The U.S. Court of Appeals for the 11th Circuit will decide whether to continue blocking provisions of Georgia’s 2021 election law reform that civil rights groups say discriminate against Black and disabled voters.
The Georgia Republican Party and national GOP political committees are supporting state officials in their request that the appeals court overturn the Aug. 18 decision of District Judge JP Boulee, who issued preliminary injunctions on voting rules related to the controversial Republican-backed Senate Bill 202 Adopted following the 2020 presidential election.
The attorney general’s office filed an appeal in district court in Atlanta on September 18.
Boulee’s interim order makes it legal, for now, to distribute food and water to voters as long as they are within 150 feet of a polling place. Additionally, it rejects SB 202’s requirement that a mail-in ballot with an incorrect date of birth on the outer envelope be automatically rejected by the county clerk.
But Boulee denied the plaintiffs’ request to suspend provisions that limit access to drop boxes and can help voters return mail-in ballots.
The state is appealing Boulee’s injunction regarding the two rules that would immediately apply to the 2024 election.
For a day Evidence A hearing between attorneys for the plaintiffs and defendants was held in Boulee’s courtroom on Friday.
Special Assistant Attorney General Gene Schaerr said the plaintiffs are trying to rehash old arguments that Republican lawmakers were discriminatory when they passed a bill that they say better regulates how elections work across the state.
“Adopting this motion so close to the election would create some confusion and doubt that SB 202 sought to clarify,” Schaerr said in court. “The only way this motion can provide relief is for the court to find that the majority in the General Assembly is racist.”
This lawsuit is a consolidation of several legal complaints filed after the voting law was signed in 2021.
Plaintiffs in Kemp v. Sixth Circuit of the American Methodist Episcopal Church include Delta Sigma Theta Sorority, the Georgia Muslim Voter Project, the Georgia Advocacy Office, which advocates for people with disabilities, and several other organizations.
Prosecutors say Georgia has maintained strict voting laws, such as automatic voter registration. They say SB 202 created an additional mandatory day of early voting and provided a number of protections to prevent voters from waiting in long lines. Additionally, prosecutors argue that mail-in voting rules merely protect the integrity of elections by providing another layer of transparency.
But the groups challenging SB 202 say the law is more likely to turn away Black and disabled voters on Election Day because of a rule that prohibits out-of-precinct voting unless it occurs within two hours of polls closing.
Mailbox boxes are the focus
Boulee said in his Aug. 18 order that an outright ban on the distribution of food and drinks to voters on the rolls could violate the First Amendment.
SB 202 also requires absentee voters to provide their Social Security number and driver’s license or ID card.
“The Court is simply not convinced that eliminating the date of birth requirement could result in fraudulent ballots or jeopardize election integrity,” Boulee wrote in the order last month.
During Friday’s court hearing, Augusta Democratic state Sen. Harold Jones, a member of the Senate Ethics Committee, which deals with election laws, testified on behalf of the plaintiffs.
Georgia’s 2020 election results have been confirmed by subsequent audits and recounts, although conspiracies about the state’s voting machines persist. Stephen Fowler/GPJones said the election law unfairly limits county election officials’ discretion in determining the appropriate number and locations of drop boxes for mail-in ballots.
Mailboxes must now be located in secured buildings and are only accessible during early voting business hours.
In 2020, state election authorities adopted an emergency rule allowing voters to drop off their mail-in ballots in containers available 24 hours a day. SB 202 marks the first time that out-of-office mailboxes will become a permanent rule.
“It was good to require every county to have absentee ballot drop boxes, but there is no reason for us (the Legislature) to limit the number of ballot drop boxes a county can provide,” Jones said.
Jones was asked by a defense attorney whether he believed his Republican colleagues who supported 2021 election law reform were racist.
Jones said his fellow Republican lawmakers were trying to solve a series of non-existent problems stemming from disappointing election results in 2020, when Democratic challengers upset incumbents Trump and U.S. Senators Kelly Loeffler and David Perdue.
“There wasn’t a real problem with mail-in votes until a Democrat won who was essentially relying on African-American (mail-in) votes,” Jones said.
Lawyers for both sides are using election experts to analyze the trend in voter turnout since the new election law came into force and compare more recent results with the two previous national elections.
Since the 2014 and 2018 elections, Georgia’s white voter base has shrunk, said Barry Burden, a political science professor at the University of Wisconsin-Madison, who testified for the plaintiffs on Friday.
He also pointed to the “racial polarization” of elections, where black voters tend to vote 70% or more for Democratic candidates, but socioeconomic differences between blacks and whites in Georgia affect their likelihood of voting. According to Burden, new voting rules that create additional obstacles reduce Black voters’ chances of exercising their right to vote.
Black voters were more likely to vote by mail and return their ballots through drop boxes in the 2020 and 2022 elections, Burden testified Friday.
He also estimated that there were about 100 fewer dropboxes available in 2022, contributing to a 50% drop in dropbox usage compared to the 2020 presidential election.
The state’s political science expert disputed claims that Black voters used mailboxes more often than white voters in 2022. The defense expert and the state’s election officials also say last year’s voter turnout in Georgia saw record turnout.
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