Elections: Elections and Primaries Through the Pandemic

JurisdictionGeorgia,United States,Federal
Publication year2020
CitationVol. 37 No. 1

ELECTIONS: Elections and Primaries Through the Pandemic

Joseph M. Brickman
Georgia State University College of Law, jbrickman1@student.gsu.edu

Logan D. Kirkes
Georgia State University College of Law, lkirkes1@student.gsu.edu

ELECTIONS


Elections and Primaries Through the Pandemic

U.S. Constitution: U.S. Const. amends. XIV, XXIV

Ga. Constitution: Ga. Const. art. III, § 4

Code Sections: O.C.G.A. §§ 21-2-9, -50.1; 21-5-35

Summary: The 2020 election cycle was all but normal. Due to certain health concerns associated with the COVID-19 pandemic, Georgia delayed its primary election three months from March to June and summarily mailed absentee ballot request forms to all active, registered voters. From presidential social media postings to a federal lawsuit, debate ensued over the widespread usage of absentee ballots, their overall effectiveness and security, who would receive request forms, and whether postage requirements qualified as an impermissible poll tax. To further compound these uncertainties, Georgia legislators, who are not permitted to fundraise or campaign during the forty-day legislative session, had to make significant changes to their election campaign strategies to account for the suspended term. This Peach Sheet explores Georgia's 2020 election season and outlines the major issues that faced the state through the ongoing pandemic.

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Introduction

The COVID-19 pandemic stopped the world in its tracks. On March 12, 2020, Georgia Lieutenant Governor Geoff Duncan (R) and Speaker of the House David Ralston (R) addressed their respective chambers, informing members that the Georgia legislative session would be suspended indefinitely.1 Typically, the Georgia legislature meets for forty days each year, beginning in January.2 Although lawmakers would prefer to check off those forty days as efficiently as possible, the inception of a bill is a long and strenuous journey.3 The most stressful part of the legislative session, however, centers around planning—and ultimately agreeing on—a budget for the next fiscal year, which begins on July 1.4 A normal legislative session typically concludes at the end of March, leaving plenty of time for the State to prepare for incoming budget changes. After the conclusion of the legislative session, the Governor has an additional forty days to sign or veto any of the bills that passed both chambers.

Adding to the pandemic-fueled chaos was the fact that 2020 was an election year. While the last day of a given session fluctuates from year to year, an election year brings with it a greater sense of urgency. Under Georgia law, incumbent members are not permitted

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to fundraise for their campaigns until the end of that year's legislative session.5 The basic logic behind such a condition makes sense: lawmakers should pass laws with all Georgians in mind, free from the influence of political fundraising while entangled in the lawmaking process.6 As a result, during election years, both chambers arrive in January on a mission to fulfill the forty-day legislative session as quickly as possible in hopes of having as much time as they can to campaign.7 Thus, when a session is suspended in an election year, the prospect of a normal election cycle all but disappears.

Following the suspension of the 2020 legislative session, Georgia election officials moved the State's primary elections from March 24, 2020, to May 19, 2020, due to the growing concerns of the spread of COVID-19.8 This decision came after Governor Brian Kemp (R) declared a Public Health State of Emergency on March 13.9 Georgia law prohibits the Secretary of State, the state's chief election official, from postponing or extending the date of an election more than forty-five days during an emergency.10 After the Governor subsequently extended Georgia's Public Health State of Emergency until May 13, Secretary of State Brad Raffensperger (R) once again delayed the presidential and general primaries until June 9, 2020, following similar national trends.11

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The presidential primary serves as an opportunity for voters to choose who they want to represent their political party in the upcoming year's presidential election. In 2020, for example, the Democratic Party chose former Vice President Joe Biden (D) in the presidential primary to represent all Democrats against President Donald Trump (R) in the November 2020 presidential election.12 The general primary, on the other hand, includes nonpartisan elections for various state positions, including justices of the Supreme Court of Georgia, judges of the Georgia Court of Appeals, judges of the superior courts, county judicial officers, and offices of local school boards.13 These elections take place "in the nonpartisan general election next preceding the expiration of the term of office."14

In addition to changing when Georgians would vote in primary elections, the COVID-19 pandemic also changed the way that Georgians would vote. Both the Centers for Disease Control and Prevention and the President's COVID-19 Task Force recommended that Americans exercise proper social distancing measures to curb the spread of the virus.15 Thus, in-person voting for the 2020 election cycle presented certain novel risks.16 To address such concerns, state election officials prompted the use of absentee ballots in lieu of traditional in-person voting.17 Under Georgia law, registered voters are permitted to vote by absentee ballot without providing justification for doing so.18 Obtaining an absentee ballot requires

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registered voters to submit an application to the registrar's office or absentee ballot clerk's office by mail, fax, e-mail, or in person.19 Georgia voters may apply for an absentee ballot up to 180 days before an election, and if approved, the absentee ballot is sent to the voter up to forty-nine days before an election.20 Voters who receive absentee ballots receive two envelopes: one that contains the ballot itself and the other to return the completed ballot.21 Voters must also sign an oath of authenticity that is printed on the outside of the return envelope.22 To submit an absentee ballot, voters mail or personally deliver the ballot to the board of registrar's or absentee ballot clerk's office.23

Given the delays in both the date of the primary elections and the legislative session, Georgians and their elected officials found themselves in a peculiar position—especially given Georgia's prohibition on incumbent legislators seeking or accepting campaign contributions until the conclusion of the legislative session.24 For members of the Georgia General Assembly up for reelection in 2020, receiving campaign contributions before the June 9 primary was virtually impossible given that the legislative session did not resume until June 15.25

Some argued that the prospect of increased applications for absentee ballots during the 2020 election cycle could lead to greater opportunities for voter fraud.26 Examples of such fraud could include "intimidation, coercion[,] and vote buying" behind closed doors.27 Further, some question remained as to whether the postage required

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to be affixed to a completed absentee ballot returned by mail constitutes an impermissible poll tax.28 The threat of COVID-19's lingering effects on the voting process, especially in the midst of an election year, elevated tensions between parties to new heights in 2020.29 To address the concerns of all Georgians in the most constructive manner possible, it is vital to look at the situation through a wholistic lens.

This Peach Sheet explores the numerous election-related issues that arose in Georgia during the COVID-19 pandemic. First, this Peach Sheet discusses Secretary of State Raffensperger's policy of mailing absentee ballot request forms to all active Georgia voters, the public discourse on the decision, and the safeguards in place to ensure legitimacy through the process. Next, this Peach Sheet analyzes the merits of the State of Georgia's current absentee ballot process and procedure (i.e., the poll tax issue). Finally, this Peach Sheet concludes by opining that Georgia's election process could proceed moving forward—with or without the threat of a pandemic.

Background

In delaying the state's first primary (originally to May 19, 2020), Georgia Secretary of State Brad Raffensperger (R) cited the "rapid" spread of COVID-19 and the threat it posed to the health of poll workers and the community as a whole.30 At that time, only one Georgian had been reported to have died from the virus.31 Four months later, Georgia reported over 3,000 COVID-19-related deaths, with numbers increasing daily.32 After initially delaying the presidential primary, Secretary Raffensperger announced that his office would be mailing absentee ballot request forms to all 6.9

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million active voters in Georgia.33 To obtain the absentee ballot itself, voters were required to fill out the request form and mail it back to their respective county election office.34 Though returning the request form by mail required, on its face, the use of a fifty-five cent stamp for postage, the form could also be filled out free of charge via email or returned under the U.S. Postal Service's (USPS) longstanding practice of delivering official election materials with or without adequate postage.35

As the May 19 election approached, concerns of election security remained. Voicing these concerns, Speaker of the House David Ralston (R) sent a letter to Secretary Raffensperger on March 26 requesting that Secretary Raffensperger consider again pushing the primary elections to late June.36 Speaker Ralston's request cited the ongoing safety issues due to CoVID-19, as well as the proposition that pushing the primary back until the end of June would allow voters to "vote in the manner in which they are most familiar."37 On April 9, Secretary Raffensperger responded, once again postponing the primary until June 9, 2020.38

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