On June 25, the US Department of Justice announced that it would sue the state of Georgia over its restrictive new electoral law. As part of a wave of such laws taken up by Republican-led states following the historic turnout and the defeat of President Trump last year, Georgia’s law requires, among other things, ID card for postal voting, limits the use of ballot boxes, makes it a crime to to offer water to voters waiting in line, and to expand legislative control over the state election committee.
“The right to vote for all eligible citizens is the central pillar of our democracy, from which ultimately all other rights arise,” said Attorney General Merrick Garland when announcing the filing. “This lawsuit is the first of many steps we are taking to ensure that all eligible voters have one vote, that all legitimate votes are counted, and that every voter has access to accurate information.”
The DOJ sued under Section 2 of the Voting Rights Act, which prohibits the refusal or restriction of the right to vote on the basis of race. This section was approved by the US Supreme Court in its landmark Shelby County v. 2013 Holder, which effectively removed Section 5 pre-election requirements for election changes in states and localities with a history of voter discrimination. The DOJ’s lawsuit alleges that Georgia lawmakers knew about the “cumulative and discriminatory effects” of the law’s provisions, especially for black voters, and passed the law anyway.
But on July 1, the Supreme Court weakened Section Two in an Arizona case – in a way that jeopardized the DOJ’s arguments against Georgia’s law.
Brnovich v. The National Democratic Committee was filed in 2016 over new electoral restrictions in that state: one that prohibits voting outside of the district, and one that allows someone other than a postal worker, election officer, or guardian to return a person’s ballot slip. hinders household or family member. The US 9th Court of Appeals in San Francisco found the laws discriminate against colored voters, who are about twice as likely to cast their ballots from the district as white voters. But the Supreme Court overturned the verdict in a 6-3 decision penned by Judge Samuel A. Alito Jr. The ruling sets guidelines for appeals filed under Section 2 that would prevent state election laws from being struck down just because they affect color communities more.
In the dissenting opinion of Judge Elena Kagan, the three liberals of the court protested against the weakening of the VRA protection and called the decision “tragic”. President Biden also expressed frustration.
“I am deeply disappointed with today’s decision by the United States Supreme Court that falls below the suffrage law and upholds what Judge Kagan described as ‘a significant racial inequality in choice,'” Biden said in a statement. “In just eight years, the Court has now severely damaged two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle to get it through.”
This is how voting rights expert Rick Hasen explained the judgment in his suffrage blog:
Rather than focusing on different effects – regardless of whether a law causes minority voters to register or to vote in lesser numbers – the court applies a much broader body of factual testing, with a big thumb on the scale in favor of the state and its own restrictive laws. If a law only imposes a “customary compulsory vote” and the burden on minorities is not too high and the state can assert a significant interest in preventing electoral fraud or some other interest (but does not have to prove it), then the law can stand .
“This is not a death knell for Section 2 claims,” he added, “but it will make it much, much harder for such challenges to be successful.”
Hasen also said the decision would make it “all the harder” for the DOJ to enforce its lawsuit against Georgia, although the department appeared to be anticipating the Supreme Court ruling by arguing in its filing that Georgia lawmakers were dealing with discriminatory Intentions would have acted.
But Marc Elias, a prominent voting attorney who has sued numerous states over voting restrictions, warned against viewing the verdict as a death knell for Section 2. “For naysayers who say that all is lost, I remind you that the impact test has been restricted. but not eliminated. Purposeful claims remain, “he tweeted.” To the GOP legislators who hail the restriction of protection for minority voters, we are not finished with the fight against your oppressive laws. “
Following the ruling, Biden reiterated his call for Congress to pass the For the People Act and the John Lewis Voting Rights Act, proposals that would help offset the weakening of the VRA. Both measures are facing a tough battle in the narrowly divided US Senate, which still allows the anti-civil rights filibuster.
