Georgia vs. New York on Voting Rights: No Contest
5.14.2021
There is an unprecedented outcry against the voter suppression laws spreading across the country, from Georgia to Texas to Florida to Arizona. Since January, 361 bills have been introduced in more than 40 states, many with anti-voting provisions and many transparently aimed at disenfranchising Black and Brown voters.[1] The growing chorus of opposition is coming from not only traditional voting rights advocates and civil rights groups, but from business executives, corporations, and leaders of the private bar, as well.
Defenders of the new laws recycle the same debunked allegations of voter fraud and bogus claims of election “irregularities” that underlie the Big Lie: the falsehood that the previous president was reelected and the current president is illegitimate. One of the most common canards is that the voter suppression legislation in Georgia (SB 202) is no worse than New York election law.[2]
In truth, the two states are moving in the opposite direction: Georgia is restricting access to the polls, primarily to depress African-American turnout, while New York is moving to increase voter participation. The goal in Georgia is not to make voting easier or more secure, but to use targeted legislation to reverse the political will evidenced in the recent presidential and Senate elections. As one prominent Republican admitted in a moment of candor, the Georgia Legislature needed “to change the major parts [of the election law] so that we at least have a shot at winning.”[3]
In response to the secretary of state’s declaration that Georgia “had safe, secure, honest elections” in 2020, the Georgia Legislature stripped the secretary of his vote on the state election board. It then passed a litany of measures to make voting more burdensome for communities of color and especially for the working people of Atlanta. In a state that was one of the first to enact a poll tax, and where outright racist election practices ended only after the U.S. Supreme Court declared “one person, one vote” to be the law of the land,[4] these and other voter suppression provisions are dragging Georgia backwards:
- Voters merely requesting an absentee ballot must submit state-issued identification. This disproportionately affects minority, elderly and indigent voters. As many as 25% of Black and Brown voters, for example, have no government-issued photo identification, compared to 11% of voters of all races.[5]
- Portable or mobile voting facilities are essentially banned. This is aimed directly at Fulton County, which deployed mobile voting units throughout Atlanta in 2020, each with 8 to 10 voting stations. Unless Governor Kemp declares a state of emergency – unlikely for obvious partisan reasons – there will be no mobile voting in Atlanta.
- Absentee ballots can be submitted in drop boxes only in government buildings and only during daytime business hours. Twenty-four-hour access and outdoor drop boxes have been eliminated. This too was passed with Atlanta and its neighboring counties in mind: the 94 drop boxes available in 2020 will be reduced to 23 (or fewer).[6] Black and Brown voters, many with multiple jobs and unavoidable childcare obligations, often are unable to vote during the day. It is estimated that the number of drop boxes in Fulton County will shrink from 38 to 8.[7]
- Absentee ballot applications may not be sent automatically to all voters, as they were in 2020 in response to the COVID-19 pandemic. It is now illegal for state or county election officials to mail applications to voters who have not requested one. And the time period for requesting an absentee ballot has been cut by more than half, from 169 days to 67 days. This will depress voting by mail, which again will disproportionately impact Black and Brown voters, who voted by mail at historic levels in 2020 and did so more often than white voters.
- Non-poll workers are forbidden to give food or drink – even water – to voters waiting on long lines. To provide such aid is now a crime. This, again, targets communities of color: in Georgia, the average waiting time after the polls closed in neighborhoods that are at least 90% white was six minutes, while the waiting time in places that are at least 90% nonwhite was more than eight times longer (51 minutes).[8]
- Unlimited voter eligibility challenges – a notorious means of intimidating minority and immigrant voters – not only are permitted, but they also must be heard by county officials no matter how frivolous. If a voter fails to appear to defend her vote, it may be treated as an admission that she was ineligible. Counties that do not comply are subject to sanctions.
- Eligible voters who go to the wrong precinct – an increasingly common occurrence as the state has closed numerous polling places – will not be allowed to cast a provisional ballot if they arrive before 5 p.m. Instead, they will have to travel to the correct precinct, but if they do not have the luxury of time to make that trip, they will not be allowed to vote.
- The secretary of state is no longer a voting member of the state election board, which has been granted the power to suspend and replace county election officials. Now, election officials might be subject to the whims and preferences of those serving on the state election board, who can suspend or replace anyone they deem to have committed three violations, or gross negligence in consecutive elections. And by removing the secretary of state from serving, the partisan state Legislature can gain more influence over county and local elections based on their choice of the “nonpartisan” state election board chairperson.
So what can be said about New York? Yes, many of its election laws are antiquated. New York still lacks no-excuse absentee voting. It still does not allow for mobile voting centers. But much of that is changing and the state is moving forward to expand the franchise for all voters, not restrict it for poor, immigrant and Black and Brown voters.
New York has enacted automatic voter registration for those applying for a driver’s license, Medicaid, unemployment, public housing and other government services. New York has added online voter registration, as well as preregistration for teenagers starting at age 16. New York also has enacted permanent early voting. The legislature recently voted to permit election-day registration and no-excuse absentee ballots, which will now go before voters in November for a final vote before they can be added to the constitution. And the governor signed into law a bill that restores voting rights to people upon release from prison, including those on parole supervision. Georgia, in another vestige of Jim Crow, prohibits individuals with felony convictions from voting while in prison, on parole or on probation – disenfranchising over 200,000 voters.
Some point to the fact that Georgia requires more early voting days than New York, but they hide the legislative details. Early voting in Georgia is now limited to working hours and is forbidden before 7 a.m. or after 7 p.m., a change designed to curtail voting by urban voters and those who cannot leave their jobs to vote. While it is correct that early voting on Saturdays is required in Georgia, early voting on Sundays conspicuously is not, leaving counties free to limit ballot access to Black parishioners who traditionally vote after church on Sundays. Compared to Georgia, New York offers more days of weekend voting, including two Sundays.[9]
When it comes to protecting and expanding the franchise, Georgia and New York are worlds apart. Georgia is aligned with the states hurriedly passing voter suppression laws like Arizona, where one lawmaker declared that he is opposed to vote-by-mail because “everybody shouldn’t be voting.”[10] In Georgia and too many other states, legislatures are selectively limiting the right to vote to reverse recent political trends and imposing carefully targeted burdens on the right to vote. New York is not one of those states. Taking into account all the facts, and considering the starkly opposite directions in which each state is headed with respect to ballot access, the Georgia Legislature is focused on voter suppression and the New York Legislature on voter access. The two states cannot be equated when it comes to their approaches to voter participation.
Brad Karp, chairman of Paul, Weiss since 2008, is one of the country’s leading litigators and corporate advisers. He has guided numerous Fortune 100 companies, global financial institutions and other companies and individuals through “bet the company” litigations, regulatory matters, internal investigations, and corporate crises.
Robert Atkins has been a litigator and trial lawyer at Paul, Weiss for 34 years and is a former co-chair of the litigation department, a former member of the firm’s management committee, and the current co-chair of the firm’s legal ethics committee. He also litigates voting rights cases as the co-chair of the Brennan Center for Justice.
Alexander Butwin also contributed to this article.
[1]. Voting Laws Roundup: March 2021, Brennan Ctr. for Just. (Apr. 1, 2021), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-march-2021#ebe.
[2]. See, e.g., Karl Rove, CEOs’ Selective Virtue Signaling, Wall St. J. (Apr. 7, 2021), https://www.wsj.com/articles/ceos-selective-virtue-signalling-11617832596; Morgan Phillips, Dem Suggests MLB All-Star Game Come to NY with Fewer Early Voting Days, Similar Food and Drink Restriction, Fox News (Apr. 3, 2021), https://www.foxnews.com/politics/schumer-suggests-ny-mlb-all-star-game-state-with-fewer-early-voting-days-similar-food-drink-restriction; The Editorial Board, ‘Jim Eagle’ and Georgia’s Voting Law, Wall St. J. (Mar. 26, 2021), https://www.wsj.com/articles/jim-eagle-and-georgias-voting-law-11616799451.
[3]. Curt Yeomans, Gwinnett Elections Board’s New Chairwoman Wants Limits on No-Excuse Absentee Voting, Voter Roll Review, Gwinnett Daily Post (Jan. 16, 2021), https://www.gwinnettdailypost.com/local/gwinnett-elections-boards-new-chairwoman-wants-limits-on-no-excuse-absentee-voting-voter-roll-review/article_7df1c274-5715-11eb-a31d-dfa23b30ec62.html.
[4]. Gray v. Sanders, 372 U.S. 368 (1963).
[5]. See Brennan Center for Justice, Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification, Brennan Center for Just. (Nov. 2006), https://www.brennancenter.org/sites/default/files/legacy/d/download_file_39242.pdf; see also Wendy R. Weiser et al., “Citizens Without Proof” Stands Strong, Brennan Center for Just. (Sept. 8, 2011), https://www.brennancenter.org/our-work/research-reports/citizens-without-proof-stands-strong.
[6]. Nick Corasaniti and Reid Epstein, What Georgia’s Voting Law Really Does, N.Y. Times (Apr. 2, 2021), https://www.nytimes.com/2021/04/02/us/politics/georgia-voting-law-annotated.html#link-5b8d88b.
[7]. Ben Brasch, Fulton: Elections Will Be More Expensive, More Complicated, Atlanta J.-Const. (Apr. 15, 2021), https://www.ajc.com/news/atlanta-news/fulton-elections-will-be-more-expensive-more-complicated/LQIJ6HSACBEGRAKTHS3S2X5SJY/; Georgina Tzanetos, US CEOs Hash Out Response to Georgia Voting Law Controversy, Yahoo Fin. (Apr. 12, 2021), https://finance.yahoo.com/news/us-ceos-hash-response-georgia-210534119.html.
[8]. Stephen Fowler, Why Do Nonwhite Georgia Voters Have to Wait in Line for Hours? Their Numbers Have Soared, and Their Polling Places Have Dwindled., Electionland from Propublica (Oct. 17, 2020), https://www.propublica.org/article/why-do-nonwhite-georgia-voters-have-to-wait-in-line-for-hours-their-numbers-have-soared-and-their-polling-places-have-dwindled.
[9]. Sean Morales-Doyle, The Box Score on Voting Rights, Brennan Ctr. for Just. (Apr. 8, 2021), https://www.brennancenter.org/our-work/research-reports/box-score-voting-rights.
[10]. Grace Panetta, GOP Arizona Lawmaker Misleadingly Claims That Voting Restrictions Are Needed Because ‘Everybody Shouldn’t Be Voting,’ Bus. Insider (Mar. 11, 2021), https://www.businessinsider.com/arizona-lawmaker-says-everybody-shouldnt-be-voting-supports-restrictions-2021-3.
