Absentee ballots missing birth dates must be counted, judge orders

ATLANTA — A federal judge has ruled that Georgia counties must count absentee ballots even if a voter’s date of birth is incorrect or missing, and he is preventing the state from finalizing election results until that happens.

[To read the full ruling, click here]

Although U.S. District Judge Steve Jones agreed with the Georgia Democratic Party and Stacey Abrams’ campaign on this issue, he ruled against them on two others. He will not require counties to accept absentee ballots with incorrect residence addresses or to accept provisional ballots cast by people who attempted to vote in a different county than where they are registered to vote.

“Plaintiffs have shown that they are entitled to preliminary injunctive relief as to the absentee ballot (date of birth) issue,” Jones wrote in an order finalized late Wednesday. “Plaintiffs have not shown that they are entitled to preliminary injunctive relief as to the absentee ballot (residence) issue and provisional ballot issues.”

It is unclear how much of an effect Jones’ ruling will have on election results. Gwinnett County is already under a separate court order to count ballots missing proper birth-date documentation, and the Secretary of State’s office provided guidance to counties Monday that said they could accept absentee ballots missing a voter’s date of birth, although it wasn’t required.

Fulton, Cobb, Henry and DeKalb counties are among those that reported their vote counts already include absentee ballots with birth-date discrepancies.


Jones’ order late Wednesday makes it mandatory for all 159 counties. Secretary of State Robyn Crittenden is required to adjust vote totals if there are any counties that need to go back and re-evaluate absentee ballots.

Austin Chambers, an advisor to Republican gubernatorial candidate Brian Kemp, said the ruling would affect less than 800 ballots statewide, including Gwinnett.

"Again, still nowhere near enough to change the race," Chambers said on Twitter. "This is over."

Abrams has said she will fight for every vote to be counted in hopes of forcing a runoff, but she is about 19,000 short.

Her campaign had no immediate response to the ruling. An attorney on her litigation team said Jones’ order is under review.

During Tuesday’s hearing, the judge questioned why counties were given a choice on the absentee ballot issue.

“Why should people in Gwinnett County get theirs counted and people in 158 other counties not get theirs counted?” Jones said.

The state has a Tuesday deadline to finalize election results, but Jones’ ruling said that cannot happen as long as there are absentee ballots that need to be counted.

“The Secretary of State is ENJOINED from certifying the State Election results until she has confirmed that each county’s returns include the counts for absentee ballots where the birth date was omitted or incorrect,” he wrote.

It would have had potentially huge impacts if Jones had decided that counties should accept provisional ballots cast by people who reside in another county.

Under Georgia law, you must vote on Election Day in the precinct you are assigned. If you end up at the wrong precinct, you cast a provisional ballot instead. Those provisional ballots are only counted if the county determines you are a resident and had not already cast a vote.

After Election Day, Metro Atlanta counties reported that they rejected hundreds of provisional ballots because they were submitted by people who were registered to vote in a different county.

Jones appeared to be sympathetic to Democrats’ concerns about voter suppression during Tuesday’s hearing, but his order indicates he also gave credibility to the Secretary of State’s argument that changing the rules to allow people to vote in a different county than where they are registered to vote could potentially allow for fraud in the future.

This issue caused an unknown number of ballots to be disqualified. Fulton County rejected 972 provisional ballots because voters lived outside of the county.

Greg Bluestein with the Atlanta-Journal constitution contributed to this report.