What Is Happening With Fulton County's Absentee Ballots?

Caption

Workers sort through ballots in Fulton County's election warehouse during a sample risk limiting audit of the presidential primary election in June 2020.

Credit: Stephen Fowler | GPB News

A meeting to discuss logistical plans for a conspiracy theorist and other voters to review copies of Fulton's 147,000 absentee ballots for evidence of fraud has been canceled after the defendants filed motions to dismiss the underlying lawsuit.

Fulton County, the Fulton County Board of Registrations and Elections and the Fulton County Clerk of Superior and Magistrate Courts all filed motions to dismiss Wednesday night and Thursday morning arguing the plaintiffs failed to properly serve them notice of the suit.

The filings also allege plaintiffs sued the wrong people, the defendants are protected under sovereign immunity and that plaintiffs failed to state a claim that entitles them to court action.

A new hearing in front of Henry County Superior Court Judge Brian Amero on these motions is scheduled for June 21 at 9 a.m.

This lawsuit into Georgia's election has continued despite three previous counts of the vote, a Georgia Bureau of Investigation examination of absentee ballot envelopes and every Georgia election being certified.

Amero granted a motion to unseal the ballots in a hearing last week as part of the discovery process in a larger case alleging Georgia's most populous county mishandled ballots and allowed fraudulent votes to be counted. (There is no evidence of substantial widespread fraud.)

The primary plaintiff is Garland Favorito of the group VoterGA, who has fought against Georgia's elections infrastructure for more than a decade, including a failed lawsuit against Georgia's old direct-recording electronic machines. Favorito has also questioned the authenticity of events surrounding 9/11, pushed conspiracy theories about former President Bill Clinton and the assassination of John F. Kennedy and is now serving as the latest vessel for false claims of fraud with the 2020 election.

Pro-Trump media outlets touted the judge's decision as a major victory, with some sharing various misleading assertions about the so-called "audit" of Fulton's votes and claiming this would pave the way for a special session to de-certify the election results (a thing that cannot actually happen). The whiplash in the case is the latest development in six month effort to undermine confidence in former President Trump's losses nationwide and in Georgia.

Even before these motions to dismiss, the actual scope of what will be done with those ballots is not yet determined, and is likely much narrower and limited than similar audits in Arizona and New Hampshire. For starters, the ballots will never leave custody or control of Fulton County. On Friday, the voters and the county will meet at the Fulton County warehouse where the ballots are stored.

"The petitioners, again, shall only be permitted to inspect and scan the ballots in accordance with protocols and practices that will be set forth by further order of the court," Amero said. "I have no inclination to release these ballots to anyone other than the clerk in the county."

The format of this case has been different than others. For one, Fulton County court judges transferred the case to Amero in Henry County because they determined it was an election challenge — despite the window for an election challenge passing, no candidates or political parties having signed on to make it a challenge and the petitioners themselves arguing it was not an election challenge.

Amero was also puzzled that Fulton County never filed a motion to dismiss the case, which eventually led to the last-minute filing from the county and limited new appearances by lawyers for the other defendants. 

Dozens of lawsuits filed by Trump and his allies sought to overturn his narrow loss in Georgia, sought to block certification of the results, tried to change laws before the Jan. 5 runoff and ultimately destabilized trust in an election system that saw Democrats win. 

Prominent Republicans ranging from former Sen. Kelly Loeffler to state Sen. Burt Jones (R-Jackson) have baselessly claimed Fulton County counted fraudulent votes, and the legislature approved a sweeping 98-page election law in part based on these false pretenses.

Making matters more confusing is a statement from Republican Secretary of State Brad Raffensperger, whose office opposed giving access to the physical ballots but supported access to ballot images, subsequently praising the process while bashing Fulton County.

"Fulton County has a long-standing history of election mismanagement that has understandably weakened voters’ faith in its system," he said. "Allowing this audit provides another layer of transparency and citizen engagement."

Raffensperger faces a primary challenge from Rep. Jody Hice (R-Greensboro), who has been one of the most vocal proponents of lies and misrepresentations of the 2020 election.

No matter what the judge allows Favorito and the voters to do with Fulton County's absentee ballots, it is unlikely to convince a majority of Republican voters that the 2020 election was not stolen from Trump, as one of the Georgia Republican Party's central tenets heading into 2022 is the belief that fraud led to their losses in November and January, when Democrats flipped both U.S. Senate seats and control of the chamber.

RELATED: Georgia GOP Sees Newfound Energy In Pro-Trump Voters Who Reject His Loss

There are a number of false or misleading claims that have been made about Georgia's 2020 elections, especially in Fulton County, where Joe Biden received more than 72% of the votes. Some of the claims in this ongoing lawsuit have been debunked, such as allegations that "suitcases of ballots" were illegally added into election night counting at State Farm Arena.

WHAT WE KNOW:

• For now, Fulton County's 147,000 absentee ballots are set to be unsealed, with a group of voters and their experts allowed to inspect and scan them in some capacity. For now, there is no mention of checking absentee ballot envelopes for their signatures. And the group seeking access to Fulton's ballots must pay for whatever costs are incurred. But before any logistical meetings can occur, the judge is hearing several motions to dismiss the suit.

• Georgia's votes in the November 2020 election have been counted three times already: the initial results, a full hand count as part of a risk-limiting audit and a machine recount requested by the Trump campaign due to the close margin of victory. All three confirmed the results of Joe Biden winning by about 12,000 votes.

• A monitor hired by the Secretary of State's office found no fraud or misconduct with Fulton County — but "myriad problems" with absentee ballot processing. Carter Jones, a consultant who has a background working with elections in foreign countries, spent nearly 270 hours observing all parts of Fulton's election process. In the report, he pushed back against claims made by former President Trump and other top GOP officials that Georgia — and Fulton in particular — perpetrated election fraud that altered the outcome of the election.

"At no time did I ever observe any conduct by Fulton County election officials that involved dishonesty, fraud, or intentional malfeasance," he wrote. "During my weeks of monitoring, I witnessed neither 'ballot stuffing' nor 'double-counting' nor any other fraudulent conduct that would undermine the validity, fairness, and accuracy of the results published and certified by Fulton County."

• The Georgia Bureau of Investigation analyzed absentee ballot envelope signatures in Cobb County as part of an audit, and found one missing signature and one mistaken signature out of about 15,000 ballots. Their conclusion? "No fraudulent absentee ballots were identified during the audit."

• There is no evidence of fraudulent ballots being added into Fulton County's total. There are no major discrepancies between the number of votes recorded in Fulton County, the number of voters that received credit for voting in Georgia's voter history file and reported totals of absentee voters with the absentee voter file. Put another way, there's no evidence that there are more ballots than people.

• The allegations of "suitcases full of ballots" and workers scanning the same batch of ballots multiple times to pad the totals is not true. As reported earlier, full surveillance video of State Farm Arena shows a box of ballots placed under the table in the morning, then eventually removed to be counted. As for the scanner — if a batch does not fully scan properly, an election worker would remove it from the system, fix the stack, and re-scan again, but the batch of ballots would only be counted once.

• In one of the hand-count audit batches, there are 950 military and overseas votes for Biden and zero for Donald Trump. This is not evidence of a conspiracy or fraud, but rather one of the counters dividing it up that way. Another batch has 130 votes for Trump and zero for Biden. Overall, of the 1,754 military and overseas voters, 1,474 voted for Biden and 266 for Trump, a margin that is unsurprising given Fulton's demographic and political makeup.

• This examination of the ballots is not going to overturn any election results. Donald Trump will not suddenly become president, David Perdue will not become senator and there is no way to "de-certify" Georgia's election results and undo the Electoral College votes that have already happened.

• Claims that Fulton County does not have chain of custody documents for absentee ballot drop boxes are not true, either. Only a small handful of counties in rural, majority-Republican areas failed to track and send those documents to the secretary of state's office.

This story was updated Thursday, May 27 at 11:20 a.m. with new information about a scheduled meeting.