Case Update: Court Sides With Georgia Election Integrity Law in Biden Administration Lawsuit

By 

Erik Zimmerman

|
September 20

6 min read

Election Law

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Last year, the Biden Administration sued the state of Georgia to challenge certain provisions of the state’s election reform law (Senate Bill 202). Some of the provisions at issue include a ban on government entities mailing unsolicited absentee ballot applications, modifications of the identification requirements and timeframes for applying for absentee ballots, regulations of the use of absentee ballot drop boxes, and restrictions on approaching voters with items of value while they wait in line.

The Biden Administration wants to take control of the administration of state and local elections, including in Georgia. The lawsuit asks the court to prevent the challenged parts of the law from being enforced, authorize the appointment of federal election observers for Georgia elections, and require certain types of future changes to Georgia election law to be pre-cleared by the federal government. The lawsuit was consolidated with several other similar lawsuits brought by various liberal entities and individuals.

Last year, the ACLJ, on behalf of more than 647,000 of our supporters and 57 Members of Congress, filed an amicus brief that emphasized the substantial constitutional authority of Georgia, and other states, to protect the integrity of their elections. The brief explained that the Constitution’s Elections Clause (Art. I, § 4, Cl. 1) provides that state legislatures, not the President or federal bureaucrats, have the primary responsibility and authority to regulate the times, places, and manner of holding elections. Our brief cataloged numerous examples of proven voter fraud over the past several years.

Earlier this year, some of the non-governmental plaintiffs filed a motion for a preliminary injunction, asking the court to override Georgia’s restrictions on “line warming” activities with respect to November 2022 voting. These practices include distributing food, drinks, and other gifts to voters who are waiting in line at a polling station. The plaintiffs described their activities as expressive “political activism” that is protected by the First Amendment.

Previous Georgia legislation created buffer zones that extend 150 feet out from polling places, as well as supplemental zones extending 25 feet out from any voter standing in line at a polling place. Organizations were prohibited from setting up tables within buffer zones, so they began sending individuals to approach voters in line to offer them items. In some instances, individuals wearing clothing with political messages – including political candidates themselves – would distribute water and food to voters waiting in line, or a card that could be turned in for food.

Election officials received countless complaints about these activities, including questions concerning whether the groups involved had partisan aims. Officials were concerned that the distribution of items to voters was being used as a pretext for unlawful electioneering within the zones, or was a violation of the ban on offering rewards for voting. Numerous election workers were confused as to what, exactly, should be allowed in terms of electioneering, offering items, etc. within the buffer and supplemental zones.

A State Elections Board member declared that Georgia “had lost control of the precincts.” Eventually, the Georgia Secretary of State’s office issued a statement that “what started as a simple and restrained practice of offering water to voters waiting in the heat to vote has become, in some places, an atmosphere where food and drink and other things of value are being offered to voters who vote, and in some cases, might be offered as an inducement to vote in violation of [the law].”

In light of these issues, the 2021 statute included a provision stating that no person shall offer to give “any money or gifts . . . to an elector . . . [or] establish or set up any tables or booths on any day in which ballots are being cast . . . : (1) Within 150 feet of the outer edge of any building within which a polling place is established; (2) Within any polling place; or (3) Within 25 feet of any voter standing in line to vote at any polling place.” The legislature declared that “[p]rotecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence.”

The district court denied the plaintiffs’ motion for a preliminary injunction. The court concluded that the plaintiffs’ intended line-warming activities constituted expressive conduct protected by the First Amendment given that they intended to convey a message about the importance of voting. The restriction was content-based since “[t]he impetus for the legislation was largely the concern that election officials could not monitor what volunteers were communicating to voters and that line warming activities could constitute or be perceived as improper electioneering, political pressure or intimidation.”

The court noted that, under Supreme Court and Eleventh Circuit precedent, regulations of speech or conduct occurring near polling places are not subject to a high level of scrutiny in light of “the long history of voter intimidation, dating back to the colonial period, and the consensus among all fifty states . . . that some buffer was necessary.” One prior decision noted that a state “need not wait for actual interference or violence or intimidation to erupt near a polling place . . . to act,” as a state may “take precautions to protect and to facilitate voting.”

The court noted that “a state need not wait for damage to its election system to implement corrective measures. Georgia is therefore permitted to take remedial action in the face of activities that could interfere with electors waiting to cast their ballots.” The court noted that the state’s interests in “restoring peace and order around the polls, protecting voters from political pressure and intimidation, and supporting election integrity” were compelling interests served by the statute. The court added that, “[f]or many organizations who conduct line warming activities, the distinction between nonpartisan line relief and partisan engagement in the voting process is a blurry one.”

The court held that the line-warming restrictions were likely constitutional with respect to the buffer zones. Additionally, although the line-warming restrictions within the supplemental zones were problematic because it “could easily extend thousands of feet away from the polling station (and across private property),” this was not the type of “extraordinary” case in which an injunction that changes existing rules when an election is imminent would be proper.

We are hopeful that the court will ultimately rule for Georgia on the merits of the lawsuits, and hold that state legislatures, not federal bureaucrats, have the authority to decide what kind of reasonable election regulations should be enacted and enforced.