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Federal Judge Orders That Absentee Ballots Rejected Across State Be Tallied

Georgia Secretary of State, Brian Kemp. Photo by John Disney/ ALM

A federal judge in Atlanta late Wednesday handed down an emergency injunction ordering that absentee ballots rejected throughout the state because of an inaccurate or missing birth date be validated and tallied.

“Without a preliminary injunction, the voters whose ballots have been rejected on improper grounds or without a chance to cure the rejection will lose their opportunity to vote in this election; an injury that money cannot compensate,” U.S. District Judge Steve Jones said in issuing the emergency ruling.

The suit, filed Sunday by the Democratic Party of Georgia and the campaign of Democratic gubernatorial candidate Stacey Abrams, sought to validate and count thousands of absentee and provisional ballots across the state rejected by county election officials.

Ballots are still being counted, and Abrams is battling to force the governor’s race with Republican opponent Brian Kemp into a run-off.  Kemp is leading with 50.23 percent of the vote to Abrams’ 48.83 percent. The front-runner must secure 50 percent plus 1 of the total votes cast to avoid a run-off.

Jones’ ruling expands on a temporary restraining order handed down Tuesday by colleague U.S. District Judge Leigh Martin May in a separate case.

May’s order was limited to restoring and counting absentee ballots rejected because of an incorrect or missing birth year to those in Gwinnett County. Gwinnett was the only county named as a defendant in the lawsuit before her.

Both cases named Kemp—who was secretary of state until last Thursday—as a defendant, and both sought court orders involving thousands of rejected absentee ballots in Georgia’s 159 counties. Kemp stepped down as secretary of state after declaring himself the governor-elect, but ballots are still being counted, Abrams has not conceded, and media outlets have deemed the contest still too close to call.

Jones’ order prohibits acting Secretary of State Robyn Crittenden from certifying the midterm results until she confirms the returns from the state’s 159 counties include absentee ballots where the birth date was omitted or incorrect.

Jones declines Democrats and Abrams request to count provisional ballots that voters casted in the wrong county.

It is the sixth order issued by a federal judge within the past two weeks reversing election policies put in place by Kemp. The rulings have expanded the number of outstanding ballots that are now permissible to count.

Jones noted that the Supreme Court of Georgia ruled in 2005 that state law does not require the automatic rejection of any absentee ballot lacking a voter’s place or date of birth.

Jones also noted that as one of her first acts after she was appointed to replace Kemp last week, Crittenden instructed all counties that they can—but not that they must—count absentee ballots despite birth year errors or omissions.

Jones also referenced May’s order, adding that he was “concerned” Crittenden’s instructions to county election officials were discretionary while Gwinnett County was under orders to count absentee ballots with a birth year error, and that could lead to “future voter confusions” as well as “inconsistency in how such ballots are counted.”

Jones added that May declined to order the verification of absentee ballots rejected because of a missing signature, incorrect address or other errors. He adopted her ruling “for the sake of statewide uniformity and assurance that all absentee mail-in ballots are equally treated.”

On Wednesday night, Abrams’ campaign manager Lauren Groh-Wargo applauded Jones’ ruling as “a major victory.”

“Under Brian Kemp’s watch as the nation’s foremost architect of voter suppression, countless Georgians have had substantial roadblocks placed in their path as they sought to exercise their fundamental right to vote. Now, the courts are doing what Brian Kemp’s Secretary of State office refused to–upholding and protecting Georgia’s rights and underlining the need for free and fair elections in a state that has suffered from an acute assault on voting rights engineered by none other than Secretary of State Brian Kemp."

Kemp campaign spokesman Ryan Mahoney responded to the order, tweeting that Jones’ ruling “solidifies @BrianKempGA’s insurmountable lead. The election is over and Kemp is governor-elect. It’s time for Abrams to concede.”

Attorney Vincent Russo, counsel to the Kemp campaign and deputy counsel to the Georgia Republican Party, and Ryan Teague who also represents the GOP, which intervened in the case before Jones, could not be reached Wednesday night.  The Daily Report also was not able to reach Secretary of State spokeswoman Candice Broce.

Read the order:

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