For each of the challenged provisions, DOJ's complaint alleges black voters are burdened more than white voters in Georgia's new voting law.
On Friday, the Biden administration filed suit against Georgia, challenging numerous aspects of the state’s Election Integrity Act of 2021. While many of the allegations contained in the nearly 50-page complaint struck a surreal chord, assessing the merits (or lack thereof) of the lawsuit requires an understanding of the Voting Rights Act. Here’s your lawsplainer.
Last week, the Biden administration, through the Civil Rights Division of the Department of Justice, filed a one-count complaint against the state of Georgia, the Georgia State Election Board, and Georgia’s Secretary of State Brad Raffensperger, pursuant to Sections 2 and 12(d) of the Voting Rights Act.
The latter provision, Section 12(d), authorizes the attorney general of the United States to file a civil lawsuit against states and local election officials for alleged violations of the substantive provisions of the Voting Rights Act, such as Section 2. Further, under the Voting Rights Act, the federal government may seek injunctive relief to block voting laws from taking effect.
Section 2 of the Voting Rights Act currently prohibits any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The “results in” language here proves key, because when Congress first passed the law in 1965, Section 2 prohibited only a “standard, practice, or procedure” “to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
As originally drafted, then, the Voting Rights Act only prohibited intentional discrimination. However, following the Supreme Court’s decision in City of Mobile v. Bolden, wherein the high court held that Section 2 only bars “the purposefully discriminatory denial or abridgment by the government of the freedom to vote” on account of race or color, Congress amended the language of Section 2 to prohibit practices that “result” in the “denial or abridgment” of the right to vote.
To prevail on a Section 2 claim, then, the Department of Justice need not establish a state such as Georgia intended to deny or abridge the right to vote based on race or color. Rather, Section 2(b) provides that a violation “is established if, based on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation” because members of a particular race or color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Based on this statutory language, courts have developed a two-step analysis to determine if a practice violates Section 2. First, courts ask whether the practice provides members of a particular race or color “less opportunity” than others “to participate in the political process and to elect representatives of their choice.” Second, the burden must be “caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination.”
While the courts seem to agree on this two-prong approach to Section 2, in practice the lower courts have reached conflicting assessments of the validity of various laws. For instance, the Seventh Circuit upheld Wisconsin’s voter ID law against a Section 2 challenge, while the Fifth Circuit rejected Texas’s Voter ID law.
Most extreme, however, was the Ninth Circuit’s application of the two-prong test in Brnovich v. Democratic National Committee. In Brnovich, the en banc court held that Arizona’s “out-of-precinct” provision, which required voters to cast their ballots in the correct precinct, violated Section 2 of the Voting Rights Act.
The appellate court also struck Arizona’s ballot-harvesting ban that made it illegal for individuals to possess another person’s ballot, other than election officials, mail carriers, caregivers, family, or household members. In striking Arizona’s voting law, the Ninth Circuit focused heavily on the disparate impact of the challenged provision, as opposed to whether minority voters have an “equal opportunity” to vote.
Brnovich is currently on appeal to the U.S. Supreme Court, and experienced court watchers expect the justices to reverse the Ninth Circuit and uphold Arizona’s voting laws. Beyond the bottom line in Brnovich, the Supreme Court will likely also define the appropriate standard for lower federal courts to apply in analyzing Section 2 claims.
While it is unclear what guidance the Supreme Court will provide or what standard the justices will adopt in Brnovich, it is likely the majority will stress that a mere disparate impact on voters is insufficient. Yet the gist of the DOJ’s entire lawsuit against Georgia is that select provisions of the Election Integrity Act impact black voters at a higher rate than white voters.
Specifically, the DOJ complains that black voters are “disproportionately burdened” by the challenged provisions of Georgia’s Election Integrity Act of 2021. And what exactly are those challenged provisions?
First, the DOJ complains that Georgia prohibits the distribution of unsolicited absentee ballot applications then also bars private organizations from distributing duplicate absent ballot applications. Next, the DOJ challenges Georgia’s requirement that in requesting an absentee ballot that voters either provide their driver’s license number or present a photocopy of another form of identification — but even a utility bill would suffice.
Also challenged are limits on the time period for requesting absentee ballots and limits on the number and location of absentee ballot drop boxes. Finally, the DOJ challenges Georgia’s ban on out-of-precinct voting and the distribution of food or drinks by private organizations to persons waiting in line.
For each of these challenged provisions, the complaint alleges black voters are burdened more than white voters. But even under current precedent — outside the liberal Ninth Circuit — that is not enough. Rather, the question is whether under the totality of the circumstances the challenged provisions deny black voters an equal opportunity to participate in the electoral process and that that burden is caused by historical or current race discrimination.
Given that Georgia’s law provides more generous early voting and absentee voting opportunities than many other states, it is difficult to see how a court would find these provisions violate Section 2 of the Voting Rights Act. Further, if, as expected, the Supreme Court in Brnovich, upholds Arizona’s challenged provisions, the precedent will be even stronger in Georgia’s favor.
For now, though, Georgia must answer the DOJ’s complaint. At that point it is likely the DOJ will seek a preliminary injunction barring enforcement of the law. However, to obtain a preliminary injunction, the DOJ must establish a likelihood of success on the merits. We will then get a first sense of how presiding Judge J.P. Boulee, a Trump appointee, views the DOJ’s case.
Before then, though, we will know how the Supreme Court views Section 2 challenges to state voting integrity laws, with a decision in Brnovich due in the next month or so.
It may just be that Donald Trump’s biggest sin—as it was with Newt Gingrich and Ronald Reagan and others who preceded him on the national stage—is that he has blocked what the intellectual heirs of Marx who populate the Democratic Party believe is the United States’ inevitable slide into a permanent socialist welfare state.
Some will argue this is nonsense. They may be right about that—but the debate about these luminaries on the political right so often devolves into character assassination and the politics of personal destruction that it is hard to be sure. The leaders of America’s elite culture, who have the power to shape people’s thinking and economic behavior as well as influence how they vote, are a leftward lot who cannot be happy they are saddled with Sleepy Joe Biden as a presumptive presidential nominee.
Since coming into office, Trump has complained that he has been the victim of a coordinated campaign to discredit him. The allegation that his campaign colluded with Russian intelligence operatives to tilt the election in his favor—which so many senior congressional Democrats and former Obama administration senior officials assured everyone was both serious and substantive—turns out not to have been true at all.
This is troublesome. Some of the same people who were on television as often as possible reiterating there was truth in the charge were telling congressional investigators that they had no evidence to back up their claims. And that’s only the tip of the iceberg.
We’ll probably never know everything that went on but, from what we do know, there’s more true than not true about the suggestion, for example, the FBI under James Comey—perhaps at his own direction—sought to intervene in the 2016 election to Trump’s detriment. Using a phony “dossier” as cover that they apparently knew to be full of falsehoods (and paid for, in part, by the Hillary Clinton presidential campaign), they wiretapped Trump campaign headquarters looking for dirt. And they set up retired Lt. Gen. Michael Flynn, who, for a brief time, served as national security advisor, on the charge of having lied to them.
There are those—and count me among them—who find the idea that lying to the FBI is a crime questionable, especially since the United States Supreme Court has affirmed the FBI and other police agencies can lie to you without penalty or sanction in the course of an investigation. That, it seems reasonable to assert, tips the scales of justice unfairly towards the interests of the state. But that’s an issue of another day.
The fact the Flynn investigation is so badly tainted by misconduct, not just by the investigators but also by the prosecutors, taints all the subsequent investigations and prosecutions touching on the Russia collusion investigations. Perhaps they deserve reconsideration, especially the case against longtime Trump political associate Roger Stone—which moved forward, he claims, only after he refused an entreaty to make everything go away if only he would go along with the government’s assertions regarding phone conservations with the president that matched the narrative the FBI was trying so hard to establish.
This whole saga is a black stain on the American system of jurisprudence. The Stone case, from the obvious bias of the judge and jury foreman to how a key witness, it was recently learned, contradicted himself between his testimony before the House Intelligence Committee and what he said in federal court, ratifies rather than reassures the American public that something is rotten in Washington.
It’s not too much of a stretch to suggest, were there not profound political considerations connected to the action, that President Trump should pardon everyone who was convicted or pled guilty to process crimes arising out of the collusion investigation.
Which brings us to the unfortunate tale of Judge Emmett Sullivan. By inviting the submission of amicus briefs and appointing a retired federal judge to argue against the dropping of the case against Flynn—as the Justice Department now wants to do—Judge Sullivan is only prolonging the inevitable. Even if Flynn’s plea of guilty to the charge he lied to the FBI is somehow sustained in Sullivan’s courtroom, it will almost certainly be reversed on appeal.
A pardon would short-circuit that but would make it hard for Flynn and others to claim they were both set up and exonerated. Justice requires they be able to do both.
Donald Trump has already left his mark on the federal judiciary through numerous selections for the bench. But he also has the opportunity to agitate for another lasting judicial reform: the breakup of the 9th U.S. Circuit Court of Appeals.
The 9th Circuit, which includes Nevada, is by far the largest of the 13 federal appellate courts, covering nine Western states and two Pacific island territories. It has 29 active judges and 20 senior jurists, dwarfing any other appeals court.
Writing in the Wall Street Journal last week, Arizona Attorney General Mark Brnovich and Ilya Shapiro of the Cato Institute note, “The 9th Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national average.”
Common sense would dictate that court be split into two or more manageable districts. But politics dominates the issue. The 9th Circuit is the nation’s most liberal appellate court, and Democrats are wary of deconsolidation. But it makes little sense to defend the status quo on political grounds if the result is a delay in the administration of justice for those involved in litigation.
Early last year, Arizona’s U.S. senators, John McCain and Jeff Flake, both Republicans, offered a proposal to spin off a new court to include Arizona, Nevada, Idaho, Montana, Washington and Alaska. The legislation was similar to a 2004 measure that passed the House but died in the upper chamber.
Congress should again review the McCain-Flake proposal. The only issue at hand should be whether the current configuration of the 9th Circuit promotes efficiency and timely justice for the residents of the Western states. The answer seems abundantly clear.
Judicial Watch announced that the Justice Department refuses to disclose the talking points developed by the Obama Justice Department to help it respond to press inquiries about the controversial June 27, 2016, tarmac meeting between Loretta Lynch and Bill Clinton at Phoenix Sky Harbor International Airport.
The Justice Department heavily redacted the documents under Exemption b (5), which allows agencies to withhold draft or deliberative process material. The blacked-out material centers around talking points drafted and used by Justice to respond to press inquiries about the Lynch-Clinton meeting.
The agency produced 417 pages of documents in response to Judicial Watch’s FOIA lawsuit (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-00421) seeking: Continue reading
If propounding pseudoscience in pursuit of self-serving goals is a crime, here are some hardened offenders.
By David French • National Review
The attorneys general of New York and California are on the warpath. They’re fed up with dissent over the science and politics of global warming, and they’re ready to investigate the liars. California’s Kamala Harris and New York’s Eric Schneiderman have Exxon in their sights, and they’re trying to pry open the books to see whether the corporation properly warned shareholders “about the risk to its business from climate change.” Not to be outdone, Attorney General Loretta Lynch revealed that the federal Department of Justice has “discussed” the possibility of civil suits against the fossil-fuel industry. The smell of litigation is in the air.
Some people are worried about little things like the “First Amendment,” “academic freedom,” and “scientific integrity.” Not me. I hate unscientific nonsense. So if Harris and Schneiderman are up for suing people who’ve made piles of cash peddling exaggerations and distortions, let’s roll out some test cases. I’ve got three ideas:
United States v. Al Gore: Ten years ago, the former vice president of the United States launched an extraordinarily lucrative career by selling climate doomsday. While promoting his Oscar-winning documentary, An Inconvenient Truth, he made a shockingly false statement. He said that unless the world took “drastic measures” to reduce greenhouse gases, it would reach a “point of no return” in ten years. Continue reading
Obama admin sides with Palestinians in landmark terror case
by Adam Kredo • Washington Free Beacon
The Obama administration has intervened in a landmark legal case brought by the American victims of Palestinian terrorists, urging the court to limit restitution for the victims out of fear that a sizable payout could collapse the Palestinian government, according to a copy of the court filing.
Deputy Secretary of State Tony Blinken argued in a filing to a New York City court that a hefty payout to the victims of Palestinian terror crimes could burden the Palestinian Authority (PA) and interfere in Obama administration efforts to foster peace in the region.
The victims are entitled to as much as $655 million from the PA following the conclusion of a decade-long lawsuit that exposed the Palestinian government’s role in supporting and paying for terror attacks in Israel. Continue reading
by Lisa Rein • Washington Post
The Obama administration has ruled that inspectors general have to get permission from the agency they’re monitoring for access to wiretaps, grand jury and credit information, a decision that immediately was denounced by watchdogs and lawmakers.
The Justice Department’s inspector general said the 58-page ruling released Thursday by the agency’s Office of Legal Counsel will undermine his ability to do his job rooting out fraud and corruption.
“Without such access, our office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars,” Inspector General Michael E. Horowitz said in a statement. Horowitz is chairman of the Council of the Inspectors General on Integrity and Efficiency, a watchdog over the watchdogs that also sets policy. Continue reading
by Peter Roff • The Daily Caller
The United States Department of Justice has a well-earned reputation for ruthlessness in its pursuit of lawbreakers, to the point where serious concerns have been raised they are trampling on the rights of the accused. It’s gotten to the point where politically motivated prosecutions, while not exactly commonplace are alarmingly frequent. One does not need be a juris doctor to recognize the system is sick: The way Alaska Republican Ted Stevens was railroaded out of the U.S. Senate on a train driven by the DOJ’s Public Integrity section is proof enough of that.
Though the Stevens case may be the best known it is not by far the last word on prosecutorial overreach and over-criminalization. Unfortunately these tactics have leaked out of DOJ into other departments of the executive branch – with embarrassing consequences for the United States and the cause of justice.
Consider the State Department, where Assistant Secretary for European and Eurasian Affairs Victoria Nuland has been caught trying unsuccessfully to pressure the government of another country to issue a legal finding that would help her in her efforts to bring pressure on the government of yet another country. Continue reading
by Post Editorial Board • New York Post
It’s telling that the federal bribery indictment of New Jersey Sen. Bob Menendez landed the same day the Justice Department announced it won’t prosecute IRS serial stonewaller Lois Lerner for contempt.
The net message isn’t subtle: Hold President Obama’s feet to the fire, as Menendez has done on Iran, and you’ll pay a price.
Keep quiet when it comes to implicating the White House, and Justice will play hands-off. Continue reading
By Jay Sekulow • Fox News
And, now it is even clearer that the Obama administration’s Department of Justice is incapable of holding accountable those responsible for a massive illegal targeting scheme. Even worse, its own involvement in the scandal not only means that it can’t properly investigate the IRS, it should instead be investigated for cooperating with the IRS in its campaign of censorship and oppression. Continue reading
We write to you today to express our concerns that Loretta Lynch, the President’s nominee for attorney general of the United States, and prosecutors in her employ in the office of the U.S. Attorney for the Eastern District of New York, may have violated the rights of crime victims while making plea deals with defendants in so-called “white collar” cases. We believe that this is emblematic of a larger problem – to wit, the failure of the executive branch to enforce laws as written, and indeed the deliberate circumvention of the laws as written.
The issue is of respect for the law. For example, under federal sentencing law, specifically the Mandatory Victims Restitution Act, restitution is “mandatory” as to defendants who are sentenced for certain designated crimes. The statute, 18 U.S.C. 3663A(a)(1) begins, “Notwithstanding any other provision of law….” a defendant who is convicted of certain crimes must have a sentence of restitution imposed. In Dolan v. United States, 560 U.S. 605, the Supreme Court held in 2010 that sentencing errors or omissions that result in a failure to award restitution may later be corrected, so holding because Congress made its intent clear when it used that language, “Notwithstanding any other provision of law.” But it appears to be the pattern and practice in the Eastern District to allow cooperators to keep the money they’ve pled guilty to stealing, in exchange for “good” cooperation. Continue reading
Judge deploys unusually vivid language: ‘you’re branded as a liar and you’ll remain a liar for the rest of your life’
by Sidney Powell • New York Observer
Add another Article III federal judge to the lengthening list of those fed up with the lying and abuses by our “now ironically named Department of Justice.” Senior US District Judge Kevin Thomas Duffy in New York just lambasted Assistant US Attorney Stanley J. Okula from Preet Bharara’s office for lying to the court and advised that he bring a supervisor with him to court from now on.
The judge was livid, and he began the December 5th hearing with great clarity:
“Mr. Okula, I think I should start with something. On the front hall of the Department of Justice is engraved the whole section of United States against Berger about how the job of the Justice Department is to see that justice is done. Justice is founded in truth. Continue reading
Albert, now 9, has attention deficit hyperactivity disorder, and the public elementary school he attended in St. Martin Parish struggled to meet his needs. So when his mother learned he might be eligible for Louisiana’s school choice program, she applied. He got in.
Albert is in his second year at Holy Family Catholic School in Lafayette, La. He’s doing so well, his two sisters joined him.
Fuselier tells us the public schools her children attended weren’t awful. They weren’t derelict. They weren’t unsafe. But they were big. The teachers didn’t really know the students. They didn’t have the patience to work with Albert. Continue reading