Trial asks: Were illegal voters or legal ones target?

As Republican candidates and their supporters increasingly focus on specious claims of rampant voter fraud, a federal trial starting in Georgia on Thursday will examine whether a key campaign to unmask illegal voters in 2020 actually aimed to intimidate legal ones.

The outcome could have implications for conservative election integrity organizations that are widely expected to ramp up antifraud efforts during next year’s general election. The trial also could clarify the reach of an important section of the 1965 Voting Rights Act, the historic civil rights law that the Supreme Court has steadily pared back over the last decade.

That question is serious enough that the Department of Justice has filed a brief in the case and will defend the government’s view of the act’s scope at the trial.

The campaign, mounted in December 2020 by a right-wing group called True the Vote, filed challenges with local election officials to the eligibility of some 250,000 registered Georgia voters. The group also offered bounties from a $1 million reward fund for evidence of “election malfeasance” and sought to recruit citizen monitors to patrol polls and ballot drop-off locations.

The lawsuit, filed by the liberal political action committee Fair Fight Inc., alleges that finding fraud was a secondary concern. The actual purpose, the group argues, was to dissuade Democratic voters from turning out in tight runoffs that month for Georgia’s two seats in the U.S. Senate.

That would violate a clause of the Voting Rights Act that broadly prohibits any “attempt to intimidate, threaten, or coerce any person for voting or attempting to vote.”

Lawyers for True the Vote argue that the group’s efforts have nothing to do with intimidation and are an essential form of constitutionally protected free speech.

In opening arguments Thursday, Uzoma Nkwonta, a lawyer for Fair Fight, said voters who discovered their eligibility had been challenged — students away at college and members of the military on assignment among them — were left “feeling like they had done something wrong.”

But True the Vote had no evidence of wrongdoing, Nkwonta said, just a “spreadsheet of speculative observation.”

A lawyer representing True the Vote, Cameron Powell, argued that the defendants were merely seeking “a responsible middle path” between election conspiracy theorists on one side and “the state of Georgia telling them everything is OK.”

Two Democratic candidates, Jon Ossoff and the Rev. Raphael Warnock, won the Senate runoffs in early January 2021. The case has since plodded through the legal system for nearly three years before coming to trial.

In a briefing last week, Cianti Stewart-reid, the executive director of Fair Fight, cast the lawsuit as a move to head off what she called “a troubling plan to undermine the results of the 2024 election based on disinformation and bad faith attacks on voter eligibility.”

“Georgia has become the testing ground for modernday voter challenges and other antidemocratic tactics we believe are being deployed as part of a national effort led by followers of the Big Lie,” she said, referring to former President Donald Trump’s claim that the 2020 election was stolen.

Catherine Engelbrecht, a founder and president of True the Vote, did not respond to requests for comment. But in court filings, lawyers for her and the organization said that efforts to search for illegal voters like those in Georgia are protected by the First Amendment.

Threatening to punish people for casting ballots clearly violates the Voting Rights Act and has no freespeech protection, Powell said in an interview before the trial. But he said that there was reason to worry that people might cast ballots in places where they did not live. He said the state had mailed 7 million absentee ballots to Georgia residents, a measure to make voting easier during the COVID pandemic, although some people on voter rolls no longer lived where they had registered.

(In fact, the state sent absentee ballot applications — not actual ballots — to 6.9 million registered voters in 2020. About 1.3 million absentee ballots were cast in the November election, and the state said that “all of them were verified for the voter’s identity and eligibility.”)

“Engaging in speech about elections and voter integrity, engaging in facilitating petitions by Georgia voters who are concerned about the residency status of other Georgia voters, is subject to the highest First Amendment protections,” he said. “And it’s a very high bar to show that this was done in bad faith.”

The intimidation clause of the Voting Rights Act has been invoked before to punish both large-scale challenges to voters’ eligibility and the dispatch of monitors to watch polling places for “suspicious” activity. The national Republican Party was banned from participating in socalled ballot security efforts from 1982 to 2018 because of its involvement in both.