Voting Rights Watch: GA's inconsistent application of Voting Rights Act clouds elections

After reports came in across Georgia last week that early voters were being forced to wait six, eight and even 12 hours in line, many -- including Democrats, newspapers and even some Republican strategists -- called on Secretary of State Karen Handel to follow Florida's lead and extend voting hours to meet the demand.

But Handel, a Republican, issued a prickly rebuke in the pages of the Atlanta Journal-Constitution, which said the biggest reason she couldn't expand early voting is because of Voting Rights Act restrictions:

As the newspaper is very aware, even if the authority existed --- which it does not --- Georgia is covered under Section 5 of the Voting Rights Act, which means that any changes in election procedures must be "precleared" by the U.S. Department of Justice before they can be implemented.

Usually, this newspaper is a stickler for following the law and procedures. I wonder what their position would be if another political party made a similar request? I'll leave that to the imagination of the readers.

The explanation wasn't very convincing, given that both North Carolina, which has 40 counties covered by the Voting Rights Act, and Florida, where four counties are under the VRA, found ways to extend voting hours the same week.

But Handel's deep concern about the Voting Rights Act was also surprising given that earlier the same month, Handel herself had been accused by the Department of Justice of enacting voting changes that violated the Act.

On October 8, Christopher Coates -- Chief of the Voting Rights Section at the Department of Justice -- wrote a letter to Georgia's Attorney General [pdf] Thurbert Baker. The letter questioned Handel's massive use of Social Security Administration checks on over 2 million voters. The letter in part notes that these changes were made without DOJ pre-clearance:

The scope of these changes [to election law in Georgia] appear to be substantial, and these changes also appear to be different from the benchmark practices previously in force or effect in Georgia under Section 5 of the Voting Rights Act. Indeed, information procided by the SSA in the last few days further indicates substantial chances to the voter registration process. According to SSA records, these verification checks against SSA records alone over the last fiscal year have extended to nearly two million records from Georgia, far more than any other State in the country.

Coates also noted in his letter to Georgia officials that Secretary of State Handel's registration checks may be legally unenforceable given that they hadn't been cleared by DOJ:

Changes that affect voting are legally unenforceable unless and until preclearance under Section 5 has been obtained.

The day after the DOJ sent its letter, the ACLU and other groups filed a lawsuit on behalf of Jose Morales, a Cherokee County citizen who had registered to vote in November 2007 but notified this month that his registration had been flagged. Morales went to an election office with ID to prove his citizenship and thought the issue was cleared up, only to receive another letter stating his citizenship was still contested.

On October 27, a three-judge federal panel found that Georgia had indeed violated the Voting Rights Act by not gaining pre-clearance for the massive new voter registration check program. As the Associated Press reported:

The 27-page ruling ordered Georgia election officials to make "diligent and immediate" efforts to notify voters flagged as ineligible because of the checks that they can still cast paper ballots on Nov. 4. The paper ballots can later be challenged by state officials if a voter is believed to be ineligible.

The state also is not allowed to remove names from lists unless voters say in writing that they are ineligible.

Handel's proposed solution to the federal judge's ruling may only put her at greater odds with the Voting Rights Act. As Facing South reported on Friday, Handel said that 4,770 registered voters would still be flagged at the polls.

More surprisingly, Handel also put forward a novel approach to addressing the "problem" of non-citizens voting in Georgia -- for other citizens to contest the qualifications of their fellow voters:

Any voter can challenge another's qualifications to cast a ballot by notifying a precinct poll manager, Handel said. That voter then would be given a challenge ballot and would have to go before the election board.

Handel also made clear that these "challenge ballots" will not be counted on election day, forcing those who are challenged to prove their citizenship later. In a state with one of the fastest-growing Latino populations in the country, Handel seemed to admit the approach could open the door for a form of vigilante, racially-targeted voter intimidation at the polls, but dismissed the threat:

If large numbers of challenges are made on Election Day, Handel said, her office will investigate whether they are part of an orchestrated effort to influence the election's outcome.

But, she said, "I'm not anticipating any kind of huge issue there."

Whether it's a "huge issue" or not, such racially-influenced challenges -- and even the threat of such challenges -- could constitute a form of intimidation that would be in violation of the Voting Rights Act, which in Section 11 (b) clearly states:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote.