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Georgia’s New Voting Law: Mostly A Step Backward

2021-04-27T15:38:50-05:00

Competing partisan-driven narratives are causing broad confusion over a new voting law in Georgia that poses legitimate threats to the integrity of the electoral process. Still, it could have been much worse.

The debate over Georgia’s “Election Integrity Act of 2021,” also known as SB 202, has been narrowed to strictly party-line perspectives. Democrats have called it “Jim Crow on Steroids,” while Republicans say they are responding to growing concerns over election security.

The deeply polarizing rhetoric on both sides has been a catalyst for misleading and hyperbolic claims – claims that distract from the simple fact that the so-called “Election Integrity Act” doesn’t address any real threats to the integrity of elections.

Georgia Governor Brian Kemp (R) told Breitbart News that the law “cures a lot of the problems” seen in the 2020 election. He explained to Atlanta’s ABC News Channel 6 that the new law was needed because “a lot of Georgians have lost confidence” in our elections. Both statements rely on the false claim promoted by former President Trump, Kemp, and other members of the Republican Party that the 2020 election was stolen due to rampant voter fraud and election rigging.

In making the statements, Kemp ignored assertions by election officials, many of whom are Republicans, that there was no significant fraud or election rigging that could have altered the election results. In a joint statement, election security officials in the Trump administration called the election the “the most secure in American history.”

“Georgia’s voting system has never been more secure or trustworthy,” wrote Georgia’s own Republican secretary of state, Brad Raffensperger, in the Washington Post 17 days after the November election. As secretary of state, Raffensperger oversees the state’s electoral process.

In January 2021, another Republican, Gabriel Sterling – the state’s voting system implementation manager – thoroughly refuted allegations made by Trump, Kemp, and other Republicans. In fact, historic audits of the results of the presidential race found the count to be accurate, and the voting systems to be reliable.

Still, Kemp is not wrong to claim that there has been a loss of confidence among voters. And that lost trust extends beyond Georgia and throughout the nation. In two studies on voter confidence from Caltech, researchers found that in the presidential election, the loss of trust fell along partisan lines, with 66% of Republicans, and 70% of Trump voters, saying they lacked confidence in the electoral system. Many voters believe the Republicans’ claims of fraud despite the lack of evidence and the numerous public statements to the contrary.

SB 202, then, addresses a problem that exists in the minds of Republican supporters, not in Georgia’s electoral system. Any debate or evaluation of the bill’s particulars must consider this context – that the bill does not solve any existing problems but instead feeds into the persistent lie of voter fraud.

That said, the bill is not as extreme as some critics claim, thanks to direct involvement and pressure from corporate America. However, it does place barriers on the electoral process, limits ballot access, and otherwise calls into question the real motivations and integrity of state lawmakers.

What The Law Does, And What It Could Have Done

Effect of New Law on Election Integrity

SB 202 v. pre-2020 law v. 2020 pandemic rules
Changes to election board composition and authority weakens weakens
No excuse needed to vote absentee no change no change
Absentee ballots must be requested no change weakens
Time allotted to apply for an absentee ballot weakens weakens
Expands Voter ID requirement to absentee ballots weakens weakens
Number of drop boxes strengthens weakens
Early voting on weekends strengthens weakens
Bars “any person” from handing out food and water to voters waiting in line weakens no change

The Most Consequential Change to Georgia Elections

One of the most notable provisions in the final version of SB 202 is the removal of the secretary of state as chair of the state’s election board. The chair, instead, will be elected by majority vote in the General Assembly.

This gives the party in control of the legislature, currently the Republican Party, the ability to choose three of the election board’s five members and thus, allowing partisan control of the board’s agenda. Prior to SB 202, only two of the five members were chosen by a majority vote in the State Senate and House.

The most dangerous part of the Georgia voting law is that it removes from the State Election Board the vote of the Secretary of State—even though under Georgia Constitution, the Scty of State oversees elections. It also puts the board under the control of the legislature.”

— Douglas A. Blackmon, Pulitzer Prize winner for the book, “Slavery by Another Name”

It is a change that has confounded election experts, as it is unclear how this would solve any problems experienced in previous elections. However, it raises clear concerns over whether or not the state election board will be able to conduct its business in a fair, nonpartisan manner.

“It’s an overreach of power,” said Aunna Dennis, executive director of the Georgia chapter of the voting rights group Common Cause, in a statement to the AP News. “They’re definitely trying to do an upheaval of our election system.”

In other words, if the goal of the law is to address growing concerns over the integrity of elections, this provision of SB 202 is counterproductive.

Adding to this concern is another provision that allows the state election board to essentially take over local election offices it deems as “underperforming”. The provision does not define what “underperforming” means, leaving it open to interpretation and abuse. It allows the board to suspend county or municipal election officials and appoint a single individual as a temporary replacement.

In some counties, this means an entire board of locally-elected officials could be replaced with a single state-appointed person who will be able to decide polling hours, polling location closures, and other related matters.

In combination, these two provisions in the law weaken the electoral process by creating greater opportunity for partisan meddling in local vote counting. Some local election officials are even afraid to speak against the law out of fear of retribution.

Republicans defend the provisions, stating that “if counties are consistently having a problem with long lines, slow service at the polling station, that’s what needs to be fixed because that’s what, in fact, is suppressing votes.”

And yet, SB 202 contains other provisions that will contribute to long lines and slow service, and fails to address other more straightforward fixes to those problems – like increasing the number of polling locations. According to analysis by Georgia Public Broadcasting and ProPublica, the state’s voter rolls have added over 2 million people since 2013, yet polling locations have, in fact, been cut by 10% across the state.

Limiting voters’ access to the ballot is what is, in fact, suppressing the vote. A local election administrator, appointed by a partisan state election board, could make access worse by reducing polling hours or deciding more polling locations need to be closed.

Mail-in Voting Under Attack

Prior to 2020, five states had expanded their absentee voting to support automatic, mail-in balloting. In 28 other states, voters were permitted to request a ballot and vote by mail without needing an excuse. In 2018, about 30 million voters submitted their ballot through the vote-by-mail system. With the notable exception of that year’s voter fraud in North Carolina, affecting the 9th Congressional District, evidence of voter fraud resulting from mailed ballots is extremely rare.

Yet, Donald Trump and Lindsey Graham have publicly attacked vote-by-mail, claiming that expanding the vote in this manner would doom Republican candidates to defeat at the polls.

The new Georgia law affects four aspects of vote-by-mail that were modified due to the pandemic: voter ID is now required; ballots have to be requested; the number of drop boxes have been reduced; and the rule that prohibits giving food and drink to people in line has been codified.

Absentee Ballots Must Now Be Requested

Prior to SB 202, there were no specific state policies that placed restrictions on election officials sending absentee ballot applications to eligible voters. However, general state guidelines required voters to request an application before receiving one.

As part of the state’s response to the COVID-19 pandemic, Secretary of State Brad Raffensperger announced that state election officials would send an absentee ballot application to every Georgia voter, something that was not uncommon for states to do during the pandemic.

The emergency provision became part of a larger, unsubstantiated narrative that increased absentee voting would lead to widespread fraud, and so in response GOP lawmakers explicitly barred election officials from doing this in future elections in SB 202.

SB 202 also requires non-government third party groups to make it clear that absentee ballot applications they send to voters are “not official government publications,” and that what is being sent is not a ballot.

The law may discourage third-party groups from sending absentee ballot applications completely since it is now illegal for these groups to send an application to any voter who has already requested one or voted absentee. Sending a duplicate could incur penalties.

Voters also have less time to apply for an absentee ballot under SB 202. Prior to the bill’s passage, state law allowed voters to request a ballot as early as 180 days before the election. SB 202 shortens that period to 78 days and a voter cannot request one later than 11 days before election day.

Photo ID Needed

While it is true that voting by mail is potentially more vulnerable to fraud, report after report after report has found that the fraud that voter ID is meant to protect against is extremely rare. Yet, Georgia’s SB 202 expands the state’s voter ID requirements to include vote-by-mail ballots in order to combat such fraud – a problem that doesn’t really exist.

Prior to SB 202’s passage, voters only had to present an ID when voting in person, and if they didn’t have one, they could fill out a provisional ballot. The secretary of state’s website lists all acceptable forms of identification.

Now, however, voters have to include their driver’s license number, state-issued ID number, or a copy of an acceptable photo ID with their ballot request application. Voters also have to provide proof of ID when returning their ballot. Alternatively, they can use the last 4 digits of their social security number and their date of birth to verify their identity – an option that is only available when returning their ballot and not when submitting the ballot application.

This part of the law affects more than 200,000 people, many of whom may not be in a position to easily provide the required ID or information. Voting rights advocates point out that many of the affected voters are poor and can’t afford to take the time off from work to acquire or copy the needed documentation.

LaTosha Brown, co-founder of Black Votes Matter, told The Atlanta Journal-Constitution, “Any time there are barriers placed on people who are already at an economic disadvantage, what you’re going to see is a drop-off in voting.”

Potential impact of Voter ID

Republican lawmakers defended the extension of voter ID in legislative debate by stating that 97% of Georgia voters have a driver’s license, and anyone who doesn’t can vote in-person by provisional ballot. Yet this fails to account for voters who may not have an acceptable form of ID and also cannot make it to a polling location to vote in-person.

To put the numbers into context, 3% – the percentage of voters who do not have a driver’s license, according to GOP lawmakers defending the law – is over 200,000 people. Given that just under 12,000 votes separated Joe Biden from Donald Trump in the 2020 election, the exclusion of 200,000 voters could be more than enough to change the outcome of a similarly close election in the future.

Drop Boxes: Reduced, but Guaranteed By Law

MIT’s Election Data Science Lab notes that a Harvard survey revealed that in three states that automatically distribute ballots to all registered voters – Oregon, Washington, and Colorado – between 70% and 91% of these ballots were not mailed in but placed in drop boxes.

SB 202 will lead to a reduction in drop boxes used in Georgia. Fulton County, for example, will go from offering 38 boxes in 2020 to 8 in future elections, a tremendous reduction for such a large county.

However, for the first time in Georgia history, drop boxes are guaranteed by law. Prior to the 2020 election, they were not used in the state, and were only added as part of an emergency response to the COVID-19 pandemic.

The law further requires drop boxes to be inside buildings, which means no curb-side drop boxes or boxes located on sidewalks. Boxes must be located inside the office of the board of registrars, the absentee ballot clerk, or where advanced voting takes place.

These requirements are not uncommon in states that use drop boxes. However, it does mean a significant drop in accessibility compared to during the 2020 election.

What SB 202 Actually Says About Handing Out Food and Water at Polling Locations

The provision in Georgia’s new voting law that has received the most attention is a controversial new restriction that specifically bars “any person” from handing out food and water to voters waiting in line at the polls – voters who could wait hours to cast a ballot.

Prior to SB 202, it was already illegal for “[a]ny person who gives or receives, offers to give or receive, or participates in the giving or receiving of money or gifts for the purpose of registering as a voter, voting, or voting for a particular candidate in any primary or election.”

Further, Georgia law already prohibited campaign materials, attire, and signature solicitation within 150 feet of a polling location or within 25 feet of someone standing in a voting line.

In a way, SB 202 doesn’t change much in the existing law, except to specifically include food and water with “money and gifts,” which Secretary of State Brad Raffensperger already interpreted the law to include. He sent out guidelines in 2020 that, among other things, clarified that the existing law regarding “line warming” included food and drink. Previously, while technically prohibited in the definition of “line warming”, providing food and drink to voters standing in line was a practice that was commonly overlooked.

However, what is troubling many voting rights advocates is language in SB 202 that says “any person.” The bill doesn’t specifically state that the restriction only applies to individuals representing campaigns, special interest groups, or petitioners, as defenders of the law say it is meant to stop. It says it is illegal for anyone to do this.

Poll workers and officers are not allowed to hand out water. They can, at their discretion however, set up “self-service water from an unattended receptacle,” according to SB 202. The concern is that this optional provision leaves room for discriminatory practices where partisan officials at certain polling locations could choose to make waiting in line harder or less appealing for voters.

SB 202 Was Almost A Lot More Controversial

Just days before the bill was signed into law, Republican state senators – reportedly responding to mounting pressure, including from Georgia businesses, and criticism over the law – decided to retain no-excuse absentee voting and early voting on Sunday.

The Washington Post reports that GOP leaders and top business interests hashed out changes to SB 202 in response to the outcry over the bill. “The Metro Atlanta Chamber of Commerce and representatives of major corporations, including ­Atlanta-based Delta Air Lines, worked directly with legislative leaders and the office of Gov. Brian Kemp (R) to exclude some of the more controversial proposals,” writes the Post.

The final version of the bill removed a provision that would have eliminated early voting on Sundays. Instead, it allows two Sundays to be used as voting days ahead of Election Day, and requires two Saturdays to be used for early voting.

The Response from US Corporations

Businesses are stepping up in greater numbers to respond to an increase in legislation that has the potential to limit voters’ access to the ballot. However, the corporate response voters have seen in Georgia only scratches the surface of how business leaders’ efforts are expanding nationwide.

With hundreds of bills in dozens of states that have similar goals as SB 2020, businesses are expanding their focus and pushing their message beyond Georgia.

Over 100 corporate executives joined a virtual call in early April to discuss their response and opposition to the increased consideration and passage of laws like SB 202 that are being based on fabrications around election security and integrity in 2020.

The call began with statements from Ken Chenault, a former American Express chief, and Ken Frazier, the chief executive of Merck, two prominent Black executives who are asking company heads to sign a statement condemning “discriminatory legislation.”

“Corporations have to stand up. There is no middle ground,” said Chenault on CNBC. “This is about all Americans having the right to vote, but we need to recognize the special history of the denial of the right to vote for Black Americans, and we will not be silent.”

Atlanta Mayor Takes Action

Businesses aren’t the only ones stepping up to resist these efforts. Local officials in Georgia, most notably in Atlanta, intend to mitigate the impact the law will have in their communities, and have vowed not to enforce certain provisions in SB 202.

Atlanta Mayor Keisha Lance Bottoms (D) signed an administrative order that says the mayor’s office will consult with the Department of Law on how the city can best reduce the impact SB 202 has on local residents.

Potential strategies include:

  • Working with corporate and community partners to develop voter education PSAs that provide clarity on voter-related deadlines and new timelines.
  • Coordinating with other city departments to include QR codes or links in utility bills and other material mailed to voters to inform voters on voter registration and absentee voting.
  • Ensuring information is disseminated to city residents about the forms of identification required for absentee voting.

The order does not explicitly call for any type of noncompliance. However, Gwinnett County Solicitor General Brian Whiteside (whose jurisdiction covers parts of metro Atlanta), said he will not prosecute people who hand out food and water to voters in line at polling locations.

Further resistance should be expected, particularly in communities of color. Multiple lawsuits have also been filed by civic engagement and civil rights groups like the NAACP and the ACLU, that challenge the constitutionality of SB 202.

SB 202 marks a critical shift in the struggle for voting rights that has taken different forms in the course of US history. Clear lines are again being drawn in a battle for our most fundamental democratic right. How voting rights groups, businesses, politicians, and the public responded to the law’s passage offers insight into what we can expect in the dozens of states across the country where hundreds of new suppressive laws are being proposed in the wake of the 2020 election.

Problem Addressed: Voting rights, voter suppression

Written by Shawn Griffiths, George Linzer

Published on April 27, 2021

Feature image: Photo by Doug Swinson on Unsplash

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Adam Brewster and Caitlin Huey-Burns, “Georgia has changed its voting laws. Which states will be next?” CBS News, Apr 2, 2021, https://www.cbsnews.com/news/voting-laws-georgia-texas-arizona-florida/, accessed Apr 15, 2021

David Gelles and Andrew Ross Sorkin, “Defying Republicans, Big Companies Keep the Focus on Voting Rights,” New York Times, Apr 12, 2021, https://www.nytimes.com/2021/04/12/business/corporate-leaders-voting-laws.html, accessed Apr 15, 2021

Brennan Center for Justice, “Voting Laws Roundup: March 2021,” Apr 1, 2021, https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-march-2021, accessed Apr 15, 2021

Atlanta Mayor’s Office, An Administrative Order, Apr 6, 2021, https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-march-2021, Accessed Apr 15, 2021

CNN Newsource, “Metro Atlanta county solicitor says he will not enforce a portion of the new Ga. elections law,” ABC 17 News, Apr 6, 2021, https://abc17news.com/news/national-world/2021/04/06/metro-atlanta-county-solicitor-says-he-will-not-enforce-a-portion-of-the-new-ga-elections-law/, accessed Apr 15, 2021

David Hawkings, “Fifth suit filed against Ga. voting law. Abrams’ challenge gets clipped. Masters boss weighs in.” The Fulcrum, Apr 8, 2021, https://thefulcrum.us/georgia-voting-laws, accessed Apr 15, 2021

Michelle Stoddart, “Civil rights groups sue Georgia over new voting law,” ABC News, Mar 30, 2021, https://abcnews.go.com/Politics/civil-rights-group-sue-georgia-voting-law/story?id=76775186, accessed Apr 15, 2021

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