The ACLU of Georgia responded to complaints from individuals in DeKalb and Pike County Jails who were denied the right to vote because they did not receive requested absentee ballots during the last presidential election. The ACLU of Georgia represented Hassan Swann and David Hartfield, who were denied the opportunity to participate in the 2008 presidential election while they were detained in the DeKalb County Jail. The lawsuit challenged the constitutionality of a Georgia law that prohibits election officials from mailing absentee ballots to inmates in county jails who remain eligible to vote, but who are incarcerated in their county of residence. Under Georgia law, if the inmate is incarcerated in their county of residence, he or she cannot receive an absentee ballot at that county jail. However, there is no prohibition against an inmate receiving an absentee ballot if the person is incarcerated outside of his or her county of residence. This law violated our clients' right to equal protection under the Fourteenth Amendment to the U.S. Constitution. The lawsuit also raised due process claims against the County Sheriff and Board of Election for failure to inform our clients that they would not be able to receive absentee ballots and failure to provide another means by which they could vote.
This case was decided against the ACLU of Georgia at both the district court level and at the Court of Appeals for the Eleventh Circuit. Our view and the view of the courts did not necessarily diverge on the consitutionality of the law, but diverged regarding the relevance of certain facts of the case. Both the district court and the Eleventh Circuit felt that our client's failure to write the address of the prison on his absentee ballot application was more important to his standing than the fact that, even had he written the address, he would not have received his ballot at the jail. We feel both decisions failed to give significant consideration to the constitutionality of the law at question.