stacey abrams
Stacey Abrams, the Democratic candidate for governor of Georgia. Credit: The Circus/YouTube

On the day the election results were certified, Stacey Abrams acknowledged that Brian Kemp would be the next governor of Georgia, but she refused to concede.

Pundits and hyper-partisans will hear my words as a rejection of the normal order. You see…I’m supposed to say nice things and accept my fate. They will complain that I should not use this moment to re-cap what was done wrong or to demand a remedy. As a leader, I should be stoic in my outrage and silent in my rebuke. But stoicism is a luxury and silence is a weapon for those who would quiet the voices of the people. I will not concede because the erosion of our democracy is not right…

Today I announce the launch of Fair Fight Georgia, an operation that will pursue accountability in Georgia’s elections and integrity in the process of maintaining our voting rolls. In the coming days, we will be filing a major federal law suit against the state of Georgia for the gross mismanagement of this election and to protect future elections from unconstitutional actions. We will channel the work of the last few weeks into a strong legal demand for reforms of our election systems in Georgia.

On Tuesday, Fair Fight Georgia announced that they had followed through on that promise.

A federal lawsuit backed by former Democratic candidate for governor Stacey Abrams will attempt to overhaul the state’s elections, alleging “gross mismanagement” after Georgians suffered long linesuncounted ballots and purged registrations during this month’s vote.

The lawsuit, filed Tuesday by a new group called Fair Fight Action, asks a judge to intervene to protect voting rights.

Specifically, the lawsuit argues that the “gross mismanagement” of the election deprived some citizens, particularly low-income people and people of color, of their right to vote in violation of their constitutional rights.

The lawsuit asks a federal judge to declare that Georgia’s current elections process violates the U.S. Constitution and federal law. It asks the judge to order the state to stop using the “exact match” and “use it or lose it” policies and to stop using electronic voting machines with no auditable paper trail. It also includes an extensive list of other changes it says the judge should order.

The goal, Lawrence-Hardy said, is to make sure problems are fixed by the 2020 election.

Fixing these problems before the 2020 election is one of the reasons why Richard Hasen wrote that this lawsuit is incredibly smart.

The lawsuit also has the benefit of coming before the 2020 election season gets underway. When lawsuits are brought during elections, it puts special pressure on the courts because court orders can alter election outcomes. A Supreme Court ruling also prevents courts from making some changes in voting rules in the period before the election because of a supposed danger of voter “confusion.” A lawsuit now allows the courts to examine the claims without them having any direct immediate effect on election outcomes. And even if the claims are unsuccessful, the continued focus on Georgia’s problems can help put the pressure on election officials to fix the worst of what is wrong in the state.

That is precisely why I described this move by Abrams as a selfless act. She took her own race off the table and set out to fix things for the next election. In other words, she “kept her eyes on the prize” of the issue that transcends her own political fortunes.

Here’s the other reason Hasen calls this lawsuit smart:

Rather than how a typical voting lawsuit works with a singular focus on a problematic aspect of Georgia’s electoral process—like overexuberant voter purges or its shoddy voting machinery—the lawsuit makes an argument that the cumulative effect of Georgia’s system is to deny voters, especially voters of color, the opportunity to easily cast a ballot which will be fairly and accurately counted…

The suit alleges these problems together violate the Voting Rights Act, the Help America Vote Act, and the due process and equal protection clauses of the 14th Amendment.

I’m going to get way ahead of myself and consider what will happen when this lawsuit reaches the Supreme Court. As Ari Berman has documented, Chief Justice John Roberts has waged a decades-long crusade against the Voting Rights Act. His opportunity to gut significant portions of it came with the case, Shelby County vs. Holder in 2013. But it is important to note what he wrote in the majority opinion of that case.

The Court held that Section 4(b) exceeded Congress’s power to enforce the Fourteenth and Fifteenth Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and “equal sovereignty of the states” because the disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day” and thus is not responsive to current needs. The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. It noted that since the coverage formula was last modified in 1975, the country “has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions”. The Court declared that the Fifteenth Amendment “commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”

Emphasis mine.

Facing documentation of very real voter suppression in Georgia today (as was affirmed by courts several times in the days immediately after the election), we will learn whether Roberts meant what he wrote about a remedy that “speaks to current conditions” and ensures a better future, or if that was just talk to justify what amounts to a gutting of the Fifteenth Amendment. The ramifications of that choice could determine whether or not our democracy survives.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.