The Future of Voting Rights Is at Stake in the Georgia Runoffs

The presidential election is over and Donald Trump’s term is sputtering to an ignominious end, but whether the federal government can do anything of significance after he leaves the White House remains very much in doubt. Republicans are one seat away from maintaining control of the U.S. Senate, and it is a safe bet that another two years of Majority Leader Mitch McConnell’s leadership would render all but the most anodyne planks of President-elect Joe Biden’s agenda irrelevant. Since no Georgia Senate candidate won a majority of the vote on Election Day, the fate of the Democratic agenda now rests on a pair of winner-take-all runoffs between two Republican incumbents and their Democratic challengers: Kelly Loeffler and Raphael Warnock in one race, and David Perdue and Jon Ossoff in the other. 

The stakes could not be higher: A Democratic sweep would yield an evenly divided Senate of 50 Democrats and 50 Republicans. With Vice President-elect Kamala Harris breaking ties, this split would unify the House, Senate, and White House under Democratic control—albeit by the slimmest of margins. Just nine weeks after Biden managed to win Georgia by a mere 12,000 votes, polling shows that the runoffs, too, are very, very close. As money pours into the state, some observers believe that ad spending alone could eclipse half a billion dollars by Election Day, Jan. 5, making these among the most expensive races in Senate history.

Of the many looming battles that hinge on the results, the chance for Democrats to finally halt the conservative movement’s relentless campaign of voter suppression might be most consequential. Just as Barack Obama’s landslide presidential win a decade ago prompted a disastrous wave of voter ID laws and voter roll purges, especially in the historically red states where he made inroads, GOP lawmakers are already signaling their intent to roll back many of the pro-democracy measures that led to the highest voter turnout in more than a century in 2020. Republican fearmongering about “rigged” elections is not just about pacifying Trump; it sets the stage for reactionary opposition to pro-democracy reforms well after he leaves office. 

Determining who can participate in elections is tantamount to deciding them, and in the aftermath of an election plagued by Trump’s baseless allegations that widespread voter fraud determined the outcome, America’s ambitious experiment with representative democracy more or less hangs in the balance. The Georgia runoffs give Democrats a fighting chance not only to put this crisis front and center, but to actually do something about it. 

In 2013, when the U.S. Supreme Court eviscerated the Voting Rights Act in its Shelby County v. Holder decision, the civil rights icon and Georgia Representative John Lewis excoriated the justices for confusing improvements in nonwhite representation with an absence of racist attempts to suppress it. “Those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote,” he said. “I want to say to them, ‘Come and walk in my shoes.’”

In the sudden absence of federal backstops to prevent discrimination, Republican lawmakers quickly began working to disenfranchise constituencies whose participation in politics they found inconvenient; in 2016, a federal court found that North Carolina’s post-Shelby County reforms targeted Black people with “almost surgical precision.” A 2018 Brennan Center for Justice analysis found that jurisdictions covered by the scuttled aspects of the Voting Rights Act went on to purge their rolls at a significantly higher rate than noncovered jurisdictions. Shelby County, the authors concluded, has had a “profound and negative impact.”

In March 2019, after winning the House of Representatives for the first time since 2008, Democrats made addressing the voter suppression crisis their first order of business by passing the For the People Act, a landmark election reform bill to expand mail-in voting and early voting, streamline the 50-state patchwork of voter registration procedures, and crack down on voter roll purges. More than five decades after fighting for the Voting Rights Act as an activist, Lewis took to the House floor to make the closing argument. “We all know that this is not a Democratic or Republican issue. It is an American one,” he said. “Today, we are able to do our part in this long fight for the very soul of our nation.”

Last December, Democrats passed a separate bill, the Voting Rights Advancement Act of 2019, to reinvigorate those provisions of the Voting Rights Act that were gutted by the Court’s decision in Shelby County. After Lewis’s death in July, the bill was renamed in his honor.

Republicans, evidently, did not agree with Lewis’s assessment. The For the People Act received zero Republican votes in the House, and its counterpart earned just one. Neither bill went anywhere in the Republican-controlled Senate. In a Washington Post opinion piece, Majority Leader Mitch McConnell tellingly castigated the For the People Act—legislation that made voting easier for everyone—as the “Democrat Politician Protection Act.”

Georgians are especially well-acquainted with the consequences. In the state’s 2018 gubernatorial race, Republican Brian Kemp defeated Democrat Stacey Abrams, who was vying to be America’s first Black female governor, by less than two points amid a host of controversial election irregularities that disproportionately affected Black voters. Kemp was the incumbent secretary of state at the time, meaning that he was, incredibly, in charge of administering the same election he sought to win, and his work as secretary helped shape the 2018 results: Between 2012 and 2018, Kemp oversaw the purging of more than 1.4 million names from the state’s voter rolls. During a period of intensive statewide voter registration efforts by activist groups—including the New Georgia Project, which Abrams, then a state lawmaker, founded in 2013—his office froze the applications of more than 50,000 would-be new voters, almost 70 percent of whom were Black.

Shortly before Election Day 2018, Kemp even published a statement on the secretary of state’s website accusing Democrats of trying to hack Georgia’s election systems, recycling a centuries-old ploy for casting doubt on the integrity of elections. In March 2020, the state attorney general’s office closed its investigation of this purported “hacking” episode after finding no evidence of wrongdoing.

Together, the narrow margin of Kemp’s victory and his actions that likely contributed to it drew national attention, turning Georgia into a modern-day poster child for voter suppression. Two years later, residents are paying attention as the runoff approaches: According to a poll conducted by The Justice Collaborative Institute and Data for Progress, 53 percent of all likely voters, including 72 percent of Democrats, say they’re more likely to back Senate candidates who support passing the John Lewis Voting Rights Act. (The Justice Collaborative Institute and The Appeal are both independent projects of The Justice Collaborative).

Federal judges, in theory, are supposed to police states that interfere with their residents’ right to vote. But the Shelby County decision hamstrung their ability to do so, and Trump and McConnell have spent four years stocking the bench with more conservative ideologues who are inclined to look the other way. In a series of alarming decisions this year, the Supreme Court bent over backward to thwart state-level efforts to make it safe and easy to vote during the pandemic. Even more troublingly, although its conservative supermajority ultimately declined to overturn the election on Trump’s behalf, it left open the door to intervene in future elections that are perhaps more competitive than this one. 

By winning two more Senate seats, Democrats could reverse this trend and confirm judges who will take seriously their obligation to protect voting rights from self-interested politicians intent on entrenching themselves in power. A unified Democratic government could also pass legislation to make anti-democratic stunts like Brian Kemp’s a thing of the past, and the already ambitious bills the Democratic House passed during this Congress could serve as a floor for reform, not a ceiling, in the next one. A new and improved version of the For the People Act might, for example, explicitly limit the Court’s authority to strike it down; as U.S. Representative-elect Mondaire Jones of New York has argued, it could also address the danger posed by the Court’s conservative supermajority by expanding the Court itself. 

The issue of voting rights is especially personal for Warnock, a reverend who previously served as chairperson of Abrams’s New Georgia Project—and whose Atlanta church, Ebenezer Baptist, Lewis regularly attended before his death. Warnock and Ossoff have made honoring the late congressman’s legacy central to their campaign trail pitch. “We can pass the John R. Lewis Voting Rights Act,” Ossoff tweeted on Nov. 16. “But only if we win the Senate.” 

Sweeping the Georgia runoffs would also give Democrats control over the confirmation process for Cabinet members, who under Trump were happy to abuse their powers in service of Republican politics. Attorney General William Barr, for example, helped promote conspiracy theories about the purported dangers of mail-in voting. And as his defeated boss railed about the perils of a “rigged” election, Barr fueled this sense of grievance by encouraging prosecutors to investigate “specific instances” of alleged voter fraud that may come to their attention. In 2017, Commerce Secretary Wilbur Ross began working to add to the census a question about respondents’ citizenship—part of a broader conservative effort to use the census results to shift political power from Democrat-leaning Hispanic communities to whiter, more Republican ones. The Department of Justice authored a letter to provide a purported rationale for this choice, and the explanation on which they settled—that collecting this information was necessary to enforce the Voting Rights Act—was so absurd that not even the Supreme Court’s conservative majority was willing to buy it. 

Simply redirecting the executive branch’s time and resources to the task of protecting voting rights will be a significant improvement over the status quo, even absent sweeping legislation to further that effort. Biden’s Cabinet has the power to undo much of the damage the Trump administration did to this country’s fragile democracy, and if Democrats win the Senate, their Republican counterparts will be powerless to stop it.

Victories in Georgia would hardly guarantee victories in Washington, of course. Unless a Democratic majority is also willing to abolish the Senate filibuster, a committed minority of Republicans would still be able to block most legislation they don’t like. (Cabinet and judicial nominees are not subject to filibuster.) And for now, the party’s centrist coalition remains publicly leery of this prospect. “That’s bullshit,” said Senator Joe Manchin of West Virginia, when asked about abolition in June. “The whole intention of Congress is basically to have a little bit of compromise with the other side.” Senators Kyrsten Sinema of Arizona, Dianne Feinstein of California, and Jon Tester of Montana have also expressed reluctance to ring this bell that cannot be unrung. 

Perhaps Manchin and company are as committed to preserving archaic Senate rules as they say. But it’s easier to defiantly take positions like theirs when McConnell’s status as majority leader shields them from having to answer for it. Winning the Georgia runoffs would hold up a mirror to the Democratic Party, shifting accountability for government’s failures from McConnell’s obstructionism to lawmakers who care more about burnishing their moderate bona fides than using their power to make people’s lives better.

Even if the caucus’s more stubborn members cannot be pressured to eliminate this supermajority requirement, the agenda-setting power that comes with Senate control also matters: With Democrats in charge, voting rights legislation that the Senate never considered under McConnell could receive committee hearings, a debate on the Senate floor, and perhaps even a cloture vote. All of these could be prime opportunities for Democrats to make clear to Americans which party and which lawmakers care about protecting democracy, and which don’t.

Whatever the fate of voting rights legislation in the upcoming Congress, a Democratic Senate can still make voting rights a priority for the other two branches of government. At the very least, the ability to confirm Biden’s judicial and Cabinet nominees would soften the blow of the possibility of failing to overcome an anti-democracy filibuster, and ensure enforcement to the greatest possible extent of those protections that are already in place. 

All of these lofty ambitions depend on what happens in Georgia, though. By sending Warnock and Ossoff to Washington, voters in John Lewis’s home state have the chance to repudiate its legacy of voter suppression in dramatic fashion—and, perhaps, to ensure that it doesn’t happen in Georgia or anywhere else again.

Jay Willis is a senior contributor at The Appeal.