Don’t believe the claims by left-wing organizations such as the ACLU that they won a big victory in the recent decision by U.S. District Court Judge J.P. Boulee in their challenge of Georgia’s 2021 election reform bill.
In fact, Georgia won a significant victory against those opponents of election integrity when Boulee refused Aug. 18 to grant them a preliminary injunction against most of the provisions they are contesting.
For example, one of the reforms implemented by Georgia was a ban on ballot trafficking. Under Georgia’s new law, only a voter, a member of his or her family or household, or a caregiver can return that voter’s absentee ballot. That obviously prevents third-party strangers, such as candidates, party activists, political consultants, and others with a stake in the outcome of the election from handling ballots, which can lead to all kinds of mischief.
Georgia also legalized drop boxes for the first time, but specified, for obvious security reasons, that they be placed inside—rather than outside—voting locations so that election officials could keep a watchful eye on them the same way they do standard ballot boxes inside polling places.
In Sixth District of the African Methodist Episcopal Church v. Kemp, Boulee rejected plaintiffs’ claims that both of these commonsense rules violated the Americans with Disabilities Act and the Rehabilitation Act of 1973 by discriminating against disabled voters. Brian Kemp is the governor of Georgia.
Boulee concluded that neither of those rules would prevent disabled voters from being able to cast ballots, given their “ready access to absentee voting.”
“Despite some voters’ preferences for certain methods of absentee voting,” wrote Boulee, disabled voters have “alternative ways to return their ballots, such as sending their ballots by mail, asking an authorized individual to deliver the ballots to a drop box or requesting that an assistor accompany them to return their ballots in person.”
The key point that Boulee made is that a “mere preference for one method of” of voting “over another is not enough to show a denial of meaningful access to” voting.
That point, however, was simply lost on liberal challengers, not just in this lawsuit, but in virtually all of the other meritless lawsuits filed against these types of election reforms.
The Left didn’t even really get what they wanted in their challenge to the so-called “Food, Drink and Gift Ban,” which they wanted thrown out in its entirety. Georgia law prohibits giving money, food, and gifts to voters within the standard anti-electioneering zone, which is “150 feet of the outer edge of any building” housing a polling place and “25 feet of any voter standing in line to vote at any polling place.”
Legislators were rightly concerned over campaigns and partisan groups—like all of the challengers in these lawsuits—using that process to engage in “improper electioneering, political pressure or intimidation” of voters.
Boulee upheld the 150-foot ban on such activities as serving “compelling state interests” because it was not an unreasonable restriction. On the other hand, he enjoined the 25-foot ban because it had “no boundary.”
His analysis doesn’t really make sense, though, since there is a boundary—25 feet away from the voters waiting in line to vote. But so what? I used to be a county election official in Georgia, and I never saw a voter line extend more than 150 feet from any polling location, so enjoining the 25-foot ban should have little, if any, practical effect.
A survey conducted by the University of Georgia’s Survey Research Center of the 2022 election found that 68.75% of black voters in Georgia had no wait time at all when they voted, or had to wait less than 10 minutes. Some 27.3% said that they waited only 10 to 30 minutes to vote. White voters had virtually the same experience. If anyone was standing in a line stretching more than 150 feet from a polling location, they would have had to wait a lot longer than 30 minutes to vote.
The point is that the very minor concession that the challengers got will affect almost no voters. As long as the voters are in the 150-foot anti-electioneering zone of their polling place, these groups will not be able to ply them with gifts to persuade them to vote for their preferred candidates. And if they are thirsty or hungry, the voters can bring their own food and drinks with them, or the law allows election officials to provide the voters with water.
I don’t seem to recall any reports of voters in the 2022 midterm election dying of starvation or dehydration in Georgia, which is just another example of how ridiculous most of the claims made by liberal groups about election reforms are.
Finally, Boulee did enjoin a requirement that a voter include his or her birthdate on the envelope that contains the completed absentee ballot sent back to election officials by the voter. Boulee held that requiring voters to provide a birthdate is “not material” to determining their eligibility to vote because that determination was made when the voters requested their absentee ballots. Thus, according to the judge, that requirement supposedly violates Section 101 of the Civil Rights Act of 1964, codified at 52 U.S.C. § 10101(a)(2)(B).
Section 101 states that an individual cannot be denied the right to vote based on “an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Boulee is wrong for two reasons: First, the whole point of asking for information such as the birthdate on the completed absentee ballot is so election officials can verify the voter’s identity, i.e., that the registered voter who requested the absentee ballot is actually the same individual who completed the ballot and sent it back and thus “qualified under State law to vote in such election.”
But the main reason he is wrong is because Congress itself already determined that the information—a birthdate—that Boulee says is not material is, in fact, material to a state determining the qualifications of an individual to vote, which obviously includes authenticating the voter’s identity. Congress did that when it passed the National Voter Registration Act in 1992.
The National Voter Registration Act established a national voter registration form developed by the U.S. Election Assistance Commission: 52 U.S.C. § 20505 requires states “to accept and use” that form in all elections for federal office. That form specifically requires voters to provide their birthdate, as well as other relevant information, necessary for states, as outlined in § 20508, “to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”
Georgia is obviously assessing the identity (and thus the eligibility) of an absentee voter during “other parts of the election process” (voting) when it asks for a birthdate.
Boulee is simply wrong as a matter of law on this issue. He does not have the authority to override Congress and suddenly decide that information about a voter’s birthdate is “not material.”
On the other hand, Boulee did not disturb the Georgia requirement that a voter include his name, registration address, and the number of his Georgia driver’s license or free voter ID card or the last four digits of his Social Security number. Liberal groups have been up in arms over this new requirement to provide such an ID number. Yet the judge didn’t enjoin the state from enforcing that additional security requirement that Georgia implemented as part of its election reforms to improve the integrity of the absentee-balloting process.
This also helps ensure it is really the registered voter who is submitting the completed absentee ballot.
This case is not over, however, since these decisions by Boulee were over whether to preliminarily enjoin these provisions. While most of the challenged provisions will remain in effect for the time being, which is good news for those Georgia voters who care about the integrity of their elections, the judge should rethink his position on the birthdate requirement.
If he doesn’t and ultimately rules against the state, Georgia will have a very sound basis to appeal that decision and get it overturned.
Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, a former commissioner on the Federal Election Commission, and former counsel to the assistant attorney general for civil rights at the U.S. Department of Justice. He is a member of the board of the Public Interest Legal Foundation.
Reprinted with Permission from The Daily Signal – By Hans von Spakovsky