Photo Credit: https://decaturish.com/2021/03/photos-voters-protest-senate-bill-202-georgias-new-voter-suppression-law/ (last visited August 19, 2021).
Written By: Lorel Stano
Student Materials Editor, American Journal of Trial Advocacy
On the evening of March 25th, Georgia Governor Brian Kemp signed Senate Bill 202 into law just an hour after it cleared the General Assembly, with the asserted purpose of “ensur[ing] elections in Georgia are secure, fair, and accessible.”[1] On the contrary, voting organizations in opposition of SB 202 have filed lawsuits claiming that the bill directly and intentionally diminishes accessibility and fairness in violation of the First and Fourteenth Amendments and Section 2 of the Voting Rights Act.[2] Multiple provisions of SB 202, referred to as “Jim Crow 2.0” by critics and protestors outside the state Capitol, are under constitutional scrutiny for unjustifiably and disproportionately imposing burdens on the minority, young, poor, and disabled citizens of Georgia.[3]
The bill, titled “Election Integrity Act of 2021,” makes several changes to laws regarding elections and primaries that were challenged in court during the 2020 general election, citing a need to restore trust and confidence in Georgia’s election systems.[4] An election year during a pandemic created a dramatic increase of mail-in ballots for election officials in Georgia to process, signaling the need for certain election and primary processes to be revamped.[5] The 98-page bill responds to such issues, providing for things like: notification of the relocation of polling places, printing of ballots on safety paper, absentee ballot drop box restrictions, poll watcher training, and sanctions for opening an absentee ballot.[6] However, 16 provisions in the bill are under fire for hampering the right to vote for certain Georgians and inappropriately giving power that belongs to state and local election officials to legislators.[7] Georgia, a state won by President Biden in the 2020 election by 11,779 votes, many placed by mail, will now require voters to request an absentee ballot within 3 months before the election rather than the former 6.[8] This change will give local election boards less time to process requests for mail-in ballots, which made up about 26 percent of the state’s electorate in 2020.[9] Another change to absentee ballots in Georgia is the identification requirement.[10] Absentee voters in Georgia will now be required to provide their driver’s license number or that of another state-issued form of identification, a step further than the previous requirement of the voter’s signature on the application.[11]
In many ways, absentee voting was the easier option for Georgia voters in the 2020 election. Prior to SB 202, third-party groups were allowed to prefill absentee voter applications for potential voters to make the process faster.[12] Also, many voters were reminded of their eligibility prior to the June primary election when Brad Raffensperger, Georgia’s secretary of state, mailed out absentee ballot applications to every registered voter in the state.[13] Page 47 of the bill puts restrictions into place for absentee drop boxes, stating that a board of registrars or absentee ballot clerk “may only establish additional drop boxes totaling the lesser of either one drop box for every 100,000 active registered voters in the county or the number of advance voting locations in the county.”[14] Combining this with recent voter registration data reveals that drop boxes will sharply decrease from the 94 in the 2020 election to 23 at most.[15] SB 202 furthers the detriment of this decrease by removing the accessibility of outside drop boxes and dictating that the remaining boxes may only be accessed inside of government buildings during operation hours.[16] Plaintiffs in pending litigation argue that these provisions will disproportionately affect Black communities and Black voters who voted absentee in extremely high rates in 2020, as well as active grassroots organizations that focus on these communities and voters.[17] Perhaps one of the most discussed and challenged provisions of SB 202 comes in at page 73, restricting anyone who is not an election official from providing food, water, or assistance to any voters who are waiting in line within 150 feet of polling places or within 25 feet of any voter standing in line.[18] Plaintiffs claim that this blanket prohibition “advances no plausible election goal, exacerbates the burden of waiting in long lines, and disproportionately impacts Black and other minority voters” due to the likelihood of polling places in Black neighborhoods experiencing longer lines and wait times.[19] Defendants and supporters of SB 202 deny that it was motivated by racial discrimination and insist that this legislation was designed to increase confidence in the election system on both ends of the political spectrum.[20]
Another change responsive to allegations of 2020 election fraud is in the creation of an election hotline maintained and authorized by the Attorney General in order to hear allegations of voter intimidation and other illegal election activities.[21] The bill further removes the secretary of state from their role as a voting member on the State Election Board and replaces them with a new chairperson to be elected by the General Assembly.[22] SB 202 declares that this chairperson will be a nonpartisan position; however, the position will be appointed by the General Assembly, i.e., a partisan legislature.[23] To further imply nonpartisanship, said chairperson is not allowed to have ran for public office or made any campaign donations in the last two years.[24] The State Election Board is further empowered by SB 202 to suspend election officials and name temporary replacements.[25] Plaintiffs insist that these changes were not necessary as Georgia’s election processes are already secure, and that they decrease, rather than increase, voter participation and confidence.[26] A total of four lawsuits are currently challenging SB 202 as discriminatory and unconstitutional, claiming that it violates the First and Fourteenth Amendment by interfering with and substantially burdening the right to vote.[27] The lawsuit filed by New Georgia Project along with other voting organizations further claims that SB 202 violates the Voting Rights Act of 1965 because it disproportionately burdens Black voters.[28] Before the passage of SB 202, Georgia’s existing voting laws and election processes were referred to as the “gold standard,” evidenced by record turnout in the 2020 election.[29]
[1] @GovKemp, Twitter (Mar. 25, 2021, 6:10), https://twitter.com/GovKemp; S. B. 202, Reg. Sess. (Ga. 2021) [hereinafter S.B. 202].
[2] Mark Niesse, Absentee and Runoff Voting Targeted After 2020 Elections, The Atlanta Journal-Constitution (updated March 25, 2021).
[3] Complaint at 3, The New Georgia Project et al. v. Raffensperger et al., No. 1:21-cv-01229 (N.D. Ga. Atl. Div.).
[4] S.B. 202, Reg. Sess. (Ga. 2021).
[5] Id.
[6] Id.
[7] Nick Corasaniti and Reid J. Epstein, What Georgia’s Voting Law Really Does, N.Y. Times (Apr. 2, 2021).
[8] Id.
[9] Id.
[10]Id.
[11]Id.
[12]Id.
[13]Id.
[14] S.B. 202, Reg. Sess. (Ga. 2021).
[15] Nick Corasaniti and Reid J. Epstein, What Georgia’s Voting Law Really Does, N.Y. Times (Apr. 2, 2021).
[16] Id.
[17] Complaint at 18, The New Georgia Project et al. v. Raffensperger et al., No. 1:21-cv-01229 (N.D. Ga. Atl. Div.).
[18] Nick Corasaniti and Reid J. Epstein, What Georgia’s Voting Law Really Does, N.Y. Times (Apr. 2, 2021).
[19] Complaint at 19, The New Georgia Project et al. v. Raffensperger et al., No. 1:21-cv-01229 (N.D. Ga. Atl. Div.).
[20] S.B. 202, Reg. Sess. (Ga. 2021); Def.’s Answer at 7, The New Georgia Project et al. v. Raffensperger et al., No. 1:21-cv-01229 (N.D. Ga. Atl. Div.).
[21] Nick Corasaniti and Reid J. Epstein, What Georgia’s Voting Law Really Does, N.Y. Times (Apr. 2, 2021).
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Complaint at 5, The New Georgia Project et al. v. Raffensperger et al., No. 1:21-cv-01229 (N.D. Ga. Atl. Div.).
[27] Stephen Fowler, Here Are All the Lawsuits Challenging Georgia’s New Voting Law, Georgia Public Broadcasting (updated Apr. 2, 2021).
[28] Id.
[29] Id.
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