Georgia Advisory Opinions June 15, 2016: AGO 2016-2 (June 15, 2016)

Advisory Opinion Text

To:

Secretary of State

Re:

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 § 21-2-574.

Questions have repeatedly been raised by cases before the State Election Board ("Board") whether possession of another voter's absentee ballot constitutes a violation of either O.C.G.A. § 21-2-385(a) or § 21-2-574. My opinion is that the mere possession of another voter's absentee ballot does not constitute a violation of either statute.

The statute containing directives on how voters are to return their absentee ballots, O.C.G.A. § 21-2-385, instructs voters to place their absentee ballot inside the secure envelope which is marked "Official Absentee Ballot." O.C.G.A. § 21-2-385(a). The voter then puts that ballot envelope inside another envelope which contains an oath for the voter and anyone assisting the voter with the ballot. The statute then provides:

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.

O.C.G.A. § 21-2-385(a) (emphasis added).

In the past, cases have been considered by the Board where individuals have aided voters, typically the elderly or disabled, by transporting the absentee ballots of those voters to a designated mail receptacle. Other cases have addressed situations involving a person carrying a single ballot to be mailed to well over a dozen ballots being carried to a mail receptacle. Similarly, cases have been considered when the possession consists of walking down the sidewalk or driveway to place the ballot in the voter's own mailbox as well as when the ballots have been carried into the local post office for mailing. None of those situations, however, violate the express statutory terms of O.C.G.A. § 21-2-385(a) for two distinct reasons. First, the statute draws a distinction between mailing and delivery of the absentee ballot, modifying only delivery with the adverb "personally." This distinction is evidenced both by the limitation on those who can deliver the ballot of a disabled voter and grammatical construction. Second, the statute is directed only at the elector and does not expressly proscribe the conduct of others.

While O.C.G.A. § 21-2-385(a) provides that, in the event of a physical impairment, certain specified persons may deliver the envelope "upon satisfactory proof that such adult person is [one of the persons permitted by statute], " the statute is silent as to how voters permissibly may have their ballots mailed, i.e., by personally walking to the mailbox or by asking someone else to place the ballot in the U.S. mail. Id. The statute clearly contemplates personal delivery when discussing delivery to the election office by anyone other than the voter because proof of the person's identity as someone permitted by statute to deliver the ballot is required. Therefore, "mailing" an absentee ballot cannot be considered "delivery" under the statute.

Rules of grammatical construction also support this reading of O.C.G.A. § 21-2-385(a). The adverb "personally" follows the disjunctive "or" but immediately precedes the verb "deliver." Therefore, the word "personally" modifies the word deliver and not mail. See Chicago Manual of Style § 5-155 (15th ed. 2003) (describing proper placement of adverb as "near as possible to the word it is intended to modify."); 30 (3d ed. 1979). The Georgia Supreme Court has instructed that we are to read statutory text "in its most natural and reasonable way, as an ordinary speaker of the English language would." Deal v. Coleman, 294 Ga. 170, 172-73 (2013). Applying rules of grammatical construction, "if the statutory text is 'clear and unambiguous, ' we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." Deal, 294 Ga. at 173 (quoting Opensided MRI of Atlanta v. Chandler , 287 Ga. 406, 407 (2010)). Here, the plain meaning of the statute is clear: the modifier "personally" describes only the manner of hand delivery to election officials and not the antecedent steps necessary to use the postal service.

Finally, the statute instructs only the voter casting an absentee ballot to mail the envelope containing the absentee ballot; it does not expressly prohibit others from any conduct. There is no language in this statute expressly prohibiting others from holding, possessing, or mailing the absentee ballot. Therefore, administrative actions against persons for "possessing" or "mailing" another voter's absentee ballot find no textual support in O.C.G.A. § 21-2-385(a).

A related statute, O.C.G.A. § 21-2-574, makes it a felony to possess a ballot outside of the polling place. The statute provides:

Any person, other than an officer charged by law with the care of ballots or a person entrusted by any such officer with the care of the same for a purpose required by law, who has in his or her possession outside the polling place any official ballot shall be guilty of a felony.

O.C.G.A. § 21-2-574 (emphasis added). This statute uses only the term ballot and does not include the term absentee ballot.

The cardinal rule of statutory construction requires . . . [c]ourt[s] to look diligently for the intention of the General Assembly [O.C.G.A. § 1-3-1], and the golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to [e]nsure that the legislature meant something else. Absent clear evidence that a contrary meaning was intended by the legislature, we assign words in a statute their ordinary, logical, and common meanings.

Turner v. Ga. River Network, 297 Ga. 306, 308 (2015) (quoting Judicial Council of Georgia v. Brown & Gallo, LLC, 288 Ga. 294, 296-97 (2010)). Here, the plain meaning of the words in the statute does not support a reading of the term ballot to include an absentee ballot. Additionally, the legislature uses the term absentee ballot throughout the election code when referring to absentee voting and the fact that it does not use that term in O.C.G.A. § 21-2-574 further supports construing the statute more narrowly to refer only to ballots at the polling place. "[U]nder the rules governing statutory construction, 'statutes in pari materia, i.e., statutes relating to the same subject matter, must be construed together.'" Lue v. Eady, 297 Ga. 321, 326 (2015) (quoting Willis v. City of Atlanta , 285 Ga. 775, 776 (2009)); see also Zaldivar v. Prickett, 297 Ga. 589, 605 (2015) (same).

Moreover, the prohibition against possession of a ballot outside of the polling place applies to anyone "other than an officer charged by law." O.C.G.A. § 21-2-574. The statute makes no exception for absentee voters to possess their own ballots outside of the polling place. Since absentee voters necessarily lawfully possess their ballots outside of the polling place, the word "ballot" in this statute cannot include an absentee ballot. Such a reading is likewise supported by two of the main canons of statutory construction:

'expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).'

Turner v. Ga. River Network , 297 Ga. 306, 308 (2015) (quoting Hammock v. State, 277 Ga. 612, 615 (2004)). The relevant statutory language lists only the officer charged by law or someone entrusted by that same officer as permissibly possessing a ballot outside of the polling place. Notably absent from the list of individuals exempted from criminal liability under an impermissibly expansive reading of O.C.G.A. § 21-2-574 are the absentee voter or, in the case of a disabled elector, an individual entrusted by the elector with delivery of the absentee ballot. See O.C.G.A. § 21-2-385(a) ("delivery by a physically disabled elector may be made by any adult person" who is one of a delineated set of relatives or who lives in the household of the disabled elector). The statutory language simply makes no sense if the word ballot is construed to include an absentee ballot. Likewise, the inclusion of the term "outside the polling place" gives further evidence that the General Assembly intended that this provision does not apply to absentee ballots under the canon of noscitur a sociis, where the meaning of a word can be known from the accompanying words in the statutory provision. See, e.g., Warren v. State, 294 Ga. 589, 590-91 (2014) (the terms in statutory provisions "should be understood in relation to each other, since '[w]ords, like people, are judged by the company they keep.' (quoting Hill v. Owens, 292 Ga. 380, 383 (2013))).

The historical use of the term official ballot in Georgia's election code also weighs against expanding the term to include absentee ballots. In 1964 the Georgia legislature enacted a comprehensive election code. 1964 Ga. Laws 26. The 1964 law included the nearly identical statutory language currently codified at O.C.G. A. § 21-2-574. See 1964 Ga. Laws 26, 189. This comprehensive Act included a provision for "official absentee ballots" to "be in substantially the form for ballots required by Chapter 34-11, " which governed the form of official ballots. Ga. Code Ann. § 34*1403 (1980). The legislature's distinction between official ballot and official absentee ballot in the 1964 legislation is important because the language making it a felony to possess an "official ballot" outside of the polling place has not substantively changed since 1964. The 1964 legislation clearly prohibited only the possession of an official ballot, not an official absentee ballot.

Additionally, O.C.G.A. § 21-2-574 is a criminal statute, with violations punishable as felonies. In interpreting O.C. G.A. § 21-2-574, then, one must read the statute narrowly, construing any ambiguity against the state and in favor of the individual accused of violating the statutory provisions. See Mitchell v. State, 239 Ga. 3 (1977) ("It has always been the law that criminal statutes must be strictly construed against the state."). Additionally, "[statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation, and this principle is particularly compelling when interpreting criminal statutes." State v. Johnson, 269 Ga. 370, 371 (1998). Here, the most natural reading of the statute, based on both the plain language of the statute as well as the historical evolution of the election code, makes clear that the appropriate interpretation of O.C.G. A. § 21-2-574 is that it applies only to official ballots issued, and cast, at the polling place, rather than a forced construction that is read to include absentee ballots within the statute's ambit.

Finally, the voting assistance provisions in section 208 of the Voting Rights Act also provide guidance on who may assist a disabled or illiterate elector in federal elections, including assisting for purposes of mailing or delivering the absentee ballot of the disabled or illiterate voter. 52 U.S.C. § 10508, formerly 42 U.S.C. § 1973aa-6; see also Holton v. Hollingsworth, 270 Ga. 591, 593 (1999) (explaining that O.C.G.A. § 21-2-385, which sets forth who may assist a disabled or illiterate voter, may not be enforced in a federal election, and that compliance with the statute is not a "mandatory condition of the counting of the absentee ballot"); 1984 Op. Att'y Gen. 84-15 (O.C.G.A. § 21-2-385, to extent it limits the class of persons that may assist a voter with an absentee ballot, may not be enforced in Presidential Preference Primary). The terms of O.C.G.A. § 21-2-574 likewise cannot be construed to prevent voters from receiving assistance, including assistance in mailing or delivering an absentee ballot, from anyone of their choosing and not otherwise prohibited by section 208 of the Voting Rights Act.

There may be circumstances where, with proof of additional facts, individuals can be charged for their conduct in relation to interaction with an absentee voter and that voter's absentee ballot. An individual marking an elector's absentee ballot in contravention of that elector's expressed desire would violate the felony provisions of O.C.G.A. § 21-2-568(b), which prohibits "any person . . . [from] registering] a vote in any other way than that requested by the voter." In the same manner, it would follow that marking another voter's absentee ballot unbeknownst to that other elector may support, depending on the particular facts, a violation of O.C.G. A. §§ 21-2-568(b) (influencing a voter), 21-2-568(a)(2) (interfering with a voter marking the voter's ballot), or 21-2-573 (voting absentee by "any person . . . who knows that he or she is not qualified to vote").

I am also aware that compelling policy justifications may exist for preventing a person from possessing the absentee ballot of another voter. However, those policy reasons, regardless of how compelling they might well be, cannot create a case for imposition of criminal or civil liability on a person where the actual text of the statutes does not support a finding of a violation.

Therefore, it is my official opinion that the simple possession of another voter's absentee ballot does not constitute a violation of either O.C.G.A. § 21-2-385(a) or § 21-2-574.

Prepared by:

Cristina M. Correia, Assistant Attorney General.

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Notes:

The only changes between the 1964 law and the current statute is that the phrase "or ballot cards" was deleted immediately after the word ballots and the phrase "or ballot card" was deleted immediately following the term "official ballot." Compare Ga. Code Ann. § 34-1912 (1980), with O.C.G.A. § 21-2-574.

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