Georgia election officials, supported by the Republican Party, tried to prevent 70,050 citizens from voting this past Saturday in the hotly contested runoff election for U.S. Senate between Sen. Raphael Warnock (D-Ga.) and his Republican challenger Herschel Walker. While Republicans didn’t get away with it, the fact that they tried should be a national outrage.
When former President Donald Trump asked Georgia Secretary of State Brad Raffensperger (R) to “find” 11,780 votes after the 2020 election, we understood it to be an attempt to subvert the election results. Months later, when the state enacted a new election law that made registering to vote and voting more difficult, it was widely labeled as voter suppression. Business leaders spoke out. Major League Baseball moved its All-Star Game from Atlanta.
Yet, when over 70,000 Georgians were almost denied the ability to vote last Saturday, there was no similar outpouring.
Not every act of voter suppression comes from a new law and not every election is subverted by the gross tactics of partisan actors. Voter suppression can happen — and most often does happen — when election officials simply refuse to follow existing laws or make choices about how to interpret technical legal provisions in ways that disadvantage voters.
For example, in this year’s midterm elections, Bexar County, Texas was successfully sued for violating state law when the county failed to designate the correct number of polling locations. The same happened in Dutchess County, New York when election officials refused to establish a polling place at Vassar College, despite a state law requiring them to do so. York County, Pennsylvania was sued for failing to translate election materials into Spanish as the law has required for decades.
In each instance, election officials refused to follow existing laws, prompting organizations to take matters into their own hands by undertaking expensive litigation. Notably, the laws these election officials were refusing to follow were not the omnibus voter suppression laws that made their way onto national news headlines. Rather, these were laws that existed for decades that should have been more than familiar to and understood by the election officials tasked with enforcing them.
Such was the case in Georgia, and it was no small matter: At stake were the rights of over 70,000 Georgia voters in 27 counties who would not have been able to cast their ballots on the Saturday after Thanksgiving.
At the center of this dispute was the application of a 2016 Georgia law that prohibits counties from offering early voting in primary and general elections on certain Saturdays that follow holidays. On its face, the law is unclear whether a runoff election qualifies as a “primary” or “general” election and thus is open to interpretation.
Tipping the scale in favor of allowing early voting is a newer law that requires counties to begin advance voting — Georgia’s term for early voting — for this rapidly approaching runoff election “as soon as possible” to maximize the number of days on which Georgians can vote.
Also supporting allowing early voting on the Saturday after Thanksgiving is the fact that in 2020, several Georgia counties held in-person early voting on Saturday, Dec. 26, 2020 — the day after Christmas.
Immediately following Election Day on Nov. 8, 2022, the Georgia secretary of state and his chief deputy adopted this more permissive view. On Nov. 9, both of them told national television audiences that counties could offer in-person early voting on the Saturday after Thanksgiving — Nov. 26. Three days later, without further public explanation, the secretary changed his position. In a written guidance document sent to Georgia counties on Saturday, Nov. 12, the secretary’s office stated flatly that voting on Saturday, Nov. 26 was prohibited.
Why the change? We don’t know. What we do know is that the new interpretation was incorrect.
As is so often the case, the job of rectifying this wrong — of holding election officials accountable — fell to the courts. Days after the incorrect guidance was given, the Democratic Party and Warnock’s campaign filed a lawsuit in state court. Predictably, the Republican National Committee (RNC), National Republican Senatorial Committee (NRSC) and Georgia Republican Party intervened to support the secretary’s wobbly position.
The court process was a rout from start to finish. First, the trial court struck down the secretary’s guidance and repudiated his incorrect interpretation. Both the secretary and GOP appealed, which was then denied. At this point, the secretary could see the writing on the wall, later announcing he would appeal no further, but that did not stop the Republican Party. The RNC, NRSC and Georgia Republican Party filed a last-ditch appeal with the conservative Georgia Supreme Court. On the Wednesday before Thanksgiving, the court unanimously denied this final appeal.
All told, 13 judges — the majority of whom were appointed by Republican governors — rejected Republicans’ effort to restrict voting. Not a single judge who heard the case or any of its appeals agreed with the secretary or Republican committees.
The result was that 27 counties — both Democratic- and Republican-controlled — held early voting on Saturday, Nov. 26. Over 70,000 voters took advantage of the opportunity, close to the 93,000 vote margin by which Warnock won his 2021 runoff election. In what is expected to be another close election, the ability of counties to have early voting on this Saturday may prove pivotal to the outcome.
With these facts, I am left to ask: If the secretary’s restrictive interpretation of the Saturday voting law isn’t voter suppression, then what is?
I anticipate that people will offer two responses.
First, they will point out that we don’t know how many of those 70,050 voters would have voted on another day and thus would still have been able to vote without the Nov. 26 option. While that is true, that is not the test applied to any other form of state-sponsored voter suppression. The question is not whether voters can overcome the barrier to voting, but whether the barrier to voting is real and unlawful. Given what we know about the importance of weekend voting for young and minority voters, here it meets both tests.
Equally important is the fact that the secretary’s initial interpretation of the law led to uncertainty that itself likely caused unremediated suppression. While 27 counties ultimately offered voting last Saturday, Georgia has 159 counties. Likely some number of counties would have offered Saturday voting if it had not been called into question and subject to litigation. Voters in those counties remain affected by the secretary’s initial, misguided interpretation of the law.
Second, defenders of the secretary will argue that he acted in good faith when interpreting a vague law. In response, I ask: How do we know that? In retrospect, it seems clear that the secretary’s interpretation of the law was wrong, and clearly so. But, many of us knew it was wrong from the start.
As Georgia law professor Anthony Michael Kreis said after Democrats filed their lawsuit, the secretary’s legal argument is “weak and inconsistent with the rules of statutory interpretation and Georgia case law.” Even if the secretary was genuinely confused by the law, he still chose to appeal the lower court’s decision at a time when counties were making decisions about whether to offer Saturday voting.
More fundamentally, however, voter suppression must be judged by the effect on the voters, not the subjective intent of government officials. If legislatures, for example, could enact laws that suppress voting rights so long as they did not have the subjective intent to do so, our democracy would be in far worse shape. Bad intent may be powerful proof of voter suppression, but the absence of it is not a defense.
Thankfully, in this instance, litigation ensured that more than 70,000 voters won the ability to cast their ballots last Saturday. That is something we all can celebrate.