A federal judge in Atlanta on Tuesday granted an emergency petition by a Democratic candidate for the U.S. House of Representatives that compels Gwinnett County to count all absentee ballots rejected because of a missing or incorrect birth year.

The order handed down by Judge Leigh Martin May was a potential break for the campaign of Democrat Carolyn Bourdeaux, who is battling to unseat Rep. Rob Woodall in House District 7, part of which lies in Gwinnett County. Bourdeaux trails Woodall by 901 votes out of nearly 279,000 total, according to the secretary of state's website.

May on Tuesday also granted Bourdeaux's motion to intervene in the pending federal case filed last month against then-Secretary of State Brian Kemp and the Gwinnett County Board of Elections over the county's high absentee ballot rejection rate.

The Daily Report has contacted spokeswomen for Secretary of State Robyn Crittenden and State Attorney General Chris Carr, whose office has been defending Kemp in the litigation, about the judge's new TRO. The newspaper awaits their replies.

Bryan Tyson, an attorney at Atlanta's Strickland Brockington Lewis who is outside counsel to the Gwinnett elections board, referred questions to county spokesman Joe Sorenson. The Daily Report has contacted Sorenson and is awaiting his reply.

Tuesday's order is May's second TRO involving absentee ballot rejections. On Oct. 23, in a companion suit filed by the ACLU on behalf of the Georgia Muslim Voters Project, May barred Gwinnett County from rejecting absentee ballot applications over alleged signature mismatches without first giving voters a chance to contest the decision and confirm their identities.

She issued the same, limited TRO in this case, which more broadly challenged absentee ballot rejections. The suit was filed by Atlanta attorney Bruce Brown on behalf of Georgia voters backed by the nonprofit Coalition for Good Governance

Bourdeaux is represented by a team of attorneys with Perkins Coie in Washington, D.C., and Gwinnett County attorney Veronica Higgs Cope.

Bourdeaux campaign spokesman Jake Best called the ruling a good first step.

“The county previously rejected hundreds of ballots for trivial reasons, including, but not limited to, year of birth,” he said. “We will continue to fight to have every eligible vote counted and every voter's voice heard.”

May's order is the fifth TRO issued by a federal judge within the past two weeks reversing election policies put in place by Kemp and potentially expanding the number of outstanding ballots that have yet to be counted. Kemp, the state's Republican candidate for governor, was criticized for continuing to serve as the state's chief elections officer while running for office himself.

Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia issued her own TRO late Monday night ordering a review of rejected provisional ballots across the state and postponing certification of midterm election results by the acting secretary of state.

Kemp resigned last Thursday and declared himself the winner of the gubernatorial race. Democrat Stacey Abrams has not conceded the race and vowed to have every ballot—including thousands of outstanding absentee and provisional ballots—counted.

Bourdeaux and other Georgia voters who originally brought the lawsuit May acted on Tuesday told the court that least 265 absentee ballots were rejected by Gwinnett election officials because voters omitted their year of birth. The plaintiffs also said at last 58 absentee ballots were rejected because voters erroneously wrote that they were born in 2018.

May's order addressed one question: whether Gwinnett County's policy of throwing out absentee ballots solely on the basis of an omitted or incorrect birth year violates federal civil rights laws.

“The Court finds … that it does and that this narrow set of ballots should be counted,” she said.

May said that the Supreme Court of Georgia held in 2005 that while a failure to furnish required information on a ballot may be grounds for rejection, “nothing in the statute mandates the automatic rejection of any absentee ballot lacking the elector's place and/or date of birth.”

In addition, the judge added, “Gwinnett County's procedure for rejecting absentee ballots entirely on the basis of a missing or incorrect birth year is particularly problematic in light of the fact that other Georgia counties do not require absentee voters to furnish such information at all.”

“This Court does not find that a year of birth is material to determining a voter's eligibility when such information is not uniformly required across the state.”

May also said the federal Civil Rights Act forbids the practice of disqualifying voters because of an error or omission on any voter application, registration or ballot if the error is not material to determining whether an individual is qualified to vote.

The law, May said, was “intended to address the practice of requiring unnecessary information for voter registration with the intent that such requirements would increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify potential voters.”

Less than 24 hours before May issued her new TRO, Crittenden issued a directive to election officials across the state to review rejected absentee ballots because of a missing or incorrect year of birth and that they can count them if the ballots were otherwise legal.

But May said that, although Crittenden's memorandum instructed election officials that they can count ballots with birthdate discrepancies, she issued the TRO because Crittenden's instructions “do not require election officials to count these absentee ballots.”

Brown said that, while May's order applies only to Gwinnett's election board he is urging Crittenden “to direct or advise all of the counties to comply with the direction that Judge May has given Gwinnett County. Counting these ballots is consistent with Georgia law, is required by federal law, and just makes common sense. There is no reason not to.”

Brown said that a birth year on a ballot is immaterial to its validity because, “The state has already determined the voter is eligible to vote by giving them an absentee ballot in the first place.