There are two types of challenges that can impede a voter from casting a ballot. [1] The first one, authorized by O.C.G.A. § 21-2-229, enables a voter to challenge another voter’s eligibility to be on the voter registration list. Challenges under this section will not affect the timing of the certification processes because it only extends to an individual's eligibility to be on the voter registration list; it occurs before a ballot is cast and “entered into the system,” so by the time counting starts, the challenged individual will either have cast a ballot that will be counted, or have not cast a ballot at all. The second type of challenge, authorized by O.C.G.A. § 21-2-230, enables one voter to target another voter’s eligibility to vote in a specific election. In the case of a challenge under this section, the challenged voter will cast a ballot, but a determination about whether that ballot will be counted may not occur until after the polls have closed. The Election Superintendent cannot certify the county returns until the Board of Registrars has made a determination, which can create some uncertainty in the timing of the certification process. [2] O.C.G.A. § 21-2-230(g).
If a voter who cast a vote-by-mail ballot is challenged under § 21-2-230 based on their eligibility to be on the voter roll, the Board of Registrars must conduct a hearing on an “expedited basis” to determine that eligibility. O.C.G.A. § 21-2-230(g), (i). The deadline for such a challenge to be filed is 5 p.m. “on the day before the [vote-by-mail] ballots are to begin to be scanned and tabulated.” O.C.G.A. § 21-2-230(a).
If a § 21-2-230 challenge is filed against an individual before they can cast a ballot at the polling location, a hearing on the challenge will be initiated if “practical” to do so before polls close. O.C.G.A. § 21-2-230(h). **If the Board of Registrars denies the challenge, the voter will be allowed to cast a ballot. This is true even if the polls have already closed by the time the decision of the Board of Registrars is made — as long as the voter casts a ballot at that moment. O.C.G.A. § 21-2-230(h). If the challenge is upheld, the voter will not be allowed to cast a ballot. O.C.G.A. § 21-2-230(h).
Challenges filed under § 21-2-230 can occur both in the context of vote-by-mail ballots, as well as ballots that are cast in person. The processing of challenged ballots varies slightly based on how a voter casts a ballot, but in both cases, a determination is made by the Board of Registrars; however, this decision can be appealed. O.C.G.A. § 21-2-230(a). Both the individual initiating the challenge and the individual who is being challenged can appeal the decision of the Board of Registrars to the Superior Court up to “ten days after the date of the decision” of the Board of Registrars. O.C.G.A. § 21-2-229(e). This appeal will not delay the certification process (by requiring a re-certification of the results) unless the appeal will change the outcome of the election that has already been certified. O.C.G.A. § 21-2-493(l); *see also Ga. Muslim Voter Project v. Kemp* (11th Cir. 2019) at 1266 (noting that “recertification of the election results [is not required] unless those votes would change the outcome of the election”).
If a § 21-2-230 challenge is filed against an individual before they can cast a ballot at the polling location, and it is not practical to conduct a hearing before the polls close — or “if the registrars begin a hearing and subsequently find that a decision on the challenge cannot be rendered within a reasonable time,” the challenged voter will cast a “challenged ballot.” [3] O.C.G.A. § 21-2-230(i). Until this hearing is conducted and the Board of Registrars has rendered a decision, the Election Superintendent cannot certify the consolidated returns. O.C.G.A. § 21-2-230(g).
If the Board of Registrars ultimately denies the challenge, the Election Superintendent will count the voter’s challenged ballot in the same manner as a regular ballot and proceed to certify the consolidated returns. If the Board of Registrars ultimately upholds the challenge, “the ballot of the challenged [voter will] be rejected and not counted…” O.C.G.A. § 21-2-230(i). If necessary, the Election Superintendent will adjust the returns to remove any votes cast by the challenged voter. O.C.G.A. § 21-2-230(i).