Fulton County Judge Rules with the Warnock Campaign and Orders New Early Voting Date

Fulton County Superior Court Judge Thomas A. Cox Jr. has ruled in favor of a filing by the Democratic Party and U.S. Sen. Raphael Warnock’s campaign to allow early voting to begin on Saturday in Georgia’s Senate runoff election. I previously criticized this filing as an invitation for the court to act as a super legislature in the face of clear statutory language. In fairness to Judge Cox, the opinion below makes a creative case for such a construction. Yet, despite this well-written decision, I still believe that the court is wrong to ignore the plain meaning of the statute.

I previously said that such an action can be an invitation for judicial activism when a law expressly states the starting dates for elections. However, I do think that this is a reasonable, if mistaken, take of the state law.  Judge Cox’s use of statutory construction arguments is based on long-standing approaches addressing ambiguity in statutory language. Let’s first start with his reasoning and then I would like to share why I believe he is mistaken.

Advance voting is addressed in Section 21-2-385(d) of Georgia’s elections code, which provides for a period of advance voting for primaries and elections, including “runoff[s] from any general primary or election.”  State law provides for advance voting on Saturdays, except when the Saturday “follows a public and legal holiday occurring on the Thursday or Friday immediately preceding.”

Initially, Georgia’s Secretary of State Brad Raffensperger thought that early voting could occur on the Saturday and had no objections to such a starting date. However, when state counsel reviewed the matter, they concluded that voting had to start on the following Monday in light of Thanksgiving holiday.

Thus, the Secretary of State issued an Official Election Bulletin advising that voting on Saturday, November 26 was not permitted under Section 21-2-385(d)(1) because the day follows the state Thanksgiving holiday on Thursday, November 24, as well as an observed state holiday on Friday, November 25.

Judge Cox acknowledges that the language is clear:

[T]he Court clearly sees the restriction on voting that could potentially preclude Saturday, November 26, 2022, from being a valid day for voting. It is clearly the second Saturday preceding 6 the runoff election to be held on December 6, 2022. Further, it is immediately preceded by a legal holiday on Thursday (Thanksgiving).

However, the court then declares that it is not controlling for runoffs due to the fact that language was removed in earlier changes to the law.

It was previously established that it was within the contemplation of the Legislature that primary, election, and runoff were distinct terms representing separate ideas, and yet here, the Legislature chooses to only use the words primary or election, thus excluding runoff from its inclusion. Had the Legislature been so inclined, they could have easily included runoff to continue this pattern of a three-category list but they chose not to. In this instance it is obvious that they chose not to because it was previously included in the text of the statute but was later removed. 2016 Ga. Laws Act 347 §4 has the pertinent section of O.C.G.A. §21-2-385(d)(1) drafted to read, “such advance voting shall not be held on such second Saturday but shall be held on the third Saturday prior to such primary, election, or runoff’ which is identical in form of language to the preceding list a few lines above.

A year later, however, the code section was amended via 2017 Ga. Laws Act 250 §18, which specifically eliminated “or runoff’ from within the text of that restrictive provision and it has remained removed from all future revisions.

That is certainly a worthy point to raise. The removal of the term can be evidence of legislative intent. The court cites an earlier decision stating that “where a statute is amended to delete a word, it is presumed that the Legislature made the change to effect some purpose, and desired to make a change in the existing law.” Fredrick v. State, 181 Ga. App. 600 (1987).

Here is why I believe the court is wrong. First, a court ordinarily applies this type of rule or canon of construction when the statute is ambiguous or unclear. There is no ambiguity in the law, in my view. The term election is widely understood to include runoffs. It excludes primaries, O.C.G.A. § 21-2-2(5), but the law refers to a “run-off election,” which is a “continuation of” a general election in which no candidate receives a majority of votes in a particular race. Ga. Const., art. I, § II, par. II; O.C.G.A. § 21-2-501(a).

The court admits that it has no legislative historical record on the reason for the deletion of the words. While the court is correct that the term does appear elsewhere, it could have been removed from this provision as redundant or unnecessary. Whatever the motive, the language is clear. Indeed, one could flip the court’s analysis. The legislature could have just as easily made an express allowance for a runoff as not being subject to this rule. It did not do so. It used a term that encompasses both general and runoff elections. As it stands, all elections are expressly subject to this rule.

I am also not convinced by the Fredrick precedent. That case involved a criminal appeal on the scope of the crime of kidnapping. The legislature decided to eliminate or alter an element of the offense. The prior statute required a “forcible” abduction or stealing away of the victim “and” a holding of the “person against his will.”  The 1968 revision of this offense deleted the word “forcible” to define the crime as an abduction or stealing away of the person “and” a holding of such person “against his will.” OCGA § 16-5-40 (a).

The elimination or changing of an element to a crime seems a materially different matter then interpreting the starting date for voting. A criminal charge must be clearly stated to give notice to those who can lose their liberty as a result of a violation. The elements are the very standard for conviction.

In this case, the statute concerns the scheduling of all “elections,” a term that ordinarily includes both general and runoff elections. The elimination of the runoff reference would be more significant, in my view, if the statute was otherwise vague or unclear. However, the provision is express and clear in its language. While the legislature could make a special provision for runoff elections, it did not do so.

Judge Cox’s take is plausible and well maintained in this opinion. The elimination of the reference to runoffs could be equally persuasive on appeal, but some judges may have the same concerns over assuming such an alternative meaning when the plain meaning can be established from the reference to elections generally.

The state has indicated that it will appeal the decision.

56 thoughts on “Fulton County Judge Rules with the Warnock Campaign and Orders New Early Voting Date”

  1. Turley doesn’t want Democrats to vote early and he thinks that Republicans just simply don’t vote early. Therefore the Democrats will win because – using faulty reasoning – voting early is a form of cheating or something. But he hides his opinion behind legal explanations that very clearly a real judge didn’t agree with. Just say you don’t like Democrats. Fine. But let them vote.

    1. You should vote on the DAY with the FACTS you know. Not like PA….where they Elect guy dead for a MONTH!

  2. Who cares Alito was just outed as the Dobbs leaker. I remember people here calling for some pretty harsh punishment for whoever did that. I’m sure they’ll stand by those statements now that we know the identity of the leaker. Anything else would be to admit to gross hypocrisy.

    1. What is your source that Alito leaked Dobbs.
      I found nothing.

      And you have never been credible.

      Presuming a justice leaked Dobbs – they could be impeached.
      Regardless, they will not be trusted by other justices in the future.

      There is no other means to punish a justice – whether it is Alito – which is highly unlikely or not.

      Frankly what evidence we have strongly suggests it was NOT Alito or his staff.
      The leaked draft was from February. Alito or his clerks and staff would not have held an old draft for months.
      They would have leaked something current.
      The age of the draft significantly undermines claims that Alito was the source,
      But to a lessor extent it undermines claims that the justices or their clerks are the source.

      The most likely scenarios are either other staff, or people who gained access illegitimately.
      I.e. People working in a justices home, or someone sorting through trash.

      Those scenarios also explain why it is so hard to find the source.

      SCOTUS needs to start using Musk like techniques. Musk has been known to email the same memo to staff,
      but using software that makes each copy unique using nearly imperceptable changes to the spacing of sentences and words.
      Such that even though the content of each memo is identical, each is also a uniquely traceable original.

      Must Musk staff know that if they leak, they will be caught and they will be fired.

    2. Anonymous, I am very interested in your announcement about Alito being the leaker. Please be so kind as to sight your source for this new revelation. Without such proof some might consider you to be a conspiracy nut. Short of that you should consider your retraction. We know you wouldn’t just make such a thing up so providing a source should be an easy endeavor in order for us to continue our search for the truth. Please enlighten us as soon as possible or we might think little of you.

      1. There is a NYT story saying Alito told an anti-abortion activist about the outcome of the Hobby Lobby decision of 2014 before it was issued. Alito has denied it. Unrelated to Dobbs.

        1. Actually the allegation by the activist is that Alito told someone else who told him. In any event, Alito and the person in the middle have both denied it, and it relates to the 2014 Hobby Lobby decision about contraception not Dobbs.

          1. Daniel: You and Thinkitthrough are correct. The statement by Anonymous that “Alito was just outed as the leaker” is quite pushing it, n’est ce pas? and tells me that he needs to apply for some gigs with CNN or MSNBC.

  3. While The Twilight Amendment has been overruled, twilight judgment progresses with democracy aborted in several Democrat districts.

  4. Once again, in the one race that actually critically matters, the Dems run off and tell daddy. Gee. What surprise. The people that aren’t under 35 and believing AOC will buy them a mansion have really, really had enough. I thought covid would be the tipping point, it was a progress point (Dems lost much more bigly than the media is willing to say). I guess the next two years are the REAL tipping point. The abject lack of integrity on the part of our Dems – sheesh. The gaslighting dial seems to go on into eternity.

    OT gotta love Biden saying inflation relief will come coincidentally, in January, so that when it doesn’t the ‘others’ can be blamed.

    https://twitter.com/RNCResearch/status/1593677756197638145?ref_src=twsrc%5Etfw

    That will be the narrative going forward. ‘We didn’t do any of this, somehow it’s the fault of people that weren’t even in power the past number of years.’. Disgusting. They are disgusting. I have given up on moderate Dems finding their spines.

  5. The most valuable right for honest Americans has become a tool for continued governmental corruption by one party. Election Day has morphed into election week and months. What weenies Americans have become, shame on us all.

    1. Margot: Not only is your comment notable, but it’s not just “corruption,” but political game-playing that undermines “the most valuable right.” We won’t be around, but maybe in several generations, all these tweaks will have been worked out by the highest courts in the land and our Nation will have a better understanding of what its true worth is.

  6. Professor Turley states, “There is no ambiguity in the law, in my view. The term election is widely understood to include runoffs. It excludes primaries, O.C.G.A. § 21-2-2(5), but the law refers to a “run-off election,” which is a “continuation of” a general election in which no candidate receives a majority of votes in a particular race. Ga. Const., art. I, § II, par. II; O.C.G.A. § 21-2-501(a).”

    Here is the actual language of the statutory provision cited by the professor:
    “The run-off primary, special primary runoff, run-off election, or special election runoff shall be a continuation of the primary, special primary, election, or special election for the particular office concerned.”

    By incorporating that express statutory language with the fact that the legislature did not enumerate an exception to that language (i.e., not applicable to run-off elections), an inference can be drawn that there are no exceptions to the above language.

    My initial inference is that there is no ambiguity and that the removal was for redundancy.

    1. Lin, I disagree. The provision in question distinguishes between elections and runoffs. In the proviso that has the exception for Saturdays after holidays it says that after a holiday right before the second Saturday, voting shall be on the third Saturday before, not the second Saturday. That makes no sense in a runoff, because there is no third Saturday before.

      1. Hello Daniel: I take no exception to your thinking and reasoning. Instead, I take issue with the framing of the issue by Nkwonka before the court.
        Nkwonka apparently argued that the holiday restriction applied only to primary and general elections and not to runoffs. The state’s responsive argument pointed to actual statutory language, i.e., that “… runoff shall be a continuation of the primary, special primary, election, or special election for the particular office concerned.”
        A sympathetic reaction, i.e., the fact that because of this year’s calendar, available dates may be more limited, does not change that language/fact.
        Turley juxtaposes the agreement between the judge and Nkwonka , i.e., that (per the judge’s statement): ”a runoff is NOT (emphasis mine) merely a continuation of a primary or [general] election but is in fact it’s own distinct event”—with the state’s argument that pure and unambiguous statutory language (above) states otherwise, and is controlling.This makes (IMHO) the basis for the judge’s ruling seemingly flawed.

        1. (I add that the judge’s attempt to declare his own interpretation as “the law,”- (justified by his examples of the legislature’s dropped reference to “runoffs”) is also flawed because the statutory language is not ambiguous or vague. The fact that it may serve to limit the availability of dates to vote, does not make it ambiguous or vague.
          In the future, they may argue disparate impact, but to my knowledge, that was never raised. Meanwhile, a new legislature may decide to revisit the language for the future.)

        2. You may be right, but the statute is not clear. I wonder if there is any voting on Sunday? The provision authorising that refers only to primaries and elections, not to runoffs. If there is voting on Sunday, that suggests runoffs fall within the meaning of elections, and the judge would be wrong.

          1. I also don’t get why voting can occur on Saturday simply because the proviso does not apply. The statute says voting in a runoff should start as soon as practicable. The state decided that this meant Monday the 28th. I did not see any argument that this was wrong.

  7. There are two events the law is addressing here; the primary and the election. Voting laws covering both events apply until the event is concluded. In this case, the election event is not concluded.

    Would they be arguing the existing law did not include runoffs, if there were no prior laws?

  8. The question at hand is not what the voting procedures should be but, rather, who gets to decide what the voting procedures should be.

  9. Annnnd We’re Off …. !

    Mother Jones​:
    Politics – November 18, 2022
    Georgia Is Limiting Early Voting—Partly Because of a Holiday Honoring Robert E. Lee
    The move, which sparked a lawsuit, could disproportionately harm Black voters.
    Ibid.: https://www.motherjones.com/politics/2022/11/georgia-run-off-robert-e-lee-senate/

    Foxnews:
    Georgia – Published November 16, 2022
    Joy Reid spreads misinformation about Georgians not being able to vote because of Robert E. Lee holiday
    Reid also echoed commentary from President Biden slamming voting legislation as “Jim Crow 2.0′
    Ibid.: https://www.foxnews.com/media/joy-reid-spreads-misinformation-georgians-able-vote-robert-e-lee-holiday

  10. So what is the motive for the Democrats to demand a longer period of early voting?

    Look to that for your answer.

    Must be the longer Voters. have to consider. their vote…..more shall turn to Walker and away from Warnock…..there can be no other reason that would instruct the Democrats to make this move.

    1. “So what is the motive for the Democrats to demand a longer period of early voting?”

      It’s like a manager trying to deal with lazy, irresponsible employees:

      Oh, coming to the office, on Mondays, at 9 takes too much effort? No problem. Work whatever days you desire, at whatever times are convenient for you, from wherever suits your fancy.

  11. Putting lipstick on a pig may be viewed as an expression of artistic talent (‘or creative construction’). However, by definition it is still a pig.

  12. This about like trying to get a conviction of a democratic FBI agent in Washington DC. Warnock resides in Fulton County, his church is in Fulton County (Ebenezer Baptist Church), The power of the Democratic Party in Georgia resides in Fulton County, and the Judge is in Fulton County. Hmm, sounds like real unbiased decision. Might be overturned by the Supreme Court, also in Fulton County. I might have been more impressed if he had had a judge in Alpharetta, or Canton, Lawrenceville, Acworth or Kennesaw who had made this decision.

  13. Fulton County Superior Court Judge Thomas A. Cox Jr. has ruled in favor of a filing by the Democratic Party

    Full stop. No need to read further nor consider this case as legitimate.

  14. “The term election is widely understood to include runoffs.”

    If a runoff is not an “election,” then what is it?

  15. I disagree with the Professor. The provision is anything but clear. And it refers in one place to runoffs in a way that suggests they are distinct from elections at least for some purposes. This is a case of very poor drafting, and it’s hard to complain much about the court’s effort to make sense of it.

    1. This is a case of very poor drafting, and it’s hard to complain much about the court’s effort to make sense of it.

      The court was under no obligation to make sense of anything. Since 1984 courts have been deferring to the agencies having knowledge of the subject, that exceeded the knowledge of he Judge. Its called Chevron.

      “the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers”

      But judges being the ego manically twats they are. Have the power to do as they please and are not bound by the law. Suffer no consequences for interfering where they have no jurisdiction. This judge is interfering in elections but will never suffer the consequences.

    2. And it refers in one place to runoffs in a way that suggests they are distinct from elections at least for some purposes.

      If you need to exercise qualifying language, four times in one sentence, you may want to reconsider your confirmation bias.

      1. Have you even read the full provision or the judge’s decision? The drafting is a complete mess, and when asked to interpret it the judge did a good job. I don’t think Chevron applies in this context, to a state court interpreting a state law, and in any event SCOTUS has been chipping away at Chevron.

        1. Chevon applies to a federal court interpreting a federal law….and defering to the agencies determination.

          In this case the controlling agency covering elections made a ruling, following the legislation. A ruling the judge was forced to make a bunch of assumptions and overturn the agency. There is no harm in letting the agency follow the law. Warnack claimed Democrats voters were somehow suffering disparate impact by not be able to vote on Saturday. A claim not supported by any evidence.

    1. And post-voting date, continue to bring in trucks and vans loaded with ballots, including those located (found) in vehicle trunks until the Dem wins.

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