The Georgia General Assembly passed and Governor Brian Kemp signed into law Senate Bill 202 -- a far-reaching overhaul of state election law that will have a significant impact on the electoral process across the State of Georgia for years to come. The bill, opposed en masse by Democrats and many voting rights advocacy groups, impacts nearly every aspect of the election system in Georgia, including vote tabulation, voter identification requirements, State Election Board composition and ballot drop box placement and accessibility. The bill passed along party lines in both the House (100-75) and the Senate (34-20) on March 25 and was signed by the Governor that same day.
This alert is intended to provide an overview of the bill and its major positions. A more detailed analysis can be provided upon request.
One of the most impactful and widely-reported aspects of the 98-page bill is its establishment of absentee ballot identification requirements for Georgia voters. While the right to vote by absentee for any reason was preserved, any person applying for an absentee-by-mail ballot will now have to provide the following personal information to receive a ballot:
When returning an absentee ballot, Georgia voters will now also need to provide the following on a separate ballot envelope inside the return envelope:
In addition to requiring the above information in conjunction with the absentee ballot request and return processes, the bill shortens the time frame within which voters can request absentee ballots under state law. The request period will now start 11 weeks before any given election and end 11 days before such election. Finally, state and local governments are prohibited from distributing unsolicited absentee applications to potential voters, and third-party groups circulating absentee ballot applications to Georgia voters are required to utilize prescribed labeling on materials and only send such materials to individuals who have not already requested, received or voted such absentee ballots.
In the wake of the State Elections Board’s emergency authorization of ballot drop box usage during the 2020 election due to the impact of the COVID-19 pandemic, Senate Bill 202 codifies the permissibility of drop box usage and requires all counties to have at least one such depository. The bill places limits, however, on the total number of drop boxes per county, capping the allowable number of depositories at the lesser of either one drop box for every 100,000 active registered voters or the total number of advance voting locations in the county.
In addition to restricting the number of total ballot drop box locations that Georgia counties can utilize for election purposes, Senate Bill 202 also mandates that drop box depositories: be located only inside early voting locations; be used only during advanced voting hours; and be under constant surveillance by an election official, law enforcement official or licensed security guard. Finally, the bill prohibits the usage of ballot drop boxes by voters during the last four days before an election.
In response to recent consternation over the lengthy runoff period codified in Georgia law for primary, general and special runoff elections, Senate Bill 202 seeks to shorten Georgia’s existing nine-week runoff period down to four weeks by sending military and overseas voters instant-runoff ranked choice absentee ballots. The legislation also shortens in-person early voting for runoff elections to a period of one week before election day. Additionally, Senate Bill 202 also replaces the previous “jungle primary” system for special election seats with a framework that includes party primaries.
At present under Georgia law, in-person early voting for general elections is required for three weeks prior to election day during “normal business hours” Monday through Friday and during the same time period on one Saturday during the pre-election period. Senate Bill 202 adds an extra Saturday to this early voting period and affords localities the option of instituting Sunday early voting as they see fit.
Despite this expansion of early voting opportunities for general elections, the incorporation of a shortened runoff period for state runoff elections will reduce early voting in such settings to just one week before the special election date.
Senate Bill 202 also contains a wide range of election management provisions that will have a significant impact on how Georgia elections will proceed in upcoming cycles. These changes include the following:
Senate Bill 202 also makes several notable changes to the composition and powers of the Georgia State Election Board, bringing it under control of the state legislature and allowing it, in specific circumstances, to unilaterally take control of elections from local elections officials. In regard to composition, the legislation removes the Secretary of State as chair of the State Election Board and replaces him with a chairperson elected by the General Assembly.
Under the legislation’s provisions, the State Election Board has also been granted the power to remove county election boards and replace them with an interim elections manager if they deem the local boards as in need of intervention. At no time may the State Election Board suspend more than four county or municipal elections managers. This process is initiated by the ability of county commissions, the General Assembly, or the State Election Board to initiate a performance review of local officials.
As summarized above, Senate Bill 202 significantly amends the electoral process in Georgia and will have a profound impact on future state election cycles. Despite the bill’s passage, however, the political and legal fight over its various components has just begun. Although two major provisions contained in an earlier version of the law -- the termination of non-excuse absentee voting for individuals under 65 and the prohibition of Sunday voting -- were struck from the final legislation, several voting rights groups have vowed to fight the bill in court. As of the publication of this alert, a federal lawsuit has already been filed by third-party organizations challenging the absentee ID requirements, drop box limits, provisional ballot invalidations, and food and drink distribution bar as “unjustifiable burdens” on Georgia voters. The Dentons Georgia Public Policy and Political Law Teams will continue to monitor those lawsuits as they proceed, and likewise seek to update our clients on other election and voting rights matters in Georgia and beyond, as they are certain to be a major political focus in the 2022 statewide elections and upcoming federal legislative battles in Congress.