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Judge Rules Against Georgia Elections Chief in Records Case

ATLANTA — A federal judge has rejected Georgia officials’ arguments in an election-related lawsuit and ruled that information being sought by a journalist and an activist is subject to public disclosure.

Greg Palast confronts Brian Kemp.

Investigative journalist Greg Palast and civil rights activist Helen Butler are seeking lists that were produced as part of Georgia’s involvement in a database designed to share voter registration data between participating states.

The Interstate Voter Registration Crosscheck Program, created by the Kansas Secretary of State’s office in 2005, was promoted as a way to compare voter registration lists to identify people registered in more than one state. The program’s stated purpose was to clean voter records and prevent voter fraud, but it has been criticized for a high error rate and lax security.

Palast and Butler sued Georgia’s then-Secretary of State Brian Kemp in October 2018 for original copies of the 2016 and 2017 lists provided to his office by Crosscheck. They argued that Crosscheck “has been determined to disproportionately impact voters of color.”

Kemp, a Republican, served as the state’s top elections official when he narrowly beat Democrat Stacey Abrams in the 2018 governor’s race. He was repeatedly accused of voter suppression by Abrams and her allies. He vehemently denied the allegations.

State lawyers argued that the secretary of state’s office wasn’t required to keep the records that Palast and Butler are seeking, and that the plaintiffs sought documents they knew the secretary of state’s office didn’t have. They argued the lawsuit should be dismissed.

U.S. District Judge Eleanor Ross wrote in a Feb. 4 order that Palast and Butler “are entitled to access to the 2016 and 2017 Crosscheck lists.”

Palast and Butler had cited a provision of the National Voter Registration Act of 1983 that requires election officials to retain and make available for at least two years “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.”

Lawyers for the state argued that Georgia didn’t use information from Crosscheck to challenge or remove voter registrations and, therefore, had no obligation to keep that data.

Ross noted that when Georgia joined Crosscheck, it agreed to language that says participating states “agree to share voter registration information for the purposes of cross checking and identifying duplicate registrations and instances of multiple votes by the same individuals.”

For that reason, the argument that the state didn’t use the lists for any review of its registered voters is “unpersuasive”, Ross wrote.

No evidence has been provided to show that the secretary of state’s office actually has the lists, but the record does show that the requests for the lists were timely and that the lists must be kept for two years, Ross wrote.

Ross’ order came in response to a request by state lawyers for summary judgment, which means that a judge rules in favor of one party and against the other based on the facts in the case without going to trial.

Ross said in her order that she believes summary judgment in favor of the state is inappropriate and that she’s considering entering summary judgment in favor of Palast and Butler. She gave the state 30 days to respond, and said Palast and Butler will have 14 days from the state’s filing to respond.

Current Secretary of State Brad Raffensperger’s office did not respond to an email seeking comment Tuesday.

The Crosscheck program compares registration lists and uses voters’ first and last names and dates of birth to determine whether someone is registered in more than one state. Critics allege that it produces a high number of false matches.

The Kansas secretary of state’s office said last month that the future of the program is uncertain after its champion, former secretary of state Kris Kobach lost his bid to become governor and is no longer an elected official.

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