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Fact check: Biden and Kemp misleadingly describe parts of Georgia elections law

There are a lot of misleading claims being made about Georgia’s controversial elections law.

And some of them are coming from the top.

Both President Joe Biden, a Democrat who opposes the law, and Georgia Gov. Brian Kemp, the Republican who signed it last week, misleadingly described the text of the law in interviews this week.

Here is a breakdown of a Biden assertion and three Kemp assertions.

Early voting hours

While criticizing the Georgia law in a Wednesday interview on ESPN, Biden said, “You’re going to close a polling place at 5 o’clock when working people just get off? This is all about keeping workin’ folks and ordinary folks that I grew up with from being able to vote.”

Facts First: This is misleading for two reasons. First, the new law does not change Georgia’s Election Day voting hours, which still end at 7 p.m. Second, while the law does set a default end time of 5 p.m. for early voting on weekdays and on Saturdays, counties were already allowed to end early voting at 5 p.m. under the previous law. The new law gives counties the option to offer early voting as late as 7 p.m. if they want to.

The previous law said weekday early voting had to occur at least during “normal business hours,” with a county option to add additional hours. That previous law did not explain what hours qualified as “normal.” The new law does specify, saying that weekday early voting has to occur during the hours of 9 a.m. to 5 p.m. That’s not a reduction in hours, just an elimination of vagueness. And the new law goes on to say that counties can choose to extend early voting to as early as 7 a.m. and as late as 7 p.m.

The new law also says that early voting has to be open at least between 9 a.m. and 5 p.m. on two Saturdays during primary elections and general elections. (Additional weekend days are optional.) That’s an increase in mandatory weekend hours compared to previous law, which required only one Saturday of early voting from 9 a.m. to 4 p.m. And the new law says counties can go from 7 a.m. to 7 p.m. on weekends if they want to.

Atlanta’s Fulton County and some other major Democratic-dominated counties did not have early voting hours later than 7 p.m. in 2020, so the law would not force them into reductions in hours in primaries and general elections. (For runoff elections, the law eliminates two weeks of mandatory early voting statewide and eliminates five weeks of the campaign in total.)

At the White House press briefing on Thursday, press secretary Jen Psaki defended Biden’s claim about Georgia polls being closed at 5 p.m. — versions of which he had made before — by saying that the new law “standardizes the ending of voting every day at 5.” But Psaki then conceded that the law “gives options to expand” beyond 5 p.m.

There is one caveat here. Even experts on election law told us the wording of the new law is confusing about weekday early voting hours in particular. (You can read the wording for yourself on pages 59 and 60.) But Kemp’s press secretary, Mallory Blount, told CNN that the law says 7 am to 7 pm weekday voting is allowed; the office of the secretary of state, Republican Brad Raffensperger, told CNN its lawyers interpret the provision the same way; University of Georgia political science professor Charles Bullock said this is how he reads it as well; and University of Kentucky law professor Joshua Douglas, an election law expert, said that although the wording is open to different readings, the “stronger reading” is that it allows weekday extensions to 7 am and 7 p.m.

However, Rick Hasen, a professor and election law expert at the University of California, Irvine School of Law, said that because the weekday language is “not crystal clear,” he worries that there could be litigation if counties decide to go later than 5 p.m. But he said he is pleased Georgia leaders are supporting the broader interpretation.

The food and water provision

In a Monday interview with Breitbart News, Kemp rejected criticism of a provision of the law that imposes restrictions on handing voters food and drink. (Some voters faced hours-long lines in Georgia’s June 2020 primaries and during the general election early voting period in October 2020.) Among other things, he said: “It just keeps, you know, the NRA or Sierra Club or whatever special interest group — people that are running for office — from handing out food or water in the line, so it’s not as outrageous as people are making it out to be.”

In a Wednesday interview on CNBC, Kemp made an additional claim about the provision. He said that not only can voters bring their own food and water but that “people can serve and hand out bottles of water and food as long as they’re outside the 150-foot boundary of a polling location.”

Facts First: Both claims are misleading. While the law does say people can’t hand out or offer money or gifts, including food and drink, to voters within 150 feet of a polling location, it also says people can’t do so “within 25 feet of any voter standing in line to vote” — in other words, even if the voters are farther than 150 feet from the building. And the restriction on handing out food and water does not “just” cover special interest groups and people running for office. The provision says that “any person” — not just a person engaged in electioneering — is forbidden from giving or offering voters money or gifts, including food and drink, within 150 feet of a polling place, within 25 feet of voters in line, or inside the polling place.

The restriction on giving out food and drink is contained in the same paragraph as a provision restricting campaign activity, such as soliciting votes and distributing campaign material, in the vicinity of voting locations. But the food and drink provision does not only cover campaigners.

Kemp was correct when he said in both interviews that the law permits county officials to provide water to voters. The law says staff can set out “self-service water from an unattended receptacle.”

Drop boxes

Speaking to both Breitbart News and CNBC, Kemp suggested it is inaccurate to say that Georgia is taking away ballot drop boxes. He explained that the law imposes a legislative requirement for every county to have a drop box, while in 2020, drop boxes were optional and only permitted under a temporary pandemic-related rule from the state elections board.

To Breitbart, Kemp criticized media coverage that made it seem like “we’re just loading them all up in a truck and gonna junk ’em.” He said that “drop boxes were never even allowed in our state before this [2020] election, and the only reason they were done this election was because of a public health state of emergency … what we’re doing is we’re putting that into the law.”

To CNBC, Kemp said, “Once the public health state of emergency goes away, the drop box would have gone away with them.” He added, “People act like we’re taking something away — it never existed until the pandemic, it was done by emergency rule, not by legislative action.”

Facts First: Kemp’s claim is misleading because of another significant omission. Even when pressed by CNBC, he did not acknowledge that the law imposes strict limits on the number of drop boxes per county — which will force some counties to make available far fewer drop boxes than they made available in 2020. Fulton County, for example, says it would have to go from 38 drop boxes in the November election to eight.

Kemp is correct that the law cements drop boxes in actual legislation rather than making them reliant on the temporary pandemic order. He is also correct that the new law requires each county to have at least one drop box. But his argument is incomplete at best when he declines to explain that some counties will be forbidden from using the majority of the drop boxes they put out last year. A reduction from 38 boxes under a temporary rule to eight boxes under a permanent law is still a reduction.

The law says counties must have one drop box. But it adds that, if they want additional boxes, they can have one for every 100,000 active registered voters in the county or one for every advance voting location in the county, whichever number is smaller.

The law also shortens the hours drop boxes are available. Under the pandemic rule, drop boxes could be located outside, open 24 hours a day, and open until the evening of Election Day. Under the law, the boxes must be located at elections offices or inside early voting locations and can only be available during the hours that early voting is available — again, a maximum of 7 a.m. to 7 p.m., and only on certain days. (If the governor declares an emergency, the boxes can be placed outdoors.)

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