The Worst Provision of a Very Bad Law

Mass voter challenges aimed at minority voters are nothing new for the Republican Party. In 1986, the Republican National Committee compiled a voter challenge list of Black voters in Louisiana that they bragged internally would “eliminate at least 60,000-80,000 folks from the rolls…If it’s a close race…this could keep the black vote down considerably.” In 2004, Republicans compiled a similar list of 35,000 Black voters to challenge in Ohio.

Neither of these, however, compare in size or scope to the voter challenges brought by Republicans in Georgia in the run-up to the Georgia Senate run-off election earlier this year, when a conservative voter suppression group teamed up with local Republican Party activists to challenge the right to vote of more than 364,000 Georgians. 

Though not aimed solely at Black voters, the challenges in advance of the Georgia run-off election represent the largest mass voter challenge program conducted in the United States since the passage of the Voting Rights Act in 1965. And, due to changes recently enacted by Georgia, they are a harbinger of things to come. 

The indiscriminate mass challenges lodged in December 2020 spanned at least 85 counties and relied upon lists generated by comparing differences between Georgia’s voter registration database to the U.S. Postal Service’s National Change of Address registry. 

While most county officials in Georgia rejected these mass challenges, a few, like Muscogee County, allowed them to proceed.  In that county — where Black citizens make up 45% of the population and Hispanics another 7% — a Republican activist filed a challenge to the eligibility of 4,033 registered voters. In a subsequent court hearing, the county identified nine voters that it believed justified honoring the mass challenge of all 4,033. When asked to justify its decision, a county official testified “that her actions and recommendations were taken and made in light of the fact that the county was in the midst of an election with a record number of voters.”

One might hope that the GOP’s effort to disenfranchise 364,000 Georgians in the Senate run-off election was just an isolated dark chapter of the 2020 election — a part of the Big Lie that had overtaken the GOP during a period between Trump’s effort to discredit and throw out the Georgia presidential election and the violent insurrection at the U.S. Capitol. 

However, instead of recoiling from these tactics, Georgia Republicans have doubled down on them. Among the most overlooked, but most important, provisions of the omnibus voter suppression law enacted in Georgia are new provisions that encourage mass challenges and threaten counties that refuse to abide them.

Buried in the new Georgia law are three provisions related to the ability to conduct mass challenges of voter eligibility. 

The first states simply that “[t]here shall not be a limit on the number of persons whose qualifications such elector may challenge.” In other words, mass challenges are now expressly provided for in Georgia state law.

The second requires counties to hear any challenge within 10 days of providing the voter notice. Previously, counties that believed a challenge was frivolous or unwarranted could deny it or at least postpone consideration of the challenge until after the election.  Now, counties are required to hold a hearing on each challenge, regardless of how frivolous the challenge. This means that voters whose eligibility to vote is challenged will receive a formal notice requiring them to attend or participate in a hearing (on as little as three-days’ notice). The county boards have the power to issue subpoenas in connection with these hearings. And, if a challenge is rejected, the challenger can appeal the decision in court.

Finally, if a county board fails to comply with this new mass challenge hearing process, the board itself is subject to sanctions by the state board. In other words, while the person who files a frivolous mass challenge faces no sanction, the board responding to challenges faces the risk of sanctions. 

When viewed against the other new provisions of Georgia’s omnibus voter suppression law that serve to make the State Board a partisan instrument of the legislature, the intent of this new challenge provision is clear. Rather than curtail frivolous, racially-targeted mass challenges to voter qualifications, Georgia has empowered them. 

The new law greenlights the type of mass challenges the Republican Party has sought to use for its electoral purposes in the past. By using faulty data and discredited tactics, the GOP can intimidate and inconvenience voters that it wants to exclude from the electorate. It is not hard to see that in the future, the party of Trump will create lists of Black, Brown and young voters and then find local operatives to submit them as mass challenges to voter eligibility. Those voters will then be required to appear or participate in a hearing or risk being disqualified from voting. Even worse, failure to appear at a hearing will be spun by the right wing as a tacit concession that the voter was ineligible to vote — and may have committed voter registration fraud.

Meanwhile, large counties already burdened with conducting elections under the threat of reprisal from a hostile Republican State Board of Election will have no choice but to schedule and hold these kangaroo hearings in the midst of the election process. They will be forced to divert countless hours and resources from running elections and enfranchising voters to routing out non-existent fraud and intimidating voters.

Republicans in Georgia don’t want Black, Brown and young voters to vote because when they do, Democrats win. Expanding the opportunity to engage in discriminatory mass challenges should offend anyone who cares about participating in our elections. Yet this provision has received scant attention from the media and the public. 

As the legal fight in Georgia continues and other states consider their own voter suppression laws, this must change. No state should permit mass challenges, no less expand them. Voters who submit challenges should be required to do so based on their own personal knowledge and should be subject to sanctions for filing frivolous or bad faith challenges. 

Stacey Abrams once said that “[o]ur ability to participate in government, to elect our leaders and to improve our lives is contingent upon our ability to access the ballot.” Mass challenge laws restrict that access.