In the 2018 election cycle, perhaps no state race was as closely watched as Georgia’s gubernatorial contest.
The high-profile contest between Republican Brian Kemp and Democrat Stacey Abrams drew more attention in its final weeks as voting problems fueled allegations of voter suppression and threatened to undercut the power of Georgia’s nonwhite voters.
Shortly after Abrams officially ended her campaign last year, an organization led by Abrams’s allies and backed by the former candidate filed a lawsuit that seeks to overhaul the state’s controversial election system, arguing that the current system violates the constitutional rights of voters of color.
The suit was filed last November by Fair Fight Action, the nonprofit arm of a new voting rights organization founded by Abrams, and Care in Action, a group that organizes domestic workers in the state. The lawsuit names the state board of elections and then-interim Georgia Secretary of State Robyn Crittenden as its main defendants, but the lawsuit is truly aimed at Kemp, who did not resign from his position as the state’s chief elections officer until two days after the election.
“The general election for governor is over, but the citizens and voters of Georgia deserve an election system that they can have confidence in,” Lauren Groh-Wargo, the CEO of Fair Fight and Abrams’s former campaign manager, told reporters last year. Abrams is a member of Fair Fight’s board, but is not a specific party named in the lawsuit.
The 66-page lawsuit highlights voting issues that affected the state including voter purges, registration applications put on hold, Election Day troubles at predominantly nonwhite voting precincts, and problems with voters’ absentee and provisional ballots.
Each of these issues fueled their own series of lawsuits (several of them successful) in the weeks before and after the election, but this latest lawsuit cites them collectively to make a larger point: Georgia’s current election system created an unconstitutional series of obstacles that are disproportionately likely to disadvantage, and in some cases completely disenfranchise, voters of color.
To resolve this, the plaintiffs propose a number of reforms, including ending the use of electronic voting machines without a paper trail and stopping purges of infrequent voters, and asks that these changes be implemented prior to the 2020 election. The suit also requests that Georgia be placed back under preclearance requirements, which required a federal judge to approve proposed statewide voting measures to ensure they did not harm minority voters. Georgia was freed from this supervision in 2013 when the Supreme Court struck down part of the Voting Rights Act.
On January 28, Georgia election officials finally responded to the suit, calling for it to be dismissed. In the motion, recently elected Secretary of State Brad Raffensperger argued that any voting issues in the 2018 elections were due to the independent actions of local officials.
“The complaint combines a variety of claims in an attempt to cobble together a new theory — that a variety of independent and unrelated actions by mostly local official somehow resulted in a series of constitutional violations that require massive judicial intervention,” the motion says.
Fair Fight counters that it has “compelling and irrefutable evidence of an interlocking system of voter suppression that has unfairly impacted election outcomes.” In May, a judge allowed a modified version of the lawsuit to proceed, arguing that recently passed elections laws in the state did not invalidate the concerns raised in the lawsuit.
The arguments raised in the 2018 lawsuit and the backlash to them are part of a broader series of fights over voting rights and access to the ballot in states across the country. While it is too early to say how it will fare in court, the lawsuit’s depiction of the struggles of nonwhite voters are part of an argument that voting rights groups have often advanced when challenging state restrictions: that obstacles to voting have created a two-tiered voting system that disproportionately affects voters of color and limits the power of their votes.
The Georgia suit, however, specifically asks not for the reversal of one or two voting restrictions, but instead challenges the legitimacy of a system that would allow such disparities to exist.
“Fair elections ensure the consent of the governed; they are the moral foundation of the compact between the government and its citizens,” the lawsuit notes. “In the 2018 General Election, Georgia’s elections officials broke that compact.”
There were several voting rights issues in the Georgia election
In the weeks before the election, Kemp was repeatedly criticized for measures taken by his office, including voter purges that removed more than a million names from the state’s voter rolls between 2012 and 2016. He has also faced several complaints and lawsuits alleging that he was suppressing minority voters, particularly black voters, in an effort to keep Abrams from winning the election.
Several voting and civil rights groups, Abrams’s campaign, and former President Jimmy Carter all called for Kemp to resign from his position as Georgia’s top elections official, arguing that it was a serious conflict of interest.
On October 9, the Associated Press reported that 53,000 voter registrations, 70 percent of them from black applicants, were being held by Kemp’s office for failing to clear an “exact match” process that compares registration information to Social Security and state driver records. While Kemp’s office argued that these voters would be allowed to vote on Election Day if they presented an ID, a number of voters reported problems when they tried to vote, and some said they were turned away from the polls.
Fair Fight’s lawsuit cites individual stories from Georgia voters to illustrate exactly how much of a burden these problems placed on voters. In its review of the exact match system, the suit mentions Carlos del Rio, the chair of the Department of Global Health Studies at the Rollins School of Public Health at Emory University.
When del Rio went to his voting precinct on November 6, he was told that he could not vote because an error in a state database caused his surname to be listed as “delRio,” a difference that left poll workers unable to verify him as a voter. After explaining the issue to elections officials, del Rio was eventually allowed to cast a ballot, but only “after being forced to navigate a lengthy process,” according to the lawsuit.
Other voters weren’t so lucky. Tyra Bates, a resident of Gwinnett County, Georgia, registered to vote online in October. Bates received a confirmation of her registration, but was told that she was not registered when she went to her voting precinct. She was also not allowed to cast a provisional ballot, and left without voting.
The suit also cites problems with Georgia’s election infrastructure, arguing that Kemp did not take proper measures to ensure election security. Two years ago, Kemp turned down the Department of Homeland Security’s offer to provide election and cybersecurity assistance before the 2016 election, saying that the move would have given the federal government too much power over the state system.
In 2015, the state accidentally shared Social Security numbers and personal information of 6 million voters with political groups and media outlets (Kemp blamed the leak on a “clerical error”). A September ruling from US District Judge Amy Totenberg ruled that Georgia could not be forced to adopt paper ballots before the election, but said there was “a mounting tide of evidence of the inadequacy and security risks” in the state’s system.
But when concerns about the state’s election security were raised days before the 2018 election, Kemp responded by claiming — with zero evidence — that Democrats had attempted to hack into Georgia’s voter system. In December, the Atlanta Journal-Constitution reported that zero information supporting Kemp’s “unsubstantiated claims” was found.
According to the plaintiffs, these issues — and others — hindered voters from participating in the election. “In the 2018 Election, Georgia citizens tried to exercise their constitutional rights but were denied the ability to elect their leaders,” the suit notes. “Defendants’ failed policies and limited to no oversight disenfranchised untold numbers of voters.”
The lawsuit argues that Georgia’s entire system needs to change
Fair Fight’s lawsuit was announced shortly after Abrams ended her campaign with a speech where she acknowledged that Kemp had legally won the race, but stopped short of conceding or saying that the election as a whole was legitimate.
“I will never deny the legal imprimatur that says he is in this position, and I pray for his success,” Abrams said days later during a November 18 appearance on CNN. “But will I say that this election was not tainted, was not a disinvestment and a disenfranchisement of thousands of voters? I will not say that.”
Her comments fueled criticism of Abrams in conservative circles, with Kemp’s campaign arguing that their opponent should have conceded shortly after the election. In the days after voters went to the polls, Kemp’s spokesperson argued that Abrams’s push to wait for votes to be counted was a “disgrace to democracy” and that her concession was “long overdue.”
Many of these criticisms have continued now that the lawsuit has been filed. “Abrams is resorting to suing the voters for rejecting her at the ballot box,” John Watson, chair of the Georgia Republican Party, told the New York Times last November. “She is trying to create a parallel universe built upon no facts, when Georgia had an unprecedented turnout from Republicans and Democrats in an historic governor’s election.”
Kemp and Abrams first clashed years ago when Kemp accused the New Georgia Project, a group founded by Abrams to increase the number of people of color registered to vote, of fraud. Kemp launched an investigation into the organization, claiming that a preliminary review “revealed significant illegal activities” including forged voter registrations and inaccurate information on applications. The investigation ended after failing to find widespread evidence of illegal activity.
The Fair Fight lawsuit could be read as a continuation of a longstanding fight between the recent political opponents, but Fair Fight disagrees. The group says that the focus needs to be on how the election affected Georgians of color, and how the problems seen in this election can be corrected before 2020. An elections system that disadvantages voters of color, they argue, is a system that should not remain in place.
These concerns were raised even before the lawsuit was announced. “Individuals’ ethnic background or partisan affiliation must not determine the power of their vote or their access to the ballot box,” the Atlantic’s Adam Serwer noted earlier this month. “There is no way to criticize an unfair process without suggesting that the current process is, by some measure, illegitimate.”
This argument gets at the heart of the struggle over voting rights and restrictions that has intensified in recent years, that systems that make it harder for some people to vote than others are inherently unfair, unacceptable, and ultimately must be reformed.
“Voting should not be an obstacle course,” UC Irvine Law professor Richard Hasen noted in a recent article for Slate. “But the lawsuit claims that’s exactly what Georgia has created through a combination of misfeasance and malfeasance.”
Kemp’s team has dismissed many of these arguments, and the Secretary of State’s Office argued this week that turnout in the election showed that “it has never been easier to register to vote or make your voice heard at the ballot box in our state.”
But a focus on turnout obscures the fact that voters faced barriers on their way to the polls. On election day, voters in precincts with high minority populations reported dealing with voting machines without power, locations with too few machines, and an insufficient number of provisional ballots, the lawsuit notes. And while many of these voters were still able to cast a ballot, some were not.
The problems in Georgia are hardly unique — with the Supreme Court’s 2013 decision to strike down the part of Voting Rights Act that subjected states with histories of discrimination to federal observation, there has been a wave of new voting restrictions.
Supporters of stricter voting measures argue that these changes are necessary to preserve election integrity and combat fraud (which is exceedingly rare), while opponents say that America’s historical aversion to fair access to the ballot should lead to efforts to make voting easier, not harder.
It is unclear if the Georgia lawsuit will be victorious when it lands in court, as Hasen explained, some of the suit’s claims will require proving intentional racial discrimination, a charge that has seen mixed success in federal court in recent years. Georgia officials also argue that the suit inappropriately asks the court to intervene in the state’s election system, a matter that the state believes should be left to lawmakers.
But that claim dismisses the wave of legal action courts have already taken when it comes to Georgia’s election system. In the weeks before and after the 2018 election, lawsuits challenging parts of Georgia’s election system, like the exact match registration rule and the rejection of some absentee ballots, did end in victories for civil rights groups. It’s possible that given those rulings, citing these issues collectively will help make the case that Georgia’s system is so flawed that it must be changed.
If that does happen, it would accomplish a significant thing that could have an effect beyond Georgia, firmly establishing that voting restrictions and their effects on voters of color are about more than any single election.
Rather, they involve larger questions of who is and who is not allowed unfettered access to the ballot in America and how voter suppression undermines trust in democracy. That these issues exist five decades after the passage of the Voting Rights Act shows how much work remains to be done.