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Black Attorneys General Lead Voting-Rights Fight

Election worker Najeh Fisher, right, places a vote-by-mail ballot for the Nov. 3 general election into an official ballot drop box at the Miami-Dade County Elections Department, Wednesday, Oct. 14, 2020, in Doral, Fla. (AP Photo/Lynne Sladky)

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Election worker Najeh Fisher, right, places a vote-by-mail ballot for the Nov. 3 general election into an official ballot drop box at the Miami-Dade County Elections Department, Wednesday, Oct. 14, 2020, in Doral, Fla. (AP Photo/Lynne Sladky)

The release of a compromise voting-rights bill by eight Senate Democrats, coupled with the recent passage of the John Lewis Voting Rights Advancement Act in the House, is a small but promising step in the fight for voting rights. As congressional negotiations play out, we must keep our eyes on the prize and continue to stand up for the right to vote. And as Black attorneys general, we’re continuing to fight these racist, age-old voter-suppression bills whether or not federal legislation succeeds.

According to a July 2021 report from the Brennan Center for Justice, state lawmakers introduced more than 400 bills in more than 49 states with restrictive voting provisions during the 2021 legislative sessions. More dangerously, at least 18 states like Arizona, Arkansas, and Montana have passed and enacted restrictive voting laws that make mail-in voting and early voting more difficult.

Georgia’s recently passed legislation, S.B. 202, is a particularly egregious law because it targets widely used forms of voting among Black Georgians. That is why we recently led an amicus brief with 22 other state attorneys general in support of the U.S. Department of Justice’s lawsuit challenging Georgia’s statute.

We can all agree that states must promote free and fair elections, and that states have flexibility to administer elections in ways that ensure voter confidence. What states cannot do, though, is use a seemingly innocuous explanation—like “election integrity”—as a smokescreen for discrimination. And you don’t need to be a lawyer to see Georgia’s law for what it is—a contrived effort to limit the voices of Black voters.

How do we know? A few ways.

The political context in which Georgia passed this law matters. For the first time in over 20 years, the Peach State elected a Democratic president and two Democratic U.S. senators. And how did the legislature respond?

By enacting legislation that imposes additional barriers—with surgical precision—on Black Georgians’ preferred methods of voting (i.e., absentee and drop-box voting). If the legislature was serious about boosting voters’ confidence in the political system, it could have expanded access and promoted election integrity, as California, Nevada, Vermont, and Utah have all done. 

For example, since 2001, California has offered all voters the option of voting by mail on a permanent basis. Nevada and Vermont require that each active, registered voter receive a mail ballot. Even Utah conducts all-mail elections and did so long before the pandemic—all without risk of fraud.

This all suggests that Georgia’s bill was written to target Black voters. There is a decades-old misbelief that there must always be some “smoking gun” evidence of discriminatory intent. As Black lawyers who have fought discrimination, we know firsthand that real-world racism rarely manifests itself in this fashion. Thankfully, the courts have recognized this too. And under proper scrutiny, it is apparent that the Georgia legislature intended to discard Black votes.

History confirms this. Across the country, we’re seeing Republicans continually assert that “2021 is not 1965.”

We couldn’t agree more.

In fact, as Black attorneys general, we are living proof that this country has made progress since 1965. We would be doing the protestors who marched in Washington and Selma a grave disservice by saying we’ve made no progress. But we do them equal disservice by pretending that every state has accepted the premise of a multi-racial democracy. If that were the case, legislators would stop deceiving the public with one of the oldest racial dog whistles in the book.

Dating back to Reconstruction, “stopping voter fraud” has been repeatedly used as an excuse to enact restrictive voting laws—even though the myth of widespread voter fraud has been repeatedly debunked. But don’t just take our word for it.

For example, we cite in our brief a study from the Heritage Foundation across five states with universal mail-in voting found only 29 cases of fraudulent votes by mail and only 24 cases of duplicative voting or absentee-ballot fraud—out of nearly 50 million votes cast. Similarly, former President Trump’s short-lived commission to investigate voter fraud after the 2016 election abruptly shut down after it was unable to find a shred of evidence of this supposed problem.

We hope the Justice Department—and ultimately Black Georgians—will get their day in court. And more broadly, we hope that courts across the nation will uphold the sacred right to vote.

But today, the fight against contrived efforts to turn back the clock continues. We’ve come too far to turn back now. 

Karl A. Racine is the attorney general for the District of Columbia.

Letitia James is the attorney general for New York.