How Brian Kemp was able to steal Georgia’s gubernatorial election from Stacey Abrams
CONTENT WARNING: Due to the serious and important nature of the topics discussed, this article is very dense. It is rather thorough, contains legal jargon, and is a bit of a mindfuck.
They say people believe what they want to believe. People also don’t believe what they don’t want to believe.
People don’t want to believe voter suppression is real and alive in 2019. Because if it’s real, it means we’re all complicit. (It is real, and we are.) Many people don’t want to believe that Brian Kemp stole Georgia’s 2018 gubernatorial election from Stacey Abrams and the results were another by-product of systemic, institutionalized racism in the U.S. It’s much easier to believe that Abrams lost the governor’s election in Georgia fair and square, simply because the other story is just too big.
Getting this story straight is important, because we are all affected. If I have the right to vote, but other U.S. citizens aren’t able to utilize that right as I am—with just as much ease and convenience—that means my right to vote is conditional and contingent upon something else besides my mere citizenship. That means I’m not really free, and neither are you. If the right to vote has become a privilege or a luxury for some and a burden for others, then the basic tenet on which our country stands—“All men are created equal”—is a flat-out myth and a delusion. It also means that the U.S. is not currently designed to host fair and free elections and hasn’t been for quite some time. It’s possible that it never was.
Georgia’s 2018 gubernatorial race between then-Secretary of State Kemp and Abrams garnered major national attention due to its controversy and neck-and-neck status. It was the closest governor’s election in Georgia since 1966. While it was a trendy story in national news last fall, mainstream media has failed to give this issue proper coverage through a more critical lens after the fact.
While Kemp managed to steal the governor’s election from Abrams, there was a long sequence of events leading up to the election that was comprised of Kemp and his office’s patterns of voter suppression tactics and assaults on voter protections of minorities in Georgia. The governor’s election wasn’t an isolated incident—it was simply Kemp’s playbook. And he could not have done it alone.
It’s time to look at this without any barricades or hype, get on the same page, and refresh that page. This article is not a virtue signal. Its purpose is to cultivate awareness, because without true awareness, there can be no change. Let’s break this down with the facts.
A key event to remember when considering this issue is the 2013 Supreme Court decision in Shelby County v. Holder, which removed federal oversight of state elections by editing the Voting Rights Act of 1965. In this ruling, the Court deemed Section 4(b)—which determined which jurisdictions received federal oversight—unconstitutional, stating it was based on an “old formula.” As a consequence, Section 5, which requires jurisdictions with a history of systemic and institutionalized discrimination to submit any proposed changes in state voting procedures to the U.S. Department of Justice, was effectively rendered inoperable—at least until Congress installs a “new formula.” Until then, minority rights are no longer protected by the VRA. In layman’s terms, the Court basically ruled that racism in America doesn’t exist anymore. (Why, because we had a black president at the time?)
Since this decision, there has been open assault on voter protection and the First, Fourteenth, and Fifteenth Amendments within states across the U.S. The following states were “covered jurisdictions” in their entirety by Section 5 of the VRA: Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Additionally, certain counties in other states, including Arizona, Hawaii, Idaho, and North Carolina, were covered, along with some townships in Michigan. Without the protection of federal oversight in state elections, many legislative maneuvers, activities, and procedures made in voter suppression efforts are now legal under state law and questionable under federal law.
All of this is to say that I am not picking on Georgia or Brian Kemp. It’s simply that I am an Atlanta native and this is my home—I’m invested in Georgia and its counties’ stories. Georgia is not alone in this; it is nationwide. The timeline showcased here begins in 2008 and Georgia’s former Secretary of State Brian Kemp is the primary example, but this is just one story and it didn’t start (or end) here. However, the U.S. Commission on Civil Rights has noted that no state other than Georgia has gone through such extreme measures to make it difficult for people to vote, particularly people of color.
For starters, the fact that Kemp was able to act as Georgia’s Secretary of State—which is in charge of overseeing state elections—while actively running for governor in that state is a glaring conflict of interest. He wasn’t the only Secretary of State last year to do so. Both Kansas and Ohio’s Secretary of State remained in office while seeking higher office, therefore making them the referees of the very races they were running in. All three are members of the Republican party.
Modern day voter suppression is multifaceted. These are five ways voter suppression has been implemented in Georgia, which we begin discussing in this article and continue to examine in the articles that follow:
- Discriminatory voter registration methods including exact match and illegal voter purges;
- The use of faulty voting machines;
- Investigations and intimidation of organizers registering and mobilizing voters of color;
- Voting poll closures and redistricting;
- Failure to count absentee and provisional ballots.
Before we start, I’ll share that working on this article at times left my mind feeling twisted, exhausted, and brought me to tears. Initially, I felt bewildered and powerless. It was definitely an overload. If you’re reading this and feel confused along the way, know that you’re supposed to feel that way and it’s not a reflection of you or me, but of the system. We’re supposed to feel overloaded to the point of checking out because this story is intentionally confusing to follow, as Kemp and Georgia Republicans have methodically employed PR and legal tactics to make sure no one can keep up with it.
Because of this, I’ve included a lot of details and dates that will help put all the pieces together. Every detail is connected to the patterns exhibited by Kemp and the G.O.P. I wanted to take months of research, meetings, and information from countless articles and streamline it into one article in a way no one in mainstream media would tell it to you. I encourage readers to stick with it and read through this section to the very end. This is intended to be a spark that will pave the way for empowerment. Stay with us.
Now, let’s start making our way through that list, shall we?
Kemp’s exact match, or “strict matching,” policy was first introduced in 2008 and underwent multiple legal battles since, at the time, states were required to have new voting procedures approved by the higher courts. Nonetheless, Kemp persisted in making sure this policy was enacted. In 2010, Kemp modified the proposed exact match program as the newly-elected Secretary of State to include new “safeguards”—which ultimately enabled the policy to pass federal review pre-clearance. According to a later lawsuit, it was not apparent to anyone that Kemp ever actually followed these safeguards.
The exact match program requires applicants to enter information from the voter registration form into Georgia’s statewide voter registration system, “Enet.” The information is then matched with records on file at the Georgia Department of Driver Services (DDS) or Social Security Administration (SSA). If the information doesn’t match, the applicant is then placed in “pending status.” No-matches disproportionately affect people of color and target names that contain hyphens, accents, etc. (Basically, “non-white” names.)
- The transposition of a single letter or number (in other words, a typo)
- A deletion or addition of a hyphen or apostrophe
- Accidental entry of an extra character or space (like this)
- The use of a familiar name like “Tom” instead of “Thomas” or “Bill” instead of “William”
- Pending status can also occur if DDS or SSA flag the applicant as a “potential non-citizen”
Once an applicant is placed in pending status, the applicant has 26 months to rectify the issue. If the deadline is not met or the application is cancelled, the applicant must start the voter registration process over. The version of the policy leading up to the governor’s election was re-installed in House Bill 268, passed on July 1, 2017, right before the Secretary of State’s office conducted one of the largest voter purges in history. HB 268 arrived on the heels of a lawsuit filed against Kemp in 2016 that challenged extremely similar exact match legislation administered by Kemp. He settled that lawsuit, stating he would not implement exact match at all.
However, HB 268 brought exact match back with just a couple tweaks, including modifying the original timeframe for applicants to resolve the no-match result from the original 40 days to 26 months. In effect, HB 268 was transparent in its efforts to undermine reforms achieved by the preceding lawsuit’s settlement.
The exact match law was in direct violation of Section 8 of the National Voter Registration Act (NVRA), since the policy prevented voter registration applicants who submitted timely, facially accurate, and complete registration forms from being registered as active voters on the Georgia voter registration list, thus effectively disenfranchising them. Civil rights organizations served Kemp with a notice of the violation on July 18, 2018, and the lawsuit was filed on Oct. 11, 2018. The suit garnered no response from Kemp that he had implemented or had any plans of implementing remedial action.
According to the lawsuit, “Because of the errors and limitations inherent in the ‘exact match’ protocol, the 26-month cancellation requirement for ‘pending’ applicants will undoubtedly result in the cancellation of pending applications that are facially complete and accurate before the 2020 Presidential election cycle.”
Civil rights organizations also discovered that registrars often placed applicants in pending status and sent notices demanding proof of citizenship even when the applicants included their naturalization certificate with their initial registration. (Remember certain members of the G.O.P. demanding to see President Obama’s birth certificate after he was elected?)
Not only does exact match present an extreme burden on voters (particularly voters of color), but the system by which it is implemented is fucking faulty. The 2018 lawsuit argued, “The matching protocol itself is not a model of strict accuracy and is prone to erroneous, inconsistent results that are often not the fault of the applicant.” There were known issues of outdated DDS citizenship data in Georgia’s system as well as proof of erroneous results. What’s more, the SSA’s Help America Vote Verification (HAVV) database is widely known for routinely producing false no-match and inconsistent results. In effect, Georgia’s restrictive voter registration policies hold applicants to a standard of accuracy that government systems and records don’t even meet themselves.
While exact match is unique to Georgia, Kemp spokesperson Candice Broce once issued a statement that claimed the Georgia law “mirrored a Florida law upheld in the 11th circuit,” according to NBC News on October 12, 2018. She also declared the then-pending lawsuit to be a “publicity stunt that the media falls for year after year” and “a complete waste of our time and taxpayer dollars.” (It appears that for Kemp’s office, taxpayer time and dollars are better spent in faulty investigations against those mobilizing voters of color). A key difference between Florida’s policy and Georgia’s is that Florida places the burden of quality review on the county registrars, not the voter.
Federal Judge Eleanor L. Ross ruled on Nov. 2, 2018, against the Georgia election law, calling it a “severe burden for voters.” Her injunction required Georgia to immediately start clearing flagged voters who show their proof of citizenship at the polls and that Kemp issue a press release statement explaining how flagged voters could be cleared, providing a phone number for them to call with questions. As it stands today with the April 2019 passage of HB 316, exact match remains in effect.
The implementation of exact match and the procedure one has to follow to resolve a “no-match” creates an experience that is, at the very least, discouraging and a pain-in-the-ass process no one wants to deal with. The uniquely high levels of inconvenience and frustration that surround Georgia’s voting registration process are enough to keep people away from the polls, especially those in less affluent counties that are not equipped with resources such as public libraries, public spaces with internet, or public transportation.
To counter arguments that sound something like, “What’s the big deal? Why don’t people just make sure their information is correct?” which I mostly hear from white men: let’s not pretend that most people don’t find it a nuisance or a hassle to get an emissions test done on their car and renew their car’s registration once a year. I was able to renew my car’s registration at a kiosk in my local grocery this past year. That’s how easy registering to vote should be. And unlike voting, driving a car isn’t a right. It’s a privilege. Voting is a right that is (or should be) undeniable as stated in the Constitution, yet Georgia’s systems are especially difficult compared to others in the U.S.
Why is it so hard in Georgia for so many people to have access to their right to vote? Don’t doubt for a second that it isn’t deliberate. This is not just “how it is.” I urge others to not fall into complacency under the terms of “this is just the way things are.” This is, by definition, inequality by design.
Preliminary data produced by Georgia’s Secretary of State office on July 4, 2018, indicated that approximately 51,111 applicants were in “pending status” for reasons related to exact match protocol. (Please note they released this information on a national holiday, when it would go largely unnoticed by the media.) Of those, 80.15% were African American, Latino, and Asian American applicants and 9.83% were applicants who identified as white. About 54,000 votes were suppressed by the exact match policy in Georgia’s gubernatorial election in 2018. Seventy percent of those voters were people of color.
About 54,000 votes were suppressed by the exact match policy in Georgia’s gubernatorial election in 2018. Seventy percent of those voters were people of color.
While exact match was spun by Kemp and his constituents as an effort to protect Georgia elections from voter fraud, it did the exact opposite in implementing a well-known faulty and erroneous system that has failed Georgia voters for over 10 years. During this time, Kemp and the state have demonstrated remarkable commitment—weathering lawsuit after lawsuit, rejected legislation after rejected legislation—to impede the fundamental right of eligible Georgians to vote, without any justifiable or rational state interest.
ILLEGAL VOTER PURGES AKA “USE IT OR LOSE IT”
In Georgia, citizens may lose their right to vote if they have not voted in past election cycles under a 20-year-old law known as “use it or lose it.” According to NPR, at least nine states have a voter purge policy similar to Georgia. However, since 1997, Georgia’s is the only one that purges voters due to inactivity. These numbers are staggering, so hang on.
By 2014, over 800,000 Georgians were placed on an inactive list and awaited being removed from voter rolls permanently due to Georgia’s purging programs. These programs were in direct violation of the NVRA, which explicitly prohibits states from purging voters who have failed to vote in past elections. Regardless, Georgia law at the time placed voters on the “inactive” list who missed voting the previous three years. The 2015 purge wasn’t the first time Kemp oversaw voter purges as Secretary of State—purges had become regular procedure.
After Kemp was sued by the NAACP and Common Cause in November 2015, the law was tweaked, requiring the Secretary of State’s office to mail notifications to voters placed on the inactive list but the new legislation failed to directly address the violation of the NVRA.
In July 2017, more than half a million people lost their right to vote because they did not vote in previous election cycles and failed to respond to notices sent to them in the mail. This purge was greenlighted by Kemp during his time of Secretary of State after he announced he would be running for governor. According to election-law experts as reported by the Atlanta Journal-Constitution, this purge may have represented the “largest mass disenfranchisement in U.S. history.” A 2018 Supreme Court ruling in an Ohio case upheld these types of voter purges in a 5-4 vote that split conservative and liberal justices.
Kemp later claimed he made voting easier by setting up online registration. A couple things about that: one, we saw that the system “Enet” was faulty and unreliable, making it rather difficult for applicants to successfully register to vote. Second, there are many counties in Georgia that are underfunded, undercounted, and underrepresented, particularly in rural areas. Many of these counties don’t have the same resources that other (richer) counties do, such as public libraries with free internet access.
According to the AJC, Georgia purged 1.5 million voters from the rolls from 2012 to 2016, with most of these voters removed due to voting inactivity. Just like exact match, these purges targeted those who had already been disenfranchised by Georgia legislation and policy. Voter inactivity is not limited to those who can easily vote but simply choose not to. It is extended to those who live in areas that consistently tell them they don’t matter through the state of their schools, the conditions of their roads, and the general lack of attention they receive from state government.
Take Stewart County in Southwest Georgia, for example. Stewart County’s public library and other public facilities that had internet access were closed due to black mold with no funding to resolve the issue, leaving the courthouse as the only open space with public internet access. Also at the courthouse is one of Georgia’s detention centers. Think: would you want to go to the courthouse to use the internet and register to vote where immigrant families and children have been detained under the executive power of President Trump? This is, again, just one example. Plenty of Georgia’s 159 counties experience something of this nature.
Underneath the voting purges we find disenfranchisement through lack of accessibility to this fundamental right. Again, voting is not a privilege, but a right. Whether you choose to vote or not is your right, as protected by the Constitution. You have the right to choose whether you want to speak out about something or not speak out about something.
Going back to the driving comparison, a person in the U.S. doesn’t lose their privilege to drive due to inactivity. I could move to New York City, use the subway, not drive a car for five years, and I would still legally be allowed to drive a car at any time as long as I had my license. Before anyone jumps up: investigations have shown that there is insufficient evidence of voter fraud to justify the “use it or lose it” or exact match policies. More is revealed on that in the next article. The point is, as long as any American citizen is living in the U.S. and breathing, they should be able to have easy, proper access to their right to vote.
According to the Abrams playbook released by Fair Fight Action on Sept. 9, 2019, “There were 80,000 voters in 2018 who we know supported Abrams but did not cast a ballot. Their ballots were rejected, they left long lines, or they simply decided not to vote.” Abrams lost the election by a slim 54,000 votes—but the white flag’s not waving.
ABRAMS VS. THE STATE ELECTION BOARD
Even though Abrams’ loss was within the margin that qualifies for a runoff, she chose to broaden her scope to consider the entire system. Within 10 days of her loss, Abrams delivered her concession speech, formed Fair Fight Action (which is now national and active in 20 states), and began the work for the current lawsuit, which entered discovery in July 2019. While Georgia’s 2018 gubernatorial election was a catalyst for much of the evidence and discovery for the upcoming trial—which has the anticipated trial date of March 23, 2020—it is not an appeal of the election results. Exact match, voter purges, and other components of Georgia’s voter registration systems are the concerns of the trial.
Her organization Fair Fight Action is joined by Care in Action, Ebenezer Baptist Church of Atlanta, Baconton Missionary Baptist Church, Virginia-Highland Church, and the Sixth Episopal District as the plaintiffs in the case. Secretary of State Brad Raffensberger, Rebecca Sullivan, David Worley, Seth Harp, and the State Election Board are the defendants.
The factual allegations are as follows, as laid out in the official complaint filed on Feb. 19, 2019: the defendants are responsible for Georgia’s election system and disenfranchise voters through the “use it or lose it” statute, the “exact match” policy, using election technology that is vulnerable to hacking and manipulation, overseeing an election system dependent on unreliable voting machines, promoting moving and closing precincts and polling places, maintaining inaccurate voter registration rolls, failing to provide adequate resources to polling places, and inadequately overseeing and training election officials on provisional and absentee ballots.
The trial’s discovery also concerns HB 316, which was signed into law by Gov. Kemp in April 2019, shortly after this lawsuit was filed. Just as HB 268 undermined reforms that were achieved by civil rights organizations’ lawsuits, HB 316 ultimately does the same, offering only a hurried and weak legislative response to the issues that arose in the 2018 gubernatorial election. Data shows that HB 316 does not sufficiently address the long-standing issues posed by Georgia’s election systems; and most alarmingly, the few protections outlined in the bill don’t even go into effect until 2024.
This includes the issue of the unreliability and insecurity of voting machines, in which the bill claims the state will purchase new machines “as soon as possible.” Which is all good and fine, except 700 wrapped and unused voting machines were discovered in a Fulton County warehouse the day after the election, as reported by WSB-TV. Add that to the slew of drama that has engulfed countless Georgia voters and this magazine’s entire news section. Put simply, HB 316 appears to be yet another layer of Kemp and the G.O.P.’s patterns: just more weak legislation, barely under the scope of federal law, designed to cover their asses as they scramble to keep doing what they’re doing.
The plaintiffs in the case provide substantial claims against the defendants for violations of the following: the fundamental right to vote, the ban on racial discrimination in voting, equal protection, procedural due process, section 2 of the Voting Rights Act of 1965, and the Help Americans Vote Act (HAVA) of 2002. These violations are the impetus for the plaintiffs’ prayer of relief, which calls for the Court to declare Georgia’s entire current elections process unconstitutional.
In other words: this case is a big fucking deal. Abrams may have lost Georgia’s gubernatorial election, but she is now fighting to break the systemic racism that has bedeviled our institutions for decades upon decades upon decades. If the plaintiffs are successful, this could mean a revolution in America and its voting systems. Maybe then we will know what it’s like to truly host a fair and free election.