By Alex Lipow
In recent years, Georgia has become a posterchild for election controversies and administrative snafus. Election disputes have ranged from claims of unconstitutional racial gerrymandering to allegations of a conflict of interest in administering the 2018 gubernatorial election. With these issues in the background, a federal court is wrestling with a more fundamental question: do long voting lines in Georgia—which were the longest in the country in 2018 and 29 percent longer in black neighborhoods than in white neighborhoods—violate the U.S. Constitution?
On August 6, 2020, three Georgia voters, the Democratic Senatorial Campaign Committee, and the Democratic Party of Georgia (the “Plaintiffs”) filed suit against Georgia’s secretary of state, members of nine county boards of election from counties with some of the longest lines in the most recent election, and members of Georgia’s State Election Board (the “Defendants”). In their complaint, the Plaintiffs contend that the long voting lines, which have become longer and longer in each of the most recent elections, stem from the Defendants’ “persistent closure and consolidation of polling locations and failure to provide adequate election equipment, elections officials and volunteers with sufficient training, available technicians to address technical problems that arise, sufficient time to set up polling locations, and emergency paper ballots for backup when equipment breaks down or malfunctions.”
In their complaint, the Plaintiffs argue the long lines have created an undue burden on Georgia voters as they exercise their First and Fourteenth Amendment fundamental right to vote and substantive due process right to a “fundamentally fair” electoral system. The Plaintiffs also argue that long lines, which disproportionately affect minority voters who are less likely to have flexible work schedules or easy access to transportation, offends the Fourteenth Amendment’s Equal Protection Clause. Indeed, an expert for Plaintiffs found that during the primary election in Georgia in June 2020, “polling places where minorities constituted more than 90 percent of active registered voters, the average minimum wait time in the evening was 51 minutes. When whites constituted more than 90 percent of registered voters, the average was around six minutes.” Strikingly, two-thirds of the polling places in Georgia that had to remain open into the night in order to accommodate long lines served majority-minority communities. In some cases, minority voters had to wait in line for eight hours to vote.
Although the issues during the Georgia primary election in June 2020 were a precipitating event for this suit, the Plaintiffs maintain that issues in that election did not stem from an isolated event and argue that the administrative factors mentioned above consistently lead to long lines. With this in mind, Plaintiffs assert that, without judicial intervention, problems during the November General Election will likely further deteriorate because far more Georgians are expected to vote, even amidst the ongoing COVID pandemic. Long lines, the Plaintiffs claim, would subject immunocompromised voters, who are more likely to become infected with COVID from prolonged exposure to other members of the public while in line to vote, to an additional undue burden. The Plaintiffs therefore request an injunction requiring Defendants to “provide a sufficient number, and equitable distribution, of polling places and other election resources to prevent” unreasonably long lines to vote on Election Day.
In response to the suit, the Defendant Secretary of State and members of the State Board of Election filed a motion to dismiss. The state argues that the Plaintiffs have not established Article III standing because most of the evidence in the claim is retrospective and fails to show an impending harm. Next, because Plaintiffs sued only nine of Georgia’s one hundred fifty-nine counties, the Defendants contend that a court ruling would cause a “patchwork of election administration” between the counties in the suit and the other counties in the state. This, the state claims, “would create the very Equal Protection problem of which Plaintiffs complain.” In addition, the Defendants also maintain that the court should defer to Georgia’s administrative practices and that the “Plaintiffs seek relief that contains no judicially manageable standards.” County Defendants also filed a motion to dismiss, claiming that Plaintiffs: (1) lack subject-matter jurisdiction, (2) lack personal jurisdiction, (3) fail to state a claim upon which relief can be granted, and (4) did not provide sufficient service of process.
Time is ticking on this suit. Election Day is less than two months away, and there must be sufficient time for the Defendants to comply if there is an injunction. Given the public spotlight on Georgia’s election administration and the contentiousness of voting rights issues nationwide, it would be unsurprising to see an appeal from the party that loses.