For many years Georgia inmates housed in their county of residence have been unable to vote in elections because of an oversight in state law.

Currently, a statute allows a county elections office to mail an absentee ballot to a voter if incarcerated outside his or her county of residence, but an absentee ballot cannot be mailed to an incarcerated voter in his or her county of residence.

But a group of lawmakers is attempting to change that. State Rep. Mark Hamilton, R-Cumming, is sponsoring House Bill 949 that includes a section to rewrite that portion of the state statute.

"There's a mistake in the current law," Hamilton said. "That's obviously an oversight. It's not the intention, so that's the reason why we're changing it."

The statute currently reads "...no absentee ballot shall be mailed to an address other than the permanent mailing address of the elector as recorded on the elector's voter registration record or a temporary out-of-county or out-of-municipality address."

Hamilton's Governmental Affairs Committee bill would add an excerpt stating, "except that an absentee ballot shall be mailed to an incarcerated elector at the elector's place of incarceration."

The proposed legislation comes after a recommendation by Secretary of State Brian Kemp in his recently released Final Report and Recommendations of the Elections and Advisory Council.

Kemp said the reason for the recommendation was "to keep the state out of a lawsuit."

And the current statute nearly cost the state in a lawsuit.

Following the 2008 presidential election, the American Civil Liberties Union filed a lawsuit against Kemp on the behalf of a DeKalb County inmate who was unable to vote due to the statute.

"Unfortunately we lost that case on jurisdictional grounds," said Nancy Adubu, senior staff counsel for the ACLU. "The law was very clear that (the inmate) was not eligible to receive the absentee ballot at his home."
"We definitely believe the law as it stands is unconstitutional and the language from the court during the oral argument in the 11th Circuit (Court of Appeals) suggested that if the court didn't find we had this jurisdictional defect, we might have been successful in our case," Adubu added.

Because of the lawsuit, lawmakers became aware of the need to alter the statute's wording.

"It came out in the advisory council that this was a problem, and we were made aware that there had been a lawsuit, so to me it's obviously one of the logical fixes that we decided to make," Hamilton said. Although not all inmates are eligible vote, many still retain that constitutional right. Inmates convicted of a felony have their voting rights rescinded, but a misdemeanor charge does not take away that right even
during incarceration.

"We're just trying to keep the law consistent and keep the state out of a lawsuit," Kemp said.

The proposed legislation does not change the voter eligibility requirements but simply addresses the flaw in the wording.

"I had people call me thinking that we were suddenly going to mail absentee ballots to convicted felons," Hamilton said. "First of all, they have to be a registered voter, which means they can't be a convicted felon. And the only thing it does is clarify that we can treat them the same whether they're incarcerated in the county they live in or outside the county."

The bill was approved by the elections subcommittee Thursday and is tentatively scheduled to be heard in full committee this Thursday.

"Overall, it's a good example of some common sense approach on fixing some code section that needs to be created," Hamilton said. "Much of the correction probably is the result of continually changing law, and once in a while it's very helpful to stop and
go back."