ACLU of Georgia

Georgia Supreme Court Rules Constitutional Challenges May Proceed Against State Actors as Individuals


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The Georgia Supreme Court today rejected the State of Georgia’s argument that a state law cannot be challenged as a violation of the state constitution, even in suits against state actors as individuals.  The decision, which came in the context of a lawsuit the American Civil Liberties Union filed challenging a Georgia abortion ban, means that that challenge can move forward.

“While we disagree with today’s ruling that sovereign immunity bars suits against state officials in their official capacities, we appreciate that the Court’s decision keeps the courthouse doors open for these very important cases, including our challenge to Georgia’s unconstitutional abortion ban,” said Andrea Young, Executive Director of the ACLU of Georgia. “By providing a path for Georgians to hold their legislature accountable for unconstitutional laws, this ruling means we can now continue the legal fight against Georgia’s unconstitutional abortion ban. While the abortion ban has been in place, women in Georgia have been unable to get the health care they need. That’s why we challenged the law in the first place and why it is so important to get this case back on track quickly.”

In 2012, Georgia enacted a law banning abortions after 20 weeks. The ACLU and the ACLU of Georgia challenged the law on behalf of three obstetrician-gynecologists, on the basis that it violates their patients’ rights to due process, equal protection and privacy under the Georgia Constitution. The court blocked the law from taking effect while litigation proceeded.

However, in a separate case in 2014 the Georgia Supreme Court ruled that the state was entitled to “sovereign immunity,” a legal concept that prevents the state from being sued. After that decision, the judge presiding over the challenge to the abortion ban cited that decision and dismissed the challenge to the abortion ban. The dismissal had nothing to do with the merits of the suit’s constitutional claims. Today, the Georgia Supreme Court agreed with the trial court:  It held that sovereign immunity bars suits asking Georgia courts to strike down laws under the state constitution – if those suits are against state actors in their official capacities.

While the ACLU disagrees with the ruling on sovereign immunity, the court today also rejected the state’s assertion that such suits are also barred if they are against state actors in their individual capacities. That means both the challenge to the abortion ban and other constitutional challenges may move forward.

“We can now return to fighting Georgia’s unconstitutional abortion ban,” said Talcott Camp, Deputy Director of the ACLU Reproductive Freedom Project and lead counsel on the case.  “A woman’s health, not politics, should guide important medical decisions through her pregnancy. Our focus will now be on getting the law blocked once again so that women can get the care they need.”


Currently, Crisp County Board of Education members are elected “at-large,” meaning each of the school board seats is elected by the entire district, instead of “single-member,” which would allow voters to elect a representative to a particular seat designated to their neighborhood. Though Black people make up 40.3 percent of registered voters in Crisp County, the at-large system usually results in candidates for the Board of Education that are preferred by Black voters getting defeated by the white majority voting as a bloc. The current school board includes 5 white members and 1 Black member.


“Some of the most consequential decisions that affect people’s daily lives are made by local school board members, and all voters should have an equal opportunity to have a voice in that process,” said ACLU of Georgia Executive Director Andrea Young. “The Board of Education’s at-large voting method puts Black voters at a disadvantage by diluting the power of their vote and discouraging them from running for office. This must change to ensure all voters have an equal opportunity to be represented.”


At-large systems have historically been used as a racially discriminatory tool to ensure that Black voters, when they are a minority of the voting population, are almost never able to elect a candidate of their choice. In 1982, Congress amended Section 2 of the Voting Rights Act to ensure that electoral systems such as at-large elections could be struck down when they have a discriminatory effect, even if discriminatory intent could not be proved.


The suit filed today asks the court to strike down the current at-large voting method and prevent the Board from holding future elections until it adopts a redistricting plan that complies with the Voting Rights Act. Specifically, creating six single-member districts, in which each Board member is elected by a single district of Crisp County, will help ensure Black people have an equal opportunity to participate in the political process and elect candidates of their choice. Black voters can constitute a majority in one or more of these potential single-member districts.


“Crisp County’s at-large voting system for school board elections has the effect, purposeful or not, of discriminating against Black voters,” said ACLU of Georgia Legal Director Sean J. Young.  “This system needs to be reformed to comply with the Voting Rights Act and ensure all eligible voters have an equal opportunity to have their voices heard moving forward.”


“I’ve seen first-hand how the at-large voting system has prevented Black voters from being fairly represented on the Board of Education,” said plaintiff Curtis Lucas, who taught in the local public school system for 38 years and lost an election for the Board of Education in 2016. “As a result, Black people make up more than 40 percent of Crisp County’s population, but only 16 percent of the Board of Education. This needs to change.”


“This is about fairness – for students, parents, staff, and everyone who will benefit from a Board of Education that truly represents the population it serves,” said plaintiff Mathew Whitest, M.D. “Replacing the current at-large system with single-member districts will result in fairer elections and a more effective Board.”