The Old South Rises Again
The Lost Cause’s 2021 Attack on Democracy
This is the third essay from Civic Way on state and local elections. In this essay, we zero in on three states—Florida, Georgia and Texas—and their omnibus election bills. In our last essay, we provided an overview of state legislation enacted throughout the nation this year. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving government agencies across the US.
Politicians in Florida, Georgia and Texas have invested a great deal of time in building election schemes that make voting harder and subverting elections easier
While the political implications of some voting restrictions may be inflated, the threat of election interference laws to democracy cannot be overstated
By spending so much time this year protecting their jobs, state lawmakers effectively neglected the issues that should have been addressed to protect their citizens
What Florida, Georgia and Texas Share
In 2021, three states--Florida, Georgia and Texas—enacted comprehensive omnibus election bills. With GOP governors and state legislatures, each state followed the lead of national groups such as the American Legislative Exchange Council (ALEC) and Heritage Foundation. Each state now has a statutory framework that does two things: make it harder for citizens to vote and easier for politicians to overturn elections.
In all three states, GOP leaders touted the laws as vital for reducing fraud and ensuring election integrity. Their true intentions are much darker—to enhance their party’s future electoral prospects. And, in case they lose anyway, empower themselves to seize control of local elections and rewrite the outcomes.
Dark Clouds in the Sunshine State
Florida’s anti-democracy efforts came early. Previously-enacted laws empowered partisan state officials to install new local elections officials based on perceived performance issues. Using this power, state officials appointed replacement administrators in Broward and Palm Beach counties after the 2018 elections.
Earlier this year, by party line votes (only one GOP Senator voted no), Florida lawmakers approved Senate Bill 90 to restrict certain voting options. They gave House Democrats an hour to debate the bill, some provisions of which are highlighted below:
Polling places – prohibit activity that could be construed as influencing voters (e.g., giving water to waiting voters) and empower partisan poll watchers to monitor and dispute ballot counts
Vote by Mail (VBM) – require more frequent renewals, tighten identification rules, limit drop boxes, ban drop box moves within 30 days of an election and ease ballot challenges
SB 90 also negates some elections altogether. It empowers the governor to replace a new local legislator who resigns to run for another office. Before, voters selected new officials in special elections. How this provision will help reduce fraud or preserve electoral integrity is a mystery.
Upon signing SB 90, the Governor boasted it would improve security. As to how, he claimed it would prevent ballot harvesting and ballot stuffing, two practices already illegal. Voting rights groups lambasted the bill, arguing that it will lengthen waits and hurt young and minority voters.
Much of SB 90—especially the VBM restrictions—will probably placate GOP leaders who asserted, without evidence, that the 2020 election was tainted. Several states (including Utah) instituted VBM before the pandemic. During the pandemic, despite the preemptive wolf crying, VBM gained favor with voters. A recent University of Florida study estimated that more Republicans cast mail ballots in 2020 than in 2016. Ironically, SB 90’s MBV restrictions could affect Republican voters more than they do Democratic voters.
But SB 90 is about so much more. It is about empowering politicians to manipulate elections. Interfering with ballot tabulation processes. Unleashing partisan poll watchers to intimidate election officials and voters. Subjecting local election officials to $25,000 fines. Curtailing local authority over election funding and lawsuits. Shifting power from local voters to the governor.
A Bitter Taste in the Peach State
Georgia’s new election bill—SB 202—has garnered a lot of attention. As with similar laws, the surrounding controversy has spawned some misunderstandings and hidden some perils.
After the 2020 presidential and 2021 Senate run-off elections, and after the GOP Secretary of State affirmed their accuracy, many Georgia GOP leaders decided they could no longer trust their election officials and processes. It became their sacred duty to dilute voting laws that they thought contributed to Georgia’s shocking voter turnout and Democratic wins.
After a party line vote in the General Assembly, Georgia’s Governor signed SB 202. Like the bills enacted in Florida, Texas and other states, SB 202 does two things—make voting harder (with some exceptions) and facilitate a partisan state takeover of local elections. Its key restrictions are summarized below:
Registration – ban automatic voter registration
Voter access – reduce early voting in many counties, reduce early voting for runoffs by two weeks and disqualify provisional ballots cast in the wrong precinct
Polling places – prohibit the provision of water to waiting voters, expand poll watcher access at voting or ballot-counting sites and empower partisans to challenge the eligibility of voters
VBM – shorten the application period, ban sending applications to all voters, reduce drop boxes (one per 100,000 registered voters), tuck ballot drop boxes inside early voting facilities and make them unavailable during non-business hours
SB 202 is not as restrictive as some feared. Some provisions were cut from the original bill, including Sunday and no-excuse absentee voting bans. It preserves a local option for two early voting Sundays. And it offers state aid for reducing long voting lines and requires two early voting Saturdays for general elections.
SB 202 replaces a clumsy signature-matching process with a simpler ID requirement for obtaining VBM ballots. As Georgia’s Governor pointed out, this requirement mirrors one already used by several blue states (e.g., Connecticut, Washington and Biden’s home state of Delaware).
The reaction has been mostly about SB 202’s voting restrictions. As Republican leaders touted their pipe dream of fraud-free elections, some Democrats and voting rights groups called SB 202 “Jim Crow 2.0.” Lawsuits were filed. Major League Baseball moved its All-Star Game from Atlanta and Coca-Cola condemned the bill. The partisan bickering took a more absurd turn with some politicians threatening to drink Pepsi-Cola (forgetting their prior boycott of Pepsi over its subsidiary’s rebranding of Aunt Jemima pancakes).
The potential impact of SB 202’s voting restrictions may be negligible for most contests. VBM restrictions could discourage some voters and invalidate some ballots, but may not hurt one party more than the other. In Georgia, extreme gerrymandering has nearly extinguished competitive legislative races. In 2020, for example, Georgia Democrats won close elections in only one of 56 state senate races and seven of 180 house races.
Still, tweaking election laws could change the outcomes of statewide elections (many recent statewide elections in Georgia were decided by less than two percentage points). For this reason alone, SB 202’s voting restrictions could loom large in future elections.
However, it is SB 202’s election meddling that could do the most irrevocable damage. Some articles are relatively benign, more window dressing than serious policy. Prohibiting private funding for elections. Installing an election fraud hotline in the attorney general’s office. Requiring legislative approval for lawsuit settlements and emergency election rules.
The gravest threat posed by SB 202 is that it enables legislators to replace independent officials and overturn future elections. Replacing the Secretary of State on the State Elections Board with a legislative appointee. Empowering the GOP-controlled State Election Board to suspend local election boards (up to four suspensions at once) for violating election rules (even if unintentional) and install interim election managers. Empowering the interim managers to disqualify voters and ballots.
What next? In all likelihood, the Georgia legislature will replace local election boards in strong Democratic counties like those in Metro Atlanta. In fact, the takeover bid for Fulton County’s elections is already underway. Republican legislators wrote to the State Elections Board requesting another review (a prerequisite for replacing the local board). The review’s standards and contract process are unknown, but its outcome predictable.
For anyone who reveres democracy, SB 202’s takeover provision should alarm. In 2020—at least in theory—it would have enabled the legislature to award the state’s electoral votes to the loser. In signing SB 202, Georgia’s Governor promised “greater transparency, accountability and voter confidence.” If anything, its takeover provision shows a callous disregard for all three.
A White Flag in the Lone Star State
Texas Republicans have been nervous for several years. Since 2010, the state’s Latino population has increased dramatically, far more than that of other groups. Nonwhites comprise over sixty percent of those under 20. And GOP margins in statewide elections have begun to tighten.
The GOP-controlled state legislature used the standard partisan playbook. Gerrymandering (Austin’s congressional districts look like a sliced pizza). A 30-day registration deadline (before Election Day). An affidavit requirement for voters with a nonofficial ID. One of the nation’s lowest voter turnout rates.
Based on the 2020 elections, however, GOP fears (and Democratic hopes) seem premature. While the Democrats’ national ticket outperformed prior slates, Republicans carried the presidential race by 630,000 votes. They won the US Senate race by over one million votes. They won other statewide races—like Railroad Commission and State Supreme Court—handily as well.
Still, not wanting to leave future elections to chance (and the voters), Texas enacted SB 1, an omnibus election bill, along party lines. Some key provisions are summarized below:
Voter registration – require monthly citizenship checks
Voter access – ban 24-hour and drive-through voting and curtail early voting
Polling places – empower partisan poll watchers and criminalize voter aid and poll watcher obstruction
VBM – establish new ID requirements and ban the distribution of unsolicited VBM ballot applications
The most egregious provision is one allowing judges to overturn an election when the loser claims, even without proof, that fraud cost him or her the election.
Last week brought us another silly episode in the Texas election saga. At the behest of the former President, Texas officials decided to review the 2020 presential election results in the state’s most populous county (Harris including Houston) and three large counties in the Dallas-Fort Worth metro area.
This review defies logic. The GOP won Texas with little evidence of fraud. Despite over 22,000 staff hours on voter fraud cases last year, the state attorney general’s office resolved only 16 cases and had only 43 open voter-fraud cases for the 2020 election. How the review will be funded—let alone conducted—remains unknown.
Putting the New Lost Cause in Context
The recent voter restriction bills are largely anti-democratic. Losing an election doesn’t justify a concerted campaign to discourage voting. But their political impact may be overstated.
As exemplified by Florida, Georgia and Texas, the far greater threat to our democracy is the sinister notion that fair, honest elections can be overturned. That whenever partisans in power lose an election, they are entitled to a mulligan. Once this becomes the norm, our slide into autocracy will be irreversible.
Lawmakers in all three states have claimed that it only takes one fraud case to render our elections unreliable. Nonsense. While we should always strive to preserve election integrity, we cannot eliminate fraud altogether. Don’t we tolerate at least some fraud in other walks of life? Instead of making voting too hard, we should make voting as convenient as possible without unduly sacrificing overall election security.
Finally, are lawmakers in Florida, Georgia and Texas doing the jobs we elected them to do? After devoting so much time to elections, did they fail to address other issues? In Florida, the legislature did not adequately address such issues as flooding, water quality and condo construction. In Georgia, it was water, health care, obesity and children, among other issues, that got short shrift. In Texas, the legislature failed to mount a meaningful response to the energy debacle that occurred just months earlier.
And the legislatures in all three states neglected to fully confront COVID-19 or prepare their citizens for future pandemics. This is the kind of malpractice that happens when partisan zealots dominate public service.