Five voters are asking a federal district court in Atlanta to cut Georgia secretary of state—and Republican gubernatorial nominee—Brian Kemp out of the picture when it comes to all subsequent election-related proceedings. This is a last-minute filing, but don’t write them off: They’re being represented by some big guns.
The voters can count on attorneys from Protect Democracy, former United States Attorney for the Middle District of Georgia Michael J. Moore, and former Department of Justice voting rights attorney Bryan L. Sells.
Their complaint points to Kemp’s actions while occupying the dual roles of secretary of state and candidate. He’s committed nothing short of an abuse of office.
Acting as chief election administration official in an election in which one is running for office poses a risk of bias under the best of circumstances. But Defendant Kemp’s efforts to use the authority of his office to advance his campaign have been extreme.
It’s that conduct, the narrowness of the race between Kemp and Democrat Stacey Abrams, and, presumably, the extreme problems Kemp is responsible for allowing to warp Election Day that sparked this suit. Reminder: They filed this on Election Day.
In light of Defendant Kemp’s recent conduct, Plaintiffs have a strong, well-founded, and reasonable belief that Kemp will not be a fair judge of the outcome of the elections and will exercise his official duties in a biased manner that denies them the right to cast an effective vote.
The complaint’s factual section contains some devastating characterizations as well as inarguable facts that are no better for Kemp.
Defendant Kemp has not only failed to follow the model of his predecessors who have recused themselves; instead he has sought to exercise the official powers and duties of his office in a biased manner to achieve maximum personal and partisan advantage, while neglecting his core responsibility to ensure a secure election.
The plaintiffs aren’t just voicing their own opinions here: a former two-term Georgia secretary of state, Cathy Cox, supports their points.
Kemp’s been a bad secretary of state, but it’s now inarguable that he’s also biased.
For years, election security experts have warned about the vulnerability of Georgia’s election systems to cyber intrusion. Despite repeated warnings, Defendant Kemp has failed to take action to protect the system. Two years ago, Kemp turned down an offer from the U.S. Department of Homeland Security to provide election cybersecurity assistance before the 2016 election. In August 2018, Defendant Kemp faced a federal lawsuit alleging that he had failed to adequately secure Georgia’s voting system, exposing the voting records of over six million Georgia residents.
Having taken no action whatsoever on the threat made apparent to him, Kemp learned this past weekend that there was, in fact, an enormous flaw in his website that allowed anyone to access voter registrations. Rather than addressing that concern, nevermind owning his responsibility, he blamed the Democratic Party of Georgia—from his office as secretary of state—with absolutely no evidence. If that’s not a demonstration of bias, what is?
These voter plaintiffs are bringing claims under 42 U.S.C. 1983’s due process guarantee and the 14th Amendment’s Due Process Clause; 42 U.S.C. 1983’s rights to vote and freely associate as well as the First Amendment; 42 U.S.C. 1983’s due process guarantee plus the 14th Amendment’s due process and equal protection clauses.
A word on 42 U.S.C. 1983: If you care about civil rights and know one statute by its code, it should be this one. It’s a major vehicle for addressing rights violations and the deprivation of rights.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
The plaintiffs’ first due process argument stems from the claim that Americans have the right to “have an impartial official preside over an essential administrative function.” Given Kemp’s demonstrations of bias, and the apparent conflict of interest, he shouldn’t be allowed to have anything to do with a run-off, adjudicating challenges to election procedures, or overseeing the results.
The second of their counts, a freedom of association charge, hinges on the facts plaintiffs have alleged, namely that Kemp has targeted Democrats and acted to disadvantage them. Doing so burdens their associational rights: We have the right to associate with members of the political party of our choice without having our rights diminished as a result.
The plaintiffs’ final, two-barrel count amounts to arguing that Kemp has acted “with actual bias in the conduct of his office.” That means there’s “a high probability that he will deny Plaintiffs’ their constitutional right to have their votes counted.”
The plaintiffs are seeking declaratory judgment—meaning, they want the court to declare that they’re right—and asking the court to block Kemp from further involvement in the election as secretary of state. The means of accomplishing that, per the plaintiffs, would be a temporary restraining order and a preliminary injunction.
Justice willing, this 11th hour plea will be enough to keep Kemp from perpetrating further disenfranchisement. Ideally, of course, he’ll be defeated by a margin that will make any further electoral processes unnecessary.
