2020 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 10 - Absentee Voting
§ 21-2-385. Procedure for Voting by Absentee Ballot; Advance Voting

1. At any time after receiving an official absentee ballot, but before the day of the primary or election, except electors who are confined to a hospital on the day of the primary or election, the elector shall vote his or her absentee ballot, then fold the ballot and enclose and securely seal the same in the envelope on which is printed "Official Absentee Ballot." This envelope shall then be placed in the second one, on which is printed the form of the oath of the elector; the name and oath of the person assisting, if any; and other required identifying information. The elector shall then fill out, subscribe, and swear to the oath printed on such envelope. Such envelope shall then be securely sealed and the elector shall then personally mail or personally deliver same to the board of registrars or absentee ballot clerk, provided that mailing or delivery may be made by the elector's mother, father, grandparent, aunt, uncle, brother, sister, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, sister-in-law, or an individual residing in the household of such elector. The absentee ballot of a disabled elector may be mailed or delivered by the caregiver of such disabled elector, regardless of whether such caregiver resides in such disabled elector's household. The absentee ballot of an elector who is in custody in a jail or other detention facility may be mailed or delivered by any employee of such jail or facility having custody of such elector. An elector who is confined to a hospital on a primary or election day to whom an absentee ballot is delivered by the registrar or absentee ballot clerk shall then and there vote the ballot, seal it properly, and return it to the registrar or absentee ballot clerk. If the elector registered to vote for the first time in this state by mail and has not previously provided the identification required by Code Section 21-2-220 and votes for the first time by absentee ballot and fails to provide the identification required by Code Section 21-2-220 with such absentee ballot, such absentee ballot shall be treated as a provisional ballot and shall be counted only if the registrars are able to verify the identification and registration of the elector during the time provided pursuant to Code Section 21-2-419.
2. A physically disabled or illiterate elector may receive assistance in preparing his or her ballot from any person of the elector's choice other than such elector's employer or the agent of such employer or an officer or agent of such elector's union; provided, however, that no person whose name appears on the ballot as a candidate at a particular primary, election, or runoff nor the mother, father, grandparent, aunt, uncle, sister, brother, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, or sister-in-law of such candidate shall offer assistance during such primary, election, or runoff under the provisions of this Code section to any elector who is not related to such candidate. For the purposes of this subsection, the term "related to such candidate" shall mean such candidate's mother, father, grandparent, aunt, uncle, sister, brother, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, or sister-in-law. The person rendering assistance to the elector in preparing the ballot shall sign the oath printed on the same envelope as the oath to be signed by the elector. Any person who willfully violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced to imprisonment for not less than one nor more than ten years or to pay a fine not to exceed $100,000.00, or both, for each such violation.
3. When an elector applies in person for an absentee ballot, after the absentee ballots have been printed, the absentee ballot may be issued to the elector at the time of the application therefor within the confines of the registrar's or absentee ballot clerk's office if such application is made during the advance voting period as provided in subsection (d) of this Code section or may be mailed to the elector, depending upon the elector's request. If the ballot is issued to the elector at the time of application, the elector shall then and there within the confines of the registrar's or absentee ballot clerk's office vote and return the absentee ballot as provided in subsections (a) and (b) of this Code section. In the case of persons voting in accordance with subsection (d) of this Code section, the board of registrars or absentee ballot clerk shall furnish accommodations to the elector to ensure the privacy of the elector while voting his or her absentee ballot.
4. 1. There shall be a period of advance voting that shall commence:
      1. On the fourth Monday immediately prior to each primary or election;
      2. On the fourth Monday immediately prior to a runoff from a general primary;
      3. On the fourth Monday immediately prior to a runoff from a general election in which there are candidates for a federal office on the ballot in the runoff; and
      4. As soon as possible prior to a runoff from any other general election in which there are only state or county candidates on the ballot in the runoff but no later than the second Monday immediately prior to such runoff

         and shall end on the Friday immediately prior to each primary, election, or runoff. Voting shall be conducted during normal business hours on weekdays during such period and shall be conducted on the second Saturday prior to a primary or election during the hours of 9:00 A.M. through 4:00 P.M.; provided, however, that in primaries and elections in which there are no federal or state candidates on the ballot, no Saturday voting hours shall be required; and provided, further, that, if such second Saturday is a public and legal holiday pursuant to Code Section 1-4-1, if such second Saturday follows a public and legal holiday occurring on the Thursday or Friday immediately preceding such second Saturday, or if such second Saturday immediately precedes a public and legal holiday occurring on the following Sunday or Monday, such advance voting shall not be held on such second Saturday but shall be held on the third Saturday prior to such primary or election. Except as otherwise provided in this paragraph, counties and municipalities may extend the hours for voting beyond regular business hours and may provide for additional voting locations pursuant to Code Section 21-2-382 to suit the needs of the electors of the jurisdiction at their option.

   2. The registrars or absentee ballot clerk, as appropriate, shall provide reasonable notice to the electors of their jurisdiction of the availability of advance voting as well as the times, dates, and locations at which advance voting will be conducted. In addition, the registrars or absentee ballot clerk shall notify the Secretary of State in the manner prescribed by the Secretary of State of the times, dates, and locations at which advance voting will be conducted.

(Ga. L. 1924, p. 186, § 4; Code 1933, § 34-3303; Ga. L. 1953, Jan.-Feb. Sess., p. 579, § 1; Ga. L. 1955, p. 204, § 3; Ga. L. 1955, p. 732, § 3; Ga. L. 1956, p. 682, §§ 3, 4; Code 1933, § 34-1406, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1965, p. 119, § 1; Ga. L. 1968, p. 871, § 16; Ga. L. 1969, p. 329, § 22; Ga. L. 1974, p. 71, §§ 6-8; Ga. L. 1977, p. 683, § 1; Ga. L. 1980, p. 1256, § 4; Ga. L. 1981, p. 1718, § 8; Ga. L. 1983, p. 140, § 1; Ga. L. 1985, p. 496, § 14; Ga. L. 1986, p. 32, § 1; Ga. L. 1986, p. 932, § 6; Ga. L. 1988, p. 641, § 2; Ga. L. 1989, p. 1742, § 2; Ga. L. 1990, p. 143, § 5; Ga. L. 1992, p. 2510, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 39; Ga. L. 2006, p. 888, § 4/HB 1435; Ga. L. 2007, p. 536, § 2/SB 40; Ga. L. 2010, p. 914, § 21/HB 540; Ga. L. 2011, p. 697, § 3/HB 92; Ga. L. 2014, p. 1, § 6/HB 310; Ga. L. 2016, p. 173, § 4/SB 199; Ga. L. 2017, p. 697, § 18/HB 268; Ga. L. 2019, p. 7, § 31/HB 316.)

The 2017 amendment, effective July 1, 2017, substituted "primary or election" for "primary, election, or runoff" at the end of the next to last sentence of the ending undesignated paragraph of paragraph (d)(1).

The 2019 amendment, effective April 2, 2019, in subsection (a), substituted "elector; the name and oath" for "elector, the name, relationship, and oath" and "if any;" for "if any," in the middle of the second sentence; inserted "personally" following "elector shall then", substituted "mailing or delivery may be made by the elector's" for "delivery by a physically disabled elector may be made by any adult person upon satisfactory proof that such adult person is such elector's", and deleted "disabled" preceding "elector" at the end; added the fifth and sixth sentences; rewrote subsection (b); and added "but no later than the second Monday immediately prior to such runoff" at the end of subparagraph (d)(1)(D).

- For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 93 (2014). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-1006 are included in the annotations for this Code section.

- Unless stubs on ballots are removed by a voter prior to being mailed, ballots are void. Nobles v. Osborne, 124 Ga. App. 454, 184 S.E.2d 207 (1971), cert. denied, 409 U.S. 853, 93 S. Ct. 183, 34 L. Ed. 2d 96 (1972) (decided under former Code 1933, § 34A-1006).

- In an election contest, the election winner was not entitled to attorney fees under O.C.G.A. § 9-15-14(a). Given the language of O.C.G.A. § 21-2-385(a) as to who could mail ballots for a voter, the complaint could not be described as lacking any justiciable issue of law or fact, and a sufficient number of ballots could have been found invalid so as to change the election result. Kendall v. Delaney, 283 Ga. 34, 656 S.E.2d 812 (2008).

- Trial court erred by invalidating an election for sheriff and ordering a new election because the evidence of systemic misconduct for vote buying and alleged wrongful distribution of absentee ballots was speculative and insufficient to support the trial court's conclusion that irregularities cause doubt on the results. Meade v. Williamson, 293 Ga. 142, 745 S.E.2d 279 (2013).

- Voter participation organizations did not articulate any specifics as to an injury as the officials' decision was used as a proxy for voter suppression or targeted at a protected class, and as no voter would be deprived of the right to vote, the organizations were not entitled to injunctive relief against a county's election officials regarding a statutory limitation on early voting rights. Gwinnett Cty. NAACP v. Gwinnett Cty. Bd. of Registration & Elections, F. Supp. 2d (N.D. Ga. Mar. 3, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Restrictions unenforceable in presidential preference primary.

- The restrictions contained in O.C.G.A. § 21-2-409, limiting the class of persons permitted to assist disabled or illiterate electors at the polls, and the restrictions contained in O.C.G.A. § 21-2-385, limiting the class of persons permitted to assist disabled or illiterate electors voting by absentee ballot, cannot be enforced in the presidential preference primary nor can the limitations contained in these Code sections concerning the number of persons one individual may assist be enforced. 1984 Op. Att'y Gen. No. 84-15.

- Registrars may deliver absentee ballots to individuals hospitalized on the date of a primary or election or at times prior to the primary or election. 1990 Op. Att'y Gen. No. 90-30.

- The mere possession of another voter's absentee ballot does not constitute unlawful possession of an absentee ballot under either O.C.G.A. § 21-2-385(a) or O.C.G.A. § 21-2-574. 2016 Op. Att'y Gen. No. 16-2.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 241, 243, 338.

- 29 C.J.S., Elections, § 345 et seq.

- Validity, construction, and application of early voting statutes, 29 A.L.R.6th 343.