A judge is weighing whether Georgia law allows counties to offer early voting on the Saturday after Thanksgiving, which would be 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. It challenges guidance by Republican Secretary of State Brad Raffensperger that says 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 heard arguments on an emergency request for an order allowing counties to offer voting that day. He said he was aware that the issue is time sensitive and would rule “at the appropriate time.”
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.
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 hurts Warnock in particular because Democrats tend to push early voting more than Republicans.
It’s not clear how many counties would scramble to offer Saturday voting if the plaintiffs win. Counties are supposed to give public notice seven days before starting early voting, meaning that barring a ruling on Friday, some counties could conclude they are barred from moving ahead even if the plaintiffs win. Vasu Abhiraman of the American Civil Liberties Union of Georgia argues that if the plaintiffs win a ruling, counties could go around that rule by arguing it was an emergency.
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.
