In my view, Larry David’s HBO show Curb Your Enthusiasm is one of best television shows of the millennium. Amazingly it spans the millennium, with the first season airing in 2000 (!) and the final season just concluded. Funny, witty, clever, and edgy, the only show I can compare it to its progenitor Seinfeld. Larry co-created Seinfeld with Jerry Seinfeld and a Larry David-based character, George played by Jason Alexander, was Jerry’s main sidekick. Though Seinfeld might be the quintessential 1990s television show, I prefer Curb. Curb is very Los Angeles whereas Seinfeld is very New York (I am a Californian). HBO enabled Curb to go places Seinfeld could not. Additionally, Larry responded to criticisms that Seinfeld was too white by taking it head on. He introduced themes of race — Season 1, Episode 9’s “Affirmative Action” is a prime example. He also introduced major Black characters, particularly when he housed a Black family after Hurricane Katrina. This led to him marrying and later divorcing Loretta Black, played by Vivica Fox. And her cousin Leon Black, played by J.B. Smoove, ended up being one of Larry’s primary sidekicks for the last several seasons.
I watched Curb episodes as soon as they came out. Until this season. Curb typically has a storyline that carries through the entire season and binds the season together. This year’s season long storyline was about Larry visiting Georgia and then getting arrested and tried because he gave a bottle of water to Auntie Rae Black, played by Ella English, when she was in line to vote. The storyline hit a little too close to home because the Lawyers’ Committee sued Georgia when it passed an omnibus voter suppression law in 2021 (SB 202) that, among other things, included the provision featured in Curb.
A conversation with my father-in-law George got me off my Curb rut. We were talking about this season of Curb, and when I told him about the Georgia law, he said he did not realize there was an actual law criminalizing giving water to people in line to vote. He thought Larry had made it up. When he told me this, I resolved to write about the law in Justice Blog. And I can speak more freely now because upon leaving the Lawyers’ Committee, I am no longer counsel in the SB 202 challenge. As part of my research, I needed to watch the last season of Curb. I thoroughly enjoyed it.
Like many of these voter suppression laws, SB 202 comes from a cynical place. Like many Southern states, Georgia was a one-party Democratic state during the Jim Crow era. Lester Maddox, the avowed Georgia segregationist discussed in last week’s post, who was elected Governor in 1966 and Lieutenant Governor in 1970, was a Democrat. As Black voters obtained the right to vote and predominantly voted Democrat, more and more white voters voted Republican. This shift happened over decades. Democratic President Bill Clinton won Georgia in 1992 but lost it in 1996. Roy Barnes won Governor as a Democrat in 1998 but lost it in 2002. By the 2004 election, the transition was complete. Georgia had a Republican Governor and Republicans controlled the State Senate and House. They have maintained control until the present day. No Democrat won statewide for federal office from 1996 to 2020.
When the Republicans took full control of the state in 2005, one of the first things they did was to change the voting laws. In the current era of voter suppression laws, Georgia was the first state to pass a law (HB 244) requiring voters to show a government-issued photo identification at the polls. I was part of the counsel team that successfully challenged that law. A second, somewhat less restrictive law, was passed the next year and survived legal challenge. In the same bill that introduced the photo ID law, Georgia Republicans made voting easier in another way: the introduction of no excuse voting by mail. Why do this? At the time, Black voters were more likely to vote in person and white voters more likely to vote by mail. This was true not just in Georgia. In 2013, the Republican-controlled North Carolina introduced several restrictions related to voting in person but left voting by mail alone. The Fourth Circuit Court of Appeals would find the North Carolina law intentionally discriminatory:
The photo ID requirement here is both too restrictive and not restrictive enough to effectively prevent voter fraud. [Citations] First, the photo ID requirement, which applies only to in-person voting and not to absentee voting, is too narrow to combat fraud. On the one hand, the State has failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina. [Citation] On the other, the General Assembly did have evidence of alleged cases of mail-in absentee voter fraud. [Citation] Notably, the legislature also had evidence that absentee voting was not disproportionately used by African Americans; indeed, whites disproportionately used absentee voting. [Citation] The General Assembly then exempted absentee voting from the photo ID requirement. [Citation]
. . . .
Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation. “In essence,” as in League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 440 (2006), “the State took away [minority voters’] opportunity because [they] were about to exercise it.” As in LULAC, “[t]his bears the mark of intentional discrimination.” Id.
In Georgia, North Carolina and a few other states, the voter registration form includes a line requesting the applicant’s race. This information is extremely helpful in doing election analysis. Legislators in Georgia and North Carolina have used it in deciding where to suppress the vote but people like me, as you will see, use it too.
Republican dominance is at risk in Georgia. Democrat Stacy Abrams came close to winning governor in 2018 as did lower ballot Democrats. In 2020, Joe Biden became the first Democrat Presidential candidate to win in Georgia since 1992, and Raphael Warnock and Jon Ossoff became the first Georgia Democrats to win election to the U.S. Senate since 1990, Why? The main reason is that Georgia has become less white.
The trend is unmistakable. And when you do statistical analyses of the statewide Georgia elections, Democratic candidates typically get 95%+ of the Black vote, 80%-90% of the Latino/Asian vote and 25-30% of the white vote.
Given these trends, Republicans essentially have two choices: (1) get a greater percentage of the vote of people of color and/or (2) make it more difficult for people to vote, and disproportionately so for people of color. I do not know the degree to which Republicans have engaged in (1). I know they have engaged in (2) repeatedly.
You will notice in the table above that in every year the % of voters who turned out that were white is greater than the % of registered voters that were white. In other words, white turnout exceeded that of people of color. It would be disastrous for Republicans in Georgia if people of color turned out at the same rates as white people. They have done much to make sure that does not happen.
This effort went into hyperdrive after the 2020 election where Democrats won statewide. To their credit, Governor Kemp and Secretary of State Raffensperger stood fast against President Trump’s efforts to claim that the 2020 election in Georgia was tainted by fraud.
The 2020 election in Georgia was not stolen.
For nearly three years now, anyone with evidence of fraud has failed to come forward – under oath – and prove anything in a court of law. Our elections in Georgia are secure, accessible, and fair and will continue to be as long as I am governor.
Yet, in 2021, the Governor and Secretary of State worked with the legislature to introduce numerous voting restrictions in SB 202. Some of these restrictions were for absentee voting, including the use of drop boxes for voters to drop off absentee ballots. Why? Black voters started using absentee voting more than white voters. In 2020, 29.4% of Black voters voted by mail (including drop box) compared to 24.0% of white voters.
The restrictions in SB 202 include:
– An identification requirement for voting absentee
– Limiting the placement of drop boxes to early voting locations and making them available only during early voting hours
– Shortening the number of days when an absentee ballot can be requested
– Shortening the number of days that early voting is available for a runoff
– The infamous “line-relief provision” that makes it a misdemeanor for an individual to hand out water or snacks, or provide umbrellas or chairs to people waiting in line to vote
These laws reflect a “death by a thousand cuts” approach to voter suppression: restrictions that individually make affect a small percentage of voters. Not only do they add up in combination but when elections are so close, small changes can be determinative. For example, in 2020, Georgia voters cast more than 4.9 million votes for President and Joe Biden won 11,779 voters, a margin of .23% percentage points.
After SB 202 was signed by Governor Kemp, several legal challenges were filed, including one by the Department of Justice. These “death by a thousand cuts” voter suppression laws are difficult to challenge because judges often disaggregate the provisions (incorrectly in my mind) and examine them one-by-one and, as I said above, the effects of the individual provisions are often small when viewed in isolation.
But the line-relief provision is so bad, it is vulnerable, at least in part. To begin with, it is outrageous. Outrageous enough for Larry David to make it the theme for his final season and for my father-in-law to think it was a manufactured plot device instead of an actual law.
Then taking a step back, you ask why would a line be so long that somebody would need water or an umbrella? According to data compiled by MIT’s Election Data + Science Lab’s Election Performance Index, Georgia had the longest wait time for in-person voters in 2020. Wait times are not uniform either – they tend to be greatest at polling sites serving higher percentages of people of color. But instead of addressing the issue of eliminating long waits to vote, Georgia officials would rather have people suffer and criminalize attempts from helpers.
One silver lining in all of this. The federal district court has preliminarily blocked enforcement of the line-relief provision outside of the 150-foot buffer zone where nonvoters are not supposed to approach voters. The court found the ban violated the First Amendment because it is a content-based based restriction that the state could not justify. The State unsuccessfully argued that the law was not content-based because it law was intended to address “undermining the efficiency of elections, creating a perception of voter intimidation, and forcing voters to accept unwanted interactions while waiting to vote.” Yes, the State of Georgia thinks that the act of handing out a bottle of water to a thirsty person can be intimidating to voters and is an unwanted interaction worthy of a criminal penalty.
What is the reaction of Georgia officials to Curb? The Secretary of State penned a tongue-in-cheek letter to Larry:
Mr. Larry David:
As the chief elections officer for the State of Georgia, we’d like congratulate you [sic] on becoming the first, and to our knowledge, only person arrested for distributing water bottles to voters within 150 feet of a polling station. We apologize if you didn’t receive celebrity treatment at the local jail. I’m afraid they’ve gotten used to bigger stars. It’s the TMZ of mugshots.
Given that Democrats have described the limited ban on food and water in voting lines as a threat to public health, we do hope that Leon’s aunt avoided a tragic death, even though that would allow you to keep those sporty glasses. Moving forward, we would encourage her to avoid long lines by employing the well known “chat and cut,” whereby one engages an acquaintance in fake conversation in order to join that person in line.
Given the obvious concern you have about access to voting in Georgia, you’ll be glad to hear that waiting times for all voters, including Leon’s aunt, in the last two major elections were under two minutes, even as we experienced record turnout.
Whether wanted or unwanted, I know you’ve received a lot of attention related to your actions in a Georgia election. Believe me, I understand. And while my powers as secretary of state to perform miracles are often overstated, I’m afraid I lack the authority to grant a pardon — even if you call me to ask for one.
Yours truly,
Brad Raffensperger
Though I appreciate that Secretary Raffensperger may have a sense of humor, making light of this terrible law he supports is in poor taste. And suggesting that the way to avoid standing in a long line to vote in Georgia is by employing a “chat and cut” is not funny to the people who have stood in those lines.
