On Friday, the Biden administration filed suit against Georgia, challenging numerous aspects of the state’s Election Integrity Act of 2021. While many of the allegations contained in the nearly 50-page complaint struck a surreal chord, assessing the merits (or lack thereof) of the lawsuit requires an understanding of the Voting Rights Act. Here’s your lawsplainer.
Last week, the Biden administration, through the Civil Rights Division of the Department of Justice, filed a one-count complaint against the state of Georgia, the Georgia State Election Board, and Georgia’s Secretary of State Brad Raffensperger, pursuant to Sections 2 and 12(d) of the Voting Rights Act.
The latter provision, Section 12(d), authorizes the attorney general of the United States to file a civil lawsuit against states and local election officials for alleged violations of the substantive provisions of the Voting Rights Act, such as Section 2. Further, under the Voting Rights Act, the federal government may seek injunctive relief to block voting laws from taking effect.
Section 2 of the Voting Rights Act currently prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The “results in” language here proves key, because when Congress first passed the law in 1965, Section 2 prohibited only a “standard, practice, or procedure” “to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
As originally drafted, then, the Voting Rights Act only prohibited intentional discrimination. However, following the Supreme Court’s decision in City of Mobile v. Bolden, wherein the high court held that Section 2 only bars “the purposefully discriminatory denial or abridgment by the government of the freedom to vote” on account of race or color, Congress amended the language of Section 2 to prohibit practices that “result” in the “denial or abridgment” of the right to vote.
To prevail on a Section 2 claim, then, the Department of Justice need not establish a state such as Georgia intended to deny or abridge the right to vote based on race or color. Rather, Section 2(b) provides that a violation “is established if, based on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation” because members of a particular race or color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Based on this statutory language, courts have developed a two-step analysis to determine if a practice violates Section 2. First, courts ask whether the practice provides members of a particular race or color “less opportunity” than others “to participate in the political process and to elect representatives of their choice.” Second, the burden must be “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination.”
While the courts seem to agree on this two-prong approach to Section 2, in practice the lower courts have reached conflicting assessments of the validity of various laws. For instance, the Seventh Circuit upheld Wisconsin’s voter ID law against a Section 2 challenge, while the Fifth Circuit rejected Texas’s Voter ID law.
Most extreme, however, was the Ninth Circuit’s application of the two-prong test in Brnovich v. Democratic National Committee. In Brnovich, the en banc court held that Arizona’s “out-of-precinct” provision, which required voters to cast their ballots in the correct precinct, violated Section 2 of the Voting Rights Act.
The appellate court also struck Arizona’s ballot-harvesting ban that made it illegal for individuals to possess another person’s ballot, other than election officials, mail carriers, caregivers, family, or household members. In striking Arizona’s voting law, the Ninth Circuit focused heavily on the disparate impact of the challenged provision, as opposed to whether minority voters have an “equal opportunity” to vote.
Brnovich is currently on appeal to the U.S. Supreme Court, and experienced court watchers expect the justices to reverse the Ninth Circuit and uphold Arizona’s voting laws. Beyond the bottom line in Brnovich, the Supreme Court will likely also define the appropriate standard for lower federal courts to apply in analyzing Section 2 claims.
While it is unclear what guidance the Supreme Court will provide or what standard the justices will adopt in Brnovich, it is likely the majority will stress that a mere disparate impact on voters is insufficient. Yet the gist of the DOJ’s entire lawsuit against Georgia is that select provisions of the Election Integrity Act impact black voters at a higher rate than white voters.
Specifically, the DOJ complains that black voters are “disproportionately burdened” by the challenged provisions of Georgia’s Election Integrity Act of 2021. And what exactly are those challenged provisions?
First, the DOJ complains that Georgia prohibits the distribution of unsolicited absentee ballot applications then also bars private organizations from distributing duplicate absent ballot applications. Next, the DOJ challenges Georgia’s requirement that in requesting an absentee ballot that voters either provide their driver’s license number or present a photocopy of another form of identification — but even a utility bill would suffice.
Also challenged are limits on the time period for requesting absentee ballots and limits on the number and location of absentee ballot drop boxes. Finally, the DOJ challenges Georgia’s ban on out-of-precinct voting and the distribution of food or drinks by private organizations to persons waiting in line.
For each of these challenged provisions, the complaint alleges black voters are burdened more than white voters. But even under current precedent — outside the liberal Ninth Circuit — that is not enough. Rather, the question is whether under the totality of the circumstances the challenged provisions deny black voters an equal opportunity to participate in the electoral process and that that burden is caused by historical or current race discrimination.
Given that Georgia’s law provides more generous early voting and absentee voting opportunities than many other states, it is difficult to see how a court would find these provisions violate Section 2 of the Voting Rights Act. Further, if, as expected, the Supreme Court in Brnovich, upholds Arizona’s challenged provisions, the precedent will be even stronger in Georgia’s favor.
For now, though, Georgia must answer the DOJ’s complaint. At that point it is likely the DOJ will seek a preliminary injunction barring enforcement of the law. However, to obtain a preliminary injunction, the DOJ must establish a likelihood of success on the merits. We will then get a first sense of how presiding Judge J.P. Boulee, a Trump appointee, views the DOJ’s case.
Before then, though, we will know how the Supreme Court views Section 2 challenges to state voting integrity laws, with a decision in Brnovich due in the next month or so.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.
Originally Appeared Here