I’m writing this in light of the North Carolina Supreme Court again using that state’s free elections clause to strike down GOP gerrymanders of congressional and legislative maps just a few hours ago.

Someday, I hope that Georgia adopts the free elections clause into our state constitution, something like this draft I wrote up.

Around 30-31 states have this “free elections” provision in their state constitutions, usually within their respective bills of rights. They are most often written in the following way: “All elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage”:

• http://www.ncsl.org/research/redistricting/free-equal-election-clauses-in-state-constitutions.aspx
• https://www.commoncause.org/wp-content/uploads/2019/09/FreeEqualOnePager-9.4.19.pdf

This is not the same as the right to vote, which is usually detailed in a separate portion of a state constitution’s bill of rights (which we already have) as a declaration of who has the right and freedom to register and cast ballots. The right to free and equal elections, on the other hand, usually applies to the right to an election which is conducted without forced compulsion or constraints against voters, candidates or election officials in their participation in elections. In the past, this was more often applied against allegations of bribery, ballot tampering and other unlawful attempts to curtail the choices of voters.

In three of these states (Pennsylvania, Virginia and North Carolina), courts have determined that partisan gerrymandering is a violation of their respective states’ right to free elections (among other state constitutional violations, such as freedom of speech and equal protection), resulting in more proportionate maps being drawn by either their respective legislatures or by court-appointed cartographers.

It’s a shame that Georgia, which has the youngest constitution of the 50 states, does not have a free elections clause which helps to protect our right to free and fair elections. It is not detailed in Article I, Section I (Bill of Rights), nor in Article II, Section I (Method of Voting, Right to Register and Vote), the latter of which at least affirmatively details the right to vote.

The Trumpists who have wailed about how the 2020 election was not fair to them do not have a provision in the state constitution which backs up their claim. Furthermore, the United States Constitution neither positively details the right to vote nor details any right to free elections, and the U.S. Supreme Court in Rucho v. Common Cause has ruled out any future intervention by the federal judiciary in cases regarding partisan gerrymandering, mandating that only state courts could possibly decide such cases.

Meanwhile, the 1868 South Carolina Constitutional Convention, which was arguably predominantly-Black in membership, managed to introduce a free elections clause to the South Carolina State Constitution, where it remains to this day. The crafters of our past state constitutions (namely the 1867-1868 convention) seemed to have missed this, badly.

This is why I hope that Georgia can catch up to these other states in adding this provision to our state constitution, so that we have fairly-drawn district lines and better state constitutional guardrails against voter suppression.