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.