Is it a Georgia crime to possess another voter's absentee ballot, for example to drop it in the mail for an elderly relative?

Plain-English summary

Cases kept landing in front of the Georgia State Election Board involving people who had carried someone else's absentee ballot to a mail receptacle. Sometimes it was a single ballot for an elderly relative; sometimes it was more than a dozen ballots. The Secretary of State asked the Attorney General whether merely possessing another voter's absentee ballot could be charged as a violation of either O.C.G.A. § 21-2-385(a) (the statute that tells voters how to return their absentee ballots) or § 21-2-574 (the felony for possession of an "official ballot" outside the polling place).

AG Sam Olens concluded that mere possession was not a violation of either statute. The reasoning was carefully textual.

For § 21-2-385(a), three points carried the day. First, the statute drew a line between "mailing" and "personally delivering" the absentee ballot, and only "deliver" was modified by the adverb "personally." Mailing an absentee ballot was therefore not "personal delivery" subject to the statute's tight limits on who could perform it. Second, the statute spoke only about what the elector should do; it did not expressly prohibit anyone else's conduct. There was no language in § 21-2-385(a) banning others from holding, possessing, or mailing an absentee ballot. Third, the limited list of relatives and household members who could deliver a disabled elector's ballot in person was a list of who could deliver in person, not a list of the only people who could touch the ballot.

For § 21-2-574 (the felony statute), the AG noted that it referred only to "ballot," not to "absentee ballot." When Georgia recodified its election law in 1964, the General Assembly used "official absentee ballot" as a separate term throughout the code while keeping § 21-2-574's language confined to "official ballot." Reading "ballot" in § 21-2-574 to include absentee ballots would also be absurd, because absentee voters necessarily lawfully possess their ballots outside the polling place, and the statute carved out no exception for them. The canons (expressio unius, noscitur a sociis, and strict construction of criminal statutes) all pointed the same way.

The AG made clear, however, that other related conduct remained chargeable: marking another voter's ballot in a way contrary to that voter's request would violate the felony provisions of § 21-2-568(b); interference with a voter while marking the ballot would violate § 21-2-568(a)(2); and voting absentee while unqualified would violate § 21-2-573. The opinion also acknowledged that compelling policy reasons might exist for criminalizing third-party possession of absentee ballots, but said policy concerns could not create criminal liability where the statute's text did not.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could Georgia prosecute someone for "ballot harvesting" under either of these statutes?
A: Not under either § 21-2-385(a) or § 21-2-574, on the AG's reading. Both statutes were too narrow. § 21-2-385(a) only bound the elector's own conduct (and only as to "personal delivery"), and § 21-2-574 only reached "official ballots" at the polling place.

Q: What about marking another voter's ballot?
A: That was a felony under § 21-2-568(b), which prohibited any person from "register[ing] a vote in any other way than that requested by the voter." The AG specifically flagged this as a charge that could remain available depending on the facts.

Q: Did the Voting Rights Act limit Georgia's enforcement options?
A: Yes. Section 208 of the federal Voting Rights Act (52 U.S.C. § 10508) gave any blind, disabled, or illiterate voter the right to assistance from a person of the voter's choice (other than the voter's employer or union representative) for federal elections. Georgia's narrower list of acceptable assisters in § 21-2-385 could not be enforced in federal elections, per Holton v. Hollingsworth and 1984 Op. Att'y Gen. 84-15.

Q: Why did the AG emphasize strict construction of criminal statutes?
A: § 21-2-574 was a felony provision. Georgia courts have long held criminal statutes must be strictly construed against the state and in favor of the defendant. Reading "ballot" to include "absentee ballot" would have been an expansive construction, exactly what the strict-construction rule disallows.

Q: What about a person who personally walked their disabled neighbor's sealed envelope into the post office?
A: The opinion treated that as not violating § 21-2-385(a) for two reasons. The neighbor was mailing, not personally delivering to election officials, and the statute's tight personal-delivery list applied only to in-person delivery to election offices.

Q: Could the Secretary of State have charged the people whose cases prompted the opinion?
A: Not under the two statutes the Board kept invoking. Other charges might apply if the facts showed marking, intimidation, or other separately-criminalized conduct. But mere possession and mere transport to a mailbox were not crimes under those provisions.

Background and statutory framework

Georgia's absentee-voting framework in O.C.G.A. § 21-2-385 dates back, in substantively similar form, to the 1964 Election Code. The elector marks the ballot, places it in a "secure envelope" marked "Official Absentee Ballot," then puts that into a second envelope bearing an oath. The elector "shall then mail or personally deliver" the envelope to the registrar or absentee ballot clerk.

The disabled-voter exception in § 21-2-385(a) lets a defined list of relatives or household members deliver the ballot in person on the disabled elector's behalf, with proof of relationship. The statute is silent on who may carry the ballot to a mailbox or post office.

§ 21-2-574 sits in the criminal sections of Title 21. It traces to the 1964 Election Code (former Ga. Code Ann. § 34-1912) which prohibited possession of an "official ballot or ballot card" outside the polling place. The General Assembly drafted that provision against the backdrop of the same 1964 Code that separately defined "official absentee ballot" and contemplated absentee voters lawfully possessing those ballots at home. Reading the felony to reach absentee ballots would have made every absentee voter a felon.

The opinion's policy posture is notable. The AG made clear that compelling policy arguments existed for limiting third-party possession of absentee ballots (the modern term is "ballot harvesting"), but said it was not the AG's role to read those policy preferences into statutes that did not contain them. If the General Assembly wanted to criminalize third-party possession, it could amend the law.

Citations and references

Statutes:
- O.C.G.A. § 21-2-385 (return of absentee ballot)
- O.C.G.A. § 21-2-568 (improper voting and influence)
- O.C.G.A. § 21-2-573 (voting while unqualified)
- O.C.G.A. § 21-2-574 (felony possession of ballot outside polling place)
- 52 U.S.C. § 10508 (federal voter-assistance right)

Cases:
- Deal v. Coleman, 294 Ga. 170 (2013) (read text "in its most natural and reasonable way")
- Holton v. Hollingsworth, 270 Ga. 591 (1999) (state restriction on voter assistance unenforceable in federal election)
- Mitchell v. State, 239 Ga. 3 (1977) (criminal statutes strictly construed against the state)

Source

• Landing page: https://law.georgia.gov/opinions/2016-2

Original opinion text

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 tacitum (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.[1] 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, "[s]tatutes 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] register[ing] 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. [1] 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. Prepared by: Cristina M. Correia Assistant Attorney General