TITLE 21 ELECTIONS

Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.

ARTICLE 10 ABSENTEE VOTING

21-2-385. Procedure for voting by absentee ballot; advance voting.

At any time after receiving an official absentee ballot, but before the day of the primary or election, except electors who are confined to a hospital on the day of the primary or election, the elector shall vote his or her absentee ballot, then fold the ballot and enclose and securely seal the same in the envelope on which is printed "Official Absentee Ballot." This envelope shall then be placed in the second one, on which is printed the form of the oath of the elector, the name, relationship, and oath of the person assisting, if any, and other required identifying information. The elector shall then fill out, subscribe, and swear to the oath printed on such envelope. Such envelope shall then be securely sealed and the elector shall then mail or personally deliver same to the board of registrars or absentee ballot clerk, provided that delivery by a physically disabled elector may be made by any adult person upon satisfactory proof that such adult person is such elector's mother, father, grandparent, aunt, uncle, brother, sister, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, sister-in-law, or an individual residing in the household of such disabled elector. An elector who is confined to a hospital on a primary or election day to whom an absentee ballot is delivered by the registrar or absentee ballot clerk shall then and there vote the ballot, seal it properly, and return it to the registrar or absentee ballot clerk. If the elector registered to vote for the first time in this state by mail and has not previously provided the identification required by Code Section 21-2-220 and votes for the first time by absentee ballot and fails to provide the identification required by Code Section 21-2-220 with such absentee ballot, such absentee ballot shall be treated as a provisional ballot and shall be counted only if the registrars are able to verify the identification and registration of the elector during the time provided pursuant to Code Section 21-2-419.
A physically disabled or illiterate elector may receive assistance in preparing his or her ballot from one of the following: any elector who is qualified to vote in the same county or municipality as the disabled or illiterate elector; an attendant care provider or a person providing attendant care; or the mother, father, grandparent, aunt, uncle, brother, sister, spouse, son, daughter, niece, nephew, grandchild, son-in-law, daughter-in-law, mother-in-law, father-in-law, brother-in-law, or sister-in-law of the disabled or illiterate elector. The person rendering assistance to the elector in preparing the ballot shall sign the oath printed on the same envelope as the oath to be signed by the elector. If the disabled or illiterate elector is sojourning outside his or her own county or municipality, a notary public of the jurisdiction may give such assistance and shall sign the oath printed on the same envelope as the oath to be signed by the elector. No person shall assist more than ten such electors in any primary, election, or runoff in which there is no federal candidate on the ballot. Any person who willfully violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be sentenced to imprisonment for not less than one nor more than ten years or to pay a fine not to exceed $100,000.00, or both, for each such violation.
When an elector applies in person for an absentee ballot, after the absentee ballots have been printed, the absentee ballot may be issued to the elector at the time of the application therefor within the confines of the registrar's or absentee ballot clerk's office if such application is made during the advance voting period as provided in subsection (d) of this Code section or may be mailed to the elector, depending upon the elector's request. If the ballot is issued to the elector at the time of application, the elector shall then and there within the confines of the registrar's or absentee ballot clerk's office vote and return the absentee ballot as provided in subsections (a) and (b) of this Code section. In the case of persons voting in accordance with subsection (d) of this Code section, the board of registrars or absentee ballot clerk shall furnish accommodations to the elector to ensure the privacy of the elector while voting his or her absentee ballot.
1. There shall be a period of advance voting that shall commence:
  1. On the fourth Monday immediately prior to each primary or election;
  2. On the fourth Monday immediately prior to a runoff from a general primary;
  3. On the fourth Monday immediately prior to a runoff from a general election in which there are candidates for a federal office on the ballot in the runoff; and
  4. As soon as possible prior to a runoff from any other general election in which there are only state or county candidates on the ballot in the runoff
    and shall end on the Friday immediately prior to each primary, election, or runoff. Voting shall be conducted during normal business hours on weekdays during such period and shall be conducted on the second Saturday prior to a primary or election during the hours of 9:00 A.M. through 4:00 P.M.; provided, however, that in primaries and elections in which there are no federal or state candidates on the ballot, no Saturday voting hours shall be required; and provided, further, that, if such second Saturday is a public and legal holiday pursuant to Code Section 1-4-1, if such second Saturday follows a public and legal holiday occurring on the Thursday or Friday immediately preceding such second Saturday, or if such second Saturday immediately precedes a public and legal holiday occurring on the following Sunday or Monday, such advance voting shall not be held on such second Saturday but shall be held on the third Saturday prior to such primary or election. Except as otherwise provided in this paragraph, counties and municipalities may extend the hours for voting beyond regular business hours and may provide for additional voting locations pursuant to Code Section 21-2-382 to suit the needs of the electors of the jurisdiction at their option.
2. The registrars or absentee ballot clerk, as appropriate, shall provide reasonable notice to the electors of their jurisdiction of the availability of advance voting as well as the times, dates, and locations at which advance voting will be conducted. In addition, the registrars or absentee ballot clerk shall notify the Secretary of State in the manner prescribed by the Secretary of State of the times, dates, and locations at which advance voting will be conducted.

(Ga. L. 1924, p. 186, § 4; Code 1933, § 34-3303; Ga. L. 1953, Jan.-Feb. Sess., p. 579, § 1; Ga. L. 1955, p. 204, § 3; Ga. L. 1955, p. 732, § 3; Ga. L. 1956, p. 682, §§ 3, 4; Code 1933, § 34-1406, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1965, p. 119, § 1; Ga. L. 1968, p. 871, § 16; Ga. L. 1969, p. 329, § 22; Ga. L. 1974, p. 71, §§ 6-8; Ga. L. 1977, p. 683, § 1; Ga. L. 1980, p. 1256, § 4; Ga. L. 1981, p. 1718, § 8; Ga. L. 1983, p. 140, § 1; Ga. L. 1985, p. 496, § 14; Ga. L. 1986, p. 32, § 1; Ga. L. 1986, p. 932, § 6; Ga. L. 1988, p. 641, § 2; Ga. L. 1989, p. 1742, § 2; Ga. L. 1990, p. 143, § 5; Ga. L. 1992, p. 2510, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 39; Ga. L. 2006, p. 888, § 4/HB 1435; Ga. L. 2007, p. 536, § 2/SB 40; Ga. L. 2010, p. 914, § 21/HB 540; Ga. L. 2011, p. 697, § 3/HB 92; Ga. L. 2014, p. 1, § 6/HB 310; Ga. L. 2016, p. 173, § 4/SB 199; Ga. L. 2017, p. 697, § 18/HB 268.)

The 2006 amendment, effective January 1, 2007, in subsection (b), inserted "; an attendant care provider or a person providing attendant care;" near the beginning, and added "in which there is no federal candidate on the ballot" at the end.

The 2007 amendment, effective July 1, 2007, added the last sentence in subsection (b).

The 2010 amendment, effective July 1, 2010, in subsection (c), substituted the present first and second sentences for the former first sentence, which read "When an elector applies in person for an absentee ballot, after the absentee ballots have been printed, the absentee ballot shall be issued to the elector at the time of the application therefor within the confines of the registrar's or absentee ballot clerk's office; and the elector shall then and there vote and return the absentee ballot as provided in subsections (a) and (b) of this Code section."

The 2011 amendment, effective July 1, 2011, in subsection (c), inserted "if such application is made during the advance voting period as provided in subsection (d) of this Code section" near the end of the first sentence, and substituted "In the case of persons voting in accordance with subsection (d) of this Code section, the" for "The" at the beginning of the third sentence; and added subsection (d).

The 2014 amendment, effective January 21, 2014, substituted the present provisions of paragraph (d)(1) for the former provisions, which read: "There shall be a period of advance voting that shall commence on the fourth Monday immediately prior to each primary or election and as soon as possible prior to a runoff and shall end on the Friday immediately prior to each primary, election, or runoff. Voting shall be conducted during normal business hours on weekdays during such period and shall be conducted on the second Saturday prior to a primary or election during the hours of 9:00 A.M. through 4:00 P.M.; provided, however, that in primaries and elections in which there are no federal or state candidates on the ballot, no Saturday voting hours shall be required. Except as otherwise provided in this paragraph, counties and municipalities may extend the hours for voting beyond regular business hours and may provide for additional voting locations pursuant to Code Section 21-2-382 to suit the needs of the electors of the jurisdiction at their option."

The 2016 amendment, effective April 26, 2016, added the last proviso in the next to the last sentence of the ending undesignated paragraph in paragraph (d)(1).

The 2017 amendment, effective July 1, 2017, substituted "primary or election" for "primary, election, or runoff" at the end of the next to last sentence of the ending undesignated paragraph of paragraph (d)(1).

Administrative Rules and Regulations.

- Provisional absentee ballots, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Absentee Voting, Sec. 183-1-14-.03.

Law reviews.

- For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For article on the 2014 amendment of this Code section, see 31 Ga. St. U.L. Rev. 93 (2014).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, decisions under Code 1933, § 34A-1006 and former Code Section 21-3-188 are included in the annotations for this Code section.

Voter must remove stubs before mailing.

- Unless stubs on ballots are removed by voter a prior to being mailed, ballots are void. Nobles v. Osborne, 124 Ga. App. 454, 184 S.E.2d 207 (1971), cert. denied, 409 U.S. 853, 93 S. Ct. 183, 34 L. Ed. 2d 96 (1972) (decided under former Code 1933, § 34A-1006).

Who may mail ballots for a voter.

- In an election contest, the election winner was not entitled to attorney fees under O.C.G.A. § 9-15-14(a). Given the language of O.C.G.A. § 21-2-385(a) as to who could mail ballots for a voter, the complaint could not be described as lacking any justiciable issue of law or fact, and a sufficient number of ballots could have been found invalid so as to change the election result. Kendall v. Delaney, 283 Ga. 34, 656 S.E.2d 812 (2008).

Applicability when candidate for federal office on ballot.

- Subsection (b) cannot be enforced when a candidate for federal office is on the ballot. See 42 U.S.C. § 1973aa-6; 1984 Op. Att'y Gen. No. 84-15. Also, improperly taking ballots from voters and placing them in the mail were not "irregularit[ies] affecting the lawfulness of the ballot[s] to the extent that [they] should be discounted or thrown out." Kendall v. Delaney, 282 Ga. 482, 651 S.E.2d 685 (2007) (quoting superior court's finding).

Invalidation of election reversed on appeal.

- Trial court erred by invalidating an election for sheriff and ordering a new election because the evidence of systemic misconduct for vote buying and alleged wrongful distribution of absentee ballots was speculative and insufficient to support the trial court's conclusion that irregularities cause doubt on the results. Meade v. Williamson, 293 Ga. 142, 745 S.E.2d 279 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Restrictions unenforceable in presidential preference primary.

- The restrictions contained in O.C.G.A. § 21-2-409, limiting the class of persons permitted to assist disabled or illiterate electors at the polls, and the restrictions contained in O.C.G.A. § 21-2-385, limiting the class of persons permitted to assist disabled or illiterate electors voting by absentee ballot, cannot be enforced in the presidential preference primary nor can the limitations contained in these Code sections concerning the number of persons one individual may assist be enforced. 1984 Op. Att'y Gen. No. 84-15.

Delivery of ballots to hospitalized individuals.

- Registrars may deliver absentee ballots to individuals hospitalized on the date of a primary or election or at times prior to the primary or election. 1990 Op. Att'y Gen. No. 90-30.

Possession of voter's absentee ballot.

- The mere possession of another voter's absentee ballot does not constitute unlawful possession of an absentee ballot under either O.C.G.A. § 21-2-385(a) or O.C.G.A. § 21-2-574. 2016 Op. Att'y Gen. No. 16-2.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 243, 336.

C.J.S.

- 29 C.J.S., Elections, § 330 et seq.

ALR.

- Validity, construction, and application of early voting statutes, 29 A.L.R.6th 343.

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