This 2018 election could become one of the most litigated in state history.
Already, in June, we saw Georgia’s practice of purging from its rolls hundreds of thousands of voters, some dead and many others simply disinterested, given shelter by the U.S. Supreme Court.
Monday brought a lawsuit that asked a federal judge to ponder why Gwinnett County, a rapidly changing community with 9 percent of the state's population, was responsible for 37 percent of the state's rejected absentee ballots.
Tuesday resulted in a parallel lawsuit filed by the ACLU, alleging that the practice of letting a single election official determine whether a voter’s signature on an absentee ballot is authentic “is a literacy test reminiscent of Jim Crow.”
This is on top of yet another federal lawsuit, filed last week, challenging Georgia's policy of accepting only pristine voter registration applications that have been cross-checked by one of two government databases, one state and one federal.
From 2013 to last July, the “exact match” policy instituted under Secretary of State Brian Kemp, now the Republican candidate for governor, had sent some 51,000 voter registration applications into a kind of bureaucratic limbo – 80 percent of them submitted by African-Americans, Asians or Hispanics, according to the lawsuit. Some because of a mere misplaced hyphen or transposed letters.
It is this lawsuit that has generated the most heat. Both Kemp and his Democratic rival, Stacey Abrams, have camped out at their ideologically compatible national cable news platforms to express their outrage.
"Voter suppression is as much about terrifying people about trying to vote as it is about actually blocking their ability to do so," Abrams told CNN.
On "Fox & Friends," Kemp accused Abrams of trying to clear the way for illegal immigrants to vote on Nov. 6. "When you file a lawsuit, she's just trying to get the pick of a liberal judge that will make a ruling to order this. That's what the lawsuit's asking," the secretary of state said.
Actually, the lawsuit doesn't ask for that, although it does allege that database discrepancies often unfairly push naturalized citizens into the "pending" limbo.
But given that we’ve already begun to explain what this fight over “exact match” isn’t, we might as well continue.
“Exact match” isn’t as dire as many Democrats describe. Last week, Democratic rhetoric became so heated that the Georgia chapter of the ACLU put out a statement, assuring voters placed in “pending” limbo that they can still vote – if they bring photo ID “which substantially reflects the name you used on your voter registration form.”
Otherwise, “pending” voters can still cast provisional ballots – then work like hell to prove they are who they are within three days. Which indeed could be a logistical hurdle.
Neither are Republicans as innocent in the "exact match" fight as they maintain. "This is a politically motivated, manufactured story, and we will prevail in court," Kemp told the Valdosta Daily Times.
Yes, this plot line has been manufactured, and Kemp has been deeply involved in its writing.
In 2010, during Kemp’s first year as secretary of state, the Barack Obama administration ended nearly two years of court battles and gave U.S. Justice Department approval to a Georgia system, backed by a GOP Legislature, of verifying voters’ identity and citizenship.
Many of the details of how to implement the policy were left to Kemp. Which brought us the first iteration of “exact match.” From 2013 to 2016, the state denied 34,874 registration applications due to mismatched information. Applications by African-Americans were eight times more likely to be challenged than those filed by whites. Latino and Asian-American applications were six times more likely to fail. Several federal lawsuits were filed.
On Feb. 9, 2017, Kemp settled the federal court challenge “based on the advice of the attorney general’s office and in order to avoid the expense of further litigation,” according to a spokeswoman.
The date is important. Less than a week later, House Bill 268 began moving through the Legislature. Once signed by Gov. Nathan Deal, it would reinstate “exact match.”
A House vote on Feb. 23 approved the bill along strict party lines. State Rep. Mary Margaret Oliver, D-Decatur, one of the chamber's top legal experts, warned against parachuting "into ongoing litigation between parties in order to change the direction of a lawsuit."
Republicans pointed out that Exact Match 2.0 extended the period of time that prospective voters could fix problematic registrations from 30 days to 26 months. House Minority Leader Stacey Abrams, already making a name for herself as the leader of a Democratic-inspired voter registration movement, was unimpressed — given that discrepancies could be data input errors.
“How can you cure a problem that you don’t know about. How can you cure a problem that you have no control over?” Abrams asked.
At the time, some Republican lawmakers denied they were acting at Kemp’s behest. State Rep. Earl Ehrhart, R-Powder Springs, wasn’t one of them. “The underpinning for his settlement was that [Kemp] didn’t have the statutory authority,” Ehrhart said during debate. HB 268 would fix that.
Twenty months ago, Ehrhart predicted a return of the legal battle that just erupted. “We will go back in front of a federal judge. You mentioned parachuting in,” the Republican lawmaker said. “Sometimes we parachute in to the right judge. We’ll see what the next federal judge says. We have that right.”
Republicans in the state Capitol have put themselves in a bit of a box. In 2017, in order to build what they believed to be a more secure voting system, they reaffirmed a voter registration policy that could require tens of thousands of Georgians, most of them people of color, to jump through extra hoops in order to cast a ballot.
There are only two ways of justifying that decision. First, there is the argument that the collateral damage is worth the price.
You can see this in the Kemp campaign’s argument that Abrams’ own voter registration effort, the New Georgia Project, has itself contributed to the problem by submitting improperly filled out forms that fail to match up with government info. The problem is that this line of logic also requires a highly non-Republican view that government databases are practically perfect in every way.
But that argument is better than the alternative explanation, which is that a holding pen of tens of thousands of voter registrations isn’t a bug of the system, but a feature.
In that case, “exact match” would be a cousin to the computer-enhanced gerrymandering that dominates our political system. But rather than using the advantages of technology, “exact match” harnesses its flaws to produce what in sporting circles might be called a point-shaving system. And that would be wrong.
Yes, 2018 could be the most litigated election year in Georgia history. But we have entered a period of demographic trench warfare, and it will very likely be surpassed in 2020.
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