Fighting for the right to vote

“When I became old enough to vote, it was so exciting getting to talk about it with my grandmother,” says Pope, who grew up in Kentucky and has lived in Georgia for more than 12 years. Pope did more than talk about it, though. She wanted to get more deeply involved with the process, and volunteering with Election Protection Georgia was a way to do that.

The nonpartisan coalition works yearround to make sure citizens of all backgrounds have the opportunity to exercise their constitutional right to vote. Sometimes, volunteers work the phones and provide answers and other information remotely. Other times, volunteers serve as nonpartisan election observers, spending part of election day on site at polling places. Observers can only approach voters more than 100 feet from the polls, but they can help make the process smoother by assisting with logistics as well as providing a watchful eye on the proceedings to make sure irregularities are kept to a minimum.

Recent elections have seen an uptick in those irregularities.

In Henry County, Pope’s first time as an election observer in 2008, she saw a great number of voters being turned away from the polls. For many of them it was because they presented an expired driver’s license or other ID. Pope had a copy of the state statutes in her hand and upon showing those voters that an expired ID was not a disqualifier, they were able to get back in line. The precinct captain wasn’t happy about it, but Pope was pleased with having done her job.

Successive elections that Pope worked enlightened a whole host of other questionable situations. Late changes to precinct locations that confused voters. Names missing from voter rolls. Power and internet outages or no power cords for voting machines at all. One year, she received a call from a precinct where a sign that read “English speaking only” had been hung on a table.

“What people saw in June of this year, when we had the big problems, I wasn’t surprised,” Pope says. “Because it always goes on.” 

A COMPLETE MELTDOWN

Delayed from April to June because of the COVID-19 pandemic, the Georgia primary election made news for all the wrong reasons. Photos of long voting lines appeared in publications around the country and on websites all over the internet. There were broken voting machines at polling places, and poll workers weren’t fully trained in solving the problems. Many absentee ballots weren’t delivered on time, which just increased the number of people voting in person. Some waits in predominantly Black areas of Fulton County stretched to five hours or more.

Few problems were reported in rural counties around the state, but in the areas where most Georgians live — and especially where most people of color live — voting in the June primary was a nightmare. The Atlanta Journal- Constitution unsubtly called it an all-caps “COMPLETE MELTDOWN.”

For the past several years, incrementally but with purpose, Georgia has tightened its laws around voting registration and accessibility. For critics of that process, the June primary was a perfect storm. With five months before the presidential election, could the state fix all of the problems that emerged over the summer? Did the state even want to? 

FROM JIM CROW TO SHELBY COUNTY

The subject of voting rights in Georgia has been front and center for years — decades, actually. For nearly a century following the Civil War, voting rights in Georgia were basically about who could vote (whites) and who couldn’t (everyone else). The post-war 15th Amendment to the Constitution prohibited federal or state governments from denying citizens the right to vote based on their race, but that didn’t mean they actually were able to vote. Even after the 1920 passage of the 19th Amendment, which extended the vote to women, it was really only white women who could take advantage.

“It has certainly been the case that just because something has been written into the Constitution, it doesn’t mean it’s actually guaranteed on the ground,” says Robert Schapiro, Asa Griggs Candler Professor of Law.

Indeed, many states — mostly in the South and certainly including Georgia — created a host of new laws to deny African Americans and many poor whites the right to vote. Literacy tests, poll taxes, and straight-up intimidation successfully prevented generations of African Americans from exercising their Constitutional rights.

Pope had her students in one of the college classes she teaches take a sample literacy test that African Americans were required to pass in order to vote. Pope’s students were shocked and struggled to pass the test.

The Voting Rights Act of 1965, which prevented the denial of the right to vote because of one’s race, changed that. Under its guidelines, and because of the state’s past discriminatory practices, Georgia was one of the states that required federal clearance before making changes to its elections. For nearly 50 years, the Voting Rights Act was one of the most steadfast laws in the nation, and it was reauthorized by Congress multiple times.

But in 2013, the Supreme Court struck down one of the paramount elements of the Voting Rights Act. Section 4(b), which included a formula that determined which jurisdictions required federal clearance for voting changes, was determined to be out of date. 

“Things have changed dramatically,” Chief Justice John Roberts wrote for the Court. He rightfully noted that minority voting rates had increased and that minority candidates held office at unprecedented levels.

New voting laws were free to be made, and since then things have certainly been changing. 

Since Shelby County v. Holder removed federal clearance requirements, a host of new ways to either limit voting directly or at least make the process harder to accomplish have emerged, and the vast majority have had adverse effects on minority populations.

Across the country (including in many places outside the South) more than 1,000 polling places (including many in predominantly African American areas) have closed, early voting options have been cut back, voter rolls purged, and strict voter ID laws passed.

“It’s been a long time since electoral tampering was stuffing a ballot box. That was ages ago,” says Rebecca Shoot 19L. “For decades now, it has been the lead-up to an election and the gradual process of disenfranchising voters.” 

Shoot’s expertise is in international democracy, but, like Pope, she has also volunteered as an election monitor, and she says the irregularities she saw in American elections are far beyond anything she has seen at the more than a dozen international elections she’s worked.

“Historically, often it is the majority that is imposing these restrictions on a minority. So, it’s an area where the democratic process may not function well,” Schapiro says. “For all of these reasons, it would appear that this is an appropriate area for judicial intervention. But in cases like Shelby County, we have seen courts retreat from their historical commitment to vindicating the voting rights of minority groups in the United States.”

VOTING RIGHTS V. VOTER SUPPRESSION

Voter ID laws predate Shelby County by more than a decade. In 2001, fourteen states had some sort of voter ID law on the books, but just four of those required photo identification. By 2014, 34 states had passed voter ID laws, and half of those required photo identification. Between 2001 and 2012, nearly 100 voter ID laws of some sort were adopted throughout the United States. 

Proponents suggest that voter ID laws prevent fraud, but there is scant evidence that this is true. What voter ID laws can do, though, is make it harder for some citizens to cast ballots.

“It doesn’t say anything about race, and, in theory, anybody can get a state-issued ID or a driver’s license,” Schapiro says. “But as a practical matter, it’s clear that the impact of that kind of requirement is felt more strongly in traditionally underrepresented areas and among minority groups.” 

When a state government is trending conservatively, stronger voting ID requirements generally follow. 

Writing in the journal Political Research Quarterly in 2015, William Hicks, associate professor of political science at Appalachian State University, and three colleagues, stated that “because the participatory rates of the social groups comprising the main supporters of the two major parties are highly unequal, it provides an incentive for some party elites to pursue a demobilization strategy.”

This suggests that while one side works hard to register as many voters as possible — mobilize them — the other side works just as hard to lower that number. Georgia has been one of the leaders in this area.

In 2005, Georgia was one of the first states to pass what’s known as a “strict voter ID” law. Following court challenges, it didn’t take effect until 2008, but when it did, the law required voters to show a government-issued identification document that included a photo. If the voter didn’t have one, they would be issued a provisional ballot. If they did not return to an elections office within a few days with the proper ID, their vote wouldn’t count.

Georgia is also one of the few states that removes voters from the rolls if they skip a certain number of elections. Again, this is defended as a safeguard against fraud, and in 2017 the state removed more than 500,000 people from the voter rolls. In 2018, the Supreme Court upheld Ohio’s voter-purge law, which was similar to Georgia’s. Later independent investigations showed that more that 300,000 of those voters were removed improperly, and while many of those purged re-registered, many others did not. 

Now, in the midst of the COVID-19 pandemic, the safety and security of absentee balloting is being called into question at the highest levels of government, even though mail-in voting has been a staple of the process since the Civil War. During the 2016 presidential election, nearly one-quarter of all votes were received by mail. 

“I’ve only voted in person once in my life. I’ve always voted absentee,” says Shoot, who will also vote absentee in the 2020 election. “Now, have all of my previous ballots been called into question? As well as the ballots of our servicemen and women overseas? I think that is incredibly dangerous.” 

Like every other law or measure that restricts voter enfranchisement, voter purges, voter ID laws, and even belt-tightening at the Postal Service is defensible, even if voter fraud has not been proven to be widespread. So do they actually cross the line of voter suppression? 

“Part of the point of the Voting Rights Act is to say, ‘let’s look at what the effect of a measure is,’” Schapiro says. “And if the effect of a measure is to make it more difficult to vote, without a very strong justification, then it is fair to call it voter suppression.” 

BATTLING VOTER SUPPRESSION

Whatever impediments there are to voting these days really do pale to what earlier generations — particularly men and women of color — had to deal with. From the 1880s to the mid-1960s, Black men or women who tried to vote in certain sections of the country could lose their lives. 

“I would never want to compare what we are going through now to what they went through then,” says Daraka Satcher 99L, whose father, former Surgeon General David Satcher, participated in the Civil Rights movement in the early 1960s as a student at Morehouse College.

“But their work did not fully resolve the issue,” he says, soberly. “This is the next phase. We have to build on what they established. For most problems, it can take more than a generation to come up with solutions.” 

For Schapiro, that requires federal action. “There is a critical role for the national government to guarantee the effective right to vote for all citizens of the United States wherever they live,” he says. “And that if the state and local authorities are not vindicating that right, as has often been the case, it really is the responsibility of the national government to step in, and we have not seen that lately.”

Satcher agrees. He served two years as chief of staff to Georgia Rep. Hank Johnson and two more years as deputy assistant secretary in the Department of Commerce. He has seen the effectiveness of federal action first-hand.

“If only to emphasize the importance of it, involvement on the federal level is crucial,” Satcher says. “It sends a message.”

One thing is for sure, whenever voting rights issues have been presented to actual voters, those voters tend to favor expanding them. For instance, in 2018, nearly 65 percent of Floridians voted to amend the state constitution to restore voting rights of the state’s citizens with felony convictions once they completed their sentences. That numbered nearly 1.4 million people. Almost immediately, the Florida legislature began work to undercut that result, most effectively by passing a law that required payment of all fees and fines as a prerequisite for voter registration. A district judge, saying that an “overwhelming number” of ex-felons would not be able to make these payments, found the law unconstitutional. But the 11th Circuit Court of Appeals overturned the ruling, and in July 2020, the Supreme Court declined to intervene, leaving many of these potential voters in limbo.

There are also rumblings of federal action in Congress. 

The Voting Rights Enhancement Act was passed by the House of Representatives in 2019. It creates a new coverage formula to replace the one Shelby County struck down and also establishes a targeted process for reviewing voting changes in jurisdictions nationwide, among other reforms. 

On July 22, 2020, Sen. Pat Leahy of Vermont reintroduced the bill as the John Lewis Voting Rights Enhancement Act to honor the legendary civil and voting rights leader and Georgia Congressman who had died from cancer five days earlier. 

The full Senate has yet to take up the legislation.