The Justice Department’s Stunt Voting-Rights Lawsuit against the Georgia Election Law

The filing illustrates how far DOJ is willing to go to paint ordinary voting and election laws as racial discrimination.

O n Thursday, the Justice Department filed a federal Voting Rights Act lawsuit against S.B. 202, the Georgia election law signed by Governor Brian Kemp in late March. The timing of the lawsuit was an obviously political stunt by Attorney General Merrick Garland and Assistant Attorney General Kristen Clarke of the Civil Rights Division. The complaint reads more like an op-ed in Mother Jones than a legal case. It illustrates quite how far DOJ is willing to go under Garland and Clarke to paint ordinary voting and election laws as racial discrimination. And it speaks poorly of the Justice Department that it rushed out this lawsuit for some quick partisan talking points without waiting for clearer guidance from the Supreme Court.

The Lawsuit as Press Release

The immediate question: Why now? The Supreme Court is expected, any day now, to decide Brnovich v. Democratic National Committee. This lawsuit is brought under the same statute at issue in Brnovich: Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Not only that, but one of the challenged provisions of S.B. 202 is a restriction on counting certain ballots if they are cast in the wrong precinct, a law already on the books in many states. A restriction on out-of-precinct voting is one of the two Arizona laws specifically at issue in Brnovich. In fact, the Arizona bar on counting out-of-precinct ballots is broader than the one at issue in Georgia, which exempts ballots cast after 5 p.m. on Election Day (when it would be more difficult for voters to get to the correct precinct on time). Hans von Spakovsky of the Heritage Foundation, a former career counsel to the assistant attorney general for civil rights, told me, “This shows the total arrogance of DOJ under Kristen Clarke, the new head of the Civil Rights Division, and Merrick Garland, that they couldn’t wait for the Brnovich decision. . . . There was absolutely no reason to not wait a week to file the lawsuit, given that one of the absurd claims in the complaint concerns the counting of ballots cast outside of a voter’s assigned precinct.”

Any lawyer can tell you that you’d rather know the governing law as you draft your complaint, so if a potentially major Supreme Court decision is coming down within days, you wait if it is possible to wait. It is embarrassing to have to immediately amend your pleading under a different theory, if the Court expands or contracts what you can do. There was no legal or practical need to file now, rather than wait a few days: No statute of limitations is about to expire, and no election is imminently about to be held under SB 202. There were eight cases left on the docket as of Thursday, with decisions coming Friday morning; there was thus a decent chance when DOJ filed suit that Brnovich would be decided the next morning. It now appears that Brnovich will be decided this Thursday, as it is one of the two remaining cases on the Court’s docket.

It may be that Brnovich will be a non-event, resolved on very narrow grounds or resulting in a splintered set of opinions that offer no meaningful change in the law. But many observers have noted the potentially broad consequences of the Court’s review of the case. It is prudent to consider that some of this complaint will be badly undermined. If so, the Justice Department’s lawyers will have rushed this filing just to be able to say things in a complaint on Thursday that would not stand up under their ethical obligations within a week. That is a questionable way to practice law.

Why the rush? The answer is right there in Garland’s remarks on the lawsuit: The case had to be filed on June 25 because it was the anniversary of the Court’s 2013 Shelby County decision, with which Garland and his staff disagree. The purpose of choosing that anniversary was to frame the lawsuit in the context of a political protest that would spur Congress to pass legislation that the Biden administration supports:

We urge Congress to act to provide the Department with important authorities it needs to protect the voting rights of every American. Eight years ago today, the Supreme Court issued the decision in Shelby County v. Holder. Prior to that decision, the Justice Department had an invaluable tool it could use to protect voters from discrimination, Section 5 of the Voting Rights Act. . . . Using that tool, the Department prevented over 175 proposed election laws across Georgia from being implemented because they failed the statutory test. If Georgia had still been covered by Section 5, it is likely that SB 202 would never have taken effect. We urge Congress to restore this invaluable tool.

The administration’s media allies clearly saw this as a political statement. Ari Berman of Mother Jones linked the suit to Garland’s advocacy earlier this month of the John Lewis Act and S. 1. MSNBC’s Chris Geidner described the lawsuit as “a warning shot to SCOTUS.” Garland was flanked at the press conference by Clarke and Vanita Gupta, both of whom were activists for the Democratic Party’s vision of voting procedures before coming to DOJ. He got the headlines he wanted. The merits of the lawsuit are another matter.

Feel the Brn

Brnovich addresses two Arizona laws: the out-of-precinct policy and a ban on “ballot harvesting” that permits only certain persons (i.e., family and household members, caregivers, mail carriers, and elections officials) to handle another person’s completed early ballot. The case was brought under both Section 2 and the 15th Amendment. Here is the Section 2 question presented by one of the two related petitions the Court agreed to hear:

Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote. . . .

This theory is all over the Georgia complaint. For example, DOJ repeatedly invokes the theory that S.B. 202’s race-neutral limits on certain voting procedures are discriminatory because those procedures — mainly absentee ballots and drop boxes — have been used in practice marginally more by black voters than by white voters:

• “In the November 2020 general election, Black voters were more likely than white voters to request absentee ballots between ten and four days before Election Day.”
• “Black voters were also more likely to request an absentee ballot between ten and four days before the January 5, 2021, general runoff election.”
• “Black voters have been more likely than white voters to submit absentee ballot applications closer to Election Day.”
• “In recent elections, late ballots were disproportionately cast by Black voters.”

This is even more absurd than it sounds, because the Georgia complaint relies almost entirely on the habits of voters in 2020 and 2021 during the pandemic; there is no reason why we should expect the same voting patterns to persist long-term in post-pandemic elections. The complaint admits that it is mostly relying on pandemic behavior:

Black voters in Georgia have traditionally been less likely to vote by mail than white voters, but that began to change in 2018, when 6.89 percent of Black voters, compared to 4.24 percent of white voters, cast an absentee ballot in the November election.

Absentee voting spiked in 2020, during the COVID-19 pandemic, particularly among Black voters. In November 2020, 29.27 percent of Black voters cast an absentee ballot, compared to 23.88 percent of white voters. In the January 2021 general election runoff, 27.65 percent of Black voters cast an absentee ballot, compared to 21.72 percent of white voters.

Of course, that divide reflected the partisan atmosphere of 2020, in which Donald Trump was telling his supporters that mail-in ballots were unreliable, while Democrats were hearing from their own side’s voices that in-person voting was unsafe.

When it comes to challenging S.B. 202’s provisions regarding drop boxes, the complaint does not even pretend to claim that the law makes things worse than they were before the pandemic. DOJ alleges a Voting Rights Act violation in how S.B. 202 limits the use of drop boxes, but it frankly admits that drop boxes were introduced in Georgia only as “an emergency rule” passed by the state election board in mid 2020. Before 2020, there were no drop boxes; now there are, and the standards for drop boxes are uniform statewide, yet the complaint calls this a “cutback”:

SB 202 requires each county to have one drop box but limits additional drop boxes to “the lesser of either one drop box for every 100,000 active registered voters in the county or the number of advance voting locations in the county.”

Nothing in Section 2 of the Voting Rights Act says that every emergency measure must become permanent when the emergency is over. In fact, the complaint admits that S.B. 202 rests in the governor the authority to expand the number of drop boxes in a future emergency.

The Results Test

The larger, looming question in Brnovich, which the Court may or may not resolve, is what has to be shown to prove a Section 2 violation. This is a question upon which the federal circuits have split multiple ways, and that division is typically a major reason why the Court takes cases — to provide a uniform rule to apply across the country. Consider what Section 2 says:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [language]. . . .

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. . . .

The language of Section 2, enacted in 1965 and revised to add the reference to “results” in 1982, speaks in terms of “denial or abridgement” of voting rights, of voting being “open to participation,” and of “opportunity . . . to participate.” We will see soon enough whether Brnovich puts more rigor, or at least more clarity, into Section 2, as some of the litigants have asked it to do. But even if the Court bypasses the question, the Georgia complaint will be judged under the governing standard of the Eleventh Circuit, as initially applied by Judge Jean-Paul Boulee, the Trump-appointed Atlanta district judge to whom the case has been assigned.

The Eleventh Circuit explained, in a 2020 opinion upholding Alabama’s voter ID law, what it requires of a Section 2 case:

Unlike discrimination claims brought pursuant to the Fourteenth and Fifteenth Amendments, which require proof of both discriminatory intent and actual discriminatory effect, the language of Section 2(a) of the VRA requires only proof of discriminatory “results,” not of discriminatory intent. . . . Despite its broad language, Section 2 does not prohibit all voting restrictions that may have a racially disproportionate effect. . . .

Even though minority voters in Alabama are slightly more likely than white voters not to have compliant IDs, the plain language of Section 2(a) requires more. First, the challenged law has to “result in” the denial or abridgement of the right to vote. Second, the denial or abridgement of the right to vote must be “on account of race or color.” In other words, the challenged law must have caused the denial or abridgement of the right to vote on account of race. (Quotations and citations omitted)

The Eleventh Circuit thus concluded that a law imposing a “minimal burden” on voters that could be met in multiple ways without great difficulty, and that would fall equally on white or black voters of the same economic class, did not violate Section 2. The same is true of nearly everything in this complaint, including challenges to identification required for absentee balloting — methods that include presenting a utility bill. The complaint makes the point that the option to provide the last four digits of the voter’s Social Security number as a form of identification is allowed when returning an absentee ballot, but not when requesting one — but it is reasonable for the state, having verified the voter’s identity when processing a request for an absentee ballot, to offer more leeway to confirm that identification a second time.

The complaint frets that drop boxes are not available after the end of early voting. But it does not offer any reason why voters would be unable to use the drop boxes during early voting; it just asserts that black voters would be likelier to wait.

Giving Away the Game

Then there is the complaint’s effort to challenge the portion of S.B. 202 that prevents outside groups from handing out food or water to people standing in line. As I have previously noted, this is similar in many ways to anti-electioneering laws in several other states, which exist for legitimate reasons, and nothing in the law prevents people from bringing their own food and water, or buying it from vendors, or picking up water placed at the voting place, or being given food and water by activists to take to the polls. It is simply a bar on handouts to people already in line.

The complaint concedes that this responded to a real phenomenon: “Before the passage of SB 202, various groups and organizations distributed food and water to persons waiting in long lines to vote.” It goes on to allege:

SB 202 will prevent churches, non-profit organizations, and other groups from sharing food and water to encourage voters not to abandon long lines to vote due to hunger or thirst.

If you recall, the argument made against the food-and-water rule was that nobody would try to use food and water to influence voter behavior, so the rule must be illegitimate and pointlessly cruel. Yet, here is the Department of Justice admitting in a legal filing that it believes that the purpose of these activist groups is “to encourage voters” to stay in line. It is entirely legitimate for the state to tell groups that are trying to get out the vote that they have to do so at a distance from the polling place.

Effects, Not Intent

Finally, the complaint tries to scrounge together accusations that the Georgia legislature must have been driven by racial animus in passing S.B. 202. Clarke stated that “our complaint today alleges that several provisions of SB 202 were passed with a discriminatory purpose in violation of the Voting Rights Act.” The complaint alleges that a Section 2 violation occurs when a state law “has either the purpose or the result of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” (Emphasis added). But this is not what the statute says.

DOJ’s complaint asserts only a single cause of action under Section 2 and asks for remedies specific to the statute. As the Eleventh Circuit’s standard observes, the language of Section 2 does not focus on legislative intent at all, but on the “results” of denials of the right to vote on account of race. Election-law professor Rick Hasen appears to think that the case can go forward mainly as a discriminatory-intent case, but as he notes, the Justice Department does not even have authority to file lawsuits directly under the 14th or 15th Amendment, which do address discriminatory intent. DOJ’s complaint might be a signal for other litigants to sue, but that is not its proper role in enforcing federal statutes. What matters under Section 2 is whether the complaint meets the statutory standard.

The Georgia complaint tries to stitch together some fairly thin evidence of intent. It cites an unidentified random caller making racist remarks about Raphael Warnock. It invokes an anti-Semitic flier about Jon Ossoff, which has nothing to do with the case, since nothing in S.B. 202 is alleged to discriminate against Jewish voters. It warms over some grievances from Stacey Abrams in 2018. It tries to bootstrap the protests and opposition of black Democratic lawmakers into proof of what the supporters of the bill believed. It complains about the procedures used to pass the bill, such as the lack of a “fiscal note” purportedly required for legislation with a budgetary impact. The Eleventh Circuit rejected a similar complaint about the use of cloture motions in its 14th Amendment analysis of the Alabama voter-ID law. And, of course, there are digressions about the “Stop the Steal” movement, Dominion voting-machine conspiracies, threats to jail Governor Kemp, and complaints that some Georgia legislators backed the Texas v. Pennsylvania lawsuit — darkly humorous things to put in a complaint that named Brad Raffensperger as a defendant and attacks a law signed by Kemp.

The United States Department of Justice is supposed to be better than this.

This article has been updated to reflect the Supreme Court’s schedule for the remainder of this week.