Late last month, Georgia Republicans embarked on a lawsuit that could result in their taking control of the electoral administration in Fulton County – a Democratic stronghold that encompasses most of Atlanta.
Under Georgia’s new electoral law SB 202, the GOP-controlled state electoral body can recall a county’s top electoral officer and replace it with a temporary superintendent (although this process will likely take months as the board must go through some procedural steps first)). Once in place, such a superintendent can disqualify voters, relocate polling stations, and possibly even refuse to confirm election results.
Voter suppression laws are nothing new, even in the post-Jim Crow era. And Georgia’s SB 202 is hardly the first attempt by Republican lawmakers to distort elections by making it difficult for democratic constituencies to cast a vote.
However, previous efforts to restrict the right to vote have often placed unnecessary hurdles in the way of voters, such as having to produce specific IDs or limiting the options available to voters. Such laws are troubling, but they can be overcome by determined voters.
SB 202, on the other hand, is part of a new generation of electoral laws that target the nuts and bolts of electoral administration and potentially allow voters to be deprived of the right to vote even if they obey the rules.
With state voter suppression laws aimed at ballot counting and election certification being relatively new, the Democrats didn’t come up with a bill in 2021 to address these laws. The For the People Act contains a number of provisions designed to neutralize state laws that make voting difficult. But the drafters of the For the People Act did not anticipate such a thing as the provisions of SB 202, which allow the Republican Party to take control of the administration of elections in democratic circles.
That brings us to the Preventing Election Subversion Act of 2021, a bill by Senator Raphael Warnock (D-GA) designed to fill that loophole.
It does not prevent Georgia’s electoral body from dismissing a local electoral officer, but it does provide some procedural safeguards to prevent local officials from being dismissed on partisan grounds. Among other things, it enables such officials to sue for reinstatement in a federal court.
In addition, the law would make it a crime to harass or intimidate election workers in order to disrupt their official duties. GOP lawmakers in some states, including Texas, are pushing for laws that make it difficult for election officials to remove partisan observers disrupting an election. Warnock’s bill would prosecute the worst-behaving election observers.
Realistically, Warnock’s bill has a long way to go before it becomes law. Warnock is reportedly in negotiations with Senate Majority Leader Chuck Schumer and Senator Joe Manchin (D-WV) to include “electoral subversion” safeguards in a Manchin-blessed package of proxy reforms. As the most conservative Democratic Senator in an evenly divided Senate, Manchin is the key to further developing meaningful voting rights legislation.
And even if Manchin joins the Preventing Election Subversion Act, that support probably won’t matter much unless Democratic senators unanimously agree to overturn the GOP’s power to filibuster voting laws. In addition, there is always the danger that an increasingly conservative judiciary will refuse to enforce new voting rights laws.
But at least this bill is a sign that Democrats understand that the GOP recently escalated its tactics in the suffrage war and that Democrats – and democracy – need adequate countermeasures.
What Exactly Could The Preventing Election Subversion Act Do In Georgia?
SB 202 poses a diabolical problem for federal politicians.
At first glance, SB 202 creates a process that can be used to remove local election officials who violate the law or demonstrate “non-compliance, administrative offense or gross negligence in conducting elections”. Few would argue that election officials who repeatedly break the law or prove unable to do their job well should stay in office. It is perfectly reasonable for a state to use a bipartisan process to remove officials who are bad at their jobs.
The problem with SB 202, however, is that it creates a partisan process for the removal of local election officials. The bill ensures that Republicans control four of the five seats on the state election committee as long as the GOP controls both chambers of the state parliament. (As has been since 2005.) And it removes Secretary of State Brad Raffensperger, a Republican who has dismissed former President Donald Trump’s attempts to overturn Joe Biden’s victory in Georgia’s 2020 election, as chairman of the State Council.
The Preventing Election Subversion Act contains several provisions that would limit the GOP’s ability to run local election administration in Georgia – and other states that enact SB 202-style laws. One of the central provisions is that nationwide civil servants may only remove a local electoral officer “for inefficiency, breach of duty or misconduct”.
Of course, SB 202, at least externally, also offers local election officials similar protection. But SB 202 allows the GOP-controlled state electoral committee to determine whether an official has committed misconduct. Warnock’s bill would allow a local election official targeted by SB 202 to sue for reinstatement in federal court.
The ultimate determination of whether a local official has done his job so badly that dismissal is warranted would therefore be made by federal judges who, in theory at least, are less partisan than a Republican-dominated council of state.
Warnock’s bill also contains provisions to ensure that such a federal lawsuit is vigorously carried out by a well-funded team of lawyers. Among other things, it provides that a municipal returning officer who has been wrongly released can receive “reasonable legal fees” if a lawsuit is successfully brought.
And under the bill, if a state initiates a process to remove a local officer, it must notify the Civil Rights Division of the U.S. Department of Justice, and the Department of Justice can also challenge the state’s efforts to remove such an officer in the state court.
The Preventing Election Subversion Act only works when federal judges are bound by the rule of law
The basic theory underlying the Preventing Election Subversion Act is that federal courts can be trusted to stop partisan efforts to take control of the local election administration. But it is far from clear that this theory is correct.
The Supreme Court, with its conservative majority of 6: 3, is generally opposed to voting laws. In Shelby County v. Holder (2013), the court deleted an important provision of the Voting Rights Act – the main federal safeguard against racial voter suppression – based on an entirely new interpretation of the Constitution that contradicts the constitutional text. Similarly, in the Brnovich v DNC judgment (2021), the Court of Justice imposed new restrictions on the Voting Rights Act which have no basis in the text of that Act.
In other words, Congress could pass a law that effectively neutralizes the most malicious provisions of SB 202, but there is no guarantee that the Supreme Court will follow that law.
Another danger is that, should the Act to Prevent Electoral Subversion become law, individual federal judges will use the law in bad faith.
For example, imagine the Georgia Republicans uncover some cases where the Fulton County electoral board made suboptimal management calls – the kind of little mistakes that are inevitable in any operation that tallies hundreds of thousands of ballots. Since Warnock’s bill allows local officials to be dismissed for “inefficiency, negligence, or misconduct,” a partisan federal judge could argue that these minor missteps justify the dismissal.
And then there is the danger that the Supreme Court – perhaps through the same textually challenged legal interpretation as in Shelby and Brnovich counties – repeals a federal law regulating who can hold elections.
In general, federal courts are reluctant to hear lawsuits that challenge the division of power between a state’s “political divisions”. While there are some exceptions to this general rule, if Georgia decides to take over the Atlanta Police or its schools, or any other government agency that is usually run by local Atlanta officials, federal courts would typically not intervene.
The Supreme Court has also ruled that the federal government cannot “command” state officials and require them to do their jobs in certain ways. A Conservative Supreme Court could potentially expand this doctrine to prevent the federal government from determining the elections in Fulton County.
But the Constitution also gives Congress unusually extensive powers to regulate congressional elections. While the Constitution allows states “to determine the times, places, and manner in which elections are held for Senators and Representatives,” it also allows Congress “to make or change such regulations by law at any time, except for the places Election of Senators ”.
As the Supreme Court in Smiley v. Holm (1932) noted that federal law can “provide a complete code of congressional elections” and regulate matters as granular as “communications, registration, election surveillance, voter protection, fraud prevention” and corrupt practices, vote counting, duties of inspectors and campaigners as well Preparation and publication of election results. “
In other words, a Supreme Court that believes it is bound by the text of the Constitution should uphold the ability of Congress to prevent Georgia Republicans from administering Fulton County’s congressional elections. But America, of course, is ruled by the same Supreme Court that gave us Shelby County and Brnovich, so there is no guarantee that Warnock’s bill will be upheld even if it goes into effect.