Jurisprudence

Why Democrats Should Not Call the Georgia Governor’s Race “Stolen”

There are three important reasons to cool this rhetoric, despite Brian Kemp’s odious voter suppression efforts.

Brian Kemp in front of a Kemp/Governor sign.
Republican Gov.-elect Brian Kemp attends the election night event at the Classic Center on Nov. 6, in Athens, Georgia.
Kevin C. Cox/Getty Images

Many Democrats are understandably angry about efforts to suppress the vote in Georgia and elsewhere in the 2018 midterm elections. In the Peach State, there is no question that Gov.-elect Brian Kemp, while secretary of state, made it harder for minority and other voters to register and vote, through a combination of deliberate efforts and gross incompetence. He administered what I consider to be the most egregious partisan action by an election official in the modern era when he falsely accused the Georgia Democratic Party of hacking into the state election system and, a few days before Election Day, posted that false accusation on the website that Georgia voters used to get polling information.

But for three reasons, Democrats should stop with the rhetoric that the race was “stolen,” as Sen. Sherrod Brown, an Ohio Democrat, has said, and they should not follow the lead of Kemp’s Democratic opponent Stacey Abrams, who repeatedly refused to acknowledge Kemp as the “legitimate” winner of the election when questioned Sunday by CNN’s Jake Tapper.

First, rhetoric about stolen elections feeds a growing cycle of mistrust and delegitimization of the election process, an attack pushed by President Donald Trump and other Republicans who have been yelling “voter fraud” every time they are behind in the count. I’ve already set out my fear that Trump could refuse to concede the 2020 presidential election if he is ahead in the count on election night and then ballot counts inevitably shift toward Democrats as the counting continues. A democratic polity depends on losers accepting election results, even if the election was not conducted perfectly. I would hold “stolen” election rhetoric for conduct even more outrageous than Kemp’s decisions, which, while odious, either have not been found to be illegal or that courts allowed to remain in place for this election.

Second, the rhetoric about a stolen election is unproven. Although Hillary Clinton declared that if Abrams “had a fair election she already would have won,” we don’t know that Kemp’s suppression efforts cost Abrams the seat. As Ari Berman recently put it, “We don’t know yet—and might never know—how many people were disenfranchised or dissuaded from voting in the state. But it’s clear that Kemp did everything in his power to put in place restrictive voting policies that would help his candidacy and hurt his opponent, all while overseeing his own election.” Saying Kemp tried to suppress Democratic votes and saying the election was stolen are two different things, and making charges of a stolen election when it cannot be proved undermines Democrats’ complaints about suppressive tactics. If Democrats can’t prove it, some people will think the suppression is no big deal when it really is.

This ties in with the third and final problem I see with “stolen election” rhetoric: It focuses attention on the wrong question: whether there was enough suppression to change election outcomes. As I’ve long argued, the right question is why the state gets to put stumbling blocks in front of voters—such as onerous voter registration requirements and easy voter-purge rules—without offering a good reason for doing so. We know that the “voter fraud” and public-confidence arguments often advanced for suppressive tactics are bogus, and we need to keep saying it whether it is one voter or thousands of voters facing new hurdles.

By focusing on the dignity and respect to be afforded to each voter, we can push to maximize the number of eligible voters who are enfranchised and able to cast a ballot that will count, regardless of election outcomes.

Rather than questioning the election’s legitimacy or making uprovable claims of stolen elections, Democrats should focus their efforts into doing whatever is possible to prevent voter suppression and incompetence in the upcoming 2020 elections. I was very pleased to see that in her speech acknowledging Kemp as the legal winner of the 2018 Georgia gubernatorial election, Abrams announced “the launch of Fair Fight Georgia, an operation that will pursue accountability in Georgia’s elections and integrity in the process of maintaining our voting rolls. In the coming days, we will be filing a major federal lawsuit against the state of Georgia for the gross mismanagement of this election and to protect future elections from unconstitutional actions.”

This is the right way to go. Kemp is out of office. The race for Georgia secretary of state is going to a runoff on Dec. 4, and whether the Democrat or Republican wins, there will be a lot of work to do to start the 2020 elections off on a sound footing. The state needs to entirely revamp its voter registration system, which has proved uniquely susceptible to hacking. The state needs to fix tough and unnecessary voter-purge rules. It must replace bad voting machines and unfair and unclear procedures. The state must put in place fair processes for notifying voters whose mail-in ballots are rejected for nonmatching signatures. Whichever of these remedies the state doesn’t pursue voluntarily should be the subject of lawsuits where possible.

Georgia is not alone. Florida itself, epicenter of the disputed 2000 presidential election, is a recurring nightmare when it comes to how its elections have been run.

President Barack Obama famously told people at his rallies, “Don’t boo. Vote.” There’s a corollary here. Don’t cry “stolen elections.” Keep the pressure on and sue when necessary, so that voter suppression doesn’t affect thousands of voters in 2020, as it did in 2018.