What legal standards govern the preservation and production of ballots, tabulation tapes and audit materials in Georgia post‑election?
Executive summary
Georgia law sets specific statutory duties for the safekeeping, storage, scanning and limited disclosure of absentee ballots and related materials after an election, most notably within O.C.G.A. §21-2-386 which requires secure storage, documented access and mandates digital imaging of absentee ballots; courts have also ordered that ballots not be destroyed pending litigation, and recent State Election Board rulemaking and litigation have sought—but in part failed—to change post‑election procedures [1] [2] [3] [4]. This analysis summarizes the statutory baseline, the role of administrative rules and court orders, and the competing political and legal pressures shaping how ballots, tabulation tapes and audit materials are preserved and produced in Georgia.
1. Statutory baseline: safekeeping, access controls and destruction timelines
Georgia’s election code imposes explicit safekeeping duties for absentee ballots: county registrars or absentee ballot clerks must keep official absentee ballots safely, unopened, stored to prevent tampering and must document authorized access to them; absentee ballots returned after polls close are to be kept unopened, transferred to designated clerks for the statutorily required preservation period, and then destroyed in the same manner as used ballots unless otherwise ordered [2] [5]. The code also makes it unlawful to disclose or receive information about the tabulation of absentee ballots before polls close and prohibits any pre‑closing tallying of absentee ballots except as expressly allowed by statute, with written notice to the Secretary of State required prior to processing and scanning [1] [2].
2. Digital imaging and public posting: new statutory requirements
A statutory amendment requires that absentee ballots be scanned to create a digital image of each ballot at no less than 600 DPI (or the highest resolution possible within the certified voting system) and that those scans be posted and maintained by the program established under O.C.G.A. §21-2-493, indicating a legislative move toward creating durable electronic records for audit and transparency purposes [1]. The exact scope of what is posted and how other election materials like tabulation tapes or chain‑of‑custody logs are published is anchored to administrative implementation of that program [1].
3. Tabulation tapes, audit materials and procedural detail: gap left to rules and county practices
While statutes govern the physical custody and preservation of ballots and require digital imaging of absentee ballots, detailed procedures for preserving and producing tabulation tapes, ballot manifests, audit logs and other post‑election materials are largely implemented through State Election Board rules and local county practices rather than explicit statutory text found in the sources provided; proposed rulemaking is hosted by the Secretary of State but specifics vary and can be contested [6]. That administrative layer is therefore the practical locus for how tapes and audit materials are inventoried, how access is logged, and how production requests from parties or courts are handled [6].
4. Courts as a backstop: non‑destruction orders and invalidated rules
Judicial proceedings have become a decisive check on both county actions and State Election Board rulemaking: the Georgia Supreme Court ordered that certain absentee ballots be kept separate and not destroyed pending further order in a high‑profile 2024 dispute, reflecting courts’ authority to direct preservation when legal challenges are active [3]. Conversely, a Fulton County judge invalidated several new State Election Board rules that would have changed post‑election processes—such as mandatory hand counts after polls close—finding them unlawful, which illustrates that administrative attempts to rewrite preservation or counting procedures can be struck down in litigation [4] [7].
5. Political context and competing agendas
Legislative changes and board rulemaking in 2024 were driven by partisan debates over ballot security and counting procedures; supporters presented new rules and measures as bolstering confidence and security, while opponents raised concerns about instrumenting delay or de‑facto certification changes and threatened litigation—an explicit political dynamic documented in legislative summaries and reporting [8] [7]. Media coverage noting new measures such as ballot watermarks also signals administrative and legislative prioritization of chain‑of‑custody features, even as courts have weighed in on the legality of implementation [9] [8].
6. What remains unclear from available reporting
The statutes and reporting clearly set a statutory floor for safekeeping, imaging and disclosure limits for absentee ballots and show that rules and judges can alter implementation, but publicly available sources in this dataset do not fully detail uniform statewide procedures for preserving and producing tabulation tapes, risk‑limiting audit materials, or the precise chain‑of‑custody forms used by every county; those operational specifics are largely in State Election Board rules, county policies and program guidance referenced but not reproduced in the materials provided [6] [1].