Since late July, a partisan majority on the Georgia State Board of Elections has enacted a series of last-minute changes to the state’s election procedures, including changes that could threaten the ability of people of color in Georgia to vote and have their votes counted equally. Our organization has vigorously opposed efforts to alter the election certification process and will continue to do so. While we expect the courts to block the Georgia board’s most egregious attacks on the votes, we must recognize that these attempted changes would have been harder, if not impossible, to implement in the coming election if the Supreme Court had not eviscerated the Voting Rights Act of 1965, or if Congress had passed the John Lewis Voting Rights Advancement Act. Under the former preclearance provisions of the Voting Rights Act, the Department of Justice or a federal court undoubtedly would have had to first review data about the reasoning for the Georgia board’s rule changes, the potential impact on voters of color, and any racialized rhetoric.
Although it has traditionally been a noncontroversial and nondiscretionary process, in recent years election deniers in numerous states have attempted to delay or prevent the certification of election results. These efforts are often based on lies that target Black and brown voters, and allow for more leeway in the tabulation of votes, freezing voter lists and limiting advance voting. In Georgia, election deniers have not only illegally challenged the certification process, but also sought to change the rules governing election administration, contrary to state law. Unsurprisingly, their attacks have focused on Fulton County, with its plurality of Black Georgians. In August, the state board approved rules that would allow county election boards to launch unfettered inquiries and individual board members to examine “all election related documentation” prior to certification. These changes exceeded the board’s rulemaking authority, all while ignoring the existing procedures to investigate election fraud. It is part of an effort that has created opportunities for board members to abuse the law and place unreasonable burdens on Georgia election workers, with the ultimate risk of delaying and potentially overturning any result these partisans don’t like.
On Friday, the SEB approved more election rule changes that will be implemented shortly before Georgia begins voting, including a misguided new hand-counting requirement. Election workers expressed concern that the new rules could create confusion, errors, or delays in the electoral process. Many Georgia state legislators also opposed them due to concerns that they could provoke harassment of election officials, delay certification, and erode public confidence in elections. The new rules could enable a dangerous level of interference jeopardizing the election certification process—which is exactly what we saw in 2020. Again, this seems to be part of a coordinated plan. There’s also much less protection to prevent these attacks on democracy due to the Supreme Court’s 2013 Shelby County ruling.
From 1965 until 2013, Georgia was one of nine states whose ongoing history of racial discrimination in voting placed them under the federal preclearance provisions of the VRA, meaning that Georgia had to submit “any” changes it sought to make related to its voting and election practices or procedures for federal review prior to their implementation in elections. These requirements were put in place specifically to protect voters of color, and designed to be broadly interpreted so that it could address new iterations of attempts to discriminate in voting and elections. Although coordinated attacks on certification are a new phenomenon, there is evidence to support the claim that these challenges would fall under the types of changes subject to preclearance. The VRA covered changes in the “the counting of votes,” “method of determining the outcome of an election,” and “any change that transfers or alters the authority of any official or governmental entity,” and protected an effective right to vote and have one’s vote counted.
But in that 2013 Shelby decision, the Roberts Court erroneously reasoned that discrimination in voting had subsided. It reached back to pre-Reconstruction cases about states’ rights to eviscerate the preclearance formula of the VRA, so that states with an ongoing history of discrimination, such as Alabama, Arizona, Georgia, Florida, Mississippi, North Carolina, South Carolina, and Texas, were not “singled out.” As the late Justice Ruth Bader Ginsburg warned in her dissent: Throwing out preclearance “is like throwing away your umbrella in a rainstorm because you are not getting wet.” However, the majority opinion emphasized that “Congress may draft another formula based on current conditions.”
As the U.S. Civil Rights Commission documented five years after Shelby, the current voting and election conditions showed that Georgia had enacted more potentially discriminatory changes in voting than any other state. The updated Voting Rights Advancement Act was meticulously drafted to be based on current conditions. The legislation—renamed for the late John Lewis—nearly passed in 2022, but was blocked by a filibuster. If the John Lewis Act were law, Georgia would still be covered, the state board’s changes would have been submitted for preclearance, and their implementation frozen during the review. If they were found to put voters of color in a worse position than before, they could not be implemented, especially this close to an election.
Fake electors and election deniers who would illegally fail to certify the vote count are a threat to multiracial democracy. False allegations of noncitizens voting and other disingenuous rhetoric in Georgia are reminiscent of historic exclusion of Black and brown voters. The potential failure to certify the vote count in Georgia and “strategic manipulation of elections” reflected in the last-minute changes put democracy at risk for the state’s 2.6 million eligible Black voters as well as the 10 percent of Georgians who are Asian and Latino American citizens of voting age. Defeating these measures in the courts is the best we can hope for this time around. It is essential, though, that before the next election, Congress passes and a future president signs the John Lewis Act into law. Our democracy may depend on it.
