Georgia Gov. Brian Kemp made headlines last fall for his efforts as secretary of state to change election procedures to suppress likely Democratic voters—efforts designed to tilt the playing field in his own race for governor. Among other things, he oversaw a large-scale purge of the state’s voter rolls and held up voter registration applications. His interference in the race culminated in a last-ditch effort to use Georgia’s official secretary of state website to accuse Democrats, without evidence, of trying to hack the state’s voting system.
Recognizing that Kemp could not be trusted to supervise a recount of his own race, a group of Georgia voters sued him, arguing that his biased administration of the election violated their constitutional rights. Along with co-counsel, my organization, Protect Democracy, represented the voters in court. I was in the courtroom, when, minutes before an emergency hearing in the case was set to begin, Kemp announced his resignation from office.Kemp may have appropriately stepped down, but Congress took notice. Last month, the House Oversight and Reform Committee launched an investigation into Kemp’s actions, along with those of election officials in Texas and Kansas.
It might surprise voters to learn that some members of Congress think that the House has no legitimate interest in whether American elections are administered fairly. To the contrary, Congress has a very legitimate interest in investigating Kemp’s activities. Kemp’s actions violated the Constitution, and the House investigation pertains to active legislative efforts that are well within Congress’s power. The congressmen seeking to squelch oversight base their argument on a flawed understanding of the Constitution.
It’s true that state elections officials have primary responsibility for running elections and enforcing state election laws. But the Constitution also gives Congress an important role to play in overseeing the states’ election administration and passing legislation when it’s needed to ensure fair federal elections. Gov. Kemp’s actions in 2018 exemplify the need for congressional attention: he used his authority as Secretary of State to tilt the election in his own favor, in violation of the Due Process Clause of the U.S. Constitution. As we argued in court last fall, the Constitution does not allow officials to set election rules to favor their own candidacies. This would violate long-standing principles of our democracy.
As James Madison explained in Federalist 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Supreme Court has long understood that transgressing that principle can lead to a violation of the Constitutional right to due process, or fair treatment by the government. The principle that one can’t be a judge in his or her own case applies to elections as well as court disputes. As a federal judge explained recently in a case involving a similar abuse of power by then-Florida Gov. Rick Scott in his campaign for U.S. Senate (where my organization, Protect Democracy, also represented the plaintiffs), “Grave problems arise when an individual involved in the electoral process uses his official powers to influence the outcome. Unconstitutionality can follow.”
Reflecting the importance of this issue, the Oversight Committee has specifically sought information about Kemp’s conflicts of interest and how those might have affected his decisions leading up to the 2018 election. Moreover, Congress is actively considering actions to curb such conflicts of interest in the future. For example, H.R. 1, a package of election and ethics reforms recently passed by the House, includes a provision that would bar state election officials from setting rules for elections in which they are candidates for federal office.
Gov. Kemp and Georgia’s new secretary of state, Brad Raffensperger, shouldn’t rely on the Republicans’ flimsy excuses to dodge their responsibility to provide information to Congress. Congress’s focus on voter suppression and electoral conflicts of interest is well-placed—our democracy depends on it.
Jessica Marsden is a counsel at Protect Democracy, where she has represented voters in South Carolina, Georgia and Florida to defend their right to cast a ballot in a fair election.