Eleventh Circuit Rebuffs Challenge to Georgia's Voter-List Distribution Practices

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit rejected a challenge to Georgia's process of distributing voter lists to precincts, reversing a district court order that the state adjust the timing of the distribution in order to cut down on lengthy wait-times at polling places.

The ruling is a win for the state and a blow to the Coalition for Good Governance, which lodged (and is lodging) multi-prong efforts to challenge and reform Georgia's voting practices.

The case shows how state voting practices that we often don't even think about can frustrate voters and even distort elections, and still evade judicial scrutiny.

The case, Curling v. Raffensperger, grows out of Georgia's practice of reporting eligible voters to precincts before election day. Georgia compiles and distributes lists of eligible voters electronically before election day. But the electronic system sometimes fails, so the state offers a paper backup. But the state prints the paper lists before the close of early voting and before the close of absentee voting in the state. This means that the paper lists aren't up to date. This, in turn, requires poll workers to take time to verify the eligibility of more voters, and to force those voters to use provisional ballots.

All this leads to longer wait-times on election day, causing frustrated voters to leave, according to the plaintiffs. Moreover, provisional ballots might not get counted.

The district court held that this system violated the right to vote and ordered the state to print its backup lists only after the close of early voting--so that the backup print lists exactly matched the electronic data on election day.

The Eleventh Circuit reversed. The court applied the Anderson-Burdick balancing test, which says that a voting practice violates the right to vote when the burdens on the right to vote outweigh the state's interests in the voting practice. But the court said that the plaintiffs couldn't connect the burden on the right to vote--the long lines and wait-times at polling places--to the state's reporting practices. In other words: there may have been a harm, even a significant one, but it wasn't caused by the state's reporting practices. Without a harm caused by the challenged practice, the court said that it didn't even have to weigh the state's interests in its reporting practices.