The New Georgia Project v. Raffensperger

This lawsuit was filed in May 2020 by The New Georgia Project, a nonpartisan voter-registration group, and several Georgia voters, including two Black women who are at high risk of serious complications from COVID-19 because of their age and chronic health issues. They argued that the impact of the COVID-19 pandemic “is not limited to Georgians’ health; it also poses a serious threat to their right to vote.” And although they acknowledged that the decision by Georgia Secretary of State Brad Raffensperger to send out absentee-ballot applications to over two million voters was “laudable,” it was not enough. They asked U.S. District Judge Eleanor Ross to block the state from enforcing several election laws and practices relating to absentee ballots in the upcoming November election.

In an order on Aug. 31, Ross rejected the challengers’ request with respect to several laws – for example, the state’s ban on “ballot harvesting,” which is the practice of collecting and returning other voters’ absentee ballots, and a challenge to the state’s failure to provide prepaid postage for absentee ballots. But stressing that the “risk of disenfranchisement is great” under the current system, Ross barred the state from enforcing its law requiring all absentee ballots to be received by the time the polls close on Election Day. Instead, she ordered the state to accept and count any valid absentee ballots that are postmarked by Election Day and arrive within three business days after Election Day.

Raffensperger and state election officials went to the U.S. Court of Appeals for the 11th Circuit, asking that court to put Ross’ order on hold while they appeal. The 11th Circuit granted that motion, allowing the state to enforce its Election Day deadline for the receipt of absentee ballots while the state appeals – a ruling that, if allowed to stand, would likely mean that the deadline will be in place for the upcoming November election.

In a 24-page decision, Judge Britt Grant explained that “Georgia’s decades-old absentee-ballot deadline is both reasonable and non-discretionary, while its interests in maintaining that deadline (especially now that absentee voting has already begun) are at least as ‘important’ . . .  and likely compelling.” Moreover, Grant added, the Supreme Court’s orders in emergency appeals arising from elections this year have “consistently pointed” in one direction – “allowing the States to run their own elections.” The power of federal courts is established by the Constitution, Grant concluded, and “COVID-19 has not put any gloss on the Constitution’s demand that States – not federal courts – are in charge of setting” election rules.