Georgia’s election law put on trial
ATLANTA — The first trial over Georgia’s 2021 election law began Monday in federal court with a case about restrictions on massmailing absentee ballot request forms to voters.
The courts will decide the legality of the contentious voting law, passed in the wake of Republican Donald Trump’s loss to Democrat Joe Biden amid conservatives’ complaints about the election’s rules.
The weeklong trial focuses on a part of the law that curtails nonprofit organizations from repeatedly sending absentee ballot application forms to voters as they did ahead of the 2020 election during the COVID-19 pandemic.
A broader case contesting the voting law is still pending and won’t go to trial anytime soon. That case includes the law’s limits on drop boxes, regulations on absentee voting and a ban on handing out food and water to waiting voters.
The plaintiffs in this week’s trial, two organizations that mailed a total of 9.6 million absentee ballot applications to Georgia voters in 2020, said the law limits free speech rights guaranteed by the U.S. Constitution. About 550,000 voters responded to the mailings and received absentee ballots, according to the plaintiffs.
But the state contends that the law was needed to address confusion among voters who repeatedly received applications after they had already returned their ballots, along with voters who told legislators that they thought the applications were actual ballots.
“There’s really no dispute that speaking about elections and absentee voting is a form of political speech that is protected,” Valencia Richardson, an attorney for the plaintiffs, said during her opening statement. “The restrictions don’t serve election integrity and don’t curb voter confusion.”
Under the law, Senate Bill 202, groups are only allowed to send absentee ballot applications to Georgians who haven’t already requested a ballot or voted. They face a $100 fine for each duplicate absentee ballot application that’s processed by county election offices.
The mass mailings promoted absentee voting in 2020 with forms that were partially filled out to include voters’ names and addresses. About 25% of Georgia’s 5 million voters in the 2020 presidential election returned absentee ballots.
“Voters worried about fraud after receiving absentee applications in the mail from the plaintiffs,” Gene Schaerr, an attorney for Secretary of State Brad Raffensperger, said in his opening statement. “Voters were confused when they received multiple absentee applications that they thought were themselves absentee ballots.”
U.S. District Judge J.P. Boulee, who was appointed by Trump, previously ruled against an attempt by the plaintiffs to stop the law. Boulee denied a motion for an injunction in 2022, but a trial will give the judge a more comprehensive review of the facts.
The plaintiffs in the case are the Voter Participation Center and the Center for Voter Information, which has substantially reduced its direct mail absentee ballot application program in Georgia because of the voting law.
Tom Lopach, the president and CEO of the two organizations, testified that sending absentee applications is a way of speaking directly to voters and encouraging them to participate in the democratic process.
“We are saying to the recipients: ‘We are speaking to you. This form is for you,’” Lopach said.
Several Republican organizations intervened in the case in support of Georgia’s election law, including the Republican National Committee and the Georgia Republican Party.
An attorney for the Republican defendants questioned whether the act of sending absentee applications amounts to protected free speech.
“Are they expressing a message, or are they encouraging conduct?” Conor Woodfin asked in his opening statement.
The case over absentee ballot mailings is the third trial over Georgia election laws heard in federal court this year.
U.S. District Judge Eleanor Ross upheld Georgia’s citizenship verification requirements for new Americans last week, ruling that the plaintiffs failed to prove that naturalized citizens’ rights are violated when they have to show papers before voting.
In another case focusing on the security of Georgia’s voting system, U.S. District Amy Totenberg hasn’t yet issued a ruling after a 17-day trial in January.