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Opinion: In Georgia, will courts leave the fox in charge of the hen house?

Joshua A. DouglasJoshua A. Douglas
Georgia SB 202 imposes numerous new voting hurdles: a shorter absentee voting window, new ID rules for absentee ballots, limits on the number and availability of ballot drop boxes, and a strange prohibition on anyone but poll workers providing food or water to voters waiting in line. How could offering someone water while they stand in a long line unduly influence their vote? The law gives the State Election Board greater authority to intervene in the actions of county election boards, opening the door to a partisan takeover of local election authority. Opponents have compared the law to Jim Crow-era policies that make it harder for racial minorities to cast a ballot.
But the law also offers a few mild voter expansions: Increases in early voting, for example, including an additional mandatory Saturday. There are also some provisions that will ease election administration, such as permitting counties to start processing, but not counting, absentee ballots earlier, which will allow for faster announcement of results on election night.
Opponents immediately filed suit. The problem is they have an uphill battle to successfully challenge the worst aspects of the law. That’s because the Supreme Court and lower federal courts have espoused a particularly crabbed view of the constitutional right to vote.
In the 1960s, the Court understood voting as a fundamental right, “preservative of other basic civil and political rights.” The Court applied strict scrutiny, or the highest level of review — simply put, a state would have to provide a really strong reason for burdening the right to vote.
But over the ensuing decades the Court has weakened that protection, culminating in a 2008 case in which the Court refused to strike down Indiana’s voter ID law. The Court showed deference to the state to pass a law that targeted in-person voter fraud even though there is no evidence that in-person impersonation actually exists to any significant degree. The Court also removed a key protection of the Voting Rights Act in a 2013 decision that would have prevented Georgia and other states with a history of racial discrimination from enacting a law that has a disproportionate impact on minority voters.
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The problem became even worse during the 2020 election last year. In a series of emergency cases, the Court and the federal appellate courts sided with states over and over again. Voters argued that state laws, such as on the deadlines for returning absentee ballots, made it particularly difficult to cast their votes during the pandemic. Many district courts, looking at the evidence, agreed, ordering states to ease election rules to help voters. But the appeals courts deferred to the states. They said that courts should not second-guess state election administration, even with strong evidence of likely disenfranchisement. (The same principle of deference was one reason courts rejected the post-election litigation, filed by lawyers representing the previous President’s team, which tried to overturn the results, though of course in those cases the courts were protecting votes already cast.)
Unfortunately, this narrow jurisprudence led to actual disenfranchisement. Wisconsin, for example, threw out over 1,000 absentee ballots because they did not arrive until after the polls closed. Similarly, Missouri voters who used the state’s temporary “mail-in” ballot process due to concerns about Covid were more likely to have those ballots rejected, especially given that the state forbade them from delivering their completed ballots in person. Court rulings initially would have relieved the burdens on voters in these states, but the appeals courts reversed those decisions. The courts allowed the legislatures’ rules to stand even in the face of harm on voters and correspondingly weak state interests.
And therein lies the further problem with the Georgia law — and likely one reason why the legislature felt emboldened to pass a restrictive law in the first place. The Republican legislature, seeing control of the state slip away — especially as the state’s Black population has increased and voted for Democratic candidates — passed a law to make it harder to vote to try to keep themselves in power. They did so knowing that plaintiffs would have a difficult time challenging the law in court.
We should hope that courts would stand in the way of a partisan legislature that acts with pure self-interest when crafting voting rules. After all, election law is the exact area in which politicians are most likely to enact rules to help keep themselves in power, meaning that deference to the legislature is particularly unwarranted. The federal courts’ recent track record, however, has been disappointing.
To truly effectuate the constitutional right to vote — the most important right in our democracy — the courts must carefully scrutinize this Georgia law. If they do so, they will see that many of its provisions, such as making it a crime to offer water to thirsty voters waiting in line, are unconstitutional and unlawful. While the few voter expansions in the law are laudable, the state has no valid justification for many of its voting restrictions.
The courts should not make the mistake of deferring to the legislature in how to run elections. Otherwise, the foxes will truly be guarding the hen house.
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