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Official Opinion 95-35

Official Opinion 95-35

August 4, 1995
To: 

Director
State Elections Division

Re: 

Registration to vote may not be conditioned upon an applicant supplying his race on a registration application, though race may be requested as an optional part of the registration process.

You have requested an official opinion of this office concerning the question of whether a person may be registered to vote in this state notwithstanding the omission of his race from the registration application. Upon a review of applicable federal and state statutory provisions, and relevant case law, it is my official opinion that an applicant for registration may not be denied the right to vote based upon the omission of his race from the registration application.

Significantly, Georgia law no longer codifies an application form which includes race as a portion of the application, compare O.C.G.A. § 21-2-217(a)(1994), opting instead for a form "as specified by the Secretary of State," O.C.G.A. § 21-2-219(a). Consequently, it is no longer even arguable that supplying a person's race in conjunction with registration is required "by law." See Ga. Const. 1983, Art. II, Sec. I, Para. II; O.C.G.A. § 21-2-216(a)(1); 1990 Op. Att'y Gen. 90-5, p. 8. Moreover, federal law does not require the submission of racial information to the attorney general for purposes of the Voting Rights Act. See 28 C.F.R. §§ 51.27, 51.28(d)(2).

Pursuant to 42 U.S.C. § 1971(a)(2)(B) of the Voting Rights Act, state officials may not:

deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; . . . .

(Emphasis added.) Existing case law does permit states to reject a voter's registration for "failure to answer relevant questions needed to assist election officials in preventing voter fraud." Kemp v. Tucker, 396 F. Supp. 737, 740 (M.D. Pa.), aff'd, 423 U.S. 803 (1975). However, Kemp did not undertake to define what is "relevant" for that purpose, nor did it attempt to narrow that inquiry other than by general reference. See Kemp, 396 F. Supp. at 739 n.3. Further, in the 20 years since Kemp was decided, identification by means of social security number or other method have largely replaced skin color as a tool for determining identity. Thus, your inquiry hinges on whether omission of race is material for purposes of qualifying to vote under Georgia law.

I conclude that race is not material for several reasons. Beyond question, a person may not be denied the right to vote based upon his race. Ga. Const. 1983, Art. II, Sec. I, Para. II; 42 U.S.C. § 1971(a)(1); O.C.G.A. § 21-2-216(a). Disenfranchisement is only permissible where a person is convicted of a felony involving moral turpitude or has been judicially determined to be mentally incompetent. Ga. Const. 1983, Art. II, Sec. I, Para. III; O.C.G.A. § 21-2-216(b). As a result, including or omitting race from an application cannot be determinative of elective franchise. Compare Johnson v. Byrd, 263 Ga. 173, 175 (1993)(omission of signature on oath invalidates registration).

I am aware that Georgia law provides that a board of registrars may inquire into missing information and may reject an application for registration if an elector fails to respond to a request for the information within thirty days. O.C.G.A. § 21-2-220(b). In my opinion, this statutory procedure is also subject to the requirement that rejection of an application be based upon an omission which is material to qualification, otherwise the Code would compel the absurd result that supplying race was not material, but its omission could cause rejection. Construction of a statute which results in absurdity cannot be supported. Sirmans v. Sirmans, 222 Ga. 202, 204 (1966).

Having concluded that a person's race is not material to qualifying as an elector and that it may not be a valid basis for rejecting a registration application, I find it necessary to address whether race may nevertheless be requested on Georgia registration forms. See O.C.G.A. § 21-2-219(a). Both Georgia and federal courts have held that the right to suffrage is not infringed by reasonable requests for voter information by state officials. Franklin v. Harper, 205 Ga. 779, 788-89 (1949); Kemp v. Tucker, 396 F. Supp. 737 (M.D. Pa.), aff'd, 423 U.S. 803 (1975). No impediment appears to exist to merely requesting an applicant's race on an application form, provided that its omission is not used as a basis for rejecting the application. As noted above, such information can be utilized in connection with voting rights submissions.

In summary, it is my official opinion that registration to vote may not be conditioned upon an applicant supplying his race on a registration application, though race may be requested as an optional part of the registration process.

Prepared by:

WILLIAM M. DROZE
Assistant Attorney General