Voting integrity activists argue several parts of Georgia’s new election law criminalize normal election observation activities, while the state argues that those provisions reinforce previous protections and are necessary for election security.
A federal judge is set to hear arguments Thursday on the activists’ request that he bar election officials from enforcing those provisions.
Georgia’s overhaul of election rules, like similar measures enacted this year in other GOP-controlled states, has received broad criticism from Democrats and others who say it makes it harder to vote, particularly for voters of color.
There are currently eight federal lawsuits challenging aspects of Georgia’s new law, including one filed last week by the U.S. Department of Justice. They mostly target parts of the law that critics say threaten voting rights. The hearing Thursday will focus narrowly on a handful of provisions and won’t address the most commonly criticized parts of the law.
The challenged provisions mostly have to do with monitoring or photographing parts of the election process.
“These laws have the purpose and the effect of severely obstructing election transparency, degrading election security, and intimidating voters and members of the press who serve the vital role of providing citizen oversight of election administration,” the election integrity activists said in a court filing. They argue the organizations and individuals who filed the suit are changing their behavior out of fear of prosecution.
Lawyers for the state countered that much of the activity in question was already illegal and that the new law provides needed clarification. They also argue that none of the activists have said that they intend to violate the challenged provisions, and that they face no harm unless they violate these provisions and are prosecuted.
The Georgia First Amendment Foundation has asked for permission to file a brief in the case, saying that the new law “has imposed new and dangerous restrictions on news gathering that threaten the ability of the public and press to remain informed about Georgia elections.”
One challenged provision makes it a felony to “intentionally observe an elector while casting a ballot in a manner that would allow such person to see for whom or what the elector is voting.” Given the size, brightness and upright position of the state’s touchscreen voting machines, “it is hardly possible to enter a polling place in Georgia without potentially committing this felony,” the activists say.
Lawyers for the state argue the new provision applies to intentional efforts to see someone’s votes, not accidental observation.
Another provision prohibits monitors and observers from communicating any information they see during absentee ballot processing “to anyone other than an election official who needs such information to lawfully carry out his or her official duties.” This prohibits members of the public, voters or news reporters from telling anyone other than certain officials if they see problems, irregularities or fraud, the activists said in a filing.
The third challenged provision makes it a misdemeanor for monitors and observers to tally, tabulate, estimate or try to tally, tabulate or estimate the number of absentee ballots cast or any votes on the absentee ballots cast. This will allow arbitrary and discriminatory enforcement and will have the effect of chilling efforts by political parties and the public to observe absentee ballot processing, the activists wrote.
With the new law allowing for scanning of absentee ballots in the weeks before an election, it was necessary to make sure no information or vote counts would be disclosed before the polls close, state lawyers argue with regard to the second and third challenged provisions.
The fourth challenged provision makes it a misdemeanor to photograph or record the face of a touchscreen voting machine “while a ballot is being voted or while an elector’s votes are displayed on such electronic marker” or to photograph or record a voted ballot. This provision would prevent routine news coverage of voting and counting of ballots, the activists argue.
Photography was already restricted inside polling places, and the new law simply provides a specific penalty, state lawyers argue. They raised the idea of a vote-buying scheme requiring voters to show photographic proof of how they voted.
In response to the state’s arguments on the observation and photography provisions, the activists argued in a court filing that state lawyers repeatedly misstated what the new law actually does and illogically argued at times that it adds nothing to existing law while also saying it serves a compelling state interest.
The activists are also challenging a provision that sets an absentee ballot application deadline 11 days before an election. The deadline for the certification of election results is 11 days before a runoff, meaning people may not be able to get an absentee ballot for a runoff election, the activists argue.
Lawyers for the state dismissed this worry, saying it’s often clear as early as election night that there will be a runoff and that voters don’t have to wait for the results to be certified to request an absentee ballot.