The other day I received a piece of mail from Fulton County, Georgia. As I unfolded the letter, I saw the title “Notice of Hearing - Residency Challenge”. I read further: my “qualification to remain on the electors list with Fulton County Registration and Elections [was] being challenged due to Residency - Voter Does Not Live at Registered Address.” The letter provided the name and address of the person who had challenged my eligibility.
I was confused, as I did not recognize the name. But the letter cited the relevant law, O.C.G.A. § 21-2-229, which indeed states that “[a]ny elector of a county or municipality may challenge the qualifications…of any elector of the county or municipality whose name appears on the list of electors.”
The letter stated that a hearing had been set which I must attend if I wished to defend my qualification. Luckily, I had no intention of going. Not only had I moved to Washington State several months prior, but I had recently submitted a Voter Registration Cancellation form attesting to this fact. It seemed the form was lost or simply never recorded.
Had I wanted to defend my qualification, I would have had to appear at the Fulton County Government Center on a Tuesday at 11 a.m. It dawned on me that, for many people, this would mean taking time off work, arranging for transportation, and finding temporary childcare. A major inconvenience.
The requirement to attend a hearing is especially onerous considering that it can be invoked by the mere filing of a challenge by another resident without proof. While the law requires the challenger to “specify distinctly the grounds of the challenge” in the initial filing, it’s not until the hearing that the challenger must prove ineligibility by a preponderance of evidence.
Therefore, someone can file a challenge containing mere allegations and a hearing may still be instituted. The challenged voter will have to prepare (such as by gathering evidence, hiring a lawyer, or serving subpoenas) and attend the hearing, even if it’s frivolous.
Even worse, if the voter cannot make the arrangements needed to attend the hearing, they may not appear or be able to rebut the allegations of the challenger, potentially losing their right to vote. In a sense, the system puts a higher burden on the defender than on the challenger.
The risk of absenteeism is especially high among certain groups for whom attending a hearing presents particular hardship. The groups include the working class who may not be able to take time off work and parents without childcare. Also disadvantaged are those without cars and some disabled people who may not be able to find transportation (especially given the state’s scarcity of public transit). The system prejudices students who cannot afford to miss class and those without stable housing, who may not even receive the notice in the first place.
Among these groups are black and minority communities, who have historically experienced low voter registration and turnout in Georgia. Private citizen challenges further strain efforts to mobilize these constituencies to the polls by capitalizing on the difficulty of attending hearings.
O.C.G.A. § 21-2-229 is not new and was enacted in 1994. But in 2021, it was amended to remove limits on the number of challenges an elector may file. Since then, groups subscribing to theories of election fraud have filed thousands of challenges. The result is hearings based on unsubstantiated challenges, disenfranchisement, and administrative waste.
The aftermath of the 2021 amendment highlights the need for additional tailoring of the statute. In particular, a requirement should be added to meet a burden of proof in the initial filing - before a hearing is scheduled. Several states have similar preconditions. For example, New Hampshire requires challengers to state a specific source of information or attest to personal knowledge. New York requires an affidavit identifying reasons for the challenge, a factual basis, and a source of information. California requires the filing contain evidence showing probable cause.
A higher threshold for instituting hearings would conserve public resources by precluding hearings premised on false allegations or challenges filed for the purpose of harassment or intimidation. More importantly, a higher threshold would result in less voters wrongfully removed from the register for failure to attend hearings. As a stopgap, counties should offer online hearings to facilitate attendance.
It shouldn’t be harder to register to vote than to defend one’s right to vote. But that’s the effect of the current voter challenge law in Georgia, putting democracy at stake.
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