Fighting Back for Voters: Fair Fight Action v. Raffensperger

Legal Action

Fair Fight Action is challenging Georgia’s unconstitutional elections policies and procedures in a historic federal lawsuit against the Georgia Secretary of State and Board of Elections.

ABOUT THE CASE:

The fight for voting rights and freedom from systemic voter suppression must happen on multiple fronts: advocacy, legislation, and litigation.

The United States Constitution and other federal laws guarantee the right to vote to all American citizens.

During the 2018 and subsequent elections, and building on a long-history of suppressing the right to vote, the Secretary of State and the Georgia State Election Board oversaw an elections system that we contend violated the First, Fourteenth, and Fifteenth Amendments to the United States Constitution and the Voting Rights Act of 1965. They created and enforced unconstitutional and otherwise unlawful policies, engaged in gross mismanagement, and failed to fulfill their statutory duty to ensure uniform application of election laws across Georgia’s 159 counties. The result of their failed policies has created election systems and procedures that have unconstitutionally burdened the fundamental right to vote and has particularly burdened the rights of people of color. Fair Fight Action has sought relief from the federal court to enforce federal protections and correct violations of federal law.

To address the violations of Georgians’ voting rights guaranteed by federal law, our lawsuit demanded improvements to the Georgia elections system from top to bottom.

Our lawsuit, initially filed in November 2018, sought to hold Georgia accountable for an elections system that violates various rights of Georgia voters under federal law, including:

  • The Fundamental Right to Vote protected by the First and Fourteenth Amendment;
  • The Ban on Racial Discrimination in Voting in the Fifteenth Amendment;
  • The Equal Protection Clause of the Fourteenth Amendment; and
  • Section Two of the Voting Rights Act of 1965.

Fair Fight Action has asked the Court to implement a remedy that includes:

  • Eliminating the label the state places on voters, overwhelmingly voters of color, when their registration information does not exactly match across government databases – down to a single hyphen, apostrophe, or space;
  • Ensuring New Americans are not treated as second class citizens and placed in a pending status by requiring the State to use a process that is more accurate and reliable in confirming the citizenship of Georgia voters;
  • Implementing common-sense, pro-voter practices for maintaining an accurate voter registration list and avoiding predictable errors like incorrectly designating non-felons as felons, incorrectly designating living voters as deceased, or combining the registrations of two different voters; and
  • Requiring accurate and adequate training concerning procedures for the surrender of absentee ballots and in-person voting.

This lawsuit, while focused on transforming the unacceptable, unlawful, and unconstitutional elections system in Georgia, is one that Fair Fight Action believes will further pave the way for free and fair elections nationwide. When our right to vote is imperiled in any state, all Americans are threatened.

CASE STATUS

The Fair Fight Action v. Raffensperger trial began on April 11, 2022, and lasted until June 23, 2022 (including a recess in trial proceedings between May 12 and June 13) in the United States District Court for the Northern District of Georgia. The bench trial, a trial before a judge and not a jury, was the first voting rights case to reach a full trial on the merits in this Court for more than a decade.

As Judge Jones noted, the case “resulted in wins and losses for all parties over the course of the litigation and culminated in what is believed to have been the longest voting rights bench trial in the history of the Northern District of Georgia.” Indeed, Plaintiffs presented the longest voting rights trial on record in the Eleventh Circuit, including the District Courts of Alabama, Florida, and Georgia.

Plaintiffs presented the following claims during the trial:

  • The Georgia Secretary of State’s failure to provide adequate training to counties on the correct procedures for in-person absentee ballot cancellations violates the fundamental right to vote guaranteed by the First and Fourteenth Amendments and the Fourteenth Amendment Equal Protection Clause;
  • The Georgia Secretary of State’s failure to maintain accurate voter rolls violates the fundamental right to vote guaranteed by the First and Fourteenth Amendments; and
  • The Georgia Secretary of State’s Exact Match Policy violates the fundamental right to vote guaranteed by the First and Fourteenth Amendments, the Fourteenth Amendment Equal Protection Clause, the Fifteenth Amendment’s ban on racial discrimination, as well as Section 2 of the Voting Rights Act.

During Plaintiffs’ case and rebuttal, 51 witnesses testified, including representatives from the Plaintiff churches and organizations, two dozen voters, would-be voters, and poll watchers, personnel from the Secretary of State’s Office, State Election Board members, legal experts, and other government officials.

After trial, Plaintiffs filed comprehensive findings of Fact and Conclusions of Law on July 1, 2022. Plaintiffs are awaiting the Court’s decision.

In a November 2021 Order, the Court ruled that Plaintiffs could present post-2018 evidence during trial. As a result of the Court’s Order, more than 150 Georgians from across the state voluntarily gave sworn deposition testimony on the barriers they faced accessing the ballot box. Those voters were joined by more than 3,000 voters and would-be voters who have shared their voting experience via written declarations. And more than two-dozen voters, would-be voters, and poll workers also provided testimony, which is now part of the official court record of the proceedings. As the Court stated, “It is no small undertaking to sit for a deposition, to travel to a federal courthouse, or to swear an oath and testify in public before a federal court. The participation of these witnesses merits recognition.” We agree.

COURT’S DECISION

On September 30, 2022, the Court issued its 288-page Opinion and Memorandum of Decision. While the Court did not issue the ruling we hoped for, we are proud to have advanced this fight on behalf of Georgia voters, exposed the state’s discriminatory and burdensome voting practices, and achieved numerous pro- voter developments along the way. The case built an unprecedented and lasting record evidencing the vote-suppressing effects of the state’s election practices and amplifying the stories of Georgians across the state who have faced undue burdens exercising their freedom to vote. This case, put simply, gave those voters a voice.

Although the Court ruled in favor of Brad Raffensperger, Georgia’s Secretary of State, and the State Election Board, the significance and impact of this historic case is not diminished by the Court’s disappointing decision. In this moment of frustration, we must remember that taking cases to federal courts is only one tool to fight against voter suppression.

We are proud of what Fair Fight Action, our co-plaintiffs, and Georgians have achieved over the last four years. This trial was a testament to the resilience and determination of Georgia voters — and this trial resulted in a number of pro- voter wins, such as:

  • The reinstatement of 22,000+ voters who had been removed from the voting rolls as a direct result of Plaintiffs’ motion for preliminary injunction related to the 2019 Georgia Voter Purge;
  • An end to Secretary of State Raffensperger’s practice of keeping eligible Georgians off the active voter list if their application does not exactly match Department of Driver Services records, character-for-character;
  • Improvements to the process of canceling an absentee ballot to vote in person;
  • Execution of an audit using the S.A.V.E. program to identify thousands of Georgians wrongly excluded from the active voter list based on incorrect citizenship information, and a pledge from Defendants to the Court that they would use S.A.V.E. regularly in the near future;
  • Creation of persuasive precedent for future Section 2 lawsuits by obtaining a strong, favorable ruling on our Voting Rights Act claim at summary judgment;
  • A finding from the Court that the Defendants’ felon matching process “creates a severe burden on voters” that “forces individual voters erroneously caught by the Secretary’s matching criteria to navigate administrative obstacles that are distinctly more burdensome than the obstacles that the Supreme Court and Eleventh Circuit have examined;”
  • Recognition from the Court that “Plaintiffs presented evidence at trial showing that Georgia’s history of past discrimination is not simply resigned to the annals of history, but still exists today” and that certain of “Governor Kemp’s campaign speech is evidence of racial appeals in campaigns under Section 2 of the” Voting Rights Act;
  • Concession by the Defendants to errors in the Secretary of State’s training materials concerning absentee ballot cancellations, and that there was no reason for continuing to .lag voters, overwhelmingly voters of color, as “Missing Identification Required”; and
  • Replacement of voting machines.

Plaintiffs will consider all available options to improve access to the ballot box for Georgia voters, both inside and outside the courtroom.

At this moment, we are grateful for the opportunity to provide a platform for voters to share their stories. This decision does not undermine the tireless work that Fair Fight Action and our allies continue to undertake to support Georgia voters and mitigate the obstacles they face to make their voices heard at the ballot box. Fair Fight Action will continue to support Georgians as they navigate the voting process and the hurdles placed in their way.

The fight continues.

Press Releases

Media Coverage

Georgia voting rights trial to begin after years of heated elections

One of the most prominent voting rights cases in years is going to trial Monday, testing allegations that Georgia’s election policies illegally obstructed voters from casting their ballots.

The lawsuit challenging Georgia’s entire elections system, explained

More than two months after voting rights groups filed the suit, Georgia elections officials are calling for it to be dismissed.

Georgia Gov. Brian Kemp Ordered to Answer Questions About Election Lawsuit

A federal judge has ordered Georgia Gov. Brian Kemp to answer questions about his statements on minority voter registration and his oversight of election investigations.

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