DOJ's lawsuits to guard voting rights unlikely to blunt restrictions

8 minute read

Attorney General Garland announces that the DOJ will file a lawsuit challenging a Georgia election law that imposes new limits on voting, during a news conference at the Department of Justice in Washington, D.C., June 25, 2021. REUTERS/Ken Cedeno

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June 30 (Reuters) - The U.S. Justice Department opened a new front last week in the Biden administration’s fight to protect minority voting rights.

U.S. Attorney General Merrick Garland announced a lawsuit last Friday challenging a Georgia election law that will almost certainly infringe on the rights of Black voters in the state and appears to have been designed and implemented to do just that.

The DOJ is challenging the law’s ban on handing out food and water to voters, as well as restrictions on the number of ballot drop boxes, among other measures. (The DOJ isn’t challenging a piece of the law that allows a Republican-controlled agency to commandeer local voting operations.)

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The complaint argues that the Georgia law amounts to intentional discrimination under the 1965 Voting Rights Act. It makes the case based largely on facts in the public record, including a CNN interview in April during which the state’s Republican lieutenant governor said the genesis of the bill occurred when President Donald Trump’s former personal lawyer “Rudy Giuliani showed up in a couple of committee rooms and spent hours spreading misinformation” about the legitimacy of the 2020 election. (That would be the baseless “big lie” narrative that’s now widely understood as a disinformation campaign to provide Republicans a partisan advantage.)

The lawsuit comes shortly after Republicans in the narrowly-divided Senate blocked a sweeping election reform bill sponsored by Democrats. That bill would have addressed many of the objections voting rights and racial justice advocates have raised against Georgia’s law and hundreds of other new measures to restrict voting rights recently enacted by Republican-controlled legislatures around the country.

Notably, the lawsuit also asks the court to retain jurisdiction over the issue and require that “certain new voting changes for Georgia be subject to a preclearance requirement” going forward.

The U.S. Supreme Court in 2013 gutted the broader preclearance provision that required former Confederate states to seek federal approval before re-drawing voting districts. That provision was enacted in light of our long national history of blocking Black Americans from the ballot box, but the court reasoned that the country has made sufficient progress on that end to do away with the rule.

One provision of the Voting Rights Act that remains intact, and which is part of the DOJ's Georgia case, allows courts to order state and local governments to undergo preclearance based on more recent discriminatory practices, post-1965. Known as the "bail in" provision, it empowers courts to order a jurisdiction to obtain preclearance from the court or attorney general before making any changes to voting qualifications. Such an order requires a finding that the jurisdiction violated the Constitution's guarantees regarding voting and equal protection, and is limited to a certain time period.

The DOJ suggested that the case against Georgia will be the “first of many steps” taken to challenge the new restrictive voting measures around the country.

It’s a sensible approach, and not surprising. The Wall Street Journal reported in 2014 that the Obama administration was using the same legal strategy after the high court’s 2013 decision. And, it’s just about the only move left, according to Travis Crum, a professor at Washington University in St. Louis School of Law who popularized the strategy via a law note written during his second year at Yale Law School.

The Georgia law “might not have been passed in its current form if preclearance were still on the books. It probably wouldn’t have been approved,” Crum told me. “Now, without Congressional action on the proposed voting rights bills, this is probably the only tool the Department of Justice has available to them.”

In other words, for now, the federal courts and the U.S. Supreme Court are the only viable pathways to challenge the new restrictive laws and to move toward reinstating certain provisions of the Voting Rights Act. That's also the only way to protect other provisions from further erosion, as well.

But that doesn’t inspire much hope, given that the court now has a larger conservative majority that's even more receptive to the notion of making it harder for citizens to vote than in years past.

And there are other considerations that suggest that Democrats have already lost this phase of the battle, to the detriment of Black voters.

The Supreme Court will issue a ruling on Thursday in a case challenging similar, Republican-backed laws in Arizona (It’s unclear whether Giuliani paid that legislature a visit, but a federal court has found that the law was motivated in part by a misleading video purporting to show voter fraud, and “racially charged” descriptions of the video by Arizona lawmakers, Reuters reported February 24.)

The court’s decision could end up making it harder to show intentional discrimination -- as alleged in the DOJ’s lawsuit against Georgia. Indications are that several justices already are leaning toward such a ruling.

“I’m glad to see that the DOJ is on the offensive, but we’ll have to wait and see how the opinion” in the Arizona case “comes out to know what legal options are left in the toolkit for the feds to bring these kinds of lawsuits,” Crum said.

Even if the high court doesn’t further narrow the Voting Rights Act on Thursday, the history of litigation in this area, and the current political climate, points toward more suppression of the Black vote.

In 2018, conservatives on the Supreme Court sided with Texas Republicans in a case alleging they had gerrymandered minority voters that Crum had referred to as a “poster child for bail-in.”

A lower court in 2019 refused to afford bail-in relief in the case, Crum told me, adding that the decision may have been a "strategic" move to "avoid this issue getting up to the Roberts court" at that time.

And, although the short history of litigation under the bail-in provision includes many settlements, the current political winds don’t seem to be blowing in that direction.

“There’s no indication that Georgia will settle and get bailed-in, and it seems unlikely given who is running the state at the moment,” Crum said.

All in all, it seems like the DOJ is doing its level best on this issue. Unfortunately, the writing is already on the wall at the Supreme Court.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com