Tourist Voter Registration Illegal in Georgia, but Prosecution Is Rare

GeorgiaSpecialElection-VoteSign-AP
David Goldman/Associated Press

New York Times columnist Thomas Friedman is encouraging non-Georgia residents to move to the state so they can register to vote in two January 5 U.S. Senate runoff elections.

“I hope everybody moves to Georgia, you know, in the next month or two, registers to vote, and votes for these two Democratic senators,” Friedman told CNN’s Chris Cuomo on Tuesday.

The outcome of those runoff elections, one that pits incumbent Sen. David Perdue (R-GA) against Democratic challenger John Ossoff and the other in which incumbent Sen. Kelly Loeffler (R-GA) faces Democratic challenger Raphael Warnock,  will determine the balance of power in the Senate when the 117th Congress convenes in Washington in January.

With the results in all other general election contests in the U.S. Senate now known, the current balance of power in the upcoming 117th Congress stands at 50 Republicans and 48 Democrats. If both Democrats win in the January 5 special election, there would be 50 Republicans and 50 Democrats in the Senate, meaning the vice president would break any ties.

In a worst case scenario for Republicans, a 50-50 U.S. Senate with a Vice President Kamala Harris could end the filibuster in the “world’s most deliberative body” and result in Senate approval of schemes to pack the U.S. Supreme Court.

For that reason, the runoff elections for the two U.S. Senate seats in Georgia on January 5 are vitally important to both Democrats and Republicans.

While Friedman stopped short of calling on non-Georgia residents to move temporarily to the state solely for the purpose of voting in the January 5 runoff elections before returning to their homes outside of Georgia, other Democratic activists appear to have encouraged non-Georgia residents to move to the state temporarily only for the purpose of voting in those runoff elections.

Anyone who claims to be a Georgia resident who is not currently registered to vote has until December 7 to register and be qualified to vote in both January 5 runoff elections.

But temporary “tourist voter registration” is illegal under Georgia law if the person who registers to vote does not intend to remain a permanent resident of the state:

Universal Citation: GA Code § 21-2-217 (2019)
  • (a) In determining the residence of a person desiring to register to vote or to qualify to run for elective office, the following rules shall be followed so far as they are applicable:
  • (1) The residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom; . . .
  • (3) A person shall not be considered to have gained a residence in any county or municipality of this state into which such person has come for temporary purposes only without the intention of making such county or municipality such person’s permanent place of abode;
  • (9) The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention;
  • (15) For voter registration purposes, the board of registrars and, for candidacy residency purposes, the Secretary of State, election superintendent, or hearing officer may consider evidence of where the person receives significant mail such as personal bills and any other evidence that indicates where the person resides.

The problem is that those identifying themselves as new Georgia residents when they show up at county election departments are not required to present a valid Georgia driver’s license:

Universal Citation: GA Code § 21-2-220.1 (2019)
    • (a) Any person applying to register to vote shall provide his or her Georgia driver’s license number or identification card number for an identification card issued pursuant to Article 5 of Chapter 5 of Title 40 on the voter registration application. If a person does not have a Georgia driver’s license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40, such person shall provide the last four digits of his or her social security number on the voter registration application. If a person does not have a Georgia driver’s license, a Georgia identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or a social security number, the person shall affirm this fact in the manner prescribed in the voter registration application upon penalty of law and such application shall be processed without regard to the procedures outlined in subsections (b), (c), and (d) of this Code section.
    • (b) In the event that the name, driver’s license number, social security number, or date of birth provided by the person registering to vote on the voter registration form does not match information about the applicant on file at the Department of Driver Services or the federal Social Security Administration, the applicant shall nevertheless be registered to vote but shall be required to produce proof of his or her identity to a county registrar, a deputy county registrar, a poll manager, or a poll worker at or before the time that such applicant requests a ballot for the first time in any federal, state, or local election.
    • (c) Proof of the applicant’s identity as set forth in subsection (b) of this Code section shall be the forms of identification listed in subsection (c) of Code Section 21-2-417.

The forms of identification listed in subsection (c) of Code Section 21-2-417 include “either one of the forms of identification listed in subsection (a) of this Code section or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of such elector.”

Surprisingly, Georgia law provides that “if such elector does not have any of the forms of identification listed in this subsection, such elector may vote a provisional ballot pursuant to Code Section 21-2-418 upon swearing or affirming that the elector is the person identified in the elector’s voter certificate.”

Such provisional ballot shall only be counted if the registrars are able to verify current and valid identification of the elector as provided in this subsection within the time period for verifying provisional ballots pursuant to Code Section 21-2-419. Falsely swearing or affirming such statement under oath shall be punishable as a felony, and the penalty shall be distinctly set forth on the face of the statement.

In addition, the registrar of voters has considerable discretion under current Georgia law in determining whether or not someone newly arrived from another state who asks to register to vote will be allowed to vote.

Universal Citation: GA Code § 21-2-217 (2019)

(b) In determining a voter’s qualification to register and vote, the registrars to whom such application is made shall consider, in addition to the applicant’s expressed intent, any relevant circumstances determining the applicant’s residence.

The registrars taking such registration may consider the applicant’s financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse, and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that the registrars may reasonably deem necessary to determine the qualification of an applicant to vote in a primary or election.

The decision of the registrars to whom such application is made shall be presumptive evidence of a person’s residence for voting purposes. (emphasis added)

Anyone who claims to be a resident of Georgia can register to vote online and can do so by simply checking the box that they:

  • Reside at the address listed in their application
  • Are eligible to vote in Georgia.
  • Are not serving a sentence for having been convicted of a felony involving moral turpitude.
  • Have not been judicially declared to be mentally incompetent.

There is a strong penalty for false registration:

Universal Citation: GA Code § 21-2-561 (2019)
  • Any person who:
    • (1) Registers as an elector knowing that such elector does not possess the qualifications required by law;
    • (2) Registers as an elector under any other name than the elector’s own name; or
    • (3) Knowingly gives false information when registering as an elector
  • 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.

However, according to the Heritage Center voter fraud data base, there has been only one criminal conviction for false registration in Georgia since 2011:

Mohammad Shafiq had a disagreement with Madison County sheriff candidate Clayton Lowe, and thought he would get back at the man by helping his opponent win the 2012 election. Shafiq fraudulently submitted voter registrations cards and–in the face of accusations–coerced a couple, Bennie and Margaret Pierce, to sign affidavits intended to exonerate him. Upon investigation, his ruse was discovered, and he was charged with two counts of perjury, three counts of tampering with evidence, and two counts of voter identification fraud. He pleaded guilty and was sentenced to 10 years’ probation with a fine of $6,750.

Several Republican state legislators have asked Gov. Brian Kemp to hold a special session of the state legislature to address this loophole, but he has declined to do so, as the Associated Press reported:

Georgia Gov. Brian Kemp said Tuesday he won’t call a special legislative session to tighten residency requirements for the Jan. 5 runoffs, despite pressure from some supporters of President Donald Trump to make it harder for new residents to cast their ballots in the consequential election.

He and Georgia’s two top legislative leaders — Lt. Gov. Geoff Duncan and House Speaker David Ralston — released a joint statement that threw cold water on the idea that lawmakers could overhaul voting rules this close to the twin runoffs that could determine control of the Senate.

“Any changes to Georgia’s election laws made in a special session will not have any impact on an ongoing election and would only result in endless litigation,” the three Republicans said.

Republicans who asked for the special legislative session have criticized Kemp’s decision, and continue to warn of the potential for fraud in the January 5 runoff elections.

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