By Richard L. Hasen
Slate.com
NOV 27, 2018
From the article:
Defeated Democratic gubernatorial candidate Stacey Abrams and her allies are taking on Georgia’s shoddy election system in the right way: through a big and bold lawsuit. At the very least, the lawsuit will shine the light of day on how Georgia makes it much harder than many other states to register and successfully cast a ballot. If the lawsuit achieves its more ambitious aims, a court could put Georgia’s voting system back under federal supervision for up to 10 years.
Rather than how a typical voting lawsuit works with a singular focus on a problematic aspect of Georgia’s electoral process—like overexuberant voter purges or its shoddy voting machinery—the lawsuit makes an argument that the cumulative effect of Georgia’s system is to deny voters, especially voters of color, the opportunity to easily cast a ballot which will be fairly and accurately counted.
The lawsuit attacks the strict voter purges, which the complaint says were timed with former Secretary of State and now Gov.-elect Brian Kemp’s own elections; its strict “exact match” policy which has kept thousands of voters off the registration rolls for discrepancies on voting forms and driving records as minor as a missing hyphen; its outdated voter registration database and voting machinery, which are insecure, vulnerable to hacking, and lacking in backup paper records; its closing and moving of polling places; its inaccurate voter registration rolls; its inadequate oversight over the casting of provisional ballots; and its problems with the dissemination, processing, and counting of absentee ballots—including the state’s failure to notify voters of problems with their ballots which could have been cured in time for the vote to be counted.
The suit alleges these problems together violate the Voting Rights Act, the Help America Vote Act, and the due process and equal protection clauses of the 14th Amendment. While not all of these claims require proof of intentional racial discrimination in voting, if the plaintiffs do succeed in proving intentional discrimination, a court will have discretion to put Georgia back under the federal “preclearance” for changes in voting rules that was in place before the U.S. Supreme Court killed the pre-clearance system in its 2013 Shelby County v. Holder decision.
It is hard to say at this point how successful this suit will be. Some of the constitutional claims require proof of intentional racial discrimination in voting, which can be tough to produce even when voting rules appear to target voters of color. Suits under Section 2 of the Act for “vote denial” claims have had mixed success in court, and there is good reason to expect the Supreme Court to continue to put the brakes on more aggressive uses of the Voting Rights Act.
But we do know that some other lawsuits attacking pieces of Georgia’s system have been successful, such as an attack on some of the absentee voting rules and the exact match system. A federal court has also strongly suggested that it will find Georgia’s voter registration system so flawed in terms of its security as to be unconstitutional.
More importantly, it is smart to make an argument that the system cumulatively disenfranchises voters. Rather than focusing on one of the hurdles facing voters, this suit lays out all of the hurdles together. Voting should not be an obstacle course, but the lawsuit claims that’s exactly what Georgia has created through a combination of misfeasance and malfeasance.
The lawsuit also has the benefit of coming before the 2020 election season gets underway. When lawsuits are brought during elections, it puts special pressure on the courts because court orders can alter election outcomes. A Supreme Court ruling also prevents courts from making some changes in voting rules in the period before the election because of a supposed danger of voter “confusion.” A lawsuit now allows the courts to examine the claims without them having any direct immediate effect on election outcomes. And even if the claims are unsuccessful, the continued focus on Georgia’s problems can help put the pressure on election officials to fix the worst of what is wrong in the state.
I wrote in an earlier Slate piece that it is dangerous rhetoric to claim the Georgia election was “stolen,” because such language undermines confidence in the fairness of the election process and because it takes the focus away from the dignity of each voter. This lawsuit strikes the right balance, by bringing the focus back to each voter. It shouldn’t be that some people in Georgia, especially people of color, have a much harder time voting and having their votes counted in a fair and accurate system than others.
Voters in Georgia deserve a modern and fair voting system before 2020. This lawsuit directly or indirectly may help them get it.
Stacey Abrams’ New Lawsuit Against Georgia’s Broken Voting System Is Incredibly Smart
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