ATLANTA – A judge on Friday said Georgia law allows counties to offer early voting on the Saturday after Thanksgiving, which is the only possibility for Saturday voting before next month's Senate runoff election between Democratic Sen Raphael Warnock and Republican Herschel Walker.
Warnock's campaign, along with the Democratic Party of Georgia and the Democratic Senatorial Campaign Committee, filed a lawsuit this week arguing that early voting should be allowed that day. They were challenging guidance by Republican Secretary of State Brad Raffensperger that said it would be illegal to hold early voting on Saturday, Nov. 26, the day after a state holiday.
Fulton County Superior Court Judge Thomas Cox on Friday issued an order saying Georgia law “does not specifically prohibit counties from conducting advanced voting on Saturday, November 26, 2022, for a runoff election.” He also prohibited the state from interfering in efforts to hold early voting that day or preventing any votes cast that day from being counted.
“We disagree with the Court’s order and look forward to a prompt appeal,” Raffensperger's office said in an emailed statement.
During a hearing earlier Friday, Uzoma Nkwonta, a lawyer for the plaintiffs, noted that last week both Raffensperger and one of his top deputies said on national television that early voting would be allowed that day. Then, Nkwonta said, the secretary of state issued guidance to counties a few days later saying it wouldn't be allowed because the law doesn't permit early voting the day after a state holiday. Thanksgiving and the following Friday are both state holidays.
Nkwonta argued at the hearing that the state holiday restriction applies only to primary and general elections, not to runoffs. Provisions in the law that directs the state's 159 counties to open early in-person voting “as soon as possible” for a runoff, and no later than Monday, Nov. 28, reinforce the idea that counties can choose to offer early voting that Saturday, he said.
State lawmakers intentionally created a distinction between primary and general elections on one hand and runoff elections on the other, Nkwonta said. That makes sense, he reasoned, because of the condensed time period before a runoff.
“The legislature has provided voting opportunities that the state now seeks to withdraw," Nkwonta said. “That is unlawful.”
Charlene McGowan, a lawyer for the state, rejected assertions that Raffensperger was cherry-picking parts of the law.
“This is a legal issue, it's not a policy one," she told the judge. “The issue is what does Georgia law require?”
McGowan argued that there are two types of elections in Georgia: primary elections and general elections. Runoffs are a continuation of one of those two types of election and, therefore, do not have different rules for allowing early voting after a holiday.
Cox disagreed saying that a runoff “is not merely a continuation of a primary or (general) election but is in fact it's own distinct event.”
Warnock and Walker were forced into a Dec. 6 runoff because neither won a majority in the midterm election this month.
Under Georgia’s 2021 election law, there will be only four weeks between the general election and the runoff — with Thanksgiving in the middle. Many Georgians will be offered only five weekdays of early in-person voting beginning Nov. 28.
The lawsuit says the state’s interpretation of the law would hurt Warnock in particular because Democrats tend to push early voting more than Republicans.
It’s not clear how many counties will scramble to offer Saturday voting. Counties are supposed to give public notice seven days before starting early voting. But Cox prohibited the state from interfering in counties' efforts to provide early voting that day due to any failure to provide the required notice.
Counties may also not be interested in offering Saturday voting, or may not have enough time to organize and schedule poll workers. As of Thursday, only nine predominantly Democratic urban counties planned Sunday voting, according to Associated Press reporting. Six are in the Atlanta area and the others are home to some of the state's other bigger cities.
Some counties plan to offer early voting Tuesday and Wednesday, while others have said they couldn’t mobilize in time to offer voting on those pre-Thanksgiving days.