Georgia Voters, Nonprofit Group Launch Lawsuit Seeking New Lt. Gov Race

Nov 26, 2018

Three Georgia voters and a Colorado-based non-profit voting rights group are suing to force a new election for the state’s second-highest office.

Friday night, the Coalition for Good Governance said the large drop-off in vote totals from the Governor’s race between Democrat Stacey Abrams and Republican Brian Kemp and the Lt. Governor’s race between Democrat Sarah Riggs Amico and Republican Geoff Duncan were “a likely result of touchscreen voting system malfunctions.”

According to the official results on the secretary of state’s website, Geoff Duncan captured 51.63 percent of the vote, and Sarah Riggs Amico captured 48.37 percent. But a total of 3.78 million votes were cast in that race, compared to 3.93 million in the governor’s race.

That total was also the lowest of any statewide race.

The lawsuit is asking for a new election that would be conducted solely on paper ballots, and for elections officials to improve mail-in absentee ballot procedures.

Democratic gubernatorial candidate Stacey Abrams explored a similar lawsuit before giving a non-concession speech and ending her campaign Nov. 16.

An election contest lawsuit can be filed based on state code that says results can be challenged if there is proof of misconduct, fraud or voting irregularities.

Georgia O.C.G.A. § 21-2-522

A result of a primary or election may be contested on one or more of the following grounds:

(1) Misconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result;

(2) When the defendant is ineligible for the nomination or office in dispute;

(3) When illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result;

(4) For any error in counting the votes or declaring the result of the primary or election, if such error would change the result; or

(5) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election.

Justin O’Dell is an attorney in Marietta who has consulted on several local cases using this state law and wrote a paper about the ways it has been used. For an election contest to be successful, O’Dell said there is a high burden of proof with real examples of voting problems, and not just anecdotes.

“A candidate has to demonstrate a number of actual irregularities, not theoretical,” O’Dell said. “You can’t assume the intent of the voter.”

That means the Coalition group would have to provide specific evidence of enough Georgians having problems with their ballots or not being allowed to vote that could have changed the outcome of the election, like the results falling within the margin for a recount or runoff. But given the high burden of legal proof and the large number of voters needed to change the election, the case faces several hurdles.

In a Nov. 17 letter denying candidate Sarah Riggs Amico’s request for a recount in the election, Secretary of State Robyn Crittenden said that there were not any examples of “any verifiable discrepancies or errors to support the underlying request.”

Now that the suit has been filed, a judge has 20 days to set up a hearing on the matter, so resolution would likely not come before the Dec. 4 runoff for Secretary of State and Public Service Commission District 3.

Cathy Cox, a former Democratic Secretary of State, said that the time frame of an election challenge would not directly affect the runoff but may bring confusion to voters who are already frustrated with the electoral system.

“I have certainly observed that this is frustrating to Georgia voters both on the winning and losing sides,” Cox said. “Because voters like to see elections handled in an orderly fashion that gives them confidence that votes are counted fairly and that all voters get to express their opinion by having their ballots counted.”