Georgia Governor Brian Kemp signs expansive new elections bill

Introduction

Late last week, the Georgia General Assembly passed and Governor Brian Kemp signed into law Senate Bill 202 — a far-reaching overhaul of state election law that will have a significant impact on the electoral process across the State of Georgia for years to come. The bill, opposed en masse by Democrats and many voting rights advocacy groups, impacts nearly every aspect of the election system in Georgia, including vote tabulation, voter identification requirements, State Election Board composition and ballot drop box placement and accessibility. The bill passed along party lines in both the House (100-75) and the Senate (34-20) on March 25 and was signed by the Governor that same day.

This alert is intended to provide an overview of the bill and its major positions. A more detailed analysis can be provided upon request.

Absentee ballots

One of the most impactful and widely-reported aspects of the 98-page bill is its establishment of absentee ballot identification requirements for Georgia voters. While the right to vote by absentee for any reason was preserved, any person applying for an absentee-by-mail ballot will now have to provide the following personal information to receive a ballot:

  • His or her name
  • Date of birth
  • Registration address
  • Address where the elector wishes the ballot to be mailed
  • The number of his or her Georgia driver’s license or issued identification card
  • A copy of an alternative form of identification if such elector does not have a Georgia driver’s license or issued identification card

When returning an absentee ballot, Georgia voters will now also need to provide the following on a separate ballot envelope inside the return envelope:

  • His or her name
  • A signature
  • The number of his or her Georgia driver’s license or issued identification card
  • An affirmation that the voter does not have a Georgia driver’s license or identification card in the event he or she does not possess such a license or card 
  • Date of birth
  • The last four digits of his or her Social Security Number if the elector does not have a Georgia driver’s license or state identification card

In addition to requiring the above information in conjunction with the absentee ballot request and return processes, the bill shortens the time frame within which voters can request absentee ballots under state law. The request period will now start 11 weeks before any given election and end 11 days before such election. Finally, state and local governments are prohibited from distributing unsolicited absentee applications to potential voters, and third-party groups circulating absentee ballot applications to Georgia voters are required to utilize prescribed labeling on materials and only send such materials to individuals who have not already requested, received or voted such absentee ballots.

Ballot drop boxes

In the wake of the State Elections Board’s emergency authorization of ballot drop box usage during the 2020 election due to the impact of the COVID-19 pandemic, Senate Bill 202 codifies the permissibility of drop box usage and requires all counties to have at least one such depository. The bill places limits, however, on the total number of drop boxes per county, capping the allowable number of depositories at the lesser of either one drop box for every 100,000 active registered voters or the total number of advance voting locations in the county.

In addition to restricting the number of total ballot drop box locations that Georgia counties can utilize for election purposes, Senate Bill 202 also mandates that drop box depositories: be located only inside early voting locations; be used only during advanced voting hours; and be under constant surveillance by an election official, law enforcement official or licensed security guard. Finally, the bill prohibits the usage of ballot drop boxes by voters during the last four days before an election.

Runoff election changes

In response to recent consternation over the lengthy runoff period codified in Georgia law for primary, general and special runoff elections, Senate Bill 202 seeks to shorten Georgia’s existing nine-week runoff period down to four weeks by sending military and overseas voters instant-runoff ranked choice absentee ballots. The legislation also shortens in-person early voting for runoff elections to a period of one week before election day. Additionally, Senate Bill 202 also replaces the previous “jungle primary” system for special election seats with a framework that includes party primaries. 

Early voting

At present under Georgia law, in-person early voting for general elections is required for three weeks prior to election day during “normal business hours” Monday through Friday and during the same time period on one Saturday during the pre-election period. Senate Bill 202 adds an extra Saturday to this early voting period and affords localities the option of instituting Sunday early voting as they see fit.

Despite this expansion of early voting opportunities for general elections, the incorporation of a shortened runoff period for state runoff elections will reduce early voting in such settings to just one week before the special election date.

Election management

Senate Bill 202 also contains a wide range of election management provisions that will have a significant impact on how Georgia elections will proceed in upcoming cycles. These changes include the following:

  • Allowing officials to process absentee ballots before the official closing of polls on election day
  • Requiring officials to count ballots nonstop once the polls close
  • Allowing flexibility with voting equipment for smaller, lower-turnout races
  • Prohibiting local election officials and boards of registrars from accepting outside funding, grants or gifts from private third-party groups
  • Permitting poll workers to serve in neighboring counties
  • Clarifying that poll hours at precinct locations may only be extended by judicial order upon showing of good cause
  • Requiring that no later than 10PM on election night counties must make public the total number of votes cast by each method
  • Mandating that all absentee ballots have to be counted by 5PM the day after the election
  • Disallowing voters who go to the wrong precinct from submitting provisional ballots in most cases
  • Requiring specific paper with additional security features to be used for ballots to create a verifiable paper trail of votes
  • Requiring precincts with more than 2,000 voters that have lines longer than an hour at three different points throughout the day to add more machines, add more staff or split up the precincts
  • Prohibiting the use of phones, cameras and other electronic devices to photograph or record a voted ballot or an elector while voting a ballot
  • Requiring the Secretary of State to conduct a pilot program to post scanned ballot images from elections
  • Establishing a hotline to the Attorney General’s office to report illegal or fraudulent behavior
  • Requiring counties to certify election results within six days
  • Limiting mobile polling stations to emergencies
  • Extending the current state bar on electioneering and political engagement activities in and around polling places and voter lines to include the third-party distribution of food and drink to prospective voters

State Election Board changes

Senate Bill 202 also makes several notable changes to the composition and powers of the Georgia State Election Board, bringing it under control of the state legislature and allowing it, in specific circumstances, to unilaterally take control of elections from local elections officials. In regard to composition, the legislation removes the Secretary of State as chair of the State Election Board and replaces him with a chairperson elected by the General Assembly.

Under the legislation’s provisions, the State Election Board has also been granted the power to remove county election boards and replace them with an interim elections manager if they deem the local boards as in need of intervention. At no time may the State Election Board suspend more than four county or municipal elections managers. This process is initiated by the ability of county commissions, the General Assembly, or the State Election Board to initiate a performance review of local officials.

Conclusion

As summarized above, Senate Bill 202 significantly amends the electoral process in Georgia and will have a profound impact on future state election cycles. Despite the bill’s passage, however, the political and legal fight over its various components has just begun. Although two major provisions contained in an earlier version of the law — the termination of non-excuse absentee voting for individuals under 65 and the prohibition of Sunday voting — were struck from the final legislation, several voting rights groups have vowed to fight the bill in court. As of the publication of this alert, a federal lawsuit has already been filed by third-party organizations challenging the absentee ID requirements, drop box limits, provisional ballot invalidations, and food and drink distribution bar as “unjustifiable burdens” on Georgia voters. The Dentons Georgia Public Policy and Political Law Teams will continue to monitor those lawsuits as they proceed, and likewise seek to update our clients on other election and voting rights matters in Georgia and beyond, as they are certain to be a major political focus in the 2022 statewide elections and upcoming federal legislative battles in Congress.  

FEC Increases Contribution Limits For 2021-2022

Earlier this week, the Federal Election Commission (FEC) announced the updated federal contribution limits for the 2021-2022 election cycle as required under the Federal Election Campaign Act. The new per election and per calendar year limits are effective for the entirety of 2022 election cycle starting late last year. Below is a chart that explains the new limits applicable to specific donors and recipients.

Donor Recipient
Candidate Committee PAC Super PAC State, Local or District Party Committee (Federal Accounts) National Party Committee Main Account National Party Committee Special Accounts
Individual $2,900 per election $5,000 per year Unlimited $10,000 per year (combined)

$36,500 per year

*Each national party committee has its own separate contribution limit.  For example, the national senatorial and congressional committees of both major parties have separate limits from the DNC and RNC.

$109,500 per account per year
*Each national party committee has special accounts for:
(1) HQ Building Account
(2) Election Recount, Challenge and Legal Account
(3) Presidential Convention Account (DNC and RNC only)
PAC $5,000 per election for multicandidate PACs
$2,900 per election for non-multicandidate PACs
$5,000 per year for all PACs Unlimited $5,000 per year (combined) for multicandidate PACs
$10,000 per year (combined) for non-multicandidate PACs
$15,000 per year for multicandidate PACs
$36,500 per year for non-multicandidate PACs
$45,000 per year per account for multicandidate PACs
$109,500 per year per account for non-multicandidate PACs

The key contribution limit adjustments of note in the above chart include:

  • A $100 adjustment upward for individual donors giving to candidate committees – moving from a $2,800 per election limit for the 2020 cycle to $2,900 for the 2022 cycle.  This adjust means that individuals may now give up to $5,800 per candidate per cycle for candidates participating in both primary and general elections.
  • A $1,000 adjustment upward for individual donors giving to national party committee main accounts – moving from $35,500 per year for the 2020 cycle to $36,500 for the 2022 cycle.
  • A $3,000 adjustment upward for individual donors giving to national party committee special accounts – moving from $106,500 per year for the 2020 cycle to $109,500 for the 2022 cycle.


US Policy Scan 2021

Dentons’ US Public Policy practice is pleased to release its annual Policy Scan, an in-depth look at policy at the Federal level and in each of the 50 states. In this document we provide a first look at the key policy questions for the next year in the states, the House of Representatives, the Senate and the new Administration. Additionally, we examine the people who will be driving change.

US Policy Scan 2021 takes deep dives into the turbulent political and policy waters swirling around agriculture, cannabis, education, energy and the environment, financial services, foreign policy, health care, housing and community investment, immigration, infrastructure, smart cities and communities, national security, Native American communities, tax, technology, trade, and voting rights and government reform. All with an eye toward providing you with a clear, comprehensive and reader-friendly description of what US public policy will look like in 2021.

Other features include:

  • 2021 Congressional and State House Session Calendars
  • First 100 days of the Biden Administration
  • Biden cabinet nominees and senior White House staff appointees
  • New Committee Chairs and Rankers
  • Analysis of 2022 US Senate races
  • Key decided and pending cases before the Supreme Court of the United States.

And as in years past, we have also included a review of state legislative activity in 2020, an overview of legislation passed by the House Democrats in the 116th Congress that didn’t see movement in the Republican controlled Senate, and the policy drivers that will shape state legislative and executive branch activity in 2021.

We hope you find this report helpful and informative.

Three New Commissioners Join FEC as Busy 2021 Looms

On December 18, 2020, three new Commissioners were officially sworn in as members of the Federal Election Commission (FEC or Commission), restoring the agency’s quorum and its ability to conduct business for the first time since June of 2020.  The appointees – Ms. Shana Broussard, Mr. Sean Cooksey, and Mr. Allen Dickerson – were nominated by President Trump earlier this year and confirmed by the U.S. Senate on December 9th.  After months without a voting quorum, the FEC will now be able to commence its core regulatory and enforcement functions on matters of campaign finance and elections, including issuing advisory opinions, promulgating and implementing regulations, and taking formal action in enforcement matters.

For the first time in roughly three years, the panel will be at a full slate of six Commission members. The newest appointees include one Democrat and two Republicans with differing backgrounds and viewpoints on the role of the Commission and the appropriate reach of federal campaign finance and election law.  Shana Broussard, the newest Democrat Commissioner, fills the seat previously held by former Commissioner Ann Ravel and holds a term that extends through April 30, 2023.  Ms. Broussard served as counsel to Commissioner Steven Walther prior to her appointment and also has previous public service experience as an Attorney Advisor for the Internal Revenue Service and Assistant District Attorney in New Orleans, LA.  Commissioner Cooksey – one of the new Republican additions to the Commission – joins the agency after serving as General Counsel to U.S. Senator Josh Hawley and Deputy General Counsel to U.S. Senator Ted Cruz.  Prior to his government service, Mr. Cooksey worked as an attorney in private practice focusing on appellate and constitutional law.  Commissioner Dickerson – the second of the new Republican members of the Commission – joins the agency after a long stint as legal director for the Institute for Free Speech and its nationwide First Amendment litigation practice.  Mr. Dickerson also has background as a Judge Advocate in the US Army Reserve and as a private practice litigator.  

Due to its longstanding lack of a quorum, the FEC currently faces a significant matter backlog with at least – 446 open matters before the agency and 275 staff reports awaiting action.  The beginning of 2021 thus looks to be a busy one for the new Commissioners, as they attempt to clear their docket and set priorities for regulation and enforcement in the dynamic of a Biden administration.   In light of this reality, the Dentons Political Law Team, which regularly represents clients before the FEC in enforcement matters, investigations, audits, advisory opinion requests, and other matters, will monitor the agency’s activities in the coming months and provide regular updates.

2020 Presidential Election: Where Things Stand

November 3rd is nearly two weeks in our rear view mirror – here is what we know. Most major news outlets have called the race for former Vice President Joe Biden, but President Donald Trump has refused to concede, and has filed a string of lawsuits around the country challenging the results of the election. We leave the politics aside and provide you with an overview of where things stand in the certification process in key states, and what is required to happen between now and Inauguration Day by federal law.

Vote Certification – and the Electoral College

Congress enacted the Electoral Count Act of 1887 to set forth a uniform process for states to follow to deliver their electoral votes to Congress after the election. Congress ultimately counts and certifies the results of the Electoral College, this year on January 6th, three days after the new Congress is sworn in on January 3rd. In order for a state’s electors to receive protection that Congress will accept their electors without any questions asked, a state must certify the results of its election by the “safe harbor” deadline of six days before the electors meet to cast their votes. This year, that means that states have until December 8th to receive safe harbor status, as the winning electors will meet to cast their votes for President and Vice President on December 14th.

As of the time of this writing, six states have already certified their electors. It is widely expected that all states will do so before the safe harbor deadline. While there are reports that Republican legislators in some states may try to certify their own slate of electors in conflict with current state law in every state, this is a highly unlikely scenario, and one that likely wouldn’t change the electoral college count such that the results of the election change. We briefly detail the current status of vote certification in a number of swing states below.

Status in Swing States

Arizona

The certification date for Arizona is November 30th. As of the time of this writing, former Vice President Biden maintains a roughly 11,000 vote lead, and most major news outlets have declared him the victor. Arizona has very restrictive recount laws, so there is unlikely to be a recount. The Trump campaign has filed a lawsuit seeking to block the state’s certification of votes.

Georgia

The certification date for Georgia is November 20th. As of the time of this writing, former Vice President Biden maintains a roughly 14,000 vote lead, and most major news outlets have declared him the victor. The Georgia Secretary of State has announced that the state will conduct a hand recount of every ballot cast in the presidential race, and will also conduct a risk-limiting audit to rule out the possibility of fraud or errors. This process has begun as of the time of this publication.

Pennsylvania

The certification date for Pennsylvania is November 23rd. As of the time of this writing, former Vice President Biden maintains a roughly 60,000 vote lead, and most major news outlets have declared him the victor. Biden’s lead is currently too large to trigger an automatic recount, and it is unclear if the Trump campaign would request one. Pennsylvania is the state where the Trump campaign has filed the most lawsuits. Because of one of the lawsuits, the United States Supreme Court ordered mail ballots postmarked by election day but received in the three days following election day to be sequestered. The number of ballots in this category appears to be approximately 10,000. The Trump campaign has also filed a lawsuit seeking to block the state’s certification of votes.

Wisconsin

The certification date for Wisconsin is December 1st. As of the time of this writing, former Vice President Biden maintains a roughly 20,000 vote lead, and most major news outlets have declared him the victor. The Trump campaign has said that it would request a recount, which would need to be completed within 13 days of its commencement under state law.

US Election Insight 2020

Biden Declared by News Networks To Be America’s Next President

Elections Insights 2020 Cover

While the states of Alaska, Georgia and North Carolina have not yet been called, and President Trump has not conceded the election’s outcome, former Vice President Joseph R. Biden, Jr., is expected to be the next President of the United States and Senator Kamala Harris the Vice President-elect, and the first woman and person of color to serve in that role.

After being declared the winner in Pennsylvania by many media organizations, President-elect Biden has won states with 290 Electoral College votes, more than the 270 votes required to be elected, while President Trump has won states with 213 Electoral College votes.
With over 13 million votes nationwide still to be counted, Biden holds a majority of the national popular vote, with a lead of about 4.1 million votes (about 2.8%) that is anticipated to expand as more votes from the West Coast, especially California, are counted. This is the seventh time in the last eight presidential elections that the Democratic candidate has won the popular vote.

President Trump and his supporters have initiated multiple lawsuits seeking to dispute and overturn these election results. However, unless these legal actions ultimately persuade the courts to disqualify sufficient ballots in states that have been called for Biden in a manner that would alter the Electoral College result, an outcome that appears highly unlikely, the presidential race is over.

Control of the Senate Will Be Determined by Two Georgia Runoff Elections on January 5, 2021

In the Senate, at this writing Republicans and Democrats each have secured 48 seats. Democrats have achieved a net gain of only one seat to date, with 4 races uncalled: two of which are expected to remain Republican (Alaska and North Carolina) and two seats in Georgia. With a Democratic White House, Democrats need to pick up two more seats in order to capture the Senate. Under Georgia law, US Senate candidates must receive 50% of the total votes cast or face a runoff election. As none of the candidates reached the 50% threshold, there will be two runoff Senate elections in Georgia on January 5, 2021. If Republicans win at least one of these two races, Senator Mitch McConnell will remain the Majority Leader, while Democrats will control the chamber if they win both runoffs.

Democrats will continue to have the majority in the House of Representatives, but with a narrowed margin, to the surprise of many Democrats who were expecting at least modest gains to their House majority. Thus far, Republicans have achieved a net pick-up of about five seats.

Click here to see our Election Results on One Page, our preview of the Biden Transition Team members and a look ahead to potential Biden Cabinet members.

US Election Insight 2020 – Results as of 4:30 p.m. ET

Since the release of this morning’s Results Report, there have been several developments which have materially increased the chances that former Vice President Biden will be America’s next President and that Republicans will continue to control the Senate. While President Trump continues to have paths to 270, former Vice President Biden continues to have several more pathways.

  • In the presidential race, the Associated Press has declared Biden the winner in Wisconsin. With all but about 300 votes counted, Biden leads Trump by 20,510 votes. As the difference in vote totals is less than 1% of the votes cast, the Trump campaign will seek a recount but it cannot commence until late next week after a canvass of the votes has been completed.
  • In Nevada, the state elections commission announced this morning that no more results will be announced until noon Eastern time tomorrow. The votes that remain to be counted are expected to increase the Biden lead.
  • In Michigan, with 93% of the vote in and Vice President Biden now leading by about 37,000 votes, the Michigan Secretary of State said that she expected to have a very clear if not final picture of the election results by tonight. Several news organizations have called the state for Biden.
  • In Georgia, with 93% of the vote in and President Trump leading by about 78,000 votes, about 230,000 votes from counties expected to favor Biden remain to be counted. The Georgia Secretary of State expects the number of uncounted votes to be substantially reduced, if not exhausted, by the end of today.
  • In Pennsylvania, where President Trump leads by about 355,000 votes with 83% of the votes in, the remaining mail ballots come from Philadelphia and Allegheny County and are expected to favor Vice President Biden decisively. Pennsylvania election officials expect that most of the ballots outstanding will be counted by the end of this Friday.  

Democrats continue to have a net gain of one seat in the US Senate. With Senator Susan Collins’ re-election win in Maine, the window for Democrats to capture control of the Senate has narrowed considerably, even if Vice President Biden is elected President. As Alaska is expected to remain a Republican seat, even assuming that Senator Gary Peters pulls out a win in Michigan, Democrats would have to win both Georgia seats to gain control, a highly unlikely prospect. The balance of power has not materially changed in the House since this morning’s report.  

Finally, in a year where very little changed when it comes to state legislative control, New Hampshire gave Joe Biden and Democratic Senator Jeanne Shaheen large victories, then turned around and elected Republican Governor Chris Sununu to another term and flipped democratic majorities in the House and Senate to republican majorities going into 2021. The flip makes New Hampshire the only new “Trifecta” government (single party control of the governorship, House and Senate) of the cycle.

We will update this report tomorrow morning and sooner if exceptional circumstances require it.

Election Insight 2020 – RESULTS OF AS OF 7:30 A.M. ET

It remains uncertain which candidate will be the next President of the United States as President Trump and former Vice President Biden each have paths available to them to reach the 270 electoral votes required to serve as the next president.

Even if post-election litigation challenging the results were not to ensue, it could be several days before the final results are determined in the seven states that have not yet been called. (Alaska, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin.) However, in a speech at 2:30 a.m. ET this morning, President Trump claimed victory and said that he would have his lawyers go to the Supreme Court seeking to prohibit the counting of ballots that have not yet been tabulated in the states that have not been called.

Having lost a seat in Alabama, the Democrats currently have achieved a net gain of one Senate seat, picking up GOP held seats in Arizona and Colorado. Six Senate races remain to be called – Alaska, Maine, Michigan, North Carolina and a January 5th runoff for at least one, and possibly two Georgia seats. Finally, it appears that when all the House races are finally called, House Republicans will pick up three or four seats despite the forecast of several pollsters that House Democrats would expand their majority by at least 5-10 seats or as many as 20-25 seats on a good night.

The election results clearly indicate that there were significant problems with both state level and some national polling by Democrats and that those who had predicted a “Blue Wave” election were sorely mistaken. It’s unclear whether these problems stemmed from the unwillingness of Trump voters to share their voting intentions with pollsters, whether the problems were with the polling methods used, or some combination of both. Whatever the reasons, many Democrats will be seeking an explanation and demanding an autopsy. We will update this report later today and periodically thereafter as additional races are called.

To catch up on previous election updates, visit our 2020 Presidential Election page here.

PRESIDENTIAL PREVIEW: The Battle for 1600 Pennsylvania Ave

With a weekend to go before election day, the Dentons Public Policy team looks at the political climate, the polling, the battlegrounds and how and when the nation could learn the winner in our presidential preview, “The Battle for 1600 Pennsylvania Ave Report.” We believe the outcome of the presidential election will depend, to a significant degree, on whether voters view the race as a choice between two alternatives, each with positive and negative factors, or as a referendum on the President’s leadership. Pre-pandemic, President Trump was prepared to run hard on his record. But the pandemic robbed him of his strongest argument for re-election—a booming economy—leaving him no choice but to focus on Joe Biden’s flaws. 

Whether the American people are buying this line of attack remains to be seen, but recent polls suggest it is not working.

On Wednesday morning, November 4, our Public Policy team will be issuing a detailed report on the election results that are then available. We will be updating this report later in the day, and on succeeding days as necessary, to provide not only the presidential results but a comprehensive picture of what the next US House and Senate will look like. 

Whatever the outcome of the elections, once it becomes clear who will be taking the oath of office on January 20, 2021, and who will control the Congress, we also will be releasing additional reports that profile many of the people who are expected to play key roles in the next administration and that explore the central elements of, and prospects for, the legislative agenda of the winning presidential candidate.   

US HOUSE AND SENATE ELECTIONS PREVIEW – The Battle For Control Of Congress

Dentons’ Public Policy team has developed a US House and Senate Elections Preview to provide the latest developments as we approach the November elections.