Georgia Elections Hinge on Courts’ View of Provisional Ballots

Republican gubernatorial candidate Brian Kemp attends the Election Night event at the Classic Center in Athens, Ga., on Nov. 6, 2018. Kevin C. Cox/Getty Images

Only some 18,000 votes now separate the candidates in the gubernatorial race in Georgia from a runoff, while one Georgia seat in Congress only needs some 500 votes to flip.

How much can the results still change, more than a week after the election, depends on how federal judges view thousands of rejected votes.

The election was ripe for controversy since the Republican gubernatorial candidate, Brian Kemp, is also Georgia’s secretary of state, the official overseeing the election. He resigned two days after the election, but not before weathering the ire of his Democratic opponent, Stacey Abrams.

In the morning after the election, Kemp was ahead by 1.9 percentage points. But Abrams only needed to pare the lead by about 1 point to push Kemp under the 50 percent threshold to force a runoff in December, according to state law.

Her bet was in large part on provisional ballots that are provided to people whose identity or registration can’t be verified at the polls. Those votes are only counted if people prove their eligibility within three days—by Nov. 9.

Abrams mobilized her campaign to contact voters and urge them to confirm their provisional votes. She also filed a lawsuit trying to change the rules for accepting ballots with errors and omissions.

The tactic has worked some. As of Nov. 14, Kemp is only 0.2 points from a runoff.

Moreover, the additional votes have buoyed Democrat Carolyn Bourdeaux’s challenge to 7th district GOP Rep. Rob Woodall. While falling behind some 3,000 votes on the morning of Nov. 7, Bourdeaux only needed some 500 more votes on Nov. 14 to flip the seat to Democratic control for the first time since 1995.

Abrams’ lawsuit (pdf) is asking U.S. District Judge Steve Jones to order absentee ballots that are missing correct birthdate information on the envelope to be counted as valid.

The suit also requests for the deadline for verifying provisional ballot to be postponed to Nov. 14.

Additionally, the suit is asking the judge to allow people who received a provisional ballot and tried to vote in a county where they weren’t registered to have their votes counted.

The legal team of Georgia Secretary of State Robyn Crittenden didn’t agree, saying such leniency would open the door to double voting and voter fraud, since poll workers have no way on election day to verify if somebody already voted in another county, The Atlanta Journal-Constitution reported.

Another lawsuit was filed a day before the election by left-leaning watchdog Common Cause Georgia.

On Nov. 12, U.S. District Judge Amy Totenberg ruled in the case (pdf), ordering election officials to review all provisional ballots, of which there was some 21,000 according to the Secretary of State’s Office or up to 27,000 by Abrams’s survey.

Totenberg, an Obama appointee, also ordered the state to set up a hotline for people to check if their provisional ballots were counted. She gave the election officials until Nov. 14 morning to provide updated information on how many provisional ballots were rejected and why, as well as other documents.

The judge, however, didn’t indicate whether any of the rejected provisional ballots should be counted, despite the Nov. 9 deadline having passed.