Federal judge orders review of provisional ballots in Georgia, with governor’s race undecided
ATLANTA — Georgia’s still undecided race for governor will remain in legal limbo for several more days after a federal court put the brakes on final certification of the vote totals in one of the nation’s hottest midterm matchups.
U.S. District Judge Amy Totenberg late Monday ordered state officials to wait until Friday to certify final results in the race between Republican Brian Kemp and Democrat Stacey Abrams, and take steps to ensure that provisional ballots aren’t improperly rejected.
The ruling in a lawsuit by an advocacy group gave Abrams some hope as she tries to close the vote gap and force a runoff. Unofficial returns give Kemp a slim majority, but Abrams maintains that enough uncounted absentee, mail-in and provisional ballots remain to force a Dec. 4 runoff and breathe new life into her bid to become the first black woman in American history to be elected governor of a state.
Meanwhile, several protesters, including a state senator, were arrested Tuesday during a demonstration at the Georgia Capitol calling for uncounted ballots to be tallied.
“I’m being arrested because I refused to leave the floor of this building where I’m a state senator,” State Sen. Nikema Williams said as she was escorted from the building. “I wasn’t yelling. I wasn’t chanting. I was standing peacefully beside constituents I represent.”
Abrams has asked for a hearing in a separate federal lawsuit that her campaign filed Sunday. That suit seeks a more sweeping mandate for how county officials treat provisional and absentee ballots rejected for various reasons.
Kemp’s campaign maintains that there simply aren’t enough outstanding ballots to force a runoff.
In the Monday ruling, Totenberg ordered the secretary of state’s office to establish and publicize a hotline or website where voters can check whether their provisional ballots were counted and, if not, the reason why. She also ordered the secretary of state’s office to review or have county election authorities review the eligibility of voters who had to cast provisional ballots because of registration issues.
Totenberg ruled that Georgia must not certify election results before Friday at 5 p.m. State law sets a Nov. 20 deadline.
State elections director Chris Harvey testified last week that the state had planned to certify the election results Wednesday, a day after the deadline for counties to certify their results. He said that would allow preparations to begin for any runoff contests, including one already projected in the race for secretary of state.
Totenberg acted in response to a lawsuit filed Nov. 5 by Common Cause Georgia. The suit accuses Kemp, the state’s top elections official until he resigned as secretary of state last week, of acting recklessly after vulnerability in Georgia’s voter registration database was exposed shortly before the election.
Kemp’s actions increased the risk that eligible voters could be illegally removed from the voter registration database or have registration information illegally altered, the lawsuit says.
Sara Henderson, executive director of Common Cause Georgia, said in an emailed statement that the ruling helps increase voter confidence in elections.
Totenberg’s order doesn’t change the Tuesday deadline for counties to certify their results. The Abrams’ campaign lawsuit filed Sunday asks that the county deadline to be pushed to Wednesday, while also requiring that elections authorities count certain provisional and absentee ballots that have been or would be rejected for “arbitrary reasons.”
“I am fighting to make sure our democracy works for and represents everyone who has ever put their faith in it,” Abrams said in a statement. Her campaign has asked for a hearing as soon as possible, given the time sensitivity.
Kemp’s campaign retorted that Abrams’ latest effort is “a disgrace to democracy” and ignores mathematical realities.
“Clearly, Stacey Abrams isn’t ready for her 15 minutes of fame to end,” said Kemp spokesman Ryan Mahoney.
Unofficial returns show Kemp with a lead just shy of 60,000 votes out of more than 3.9 million cast. Abrams would need a net gain of about 21,000 votes to force a runoff.
The Associated Press has not called the race.
The Georgia race, along with Florida’s gubernatorial and Senate matchups, are among the final unresolved contests in a midterm election cycle in which Democrats have won the House, flipped seven governor’s seats and reclaimed more than 300 state legislative seats in statehouses around the country.
The GOP maintained its Senate majority, and could still expand it. But it’s looking to hold the governor’s mansions in Florida and Georgia to deny Democrats important gains in presidential battlegrounds ahead of the 2020 election.
Republicans have held the governor’s office in Georgia since 2003 and in Florida since 1999. President Donald Trump endorsed both Kemp and Florida’s GOP nominee Ron DeSantis in competitive GOP primaries and then campaigning in person for them ahead of the Nov. 6 election.
Georgia’s interim Secretary of State, Robyn Crittenden, directed county officials Monday to count some provisional ballots that had been rejected because of voters’ failure to give their year of birth, provided the voter’s identity and eligibility was still established.
Republican Gov. Nathan Deal appointed Crittenden to replace Kemp, who resigned last week after declaring victory in the governor’s race. Kemp called his margin — 50.3 percent of the vote — “clear and convincing,” but said he wanted Georgians to have confidence in the certification process.
The lawsuit says at least 1,095 qualified voters who cast absentee ballots in Gwinnett County had them “arbitrarily and unlawfully rejected” because of missing or insufficient information.
Under Georgia law, any issues causing a voter to cast a provisional ballot must be remedied within three days of the election — Nov. 9 for this election. The lawsuit asks that county election officials be required to consider evidence proving eligibility through Wednesday at 5 p.m.
Crittenden’s guidance to the counties noted that the Nov. 9 deadline for verifying the eligibility of provisional ballots was set by state law.
The lawsuit also asked that provisional ballots cast by a voter registered in another county be counted as if the voter had shown up at the wrong precinct. The lawsuit says that of the 1,556 provisional ballots Fulton County reported having rejected by Nov. 9, nearly 1,000 were disqualified because they were cast by voters whose registration records showed them registered in another county.
Further, the Abrams’ campaign wants any of the court’s orders in the case to be applied retroactively to counties that already have certified their returns, meaning those counties would have to reopen their counting process using any new standards and then submit updated returns to the state.