Georgia’s Election Integrity Act of 2021 was challenged by the Biden administration on Friday. Despite the surreal nature of many of the allegations in the nearly 50-page complaint, analyzing the merits (or lack thereof) of the lawsuit requires an understanding of the Voting Rights Act. Let me explain the laws to you.
According to Sections 2 and 12 (d) of the Voting Rights Act, the Biden administration, through the Civil Rights Division of the Department of Justice, filed a complaint against the state of Georgia, the Georgia State Election Board, and Georgia Secretary of State Brad Raffensperger last week.
This latter provision, Section 12 (d), allows the attorney general of the United States to file a civil lawsuit against states and local election officials for alleged violations of substantive provisions of the Voting Rights Act, such as Section 2. In addition, the federal government may seek injunctive relief to prevent voting laws from being implemented under the Voting Rights Act.
According to Section 2 of the Voting Rights Act, it is illegal to implement a “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 colour.” Here, “results in,” language proves critical since Section 2 of the law originally prohibited only a “standard, procedure, or standard of conduct,” “to deny or abridge the right of any citizen of the United States to vote on account of race or colour.”
According to its original draft, the Voting Rights Act specifically prohibited intentional discrimination. The Supreme Court ruled in City of Mobile v. Bolden that Section 2 of the Voting Rights Act prohibited only “the purposefully discriminatory denial or abridgement of the freedom to vote” by the government, so Congress amended the language of Section 2 to prohibit practices that “result ” in the “denial or abridgment” of the right to vote.
Thus, in order to prevail on a Section 2 claim, the Department of Justice need not establish Georgia intended to abridge or deny voting rights. Section 2 (b) of the ADA provides that a violation may be established if, based on the totality of circumstances, it is shown that the political processes… are not equally open to participation” referring to how certain races and ethnicities “have less opportunity than other members of the electorate to take part in the political process and to elect representatives of their choice.”
To determine whether a practice violates Section 2, courts have adopted a two-step analysis. Courts first ask whether racial or ethnic minorities have fewer opportunities than others “to take part in political processes and elect representatives of their choice.” Second, the burden must be related to or caused by “social and historical conditions” that create discrimination.”
The lower courts have disagreed on the validity of laws despite agreeing on the two-pronged approach to Section 2. Wisconsin’s voter ID law, for example, was upheld by the Seventh Circuit against a Section 2 challenge, while Texas’s voter ID law was rejected by the Fifth Circuit.
In Brnovich v. Democratic National Committee, the Ninth Circuit applied the two-pronged test to the maximum extent possible. The en banc court in Brnovich ruled that Arizona’s “out-of-precinct” provision, which required voters to cast their ballots at their correct precinct, violated Section 2 of the Voting Rights Act.
In addition, Arizona’s ballot-harvesting ban was struck down, which prohibited anyone except election officials, mail carriers, caregivers, family, and household members from possessing an individual’s ballot. Rather than concern itself much with whether minority voters have an “equal opportunity” to vote, the Ninth Circuit struck down Arizona’s voting law based on its disparate impact.
In the United States, Brnovich is appealing his conviction. Observers of the Supreme Court expect the justices to reverse the Ninth Circuit and uphold Arizona’s voting laws. As part of its analysis of Section 2 claims, the Supreme Court will probably also define the standard to be applied by lower federal courts.
It is unclear what guidance the Supreme Court will provide or what standard it will employ in Brnovich, but most likely the majority will stress that a mere disparate impact on voters is insufficient. However, the DOJ’s entire lawsuit against Georgia focuses on the fact that certain provisions of the Election Integrity Act impact black voters at a higher rate than white voters.
In particular, the DOJ asserts that provisions of Georgia’s Election Integrity Act of 2021 are disproportionately burdensome to black voters. Who is challenging these provisions and how?
Georgia prohibits the distribution of unsolicited absentee ballot applications before also barring private organizations from distributing duplicate absentee ballot applications, according to the DOJ. Next, the DOJ challenges Georgia’s requirement that voters provide their driver’s license number or a photocopy of another form of identification when requesting an absentee ballot – but a utility bill would be sufficient.
Limits on the time to request absentee ballots and limited locations for absentee ballot drop boxes are also at issue. The DOJ also challenges Georgia’s ban on out-of-precinct voting and the distribution of food and drinks by private organizations to people waiting in line.
Under each of these challenged provisions, a complaint asserts that black voters are in a worse position than white voters. Other parts of the country do not share the Ninth Circuit’s liberal outlook. The actual issue is not whether the challenged provisions are discriminatory, but whether, considering all the circumstances, they deny black voters equal opportunities.
Georgia’s laws offer more generous early voting and absentee voting options than many other states, so it is difficult to understand how a court could find that the laws violate Section 2 of the Voting Rights Act. If Arizona’s challenged provisions are upheld by the Supreme Court in Brnovich, the precedent will be even stronger in Georgia’s favour.
Georgia must respond in the interim to the Department of Justice’s complaint. A preliminary injunction may follow then, as the DOJ will probably seek to bar enforcement of the law. However, to get 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. Boule, a Trump appointed, views the DOJ’s case.
It will take a month until we learn the Supreme Court’s opinion on Brnovich, which challenges state voting integrity laws under Section 2.