Max Hess, former Interim Executive Director of FOR-USA, is an Atlanta-based attorney who has been involved in peace and justice causes for decades. In the Q&A that follows, he recounts his experience trying and failing to vote via absentee ballot in three different elections in Georgia since June 2020. Hess describes the challenges he faced, ranging from institutional bureaucracy to other less benign forms of suppression. He discusses these experiences and puts them into the broader context of modern voter suppression and attempts to undermine fundamental democratic principles.
Can you offer some background on how you got involved in the issue of voter suppression in Georgia?
You may remember that Stacey Abrams ran against Brian Kemp for governor in Georgia in 2018 and fell short by about 50,000 votes. Soon thereafter she founded an organization called Fair Fight Action that basically combats various forms of voter suppression as well as incompetence, underfunding, and bad policy generally. Suppression doesn’t always have to be intentional.
Through my connection with FOR, I got involved with Fair Fight, and I trained with them to be a so-called “Democracy Warrior.” At the same time, I became involved with New Georgia Project, another organization working on voting rights. I’ve been working on their initiatives ever since. One of the things they’re doing is to collect information from people who have had a problem. Every time I’ve had a problem, I report back, and we draw up a declaration that might be used in a court case down the road to describe what happened to me.
My first experience of trouble this year happened around the postponed primary election in June 2020. I was staying in South Georgia, away from my home in Atlanta because of COVID concerns. I requested an absentee ballot, and when it didn’t arrive, I drove the some 300 miles to Atlanta to vote in person. When I voted in person, I reported that the absentee ballot had not arrived. Apparently, because the ballot I’d requested had never arrived, the State sent me a notice that I was being moved to the inactive voter list. They took the occasion of their failure to send me an absentee ballot to tell me that I was being moved to the inactive voter list.
Is Georgia unusual in this purging of inactive voters?
Georgia is particularly aggressive in purging voters. Unlike in some States where you can re-register at the polling place on election day, in Georgia you must do it some 30 days before an election. All of these people who get purged may not know that they have been purged and may in fact go to vote on election day. But when they go to vote, it’s too late to re-register, and they may not be allowed to vote.
My second experience of trouble this year came with an election to fill the unexpired term of John Lewis in September. I reside in Lewis’s Congressional district, but was still staying in South Georgia so I applied to my home county, Fulton County, for an absentee ballot. When they never acknowledged my application and the ballot never came, I spent like four or five days running, trying to get through to people. I would be put on hold, you know, and I just carried my cell phone around with me all day, hoping to get through. The people who answered the phone were very gracious, very knowledgeable, but they don’t have any power to do anything. They have to kick it up to a supervisor. And, of course, the supervisor never responded. That went on for about a week, and then finally, around election day, Fulton just let me know that no one had addressed my issue and that no ballot would be received.
Well, Georgia’s system is kind of a relic of Jim Crow in that we have to have a runoff in order for a candidate to get to 50-plus percent. Why is that a relic of Jim Crow? In the past, the argument goes that, if there were, say, multiple white candidates and a Black candidate and if the Black candidate wins by plurality: By having a run-off, the supporters of the white candidates are allowed to re-group behind one white candidate and defeat the erstwhile winner by plurality. That’s happening right now in our senatorial run-off… between [Kelly] Loeffler and [Raphael] Warnock. There have been challenges to this system, but they’ve not been successful—maybe, with good reason: One counter-argument might go that, just because the run-off system may have suspect origins, that shouldn’t mean that Georgia can’t have a run-off system today.
My third experience of trouble this year came after that September race to fill John Lewis’s term. Nobody got 50-plus percent, and there was going to be a run-off on December 1st. So I applied for an absentee ballot in November. But what was happening in November? Well, Fulton County especially, where Atlanta is primarily based, was under attack after November 3rd with all those allegations of suitcases of extra ballots; none of which was true, totally baseless. They were overwhelmed. My ballot finally arrived on Dec. 9, so I eventually got it, but it was nine days too late. I couldn’t vote in that election either.
But how can you claim it is voter suppression if it’s a Democratic primary, in a Democratic-majority county?
I make the following case to people I’m working with on elections. I vote in Atlanta, a majority-Black city. Many people might assume that Fulton County, which encompasses most of Atlanta, would not engage in voter suppression.
But shift the focus: When voters in the majority-Black city wait for hours and when that doesn’t happen elsewhere in the state, the rest of the state may see that as a gift. Voters in Atlanta become discouraged. They stop voting. The turnout is less because it’s so costly. They may not develop the habit of voting.
Think of the first election/run-off scenario. In the first election, you, as a voter, may have faced a six-hour wait. You may have had to go home early. If you did not get to vote for a candidate in the first election, you might not develop a sense of loyalty to your preferred candidate to incent you to wait in yet another line in order to vote for that candidate in the run-off.
When the rest of the state sees this happening in the most populous Atlanta/Fulton area for decade after decade* and continues to leave the local elections officials under-resourced, it’s a form of voter suppression. Maybe, you can’t take it to court because it doesn’t have enough intentionality behind it. You might call it a form of malign neglect.
*When we all learned through Bush v. Gore of the deficiencies in the voting punchcard system, I learned that my polling station, just a block away from the King Center for Nonviolent Social Change, had the highest rejection rate in the state on account of hanging and dimpled chads.
Another abiding issue has to do with signature match. Back in 2018, Stacey Abrams made the point that elections officials were throwing out voter registrations based on asserted mismatch between the signature on a voter-registration and a signature the state has on file somewhere else for the voter-registrant and that it was having a disproportionate effect upon people of color.
Early this year, a lawsuit about another aspect of signature match was settled. The settlement provided a procedure for dealing with an asserted mismatch between a signature on an absentee ballot and another signature on file with the state. If there is an asserted mismatch, a panel of three people would be assembled. Only if two of three agree on mismatch will a ballot be thrown out. The settlement was authorized by the Secretary of State and the Georgia Attorney General, among others.
When you hear President Trump complaining that the recounts in Georgia “won’t help,” he’s talking in part about this three-person procedure.
Why is this significant?
It feeds into a theory that some are developing for this election season. The U.S. Constitution provides that state legislatures establish the times, places, and manner of holding elections and direct the manner of appointing electors.
The developing theory may take the position that the state legislature alone must establish the manner—not, say, the Georgia Secretary of State and the Georgia Attorney General through settlement of a lawsuit and the regulatory guidance that followed the settlement.
Why didn’t the Supreme Court do something on the Texas case? Well, probably because the Texas case was dismissed for lack of standing. Texas doesn’t have the authority to come in and tell Georgia, Michigan, Pennsylvania, and Wisconsin how to run their elections. When you dismiss a lawsuit for lack of standing, you’re still not really addressing the substance.
And this whole argument about the state legislature’s being supreme also feeds another argument that Trump is making: that Georgia Gov. Kemp needs to call a special session of the Georgia legislature. If there were a special session, the developing theory may hold the Georgia legislature can do anything it wants to, including throwing out an election and itself picking a new slate of electors for the Electoral College–and no one would be able to say otherwise because it’s the legislature alone that’s asserted to be in charge, not the legislature within and constrained by judicial review; by, say, the state constitution; and by the other checks and balances of state government.
What is the takeaway for the public at large?
All of these things are of a piece. One thing that’s remarkable about this developing theory is that appears opportunistic and to be advanced to change a particular result. It’s also all anti-democratic. The Georgia legislature itself authorized the presidential election. If you had a special session and threw out the election in part for the stated reason that signatures on ballots were tested for match under a regulatory (not statutory) three-person procedure approved in settlement of a lawsuit, are you arguing that that’s in any way a democratic result? All of these arguments are arguments for throwing out millions of votes.
What actions or strategies can people use here to address these types of issues you’re seeing?
I’ll start with the practical. If something happens that’s not right, find a way to say something. In each of the three instances when I have not received a timely absentee ballot, I’ve been going to Fair Fight Action and preparing a declaration about what happened. They even have an email address for that: firstname.lastname@example.org. Back in 2019, Fair Fight Action expanded its operations to some 20 states. Even if Fair Fight Action doesn’t cover your state, I’ll bet they could direct you to someone in your state who could help.
When it comes to theories that the text of the Constitution or the original intent or public understanding of a piece of text compels an unnatural result, there is almost always a better understanding out there. Does this developing theory of the U.S. Constitution mean that states like Georgia and Pennsylvania may not have tripartite government and a state constitution with judicial review?
If we throw out the Georgia election because of the three-person procedure in the presidential election, what about the other federal elections on the same ballot? What about the state elections on the same ballot? Are votes still valid for those other elections even if not for the presidential election?
Try this idea on for size: Even if the state legislature is supreme, what about all the past actions of the state legislature? It was past actions of the Georgia or Pennsylvania legislatures that helped to establish a state constitution, a judicial branch, judicial review, elections officials with authority to settle lawsuits and issue regulations governing elections. Don’t those actions of the state legislature count anymore?
More broadly, if you are inclined to become discouraged, consider this: There never really was a golden age in which these kinds of power grabs and abuses did not happen. It’s always been a struggle. We can honor and draw strength from those who struggled before us by continuing their struggle in our own time.
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