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Federal judge delays certification of Georgia election results, citing concerns over provisional ballots

A federal judge has barred the Georgia secretary of state’s office from immediately certifying election results to allow more time to address problems with thousands of provisional ballots that voters were forced to cast last week.

On Tuesday morning, in a separate case, a federal judge ordered Gwinnett County to stop rejecting absentee ballots with missing or incorrect birth dates. The ruling by U.S. District Judge Leigh Martin May addresses concerns raised by voting rights advocates on behalf of several voters and by Carolyn Bourdeaux, the Democratic candidate fighting who challenged Rep. Rob Woodall in the state’s 7th Congressional District. Bourdeaux is hoping to either overtake Woodall in the vote count or force a recount.

Tuesday is the deadline for Georgia’s 159 counties to certify their elections results, and the secretary of state had planned to certify those results Wednesday. But U.S. District Judge Amy Totenberg said late Monday that the secretary of state’s office could not certify results before Friday and that it had to “immediately establish and publicize on its website a secure and free-access hotline or website for provisional ballot voters to access to determine whether their provisional ballots were counted and, if not, the reason why.”

The ruling in the suit brought by Common Cause means a few more days of uncertainty about the Georgia governor’s race, in which Democrat Stacey Abrams is hoping to force a runoff with Republican Brian Kemp, who is leading by about 59,000 votes. Kemp, who resigned as secretary of state late last week and declared victory, said that there are not enough outstanding votes to keep him from claiming the office.

“Today’s ruling is a victory for the voters of Georgia. We are all stronger when every eligible voter is allowed to participate in our elections,” Sara Henderson, executive director of Common Cause Georgia, said late Monday in a statement. “This victory helps achieve greater voter confidence in our elections.”

Lauren Groh-Wargo, Abrams’ campaign manager, said in a statement: “The rulings from last night and this morning were wins for Georgians’ fundamental right – the right to cast a ballot. Given the confusion sowed by the Secretary of State’s office last week and the number of voters who experienced irregularities regarding their registration status, these victories were necessary steps in the fight to count every eligible vote in Georgia.”

Kemp campaign spokesman Ryan Mahoney said, “While Democrats attempt to undermine Brian Kemp’s convincing victory seven days ago, we remain confident in the local elections officials who are certifying the results.”

The secretary of state’s spokeswoman, Candice Broce, said, “The secretary of state’s office is reviewing the order and considering our options with legal counsel.”

The secretary of state’s office has reported that 21,190 provisional ballots were cast in the Nov. 6 election. The Abrams campaign has said the number is more than 27,000. Voters are given provisional ballots if their registrations don’t show up in voter rolls at their precincts or if they don’t have proper identification.

The suit refers to testimony from Chris Harvey, the state director of elections, that typically only half of the provisional ballots cast will probably be counted because of problems.

Voters had until Friday to prove that they were duly registered or to prove their identities. The lawsuit names voters who said they were not given proper information about how to fix their ballots.

Abrams has filed her own lawsuit asking for a delay in certification of the results and to require election officials in two counties to stop summarily rejecting absentee ballots with minor discrepancies, as well as to accept provisional ballots from voters whose voter registration records were not updated to reflect their new addresses. Abrams would need at least 21,000 additional votes to force a runoff and just over 19,000 to initiate a recount.

Tuesday’s ruling in the Gwinnett case came a day after Bourdeaux filed an emergency motion asking that the county be required to count ballots of voters who were properly registered but whose ballots were rejected for minor discrepancies. The suit argues that voters should be given the chance to correct issues flagged by county elections officials. The campaign estimates that 900 to 1,000 ballots are at issue. The lawsuit refers to 323 affected ballots.

The most recent tally on the secretary of state’s website shows Woodall with 50.16 percent of the vote to 49.84 percent for Bourdeaux. The unofficial results show Bourdeaux trailing by 901 votes.

In late October, May ordered Gwinnett to stop summarily rejecting ballots for “perceived signature discrepancy,” which the judge said was being made by elections staff on a “subjective and arbitrary basis.” That ruling came after voting rights advocates became alarmed that a large number of absentee ballots were being rejected by Gwinnett elections officials.

Voters of color make up a majority of residents in Gwinnett, and voting rights groups said ballots of minority voters were being rejected at a higher rate than for white voters.

“For the public to have confidence in this election cycle, it is critical that every vote be counted and every voice be heard,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “Yet officials in communities like Gwinnett County remain bent on erecting unnecessary barriers to bar the counting of absentee and provisional ballots, particularly those cast by minority voters.”

The Lawyers’ Committee filed the motion Sunday in partnership with the Coalition for Good Governance.

The Common Cause suit cites concerns over the security of the state’s voter registration database, an issue that has arisen more than once during Kemp’s tenure, including the Sunday before the election. Kemp’s office issued a news release accusing the state’s Democratic Party of a “failed attempt” to hack the system. It turned out that activists were attempting to alert the secretary of state’s office that the database was vulnerable to hacking.

Totenberg, who also is overseeing a lawsuit to force the state to abandon its electronic voting machines in favor of paper ballots, said in Monday’s ruling that Common Cause has “shown a substantial likelihood of proving that the Secretary’s failure to properly maintain a reliable and secure voter registration system has and will continue to result in the infringement of the rights of the voters to cast their vote and have their votes counted.”

She also rejected an assertion by the secretary of state’s office that it needed to move up the certification date because of the need to prepare for a runoff between the candidates for secretary of state, neither of whom received more than 50 percent of the vote on Nov. 6. The law states that the secretary of state has up to 14 days after the election to certify, which would be Nov. 20.

Totenberg said the secretary of state’s attempt to expedite certification “appears to suggest the Secretary’s foregoing of its responsibility to confirm the accuracy of the results prior to final certification, including the assessment of whether serious provisional balloting count issues have been consistently and properly handled.”

Voting rights were a major issue in the governor’s race, in which Abrams, a former Democratic leader of the state House, was hoping to be elected the nation’s first black female governor. Kemp was criticized by Abrams and activists for championing strict voter registration and identification laws.

Just before the election, news broke that 53,000 new voter registrations had been blocked because identifications on the forms were not an “exact match” to motor vehicle or Social Security records. A judge ordered officials to stop enforcing the law.

Kemp also has been criticized for purging more than 1 million Georgia voters from rolls, because they had not voted in previous elections or because they had supposedly moved. But many voters have come forward to say that they had, indeed, voted in previous elections and that they had made several attempts to update their records.

On another front, Sarah Riggs Amico, the Democratic candidate for lieutenant governor, sent a letter to the secretary of state’s office raising concerns about an “unusually high rate” of drop-off in votes cast for her race compared to those for other statewide races.

Amico’s letter says that most troubling is the contrasting drop-off rate for votes cast on paper, 1 percent, and those cast on the state’s electronic voting machines, about 7 percent.

“These stark anomalies indicate serious inadequacies in the administration of the 2018 General Election,” Amico wrote. The letter goes on to say that although Amico doesn’t expect the residual votes to affect the outcome of the race, officials need to investigate to ensure that machines are functioning properly for the upcoming Dec. 4 runoff for some contests, including the one for secretary of state.

Correction: An earlier version of this story incorrectly said that candidate Carolyn Bourdeaux was trying to force a runoff in her contest. No runoff is possible in her race; she is trying to either overtake her opponent in the vote count or force a recount. The story has been corrected.