Judge Leigh Martin May (left) and Brian Porter Kemp, Georgia secretary of state (Photos: John Disney/ALM)

An attorney for Georgia voters and political candidates challenging absentee ballot rejections in one of the state's most populous counties says the reported rejections are “just the tip of the iceberg.”

Atlanta attorney Bruce Brown said reports by Secretary of State Brian Kemp that half of Georgia's counties—including some of the state's most populous—have not rejected any of the thousands of absentee applications or ballots in advance of the Nov. 6 election are “implausible.”

Brown said attorneys challenging absentee ballot rejections in Gwinnett County in federal court were surprised when Kemp's elections director and an assistant state attorney general told a federal judge this week they don't know whether absentee ballot rejection tallies on the state's website are accurate.

Elections Director Chris Harvey said in an affidavit that not all counties enter tallies of absentee ballot and ballot application rejections into the secretary of state's database. “Some counties keep track of their rejection information in their own off-line systems,” Harvey said.

Among the counties the secretary of state has reported as having zero absentee ballot rejections are Fulton (Atlanta), Chatham (Savannah), Richmond and Columbia (Augusta), Dougherty (Albany), Floyd (Rome) and several counties that are now considered Atlanta suburbs including Henry, Forsyth and Newton. Those counties have already received thousands of absentee ballots.

“So, when secretary of state says that 79 counties have zero absentee ballot rejections, a longer, more correct statement to the public would be that the secretary of state has no damn clue as to how many absentee ballots 79 counties have rejected,” Brown said. “Or if he does have a clue, he's not telling anybody.”

“We are now trying to get the secretary of state to disclose to us what he knows about all these other rejections, if anything,” Brown added.

Brown, who has been joined in the case by attorneys with Lawyers for Civil Rights Under Law and the Campaign Legal Center, said the team has filed public records requests with the secretary of state, Fulton, and other counties seeking accurate data. They are still waiting for a response to those requests.

On Thursday, Kemp spokeswoman Candice Broce referred questions to state Attorney General Chris Carr, who is defending Kemp. Carr spokeswoman Katie Byrd referred questions to county election officials.

Brown sued Kemp and the Gwinnett County Board of Voter Registration and Elections to curtail the county's rising rate of ballot rejections. The suit is backed by the Coalition for Good Governance. The plaintiffs include two Gwinnett County voters, one of whom works for a Democratic candidate for Congress; a Fulton County voter; a Democratic candidate running for a Georgia House district in Gwinnett County; and the Libertarian candidate for secretary of state.

The coalition has also sued Kemp and the State Election Board over the security of the state's electronic voting system.

The fight over absentee ballot rejections comes as Kemp, the state's chief election officer who is running for governor on the Republican ticket, has found himself in an increasingly tight race with Democrat Stacey Abrams. An NBC poll released this week shows the race is virtually tied.

Brown sounded the alarm over what he suggests is underreporting of rejected absentee ballots shortly after U.S. District Judge Leigh Martin May granted a temporary restraining order barring election officials from rejecting absentee ballots based on allegedly mismatched signatures.

Attorneys with the ACLU of Georgia and the organization's national voting rights project sought the TRO in a similar suit looking to stop Gwinnett and other Georgia counties from rejecting absentee ballots. The ACLU represents the Georgia Muslim Voter Project and Asian Americans Advancing Justice-Atlanta.

Through Oct. 12, Gwinnett County—which has shifted from a largely white bedroom community of Atlanta to one of the state's most diverse populations—rejected 9.6 percent of all absentee mail ballots. The majority of those rejections were ballots submitted by black and Asian-American voters, according to court pleadings.

County election officials currently may toss out absentee ballots for alleged discrepancies after comparing signatures on individual voters' absentee ballots, ballot applications and voter registration applications.

May gave the parties until Thursday to let her know whether specific instructions contained in her order were confusing or unworkable for election officials tasked with implementing them. But, she warned, “This is not meant to be an opportunity to readdress the propriety of entering the injunction—only its form.”

On Thursday, Kemp lawyers objected to May's TRO, calling it “unworkable, given the need to have votes counted and the election certified by the Monday after the election.”

They also branded as “problematic” May's decision that rejected ballots must be converted to provisional ballots rather than tossed out before voters are notified and given a chance to verify them or appeal the rejection.

Lawyers in the state attorney general's office suggested that voters whose ballots are rejected can email or fax a copy of a state-approved form of photo identification to election officials along with a sworn oath that they signed the rejected absentee ballot envelope. In Georgia, absentee ballots do not require photo identification.

They also asked May to “reconsider the magnitude of any changes imposed to the state's current election structure.”

May issued a final order Thursday making minor tweaks regarding the implementation of Wednesday's order granting the TRO.

The initial TRO came a day after Rolling Stone published leaked audio of Kemp discussing absentee ballots at a campaign event for Georgia Professionals for Kemp. The gubernatorial candidate noted “the literally tens of millions of dollars that they [Abrams' campaign] are putting behind the get-out-the-vote effort to their base,” including a focus on absentee ballot voting.

“They have just an unprecedented number of that, which is something that continues to concern us, especially if everyone uses and exercises their right to vote—which they absolutely can—and mail those ballots in,” according to the recording obtained by Rolling Stone. “We gotta have heavy turnout to offset that.”