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off the registration rolls for discrepancies on voting forms and driving records as minor as a missing hyphen; its outdated voter registration database and voting machinery, which are insecure, vulnerable to hacking, and lacking in backup paper records; its closing and moving of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.