All eyes are on Georgia right now, where former Vice President Joe Biden leads President Trump by a razor-thin margin of fewer than 12,000 votes, making the presidential contest there the closest in the country.
Votes were still being counted over the weekend, and state election officials said nearly all ballots would be counted by the end of the day on Monday. Because the margin between Biden and Trump is so thin, less than 1 percent, it appears Georgia is headed for a recount regardless of the final vote tally.
All of this is happening amid allegations of voter fraud and ballot-counting irregularities. Republican Sens. David Perdue and Kelly Loeffler issued a joint statement Monday saying the management of the election in Georgia has become an “embarrassment.” They called on Georgia Secretary of State Brad Raffensperger, also a Republican, to step down for failing “to deliver honest and transparent elections.”
Other Georgia officials pushed back. Republican Lt. Gov. Geoff Ducan told CNN that his office had seen “no credible examples” of voter fraud or irregularities, and Gabriel Sterling, the state’s voting systems implementation manager, held a news conference Monday to reassure the media that everything is fine and that any irregularities are a result of human error, not fraud.
But the story in Georgia isn’t that simple. Structural changes to Georgia’s election law implemented piecemeal over the past decade, specifically changes to absentee mail-in voting, have made the state more susceptible to voter fraud. Whether it’s on a scale large enough to change the outcome of the presidential election, no one knows right now. That’s one of the things we might find out in a recount.
Because most Americans don’t closely follow election laws and lawsuits in Georgia, here’s a quick breakdown of the ways recent changes to Georgia’s election laws might be affecting the presidential election.
Settlement Smuggled In Major Change to Mail-In Voting
Back in March, Georgia election officials agreed to a settlement in federal court with the Georgia Democratic Party, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee, which had sued the state over its rules for absentee voting.
Specifically, the settlement introduced something called “ballot curing” to Georgia election law. Ballot curing is when voters whose mail-in ballots are rejected for some reason—the signature on the ballot doesn’t match the one on file, the ballot is missing certain voter information, etc.—are notified and given a chance to correct or “cure” their absentee ballot. Under the settlement, state election officials agreed to contact voters whose ballots were rejected within three business days. If an absentee ballot is rejected in the 11 days before Election Day, officials agreed to contact the voter in the next business day.
Because more than 8,000 absentee ballots were rejected in the 2018 general election in Georgia, this provision in the settlement got the most media play. But it wasn’t the most important provision, which was a crucial change to the rules for accepting absentee ballots in the first place.
Previously, the signature on the absentee ballot had to match the signature on eNet, a computer database that maintains Georgia’s voter registration and absentee ballot information. If the signature on the ballot didn’t match, it was thrown out.
In a cleverly worded section of the settlement, Georgia election officials agreed to a subtle but profound change. Instead of having to match the signature on file with eNet, the absentee ballot signature only had to match the signature on the absentee ballot application. The key word in the settlement was “any.” That is, an absentee ballot can only be rejected if it doesn’t match “any” of the signatures on file—either in eNet or the signature on the absentee ballot application.
What’s more, an absentee ballot can only be rejected if, A) it doesn’t match any other signature, and B) “a majority of the registrars, deputy registrars, or absentee ballot clerks reviewing the signature agree that the signature does not match any of the voter’s signatures on file in eNet or on the absentee ballot application.”
Why is that change so important? Well, if someone fraudulently filed an absentee ballot application, that same person could then sign the absentee ballot itself, and since the two signatures would match, the ballot would be accepted. This is obviously a huge flaw in the system, but it’s one Georgia elections officials agreed to—and they did so without making the Georgia GOP a party to the lawsuit or the settlement, which means Georgia Republicans had no say in this major change.
Fulton County Has Big Problems With Its Voter Rolls
The other big problem in Georgia you probably haven’t heard about is a legal challenge now underway in Fulton County, the state’s most populous county that encompasses Atlanta.
Earlier this year, Atlanta attorney Ray Smith issued written notice of an election challenge on behalf of two clients in Fulton County to the Georgia secretary of state and the Fulton County Board of Registration and Elections. That challenge, which Smith first sent in July and issued again on November 2, alleges there are as many as 15,000 people registered to vote in Fulton County who no longer live there. Of those, some 1,246 are registered to vote outside of Georgia, and at least 24 of them, as of November 2, had already voted in Fulton County.
I talked to Smith on the phone Monday, and he told me the original purpose of the challenge was to be able to furnish information on potential absentee voter fraud to a handful of candidates for the Georgia state House of Representatives, in case there were contested elections in Fulton County, as had been forecast.
“We never, ever anticipated we would have to provide this information for the presidential election,” said Smith, who has since joined the Trump election team in Georgia.
Smith explained that he has evidence in the form of written affidavits that these people no longer live where the Fulton County voter rolls say they do. According to Georgia state law, they were supposed to have been removed from the rolls, but, said Smith, Fulton County refused to do so, as did a superior court judge earlier this year. The case is now under appeal with the Georgia Court of Appeals.
Let me repeat. Fulton County elections officials told the media and our observers that they were shutting down the tabulation center at State Farm Arena at 10:30 p.m. on election night only to continue counting ballots in secret until 1:00 a.m.
— David Shafer (@DavidShafer) November 10, 2020
This Has Been Slowly Unfolding For Years
There’s a history to all of this that goes back further than Stacey Abrams’s failed 2018 bid for the Georgia governorship. Efforts have been underway in Georgia for the past decade to expand early and absentee voting. Here’s a quick rundown.
In 2013, a federal judge ordered Georgia to expand its runoff election window to 45 days to allow more time for absentee ballots to come in. The decision exacerbated already weak mail-in voting rules like the ability to request an absentee ballot online with only a driver’s license or a state-issued ID number.
Then in 2017, the Lawyers’ Committee for Civil Rights Under Law, a nonprofit group, successfully sued the state to require a fresh registration window for federal runoff elections. Before, you had to have been registered for the regular election in order to be eligible to vote in the runoff, which was considered a continuation of the same election. Now you can vote in the runoff even if you didn’t vote in the regular.
This change might have an outsized influence on the current election. For example, Georgia voters who want to cast a ballot in the January 5 runoff next year have until December 7 to register. Critics say that opens up federal runoff elections to the possibility that out-of-state voters might try to rush in and illegally take part in a runoff—a prospect that could come to pass if control of the U.S. Senate comes down to runoffs in Georgia.
I spoke to a longtime GOP activist and former elected official in Georgia who told me these changes have all been part of an effort to chip away at Georgia election law. “Everything they’ve been passing makes it easier to cheat,” he said. “This is the first election in my lifetime where there’s a great deal of uncertainty about whether we’ve had a safe and fair election.”