Attorney General Merrick Garland announced on Friday that the Justice Department has filed a lawsuit challenging several provisions of Georgia’s recently enacted voter suppression law. And the Department of Justice has a strong substantive case against this law.
However, it is far from clear whether the strength of their case will count: they will have to plead this case before a court increasingly hostile to demands for voting rights.
the complaint in United States v. Georgia, which is signed by the most senior lawyers in the Civil Rights Division of the Ministry of Justice, alleges that several provisions of Georgian law “were adopted with the aim of denying or restricting equal access of black citizens to the political process, in violation ‘of the voting rights law.
The DOJ does not attack all of Georgian law, and it does not directly attack the most troubling provision of the law, which allows Republican officials to effectively take control of local election commissions that have the power to shut down polling stations and disqualify voters.
Instead, the lawsuit focuses on several provisions that make postal voting in Georgia more difficult. It also targets provisions that deprive many voters who vote in the wrong constituency of their right to vote, as well as the provision in Georgian law prohibiting pro-democracy groups from distributing food and water to voters who vote. the queue to vote.
While the lawsuit only argues that these parts of the law violate the Voting Rights Act, it also asks the courts to invoke a rarely used provision of the law that would place elections in Georgia under federal control.
Prior to the Supreme Court ruling in Shelby County v. Holder (2013), states with a history of racist electoral practices, including Georgia, were required to “pre-enlighten” all new electoral rules with officials in Washington, DC. Shelby County effectively disabled this preclearance regime, but a provision of the Voting Rights Act still allows for preclearance on states who commit particularly blatant discrimination against voters of color.
And if preclearance was re-imposed on Georgia, it would likely prevent GOP-controlled election commissions from implementing policies aimed at denying black voters the right to vote.
At another time, the Georgia trial would have had a very good chance of winning. In Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), the Supreme Court set out several factors upon which complainants alleging racial discrimination can refer to prove their case, including evidence that lawmakers have deviated from the “normal procedural sequence” that they usually use to prove their case. promulgating laws, the fact that a state has a history of racist practices, or the fact that the impact of a law “bears more heavily on one race than another.”
The Justice Department’s complaint does an effective job of showing that many of these factors are present in Georgia. Yet even if it has strong legal arguments on its side, the courts are now much more conservative than the Supreme Court which ruled Arlington Heights – indeed, the current Supreme Court is even more conservative than the one which decided Shelby County.
the Georgia Additionally, the case is attributed to Judge JP Boulee, a Trump Judge.
The Justice Department, in other words, won’t just need to prove its case, it will also have to overcome a justice system stacked with judges who tend to be hostile to voting rights claims – and who are particularly hostile to the claims that white lawmakers have made in intentional racial discrimination.
It won’t be easy.
The case of the Ministry of Justice against Georgia, briefly explained
The DOJ complaint presents a fairly straightforward narrative against Georgia’s new law.
Georgia, of course, has a well-documented history of racist practices. Yet despite this history, Georgian voters elected the state’s first black senator, Raphael Warnock, in the most recent electoral cycle. And the state also voted to elect Vice President Kamala Harris, the first African American elected to the post, when he went to President Joe Biden in 2020.
Part of the reason this historically white supremacist state voted this way – and why the once solidly Republican state now has two Democratic senators – is an influx of black residents. “The number of black residents increased by 70.7% from 1990 to 2010 according to decennial census figures,” the Department of Justice said in its complaint, “and the share of black residents of Georgia’s total population is increased from 26.8% of the population in 1990 to 30.6% in 2010. “
These black Georgians were particularly likely to use postal ballots in the 2020 election cycle – so the law’s provisions restricting postal voting will have a disproportionate impact on African Americans if this trend continues in the future. future elections. (While most of the rise in absentee votes in 2020 can be attributed to the pandemic, black activists in Georgia have a usage history of postal voting readers to increase participation.)
Black Georgians are also much more likely to face long lines when voting in person, according to the DOJ, which is why a law preventing Good Samaritans from providing food and water to people. people waiting to vote is likely to have a disproportionate impact. on African Americans.
The state legislature, the DOJ alleges, enacted the new law “knowing the disproportionate effect these provisions … would have on the ability of black voters to participate in the political process on an equal basis with white voters.” . The law was passed without any support from black lawmakers, and the legislature used an unusually rushed process to pass the bill.
Among other things, the GOP-controlled legislature bypassed the legislative committee that would normally oversee such a bill, and instead assigned it to a special committee chaired by a legislator who had previously compared the “”still suspect postal voting process“in the” shaded part of the city near the docks in which you do not want to walk because the risk of being shanghai is important “.
The legislature also bypassed a process typically requiring such a bill to receive a “tax note,” a document outlining the likely impact of the bill on state and county spending.
Taken together, this and other evidence suggests that Georgia’s largely white Republican Party has seen its grip on the state wane. The state’s black population was growing, in number and in political power, and he had just succeeded in electing a black senator for the first time in the state’s history.
In the face of this impending loss of power, the DOJ alleges that lawmakers in white states intentionally enacted legal provisions that they knew would reduce black participation – all in an effort to prevent African Americans from exercising. the type of political power they wielded in 2020.
Why this case is facing a rise
Even setting aside the fact that this case will be heard by a trial judge appointed by Trump, and then potentially by a federal court of appeal and a Supreme Court dominated by Republican appointees, the DOJ will also have to overcome a string of recent precedents undermining the voting rights law.
The most detrimental of these cases to the GM’s chances of victory is Abbott v. Perez (2018), a 5-4 Supreme Court decision handed down along party lines.
Perez has ruled that lawmakers accused of acting with racist intent enjoy a presumption of racial innocence so high that few litigants will be able to overcome it. As Judge Samuel Alito wrote for his Court in Perez, “Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof rests with the challenger, not the state.”
And Alito has also gone much further than simply placing the burden of proof on the applicants for the right to vote. The facts of Perez were simply extraordinary, and they suggest that few complainants alleging racial discrimination can ever prove their case.
In 2011, Texas enacted congressional cards that a federal court later struck down as an illegal racial gerrymander. As of 2012, however, that litigation was still pending in two separate trial courts, and the state had no legal cards it could use to hold its congressional election that year.
So, to make sure Texas could actually hold a congressional election in 2012, a federal judge drew up provisional maps incorporating many districts that were later struck off. In drawing this temporary map, however, the judge emphasized that “this temporary map is not a final decision on the merits of any claim” that parts of the map were illegal racial gerrymanders.
Then, in 2013, the Texas Republican legislature took that temporary map and adopted it as its own – effectively trying to make the temporary map a permanent map, despite the fact that it included several racially gerrymandered districts. And the Supreme Court upheld this 2013 law by Perez.
The 2013 card, Alito claimed, was “legitimate” because it was not adopted with racist intent. On the contrary, he argued, it was enacted because Texas “wanted to end the litigation over the state’s district plans as quickly as possible.”
Alito’s argument, in other words, was that the 2013 cards were not adopted to preserve a racial gerrymander; they were enacted to end a lawsuit involving a racial gerrymander. And, in Alito’s mind, that was enough to defeat this litigation.
The result of Perez is that the DOJ will now have to argue that the evidence that Georgia’s voter suppression law was enacted with racist intent is even more powerful than the unusually convincing evidence of racist intent that was present in the Perez Case. The DOJ will have to argue this case before a trial judge appointed by Trump. And she may eventually have to plead her case before an even more conservative Supreme Court than the one that decided Perez.
And then, if the Justice Department hopes to prevent Georgia Republicans from taking control of local election commissions and using them to deprive voters of the right to vote, it will have to convince the courts to impose a sanction rarely imposed on the government. Georgia and re-establish preclearance in that state.
Perhaps the Department of Justice can overcome all of these challenges. But the game is stacked heavily against them, however strong their case may be.