IN JANUARY, DAYS after a record turnout in Georgia sent two Democrats to the Senate, Alice O’Lenick, the Republican chair of the Gwinnett County elections board, warned that she would not let the legislature “end this session without changing some of these laws…They’ve got to change the major parts of them so that we at least have a shot at winning.” She got her wish on March 25th, when Brian Kemp, Georgia’s Republican governor, enacted an overhaul of the state’s voting rules.
Mr Kemp says the bill makes it “easier to vote and harder to cheat”. Opponents point out that cheating rarely happens (eight times since 2000, according to one study). Civil-rights groups have sued Georgia, alleging that the bill makes voting harder, especially for non-white voters, thus violating both the 14th Amendment to the constitution, which guarantees equal protection under the law, and the Voting Rights Act of 1965 (VRA).
Under the Election Integrity Act of 2021, voters must now present identification when requesting absentee ballots. They have less time to request and return mail-in ballots. Drop-boxes introduced in 2020 remain, but with shorter hours and only one per 100,000 voters. All counties must offer early voting, but none may permit voting outside 7am-7pm, and all can choose more limited hours of 9am-5pm. A new cap on early-voting days may leave voters in the more populous, Democratic-leaning counties of metro Atlanta with longer wait times. The law makes it a crime to hand food or water to voters waiting in line (as many do for hours in Georgia) or to bring them umbrellas during a rainstorm.
Supporters say the measure responds to a “lack of elector confidence” in elections, relieves the “burden on election officials” and streamlines the process by “promoting uniformity in voting”. But confidence waned not because of any actual cheating in last year’s contest, but because Republicans repeated Donald Trump’s lie that the election was stolen. Georgia’s Republican secretary of state said in January that its elections were “safe, secure [and] honest”, earning him Mr Trump’s enmity. Georgia’s new law replaces the elected secretary of state as the chief election authority with someone nominated by the legislature. It also expands the state’s power to take over county election boards.
Hours after Mr Kemp signed the bill, Marc Elias, a Democratic lawyer, challenged it on behalf of three voting-rights groups. His suit argues that the law unduly burdens the right to vote in violation of the First and 14th Amendments, and defies Section Two of the VRA, which forbids racially discriminatory voting rules. A suit filed by the Georgia NAACP (among others) adds another charge: purposeful discrimination. In the face of increasing turnout among black Georgians, it claims, Republican officials were resorting to an attempt to suppress their votes “in order to maintain the tenuous hold that the Republican Party has in Georgia”. A third suit, brought by the American Civil Liberties Union and others, emphasises that the law impinges on “the right to vote of all Georgian voters”.
Until recently, Georgia may not have been able to pass such a law. Section Five of the VRA required jurisdictions with histories of voter discrimination, including Georgia, to “pre-clear” any proposed changes to election law with the Justice Department. The Supreme Court struck it down in 2013, arguing the pre-clearance formula was outdated, although Congress had renewed the VRA just seven years earlier with overwhelming bipartisan support.
Voting-rights advocates have to rely on Section Two, but those suits often fail to make a difference until an election or two has passed. The speed with which Republicans passed a 98-page bill upending Georgia’s election rules to make voting harder after they suffered key losses suggests these lawsuits have some merit. But plaintiffs have a hard road ahead.
They need to show that the bill violates the VRA even though other states have enacted similar rules. Wendy Weiser of the Brennan Centre for Justice, a think-tank, says courts should reject a comparative evaluation, and instead consider Georgia’s law a response to “short-term political realities” that is “precisely tailored to undermine access for voters of colour and Democratic constituencies”. The NAACP argues that Republican officials are not targeting black voters because of their race, but are engaging in “racial discrimination as a means of achieving a partisan end”.
The Supreme Court is already considering another VRA lawsuit: Brnovich v Democratic National Committee, which asks whether two rules in Arizona run afoul of Section Two. The conservative justices do not seem keen to strike down state laws just because they disproportionately harm minority voters. Michael Carvin, arguing against the Democrats, was uncommonly frank in explaining to Justice Amy Coney Barrett why the GOP is defending the restrictive laws. Eliminating suppressive rules “puts us at a competitive disadvantage relative to Democrats,” he said. “It’s the difference between winning an election 50-49 and losing an election 51-50.”
Congressional Democrats will soon introduce the John Lewis Voting Rights Advancement Act (named for a civil-rights icon who died last year), which updates the pre-clearance formula and requires “reasonable public notice” for changes to election law. Most congressional Republicans voted for the VRA in 2006. Most will probably oppose the new version.
Back in Georgia, the new bill’s supporters argue that allegations of its discriminatory effects are overblown. It allows easier absentee and early-voting than many other states. It lets poll workers set up water stations where thirsty voters can serve themselves. And it creates a mechanism for the state to remove county election supervisors who do their jobs badly.
Even if the bill is intended to make voting harder for Democratic constituencies, it may well backfire. Democrats—particularly Stacey Abrams in Georgia—have proved to be adept at using voter-suppression fears to motivate their base. Despite a steadily increasing number of states that require IDs, which opponents consider a suppressive measure, turnout in last year’s election was the highest in 120 years.