UPDATED: Recognizing the burden and near impossibility, Abrams this evening said she would not file this lawsuit. Instead, she will start a new group and file a separate lawsuit seeking to change Georgia’s voting laws. She has now acknowledged her defeat.
It is a highly unusual move. Stacey Abrams has fallen short of 17,594 votes she needs to make it into a runoff with Brian Kemp and has fallen short of the 54,801 votes she would need to win out right. So Abrams’ campaign intends to file a lawsuit to have the entire election thrown out and started over.
This is unheard of at the state level and will probably be swiftly kicked out of court for a variety of reasons.
The Abrams campaign is relying on a statute that says a new election can occur for “misconduct, fraud or irregularities … sufficient to change or place in doubt the results.” Case law in Georgia does not support her claim. I have actually defended elections in Georgia under this standard and it is extremely difficult for Abrams to meet.
The reason it is extremely difficult for Abrams to meet is because Georgia and federal case law presume no election is run smoothly. Every single election has problems. On top of that, in Georgia each county conducts its own elections. The Secretary of State of Georgia does not actually conduct the elections unlike the Abrams claim. Technically, Abrams will need to show flaws in each county, not just cumulatively, because she is dealing with 159 county boards of elections.Under Georgia case law, she will need to begin with a mathematical formula for election irregularity. Essentially, under Georgia law, Abrams cannot find 17,594 voters who had problems voting. She would have to start with 10,577 votes, which is the difference between total votes cast in the Georgia election and the total votes cast in the Governor’s race. Why? Because under Georgia law we cannot presume that a voter who voted in the election actually voted in that particular race. The data bears that out. More voters voted in the election total than voted in the Governor’s race by a margin of 10,577 votes.
Likewise, under Georgia law, we cannot presume or ask in a court who someone voted for. So we must add to that 10,577 number the difference between Abrams and Kemp, which is 54,801 votes. In other words, Abrams must at a minimum find 65,378 voters who can show there was sufficient misconduct, fraud, or irregularities that kept them from voting in the election.
Long lines and lack of machines are, under Georgia law, not sufficient. Compliance with existing laws, including the exact-match voter registration law is not sufficient. On top of that, remember, she will have to prove it through the various election methodologies of the 159 counties. In fact, Georgia law suggests that if she wants a trial by jury, which a judge is under no obligation to grant, she would have to have a jury in each county where she thinks there was “misconduct, fraud or irregularities.” Additionally, if she is making her complaint based on the conduct of the Secretary of State prior to the election, her case will most likely be thrown out because she did not file suit prior to the election. Georgia statutes and case law largely prohibit lawsuits after elections for conduct that occurred before the election.
The Georgia election saw turnout surpassing the 2014 election and it almost matched the 2016 turnout. Likewise, many of the counties were overwhelmed by an absentee and provisional balloting strategy that Abrams herself deployed. Likewise, the state of Georgia and federal law prefers more limited remedies focused on counties wherein Abrams thinks there was major irregularity. She would have to sue local boards of election in Democrat strongholds to make those claims.
Abrams is just trying to keep this going until the runoff in order to fan the flames of division to help the Democrats’ Secretary of State nominee. The suit is without merit. She will lose.