Georgia’s S.B. 202 Unpacked

On March 25, 2021, Georgia made headlines when it enacted Senate Bill 202, an omnibus voter suppression bill targeting many aspects of voting in the Peach State. The state drew condemnation from a wide range of individuals and entities, including former President Jimmy Carter (a Georgia native) and Atlanta-based Delta Airlines. Major League Baseball, which was set to host its annual All-Star Game in Atlanta that year, relocated the game to Denver, Colorado in response. Nearly two years since its enactment, S.B. 202 continues to restrict voting and impede election administration in the Peach State. 

The law adds numerous restrictions to most methods of voting.

The parts of the law that garnered the most attention following its enactment were the ways in which it curtailed access to voting in the wake of a high turnout election where a Democratic presidential candidate won Georgia for the first time since 1992. Similar to Republican bills in many other states, many of the changes focus on mail-in voting in response to the unprecedented growth in this form of voting in 2020.

Specifically, S.B. 202

• Changes the deadlines to request mail-in ballots so the window begins later and ends sooner,
• Requires voters to include ID numbers like a driver’s license number on both their application for a mail-in ballot and their completed ballot,
• Prohibits government officials from sending unsolicited mail-in ballot applications and bans third-parties from sending applications with pre-filled information and
• Limits the number of drop boxes in each county and requires boxes to be located inside elections offices or early voting locations and available only during early voting hours.

But mail-in voting isn’t the only method that S.B. 202 restricts. The law also includes changes to in-person voting by decreasing the amount of time for in-person early voting prior to runoff elections and, most infamously, banning individuals and groups from giving out food or drinks to voters waiting in line to vote. In a provision directly targeting Fulton County, the state’s most populous and one of its most Democratic counties, the bill bans the use of mobile polling locations like Fulton County’s 2020 voting buses.

S.B. 202 also includes a provision that would divide voting precincts in response to long wait times at prior elections. While this change is positive, it becomes more problematic due to the way that S.B 202 changes the counting of provisional ballots. Previously, voters who went to the wrong precinct to vote could vote using a provisional ballot and still have their vote counted for federal, state and countywide candidates. Under S.B. 202, provisional ballots for out-of-precinct voters are only counted if they voted after 5 p.m. on Election Day. That means that if a voter shows up to the wrong precinct because their precinct was changed due to long voting lines, they’ll only be able to vote using a provisional ballot and have their vote counted in very limited circumstances.

S.B. 202 also includes several changes to ballot counting and election administration.

In addition to restricting voting, the law updates ballot counting procedures to speed up the process and give more access to partisan observers. S.B. 202 requires ballots to be printed on special security paper and makes digital images of paper ballots public records, allowing anyone to look at them. The law also aims to speed up ballot counting by permitting counties to begin opening and scanning mail-in ballots two weeks before Election Day and requiring counting of ballots to continue 24/7 until all mail-in, early and Election Day ballots are counted. Counties that don’t finish counting mail-in ballots by 5 p.m. on the day after the election could face consequences.

One consequence counties could face is a takeover of elections by state-appointed officials. S.B. 202 empowers the State Elections Board to replace a county election board following a performance review. The replacement election superintendent would have wide authority to certify elections, decide voting locations, spend funds and set policy. Opponents worry about this provision’s potential for abuse by partisan officials, who could target a Democratic county and impose changes on election administration.

Other changes to how elections are run include limitations on the creation of emergency election rules, a ban on private grants to fund election administration and a shortening of the amount of time between elections and runoffs. This is why the runoff in Georgia’s 2022 Senate election was held only four weeks after the general election, rather than eight weeks as was done in 2021.

Mass challenges of voter qualifications are easier under the law.

Another aspect of the law that’s gotten a lot of attention is how it enables individuals to challenge voters’ eligibility. S.B. 202 lets any voter challenge as many other voters in their county as they wish, leading a single voter in Forsyth County to challenge the eligibility of 13,000 registrations last year.

But S.B. 202 doesn’t just make challenges easier. It also forces counties to respond to challenges, no matter how frivolous. The law requires a hearing on each challenge within 10 business days of the challenged voter being notified, meaning that a county could become flooded with challenges and be forced to expend significant resources responding to each one. Finally, the law exposes counties to sanctions if they don’t comply with the voter challenge provisions. A county could therefore get in trouble for failing to respond to baseless challenges, even if doing so would divert time and resources from more important election tasks.

Due to the changes to mass challenges, amateur voter fraud hunters challenged 92,000 voter registrations last year.

What’s next for S.B. 202?

After Gov. Brian Kemp (R) signed S.B. 202 into law, multiple lawsuits were filed against it in court. Several of the lawsuits were consolidated into In re: Georgia Senate Bill 202, which challenges multiple provisions of S.B. 202 and involves multiple plaintiffs, including civil rights groups and the U.S. Department of Justice. Litigation in the case is ongoing and a trial has yet to be scheduled, so we still have a long way to go until a court rules on the legality of S.B. 202. In the interim, the plaintiffs asked the district court to block the law’s line-warming ban; on Aug. 18, 2022, the judge declined.

Apart from the consolidated lawsuit, two other cases are moving their way through the court system. Coalition for Good Governance v. Raffensperger argues that several provisions of the law violate the right to vote and free speech. The court granted the plaintiff’s request to block one portion of the law while litigation continues. Meanwhile, the plaintiffs in VoteAmerica v. Raffensperger claim that the law’s restrictions on mail-in ballot applications violate the First and 14th Amendments. A judge declined to block these provisions on June 30, leaving most of S.B. 202 in effect.