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.
By Angela Morabito • The Federalist
Study Finds Voter ID Requirements Don’t Repress Minority Votes
Voter ID requirements do not affect voter turnout, according to a new working paper published by the National Bureau of Economic Research. The researchers looked at 1.3 billion data points on U.S. voters from 2008 to 2013, and they found that “the laws have no negative effect on registration or turnout, overall or for any group defined by race, gender, age, or party affiliation.”
For years, opponents of voter ID laws have equated them with disenfranchisement. The American Civil Liberties Union says “voter ID laws deprive many voters of their right to vote” and that they “reduce participation.” Writing for CNN Politics, reporter Eric Bradner addressed voter ID requirements as “discriminatory voting laws.” The Democratic Party’s official website addresses voter ID laws as if they are anathema to democracy. Continue reading
By Tammy Bruce • Washington Times
As President Trump’s Presidential Advisory Commission on Election Integrity met on Tuesday in New Hampshire to discuss voter fraud, the usual liberal suspects cried wolf.
During last year’s election, the president voiced what we know — that voter fraud exists. The only question is to what degree, and that’s the mission of the commission.
For anyone who dismisses concerns about voter fraud, the unhinged reaction by the left at investigating it should, at the very least, make a logical person wonder what they’re so concerned about.
After all, if you believe the issue is false, or at the most an irrelevant factor in end results, you should welcome confirmation of that fact. Unless, of course, one fears the actual outcome may prove how voter fraud impacts local and state races to the point of shifting the balance of power in Washington, D.C. Continue reading
By Kerry Picket • Daily Caller
A study conducted by the Public Interest Legal Foundation (PILF) showed that in the key swing state of Virginia voter registration rolls have been tainted with the presence of at least 1000 non-citizens.
The PILF study, which former DOJ Attorney J. Christian Adams assisted on, used an eight county sample from the Commonwealth, which did not include the large population centers of Arlington and Fairfax Counties. There is a total of 133 counties in Virginia.
The study surfaced in the wake of Andrew Spieles, a young Democrat admitting he registered 19 dead people in Harrisonburg, Virginia to vote. Continue reading
The 4th Circuit Court of Appeals on July 29 struck down North Carolina’s 2013 voting law, which included a voter identification requirement and reduced the the number of days before Election Day on which people could vote.
It is perfectly reasonable for a state to demand that voters show ID at the polls, but the court decision and others recently handed down in other states suggest a systematic campaign is underway to discredit this basic truth. The principal weapon used in this campaign is the Left’s favorite: racial discrimination.
As long as an ID is easy to obtain and those without one may prove their identity later, voting regulations should be left to the states. Heavy-footed interventions of the type we are seeing is a constitutional usurpation against states rights. Continue reading
by Jonathan S. Tobin • Commentary
Hillary Clinton was in Texas on Thursday doing what she usually does: not taking questions from the press while seeking ways to energize the Democratic base. In this case, her focus on highlighting a key issue for Democrats: voting rights. But contrary to the overheated rhetoric she and other members of her party are employing, this has little to do with fighting actual efforts to stop minorities from voting and everything to do with creating a sense of crisis, particularly among African-Americans, that Republicans are seeking to put them “back in chains.” The main focus of this effort is to invalidate laws requiring voters to have photo IDs while seeking to institute weeks-long periods of early voting. Neither of those measures has much to do with ensuring that Jim Crow never returns. To the contrary, the effort to hype this into a fight for racial equality is about Clinton’s fear that the African-Americans that turned out in record numbers to elect and then re-elect Barack Obama won’t show up for her next year. And if takes a cynical waving of the bloody shirt of the Civil Rights era to convince them that Republicans are out to get them, Clinton is demonstrating that she will stoop as low as it takes to get blacks sufficiently alarmed about a possible GOP victory in 2016. Continue reading
by Thomas Sowell • Townhall.com
One of the biggest voter frauds may be the idea promoted by Attorney General Eric Holder and others that there is no voter fraud, that laws requiring voters to have a photo identification are just attempts to suppress black voting.
Reporter John Fund has written three books on voter fraud and a recent survey by Old Dominion University indicates that there are more than a million registered voters who are not citizens, and who therefore are not legally entitled to vote. Continue reading
by Kate Bachelder • Wall Street Journal
A hallmark of progressive politics is the ability to hold fervent beliefs, in defiance of evidence, that explain how the world works—and why liberal solutions must be adopted. Such political superstitions take on a new prominence during campaign seasons as Democratic candidates trot out applause lines to rally their progressive base and as the electorate considers their voting records. Here’s a Top 10 list of liberal superstitions on prominent display during the midterm election campaign:
1. Spending more money improves education. The U.S. spent $12,608 per student in 2010—more than double the figure, in inflation-adjusted dollars, spent in 1970—and spending on public elementary and secondary schools has surpassed $600 billion. How’s that working out? Adjusted state SAT scores have declined on average 3% since the 1970s, as the Cato Institute’s Andrew Coulson found in a March report.
No better news in the international rankings: The Program for International Student Assessment reports that in 2012 American 15-year-olds placed in the middle of the pack, alongside peers from Slovakia—which shells out half as much money as the U.S. per student.
Someone might mention this to North Carolina Democratic Sen. Kay Hagan, who is knocking State House Speaker Thom Tillis for cutting $500 million from schools. Per-pupil K-12 spending has increased every year since Mr. Tillis became speaker in 2011, and most of what Ms. Hagan is selling as “cuts” came from community colleges and universities, not the local middle school. Mr. Coulson’s Cato study notes that North Carolina has about doubled per-pupil education spending since 1972, which has done precisely nothing for the state’s adjusted SAT scores. Continue reading
Progressives and the Justice Department are doing all they can to stop improvements in election integrity.
by Hans Von Spakovsky • Wall Street Journal
In the past few months, a former police chief in Pennsylvania pleaded guilty to voter fraud in a town-council election. That fraud had flipped the outcome of a primary election. Former Connecticut legislator Christina Ayala has been indicted on 19 charges of voter fraud, including voting in districts where she didn’t reside. (She hasn’t entered a plea.) A Mississippi grand jury indicted seven individuals for voter fraud in the 2013 Hattiesburg mayoral contest, which featured voting by ineligible felons and impersonation fraud. A woman in Polk County, Tenn., was indicted on a charge of vote-buying—a practice that the local district attorney said had too long “been accepted as part of life” there.
Now come the midterm elections on Nov. 4. What is the likelihood that your vote won’t count? That your vote will, in effect, be canceled or stolen as a consequence of mistakes by election officials or fraudulent votes cast by campaign workers or ineligible voters like felons and noncitizens? Continue reading
by John Fund • National Review
But what Obama and his fellow Illinois Democrats love most is voting “the Chicago Way.” That involves bending every rule in the book, appointing compliant election judges, and looking the other way when some of Chicago s notorious voter fraud occurs behind the curtain.
This Chicago Tribune news story told the story in droll terms:
Obama’s visit to Chicago shined a spotlight on the early voting process. . . . State lawmakers enacted a series of one-time changes to make early voting easier for this election only, leading some critics to contend the move was made for political reasons tied to the hotly contested governor race between Democratic Gov. Pat Quinn and Republican challenger Bruce Rauner. Among the changes, the two-week early voting period, which traditionally ends the Saturday before the Tuesday election, will this year continue through Sunday, Nov. 2, at some voting locations.
There are other changes. Two years ago, when he early voted in Chicago for his reelection, President Obama was happy to show the required photo ID. But people voting early this year will no longer have to show an ID. Voters will also be able to register to vote and cast a ballot on Election Day — what is known as same-day registration. That lax system has led to frequent reports of fraud and abuse in neighboring Wisconsin, richly detailed in a 68-page 2008 Milwaukee Police report. Continue reading