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Voting Rights and Wrongs in Georgia

I’m usually glad that I live in Georgia, but this election season, not so much. Republican election officials have been charged with virtually every kind of “voter suppression” scheme under the sun, with claims being made by activists and Democratic candidates, repeated in the press (both local and national), and alleged in lawsuits. I would love to say that our political nightmare is over, with Democratic gubernatorial nominee Stacey Abrams’ speech conceding that her Republican opponent Brian Kemp is legally entitled to occupy the governor’s office.

But not so fast: in her concession speech, Abrams was careful to distinguish between “legal” and “legitimate,” implying serious defects in both the laws governing elections in Georgia and in the ways those laws were administered. She also announced an organization—Fair Fight Georgia—to carry on her campaign. And yesterday, as she also promised she would do in her speech, Abrams filed a federal lawsuit alleging a host of constitutional and legal violations in the state’s conduct of the 2018 general election.

If that weren’t enough to prolong our electoral agony, since Georgia’s laws require runoffs between the top two contenders in the event that no one receives a majority of the ballots cast up to Election Day, we have to vote again by December 4th, when two statewide contests will be decided, one of them for the Secretary of State—the office at the center of all of our controversies. Christmas can’t come soon enough for this Georgia voter.

I wrote earlier this month about some of the deeper philosophical issues underlying our disputes—in Georgia and across the country—about voting. Here, I lay out some of the legal issues federal judges in Georgia have been asked to resolve in this election season.

There have been at least six separate lawsuits filed challenging various aspects of Georgia’s election laws and their administration. The first, Curling et al. v. Kemp et al., sought, rather late in the day, to force Georgia to exchange its aging touchscreen voting machines for voting technology that both is less easily hacked and provides a paper record of every vote. While Judge Amy Totenberg agreed with the alarming security concerns of the plaintiffs, she declined in her September 17th ruling to order the state to replace the old machines with paper ballots in an election where early voting was set to start in less than a month. The most immediate effects of the lawsuit were to raise questions about the administrative competence of the Secretary of State’s office, led by Brian Kemp, the Republican gubernatorial nominee, and to test the capacity of the state and local elections offices to deal with the blizzard of paper ballots that followed from the security concerns it raised. Indeed, encouraging absentee voting was one of the pillars of the Abrams campaign. What’s more, when local voting officials, out of an abundance of caution, restricted the number of touchscreen machines deployed on election day, some precincts were overwhelmed by the much higher than expected turnout.

The next case, Georgia Coalition for the People’s Agenda v. Kemp, dealt with one aspect of Georgia’s “exact match” law, which requires that the information provided on voter registration forms be verified by comparison with records maintained by the Georgia Department of Driver Services or by the Social Security Administration. Whenever a voter registration application fails exactly to match these records, the applications are held as pending and applicants are notified and have 26 months to cure the defects. While much has been made of the “disparate impact” of this measure on minority voters, for the vast majority of those who have that status, the cure is as simple as showing up at one’s polling place with precisely the same kind of photo identification as is required of everyone else. Those whose pending status is due to there being no record of U.S. citizenship are required to present proof of citizenship at the polling place to a “deputy registrar.” Judge Eleanor Ross found that this requirement severely harmed the affected individuals’ right to vote and ordered the state to increase the number of officials to whom this proof could be shown. Once again, it is hard to regard the initial regulation as an intentional effort to suppress votes.

The next case is Common Cause Georgia v. Brian Kemp, where Judge Totenberg ruled on an issue arising from the treatment of provisional ballots, of which slightly over 21,000 were cast in the 2018 election, amounting to approximately 0.54% of all ballots cast. While it is impossible at the moment to say precisely why all these voters were required to vote with provisional ballots, the evidence available at the time (by November 12th) suggests that about 40% may have encountered issues with their registration and another roughly 40% showed up to vote in the wrong precinct. Judge Totenberg found that database glitches caused some consternation and difficulty for some voters. These difficulties were compounded by errors made by workers at polling places and at county boards of elections. Her order required county elections supervisors and the Secretary of State’s office to make every effort to ascertain the registration status of those voters who had to use a provisional ballot for that reason, and required the production of all the evidence required to assess the treatment of these provisional ballots for a hearing at a later date.

One day later (November 13th), Judge Leigh Martin May ruled in Martin, et al. v. Crittenden, et al., a case that follows an earlier one, Martin, et al. v. Kemp, et al. (October 24th). Both deal with the treatment of absentee ballot applications and absentee ballots. While the earlier case addressed signature mismatch issues, the later one dealt with a host of issues regarding the information voters are required to provide accompanying their absentee ballot. Judge May crafted a reasonable solution to problems that arose from signatures on absentee ballots or applications that didn’t match what the county had on file: voters were to be given prompt notice of the mismatch and offered an opportunity to cure the defect; no longer would counties be permitted summarily to reject these applications and ballots. This strikes a reasonable balance between the right to vote and concerns about ballot security and fraud that prompted the signature requirement in the first place. In the later case, the plaintiffs sought much more extensive relief than Judge May ultimately granted. Rather than agree that “so-called ‘immaterial errors or omissions,’ such as the failure to provide the voter’s year of birth, failure to sign the oath, or other clerical mistakes,” should not lead to the rejection of the ballot, she enjoined one large suburban Atlanta county from rejecting absentee ballots that did not have the voter’s correct year of birth supplied. Assuming that other information provided in the absentee ballot application or in the material accompanying the absentee ballot itself was sufficient for establishing the voter’s identity, she held that requiring the correct year of birth was superfluous. Perhaps it is, though I wonder if her assumption that the person who submitted the absentee ballot application is the same as the person who submitted the absentee ballot is entirely sound and justifiable. In any event, it is interesting here that the voting rights advocates could not convince a generally sympathetic federal judge that dispensing with almost all the informational gestures required of absentee voters was warranted by the Fourteenth Amendment. While they would have expanded ballot access almost entirely at the expense of ballot integrity and security, Judge May held the line.

Finally, in Democratic Party of Georgia v. Crittenden, Judge Steve C. Jones extended the holdings of the two aforementioned Martin cases to every county in the state. In so doing, he agreed with Judge May in refusing the Democratic Party’s plea for more extensive relief. Furthermore, he turned back the Party’s request that people who sought to vote in the wrong county be treated the same way as those who sought to vote in the wrong precinct within a county. He accepted the defendant’s claim that the state’s compelling interest in preventing election fraud justified rejecting out of county provisional ballots as a “’reasonable, nondiscriminatory restriction’ upon the right to vote.”

I don’t know how many times I have read or heard the litany of complaints regarding “vote suppression” in Georgia. Having read all these rulings, here’s what I am led to conclude. Georgia’s inattention to modernizing its voting technology produced problems in 2018, largely because local voting officials were unprepared for the unprecedented increase in turnout fueled by a very effective Stacey Abrams voter registration and get out the vote effort, not to mention the countermobilization (at least outside Georgia’s metropolitan areas) organized by the Brian Kemp campaign. No federal judge has yet found anything wrong with the laws governing voting in Georgia, though some administrative practices were found wanting. While voting rights advocates and the Democratic Party wanted to make it as easy and convenient as possible for voters to cast their ballots, the federal judges for the most part took seriously state concerns with the security and integrity of the election.

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