The Right to Vote Shall Not Be Suppressed! Allegations of Voter Suppression in the Georgia 2018 Gubernatorial Race
On January 14, 2019, I visited the Georgia State Capitol building for the first time. As I walked through the majestic legislative meeting place, I was immediately impressed by its massiveness. However, I was more interested in the historical legislative exhibits which lined its various broad hallways. Of course, I could not resist stopping to read inscriptions, on marble statutes, and posted comments about the people in photographs in glass displays. And read I did. Perched on the walls of the great hall are bigger than life-size portraits of Georgia Governors. I noticed former United States President, Jimmy Carter’s, picture too. It was an exacting work of art. The oil on canvas portrait looked very much like the former United States President.
Eventually, I happened upon an exhibit which explained the Georgia Democratic Party’s role in suppressing the Black Vote decades earlier. In the wake of Stacey Abram’s, a Democrat, gubernatorial 2018 defeat, replete with allegations of widespread voter suppression, I wanted to know to more about what actually happened to the vote, currently and historically, in the great state of Georgia.
Voter suppression is not new to politics. Historical methods of shutting out or dissuading active voter participation resurface at election time. However, new high-tech methodologies utilized by the media, internet trolls and news cycle influencers disseminate false narratives meant to distort the truth and or confuse a host of potential new and seasoned voters. Bemoaning the outcome of the 2018 Georgia gubernatorial race continues. The newly minted freshman class, in the U.S. House of Representatives, has vowed to enact greater or enhanced voter protection rights early in 2019. Various committees, in the current Georgia Legislature, has articulated a similar agenda. This paper examines the allegations of voter suppression, in the 2018 race for Governor in Georgia, after a brief summary of Georgia’s history of voter suppression.
At the sunset of the Civil War, The War of Northern Aggression or the War Between the States (that particular war is called different names depending on which part of the country you are in and who you are talking to) slavery was abolished and the equal protection of the laws was guaranteed in the 13th (1865) and 14th Amendments (1868), respectively. Despite the ratification of the 15th Amendment[1], to the United States Constitution in 1870, formerly enslaved and now free black citizens remained disenfranchised. Generally Republican, the party of Lincoln, many black freedmen and women voted and elected blacks to political offices throughout the former Confederate states. This did not bode well with the dominant political party, in the former rebel states, the Democratic Party.
John Willis Menard was the first black man elected to Congress which refused to officially seat him in November 1868. From 1868 to 1898, 22 black men were elected to Congress, two to the U.S. Senate. In 1870, Joseph R. Rainey was the first Republican black man, from South Carolina, elected and seated in the U.S. House of Representatives. During this time, thousands of black men were elected to public offices throughout the democratic south.
Post Reconstruction black codes and Jim crow segregation further reduced the newly freed men and women to second class citizenship at a time when the President (Andrew Johnson), northern sympathizers and Union troops sought to end the divisions between the several states, in favor of reunification harmony, and pull out of southern, post-civil war, occupation and federal oversight. President Rutherford Hayes, a Democrat, officially ended Reconstruction in 1877 and transplanted northerners, carpetbaggers, picked up their suitcases and went home to the Northeast and New England. The politically, socially and economically entrenched Democratic Party presided over the enactment of Black Codes, Jim Crowism, separate and unequal schools, segregated tax-funded primary and secondary education, the rise of the Ku Klux Klan and a sharecropping system, akin to debt peonage[2], that tied poor blacks to southern plantations for generations.
The Democratic Party created a powerful political voting bloc in the south which the party effectively controlled all southern legislatures until the 1980s. Reportedly, the Democratic Party used violence, fraud, intimidation, and murder, under the banner of white supremacy, to prevent Republican southern blacks from exercising their right to vote. Moreover, pervasive “white only primaries” prevented blacks from electing their candidates until prohibited in the landmark decision of Smith v. Allwright, in 1944.[3] Poll taxes were also challenged, on constitutional grounds, and they were not prohibited until 1964 in the 24th Amendment to the United States Constitution. Paying money to vote was deemed contrary to the spirit and letter of the U.S. Constitution.[4] The Voting Rights Act soon followed.
The Voting Rights Act of 1965 was enacted during the Civil Rights Movement in the United States. Freedom Riders and voting rights advocates highlighted the discriminatory, systemic and pervasive, practices to prevent black people from voting. The Voting Rights Act pf 1965 was meant to be a temporary remedy, initially only authorized for 5 years, to combat widespread voter suppression but it remains in effect, 53 years later. Georgia was included in the “coverage formula” enunciated in the Voting Right Act of 1965.
The Voting Rights Act of 1965 prohibits the abridgment of the right to vote based on race or color. Congress found several states utilized tests or devices to prevent black people from voting in state or federal elections. Literacy and knowledge tests, as well as good moral character requirements, were imposed on would-be voters. Some Black voters were even required to have vouchers before they were allowed to vote. Arguably, the Voting Rights Act of 1965 helped and hurt Stacey Abrams gubernatorial aspirations.
Stacey Abrams won the Democratic party’s nomination for Governor, in 2018. Having done so, Stacy Abrams became the first African American woman to receive a party nomination for Governor in the nation’s almost 243-year-old history. Despite a war chest, of approximately 2.2 million dollars and from approximately 14,000 donors,[5] she lost the victory by approximately 1% of the vote or 55,000 votes. Reportedly, Georgia’s Secretary of State invalidated approximately 50,000 democratic voter registrants. Many believe by doing so, he possibly turned the tide in his favor to win the gubernatorial election.
Although born in Mississippi, Ms. Abrams is a longtime resident of Georgia and a graduate from Spellman College, a historically black women’s college and Yale Law School. She authored several books and founded a number of non-profit organizations. Her New Georgia Project was also instrumental in registering thousands of Georgians to vote in 2018. Ms. Abrams is also the former Minority Leader of Georgia’s House of Representatives, from 2011 to 2017, respectively. Many believe she is poised to run for elected office again, in 2020, possibly unseating incumbent Republican U.S. Senator David Perdue.
However, since the gubernatorial results, Ms. Abrams started a 501(c) (4) social welfare organization, called Fair Fight, which focuses on enacting a vote by mail program, churches to register voters, get out the vote campaigns, early voting, voting on election day, voter access to polls, promoting voting participation, providing voter education, election reform, lobbying state legislators, targeting voter registration, voter outreach and voter communications.
Shortly after her Democratic response to President Trumps State of the Union address, Ms. Abrams told a Special House sub-committee on voter abuse “Incompetence and malfeasance operate in tandem and the sheer complexity of the state’s voting apparatus smooths voter suppression into a nearly seamless system that targets voter registration, ballot access, and ballot counting,” Abrams told the House Administration’s subcommittee on elections. “These hurdles have had their desired effect.” Stacey Abrams believes that voter suppression cost her the Georgia Governorship.
According to Stacey Abrams, voter suppression occurred as follows: First, since the 2013 Supreme Court decision of Shelby County v. Holder 570 U.S. 529[6] (2013), Georgia changed its voting laws, to suppress the votes of people of color, and made it harder to register to vote, moved and or closed polls and rejected lawful ballots. Second, Georgia engaged in widespread purging of voter rolls. Georgia removed people, sua sponte, from its registered voter lists. Stacey Abrams challenged Georgia’s Secretary of State and gubernatorial opponent, Brian Kemp. According to the Associated Press, Kemp calls the new voting procedures “voter roll maintenance” while his opponents call the new processes “voter roll purges”, Kemp’s office canceled over 1.4 million voter registrations since 2012. Nearly 670,000 registrations were canceled in 2017 alone. Third, Georgia instituted an “exact match” voting requirement whereby voter registration applications were checked against “on file” signature information. If there were any deviation in the spelling of the name, change in address or if a hyphen were inserted where previously there was none, then the voter registrant’s application to vote was put on hold or outright rejected. “Under the policy, information on voter applications must precisely match the information on file with the Georgia Department of Driver Services or the Social Security Administration. Election officials can place non-matching applications on hold. An application could be held because of an entry error or a dropped hyphen in a last name, for example.”[7]
Currently, Georgia’s voting laws are no longer subject to “preclearance” federal scrutiny as it had been for almost 50 years under the Voting Rights Act of 1965. The Attorney General no longer must determine if a covered states’ voting laws comport with the Voting Rights Acts mandates. The Attorney General no longer has the authority to object to the change in a covered states’ election laws within 60 days of submission of the proposed changes. Nor does the changes in the voting laws have to be approved by a panel of three Federal Judges.
Since the Supreme Court's 2013, 5/4 decision, in Shelby County v. Holder, the landscape of voter suppression allegations has markedly changed. The Acts “coverage formula” was deemed unconstitutional. Formerly covered states (i.e., Alabama, Georgia, Louisiana, Mississippi, Virginia, 39 counties in North Carolina, 1 county in Arizona, and subsequently, Alaska, Arizona, Texas, California, Florida, Michigan, New York, North Carolina, and South Dakota) are no longer required to seek preclearance, from the Attorney General or three empaneled Judges, before they make any changes to their election laws. The majority opinion, written by Chief Justice Roberts, and joined by Thomas, Scalia, Kennedy, and Alito, articulated the necessary standard of “pervasive, flagrant, widespread and rampant “discrimination must be proven to effectively challenge a state’s duly and legislatively enacted voting laws.
If state enacted voter laws are suspected to have a discriminatory impact or effect, they are still challengeable under the Voting Rights Act of 1965, Section 2. Accordingly, challengers to changes in the voting laws, enacted in state legislatures, must seek injunctive relief, Section 2, of the Voting Rights Act of 1965 to prevent their enforcement. Stacey Abrams and other political activist groups legally challenged Georgia’s Secretary of State and gubernatorial opponent, Brian Kemp, in federal court.
In response to the federal lawsuit which sought injunctive relief against the then Secretary of State, Brian Kemp argued that his office engaged in “voter roll maintenance.” His opponents coined it “voter roll purges”. The Court sided with Stacey Abrams camp of plaintiffs and required the state to allow flagged voters to vote, in the 2018 election, if they furnished proof of citizenship. Judge Ross said the requirements raised "grave concerns for the Court about the differential treatment inflicted on a group of individuals who are predominantly minorities. ... The election scheme here places a severe burden on these individuals."
Judge Ross further ruled “that Georgia must immediately start allowing poll managers to clear voters who show proof of citizenship. Ross also ordered Kemp to issue a news release explaining how flagged potential voters could vote by proving their citizenship and offer a phone number for people to call with any questions.”[8] Secretary of State Kemp challenged the court order but it was denied. It is unclear if he ever implemented what Judge Ross ordered. The issue is not moot even though he is now Georgia’s sitting Governor. Allegations of voter suppression linger as he attempts to govern the state.
It is under this historical, Democratic Party, backdrop coupled with an analysis of Georgia’s newly enacted “exact match” election law that the Abrams defeat must be examined. Did the 2014 “exact match” law have an appreciable and discriminatory impact on Georgia’s 2018 General Election or not? Finally, did Georgia’s current Republican Party leaders, take a chapter from the Democratic Party’s historical playbook, and engage in widespread voter suppression during the recent 2018 general election cycle.
Dr. Shaun Council, Esq. is Adjunct Professor in the Department of Philosophy and African American Studies program at CCSU. She is a practicing attorney in Connecticut and Georgia.
NOTES
[1]The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude
[2] Peonage, also called debt slavery or debt servitude, is a system where an employer compels a worker to pay off a debt with work. Legally, peonage was outlawed by Congress in 1867. However, after Reconstruction, many Southern black men were swept into peonage through different methods, and the system was not completely eradicated until the 1940s. http://www.pbs.org/tpt/slavery-by-another-name/themes/peonage/
[3] Smith v. Allwright, 321 U.S. 649 (1944).
[4] On 1/23/1964, The 24th Amendment was enacted. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
[5] Atlanta Journal Constitution, Greg Bluestein, 2/1/18 https://www.ajc.com/blog/politics/georgia-2018-abrams-raises-nearly-more-gov-run/GvtLR3bHWQvzHwNGvaX3pN/
[6] In Shelby County v. Holder, the U.S. Supreme Court held Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Pp. 9–25. (a) In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203. These basic principles guide review of the question presented here. Pp. 9–17. (1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft, 501 U. S. 452, 461–462. There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing the disparate treatment of States. Northwest Austin, supra, at 203.
[7] BEN NADLER October 9, 2018 Voting rights become a flashpoint in Georgia governor’s race. Found at https://apnews.com/fb011f39af3b40518b572c8cce6e906c
[8] "Judge Rules Against Georgia Election Law, Calling It A 'Severe Burden' For Voters" November 3, 2018, 6:33 PM ET Found at https://www.npr.org/2018/11/03/663937578/judge-rules-against-georgia-election-law-calling-it-a-severe-burden-for-voters.
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