UPDATE: Judge Lisa Godbey Wood, a George W. Bush appointee, denied the GOP plaintiffs’ request for a temporary restraining order on Friday afternoon. The judge found that the plaintiffs lacked standing.
It’s like déjà vu all over again.
A federal judge has denied TRO in this case, ruling that plaintiffs don’t have standing+wouldn’t satisfy requirements for obtaining “extraordinary relief” sought in lawsuit, aka blocking some from voting in runoff. https://t.co/Vlrycl4qOe
— stephen fowler covers Georgia’s election! (@stphnfwlr) December 18, 2020
The Georgia Republican Party is asking a federal judge to prevent newly registered voters from casting a ballot in the state’s highly consequential runoff Senate elections taking place on Jan. 5 and currently underway. The outcomes will determine whether Republicans will maintain control of the U.S. Senate.
The lawsuit—filed Thursday in the U.S. District Court for the Southern District of Georgia by the state GOP, the National Republican Senatorial Committee, and the campaigns of Kelly Loeffler and David Perdue—seeks to prohibit new Georgia residents who voted for a 2020 Senate candidate in a different state from voting in runoffs. The plaintiffs also asked the court to direct election officials to segregate all ballots cast by persons who registered to vote in the state between Nov. 4 and Dec. 7.
“It is illegal for an individual to vote in the Georgia run-off if he or she already voted in 2020 for U.S. Senator in a different state,” the lawsuit stated, citing to the Voting Rights Act (VRA) 52 U.S.C. § 10307(e)(2).
The complaint then selectively quotes from the statute, stating: “The prohibition . . . applies with respect to any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for . . . Member of the United States Senate . . . .”
“This provision was passed specifically to prevent individuals from voting in multiple states during a federal election so as to protect voters from being ‘injured’ by ‘another person’s vote’ being ‘counted more than once,'” the complaint goes on. “And it is part of section 11 of the Voting Rights Act, a set of ‘antifraud provisions’ designed to ensure that each voter ‘will be afforded an opportunity to vote without personal fear, knowing that his ballot will be fairly counted and tabulated, and not nullified by illegally cast ballots.’”
The GOP’s complaint, however, fails to mention the subsequent provision [§ 10307(e)(3)], which clarifies when such a prohibition does not apply to voters: “As used in this subsection, the term ‘votes more than once’ does not include […] the voting in two jurisdictions under section 10502 of this title, to the extent two ballots are not cast for an election to the same candidacy or office.”
Law professors resoundingly panned the lawsuit, saying the claims were based on a misunderstanding of the law.
“This strikes me as absurd. The prohibition on double-voting obviously applies to voting for the same office, University of Buffalo School of Law professor and election law expert James Gardner wrote in an email to Law&Crime.
“It is possible that Georgia’s unusual use and timing of runoff elections might make it theoretically possible for someone to legally vote for Senator in one state and then also legally vote for Senator in Georgia, and perhaps as a matter of policy Georgia shouldn’t make that possible, but I see no reason to think federal law prohibits states from exercising their discretion in this way.”
Harvard Law School professor Nick Stephanopoulos, who specializes in election law, said the statute did not appear to support the GOP’s claim.
“The statute makes clear that it’s not double voting ‘to the extent two ballots are not cast for an election to the same candidacy or office.’ That would be precisely the situation of someone who moved to Georgia and registered after the general election,” Stephanopoulos wrote to Law&Crime. “That person would not have cast two ballots in ‘an election to the same candidacy or office’ — namely the Georgia Senate election.”
Georgia State University law professor Anthony Michael Kreis also weighed in on why, in his view, the lawsuit is fatally flawed.
“The problem with the [Georgia Republican Party’s] new lawsuit: the Constitution guarantees the right to travel and that the privileges and immunities of citizenship not be deprived to new residents. They are asking to disenfranchise Georgians and violate the Fourteenth Amendment,” he wrote. “The other problem is simple logic. If Georgia must block voters who voted in another state’s general election in 2020 after legitimately moving, then Georgia should also prevent anyone from voting in the runoff who also voted in a 2016 Senate race. That makes no sense.”
Kreis also referred to the lawsuit as “the most dangerous, anti-constitutional, and discriminatory lawsuit they’ve filed yet.”
Notably, when Georgia’s Republican Secretary of State Brad Raffensperger guidance last month about who can and cannot vote in the January runoff, there was no mention of excluding people who already voted for a Senate candidate in another state. The guidance warned that individuals who attempted to move to the state temporarily for the purpose of voting in the runoff would be prosecuted under the state’s voter fraud and racketeering conspiracy laws.
“Georgia law is clear about the seriousness of the crime committed by those looking to come to Georgia solely for the purpose of voting in the January 5 Senate runoff elections,” Raffensperger wrote. “OCGA § 21-2-21(a)(4) requires that registrants be ‘a resident of this state and of the county or municipality in which he or she seeks to vote.’ O.C.G.A. § 21-2-217(a)(1) adds that ‘the residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom;’ this would include individuals who move to Georgia solely for the sake of casting a ballot in an election with no intention of remaining in the state.”
According to Georgia Public Broadcasting, more than 1.1 million Georgia residents have voted early in the runoff election.
Georgia Republicans suffered back-to-back court losses on Thursday, as federal judges rejected attempts to change the state’s mail-in voting rules before the runoff.
Read the full lawsuit below:
[image via Alex Wong/Getty Images]
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