The State Elections Board convened in Athens on March 11, 2020 for a hearing to decide the fate of the Presidential Primary election in Athens. Would Athens be allowed to continue using paper ballots as ordered by our local elections board?
The ACC Board of Elections Vote That Started It All
The ACC Board of Elections ordered staff to switch from the new Ballot Marking Device (BMD) voting machines to paper ballots on March 3, 2020. This was a controversial 3-2 vote, with Chair Jesse Evans, Willa Fambrough and new member Rocky Raffle voting in favor, and Charles Knapper and Patricia Till voting against.
While some Athenians strongly prefer paper ballots because of election security, the reasoning given by the board had nothing to do with that. It was instead all about voters’ constitutional right to ballot privacy. Paper ballots make this easier to do; inexpensive manila folders suffice to shield voter’s choices from view, which were used in Athens over the past week.
Nevertheless, the decision was controversial. The ACC GOP even circulated a petition to have Jesse Evans removed from his position on the board. Why? It’s a fact that the vote was, on its face, a violation of state law, which was known by board members even as they voted in favor. They were advised against this action by County Attorney Judd Drake and by Director of Elections Charlotte Sosebee. In Drake’s opinion, it would be very difficult to prove that it was “impossible or impracticable” for Athens to use BMDs as required by state law. Elections in Georgia are done in a uniform manner — counties aren’t free to choose their voting method of choice in this state.
Between a Rock and a Hard Place
Even so, Board members felt that it was impossible for them to ensure ballot secrecy for every voter in the county, which is required in the Georgia Constitution. They felt this way due to many other laws and constraints that elections in Georgia must abide by.
For example, each polling location must have 1 voting station per 250 voters. This is somewhat more difficult to achieve this year, because the new BMD machines and associated printers take up more space than did previous machines. Their screens are also larger and brighter, meaning voters’ selections might be seen across an entire room. Configuring polling locations therefore had become extremely difficult, with conflicting laws and regulations blocking all the obvious potential set-ups.
Thrown on top of everything was the board’s poor relationship and communication with Director Sosebee. The board claimed they had not received the sketches that Sosebee’s team had developed regarding potential polling place configurations. They began to lose trust in her ability to guide Athens smoothly through an election, even one as relatively simple as a Presidential Primary. Due to anxiety about their ability to set-up every polling location legally (i.e. in a configuration that protected ballot privacy), they went ahead with their 3-2 vote ordering Sosebee to switch to paper ballots county-wide.
The State Elections Board pounced quickly after this vote, calling for a hearing on the matter to take place in Athens. This “hearing” would be a trial in all but name, complete with defending and prosecuting attorneys. The State Elections Board, chaired by Secretary of State Raffensperger, would be the judge and jury at the same time as attorneys from his very office made arguments in prosecution.
The State Elections Board hearing lasted over seven hours, with many witnesses called and many arguments given (you can hear the opening and closing statements in the video above).
The defense made cogent arguments in favor of the ACC board’s decision. At one point they even went blow-by-blow through seemingly every polling location in Athens to detail the difficulties elections workers had in complying with all aspects of current state elections law. Local elections officials had been instructed by the Secretary of State’s office to “turn the screens to face the wall” to ensure ballot privacy, but this was patiently deconstructed by the defense who successfully showed how insufficient such advice actually was. They clearly and convincingly made their case that the new BMD machines were a hardship on local elections boards in many cases, who had significant hurdles to overcome in a short period of time to allow their use in a legal manner.
While the defense put up an excellent performance, the prosecution’s case was much simpler. Counties are required by law to use the BMDs. They are required to clear whatever hurdles stand in the way, with only one exception: if it is impossible or impracticable to do so. For example, if a power-outage or other emergency prevented the machines from being used, paper ballots would be available as a backup.
Clearly, the definition of “impracticable” was critical to the prosecution’s case. The ACC Board of Elections found it impracticable, so did that mean they could use paper ballots after all? Unfortunately for them, the definition of this word had been decided previously by the state Supreme Court. The prosecuting attorney argued that the legal meaning of “practicable” is something close to “at all feasible,” citing the previous decision. The defense was not successful in disputing this definition.
This means Attorney Drake was correct — it was very difficult to prove that ACC was not able to use the BMDs in a way that was compliant with state law. The difficulties in using BMDs that the defense was successfully and convincingly able to show amounted to very little in the end. For example, when BOE Chair Jesse Evans took the stand, he described a potential violation of voter secrecy in Athens. He testified that he himself was able to see the screen of a voting machine from an area that was at times occupied by members of the public. This was alarming and seemed reason enough to side with the defense until the prosecution asked a very simple quesion, “Would a set of blinds or other screen work to block your view of the machines and secure voter privacy?” Evans had to admit that such an accommodation would have worked. He was unable to describe any violation of voter privacy that was impracticable to fix. Difficult, perhaps, but truly impracticable? Not according to the State Elections Board.
The State Elections Board voted unanimously to issue a cease and desist order to Athens-Clarke County, preventing us from using paper ballots in the future. They publicly censured Athens for using paper ballots during the week we did. In addition, they decided to levy a $2,500 fine to recoup some of their legal expenses by a vote of 3-1. Furthermore, they voted unanimously to levy an additional fine of $5,000 per day that we were not in compliance with their order from this time on. Director Sosebee spoke up quickly, reassuring the board that she would have the BMDs back in operation the next day. This quick action on her part might prevent Athens from receiving the additional fine.
Paper ballots are inexpensive, low-tech and secure. They may have their own issues, but generally I’m a fan. Going further, I’ll say I’ve often found state law in Georgia to be oppressive and overly-centralized, with local governments sometimes having little power to change or even object to bad state decisions. I’m sympathetic with those who want paper ballots in Georgia.
But looking at this through a legal lens, I have to say that I agree with the decision of the State Elections Board. Georgia has uniform elections — every county has to use the same voting system whether we like it or not. I don’t like it, in fact, but I don’t have the power to change it. Similarly, the ACC Board of Elections has no power to change it, either. The State Elections Board made the correct legal decision in compliance with legislation passed under the gold dome to ensure uniform voting across the state.
That’s really all there is to it.
Once Democrats take control of the legislature and the Governor’s office again, we can start changing all kinds of bad laws, but we can’t legally have paper ballots until that point. So, get out there and vote! Volunteer for Democrats running for State House such as Mokah Jasmine-Johnson and Jonathan Wallace. If we want to go further and take action to disrupt systems of oppression — set it up, I’ll be there! But what we can’t do is expect a legal solution through the Board of Elections when the legislature has been stacked against us. The only way that would work is if they accidentally left a loophole for us to exploit, which sometimes happens, just not in this case.
Stay strong. In my view, the fight is shifting from the territory of election infrastructure or method to actually winning elections by pounding the pavement. Don’t keep fighting a battle we’ve already lost when a more important fight is right in front of us.