Updated Dec. 11 at 10:15 a.m. PT.
A lawsuit alleges Georgia unlawfully purged almost 200,000 voters from the voter rolls. “Every American should be upset about this,” said Barbara Arnwine, one of the suit’s three co-plaintiffs. “The state of Georgia did not do its job. It did not protect the constitutional rights of its citizens.”
With the upcoming Jan. 5 runoff elections quickly approaching, all eyes are on the state of Georgia—and Secretary of State Brad Raffensperger in particular.
Last week, the Black Voters Matter Fund, Transformative Justice Coalition (TJC), and the Rainbow Push Coalition filed a complaint against Georgia Secretary of State Brad Raffensperger, alleging Georgia unlawfully purged almost 200,000 voters from the voter rolls based on the (incorrect) assumption they had moved. An investigation conducted by The Palast Investigative Fund revealed that in all likelihood, those voters still live at the same addresses listed when they first registered to vote.
In theory, the decision for a state to clean up its voter rolls is “relatively standard and non-controversial,” according to Guy-Uriel E. Charles, the Edward and Ellen Schwarzman professor of law at Duke Law School and the co-director of the Duke Law Center on Law, Race and Politics.
“[But] the real question is how one cleans up the voter rolls. Georgia has chosen to do so in a way that the plaintiffs believe is inconsistent with federal law.”
The 1993 National Voter Registration Act decided states cannot take a voter off the rolls simply because the voter did not respond to a notice. So the state of Georgia created a system which would send a notice via snail mail; if the voter doesn’t respond to that initial postcard, then doesn’t vote in the next two elections, she or he is taken off the voter roll.
Georgia is using this one-two-three punch of a lack of response followed by sitting out two elections as a proxy to argue the voter no longer lives at her registered address. In response, plaintiffs are arguing that this assumption—that the voter has moved based not responding to a postcard and not voting in the next two elections—isn’t a fair proxy.
This case could be critical for the run-off election in Georgia if the razor-thin margins in battleground states like Georgia during last month’s election are any indication.
“It is going to be close,” Charles told Ms. “Tens of thousands, much less hundreds of thousands, could make could make a difference.”
The case comes at a time when the conversation about voter suppression in the U.S. has reached a fever pitch. And Charles is quick to make the connection between Georgia’s voter roll purging and suppression: The practice works in conjunction with other forms of voter suppression and, “as a consequence of that, makes it harder for people to register or makes it harder for those who are registered to vote,” said Charles.
It’s been one year since the Democratic-led House passed H.R. 4, the John Lewis Voting Rights Advancement Act. Passing the Act—currently sitting in a legislative graveyard in the Senate—is a worthy first step. But legislation is not a cure-all for ensuring the right to vote, says Franita Tolson, vice dean of faculty and professor of law at University of Southern California Gould School of Law.
“The pandemic, to me, really revealed the fact that we don’t have a cultural commitment to people being able to vote,” said Tolson. “We need a cultural commitment to making sure that people can vote and people can vote easily. And we need an oversight system in order to prevent backsliding.
“Often … people think that if we get a Voting Rights Act, then the world all of a sudden becomes a better place. The pandemic taught us that we actually need more than that.”
Charles echoed this sentiment, calling 1965 Voting Rights Act “more of a temporary and limited remedy,” the strength of which is dependent on who is in power. “What we need is a deep, structural, permanent shift in both the culture as well as the law such that then it doesn’t make difference who’s in power.”
But Barbara Arnwine—president and founder of TJC and former executive director of the Lawyers’ Committee for Civil Rights Under Law—isn’t just sitting around waiting for that cultural shift. One of three co-plaintiffs on the Raffensperger lawsuit, Arnwine is gearing up for a court battle in the coming days.
The plaintiffs’ first day in court was Thursday, Dec. 10. District Judge Steve C. Jones did not make a ruling, but said he would release his decision “as quick as possible.”
Ms. writer and attorney Mariah Lindsay sat down with Arnwine to talk Black Voters Matter et al. v. Raffensperger; exactly how Georgia became the center of attention; and the future of voting rights.
Mariah Lindsay: Black Voters Matter et al. v. Raffensperger was filed in the United States District Court on Dec. 2. Black Voters Matter Fund, TJC and the Rainbow Push Coalition are the plaintiffs in the case suing Secretary of State of Georgia Brad Raffensperger in his official capacity for violations of the National Voters Registration Act.
Can you tell us a little bit more about the case and the events leading up to it?
Barbara Arnwine: Well, it’s really quite amazing because in 2018, Georgia was the center of everybody’s attention because of the gubernatorial race, Kemp versus Stacey Abrams. Kemp was, at that time, secretary of state and he purged the voter rolls of over a million and a half people. He was sued for violating the law in doing so. He had to go back and reinstate people because he made errors.
So, we knew that the state had this horrible history. Then when he became governor, everybody said: Well, what does that mean? And how would person who succeeded him, Brad Raffensperger, work? Would he continue this voter suppression?
What has happened is that in 2019 the state saw fit to purge over 300,000 voters. Of that 300,000 voters, two-thirds, roughly 200,000 people were wrongfully purged.
The concept of why they removed these voters is that they had proof and evidence that these voters either had moved, died, were convicted, or otherwise ineligible to vote. The problem is that in removing almost 70,000 of those people, they did not use what’s called “a USPS licensee.”
The National Voter Registration Act of 1993 is clear on this. There’s no way of misreading the statute: It says that if you’re going to remove somebody because you believe they put in a change of address, you’ve got to use a certified USPS licensee. Georgia didn’t.
The tragedy of it is that since they were told about it, they’ve done nothing to restore these people’s right to vote. They knew this going into November, that they had wrongfully removed 70,000 people, and that they had violated the law in doing so, and they did nothing to restore those people. We couldn’t sue them then because the NVRA requires that we give the state 90 days’ notice. So, we had to run the full 90 days and unfortunately those 90 days ran beyond November the third, but fortunately they just ran in time for us to file for this January 5 runoff election.
“The National Voter Registration Act of 1993 is clear on this. There’s no way of misreading the statute: It says that if you’re going to remove somebody because you believe they put in a change of address, you’ve got to use a certified USPS licensee. Georgia didn’t.“
Lindsay: I read through the complaint and it’s just unbelievable. The amount of voters that they’re assuming moved based on a proxy—because they didn’t respond to a postcard sent to them in the mail.
Arnwine: That’s the second. There are three classes of voters that we’re representing.
One is the people who never listed anything about changing their addresses and somehow ruefully, mysteriously, bizarrely showed up on this list from this unlicensed company. That’s the first group.
The second group is what we call the “use-it-or-lose-it” group. These are people who are assumed that they moved because they were sent a postcard and did not respond. The court has said that you legally can send a postcard, but we’re saying that Georgia used some kind of erroneous list to send those postcards.
The last group is the group that [Georgia] is claiming they got returned mail that said that the cards were undeliverable as they mailed them. They had every reason then to believe that those people had moved.
But guess what—we sent mail to the same addresses. The mail did not get returned, and we were able to establish that of that group: 51,785 of those people live at the addresses that they registered at.
Now, here’s what I want your audience to understand. This is really serious: These people went through the trouble of registering to vote and registering to vote in this country is no joke. For some people, where they don’t have online voter registration, you have to literally go through hoops and hurdles. Georgia has county, after county, after county with no internet access, no broadband access at all, so they can’t register online. They have to go through real steps to become a member of the voter registration roll and then they have somebody just willy-nilly throw you off the roll claiming that you moved when you are still at the very address you registered at. It is offensive.
Every American should be upset about this because the state of Georgia did not do its job. It did not protect the constitutional rights of its citizens and this is the government, we’re not talking about some private company, this is the government of Georgia. It had an obligation to its citizens to protect them and instead it attacked them by removing them from the voter registration list.
“Imagine if you stood in line for hours, got to the front of the line, finally you’re ready to vote, and you’re told that they can’t find you on the voter registration list.“
Lindsay: From what I understand, people thought that they were registered, went to the polls, and then found out that they had been purged. They weren’t informed that this was happening to them—and weren’t given an opportunity to rectify it before they went and tried to vote during a pandemic, during this election year, during this administration that has been so horrific for so many people.
Arnwine: Well, you saw the pictures, we all saw the pictures of people in Georgia during the primary, waiting in line for five, six, seven hours. We saw the people during the general election waiting in line for up to 16 hours, in Georgia, right here in Atlanta.
Imagine if you stood in line for hours, got to the front of the line, finally you’re ready to vote, and you’re told that they can’t find you on the voter registration list.
Now, I want everybody to be clear about something, Georgia does not have a same-day voter registration. So, if you find out that you’re not registered you don’t get to vote at all. You don’t even get a provisional ballot. You have to leave there after hours of sacrifice, not able to vote. That’s why it’s wicked. That’s why it’s evil. I call it voter abuse when you put voters through that kind of just really inhumane treatment because you didn’t do your job, you knew you didn’t do your job, and you didn’t correct yourself.
It’s one thing to make a mistake, it’s another thing to acknowledge it, and it’s a third thing to correct it and they did nothing. They did nothing to correct—even though they knew they had a problem on their hands. That is the tragedy of this. As we sit here right now evil people in the state are exploiting this confusion by sending people postcards and letters telling them that they are not registered, when they are, telling them that they won’t be able to vote when yes they can vote, and they know that people might believe it because of this kind of nonsense that the state has been doing.
“Guess what—we sent mail to the same addresses. The mail did not get returned.”
So, we have been doing everything we can to reach out to voters to make sure they know that there is an election. This is the most important election in the country happening right now—yet there are millions of Georgians who have no clue that there’s an election, especially in the rural areas. So, we’re making thousands of phone calls into Georgia by reminding people that there is an election.
We’re here engaging in a real battle and we’re also sending in friendly postcards to just tell people what the dates are to vote, how to get an absentee ballot, and how to make sure that they can have their ballot counted. So, we’re going through all the voter education, we’re helping organize young people, we’re not just suing.
We’re suing because it destroys all this other work we do when we have to when we have to go back and fight against a purge that has confused voters, that has discouraged voters, that has eliminated the right to vote for voters. That is wrong and we should not be spending our time having to help and fight with all this community confusion because the state didn’t do its job.
Lindsay: This brings me to the injunctive relief and other relief being sought in this case. What opportunities there are if preliminary injunctive relief isn’t granted in this case ahead of the run-off election?
Arnwine: Well, right now we’re doing a huge push throughout Georgia to say to Georgians, make sure if you’re unregistered, you register. If you’re registered please just check your voter registration. You can go to mvp.sos.ga.gov and you will be able to immediately check whether or not you’re registered. Also, it’s going to tell you where your polling site is for early voting, where you can drop your absentee ballot in, and it’s going to tell you, most people, the overwhelming majority of people in Georgia, 96 percent of them, must apply for their absentee ballot. The other thing we’re pushing is to have a voting plan so that you know you’re going to either use your absentee ballot or you’re going to vote in person.
So, first of all, to your question, we should win this case. They clearly violated the law. They clearly did not take the steps they should have taken to protect voters and they had no right under law to use that unlicensed, unapproved company that gave them bad data, and lied obviously in giving them this bad data. Those people should never have been removed and they have every right to be restored.
We should win this case, but in the eventuality that we don’t, we’re doing all this voter outreach. A lot of people are frustrated; they’re watching Georgia saying: Oh my goodness, so much is at stake, what can I do?
Well, I’m going to tell you what you can do; you can go to our website at votingrightsalliance.org. You can become part of our phone-banking committee, because we really need to call millions of voters. You can become part of our postcard committee, because we really need to send out millions of postcards. You can become part of our youth engagement committee.
Lindsay: What do you hope you see for this election and for this lawsuit, and for the future of voting rights in general?
Arnwine: One thing I’ve seen is that these voters are determined. The young people have not gone anywhere. When I talk to them, they say, Ahmaud Arbery can’t vote; he was killed by those white supremacists.
They say Rayshard Brooks cannot vote because he was killed by the police wrongfully.
They say we can vote and we’re going to vote. So, they are out there recruiting their people.
We are really doing everything we can. The good news is that the battle is on. The good news is that it’s not over. The good news is that Georgia still has an opportunity to show the nation what they can do and still has the opportunity, as we say, to show up and show out. So, we are so excited.
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