Defending Nonpartisan Civic Engagement Organizations in Georgia (Voter Participation Center v. Raffensperger)

In March 2021, the Georgia General Assembly passed S.B. 202, an omnibus bill that made numerous changes to Georgia’s election system. Among those changes were new requirements and restrictions on the distribution of absentee ballot applications by third party groups.

These changes to Georgia’s election code prohibit the Secretary of State, county election officials and other government officials from sending absentee ballot applications directly to any voter unless the voter specifically requests one. The law prohibits anyone from providing assistance to a voter by prefilling a voter’s information in an absentee ballot application—a critical tool for many online voter assistance platforms. The new law also requires nongovernment entities to use the official form made available by the Georgia Secretary of State’s office, but mandates that they attach a disclaimer that states, among other things, that the application is not an official government publication and that it was not provided by a government entity, along with the name and contact information of the entity distributing the application. This disclaimer is not only burdensome for organizations who seek to assist voters to request an absentee ballot—it is also confusing for the voter, who may be discouraged from using the provided form based on their reasonable assumption that it will be rejected if it is, “not official.”

Further, this law prohibits any nongovernment third party from sending an absentee ballot application to voters who have already requested, received or voted using an absentee ballot in that election. To comply with this requirement, organizations must check a list periodically provided by the Georgia Secretary of State’s office that contains the names of each voter who has already requested, received or voted via absentee ballot. The statute requires organizations who distribute absentee ballot applications to check against that list before sending an absentee ballot application to a voter. Moreover, Georgia law now imposes a $100 fine for every application sent by an organization to a person who has already requested, received or voted with an absentee ballot—a major financial disincentive for nonprofit groups trying to provide assistance with absentee ballot applications to registered voters.

These new restrictions provide no benefit remotely on par with the severe burden they place on voter advocacy and engagement organizations. While Georgia has a legitimate interest in preventing fraud in elections, the marginal effects of the absentee ballot application distribution restrictions and requirements in S.B. 202 as anti-fraud measures are minimal at best.

Moreover, as Georgia’s recent experience shows, there is no need for additional safeguards in the absentee ballot process. In the 2020 general election and 2021 runoff elections, millions of Georgians requested, received and cast absentee ballots. A statewide audit conducted after the 2020 general election confirmed that there was no fraud or other misconduct in Georgia’s absentee ballot process during that election, and Secretary Raffensperger declared that Georgia’s elections were conducted safely and securely on numerous occasions. Despite that, the Georgia General Assembly ignored the successes of the 2020/2021 elections and the objections of civil rights groups and voters across the state to pass S.B. 202, which includes these impossible time requirements and unnecessary disclaimers that will chill core political speech protected by the First Amendment. Only two other states have disclaimer requirements similar to the ones contained in S.B. 202.

Campaign Legal Center (CLC) represents the Voter Participation Center and the Center for Voter Information, two nonprofit organizations that, among other things, distribute absentee ballot applications to eligible voters in the state of Georgia. Both organizations’ operations will be directly impacted by the disclaimer requirements and other burdensome prohibitions on absentee ballot applications distribution in S.B. 202.

In April 2021, CLC filed suit on behalf of VoteAmerica, the Voter Participation Center and the Center for Voter Information, challenging S.B. 202 as violating those organizations’ First Amendment right to distribute absentee ballot applications as core political speech.