Georgia Election Suppression and Litigation Challenging the Newest Restrictions on Voting
Georgia has long been a national leader in suppressing minority voting rights. This dates back to the era after the Civil War and continues to the present day. The challenges to the state’s recent voter suppression legislation recounts some of Georgia’s past and current efforts to restrict and deny the rights of Georgians to vote in federal and state elections.
HISTORY OF VOTER SUPPRESSION
“Georgia’s long history of voter suppression dates back to the post- Civil War period when the Ku Klux Klan used widespread violence to intimidate Black and Republican voters to re-establish white supremacy. Georgia’s Black voters have historically been disenfranchised through a variety of election laws, including grandfather clauses, literacy tests, poll taxes, and the adoption of “white primaries.”
“The Fourteenth Amendment granted Black men the right to vote in 1868. That same year, 33 Black members were elected to the Georgia General Assembly, who were subsequently expelled “solely on account of color.”
“Congress passed the Fifteenth Amendment on February 26, 1869. By late 1870, all the former Confederate states had been readmitted to the Union, and most were controlled by the Republican Party, due primarily to the support of Black voters.
“Following the end of Reconstruction in 1877, in a deliberate effort to disenfranchise Black voters, Georgia and other southern states enacted literacy tests, grandfather clauses, poll taxes and other discriminatory voter registration practices.
“In 1877, Georgia authorized a poll tax, but most white voters bypassed the provision through exemptions for those whose ancestors fought in the Civil War or who could vote before the war. Thus, Georgia became the first state to enact a “poll tax” to disenfranchise many poor Black voters. The poll tax was only abolished in 1945, after it had been in effect for nearly 75 years.
“The Democratic Party in Georgia adopted “white primaries” in 1900, which as the name suggests, allowed only white voters to vote in primaries. This practice continued in Georgia until it was held unconstitutional 45 years later in King v. Chapman, 62 F. Supp. 639, 650 (M.D. Ga. 1945), aff’d, 154 F.2d 460 (5th Cir. 1946).
“In 1908, Georgia adopted a constitutional amendment with the express purpose of disenfranchising Black voters by writing into the constitution the principle of “white primaries.” Hoke Smith ran successfully for governor in 1906 with this constitutional amendment as a key part of his campaign platform: “I favor a constitutional amendment which will insure a continuation of white supremacy . . . [and] the protection of the white primaries . . . .The effect of the disfranchisement amendment was to legalize what already existed in Georgia . . . it drastically reduced his vote in the general election. Negro suffrage in the country and small towns was almost completely eliminated, while it suffered severely in the larger towns and cities.”
“In 1958, Georgia passed a new voter registration act that required those who were illiterate to satisfy “understanding tests” by correctly answering 20 of 30 questions related to citizenship posed by the voting registrar.
“Terrell County, Georgia, was the subject of the first court action under the Civil Rights Act of 1957, in which a challenge to literacy tests for voting was found to have subjected Black voters to “distinctions in the registration process on the basis of their race and color.”
“In 1961, the U.S. Commission on Civil Rights reported that “the problem of denials of the right to vote because of race appears to occur in only eight Southern States—Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. . . .” The report noted that in many rural counties of Georgia, there was “total exclusion from the suffrage” for Black voters.
“Beginning in 1965, with the passage of the VRA (Voting Rights Act), Georgia was one of nine states whose records of racist voter suppression laws required them, under Section 4(b) of the VRA, to get federal preclearance for changes to their election rules. Georgia’s inclusion in this group was based on the State’s enforcement of unconstitutional tests or devices and low voter registration and turnout rates.
“From 1965 to 2012, Georgia’s racially discriminatory voting schemes necessitated federal intervention 187 times, including over 91 objections since 1982, when Section 5 of the VRA was reauthorized.”
The Supreme Court invalidated the VRA’s provisions for federal oversight and the requirements for federal pre-clearance of state policies designed to suppress minority voting rights in Shelby County v. Holder 570 US 529 (2013). Georgia politicians and election officials immediately sought to use their new flexibility to suppress minority voting in the following ways: registration deadlines, exact match registration requirements, voter purges, eligibility challenges, criminal investigations, changes to election dates from high turn out dates to low turn out dates, cuts to early voting, closing of polling places, long wait times and vote dilution.
RECENT SUPPRESSION EFFORTS
“Registration Deadlines. Georgia’s registration deadline—29 days before an election—is one of the strictest in the country. In 2018, a disproportionate number of the 87,000 voters who became ineligible due to late registration were people of color. In one congressional district, the number of ineligible voters was nearly 14 times the margin of victory.
“Exact Match Registration Rejections. From 2010 to 2016, then- Secretary of State Brian Kemp employed an administrative policy that disproportionately rejected voter registrations from people of color. Under Defendant Governor Kemp’s “exact match” policy, a voter’s registration application would not be accepted if the information therein did not perfectly match—down to a hyphen, an accent mark, or the inclusion of a middle initial— records held by the Georgia Department of Drivers Services or the Social Security Administration. By race, the population of voters attempting to register was 47.2% white, 29.4% Black, 3.6% Hispanic, and 2.6% Asian—but among applicants who failed the exact match verification procedure, only 13.6% were white, while 63.6% were Black, 7.9% were Hispanic, and 4.8% were Asian. Only in response to litigation did Secretary Kemp agree to process approximately 34,000 applications that had been suspended.
“But in 2017, the state enacted legislation codifying a version of the “exact match” protocol. Shortly before Georgia’s 2018 gubernatorial election between then-Secretary of State Kemp and former state representative Stacey Abrams, the Associated Press reported that Kemp’s office had placed on hold more than 50,000 voter registrations due to the exact match law. And although Georgia’s population was 32% Black, nearly 70% of the affected applications belonged to Black voters.
“Voter Purges. Georgia’s refusal to register eligible voters goes hand in hand with its aggressive purges of registered voters from the voter rolls. Few states have removed voters as aggressively as Georgia.
“In 2010, when then-Secretary Kemp took office, nearly 379,000 voters were removed from the rolls. After Shelby County, Georgia escalated the purges: by 2014, the number of voters whose registrations were cancelled rose to 517,000. Georgia purged approximately 1.5 million voters between the 2012 and 2016 election—twice as many as it had between the 2008 and 2012 election. On a single day in July 2017, then-Secretary Kemp removed 560,000 voters—8% of Georgia’s registered voters—from the rolls. Of the removed voters, 107,000 were taken off the rolls merely because they had not voted in prior elections, not because they had moved or become ineligible for some other reason. The purge, according to the Atlanta Journal-Constitution, may have been “the largest mass disenfranchisement in U.S. history.”
“Further, voter purges disproportionately affect Black voters and voters of color. Among those eliminated from voter rolls in 2017, Black voters were canceled at a higher rate than white voters likely because they had not voted in prior elections.
“The purges, moreover, have an extraordinarily high error rate. In 2019, then-Secretary Kemp purged 313,000 voters from the rolls on the grounds that they had moved from the address provided in their registration. An expert study concluded that 198,000 of these voters, or 63.3%, had not actually moved. And a disproportionate number of voters whose registrations were erroneously cancelled were Black or nonwhite.”
“Eligibility Challenges. Almost a week into early voting for the Runoff Elections, True the Vote, a Texas-based organization perpetuating the myth of voter fraud, in partnership with some Georgia voters, claimed it initiated mass challenges to the voting eligibility of more than 360,000 Georgia voters. Tens of thousands of Georgia voters were ultimately subjected to baseless, untimely, and potentially discriminatory challenges. The overwhelming majority of submitted mass challenges were dismissed by counties for lack of probable cause. Some of the counties that dismissed the mass challenges even faced a second and third wave of mass voter challenges. But these types of baseless and potentially discriminatory mass challenges are not new to Georgia voters. As just one example, in 2015, in the run-up to municipal elections in the City of Sparta, registered Black voters were subjected to mass challenges to their eligibility. The challenged voters, nearly all of whom were Black, comprised less than 20% of the city’s electorate.
“Criminal Investigations. In 2014, the State launched a criminal investigation into the New Georgia Project after the voter turnout group registered 85,000 new voters. The State found purported problems with only 0.03% of the registrations, and no charges were filed. The State recently renewed similar criminal investigations in light of the historic turnout in the General Election. The State has again targeted the New Georgia Project along with individual voters, many of whom are voters are color.”
“Changes to Election Dates. In 2012, the Georgia legislature changed the dates of nonpartisan county elections from November to July. The city of Augusta attempted to exempt itself, passing a local law providing that Augusta conducted elections as a municipality, not a county. A Georgia lawmaker proposed a “clean-up” bill that would have deemed all consolidated Georgia governments as counties for election purposes. In December 2012, the U.S. Department of Justice blocked the bill under the VRA preclearance process. But after Shelby County, state lawmakers successfully rescheduled Augusta’s nonpartisan elections to July, against the wishes of the city council. From the outset, it was clear that moving the election date would disproportionately affect turnout for Black voters.
“Cuts to Early Voting. It is well-established that Black voters, both in Georgia and nationally, regularly vote early when possible and comprise a disproportionate number of early voters. Nonetheless, the Georgia legislature has repeatedly pushed to restrict the availability of early voting. Starting in 2011, Georgia cut early voting in half, from 45 days to 21 days.
“A few years later, in 2014, lawmakers proposed a bill that would have further reduced early voting to just 6 days for small consolidated cities. That same year, one lawmaker explained that he opposed Sunday voting at a local mall because it was “dominated by African American shoppers” and was “near several large African American mega churches” and that he “prefer[red] more educated voters than a greater increase in the number of voters.”
“During the next legislative session in 2015, legislators unsuccessfully sought to further reduce early in-person voting from 21 days to 12 days. That same bill would have restricted the availability of Sunday voting, which is disproportionately popular among Black voters.
“In 2018, legislators proposed to shorten voting hours on Election Day in Atlanta, which is majority-Black and the most populous city in Georgia, from 8:00 p.m. to 7:00 p.m. A legislator in the House of Representative also proposed a version of this bill that would have effectively eliminated early voting on the Sunday before Election Day statewide.”
“Polling Place Closures. Counties across the state have closed polling locations despite an overall increase in registered voters. One study found that since 2013, 10% of Georgia’s polling locations have been shuttered.
“Examples of polling place closures that disproportionately burden voters of color are legion. From 2012 to 2018, county election officials closed 214 polling locations, or nearly 8% of the state’s polling places, as a result of precinct consolidation. Many of these closures occurred in communities with substantial minority populations, making it more difficult for Black voters and other voters of color to cast their ballots.
“In 2015, election officials in Macon-Bibb County proposed reducing the number of precincts from 40 to 26. Many of the proposed closures were once again located in predominantly Black communities. Under the proposal, several majority Black precincts would have more than 5,000 voters, whereas no majority white precincts would reach that threshold, and most had thousands fewer voters than the proposed precincts in Black communities. In response to community opposition, the County did not close as many precincts as it had proposed initially, but the majority of the eventual closures still disproportionately affected Black voters.
“In 2016, the polling place for a precinct with significant Black voters was relocated to a sheriff’s office. Civil rights organizations and Macon-Bibb County residents raised concerns about how siting a polling location at a law enforcement office would intimidate and deter voters from exercising their voting rights, especially for Black voters. These organizations and residents eventually succeeded in blocking the relocation, and the polling place was moved to a church- owned facility. But when the organizers complained, they were told that “if people weren’t criminals, they shouldn’t have a problem voting inside of a police station.”
“In 2018, the Randolph County Board of Elections and Registration proposed eliminating seven out of nine polling places in the predominantly Black county. The proposal was made on the advice of a consultant hired by the county board after its elections supervisor abruptly quit. The consultant had been “highly recommended” by Secretary of State Kemp’s office. At the time, Black Georgians constituted 32% of the State but 61% of Randolph County. One of the polling places that the Board sought to close served a population that was 97% Black. After public outcry and the threat of litigation, the county backtracked.”
“In 2020, Cobb County—Georgia’s third largest county—decided to cut the number of early voting sites for the Runoff Elections from 11 to 5, despite the need to serve more than 537,000 voters. The closures were concentrated in communities of color: most of the county’s Black and Latinx voters lived in an area that had previously had four polling places; Cobb County consolidated these sites into a single location. Black and Latinx voters are more likely to live in poverty than other residents and to have more difficulty traveling long distances due to limited public transportation options. The polling place closures would have disproportionately deterred voters of color from participating in the runoffs. After public outcry and the threat of litigation, the county added two sites and moved the location of a third. Cobb County was just one of several in Georgia that sought to close polling locations for the critical Senate runoffs.”
Long Wait Times. Polling place closures have led to failures in election administration, especially unacceptably long wait times. Voters of color, moreover, are more likely than white voters to experience long lines. Studies have repeatedly confirmed the racial disparity in voting wait times. For instance, one study found that Black and Latinx voters waited 45% longer than white voters— and that the racial waiting gap could not be explained by the level of resources across counties.
“The nationwide trend holds true in Georgia, as well. During one election, the average wait time after 7 p.m. was 6 minutes in polling places that were 90% white and 51 minutes in polling places that were 90% nonwhite. In other words, the wait times for nonwhite voters were 8.5 times longer than the wait times for white voters.
“In Cobb County, whose voters are 27.6% Black, 13% Latinx, and 5.4% Asian, early voters during the General Election encountered lines up to 10 hours long. As noted, however, the county persisted in reducing early voting sites for the Runoff Elections.
“Vote Dilution. In addition to erecting outright barriers to the franchise, Georgia has also systematically attempted to dilute the votes of nonwhite voters. In 2015, Georgia enacted H.B. 566, which redrew certain legislative districts for the Georgia House of Representatives. Two of those districts were challenged as racial gerrymanders: after an influx of voters of color, their boundaries were redrawn to prevent voters of color from electing candidates of their choice and ensuring the election of white incumbents.”
In the most recent election cycle, Joe Biden beat then-President Donald Trump in Georgia and Raphael Warnock and Jon Ossoff beat their Republican opponents (then Senators Perdue and Loeffler) in the run offs for the US Senate in Georgia by narrow margins.
Trump and his allies exerted enormous pressure on the Republican Secretary of State Raffensberger and Governor Kemp to overthrow his election loss and award the state’s votes to Trump. Many GOP members of the House of Representatives refused to accept Joe Biden’s victory when the election votes were certified.
Republicans control the Georgia Governor’s office and both Houses of the Georgia legislature. Rather than rethink the GOP positions on issues that had cost them the three recent elections, Georgia lawmakers adopted SB 202 to make voting harder for minorities. Georgia’s new laws attack early voting and absentee voting and the organizations that help minority voters to exercise their voting rights. They do the following:
RECENT BILL TO SUPPRESS THE VOTE
The “Voter Suppression Bill”:
§ Imposes unnecessary and burdensome new identification requirements for absentee voting;
§ Unduly restricts the use of absentee drop boxes;
§ Bans mobile polling places;
§ Prohibits the state from distributing unsolicited absentee ballot applications;
§ Prohibits third-parties—including voter engagement organizations— from collecting absentee ballot applications;
§ Burdens voters with the risk of disenfranchisement due to meritless challenges that require an immediate defense of their qualifications;
§ Invalidates ballots cast by lawful voters before 5:00 p.m. in a precinct other than the one to which they were assigned, regardless of the reason or their ability to travel to another location (or wait until after 5:00 p.m.) to cast their ballot;
§ Bans any non-poll worker from giving food or drink, including water, to voters waiting in line;
§ Compresses the time period for voting in the runoff election.”
“The new absentee ballot ID requirements mandate that voters include a Georgia Driver’s license number or Georgia State ID number on their absentee ballot application. If they have neither, voters are required to copy another form of acceptable voter ID and attach the copies of ID documents along with other identifying information to both their absentee ballot applications and inside the absentee ballot envelope when returning the voted ballot – thereby opening up absentee ballot applicants to potential fraud or identity theft. Because voters, except those over the age of 65 or disabled, must make a new application for an absentee ballot for each election in an election cycle, voters are now required to provide this ID information multiple times each election cycle.
“The bill prohibits public employees and agencies from sending unsolicited absentee ballot applications to voters, yet threatens private individuals and organizations who are not so prohibited, with a substantial risk of incurring hefty fines for every application they send to an individual who has not yet registered to vote or who has already requested a ballot or voted absentee.
“ SB 202 limits the accessibility of absentee ballot drop boxes to voters. While all counties would be required to have at least one, the placement of drop boxes is limited to early voting locations and drop boxes are available only to voters who can enter the early voting location during early voting hours to deposit their ballot inside the box. Thus, drop boxes are essentially useless to voters who can vote early in-person or who cannot access early voting hours at all due to work or other commitments during early voting hours.
“The bill mandates an earlier deadline of 11 days before an election to request an absentee ballot, leaving some voters who become ill or have to travel out of the area in the lurch if they cannot vote during early voting and are unable to meet the earlier deadline to apply for a ballot.
“SB 202 gives unlimited discretion to election boards to limit early voting hours to 9 am to 5 pm weekdays and on weekends, and to two Saturdays before the election.
“Additionally, county boards of election are given unfettered discretion with no guidelines in determining whether to eliminate all Sunday early voting days.”
“SB 202 changes the rules on whether voters may cast ballots at the wrong polling location or precinct within the same county where they are registered to vote. Under SB 202, voters who arrive to vote after 5 pm and sign an affidavit under penalty of perjury that they cannot get to their home precinct before the close of the polls will be able to cast a provisional ballot which will count with respect to the same contests on the voter’s home precinct ballot. All other voters who arrive at the incorrect precinct before 5 pm can cast a provisional ballot at the incorrect precinct, but none of their votes will count. In order for their votes to count, they will be required to vote at their home precinct, even if they cannot get to their home precinct by the time polls close.”
“SB 202 shortens the runoff period to four weeks following the election that led to the runoff, significantly limiting access to in- person early voting, which may only allow for a three-day early voting period if a runoff occurs during Thanksgiving week.”
“Black and Brown voters frequently experience long lines and delays at the polls, SB 202 criminalizes “line-warming,” the act of well-meaning individuals and organizations who hand out water or snacks, umbrellas, or chairs to ease the burden on voters standing in line for protracted periods to vote.”
“SB 202 removes powers from the Secretary of State. The Secretary of State will no longer serve as the Chair of the State Election Board and would no longer have voting powers as a member of the State Election Board. Another provision allows the State Election Board and members of the General Assembly to take over county election offices. Pursuant to SB 202, the county commission or members of the General Assembly could take action to commence a performance review of election supervisors that could lead to their suspension. Up to four election supervisors could be suspended at one time.”
Prepared by: Lucien Wulsin
Dated: 4/14/21
References: GA State Conference of the NAACP et al. v Raffensberger et al. (ND, GA);
New Georgia Project et al. v. Raffensberger et al, (ND, GA); and
Sixth District of African Methodist Episcopal Church v. Kemp et al. (ND. GA)