Georgia Governor Brian Kemp signs expansive new elections bill

Introduction

Late last week, the Georgia General Assembly passed and Governor Brian Kemp signed into law Senate Bill 202 — a far-reaching overhaul of state election law that will have a significant impact on the electoral process across the State of Georgia for years to come. The bill, opposed en masse by Democrats and many voting rights advocacy groups, impacts nearly every aspect of the election system in Georgia, including vote tabulation, voter identification requirements, State Election Board composition and ballot drop box placement and accessibility. The bill passed along party lines in both the House (100-75) and the Senate (34-20) on March 25 and was signed by the Governor that same day.

This alert is intended to provide an overview of the bill and its major positions. A more detailed analysis can be provided upon request.

Absentee ballots

One of the most impactful and widely-reported aspects of the 98-page bill is its establishment of absentee ballot identification requirements for Georgia voters. While the right to vote by absentee for any reason was preserved, any person applying for an absentee-by-mail ballot will now have to provide the following personal information to receive a ballot:

• His or her name
• Date of birth
• Registration address
• Address where the elector wishes the ballot to be mailed
• The number of his or her Georgia driver’s license or issued identification card
• A copy of an alternative form of identification if such elector does not have a Georgia driver’s license or issued identification card

When returning an absentee ballot, Georgia voters will now also need to provide the following on a separate ballot envelope inside the return envelope:

• His or her name
• A signature
• The number of his or her Georgia driver’s license or issued identification card
• An affirmation that the voter does not have a Georgia driver’s license or identification card in the event he or she does not possess such a license or card 
• Date of birth
• The last four digits of his or her Social Security Number if the elector does not have a Georgia driver’s license or state identification card

In addition to requiring the above information in conjunction with the absentee ballot request and return processes, the bill shortens the time frame within which voters can request absentee ballots under state law. The request period will now start 11 weeks before any given election and end 11 days before such election. Finally, state and local governments are prohibited from distributing unsolicited absentee applications to potential voters, and third-party groups circulating absentee ballot applications to Georgia voters are required to utilize prescribed labeling on materials and only send such materials to individuals who have not already requested, received or voted such absentee ballots.

Ballot drop boxes

In the wake of the State Elections Board’s emergency authorization of ballot drop box usage during the 2020 election due to the impact of the COVID-19 pandemic, Senate Bill 202 codifies the permissibility of drop box usage and requires all counties to have at least one such depository. The bill places limits, however, on the total number of drop boxes per county, capping the allowable number of depositories at the lesser of either one drop box for every 100,000 active registered voters or the total number of advance voting locations in the county.

In addition to restricting the number of total ballot drop box locations that Georgia counties can utilize for election purposes, Senate Bill 202 also mandates that drop box depositories: be located only inside early voting locations; be used only during advanced voting hours; and be under constant surveillance by an election official, law enforcement official or licensed security guard. Finally, the bill prohibits the usage of ballot drop boxes by voters during the last four days before an election.

Runoff election changes

In response to recent consternation over the lengthy runoff period codified in Georgia law for primary, general and special runoff elections, Senate Bill 202 seeks to shorten Georgia’s existing nine-week runoff period down to four weeks by sending military and overseas voters instant-runoff ranked choice absentee ballots. The legislation also shortens in-person early voting for runoff elections to a period of one week before election day. Additionally, Senate Bill 202 also replaces the previous “jungle primary” system for special election seats with a framework that includes party primaries. 

Early voting

At present under Georgia law, in-person early voting for general elections is required for three weeks prior to election day during “normal business hours” Monday through Friday and during the same time period on one Saturday during the pre-election period. Senate Bill 202 adds an extra Saturday to this early voting period and affords localities the option of instituting Sunday early voting as they see fit.

Despite this expansion of early voting opportunities for general elections, the incorporation of a shortened runoff period for state runoff elections will reduce early voting in such settings to just one week before the special election date.

Election management

Senate Bill 202 also contains a wide range of election management provisions that will have a significant impact on how Georgia elections will proceed in upcoming cycles. These changes include the following:

• Allowing officials to process absentee ballots before the official closing of polls on election day
• Requiring officials to count ballots nonstop once the polls close
• Allowing flexibility with voting equipment for smaller, lower-turnout races
• Prohibiting local election officials and boards of registrars from accepting outside funding, grants or gifts from private third-party groups
• Permitting poll workers to serve in neighboring counties
• Clarifying that poll hours at precinct locations may only be extended by judicial order upon showing of good cause
• Requiring that no later than 10PM on election night counties must make public the total number of votes cast by each method
• Mandating that all absentee ballots have to be counted by 5PM the day after the election
• Disallowing voters who go to the wrong precinct from submitting provisional ballots in most cases
• Requiring specific paper with additional security features to be used for ballots to create a verifiable paper trail of votes
• Requiring precincts with more than 2,000 voters that have lines longer than an hour at three different points throughout the day to add more machines, add more staff or split up the precincts
• Prohibiting the use of phones, cameras and other electronic devices to photograph or record a voted ballot or an elector while voting a ballot
• Requiring the Secretary of State to conduct a pilot program to post scanned ballot images from elections
• Establishing a hotline to the Attorney General’s office to report illegal or fraudulent behavior
• Requiring counties to certify election results within six days
• Limiting mobile polling stations to emergencies
• Extending the current state bar on electioneering and political engagement activities in and around polling places and voter lines to include the third-party distribution of food and drink to prospective voters

State Election Board changes

Senate Bill 202 also makes several notable changes to the composition and powers of the Georgia State Election Board, bringing it under control of the state legislature and allowing it, in specific circumstances, to unilaterally take control of elections from local elections officials. In regard to composition, the legislation removes the Secretary of State as chair of the State Election Board and replaces him with a chairperson elected by the General Assembly.

Under the legislation’s provisions, the State Election Board has also been granted the power to remove county election boards and replace them with an interim elections manager if they deem the local boards as in need of intervention. At no time may the State Election Board suspend more than four county or municipal elections managers. This process is initiated by the ability of county commissions, the General Assembly, or the State Election Board to initiate a performance review of local officials.

Conclusion

As summarized above, Senate Bill 202 significantly amends the electoral process in Georgia and will have a profound impact on future state election cycles. Despite the bill’s passage, however, the political and legal fight over its various components has just begun. Although two major provisions contained in an earlier version of the law — the termination of non-excuse absentee voting for individuals under 65 and the prohibition of Sunday voting — were struck from the final legislation, several voting rights groups have vowed to fight the bill in court. As of the publication of this alert, a federal lawsuit has already been filed by third-party organizations challenging the absentee ID requirements, drop box limits, provisional ballot invalidations, and food and drink distribution bar as “unjustifiable burdens” on Georgia voters. The Dentons Georgia Public Policy and Political Law Teams will continue to monitor those lawsuits as they proceed, and likewise seek to update our clients on other election and voting rights matters in Georgia and beyond, as they are certain to be a major political focus in the 2022 statewide elections and upcoming federal legislative battles in Congress.