said. That voter then would be given a challenge ballot and would have to go before the election board.
Each of these claims is a distortion of Georgia State Law. The relevant sections of Georgia's Legal Code on this issues is OCGA-21-2-229 and OCGA-21-2-230. I have included both of these in their entirety at the bottom of this diary.
Timeliness of resolving complaints
First, Georgia Law states "the board of registrars shall immediately consider such challenge and determine whether probable cause exists to sustain such challenge." This does not seem consistent with the claim that challenged electors will have a review the following Friday.
Burden of proof of a challenged voter
According to Sec. 21-2-229: "The burden shall be on the elector making the challenge to prove that the person being challenged is not qualified to remain on the list of electors." The burden is not, as Handel suggests on the challenged voter to prove citizenship.
Method of challenging a voter
Next, although according to this law, it may be possible for one voter to challenge another, but according to law, "Such challenge shall be in writing and specify distinctly the grounds of such challenge." - which again, is inconsistent with Sec. Handel's quote that a challenge may be issued by "notifying a precinct poll manager."
In summary, this very brief analysis suggests that the process of "challenging" voters in Georgia is far more circumscribed than Sec. Handel makes it seem. It also suggests (and it doesn't take a genius to infer this), that the Republicans are worried enough about Martin, and to some extent Obama, carrying Georgia that they may be laying the ground for a suite of legal challenges after Election day.
Full text of Sec. 21-2-229
§ 21-2-229. Challenge of applicant for registration by other electors; notice and hearing; right of appeal
(a) Any elector of a county or municipality may challenge the qualifications of any person applying to register to vote in the county or municipality and may challenge the qualifications of any elector of the county or municipality whose name appears on the list of electors. Such challenges shall be in writing and shall specify distinctly the grounds of the challenge.
(b) Upon such challenge being filed with the board of registrars, the registrars shall set a hearing on such challenge. Notice of the date, time, and place of the hearing shall be served upon the person whose qualifications are being challenged along with a copy of such challenge and upon the elector making the challenge. The person being challenged shall receive at least three days' notice of the date, time, and place of the hearing. Such notice shall be served either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of Code Section 21-2-228.
(c) The burden shall be on the elector making the challenge to prove that the person being challenged is not qualified to remain on the list of electors. The board of registrars shall have the authority to issue subpoenas for the attendance of witnesses and the production of books, papers, and other material upon application by the person whose qualifications are being challenged or the elector making the challenge. The party requesting such subpoenas shall be responsible to serve such subpoenas and, if necessary, to enforce the subpoenas by application to the superior court. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as allowed and paid witnesses in civil actions in the superior court.
(d) After the hearing provided for in this Code section, the registrars shall determine said challenge and shall notify the parties of their decision. If the registrars uphold the challenge, the person's application for registration shall be rejected or the person's name removed from the list of electors, as appropriate. The elector shall be notified of such decision in writing either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of Code Section 21-2-228 for other notices.
(e) Either party shall have a right of appeal from the decision of the registrars to the superior court by filing a petition with the clerk of the superior court within ten days after the date of the decision of the registrars. A copy of such petition shall be served upon the other parties and the registrars. Unless and until the decision of the registrars is reversed by the court, the decision of the registrars shall stand.
HISTORY: Code 1981, § 21-2-229, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 25; Ga. L. 1998, p. 295, § 1.
Full text of Sec. 21-2-230
§ 21-2-230. Challenge of persons on list of electors by other electors; procedure; hearing; right of appeal
(a) Any elector of the county or municipality may challenge the right of any other elector of the county or municipality, whose name appears on the list of electors, to vote in an election. Such challenge shall be in writing and specify distinctly the grounds of such challenge. Such challenge may be made at any time prior to the elector whose right to vote is being challenged voting at the elector's polling place or, if such elector cast an absentee ballot, prior to 5:00 P.M. on the day before the election; provided, however, that challenges to persons voting by absentee ballot in person at the office of the registrars or the absentee ballot clerk whose vote is cast on a DRE unit must be made prior to such person's voting.
(b) Upon the filing of such challenge, the board of registrars shall immediately consider such challenge and determine whether probable cause exists to sustain such challenge. If the registrars do not find probable cause, the challenge shall be denied. If the registrars find probable cause, the registrars shall notify the poll officers of the challenged elector's precinct or, if the challenged elector voted by absentee ballot, notify the poll officers at the absentee ballot precinct and, if practical, notify the challenged elector and afford such elector an opportunity to answer.
(c) If the challenged elector appears at the polling place to vote, such elector shall be given the opportunity to appear before the registrars and answer the grounds of the challenge.
(d) If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and if the challenge is based on grounds other than the qualifications of the elector to remain on the list of electors, no further action by the registrars shall be required.
(e) If the challenged elector cast an absentee ballot and it is not practical to conduct a hearing prior to the close of the polls and the challenge is based upon grounds other than the qualifications of the elector to remain on the list of electors, the absentee ballot shall be treated as a challenged ballot pursuant to subsection (e) of Code Section 21-2-386. No further action by the registrars shall be required.
(f) If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and the challenge is based on the grounds that the elector is not qualified to remain on the list of electors, the board of registrars shall proceed to hear the challenge pursuant to Code Section 21-2-229.
(g) If the challenged elector cast an absentee ballot and the challenge is based upon grounds that the challenged elector is not qualified to remain on the list of electors, the board of registrars shall proceed to conduct a hearing on the challenge on an expedited basis prior to the certification of the consolidated returns of the election by the election superintendent. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.
(h) If the challenged elector appears at the polls to vote and it is practical to conduct a hearing on the challenge prior to the close of the polls, the registrars shall conduct such hearing and determine the merits of the challenge. If the registrars deny the challenge, the elector shall be permitted to vote in the election notwithstanding the fact that the polls may have closed prior to the time the registrars render their decision and the elector can actually vote, provided that the elector proceeds to vote immediately after the decision of the registrars. If the registrars uphold the challenge, the challenged elector shall not be permitted to vote and, if the challenge is based upon the grounds that the elector is not qualified to remain on the list of electors, the challenged elector's name shall be removed from the list of electors.
(i) If the challenged elector appears at the polls to vote and it is not practical to conduct a hearing prior to the close of the polls or if the registrars begin a hearing and subsequently find that a decision on the challenge cannot be rendered within a reasonable time, the challenged elector shall be permitted to vote by having the word "Challenged" and the elector's name written across the back of the elector's ballot notwithstanding the fact that the polls may have closed prior to the time the registrars make such a determination, provided that the elector proceeds to vote immediately after such determination of the registrars. In such cases, if the challenge is based upon the grounds that the challenged elector is not qualified to remain on the list of electors, the registrars shall proceed to finish the hearing prior to the certification of the consolidated returns of the election by the election superintendent. If the challenge is based on other grounds, no further action shall be required by the registrars. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.
HISTORY: Code 1981, § 21-2-230, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 6, 30; Ga. L. 2000, p. 135, § 1; Ga. L. 2003, p. 517, § 22; Ga. L. 2005, p. 253, § 27/HB 244.