Did Georgia absentee voting expire before the election was over?

Question

The claim: "The emergency order passed in Georgia to allow absentee voting (see: fraud) expired 5 days before the election with no renewal."

Did the authorization for mail-in voting expire prior to the election (and therefore render votes invalid)?

Answer 1

I believe the claim is this one from the Georgia Star News. Before we get into the details, let's cover the whopper.

Claim: The emergency order allowing absentee voting in Georgia expired five days before the election.

100% FALSE. Georgia has laws about absentee ballots. What the emergency order in question did was allow them to be put in secure drop boxes on government property.

All that it does is give voters another option to drop off their legislatively approved absentee ballots. That's it.

RULE 183-1-14-0.8-.14 Secure Absentee Ballot Drop Boxes

(1) County registrars are authorized to establish one or more drop box locations as a means for absentee by mail electors to deliver their ballots to the county registrars. Placing a voted absentee ballot into the drop box shall be deemed delivery pursuant to O.C.G.A. § 21-2-385 and is subject to the limitations on who may deliver a ballot on behalf of an elector.

(2) A drop box shall only be located on county or municipal government property generally accessible to the public.

3 is about when the drop boxes can be open. 4 through 9 are about labeling and securing the drop box. 10 is about collecting the ballots.

The Details

This is all about Rule 183-1-14-0.8-.14 Secure Absentee Ballot Drop Boxes. It was adopted as an emergency rule April 15th, 2020 by the Georgia State Election Board to apply to the June 9th primary. On July 1st, 2020 they were amended and approved to apply to the November general election. They were extended again on Nov 23rd to cover the runoff.

The claim is that emergency rules expire after 120 days unless renewed. 120 days after July 1st is Oct 29th. Therefore on election day Nov 3 the rule had expired. Therefore the election was fraudulent.

Let's be clear, at worst this is an administrative mistake. The board had the power to extend their emergency rules, they forgot and left a gap of a few weeks which is only now being noticed. And it only applies to the use of drop boxes. Absentee ballots were already legal.

This hinges on a bunch of things, all which must be true.

1. The emergency order authorized absentee voting [shown to be false].
2. The rule expired after 120 days without renewal.
3. The rule was not renewed.
4. Without the emergency rule the votes would be invalid.
5. [This is the whopper] this all invalidates the result of the election.

I Am Not A Lawyer, and I'll bet the people making the claim aren't either, but I can provide some commentary starting with the last one.

Claim: This invalidates the election.

Anyone going to court over this would A) have to show damages and B) ask for a remedy for those damages.

There is no evidence the drop boxes resulted in fraudulent votes. The emergency rule outlines many security elements including lighting, video monitoring, requirement to be on govt property, durability, and when it can be open. The claim is simply that they were not authorized for a few days by a technicality.

As we've seen repeatedly in 2020 election lawsuits, the courts have rejected the idea that making it easier for people to vote is damaging to anyone. They have also rejected the remedy of invalidating those other people's votes. Those people were following the rules as they were given to them and should not be disenfranchised because of an administrative oversight.

Even if the court agreed, this is only about a rule governing the use of drop boxes for absentee ballots, and it is only about the last 5 of their 49 days in use. It is unclear seven weeks after the election how one would "unscramble the egg" and determine which absentee ballots were put in a drop box between Oct 29th and Nov 3rd. Throwing out all absentee ballots would disenfranchise voters who both followed the rules, and whose rules are not in question.

Claim: The rule expired.

The expiration part of the claim relies on 50-13-4b which begins...

If any agency finds that an imminent peril to the public health, safety, or welfare, including but not limited to, summary processes such as quarantines, contrabands, seizures, and the like authorized by law without notice, requires adoption of a rule upon fewer than 30 days' notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable to adopt an emergency rule. ... The rule may be effective for a period of not longer than 120 days but the adoption of an identical rule under paragraphs (1) and (2) of subsection (a) of this Code section is not precluded

IANAL, but by my reading the 120 day expiration only applies if you skipped the prior notice and hearings. There was a notice for the April 15th meeting and the July 1st meeting.

The April 15th meeting notes has a section on previously posted rule changes which the emergency rule is not part of.

Emergency Rule: Secure Absentee Ballot Drop Boxes

Mr. Germany presented and explained the emergency rule to the Board and asked the Board to adopt the rule as written. The Board unanimously voted to adopt the rule as written.

The July 1st meeting notes do not say if the rule was previously posted.

Consideration of Extension of Emergency Rules with Amendments

Emergency Rule 183-1- 14-0.6-.14- Secure Absentee Ballot Drop Boxes

Emergency Rule 183-1- 14-0.7-.15- Processing Absentee Ballots Prior to Election Day

Mr. Germany presented and explained the proposed amended emergency rules to the Board and asked the Board to adopt the rules. The Board unanimously voted to adopt the amendments to the emergency rules as written.

Does 50-13-4b apply here? Someone could listen to the meeting to find out the details, but we're getting into some real bureaucratic nitty-gritty.

Conclusion

The claim that absentee voting in Georgia expired before the election is false. Georgia has laws governing absentee voting.

The emergency rule allowed the use of secure drop boxes on government property in Georgia for returning absentee ballots up to 49 days before the election. It was unquestionably valid until Oct 29th. The drop boxes may have been technically invalid from Oct 29th to Nov 3rd. This is, at worst, an administrative mistake and has no impact on the votes cast.

Were the drop boxes determined to be invalid it is unclear who was damaged or what the remedy would be. It is unlikely one could determine which votes were placed into drop boxes on which days. The voters who used those drop boxes on those days were not at fault, invalidating their votes would damage them and not remedy the situation.

At best, the claim has no impact on the election.

Answer 2

In general terms:

Georgians have been able to vote absentee without an excuse since a Republican-controlled legislature introduced it in 2005, though it hadn’t been widely used until this year after the pandemic struck.

There is now talk (in that article) that the new legislative session that starts on Jan 11 in GA may reconsider that.

Since it's apparently mandated by law, the general directive that no-excuse absentee balloting is permitted could not have possibly expired, nor was it given by an "emergency order".

What the tweet might possibly be alluding to is some kind of a dispute over an order that set out some minutiae over how the absentee balloting was to be conducted in detail. There have been fairly numerous court challenges in Georgia of those rules, e.g. in 2018 regarding signature verification rules, over the precise deadline until when such votes are accepted in Sep this year, and new spate of lawsuits was mentioned in the press a couple of days ago again over signature verification and drop boxes. But none of those stories mention that some order may have expired. So it's unclear what the tweet could possibly be talking about.

---

Thanks to Schwern for finding the precise controversy involved, i.e. the rule on drop boxes. I'll not here that on two different occasions it has been mentioned in the press that the SEB (State Election Board) apparently believes it can issue emergency rules valid up to 6 months (i.e. around 180 not 120 days). Here's the transcript from a hearing in July.

Processing absentee ballots- Some of the changes we’re making are getting rid of reference to June 9. Dropbox rule- One change is the deleting the reference to the June 9 election only. It will still be an emergency rule in place for six months. To make it permanent we would have to go over the rule making process which I envision us doing.

I have no idea based on what law provisions they base[d] this six-months (instead of 120-days) validity, and I've asked on law SE. Of some interest, in a lawsuit [Lin Wood v. Raffensperger 1:20-cv-04651-SDG] on a different rule, the Georgia's Attorney General's accepts that 50-13 generally applies to State Election Boards rules. So the question is then one of interpretation, I suppose. (In that lawsuit injunctive relief of invalidating the election was denied among other things based on the doctrine of laches, i.e. complaining about a voting rule after the election result was known is too late.)

A more recent lawsuit in federal court that did include the rule on drop boxes [183-1-14-0.6-.14 -- this is the exact rule mentioned in the Georgia Star article] but with respect to the January runoffs (the rules were extended by the SEB on Nov 23) was dismissed with reference to the Purcell doctrine: that making changes to the rules close to the election creates confusion among the voters and puts unreasonable pressure on the officials administering the election. The judge said that the election was effectively already ongoing (presumably because the mail-in ballots can be sent quite some time before in-person election day).

Of some interest to the OP's question, the complaint in this latter lawsuit [12th Congressional District Republican Committee v. Raffensperger 1:20-cv-00180-JRH-BKE] has this claim in its facts section:

On August 11, 2020, Defendants Raffensperger and the SEB adopted Rule 183-1-14-0.6-.14 authorizing the use of drop boxes in order to provide, as the rule states, "a means for absentee by mail electors to deliver their ballots to the county registrars."

So (if the plaintiffs were correct) it seems that the effective date when the rule entered in force was actually August 11 (somehow), which would put it within the 120-day limit of the Nov 3 election (stipulated in 50-13)... I guess the 6-month period includes some notification and deliberation process, while the the rule only enters in force a bit later.

In any case, if the rule was expired due to its earlier adoption (as Georgia Star says), it seems odd that the plaintiffs [the 12th Congressional District Republican Committee] didn't notice that and asserted the later date of August 11, which precluded an "expiration attack" in their lawsuit... (Instead this [eventually dismissed] lawsuit attacked the 183-1-14-0.6-.14 rule on its substance, claiming it was contravening some ballot harvesting prohibitions in Georgia's election law.)

The published order of the judge dismissing this lawsuit is alas brief and itself doesn't include (the judge's) findings of fact.

However, in concordance with that claim by the 12th Congressional District Republican Committee regarding the timeline, the complaint in the Lin Wood lawsuit claims something similar about another rule that was discussed & adopted at the same time:

Defendants usurped the Legislature’s power by enacting Rule 183-1-14-0.7-.15 (1). The Defendants adopted that Rule on an emergency basis on or about May 18, 2020. In direct conflict with the General Assembly’s above procedures, it provides that “beginning at 8:00 a.m. on the second Monday prior to election day, county election superintendents shall be authorized to open the outer envelope of accepted absentee ballots, remove the contents including the absentee ballots, and scan the absentee ballots using one or more ballot scanners, in accordance with this Rule, and may continue until all accepted absentee ballots are processed.” (emphasis added). This emergency rule was enacted for the June 2020 election, but was then extended on or about August 10, 2020 for use in the General Election [...]

So we have two different Trump-side lawsuits that assert the SEB adopted/extended the (contested) rules regarding the Nov 3 election on August 10 or 11, rather than earlier as Georgia Star claims.

And sure enough, if you check the agenda of the Georgia SEB, they did have an August 10 meeting (besides the July 1 one). Someone would have to check the details of what was discussed/adopted then. This was a "webinar meeting"; it's summary says:

The Board voted to amend and approve the minutes of the State Election Board meeting and hearings held on July 1, 2020. [...]

So I think what happens is that the board votes on approving the minutes of the previous meeting... at its subsequent one. For example, the August 11 summary also mentions notices and presentation of new rules, but it doesn't discuss any vote on them... or any vote on any particular rule. It's still not totally clear to me when a SEB rule counts as actually adopted or entered in force in Georgia, but since two Trump-side lawsuit complaints seem to think it was at this August meeting (which approved the minutes of the previous July 1 meeting, when the rules in question were discussed), it's quite possible Georgia Star's journalist is wrong in their interpretation.