An Interesting Legal Aphorism That Has Impact on the Restrictive Election Laws Coming at Us

Anglo-American Jurisprudence is replete with many sayings that have developed over time. It turns out that lawyers and judges can be clever, and sometimes funny. In thinking about the many voting bills coming down the pike around the country, one in particular came to mind regarding statutory law:

Argue the law if it’s on your side; if not, argue the facts; and if neither, argue legislative intent.

The rationale for this adage, and the reason why it is in a specific order, is the notion that a judge must follow the law. The fact that they quite often do not do so is likely to be the subject of another article. The theory goes that if the law supports your position, you win (except when you don’t). Continuing on, if you’re on the wrong side of the law, focus on the facts and try to show how the facts (if viewed the way you’d like) support a departure from the application of the law you don’t like. Finally, if neither the law and the facts help you, dig into why and how the statute came about.

It is the last portion that will likely be important in the fight for and against, since it focuses on the concept of intent. Incidentally, reference to legislative intent is not an outlier strategy — courts often engage in the analysis in trying to construe and interpret a statute. Such an analysis will almost certainly occur in these new voting laws.

Investigating legislative intent is something of a legal art form in itself. Unless a legislative body or law commission hides their deliberative archives (or various privileges are asserted), the general process is to scrutinize the universe of existing data that speaks to the intent of a statute, including committee records, versions — anything which fleshes out how the thing became a law. This includes statements made in the news media and (these days) even on social media.

The bottom line question: what’s really behind this law; and is that intent legally permitted to be achieved by the statute?

So, let’s consider the recently-passed law in Georgia, which is SB202 (called the Election Integrity Act of 2021). As discussed well and clearly in a recent Politico article, the actual intent of the law is a very serious dispute. The GOP and Georgia’s legislature and Governor claim it is the embodiment of election integrity, while opponents contend it is the epitome of voter suppression. The truth is likely somewhere between these two extremes.

To my mind (not being inclined to spend the many hours necessary for a full legislative intent analysis), there are a few important things to note — what might be called low-hanging fruit:

• As I mentioned in a prior article, the need for the statute is suspect, given the false premise that the 2020 election had significant problems — other than the GOP didn’t like the outcome. The statute is a solution seeking a problem, since the premise (2020 bad, need good law) was false
• Quite a few Republican notables have been open about their concern that large voter turnout usually means they lose; also because there has never been any evidence that the 2020 election was fraudulent, or that mail-in voting was a real problem, a law to restrict voting is especially twisted because we should be trying to encourage voting
• Several provisions of the statute are fairly clearly targeting Democratic voters (who tend to vote early and use absentee ballots more heavily), like reducing the time frame in which voters can request absentee ballots, and shortens the runoff period — which subsequently shortens the early voting window
• The GOP has been in control of the Georgia legislature for a long time, and this is not likely to change before the 2022 and 2024 elections. So the provisions allowing the legislature to exert more control over the election process (there are several) smack of nest-feathering and power-grabbing by the GOP
• The bill initially included a provision that clearly targeted Blacks, who are heavy Sunday churchgoers, and the Souls to the Polls program had been very effective in increasing Sunday voting. This did not make it into the final version due to a huge blow-back — yet the fact is germane to the issue of intent

I’ll close with another legal aphorism pertinent to the situation: it doesn’t pass the smell test.