Voting integrity activists argue that several parts of Georgia's new election law criminalize normal election observation activities, while the state asserts that those provisions reinforce previous protections and are necessary for election integrity.
U.S. District Judge J.P. Boulee heard arguments Thursday on the activists’ request that he bar election officials from enforcing those provisions, but did not immediately rule on the request.
Georgia's overhaul of election rules, like similar measures enacted this year in other GOP-controlled states, has received broad criticism from Democrats and others who say it makes it harder to vote, particularly for voters of color.
There are eight federal lawsuits challenging aspects of Georgia's new law, including one filed last week by the U.S. Department of Justice. They mostly target parts of the law that critics say threaten voting rights. The hearing Thursday focused narrowly on a handful of provisions and didn't address the most commonly criticized parts of the law.
Boulee is overseeing all eight of the lawsuits challenging the law. The reason he heard arguments on this narrow request is that the activists had asked for an emergency temporary hold on those parts of the law. There have been no similar requests for immediate action in the other lawsuits.
The challenged provisions mostly have to do with monitoring or photographing parts of the election process.
Bruce Brown, a lawyer for the activists and others who filed the suit, said the state misrepresents the law as promoting transparency and election integrity.
“They say that, but what they mean by transparency is a fake transparency,” Brown said during the online hearing. “It's transparency theater. It's integrity theater.”
Instead, Brown said, the challenged provisions of the law effectively obstruct election transparency and intimidate voters and members of the news media who provide citizen oversight for the way elections are run.
Bryan Tyson, a lawyer for the state, argued that the challenged provisions are necessary to protect ballot secrecy and the integrity of the state's elections. He also noted that none of the activists have said that they intend to violate the challenged provisions, and that they face no harm unless they violate these provisions.
The Georgia First Amendment Foundation has filed a brief in the case, saying the new law "has imposed new and dangerous restrictions on news gathering that threaten the ability of the public and press to remain informed about Georgia elections.”
One challenged provision makes it a felony to intentionally observe a voter "in a manner that would allow such person to see for whom or what the elector is voting.” Brown showed photos of the large, upright touchscreen voting machines, noting that it's nearly impossible for anyone in the polling place not to see how someone's voting.
Tyson argued that the new provision applies to intentional efforts to see someone's votes, not accidental observation.
A second provision prohibits monitors and observers from communicating any information they see during absentee ballot processing “to anyone other than an election official who needs such information to lawfully carry out his or her official duties.” Another makes it a misdemeanor for monitors and observers to estimate the number of absentee ballots cast or any votes on the absentee ballots cast. These two provisions are attempts to silence critics and limit unfavorable press coverage of how elections are run, Brown said.
Tyson said it was necessary to make sure no vote counts would be disclosed before the polls close since the new law allows absentee ballots to be scanned in the weeks before an election.
A provision that prohibits the photographing of the face of a touchscreen voting machine “while a ballot is being voted or while an elector's votes are displayed on such electronic marker” or the photographing of a voted ballot would prevent routine news coverage of voting and counting of ballots, Brown argued. He showed the judge well-known news photos of notable public figures voting and of election workers counting ballots during the 2020 election.
Photography was already restricted inside polling places, with some narrow exceptions, Tyson said. He raised the possibility of a vote-buying scheme requiring voters to show photographic proof of how they voted.
The activists are also challenging an absentee ballot application deadline 11 days before an election. The deadline for the certification of election results can fall 11 days before a runoff, meaning people may not be able to get an absentee ballot for a runoff election, Brown argued.
Tyson said it's often clear as early as election night that there will be a runoff and that voters don't have to wait for results to be certified to request an absentee ballot.