State of Georgia

Georgia Runoff Nov. 26 Early Voting Challenge

Democratic Party of Georgia v. Georgia

Lawsuit filed on behalf of the Democratic Party of Georgia, the Democratic Senatorial Campaign Committee and Warnock for Georgia (Sen. Raphael Warnock’s (D-Ga.) campaign for U.S. Senate) against Georgia challenging the state’s guidance for early voting before the Senate runoff election. During the Nov. 8 midterm elections, neither Sen. Raphael Warnock (D-Ga.) nor his Republican challenger Herschel Walker garnered over 50% of the vote total, thus sending the two candidates to a runoff election on Dec. 6, 2022. On Nov. 12, the Georgia secretary of state’s office issued guidance stating that advance voting — the terminology Georgia uses for early in-person voting — “must begin as soon as possible prior to the runoff [on Dec. 6, 2022] and no later than Monday, November 28th.” Counties can hold advance voting prior to Thanksgiving, but not on Thanksgiving Day (Thursday, Nov. 24) or the day after Thanksgiving (Friday, Nov. 25). The guidance also states that counties cannot hold advance voting on Saturday, Nov. 26 based on the secretary’s reading of a 2016 law that states “if such second Saturday follows a public and legal holiday occurring on the Thursday or Friday immediately preceding such second Saturday…such advance voting shall not be held on such second Saturday.” In Georgia’s advance voting statute, the terminology “second Saturday” refers to the Saturday two weeks prior to a given election. However, contrary to the secretary’s reading of the 2016 law, the plaintiffs argue that the law “guarantees early voting on specific weekend days for primary and general elections and imposes conditions on that mandate, neither of which apply to runoffs” and therefore counties can hold early voting on Saturday, Nov. 26. 

The plaintiffs argue that Georgia law requires counties to begin early voting for the runoff “as ‘soon as possible’ but in any event ‘no later than the second Monday immediately prior to such runoff.”’ Thus, the plaintiffs claim that counties should not be prevented from holding early voting on Saturday, Nov. 26 if they choose to do so. The plaintiffs request an order stating that Georgia law does not prohibit counties from conducting early voting on Nov. 26 and further request that Georgia and Georgia Secretary of State Brad Raffensperger (R) are prevented “from instructing counties that they may not provide advance voting on Saturday, November 26, 2022, or from interfering in any effort by counties to provide advance voting on Saturday, November 26, 2022, or from taking any action to prevent votes cast during advance voting on November 26 from being counted and included in the certified election results.” They also request that the State Elections Board be prohibited from “taking any action against any county based on the county offering Saturday voting in advance of a general election runoff.”

On Friday, Nov. 18 a judge ruled that counties may hold early voting on the Saturday, Nov. 26 (the Saturday following Thanksgiving). The state and Republican committees appealed this decision and filed a motion to stay (meaning pause) the decision but a Georgia appellate court denied their request on Nov. 21.

On Nov. 23, in a major victory for Georgia voters, the Georgia Supreme Court rejected the Republican committees’ appeal of the lower court’s decision to allow early voting to be held on Saturday, Nov. 26. This means Georgia voters in over 20 counties will be able to vote early on Saturday, Nov. 26 ahead of the Dec. 6 runoff election.

Courtroom Updates

On Friday, Nov. 18, a Georgia judge heard arguments in a lawsuit regarding the state’s ban on early voting the Saturday after Thanksgiving (Nov. 26). The judge heard from an attorney representing the Democratic groups as well as an attorney representing the state of Georgia. Notably, the Georgia Republican Party, National Republican Senatorial Committee and Republican National Committee intervened in the lawsuit to push back against early voting on Nov. 26. However, when the state’s attorney asked the judge to give the Republican intervenors time to speak during the hearing, the judge stated that he doesn’t “want to hear from the intervenors” given the time constraints to hear and decide this case. For simplicity, the attorney representing the Democratic groups will be referred to as the plaintiffs’ attorney and the attorney representing the state of Georgia will be referred to as the state’s attorney

The plaintiffs’ attorney argued that during Georgia’s last runoff election in 2021, voters were able to early vote on the Saturday after Christmas. The plaintiffs’ attorney also stated that even last week Raffensperger announced on TV that some counties may have early voting on Nov. 26. The plaintiffs’ attorney argued that the secretary’s guidance is a “last minute reversal [that] is not just wrong on the law, but it also implicates the most fundamental right in our democracy.” The plaintiffs’ attorney argued that in 2020, a court adopted an interpretation of the law that the provision at issue does not apply to runoffs. He argued that the state and Republican intervenors chose to “cherry pick” the provision at issue to promote their argument. The plaintiffs’ attorney argued that when the Legislature excludes language (such as the word “runoff”) in statutory language, it does so purposefully and the language of the statute at issue here “makes clear that that distinction [between primary, general election and runoff] is meaningful and is determinative.” The plaintiffs’ attorney responded to the state’s argument that a court ruling on this matter would be a last-minute change in the status quo by stating that “what [the] plaintiffs here seek is not a last minute change but rather to restore the status quo. It is the secretary’s position that has changed at the last minute. As I mentioned earlier, 2020 multiple counties offered Saturday voting on Dec. 26, the day after Christmas Day.” He further argued that the secretary’s guidance “implicates the right to vote in case the right to vote because it eliminates a day of weekend early voting that some counties would have made available to voters and eliminating that [day] of early voting reduces voting opportunities.” He also contended that “the court does not need to find that voting opportunities have been eliminated entirely in order to demonstrate that there has been an impairment or an infringement or a burden even on the right to vote.” 

The judge asked if the plaintiffs are advocating for mandatory early voting on Nov. 26 or simply seeking permission so that counties can conduct early voting on that day if they want to. The plaintiffs’ attorney responded that they simply want permission: “Your Honor. [Holding early voting on Nov. 26] is not mandatory. And the reason it’s not mandatory is the same reason why the holiday exception does not apply because that provision that makes it mandatory does not include the term runoff. So that demonstrates that [the] plaintiffs’ interpretation is consistent in that statute.” The plaintiffs’ attorney concluded with a rebuttal of an argument in the Republican intervenors’ briefing by arguing that they “gave the game away” because they argued that “Republican counties” may not be able to staff early voting on Saturday, Nov. 26. To this argument, the plaintiffs’ attorney responded that voting opportunities should not be subjected or limited to the “lowest baseline” and that some counties shouldn’t be prohibited from holding early voting on Nov. 26 just because all counties might be unable to have it. 

The judge then heard from the state’s attorney. She argued that normally the state would have Saturday voting, “but because of the way that the calendar fell this year, we ran into a conflict.” She argued that voters will be able to vote on the weekend on Sunday, Nov. 27. The judge asked the state’s attorney about interpretations of the statute. She responded that the state thinks “the fundamental flaw in the plaintiffs’ interpretation is that it rests on the premise that a runoff is not an election. This is simply wrong.” The judge asked the attorney if there is only one interpretation of the statute, to which she responded that there are other interpretations but the secretary of state’s is the “most reasonable.” She argued that because many “options are available to voters…no one who has the right to vote is being denied.” The state argued that there is no distinction between a primary, general, or runoff election under the law at issue. In response, the judge asked why the state Legislature specifically referred to runoff elections separate from primary and general elections in the state law if they were all the same.She ended with the argument that sovereign immunity (a legal doctrine that prevents the government from being sued in certain contexts without its consent) prevents the court from entering a preliminary injunction against the state.

The plaintiffs’ attorney had five minutes for rebuttal. During this time, he outlined how the plain language of the law at issue does not apply to runoffs: “The Legislature has used the term ‘primary,’ ‘election’ and ‘runoff.’ In other words, the notion that ‘primary’ and ‘election’ alone is sufficient to cover the ground such that runoff is redundant…is refuted by the plain language [of the statute],” which is further highlighted by instances where  “the Legislature either referenced ‘primary election’ alone or ‘primary,’ ‘election’ and ‘runoff.’” He then highlighted instances in Georgia election law where the language is specific to include the word “runoff” if the law applies to runoff elections. He concluded that “there’s a specific distinction that runs throughout the statute between primary, election and runoff.”

The judge stated that a court ruling would come at “the appropriate time.” 

Read a Twitter thread of live tweets here.

Case Documents (trial court)

Case Documents (Ga Court of Appeals)

Case Documents (GA supreme court)

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