Muscogee Co. can’t force thousands of voters to prove residency during election, judge rules
A federal judge has issued a restraining order that stops Muscogee County from requiring voters with out of state address to file provisional ballots and prove they still live in Columbus.
The order from U.S. District Court Judge Leslie Abrams Gardner lasts eight days, remaining in effect through Georgia’s Jan. 5 runoffs for the U.S. Senate and state Public Service Commission. It follows a lawsuit filed by a nonprofit advocacy group on behalf of a Columbus man working for the U.S. Navy in California, who was among more than 4,000 voters whose residency was challenged by local Republican Alton Russell.
Russell’s challenge was based on a U.S. Postal Service list called the “National Change of Address” or NCOA, which showed those voters had out of state addresses, though they still were registered in Muscogee County. The list is used periodically to clear people from voter registration lists after they’ve moved away , but it also includes people temporarily living elsewhere for work, college or military service.
After meeting privately with its attorneys Tuesday, the Muscogee County Board of Elections and Registration voted to file a motion asking the 11th Circuit Court of Appeals to issue a stay on Gardner’s restraining order, so that the challenge can continue.
Challenging residency
Russell filed his challenge on Dec. 14, the day early voting began for the runoffs, and the board found probable cause to sustain it two days later, with the result that anyone challenged had to cast a provisional ballot to vote and had to document a residence here to have that ballot counted, when the local elections board reviews the provisional ballots cast.
That prompted the lawsuit filed Dec. 23 by the group “Majority Forward” on behalf of Gamaliel Warren Turner Sr., a government contractor with the U.S. Navy temporarily living in California for work. On Dec. 27, the plaintiffs asked for an order restraining the elections board’s actions in restricting challenged voters to provisional ballots and compelling them to prove residency.
Russell said his attorneys, John Garsh and Bruce Bowers of Atlanta, are reviewing the order to determine whether they’ll take further action.
Mass voter removal restricted
Citing multiple court precedents, the lawsuit noted the federal government through the National Voter Registration Act has specific restrictions on removing voters with an election for federal office at hand, and the judge agreed with those arguments.
The NVRA prohibits a mass removal of voters within 90 days of a federal election, and requires that in individual cases, the voter must confirm a change of residency, or fail to respond to inquiries from the elections office and fail to vote in two consecutive federal election cycles.
That’s same criteria required to remove voters from the rolls in periodic maintenance of registration lists, but the law prohibits such systematic removals so close to an election.
“Here, the challenge to thousands of voters less than a month prior to the runoff elections — after in-person voting had begun in the state — appears to be the type of ‘systematic’ removal prohibited by the NVRA,” the judge wrote, adding Russell’s challenge “does not include the type of individualized information that the Muscogee board would have needed to undertake the individualized inquiry required by the NVRA.”
Board violated Constitution, according to judge
The judge also found the board’s actions likely violate the First and 14th Amendments by placing an undue burden on the right to vote and risking disenfranchising eligible voters, and that those actions could cause the degree of immediate and irreparable injury that a restraining order is meant to prevent.
“Courts routinely deem restrictions on fundamental voting rights irreparable injury because once the election occurs, there can be no do-over and no redress,” the judge wrote, citing a 2017 court ruling.
The five-member Muscogee County Board of Elections and Registration met at 11 a.m. to discuss the ruling with its attorneys. The board convened at the elections office in the City Services Center and immediately went into executive session to discuss pending litigation.
It emerged at 12:30 p.m. and voted to seek the stay of Gardner’s order from the 11th Circuit.
The board is represented by James C. Clark Jr. and Thomas F. Gristina of the Columbus firm Page, Scrantom, Sprouse, Tucker & Ford.
Board sought judge’s recusal
The board’s attorneys tried to get Judge Gardner to recuse herself from the case, because she’s the sister of former Democratic candidate for governor Stacey Abrams, who lost to Republican Gov. Brian Kemp in 2018. The recusal motion noted Abrams “has since engaged in various highly publicized efforts to increase voter registration and turnout for the 2020 general election in Georgia.”
Abrams established an organization called “Fair Fight,” which the motion describes as “a political action committee that promotes voter registration and mobilization for young people and people of color” that has filed similar federal lawsuits involving voting rights.
“Lead counsel for plaintiffs in the instant case are also counsel for Fair Fight in the Fair Fight litigation,” the board’s attorneys wrote in their Dec. 28 motion. “In addition, any relief rendered in the instant case ... would likely be cited as persuasive authority in the Fair Fight litigation.”
That means Gardner’s decision in the Muscogee County case could affect Abrams’ interest in other litigation, the attorneys said: “For this reason, Judge Gardner’s impartiality might reasonably be questioned were this case to proceed before her. The Muscogee County defendants respectfully request that Judge Gardner recuse herself from further involvement in the present case.”
Judge Gardner denied the motion.
The attorneys who sued the Muscogee elections board for Majority Forward were Adam M. Sparks, Halsey Knapp Jr. and Joyce Gist Lewis from the Atlanta firm Krevolin and Horst, and Marc Elias, Uzoma Nkwonta and Jacob Shelly of the Washington, D.C., firm Perkins Coie.
This story was originally published December 29, 2020 at 10:55 AM.