Preserving voting rights

Dear Readers, Early voting starts this week.  While we are voting in primaries (choose your party ballot), this is also our opportunity to elect government officials (like judges) running for non-partisan positions.  Vote! 

Critics of our voting processes see evil gremlins looming everywhere.  Unfortunately for some, there is a myth that our electoral system is decrepit.  Rumors circulate that non-citizens are illegally voting – they are not (except in rare, rare exceptions).  Whispers swirl about people double-voting or submitting false absentee ballots.  Yes, this type of voter fraud happens, but not with any frequency to affect the results.

Elections are run by states, although Washington can establish rules for federal elections.  In the unending paranoia that “something” must be wrong, changes loom at both the state and federal levels.

Georgia has passed some of the nation’s most restrictive voting laws.  The state purchased a voting system in 2019, and since then, we have been voting on touch-screen machines that generate a QR code to tally our votes. We can watch as the vote is registered as our ballot is scanned.  If a problem ensues, the original paper ballot can be hand-counted to confirm the count.  Easy peasy!

Two (2) years ago, the legislature voted to end the use of this system and required a hand-count of all ballots.  They did this without factual proof of any glitches.

This law is scheduled to be implemented this July.  Presumably, the delay was to provide a runway for state and county election officials to adjust.  Two (2) somewhat minor problems: they did not pick a new system, and they did not allocate funds for counties to adopt a vote-counting process.  

This May primary and June run-off are unaffected, but November is the whole “enchilada.”  What will we be doing in November?  This is an unknown, as there will be a slew of lawsuits challenging the mess made by the Georgia legislature.

Nationally, you probably have heard about the SAVE Act languishing in Congress.  This proposal would push up against constitutional guardrails.  One such would be to affirm that election day is fixed as the second Tuesday in November, threatening to nix early voting. 

As I said earlier, states administer elections.  They designate polling places, and set rules about: the time polls open and close; absentee ballots; and ballot recounts.  The nuts and bolts of elections.  

Another contraindication, Congress can only regulate an election when federal officials are on the ballot.  In this ongoing election, we are electing state officials designated as non-partisan by the Georgia legislature, e.g., judges, public utility commissioners, and school board members, etc.  Hence, the legal pivot about our May 19^th primary and June run-off – Can Congress tell Georgia how to conduct this primary election?  Maybe not.

Our Founding Fathers did not envision parties being so pivotal in elections.  Truly.  James Madison famously warned us about factions in politics in Federalist No. 10.  He was especially suspicious of the tyranny of a minority.  However, neither he nor his compatriots envisioned the stagnant two-party system that has evolved.  As such, it might be the correct reading of the Constitution, setting election day as being unconcerned with a primary election.

In theory, we could end up with two (2) distinct types of elections.  Those conducted on the second day in November and all others.  Special elections might even be purely a state event, since they were not contemplated by the Constitution, and each state has its own procedures for filling a vacancy in Congress.

The SAVE Act would also dictate what is required to vote – again, this is supposed to be state-dictated.  And, which votes can be counted, defining how to accept an absentee ballot, even if this conflicts with state law.

We are supposed to have a dual sovereignty construction in our Republic.  We recognize federal supremacy while allowing each state broad latitude to govern, such as its elections.  The SAVE Act would obliterate this distinction.  We could end up with some states refusing to acknowledge federal “bullying.”

Your right to vote is at risk.  In Georgia, this means a state law seemingly incapable of implementation.  County election boards have neither the direction nor the means for a different election system to be utilized in November. 

The SAVE Act looms as shattering our 50-state individual solution to conduct elections.  Either way, this serves to undermine our faith in the sanctity of elections, the bedrock of our democracy.  In other words, we are planting seeds of election distrust.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.