When the Dust Has Settled: Fallout from the 2020 Presidential Election and S.b. 202 Placed Georgia's Election Code in the Nation's Crosshairs

• Publication year: 2022

When the Dust Has Settled: Fallout from the 2020 Presidential Election and S.B. 202 placed Georgia's Election Code in the Nation's Crosshairs

William L. Wheeler

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When the Dust Has Settled: Fallout from the 2020 Presidential Election and S.B. 202 placed Georgia's Election Code in the Nation's Crosshairs

William L. Wheeler^*

"Yknow, Nietzsche says: 'Out of chaos comes order'." — Howard Johnson¹

I. Introduction

Long regarded as a "safe" red territory, Georgia was thrust into the center of a national debate on federal and state elections when President Joe Biden flipped the state blue in the 2020 presidential election.² In the wee hours of the morning on November 4, 2020, as the final votes were tallied and the electorate results became clear, the Peach State became the ignition point for a fiery, and often hyper-partisan, national debate over federal elections and how states conduct such contests. Due in part

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to the contrived rhetoric espoused by acolytes of the "Make America Great Again" (MAGA) party, many Georgia voters, as well as disgruntled citizens, pundits, and politicians across the nation could not accept that a majority of Georgians had cast their ballots for a Democratic presidential candidate for the first time since 1992.³

The reactions to the results of the election were swift and costly; litigation was filed within hours of the polls closing, and many respectable attorneys have seen their legal careers thrust into jeopardy as they unsuccessfully attempted to litigate the results of the 2020 presidential election.⁴ Although the results of the election were certified nearly two years ago, the probes and litigation continues; Governor Brian Kemp was recently subpoenaed to testify before a grand jury on the matter of election interreference, and former Trump attorney Rudy Giuliani is currently the center of a criminal investigation in Fulton County.⁵

Most of the fallout from the election litigation has settled, but Georgia remains under scrutiny for measures taken by the Georgia General Assembly in response to the 2020 Presidential Election.⁶ Why are

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Georgia elections still a national talking point and how did the Election Integrity Act impact the way states conduct presidential elections across the country?

II. The Build Up

A. A New Kind of "Battleground State"

Much of the noise surrounding the 2020 presidential election stems from former-president Donald Trump's efforts to have the results of the election reversed. Trump lost the election, as decided by voters across the United States, yet he subsequently enlisted a proverbial army of attorneys in an attempt to overturn the will of the people through aggressive, and often baseless, litigation.⁷ This all-out assault on the election results has been multi-faceted, rife with claims of foreign interference, rigged voting machines, Russian hackers, paid votes, and ludicrous "deep state" conspiracies. The former president conducted a nationwide symphony of unacceptance and discontent, reaching a crescendo on January 6, 2021, as a deadly mob stormed the United States Capitol in a dire effort to physically stop the election certification process with terror, force, and violence.⁸ Much of the rage from the disgraced

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executive and his followers has been directed at Georgia, due to heavy expectations and analyst projections that predicted an easy win for Trump in the Peach State.⁹

Another point of contention that has kept Georgia in the center of the discussion regarding election law is the litany of highly publicized orders and legislative acts executed by Governor Brian Kemp and the Georgia General Assembly, both prior to and in response to the 2020 presidential election.¹⁰ The snowball started rolling in 2018 when then-Secretary of State Brian Kemp oversaw his own gubernatorial election.¹¹ This decision may have been technically appropriate under both the Georgia and United States constitutions, but the decision to refuse to step down from his position as secretary of state while campaigning for governor was widely panned as less than scrupulous by Kemp's opponents, and this quickly became a national news story.¹²

B. The Lead to Legislative Action

The Governor Kemp signed Senate Bill 202 (SB 202), titled the "Election Integrity Act", on March 25, 2021, much to the chagrin of those across the aisle from the Republican Governor and the GOP-controlled state legislature.¹³ This oft-vilified bill did not come about in a vacuum, nor did it arise on a lark; SB 202 was a direct response to the tsunami of litigation that crashed into courthouses all across the state in the wake

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of the 2020 presidential election. An understanding of why SB 202 was drafted and passed can only come after looking into the election lawsuits that were filed on both the state and federal levels challenging electoral procedures. SB 202 has been maligned by partisan critics, but the core reason for such legislation was to prevent the unacceptable and unprecedented behaviors in the aftermath of the election from reoccurring, and to clarify the legal authority surrounding federal elections and how they are conducted by states.

The procedure and law surrounding states and federal elections is more complex than one might think, as evidenced by the way many of Trump's attorneys, most of whom are very intelligent, successful, and competent, bumbled and stumbled through this area of law.¹⁴ However, the Supreme Court's decision in a key case arising from the 2020 presidential election makes it very clear that, under the United States Constitution, individual states are permitted to conduct elections in accord with their state constitutions and legislative bodies.¹⁵

1. Texas v. Pennsylvania

In the immediate wake of the 2020 presidential election, politicians across the country moved swiftly to try and challenge President Joe Biden's historic victory.¹⁶ One hundred and twenty-six members of Congress, all Republican, signed onto amicus curiae briefs in favor of the plaintiff in Texas v. Pennsylvania.¹⁷ This lawsuit was filed directly with

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the Supreme Court¹⁸ by Texas State Attorney General Ken Paxton to officially contest the results of the 2020 Presidential Election in Pennsylvania, Wisconsin, Michigan, and Georgia.¹⁹ In this suit, Texas alleged that Georgia and the other defendant states had violated the United States Constitution in the weeks and months leading up to the 2020 presidential election by making alterations to their respective state-level electoral procedures via non-legislative measures.²⁰

At the core of this lawsuit, Plaintiff Texas alleged that the numerous changes Georgia made in advance of the presidential election constituted multiple violations of the U.S. Constitution and the independent state legislature theory.²¹ The COVID-19 pandemic was raging in the United States during the 2020 election cycle, and Georgia, like many other states, had enacted a variety of measures to make voting easier and safer for constituents that were at risk of serious illness or death if exposed to the novel coronavirus.²² These changes included increased access to postal voting ("Vote-by-mail") as well as early voting and expanded access to absentee voting. These measures were enacted by the executive branch, under Governor Kemp and Georgia Secretary of State Brad

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Raffensperger.²³ At the time, there was a national and state emergency which created a dire need for expeditious action, so many state executives ordered changes and amendments to accelerate and increase the efficacy of such measures, instead of relying on the often groaningly slow process of the state legislative bodies. Plaintiff Texas' position was that since these changes were not enacted by duly-elected state legislators, the new measures and regulations put into place by the state executives were unconstitutional, thus, the electors from the four defendant states should not be counted.²⁴ Instead, Texas prayed for the court to extend the deadline of when the states were required to certify their electors, in order to give Georgia and the other Defendant states time to "identify and remedy" any voting fraud.²⁵

Texas alleged that Georgia and the other Defendant states committed violations of three specific constitutional provisions.²⁶ According to the Plaintiff,²⁷ the changes the Defendant states made to their respective election laws violated the Electors Clause,²⁸ the Due Process Clause,²⁹ and the Equal Protection Clause.³⁰

a. The Electors Clause

The Electors Clause mandates that states appoint electors and gives state legislatures the authority to choose how this process should be executed. The exact language of the clause reads that "[e]ach state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors."³¹ Plaintiff Texas interpreted the use of "shall" to mean that state legislatures have the sole authority to set the rules for how a state may govern elections, and any actions taken by a state executive branch are unconstitutional.³²

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b. Due Process Clause

The Due Process Clause, found in the Fourteenth Amendment, creates a legal obligation for all levels of state government to operate within the law and to provide fair procedures for all Americans.³³ Essentially, this provision requires that all local, state, and federal government actions are within the law. Plaintiff Texas alleged that state-level executives in Georgia and the other Defendant states illegally circumvented state legislation to modify their respective electoral procedures in order to benefit Joe Biden and change the outcome of the election.³⁴

c. Equal Protection Clause

The Equal Protection Clause, also found in the Fourteenth Amendment guarantees that all Americans must be treated equally. The language reads "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...