Georgia’s Senate Bill 202 is by far the most draconian law passed by any state legislature with respect to restricting access to voting. This is merely an opening salvo in a widespread assault on the right to vote, and other Republican-controlled state legislatures are hoping to pass similar bills. The only way to head off the wave of attacks on the fundamental right of all citizens to have equal access to vote is for Democrats to use their slim majorities to immediately pass new voter protections. If HR 1 (the For The People Act) and the John Lewis Voting Rights Advancement Act don’t become law, Georgia’s anti-voting law will become just one of many.
Republicans are moving the goal-post
A New York Times analysis of the new Georgia elections law (SB 202) found that, among other things, it limits the window of time to request an absentee ballot, makes it illegal for election officials to mail absentee ballots to all voters, levies criminal penalties for anyone who gives water to voters in long lines, severely limits the number of ballot drop boxes, and replaces the secretary of state as chair of the State Election Board with someone elected from the state legislature. The Georgia legislature (which has been under Republican control since 2005) also now has the power to remove municipal and county election officials and replace them with people appointed by partisan state lawmakers.
Georgia Governor Brian Kemp (R) has argued the new law is necessary to make the state’s elections “secure, accessible, and fair.” This is despite Georgia’s Republican Secretary of State, Brad Raffensperger, stating in a Washington Post op-ed that “Georgia’s voting system has never been more secure or trustworthy.” Even Georgia Lieutenant Governor Geoff Duncan (R) thought the bill went too far to curb access to voting.
Various civil rights groups have since filed a legal challenge to SB 202, petitioning for the law to be rendered unconstitutional and in violation of the Voting Rights Act. But because Georgia is part of the 11th Circuit Court of Appeals, and because a majority of the circuit’s judges were appointed by Republican presidents, SB 202 may very well be upheld. Even if the 11th Circuit struck down the law, appellants could end up swaying the United States Supreme Court, which maintains a 6-3 conservative majority. Moreover, Chief Justice John Roberts even wrote the majority opinion in the landmark voting rights case that opened the door for bills like SB 202 to become law across the country.
The 2013 Shelby County vs. Holder decision will undoubtedly be remembered in history books with the same level of disdain as the 1857 Dred Scott vs. Sandford decision. Both decisions created false racial hierarchies rendering Black people to second-class citizen status. Whereas Dred Scott declared Black people did not have the rights of citizenship, Shelby County declared that the portion of the Voting Rights Act of 1965 pertaining to protections for Black voters was unconstitutional. This released nine mostly Southern states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – from getting “pre-clearance” from the federal judiciary before changing laws pertaining to voting rights. At the time, Justice Antonin Scalia justified his vote to eliminate those protections by saying the Voting Rights Act created “racial entitlement” for Black voters.
Just days after the Shelby County decision, the League of Women Voters warned that “the floodgates have opened” for widespread voter suppression legislation across the country and called for Congress to pass legislation guaranteeing everyone the right to vote. They were right: according to the Brennan Center for Justice, there are at least 361 bills awaiting action in 47 states that aim to curtail ballot access for voters. Five of those bills have already become law this year, and 29 bills have been passed by at least one legislative chamber. 49 of those bills are in Texas. And in Arizona and Georgia – states with Republican-controlled legislatures where Joe Biden narrowly defeated Donald Trump in the 2020 election – there are 23 and 25 pending voter suppression bills, respectively.
For Democrats, it’s now or never
The best way to beat back this wave of anti-voting bills is to pass federal legislation guaranteeing the absolute right of all citizens to cast a ballot. HR 1, which passed the House in March and is currently awaiting action in the Senate, would go a long way toward advancing that goal. Among other things, the bill would establish automatic voter registration, in which citizens are automatically registered on their state’s voter rolls when getting state-issued driver’s licenses and ID cards. It would also guarantee same-day voter registration for federal elections, which allows citizens to register to vote at their polling precinct on the day of the election. HR 1 also requires states to open up the early voting period at least two weeks before an election.
The John Lewis Voting Rights Advancement Act, which was introduced in the Senate in the 116th Congress, is the perfect companion to HR 1. That bill restores the preclearance requirement in the Voting Rights Act that was undone by the Shelby County decision, forcing state governments to win approval from the federal bench before changing election laws. The Act also broadens cases in which the Department of Justice can send federal election observers to states that federal courts have deemed necessary to ensure adequate protections are in place for all voters.
While these bills are great antidotes for the wave of voter suppression bills being introduced across the country, they still have yet to overcome the key hurdle of the filibuster. Even though they don’t control the Senate, Republicans can still invoke the filibuster for any non-budgetary legislation, requiring an impenetrable 60-vote threshold first be met before a bill can even get an up-or-down vote. If they had a unified bloc, Democrats could make procedural maneuvers to eliminate the filibuster with Vice President Kamala Harris casting the tie-breaking vote. Centrist Democrat senators like Joe Manchin and Kyrsten Sinema are still currently in favor of keeping the filibuster, dooming voting rights legislation to the legislative graveyard. However, President Joe Biden may be warming to the idea of limiting the power of the filibuster and could even be making moves behind the scenes to eliminate it entirely.
Biden has also notably appointed Gayle Manchin, Joe Manchin’s wife, to a “key position” in the White House, essentially tying Manchin’s family to his administration. It’s difficult to see how this isn’t a maneuver to placate Manchin in an effort to soften the senator’s position on the filibuster (admittedly a tall order given Manchin’s recent op-ed in favor of keeping it). In the event Manchin does eventually flip on the filibuster, Sinema could soon follow, not wanting to be seen as the lone obstacle in the way of significant voting rights expansion.
If Senate Democrats act to eliminate the filibuster, it should be done right away. As The Daily Poster recently pointed out, there are multiple septuagenarian senators from states with Republican governors. Should anything happen to aging senators like Patrick Leahy, Ed Markey, Bernie Sanders, or Elizabeth Warren, any one of them could be replaced with a Republican, abruptly ending Democrats’ control of the Senate and putting Senate Minority Leader Mitch McConnell back in the driver’s seat.
Democrats will have to decide relatively soon whether they’d rather keep a Jim Crow relic like the filibuster, or have new federal voting rights legislation. If they want any hope of stopping the relentless march of state-level, Republican-led voter suppression efforts, it’s obvious what must be done: Democrats should immediately nuke the filibuster and pass HR 1 and the John Lewis Voting Rights Advancement Act, or kiss their majorities goodbye.
Carl Gibson is a freelance journalist whose work has been published in CNN, The Guardian, The Washington Post, The Houston Chronicle, Barron’s, The Independent, and NPR, among others. Follow him on Twitter @crgibs.
Since President Donald Trump lost the 2020 presidential election, he and his allies have filed dozens of lawsuits challenging the results and trying to throw out millions of votes.
Every single one of them failed in court, but they succeeded by one measure: they reinforced the myth that the electoral process itself was faulty, marred by widespread voter fraud and election-rigging by partisan forces. That belief is especially true within the Republican Party, at least 75% of which now believes that the election was “stolen” from Trump, according toseveralrecent polls.
The GOP has long cited the phantom menace of nationwide voter fraud to justify passing stricter voter ID laws and other measures that make it more difficult for voters – particularly low-income, minority voters in rural areas – to cast a ballot.
But this year’s slate of election-related cases has irreversibly warped the landscape of voting rights litigation.
“The big distinction with this particular phase is that these same legal principles are being morphed and distorted by losing candidates to actually cancel out ballots,” said Kim Wehle, a law professor at the University of Baltimore and the author of “How to Read the Constitution – And Why.”
“It’s like the facts don’t matter anymore. Legal principles don’t matter anymore,” said Wehle. “And even though the courts have done the right thing because they’re bound by facts and the law, Trump has created this public perception that there’s a problem that needs fixing.”
Robert Brandon, the president of the Fair Elections Center, called the president’s argument “unfortunate.”
“There’s this false narrative that somehow there was massive fraud in this election, but in fact it was people exercising their right. This is a continuation and maybe crescendo to a 15, 20-year effort to talk about voter fraud as a way to put more limits on voting.”
Republican efforts to target Black voters and minority groups could backfire
Voter suppression has always existed in one way or another. Modern efforts to restrict voting picked up after President Barack Obama was elected in 2008 following unprecedented turnout from a diverse electorate.
The 2010 midterm elections and census led to the rise of “ratf—ing,” or the practice of using granular data to gerrymander districts. Those efforts intensified after the Supreme Court’s landmark ruling in Shelby County v. Holder, which gutted the most significant provision of the 1965 Voting Rights Act.
Texas and North Carolina’s Republican-controlled legislatures and governors offices passed restrictive voting laws almost immediately after the 2013 ruling. And in the years since, hundreds of polling places in predominantly Black communities have closed, while more and more counties are purging their voter rolls.
This year, before and after Election Day, Republican lawsuits challenging the results targeted predominantly Black communities and other areas populated by minorities.
“We’re talking about the communities in Detroit and in Atlanta and Philadelphia,” said Sophia Lin Lakin, the deputy director of the American Civil Liberties Union Voting Rights Project. “These are attacks against Black voters, and that’s what we’ve seen time and time again, throughout history.”
In Wisconsin, the Trump campaign sought recounts in just two counties that have high Black and low-income populations. Earlier this month, former House Speaker Newt Gingrich laid out the Republican argument in stark terms, asking in a tweet why Georgia Secretary of State Brad Raffensperger was “working so hard to add drop boxes and take other steps to make it harder for Republicans to win.”
In Texas, GOP party chair Allen West told Politico that the “No. 1 legislative priority” will be “how do we protect our electoral system.” Michael Whatley, the North Carolina GOP party chair, told Politico he wanted “a significant tightening of the rules around absentee balloting.”
“This is an old story,” Wehle said. “Voter suppression efforts aimed at the integrity of the ballot are always disproportionately designed to keep certain populations – that is, Democratic-leaning voters – from having access to the polls.”
But by continuing to target Black voters, the GOP may be making a huge strategic error. This year, Trump saw an increase in support from Black and minority voters in big cities compared to the 2016 election.
Still, in the weeks since the 2020 race was called for Biden, Republicans have dug their heels in on efforts to curb access to the ballot in battleground states, particularly as the GOP contends with a higher rate of turnout. The 2020 election saw the highest turnout in over a century because of an increase in voting by mail and early voting across most of the country in the face of the COVID-19 pandemic.
Half of all voters voted by mail, and only 25% voted on Election Day. While the pandemic was certainly a huge determinant of how people cast their ballots, voters also prefer to be able to vote when they want and by a method of their choosing to avoid dealing with factors like work schedules and family commitments, said Robert Brandon, the president of the Fair Elections Center.
But with increased civic participation, experts say there will be a corresponding surge in efforts, primarily by Republicans, to limit access to voting.
“Unfortunately time and time again – throughout the history of civil rights and voting rights – what we’ve seen is whenever there’s been an expansion of turnout of voting by people being able to access the ballot, we’ve seen an attempt to sort of retract and curate the electorate such that certain voices are muted,” Lin Lakin said.
Indeed, Trump and members of his party fought vigorously against voting by mail in the months leading up to the November election.
In Georgia, which will hold two US Senate runoff elections on January 5 that will determine which party controls the upper chamber, Republicans are seeking to end no-excuse absentee voting, impose voter ID laws for those who vote by mail, and take power away from the Georgia secretary of state, who certifies election results.
These efforts come after the state repeatedly confirmed its election results were accurate following a risk-limiting audit and two recounts.
In the face of Trump and his Republican allies’ drumbeat that the election would be stolen, a significant swath of the country has accepted the narrative that there was widespread fraud, compared to previously, when such claims had to be proven first.
“There’s a massive public relations campaign around claiming fraud even in the face of zero evidence of fraud,” Wehle said. “We’ve seen dozens of lawsuits with no facts or evidence showing fraud, but Rudy Giuliani will wave around a binder of alleged affidavits in front of the Michigan state legislature instead of submitting them to a judge because they don’t hold up in a court of law.”
Over the last several decades, the legal battle over voting rights has been focused on using equal protection claims, due process claims, and the Voting Rights Act to expand access to the ballot box.
But now, Wehle said, “there’s been a total paradigm shift” because Republicans have “flipped that dynamic on its head and used those same principles to say that by virtue of these tinkering laws – laws on changing access to the ballot – a candidate, campaign, or voter can cancel people’s votes after the fact.”
Perhaps the most brazen example of this was Texas Attorney General Ken Paxton’s Supreme Court lawsuit seeking to toss out the election results in four battleground states that voted for President-elect Joe Biden. Trump’s legal team, eighteen other Republican attorneys general, and a majority of the House Republican caucus supported the suit.
Earlier this month, the high court kicked Texas’ case to the curb, saying it did not have the standing to contest how other states run their elections.
“In this election, we saw judges of all political persuasions refuse to abandon the rule of law,” said Lisa Marshall Manheim, a professor at the University of Washington School of Law. “This basic commitment should hold. But we can’t expect our courts to solve all our political problems. They simply aren’t designed for that.”
Although Republicans have not been able to convince the courts to force significant changes in how states administer their elections, some of their biggest successes have been in convincing courts not to get involved in the first place, Manheim said.
For instance, in Georgia, after a district court judge allowed for an extension of the deadline by which mail ballots must be received, Republican litigants convinced the appeals court to stop the lower court ruling from going into effect.
Manheim added that even with a mixed legal record, these aggressive litigation tactics can be helpful for non-legal purposes like fundraising and firing up the Republican base, which is why we can expect them to continue.
Overall, as Business Insider has reported, the 2020 election was the safest and most secure in US history because of the use of paper ballots and voting machines with voter-verifiable paper trails.
And in addition to scores of judges across the country at every level of the court system, both Republican and Democratic officials have confirmed that their respective states’ elections ran smoothly, and that the results were legitimate.
On December 14, the Electoral College convened and electors cast their votes based on which candidate their respective states voted for. On January 6, Congress is set to certify Biden’s win, and he will be sworn in on January 20.