How Can We Know How Bad the Georgia Elections Law Is?

Epistemological consequences of partisan polarization

I assume, as a point of departure, that partisan entities do most things for partisan reasons. Democrats do things they think will help Democrats win power; Republicans do things they think will help Republicans win power. That doesn’t mean that everything they do is therefore bad or suspect. Peace and prosperity generally benefit the party that delivered those goods, which is a powerful incentive for whoever is in power to deliver them. That’s kind of the basic theory behind representative democracy: that it yokes the self-interest of political leaders as directly as possible to the promotion of the public good.

So I assume that the election law recently passed in Georgia was intended to benefit Republicans electorally, but that isn’t enough to tell me whether the law is good or bad in any kind of neutral way. After all, some changes might improve ballot access and also benefit one party disproportionately; others might improve the integrity of elections without limiting ballot access. How might I tell where the balance lies — and if the balance is negative, how negative?

I found it quite difficult to come to any solid conclusion, as it turns out, even though I started from the proposition that the right to vote is fundamental, and that therefore anything that makes it more difficult to vote is presumptively bad. It was easy for me to say, “this is not a bill I would have written,” but was much harder for me to say just how bad the bill actually is. (I’m relying on this article for a detailed description of the law, which I learned about from this tweet thread by Will Saletan, but I also read a number of criticisms and defenses of the law from different quarters).

Most of the explicit new restrictions are applied to absentee voting. Ballots can no longer be sent out automatically, but only upon request; these requests need to be made later, and therefore ballots will be mailed later; the number of drop boxes for absentee ballots will be limited; and absentee ballots will require a form of I.D. to be validated rather than just a signature. If you want to make ballot access as easy as possible, then with the exception of the last item these are all clearly bad provisions, and I make that qualification only because currently absentee ballots are validated by signature matching, which can result in ballots being thrown out because of bad handwriting or a failure to sign properly, and it’s not obvious to me that requiring an I.D. will actually increase the number of invalidated ballots. But regardless, if these restrictions are the primary way the bill aims to tilt the electorate in a partisan direction, then it’s a particularly inept effort since, prior to 2020, absentee ballots tended to skew Republican, and after the pandemic they might reasonably be expected to do so again.

Other provisions in the law are more of a mixed bag, with some positive stuff to point to — most notably, that the law expands early in-person voting and adds precincts and/or staff in response to long lines — along with some significantly worrisome provisions. The main items in the latter category are administrative changes: putting an appointee of the legislature in charge of the board of elections rather than the Secretary of State, and allowing the legislature to take over poorly-performing counties. The last is a huge red flag from my perspective, but the former is less clear given that the SoS is also a partisan elected official. Republican Brad Raffensperger was the hero of the 2020 election for standing up to Donald Trump’s attempts at intimidation, but his predecessor Brian Kemp was the villain of the 2018 election when he oversaw the election that made him governor rather than Stacey Abrams. (I don’t know how much it matters, but Raffensperger supports the new law.)

So what’s my bottom line? The bottom line is: it’s impossible to know how much to fear the law independent of the level of trust in the motivations of the lawmakers. Yet the law itself inevitably becomes a tool in undermining that very trust.

I completely understand, mind you, why critics presume that the law is aimed at suppressing Black voters’ access to the polls; that’s an entirely rational thing for a Republican government of Georgia to want to do, and the history of that part of the country cannot inspire confidence. That’s not enough to conclude that it would achieve those ends, though, regardless of the actual intent, and there quite a bit of evidence that it might not. Nate Cohn in The New York Times has an extensive rundown on the relationship — or lack thereof — between ease of voting and turnout that suggests that voter registration is really what matters above all, and that much of the debate about other kinds of restrictions, whether on access to absentee ballots or on access to physical polls, amounts to mostly partisan hype.

Here’s the thing, though: partisan hype may be a crucial reason why these kinds of restrictions wind up not mattering. Cohn’s analysis concludes that when voting gets easier, that doesn’t boost turnout materially, and that when it gets harder, that doesn't reduce turnout materially either. But one reason why that is the case is that both parties are actively engaged in getting their voters to the polls, and the people involved in running those efforts are extremely knowledgable about what doing so requires. Moreover, both parties have consistently used stories about disenfranchisement as partisan motivators: Republicans vote in part to counter largely-fictional voter fraud, just as Democrats vote in part to prove that they will not be disenfranchised (as they presume Republicans want them to be). So if either side stopped believing that their opponents were trying to cheat to keep them from winning, that might be enough to turn an election.

That creates a kind of Catch-22, inasmuch as both parties benefit as victors when elections are viewed as legitimate, but both of them benefit in the run-up to an election from perceptions that elections are crooked (and that the other party is the one breaking the rules). Independent of whether they have equally legitimate reasons for concern, both parties have every reason to keep the hype level high, and that process has a corrosive effect on perceptions of election integrity. For that very reason, this decline in perceptions of integrity cannot readily be solved with new laws.

It’s notable in that regard that many of the provisions of the law are clearly aimed at bolstering public perceptions of integrity. Some of these are clearly skewed in a partisan direction; voter I.D. for absentee ballots, for example, are a response to so-far unsubstantiated fears of widespread fraud. But other provisions are not so obviously partisan. There are provisions to rein in the kind of untrained poll-watchers who sometimes disrupted counting after the 2020 elections (my anecdotal recollection is that most news stories I saw about this involved Trump voters), and provisions that allow (and incentivize) processing early ballots sooner to expedite counting on election night. There are provisions that allow the Attorney General to set up a hotline for complaints about election interference and intimidation and numerous provisions aimed at expanding transparency on the part of election officials.

One can imagine a world in which these kinds of reforms reassured the public as a whole that elections were now more safe from interference, but that’s not the world we live in. In our world, it’s easy to imagine untrained poll-watchers being excluded from future polling and counting places, and this being cited as evidence of blatant partisan interference and fraud, regardless of the fact that the exclusion was mandated by a Republican-authored law. It’s easy to imagine a hotline for complaints lighting up every election and the AG immediately coming under fire for not taking them seriously enough — or the opposite if apparently spurious complaints were taken seriously. Even if only one party engaged in these kinds of behaviors, that alone would be reason enough for the other party not to trust their behavior when it came to tackling election law, regardless of what the provisions of the law actually said, and that distrust would inevitably fuel another round of the cycle.

I wish I knew a way to stop that process. Whatever merits the Georgia elections law might have, though, that pretty clearly isn’t one of them.