Georgia Gov. Brian Kemp, Secretary of State Brad Raffensperger and other Republican leaders are still working to make voting hard in their high-minority state this week. As a group, they appealed a district court preliminary injunction blocking parts of a 2021 Georgia voter suppression law that President Joe Biden described as “Jim Crow in the 21st Century.”
“[I]nstead of celebrating the rights of all Georgians to vote or winning campaigns on the merits of their ideas, Republicans in the state rushed through an un-American law to deny people the right to vote,” Biden wrote of SB202 in 2021. “This law, like so many others being pursued by Republicans in statehouses across the country, is a blatant attack on the Constitution and good conscience.”
The law curtails voting hours, which impacts people with traditional and nontraditional work hours. It also adds new restrictions and identification requirements on absentee ballots, and restricts the use of voting drop boxes used extensively in high-minority voting districts. The new law also permits any Georgia hack to challenge an unlimited number voters in their county, and it has already caused problems after a bunch of Trump voters challenged the eligibility of tens of thousands of people in racially diverse Gwinnet County, near Atlanta. The new law even made it a crime to supply water to voters waiting in long lines outside polling areas—long lines that Biden said “Republican officials themselves have created by reducing the number of polling sites across the state, disproportionately in Black neighborhoods.”
Still stinging from run-off elections like the one that delivered Democrat Raphael Warnock to the U.S. Senate, Republicans made a point to reduce the period for Georgia's runoff elections from nine weeks to four, and they cut early voting in runoff elections from three to one week, with no mandatory weekend voting. White Republican legislators and white Republican statewide leaders overwhelmingly passed S.B. 202 after Democrats turned out in droves to elect two Georgia Democrats to the U.S. Senate, costing the GOP Senate control.
The League of Women Voters, the Georgia State Conference of the NAACP, Georgia Coalition for the People’s Agenda, the Georgia Association of Latino Elected Officials (GALEO), Common Cause, and the Lower Muskogee Creek Tribe filed suit to stop the madness. Plaintiffs claim the law violates the First and Fourteenth Amendments by placing a substantial burden on the right to vote and jeopardizing plaintiffs’ right to free speech. They also argue that it violates Section 2 of the Voting Rights Act by discriminating against Black voters and other voters of color.
The U.S. Department of Justice filed a similar suit, which consolidated the army of legal arguments against S.B. 202.
Last month, U.S. District Court for The Northern District of Georgia sided with plaintiffs against many of the law’s provisions and halted implementation of the law for consideration. In the court’s eyes, S.B. 202 ran up against the Materiality Provision of the Civil Rights Act. This provision, passed in 1964, prohibits officials from denying a citizen the right to vote because of an “error or omission on any record or paper relating to any application, registration, or other act requisite to voting,” where the error is not material in determining an individual’s qualifications to vote.
That’s a mouthful, but because Georgia has a history of excluding voters through literacy tests and other authoritarian tactics, the Civil Rights Act includes a distinct provision to prevent states from requiring unnecessary information on voter registration applications and then using its omission to deny those applications. Senate Bill 202, for example, requires voters to print their date of birth on the outer envelope of an absentee ballot. See below:
The GOP argues that completing the outer envelope does not butt heads with the Materiality Provision because the additional requirement does not impact an “act requisite to voting,” that providing a date of birth on an envelope is not required or necessary for voting—it’s only necessary when voting absentee. The court rejected that argument, explaining that the Materiality Provision does not care whether onerous new demands afflict voting absentee or voting in person. It’s all voting.
The court also determined that plaintiffs presented hard evidence that the passage of S.B. 202 legitimately kicked ballots off the rolls, particularly in Black districts where people more frequently must vote absentee because of strict work hours. Numerous ballots got rejected over failure to comply with the new birthdate requirement, just as Georgia Republicans likely intended. The chart below compares the number of absentee ballots eliminated due to the birthdate requirement both before and after the passage of S.B. 202 in certain counties:
The court opined that the plaintiff’s challenge has a high chance of success in higher courts because the new birthdate requirement serves no purpose beyond complicating things and causing interference.
“Ultimately, these uncontroverted facts show that a voter’s ability to correctly provide his or her birthdate on the outer envelope of an absentee ballot is not material to determining that voter’s qualifications under Georgia law. And yet, if an error or omission is made on the outer envelope, the absentee ballot will be rejected, and the vote not counted,” the court wrote. “As a result, this Court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Birthdate Requirement violates the Materiality Provision.”
That won’t stop Kemp and crew from trying, of course. This month the governor, Raffensperger and the Georgia State Election Board—including William S. Duffey, Janice Johnston, Edward Lindsey, Matthew Mashburn, and Sara Tindall Ghazal, (all white in a state that is only 50% white)—are all hoping the U.S. Court of Appeals for the Eleventh Circuit will let them duck the Civil Rights Act.
Kemp made no mention of his appeal to cancel voters in the press section of his state web page, but his office notified the court of their plan on Sept. 18. The Republican National Committee, the National Republican Senatorial Committee, the Georgia Republican Party, Inc., and the National Republican Congressional Committee filed their own appeal as intervenors, which is no surprise considering the party’s history of favoring suppression tactics.
Raffensperger, for example, has consistently backed efforts to disenfranchise Georgians, including a massive voter purge in 2019 of more than 300k people during his first year as secretary of state. His office purged another 100,000 voters two years later.