Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
A decade ago, Georgia tried to implement a similar “exact-match” voter registration system but was thwarted by a key section of the Voting Rights Act. That section has been removed, leaving voters of color unprotected.
Less than a month before Election Day, civil rights organizations are suing the state of Georgia for its controversial “exact match” system. The program suspends a person’s voting status if the information they enter on their voter registration form doesn’t precisely match state driver’s license and social security records.
This means that if a person lists his first name as “Tom” on his voter registration form, but his driver’s license record shows his first name as “Thomas” then his file is placed in “pending” status until it is corrected. The same goes for someone who might omit a hyphen in their last name. As of July 4, there were just over 51,000 such people whose voting status is currently in pending mode as a result of this “exact match” system, with 80 percent of those being African Americans, Latinos, and Asian Americans. The bulk of those on that list are African Americans. What’s disturbing about this is that a section of the Voting Rights Act that was notoriously eliminated by the U.S. Supreme Court in 2013 could have prevented this potential tragedy.
If the voters on that pending list don’t correct their information in time, then the state can cancel their registrations—something that Georgia Secretary of State, Brian Kemp, did for nearly 670,000 voter registration forms in 2017 alone, according to the Associated Press. This is a devastating prospect given Georgia has the opportunity in November to elect its first African-American governor, Stacey Abrams, the Democratic Party’s candidate. Unfortunately, Abrams is running against Kemp, the Republican candidate, and the person who happens to be presiding over the state’s election system. The race is close enough that those 50,000-plus pending voter registrations could make a difference in the outcome, particularly if even a fraction of people of color are unable to vote.
This is not the first time Kemp attempted to tinker with voter registrations in ways that disproportionately affected people of color. Kemp introduced an “exact-match” voter registration program in 2008, when Georgia’s election administration was under federal supervision due to the now-defunct Section 5 clause of the Voting Rights Act, that was applied to states and counties with racist election histories.
Before the U.S. Supreme Court invalidated it in 2013, Section 5 required states like Georgia to submit election changes like this to the U.S. Department of Justice for review and “preclearance” before implementation. Kemp’s 2008 program failed that review because, as the Justice Department’s rejection letter read, the “flawed system frequently subjects a disproportionate number of African-American, Asian, and/or Hispanic voters to additional and, more importantly, erroneous burdens on the right to register to vote.”
Kemp’s program later passed federal muster in 2010 after he modified the program with a few new safeguards—though “it is not apparent that the Secretary of State ever followed the safeguards,” according to the lawsuit against Kemp’s current “exact match” program. Civil rights organizations sued Kemp in 2016 over this program as they discovered that his administration rejected nearly 35,000 voter registrations between July 2013 and July 2015—76.3 percent of which were for black, Asian, and Latino voters. Kemp agreed to suspend the program as part of the settlement of that suit.
"In 2016, we helped stop Georgia's ‘exact match’ protocol that kicked thousands of voters off the voter rolls—some of them simply because they have uncommon Asian or Latino names that others commonly misspell,” said Phi Nguyễn, litigation director at Asian Americans Advancing Justice-Atlanta in a press statement.
Despite that suspension, Georgia lawmakers decided to pass a law in 2017 that re-installed yet another “exact-match” program, only slightly different than the one Kemp had just suspended. Civil rights organizations warned Kemp in July of 2018 that the program was still a violation of voting rights protections, such as the National Voter Registration Act. But the state moved forward with it anyway, despite the thousands of people caught up in “pending” status for trivial reasons.
In fact, a federal Inspector General investigation found back in 2009 that verifying voter registrations through social security-matching schemes is a bad bet given that “the high no-match response rate and inconsistent verification responses could hinder the States’ ability to determine whether applicants should be allowed to vote.”
One of the biggest flaws of Georgia’s current “exact-match” program is that it relies on the work of county election officials who input voter registration data into the match system. This means that errors in the system could happen not just by the person filling out the form, but also by the election officials themselves. There are few safeguards against that kind of human fallibility. Several other states, including Virginia and Wisconsin, have since scrapped or scaled back similar “exact-match” programs after realizing the disenfranchising consequences.
Reads the legal complaint filed last week over Georgia’s current controversial “exact-match” program:
Neither Secretary Kemp, nor the Georgia Legislature, appear concerned about the disproportionate impact this “exact match” protocol is having on the ability of African-American, Latino and Asian-American applicants to complete the voter registration process. While other states have abandoned or reformed similar registration verification processes to limit the burden on their citizens, Defendant Kemp has failed to take any steps to ameliorate HB 268’s disproportionate burden on minority applicants.
It should be noted that while much attention has been placed on the high level of African-American voters caught in the crosshairs of this program—they constitute 70 percent of the currently pending voter registrations despite having only 31.6 percent of the state’s voting-age population—new citizens caught in this system might fare even worse.
According to the lawsuit, a person can be flagged not only for non-matching information, but also for potentially not being a citizen. Recently naturalized voter registrants could get pinged if they weren’t fully citizens at the time that they received their driver’s license, even if their naturalization certificates or other documented proof of citizenship is included with their voter registration form.
“For naturalized citizens, this failure is particularly onerous because a citizenship status issue will not always be resolvable at the polls. Therefore, eligible naturalized citizens that submit valid and accurate voter registrations, including proof of citizenship, are at risk of having their right to vote denied on election day,” reads the lawsuit.
For all people in pending status, election officials sends out notification letters to inform them about this. But those letters are sent only in English in all but one of Georgia’s 159 counties. While people on the pending list still have a chance to vote on election day if they show photo ID, that is not the case for people flagged as being non-citizens. Those people have to visit a deputy registrar to prove their citizenship, but most deputy registrars are not at the polling locations. They are usually at the county’s central elections office, which could be difficult to access if you live in a different city.
It should probably be a conflict of interest that one of the gubernatorial candidates, Kemp, is also in charge of supervising an election system that could potentially disenfranchise thousands of voters (Abrams has requested that Kemp resign from his secretary of state post). It’s convenient that the people most threatened by disenfranchisement under this system are the kind of voters who typically don’t vote Republican—meaning non-white voters. But this is just the latest in a long line of attempts in the former Confederate-Jim Crow state of Georgia to make voting more difficult for people of color, some of which happened under Kemp.
Besides the lawsuit of the “exact-match” program, Kemp is also being sued in two other cases alleging racial gerrymandering that threw partisan advantage to Republicans. The D.C.-based Lawyers Committee for Civil Rights Under Law lists nine different lawsuits it has filed against Georgia over the past 15 years accusing the state of employing policies that violate voter registration laws, dilute minorities’ votes, and that curtail election day and early voting access. The Lawyer’s Committee is also one of the plaintiffs in the current lawsuit against Kemp’s “exact match” program. Advancing Justice-Atlanta, a civil rights organizations that represents Asian Americans, is another plaintiff on this lawsuit after having just sued Kemp in 2017 for shrinking the voter registration deadline for federal runoff elections.
Many of these lawsuits could have been prevented had the U.S. Supreme Court not gotten rid of Section 5 of the Voting Rights Act, but now we know exactly why it was needed .