Voter Registration Case Likely Headed to Georgia Supreme Court (UPDATE 1)
(APN) ATLANTA — The voter registration case brought by New Georgia Project (NGP) and other voter rights organizations against Secretary of State (SOS) Brian Kemp appears likely to head to the Supreme Court of Georgia, Atlanta Progressive News has learned.
The attorneys for the Plaintiffs will be making a decision about whether to appeal “post haste,” Julie Houk, Senior Special Counsel for the Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law, tells Atlanta Progressive News.
And that if they do appeal, it will likely be directly to the Supreme Court of Georgia, rather than the Court of Appeals.
The Supreme Court of Georgia does have an expedited review process available, Jane Hansen, Public Information Officer, told APN. “If the motion [for expedited appeal] comes in, obviously we would rule on it [the motion for expedited appeal] quickly.”
CLARIFICATION: The Court would first have to rule on whether to grant the motion for expedited appeal, before it would proceed to the merits of the case.
Fulton County Superior Court Judge Christopher Brasher denied Plaintiff’s request for a writ of mandamus–a request for an order from the court ordering Kemp and certain county election officials to do their job properly–in an order dated October 28, 2014.
The Plaintiffs believe the Court committed several errors of law, including, first and foremost, a misinterpretation of the Georgia election code, leading to a violation of the Georgia Constitution, which provides for citizens’ rights to vote.
The Georgia Constitution provides: “Every person who is a citizen of the United States and a resident of Georgia as defined by law, who is at least 18 years of age and not disenfranchised by this article, and who meets minimum residency requirements as provided by law shall be entitled to vote at any election by the people.” (Article II, Section 1, Paragraph 2)
SOS Kemp believes–and Judge Brasher agreed–that Georgia’s election code allows county election officials and the SOS to put a voter registration application on a pending status if the officials find some kind of mismatch between the information on the form, and other state and federal databases.
However, Plaintiffs contend that is a gross misreading of the Georgia election code, which was enacted pursuant to the Georgia Constitution.
“If an applicant fails to provide all of the required information on the application for voter registration with the exception of current and valid identification, the board of registrars shall notify the registrant in writing of the missing information,” O.C.G.A. 21-2-220(d) states.
The key words here are: “all the required information” and “missing.”
Plaintiffs contend that most, if not all, of the applications are, in fact, complete, in that the applicant filled in “all the required information.” Further, they argue that even if there was a mismatch with another database, that does not mean the information was “missing.”
Therefore, Plaintiffs argue the county election boards–relying on a manual from the Secretary of State instructing them to do so–improperly held up the voter registration forms despite the fact that the forms contained “all the required information” and no information was “missing.”
Houk argued this in Court to Judge Brasher, she said; however, the argument is not addressed in Brasher’s ruling.
“You’ve got people who completely and accurately filled out applications that comply with this requirement, and the Secretary of State and local officials are adding an additional burden. They [the applicants on the pending list] have to come in and fix a database matching error. Most people wouldn’t have a clue as to how they would correct the error,” Houk said.
In Brasher’s ruling, he notes there are two requirements for a writ of mandamus to be issued, including (1) the failure of a public official to perform a clear duty, and (2) there is no other specific legal remedy available.
With respect to the first part, Brasher ruled that neither Kemp’s office nor the county offices had failed in their duties. As noted above, Plaintiffs disagree based on a different reading of the law.
With respect to the second part, Brasher ruled there was another remedy available in that voters not on the rolls can fill out provisional ballots.
However, Houk says provisional ballots are not an adequate remedy, based on the State Election Board (SEB) testimony concerning Fulton County elections in 2012, where the County was unable to process in the required three day period all of the provisional ballots that were cast.
Brasher’s ruling disregarded this because the counties had not said they were currently having any problems.
If an applicant for voter registration was placed on a pending list, and was sent a letter more than thirty days before the election but did not respond to the county’s satisfaction, based on Kemp’s procedures, their registration would have already been cancelled, and therefore, any provisional ballot would not be counted.
Alternatively, if an applicant received their letter within the thirty day period before an election, and used a provisional ballot, they would have three days after the election to prove to the satisfaction of their county election officials that the mismatch was an error of some sort. However, even if they did so, based on the SEB testimony, it is not clear the counties could handle the administrative burden of processing the information and counting their vote.
Plaintiffs submitted several affidavits from voters who say they registered to vote but are not on the voter rolls. Brasher did not allow them to testify during last week’s hearing, Houk said.
Brasher’s ruling acknowledged these affidavits, but said, if true, it may have been the applicants’ own faults; and further, said a few cases were not enough to warrant a writ of mandamus.
“The judge made another error of law by applying the substantial compliance standard to a constitutional guarantee of a right under law. Here, we’re talking about the Constitutional rights of Georgians to vote,” Houk said.
The ruling also noted that the U.S. Department of Justice (USDOJ) had precleared the Secretary’s matching process
However, the USDOJ merely reviewed the law under the Civil Rights Act of 1964–under the Section 5 process, which is not currently in effect–to determine there was no issue of racial discrimination. The USDOJ did not review the law to see if it complied with the Georgia Constitution, Houk said.
Kemp was apparently delighted with Brasher’s ruling. “From the time this lawsuit was filed, I have made it very clear that it was frivolous and totally without merit. Today, the court validated this,” Kemp said in a statement.
“The claim that there are 40,000 missing or unprocessed voter registration applications is absolutely false,” Kemp said. “The counties have processed all of the voter registration applications that they received for the General Election.”
“The judge looked at the evidence and found that no claim had any merit. He is exactly right when he said that the counties were already processing all applications, providing the required notice, and that the Secretary of State’s office was already adding all qualified voters to the rolls,” Kemp said.
Interestingly, in concluding that the SOS office and county elections officials were processing all applications, Brasher relied on a letter authored by Kemp attached to pleadings by the SOS office. In other words, Brasher accepted Kemp’s statements as factual, simply because Kemp said them.
However, Houk claims that Kemp’s letter was hearsay.
“I am very glad this matter is now behind us and that the hard working election officials in Clayton, Fulton and Muscogee will not have to be distracted by this ridiculous lawsuit,” Kemp said.
“Again, if I were a county election official, I would seek legal fees related to this lawsuit. I wish this office could do the same,” Kemp said.
EDITORIAL NOTE: Long-time readers of APN may recall that the Honorable Judge Christopher Brasher also ruled against the News Editor of Atlanta Progressive News in a 2010 case involving the Georgia Open Meetings Act and a secret vote taken by the City of Atlanta. The Supreme Court of Georgia overruled Brasher’s decision in a 2012 ruling in Cardinale v. City of Atlanta.