Loss of VRA preclearance protections allowed election deniers to undermine certification of the vote

As previewed in part 1 of this series, under the Electoral Count Reform Act of 2022, December 11th is the deadline for all states to submit the certification of the presidential election results to the electoral college. Luckily, it has gone smoothly—but the 2020-2024 battles around state certification have damaged trust in American democracy. This edition explains how the Supreme Court’s evisceration of the federal oversight preclearance provisions of Section 5 of the Voting Rights Act (VRA) in 2013 and Congress’ subsequent failure to pass the John Lewis Voting Rights Advancement Act (JLVRAA) exacerbated certification battles in some of the jurisdictions previously covered by Section 5, especially in Georgia. This section demonstrates that if Congress had passed the JLVRAA, or if Georgia passed a similar state Voting Rights Act, then citizens’ rights to have their votes certified in Georgia would have been clearer and the damage done by election deniers in the previously covered jurisdictions would have been minimized.

In the now-infamous 2013 Shelby v. Holder decision, the Supreme Court relied on a pre-Reconstruction “state’s rights” theory and incorrectly calculated that discrimination in voting had largely subsided, so it eviscerated the preclearance protections of Section 5. Of the states where there has been a recent threat of failure to certify, Arizona, Georgia, Michigan, North Carolina and Virginia were previously either partially or fully covered by the preclearance provisions of the VRA.

Taking away preclearance was a major loss, as prior to Shelby, any changes in voting or election practices or procedures in the formerly covered jurisdictions would have had to first be precleared by the Department of Justice (DOJ) or a federal judge before they could be implemented in elections. Like Section 2, it did not require proof of intentional discrimination, but instead Section 5 evaluated whether changes in voting and elections “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (Emphasis added.)

The Voting Rights Act of 1965 was specifically designed to address new and emerging types of discrimination. The types of changes that had to be precleared were very broadly defined and would clearly encompass changes in the way votes are certified at the state and local level. The purpose of the preclearance provisions was “to protect the ability of such citizens [voters of color] to elect their preferred candidates of choice.” As discussed in Part 2 of this series, this clearly depends on each citizen’s vote being counted equally, rather than being diluted by refusal to certify. The VRA also specifically defined the rights protected to encompass “casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast.” Moreover, federal regulations include “[a]ny change concerning… the counting of votes” and ”[a]ny change in the method of determining the outcome of an election,” as Examples of Changes subject to preclearance. 

In 1992, the Supreme Court reaffirmed that: “Our prior cases hold, and we reaffirm today, that every change in rules governing voting must be precleared.” And in 2023, in an Alabama redistricting case, the Roberts Court re-emphasized that the Voting Rights Act was meant to be understood based on the statute’s “broad language” including all “…action[s] required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast.” (Emphasis added.)

How preclearance operated

Under preclearance, any change in voting or election practices or procedures had to be submitted to the DOJ or a federal court, then the federal government would review data about any disparate impacts and any other indications of discriminatory intent or effects to determine whether the change was retrogressive. Section 5 thereby protected against backsliding in voting rights and effectively tested whether new practices put voters of color in a worse position than before. If a racially discriminatory practice had existed prior, it would be hard to prove a Section 5 violation and voters would have to rely on the more complicated showing that the totality of circumstances violated Section 2 of the VRA instead. However, if a new practice diluted equal opportunity to vote and have one’s vote counted equally, then it would not pass preclearance and could not be implemented. Further, under Section 5, it was up to the jurisdiction to prove that their actions did not have discriminatory effects—the jurisdiction had to provide public notice and racial impact data, and the federal government was required to consider the input of impacted communities. Perhaps most importantly, the changes could not be implemented until after they passed the 60-day federal review, so last-minute changes could not be implemented during elections.

The threat to certification in Georgia

The threat to certification began in 2020 and built momentum up until this year. From July-October 2024, the Georgia State Elections Board (SEB) issued a new set of rules illegally expanding county election boards’ discretion to withhold certification of election results, among other provisions related to certification and election administration. As will be shown below, the threat included potentially discriminatory effects that would have diluted the power of Black voters. The SEB measures were defeated through intense state-level advocacy and litigation—and this helped ensure that the results of the presidential election were certified in Georgia this year while not ironically, the fraud claims dissipated after Trump won. If any of Georgia’s 159 counties had refused to certify the election results, the governor may not have been able to deliver the state’s results by December 11th, 2024, the deadline for the Electoral College. This time, thanks to the efforts of many advocates and responsible state officials, Secretary of State Raffensperger was able to certify the state’s presidential election results on November 21st. 

Evidence of racially disparate impacts, an ongoing history of racial discrimination and an overall climate of racial appeals campaigns in Georgia show that the SEB’s last-minute changes would have diluted the power of Black voters and would very likely not have passed preclearance. 

Discriminatory impacts of threats to certification of election results in Georgia

The SEB’s last-minute changes put democracy at risk for the state’s nearly 2.5 million eligible Black voters as well as other voters of color in this state with rapidly increasing racial diversity. 

This most recent Census data shows that if the state’s election results had not been certified on time and the Electoral Count Reform Act deadline of December 11th had passed, the Black vote could have been significantly diluted as the percent of Black voters in Georgia is almost three times the national average (32.1% v. 12.4%). Furthermore, 8.4% of the nation’s eligible Black voters live in Georgia—therefore, threats to certification of Georgia’s presidential election results would have a significant racially discriminatory impact.

Other legal factors impacting voters of color in elections in Georgia

Like Section 2 of the VRA, Section 5 also takes into account the totality of circumstances impacting voters of color in the state and would evaluate whether in this context officials’ actions either had the purpose or effect of denying or abridging the right to vote and have one’s vote counted equally. Preclearance review would take into account “[w]hether the impact of the official action bears more heavily on one race than another;” and the Census data research above shows that the SEB’s new rules would have had a discriminatory effect and diluted Black voting strength—and thus diluted equal access to participate in American democracy and elect candidates of choice—in Georgia and nationwide.

Preclearance review would also take into account that Georgia has a long, extensive and ongoing history of racial discrimination in voting. SEB’s 2024 rule changes and the concurrent threat of refusing to certify election results did not occur in a vacuum, but instead occurred in a state where voters of color have experienced many forms of racial discrimination in voting. Threats to counting the votes of citizens of color equally are amplified and may be more intimidating in this environment. Socioeconomic disparities may also have a negative impact. As will be discussed below, some of the recent racial rhetoric by election deniers and attacks on Black election officials and voters could also be taken into account.

Other relevant factors include “the extent to which a reasonable and legitimate justification for the change exists;” and “the extent to which the jurisdiction followed objective guidelines and fair and conventional procedures in adopting the change.” Considering that the changes were opposed by the State Attorney General and defeated in litigation, the SEB rules would be suspect, and tenuous or pretextual reasons for the SEB’s rules would not suffice. Preclearance review also evaluated “the extent to which the jurisdiction afforded members of racial and language minority groups an opportunity to participate in the decision to make the change;” and if “concerns of members of racial and language minority groups into account in making the change[.]” Here again, although more investigation is needed, being defeated by state litigation based on the concerns of voters of color seem to indicate that their needs were not well-considered. 

Starting with history, in 2023, in the case of Alpha Phi Alpha Fraternity v. Raffensperger, a federal court found that the state’s history of racial discrimination “has been rehashed so many times that the Court can all but take judicial notice thereof[;]” and that: 

Georgia has a history chocked full of racial discrimination at all levels. This discrimination was ratified into state constitutions, enacted into state statutes, and promulgated in state policy. Racism and race discrimination were apparent and conspicuous realities, the norm rather than the exception.

Georgia was covered under Section 5 “because in the 1960s and early 1970s, the whole state had low voter registration or turnout and maintained tests or devices as prerequisites to voting (i.e., poll taxes, literacy tests, and grandfathering rules).” The court also noted that this pattern continued into recent history, noting that the U.S. Commission on Civil Rights documented that in the five years after the Shelby decision, Georgia had enacted more discriminatory voting restrictions than any other state. Based on this history, under the totality of circumstances test, the Alpha Phi Alpha federal court found the state’s 2023 redistricting plan, which would have had racially discriminatory impacts diluting the effectiveness of the votes of citizens of color in Georgia, violated Section 2 of the VRA. This case has been appealed on other grounds. Using the highly relevant logic of Alpha Phi Alpha, the SEB’s new rules fall into a familiar fault line for Black voters, in which: “The history of the state of Georgia, voting rights have followed a pattern where after periods of increased nonwhite voter registration and turnout, the state has passed legislation, and often used extralegal means, to disenfranchise minority voters.” Indeed, the SEB rules were extralegal as they were found to violate state law and were even denounced by the Secretary of State and Attorney General who were members of the same party as the majority of the SEB’s members. Further, data shows that the potential political power of voters of color has been rapidly increasing due to changing demographics in Georgia, so the SEB rules might also be the type of backlash that the VRA prohibits. 

The totality of circumstances impacting voters of color in Georgia also include the infamous state-wide and national campaigns that occurred in 2020 to try to prevent their state from certifying the real results of the election. It is well-documented and has been proven in court that Rudy Giuliani targeted former election workers Wandrea “Shaye” Moss and her mother, Ruby Freeman, both of whom are Black women, in Georgia with illegally defamatory public statements. The makers of the post-2020 Election conspiracist film “2000 Mules” targeted Black voters in Georgia, including Mark Andrews, who sued. Dinesh D’Souza of D’Souza media not only pulled the film’s distribution, but also recently apologized to Mr. Andrews who was simply delivering his family’s ballots but was depicted as committing voter fraud. Furthermore, some subsequent actions by election deniers in the state were tinged by racism and put Black election workers and voters at risk of racist attacks and violence. 

Had the Supreme Court not eviscerated preclearance, racial appeals and discriminatory rhetoric among county-level officials who have threatened to refuse to certify the election results in Georgia would also have been reviewed to aid in determining whether or not the changes in certification procedures “for the purpose” or “with the effect of denying or abridging the right to vote on account of race or color.” 

Public statements by several Georgia election officials should also be evaluated. One member of the Gwinnett County Board of Elections, David Hancock, voted against certifying the 2024 presidential primary results based on false allegations. The majority approved certification, so he was unsuccessful at blocking it; however, he had a duty to certify and his reasoning for not doing so was baseless. Hancock made posts in 2021 criticizing Black election workers Ruby Freeman and Shaye Moss suggesting they were unfairly profiting from their work as election workers. He has posted anti-Black Lives Matter sentiment and in one post seems to be making fun of BLM protesters. In 2018, Hancock made a post suggesting Spanish-speakers should not be allowed to vote. 

Ben Johnson, Chairman of Spalding County Board of Elections since 2020, is an ardent election denier. In at least one post on the Kitchen Soup News Network site he reportedly runs, Johnson suggested shooting and even killing immigrants crossing the border, and he recently posted an intimidating meme amplifying unfair and false allegations about Haitian immigrants.

In his public position, Johnson is charged with certifying the vote in his county and ultimately, if his county would withhold certification beyond the deadline, this would impact a state with over 3 million voters of color, including, according to 2022 Census data, in a state with one of the highest Haitian American populations. The Haitian community is deeply offended and fighting back by organizing to vote to elect representatives of their choice.

These are just a few examples of some of the county election officials who have recently posed threats to certification in Georgia making such statements that are taken into account in Section 2 and Section 5 cases. A deeper investigation may reveal more.

As discussed, the 2024 presidential election results have been certified in Georgia. This is because the recent 2024 SEB rules that would have given county officials more leeway to withhold certification based on extremely tenuous reasoning were stopped by litigation in state courts this year. But the state and the nation would have been better off if VRA Section 5 were still in place. At the very least, the SEB’s changes could not have been implemented until they passed preclearance review which takes 60 days and cannot be expedited except when necessary. Rather than the last-minute litigation drama and uncertainty, putting the changes on hold until they passed preclearance would have been exponentially better for voters in Georgia and for the nation’s trust in American democracy. The SEB’s changes are also likely to have been found to be retrogressive, as they clearly put voters of color in a worse position than before and fall into the historic pattern of racial discrimination in voting in Georgia. A review of the demographic data, interviews with community leaders and examination of the disjointed reasoning behind the need to threaten certification would likely have resulted in the Department of Justice or a federal court blocking them on a permanent basis. If the SEB wanted to adopt new rules that were not discriminatory, they would pass preclearance, but the rules they enacted in 2024 would not.

The John Lewis Voting Rights Advancement Act (JLVRAA)

Even though the fundamental right to vote is far from guaranteed under current Supreme Court precedents, the JLVRAA passes constitutional muster as it is completely aligned with Justice Robert’s opinion in the 2013 Shelby decision. It is time to move on and protect our nation against the many new ways of discrimination in voting. 

At the end of the Shelby opinion, Chief Justice Roberts made clear that while he was striking down the preclearance coverage formula applicable to Section 5 in 2013, “Congress may draft another formula based on current conditions.” The Voting Rights Advancement Act was drafted and introduced soon after the Shelby decision, in 2014, 2015, and 2019, but Congress has failed to pass it. It has since been renamed for the late John Lewis, and as the years go by and elections are held without preclearance, current conditions include mountains of evidence that recent forms of discrimination are diluting equal access to the right to vote for Asian, Black, Latino and Native American citizens. As shown above, Section 5 was designed to protect against new changes in election practices such as refusal to certify in ways that would put voters of color—and multi-racial democracy—in a worse position than before. By updating the preclearance coverage formula based on current conditions, the JLVRAA will be constitutional. If enacted, the states that would fall under the VRA’s restored preclearance formula are likely to include: Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. This would protect voters from new methods of discrimination in voting being test-driven during elections. 

Regarding recent threats to certification, the status quo has involved voters of color facing the threat that their votes will be diluted, which has only been stopped by intense advocacy and repeated state-level litigation, which is no way to run an inclusive democracy. Instead, the Voting Rights Act should be fully restored so threats to certification of the election results in jurisdictions with a history of discrimination in voting are stopped before they can do any further damage. State Voting Rights Acts (like those in California, Connecticut, Minnesota, New York, Oregon and Virginia) should also be pursued as they would also provide for preclearance and other protections to stop discriminatory practices from being implemented during elections.

In addition to restoring preclearance, the JLVRAA is needed to shore up the protections of the nationwide, permanent ban on discrimination in voting set forth in Section 2 of the VRA, and Congress should pass it immediately to address ongoing discrimination in voting. We also urge DOJ to issue guidance about Section 11(a) of the VRA, which is another important tool to compel certification and ensure that every citizen’s vote is counted equally.  

Lama Elsharif, Meghan Faulkner, Alex Goldstein, Sacha Heymann, Rebecca Jacobs, Alyssa Meiman, Caitlin Moniz, Debra Perlin, Nikhel Sus and Esther Eriksson von Allmen contributed to this piece.