Seeing double in Georgia

Georgia Secretary of State Brad Raffensperger

Donald Trump is trying to systematically undermine confidence in mail-in voting, which is the only way for many Americans to vote safely during a pandemic. On Tuesday, he got a major assist from Georgia Secretary of State Brad Raffensperger (R).

At a press conference, Raffensperger "announced...that 1,000 Georgians voted twice in the state’s June 9 primary, a felony that he said will be prosecuted to the fullest extent of the law." In Georgia, a person who "fraudulently votes more than once at the same primary or election shall be guilty of a felony and, upon conviction thereof, shall be sentenced to imprisonment for not less than one nor more than 10 years or to pay a fine not to exceed $100,000, or both." 

But Raffensperger's dramatic claims do not hold up to scrutiny. 

First, there were 1.15 million absentee ballots cast in Georgia's primary election. If 1,000 people voted twice, that represents 0.086% of all absentee votes cast. Raffensperger acknowledged that double votes did not change the outcome of any primary election. 

Raffensperger said that the voters were trying to cheat. "A double voter knows exactly what they're doing, diluting the votes of each and every voter that follows the law. Those that make the choice to game the system are breaking the law," Raffensperger claimed. But it's far from clear that the double voting is intentional or if anyone is guilty of a felony. Raffensperger is not a law enforcement officer and "will hand the findings over to the state attorney general and local district attorneys for possible prosecution." 

It is not illegal to show up a polling place in Georgia after requesting an absentee ballot. 150,000 Georgians did so, according to Raffensperger. People can request an absentee ballot and decide to vote in person. Others might have returned their absentee ballot but were unsure if it was received in time to be counted.

In that situation, "the election system flags them as having requested an absentee ballot." Then, the "poll worker is then supposed to call the county election office to see if the absentee ballot has been received for that voter." If the "absentee ballot has been received, the person should not be allowed to vote in person." Otherwise, "the voter is allowed to cast a ballot in person and the county election office is supposed to cancel the absentee ballot request so that the absentee ballot won’t be counted if it comes in."

If, however, "the poll worker fails to call the county election office, or can’t get through to anyone, or if the county election office fails to cancel the absentee ballot request, that could allow double voting." In other words, all of the alleged double voters were told — or should have been told — that their absentee ballot had not been received by election day. Any other situation represents a breakdown in the election process — a process that Raffensperger oversees.

Raffensperger's legal confusion

Near the end of his press conference, Raffensperger was pressed on how he knew that these 1,000 voters had intentionally attempted to cast two votes. He acknowledged that he had not actually completely an investigation to establish the intent of any voter. But he insisted that didn’t matter. "Intentionality is not an excuse under the law," Raffensperger said.

Raffensperger is a civil engineer, not a lawyer. The relevant Georgia law applies to anyone who "fraudulently votes more than once." An element of fraud, in Georgia and elsewhere, is "scienter." Scienter is a legal term which means a party had knowledge of the wrongdoing. In other words, Georgia law only applies to someone who intentionally attempts to vote twice. If, on the other hand, a voter cast two ballots because they were given incorrect or incomplete information by a poll worker, they could not be successfully convicted. 

Following Trump's advice

Remember that the election held on June 9 was a primary. Raffensperger did not disclose how many of the people who allegedly attempted to vote twice were Republicans and how many were Democrats. Nevertheless, Raffensperger's announcement was seized on by supporters of Trump as proof that Democrats would use mail-in voting to steal the presidential election. 

This is an odd argument, considering Trump explicitly advised his supporters to engage in the conduct now being condemned by Raffensperger. On September 3, Trump tweeted:

On Election Day, or Early Voting, go to your Polling Place to see whether or not your Mail In Vote has been Tabulated (Counted). If it has you will not be able to Vote & the Mail In System worked properly. If it has not been Counted, VOTE (which is a citizen’s right to do). If your Mail In Ballot arrives after you Vote, which it should not, that Ballot will not be used or counted in that your vote has already been cast & tabulated. YOU ARE NOW ASSURED THAT YOUR PRECIOUS VOTE HAS BEEN COUNTED, it hasn’t been “lost, thrown out, or in any way destroyed”. GOD BLESS AMERICA!!!

This is exactly what some voters in Georgia did. They voted absentee, showed up at the polls, and were told (or should have been told) that their ballot had not been received. That's why they were allowed to vote in person. 

A chaotic system

Raffensperger is attempting to blame voters for any irregularities with the June 9 result. But the New York Times reported that Georgia experienced a "full-scale meltdown of new voting systems." New voting machines "were reported to be missing or malfunctioning," resulting in hours-long lines at some precincts. Raffensperger put in place the new voting systems even though he was warned by security experts that there wasn't nearly enough time to do so responsibly.

Notably, many Georgians "reported requesting absentee ballots and waiting months for them to arrive — and some never came at all." Some of those voters showed up at the polls in order to cast their vote. There was also a shortage of poll workers, which may have resulted in voters receiving inaccurate or incomplete information about the status of their absentee ballot. 

One Atlanta voter, Marneia Mitchell, "arrived at her polling place five minutes before polls were to open at 7 a.m. She thought it was early enough to vote fast, avoid trouble and get on with her day. Three hours later, she was still waiting in line, having moved about 60 feet from where she had started."

Raffensperger "blamed local officials in Fulton County, which includes most of the City of Atlanta, and said there were few issues elsewhere." The reality, however, was that "no corner of the state had a fully functional voting experience."

Invalidating thousands of ballots

If people show up at the polls after casting an absentee ballot, it's likely because they are uncertain that their absentee ballot was counted. Last month a federal judge "extended the deadline for absentee ballots to be returned in Georgia, ruling that they must be counted if postmarked by Election Day and delivered up to three days afterward." This would give voters confidence that any ballot they mailed by election day would ultimately be counted.

Raffensperger, however, has appealed the decision. He argues "that the coronavirus pandemic doesn’t justify altering election rules so near the time when voters will begin receiving absentee ballots late this month." Raffensperger wants to reject any ballot not received by 7 PM on election day.

If Raffensperger is successful on appeal, it would likely "result in tens of thousands of ballots" being rejected.

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