“The Justice Department is going to lose,” Georgia Secretary of State Brad Raffensperger told me during an interview on Friday, referring to the proxy lawsuit the Biden administration filed against Georgia a little over a week ago. Georgia has been upheld by the Supreme Court, Raffensperger added, stressing in an interview last week that the Supreme Court’s decision on the Brnovich v DNC case made the DOJ’s allegations frivolous.
A thorough analysis of the decision of the Supreme Court in Brnovich confirms Raffensperger’s assessment. In this case, the court found that Arizona’s district voting and voting rights were not in violation of Section 2 of the Voting Rights Act, which prohibits any “standard, practice, or procedure” that “leads to denial or curtailment of the rights of any citizen of the United States, based on race or skin color. “
While the Supreme Court upheld Arizona’s voting requests in the district, the DOJ continues to argue that Georgia’s similar provision violates Section 2, Raffensperger noted. In response to Raffensperger’s “request to the US Department of Justice to heed this ruling and dismiss their bogus, politically motivated lawsuit against Georgia,” the DOJ “doubled,” the secretary said. “But they will lose sooner or later,” he remarked.
Precedent shows how frivolous Biden’s lawsuit is
Beyond the bottom line in Brnovich – that Arizona’s similar electoral mandate is in place in the county – the Supreme Court’s reasoning confirms the recklessness of the entire Biden administration’s lawsuit against Georgia. In Brnovich, the Higher Regional Court dealt for the first time with the meaning of § 2 “leads to a refusal or reduction” of the right to vote based on race or skin color in the context of the “generally applicable rules of time, place or species selection. ”The court has put up several points of reference in order to determine whether votes are“ immediately open ”, as required in Section 2.
Signposts put up by the Brnovich court include: “the size of the burden; the extent to which the voting rule deviated from the standard in 1982 when Congress amended Section 2; the extent of the inequality of the minority regime; the possibilities offered by the entire electoral system of the state; and the strength of the state’s interests in the law. “
Applying these guidelines to the provisions of the Georgian Electoral Integrity Act of 2021, which the Biden government is challenging, finds that the DOJ’s lawsuit is completely unfounded. None of the challenged provisions burdens the voters, but rather represents in the language of the Brnovich court the “normal burden of votes”.
For example, the DOJ complained that Georgia bans the distribution of unsolicited postal votes and prevents private organizations from distributing duplicate postal votes, but the burden of requesting a postal vote online or in person is minimal. Likewise, Georgia’s request that voters provide their driver’s license number or a photocopy of some other form of identification, such as a utility bill, when asked to vote by post, is a minor burden that is easily met.
Raffensperger emphasized this in his Friday interview, pointing out that the state’s step of requesting a driver’s license number, date of birth or other proof of identity is very simple. “Minnesota is happy with this system,” he told The Federalist, emphasizing that this Midwestern state, which has a Democratic governor, a Democratic secretary of state, and a Democratic house, uses a similar method of checking postal votes.
It’s not difficult to do what everyone else is doing
Likewise, the other provisions of the Georgian Electoral Integrity Act of 2021, although challenged by the DOJ, do not impose any burden beyond the usual burden on all voters. For example, while the DOJ complains that Georgia limits the deadline for applying for postal ballot papers, limits the number and location of postal ballot boxes, and prohibits the distribution of food or drinks by private organizations to people waiting, the ballot papers on timely submission and the Returning to the appropriate location is the minimum burden for voters. Bringing food or drinks with you if you think you will need refreshments while waiting is also not a burden.
Not only are these provisions not a burden beyond the general burden of voting, Georgia offers numerous alternative choices, from postal voting to early voting and same-day voting. To the extent that one of these provisions was not customary in 1982 because mailboxes and postal voting for no reason were not yet widespread at that time. Georgia also has a keen interest in preventing fraud and undue influence – and these new provisions address those legitimate concerns, especially given the increase in postal voting.
While the DOJ presented the challenged provisions in its complaint against Georgia in such a way that they affect minority voters more, the vote also remains “equally open”, which means “without restrictions on eligibility”. In addition, the Brnovich Supreme Court explicitly rejected “the differential impact model used in the Title VII and Fair Housing Law cases,” which means that a disproportionate impact on minority voters is not negative.
Yes, anti-fraud provisions are appropriate
In addition to the signposts adopted in Brnovich, the Supreme Court’s analysis and response to the arguments relating to the attacks on the voting integrity provisions in Arizona reveal the folly of the DOJ’s lawsuit against Georgia. In Brnovich, for example, the Supreme Court found that while the legislative goal of fraud prevention was poor for the lower court, “largely because there was no evidence of early election fraud in Arizona. . . It should go without saying that a state can take steps to prevent electoral fraud without waiting for it to occur and be detected within its own borders. “
The DOJ’s complaint against Georgia contains precisely this argument, claiming that “the lack of evidence of electoral fraud in the 2020 election cycle,. . . tend to undermine the justifications put forward by proponents of SB 202, which provides evidence that the arguments offered for the provisions of the bill are scant. ”While the Biden government filed its lawsuit against Georgia prior to the Brnovich ruling The Supreme Court verdict now makes it clear that this argument is not valid: Georgia does not need evidence of voter fraud to pass a law to prevent voter fraud.
In addition, the Brnovich Supreme Court rejected the argument that the “baseless and often far-fetched allegations of ballot fraud” made by an Arizona legislature taint the law. “Under our form of government,” said Judge Samuel Alito, who wrote for the majority, “the legislature has a duty to pass judgment and represent its voters. It is insulting to say that they are just scammers or tools. “
The Biden government’s attempt to challenge Georgian law by stressing that a senator who supports the law attended a hearing presenting unsubstantiated allegations of electoral fraud will fail because, as Brnovich explained, the motives individual legislators cannot be attributed to the legislative body.
Republicans can vote too
The Brnovich opinion also made it clear that partisan motives are not the same as racist motives, noting that the DOJ’s focus in its complaint on the fact that Georgia’s law was passed along the party lines is irrelevant.
Also irrelevant were the DOJ’s allegations in its lawsuit against Georgia regarding a racist GIF targeting an election worker, a racist message threatening then-candidate Raphael Warnock, and a racist robocall about Georgia’s 2018 gubernatorial candidate Stacey Abrams. In Brnovich, Judge Alito, who wrote for the majority, criticized attempts to establish a racist motive underlying Arizona law on the basis of a third-party “racially colored” video, stating that there was “no evidence admit that the legislature as a whole was permeated ”. with racial motives. “
While the DOJ’s lawsuit against Georgia before Brnovich was frivolous, the recent Supreme Court ruling curbs the Biden government’s continued prosecution of this litigation into the potentially sanctionable area. More significant than whether Georgia is seeking or receiving sanctions, however, is Brnovich’s impact on Georgia’s attempt to strengthen vocal integrity in the state. In particular, Brnovich makes it clear that Georgia’s Integrity Act of 2021 will remain in law, and this is the first beginning to reassure Georgians and their American compatriots that the state takes integrity seriously when voting.
The election chaos in 2020 must never happen again
However, more needs to be done as questions about the 2020 elections remain unanswered. The Secretary of State appears to recognize the importance of being transparent about concerns about the 2020 elections, for example by announcing an investigation into Fulton County two weeks ago after it became known that it was unable to produce all referral documents for the ballot box .
Raffensberger confirmed to me on Friday that these documents have since been made available, but it is nonetheless reassuring that Raffensberger continues to investigate if necessary to ensure compliance with applicable laws.
When asked about the state of the investigation into evidence suggesting that more than 10,000 voters in a county where they have not lived for more than 30 days illegally cast their ballots – a move that was later confirmed when the voters updated their electoral rolls – Raffensbergerberger could not give any clear information. The secretary’s staff have agreed to further details following discussions with investigators and committed to arranging an interview for The Federalist with the lead investigator.
Such transparency will prove essential for Georgia and Raffensberger to move the 2020 elections forward, as voting integrity involves more than setting new rules: it requires acknowledging past failures and solutions to ensure they are never repeated.
Margot Cleveland is an executive at The Federalist. Cleveland spent nearly 25 years as a trainee lawyer with a federal appeals judge and was a former full-time faculty member and lecturer in the College of Business at the University of Notre Dame. The views expressed here are those of Cleveland in their private capacity.
