The Morning Dispatch: Understanding Georgia's New Elections Law
Plus: The Supreme Court considers a case over NCAA amateurism.
|The Dispatch Staff||Apr 2||129||564|
Happy Friday! Wishing a blessed Good Friday and happy Easter to all celebrating this weekend.
Quick Hits: Today’s Top Stories
Preliminary data from the Centers for Disease Control and Prevention show that fully-vaccinated people do not carry the virus that causes COVID-19, and therefore cannot transmit it. “Authorized mRNA COVID-19 vaccines are effective for preventing SARS-CoV-2 infection in real-world conditions,” the report concludes.
Pfizer and BioNTech on Thursday released updated results from their COVID-19 vaccine’s Phase 3 study, showing that, after six months, it remained 100 percent effective at preventing severe disease and 91.3 percent effective against symptomatic disease. Researchers are still determining how long protection from the vaccines will last and whether booster shots will be necessary in the future.
Prominent Hong Kong pro-democracy media figure Jimmy Lai was convicted on Thursday—along with six other activists—of unlawful assembly. The group is set to receive their sentences at a later date, but could face several years in prison.
Contrary to many people’s expectations, preliminary CDC data showed that the number of suicides in the United States declined 5.6 percent from 2019 to 2020. It was the third consecutive year of decline.
The United States confirmed 79,855 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 6.4 percent of the 1,248,262 tests reported coming back positive. An additional 1,101 deaths were attributed to the virus on Thursday, bringing the pandemic’s American death toll to 553,120. According to the CDC, 33,748 Americans are currently hospitalized with COVID-19, and 3,358,112 COVID-19 vaccine doses were administered yesterday. 99,565,311 Americans have now received at least one dose.
Georgia on Everyone’s Mind
The elections process in Georgia has been the source of much partisan bickering in recent years, with politicians on both sides of the political aisle claiming foul play when certain races didn’t go their way.
In 2018, Democratic gubernatorial candidate Stacey Abrams refused to concede to now-Gov. Brian Kemp—despite losing by more than 50,000 votes—because she claimed Kemp, as secretary of state, had purged hundreds of thousands from the voter rolls. Former President Trump lost the Peach State last year by just under 12,000 votes, but he never admitted it, claiming instead that tens of thousands of undocumented, dead, and/or out-of-state voters illegally cast ballots for Joe Biden.
It should therefore come as no surprise that when Kemp signed Senate Bill 202 (SB 202) last week, the omnibus elections legislation immediately became a partisan lightning rod. Within minutes, Abrams released a statement claiming the legislation “suppresses voters, criminalizes compassion & seizes election authority from local + state officials.” The following day, President Biden issued a statement decrying the law as “un-American” and “Jim Crow in the 21st Century.”
The accusation from Biden is a serious one. From the late 19th to the mid-20th century, states across the South passed Jim Crow laws to codify segregation and disenfranchise black voters. At a constitutional convention in 1877, lawmakers in Georgia implemented a cumulative poll tax, requiring would-be voters pay a fee before casting a ballot. In 1907, Georgia Gov. Hoke Smith signed a bill amending the state constitution to create a literacy test for voting—but anyone descended from a Confederate or Union soldier was exempt. A year later, Georgia’s Democratic Party joined other Southern states in establishing a “white primary” that explicitly prohibited black voters from participating. Jim Crow laws were real, and a dark stain on American history.
But attempts by prominent Democrats—including the president—to tie SB 202 to the Jim Crow era are incredibly disingenuous. For starters, the bill actually expands voting access for most Georgians, mandating precincts hold at least 17 days of early voting—including two Saturdays, with Sundays optional—leading up to the election. Voting locations during this period must be open for at least eight hours, and can operate between 7:00 a.m. and 7:00 p.m. Several states (including Biden’s home state of Delaware, which will not implement it until 2022) do not currently allow any in-person early voting, and plenty, like New Jersey, offer far fewer than 17 days.
Despite Biden saying the bill implements absentee voting restrictions that “effectively deny” the franchise to “countless” voters, SB 202 leaves in place no-excuse absentee voting with a few tweaks. It tightens the window to apply for an absentee ballot to “just” 67 days, and mandates applications—which can now be completed online—be received by election officials at least 11 days before an election to ensure a ballot can be mailed and returned by Election Day. The bill requires Georgia’s secretary of state to make a blank absentee ballot application available online, but prohibits government agencies from mailing one to voters unsolicited—and requires third-party groups doing so to include a variety of disclaimers.
Rather than signature matching—which is time-intensive for election officials—voters will verify their identity in absentee ballot applications by including the identification number on their driver’s license or voter identification card, which is free. If a Georgian has neither, he or she can, pursuant to Georgia Code Section 21-2-417, include a photocopy or digital picture of a “current utility bill, bank statement, government check, paycheck, or other government document” that includes his or her name and address.* When mailing back their ballots, voters must print their driver’s license number (or the last four digits of their social security number) on an inner envelope. (An August 2016 Gallup survey found photo ID requirements for voting were overwhelmingly popular: 80 percent of voters supported them, including 77 percent of nonwhite voters.) SB 202 also codifies ballot drop boxes into law; Georgia added them for the first time in 2020 as a pandemic measure, and the law now stipulates that there be one for every 100,000 registered voters or advance voting locations in a county, whichever is smaller.
Among other things (it’s a 95-page bill!), SB 202 allows election workers to begin processing absentee ballots two weeks before an election to avoid reporting delays, and requires them to announce the total number of ballots cast—in-person, absentee, early, and provisional—by 10:00 p.m. on election night so voters know how many outstanding votes remain to be counted. It also restructures the State Election Board, demoting the secretary of state from chair to a non-voting member.
One minor provision that’s received outsized attention is a prohibition on outside groups or people distributing money, gifts, food, or drinks to voters within 150 feet of a polling place or 25 feet of voters standing in line to vote. Polling places, however, can make self-service water receptacles available to voters waiting in line.
At some level, Democrats’ knee-jerk opposition to GOP-led election reforms makes sense after Donald Trump and his allies spent months campaigning to actually disenfranchise millions of voters across the country, often advancing far-fetched conspiracies as part of their efforts. In many ways, SB 202 was borne of Republican lawmakers in Georgia facing immense pressure from their voters to “do something” about the election fraud the former president insisted was rampant. And early in the drafting process, some proposals floating around in the state legislature were highly questionable. These included eliminating no-excuse absentee voting entirely and prohibiting early voting on Sundays (which critics decried as targeting “souls to the polls” drives at black churches). But even though those suggestions didn’t make it into the final package, some Democrats continue to pretend that they did.
Those provisions—says Gabriel Sterling, the Republican election official who came to prominence for speaking out against GOP election disinformation back in December—“were phantoms that the leadership in both the Senate and the House told their guys, ‘Hey, introduce whatever you need to to cover yourself with your people.’ Now, I think that’s a terrible idea. But one thing I don’t know if I could express to your readers enough ... is in the Republican base, the level of anger, and fear, and sorrow, and despair.”
“I can’t put into words the level that these elected representatives are dealing with,” he continued. “And to a degree, we have a representative democracy for a reason: You respond to the fears and concerns of your voters.” Somewhere around 65 percent of Republican voters still don’t believe Joe Biden was “legitimately elected” last November.
Unfortunately, Democrats also appear to be engaging in election disinformation for their own political gain. Abrams’ Fair Fight voting rights group secured the JimCrow2.com domain on March 10, more than two weeks before Kemp signed SB 202 into law. Just yesterday, White House Press Secretary Jen Psaki doubled down on Biden’s misleading claims about the bill, which the Washington Post fact checker had already deemed worthy of “Four Pinocchios.”
Sterling—who has been at war with his own party for months over this stuff—sounded exasperated on the phone yesterday. “Look, [Democrats] have found a wonderful fundraising and turnout model based on one particular thing,” he said. “Voter suppression, voter suppression, racist voter suppression. And it works! … It worked in Georgia in 2020, [and] it’s part of the rationale also behind H.R. 1.”
“This is not a bill I think is the best bill in the whole world,” Sterling added, noting there was plenty he would have written differently—particularly the State Election Board section, which he deemed “pure politics and payback” targeting his boss, Secretary of State Brad Raffensperger. “All I think is it’s not ‘Jim Crow 2.0.’”
A day after dozens of black business executives called on corporate America to vocally oppose the legislation, several major companies based in Georgia—which had until then remained above the fray—did exactly that. “The Coca-Cola Company does not support this legislation, as it makes it harder for people to vote, not easier,” CEO James Quincey said. Ed Bastian, chief executive at Delta Airlines, wrote that he “need[s] to make it crystal clear that the final bill is unacceptable and does not match Delta’s values.” Some progressive activists have gone further, calling for various economic boycotts of the state—and Biden himself joined them in an interview with ESPN earlier this week.
“I would strongly support them doing that,” Biden said when asked by Sage Steele about Major League Baseball considering moving its annual All-Star game out of Atlanta this summer. “This is Jim Crow on steroids, what they’re doing in Georgia.”
Sterling wasn’t pleased. “I think it’s morally reprehensible and disgusting that he’s perpetuating economic blackmail over a lie,” he told The Dispatch. “It’s a lie. This is no different than the lie of Trump saying there was voter fraud in this state. And the people who are going to be most hurt by [a boycott] are the workers in all of these places that are going to be impacted.”
Abrams seemed to acknowledge that latter point in a USA Today op-ed published Wednesday, agreeing with Biden’s overall assessment of SB 202, but pumping the brakes on further action. “I have no doubt that voters of color, particularly Black voters, are willing to endure the hardships of boycotts. But I don’t think that’s necessary—yet,” she wrote. “Leaving us behind won’t save us. So I ask you to bring your business to Georgia and, if you’re already here, stay and fight. Stay and vote.”
It may make financial sense for businesses to take this stance—their key advertising demographic skews younger and more liberal—but that doesn’t mean Republicans aren’t going to point out the hypocrisy. “Dear @Delta: You are business partners with the Communist Party of #China,” Sen. Marco Rubio tweeted yesterday. “When can we expect your letter saying that their ongoing genocide in #Xinjiang is ‘unacceptable and does not match Delta’s values’???”
March Madness Hits the High Court
As the Houston Cougars and Baylor Bears prepare for their Final Four matchup on Saturday in Indianapolis, legal-minded March Madness fans—including our very own David French and Sarah Isgur—are still reeling from college basketball’s trip to the Supreme Court earlier this week. On Wednesday, the nine justices heard oral arguments for National Collegiate Athletic Association v. Alston, a case that will determine whether the NCAA’s rules restricting fair market compensation for student athletes violate federal antitrust law.
For years, the NCAA has limited the direct compensation that student athletes can receive while they compete in college sports, nominally to preserve the demarcation between “amateur” college athletics and professional leagues.
But a federal district court in California recently said such an arrangement is no longer viable, arguing that the NCAA has failed to provide a procompetitive justification for such restrictive eligibility rules. Under the district court’s decision—upheld by the U.S. Court of Appeals for the 9th Circuit—the NCAA cannot put limits on education-related compensation, nor can it prohibit schools from awarding Division 1 athletes $5,980 per year. But the court also ruled that the NCAA can continue to restrict compensation that is not directly linked to education-related benefits, meaning the decision was only a partial win for student athletes.
The NCAA’s attorney, Seth Waxman, hit the ground running on Wednesday with an opening statement explaining the NCAA’s long-standing amateurism principle. “For more than a hundred years, the distinct character of college sports has been that it’s played by students who are amateurs, which is to say that they are not paid for their play,” Waxman said. “Maintaining that distinct character is both procompetitive, because it differentiates the NCAA’s product from professional sports, and can be achieved only through agreement.”
According to Waxman, “antitrust courts lack the authority to redefine the central differentiating feature of the NCAA’s procompetitive product,” and the Ninth Circuit’s $5,980 per year rule is nothing more than pay for play.
The justices spent quite a bit of time pressing Waxman on the NCAA basketball and football programs, which bring in billions of dollars for coaches and schools while giving little to college recruits in return. “[Student athletes] face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shockingly low graduation rates,” Justice Samuel Alito said. “Only a tiny percentage ever go on to make any money in professional sports.”
Another concern for the justices is that the NCAA could be considered a monopsony: A joint venture of schools which operate to fix prices within a particular labor market. It’s not just that the NCAA is a joint venture in the market of college sports, it’s that the NCAA is the only venture in the market, meaning student athletes have nowhere else to go if they believe they are being unfairly compensated. Per Justice Brett Kavanaugh: “It does seem … that schools are conspiring with competitors, agreeing with competitors, I’ll say that, to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing.”
On the flip side, the justices pointed out both the arbitrariness of the $5,980-per-year rule, and the possibility that compensating student athletes may lead better funded schools to cherry-pick the best athletes. Also of concern is whether judges should be meddling with college athletics in the first place. “I worry a lot about judges getting into the business of deciding how amateur sports should be run,” said Justice Stephen Breyer.
According to Sarah and David, the Supreme Court is likely to uphold the 9th Circuit’s decision in holding that the NCAA’s eligibility and compensation rules are overly restrictive. “When you go in with a losing case—they lost at the trial, they lost at the circuit court—they’re gonna lose at the Supreme Court, they know that,” Sarah explains on the latest episode of Advisory Opinions. “You’re just trying to limit the blood loss.” The case won’t be decided for several months, probably sometime this summer.
Worth Your Time
Among the many public health experts and politicians who have been categorically and perilously wrong about COVID-19 in the past year, Alex Berenson might stand out the most. Branding himself as a “former New York Times reporter,” Berenson gained credibility with right-wing audiences early on in the pandemic by downplaying the threat of the virus and railing against efforts to mitigate its spread. Now a regular guest on a variety of Fox News programs, Berenson’s contrarianism eventually evolved to encompass masks, and—most recently—vaccines. In The Atlantic yesterday, Derek Thompson delivered a thorough and full-scale debunking of the “Secretariat of being wrong.” “Usually, I would refrain from lavishing attention on someone so blatantly incorrect,” he writes. “But with vaccine resistance hovering around 30 percent of the general population, and with 40 percent of Republicans saying they won’t get a shot, debunking vaccine skepticism, particularly in right-wing circles, is a matter of life and death.”
Willingness to believe faulty COVID-19 information is by no means just a Republican phenomenon, of course. In her latest Substack post, Zeynep Tufekci explores how political polarization has led many Democrats to dabble in conspiratorial thinking of their own. “Lots of people are angry, very angry with Florida, and willing to quickly believe the worst. In reality, it’s … middling. Compared with the rest of the country, Florida’s record is neither stellar nor terrible,” she writes. “The polarized climate means that Andrew Cuomo—who is implicated in a large number of terrible policies—can sell a book about his pandemic leadership for $4 million dollars (even before the pandemic was over!) while people are readily willing to believe that Florida—which, from what I can tell, actually has one of the better reporting systems—must be lying and covering up its terrible numbers.”
Presented Without Comment
Toeing the Company Line
On the site today: Another look at the flawed national debate around Georgia’s new elections law from Walter Olson.
As the Chinese foreign ministry fumes over a U.S. ambassador’s recent visit to Taipei, Thomas Joscelyn’s latest Vital Interests (🔒) offers an important refresher on the U.S.’s tricky Taiwan policy as China claims the island nation as its own. “While the U.S. has ‘acknowledged’ the PRC’s claim of sovereignty over Taiwan (the ROC), it hasn’t ‘recognized’ the legitimacy of Beijing’s argument. Nor has the U.S. recognized Taiwan as an independent nation,” Joscelyn writes. “Instead, American policy has hinged on the idea that the cross-strait dispute can be settled ‘peacefully.’ That’s looking increasingly unlikely, which makes Taiwan a crucial flash point in the rivalry between China and the U.S.”
Brookings Institute fellow and author Shadi Hamid joined Jonah on Thursday’s The Remnant to reflect on the role of religion in the American political system. As the culture war rages on, Hamid argues, Christians increasingly find themselves in a defensive crouch. “If you were a white Christian conservative, you stopped thinking about how to advance an affirmative agenda and you started thinking more about how to protect whatever you had left,” he says. “And that helps explain how Donald Trump became an unlikely vessel for the vast majority of white Evangelicals.”
On top of covering the NCAA’s legal woes in the latest Advisory Opinions, David and Sarah also find time to discuss qualified immunity, nondisclosure agreements, and legal action against former President Donald Trump by two U.S. Capitol Police officers.
Let Us Know
Whether you agree with their concerns or not, American democracy depends on voters of all political parties accepting the vote—and our elections—as legitimate. If you were in a state legislature, what reforms would you advocate to ensure that is the case?
Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), and Steve Hayes (@stephenfhayes).
Correction, April 2, 2021: SB 202 requires only that Georgia voters include a photocopy in their absentee ballot application if they are using a non-ID card like a bank statement or utility bill. If they have a driver’s license or voter identification card, they can apply for an absentee ballot with just the identification number on the card.