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A federal judge expressed bafflement Friday at the legal underpinnings of a Republican-led lawsuit seeking to disqualify some voters who recently registered in Georgia, just weeks in advance of a pair of hotly contested runoff elections that will dictate control of the U.S. Senate.
The Georgia Republican Party, NRSC and the campaigns of Sens. Kelly Loeffler and David Perdue filed a suit Thursday arguing that data on new registrations indicate they include hundreds of voters who already cast ballots in other states with Senate races this year.
However, following a hearing that stretched to more than two hours Friday afternoon, U.S. District Judge Lisa Godbey Wood denied the Republicans’ request for an emergency order setting aside all ballots cast by tens of thousands of voters registered since the Nov. 3 election.
Wood questioned the basis for the suit on several grounds, including legal standing, but she also expressed concern that segregating ballots could prompt some potential voters not to cast them.
“We do have a risk of suppressing other voters from coming in,” the judge said. “I’m concerned on a number of levels with what it would mean to at this point switch course. ... There might be voters who are confused about what it means to have your vote set aside for possible later questioning.”
Earlier in the session, the judge scoffed at a GOP lawyer who claimed that data from matching voter rolls showed voters had cast ballots in two different Senate races or were about to do so.
“The fact that someone voted in California, for example, in the November election and the fact they then vote in Georgia for the January election doesn’t prove that they voted for Senate twice,” said Wood, an appointee of President George W. Bush. “That is what Aristotelian logic tells us. That, by itself, it proves nothing.” (California did not hold a Senate election this year.)
A lawyer for the GOP and the campaigns, George Meros, said the data suggest there were 400 to 500 newly registered people who voted in the November election in other states with Senate contests this year. Meros, who is based in Florida, described some people as having “raced” to Georgia to register and he said the facts “suggest very strongly that it is no accident.”
“I respectfully suggest there is more than just an even chance that some voted or will vote twice” for Senate, Meros said.
Meros asked Wood to issue an order to segregate ballots cast by recent registrants from those cast by individuals already on the rolls. But the judge noted that to get that kind of order at the outset of the case, a litigant needs to make a strong showing that they will prevail and that a serious harm is imminent.
“Remember, this an extraordinary relief that you seek. You can’t just come in here and say, ‘We think this might have happened.’ You’ve got an extraordinary burden to bear and right now, at best, is all you can say is somebody voted for something in one state and somebody wants to vote for something else in another state, but I don’t see any proof that anybody voted for a senator twice,” said the judge, who sits in coastal Brunswick, Ga.
In particular, Wood sounded skeptical that the relief the Republicans sought would actually help resolve any complaints Republicans raised.
“How would setting aside these ballots result in proving someone voted for the Senate twice?” Wood asked the state at one point.
Meros said some voters, if questioned, might admit to voting in more than one Senate contest. But the judge seemed deeply skeptical about interrogating voters.
“They could take the Fifth,” she said, referring to the 5th Amendment protection against self-incrimination.
Republican Secretary of State Brad Raffensperger has repeatedly warned against out-of-state people registering in Georgia with the sole purpose of voting in the runoff. His office has opened one investigation in such a case — against a Republican attorney from Florida.
“Those who move to Georgia just to vote in the Senate runoffs with no intention of staying are committing a felony that is punishable with jail time and hefty fines,” Raffensperger said in a statement earlier this month, when he announced an investigation into the Floridian. “They will be found, they will be investigated, and they will be punished.”
The state also argued Friday that the Republican plaintiffs moved too slowly.
“What is this case? It is a belated attempt to change the rules of the game as the clock strikes midnight,” said Russ Willard, the top elections lawyer in the Georgia attorney general’s office. “We are halfway over the waterfall of the election. We are seeing the tidal pool at the bottom."
“We would be in a situation of trying to change the wheels on the car while going down the interstate,” Willard continued, saying a change like this would be disruptive.
The lawsuit filed Thursday contends that a criminal provision in the federal Voting Rights Act that prohibits individuals from voting for “the same candidacy or office" makes it illegal for some newly registered voters to vote in the Jan. 5 runoff.
However, lawyers for the state and local officials said that provision is ambiguous. Willard said reading it the way the plaintiffs do might even make it illegal for long-established Georgians to have voted in the November general election and again in next month’s runoff.
It was the third case brought by Republicans in the past two days that a federal judge heard and dismissed or denied relief in ahead of the closely watched runoffs. The previous two cases sought to restrict the absentee-voting process through various methods.
The first of the two cases was also brought by the state party, NRSC and Perdue and Loeffler’s campaigns, which sought to tighten the signature verification process for absentee ballots. Judge Eleanor Louise Ross, an appointee of former President Barack Obama, found that the Republican plaintiffs lacked standing and dismissed the case from the bench.
Republican attorneys in that case tried to distance themselves from the legal efforts of Trump’s team and its allies. “I’m not Sidney Powell. I’m not Lin Wood. I’m not Rudy Giuliani,” former acting Attorney General George Terwilliger, who was one of the attorneys arguing the case on behalf of the plaintiffs, said. “We have nothing to do with that.”
Despite having similar plaintiffs, the attorneys are different for the two cases. There is an outstanding case from the Georgia Republican Party and Republican National Committee in state court where some of the attorneys who argued Friday’s case are representing the GOP. A hearing is scheduled for Christmas Eve in that case.
Earlier on Thursday, a different district judge shot down a third case, also from the bench. This lawsuit, filed by the 12th Congressional District Republican Committee and others, sought to block drop boxes, stop ballots from being opened until Election Day and more.
District Judge James Randal Hall, another Bush appointee, also said that the plaintiffs did not have standing to bring their case. But he went further than Ross — saying even if they did, he still would not have granted the requested relief because of the closeness of the election.
"We are not on the eve of an election. We are, as this relates to this particular election, we are closing in on halftime. Absentee ballots have already been printed and mailed, and in some cases returned," Hall said.