This challenge concerns a very nebulous statement by the United States Supreme Court, as to whether “voter registration” is a “qualification” to vote for federal Senate seats. The Supreme Court specifically dodged this issue in 2013, and it’s time a Georgia litigant brought it back to them, and fast. If a federal court were to hold that “voter registration” is a “qualification” to vote, then, according to Georgia law, only voters who were registered to vote in the general election this past November could vote in the runoffs.

The Seventeenth Amendment changed the way the States elect Senators. Previous to ratification in 1913, Senators were chosen by the Legislatures of each State. The Seventeenth Amendment changed such selection to a popular vote by citizens:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. (Emphasis added.)

The Amendment is unambiguous as to the “qualifications” necessary to vote for a Senator. “Electors” in the Amendment are simply voters. In order to be an elector, a voter, for a Congressional Senate seat, in Georgia, you must meet the same qualifications to vote as Georgia requires for persons to vote for members of their House of Representatives, which is the most numerous branch of its Legislature. Regardless, the qualifications to be a voter for a Georgia State House seat, or State Senate seat, are the same, and are specifically provided for by the Constitution of Georgia, and its statutes.

Article II, § 1, ¶ 2, of the Georgia Constitution states:

“Every person who is a citizen of the United States and a resident of Georgia as defined by law, who is at least 18 years of age and not disenfranchised by this article, and who meets minimum residency requirements as provided by law shall be entitled to vote at any election by the people. The General Assembly shall provide by law for the registration of electors. (Emphasis added.)

Not every State of the Union requires voter registration. North Dakota doesn’t require it. In Georgia, on the other hand, its statutes not only require voter registration, but the Constitution specifically provides that its General Assembly “shall provide by law for the registration of electors.” Voter registration is, therefore, a “qualification” to vote in the State of Georgia.

Furthermore, the Constitution of Georgia, at Art. II, § 2, ¶ 2, provides further for the qualifications of voters in runoff elections:

“A run-off election shall be a continuation of the general election and only persons who were entitled to vote in the general election shall be entitled to vote therein; and only those votes cast for the persons designated for the runoff shall be counted in the tabulation and canvass of the votes cast.” (Emphasis added.)

That would appear to prevent any person, who wasn’t previously registered to vote in the general election, from voting in the runoff. Now let’s look at the statutes enacted by the Georgia Legislature which were enacted to govern which electors in Georgia shall have the proper qualifications to vote. § 21-2-501(a)(1) states:

(a) No person shall vote in any primary or election held in this state unless such person shall be:

(1) Registered as an elector in the manner prescribed by law;

Here we see an enactment, specifically required to be enacted by the Georgia Constitution, requiring voter registration. § 21-2-224(a) lists the time before an election one must register to be able to vote:

“(a) If any person whose name is not on the list of registered electors maintained by the Secretary of State under this article desires to vote at any general primary, general election, or presidential preference primary, such person shall make application as provided in this article by the close of business on the fifth Monday or, if such Monday is a legal holiday, by the close of business on the following business day prior to the date of such general primary, general election, or presidential preference primary.”

So, in order to have been eligible to vote in the general election, according to the laws of Georgia, a Georgia citizen must have made an application to register five Mondays before November 3rd.

Now let’s examine the specific statute in Georgia that governs voter registration in runoff races, § 21-2-501:

“(10) The run-off primary, special primary runoff, run-off election, or special election runoff shall be a continuation of the primary, special primary, election, or special election for the particular office concerned.  Only the electors who were duly registered to vote and not subsequently deemed disqualified to vote in the primary, special primary, election, or special election for candidates for that particular office shall be entitled to vote therein…”

Therefore, based on all of the above, it’s very clear that under Georgia law, nobody should be voting in the Senate runoffs who wasn’t previously registered to vote in the general election. So why has Georgia been signing up new voters for the runoffs? The reason is a federal statute, the National Voter Registration Act of 1993, which requires that people be allowed to register to vote within thirty days of a federal election.

In 2017, Governor Kemp signed a consent decree, following a law suit, which lets voters bypass Georgia’s more stringent voter registration laws, by agreeing to the lesser thirty day window enacted in the NVRA. Similar law suits concerning voter registration requirements have been brought under the NVRA in other States.

The most important case decided by the United States Supreme Court which reviewed the constitutionality of the NVRA was Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013). In that case, but not in the original brief, the State of Arizona asked the Court to hold that voter registration was a qualification to vote, and therefore, since qualifications to vote are specifically enumerated in the Constitution as being under the plenary authority of the States, the NVRA was therefore preempted by the United States Constitution, as to voter registration requirements.

Unfortunately, Arizona only raised the issue in their reply brief, and Justice Scalia pointed this out in the majority opinion, which allowed the Court to avoid that specific issue. Here is what the majority opinion said:

“Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.9 Arizona v Inter Tribal, 133 S.Ct. at 2258-2259.

Now we have to skip to Footnote 9, wherein Justice Scalia found an out to avoid determining the “serious constitutional doubts” raised by this issue:

“9. In their reply brief, petitioners suggest for the first time that ‘registration is itself a qualification to vote.‘ Reply Brief for State Petitioners 24 (emphasis deleted); see also post, at 2261-2262, 2269-2270 (opinion of THOMAS, J.); cf. Voting Rights Coalition v. Wilson,60 F.3d 1411, 1413, and n. 1 (C.A.9 1995), cert. denied, 516 U.S. 1093, 116 S.Ct. 815, 133 L.Ed.2d 759 (1996); Association of Community Organizations for Reform Now (ACORN) v. Edgar,56 F.3d 791, 793 (C.A.7 1995). We resolve this case on the theory on which it has hitherto been litigated: that citizenship (not registration) is the voter qualification Arizona seeks to enforce. See Brief for State Petitioners 50.” (Emphasis added.)

The case was not decided on the issue of whether voter registration is a qualification requiring serious constitutional review. The Court went out of its way to punt on that issue, by clearly stating that it was deciding the case on the issue of citizenship information required to register, and not on whether voter registration is a qualification to vote. This means that the issue is still ripe, has not been decided, and if a litigant from Georgia were to act fast now, the Supreme Court might be willing to take this issue on.

Everyone should read the wonderfully detailed analysis of this issue in the dissent by Justice Thomas, but here’s the exact moment where Justice Thomas states that voter registration is a qualification to vote, and that Congress cannot dictate to the States as to it:

“Both text and history confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied. The United States nevertheless argues that Congress has the authority under Article I, § 4, ‘to set the rules for voter registration in federal elections.’ Brief for United States as Amicus Curiae 33 (hereafter Brief for United States). Neither the text nor the original understanding of Article I, § 4, supports that position.” Arizona v. Inter Tribal, 133 S.Ct. at 2265. (Emphasis added.)

Justice Thomas also addressed the Supreme Court’s decision in Smiley v. Holm:

“Respondents and the United States point out that Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 S.Ct. 795 (1932), mentioned ‘registration’ in a list of voting-related subjects it believed Congress could regulate under Article I, § 4. Id., at 366, 52 S.Ct. 397 (listing ‘notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns’ (emphasis added))…But that statement was dicta because Smiley involved congressional redistricting, not voter registration. 285 U.S., at 361-362, 52 S.Ct. 397. Cases since Smiley have similarly not addressed the issue of voter qualifications but merely repeated the word ‘registration’ without further analysis. See Cook v. Gralike, 531 U.S. 510, 523, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Roudebush v. Hartke,405 U.S. 15, 24, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972).”

The previous quote from Justice Thomas stated his opinion that voter registration is a qualification, while this quote makes clear that the issue has not yet been decided by the Supreme Court. And the final parting statement by Justice Thomas sums it up:

“I would not require Arizona to seek approval for its registration requirements from the Federal Government, for, as I have shown, the Federal Government does not have the constitutional authority to withhold such approval. Accordingly, it does not have the authority to command States to seek it. As a result, the majority’s proposed solution does little to avoid the serious constitutional problems created by its interpretation.” Arizona v. Inter Tribal, 133 S.Ct. at 2270.

With all that has happened in the 2020 federal elections, and all that is on the line, it would appear that now is the perfect time to put this “serious constitutional problem” before the nation’s highest judicial tribunal.

Furthermore, if the Legislature in Georgia, and the Legislatures in other States, would only seek to enforce their prior enactments regarding voter registration, and other laws concerning the choosing of presidential electors, it’s clear that Justice Thomas would agree, as can be the only conclusion from reading Footnote 2 of his Dissenting Opinion in the Arizona case:

2…This Court has recognized, however, that ‘the state legislature’s power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.’ Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam) (citing U.S. Const., Art. II, § 1, and McPherson v. Blacker,146 U.S. 1, 35, 13 S.Ct. 3, 36 S.Ct. 869 (1892)). As late as 1824, six State Legislatures chose electoral college delegates, and South Carolina continued to follow this model through the 1860 election. 1 Guide to U.S. Elections 821 (6th ed. 2010). Legislatures in Florida in 1868 and Colorado in 1876 chose delegates, id., at 822, and in recent memory, the Florida Legislature in 2000 convened a special session to consider how to allocate its 25 electoral votes if the winner of the popular vote was not determined in time for delegates to participate in the electoral college, see James, Election 2000: Florida Legislature Faces Own Disputes over Electors, Wall Street Journal, Dec. 11, 2000, p. A16, though it ultimately took no action. See Florida’s Senate Adjourns Without Naming Electors, Wall Street Journal, Dec. 15, 2000, p. A6. Constitutional avoidance is especially appropriate in this area because the NVRA purports to regulate presidential elections, an area over which the Constitution gives Congress no authority whatsoever.” (Emphasis added.) Arizona v. Inter Tribal, Footnote 2, J. Thomas, Dissent.

And you don’t need the Supreme Court yet. All you need to stop the influx of new voters from voting in the Georgia State runoffs is a federal court injunction. If you get that at the District Court, or Circuit Court level, the other side will be forced to petition SCOTUS. Time is an issue. This needs to be filed immediately.


  1. David Farrar Says:

    I shared your comment @ https://pcmp.ning.com/forum. I’ll let you know if any of my GOP members in Polk County, Georgia, respond.

  2. From the article linked by Mr. Parable,

    “Counsel was informed that an explanation would be provided via U.S. Mail.”

    Maybe you are going to get something in the mail.

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