2021 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 10 - Absentee Voting
§ 21-2-384. Preparation and Delivery of Supplies; Mailing of Ballots; Oath of Absentee Electors and Persons Assisting Absentee Electors; Master List of Ballots Sent; Challenges; Special Absentee Run-Off Ballots; Electronic Transmission of Ballots

1. 1. The superintendent shall, in consultation with the board of registrars or absentee ballot clerk, prepare, obtain, and deliver before the date specified in paragraph (2) of this subsection an adequate supply of official absentee ballots to the board of registrars or absentee ballot clerk for use in the primary or election or as soon as possible prior to a runoff. Envelopes and other supplies as required by this article may be ordered by the superintendent, the board of registrars, or the absentee ballot clerk for use in the primary or election.
   2. The board of registrars or absentee ballot clerk shall mail or issue official absentee ballots to all eligible applicants not more than 29 days but not less than 25 days prior to any presidential preference primary, general primary other than a municipal general primary, general election other than a municipal general election, or special primary or special election in which there is a candidate for a federal office on the ballot; 22 days prior to any municipal general primary or municipal general election; and as soon as possible prior to any runoff. In the case of all other special primaries or special elections, the board of registrars or absentee ballot clerk shall mail or issue official absentee ballots to all eligible applicants within three days after the receipt of such ballots and supplies, but no earlier than 22 days prior to the election; provided, however, that official absentee ballots shall be issued to any elector of the jurisdiction who is entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizen Absentee Voting Act, 52 U.S.C. Section 20301, et seq., as amended, beginning 49 days prior to a federal primary or election and not later than 45 days prior to a federal primary or election. As additional applicants who submitted timely applications for an absentee ballot are determined to be eligible, the board or clerk shall mail or issue official absentee ballots to such additional applicants immediately upon determining their eligibility. For all timely received applications for absentee ballots, the board of registrars or absentee ballot clerk shall mail or issue absentee ballots, provisional absentee ballots, and notices of rejection as soon as possible upon determining their eligibility within the time periods set forth in this subsection. During the period for advance voting set forth in Code Section 21-2-385, the board of registrars or absentee ballot clerk shall make such determinations and mail or issue absentee ballots, provisional absentee ballots, and notices of rejection of application within three days after receiving a timely application for an absentee ballot. The board of registrars or absentee ballot clerk shall, within the time periods specified in this subsection, electronically transmit official absentee ballots to all electors who have requested to receive their official absentee ballot electronically and are entitled to vote such absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq., as amended.
   3. The date a ballot is voted in the registrar's or absentee ballot clerk's office or the date a ballot is mailed or issued to an elector and the date it is returned shall be entered on the application record therefor.
   4. Notwithstanding any other provision of this chapter, an elector confined in a hospital may make application for an absentee ballot on the day of a primary or election or during a ten-day period immediately preceding the day of such primary or election. Such application shall immediately be processed and, if such applicant is determined to be eligible, the board of registrars or absentee ballot clerk may deliver the absentee ballot to such elector.
   5. In the event an absentee ballot which has been mailed by the board of registrars or absentee ballot clerk is not received by the applicant, the applicant may notify the board of registrars or absentee ballot clerk and sign an affidavit stating that the absentee ballot has not been received. The board of registrars or absentee ballot clerk shall then issue a second absentee ballot to the applicant and cancel the original ballot issued. The affidavit shall be attached to the original application. A second application for an absentee ballot shall not be required.
2. Except for ballots voted within the confines of the registrar's or absentee ballot clerk's office, in addition to the mailing envelope addressed to the elector, the superintendent, board of registrars, or absentee ballot clerk shall provide two envelopes for each official absentee ballot, of such size and shape as shall be determined by the Secretary of State, in order to permit the placing of one within the other and both within the mailing envelope. On the smaller of the two envelopes to be enclosed in the mailing envelope shall be printed the words "Official Absentee Ballot" and nothing else. The larger of the two envelopes to be enclosed within the mailing envelope shall contain the form of oath of the elector and the oath for persons assisting electors, as provided for in Code Section 21-2-409, and the penalties provided for in Code Sections 21-2-568, 21-2-573, 21-2-579, and 21-2-599 for violations of oaths; a place for the elector to print his or her name; a signature line; a space for the elector to print the number of his or her Georgia driver's license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40; a space for the elector to mark to affirm that he or she does not have a Georgia driver's license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40; a space for the elector to print his or her date of birth; and a space for the elector to print 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 issued pursuant to Article 5 of Chapter 5 of Title 40. The envelope shall be designed so that the number of the elector's Georgia driver's license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40, the last four digits of the elector's social security number, and the elector's date of birth shall be hidden from view when the envelope is correctly sealed. Any person other than the elector who requested the ballot, an authorized person who is assisting the elector entitled to assistance in voting pursuant to Code Section 21-2-409, an absentee ballot clerk, registrar, or law enforcement officer in the course of an investigation who knowingly unseals a sealed absentee ballot envelope shall be guilty of a felony. On the face of such envelope shall be printed the name and address of the board of registrars or absentee ballot clerk. The larger of the two envelopes shall also display the elector's name and voter registration number. The mailing envelope addressed to the elector shall contain the two envelopes, the official absentee ballot, the uniform instructions for the manner of preparing and returning the ballot, in form and substance as provided by the Secretary of State, provisional absentee ballot information, if necessary, and a notice in the form provided by the Secretary of State of all withdrawn, deceased, and disqualified candidates and any substitute candidates pursuant to Code Sections 21-2-134 and 21-2-155 and nothing else. The uniform instructions shall include information specific to the voting system used for absentee voting concerning the effect of overvoting or voting for more candidates than one is authorized to vote for a particular office and information concerning how the elector may correct errors in voting the ballot before it is cast including information on how to obtain a replacement ballot if the elector is unable to change the ballot or correct the error. The uniform instructions shall prominently include specific instructions stating that the elector shall mark his or her ballot in private and sign the oath by writing his or her usual signature with a pen and ink under penalty of false swearing that the elector has not allowed any person to observe the marking of his or her ballot other than an authorized person lawfully assisting the elector if the elector is entitled to assistance, the elector's child under 18 years of age, or any child under 12 years of age and that the elector will not permit any unauthorized person to deliver or return the voted ballot to the board of registrars. The uniform instructions shall include a list of authorized persons who may deliver or return the voted ballot to the board of registrars on behalf of the elector as provided in subsection (a) of Code Section 21-2-385. The uniform instructions shall include the contact information of the Secretary of State which may be used by the elector to report any unauthorized person requesting to observe the elector voting his or her ballot or the elector's voted ballot or any unauthorized person offering to deliver or return the voted ballot to the board of registrars.

   The forms upon which such oaths are printed shall contain the following information:

   Georgia law provides that any person who knowingly falsifies information so as to vote illegally by absentee ballot or who illegally gives or receives assistance in voting, as specified in Code Section 21-2-568 or 21-2-573, shall be guilty of a felony.

(c) (1) The oaths referred to in subsection (b) of this Code section shall be in substantially the following form:

I, the undersigned, do swear (or affirm) under penalty of false swearing that I am a citizen of the United States and of the State of Georgia; that I possess the qualifications of an elector required by the laws of the State of Georgia; that I am entitled to vote in the precinct containing my residence in the primary or election in which this ballot is to be cast; that I am eligible to vote by absentee ballot; that I have not marked or mailed any other absentee ballot, nor will I mark or mail another absentee ballot for voting in such primary or election; nor shall I vote therein in person; and that I have read and understand the instructions accompanying this ballot; that I have carefully complied with such instructions in completing this ballot; that I have marked and sealed this ballot in private and have not allowed any unauthorized person to observe the voting of this ballot or how this ballot was voted except those authorized under state and federal law; and that I will not give or transfer this ballot to any person not authorized by law to deliver or return absentee ballots. I understand that the offer or acceptance of money or any other object of value to vote for any particular candidate, list of candidates, issue, or list of issues included in this election constitutes an act of voter fraud and is a felony under Georgia law. ______________________________________________________________________ Signature or Mark of Elector ______________________________________________________________________ Printed Name of Elector Oath of Person Assisting Elector (if any): I, the undersigned, do swear (or affirm) that I assisted the above-named elector in marking such elector's absentee ballot as such elector personally communicated such elector's preference to me; and that such elector is entitled to receive assistance in voting under provisions of subsection (a) of Code Section 21-2-409. This, the ____________ day of ________, ________. ______________________________________________________________________ Signature of Person Assisting Elector ______________________________________________________________________ Printed Name of Person Assisting Elector Reason for assistance (Check appropriate square): [] Elector is unable to read the English language. [] Elector requires assistance due to physical disability.

In the case of absent uniformed services or overseas voters, if the presidential designee under Section 705(b) of the federal Help America Vote Act promulgates a standard oath for use by such voters, the Secretary of State shall be required to use such oath on absentee ballot materials for such voters and such oath shall be accepted in lieu of the oath set forth in paragraph (1) of this subsection.

Each board of registrars or absentee ballot clerk shall maintain for public inspection a master list, arranged by precincts, setting forth the name and residence of every elector to whom an official absentee ballot has been sent. Absentee electors whose names appear on the master list may be challenged by any elector prior to 5:00 P.M. on the day before absentee ballots are to begin being scanned and tabulated.

(1)The election superintendent shall prepare special absentee run-off ballots for general primaries and general elections for use by qualified electors who are entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq.

Such special absentee run-off ballots for the general primary shall list the titles of all offices being contested at the general primary and the candidates qualifying for such general primary for each office and shall permit the elector to vote in the general primary runoff by indicating his or her order of preference for each candidate for each office. A separate ballot shall be prepared for each political party, but a qualified elector under this subsection shall be mailed only the ballot of the political party in whose primary such elector requests to vote. The Secretary of State shall prepare instructions for use with such special absentee run-off ballots, including instructions for voting by mail using an electronically transmitted ballot. Such ballot shall be returned by the elector in the same manner as other absentee ballots by such electors who are entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq.

Such special absentee run-off ballots for the general election shall list the titles of all offices being contested at the general election and the candidates qualifying for such general election for each office and shall permit the elector to vote in the general election runoff by indicating his or her order of preference for each candidate for each office.

To indicate order of preference for each candidate for each office to be voted on, an elector shall put the numeral "1" next to the name of the candidate who is the elector's first choice for such office, the numeral "2" for the elector's second choice, and so forth, in consecutive numerical order, such that a numeral indicating the elector's preference is written by the elector next to each candidate's name on the ballot. An elector shall not be required to indicate preference for more than one candidate for an office if the elector so chooses.

A special absentee run-off ballot shall be enclosed with each general primary absentee ballot sent to an elector who is entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq., along with instructions on how to cast the special absentee run-off ballot and the two envelopes to be used in returning such ballot as provided in subsection (b) of this Code section, provided that the envelopes bear the notation of "Official Overseas/Military General Primary Run-off Ballot." An elector shall be sent only the ballot containing the candidates of the political party in whose primary such elector desires to vote.

A special absentee run-off ballot shall be enclosed with each general election absentee ballot sent to an elector entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq., along with instructions on how to cast the special absentee run-off ballot and the two envelopes to be used in returning such ballot as provided in subsection (b) of this Code section, provided that the envelopes bear the notation of "Official Overseas/Military General Election Run-off Ballot." The State Election Board shall by rule or regulation establish procedures for the transmission of blank absentee ballots by mail and by electronic transmission for all electors who are entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq., as amended, and by which such electors may designate whether the elector prefers the transmission of such ballots by mail or electronically, for use in county, state, and federal primaries, elections, and runoffs in this state and, if the Secretary of State finds it to be feasible, for use in municipal primaries, elections, and runoffs. If no preference is stated, the ballot shall be transmitted by mail. The State Election Board shall by rule or regulation establish procedures to ensure to the extent practicable that the procedures for transmitting such ballots shall protect the security and integrity of such ballots and shall ensure that the privacy of the identity and other personal data of such electors who are entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. Section 20301, et seq., as amended, to whom a blank absentee ballot is transmitted under this Code section is protected throughout the process of such transmission.

(Code 1933, §§ 34-1404, 34-1405, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 27; Ga. L. 1974, p. 71, §§ 4, 5; Ga. L. 1977, p. 684, § 1; Ga. L. 1977, p. 725, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 5; Ga. L. 1985, p. 206, § 1; Ga. L. 1985, p. 496, § 13; Ga. L. 1985, p. 632, § 4; Ga. L. 1986, p. 32, § 1; Ga. L. 1987, p. 34, § 1; Ga. L. 1987, p. 417, § 5; Ga. L. 1989, p. 643, § 9; Ga. L. 1990, p. 143, § 4; Ga. L. 1992, p. 1, § 2; Ga. L. 1992, p. 1815, § 3; Ga. L. 1995, p. 1027, § 9; Ga. L. 1997, p. 649, § 6; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 12; Ga. L. 2001, p. 230, § 14; Ga. L. 2003, p. 517, § 38; Ga. L. 2005, p. 253, § 53/HB 244; Ga. L. 2006, p. 888, § 3/HB 1435; Ga. L. 2007, p. 536, § 1/SB 40; Ga. L. 2008, p. 261, § 1/SB 456; Ga. L. 2010, p. 569, §§ 4, 5/HB 1073; Ga. L. 2011, p. 683, § 12/SB 82; Ga. L. 2011, p. 697, § 2/HB 92; Ga. L. 2012, p. 995, § 26/SB 92; Ga. L. 2017, p. 697, § 17/HB 268; Ga. L. 2019, p. 7, § 30/HB 316; Ga. L. 2021, p. 14, § 27/SB 202.)

The 2017 amendment, effective July 1, 2017, in paragraph (c)(1), in the form, inserted ", for voting purposes," near the beginning, and substituted "Year of Elector's Birth" for "Month and Day of Elector's Birth" near the middle.

The 2019 amendment, effective April 2, 2019, in subsection (b), inserted "addressed to the elector" near the middle of the first sentence, added the fourth sentence, inserted "provisional absentee ballot information, if necessary," in the middle of the fifth sentence; rewrote paragraph (c)(1); and in subsection (e), substituted "52 U.S.C. Section 20302" for "42 U.S.C. Section 1973ff" in the first and third sentences, and added ", for use in county, state, and federal primaries, elections, and runoffs in this state and, if the Secretary of State finds it to be feasible, for use in municipal primaries, elections, and runoffs" at the end of the first sentence.

The 2021 amendment, effective July 1, 2021, rewrote paragraphs (a)(2) and (a)(4) and subsection (b); in paragraph (c)(1), in the first undesignated paragraph, inserted "under penalty of false swearing" near the beginning, deleted "and" following "accompanying this ballot;" and inserted the language beginning with "; that I have marked and sealed this ballot in private" at the end of the first sentence; substituted "the day before absentee ballots are to be scanned and tabulated" for "the day before the primary or election" at the end of subsection (d); and rewrote subsection (e).

- Pursuant to Code Section28-9-3, in 2011, the amendment of subsection (a) of this Code section by Ga. L. 2011, p. 683, § 12/SB 82, was treated as impliedly repealed and superseded by Ga. L. 2011, p. 697, § 2/HB 92, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

- Ga. L. 2021, p. 14, § 1/SB 202, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Election Integrity Act of 2021."'

Ga. L. 2021, p. 14, § 2/SB 202, not codified by the General Assembly, provides: "The General Assembly finds and declares that:

"(1) Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter suppression and many electors concerned about allegations of rampant voter fraud;

"(2) Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election;

"(3) The stress of the 2020 elections, with a dramatic increase in absentee-by-mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence;

"(4) The changes made in this legislation in 2021 are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in Georgia by promoting uniformity in voting. Several examples will help explain how these goals are achieved;

"(5) The broad discretion allowed to local officials for advance voting dates and hours led to significant variations across the state in total number of hours of advance voting, depending on the county. More than 100 counties have never offered voting on Sunday and many counties offered only a single day of weekend voting. Requiring two Saturday voting days and two optional Sunday voting days will dramatically increase the total voting hours for voters across the State of Georgia, and all electors in Georgia will have access to multiple opportunities to vote in person on the weekend for the first time;

"(6) Some counties in 2020 received significant infusions of grant funding for election operations, while other counties received no such funds. Promoting uniformity in the distribution of funds to election operations will boost voter confidence and ensure that there is no political advantage conferred by preferring certain counties over others in the distribution of funds;

"(7) Elections in Georgia are administered by counties, but that can lead to problems for voters in counties with dysfunctional election systems. Counties with long-term problems of lines, problems with processing of absentee ballots, and other challenges in administration need accountability, but state officials are limited in what they are able to do to address those problems. Ensuring there is a mechanism to address local election problems will promote voter confidence and meet the goal of uniformity;

"(8) Elections are a public process and public participation is encouraged by all involved, but the enthusiasm of some outside groups in sending multiple absentee ballot applications in 2020, often with incorrectly filled-in voter information, led to significant confusion by electors. Clarifying the rules regarding absentee ballot applications will build elector confidence while not sacrificing the opportunities for electors to participate in the process;

"(9) The lengthy absentee ballot process also led to elector confusion, including electors who were told they had already voted when they arrived to vote in person. Creating a definite period of absentee voting will assist electors in understanding the election process while also ensuring that opportunities to vote are not diminished, especially when many absentee ballots issued in the last few days before the election were not successfully voted or were returned late;

"(10) Opportunities for delivering absentee ballots to a drop box were first created by the State Election Board as a pandemic response. The drop boxes created by rule no longer existed in Georgia law when the emergency rules that created them expired. The General Assembly considered a variety of options and constructed a system that allows the use of drop boxes, while also ensuring the security of the system and providing options in emergency situations;

"(11) The lengthy nine-week runoffs in 2020 were exhausting for candidates, donors, and electors. By adding ranked choice voting for military and overseas voters, the run-off period can be shortened to a more manageable period for all involved, easing the burden on election officials and on electors;

"(12) Counting absentee ballots in 2020 took an incredibly long time in some counties. Creating processes for early processing and scanning of absentee ballots will promote elector confidence by ensuring that results are reported quickly;

"(13) The sanctity of the precinct was also brought into sharp focus in 2020, with many groups approaching electors while they waited in line. Protecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence;

"(14) Ballot duplication for provisional ballots and other purposes places a heavy burden on election officials. The number of duplicated ballots has continued to rise dramatically from 2016 through 2020. Reducing the number of duplicated ballots will significantly reduce the burden on election officials and creating bipartisan panels to conduct duplication will promote elector confidence;

"(15) Electors voting out of precinct add to the burden on election officials and lines for other electors because of the length of time it takes to process a provisional ballot in a precinct. Electors should be directed to the correct precinct on election day to ensure that they are able to vote in all elections for which they are eligible;

"(16) In considering the changes in 2021, the General Assembly heard hours of testimony from electors, election officials, and attorneys involved in voting. The General Assembly made significant modifications through the legislative process as it weighed the various interests involved, including adding further weekend voting, changing parameters for out-of-precinct voting, and adding transparency for ballot images; and

"(17) While each of the changes in this legislation in 2021 stands alone and is severable under Code Section 1-1-3, the changes in total reflect the General Assembly's considered judgment on the changes required to Georgia's election system to make it 'easy to vote and hard to cheat,' applying the lessons learned from conducting an election in the 2020 pandemic."

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Invalidation of election reversed on appeal.

- 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).

- State write-in absentee ballot that was sent to uniformed voters overseas by defendant State of Georgia, as part of the state's election scheme pursuant to O.C.G.A. § 21-2-384(a)(2), was merely a partial ballot - without necessary candidate information - the transmission of which could not fulfill the 45 day deadline for transmitting a ballot to voters under the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA), 42 U.S.C. 1973ff et seq., as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009). United States v. Georgia, F. Supp. 2d (N.D. Ga. July 5, 2012).

Cited in Collins v. Collins, 129 Ga. App. 372, 199 S.E.2d 626 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Delegation of responsibilities by board of registrars permissible.

- Read together, former Code 1933, §§ 34-604 and 34-1405 (see now O.C.G.A. §§ 21-2-212 and21-2-384) allow the conclusion that boards of registrars have authority to delegate to deputy registrars any tasks for which they are responsible under the Georgia Election Code. 1981 Op. Att'y Gen. No. 81-70.

- Absentee elector has voted when the elector returns the ballot to the registrar with complete identifying information required by former Code 1933, § 44-1404 (see now O.C.G.A. § 21-2-384) so that the elector's name is placed upon the list of certified absentee electors as required by former Code 1933, § 34-1407 (see now O.C.G.A. § 21-2-386). 1974 Op. Att'y Gen. No. 74-133.

- The right given to the public by the Election Code includes the right to copy the list of absentee names while in the proper official's office. 1968 Op. Att'y Gen. No. 68-450.

- Boards of registrars are not required to make returned absentee ballots subject to inspection prior to the closing of the polls. 1990 Op. Att'y Gen. No. 90-31.

- 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.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 338, 340.

- 29 C.J.S., Elections, § 345 et seq.