CLC Argument Used in Georgia Absentee Ballot Cases

ballot box, ballot, vote

On October 12, 2018, elections expert Michael McDonald noticed something strange in Gwinnett County, Georgia. Rejection rates for absentee ballots in the county were significantly higher than for other counties across the state, with a disproportionate number of the rejections affecting absentee ballots submitted by Asian and African-American voters as compared to their white counterparts. It soon came to light that, unlike most other counties in the state, Gwinnett County was rejecting ballots submitted by voters who failed to write their birth year, or wrote the incorrect year (for example writing the current year instead of their birth year) on the outside of the ballot envelope.

When voting rights advocates in Georgia filed suit to stop this practice, CLC submitted an amicus brief arguing that the policy of rejecting ballots based on a missing or incorrect birth year violated the “materiality” provision of the Civil Rights Act of 1964. Two separate federal courts in Georgia agreed, entering orders prohibiting first Gwinnett County and then the entire state from rejecting absentee ballots based solely on an omitted or erroneous birth date.

The “materiality” provision of the Civil Rights Act of 1964 was one of several attempts by Congress, dating back to 1870 and eventually culminating in the Voting Rights Act of 1965, to counteract efforts by state and local governments to disenfranchise minority voters.  The provision prohibits state and local officials from denying any individual the right to vote because of an error or omission on a voter registration form or other document related to voting, when the mistake is not “material” to determining whether the person is qualified to vote. Previous courts have found that the provision was intended to prevent states from disenfranchising voters by imposing burdensome requirements and intentionally increasing the opportunities for mistakes and omissions.

In both of the Georgia cases, federal judges agreed with the argument first advanced in CLC’s brief that a voter’s date of birth is not material to the act of voting at the time that she submits an absentee ballot, because the state has already confirmed her qualifications for voting, including her age, during the registration and absentee ballot application processes. Gwinnett County has now appealed the district court’s order to the 11th Circuit Court of Appeals. The 11th Circuit has previously recognized that requiring unnecessary information from voters “serve[s] no purpose other than as a means of inducing voter-generated errors that could be used to justify rejecting applicants.” Florida State Conference of the NAACP v. Browning, 522 F.3d 1153, 1173 (11th Cir. 2008). They should do so again here.

Molly is a Senior Legal Counsel on CLC's Litigation team.